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ENFORCEMENT OF PROPOSITION 65

California’s Proposition 65, Cal. Health & Safety Code §§ 25249.5 et seq., can be enforced by either private enforcers or public prosecutors. A number of different factors combine to make the statute enforcer-friendly, including (1) its expansive scope (2) its unresolved ambiguities (3) its substantial statutory penalties and (4) its rewards for enforcement.

Unlike other environmental laws, Proposition 65 covers an exceptionally broad range of activities and environmental media with a single, simple statute.  For example, consider a hypothetical manufacturing facility in California that produces air emissions containing a listed chemical.  This manufacture could be subject to regulation by the local air quality management district, regional water board, state and federal environmental protection agencies, and state and federal departments of occupational health and safety, each exercising its own limited jurisdiction. Moreover, if the emissions contain lead, copper, asbestos, or any of a number of other chemicals, the plant also would be subject to special rules governing those particular substances.  By contrast, Proposition 65 folds all of these regulated areas (air, water, hazardous waste, consumer protection, worker safety, and the like) into the realm of a single enforcement statute.

The California Supreme Court has bolstered this expansive application: “In sum, we consider Proposition 65 to be a remedial statute intended to protect the public from, among other things, toxic contamination of its drinking water. We construe the statute broadly to accomplish that protective purpose.”  People v. Superior Court (American Standard), 14 Cal. 4th 294, 314 (1996). This statement is frequently recited by Proposition 65 enforcers as having cleared any possible hindrance to their comprehensive and creative enforcement actions.

California Proposition 65 provides that anyone who has violated the discharge prohibition (or the warning provision) shall be liable for fines of up to “$2,500 per day for each such violation in addition to any other penalty established by law.” Cal. Health & Safety Code § 25249.7(b). Because just one violation per day for a year amounts to nearly $1 million, the potential fines can be enormous. (One-fourth of the penalty is kept by the private enforcer or public prosecutor bringing the claim.)

Perhaps the most important factor contributing to the growth of Proposition 65 as an environmental enforcement statute is the opportunity for individuals to bring private enforcement actions and obtain not only their attorneys’ fees for doing so, but also 25 percent of the civil penalties recovered.  These private enforcers have begun to file an increasingly diverse array of discharger cases.

The California Proposition 65 Attorneys at Custodio & Dubey are extremely experienced in representing private enforcers in Proposition 65 cases. They are aggressive and innovative litigators dedicated to getting the best result for their clients. Call them toll free at (213) 785-2909 for a free consultation of your case, 24 hours a day, and 7 days a week. You can also fill out our online consultation form and an attorney will contact you as soon as possible.

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