Why Employers Should Worry about Prop65
(and what they can do about it)!
Proposition 65 (a.k.a., Prop 65 or Prop65) is a California law that was passed
by statewide ballot in 1986 and is enforced by Cal/EPA.  Prop 65 requires
companies to notify their employees and the public of any substances that
one is exposed to as the result of being employed by the company or by
using the company's products.
In the Proposition 65 summary prepared by the California Office of Environmental
Health Hazard Assessment (a branch of Cal-EPA), it states that:"
A business is required
to
warn a person before 'knowingly and intentionally' exposing that person to a listed
chemical. The warning must be '
clear and reasonable'. This means that the warning
must: (1) clearly make known that the
chemical involved is known to cause cancer,
or birth defects or other reproductive harm; and (2) be given in such a way that it will
effectively reach the person before he or she is exposed".
For illustration purposes, let's focus on materials that cause birth defects; the
principles involved apply to the other categories of Prop65 materials as well. Notice the
word is "materials" rather than "chemicals", because many of the items on the official
Prop65 list are solid metals (e.g., Lead).
How does Management of a company inform a pregnant employee, who handles
hazardous chemicals in her job as an R&D technician, that one of those chemicals has
a Prop65-listed ingredient that may injure her unborn child? A more difficult question
is: How does management know which of those ingredients cause birth defects
specifically? A generic "safe harbor" sign on the employee entrance is inadequate for
this purpose since it does not "effectively" warn the employee; without specific
information as to which chemical to avoid, her only option may be  to quit her job.
Furthermore, since pregnancies last about 3 fiscal quarters, and since California
updates the Prop65 List once or twice a quarter, how does Management ensure that
the warning given to the employee is updated (expanded) in a timely manner? No time
limit for warning is allowed under the OSHA Hazardous Communication Standard
("Right to Know") or California's Injury & Illness Prevention Plan (SB198).
The best way for an employer to comply with Prop65 is to create an electronic list
(a software database) of all the materials (solids, chemicals, gases) used or stored in
the company, to identify which materials on the list contain substances that are also on
the official Prop65 list, and to update the company's list whenever either a new
material is purchased or a new substance is added to the official Prop65 list. That
official list is found at:
       http://www.oehha.ca.gov/prop65/prop65_list/Newlist.html

An "electronic list" is best, because after the initial manual comparison of it versus
the almost 700 substances on California's official Prop65 list, subsequent changes to
the official list by Cal/EPA (e.g., addition of a new substance) can be relatively easily
compared to the company's list, using the "search" feature of whatever software
program was used to create the company's database (e.g., Excel(tm), Access(tm),
Word(tm), or HazMat65(tm)).
Ignoring the requirement to inform employees is not an option, because failing
to carry out your responsibilities in this regard can lead to large fines, that are levied
per day that the violation has occurred. Because the Prop65 law explicitly encourages
citizens to inform on violators (the informants get 25% of any fines levied), there are
full-time Prop65 bounty hunters who make a good living at searching out scofflaws and
turning them in to the State  The California Attorney General reports that, during a 15
month period from 2000 to 2001, a total of 277 cases were initiated against one or
more companies, that resulted in fines and settlements totalling almost $15,000,000 (a
total that is more than double the fines taken in by Cal-OSHA for all non-Prop65
work-place violations, combined). Bounty hunters initiated 266 of those cases.

John N. Zorich, Jr., MS, CQE
johnzorich@yahoo.com
August 2004
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