Legislators introduce plan to preempt voter initiative on lead-based paint

Thursday, March 22, 2018

Bob Egelko, San Francisco Chronicle

Lawmakers in Sacramento are proposing to preempt a plan by paint manufacturers to ask taxpayers to pay for hazardous lead-based paint removal from older homes in California through a voter-approved $2 billion bond.

Legislation announced Thursday includes a bill that — if the companies’ initiative passes in November — would add a fee to all paint sales in California, with the money going to a fund for residents to clean up any paint containing lead in their homes. The fee would not repeal the taxpayer-funded bond but would eliminate the need to use its proceeds for the cleanup.

The paint-makers are circulating the initiative to counter a state appeals court ruling in November that found three companies — ConAgra, NL Industries and Sherwin-Williams — responsible for cleanup costs because they had marketed lead-based paint for decades while knowing it was dangerous to children.

The ruling required the companies to pay costs of removing the paint from homes in 10 cities and counties — including San Francisco and Oakland, and Alameda and San Mateo counties — that were built before 1951, when the companies stopped advertising the product. The U.S. government outlawed sales of paint containing lead in 1978.

The state Supreme Court denied review of the companies’ appeal last month. But the companies are hoping to nullify the ruling with an initiative that would instead authorize the bond to pay for cleanup of the hazardous paint along with asbestos and other hazards in homes and other buildings throughout the state.

Because the ruling defined lead-based paint as a “public nuisance” — a condition of property that endangers the public health — the paint manufacturers contend it could also brand contaminated homes as public nuisances and lead to their demolition. A group of Democratic legislators called the argument unfounded and announced a package of bills to counteract the proposed ballot measure.

“Paint companies knowingly sold toxic lead paint to consumers for decades,” said Assemblyman David Chiu, D-San Francisco, whose bill, AB2073, would prevent paint manufacturers from shifting to homeowners any legal responsibility for the hazard. “The courts found three companies were liable for creating a widespread public nuisance that they must pay to remedy. The Legislature is picking up where the courts left off.”

The paint industry “wants to circumvent the court ruling and detach themselves from any liability,” said Assemblyman Bill Quirk, D-Hayward, whose AB3009 would establish a statewide fee on paint sales to pay for the cleanup.

Another measure, AB2995 by Assemblywoman Wendy Carrillo, D-Los Angeles, would create an alternative pathway for company liability — classifying lead-based paint as a physical injury to property and allowing owners to sue the paint manufacturers for the cost of removal.

AB2074 by Assemblyman Rob Bonta, D-Oakland, would allow homeowners who couldn’t identify the manufacturer of the paint in their houses to sue multiple companies that sold or distributed the paint in their area and hold them jointly responsible. And AB2934 by Assemblyman Mark Stone, D-Santa Cruz, would increase the availability of lead paint inspectors by allowing the state to contract with counties to certify more inspectors.

In response, backers of the proposed initiative sponsored by paint manufacturers insisted in a statement that the court ruling created a “significant threat to homeowners” that the legislative proposals did not appear to address.

“While trial lawyers who brought the lawsuit are looking for a way to line their pockets, millions of California homeowners will face increased financial liabilities, decreased property taxes” and other hardships once their property is labeled a “public nuisance,” said Kendall Klingler, spokesman for the ballot measure campaign.

“We’re pleased that the state Legislature is paying attention to the issue, and we look forward to working with them to find a solution.”