Judge Dismisses Bid to Throw Out $2.4B R.I. Lead Paint Cleanup Plan

January 7, 2008

A judge last Friday refused to strike down a proposal from the state that calls for three former lead paint manufacturers to pay an estimated $2.4 billion to clean up roughly a quarter-million homes in Rhode Island.

The companies two years ago lost a landmark public nuisance lawsuit brought by the state attorney general. A cleanup plan developed by the state after that decision would require the companies to pay for inspecting, cleaning and remodeling homes that contain toxic lead paint.

The companies — Sherwin-Williams Co., NL Industries, Inc. and Millennium Holdings LLC — have called the proposal legally flawed, even unconstitutional, and asked Superior Court Judge Michael Silverstein on Friday to throw out parts or all of the plan.

But Silverstein rejected the request after several hours of arguments Friday, calling the demand “premature” and saying the companies’ concerns would best be addressed by two public health experts he appointed last month to evaluate the state’s proposal and make recommendations.

“The court already has indicated that, at least on a technical basis, it was going to seek the aid of more highly qualified folks,” Silverstein said during arguments Friday. Silverstein will have final say in how the cleanup of lead paint will be carried out.

He also reminded both sides that he had no obligation to adopt the state’s proposal as-is, saying the ultimate cleanup directive he issues “may have none of the elements of the state plan in it.”

The companies are appealing the February 2006 verdict to the state Supreme Court, which has scheduled arguments in the case for May 15.

The state’s proposal envisions a cleanup that would take four years and involve 10,000 workers. The plan covers homes built before 1980 — two years after lead paint was banned for residential use in the U.S. — as well as certain seasonal homes, elementary schools and child care centers.

While the state’s report does not advocate the complete removal of lead paint from homes and buildings, it does call for the removal and replacement of home components like tainted doors, windows and cabinets.

Mickey Pohl, a lawyer for Sherwin-Williams, described the proposal as “improper and so legally defective in so many ways” in a lengthy challenge on Friday.

He argued that the plan would violate the rights of property owners by forcing them to temporarily relocate while their homes were worked on. He also said it would allow “warrantless inspections” by giving the state the right to force property owners to open their homes to work crews, if necessary.

“You can’t force people to let government agents into their homes for inspections of anything,” Pohl said.

Fidelma Fitzpatrick, a lawyer for the state, accused Pohl of grossly mischaracterizing the plan. She said homeowners would be forced to participate only as a last resort and in cases where there was a specific threat to a young child. Otherwise, she said, properties with owners reluctant to have their homes inspected and cleaned would be placed on a list and work would not begin until the property is sold or becomes vacant.

Fitzpatrick said the companies have complained about the state’s proposal without suggesting any viable alternatives.

“There have been no solutions offered by the defendant,” she said.

Rhode Island in 1999 became the first state to sue former lead paint and pigment makers. The first trial ended with a hung jury in 2002, but a jury in a second trial ruled in favor of the state by determining that the presence of lead paint constituted a public nuisance.

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