SIGN,
SIGN, EVERYWHERE A SIGN - California's Proposition 65
(published October
1997)
A
startling notice was received by several tenants of the Port of Los Angeles/Long
Beach and shipping companies whose vessels call there from an environmental
attorney expressing his intention to file a class action lawsuit for violation
of California's Proposition 65. The Corporation for Clean Air, a non-profit
corporation, has named over 100 marine business as potential defendants in
a class-action lawsuit for allegedly failing to place placards on their "premises" warning
of the presence of harmful diesel emissions. Suffice it to say, the notice
of the impending lawsuit is not based on altruistic grounds; Proposition 65's "bounty
hunter" provision allows the attorney to share in the recovery of any penalties
imposed for violations of this law. This scenario is just yet another example
how poorly drafted legislation can lead to a feeding frenzy for over-zealous
lawyers.
In 1986, California voters approved the Safe Drinking Water and Toxic Enforcement Act (commonly known as "Proposition 65"). The intent of Proposition 65 was to prevent businesses from releasing certain harmful chemicals into sources of drinking water and to provide the public with reasonable warnings of possible exposure to these harmful chemicals on their premises. The Act required the Governor of California to publish each year a list of chemicals known to cause cancer. The "Governor's List" presently identifies over 550 chemicals known to cause cancer, birth defects or reproductive harm. Any business producing or utilizing these chemicals on their premises must post a placard with language similar to "Warning: This area [or product] contains a chemical known to the State of California to cause cancer or to cause birth defects or other reproductive harm." The warning placard must be posted in such a place so as to provide a warning prior to any person being exposed to the subject chemical.
Proposition 65 provides a few very limited exceptions to the reasonable warning requirement. For instance, federal, state and local governments are exempted from the act, as well as businesses with nine or fewer employees. Additionally, no warning is required for de minimis exposure to a chemical. However, de minimis exposure is also defined within the state's regulations and the required level is so low that it is virtually impossible to fall within the exception. Furthermore, the Act places the burden on the business owner to prove the level of exposure is de minimis. Once anew chemical is added to the Governor's List, there is a one year grace period before a business may be cited for failing to provide a reasonable warning of that chemical.
To ensure vigilant enforcement of the Act's provisions, the drafters of this legislation included a bounty hunter provision which permits private citizens to initiate civil suits for violations of the Act. The Act provides that any person violating its provisions may be enjoined from further violations and is liable for a civil penalty of $2,500 per day for each violation. The State Attorney General, County District Attorney or City Attorneys are all empowered to bring a suit against any violator. A private party may bring the suit after providing the public prosecutor and violator 60 days notice of his intent to file suit for the alleged violation. If the public prosecutor does not take over the litigation, the bounty hunter may collect 25% of the penalties collected in the private suit, as well as attorneys' fees. If the public prosecutor takes over the Proposition 65 case, the private citizen may still stay involved by pursuing claims under the Unfair Business Practices Act, which include unlawfully exposing a person to harmful chemical without providing ample notice. The private citizen will not share in the recovered penalties but is entitled to recover attorneys' fees for their efforts.
Not surprisingly, the Corporation for Clean Air was formed in November 1996 by an attorney who has filed other suits of this kind. For instance, an earlier suit was filed in San Francisco by the Corporation for Clean Air against most of the commercial van lines, trucking companies and bus companies that operate in San Francisco. Other environmental groups have in the recent past filed lawsuits against gun and ammunition manufacturers, brass faucet manufacturers, retail grocery stores, wineries, ceramic tableware manufacturers, diesel engine manufacturers and paint manufacturers. Unfortunately, Proposition 65 has created a Pandora's Box of vigilante justice overseen by attorneys who are completely unaffected by the alleged violations, who decide on their targets and what penalties to seek.
There are many questions concerning the application of Proposition 65 to the marine industry left unanswered by the language the Act. For instance, the class of people being protected is unclear; whether individuals boarding the vessels, working on the docks or residing in the cities where the harbors are located. The types of notices that would be sufficient in each of these instances is not addressed. Further, the issue whether Proposition 65 even applies to foreign vessel owners infrequently calling in the United States, and the type of limitations period to be applied to emissions occurring six years ago when "diesel" was first added to the Governor's List, as well as notice to the individuals coming in contact with diesel emissions, are all open to debate. Undoubtedly, these are questions that shall be settled after the bounty hunters file suit.
