Water Well Journal
Issue link: http://read.dmtmag.com/i/498253
W hile California is widely thought to have the coun- try's—if not the world's—most-stringent environ- mental regulations, California's regulation of lead, a known carcinogen and neurotoxin, could soon become even stricter. A veteran for-profit legal enforcement group sued the Cali- fornia Office of Environmental Health Hazard Assessment (OEHHA) in early January, seeking to invalidate the existing safe harbor for lead exposure. The Mateel Environmental Jus- tice Foundation asserts the existing safe harbor is too lenient and should be eliminated. A ruling in Mateel's favor could have sweeping effects for businesses operating in California and for businesses that serve California's large market for consumer products. Thou- sands of manufacturers, processors, distributors, retailers, and—yes—businesses that work with California's public water supply regularly rely on the safe harbor for lead expo- sure in daily operations. Lead is one of the most frequently referenced chemicals in Proposition 65 intent-to-sue letters. By one count, 412 of the 1394 Proposition 65 notice letters issued last year involved lead exposure or exposure to lead compounds. It is no surprise, then, the California Chamber of Com- merce and a large coalition of businesses and trade associa- tions have already formally called on OEHHA to "vigorously defend itself" against the lawsuit. If Mateel prevails, businesses operating in California could be subject to a sudden and unprecedented influx of lawsuits from plaintiff enforcement groups like Mateel. Businesses could be forced to issue costly and extensive warnings or be subject to heavy fines if using products containing even a trace amount of lead. Businesses working with California's water supply would also need to completely eliminate traces of lead and lead compounds before discharging water. The lawsuit involves California's Proposition 65, which was created in 1986 through a voter initiative. Proposition 65 echoed growing concern among the California electorate over the harmful effects of exposure to toxic chemicals. At the time, Proposition 65 called for the nation's (and the world's) most-stringent regulation of toxic chemicals in consumer products and drinking water. Proposition 65 became the Drinking Water and Toxic Enforcement Act of 1986. The act requires OEHHA to regularly update and publish a list of toxic chemicals. OEHHA lists chemicals scientifically proven to cause cancer or birth defects or other reproductive harm and the allowable concentrations of the chemicals in California. To date, OEHHA has listed more than 900 differ- ent carcinogens and reproductive toxins. The act also gives OEHHA rule-making authority to issue regulations enforcing the act. OEHHA's regulations enforce Proposition 65 on two fronts. First, the regulations require businesses manufacturing, distributing, or selling consumer products in California to provide warnings/disclosures if their products contain any listed chemicals. Through disclosure, the regulations provide information to consumers needed to make informed decisions about the products they purchase. Using a more direct approach, Proposition 65 regulations also prohibit businesses from discharging listed chemicals into sources of drinking water. The regulations create specific discharge rules for businesses working with California's public water supply. One way to avoid the reach of Proposition 65 is to comply with safe harbor levels prescribed by the state. OEHHA estab- lishes concentration guidelines—or "safe harbors"—for each listed chemical. To date, OEHHA has established safe harbor levels for more than 300 different toxic chemicals. If a product contains a listed chemical in a concentration below the safe harbor level, a business manufacturing, distrib- uting, or selling a product containing a listed chemical is not required to issue a warning. On the other hand, if the product contains a listed chemical at a concentration above the safe harbor level, Proposition 65 requires the business to issue a clear and reasonable warning to the consumer. An example warning reads: "WARNING: This product contains a chemi- cal known to the State of California to cause birth defects or other reproductive harm." Businesses working with California's public water supply must also pay careful attention to safe harbor concentration levels. Listed chemicals may only be discharged into Califor- nia's public water supply if the listed chemical exists at a con- centration lower than the applicable safe harbor. If a business intentionally discharges a listed chemical at a concentration above the safe harbor level, that business could face severe penalties. Compliance with the safe harbor limits provide a complete defense to a Proposition 65 enforcement action brought against a company. OEHHA currently recognizes more than 900 toxic chemi- cals. One of those toxins is lead. While lead has useful commercial applications in a broad range of contexts (most notably in lead-acid storage batteries commonly used in auto- mobiles), and is still used regularly in everyday building materials, the pernicious effects of lead and lead poisoning PETER BERG DON GREGORY IT'S THE LAW PENDING CALIFORNIA LAWSUIT HAS INDUSTRY IN WAITING Will the existing "safe harbor" for lead exposure be eliminated? 52 May 2015 WWJ waterwelljournal.com