Cost Of Lead Paint Removal From Alameda County Homes Shifts

SAN FRANCISCO, CA — The California Supreme Court has left in place a ruling requiring three paint companies to pay several hundred million dollars for removing lead-based paint from the interiors of homes built before 1951 in 10 large cities and counties.

The court in San Francisco on Wednesday declined to take up the paint companies' appeal of a Nov. 15 decision by the state Court of Appeal in San Jose in an 18-year-old lawsuit initiated by Santa Clara County.

In that decision, the appeals court upheld a 2014 finding by Santa Clara County Superior Court Judge James Kleinberg that the companies created a public nuisance by promoting the use of lead-based paint while knowing that lead dust was harmful to children.

But the appeals court narrowed the companies' liability from houses built before 1980 to houses built before 1951.

The decision applies to Santa Clara County, which filed the lawsuit in 2000, and nine other cities and counties that joined the case.

The other jurisdictions are Alameda, Los Angeles, Monterey, San Mateo, Solano and Ventura counties; the city and county of San Francisco; and the cities of Oakland and San Diego.

The three paint manufacturers are Sherwin-Williams Co.; NL Industries Inc., formerly known as National Lead Industries; and ConAgra Grocery Products Co., which took over the former Fuller paint company.

The California Supreme Court's denial of review means the Court of Appeal decision is the final state court ruling on the case.

But NL Industries attorney Andre Pauka said the companies plan to appeal to the U.S. Supreme Court on constitutional First Amendment free-speech grounds.

Although the finding that lead-based paint is a public nuisance was made under California law, Pauka said there is a federal constitutional issue because the companies claim they are unfairly made liable for exercising free speech in their advertising.

The pre-1951 ads were "truthful and legal," the attorney said."The liability finding is punishing us for truthful speech," he said.

If the U.S. Supreme Court declines to hear the planned appeal, the case will go back to Santa Clara County Superior Court for a determination of how much the abatement will cost for the pre-1951 houses in the 10 cities and counties.

Kleinberg had concluded the companies should pay $1.15 billion for removing lead-based paint from an estimated 3.5 million homes built before 1980.

Pauka estimated that when only pre-1951 houses are considered, the cost would be approximately between $400 and $410 million for about 1.16 million homes.

Santa Clara County Counsel James Williams said in a statement, "After 18 years of litigation, the state legal issues have reached a final conclusion -- the California courts at all levels have determined that the lead paint manufacturers are legally responsible for cleaning up the toxic lead paint they knowingly marketed in our communities.

"It is time now for the lead paint manufacturers to fund the cleanup, without further delay. Each day that passes more children across our state are exposed to potential poisoning," Williams said.

The federal government banned lead-based paint for residential use in 1978, but children in older homes remain at risk for illnesses cause by exposure to lead in deteriorated paint chips and dust.

Lead exposure can cause brain damage, learning disabilities, lowered IQ scores, slowed growth and kidney damage in children. The U.S. Centers for Disease Control concluded in 2012 that "no safe blood lead level
in children has been identified."

San Francisco City Attorney Dennis Herrera said that in 2009, a total of 10,875 children in the 10 cities and counties were found to have suffered lead poisoning.

"This is a victory for California cities and counties. It settles all of the state law issues in the case," Herrera said.

The three paint companies are also sponsoring a $2 billion bond initiative for the November ballot that would shift the cost of removing the paint to taxpayers.

Signatures are still being gathered for the initiative, which would use the $2 billion bond to pay for removal of mold, asbestos and lead-based paint from California homes.

The measure would also declare that lead paint is not a public nuisance and the theory that it is a public nuisance could not be used in any court case pending as of Nov. 1, 2017, which would include the Santa Clara
County case.

The sponsors sought to entitle the measure "The Healthy Homes and Schools Act of 2018," but last month California Attorney General Xavier Becerra changed the description to "Eliminates certain liability for
lead-paint manufacturers."

— Bay City News; Image via Shutterstock