A state appellate court has upheld a trial court decision that found paint companies created a public nuisance by promoting lead paint use in residential homes, although it reduced the $1.15 billion award, and limited the relevant time period to pre-1951. See People v. ConAgra Grocery Products Company, Opinion, H040880 (6th Cal. App filed Nov. 14, 2017).

The Counties of Alameda, Los Angeles, Monterey, San Francisco, San Mateo, Santa Clara, Solano and Ventura Counties, and the cities of Oakland and San Diego sued ConAgra Grocery Products Company, NL Industries, Inc. and the Sherwin-Williams Company seeking cleanup of lead-contaminated from paint in homes.

In 2013, a Santa Clara County Superior Court ruled that the paint companies created a public nuisance by promoting lead paint use despite being aware of serious health threats. The court ordered the companies to pay $1.15 billion into a lead paint abatement fund to rehabilitate homes built prior to 1980. Paint manufacturers have successfully fought off similar suits filed in other states by local governments seeking to hold them accountable for lead paint contamination. The appellate court however, based on a lack of evidence, was limited abatement to pre-1951 paint applications as there was no evidence promotion continued after that time.

We would note that there is also a federal law, that is being enforced in California that regulates in a manner similar to asbestos, the way that the construction and remodeling projects have to manage lead paint covered surfaces in houses.

EPA’s Lead Renovation, Repair and Painting Rule (RRP Rule) requires that firms performing renovation, repair, and painting projects that disturb lead-based paint in homes, child care facilities and pre-schools built before 1978 have their firm certified by EPA (or an EPA authorized state), use certified renovators who are trained by EPA-approved training providers and follow lead-safe work practices.

See https://www.epa.gov/lead/renovation-repair-and-painting-program

Craig A. Tristao is a Partner in the litigation and transactions departments of the firm’s Fresno office. He provides representation to clients in litigation matters involving agricultural law, environmental law, construction law, land use and natural resource law, water law, probate and estates, and eminent domain matters that involve the California High Speed Rail Authority. Craig also assists clients with regulatory compliance issues concerning the Clean Water Act (CWA), the Porter-Cologne Act, and the Clean Air Act (CAA). In addition to litigation, Craig also represents clients before the Regional Water Quality Control Boards and the State Water Resources Control Board, air districts, and the Contractors State License Board (CSLB). He has also been named a Super Lawyers “Rising Star” for 2015-2018 (2.5% of lawyers practicing under 10 years). You can contact Craig at (559) 248-4820 or ctristao@ch-law.com.