Prop. 65 Battle Focuses on Issue of Exemptions

In TV commercial after TV commercial and on billboards scattered throughout the state, opponents of Proposition 65 lash out at the anti-toxics measure--not because it would be too tough on industry, but for exempting government agencies.

The central theme of the anti-initiative advertising is, “Vote no on Proposition 65. It’s full of exemptions.”

And while there are several exemptions built into the measure, which would limit the release of chemicals thought to cause cancer and birth defects, the opposition ads focus almost exclusively on one: the exemption for government.

“To be fair, a law ought to apply equally to everyone,” contended Michael Gagan, manager of the No on 65 campaign. “Public institutions take far less care of toxic materials than private ones.”

Backers of the measure dispute his claim and argue that a relatively small number of big companies are responsible for the largest share of the state’s hazardous waste.

“Proposition 65 keeps businesses from being tempted to make extra profits by cutting corners on toxics safety,” states a brochure prepared by the Yes on 65 campaign committee.

Even in cases where government-run facilities have been identified as sources of pollution, it is industry that is largely responsible, argues another pro-initiative document: “Sewer systems and municipal landfills may contain substantial amounts of toxics, but the source of those toxics is industry, not government.”

“If that (the exemptions argument) is the best they can come up with, I don’t think a lot of people will believe them,” said one of the initiative’s authors, David B. Roe, an attorney for the Environmental Defense Fund. “People won’t believe it when Chevron says, ‘We don’t like this law because it’s not tough enough.’ That’s just not very credible.”

Chevron Corp. is a major contributor to the No on 65 campaign.

Proposition 65 would require the governor to prepare a list of chemicals believed to cause cancer or reproductive effects, including birth defects, miscarriages and sterility. Initially, the list would include more than 200 cancer-causing substances identified by two widely respected scientific panels, in most cases relying on animal experiments.

The measure would bar businesses with 10 or more employees from releasing any of the listed chemicals into sources of drinking water unless the firms were prepared to show that the amounts posed “no significant risk” of causing cancer or were at one-thousandth the level shown to have “no effect” on reproduction. Businesses that intentionally expose workers or consumers to the listed materials would have to warn them of the exposure. Firms that violate the initiative would be subject to fines of as much as $2,500 a day.

Any citizen could file a lawsuit and, if successful, collect 25% of the penalty--unless a local prosecutor or the state attorney general chose to take over the case.

Exemptions Listed

Exempt from the initiative’s provisions, however, would be all public agencies and any drinking water system, whether public or private.

Opponents contend that the drafters decided to exclude government because of the potential costs. “If they included government, the onus would be on the taxpayer,” said Gagan of the No on 65 group. “They would have virtually every government jurisdiction down on their necks.”

Gagan also charged that the initiative was tailored to fit this year’s governor’s race, which again pits Los Angeles Mayor Tom Bradley against Gov. George Deukmejian. Bradley endorsed Proposition 65; Deukmejian opposes it.

Bradley has made Deukmejian’s record on toxic cleanup and enforcement--as well as his position on Proposition 65--a central theme in his campaign.

Protecting City

Gagan contended that Bradley’s top advisers, who helped draft the initiative, purposely excluded government to protect the City of Los Angeles, which recently agreed to pay $650,000 in fines for dumping sewage into Santa Monica Bay.

But environmentalist attorney Roe emphatically denied the allegation and accused the No on 65 campaign of trying to score points for Deukmejian.

“They know that chromium (a cancer-causing metal found in Santa Monica Bay and elsewhere) isn’t going into sewers from ordinary households,” Roe said. The measure would attack the pollution at its source, big businesses that produce the biggest volumes of hazardous waste, he said.

The drafters of the ballot initiative--a group that includes Bradley’s top deputy, Tom Houston--”had to decide where to draw lines to get to the heart of the problem and not get lost in a lot of tricky side issues,” Roe said.

“When writing an initiative, you know that it is going to get distorted,” he said. “You know that your opponents are going to ransack it, looking for examples of the worst that is going to happen.”

Less Vulnerable

By excluding government, Roe said, the drafters could keep the measure relatively brief and simple--and much less vulnerable to attack. “In theory, it was possible to cover all government functions, but it would take an awful lot of specialized rules,” he said.

As an example, he cited chlorination, a process used by water districts to kill bacteria in drinking water.

“We knew from experience that if this (the initiative) covered chlorination, they (opponents) would say that this initiative would cause typhoid,” Roe said.

Opponents say that the pro-initiative argument on chlorination helps make their point.

“If these standards made any sense, they make at least as much sense if applied to government as well as business,” said Michele Corash, an attorney who has represented Chevron and is now devoting much of her time to the No on 65 campaign at her law firm’s expense.

Major Sources

She and others opposed to the initiative note that water districts, military bases, municipal dumps and sewage treatment plants are all major sources of pollution and that all are exempt under Proposition 65.

“Chlorination illustrates the problems with this initiative,” Corash said.

The problem with the chlorination process is that it also produces significant amounts of chloroform and other chemicals believed to cause cancer.

The U.S. Environmental Protection Agency allows up to 100 parts per billion of these chemical contaminants, called trihalomethanes, in drinking water. While the amounts permitted are extremely small, they are large enough to cause some concern. The EPA calculated that lifetime consumption of water containing the maximum permitted amount could add 200 additional cases of cancer for every million people exposed--200 times the risk that many public health experts believe is acceptable.

Carbon filtration of drinking water is one way to reduce the need for chlorination, but water districts have resisted that costly method.

Wants Same Trade-Offs

“The same kinds of judgments involved in the decision to chlorinate drinking water are involved in lots of other uses of chemicals in our society,” said Corash, who argued that similar trade-offs of costs and benefits ought to be allowed both private industry and public agencies.

Roe argued that chlorination is, in fact, a special case and is raised by opponents as a way of obscuring their real purpose: to block a measure that would rev up a regulatory system that has moved only sluggishly against industrial sources of chemicals that cause cancer and birth defects.

“At one point, they (opponents) are saying the thing is not tough enough,” Roe said. “On the other hand, they are saying it is much too tough. There are too many loopholes but they want some more loopholes. . . . At some point those messages don’t mix very well.”

However, some backers of Proposition 65, including Los Angeles County Dist. Atty. Ira Reiner and Lt. Gov. Leo T. McCarthy, agree with critics that the initiative should include government agencies. Each has proposed that the Legislature amend the measure if it wins voter approval Nov. 4. Under the initiative, such a change would require two-thirds approval of both the Assembly and Senate and the governor’s signature.

Broader Enforcement

And Roe would not object. In fact, he suggested that after passage the governor could simply order agencies that enforce the state’s hazardous waste laws to apply Proposition 65’s new, more stringent standards to anyone releasing chemicals that threaten drinking water supplies, whether business or public agency.

But those in the No on 65 campaign argued that voters should not approve a measure that requires legislative amendment or special orders from the governor to be fairly applied.

And they point to more than 30 government dumps on the state’s list of 241 priority toxic chemical cleanup sites, released by the Deukmejian Administration in May. All would be exempt from Proposition 65’s limits on release of hazardous chemicals, as well as the initiative’s warning requirements.

The list includes dump sites at airports, seaports, municipal landfills, city operations yards and military bases.

Industrial Sources

However, the Deukmejian list clearly shows that in most cases, the problems at the government-operated sites were caused by private companies, including industries that dumped hazardous materials at municipal landfills and crop dusters who spilled pesticides at city and county airports. Those firms would be covered by Proposition 65’s new, more stringent requirements.

Corash noted that there is increasing evidence that ordinary household trash is a source of dangerous chemicals leaking from municipal dumps. Proposition 65 would not affect individuals who put small amounts of cleaning solution or paint thinner in their garbage cans.