Mr. Chairman and Members of the Subcommittee on Housing and Transportation:
Rhode Island has a serious lead paint problem. Lead poisoning is an insidious condition, because it ordinarily shows no immediate symptoms. The brain and nervous system damage lead causes is gradual, and has no physical telltales that might warn a parent. The widely-spread legend that a child has to eat lead paint chips like potato chips to be lead poisoned is false, but has misled many families to underestimate the hazard for their children, particularly infants.
The Conservation Law Foundation of Massachusetts described us as "the lead poison capitol of the United States." Our Democratic General Assembly and our Republican Governor’s administration have both identified lead paint as the number one environmental health issue facing Rhode Island children. The rate of lead poisoned children is two and a half times higher in Rhode Island than in the rest of the United States. In Providence, our capitol, the rate of lead poisoned children is four times higher than the rest of the United States. We test the blood of every child entering kindergarten for lead poisoning. Every year, more than 2,000 kids reporting to kindergarten have elevated lead in their blood.
Against this backdrop of a real public health calamity, Rhode Island has been active at the municipal, state, and federal levels.
1. Municipal Response. The bulk of our lead poisoning occurs in older urban areas, and most of our older houses are located in our capitol city, Providence. Providence has been active in attacking lead paint.
The city’s primary focus is on providing lead safe, healthy housing, and public education to its residents. Through an experienced lead abatement team, $5 million in HUD and National Safe Houses Corporation grants, close enforcement coordination with my office and the Department of Health, and aggressive public outreach to children, parents, schools, and even realtors, elevated blood lead levels in Providence’s children have dropped from 38% of those entering Providence kindergartens in 1998 to 25% of kindergartners today. The city has further allocated $800,000 to help eligible owners make their properties safe. Only a few weeks ago, Providence announced that another $4 million from the Neighborhood Improvement Bond will be used to shore up city housing stock and that the city has applied for another $3 million HUD grant.
2. The Federal Effort. We have pursued federal grants through HUD and other agencies and worked with federal officials, primarily at HUD, EPA and the United States Attorney’s office. Federal political leaders such as Senator Reed have shown considerable interest and vision.
3. The State of Rhode Island. The State of Rhode Island is addressing its lead paint public health hazard through a variety of agencies and means. Our Department of Health conducts the blood testing program I have described. In the year 2000, 32,313 children under the age of six were tested in Rhode Island. 2,804 (8.7%) of those children had elevated lead levels in their blood. The Health Department follows up on each case where the child’s blood lead level is 20 mg/dl or higher, with home inspections and case management.
Our Department of Human Services provides funding and care for low income residents who experience lead poisoning and require medical treatment. Through referral to community based service providers, Human Services, with Medicaid funds, pays for the screening of low-income children. In 1998, Rhode Island became the first and only state to receive permission from the Healthcare Financing Administration to use Medicaid funds for replacing or repairing windows in homes of lead poisoned children if landlords or tenants satisfy eligibility requirements. Since window repair and replacement is not normally a reimbursable item by Medicaid, this confirms the federal government’s view that the lead paint health problem in Rhode Island is particularly acute.
The Department of Attorney General is involved primarily on the enforcement side. When we become aware that a residence contains dangerous levels of lead, usually by referral from the Department of Health, we take action to require owners and landlords to abate the lead. Landlords are not always willing, so we have repeatedly taken them to court and obtained orders, contempt judgments, and civil penalties to enforce their obligation to abate. We have successfully completed twenty lawsuits. We have approximately two hundred cases in the office in process right now, and roughly one hundred homes and apartments (including the exterior and the soil that surrounds them) have successfully been abated or are in the process of abatement. We have referred cases for prosecution to DOJ, HUD and EPA to enforce the federal requirements that landlords and sellers disclose lead hazards to buyers and tenants. We hope that the federal government will take a more active role in prosecuting these cases in the future.
In addition to recognizing the efforts of municipal, federal and state government, I should take a moment to commend the community organizations that are so active in Rhode Island in this area: Health & Education Leadership for Providence, the Help Lead Safe Center, the Childhood Lead Action Project, Greater Elmwood Neighborhood Services, various neighborhood and church organizations, Head Start, the VNA, and many nonprofit housing groups.
Blood, toil, tears and sweat were Winston Churchill’s exemplars of effort. In Rhode Island, the blood is given by infants and small children who must be regularly tested, and in some cases have their blood chelated. The tears are shed by family members who discover, often too late, and often despite very reasonable levels of maintenance of their homes, that their child has become lead poisoned. The toil and
sweat come from the men and women of these community organizations who every day administer to the many needs of families facing these uncertainties.
Everyone in Rhode Island is working to clean up the lead paint mess. Municipal government, and thus municipal taxpayers, are pitching in. State government through many agencies, and thus state taxpayers, are pitching in. Federal efforts have been made through HUD, the EPA and the Department of Justice. Volunteers and staff of community organizations are pitching in. Families, of course, bear a terrible share of the burden: the lead poisoning of their children, the worry and woe of mothers and fathers, the displacement of families from their homes, even the minor trauma of holding your child as painful and frightening procedures are performed to test for lead poisoning or to chelate lead out of the child’s blood. Landlords and homeowners are pitching in, cleaning up lead paint that may have been put on years before they bought the home. There is only one group not pitching in: the lead pigment companies who sold this toxic material for decades, profited from it, lied about it, and are now trying to evade even the most microscopic share of responsibility for cleaning up the mess they created.
After determining that the pigment companies were prepared to do essentially nothing about this problem, I filed a lawsuit, to determine what the fair share of responsibility of these companies is—I know it is more than zero—and to get the companies to contribute that fair share to the remedy of this problem.
The lawsuit was filed on October 12, 1999. The defendants are The Lead Industries Association, Inc., American Cyanamid Company, Atlantic Richfield Company, E. I. DuPont de Nemours & Company, The O’Brien Corporation, Conagra Grocery Products Company, The Glidden Company, NL Industries, Inc., SCM Chemicals and The Sherwin-Williams Company. The State of Rhode Island is represented by myself and my office, by a highly regarded Rhode Island law firm which represented the state with great success in litigation arising out of Rhode Island’s 1991 bank failures, and by a national firm which has the depth to withstand the inevitable blizzard of paper. As Attorney General, I am directly involved in this case, guide its strategy, and successfully argued the case for the State against the motions to dismiss.
Our allegations fall into three groups. There are equitable counts; there is a statutory count under a Rhode Island state consumer protection statute; and there are a number of traditional tort counts which bear on the properties owned or maintained by the State of Rhode Island in its proprietary capacity. For example, the public nuisance count would enable the Rhode Island Superior Court within its equitable jurisdiction to impose a reasonable order allowing more rapid and complete abatement of lead paint than the state presently has resources to accomplish. As the Rhode Island General Assembly
has noted: "Rhode Island presently does not have the public nor the private resources to handle the total problem."
I should point out that a public nuisance lawsuit, when brought by a responsible public official to vindicate a public harm, is not an ordinary piece of litigation. Its primary purpose is not to resolve a dispute between contending private parties, but rather to protect the public health, safety and welfare. A public nuisance lawsuit is, in some measure, an exercise of the police power of the state.
Public nuisance law in Rhode Island and in most jurisdictions in this country requires first, that there must be a public nuisance. That means there must be a harm either to a public right or to a sufficient number of members of the public as to implicate a public interest, and the harm must be serious and not merely trivial or annoying. This has been defined as an unreasonable interference that arises when "persons have suffered harm or are threatened with harm that they ought not have to bear." Second, it must be determined who is responsible for the public nuisance. The standard of responsibility is whether the defendant has created or maintained the public nuisance or contributed to or participated in the creation or maintenance of the public nuisance. Finally, if a public nuisance is proven to be a defendant’s responsibility, the judge then has the authority to enter a reasonable order, consistent with the nature of the nuisance and with considerations of due process, as well as common sense and efficiency, for the protection of the public health.
What remedy do we seek that will relieve Rhode Island children of the hazard of lead paint poisoning? Ideally, all lead paint needs to be removed from residences where children may be exposed. With limited resources, the first priorities are (1) to remove lead from friction surfaces such as doors and windows, (2) to assure that repairs and maintenance are done in a way that does not expose residents to lead dust, and (3) to encapsulate lead surfaces, since it is lead’s nature to chalk and form poisonous dust.
I will conclude my remarks by observing that I am just a small state Attorney General, and this lawsuit has provided me my first experience of national level spin. I will not bore you here with a description of the various characterizations of this lawsuit, characterizations of my motivations or characterizations of the facts of lead paint poisoning. It will suffice to say that we wish as quickly as possible to bring this case forward, so that we can present the state’s case and the defendants can present theirs, and a decision can be made not on rhetoric or spin but on evidence and facts. One way or the other, our case will stand or fall on its factual and legal merit. We look for the outcome of that process to be a fair and sensible order requiring the defendants to contribute in a fair and sensible way to the clean up of the mess they made.
If Rhode Island is to be considered the lead paint capitol of the United States, then let it as well be considered the capitol of lead paint solutions - solutions to a silent public health menace to our children and to children throughout the United States.
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