• Proposition 65 List Expanded to Include Four New Chemicals: Tert-Amyl Methyl Ether, Ethyl-Tert-Butyl Ether, Wood Dust and Zidovudine
  • January 12, 2010 | Authors: Jill C. Teraoka; Melanie A. Tory
  • Law Firm: Bingham McCutchen LLP - Los Angeles Office
  • On December 18, 2009, the Office of Environmental Health Hazard Assessment (OEHHA) of the California Environmental Protection Agency published the addition of tert-amyl methyl ether (TAME), ethyl-tert-butyl ether (ETBE), wood dust and zidovudine (AZT) to the list of chemicals known to the State of California to cause cancer or reproductive harm under the Safe Drinking Water and Toxic Enforcement Act of 1986 (commonly referred to as Proposition 65). The listing triggers the discharge prohibition and warning requirements set forth in California Health and Safety Code section 25249.5, et seq. Failure to comply with Proposition 65 for these listed chemicals can lead to significant penalties and enforcement actions. 

    Listing of TAME, ETBE, Wood Dust and AZT

    Section 25249.8(a) of the California Health and Safety Code directs OEHHA to publish and revise, at least once a year, a list of chemicals known to the State to cause cancer or reproductive harm. This provision also seeks to incorporate into the list substances referenced in sections 6382(b)(1) and (d) of the California Labor Code. Such substances include those listed as human or animal carcinogens by the International Agency for Research on Cancer (IARC), and substances within the scope of the federal Hazard Communication Standard, 29 CFR § 1910.1200. There is ongoing litigation as to the scope of section 25249.8(a) and whether the Labor Code references created a one-time or ongoing mechanism for listing chemicals.

    On April 24, 2009, the Alameda Superior Court, in Sierra Club v. Schwarzenegger, ordered OEHHA to list, without further scientific review, several substances, including TAME, ETBE, wood dust and AZT. (See Bingham Alert, June 22, 2009, available here.) On June 12, 2009, OEHHA published a request for comments on the listing of a number of chemicals based on the California Labor Code references. Included among these chemicals were TAME, ETBE, wood dust and AZT. The 30-day comment period ended on July 13, 2009.

    OEHHA issued a notice adding TAME, ETBE, wood dust and AZT to the Proposition 65 list on December 18, 2009. The listing of these chemicals triggers the substantive requirements of Proposition 65.

    Prohibition on Discharge of Chemicals Listed Under Proposition 65

    Proposition 65 prohibits businesses with 10 or more employees from knowingly discharging or releasing a listed chemical into the environment (whether through air, land or water), in a manner that will, or may, cause a significant amount of the chemical to enter a source of drinking water. For purposes of enforcement, “source of drinking water” is construed broadly, and includes not only streams, lakes and groundwater, but also devices, such as faucets and pipes, that convey drinking water.

    Discharge prohibitions become effective 20 months after the listing of a chemical. Thus, the prohibition on discharges of TAME, ETBE, wood dust and AZT will become effective on or about August 18, 2011.

    Warning Requirements Applicable to Chemicals Listed Under Proposition 65

    Proposition 65 prohibits businesses with 10 or more employees from knowingly and intentionally exposing an individual in California to a listed chemical without first giving a clear and reasonable warning. Such warning must meet certain criteria. Namely, it must be transmitted in a manner that is reasonably calculated to reach individuals previously exposed to the listed chemical, and must clearly communicate that the listed chemical is known to the State to cause cancer, birth defects and/or reproductive harm.

    Proposition 65 warning requirements are not triggered if the exposure level of a listed chemical is below the exposure criteria. For reproductive toxicants, like TAME and ETBE, that level is the level at which there is no observable effect assuming an exposure at 1,000 times the level in question (the maximum allowable dose level or MADL). For carcinogens, like wood dust and AZT, it is the level at which there is no significant risk of cancer (the no significant risk level or NSRL). “No significant effect” is defined as the level of exposure that would result in not more than one excess case of cancer in 100,000 individuals exposed to the chemical over a 70-year lifetime. OEHHA has yet to establish the maximum allowable dose levels (MADLs) for TAME and ETBE, or the no significant risk levels (NSRLs) for wood dust and AZT.

    Warning requirements become enforceable 12 months after a chemical is listed. Thus, the effective date for providing clear and reasonable warnings for exposure to TAME, ETBE, wood dust and AZT is December 18, 2010. Note, this is eight months earlier than the effective date of the discharge prohibitions.

    Consequences of Failing to Comply With Discharge Prohibitions and/or Warning Requirements

    Failing to comply with Proposition 65 discharge prohibitions and warning requirements can lead to enforcement by the Attorney General, local district attorney, or private plaintiffs (so long as they have provided adequate 60-day notices to the public enforcement officials) who can seek significant penalties of up to $2,500 per violation, per day.