Prop 65 Discharge Litigation

Faucet Manufacturer Pays for Failure to Reformulate

In a 1999 settlement in Center for Environmental Health v. Franke Corp. (San Francisco Superior Court no. 997888), Franke Consumer Products agreed to reformulate its water faucets to reduce lead exposure (to a level significantly below the level set in the Attorney General's faucet settlement) and imposed a $100,000 payment requirement if that reformulation commitment were not met. In a November 2001 modification to the original consent judgment, Franke admitted that it had not been able to meet the agressive reformulation commitment, but agreed to use best commercial efforts to attain the lowest lead level practicable in its water faucet products. The reformulation requirements were stricken from the consent judgment, in exchange for a payment of $80,000.

CBE Settles With Two Defendants in Ashland Litigation

Communites for a Better Environment entered into settlements with Ashland, Inc. and Phibro-Tech, Inc. over claims of discharge violations in CBE v. Ashland, et al. The settlements were dated May and June 2001.

The Ashland settlement required $160,000 in attorney's fees to CBE, and continuing investigation and remediation activities at the site to be supervised by the Regional Water Quality Control Board.

The Phibro-Tech settlement requires the defendant to undertake soil vapor testing and remediation of the hazardous waste site as required by, and under the supervision of, the California Department of Toxic Substances Control. That settlement provides for payments of $133,000 in attorney's fees to CBE.

Supreme Court Broadly Defines "Sources of Drinking Water"

On December 9, 1996, the California Supreme Court held that Prop 65 barred discharge of carcinogens and reproductive toxins from faucets into drinking water. The suit, named People v. American Standard, was brought by the California Attorney General against manufacturers, claiming they violated the discharge provisions of the Act. The manufacturers claimed that the water pipes in a house were not a "source of drinking water," and that the discharge provision did not apply to them. The California Court of Appeal agreed in a decision published in 1995.

The Supreme Court held that prohibiting the discharge was consistent with the intent of the voters when the measure was enacted, and disagreed with the Court of Appeal's conclusion that Prop 65 should be strictly construed as a penal statute.

This was the Supreme Court's first opportunity to address Prop 65, and it took pains to establish that it was not considering questions related to the warning or penalty provisions of the Act. Nevertheless, its broad construction of Prop 65 is certain to shape future enforcement activities. Justice Mosk wrote the majority opinion, in which Justices George, Kennard, Werdegar, and Brown joined. Justice Baxter, joined by Justice Chin, dissented.

This page last updated 2/24/02