California’s Proposition 65: New Warning Requirements for Service Station Facilities, Vehicle Repair Facilities, and Petroleum Products
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New Prop 65 Regulations Go Into Effect on August 30, 2018
California’s Proposition 65 ("Prop 65"), officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires product manufacturers and sellers to provide a "clear and reasonable" warning before knowingly and intentionally exposing anyone in California to a chemical or substance listed by the California Office of Environmental Health Hazard Assessment (OEHHA) as known to cause cancer, birth defects or other reproductive harm.To provide guidance on what constitutes a "clear and reasonable" warning, Prop 65 contains a Safe Harbor provision wherein a warning is deemed "clear and reasonable" if it contains specific content and is transmitted in accordance with the Safe Harbor regulations.
On September 2, 2016, the OEHHA revised Prop 65’s Safe Harbor regulations with regards to the required content of the warnings and method of transmission, which go into effect on August 30, 2018.Notably, the revised regulations now include specific requirements for the content and method of transmitting environmental exposure warnings of Service Station Facilities, Vehicle Repair Facilities, and Petroleum Products, which did not previously exist under the Act. These revisions are intended to provide more meaningful warnings to consumers, clarify the compliance responsibilities of manufacturers and retailers, and reduce unnecessary litigation.
Content Requirements for Service Station Facilities, Vehicle Repair Facilities, and Petroleum Products Warnings
Under Prop 65, Service Station Facilities, Vehicle Repair Facilities, and Petroleum Products from industrial operations and facilities other than from services stations and vehicle repair facilities now have unique content requirements for their environmental exposure warnings. The content of the warning must include the word "WARNING" in all capital letters and bold print.There must also be a symbol consisting of a black exclamation point in a yellow equilateral triangle with a bold black outline. Where the sign, label or shelf tag for the product is not printed using the color yellow, the symbol may be printed in black and white. The symbol must be placed to the left of the text of the warning, in a size no smaller than the height of the word "WARNING".
In addition, the warnings for Service Station Facilities, Vehicle Repair Facilities, and Petroleum Products must include the following language as specified in the new regulations:
·Warnings for Service Station Facilities must include: "Breathing the air in this area or skin contact with petroleum products can expose you to chemicals including benzene, motor vehicle exhaust and carbon monoxide, which are known to the State of California to cause cancer and birth defects or other reproductive harm.Do not stay in this area longer than necessary.For more information go to www.P65Warnings.ca.gov/service-station."
·Warnings for Vehicle Repair Facilities must include: "Breathing the air in this area or skin contact with petroleum products can expose you to chemicals including benzene, motor vehicle exhaust and carbon monoxide, which are known to the State of California to cause cancer and birth defects or other reproductive harm.Do not stay in this area longer than necessary.For more information go to www.P65Warnings.ca.gov/vehicle-repair."
·Warnings for Petroleum Products from industrial operations and facilities, other than from services stations and vehicle repaid facilities, must include: "Crude oil, gasoline, diesel fuel, and other petroleum products can expose you to chemicals including toluene and benzene, which are known to the State of California to cause cancer and birth defects or other reproductive harm.These exposures can occur in and around oil fields, refineries, chemical plants, transport and storage operations, such as pipelines, marine terminals, tank trucks, and other facilities and equipment.For more information go to www.P65Warnings.ca.gov/petroleum."
Method of Transmission Requirements for Service Station Facilities, Vehicle Repair Facilities, and Petroleum Products Warnings
Under Prop 65, Service Station Facilities, Vehicle Repair Facilities, and Petroleum Products from industrial operations and facilities other than from services stations and vehicle repair facilities also have specific requirements regarding the method of transmitting their environmental exposure warnings.
Service Station Warnings
A warning for environmental exposures must be posted on a sign at each gas pump.The warning must be printed in no smaller than 22-point font and be enclosed in a box. If other signage at the service station facility is provided for the public in a language other than English, the warning must be provided in both English and that language.
Vehicle Repair Facility Warnings
A warning for environmental exposures must be posted at each public entrance to the repair facility on a sign.The warning must be printed in no smaller than 32-point font and be enclosed in a box. If other signage at the service station or vehicle repair facility is provided for the public in a language other than English, the warning must be provided in both English and that language.
Petroleum Products
Warnings for environmental exposures to petroleum products from industrial operations and facilities, other than from service stations and vehicle repair facilities, must be provided using one or more of the following methods in accordance with the regulations: (1) posting a warning sign in a conspicuous manner with print no smaller than 72-point font at all public entrances to the affected area for spaces with clearly defined entrances; (2) providing a warning notice to each occupant in the affected area through mail, electronically, or otherwise; and/or (3) publishing the warning in the main or local news section of a newspaper with the largest circulation in the area for which the warning is given. Warning notices provided to occupants and published in the newspaper must include a map that clearly identifies the affected area and be provided or published at least once every three (3) months. Warnings published in the newspaper must be at least a quarter-page in size in the print version, and must also be published in an electronic version of the publication, if any. Under all three methods, the warnings must clearly identify one or more sources of exposure.
The warnings must also be transmitted in English and any other language ordinarily used to transmit information. Posted warnings must be provided in English and in any other language used on other signs in the affected area.Similarly, notices delivered to occupants in the affected area must be provided in English and in any other language ordinarily used by the person to communicate with the public. Finally, if a newspaper that is published in a language other than English is circulated in the affected area, the warning must also be published in that newspaper and in that language, in addition to being published in English in at least one English-language newspaper that circulates in that area.
What Does This Mean For CIOMA Members?
These new regulations mark a good time to take a fresh look at your Prop 65 compliance program and revise your current warnings or create new warnings for Service Station Facilities, Vehicle Repair Facilities, and Petroleum Products.In addition, there may be other new provisions that apply to some CIOMA members other than the warning requirements for Service Station Facilities, Vehicle Repair Facilities, and Petroleum Products discussed above.Therefore, be sure to review the new regulation carefully and determine which warnings apply to your operation since failure to comply can be costly as $2,500 per violation per day.
The new Prop 65 regulation will be operative on August 30, 2018.Until then, businesses may continue to comply with the guidelines of the old Prop 65 or transition to begin providing warnings under the new regulation.If you have specific questions on the administration or implementation of Prop 65, you can contact the OEHHA’s Prop 65 program at P65.Questions@oehha.ca.govor by phone at (916) 445-6900.
Resources
Full Regulation:
http://oehha.ca.gov/media/downloads/crnr/art6regtextclean090116.pdf
OEHHA Overview of Proposition 65:
http://oehha.ca.gov/media/downloads/proposition-65/general-info/p65plain.pdf
List of Proposition 65 hazardous chemicals:
http://oehha.ca.gov/proposition-65/proposition-65-list
Enforcement information:
Article provided by Colin Calvert, Fisher & Phillips, LLP
