The March, 2008, edition of Cleaning & Restoration magazine, featured a section entitled, "The Leader’s Circle," in which industry experts were invited to write about liability in disaster recovery restoration and professions.

In May of this year, Senator Obama introduced his Lead Free Toys Act of 2007 (S. 1306), to tackle the issue of lead-contaminated toys reaching the U.S. marketplace. In light of the growing incidence of product recalls by the U.S. Consumer Product Safety Commission (CPSC), Senator Obama called on the Senate Commerce, Science, and Transportation Committee Chairman Daniel Inouye and Vice Chairman Ted Stevens to move his Act forward.

Governor Lynch of New Hampshire recently signed a law, the aim of which is to reduce the incidence of lead paint poisoning in New Hampshire's children.

A Milwaukee jury recently ruled in favor of NL Industries, Inc., finding that the company was not negligent for creating a public nuisance for allegedly producing lead-based paint after the company knew of the dangers it posed, nor for allegedly conspiring with others to create the nuisance.

The city of Milwaukee is considering an appeal.

In Re: Lead Paint Litigation (A-73-05), the New Jersey Supreme Court ruled 4-2 for the dismissal of the remaining lawsuit against former lead-paint manufacturers. The Supreme Court held that the plaintiffs were unable to state a claim on which relief could be granted, "consistent with the well-recognized parameters of the common-law tort of public nuisance. To find otherwise would be directly contrary to legislative pronouncements governing both lead paint abatement programs and products liability claims."

In January 2006, the Environmental Protection Agency proposed work practice requirements, training and certification for contractors performing renovations in most pre-1978 housing.

The EPA has now issued a supplemental proposal which would extend the existing proposal requirements to renovations to child-occupied facilities. Under the latest proposal contractors and dust sampling technicians, who undertake renovation work in child occupied facilities, such as schools, pre-schools, day care facilities etc. would first be required to undergo mandatory training and certification in lead-safe renovating and sampling practices.

Given, the success of Rhode Island's public nuisance claim against NL Industries Inc., Sherwin Williams Company and Millennium Holdings LLC, Milwaukee has now become the second state in the United States to bring such an action to trial in City of Milwaukee v. NL Industries.

The City of Milwaukee alleges that NL Industries created a public nuisance, conspired with others to create the nuisance, and further, that NL knew of the dangers associated with lead-based pigments since the 1930s. The defense argues this was public knowledge and, for twenty years after lead pigments were banned in Baltimore, the federal government and the City of Milwaukee mandated its use by architects for its projects. The defense asserts the real source of exposure is lead in soil, and ill maintanined properties.

In a recent study on the effect of lead exposure on children's behavior, Chen et al attempt to differentiate the direct effect lead has on behavior and its indirect effect through the lowering of IQ, and examines the relationship between peak and concurrent blood lead concentrations.

In this interview, David M. Governo explains what’s behind the growth in construction defect claims, and how builders put themselves at unnecessary risk for these claims. He also explains how an inexpensive liability audit can show builders where they’re creating risk, and what preventative measures they can take to reduce that risk. The audit is a simple piece of insurance that can ultimately save a builder’s business. The interview ends with a Q&A with listeners.

The Rhode Island 2005 ruling created "public nuisance" liability and ordered former lead-paint and pigment manufacturers to pay clean up costs for the state of Rhode Island. Despite an appeal to the State Supreme Court, contesting the legal basis for this verdict, Ohio State Attorney General Dann is similarly seeking to recover clean-up costs for contaminated buildings, for creating a public health hazard and causing the state and its residents to "incur substantial costs".

David M. Governo will be presenting Abatement and the Financial Implications of Lead Litigation at this year's Mealey's Lead Litigation Conference. This two-day conference features emerging issues, trends and a commentary on recent lead litigation case law. The conference, Discover Winning Tactics to Strengthen your Cases in Emerging Areas of Lead Litigation, will take place April 19-20, 2007, at the Intercontinental Hotel, Chicago.

Superior Court Judge Michael Silverstein recently rejected a defense request for a new trial in the landmark Rhode Island suit against former lead paint manufacturers, stating the state's evidence supports the jury's verdict. Judge Silverstein granted the state's request for the appointment of a special master to assist in developing a plan to rid lead paint from Rhode Island homes, schools, and other public buildings. These clean up costs are estimated to range from $1 to $3 billion.

On February 22, 2006, a jury found Sherwin Williams Co., NL Industries Inc., and Millennium Holdings LLC liable for creating a "public nuisance" and were ordered to clean up the contaminated lead-paint in the state of Rhode Island.

The founders and sponsors of Litigation Forum have teamed up to organize and present a unique educational program: The 3rd Annual Environmental Toxic Torts ExecuSummit 2007. The conference is designed to present up-to-date information on emerging issues, strategic intelligence, case studies, trends and developments in environmental claims and toxic torts. Our program is specifically designed to help Insurance Claims Professionals understand and resolve the complex claims they face in these areas.

On December 18, 2006, tenants in the New York case, Edwin Jimenez v. Romo Associates, et al., amended their lead poisoning lawsuit against their landlords to add a specific paint company, NL Industries, as a defendant. Media reports indicate that the plaintiffs analyzed the paint in the subject property using spectroscopy, a scientific technology that analyzes the chemical composition of paint chips, and have determined that the paint from the plaintiffs’ apartment contained a pigment that was manufactured by NL Industries.

In February 2006, Rhode Island successfully sued three former lead-paint manufacturers for creating a public nuisance. A claim for punitive damages was denied, however, the defendants face an estimated $4 billion in costs to clean up or cover lead-based paint. Following this decision, a number of cities including Chicago, Milwaukee, Los Angeles and Cincinnati have initiated lawsuits.

Georgia's new asbestos litigation reform law Ga. Code Ann. §51-14-1 et seq., which according to the High Court requires plaintiffs with a claim pending on April 12th, 2005 to show evidence that asbestos was "a substantial contributing factor to their medical condition" or face dismissal, was held by the Georgia Supreme Court to be unconstitutional in that plaintiffs had to establish a new element to prove their claim.

Existing methods of paint removal can lead to large amounts of toxic lead dust becoming airborne. A new paint removal method reduces this risk by using high-intensity flashes of light to burn layers of paint. The residue paint is then immediately vacuumed and sent through a filtering system.

The Georgia Supreme Court has unanimously struck down the retroactive application of a Georgia Bill which required Georgia plaintiffs to establish that asbestos was the "substantial contributing factor" to their illness. According to Justice Carol Hunstien, this new bill added "a new element to their claim, one that did not exist when the original cause of action accrued . . . the law "cannot retroactively be applied to their claims."

A group of Southern lawyers are accused of failing to disclose fee arrangements that left plaintiffs from Northern states with substantially less settlement money than their Southern counterparts to a class action.

Approximately 2,600 former clients are said to be cheated out of their fair share of $400 million in asbestos personal injury settlements in the Mississippi state courts. The defense lawyers argue that geographic origin is an appropriate factor in deciding settlement values since jury verdicts in northern states are traditionally lower, and that southern jury verdicts for northern plaintiffs are typically lower than for southerners in their home state.

The American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) has been awarded a grant of $510,000 from the U.S. Environmental Protection Agency (EPA) to provide guidance for the designing and building of greener buildings with improved indoor air quality.

The U.S. Food and Drug Administration (FDA) have granted the Lead Care II blood lead test system "waived" status under the Clinical Laboratory Improvement Amendment (CLIA). Simply put, this allows for 115,000 physician’s offices, community health centers, mobile health units, health fairs, work sites, home visits and schools nationwide, to test for lead poisoning using the Lead Care II portable blood lead analyzer without special training or advanced certification. It is hoped this will encourage a wider community based testing program with immediate ‘face to face’ results and more immediate treatment as required.

Since almost 12 million children under the age of 5 spend 40 hours per week in child care, all non-home-based child care facilities, to include Head Start and kindergarten programs, must be certified lead-safe in five years, under proposed legislation.

Ensure that the home inspector is properly qualified, ask about their relevant training, number of years of home inspection experience, their continuing education and most importantly, ask to see their inspector’s license or ASHI or other reputable home inspectors’ organization ID card.

Americas Watchdog, an advocacy group focused on corporate responsibility & fair play, reports on the practice of hiring undocumented and often untrained, unqualified and unlicensed construction workers to build the nations residential housing. A two year investigation reveals the possibility of massive tax fraud, illegal working conditions and defective new home construction and has led M. Thomas Martin, founder of Americas Watchdog to say, "our nation’s homebuilders now face what could become the largest tax fraud cases and/or Fair Labor Standards Act lawsuits in U.S. History". To view the full story please click http://www.prweb.com/releases/2006/9/prweb434863.htm.

The U.S. Geological Survey (USGS) has published a report containing a database and regional map consisting of 36 locations of reported natural asbestos and fibrous amphibole occurrences in the Central United States. Although the report does not identify new occurrences of asbestos, it differs from previous reports by differentiating between the different types of asbestos. Since potential exposure to these natural asbestos deposits may occur where the surrounding area is disturbed, either by natural erosion or human activity, it has now become the focus of attention and concern of the public health community. The report does not, however, distinguish between those which may or may not be harmful to human health. The report entitled "Reported Historic Asbestos Prospects and Natural Asbestos Occurrences in the Central United States" USGS Open File Report 2006-1211 and may be viewed at http://pubs.usgs.gov/of/2006/1211/. The 2005 Eastern U.S. report may be viewed at http://pubs.usgs.gov/of/2005/1189/.

The EPA issued a draft guidance which aims to reduce auto mechanic exposure to asbestos during brake and clutch repair work. Although many new vehicles no longer use brake or clutches which contain asbestos, exposure may still occur when older vehicles undergo repair.

The draft guidance, Current Best Practices for Preventing Asbestos Exposure Among Brake and Clutch Repair Workers, when finalized, will replace the existing guidance, Guidance for Preventing Asbestos Disease Among Auto Mechanics. The draft guidance also provides a summary of OSHA’s existing regulatory requirements for professional automotive mechanics. To access this information please view

http://www.epa.gov/asbestos/pubs/goldbooktext.html

http://www.osha.gov/dts/shib/shib072606.html

NL Industries, Inc. wins a federal jury defense verdict in a lead poisoning suit brought by five Mississippi families. The families alleged their 13 children were exposed to lead paint, and as a result of which became sick and exhibited cognitive deficits. NL Industries successfully argued the genetics defense, that these children’s mental problems were inherited rather than due to lead paint exposure.

Christopher J. Chang, and his research team, has developed a new laboratory test.  The LeadFluor-1 (FL1) provides critical information on the amount of biologically available lead present in living cells over time, which causes lead poisoning. FL1 differs from previous tests, as it responds to visible light and monitors lead level changes in living cells. It can detect an increase or decrease in lead levels.  FL1 fluoresces in response to visible light and turns on in the presence of lead with intensities that reflect the amount of lead present in the living cells.

A study, undertaken as part of the HUD Lead-Based Paint Hazard Control Grant Program, examined 541 dwelling units comprising of housing from 12 state and local governments. Professor Paul Menrath of the University of Cincinnati led the research team, their objective was to identify whether exterior dust and soil lead levels are useful in identifying the effectiveness of lead hazard control measures as measured against post-intervention interior dust lead levels on floors, windowsills, and window troughs. Secondly, to identify the relationship between the exterior and interior lead dust levels and housing variables.

Practical tips for ensuring indoor air quality in the home, as outlined in the ASHRAE Standard 62. 2-2003, Ventilation and Acceptable Indoor Air Quality in Low-Rise Residential Buildings, and 2001 ASHRAE Handbook . . . include ventilation of bathrooms, kitchens, laundry and utility rooms directly outdoors using energy efficient fans.

"Mention mold right now, and the Gulf Coast comes to mind first, but the contamination on real estate hit by hurricanes was generally less significant overall than mold growth caused by inferior building materials or poor construction," said Carl Smith, CEO/Executive Director of GEI, a non-profit organization working with lenders and developers on mold risk mitigation techniques.

Science News Magazine reports on the EPA’s recent studies which establish that near surface deposits of naturally occurring asbestos occur in at least 20 states. These natural deposits could make substantial asbestos fibers airborne by such activities as playing ball, or performing other outdoor pursuits such as gardening in the vicinity of a deposit.

Recent record rainfall prompts Massachusetts health officials to warn that July and August are expected to be among the heaviest mold months in recent history, and urge homeowners to take action.

Houseplants can be just like a breath of fresh air. They are shown to improve indoor air quality by breaking apart the chemicals most commonly released by plastics, paints, synthetic carpets and cleaning supplies.

Cleaning & Restoration Magazine has been awarded an Apex Award of Excellence for Magazine and Journal Writing for their March 2005 publication. View David M. Governo’s significant contribution to this award winning issue

The R.I. state attorney general. Patrick Lynch, who handled a landmark lawsuit against former lead-paint makers is alleged to have accepted campaign contributions from the chief negotiator of a company that Rhode Island allowed to drop out of the case.

The Rhode Island Superior Court has already declared the Lead Hazard Mitigation Act of 2005 to be unconstitutional, now the Supreme Court will hear arguments on whether the state's lead paint law is constitutional.

In June of 2006, the Centers for Disease Control (CDC) issued a statement entitled "Mold Prevention Strategies and Possible Health Effects in the Aftermath of Hurricanes and Major Floods." The report discusses how to limit mold exposure and how to identify and prevent mold related health effects.

In a motion filed before U.S. District Judge James T. Giles, forty-seven companies have joined forces to petition the dismissal of tens of thousands of pending asbestos cases. The defense lawyers assert the majority are based on flawed or fraudulent medical diagnoses.

In October of 2005, the Louisiana Department of Health and Hospitals invited the CDC to assist in documenting the extent of potential exposures to mold and other contaminants associated with water damaged homes after hurricanes Katrina and Rita. The report summarizes the results of the investigation and concludes that residents and remediation work did not consistently use appropriate respiratory protection. The full report can be found at http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5502a6.htm

David M. Governo warns of the potential trap for the unwary cleaning and restoration contractor in the clean up and renovation of asbestos-containing products and materials. "A contractor's failure to recognize the problems associated with dealing with asbestos can result in millions of dollars in fines and even imprisonment".

"Asbestos Liability in the Cleaning and Restoration Industry" identifies some of the products in which asbestos might be found, discusses the more prominent federal and some state laws that address asbestos renovation or demolition settings, and provides some practical advice on how to ensure that your company is in compliance with laws governing asbestos.

"While the opportunity to develop a profitable and successful company exists, one uninsured claim is all it takes to put an otherwise "healthy" company into bankruptcy". So counsels David M. Governo and David Rhein, in "Avoiding Legal Liability in Disaster Remediation", an article published in Restoration and Remediation Magazine, Spring 2007 edition.

David M. Governo published in Indoor Environment Connections warns of the perils of over-promising and under-delivering, as highlighted by the recent settlements concerning the marketing of air purifiers from Brookstone and Sharper Image.

David Governo states, "these settlements serve as a warning to other manufacturers of air purifiers that may be at risk for litigation due to claims they make. False or deceptive advertising can cost a company millions of dollars, it is imperative for companies to analyze their potential for liability and to use careful, precise and accurate language in advertising."

David Governo quoted in "Genuine Mold", an article in which Charles Wardell outlines the route to successful mold remediation. This article appears in the May/June 2006 edition of Coastal Contractor . . .

It is impossible to know every environmental law and regulation that impacts the cleaning and restoration industry, since it is very diverse and the rules change so quickly. Yet, to avoid liability and penalties, it is crucial for contractors to comply with the current regulations associated with a particular project. Which essential cleaning and restoration issues require governance?