Sherwin-Williams Plain Dealer posts latest in the war to save 1,000s of NEO youth from lead poisoning each year

Submitted by Norm Roulet on Thu, 11/16/2006 - 01:21.

In an article that makes one wonder whether the mayor of Akron is perhape lead poisoned, the Cleveland Plain Dealer today gleefully reports " The City of Akron has dropped its lawsuit against Sherwin-Williams Co. (NYSE: SHW) and other former manufacturers of lead pigment, but it’s not saying exactly why"  and "Motley Rice partner Jack McConnell said it’s his understanding that (Akron Mayor) Plusquellic wanted the suit dismissed for the time being, but that when the outside lawyers working with the city wanted to meet with the mayor to discuss his intention he refused." I'll point out that in the term of this mayor it is safe to say more people in his domain have been lead poisoned than died in 9/11, and than the Americans who have died in Iraq, and if it is not the fault of Sherwin-Williams it is Mayor Plusquellic's fault, and he should be subject to litigation. He has been mayor for five terms and, as Wikipedia reports: "He is widely praised and criticized by both sides of the aisle--and some affiliated with neither Parties. In 2006, it was announced by an independent watchdog group that the city was 1.1 billion USD in debt, more per capita then any other city of its size in Ohio. The public school system has suffered due to a very strong tax abatement structure Plusquellic employed to bring new development to downtown Akron. Some complain that the City does not run like a municipal body but a business, complete with press releases and news conferences." More to follow on this shift of responsibility for lead poisoning to the Mayor of Akron.

Akron drops lead paint lawsuit

  The City of Akron has dropped its lawsuit against Sherwin-Williams Co. (NYSE: SHW) and other former manufacturers of lead pigment, but it’s not saying exactly why.

Meanwhile, a downstate lawmaker hopes to amend a law that would derail other attempts to go after the Cleveland paint company over lead hazards.

Akron law director Max Rothal said he talked with Akron Mayor Don Plusquellic before withdrawing the suit but would not disclose the mayor’s comments, calling them privileged communications.

“We dismissed it because I wanted to step back and take a more in depth look at it,” Rothal said. He declined to elaborate.

Plusquellic’s assistant Mark Williamson referred all questions about the suit to Rothal.

Akron filed suit against the Cleveland paint company and several other co-defendants in early October. It sought compensation for the removal of lead-paint hazards in homes and buildings throughout the city.

But Rothal withdrew the suit Nov. 7, election day. It was “dismissed without prejudice,” he said, which means the city has the right to re-file it.

The dismissal surprised Thomas Bevan, whose private law firm had been hired on a contingency basis to help represent the city. Asked if the mayor wanted the suit dismissed, Bevan said, “I don’t know. I assume, but I don’t know.”

Also working with Rothal has been the law firm of Motley Rice. The high-powered firm represents Rhode Island, which earlier this year won a major lead-pigment verdict against Sherwin-Williams and two other defendants. That suit, which may still be appealed, set the tone for Akron’s suit and similar ones filed by East Cleveland, Toledo and Lancaster.

Motley Rice partner Jack McConnell said it’s his understanding that Plusquellic wanted the suit dismissed for the time being, but that when the outside lawyers working with the city wanted to meet with the mayor to discuss his intention he refused.

McConnell suspects Sherwin-Williams is behind the city’s change of heart. He accused the company of engaging in “strong-armed lobbying tactics” with Ohio cities and the state legislature.

Sherwin-Williams spokesman Bob Wells was out of town and did not return a voice-mail message. Antonio Dias, a Jones Day attorney in Pittsburgh representing Sherwin-Williams, also was out of town and did not return a message.

In Columbus, meanwhile, State Rep. Bill Seitz, a Cincinnati Republic, said Wednesday that he hopes to tweak previously passed legislation that would prevent cities or anybody else from using the state’s public nuisance law to sue the lead pigment manufacturers. Seitz thinks the law already prevents the lawsuits but wants to make sure the language is “crystal clear.”

Motley Rice’s strategy in Rhode Island was to have old lead paint in homes declared a public nuisance that Sherwin-Williams and others would have to clean up. The state only had to show that the defendants made or marketed lead pigment in the state at one time. The Ohio suits are taking a similar route.

Sherwin-Williams has filed a lawsuit of its own in federal court in Columbus hoping to have the cities’ lawsuits invalidated. The company claims the public nuisance claims in the suits are too vague to be fairly defended and that the company should not be held accountable for actions that were legal years ago.
The company also takes exception to the cities’ use of Motley Rice and other outside counsel working on a contingency basis — for a percentage of any financial settlement or award. The company claims that being prosecuted by lawyers that stand to gain financially from the outcome violates the company’s right to fair treatment under the law.

Despite Akron’s action, the suits brought by East Cleveland, Toledo and Lancaster are going forward, McConnell said, adding that he expects Columbus and Cincinnati to eventually file as well.

By Peter Krouse, pkrouse [at] plaind [dot] com


Akron's battle to eradicate lead poisoning

Doing some research finds the City of Akron has a massive lead poisoning problem and is concerned about lead poisoning, and has programs and pursues funding for eradication, so the Mayor is not completely failing to attempt to address the problem. Still, there are 1,000s of children in Akron lead poisoned and at risk, based on current standards of 10mg/dl in blood lead concentrations, and that number will go up dramatically at the new consensus concern level of 5mg/dl in blood lead concentrations (no level of lead is safe). So Akron is failing in the battle against the public nuisance of lead poisoning. Interestingly, Akron has been aware of lead poisoning as a crisis and has developed programs to protect residents since the mid-1970's - years before federal mandate required paint companies to stop selling lead paint, yet the lead and paint industries claim they didn't realize lead was a hazard. Clearly, supposed ignorance is not bliss for 1,000s lead poisoned in Akron over these years, and the paint companies are responsible for expanding the extent of the public nuisance well beyond when it was general knowledge lead was a hazard (which in fact was in the early 20th century... actually, centuries before). Based on all these facts, the questions remain why Akron chose to join litigation against Sherwin-Williams, and then withdrew. These questions must be answered.

Latest Statistics on Lead oisoning in Akron show it is a huge problem - a public nuisance:


Excerpt from the City of Akron 2005-2009 Consolidated Plan

Demonstration of Need/Extent of the Problem

The lead problem in Akron, Ohio is extremely serious. A November, 1992, Summary Report for Project LEAP (Lead Education and Abatement Program) listed the city of Akron as being in the top ten of 83 Midwestern cities because Akron has one of the highest percentages of high-risk housing and one of the highest percentages of children that were found to exceed 10mg/dl in blood lead concentrations. The City of Akron falls within the high category with 17 percent of children screened in the target areas in Akron clinics above 10ug/dl and an additional 18,000 children at-risk for lead poisoning.

Socio-economic Conditions

In order to demonstrate the extent of the problem of lead poisoning in Akron, the Akron Health Department Childhood Lead Poisoning Prevention Program (CLPPP) was in the forefront in probe screening of children under 6 years of age as early as 1975 identification of children under 6 years of age. They initially found 8.5% of Akron's children with elevated lead levels. The total number of children 6 years and younger within the City of Akron is 18,637. In determining the extent of children with elevated blood lead levels, current statistics show that 4,123 children or 22% of the 18,637 total are at risk and in need of interventions both medically and environmentally. Socio-economic factors which demonstrate the prevalence of lead exposure include these factors: 1) the poverty levels in Akron's targeted census tracts show a concentration of approximately 27% of the families do not exceed 50% of the median income, and 73% do not exceed 80 %of the median income, 17% of the children tested for lead levels in these areas are elevated, and 3) 72% of the homes in these areas were built prior to 1950.

Housing Stock

An examination of census tract figures illustrates that a significant majority of the pre-1950 housing is within the Enterprise Community and in need of both exterior and interior abatement. Environmental factors which demonstrate the prevalence of lead hazards include: 1) 95 percent of the housing stock (91,553) was built prior to 1978, 52 percent (50,113) was built prior to 1950, and 37 percent (35,430) was built prior to 1940. The Akron Childhood Lead Poisoning Prevention Program has attempted to reduce and prevent the lead problem in Akron's children. Akron is one of the first cities in Ohio to have a Lead Hazards Ordinance in place. This is paramount in order to enforce orders to reduce lead hazards in identified homes where children with elevated lead levels reside as well as preventing further exposure to potential families with children under six years of age. The City of Akron contains an estimated 35,634 dwelling units with the potential for lead based paint hazards. It is estimated that nearly all low, very low and extremely low income households who reside in older housing are at risk of exposure to lead based paint hazard as defined in Section 1004 of the Residential Lead-Based Paint Hazard Reduction Act of 1992. This figure was derived by multiplying the number of units (rental and owner occupied) of a given construction period occupied by income group (CHAS, Table 12), by the percentage of units corresponding construction periods likely to contain lead based paint (Table 3-3, page 3-9, Comprehensive and Workable Plan for the Abatement of Lead Based Paint in Privately Owned Structures).

Target Areas

The target areas selected for funding under this grant application are eleven census tracts in the city of Akron. The census tracts have very high socioeconomic and environmental risk factors that demonstrate the prevalence of lead exposure. Those factors are age of housing, high poverty, low proficiency scores, and concentrated ethnicity. These statistics were also the determining factor in selecting this area for the federally designated Enterprise Community funding and initiatives. Current STELLAR data identified a high concentration of children found to have lead poisoning in these targeted areas. The targeted areas have documented evidence that lead poisoning is epidemic in Akron, Ohio. The current scope of the Akron CLPPP includes screening of 6,886 high-risk children in the calendar year 2001, identifying 17 percent with confirmed blood lead levels greater than 10 mg/dl within the target areas and 8.5% elevated within the entire jurisdiction of Akron, Ohio. The Centers for Disease Control and Prevention considers lead levels greater than 10 micrograms per deciliter to be elevated and unsafe.

*CD Community Development Block Grant areas
* Federally Designated EC Enterprise Community

Census Tract Total Population 6 years & under Tested for Lead >10ug/Dl Housing Pre- 1950 % Below Poverty CDBG/EC Areas
5024 2215 231 81 24% 78% 22% Both
5025 1780 262 68 15% 91% 16% EC
5031 2521 273 108 15% 92% 27% Both
5034 1948 246 45 9% 55% 22% Both
5042 2487 273 69 17% 83% 35% CDBG
5052 1990 229 109 34% 63% 24% Both
5053 2442 391 151 8% 42% 25% Both
5064 3705 413 81 23% 82% 36% CDBG
5065 4496 428 147 12% 90% 28% CDBG
5067 2884 557 88 19% 67% 33% CDBG
5075 6979 820 228 15% 68% 33% CDBG
  33,447 4123 1175 17% *72% *27%  

There are 18,673 children 0-6 years of age in the City of Akron, with 4,123 or 22 percent of the children are at risk for lead levels greater than 10mg/dl and in need of interventions medically and environmentally. With 6,461 children tested in 2001 within the jurisdiction of the Akron Health Department, 495 children had lead levels greater than 10 mg/dl indicating that 8 percent of the children tested have elevated lead levels. An additional 12,212 children are not tested for lead on an annual basis. There are 4,123 children 0-6 years of age residing in the 11 census tracts targeted for this grant program. Of this total, 27 percent are below 50% of the area's median income and of the (1,175) tested for lead, 200 children had lead levels greater than 10mg/dl, or 17 percent of the children tested had elevated leads in the targeted census tracts.

There are 14,436 homes in the targeted census tract areas. Of those, 13,276 were built before 1978, and 10,471, (72 percent) were built before 1950. The Akron Childhood Lead Poisoning Prevention Program has identified and assessed an average of 200 homes per year. These homes are identified through screening and identification of children with lead levels greater than 15mg/dl conducted by the Akron Health Department clinics and referred to the Akron Health Department by Children's Hospital Medical Center of Akron. During the past two years, the Akron Childhood Lead Prevention Program has done risk assessments of 369 homes where elevated or at risk children reside, 90 percent containing significant lead hazards. Out of the total number of homes 310 or 84 Percent have been cleared of lead hazards.

Childhood Lead Poisoning Prevention

The Akron Department of Public Health has undertaken a Childhood Lead Poisoning Prevention (CLPP) Program since the mid-1970. A City Lead Poisoning Hazards Ordinance bolsters the program. The program features: neighborhood outreach and education, a Mobile Blood Screening Unit, and a computerized database monitoring system. The Health Department is currently screening approximately 6,000 children yearly through various well-child clinics in high-risk areas and the WIC Program. The screening program identifies an average of 100 children with elevated lead levels yearly. Children who are identified with lead poisoning receive case management from public health nurses conducting home visits including retests, medical follow up and education. Affected children also receive a lead environmental investigation. This environmental component assists families with abatement supplies, advice and referral. The housing programs offered by the City of Akron are coordinated closely with the City's Health Department. Further discussion on Lead Based Paint hazards and abatement are found under the Lead Based Paint Hazard Strategy.

From testimony by the Mayor on HUD, in 2000, he stated:

We have also partnered with HUD to eradicate the terrible—and completely preventable—problem of childhood lead poisoning. HUD has provided Akron with $2.5 million to test for and remove lead-based paint hazards. Moreover, Akron has, in partnership with the East Akron Neighborhood Development Corporation, established a public outreach campaign that includes education, blood lead screenings for children, and hazard reduction and prevention in high-risk dwellings. Funded through one of HUD’s Community Development Block Grants, the Akron Lead Based Paint Hazard Control Program also works with several agencies to provide additional services such as data collection, training on cleaning methods and evaluation. Through the program, the city has reduced lead hazards in the homes of numerous low-to-moderate income residents.

From the City of Akron Website, there is a page dedicated to lead, which lists programs, recommendations and contact information:

Mission Statement:
To strategically reduce and eliminate childhood lead poisoning in the City of Akron by adhering to the following essential actions: increased awareness, education, abatement in high risk housing, childhood blood-lead screening, temporary interim hazard control measures, and prevention actions to reduce hazards before they occur.

The Akron Health Department's lead program funding comes from both the U.S. Department of Housing and Urban Development (HUD) and the Centers for Disease Control and Prevention (CDC).

  • The Akron Lead-Based Paint Hazard Control Program, a HUD program, works in conjunction with the East Akron Neighborhood Development Corporation (EANDC).

From the City of Akron Health Department 2005 Annual Report (PDF):

A continuing risk to the health of Akron’s children is lead poisoning. The Childhood Lead Poisoning Prevention Program (CLPPP) continued an aggressive response to this need in 2005. Akron public and private daycares, pre-schools, and Early Head Start sites were provided with lead poisoning prevention education and blood lead testing. Families with children under six received lead cleaning kits and education on methods to reduce lead hazards in their home. The Mobile Van Clinic was out in Akron neighborhoods at health fairs, Akron Arts Expo, Safe Kids Coalition Safety Fair, Akron Zoo, Community Center events, and appeared (with decoration) in 2 parades. The Lead Safe Akron Coalition member agencies who promote the health and well being of Akron families were asked to take an active involvement in achieving the goal of lead poisoning prevention. Coalition initiatives to strengthen referral networks, build partnerships, and promote community-wide lead awareness campaigns continued to produce new opportunities for CLPPP to enhance lead poisoning prevention.

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Why Akron dropped lead litigation

I was at an Acorn meeting the other day, intended to educated Cleveland council members about lead poisoning, and I asked one of their organizers why Akron dropped their lawsuit against the lead paint industry. What he said was that because Akron is home to so much toxic industry they did not want to seem anti-polluter. I'm sure that will attract lots of Gen-Xers...

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