Angry Dispute Boils Around Deukmejian’s Toxics Listing

Four months after voters overwhelmingly approved Proposition 65, Gov. George Deukmejian finds himself in a rancorous legal and scientific dispute over the way he is implementing the anti-toxics measure.

Angry environmentalists accuse the governor of trying to gut the popular ballot initiative by rejecting the widely accepted principal that chemicals known to cause cancer in experimental animals should be assumed to cause cancer in humans as well.

One of the first acts required of the governor under Proposition 65 was to publish a list of chemicals known to cause cancer or birth defects. By Nov. 1, 1988, it will be illegal for businesses to discharge any of the listed chemicals into drinking water supplies.

The authors of the measure contend that Deukmejian is required to include at least 250 chemicals known to cause cancer in either humans or animals. But the governor chose instead to produce only a short list of 29 chemicals known to severely affect humans, thus ignoring animal tests.

The governor’s list is the heart of Proposition 65 because only chemicals placed on it will be regulated under the measure.

David Roe, a staff attorney for the Environmental Defense Fund and one of the authors of Proposition 65, said Deukmejian’s decision to list only chemicals known to cause cancer and birth defects in humans “represents a rollback of 25 years of cancer policy.”

“Every federal and state agency has the same policy--nobody lists only dead-body chemicals,” Roe asserted.

Lawrie Mott, a scientist with the National Resources Defense Council, said “it is the cave man theory of science to wait until there is positive evidence (of harm to) humans before regulating a chemical.”

Even within Deukmejian’s own Department of Health Services, several scientists urged that chemicals clearly shown to cause cancer in animals be included on the governor’s list, according to several Administration sources.

“What you don’t want is to allow exposures to continue so that you can have human data to confirm your animal studies,” said one department scientist, who asked not to be identified.

Among those arguing that position was Steven A. Book, who has been appointed by Deukmejian to be executive secretary to the panel of scientific experts that can add chemicals to the Proposition 65 list.

Despite the internal disagreement within his Administration, Deukmejian chose on Feb. 27 to limit the initiative’s warning requirements and dumping limits to a relatively small number of chemicals that have been shown to cause cancer or reproductive effects in humans. In doing so, he followed the advice of groups that, like himself, opposed Proposition 65 in last year’s election campaign--organizations such as the California Chamber of Commerce, the California Farm Bureau Federation and the California Manufacturers Assn.

In keeping with that advice, the governor issued a list of 26 cancer-causing chemicals plus three substances that cause birth defects or sterility. Among the chemicals on Deukmejian’s list are such commonplace substances as lead, asbestos, vinyl chloride and benzene--all shown to have an effect on humans, not just experimental animals.

List Would Have Grown

If he had included chemicals that have been shown to cause cancer in careful animal experiments, the list would have soared to more than 250.

Because of his decision, chemicals such as ethylene dibromide (EDB)--repeatedly shown to cause skin, lung and stomach cancers in laboratory mice and rats--initially will not be regulated under Proposition 65. Even though there is no direct evidence that EDB causes cancer in humans, Deukmejian’s own Department of Health Services three years ago convinced manufacturers of baking mixes and baby food to remove products from grocery shelves that contained as little as five parts per billion of the substance. The chemical has been banned as a pesticide, but is still used as an additive to leaded gasoline.

Also missing from Deukmejian’s list is a family of chemicals known as polychlorinated biphenyls (PCBs). The evidence that PCBs cause cancer in humans is inconclusive. But the long-lived chemicals, once used in electrical transformers, pesticides and treated paper, have been clearly shown to cause liver tumors in mice and rats. As a result of these and other health effects, the U.S. Food and Drug Administration in 1973 imposed limits on the amounts allowed in milk and eggs, and in 1979 the U.S. Environmental Protection Agency banned their manufacture.

Deukmejian Administration officials acknowledge that Proposition 65 does gives the panel of scientists appointed by the governor the power to add any chemical or group of chemicals to his list, including those Deukmejian initially omitted.

Defends His Decision

At a Los Angeles press conference on March 3, Deukmejian defended the decision to limit his initial list, saying that he would leave it to the 12-member scientific panel to determine which other chemicals should be added.

“What we are doing is turning this decision over to the scientists, to the experts,” he said. “It won’t be politicians making the decision. It won’t be lobbyists for the business interest or lobbyists for environmental interests.”

The initiative, in cryptic legal language, requires the governor to include on his initial Proposition 65 list chemicals that either the U.S. National Toxicology Program or the International Agency for Research on Cancer have determined cause cancer.

However, Deukmejian said he believes that California voters were asking for limits only on chemicals “known to cause cancer to humans.” The other chemicals described by the two scientific groups, he said, “are suspect chemicals. Let’s now let these scientists (on the governor’s advisory panel) review all the materials and make a determination as to whether any of those should be added to the primary list.”

He argued that it would be “rather foolish” to place suspect chemicals on this initial Proposition 65 list only to have to remove them later on.

Practical Warning

There is wide agreement among scientists, however, that carefully conducted tests in animals serve as a practical warning to humans.

“Animal tests usually do not give scientists a good basis for predicting how many people exposed to a carcinogen actually will develop cancer as a result,” explains a brochure on cancer prevention, produced by the National Cancer Institute. “To prevent cancer, however, we cannot afford to wait for absolute proof of carcinogenicity in humans. Instead, we must heed the warnings provided by animal tests and reduce or eliminate human exposure to probably cancer-causing agents.”

Similarly, the International Agency for Research on Cancer notes that when substances are clearly shown to produce cancer in animals, “for practical purposes, such chemicals (should) be regarded as if they presented a carcinogenic risk to humans.’

The state Department of Health Services’ guidelines for determining the cancer risk posed by regulated chemicals--issued by the Deukmejian Administration in 1985--arrived at the same conclusion, observing that “there is substantial scientific support for the assumption that a substance carcinogenic in animals will, with high probability, be carcinogenic in humans.”

How Proposition Works

The way Proposition 65 works is that starting March 1, 1988, businesses that expose the public to “significant amounts” of a substance on the governor’s list must warn people about the dangers--using devices such as warning labels, posters or other advertising. Eight months later--by the Nov. 1, 1988, deadline--businesses will be banned from discharging any of the listed chemicals into drinking water supplies. Any business that breaks the law will risk citizen suits and fines of up to $2,500 a day per violation.

In the past, government regulators have assumed that the release of a substance is safe unless it has been proven to be harmful. Under Proposition 65, the burden of proof will shift for chemicals on the governor’s list: businesses must be prepared to show that their practices are safe.

Backed by the national AFL-CIO, a number of groups that supported Proposition 65 have asked the Sacramento Superior Court to order Deukmejian to expand the list of affected chemicals.

The legal issue hinges on what Californians thought they were approving when they gave Proposition 65 a 1.7-million-vote margin of victory.

Proponents of Proposition 65 argue that the intent of the ballot measure should have been clear: the measure was meant to apply to chemicals shown clearly to cause cancer in humans or in animals.

Van de Kamp’s Stand

Atty. Gen. John Van de Kamp agrees with that interpretation. Although he is the state government’s chief attorney, Van de Kamp told the governor’s office that he would refuse to represent the Administration in a lawsuit if the governor issued only a short list of chemicals known to cause cancer in humans.

But Administration attorneys argued that nowhere in Proposition 65 “is there any suggestion that potential carcinogens are among the chemicals regulated,” according to a memo prepared by attorneys for the Department of Health Services.

Roe and other supporters of Proposition 65 think that it may take months to resolve the legal battle.

Meanwhile, the governor’s panel of experts will look at the scientific question of what chemicals should be added to the governor’s initial list.

When Deukmejian announced the names of the 12 scientists on the panel, the authors of the initiative were angered with one of the appointments, that of Bruce N. Ames, chairman of the biochemistry department at the University of California, Berkeley. Although Ames is a respected scientist, he also authored an anti-65 argument that was included in last fall’s voters pamphlet.

“It was rubbing salt into the wound,” lamented Carl Pope, political director of the Sierra Club.

Some Encouraged

However, some of those who are critical of the governor’s initial list of Proposition 65 chemicals are encouraged by his choice of scientific advisers. Two of the members were recommended to the Administration by environmental groups, vice chair Alice S. Whittemore, a Stanford University environmental scientist, and Brenda Eskanazi, an associate professor at the UC Berkeley School of Public Health.

“The panel is not bad at all,” asserted one state scientist, who asked not to be identified.

“The short list (of cancer-causing chemicals) is a temporizing political position that wins some points with the governor’s usual constituencies,” the scientist said, adding that the panel could well end the legal battle over Proposition 65 simply by adding the disputed chemicals.

But another state scientist worries that the group will go through a chemical-by-chemical review of all the substances identified by the International Agency for Research on Cancer and the National Toxicology Program, including those where the only evidence is from animal studies. That would mean a long delay, perhaps as long as a year or more, in fully implementing the initiative.

“Once we have pretty good evidence that a chemical is a hazard then we ought to reduce the exposures,” this scientist said. “Let us not wait to prove that there is a human health problem and then say, ‘We’d better do something.’ ”