Warring Sides in Battle on Toxics Find Agreement

Major environmentalist and business groups that bitterly opposed each other in last year’s Proposition 65 campaign reached agreement Thursday on several key regulations to help implement the anti-toxics initiative.

If adopted by the state, the agreement would protect businesses from frivolous lawsuits under Proposition 65 that might arise over businesses’ normal use of outdoor air and tap water. For example, restaurants that pipe smoggy air from outdoors through their ventilation systems would be exempt as long as they did not add toxic chemicals of their own.

In addition, the compromise would remove potential obstacles to the cleanup of toxic waste sites by permitting the discharge of water back into the ground, even if all the hazardous chemicals had not been removed.

“This represents a major breakthrough in cooperation,” said Health and Welfare Undersecretary Thomas E. Warriner, the state official in charge of implementing the initiative. “The industry people can’t do it without the environmentalists, and the environmentalists don’t want to concoct rules that don’t work.”

Despite the agreement, however, many important regulatory issues remain to be settled, including how much of a known cancer-causing chemical constitutes a “significant risk” and what kind of consumer warnings will meet the requirements of the initiative.

Early next year, Warriner said, the state will issue regulations designed to help businesses implement Proposition 65, which was overwhelmingly approved by the voters last year. The initiative will take effect Feb. 27 when businesses will be required for the first time to begin providing warnings to people exposed to chemicals identified by the state as carcinogenic.

Exemptions Sought

At a packed hearing held Thursday by the Health and Welfare Agency to take testimony on some of the regulations it has proposed, dozens of industry spokesmen called for exemptions or changes in the rules to soften the effect of Proposition 65 on their businesses. Representatives of the food, paint, electronics, aircraft and medical devices industries, among others, appealed for modifications to the proposed rules.

At the same time, consumer advocates called for tougher regulations that would require the liquor industry to put labels on all alcoholic beverage containers warning that drinking during pregnancy can cause birth defects. Under the state’s proposed regulation, the posting of warning signs in stores and restaurants would be sufficient to meet the requirements of the initiative.

And in an unusual joint appearance before the hearing panel, David Roe, a co-author of the initiative, and Michele Corash, an attorney representing a coalition of business groups, outlined the agreement they had signed only minutes before covering three regulatory issues.

The compromise marks the first time the two sides have been able to find common ground in nearly two years of battling over Proposition 65. The agreement has the backing of such groups as the Environmental Defense Fund, the Sierra Club and the Natural Resources Defense Council--all supporters of Proposition 65--and the California Chamber of Commerce, the California Manufacturers Assn. and the Western Agricultural Chemical Assn.--all opponents of the initiative.

“To say the least, this represents a shift in the relationship between the proponents of Proposition 65 and California industry,” said Roe, an attorney for the Environmental Defense Fund. “The fact that we’re here together offering the same language is a positive sign.”

Specifically, the agreement is designed to protect businesses that rely on tap water and ambient air, both of which could contain chemicals subject to the requirements of the initiative.

Tap water, for example, contains chloroform, a known carcinogen that is a byproduct of the chlorination process. And air, particularly in smoggy parts of the state, could contain a variety of cancer-causing chemicals that will be subject to the law.

Under their compromise, a business that uses tap water and then discharges it back into the drinking water supply system without adding any other toxic chemicals would not be in violation of the initiative’s prohibition on the discharge of contaminated water.

And a restaurant that washes its fruits and vegetables in tap water before serving them would not be required to warn customers of possible contamination from this source.

Similarly, businesses that use the same air as that found outdoors would not be required to warn customers or employees of the potential hazards, provided they did not increase the content of cancer-causing chemicals in the air indoors.

The proposed regulations would also protect businesses that discharge or release storm water runoff containing toxic chemicals as long as the contamination did not result from the use or storage of chemicals on the business’ property.

In addition, the compromise would resolve the question of whether Proposition 65 would block the cleanup of some toxic waste sites. The proposal would allow the discharge of contaminated water during a cleanup operation provided it contains a lower level of carcinogenic chemicals.

The regulations adopted by the state to implement Proposition 65 will not have the force of law. However, businesses that follow them will have a strong defense against any lawsuits brought alleging a violation of the anti-toxics initiative.

Both Roe and Corash, who clashed frequently during last year’s initiative campaign, cautioned that the agreement leaves open many significant regulatory questions that must be resolved before the initiative takes effect.

“I don’t want to give the panel the impression we’re coming in here with the moral equivalent of peace,” Roe testified. “These consensus proposals go only to three specific topics.”

And Corash, who represents a business coalition that calls itself the Environmental Working Group, said the agreement “is a very tiny step in the many steps that need to be taken to implement Proposition 65. But I think the first step is the most important step, no matter what its size.”

Warriner welcomed the willingness of the two sides to reach an agreement and said he will review the proposal to see how much of it can be incorporated into the state’s regulations.

“Our process was aimed at this kind of compromise,” he said in an interview. “Ideally, I would like to take the areas that are settled and adopt them pretty much as they are written.”

Under one regulation proposed by the state, carcinogenic chemicals that naturally occur in food would be exempt from the warning requirements of the initiative unless storage and handling procedures increase the level of the chemicals.

Most notably, this would apply to aflatoxins, a cancer-causing mold commonly found in peanuts and other foods that can be increased by improper storage.