A Toxics Law With Teeth

Protection for our drinking water and controls on toxic chemicals are nonpartisan issues that should be among the first concerns of every public official in California. Yet despite years of study and law-making there is a wide consensus that much more needs to be done. The conclusions a few months ago of the Governor’s Task Force on Toxics, Waste and Technology, on which I served along with a broad spectrum of representatives from government and private industry, emphasizes that point.

The task force reported extensive toxic contamination of drinking water supplies, often above recommended safe levels. It also estimated a combined cost of more than $1.3 billion per year for medical care, lost income and deaths attributed to exposure to toxic chemicals in California.

Now, California voters have the opportunity to take positive action for themselves. Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986, sets up direct protections against toxic chemical threats and creates strong incentives for action instead of inaction by government and industry.

Proposition 65 is more than just a “get tough” law. It also is an innovative legal mechanism that charts a new path for toxics regulation, using straightforward rules and direct enforcement.

The measure starts from a short list of known dangerous chemicals, not those merely suspected of causing cancer or birth defects, but those known to do so. It would effectively impose two requirements: Don’t put any of those chemicals into drinking water, and don’t expose anyone to them without giving a clear warning first.

Those requirements should hardly be controversial, but current law does not unambiguously impose them. What makes Proposition 65 different is that the requirements are direct, and they are directly enforceable, both by government and private citizens if necessary, using a procedure modeled after federal law.

Proposition 65 also adds strong incentives for effective enforcement of existing toxics laws, including doubled penalties for crimes like midnight dumping, and a share of collected fines for the police force that does the necessary investigative work. From the point of view of a prosecutor, these provisions would increase protection of the public from toxics violations.

Beneath Proposition 65’s straightforward requirements is some careful legal craftsmanship to ensure its effectiveness. One key example is the way Proposition 65 treats the question of “safe” amounts.

Industry has long claimed that small enough amounts of chemicals--even those that indisputably cause cancer or birth defects--can be “perfectly safe,” and should not be restricted at such levels. Proposition 65 accepts that position. It rules out enforcement against amounts which pose no significant risk to human health.

For the first time, however, it would be required that there be a scientific basis for such a claim, before those amounts can be discharged into drinking water, or before citizens are exposed without warning. Where scientific knowledge of safety is lacking, the risk of harm would not continue to be placed on the unsuspecting public.

The measure thus creates a major incentive for both industry and government to establish scientifically determined “safe levels” through regulation. There is no such incentive now, and the result has too often been an interminable debate over each chemical’s potential for harm at different concentrations, without enforceable standards to protect the public.

Proposition 65 does not claim to be the only law necessary for toxics control. It does not claim to cover every potentially toxic chemical produced by our society, nor every potential source of contamination. Instead, it focuses only on the chemicals already known to cause the worst effects, and only on businesses with 10 or more employees. It does so without weakening any of the protections of existing law.

Any bold new measure such as Proposition 65 may have effects that cannot be fully predicted. However, Proposition 65 contains an explicit section allowing it to be amended by two-thirds vote of the Legislature, consistent with its purposes. The proponents of the initiative already have demonstrated their commitment to use that section if it proves necessary.

In addition, since the key provisions do not take effect until 1988, there would be time for careful regulatory interpretation and implementation. Though it is tightly drafted, Proposition 65 would not act as a straitjacket on industry or agriculture.

The extent of the toxics problem seems to grow worse with each passing day. The public rightly expects protection, but thus far the gap between promise and performance, instead of closing, has continued to widen. Proposition 65 can make a significant difference.