California Elections : Prop. 65: Toxics Calamity or Legal Catalyst?

Backers of Proposition 65, the anti-toxics initiative on the Nov. 4 ballot, say their purpose is to turn the current system for regulating hazardous chemicals upside down.

The history of regulating toxic substances, they say, is a pathetic tale of paralysis by government and industry, largely because no one has had any incentive to move quickly and boldly to limit exposure to chemicals likely to cause cancer, birth defects or sterility.

If Proposition 65 passes, said David B. Roe, an attorney for the Environmental Defense Fund and an author of the measure, businesses that use a suspected cancer-causing chemical would find it in their best interest to sit down with government officials and environmentalists to work out reasonable rules for release of the substance. If they did not, they would risk a flurry of costly citizen lawsuits.

‘Slices Right Through’

The measure, Roe said, “tries to cut through the Gordian knot, instead of untangling it. This slices right through.”

Proposition 65 would make industry want standards to be set for suspect chemicals rather than have to bear the burden of proof that their practices are safe, he said. “It flips the incentives.”

The opposition, however, argues that the ballot measure’s approach to the regulation of certain classes of toxic chemicals would effectively dismantle a regulatory system that punishes polluters and protects the public, and in so doing, would bring calamity to several of California’s most important industries. In effect, the measure would ban the use of many essential chemicals that can be used and disposed of safely, the opponents say.

“It’s an absolute disaster for electronics and aerospace, and for farmers,” said Michael Gagan, manager of the “No on 65” campaign.

And by exempting government from many of its requirements, he asserted, the ballot measure is fundamentally unfair. “If (the initiative) is genuinely concerned, as proponents say it is, with the public health, then it shouldn’t matter that what threatens health comes from business or government. This isn’t an anti-pollution initiative, it is an anti-business measure.”

The proposal would discard the idea that the risk of using a chemical may be acceptable because of its economic and environmental benefits, said Michele Corash, an attorney representing the anti-65 camp. “That is a startling development in environmental law that you can’t consider trade-offs,” she said.

Each side in the sometimes bitter debate over Proposition 65 has accused the other of overstatement, ulterior motives and even deliberate deception. Public opinion polls so far indicate that voters favor the measure.

Backers point out that the opposition has been bank-rolled by big oil and chemical companies, by agricultural interests, by the defense industry and by high-tech companies--all of which depend heavily on potentially hazardous chemicals.

‘Toxics Hysteria’

The opponents accuse the measure’s supporters of trading on what California Chamber of Commerce President Kirk West calls “toxics hysteria.”

Politicians have thrown themselves into the controversy, with several of the state’s leading Democrats urging voters to consider the measure as a litmus test of a candidate’s position on environmental issues.

U.S. Sen. Alan Cranston, one of the measure’s early backers, has attacked his Republican opponent, Rep. Ed Zschau, for opposing it. The measure has played an even larger role in the governor’s race.

Los Angeles Mayor Tom Bradley, whose chief deputy, Tom Houston, is another of the initiative’s authors, has strongly endorsed Proposition 65 and made it a key part of his own campaign for governor. Republican Gov. George Deukmejian is opposed, and his advisers have charged that the measure is politically motivated.

Deukmejian says he objects to the measure, in part, because it puts “an unbearable burden” on businesses and farmers but “exempts large admitted polluters like the City of Los Angeles”--a thinly disguised reminder that under Bradley, Los Angeles has been fined, and recently agreed to pay, $650,000 for dumping sewage into Santa Monica Bay.

In television commercials and on billboards, the No on 65 Committee has hammered away at exemptions built into the measure, primarily for government and water systems, whether public or private.

Why was government exempted? A measure that included government would be much more complex and lengthy than the relatively simple initiative that is on the ballot, Roe said.

Carl Pope, Sierra Club political director and another of the measure’s authors, contends that the measure’s system of penalties would have made no sense if applied to government. “It would mean moving $2,500 from one pocket to another,” he said.

Pope said that the aim of the drafters was to get at the sources of pollution, not at city dumps, water supplies and sewage systems that act as conduits passing along pollution generated by private parties. Supporters of the initiative pointed out that a Deukmejian toxics task force reported that 134 companies are responsible for generating 60% of all the hazardous waste produced in California.

Exempted by Regulation

“We’re not interested in regulating conduits,” Pope said, and he added that farmers using contaminated water on their crops and industries putting treated water back in the ground after removing most pollutants could be exempted by regulation from the initiative’s discharge requirements.

Another backer of Proposition 65, Los Angeles Dist. Atty. Ira Reiner, would simply remove the government exemption. “I would join with (Deukmejian) to amend the initiative in the Legislature to include government,” Reiner said in response to the Deukmejian position.

Both sides agree that if the ballot measure passes, it probably would set state government officials scurrying in an effort to make the initiative work with the least possible disruption, before its key provisions take effect in 1988.

Crucial terms in the initiative--what level of chemical constitutes a “significant risk” and what kind of exposure warnings are “clear and reasonable”--would have to be carefully defined by state regulation, or else would be left to the courts to decide in resolving citizen lawsuits permitted by the initiative.

“If it passes, we will try to find a way to make it work,” said Corash, the No on 65 attorney. “The way is not self-evident. We’re talking about what happens if a law that makes very little sense and undoes environmental law passes. One would expect people will do their best to avoid a catastrophe.”

‘Everyone Has an Interest’

The Sierra Club’s Pope said: “The thing will not work unless state government defines the terms. No one wants to end up with judges deciding what all this means. Everyone has an interest, an incentive to have these standards set.”

And already, the authors of the initiative are committed to backing some legislative changes--permitted with a two-thirds vote of both the Assembly and Senate--if the voters approve the measure.

The key provisions of the initiative would:

- Require the governor by March 1 to produce a list of chemicals “known to cause cancer or reproductive toxicity.” At a minimum, the measure requires a listing of more than 200 chemicals identified as likely to cause cancer by scientific committees for the International Agency for Research on Cancer and the U.S. National Toxicology Program. Other chemicals would be added if the “state’s qualified experts” agree that “scientifically valid testing” has shown a substance to cause either cancer or reproductive effects, a term that includes birth defects, miscarriages, stillbirths and sterility.

- Stop any business employing 10 or more people from knowingly releasing any of the suspect chemicals into sources of drinking water, beginning 20 months after a substance is added to the governor’s list. However, such a discharge would be permitted if the business could show that the amount posed “no significant risk” to the public. Proponents say that a state agency named by the governor would probably define the allowable releases for each listed chemical, removing the burden of proof from industry. Otherwise, the allowable levels could be contested in court.

- Force businesses to warn employees, neighbors and consumers that they are being exposed in air, water, food or direct contact to any of the hazardous chemicals, beginning 12 months after a substance is added to the governor’s list. Exposure at a level that business could show poses no significant risk would be exempted. But again, the burden of proof would be on the business to show that there is no threat to health, unless a state agency sets allowable exposure levels. The warnings must be “clear and reasonable,” but could be accomplished in a variety of ways, including warning labels, posting of signs, or advertisements, as long as the method of warning could be shown to be effective.

- Establish new civil penalties of $2,500 a day for each violation, and allow anyone to file suit against those who failed to comply with the warning or discharge requirements. An individual filing suit, however, would not be allowed to go ahead without first notifying the state attorney general and the local district attorney, either of whom would have 60 days to decide whether to take over prosecution of the case. Citizens who were successful would be awarded 25% of the fines--an incentive for citizen suits that opponents have labeled a “bounty hunter” provision.

- Double criminal penalties for dumping of hazardous wastes in violation of existing law to a maximum of $100,000 a day. If the illegal act could be shown to be a potential cause of death or serious injury, the penalty would jump to $250,000 a day and would add up to three years in prison as well.

The actual impact of the measure would depend on how it was implemented, concluded a report prepared by the staff of the Assembly Environmental Safety and Toxic Materials Committee. If the governor decided to do only the minimum required under law, leaving it to industry to prove in court what levels of exposure represent “no significant risk,” then the result would be fraught with uncertainty for California businesses. Most would choose “to reduce their legal exposure by moving away from the use or discharge of listed chemicals,” the report said.

The critics of the measure say that the difficulty of determining what level is safe would mean that discharge of any amount of the chemicals on the governor’s list would be prohibited, even if scientists should agree that a certain level is perfectly safe.

Studies Would Provide Data

But initiative authors Roe and Pope say that assertion is nonsense. No chemicals will be listed by the governor unless animal studies have been conducted that strongly suggest that the chemical causes cancer or adverse reproductive effects. Those studies would provide the data needed to show what levels of discharge are indeed safe.

Pope adds that only a relatively small number of the listed chemicals are in widespread commercial use--perhaps only 50 or 60.

No more than 20 of the listed chemicals are pesticides, a Senate Office of Research staff report concluded. As a result, the measure “appears to have little or no effect on more than 250 crops cultivated in California,” the report said.

And for several industrial chemicals, alternatives are available, and switching over to less risky substances is part of what the initiative’s drafters say they are trying to accomplish.

But the Assembly committee staff report described another scenario as well, one in which the governor would put the executive branch of state government to work to remove the uncertainty and assume responsibility for determining safe levels of listed chemicals. Guidelines on how to do it have already been written by Department of Health Services officials. The effort, however, would not be inexpensive.

‘Vast Expenditures’

“Writing a standard (for acceptable levels of exposure to a specific chemical) takes years and several million dollars,” said Corash, who was general counsel to the U.S. Environmental Protection Agency but now lists Chevron U.S.A. among her clients. “Nothing contained in the initiative contemplates vast expenditures of resources.”

Those on both sides of the debate point to government rule-making that has gone on for years in faltering efforts to set safety standards for known carcinogens such as formaldehyde, pentachlorophenol, benzene and chloroform--commonplace chemicals that are found in wood products, fuels and chlorinated drinking water.

Opponents argue that the problem is scientific uncertainty about setting standards for human exposure based largely on animal experiments. “It is not an area of black or white,” Corash said. “Scientists all talk about the uncertainties.”

Pope and Roe argue, however, that the process of determining safe levels of cancer-causing chemicals has been lengthy and expensive largely because the affected industries have fought regulation at every step. The present system, Pope said, is “a great game of find-a-loophole.” When it is in a manufacturer’s interest to produce animal and worker studies that would establish safety limits, they will rush to do so, he contended.

However, setting an enforceable limit for the outlawed pesticide DBCP, a cancer-causing chemical found in high concentrations in water wells in the San Joaquin Valley, may cost $200,000 before the work is completed, according to one state health official who asked not to be identified.

Amendments Agreed Upon

Developing standards and listing chemicals that could have reproductive effects could cost the state $10 million and take from three to six years if done properly, concluded Dr. Alexander Kelter, an acting deputy director of the state Department of Health Services, in recent testimony before the Legislature.

The drafters of the initiative have already agreed to support several amendments to their measure. To win an endorsement from the California District Attorneys Assn., Roe promised to support amendments that would give prosecuting attorneys an additional 60 days to decide whether to take over the prosecution of a citizen-generated lawsuit. He also agreed to give the prosecutors 50% of the civil penalties collected in a successful case rather than 25%.

How Californians vote on the issue may hinge on how well they think they are already protected.

“If the existing system worked the way it was supposed to, Proposition 65 would have no effect,” Roe said. “When we went out to gather signatures (to qualify the initiative for the ballot) people asked, ‘Isn’t this what the law already says?’ ”

“We already have stringent laws,” the California Chamber’s West said. “They are the model for the entire country for dealing with pollution.”