Paint Makers Challenge $2.4 Billion R.I. Lead Cleanup Plan

Three former lead paint manufacturers asked a judge this week to strike down a proposed Rhode Island plan calling for the companies to pay about $2.4 billion to clean up thousands of properties contaminated with the toxic substance.

The state last year won a landmark lawsuit against the companies –Sherwin-Williams Co., NL Industries, Inc. and Millennium Holdings LLC– who were found liable for creating a public nuisance.

Rhode Island wants them to pay for the cleanup of roughly 240,000 homes that it believes contain lead paint. But the companies, in new court papers, said the plan has major legal problems and urged Superior Court Judge Michael Silverstein to either strike it down entirely or at least throw out certain parts.

They argue, for instance, that the state should not be allowed to seek the cleanup of individual contaminated properties when it presented no evidence at trial about specific homes with lead paint. They also say Attorney General Patrick Lynch should not be allowed to seek money from the companies when the jury awarded no monetary damages during the trial.

“The AG has said one thing throughout the trial, and now that the trial is over, is trying to switch the whole ballgame to something very different,” said Charles Moellenberg Jr., a lawyer for Sherwin-Williams.

The companies are appealing the February 2006 verdict to the state Supreme Court.

Jack McConnell, a lawyer for the state, said the challenges raised by the defendants shouldn’t prevent the plan from going forward. He also said the companies were rehashing old arguments that had already been dealt with by Silverstein, who is presiding over the case.

“Any problem that’s raised by the defendants can easily be addressed by the court,” he added.

The state says its cleanup proposal would require about 10,000 workers, take four years and involve the inspection and cleanup of pre-1980 homes as well as certainseasonal homes, elementary schools and child care centers.

The report does not recommend the complete removal of lead paint from homes and buildings, but it does call for tainted doors, windows and cabinets to be removed and replaced and for other surfaces coated in lead paint to be enclosed. Some of the work would force families to temporarily leave their homes.

The companies, in their new court papers, say the state’s plan would violate the privacy rights of homeowners by subjecting their properties to “warrantless inspections.”

“While paying lip service to the privacy rights of the citizens he serves, the AG has proposed a program of unprecedented magnitude to be forced upon those who would have no say in whether or how lead paint in their properties should be addressed,” lawyers for the companies wrote.

But McConnell said the state assumed most owners of contaminated properties would want their homes cleaned. He also said the state’s focus on the collective problems caused by lead paint did not preclude it from seeking the cleanup of individual properties.

Lead paint was banned in the United States for use in homes in 1978 but many homes in Rhode Island were built before then. Studies have shown children can suffer learning disabilities, stomach problems, brain damage and even death by ingesting flaking paint chips or dust.

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 lead paint constituted a public nuisance in Rhode Island.