The paint companies found liable for creating a public nuisance dispute the state's estimate that nearly 250,00 dwellings need lead-paint abatement, at a cost that could reach $3.74 billion.

01:00 AM EDT on Wednesday, April 5, 2006

BY PETER B. LORD
Journal Environment Writer

PROVIDENCE -- State lawyers are asking a Superior Court judge to appoint a public health expert to plan and oversee a lead-paint cleanup program in Rhode Island that they say could cost between $1.37 billion and $3.74 billion.

The proposal is part of the final step in the state's public nuisance lawsuit against Sherwin-Williams, NL Industries and Millennium Holdings.

Because a jury found in February that the three companies created a public nuisance by selling lead paints in Rhode Island, Judge Michael A. Silverstein now must decide how they will go about cleaning up the paints and eliminating the nuisance.

Both sides are predicting more court appeals, so the cleanup, if it is upheld in the courts, will probably not happen anytime soon.

What's more, this is the first successful lawsuit holding the companies responsible for selling paints that have poisoned thousands of children. So every step from now on will be on new ground.

Bonnie J. Campbell, the former attorney general of Iowa and a spokeswoman for the paint companies, issued a statement yesterday criticizing the state proposal.

"There is no way to know how many homes in Rhode Island are painted with lead-based paint," she said. "Even if that statistic becomes known, there is no way to know how many of those homes might possibly contain lead paint hazards due to property owners not taking care of their properties. Thus the exaggerated statistics contained in the state's brief are grounded in guesses, not reality."

She added that Attorney General Patrick C. Lynch is advocating a program completely contrary to the laws and policies of Rhode Island and federal agencies. And, she said, Judge Silverstein "still must decide significant legal issues" before any abatement begins.

Lynch's spokesman, Michael Healey, said the defendants should step forward and start the cleanup. "It is time for the defendants' lawyers to step aside, stop obstructing the process of holding the defendants responsible, and start the abatement that the jury ordered according to solid public health principles. And that abatement will likely cost in the billons of dollars."

The "position paper" filed in Superior Court by state lawyers focuses on appointment of a special master with specialized knowledge in the public health issues of lead abatement and lead-poisoning prevention.

The special master would help Judge Silverstein determine how the statewide abatement program would be carried out by soliciting "professional opinions on the manner, method, timing, cost and sequencing of the abatement of this nuisance."

The range of costs that would be passed on to the companies is based on 249,346 dwellings needing abatement, with individual costs ranging from $5,500 to $15,000 each.

The lawyers also argued that abatement would be a "multi-step remedy" that includes education, prevention, identification, hazard reduction and monitoring.

The state said it fashioned its abatement plans with information obtained through 120 depositions of 67 state witnesses. Six of those witnesses testified at trial.

The paint companies insist the state is going beyond state and federal policies that call for making homes lead-safe, rather than lead-free. But the state lawyers say their witnesses uniformly argued that the safest and most prudent policy is to remove all lead from homes.

"The single question that remains is not legal, but practical -- how should these defendants undertake abatement of the public nuisance in Rhode Island," the lawyers argued. "The case is ripe for a swift resolution of this issue by appointment of a qualified public health official who has substantial experience in the field to make a practical recommendation to this court."

The paint companies have until April 21 to submit a formal response.

plord@projo.com / (401) 277-8036