All or nothing at all: Sides debating benefits of Lynch's lead abatement plan

By John O'Brien | Dec 18, 2007



Editor's note: This is the first of three stories that will explore the current state of lead paint litigation and are based on Legal Newsline's discussion with paint industry spokesperson Bonnie Campbell and Sherwin-Williams attorney Chuck Moellenberg.

Could it be that the best way to avoid the health risks associated with lead paint is to preserve its presence rather than eliminate it?

Bonnie Campbell, spokesperson for the paint companies that formerly manufactured lead paint and have been sued by states and municipalities, says Rhode Island Attorney General Patrick Lynch's $2.4 billion abatement plan is not only legally wrong, but unsafe.

"Actually, removing the paint can be dangerous," said Campbell, the former Attorney General of Iowa. "If you disturb intact lead paint and create dust...

"Properly maintained lead paint generally proposes no hazard to anyone. The proper way to handle old paint in buildings is to keep it maintained, and that's the job of the landlords."

Chuck Moellenberg, a Pittsburgh attorney representing Sherwin-Williams in the lawsuit brought by the State of Rhode Island against it and other companies, likened the situation to asbestos. The better maintained the product is, the safer it is.

Only when dust is created and breathed in or children ingest flakes of paint that have fallen do health problems occur.

It's just one of the industry's problems with Lynch's abatement plan that's creation was ordered by state Superior Court Judge Michael Silverstein. In Silverstein's courtroom in 2006, Sherwin-Williams, NL Industries and Millennium Holdings were found by a jury to have created a public nuisance when they manufactured lead paint.

Of course, the companies say they haven't made it since at least 1978, when the federal government banned it. A claim of public nuisance carries no statute of limitations.

While other suits have failed around the country, the one brought by Rhode Island has been the most successful for plaintiffs firm Motley Rice, which was hired on a contingency fee to bring the suit.

And it's Lynch's abatement plan that is causing the most current dispute. It would rid 240,000 housing units of lead paint.

"Our plan offers a detailed, comprehensive, and permanent solution to the generations-old, but still urgent, problem of lead-poisoning in our state," Lynch said. "It achieves what has never before been achieved, either here in Rhode Island or nationally -- a long-term solution that will, ultimately, bring about true primary prevention."

The plan puts homes on a "worst first" basis and, Lynch said, respects the privacy of the homeowners. The paint industry argues that 10,000 new workers would be hired to carry out the plan, and mistakes would be sure to follow.

So the two sides find themselves at a huge split -- undertake a $2.4 billion procedure, or do nothing at all?

In the companies' response to Lynch's plan, they claim that lead poisoning is on a huge decline, anyway. Of the homes built before 1980 that may be coated with lead paint, 99.8 percent of them did not have a child with elevated lead levels in his or her blood last year.

Existing regulations, Campbell said, are working.

"We try very hard to make the point that there are other jurisdictions that do a lot of public awareness with laws vigorously enforced against property owners to keep their property in good repair," Campbell said. "As they do that, we can watch the dramatic drops in the number of children with elevated lead-blood levels.

"By (the State's) own definition, we had eliminated childhood lead poisoning. The Surgeon General, a few years ago, called this a major public health success story."

But Lynch still says the State has a lead-poisoning problem, and his plan will offer a permanent solution. A Jan. 4 hearing on his plan is scheduled, and the companies' appeal to the state Supreme Court should be heard in the Spring."

According to the statistics, instances of lead poisoning are declining.

In the 2007 report, "Childhood Lead Poisoning in Rhode Island: The Numbers," it is shown that 500 cases of lead poisoning were reported in 2006, down from 621 in 2005 and 1,167 in 2004.

The percentage of children under the age of 6 who were poisoned by lead fell by nearly 11 points in the past 10 years to 2.4 percent.

"If you look at it objectively and ask how we address elevated blood-lead issues of children, literally the last solution anyone would provide is a bunch of lawsuits," Campbell said.

"The answer is public education about lead paint and what to do if you find yourself with it, and laws that require maintenance."

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