Supreme Court allows $409 million lead paint fund to 10 CA counties including SF

(Examiner file photo)

The U.S. Supreme Court cleared the way today for three paint companies to pay $409 million to 10 California cities and counties to abate lead paint hazard in housing units built before 1951.

The high court refused without comment to hear two companies’ appeal of decisions by a Santa Clara County Superior Court judge and a state appeals court that found the companies liable for creating a public nuisance.

The public nuisance was promoting the use of lead-based paint while knowing that lead dust was harmful to children, Superior Court Judge James Kleinberg said in a 2014 ruling.

The high court’s denial of a hearing leaves the California court decisions in place.

Santa Clara County Counsel James Williams, whose office led the filing of the lawsuit in 2000, said, “This is a major victory for the tens of thousands of California children who have been poisoned by lead paint.

“Sherwin Williams and its co-defendants knew their product was toxic, yet still sold it to families. After almost two decades of litigation, they will finally be held responsible,” Williams said in a statement.

The other local governments that joined the lawsuit and will share in the fund are Alameda, Los Angeles, Monterey, San Mateo, Solano and Ventura counties and the cities of San Francisco, Oakland and San Diego.

The three paint makers are Sherwin-Williams Co.; NL Industries Inc., formerly known as National Lead Industries; and ConAgra Grocery Products Co., which took over the former Fuller paint company.

Exposure to lead in paint dust and chips can cause brain damage, learning disabilities, slowed growth and kidney damage in children. The federal government banned the use of lead-based paint in residences in 1978.

Kleinberg originally ordered the companies to pay $1.15 billion to remedy lead paint in houses and apartments built before 1980.

But last year, the state Court of Appeal upheld the finding of liability but narrowed it to houses built before 1951.

The appeals court said the liability should apply only to older houses because there was no evidence the companies advertised the use of lead-based paint, as opposed to paint in general, after 1951.

Sherwin-Williams and ConAgra made their final appeal of the liability finding to the U.S. Supreme Court, claiming violations of free-speech and due process rights, after the California Supreme Court declined to hear the case.

In a joint statement today, the two companies said they are disappointed in the U.S. high court’s action.

“California’s decision is an outlier and at odds with courts across the country,” they contended.

Seven other states have rejected similar public nuisance claims, the statement said.

“We will continue to fight for our constitutional rights,” the companies said.

In a ruling on Sept. 4, Superior Court Judge Thomas Kuhnle, who took over the case after Kleinberg retired, set the pre-1951 liability at $409 million.

In another decision on Sept. 19, Kuhnle rejected a settlement in which the third defendant, NL Industries, agreed to pay $80 million. Unless that decision is successfully appealed, the three companies would be equally responsible for the $409 million.

Chief Assistant Santa Clara County Counsel Greta Hansen said the next step in the case is for Kuhnle to appoint a receiver to administer the fund. The judge is scheduled to hold a hearing on the appointment on Oct. 22 and may issue a written decision at a later date, she said.

Hansen said the counties hoped for a larger fund, but said the money allocated will “allow tremendous progress” in making lead-tainted housing safer for children.

The fund will provide an average of $1,500 per housing unit to pay for lead paint abatement in an estimated 177,000 houses and apartments in the 10 jurisdictions, for a total of about $267 million, according to Kuhnle’s ruling.

The fund also includes $142 million for inspection of about 1 million units to determine those with the greatest risks.

Los Angeles County will receive the largest share of the fund, at 57 percent, or $233 million, for the combination of inspection and abatement.

San Francisco and Alameda County (including Oakland) will each receive 11 percent, or about $45 million.

Santa Clara, San Mateo and San Diego counties will each obtain 5 percent, or $20.5 million, and Monterey, Solano and Ventura counties will be given 2 percent, or $8 million, according to Kuhnle, who said the parties agreed on the percentage shares.

San Francisco City Attorney Dennis Herrera said more than two-thirds of the city’s homes were built before 1950, and of those, at least 22,000 housing units occupied by low- and moderate-income families are believed to have lead-based paint hazards.

Herrera said in a statement, “After 18 years of litigation, this is a big victory for California children.

“This has been a long time coming, but now future generations throughout California will be protected from the devastating effects of lead paint,” Herrera said.

-Julie Cheever, Bay City News

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