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 firstname.lastname@example.org August 2004