Legal Newsline

Wednesday, February 26, 2020

Testimony focuses on lead paint cleanup

By Christina Aanestad | Jul 29, 2013


SAN JOSE, Calif. (Legal Newsline) -- Lead-based paint is a costly clean up; that's why 10 cities and counties in California are suing one-time lead pigment and paint manufacturers to cover the abatement costs of millions of homes in their jurisdictions, to the tune of an estimated $1 billion.

Now entering their third week of a trial that could extend into late August, plaintiffs in the lawsuit The People of California v. Atlantic Richfield Company et al. used the expert testimony of Perry Gottesfeld, an industrial hygienist to describe the scope of work an abatement procedure requires when cleaning up lead paint from a home or building.

"It is very important specific procedures are followed when you disturb lead surfaces," explains Gottesfeld, who is the Executive Director of Occupational Knowledge International, a non-profit working with developing nations to reduce industrial pollution, like lead exposure.

Plaintiffs displayed pictures of an area with caution tape, a warning sign and workers in white hazardous material jumpsuits on two large screen in the courtroom. Gottesfeld explained, "In those cases you need to contain dust and lead contamination so it doesn't spread. Worker's under the Occupational Health and Safety Code must have half masks-purifying respirators at a minimum and warning signs have to be in place. They have clothing, so workers don't take contamination into their own homes."

Houses undergoing abatement have white lining to collect the lead dust and paint; a HEPA vacuum is later used to suck the remaining lead out of the home. Sometimes, Gottesfeld said, the house's belongings in addition to the residents will have to be removed from the home or building until the abatement procedure is complete.

"This will increase construction costs when compared to a home that does not have lead based paints," Gottesfeld said.

Referring to a U.S. H.U.D. Housing and Urban Development 2011 American Healthy Homes Survey Lead and Arsenic Findings report, the older the house, the higher the lead content. But some homes built after 1978 may have lead paint on them because no law prohibits the use of it.

"If we look at the housing stock nationally, 35 percent of all homes contain lead-based paint in the interior or exterior. Homes built before 1940 are three times more likely to have lead-based paint," said Gottesfeld who also sat on the Advisory Committee On Childhood Lead Poisoning Prevention (ACCLPP), which guides the knowledge and development of new efforts in childhood lead poisoning prevention.

Low income households have higher prevalence of blood lead hazards than higher income households. Gottesfeld, in addition to other expert witnesses for the plaintiff's, also pointed out there is no safe level of lead, Robert Mittelstaedt counsel for Sherwin Williams pointed out, "Your committee has said no safe level has been determined. It did not determine that any or all levels were, in fact, unsafe."

Gottesfeld agreed and said, there is a level of concern and a community action level, "the level at which you go into homes test levels and abate those hazards if they exist."

Mittelstaedt countered Gottesfeld's testimony about the severity of lead hazards. In deposition Gottesfeld said, "Whenever you have intact paint in the home and limited resources, you maintain the conditions of paint and have those children tested."

Highlighting the contradictions in the U.S. government, Mittelstaedt said that even if a house or building has lead levels above the threshold, it is "Considered a lead-based paint hazard even if there's no lead-based paint and lead comes from source other than lead-based paint."

While the plaintiff's argued lead is hazardous, an effective abatement process to redress lead exposure to the populations most vulnerable-children can solve the problem.

"It comes down to pay now or pay later," said Gottesfeld "because lead will not disappear, and at some point people's home will need to be remodeled or demolished and it will have to be dealt with later."

While intermittent controls can be employed like keeping lead paint in tact, keeping a dust free home, Gottesfeld says the price is much less for abatement in the long run.

"Today we have thousands of workers in California who are certified, who have supervisors, project monitors, in essence the industry has developed a whole infrastructure to do this work and do it well," he said.

Counsel for the plaintiff's implied Gottesfeld has a vested interest in a $1 billion dollar abatement lead law suit, as an abatement expert. To date Gottesfeld has made $91,000 from the plaintiff's for that expertise.

As an ACLPP member, Mittelstaedt said, Gottesfeld advocated lowering the level of concern of lead blood levels, when it seemed the project was complete and congressional funding on the chopping block.

CDC set a goal of having 95 percent below a blood lead level of less than 10 by 2010 and some officials, Mittelstaedt claimed, said their job was done but Gottesfeld then advocated to lower that level.

"You thought they should change the level the very next day," said Mittelstaedt.

"That's correct this is still a problem impacting millions of people," said Gottesfeld.

Another ACLPP member, Dr. Michael Kosnett, opposed Gottesfeld's idea, the defense argued, citing a transcript to the meeting.

"I don't want people to think if their child had a lead level of .8 their child is somehow unsafe," Kosnett said.

Kosnett who will be the plaintiff's next expert witness this week wasn't the only one with concerns about lead poisoning levels. Gottesfeld testified that attorney's for the defendant Sherwin Williams attended the ACLLP meeting and objected to lowering the level of lead exposure to children that would be of concern to no avail. The attorney declined to identify himself at the time. Since then the rate of concern was dropped from 10 to 5.

"Already at the rate we're going it will take hundreds of years to abate all the lead based paint in California; if there are more cutbacks, it could extend further out," said Gottesfeld, "We need to address this today before another generation is needlessly exposed to lead paint runoffs."

Next, the plaintiffs will enter their third week of expert testimony with Kosnett and more medical testimony of lead poisoning in the plaintiff's jurisdictions.

Editor's note: This story has been updated. A previous version indicated that the defense had displayed pictures of an area with caution tape, a warning sign and workers in white hazardous material jumpsuits. Legal Newsline regrets the error.

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