By Alfredo Santana
LOS ANGELES — The city and the county of Los Angeles each filed a petition for 28 more days to answer a counterclaim lodged by NL Industries asking them to absorb the full costs of lead cleanups in their properties paid for by the state Department of Toxic Substances Control and caused by releases from the former Exide Technologies plant.
Los Angeles Deputy City Attorney Robert M. Mahlowitz asked U.S. Central District Court Judge Stephen Wilson to move from Sept. 21 to Oct. 19, the deadline to file pleadings in response to the NL Industries countersuit.
NL Industries, known as the third-party complainant, served the city of Los Angeles a summons on Aug. 31 that notified the city the intent to avert costs associated with decontamination of lead particles in soil and structures in schools and parks.
The company also sued 50 real estate property owners, Exxon Mobil and four proprietors of industrial lots for being the alleged source of airborne lead pollution that caused environmental harm to communities found within 1.7 miles from the former battery plant in Vernon.
The case stems from the initial lawsuit filed in December 2020 by then California Attorney General Xavier Becerra on behalf of the state Department of Toxic Substances Control, against 10 former owners and operators of the plant to recoup $136.5 million spent on lead cleanups of homes and properties near the facility.
Becerra and a team of six state attorneys named defendant NL Industries as a former plant operator and owner. The suit alleges NL Industries, a New Jersey corporation based in Dallas, Texas, owned the now defunct battery site from 1974 to 1979 and spewed tons of hazardous metals into the atmosphere of the neighborhood before it was sold to Gould Inc.
“Based on the court docket associated with this matter, the case involves multiple parties, claims and counterclaims, with complex legal and factual issues arising from alleged environmental contamination and cost recovery claims” under the Comprehensive Environmental Response Compensation and Liability Act, Mahlowitz said in the filing.
“Considering the complex factual and legal issues in this matter, the city will need additional time to adequately assess the claims for relief and supporting allegations and to properly respond to the third-party complaint,” read the request.
In a four-page declaration supporting the petition, Mahlowitz said NL Industries alleged the city is liable for environmental contamination caused by an incinerator that operated from the 1920s to the 1940s.
Given that the allegation concerns historical facts “it will take time for the city to investigate the contention,” Mahlowitz wrote.
In addition, Malhowitz said the city requested outside legal support from nine firms with environmental law attorneys interested in representing the municipality checking issues of conflict and for preparing city proposals.
“The city has not previously sought an extension of its time to respond to the third-party complaint or any other matter in this action,” Malhowitz added.
Ivor Pine, community engagement and outreach deputy director with the office of City Attorney Mike Feuer, said the court granted “the request for 28 extra days to answer NL’s complaint.”
On whether the city would hire lawyers with environmental law expertise, Pine said the city had no comment.
The petition for extra time does not cause delays on deadlines because a scheduling conference has not been set and no scheduling order had been issued, the document read.
“Trial has not been set,” Mahlowitz wrote.
On the Los Angeles County front, attorney Wendy Wang filed a similar petition to move the response deadline from Sept. 21 to Oct. 19, and a three-page document in support of the motion.
The county also received the summons on Aug. 31.
Wang will also represent the Los Angeles County Development Authority, named by NL Industries as real estate owner with properties that had been cleaned or are scheduled to be cleaned.
“My law firm was recently retained by the county and LACDA to represent them in this matter, and has only received a copy of the third-party complaint,” Wang wrote.
The declaration said that Wang and her firm “have been diligently” attempting to review 134 separate entries logged in the case’s docket.
In a related matter, NL Industries dropped its legal claim on Sept. 13 against third-party defendant Champery Rental REO LLC. The seven-page notice did not explain why the allegations were dismissed.
The dismissal is without prejudice, meaning that NL Industries can restart the same case against the same party, as opposed to with prejudice, when a civil case is over and cannot be filed again.
A property likely targeted by NL Industries against the city is Lorena Street Elementary. Located at 1015 Lorena St., in East Los Angeles, the campus’ soil was cleaned from lead and other metals, said school principal Patricia Gonzalez.
“It was cleaned prior to me coming here,” said Gonzalez, who started her job three years ago.