Volume 10, Number 2, May 1988, pp.5-8 plus insert sheet with the Act

California's Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65)

This act, while only of direct interest to readers within California, represents the shape-of-things-to-come. Informed consent regarding exposure to toxic materials, or in this case proven carcinogenic or reproductive toxins, is becoming a moral issue internationally. Any conservator who falls under this act's jurisdiction, and does any work in California, must be aware of the restrictions placed on them.

Disclaimer

While the information contained in this publication has been compiled from sources believed to be reliable and correct, neither the authors, editors, WAAC, or its Board, makes any warranty, expressed or implied, with respect to the use or completeness of any information in this article. It is intended merely to inform the WAAC Membership of the existence of the Safe Drinking Water and Toxic Enforcement Act of 1986 (hereafter referred to as the "Act"); it is not intended or designed to give legal advice on compliance with federal, state and local laws and regulations.

A copy of the entire Act accompanies this article. Sections of the Act, as well as information from Guideline and Safe Use Determination Procedures and information that was provided to voters in the state of California, are included verbatim.

The Act

The Safe Drinking Water and Toxic Enforcement Act of 1986 was originally adopted by California voters as Proposition 65 on November 4, 1986. Section 1 of the Act states:

The people of California find that hazardous chemicals pose a serious potential threat to their health and well being, that state government agencies have failed to provide them with adequate protection, and that these failures have been serious enough to lead to investigations by federal agencies of the administration of California's toxic protection programs. The people therefore declare their rights:

(a) To protect themselves and the water they drink against chemicals that cause cancer, birth defects, or other reproductive harm.

(b) To be informed about exposures to chemicals that cause cancer, birth defects, or other reproductive harm.

(c) To secure strict enforcement of the laws controlling hazardous chemicals and deter actions that threaten public health and safety.

(d) To shift the cost of hazardous waste cleanups more onto offenders and less onto law-abiding taxpayers. The people hereby enact the provisions of this initiative in furtherance of these rights."

Sections 2 through 5 of the Act contain three pages of additions to the California Health and Safety Code (chapter 6.6, division 20). The two fundamental paragraphs of Section 2 are:

25249.5. Prohibition On Contaminating Drinking Water With
Chemicals Known to Cause Cancer or Reproductive Toxicity. 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.

and

25249.6. Required Warning Before Exposure To Chemicals Known to Cause Cancer or Reproductive Toxicity. No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10.

From Section 25249.11 come the following definitions: "'Person' means an individual, trust, firm, joint stock company, corporation, company, partnership, and association" and "'Person in the course of doing business' does not include any person employing fewer than ten employees in his business; any city, county, or district or any department or agency thereof or the state or any department or agency thereof or the federal government or any department or agency thereof; or any entity in its operation of a public water system..." These are quite straightforward.

Somewhat more complex is the definition of "discharge or release into water or onto or into land" and "Source of drinking water". "'Source of drinking water' means either a present source of drinking water or water which is identified or designated in a water quality control plan...", where "water" includes both surface and groundwater.

From the Guideline and Safe Use Determination Procedures:

A discharge or release into water or onto or into land which is in hydraulic continuity with a source of drinking water 'probably' will pass to that source whether or not it is upgradient or upstream. For purposes of this paragraph, the ocean, saline bays, the Salton Sea, and Mono Lake, are not in hydraulic continuity with any source of drinking water unless such saline bodies are identified or designated in a water quality control plan adopted by a regional board as being suitable for domestic or municipal uses.

and

'Discharge or release into water or onto or into land' includes a discharge or release to air that is directly and immediately deposited into water or onto land.

In the Act, the definition of "warning" is:

'Warning'... need not be provided separately to each exposed individual and may be provided by general methods such as labels on consumer products, inclusion of notices in mailings to water customers, posting of notices, placing notices in public news media, and the like, provided that the warning accomplished is clear and reasonable.

One is exempt from the warning requirement if one "can show that the exposure poses no significant risk assuming lifetime exposure at the level in question for substances known to the state to cause cancer, and that the exposure will have no observable effect assuming exposure at one thousand (1000) times the level in question for substances known to the state to cause reproductive toxicity..." This is, however, quite difficult because in any legal action "the burden of showing that an exposure meets the criteria of this subdivision shall be on the defendant."

The act is intended to "single out chemicals that are scientifically known to cause cancer or reproductive disorders" and to "tell businesses: Don't put these chemicals into our drinking water supplies", and "Don't expose us to any of these same chemicals without first giving us clear warning." (Quoted from Argument in Favor or Proposition 65, Ira Reiner, et al.)

Under the mandate of the act, the Governor of California must "cause to be published a list of those chemicals known to the state to cause cancer or reproductive toxicity" and that list must be updated at least once a year. A chemical is placed on the list only if "in the opinion of the state's qualified experts it has been clearly shown through scientifically valid testing according to generally accepted principles to cause cancer or reproductive toxicity". A Scientific Advisory Panel, created within the Health and Welfare Agency, has been created to meet the mandate of the phrase "the state's qualified experts". The panel is composed of twelve members, appointed by the Governor, and includes experts in each of the specializations of epidemiology, oncology, pathology, reproductive toxicology, teratology, and toxicology.

Some of the Chemicals

The list of chemicals "known to the state to cause cancer", as of 1 April 1988, contains 210 entries; "to cause reproductive toxicity", 15 entries. Twelve months after a chemical is placed on the list, a "clear and reasonable warning" is required to be made to an individual before that individual is exposed to that chemical. Discharge of a chemical "into water or onto or into land" is prohibited after the chemical has been on the list for twenty months.

Rather than reprinting the list, this article will cite only materials felt to be of direct interest to conservators. The complete list can be obtained from WAAC or from the California Health and Welfare Agency. The date above each set of chemicals refers to the initial appearance of the chemical on the list.

Some of the Chemicals known to the State of California to cause cancer [or reproductive toxicity]:

27 FEBRUARY 1987

Arsenic (inorganic arsenic compounds)
Asbestos
Benzene
Chromium (hexavalent compounds)
Ethylene oxide [reproductive toxin]
Lead [reproductive toxin]
Soots, tars, and lubricant base oils and derived products, specifically vacuum distillates, acid treated oils, aromatic oils, mildly solvent-refined oils, mildly hydrotreated oils, and used engine oils; and mineral oils, when used in occupations such as mulespinning, metal machining, and jute processing.

1 JULY 1987

Ethylene oxide

1 OCTOBER 1987

Cadmium and cadmium compounds
Carbon tetrachloride
Chloroform
1,2-Dichloroethane (Ethylene dichloride)

1 JANUARY 1988

1,4-Dioxane
Formaldehyde (gas)
Lead acetate
Polychlorinated biphenyls (containing 60 or more percent chlorine by molecular weight)
Thiourea

1 APRIL 1988

Dichlormethane (Methylene chloride)
Lead phosphate
Tetrachloroethylene (Perchloroethylene)
Trichloroethylene

Also on the list are: aflatoxins, sodium saccharin, tobacco smoke, tobacco (oral use of smokeless products), and unleaded gasoline, all carcinogenic; and ethyl alcohol in alcoholic beverages and tobacco smoke (not environmental tobacco smoke), reproductive toxins.

Materials that are on the list that conservators use or are exposed to include: paints and dry pigments (lead white, cadmium reds and yellows, naples yellow, orpiment and realgar, emerald green, and any chromates, lead chromate, chrome orange, zinc yellow, and strontium yellow), cadmium in silver solders, thiourea in silver dips, ethylene dichloride in plexiglas cement, methylene chloride by itself and in paint strippers, and lead in lead objects and in white lead paint used as an adhesive. Materials like ethylene dichloride and methylene chloride should be replaced with alternative materials when possible. Other chemicals on the list should not be in use in conservation labs anyway: benzene, asbestos, carbon tetrachloride, chloroform, and ethylene oxide.

Aroclor microscopic mounting media, which is pure polychlorinated biphenyl (PCB), remains in wide use. Some laws restricting the storage and use of PCBs exclude those restrictions when it is used as a mounting medium in microscopy. The Act contains no exclusions.

The restrictions on disposal of thiourea, the active ingredient in silver dips, will go into effect in August of 1990. (Warnings posted by January 1989.) As there is no established safe concentration, all rinse water will have to be considered contaminated. The possibility of neutralizing or scavenging the thiourea thereby allowing legal discharge is being investigated at the Getty Conservation Institute.

Impact to Conservators

The Act could bedevil conservators, museums, galleries, and artists that fall under ir its scope. Fortunately, as the act is presently interpreted, only a minority of conservators are affected. Because businesses that employ less than ten people and all government agencies are exempted, most private conservators and conservators at city, county or state museums are not subject to the restrictions. (There is a bill pending in the state legislature that would remove the exemption for city, county, state, and federal government agencies.)

One of the more frightening aspects of the Act is: "Proposition 65's bounty hunter provision is a bonanza for private lawyers....it creates a lawyer's paradise: anyone can sue; almost anyone can be sued. People who sue will get a reward from penalties collected. Thus, environmental regulation is taken from the hands of government regulators and prosecutors and handed to private lawyers and judges." (from Argument against Proposition 65 by Dr. Bruce Ames et al.). The fear of professional "bounty hunters" looking for museums, galleries, artists, or conservation labs in violation of the Act is a reasonable fear and has sparked considerable concern in some institutions.

The "bounty hunter" provision is not automatic, but a civil action may be brought by any person in the public interest if after 60 days the Attorney General or district attorney or city attorney has not commenced prosecution. If action is brought by a person, that person is apportioned 25% of all civil and criminal penalties collected. The civil penalty is "not to exceed $2500 per day for each such violation in addition to any other penalty established by law."

Thanks to the following people: Barbara Roberts, William Ginell, Rosamond Westmoreland, Richard Kaplan, Zora Pinney, Steven A. Book, Ph.D., Science Advisor to the Secretary, State of California Health and Welfare Agency, and Mr. Arnold Hoffman, Vice-President, Major Paint Company.

California Safe Drinking Water and Toxic Enforcement Act of 1986

SECTION 1.

The people of California find that hazardous chemicals pose a serious potential threat to their health and well being, that state government agencies have failed to provide them with adequate protection, and that these failures have been serious enough to lead to investigations by federal agencies of the administration of California's toxic protection programs. The people therefore declare their rights:

(a) To protect themselves and the water they drink against chemicals that cause cancer, birth defects, or other reproductive harm.

(b) To be informed about exposures to chemicals that cause cancer, birth defects, or other reproductive harm.

(c) To secure strict enforcement of the laws controlling hazardous chemicals and deter actions that threaten public health and safety.

(d) To shift the cost of hazardous waste cleanups more onto offenders and lesson to law-abiding taxpayers. The people hereby enact the provisions of this initiative in furtherance of these rights.

SECTION 2.

Chapter 6.6 (commencing with Section 25249.5) is added to Division 20 of the Health and Safety Code, to read:

Chapter 6.6
Safe Drinking Water and Toxic Enforcement Act of 1986

25249.5. Prohibition on Contaminating Drinking Water with Chemicals Known to Cause Cancer or Reproductive Toxicity. 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.

25249.6. Required Warning before Exposure to Chemicals Known to Cause Cancer or Reproductive Toxicity.

No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10.

25249.7. Enforcement.

(a) Any person violating or threatening to violate Section 25249.5 or Section 25249.6 may be enjoined in any court of competent jurisdiction.

(b) Any person who has violated Section 25249.5 or Section 25249.6 shall be liable for a civil penalty not to exceed $2500 per day for each such violation in addition to any other penalty established by law. Such civil penalty may be assessed and recovered in a civil action brought in any court of competent jurisdiction.

(c) Actions pursuant to this section may be brought by the Attorney General in the name of the people of the Sate of California or by any district attorney or by any city attorney of a city having a population in excess of 750,000 or with the consent of the district attorney by a city prosecutor in any city or city and county having a full-time city prosecutor, or as provided in subdivision (d).

(d) Actions pursuant to this section may be brought by any person in the public interest if (1) the action is commenced more than sixty days after the person has given notice of the violation which is the subject of the action to the Attorney General and the district attorney and any city attorney in whose jurisdiction the violation is alleged to occur and to the alleged violator, and (2) neither the Attorney General nor any district attorney nor any city attorney or prosecutor has commenced and is diligently prosecuting an action against such violation.

25249.8. List of Chemicals Known to Cause Cancer or Reproductive Toxicity.

(a) On or before March 1, 1987, the Governor shall cause to be published a list of those chemicals known to the state to cause cancer or reproductive toxicity within the meaning of this chapter, and he shall cause such list to be revised and republished in light of additional knowledge at least once per year thereafter. Such list shall include at a minimum those substances identified by reference in Labor Code Section 6382(b)(1) and those substances identified additionally by reference in Labor Code Section 6382(d).

(b) A chemical is known to the state to cause cancer or reproductive toxicity within the meaning of this chapter if in the opinion of the state's qualified experts it has been clearly shown through scientifically valid testing according to generally accepted principles to cause cancer or reproductive toxicity, or if a body considered to be authoritative by such experts has formally identified it as causing cancer or reproductive toxicity, or if an agency of the state or federal government has formally required it to be labeled or identified as causing cancer or reproductive toxicity.

(c) On or before January 1, 1989, and at least once per year thereafter, the Governor shall cause to be published a separate list of those chemicals that at the time of publication are required by state or federal law to have been tested for potential to cause cancer or reproductive toxicity but that the state's qualified experts have not found to have been adequately tested as required.

(d) The Governor shall identify and consult with the state's qualified experts as necessary to carry out his duties under this section.

(e) In carrying out the duties of the Governor under this section, the Governor and his designates shall not be considered to be adopting or amending a regulation within the meaning of the Administrative Procedure Act as defined in Government Code Section 11370.

25249.9 Exemptions from Discharge Prohibition.

(a) Section 25249.5 shall not apply to any discharge or release that takes place less than twenty months subsequent to the listing of the chemical in question on the list required to be published under subdivision (a) of Section 25249.8.

(b) Section 25249.5 shall not apply to any discharge or release that meets both of the following criteria:

(1) The discharge or release will not cause any significant amount of the discharged or released chemical to enter any source of drinking water.

(2) The discharge or release is in conformity with all other laws and with every applicable regulation, permit, requirement, and order. In any action brought to enforce Section 25249.5, the burden of showing that a discharge or release meets the criteria of this subdivision shall be on the defendant.

25249.10 Exemptions from Warning Requirement.

Section 25249.6 shall not apply to any of the following:

(a) An exposure for which federal law governs warning in a manner that preempts state authority.

(b) An exposure that takes place less than twelve months subsequent to the listing of the chemical in question on the list required to be published under subdivision (a) of Section 25249.8.

(c) An exposure for which the person responsible can show that the exposure poses no significant risk assuming lifetime exposure at the level in question for substances known to the state to cause cancer, and that the exposure will have no observable effect assuming exposure at one thousand (1000) times the level in question for substances known to the state to cause reproductive toxicity, based on evidence and standards of comparable scientific validity to the evidence and standards which form the scientific basis for the listing of such chemical pursuant to subdivision (a) of Section 25249.8. In any action brought to enforce Section 25249.6, the burden of showing that an exposure meets the criteria of this subdivision shall be on the defendant.

25249.11 Definitions.

For purposes of this chapter:

(a) "Person" means an individual, trust, firm, joint stock company, corporation,company, partnership, and association.

(b) "Person in the course of doing business" does not include any person employing fewer than ten employees in his business; any city, county, or district or any department or agency thereof or the state or any department or agency thereof or the federal government or any department or agency thereof; or any entity in its operation of a public water system as defined in Section 4010.1.

(c) "Significant amount" means any detectable amount except an amount which would meet the exemption test in subdivision (c) of Section 25249.10 if an individual were exposed to such an amount in drinking water.

(d) "Source of drinking water" means either a present source of drinking water or water which is identified or designated in a water quality control plan adopted by a regional board as being suitable for domestic or municipal uses.

(e) "Threaten to violate" means to create a condition in which there is a substantial probability that a violation will occur.

(f) "Warning" within the meaning of Section 25249.6 need not be provided separately to each exposed individual and may be provided by general methods such as labels on consumer products, inclusion of notices in mailings to water customers, posting of notices, placing notices in public news media, and the like, provided that the warning accomplished is clear and reasonable. In order to minimize the burden on retail sellers of consumer products including foods,regulations implementing Section 25249.6 shall to the extent practicable place the obligation to provide any warning materials such as labels on the producer or packager rather than on the retail seller, except where the retail seller itself is responsible for introducing a chemical known to the state to cause cancer or reproductive toxicity into the consumer product in question.

25249.12 Implementation.

The Governor shall designate a lead agency and such other agencies as may be required to implement the provisions of this chapter including this section. Each agency so designated may adopt and modify regulations, standards, and permits as necessary to conform with and implement the provisions of this chapter and to further its purposes.

25249.13 Preservation Of Existing Rights, Obligations, and Penalties.

Nothing in this chapter shall alter or diminish any legal obligations otherwise required in common law or by statute or regulation, and nothing in this chapter shall create or enlarge any defense in any action to enforce such legal obligation. Penalties and sanctions imposed under this chapter shall be in addition to any penalties or sanctions otherwise prescribed by law.

SECTION 3.

Subdivision (d) of Section 25189.5 of the Health and Safety Code is amended to read:

(d) The court shall also impose upon a person convicted of violating subdivision(b) or (c) a fine of not less than five thousand dollars ($5,000) or more than [fifty (prior wording; strike out)] one hundred thousand dollars [($50,000) (prior wording; strike out)] ($100,000) for each day of violation except as further provided in this subdivision. If the act which violated subdivision (b) or (c) caused great bodily injury or caused a substantial probability that death could result, the person convicted of violating subdivision (b) or (c) may be punished by imprisonment in the state prison for up to 36 months, in addition to the term specified in subdivision (b) or (c), and may be fined up to two hundred fifty thousand dollars ($250,000) for each day of violation.

SECTION 4.

Section 25180.7 is hereby added to the Health and Safety Code as follows:

(a) Within the meaning of this section, a "designated government employee" is any person defined as a "designated employee" by Government Code Section 82019, as amended.

(b) Any designated government employee who obtains information in the course of his official duties revealing the illegal discharge or threatened illegal discharge of a hazardous waste within the geographical area of his jurisdiction and who knows that such discharge or threatened discharge is likely to cause substantial injury to the public health or safety must, within seventy-two hours, disclose such information to the local Board of Supervisors and to the local health officer. No disclosure of information is required under this subdivision when otherwise prohibited by law, or when law enforcement personnel have determined that such disclosure would adversely affect an ongoing criminal investigation, or when the information is already general public knowledge within the locality affected by the discharge or threatened discharge.

(c) Any designated government employee who knowingly and intentionally fails to disclose information required to be disclosed under subdivision (b) shall, upon conviction, be punished by imprisonment in the county jail for not more than one year or by imprisonment in state prison for not more than three years. The court may also impose upon the person a fine of not less than five thousand dollars ($5000) or more than twenty-five thousand dollars ($25,000). The felony conviction for violation of this section shall require forfeiture of government employment within thirty days of conviction.

(d) Any local health officer who receives information pursuant to subdivision(b) shall take appropriate action to notify local news media and shall make such information available to the public without delay.

SECTION 5.

Section 25192 of the Health and Safety Code is amended to read:

25192. (a) All civil and criminal penalties collected pursuant to this chapter or Chapter 6.6 (commencing with Section 25249.5) shall be apportioned in the following manner:

(1) Fifty percent shall be deposited in the [Hazardous Waste Control Account (prior wording; strike out)] Hazardous Substance Account in the General Fund.

(2) Twenty-five percent shall be paid to the office of the city attorney, city prosecutor, district attorney, or Attorney General, whichever office brought the action, or in the case of an action brought by a person under subdivision (d) of Section 25249.7 to such person.

(3) Twenty-five percent shall be paid to the department and used to fund the activity of the local health [officers (prior wording; strike out)] officer to enforce the provisions of this chapter pursuant to Section 25180.

If investigation by the local police department or sheriff's office or California Highway Patrol led to the bringing of the action, the local health officer shall pay a total of forty percent of his portion under this subdivision to said investigating agency or agencies to be used for the same purpose. If more than one agency is eligible for payment under this provision, division of payment among the eligible agencies shall be in the discretion of the local health officer.

(b) If a reward is paid to a person pursuant to Section 25191.7, the amount of the reward shall be deducted from the amount of the civil penalty before the amount is apportioned pursuant to subdivision (a).

(c) Any amounts deposited in the Hazardous Substance Account pursuant to this section shall be included in the computation of the state account rebate specified in Section 25347.2.

SECTION 6.

If any provision of this initiative or the application thereoreof is held invalid, that invalidity shall not affect other provisions or applications of the initiative which can be given effect without the invalid provision or application, and to this end the provisions of this initiative are severable.

SECTION 7.

To further its purposes this initiative may be amended by statute,passed in each house by a two-thirds vote.

SECTION 8.

This initiative shall take effect on January 1, 1987.