|
By
Geoffrey H. Yost
Thelen Reid Brown Raysman & Steiner LLP
The
construction industry is beginning to receive 60-day notices
of intent to sue from "bounty hunters" under California's
Safe Drinking Water and Toxic Enforcement Act, commonly
referred to as Proposition 65, which is found at Health
and Safety Code Section 25249.5, et seq.
Plaintiffs
under this statute have over the years moved from one industry
to the next suing companies and seeking to recover civil
penalties and secure injunctions.
The
most recent targets include roofing and paving companies.
Several such companies already have received 60-day notices
from an organization called Consumer Advocacy Group, Inc.
The notices claim that these companies violate Proposition
65 by failing to warn employees, bystanders and passers-by
about alleged exposure to odors and fumes from asphalt and
roofing compounds. Proposition 65 requires a company with
more than 10 employees to give a specific warning before
it "exposes" people to certain chemicals.
Failure
to provide the required warning can lead to penalties of
up to $2,500 per day per exposed person. Penalties can quickly
reach seven figures after only a few months of operations
because of the per day x per person method of calculation.
The
state's list of Proposition 65 chemicals is extensive and
includes chemicals common to the construction industry,
such as toluene, formaldehyde, diesel exhaust, chrysene,
glasswool fibers, soots, tars, arsenic and chromium.
The
statute authorizes private plaintiffs to file a lawsuit
and collect the fine if the California attorney general's
office does not act first on the 60-day notice. These plaintiffs
continue to find unsuspecting, new industries that never
considered that they might be subject to Prop. 65.
If you would like to receive legal reports and updates
more quickly, by e-mail, click
here and fill out the mailing list form.
For more information about the issues covered in this report, please contact Geoffrey H. Yost in our San Francisco office at (415) 369-7552 or at gyost@thelen.com or contact your Thelen attorney. For more information about Thelen's Construction and Government Contracts Department, click here.
©2002 Thelen Reid Brown Raysman & Steiner LLP
|
