California Court of Appeal Provides Guidance Regarding Notice of Proposition 65 Violations for Environmental Exposures
The California Court of Appeal, Second Appellate District, recently issued an opinion that provides guidance on the requirements for serving effective notice of a Proposition 65 violation in the environmental exposure context. Bradfield v. APM Terminals Pacific, Ltd., et al., No. B206739 (Sep. 8, 2009).
The Bradfields’ claims arose in a personal injury/toxic tort case, in which the plaintiffs claim that they and their property were exposed to diesel emissions from operations at the Ports of Los Angeles and Long Beach. In October 2005, plaintiffs served Proposition 65 notices on approximately 50 terminal operators at the Ports. Each notice stated that the recipient operated diesel powered machinery, ships and other equipment at its facility, and exposed “residents within the State of California including, but not limited to, the Bradfields,” to diesel exhaust without providing Proposition 65 warnings “[a]t all relevant times and continuing to the present time.” The notice stated that the route of exposure consisted of respiration and dermal contact and alleged that the exposure occurred beyond the terminal boundaries and affected “many individuals...who reside, work or are otherwise located in proximity to” each recipient’s terminal.
After the 60-day notice period expired, Plaintiffs added a Proposition 65 cause of action to their complaint. On demurrer, the trial court found that the notice was inadequate and dismissed the Proposition 65 cause of action. The Court of Appeal unanimously affirmed, finding:
“In our view, it is meaningless to provide a vague notice that defendants, at all relevant times, violated and are continuing to violate Proposition 65 by failing to warn ‘residents within the State of California’ of their environmental exposure, through inhalation and dermal contact, to diesel engine exhaust at the ports. In addition to providing no guidance by alleging the violations occurred ‘[a]t all relevant times,’ the notice describes a route of exposure by simply ‘parrot[ing] the regulation, [which] makes it difficult to discern the specific violation.’ [Citation omitted.] On its face, it is difficult to understand how ‘residents within the State of California’ (virtually indistinguishable from all California residents) could have been exposed, by respiration or dermal contact, to diesel engine exhaust at the ports, and how to correct such a broad violation.
* * *
[W]e independently conclude the notice was insufficient because it failed to draw any meaningful distinctions among the numerous entities at the ports and their activities…. [T]he notice, which merely alleged there was diesel engine exhaust on and off the 50 alleged violators’ separate facilities at the ports, which at all relevant times exposed ‘residents within the State of California’ to diesel exhaust through inhalation and dermal contact, gave no notice at all."
The opinion provides important guidance for drafting and defending against Proposition 65 notices for environmental exposures. Overall, the notice must contain sufficient information to demonstrate how the alleged exposure is occurring and provide the recipient sufficient information to correct the alleged violation. Where several or many sources of alleged exposures are involved, a notice must draw meaningful distinctions among the recipients and their alleged activities. Some geographic area related to the alleged extent of the exposure must be provided. The route of exposure must be identified in a way that gives meaningful information. Finally, the notice must delineate some time period in which the violation allegedly occurred.
Click here for a copy of the appellate opinion.
Print PDF