October 7, 2015
California’s Proposition 65 is notorious for its duty-to-warn requirement, which states that a business must give a clear and reasonable warning prior to exposing people to certain levels of any listed chemical. The warning requirement applies to consumer product, occupational and environmental exposures. However, Proposition 65 contains another key provision, the duty to avoid the discharge of any one of more than 900 listed chemicals that could potentially make their way into sources of drinking water. 

This “discharge prohibition” is a broad limitation against the discharge of listed chemicals into surface water, groundwater, or onto land, that could “probably” pass into a source of drinking water. In the late 1990s and again in 2003/2004, certain oil companies and gas station owner/operators were targeted for the discharge prohibition based on gasoline leaks from Underground Storage Tanks. Since that time, the discharge prohibition claims have been dormant, thanks in part to the ease with which the duty to warn provisions can be used to force relatively excessive settlements from businesses that find it more expedient to settle rather than defend the merits, or lack thereof, of plaintiffs’ claims. It now appears that Prop 65 civil enforcer plaintiffs have resurrected the discharge prohibition claims, aiming them at companies involved with injection well operations in the state of California. Prop 65 Penalties are steep – up to $2,500 per violation/per day.

For more information on this new trend of Prop 65 litigation and your potential exposure, please click here.