CONDUCT REGULATED BY PROPOSITION 65
California’s Proposition 65, Cal. Health & Safety Code §§ 25249.5 et seq., regulates two distinct types of conduct: (1) exposures of persons to listed chemicals and (2) discharges of listed chemicals into sources of drinking water.
Proposition 65’s warning requirement provision governs warnings to anyone exposed to listed chemicals. The warning requirement provides that “no person … shall knowingly and intentionally expose any individual to a [listed chemical] without first giving a clear and reasonable warning”. The regulated exposure levels for most chemicals are at least an order of magnitude lower than any other federal or state standards, and the provision regulates a broad array of consumer, occupational, and environmental exposures. Nevertheless, alleged violations may be cured simply by providing an appropriate warning.
Proposition 65 exempts from its requirements the exposure or discharge of listed chemicals at levels that pose no significant risk to individuals or the environment. If there is no significant level for a listed chemical provided in the regulations, the alternative to providing a warning is to perform a qualitative risk assessment to demonstrate that the level of exposure to, or discharge of, the listed chemical does not pose a significant risk.
Proposition 65’s discharge regulation, the first operative section of Proposition 65 is titled “Prohibition on Contaminating Drinking Water with Chemicals Known to Cause Cancer or Reproductive Toxicity” and requires that “no person shall … knowingly discharge or release a [listed] chemical … into a source of drinking water.” Cal. Health & Safety Code § 25249.5. Missing from this section is the qualifying language found in the exposure regulations: “without first providing a warning”. Accordingly, one cannot cure an alleged discharge violation simply by providing an appropriate warning. The only cure is to cease the discharge.
To illustrate the distinction between the discharge and exposure provisions, consider a hypothetical manufacturing facility in California that produces air emissions containing a listed chemical. If neighbors of the plant are exposed to those emissions, the plant operators can avoid violating the statute by providing a warning. However, if those emissions also deposit a significant amount of a listed chemical into water or onto land where it will more likely than not pass into a source of drinking water, the facility also will violate the discharge prohibition. Because there is no safe-harbor for abating the discharge violation, such as the exposure warning, the plant must capture or stop the emissions until it finds a long-term solution.
The discharge prohibition also applies a lower threshold than the warning requirement for purposes of proving a culpable mental state. Proposition 65 regulates discharges or releases that are performed “knowingly”. By contrast, the warning provision applies only to exposures that occur both “knowingly and intentionally”.
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