Proposition 65 Advisory

Proposition 65 Advisory 02-V

Big Victory For Small Company: Court Finds Test Data Inadequate To Prove Alleged Proposition 65 Violations

San Francisco County Superior Court Judge Peter Busch issued a landmark ruling that scientific data are inadequate to prove a violation of Proposition 65 if the testing was not conducted using the best method available, as required under Proposition 65 regulations at 22 Cal. Code Regs. Section 12901 ("Section 12901"). Mateel Environmental Justice Foundation v. Edmund A. Gray Co. (San Francisco Superior Court Consolidated Case No. 309176), Order Granting Defendant Edmund A. Gray Co.'s Motion for Summary Adjudication on Plaintiff's Drinking Water Claims Against Edmund A. Gray Co., Grinnell Corporation, and Thrifty Supply Co. entered on January 22, 2002.

The case arose from allegations that our client Edmund A. Gray Co. ("EA Gray") and other companies violated the Proposition 65 discharge prohibition and warning requirement because their galvanized pipe products discharged lead into a "source of drinking water" (water that flowed through galvanized plumbing systems) and exposed individuals to lead in that drinking water without a clear and reasonable warning.

The trial was trifurcated. In the first phase, plaintiff was required to demonstrate that an exposure or discharge actually occurred, using a method of analysis that complied with Section 12901. The regulation establishes a four-tier hierarchy of methods of analysis, arranged according to their scientific credibility and their adoption by state or federal agencies, and specifically states that no discharge, release or exposure is deemed to occur unless the method of analysis is from the highest tier available. Plaintiff took samples from a small number of galvanized pipe nipples, which they filled with water that would never be found in a California plumbing system. In some samples, the pH value was as high as 10. EA Gray moved for summary adjudication on the ground that the testing was not from the highest available tier, as required under Section 12901.

The Court granted EA Gray's motion. Plaintiff's testing failed to conform to Section 12901 because, among other things, the samples tested were not collected by the method required by the California Lead and Copper Rule, 22 Cal. Code Regs. §§ 64682 et seq., which requires that drinking water samples for lead testing be obtained in situ from existing plumbing systems. Because the plaintiff's test data did not comply with the rule, its evidence was insufficient to prove that any discharge of, or exposure to, lead in the drinking water had occurred. Consequently, plaintiff was not allowed to proceed to the next phases of trial.

This important ruling has implications for product testing that extend far beyond the galvanized pipe products at issue here. If you need further information about the ruling, please contact one of the attorneys below.

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