State Ordered to Consider Broader Chemical Controls

Environmentalists claimed a court victory over Gov. George Deukmejian on Monday when a Superior Court judge ordered the state to consider whether Proposition 65 should cover as many as 200 additional chemicals that can cause cancer or birth defects.

Judge Ronald B. Robie ordered the Deukmejian Administration to comply with the anti-toxics initiative and decide whether the law should apply to all chemicals that have been identified as carcinogenic by the federal Environmental Protection Agency and other scientific agencies.

Among the chemicals that could now come under the strict requirements of Proposition 65 are Alar, a growth-regulating chemical sprayed on apples, and a variety of pesticides that have been recognized by the federal government as causing cancer and birth defects.

Environmentalists have charged that the Deukmejian Administration has stalled implementation of Proposition 65 by failing to incorporate all of the cancer-causing chemicals listed by the EPA, the International Agency for Research on Cancer and the federal Department of Health and Human Services.

“They’ve been trying to wiggle out of this for a couple of years now,” said Al Meyerhoff, a lawyer with the Natural Resources Defense Council who helped bring the lawsuit. “Some of the most hazardous carcinogens and birth defect-causing chemicals that are known to man will now finally be made subject to Proposition 65.”

But California Health and Welfare Undersecretary Thomas E. Warriner, who oversees implementation of the initiative, said the state has moved carefully and as quickly as possible to identify chemicals known to cause cancer or birth defects.

So far, Deukmejian has placed 279 chemicals on the state list on the advice of his scientific advisory panel, Warriner said. An additional 80 chemicals are scheduled for discussion at upcoming meetings of the panel.

In most cases, Warriner noted, the advisory panel has agreed with the judgment of the EPA and other scientific agencies. But occasionally it has decided the evidence does not warrant listing specific chemicals that are considered by other organizations to cause cancer or birth defects.

At issue in the court case was a provision of Proposition 65 that requires the state to determine which scientific agencies are “authoritative” in deciding what substances cause cancer or birth defects. Once an agency is deemed “authoritative,” any chemical it designates as causing birth defects or cancer automatically would become subject to the anti-toxics law.

Proposition 65, which was overwhelmingly approved by the voters in 1986, prohibits businesses from exposing people to a “significant risk” from such chemicals without first providing a “clear and reasonable” warning. In addition, the law bans the discharge of a chemical known to cause cancer or birth defects into sources of drinking water.

Since Proposition 65 was approved, environmentalists who sponsored the measure have battled with state officials over what chemicals should be covered by the law.

Action in Court

Initially, the governor listed only 26 chemicals. Environmentalists went to court in 1987 and won an order compelling the governor to list 200 additional substances. However, while Deukmejian appealed that case, the governor’s scientific advisory panel individually listed most of those substances.

In his order Monday, Judge Robie specifically directed the scientific advisory panel to decide whether the EPA is an “authoritative” body under Proposition 65. In addition, he ordered the panel to decide which other agencies, if any, fall into that category.

However, during his remarks from the bench, Robie left open the possibility that the panel could be selective in making its decision. For example, the panel could accept some chemicals identified by the EPA without being required to accept all of the EPA’s list, the judge indicated.

“The judge has suggested that it may not be all or nothing,” Warriner concluded. “It does leave the panel with a bit more discretion.”