Proposition 65 Advisory

Proposition 65 Advisory 01-II

Proposition 65 Advisory 01-II

Will California's Energy Crisis Power New Proposition 65 Lawsuits?

California's recent energy crisis has caused a number of businesses to consider diesel-powered generators as an alternative energy source. The use of this equipment may trigger regulatory requirements under a number of environmental statutes, including warning requirements under Proposition 65.

In Proposition 65 terminology, the use of diesel generators may result in "exposures" to "diesel engine exhaust," a chemical "known to the State" to cause cancer. Proposition 65 prohibits any "person in the course of doing business" from "knowingly and intentionally" exposing any individual in California to such a chemical without first providing a "clear and reasonable" warning.

Emissions from diesel engine exhaust are reasonably likely to occur at the worksite and to drift into surrounding neighborhoods. Thus, they may result in "occupational exposure," defined by regulation as "exposure, in the workplace of the employer causing the exposure, to any employee," and "environmental exposure," defined to include both an "exposure which may foreseeably occur as the result of contact with an environmental medium," and "all exposures which are not consumer products exposures, or occupational exposures." The regulations further establish "safe harbor" warning methods for both types of exposure. There is an exemption from the warning requirement where the person "responsible" for the exposure can prove that the amount to which a person is exposed does not exceed the no significant risk level ("NSRL"). Relying on this exemption is both risky and complicated, however, given the large volumes in which diesel fuel may be used, the variations from site to site in the manner of use and local geological and weather conditions, and the fact that the State has not established an NSRL for diesel engine exhaust.

Private parties who bring civil lawsuits to "enforce" Proposition 65 - so called "bounty hunters" - have many tools available to identify putative violators. Many documents from California's statewide program for registering portable power generators, and stationary source permitting records from local air districts for permanent generators, are available to anyone under the Public Records Act.

Businesses that are forced to turn to diesel fuel should avoid the necessary expense and distraction of Proposition 65 lawsuits.

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