It may come as a surprise to building owners that nearly two years ago, in August 2016, California’s Office of Environmental Health Hazard Assessment (“OEHHA”) made significant changes to the Proposition 65 regulations which specify what warnings must say and how they must be provided in order to avoid the potential threat of litigation. Come August 30th of this year you will need to post new signs on your building and potentially other areas on your property, or face lawsuits or penalties which could be up to $2,500 per day. These signs will have to name specific chemicals for which the warning is being provided, as well as the source/location of the chemical exposure. There will be two kinds of chemicals you will have to warn about – carcinogens and reproductive toxicants. OEHHA maintains a list of over 900 chemicals and it is up to you, the building or business owner, to decide which chemicals you should name on your new sign. Any business with ten or more employees is subject to the new warning requirements if you want to avail yourself of the safe harbor protections offered by the regulations.
OEHHA has developed what are known as “No Significant Risk Levels” (NSRLs) for carcinogens and “Maximum Allowable Dose Levels” (MADLs) for reproductive toxicants for more than 300 chemicals. These levels, also known as “safe harbor” levels, provide the exposure level above which warnings must be provided. So, in theory, if you are sure that none of the Prop 65 chemicals are present in your buildings, or are only present at levels that would expose individuals below the specified NSRL/MADL, then you don’t have to post a sign. It should be noted, however, that even if you are sure that no exposure is occurring below the specified NSRL/MADL, warning out of an abundance of caution to avoid the threat of litigation is often the preferred course of actions for businesses. But for most buildings, there are several ubiquitous compounds present that are carcinogenic and/or reproductive toxicants. In 2006, the EPA published a landmark Building Assessment Survey and Evaluation (BASE) Study of 100 commercial buildings which documented the prevalence of many of the Prop 65 compounds in otherwise unremarkable buildings. Examples are formaldehyde (a carcinogen which emits from many cabinetry and wood products) and toluene (a reproductive toxicant used as a common solvent). Determining whether they are present in your building such that they would expose individuals above or below the safe harbor levels can be a tricky undertaking, and your legal counsel might advise that you are better off warning of the presence of these chemicals than trying to defend or prove their absence or levels. The full list of Prop 65 chemicals maybe found at this website.
Healthy Buildings is assisting building owners, businesses and their legal counsel by conducting some limited air sampling in their buildings to demonstrate appropriate due diligence before selecting the chemicals and sources of exposure to name in Prop 65 warning signage before the August 30 compliance deadline. The logic behind the sampling is to establish a reasonable basis for providing your warning sign language, and to prevent claims that the signs do not satisfy the law. Your own lawyers can assist with the wording of the warning signs, or we are working with two law firms who specialize in this complex issue:
Contact us if you would like to learn more about upcoming changes to Prop 65.
This newsletter and blog is for guidance only and does not constitute legal advice. Please contact your own legal counsel or one of the law firms above for compliance advice with Proposition 65 warning regulation