OVERVIEW - Andrews Kurth

OVERVIEW - Andrews Kurth

EDUCATION CONFERENCE NOVEMBER 6-9, 2016 NEW PROP. 65 WARNING REGULATIONS: MORE LITIGATION COMING? Malcolm Weiss, Esq. [email protected] Hunton & Williams LLP INTRODUCTION The Safe Drinking Water and Toxic Enforcement Act of 1986 aka Proposition 65 Overview Exposure warning and discharge prohibition Roles -- OEHHA, DOJ, Private New warning regulations

Impacts to mining industry Focus on compliance Materials Text of new warning regulations Side by side (old/new) comparison PROP. 65 OVERVIEW Applies to businesses with 10 or more employees Requires clear and reasonable warnings (HSC 25249.6) cancer birth defects or other reproductive harm

Prohibits knowing discharge of listed chemicals into sources of drinking water (HSC 25249.5) Enforcement: AGs Office, DAs, City Attorneys Individuals acting in the public interest Penalties up to $2,500 per violation, per day! $2,500 x 365 = $912,500 Attorney fees

Legal/preemption/constitutional challenges generally unsuccessful CHEMICAL LIST Over 900 chemicals listed Carcinogens No Significant Risk Level (NSRL) Reproductive/developmental Maximum Allowable Dose Level (MADL) List contains naturally occurring and synthetic chemicals many in common household or commercial products foods, drugs, dyes, cleaners, clothing, consumer products by-products of activities such as mining, chemical

processes and fuels. TYPES OF EXPOSURES Consumer product exposure -- exposure that results from a persons acquisition, purchase, storage, consumption, or any reasonably foreseeable use of a consumer product, including consumption of a food. Occupational exposure -- exposure to any employee at his or her place of employment. Environmental exposure -- exposure that occurs as the result of contact with an environmental source, such as air, water, soil, vegetation, or substances or objects, through inhalation, ingestion, or skin contact. Exposures that are not consumer product or occupational are environmental.

3 for 3 CONDITIONS FOR PRIVATE ENFORCEMENT Brought in the public interest by anyone. No public prosecutor diligently enforcing. 60-Day Notice of Violation Product or activity at issue Chemical(s) at issue Routes of exposures PROP. 65 - UNIQUE ISSUES May be enforced by the public Attorney's fees Penalties and fees in lieu of penalties

Injunctive relief including Reformulation (exposure reduction) Warnings The burden of proof of exposure Initially on Plaintiff But easily switched to Defendant DISCHARGE PROHIBITION Prohibits discharge of Prop. 65 listed chemicals into sources 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 adopted by a regional board as

being suitable for domestic or municipal uses. Historically few such cases, but increasing lately. Settlements include injunctive terms and monetary payments. SETTLEMENTS 2011 2012 2013 2014 2015

Total # of settlements 338 437 352 663 582 Settlement Payments

$16,286,728 $22,560,022 $17, 409,756 $29,482,280 $26,226,761 Attorneys fees $11,941,918 $15,588,766

$12,731,262 $17,828,941 $21,047,746 AMENDMENTS: GOVERNORS GOALS Cap or limit attorneys fees Require stronger demonstration by plaintiffs that they have information to support claims Require greater disclosure of plaintiffs info. Provide the State with the ability to adjust the level at which warnings are needed

Require more useful information to the public regarding exposures and protections NEW WARNING REGULATIONS Initial draft published in 2013 Nearly every commercial/industrial sector commented on the proposal Multiple drafts Finally approved in August 2016 Effective August 2018 WARNING AMENDMENTS SAFE HARBOR: Voluntary safe harbor language that would be deemed clear and reasonable IMPACTS RELATION BETWEEN MANUFACTURERS AND

RETAILERS SUPPLEMENTAL INFORMATION ALLOWED NAMING CHEMICALS: At least one chemical has to be named for each endpoint METHOD OF WARNING TRANSMISSION WARNING CONTENT LANGUAGES INTERNET SALES: Warnings on website, prior to purchase PRODUCT, CHEMICAL AND AREA SPECIFIC SAFE HARBOR LANGUAGE Specific Warnings Of Interest

Diesel Engine Exposure Vehicle Exposure Enclosed Parking Facility Exposure Petroleum Products Designated Smoking Area Exposure DIESEL ENGINE EXPOSURE (Except Passenger Vehicle Engines) Methods of Transmission: Printed in Owners Manual

A label is easily visible to the operator or On screen display Content: WARNING Breathing diesel engine exhaust exposes you to chemicals known to the State of California to cause cancer and birth defects or other reproductive harm. Always start and operate the engine in a well-ventilated area. If in an enclosed area, vent the exhaust to the outside. Do not modify or tamper with the exhaust system. Do not idle the engine except as necessary. For more information go to www.P65warnings.ca.gov/diesel VEHICLE EXPOSURE Methods of Transmission: Printed in Owners Manual and On a label attached to drivers side front window

Content: WARNING: Operating, servicing and maintaining a passenger vehicle or offroad vehicle can expose you to chemicals including engine exhaust, carbon monoxide, phthalates, and lead, which are known to the State of California to cause cancer and birth defects or other reproductive harm. To minimize exposure, avoid breathing exhaust, do not idle the engine except as necessary, service your vehicle in a well-ventilated area and wear gloves or wash your hands frequently when servicing your vehicle. For more information go to www.P65Warnings.ca.gov/passenger-vehicle. ENCLOSED PARKING FACILITY EXPOSURE Methods of Transmission: On a 20 x 20 inch sign posted at each public entrance to the enclosed parking facility and Must be in English and any other language in which other

entrance signage is in the facility Content: WARNING: Breathing the air in this parking garage can expose you to chemicals including carbon monoxide and gasoline or diesel engine exhaust, which are known to the State of California to cause cancer and birth defects or other reproductive harm. Do not stay in this area longer than necessary. For more information go to www.P65Warnings.ca.gov/parking PETROLEUM PRODUCTS Methods of Transmission: Methods in 25604 and Provided in languages other than English where other signage is in other languages

Content: WARNING: Crude oil, gasoline, diesel fuel, and other petroleum products can expose you to chemicals including toluene and benzene, which are known to the State of California to cause cancer and birth defects or other reproductive harm. These exposures can occur in and around oil fields, refineries, chemical plants, transport and storage operations, such as pipelines, marine terminals, tank trucks, and other facilities and equipment. For more information go to: www.P65Warnings.ca.gov/petroleum DESIGNATED SMOKING AREA EXPOSURE Methods of Transmission: Provided on an 8 by 11 inch sign posted both at the

entrance to and within the area in which the exposure occurs Content: WARNING: Breathing the air in this smoking area can expose you to chemicals including tobacco smoke and nicotine, which are known to the State of California to cause cancer and birth defects or other reproductive harm. Do not stay in this area longer than necessary. For more information go to www.P65Warnings.ca.gov/smoking-areas LISTING OF ASPHALT OEHHA publicly assessing potentially listing asphalt at the Carcinogen Identification Committee meeting on Nov. 15th, 2016 CIC will discuss whether asphalt should be listed and what priority it should be given. If it is given low priority then there

is a chance that it will not be listed at all It may be superfluous FOCUS ON COMPLIANCE Conduct a compliance assessment Chemicals of concern Locations of concern Warning transmission methods Warning content Long form warning or WARNING: Cancer and Reproductive Harmwww.P65Warnings.ca.gov. Consider up stream and down-stream issues Evaluate and revise business agreements WARNING: Entering this area can expose you to chemicals known to the State of California to cause cancer and birth defects or other reproductive harm, including

diesel exhaust known to cause cancer, from operating equipment and tobacco smoke known to cause birth defects or other reproductive harm, from smoking areas. For more information go to www.P65Warnings.ca.gov FOCUS ON COMPLIANCE Understand the new requirements WARNING: This area contains chemicals known to cause cancer, birth defects and other reproductive harm. ADVERTENCIA: Al entrar en esta zona puede quedar expuesto a sustancias qumicas conocidas en el Estado de California como causante de cncer, defectos de nacimiento u otros daos reproductivos, incluyendo las emisiones de diesel sabe que causan cncer, desde el equipo de operacin y el humo del tabaco se sabe que causa defectos de nacimiento y otros daos reproductivos, a partir de las zonas de fumadores. Para obtener ms informacin, visite www.P65Warnings.ca.gov

[note translation is not accurate] NEW PROP. 65 WARNING REGULATIONS: MORE LITIGATION COMING? Malcolm Weiss, Esq. [email protected] Hunton & Williams LLP

Recently Viewed Presentations

  • SESSION OBJECTIVES 1. f-Block elements 2. Introduction to

    SESSION OBJECTIVES 1. f-Block elements 2. Introduction to

    SESSION OBJECTIVES f-Block elements Introduction to lanthanides Oxidation state lanthanide contraction Chemical reactivity Introduction of Actinides Comparison of actinides with lanthanides INNER TRANSITION ELEMENTS The elements in which the additional electron enters (n-2)f orbitals are called inner transition elements.
  • 3. SteelCentral Aternity - Roadmap - March 2017

    3. SteelCentral Aternity - Roadmap - March 2017

    <sales, if you run this deck in slide show mode, you'll get a hyperlink by hovering over the top black section of each of the 4 columns. If you click on the hyperlink, you'll be brought to the section in...
  • Let&#x27;s Write Numbers

    Let's Write Numbers

    Let's Write Numbers An interactive number formation activity Notes for teachers Just click on the numbers and the magic pencil will show you how to write them correctly. Have Fun! Click here at any time to return to the choice...
  • Abdominal Wall and Cavity - Larry Frolich

    Abdominal Wall and Cavity - Larry Frolich

    (back to basic body plan) [board drawing] Peritoneal vs Retroperitoneal THORAX SURFACE ANATOMY Student who cheated in anatomy lab: counted own ribs Males and Females have same number of ribs (no, Eve wasn't formed from one of Adam's) BONES STERNUM...
  • Top 10 Tools for Teaching Science - Montgomery County Schools

    Top 10 Tools for Teaching Science - Montgomery County Schools

    Slap. Hot potato. Connect Four. Battleship. Pong. Beach ball. Oh Deer!! Hunting Minibeasts. Acorns!! The Game of Life: Stem Cells. Music as a Teaching Tool. Music is known to affect our feelings and energy . levels. It can prompt memories,...
  • P E T S - junior1b

    P E T S - junior1b

    P E T S THE BASIC NEEDS OF PETS food water shelter love FOOD Most animals need to be fed once or twice a day. Never give chocolates to your pet. Never give your pet people food. WATER Your pet...
  • New Jersey Department of Labor and Workforce Development

    New Jersey Department of Labor and Workforce Development

    education training employment housing community participation IPE-DVRS_____ The IPE will probably be a continuation of secondary school transition plans to include post school life issues with emphasis on an employment outcome The IPE is an agreement between the student and...
  • Annual ITIB Recommended Technology Investment Projects (RTIP ...

    Annual ITIB Recommended Technology Investment Projects (RTIP ...

    Slide up on main screen - Switch of to Co-facilitator - this title screen gives time to the make the switch from the podium. Optional - Project side screen #2 Explain diagram - Start with green box (top of the...