Paint companies must start planning lead cleanup

By John O'Brien | May 2, 2007


PROVIDENCE, R.I. - A Rhode Island Superior Court judge on Monday decided not to grant a stay of the lead-paint abatement planning process by which he'd already ordered three paint companies to abide.

But Justice Michael Silverstein also said that the actual abatement, once it is planned, will not be implemented until court order.

Sherwin-Williams, Millennium Holdings and NL Industries were all found liable for creating a public nuisance by selling lead-based paint before it was outlawed 30 years ago. The companies asked Silverstein for a stay in the removal planning process until their appeal could be heard in the state's Supreme Court.

It is the first state-backed lawsuit over the topic, and experts say it was filed as a public nuisance claim instead of a products liability to limit the amount of defenses the paint companies could use. For instance, a products liability claim would be barred by the statute of limitations, while there is no statute on public nuisance claims.

Silverstein said there is "little likelihood" the paint companies will succeed in the Supreme Court. Also, he said the preliminary abatement process would involve three stages:

-Appointment of a special master or a panel of masters;

-Outlining of the master's duties and responsibilities; and

-The planning of the abatement process.

Assistant Attorney Neil Kelly said postponing the abatement process potentially harmed children. The cleanup is expected to cost billions of dollars.

The suit, now under control of Attorney General Patrick Lynch, was introduced by South Carolina-based plaintiffs firm Motley Rice, and Ohio Attorney General Marc Dann recently followed Rhode Island's lead, filing his own nuisance case against the companies.

"(Dann's lawsuit) is the brainchild of this formula, which was systematically concocted to use public nuisance as its legal argument because there are not a lot of statutes," said Ryan Augsburger of the Ohio Manufacturers' Association.

"Motley Rice contacts the local law firm, which goes to the Attorney General and says, 'We can get you money and get headlines by going after polluting companies.' How is he going to turn that down?"

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