Orange County Effects : Warnings of Toxic Dangers in Homes Prove Perplexing

Thomas E. Warriner, undersecretary of the California Health and Welfare Agency, was writing regulations for the Safe Drinking Water & Toxic Enforcement Act when a toilet seat manufacturer phoned him.

Was it true, the manufacturer asked, that the new law required a warning on his toilet seats because the metal hinges are made partly of lead? No, Warriner assured him, it did not seem likely that a consumer would be exposed to enough lead to pose a health risk.

Although it has been the law since voters passed Proposition 65 more than 2 years ago, a lot of businesses are still confused about what the act requires.

Perhaps no group is more upset than the real estate industry, which fears that home buyers could sue for millions of dollars if builders fail to warn them about potentially toxic materials in new homes.

Lawsuit May Establish Standard

But a Solano County lawsuit may soon clear up some of the confusion. The Northern California case could spell out for the first time whether and when builders should post warnings under the toxic materials act.

The law, which is unique to California, forbids knowingly exposing the public to dangerous levels of toxic materials without warning.

It is the reason that bars, restaurants and stores post signs warning pregnant women of the dangers of alcohol. It also is the reason that similar warnings will soon appear on such tobacco products as snuff.

And it also is the reason that warning signs have popped up on new houses, warning buyers of potentially dangerous substances.

Some of those signs have appeared in Orange County, where builders said their attorneys are telling them to post the warnings at construction sites as well as on new houses.

“We’re not getting carried away, but we’re not trying to hide anything either,” said Mark L. Frazier, president of Barratt American Inc. in Irvine, which posts the warnings in its construction trailer and on the model home in each of its subdivisions.

Company Gives Printed Warnings

“It’s hard to know exactly what we should be doing,” said Peter Ochs, president of Fieldstone Co.

Fieldstone, based in Newport Beach, posts signs on its construction sites to warn workers and hands out another printed warning to people who have just bought a house.

The signs typically say something like this: “Warning: This area contains a chemical known to the state of California to cause cancer, birth defects or other reproductive harm.”

In many cases, the signs do not specify what chemicals, leaving buyers to wonder what potentially toxic substances were used in building their new home and what the actual danger may be.

Two substances on the state’s list of regulated toxics are commonly used in building materials.

Formaldehyde Can Cause Cancer

Some adhesives, carpeting and paneling contain formaldehyde, which if ingested in sufficient quantities can cause cancer. Many roofing materials contain benzene, another potential carcinogen.

But the amounts of these chemicals to which a typical home buyer would be exposed are not thought to be harmful by the state, said Warriner of the state health and welfare agency.

Before they are subject to the provisions of the law, toxics must be in a potentially dangerous form; in other words, in a form that could be easily eaten, inhaled or absorbed through the skin.

Most of the chemical substances in new houses are not easily absorbed into the body, and formaldehyde gas usually dissipates in a few weeks, so sticking warning signs on new houses may not be necessary, Warriner said.

In fact, the signs might get a builder in more hot water than if he did not post them. Last month, the Solano County district attorney sued a local home builder for posting just such a warning for his new subdivision in his office.

Developer Accused

The district attorney said the developer, Steven D. Cole, had no evidence that his new houses contained hazardous levels of toxic chemicals.

Cole had put up the sign, Deputy Dist. Atty. Mark S. Pollock said, merely to protect himself in case the houses turned out to contain high levels of toxics.

What’s more, the district attorney’s office alleged in the suit, putting a sign in the sales office might lead consumers to think that the office is hazardous instead of the houses.

“The law says you’re supposed to put the sign in the ‘affected area,’ ” Pollock said. “In this case, the consumer doesn’t know if it’s the office that’s got a problem or the whole subdivision or just the bathrooms or a crawl space.”

The problem with the proliferation of warning signs is that they tend to dilute the impact of warnings on such products as alcohol or tobacco, Pollock and Warriner said.

Pollock is working on a possible settlement with Cole that might allow the builder to avoid paying fines. Cole did not return phone calls.

Designed for Market Pressure

The notification portion of the law was designed to put market pressure on manufacturers to stop using harmful levels of toxics in products. It was never really intended for the building industry, according to experts.

Meanwhile, Cole’s ad agency, Webb & Associates of San Jose, has found itself in hot water too. The firm wrote a pamphlet for Cole and other builders stating that under the law, any amount of toxic material, “no matter how negligible, necessitates a warning being posted.”

That is dead wrong, Pollock said, because the law requires only that hazardous levels of toxic materials require a warning, while most new homes are probably free of high levels of toxics.

The ad agency agreed to recall the pamphlets, he said.

The Solano County suit is the first of its kind in the state. The settlement that Pollock said he is close to reaching could establish the first guidelines for builders.

Builders Group Concerned

And none too soon, according to the California Building Industry Assn.

The industry is concerned about the stiff fines imposed by the act, up to $2,500 a day for each violation. Builders are also upset by its “bounty hunter” provision, which allows a citizen to sue if enforcement agencies have taken no action 60 days after being notified. If he wins, the citizen gets 25% of the fines.

As yet, no one has filed such a suit against a California home builder, but the industry fears that people will sue once they become more familiar with the law.

Despite the Solano County suit, the Building Industry Assn.’s advice to members is still to post warnings as protection against lawsuits from buyers.

“The ambulance chasers are out there,” said Don V. Collin, general counsel of the trade association.

One district attorney, Collin said, told him a law firm had already asked the D.A. for a list of people making complaints under the law.

Suits Could Hold Up Projects

“And these kinds of suits could also be used as harassment to hold up a project somebody didn’t like,” he said.

Again, public agencies beg to differ. “We haven’t seen a lot of lawsuits yet, and I don’t see a lot of opportunity for them in the future,” Warriner said. “After all, nobody really believes a new house is hazardous to your health.”

In fact, the industry’s indiscriminate peppering of subdivisions with warnings makes both Warriner and Deputy Dist. Atty. Pollock suspicious.

“It’s possible they’re overreacting on the advice of their attorneys and putting up these signs to cover themselves,” Pollock said.

“Or it could be a concerted effort to kill the effect of the law by putting up signs on everything. I don’t believe that’s going on in an organized fashion, but there are probably a lot of people out there who are thinking that subliminally.”

Not so, said Collin, the trade association attorney: “My reply to that would be that we think it’s very prudent to put up the signs, given the uncertainties. We’re at a point where there are a lot of unknowns.”

The state’s builders are not powerful enough to force manufacturers of building materials to quit using the cancer-causing substances in their products, Collin said.

One probable result of all this, according to observers, is that the bigger builders may begin testing at least some of the homes they build for high levels of benzene, formaldehyde gas and other toxics that the state may add to its list. The irony is that even the people who enforce the law doubt that the tests will reveal high levels of toxics.

And, some builders said, they will probably pass the costs of testing along to home buyers.