Company files suit over Exide cleanup costs

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National Lead Industries tries to disrupt system, activist says

By Alfredo Santana

Contributing Writer

VERNON — Community activists and a state official decried a counterclaim filed by National Lead Industries against the state Department of Toxic Substances Control, local governments and corporate real estate owners of properties near the former Exide Technologies plant as a way to abandon fiscal liability for lead cleanup on homes.

National Lead Industries’ lawsuit aims to make the department and third-party defendants absorb all current and future cleanup expenses.

The lawsuit, filed in U.S. Central District Court for the Central District of California Aug. 16, asks Judge Stephen V. Wilson to award National Lead Industries partial or full contributions it may incur plus attorney and expert fees, when cleanups of at least 86 properties are completed, plus the cost of more projected cleanings.

The claimed amounts are to be determined, the document said.

Owned by Vahli Inc., National Lead Industries sued Exxon Mobil Corporation, the County of Los Angeles, the City of Los Angeles, and the cities of Bell, Maywood, Huntington Park, Commerce, the Los Angeles Housing Authority, plus 50 alleged corporate home proprietors and four more industrial facility owners.

Mark Lopez, special projects coordinator and organizer with the East Yard Communities for Environmental Justice, said National Lead Industries aims to wiggle its way out of environmental responsibilities by disrupting the legal system.

“It’s disgusting for [National Lead] Industries to subject our communities to further harm,” Lopez said. “It’s ridiculous for companies responsible for lead exposure to hold our communities to blame for what they did to us.”

National Lead Industries, with corporate headquarters in Dallas, Texas, also requested the federal court holds liable the other defendant parties initially sued last December by the state with an equitable share of the $136.5 million California seeks to recoup in case the judge rules in favor of the Department of Toxic Substances Control.

In addition to National Lead Industries, California’s attorney general sued JX Nippon Mining & Metals Corporation, Gould Electronics, Kinsbury Bros. Supply, Trojan Battery Company, Ramcar Batteries, Clarios, Quemetco, International Metals EKCO LTD., and Blound Inc., for being former owners or operators of the Vernon battery plant.

Kenneth A. Ehrlich, an attorney representing National Lead Industries , said he is “not authorized by my client to comment on litigation at all,” and referred media inquiries to attorney Joel L. Herz of Tuczon, Arizona.

Herz’ office did not respond to two calls requesting comment.

In the complaint, the lawyers argued that toxic emissions from the shuttered Vernon plant are not liable for lead levels of 80 milligrams and above per soil kilogram set by the Department of Toxic Substances Control as hazardous for humans in emissions-afflicted neighborhoods found within a 1.7-mile radius from the former battery plant.

National Lead Industries, referred to as the third-party plaintiff, said state tests prove “beyond any doubt,” that cumulative lead in these vicinities is well below areas that have not been impacted by site releases.

Residential areas not impacted by lead fumes are defined as “background” level.

The 51-page document said that if lead measurements rise beyond the set criteria, properties owned by local governments and real estate companies would need cleanups “even if the former Exide property had never existed, and activities at the former Exide property had never happened.”

Attorneys for National Lead Industries argued that the existing pollution in the residential neighborhoods shows that the former Exide Technologies plant “is not even a detectable contributing source of soil lead issues in the neighborhoods subject to the [state’s] cleanup plan.”

The lawsuit said National Lead Industries opted to countersue after a brief was filed on June 21 by the Department of Toxic Substances Control that advised former plant owners and operators to defend themselves against “unfair allocations of costs.”

Thus, National Lead Industries decided to:

• Sue current and former industrial operators with facilities closer to the neighborhoods than the former Exide recycling battery site.

• Sue local governments that own properties with lead levels that “may require cleanup through no fault of [National Lead]” or other parties sued in the initial complaint.

• And sue corporate real estate owners with polluted properties that require cleanings at no fault of National Lead Industries or other parties targeted by the state.

Recent soil cleanups at homes with high lead levels near the Exide site have cost between $50,000 to $80,000 per property, with prices creeping up on lots sitting on hill slopes that lack access for machinery to enter and exit narrow and curved streets, and for engineering and architectural studies to prevent collapse of homes and slanted soil.

The counterclaim blames cumulative lead to airborne sources such as car smog emissions driven on freeway and major streets that are picked up by winds and settled on soils. Another source was use of pesticides with “lead arsenate” on lawns encouraged by a 1955 article published in the Los Angeles Times, the suit alleged.   

Furthermore, higher lead levels on soil is due to poor outdoor maintenance to homes built before 1950 with lead paint, and to hundreds of regional lead generating repair shops and industrial facilities, the complaint said.

Among the defendants, the suit targeted five units at Wyvernwood Gardens Apartments in Boyle Heights, cited Thurman Interim California LLC as the owner, and threatened to add more claims if cleanups are approved for additional plots.

The suit also alleged that 12909 Cordary LLC, a real estate business in Hawthorne is the owner of three properties in Maywood, located at 5209, 5219 and 5307 Maywood Ave.

Ted Kolby, 12909 Cordary LLC manager, said the company recently changed ownership, and does not own real estate in Maywood.

“Maybe the previous owner owned properties in Maywood, but not us,” Colby said.

State Department of Toxic Substances Control Deputy Director Grant Cope instructed defendants in the National Lead Industries counterclaim to contact their own attorneys, but did not commit resources to pay for counsel.

At a virtual hearing, Cope pledged to explore legal mechanisms to assist local governments and other defendants while they fight the litigation.

“It’s despicable what they are doing,” Cope said. “National Lead Industries not only sues properties being cleaned up, but all those that haven’t been cleaned up. That’s the level of depravity they are operating. It’s a playbook they use to harass and abuse communities targeted by polluters.”

Father John Moretta with Resurrection Catholic Church in Boyle Heights and a representative of the Lead Free Communities Coalition, said the lawsuit does not make sense.

“I do not understand it,” Moretta said. “It’s like when a corporation is responsible for a cleanup, and then leaves with a trail of costs for the community to cover. It’s hard to understand. You have to be an attorney [to follow it].”

The Department of Toxic Substances Control posted on its Exide mitigation page links to Legal Aid Foundation of Los Angeles and Neighborhood Legal Services of Los Angeles County for defendants with limited resources.

“They may or may not be able to assist,” the department’s website said.

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