Paint companies consider suing property owners for taking money from a lead abatement fund | KALW

Paint companies consider suing property owners for taking money from a lead abatement fund

Mar 5, 2019

Five Bay Area counties have won millions of dollars in a lead paint lawsuit, but now they say, paint companies are doing everything they can to prevent them from getting it.

Ten California counties and cities are supposed to receive hundreds of millions of dollars from paint companies to address persistent lead paint hazards, but the counties are worried that the paint companies are going to throw up roadblocks to prevent them from ever being able to use this money.

An almost two-decades-long court battle

Back in 2000, Santa Clara County sued three big paint manufacturers for knowingly marketing lead paint back prior to it being banned. Nine other jurisdictions across California joined in the lawsuit, including four counties  and two cities here in the Bay Area.

The case went all the way up to the U.S. Supreme Court, but finally last year, a decision was reached. The judge ruled in favor of the plaintiffs, saying that the paint companies were in fact responsible for causing this public nuisance of lead hazards. The companies owe about $409 million dollars to all ten cities and counties involved in the lawsuit. How much each jurisdiction gets depends on the percentage of old homes that were built before the companies stopped marketing lead paint.

The lawsuit is similar to ones against the tobacco industry, attempting to hold companies accountable for public health problems. Present-day paint companies, like Sherwin-Williams are having to pay for what they did decades ago - from the 20s to 50s.

Now, the devil is in the details. Even though the court ruled in favor of the cities and counties, the specifics of how this will all work have yet to be hammered out.

The money that the paint companies owe is going into what’s called an abatement fund. Counties and cities are going to have to apply for money from this fund to do lead abatement work. Then they will most likely set up their own individual funds. Property owners will be able to apply to receive money to do lead abatement work like fixing peeling paint on windowsills, doors.

Cities and counties say scare tactics are at play

The catch is that according to the ruling, the cities and counties have to spend that money in four years. If they don’t, they have to give the money back to the paint companies.

Local governments are worried that they are not going to be able to spend the money in time. Every time a city or county applies to get money from the fund, the paint manufacturers will have a chance to contest the application, which means it could take more time for the cities and counties to get the money and then spend it. Lawyers for some of the counties represented in the case are worried that the paint manufacturers will keep contesting these grant applications as a way to run out the clock on those four years.

The counties are now asking the judge to come up with a solution for this. Instead, they want the four year time period to work like a game clock in basketball. Every time the paint companies appeal one of these grant applications or work out the details, the counties want the four year time period to be paused, just like the clock gets stopped in a game when there’s a foul and the referees debate something.

The counties are also concerned that the paint companies will use scare tactics to keep individuals from spending the money. The paint manufacturers have actually said in court that they may consider suing individual property owners who apply for funds from their local government.

Paint companies claim responsibility rests with property owners

The companies feel that when people are exposed to lead paint, it’s because property owners let the property deteriorate to hazardous conditions. The paint companies don’t think they should be responsible for that or have to pay for that. They put the onus on property owners and the cities and counties which the paint companies say should be just enforcing current California habitability laws. Plus they say they’re already doing their part to address lead-paint hazards. Companies that have produced lead-based products already pay a fee that goes toward already-existing lead poisoning prevention programs.

Whether the paint companies actually have the right to sue individual homeowners is still being discussed in court. Javier Serrano, a lawyer for Santa Clara County who is working on the case says his county believes that the paint companies don’t have that right. He says the paint companies are doing this as a way to intimidate property owners from applying for money and as a another way to run out the clock on the four year time period so that the paint companies get the money back.

The four-year time period won’t start until a final decision about these details has been made. Santa Clara County counsel Serrano says he doesn’t foresee a ruling being issued until at least the summer. Until then, Californian cities and counties will be waiting on the hundreds of millions of dollars owed to them by paint manufacturers.