Lead safe harbor challenged

By CMTA Staff

Capitol Update, Feb. 5, 2015 Share this on FacebookTweet thisEmail this to a friend

In January, the Mateel Environmental Justice Foundation sued California’s Office of Environmental Health Hazard Assessment (OEHHA) seeking to invalidate the department’s safe harbor level of 0.5 micrograms per day for lead that was set in 1992, maintaining that the level is outdated and too lenient. Mateel’s suit relies on controversial and inconclusive science and was entered without exhausting administrative remedies available. No stranger to using the judicial system, Mateel has filed nearly 800 notices and hundreds of Proposition 65 claims.

The term “safe harbor” does not refer to the threat of chemical exposure to consumers. It refers to the safety of businesses from the threat of being sued under Prop 65. A company whose product creates exposures less than the safe harbor level are deemed in compliance with Prop 65 and are not required to carry a warning.

The OEHHA standard is regarded as the most stringent in the world, particularly due to Prop 65’s conservative 1,000-fold safety margin factor for reproductive toxicants over and above the level that OEHHA has already determined would pose no risk of reproductive harm.

The economic and legal impact of declaring the current lead safe harbor illegal and inoperative is huge. Longstanding compliance determinations and prior court-approved settlements based on the existing lead warning threshold would be called into question. Private enforcers would likely use any detectable amount of lead, no matter how small, to support a notice letter and a lawsuit against a company. Since Prop 65 uniquely shifts the burden of proof to the defendant, a favorable Mateel decision could open the door to more unnecessary litigation.

The ubiquitous nature of lead in the environment in extremely low concentrations would increase the likelihood of lawsuits exponentially. CMTA has joined 56 other business associations in urging OEHHA to vigorously defend itself.

OEHHA has yet to respond to the suit.

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