Court tells makers: remove oldest lead

Paint companies must pay the state for the cost of removing lead paint from the interior surfaces of homes in San Francisco, Alameda, San Mateo and seven other counties, a state appeals court ruled Tuesday.

The Sixth District Court of Appeal in San Jose upheld a judge’s ruling that the three companies — Conagra, NL Industries and Sherwin-Williams — had marketed lead paint for decades while knowing of its health dangers to children.

But the court narrowed the judge’s ruling, which previously had applied to homes built before the government outlawed lead paint in 1978. Instead, the ruling would cover only homes built before 1951, when the companies stopped advertising the product.

The sum the companies must pay will be reduced from $1.15 billion to an amount yet to be determined. Andre Pauka, a lawyer for NL Industries, said the paint companies have estimated that the new total would be $400 million.

San Francisco City Attorney Dennis Herrera nevertheless called the ruling a major victory.

“The courts have made it clear that paint companies are not going to get away with poisoning children,” Herrera said in a statement. “These paint companies will still have to pay to clean up the vast majority of homes in San Francisco that contain this dangerous toxin.”

The court said 94 percent of the homes in San Francisco were built before 1978, and 68 percent, or more than 235,000 housing units, were built before 1950. In 2010, the court said, San Francisco tested 10,300 children under age 6 and nearly 1,000 showed high levels of lead in their blood.

Most of the affected children are from poor and minority families, said Joseph Cotchett, a lawyer for the cities and counties.

Pauka, the NL Industries lawyer, said the ruling expands liability in such cases while overlooking the role of landlords who failed to maintain the homes. He said the companies were considering an appeal to the state Supreme Court. The companies also argued that their advertising of lead paint was an exercise of free speech.

But the appeals court said the companies could be held responsible for the consequences of promoting a product whose dangers had long been known in the industry.

The three companies “as leaders in the lead paint industry were well aware in the early part of the 20th century that lead paint was poisonous,” Justice Nathan Mihara said in the 3-0 ruling.

Santa Clara County Superior Court Judge James Kleinberg, who presided over the nonjury trial, said in his 2014 ruling that lead paint was still a health hazard despite the 1978 ban. He said a study conducted between 2007 and 2010 found that at least 50,000 children in the 10 cities and counties had elevated levels of lead in their blood.

The ruling would establish a state fund to strip lead paint from doors, windows and floors of homes. Cleanup crews would also remove lead-containing dust and seal off or cart away contaminated soil from homes whose owners consent, Kleinberg said in his ruling, which the appeals court upheld.

The suit was filed by Santa Clara County in 2000 and joined later by six other counties and the cities of Oakland, San Diego and San Francisco. Similar suits in seven other states have been unsuccessful.