Lead Paint Showdown Looms in Ohio

Published March 1, 2007

Incoming Ohio Gov. Ted Strickland (D) has sparked a potential constitutional showdown by vetoing a lead paint bill outgoing Gov. Bob Taft (R) thought he had already approved.

The legislation at issue bars municipalities from using public nuisance laws to force companies that once manufactured lead-based paint to pay for paint removal and replacement in older buildings. The legislation also caps non-economic damages for private citizens seeking damages from paint companies.

The federal government outlawed the use of lead in paint in 1978, citing health concerns related to the ingestion or inhalation of lead paint chips. The paint industry had on its own initiative taken lead out of paint in 1955, responding to similar concerns. Companies such as Sherwin Williams stopped using lead-based paint as far back as the 1930s.

Two Legal Avenues

Nevertheless, owners and occupants of older buildings across the nation have attempted to sue paint companies for removal and replacement costs related to lead paint and have also sought non-economic damages.

The Ohio Consumer Sales Practices Act (CSPA), which allows consumers to receive three times their economic and non-economic damages if they show they were harmed by deceptive or unfair trade practices, currently is the law under which plaintiffs most frequently sue paint companies. Plaintiffs’ attorneys have argued in court, with mixed success, that paint companies were aware of health concerns related to lead-based paint before they stopped using it, and that companies should currently be held liable for paint work done more than 50 years ago.

Additionally, various cities and towns have attempted to use public nuisance laws to force paint companies to remove and replace lead-based paint and pay for public information campaigns.

Legislation Limits Liability

In response to recent lawsuits, the Ohio legislature in December 2006 approved Senate Bill 117, which would prohibit local governments or private entities from using public nuisance laws to force prior manufacturers of lead paint to pay for paint removal.

The bill also would put a $5,000 cap on non-economic damages plaintiffs could obtain against lead paint manufacturers under the CSPA.

Approved, Then Vetoed

Generally supportive of S.B. 117 but believing the cap on CSPA non-economic damages should be higher, Taft decided not to sign the bill but to let it become law without his signature. Taft calculated that his 10-day window to veto the bill ended on Friday, January 5, his last day in office.

On the afternoon of January 5, Taft sent the bill to his secretary of state to sign. Outgoing Secretary of State J. Kenneth Blackwell (R) signed the bill, and Taft assumed it had become law.

On Monday, January 8, however, Strickland had his incoming secretary of state, Jennifer Brunner, return the bill to him, and he promptly vetoed it.

Strickland justified his action by asserting that Sundays should not be counted in the 10-day period to veto legislation. Strickland also argued the actions taken by Taft and Blackwell did not have the effect of officially turning the bill into law.

Legal Action Threatened

In response to Strickland’s veto, House Speaker Jon Husted (R-Kettering) and Senate President Bill Harris (R-Ashland), both Republicans, have accepted the offer of incoming Attorney General Marc Dann, a Democrat who plans to support Strickland’s veto, to appoint an independent counsel to assist the legislature in determining whether and how to challenge the veto.

“From our conversations with the governor’s office, they believed that he [Taft] took an action,” explained Senate Chief of Staff Matt Schuler. “It was a choice he made to allow it to become law without his signature. He sent it to the secretary of state, and Ken Blackwell signed it.”

Local Backlash

Many in Ohio see Strickland’s move as an unfair attempt to score political points by punishing paint companies.

“The issue is upkeep and maintenance by landlords, not companies or successors of companies that haven’t manufactured lead paint in more than 40 years,” noted a house editorial in the January 11 Coshocton [Ohio] Tribune. “Cities’ suing paint companies make[s] about as much sense as suing Jim Beam for making the bourbon found in the blood of the drunken driver who caused an accident.”

The editorial added, “Cities can better spend their time and resources by cracking down on landlords who are negligent when they let their properties deteriorate and endanger residents. Paint companies have no control over the actions of nonresponsive landlords.”

No Health Danger

“Not even the U.S. Environmental Protection Agency expresses much alarm about risks of childhood exposure from the mere presence of intact lead paint,” said Maureen Martin, senior fellow for legal affairs at The Heartland Institute.

“There are relatively simple and inexpensive methods available to homeowners and landlords to keep lead paint intact or to fix it if it deteriorates,” Martin noted. “So unless there is reason to suspect deteriorated lead-based paint is present in Akron houses and apartments, such inspections might not even be legal. They certainly are not necessary.”

James M. Taylor ([email protected]) is managing editor of Environment & Climate News.