On November 12, 2002, two self-proclaimed environmental advocacy groups filed ten Notices of Intent to Sue ("Notices") alleging unwarned exposure to hexavalent chromium. The Notices - seven from the Center for Environmental Health ("CEH") and three from California Community Health Advocates ("CCHA") - target businesses engaged in metal finishing, surface application and other manufacturing processes. The Notices also serve as a more generalized warning to any business with California facilities that the use of hexavalent chromium may trigger litigation under Proposition 65.
Hexavalent chromium is listed as a carcinogen under Proposition 65. The CEH and CCHA Notices allege "occupational" exposure to individuals working at various named facilities and "environmental" exposure to persons residing in close proximity to them, and claim that the businesses operating these facilities failed to provide "clear and reasonable" warnings. CEH and CCHA both suggest in their Notices that the recipients may avoid litigation by installing emissions control measures, such as HEPA filtration systems. Ominously, the Notices also request each recipient to provide historical emissions data, documents evidencing efforts to comply with Proposition 65 or establishing why it need not comply, and information concerning its efforts to reduce hexavalent chromium emissions for the four-year period immediately preceding the Notice.
Although this salvo of Proposition 65 notices was directed primarily at the metal finishing industry, any business that uses even small amounts of hexavalent chromium may find itself subject to similar claims of Proposition 65 violations. Because the warning threshold for hexavalent chromium is only 0.001 micrograms per day, virtually any evidence of hexavalent chromium emissions, coupled with an allegation of failure to warn, may satisfy the bounty-hunter's requirement to file a "certificate of merit" with its Notice of Intent to Sue.
In light of these Notices, businesses that use products containing hexavalent chromium would be well-advised to review their Proposition 65 and Hazard Compliance Standard compliance programs for compliance with occupational warning requirements, and to review their air emissions data for compliance with environmental warning requirements. It is not too late to take proactive steps to avoid Proposition 65 litigation that otherwise may arise from the use of this chemical.
If you need further information regarding this Proposition 65 development, please contact one of the attorneys below:
| Atlanta 404-527-4000 James D. Levine Barbara H. Gallo Daniel H. Sherman |
Los Angeles 213-688-1000 Charles H. Pomeroy Beth S. Dorris Michael Stiles |
San Francisco 415-267-4000 Stanley W. Lanfair Ann G. Grimaldi Chris Volz |
Washington, D.C. 202-496-7500 Charles A. O'Connor, III John D. Conner, Jr. Peter L. Gray |
McKenna Long & Aldridge, L.L.P., distributes its Proposition 65 Advisories to clients and friends of the firm free of charge. If you would like to request additions (or deletions) to our distribution list, please contact Nina MacLeay at 213-243-6063 or nmacleay@mckennalong.com. For more information on Proposition 65, please visit our website at http://www.mckennalong.com, and search on "Proposition 65."