Lead

Lead is a naturally occurring chemical element, and human activities have contributed to increased lead levels in the environment. Industries such as lead smelting, mining, and refining have significantly increased lead levels, particularly in the soil, which can result in contaminated groundwater because lead adheres to soil. Lead and lead compounds have also been used in leaded gasoline, lead-based paint, pipes, and a variety of other products in extraordinarily widespread use. Possible liability can attach to a range of entities, including governmental and private companies, landlords, federal and state agencies and officials, and include difficult public policy and scientific issues. Questions surrounding insurance coverage are complex and inevitably expensive, involving claims of governmental immunity and the possible application of pollution exclusions.

Background

Lead is extremely toxic when it enters the human bloodstream. The degree of lead poisoning is calculated by assessing the micrograms of lead per deciliter of blood, a measurement referred to as “blood lead level” (BLL). Lead is so toxic that the Centers for Disease Control and Prevention (CDC) states that there is no known identified safe BLL. Even the smallest amount of lead can have adverse effects on human health, affecting almost every organ or system.

Most exposure to lead from paint occurs through ingestion and inhalation. Lead paint, legally used in houses until 1978, is the primary source of exposure for children and adults. As the paint deteriorates, peels and chips can become pulverized and contaminate a residence. The resulting lead dust can enter the body though hand to mouth contact or by way of dust-contaminated food or water. Lead in drinking water also presents a poisoning risk if lead-lined pipes that are part of a municipal water delivery system leach lead into the water supply.

Injuries and Damages

While lead is toxic to all human organisms, children are the most at risk for lead poisoning. Children’s bodies absorb more lead than adult bodies and they are more prone to hand-to-mouth contact because they routinely put objects – which might be contaminated – into their mouths. Research has shown that lead poisoning can lead to brain damage, stunted development, behavioral problems, and hearing and speech issues. According to the CDC, at least four million children live in households that are subject to high levels of lead. A form of treatment for lead poisoning exists in the use of chelation therapy during which a patient ingests chemicals that “grab” lead and remove the substance from the body. If the poisoning is severe, however, lead levels may be reduced but not eliminated. Chelation therapy itself carries risks, including death.

Lead in the public water supply also poses a special danger to children because they generally spend considerable time in day care centers and schools, which may be unknowingly providing contaminated water.

Legislation and Regulation

There are many regulations governing lead paint contamination, including the Clean Air Act, Clean Water Act, and Toxic Substances Control Act. The Residential Lead-Based Paint Disclosure Program (Section 1018 of Title X) requires that potential buyers and renters of housing built prior to 1978 receive certain information about lead hazards in the residence. The law also provides buyers with an opportunity for an independent lead inspection. The Lead Renovation, Repair and Painting Program (RRP) Rule mandates that those engaged in RRP activities in homes or child-occupied facilities, such as day care centers and kindergartens built prior to 1978, be trained and certified in lead-safe work practices and use these work practices to guard against lead contamination. It also requires that contractors provide information on lead safety prior to beginning work.

The Department of Housing and Urban Development (HUD) has a comprehensive Lead-Safe Housing Rule on the books which includes the required disclosure of known lead-based paint hazards and methods, and standards for lead-based paint hazard evaluation and reduction activities. Individual states have passed laws and regulations concerning lead-based hazards, however, enforcement may be lax in some situations. Also, the testing and subsequent reporting of high lead levels may occur after damage from exposure has already occurred, limiting the impact of laws.

The issue of lead-contaminated water has also generated a set of laws and regulations, including the 1974 Safe Drinking Water Act and 1976 amendments setting standards for lead concentrations in public water systems. In 1991, in recognition of the role of plumbing in lead contamination, the EPA promulgated the Lead and Copper Rule (LCR), which mandated that public water utilities would monitor drinking water lead concentrations, address what needed to be done if levels were unacceptable, and keep the public informed of essential steps to guard their health. The LCR has been revised several times over the years.

Liability and Insurance

Lead poisoning liability issues cover a wide spectrum, including Title X violations, public nuisance, negligence, reckless endangerment, bodily injury, and property damage.

In the mid-1990s as incidents of lead paint poisoning gained publicity, some insurers began to issue policies with endorsements intended to exclude coverage for such occurrences. The often broadly-worded exclusions were intended to apply to a variety of claims, including the exposure to, or ingestion of, lead paint or dust.

Disputes in lead paint poisoning insurance cases can include:

• the scope of an insurer’s duty to defend its insured against lead-based paint claims;
• whether lead paint in a building constitutes property damage covered by a general liability policy or first-party policy;
• whether a property owner’s awareness of the existence of lead paint on the premises bars coverage for a subsequent claim for bodily injury or property damage;
• which policies cover property damage or bodily injury that takes place or continues during more than one policy period;
• whether a pollution exclusion bars coverage for injuries from exposure to lead paint chips or lead dust;
• whether a business risk exclusion or products exclusion will preclude coverage for lead-based paint liability; and
• the applicability of lead paint exclusions.

It is generally accepted that most lead poisoning is related to lead-containing paint, however, experts have estimated that about 20 percent of overall lead exposure results from contaminated drinking water. Lead in drinking water has been a public concern for decades that has escalated in the past few years. Also, while the use of lead pipes, plumbing fixtures and solder was banned in 1986, brass plumbing fixtures were allowed to contain lead until 2014. Nearly all water is delivered through public water systems that are required to test for lead contamination under the LCR. The testing, however, may not address the problem; testing is often performed on water before it enters the public water system, while the actual lead contamination typically comes from inside buildings through pipes, water cooler coils and linings, lead service lines and leaded drinking fixtures. Lead-containing water feeder lines and service lines are often still in service in some areas, such as the Midwest and Northeast. Schools and day care centers are not required under federal law to test for lead in the water, and they often do not test until an outside event creates a need. Experts advise consumers to assume that any building put into service before 1986 contains lead and lead-soldered pipes, and that pre-2014 construction is likely to contain lead-contaminated brass fixtures. Removal costs have been estimated at tens of billions of dollars. No comprehensive removal and replacement plan exists.

The failure to conduct proper lead-contamination testing on drinking water supplies and to attempt to mitigate the situation could become a basis of liability for a school district or day care center, although certain public entities are likely to claim immunity from such litigation. While the argument might be made that the blood lead level (BLL) alone is evidence of neurodevelopmental deficits, it has not been proven that reducing blood lead levels prevents such deficits, partly because many studies do not account for factors such as poverty, single- or young- parent households, child abuse and inadequate nutrition.

As with lead paint, lead-contaminated water presents thorny insurance issues. For example, the application of a pollution exclusion might depend on jurisdictional rules about whether such an exclusion applies only to traditional environmental harm, and how poisoning by lead in the water should be categorized under a policy. Insurers will need to consider how broadly a pollution exclusion is written, as well as anticipate disputes over establishing a proper trigger of coverage and setting the number of occurrences.

Litigation

Due to the long-lasting grave effects of lead poisoning and the intricacy of the issues, it is not possible to predict the direction or outcome of lead litigation, although some disputes have been instructional. In addition to the highly publicized litigation over lead in the water supply of Flint, Michigan, lawsuits have been brought against Washington, D.C., Chicago and New Jersey water-supply officials. The 2009 D.C. lawsuit alleges lead poisoning as a result of water contamination dating back to 2001. The Chicago litigation cites the replacement of water mains that allegedly resulted in higher lead levels in drinking water. In Newark, New Jersey, a parent group sued over high levels of lead in the water provided to schools. Lead paint poisoning, especially with respect to children, has also received a great deal of media attention as federal agencies, state officials, private landlords, paint manufacturers and distributors have been targeted in lawsuits.

Lead in the Water: Flint, Michigan Water Contamination
In 2014, Michigan officials elected to switch Flint’s water supply from Lake Huron to the Flint River in an effort to address the city’s financial problems. The Flint River, however, was generally considered by residents to be filthy. A new supply line to Lake Huron was supposed to be ready for connection about two years after the switch, but Flint citizens began to complain about the brown color of the water and its taste and smell soon after the change. It was alleged in a class action lawsuit filed on November 13, 2015 in Michigan federal court, Mays v. Snyder, No. 5:15-cv-14002-JCO-MKM (E.D. Michigan) that the brown color was the result of the highly corrosive nature of Flint River water, which eroded the iron water mains and turned the water brown. The plaintiffs sued Michigan’s Department of Environmental Quality and other parties for alleged failures with respect to properly treating the water. It was soon discovered that because the water supply was not properly treated, lead from service lines running into homes began leaching into the water supply along with the iron. Officials assured residents that everything was fine, although a group of university-based researchers found high lead levels in the water. It was eventually established that the law about treating the Flint River water with anti-corrosives had not been followed. Experts estimated the cost of the treatment agent that would have avoided 90% of the problems was about $100 a day.

Flint residents complained that they were kept in the dark for about a year and a half until a local pediatrician, Dr. Mona Hanna-Attisha, determined that blood lead levels in the children she was seeing had doubled or tripled as compared to what those levels had been when the children were younger. State officials agreed with her and returned to using Lake Huron water, but the lead pipes were already damaged and the state began supplying bottled water. Experts emphasized that lead poisoning is irreversible and that there is no safe level of lead in a child.

Developments with respect to the Flint water crisis continue. Flint switched back to Detroit/Lake Huron water in late 2015. A lawsuit was filed against the state of Michigan in 2016 [Concerned Pastors for Social Action v. Nick A. Khouri, in his official capacity as Secretary of Treasury of the State of Michigan, No. 2:16-cv- 10277 (filed, E.D. Mich. January 27, 2016)] alleging the violation of the Safe Water Drinking Act. Several lawsuits have been filed in addition to those already underway, including some that involve criminal charges against certain government employees and a class action suit against the EPA; some have progressed to settlement. It was announced in April 2018 that the free bottled water program would end as soon as supplies run out, and litigation over that decision is expected.

Lead in Paint: The People v. Conagra
In a case that has gained considerable attention, ten California cities and counties joined in litigation that began in 2000 against Sherwin-Williams Company, ConAgra Grocery Products Company, and NL Industries, Inc. (referred to here as “Defendants”). The complaint alleged that Defendants aggressively marketed lead -based paint despite knowing that it was toxic to young children. The trial court ruled in favor of the plaintiffs in The People v. Conagra Grocery Products Company, No. CV788657 (Santa Clara County Super. Ct. March 2014). Defendants appealed the trial court decision. The appellate court upheld the judgment and found the paint manufacturers responsible for the public nuisance created by lead paint inside pre-1951 homes. Defendants were ordered to clean up the interior lead paint -- at an estimated cost of more than $1.1billion. [The People v. Conagra Grocery Products Company, H040880 (Ca. Ct. Appeal Nov. 14, 2017)]. Defendants subsequently appealed to the California Supreme Court, which in February 2018 declined to review the appellate ruling.

In an unusual move, Defendants sought in May 2018 to qualify a November ballot initiative that would eliminate their liability to remediate lead paint contamination, replacing it with a $2 billion state bond sale to pay for abatement work. Defendants established a website containing claims that some lawmakers have called “factually dubious.”

Lead in Paint: Jackson v. Dackman Co.
Landlords have exposure to significant liability in lead poisoning cases because of the legal burden to disclose lead-based hazards in properties and to give tenants specific information on lead. In a Maryland landmark case, a jury awarded almost $1.7 million to a youth who was allegedly poisoned by lead as a toddler when living in an East Baltimore rental home. The defendant landlord was found negligent in maintaining the property in accordance with Maryland law. [Jackson v. Dackman Co., 956 A.2d 861(Md. Ct. Special Appeals September 10, 2008)]

Lead in Paint: Cmty. Voice v. United States EPA
Federal agencies have been named in lead paint hazard complaints. On August 24, 2016, eight groups – including California Communities Against Toxics and New Jersey Citizen Action – filed a complaint against the Environmental Protection Agency (EPA) for “failing to update standards that protect families against neurotoxic lead-based paint and lead dust.” Plaintiffs argued that while the EPA granted a petition to update the standards in 2009, the agency had yet to propose or finalize new standards for lead dust or lead-based paint. The court found that the EPA was under a clear duty arising from the Toxic Substances Control Act and the Paint Hazard Act to conclude a rulemaking proceeding within a reasonable time. The court also held that there was a clear threat to human welfare, that the existing standards were insufficient, that the children exposed to lead poisoning were severely prejudiced by the EPA's delay, and that Congress had asserted that the threat of lead poisoning must be eliminated expeditiously. The court granted plaintiffs’ petition for writ of mandamus, although it later granted the EPA’s motion for clarification or for an extension of time to comply with the directive. [Cmty. Voice v. United States EPA (In re Cmty. Voice), 878 F.3d 779 (9th Cir. 2017)]

Future Outlook

It is nearly certain that the publicity surrounding the “lead in the water” and “lead in the paint” cases will lead to mass toxic tort litigation and accompanying questions about insurance coverage.

In the News

2024

• Elevated lead found in six ground cinnamon spice brands, FDA warns - Teddy Amenabar, The Washington Post (03/06/2024)
  Elevated levels of lead have been detected in six brands of ground cinnamon spice, the latest contamination of the toxic metal following a massive recall of tainted cinnamon applesauce pouches last fall. The products — bags and plastic bottles of ground cinnamon often used in home cooking — have far lower levels of lead than what was detected in the lead-tainted cinnamon used in the apple puree pouches. But the Food and Drug Administration said in a statement Wednesday that “prolonged exposure” to the products may be unsafe and could contribute to elevated blood lead levels.
• Firm announces $25M settlement over role in Flint, Michigan, lead-tainted water crisis - The Associated Press (02/01/2024)
  A second contractor said Thursday that it has reached a $25 million settlement over its role in Flint, Michigan’s lead-contaminated water scandal. The class-action litigation agreement includes payments of $1,500 for individual minors, according to Boston-based Veolia North America. The company says the agreement will resolve claims made on behalf of more than 45,000 Flint residents.

2023

• Justice Department and EPA Probe Telecom Companies Over Lead Cables - Corinne Ramey, Shalini Ramachandran and Susan Pulliam, The Wall Street Journal (07/26/2023)
  The Justice Department and Environmental Protection Agency are investigating the potential health and environmental risks stemming from a sprawling network of toxic lead-sheathed telecom cables across the U.S.
• Children’s cups sold on Amazon recalled for unsafe lead levels. What you should know Read more at: https://www.miamiherald.com/news/recalls/article277515418.html#storylink=cpy - Irene Wright, Miami Herald (07/21/2023)
  Cupkin, a manufacturer of double-walled stainless steel cups, announced the recall of two of its products after testing showed unsafe levels of lead could become ingested when the cup was damaged, the company announced.
• Workers Exposed to Toxic Lead Cables Wrestle With the Aftermath - Shalini Ramachandran, Coulter Jones, Susan Pulliam and Thomas Gryta, The Wall Street Journal (07/14/2023)
  The Fitchhorns, like tens of thousands of workers at American Telephone & Telegraph and its successor companies, were exposed to lead on the job over many years. Current and former workers say they often felt left in the dark about their exposure and how to stay safe.
• Lead, rodents, put tenants at risk, Rhode Island says in lawsuit against major landlord - The Associated Press (06/06/2023)
  At least five children have developed lead poisoning since 2019 while living in apartments owned by a major Rhode Island landlord, the state attorney general said in a lawsuit filed Tuesday.

2020

• Youth at St. Louis' Juvenile Detention Center poisoned by lead for years, study says - Bryce Gray, St. Louis Post-Dispatch (07/21/2020)
  Minors in St. Louis’ youth jail were poisoned by lead-tainted water for at least two years, according to a report released Monday by the city’s chapter of the NAACP.

2019

• Notre Dame fire wakes the world up to dangers of lead dust - Thomas Adamson, Associated Press, https://www.pbs.org/newshour/world/notre-dame-fire-wakes-the-world-up-to-dangers-of-lead-dust (12/22/2019)
  It took a blaze that nearly destroyed Paris’ most famous cathedral to reveal a gap in global safety regulations for lead, a toxic building material found across many historic cities.

2017

• F.D.A. Warns of Faulty Lead Testing in Children and Mothers - Roni Caryn Rabin, The New York Times (05/17/2017)
  
  Some blood tests used to check for lead poisoning in children and women since 2014 may have wrongly indicated that children were safe from lead exposure, federal health officials warned Wednesday. Children under 6 and pregnant and nursing women may need to be retested. The concern is that the original tests may have underestimated blood lead levels, providing false assurance to parents. Infants and young children are especially vulnerable to the effects of lead poisoning, which can cause cognitive deficits and affect almost every system in the body.
• Butler Area's insurance companies claim no liability in lead-tainted water case - Ben Schmitt, The Tribune-Review (04/04/2017)
  Butler Area School District's insurance companies contend that their coverage doesn't include potential payouts in a lawsuit over lead-tainted water at Summit Elementary. The issue was raised Tuesday during a hearing in U.S. District Court in Pittsburgh. Lawyers for The Netherlands and Peerless insurance companies are asking a judge to order that they are not obligated to pay or defend the district or former Superintendent Dale Lumley.

2016

• Residents: UW-Madison failed to act on chipping paint until child suffered lead poisoning - Nico Savidge , Wisconsin State Journal (11/20/2016)
  The residents of a UW-Madison apartment complex where a young child was diagnosed with lead poisoning earlier this year had complained to housing officials about chipping and peeling paint outside their apartments for a decade before the girl was poisoned, records obtained by the Wisconsin State Journal show. The girl’s mother also wrote to UW Housing staff several months before her daughter was diagnosed to complain about paint she said was chipping off the entryway to her unit at University Houses apartments. By April, after tests found the child had levels of lead in her blood well above the standard for poisoning, officials wrote in emails to residents that paint at the complex had “deteriorated significantly,” saying it posed an “immediate hazard.”
• Their Soil Toxic, 1,100 Indiana Residents Scramble to Find New Homes - Abby Goodnough, The New York Times (08/30/2016)
  Stephanie King, a single mother of five, has adopted a grim routine over the past month: mopping with bleach twice a day and sweeping even more often to remove any dirt her family might have tracked inside. Ms. King and other residents of the West Calumet Housing Complex here learned recently that much of the soil outside their homes contained staggering levels of lead, one of the worst threats to children’s health… Now, in a situation that many fearful residents are comparing to the water crisis in Flint, Mich., they are asking why neither the state nor the Environmental Protection Agency told them just how toxic their soil was much sooner, and a timeline is emerging that suggests a painfully slow government process of confronting the problem.
• Family wins lead paint judgment for poisoned son — but will they ever get the money? - Luke Broadwater, Baltimore Sun (08/23/2016)
  Chauncey Liles Jr. was poisoned by lead paint by the time he was 2 years old. Now 18, he says he's struggled ever since… The lead paint chips in the rental property where Liles lived cost him valuable IQ points, his lawyer argued in a successful lawsuit against the landlord… Now Liles, of West Baltimore, faces another challenge. The $1.3 million a jury awarded his family last week is in jeopardy because of a legal dispute between a London-based insurance company and Liles' former landlord. The case is one of two large lead poisoning judgments awarded this month in lawsuits filed against landlords who are insured by London-based CX Reinsurance Co., which is attempting to rescind its insurance policies with landlords of hundreds of Baltimore properties.

Additional Items

Recall Roundup: Lead levels result in recalls of children's toys
Failure to meet federal lead content bans has resulted in the recalls of two toys in the last two weeks, according to the U.S. Consumer Product Safety Commission.