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Outlining Proposition 65 Amendments to California Water Regulation

By Chris Waller

Nearly every building in California has a sign that reads, “Warning: This area contains a chemical known to the State of California to cause cancer.” That is due to the requirements of California’s Safe Drinking Water and Toxic Environment Act of 1986, better known as Proposition 65 or Prop 65.

On September 2, 2016, the California’s Office of Environmental Health Hazard Assessment (OEHHA) issued final amendments to the Proposition 65 regulation (California Health and Safety Code §25600 – 25607.9), which overhauled the requirements for Clear and Reasonable Warnings.  Due to the amendments, business owners, property managers, and other facility professionals all need to comply with the new requirements before the effective date of August 30, 2018 in order to avoid potential regulatory violations and lawsuits.

In 1986, California voters approved Proposition 65 in response to growing concern about exposure to toxic chemicals. Prop 65 requires businesses to notify the public about potential exposure to listed chemicals through products they purchase, at their homes or workplaces, or through environmental release.  This notification process is codified in Article 6 of Title 27 of the California Code of Regulations, and is titled “Clear and Reasonable Warnings.”

Since its enactment, thousands of lawsuits have been filed against businesses and facilities that fail to provide adequate warnings.
Under the old regulation, Prop 65 warnings were required to state that a product, area, or business may expose Californians to chemicals known to the state to cause cancer or reproductive harm.  Under the amended regulation, the warning must include the name of the chemicals which the public may be exposed.  This requires more extensive knowledge and testing of products or exposure areas, and additional attention to detail when preparing and issuing signs and notices.  In addition, the address for a Prop 65 informational website must be included in the warning. 

The new regulations have separate warning requirements for consumer products, food products, and environmental exposure.  Detailed requirements can be found on the OEHHA website.

One of the goals of the recent amendments is to reduce lawsuits related to Proposition 65.  However, the final rule may have the opposite effect due to the complexity of the new warning requirements.  Managers of industrial facilities required to send out quarterly notices will need to update their public notice content and delivery method to meet the new requirements.  Additional analysis or modeling may be necessary to develop the map that is required in the content of the notice.  Building owners and managers will be required to determine which listed chemicals are present in their living and working spaces and develop new warning signs that include the specific chemicals. Manufacturers and distributors of consumer products need to start redesigning their labels on products sold in California.

In general, the new amendments have made the warning requirements more specific, which may provide the public with more information. However, they have increased the burden on facilities required to provide the warnings and opened the door for a new round of lawsuits once the requirements become effective in August 2018.

Chris Waller is a Senior Consultant at Alta Environmental. For more information, please contact Chris at chris.waller@altaenviron.com or (888) 608-3010, or visit www.altaenviron.com.  

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posted on 1/18/2017