Prop 65 Silica Litigation

Court Rejects Claim that Power Tool Manufacturers Are Required to Warn

On March 11, 2002, Judge Kenneth Burr of the Alameda Superior Court ruled that power tools did not cause exposures to listed chemicals, and the manufacturer of tools could not be held liable under Proposition 65.

In DiPirro v. Campbell Hausfeld/Scott Fetzer Co. (Alameda Superior Court no. 2001-34697), plaintiff claimed that the defendant's air tools exposed users to lead, silica, arsenic, and hexavalent chromium. The defendant demurred, on the grounds that the complaint did not adequately identify the products at issue, and because it did not adequately allege exposure, because the products did not contain the listed chemicals. DiPirro's opposition to the demurrer on the exposure issue focused on the fact that the Attorney General had filed enforcement actions which had led to consent judgments requiring warnings for exposures to listed chemicals from power tools. He also argued that exposure was adequately alleged whenever the defendant's products "caused" contact with the listed chemical, even if it did not contain that chemical.

The court's order overruled the demurrer on the adequacy of the product identification, but sustained it on the exposure issue. The order stated that "Plaintiff does not dispute that the products themselves are not alleged to contain toxic chemicals. Therefore, the products do not expose people to toxic chemicals within the meaning of Health and Safety Code section 25249.6. Consumer Cuase v. Weider Nutrition Int'l, Inc. (2001) 92 Cal.App.4th 363." The court refused to be bound by the prior consent judgments, because they do "not reflect legal precedent that supersedes the authority of the Court of Appeals, nor do they reflect the reasoned decision of the court that approved them such that they would provide the Court with a basis for distinguishing the case at hand from Weider."

AG Enforcement Actions Over Silica Exposures

The California Attorney General filed a major enforcement action regarding exposure to crystalline silica from a wide variety of products. People v. Ace Hardware was filed on June 18, 1998, in San Francisco Superior Court.

The Attorney General's action followed several private enforcement cases. The first, brought by Mateel Environmental Justice Center, claimed violation of Prop 65 by manufacturers of saw blades and drill bits by exposing users to silica from the use of the products. After a large number of 60-day notices were filed against many other manufacturers and retailers, the AG stepped in and took over all of the litigation, although the Mateel litigation is expected to resolve by consent judgment between Mateel and the defendants.

The Attorney General's case is expected to resolve through litigation the fact that OEHHA has declined to adopt a no significant risk exposure level for crystalline silica, although any settlement NSRL will not be binding on other parties.

The San Francisco court denied the request of the latest private enforcer who served 60-day notices on silica, Michael DiPirro, to intervene in the Attorney General's case, holding that DiPirro had no interest in the state's case.  On April 9, 1999, DiPirro filed his opening brief on appeal, contending that denial of intervention to private parties who investigate Prop 65 violations was contrary to their "interest" in such litigation, including their "pecuniary interest" in receiving 25% of any civil penalties assessed, as well as their attorney's fees.

A consent judgment was entered in Mateel Environmental Justice Foundation v. Rawplug Co., SF no. 988408.The judgment covers warnings for exposures to crystalline silica from the use of saw blades, drill bits, and grinding wheels. Warnings may be provided by retail signs, owner's manuals for power tools used with the products, or on the products or their packaging. Total payments to the plaintiff were $325,000, of which $200,000 was directed toward Mateel's attorney's fees.

In September 2000, settlements were entered in the Attorney General's litigation, requiring warnings only for certain power tools which are capable of generating sufficient silica dust.  The manufacturers agreed to pay $100,000 in settlement for the state's attorney's fees and costs.  No warnings will be required for any products which contain crystalline silica.  Importantly, companies signing the agreement are specifically prohibited from including a Prop 65 warning for crystalline silica for any product which is determined not to need a warning under the consent judgment.

The settlement contemplates that warning signs would be posted in retail stores for 1 year, but this option can be avoided by the manufacturers implementing a labeling/stickering program.  It is expected that the labeling will happen, and that signs will not need to be posted at retail outlets.

AYS Silica Consent Judgment Modified

In a related development, the parties to an earlier settlement in AYS v. Reckitt & Colman agreed in July 2000 to vacate a consent judgment in light of the scientific analyses in the 1999 safe use determination issued by OEHHA relating to pet litter.  The original agreement called for reformulation of the product, a silica-based stain remover, and warnings and "liquidated" payments of $300,000 if reformulation were unsuccessful.  The amendment removed those requirements, and allowed Reckitt & Colman to resume making the original formula without requiring a warning.  Reckitt & Colman, now known as Reckitt Benckiser, agreed to donate $110,000 to non-profit groups.

This page last updated 7/7/02