Defendants in Rhode Island Lead Paint ‘Public Nuisance’ Case Argue Against State's Abatement Plan

The defendants in the "public nuisance” case filed against lead paint manufacturers in Rhode Island have issued a statement claiming that many factors in the State’s abatement plan render it infeasible and burdensome. Speaking on behalf of the defendants, counsel Scott Smith, an attorney at Hallenland Lewis Nilan & Johnson in Minneapolis, has issued the following statement on the issue:

“Under this proposal, the Attorney General is seeking the astounding power to demand renovations and changes to hundreds of thousands of homes in Rhode Island. With as little as a knock on a door, he wants to remove or cover lead-based paint no matter how well-kept a home is, and even if that home has no lead hazards. This proposal was developed with a myopic zeal that ignores fundamental property rights.

“This scheme was concocted by private lawyers seeking to make a big payday from this case. As a result it makes no distinction between well-maintained older homes and deteriorated housing owned by slumlords.

“The fact of the matter is the number of children with elevated blood lead levels in Rhode Island is continuing to decline dramatically. The risks today are concentrated in known pockets of poorly maintained housing. The Attorney General already has the power under current state laws to require these property owners to keep their property free of lead hazards.

“This case poses many significant and novel legal issues, and is on appeal to the Rhode Island Supreme Court. No abatement process will go forward until that appeal is decided, and the defendants expect the Rhode Island Supreme Court will recognize the errors at trial and dismiss this case.

“By any measure, the proposed lead paint abatement plan filed Sept. 14 by the State is, in a word, ridiculous. The State has asked the Court to require the Defendants to abate all lead paint found in 240,000 residences and thousands of other buildings throughout Rhode Island in four years. The State’s plan calls for the training and hiring of 10,000 licensed abatement workers over a one-year period – twice the number of construction workers who, at its peak, were building Boston’s “Big Dig” – despite the fact that, according to the State, there are fewer than 800 licensed lead abatement workers in all of Rhode Island today. Where 9,000 new lead workers will come from, and how they can possibly be trained and certified in a year, is a mystery.

“The State’s plan also calls for the complete abatement of over 300 homes per day, each and every business day, for the following three years. By contrast, the Rhode Island Department of Health’s 2007 annual lead program report indicates that, for all of 2006, the State inspected 85 properties and achieved complete abatement in 20 of them, and the State’s settlement with du Pont in 2005 called upon du Pont to abate, over a three-year period, 200 homes per year. Abating 300 homes per day is completely unprecedented anywhere in the United States and totally unrealistic, and the disruption of Rhode Islanders’ lives throughout this process will be enormous.

“The estimated cost of the State’s plan is an astonishing $2.4 billion dollars – nearly 4½ times the cost of the largest public works project in the history of Rhode Island (the Narragansett Bay Combined Sewer Overflow Project, which will cost an estimated $550 million over a 20-year period), and among the most expensive public works projects ever in the United States.

“The State’s plan, amazingly, rewards landlords who have repeatedly flouted Rhode Island law by failing to make their properties lead-safe – theirs will be the first properties to be abated, and entirely at Defendants’ expense. Moreover, the State’s plan calls upon Defendants to bear the cost of not just abating the lead paint in slumlord properties, but also in many cases the cost of fixing other building code violations and hazards – such as leaking roofs and plumbing, and weakened walls and ceilings – left uncorrected by Rhode Island’s worst landlords for years. Under the State’s plan, landlords will have every incentive to ignore the State’s lead-safe laws for as long as possible, to the detriment of their tenants’ health.

“Finally, the State’s plan turns well-meaning, responsible property owners who may not welcome the State’s proposed intrusions onto their land into publicly stigmatized villains. The State expects every property owner and occupant in Rhode Island to voluntarily yield their property and privacy rights up to legions of abatement contractors and inspectors, and to coerce their compliance, the State’s plan calls for the public identification of all properties where the owner or occupant declined to participate. In fact, under the State’s plan, property owners who choose not to take part may find themselves sued by the State to force their participation in this program.

“Of course, Rhode Island does not need an overblown ‘Big Dig’ of its own to protect children from the risk of lead poisoning; during just the years the State’s lawsuit has been pending, childhood lead poisoning rates in Rhode Island have dramatically dropped from 6.9 percent in 1999 to 1.6 percent in 2006 and continue to decline today. But the amount of compensation to be paid to the State’s contingent fee lawyers is based not upon the public interest, but upon the size of the abatement plan. Given that fact, the extraordinary overbreadth of the State’s proposed remedy and its $2.4 billion dollar price tag is hardly a surprise.

“Consistent with the Court’s prior rulings, defendants will offer a more complete response to the State’s proposed abatement plan by November 15, 2007. During that period, defendants’ pending appeal to the Rhode Island Supreme Court will continue to go forward, and defendants remain confident that the Supreme Court will ultimately dismiss this case. Moreover, while defendants’ appeal remains pending, no abatement will take place. Nonetheless, it is clear at this juncture that the State’s proposed abatement plan is stunningly ridiculous and far-distant from the best interests of Rhode Island’s citizens.”

Scott A. Smith
Halleland Lewis Nilan & Johnson
600 U.S. Bank Plaza South, 220 South Sixth Street
Minneapolis, MN 55402-4501
612.338.1838
ssmith@halleland.com

Minneapolis attorney Scott Smith represents all defendants in the "public nuisance” case filed against lead paint manufacturers in Rhode Island.

This release was published on openPR.