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Counter-strike: Granite as a base for suit

Granite countertops, a popular and stylish amenity in kitchens across the country, are coming under fire after a flurry of complaints to the Environmental Protection Agency claiming they can decay over time and emit radon, a radioactive gas that can cause lung cancer.

Although there has been no confirmed litigation thus far, plaintiffs’ attorneys have already begun advertising on the Internet for potential clients.

Radon exposure is the second leading cause of cancer after smoking.

Ernest P. Chiodo, an attorney and physician from Clinton Township, Mich., said he expects a wide range of lawsuits in the coming months if the complaints continue.

“Granite is an igneous stone,” explained Chiodo, who was formerly the medical director for Detroit. “Igneous stones all tend to be contaminated and contain radioactive material, including uranium. Some granite will be highly radioactive, others not so much. But all have some degree of radiation.”

The EPA has recommended that homeowners take action if radioactive gas levels exceed 4 picocuries per liter. Some countertops contain as much as 5-6 picocuries, more of a cancer risk than smoking half a pack of cigarettes a day, according to the EPA.

Industry groups claim the increased demand for granite countertops has led to potentially lower standards for materials, which could be hazardous.

Home health inspectors say pregnant women and small children are the most at risk, as well as anyone who spends a good deal of time in the kitchen.

Low-dose theory

Granite manufacturers who don’t warn of possible radioactive material embedded in their products could be sued, experts said.

“Even if there is little radiation, there is nothing in the contract that says there could be,” said Chiodo.

Property damage could be another area of litigation. Even if the radiation level is low, nervous homeowners may feel compelled to have a countertop removed for safety’s sake.

“There are going to be a lot of people who get their countertop tested,” said Chiodo. “And when they see that there’s some radiation in there, they are going to want it to be ripped out immediately. That costs money.”

Ryan L. Nilsen, a toxic tort defense attorney at Bowman and Brooke LLP in Minneapolis, said he doesn’t expect granite countertop suits can be successful based on the science of radon exposure.

He expects the argument will be something similar to that used in mold or benzene litigation, where plaintiffs’ attorneys relied on a low-dose theory to argue that being exposed to any radioactive material, even very little, can directly correlate with a disease.

However, “even the worst granite countertops I’ve seen add only a fraction to a person’s background exposure to radon. It’s insignificant,” Nilsen said. “I have a feeling if and when these claims get litigated, plaintiffs’ lawyers will not find very much scientific support.”

Smoke and no fire?

That small dose argument has been the crux of a proactive move by several granite advocacy groups hoping to stave off litigation before it begins.

In July, the EPA released a statement that the complaints of radon levels in granite countertops were based on “junk science” and that the emissions were too low to cause harm.

“While natural minerals such as granite may occasionally emit radon gas, the levels of radon attributable to such sources are not typically high,” the EPA statement said. “EPA believes the principal source of radon in homes is soil gas that is drawn indoors through a natural suction process.”

A spokesperson for the Ohio-based Marble Institute of America trade group, which advocates on behalf of granite fabricators, agreed with the EPA’s assessment, claiming that potential litigation would be frivolous at best, as radon emissions from granite countertops don’t even come close to posing a health risk.

The spokesperson also said that:

  • The highest recorded emission rates were hundreds to thousands of times lower than EPA safety guidelines, and
  • To meet the EPA guidelines for action, 4 picocuries per liter, emissions from a typical granite countertop would have to be approximately 2,600 becquerels, a figure that equals 2,000 times the highest emission rates reported in scientific journals.

    The institute also claims the tests that show high readings are inaccurate because they test the stone itself and not its surroundings. The EPA tests that show low readings have tested people directly, in terms of how much radon gas they breathe in and for how long.

    But Al Gerhardt, the founder of the Solid Surface Alliance, a watchdog group directed at granite countertop manufacturers, said the studies ignore the few countertops that could prove exceptionally dangerous.

    The institute “is fighting tooth and nail for this story to not come out, but look at the numbers. Some of these countertops have as many as 8 [picocuries per liter]. They’re just trying to avoid being sued,” he said.

    Justin Rubello writes for Lawyers USA, a sister publication of The Daily Record. Contact him at justin.rebello@lawyersusaonline.com.