No person in the course of doing business shall knowingly discharge or release a chemical known to the state to cause cancer or reproductive toxicity into water or onto or into land where such chemical passes or probably will pass into any source of drinking water, notwithstanding any other provision or authorization of law except as provided in Section 25249.9.
Added by initiative measure, Proposition 65, approved November 4, 1986, effective January 1, 1987.
Editor's Notes- For legislative findings, declarations, severability, and effective date of initiative, see the Note to Ch 6.6 (H & S C §§ 25249.5 et seq.).
Cross References: Exemption from discharge prohibition: H & S C § 25249.9.
Definitions: H & S C § 25249.11.
Collateral References: 12 Witkin Summary (10th ed) Real Property §§ 894, 911.
Law Review Articles:
Regulating Pesticide Pollution in California under the 1986 Safe Drinking Water and Toxic Exposure Act (Proposition 65). 28 Ecology LQ 663.
NOTES OF DECISIONS
California's Safe Drinking Water and Toxic Enforcement Act of 1986, H & S C §§ 25249.5 to 25249.13, which imposes health warning requirements on dental mercury and products containing dental mercury, is preempted by the Medical Device Amendments of 1976 to the Federal Food, Drug, and Cosmetic Act (MDA), 21 USCS §§ 321 to 394. The MDA contained specific requirements applicable to dental mercury or products containing mercury. Committee of Dental Amalgam Alloy Mfrs. v. Henry (1994, SD Cal) 871 F Supp 1278, 1994 US Dist LEXIS 15566.
In an action by the Attorney General against manufacturers and distributors of drinking water faucets sold and used in California, alleging that defendants violated the Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Saf. Code, §§ 25249.5-25249.13), enacted by the electorate as Prop. 65, in that each knowingly discharged or released a proscribed chemical (lead contained in faucets) into a source of drinking water, the trial court erred in sustaining defendants' demurrers on the ground that residential water faucets and the water within them are not “sources of drinking water” within the meaning of the act. Although the word “source” has several possible meanings, one meaning is “point of emanation,” and faucets and faucet water can reasonably be understood to be a “source” of drinking water in this sense. This definition comports with the purpose and intent of the act: to protect drinking water, i.e., water that comes from the tap, from contamination. Further, an administrative letter, which may have implied that leaching from plumbing facilities was not covered by the act, was not entitled to deference, since the agency explicitly declined to take a definitive position on this question. Finally, although the act has provisions for civil penalties, the term need not be strictly construed against the state when proscribed conduct is being defined and penalties themselves are not at issue. People ex rel. Lungren v. Superior Court (1996) 14 Cal 4th 294, 58 Cal Rptr 2d 855, 926 P2d 1042, 1996 Cal LEXIS 6518.
The trial court properly determined that the Federal Hazardous Substances Act's (FHSA) express preemption of contrary state labeling requirements for hazardous substances (15 USCS § 1261) did not preempt the requirement of the Safe Drinking Water and Toxic Enforcement Act (Prop. 65) for warnings for products causing cancer or reproductive toxicity, since not all possible consumer product warnings that would satisfy Prop. 65 would conflict with provisions of the FHSA. Thus, point of sale warning notices (Health & Saf. Code, § 25249.5 et seq.) could satisfy Prop. 65 without conflict as such signs are not labels, and do not contain “directions for use” so as to make them labels within the meaning of the FHSA. Prop. 65 does not frustrate any congressional purpose, since the FHSA regulates cautionary labeling to promote uniformity but permits the states through the use of point of sale signs to regulate the sale and use of hazardous chemicals. A contrary interpretation by the Consumer Product Safety Commission, to the effect that point of sale warning signs qualify as “directions for use” under the statute, and thus are labels, was clearly erroneous and not entitled to deference. People ex rel. Lungren v. Cotter & Co. (1997, 1st Dist) 53 Cal App 4th 1373, 62 Cal Rptr 2d 368, 1997 Cal App LEXIS 255.
The terms “discharge” or “release” as used in the statute referred to a movement of chemicals from a confined space into the land or the water; the subsequent passive migration of chemicals through the soil or water after having been so discharged or released by a party did not constitute another discharge or release within the meaning of § 25249.5. Consumer Advocacy Group, Inc. v. Exxon Mobil Corp. (2002, 2nd Dist) 104 Cal App 4th 438, 128 Cal Rptr 2d 454, 2002 Cal App LEXIS 5172.
Action filed by the possessors of land alleging that an oil company violated Cal. Health & Safety Code § 25249.5 by knowingly discharging chemicals in a manner likely to contaminate a source of drinking water was time-barred. While gasoline from a leaking underground storage tank owned by the oil company contaminated drinking water, the one-year statute of limitation set forth in Cal. Code Civ. Proc. § 340 had expired. Shamsian v. Atlantic Richfield Co. (2003, 2nd Dist) 107 Cal App 4th 967, 132 Cal Rptr 2d 635, 2003 Cal App LEXIS 515.
Delayed discovery rule applied to claims filed by victims of water contamination under Proposition 65, Cal. Health & Safety Code § 25249.5, because such for such claims it would be difficult or impossible for the victims to immediately detect or comprehend any breach of duty by the chemical company not to release a toxic chemical in violation of the statute or resulting injuries from such contamination. Lockheed Martin Corp. v. Superior Court (2003, 4th Dist) 109 Cal App 4th 24, 134 Cal Rptr 2d 304, 2003 Cal App LEXIS 765.
In an action alleging that single, specific, galvanized-steel plumbing parts discharged lead into drinking water, the trial court improperly granted summary judgment for the plumbing distributors, finding that a Tier 1 test for lead in drinking water existed and that plaintiff environmental group had not performed it. The specific test asserted, the Lead and Copper Rule, Cal. Code Regs., tit. 22, § 64670 et seq., was not a Tier 1 test, Cal. Code Regs. tit. 22, § 12901, for lead from sources other than public water systems because the rule was adopted to monitor public drinking water distribution systems; its requirements that multiple sampling sites be used and that those sites involve in-place lead solder, pipe, or service lines, the rule was of no use for detecting lead discharges from the parts at issue. Mateel Environmental Justice Foundation v. Edmund A. Gray Co. (2003, Cal App 1st Dist) 115 Cal App 4th 8, 9 Cal Rptr 3d 486, 2003 Cal App LEXIS 1990, request denied, (2004) 2004 Cal. LEXIS 3781.
Notice to the Attorney General of claims under Cal. Health & Safety Code § 25249.5 et seq. was insufficient because a list of carcinogens that was commonly present pretty much everywhere, such as in furniture and paint and electric lights, was not meaningfully differentiated and thus was no help to the Attorney General in deciding whether to bring a claim in the name of the public. The court reversed the approval of a settlement agreement because the Attorney General had to be given enough information to differentiate a target from pretty much everything else in the world. Consumer Defense Group v. Rental Hous. Indus. Mbrs. (2006) 137 Cal App 4th 1185, 40 Cal Rptr 3d 832, 2006 Cal App LEXIS 407.