Proposition 65 Advisory

January 18, 2000

Proposition 65 Advisory 00-I

L.A. Superior Court Rules in Boeing's Favor
on Key Issues in Proposition 65 Discharge Case

In a landmark ruling, the Los Angeles County Superior Court has severely limited the reach of claims by a private party that Boeing North American, Inc. has violated Proposition 65's discharge prohibition at the former Rockwell International/Rocketdyne Division's Santa Susana Field Laboratory in Ventura County, California. The court rejected plaintiff Communities for a Better Environment's ("CBE") contention that each day that a chemical remains in water or soil following its historical discharge constitutes a new discharge in violation of Proposition 65. It also refused to grant CBE's request for injunctive relief in the form of cleanup orders - which would have been superimposed over and above ongoing agency-approved cleanup efforts by Boeing at the site - finding that Proposition 65 is "a discharge statute and not a cleanup statute and does not apply to post-discharge contamination." Communities for a Better Environment v. Boeing North American et al. (Superior Court for the County of Los Angeles, Case No. LC043831), Minute Order entered December 9, 1999.

Proposition 65's discharge prohibition - which has only recently become the focus of much enforcement by private parties and public prosecutors - prohibits persons "in the course of doing business [from] knowingly discharg[ing] or releas[ing] a chemical known to the state to cause cancer or reproductive toxicity into water or onto land where such chemical passes or probably will pass into any source of drinking water . . . ." Cal. Health & Safety Code Section 25249.5.

CBE, which has brought numerous similar actions against a broad range of defendants asserting violation of Proposition 65's discharge prohibition, filed its complaint against Boeing in January 1998, alleging that Boeing "has discharged, and continues to discharge," numerous Proposition 65-listed chemicals at the Santa Susana site. CBE expressly alleged that each day that Boeing allows historic contamination to remain in water or in land is a "new and distinct" violation of Proposition 65, and that each chemical discharged or released constitutes a separate and distinct violation, each of which would merit the imposition of civil penalties of $2,500 per day (of which CBE would be entitled to 25 percent under Proposition 65's "bounty hunter" provision).

Ruling on Boeing's motion for summary adjudication, the court also applied the identical reasoning to circumscribe the scope of CBE's claims under California's Unfair Competition Law, which are predicated on the alleged violations of Proposition 65. Remaining in the case are CBE's claims for civil penalties as they may apply to active discharges that occurred since January 1997 (under Proposition 65's one-year limitations period), and CBE's claims for "restitution" as to any active discharges after January 1994 (under the Unfair Competition Law's four-year limitations period).

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