60-Day Notice Clearance Sale

• Numerous notices to auto dealerships alleging exposures to listed chemicals in vehicle exhaust. Nearly 1,700 notices were served on auto dealerships regarding emissions from automobiles.
• Over 1,200 notices were served on facilities that were alleged to have exposed workers and people in the community within 0.2 miles of each facility to listed chemicals. These notices were largely based on a California Air Resources Board emissions database

Numerous notices served by Consumer Advocacy Group were directed to contractors, alleging that their use of asphalt required warnings. CAG also targeted some alleged consumer products exposures. The notices served by CFRB and CAG did not contain certificates of merit.

On January 22, 2002 the Attorney General issued numerous letters addressed to the lawyers representing the private enforcers. The letters took the position that, even if the certificate of merit was not required for notices served before January 1, provisions of the California Code of Civil Procedure "and other legal remedies" are available to address actions that are filed without adequate investigation and bases. The letters included the following:

• A letter to Ghalchi from Deputy AG Ed Weil regarding the approximately 1,200 air emissions notice [pdf] that stated that the timing and volume of notices could support the inference that they were sent "in an effort to avoid conducting the type of investigation that would be necessary to support an adequate certificate of merit. This letter asked Ghalchi to provide information on what evidence CFRB had to demonstrate that exposures were occuring and that warnings were not being given. A letter of January 29 to Ghalchi also noted that approximately 400 of the air emissions notices had not been received by the Attorney General, and were therefore invalid. [pdf]
• A letter from Weil to Ghalchi regarding the auto dealership notices [pdf] questioned whether plaintiff had investigated whether each of the noticed companies had failed to give warnings for occupational exposures, that if no such investigation was done plaintiff lacked probable cause to bring an action and would be subject to sanctions. As to consumer exposures, Weil remarked that consumers already obtain warnings when they fill up their gas tanks, and no additional warnings were required. He asked for any evidence that plaintiff had regarding exposures to exhaust in residential garages or adjoining parking lots. Weil also took aim at the $7500 settlement offers that CFRB had made to several companies, stating that, if every noticed company paid that settlement, CFRB and its lawyers would each garner over $5.8 million, and Weil was "not aware of any facts that would warrant payments of that magnitude."
• A letter to Yeroushalmi from Weil regarding notices to construction companies alleging exposures to asbestos, coal tar, and asphalt. [pdf] The letter indicated that the notice letters were dated December 26, along with a certificate of service that date, but were postmarked December 31, and not received by the Attorney General until January 18. The letter questioned whether the notices were in fact served before January 1, but said that since the certificate of service was inaccurate, the notices were "invalid."
• A letter from Weil to Anthony Graham regarding approximately 300 notices served on Best Western hotels for exposures to cigarette smoke. [pdf] This letter raised many of the same issues as the Ghalchi air emissions letter.
• A letter from Deputy AG Sue Fiering to Yeroushalmi regarding CAG notices served on Proctor & Gamble for exposures to formaldehyde gas. [pdf] The letter asked whether the formaldehyde was a listed ingredient in the product and, if not, whether CAG had any testing showing an exposure. The letter also indicated that the notice was served on "CEO/President/Owner," and if the noticed company has designated names of such individuals on file with the Secretary of State, the notice must be served on those persons. A similar letter was sent from Fiering to Yeroushalmi regarding exposures to phenacetin from products made by Alberto Culver and Tresemme. [pdf] A similar letter was sent from Fiering to Yeroushalmi regarding exposures to aniline, nickel, and formaldehyde from Biersdorf products. [pdf] A different letter was sent from Fiering to Yeroushalmi regarding exposures to aniline from other cosmetic products. [pdf]
• A letter from Fiering to Yeroushalmi regarding exposure to aniline in Colgate-Palmolive products [pdf] was similar to the Proctor & Gamble letter, and also inquired regarding the basis of claims for occupational exposures. It noted that occupational exposures to employees of other companies was not actionable for this out-of-state manufacturer, and also questioned the validity of the notice, which "encompass[es] every conceivable type of worker in every conceivable location. Therefore, it is questionable whether the notice actually informs the company of where the actual exposures are occurring, and to whom." A letter from Fiering to Yeroushalmi regarding exposures to aniline in products sold by Dior, Inc. [pdf] also addressed occupational exposures. Yet another letter on these issues was sent by Fiering to Yeroushalmi regarding exposures to "formaldehyde" from a number of cosmetic products. [pdf]
• Two letters were sent by Weil to David Bush, attorney for enforcer Michael DiPirro. The first related to exposures to toluene from auto touch up paint and pencils. [pdf] That letter indicated that, based on the AG's investigation of small volume toluene products such as nail polish, exposures were at approximately 5% of the amount that required a warning, and the AG believed that no warning would be required for the touch up paint. The letter also questioned plaintiff's evidence regarding occupational exposures occurring, and whether they were occurring without a warning.
• The second letter to Bush addressed notices alleging exposures to mercury from thermometers. [pdf] It asked for information that plaintiff had on the "reasonably anticipated rate of intake or exposure for average users of the product." It also asked for information regarding the alleged occupational exposures.

In a January 30 agreement [pdf], CFRB agreed to respond to the issues raised in the AG's letters, and to refrain from filing any lawsuits until the Attorney General completed his review of the notices. CFRB has the right to deem the process concluded upon 30 days notice to the AG. It also agreed to notify any party that settled the allegations that such settlement was null and void if the Attorney General or any other public prosecutor filed an enforcement action within 65 days.

A February 14 letter [pdf] from Attorney General Lockyer laid out the steps that his office had taken in responding to the onslaught of notices. The AG took affirmative steps to put some teeth into SB 471's reforms by proposing a regulatory package (see Regulatory Update for more information), but these regulations would not affect previously-served notices.

Articles from the Sacramento Bee and Orange County Register provide more information.

there appeared to be enough scientific basis to proceed with an enforcement action against dealers for occupational exposures, assuming that in fact no warnings had been given. "We make no determination as to whether the exposures that you allege actually reach levels that require a warning. If you decide to take further action with respect to this alleged violation, we assume you will proceed only against those companies for which you have evidence that no appropriate warning has been provided."
Although plaintiffs had indicated that they would not proceed with enforcement actions over the first 2 alleged consumer exposures (exposure to inhalaing gasoline vapors and touching gasoline caps), there appeared to be enough information for plaintiff to meet its prima facie case with regard "to exposures to vehicle exhaust, but only to “exposures that occur inside the consumers’ automobile or motor vehicle parking garages or lots adjoining or inside their place of residence." Again, the AG made "no determination as to the ultimate legal or factual merits of any such action."
Plaintiff would not proceed with its allegations of environmental exposures.

This page last updated 11/24/02