1. DISCHARGE PROHIBITION: PEOPLE EX REL. LUNGREN V SUP. CT. (AMERICAN STANDARD ET AL REAL PARTIES) Enforcement action Injunction & civil penalties “No person in the course of doing business shall knowingly discharge or release a chemical known to the state to cause cancer or reproductive toxicity into water or onto or into land where such chemical passes or probably will pass into any source of drinking water” § 25249.5

2. LUNGREN FACTS & CLAIMS Allegation: lead leaching from faucets known for years Defendant’s claim: faucets not a “source of drinking water”

3. LUNGREN DEFINITION OF “SOURCE OF DRINKING WATER” 1. 1. Present source of drinking water, or 2. 2. Water which is identified or designated in a water quality control plan adopted by a regional board as being suitable for domestic or municipal purposes. § 25249.11

4. LUNGREN DEFINITION OF “SOURCE OF DRINKING WATER” Dictionary Ultimate origin, e.g. stream Defendants support Court: too narrow since definition covers reservoirs etc Pont of origin, procurement or emanation Ag supports Defendants argue distinction between first & second part of statute definition is temporal

5. LUNGREN COURT’S REASONING Legislative purpose Defendants argue noscitur a sociis Faucet markedly dissimilar from bodies of water Court: purpose to protect drinking water Defendants argue agency interpretation Court: no official interpretation

6. 6 PASSIVE MIGRATION: CONSUMER ADVOCACY GROUP V. EXXON MOBIL CORP. Discharge case Statute of limitations from initial release has expired Issue: does continuing passive migration of contaminants previously released to soil constitute a discharge? Allegation: contaminants left in soil or groundwater constitute a discharge each day until no chemicals remain. Fn 4. Consider total liability

7. 7 CONSUMER ADVOCACY HOLDING & RATIONALE Passive migration is not discharge Rationale: Dictionary definitions Release from confinement Active concept Ballot materials “Put” “Dumping” Again: actively placing Plaintiff’s arguments Other statutory definitions Purpose of prop. 65

8. 8 PROP 65 EXEMPTION 25249.10. Exemptions from warning requirement Section 25249.6 shall not apply to any of the following:... (c) an exposure for which the person responsible can show that the exposure poses no significant risk

9. 9 PROP 65 SCIENTER § 12102(n) “’knowingly’” refers only to knowledge of the fact that a discharge of, release of, or exposure to a chemical listed pursuant to section 25249.8(a) of the act is occurring. No knowledge that the discharge, release or exposure is unlawful is required. However, a person in the course of doing business who, through misfortune or accident and without evil design, intention or negligence, commits an act or omits to do something which results in a discharge, release or exposure has not violated sections 25249.5 or 25249.6 of the act.”

10. 10 THE CLEAN WATER ACT CUYAHOGA RIVER, OHIO —1969

11. 11 CLEAN AIR ACT V CLEAN WATER ACT Similarities Big federal statutes; adopted early 70’s; Response to ineffective state laws States have key role in implementation Diversity of pollutants Distinctions affecting stringency: Existing v new sources “conventional” pollutants v toxics Differences CWA is largely technology-based; CAA is largely health-based (but differences have diminished) Key distinction in CWA between point sources and nonpoint sources

12. 12 POINT SOURCES OVERVIEW: 1972 AMENDMENTS TO FEDERAL WATER POLLUTION CONTROL ACT All point source discharges unlawful except by permit. § 301 National pollutant discharge elimination system (“NPDES”) permits. § 402   EPA administers or delegates to states   Permits must incorporate “effluent limits”

13. 13 POINT SOURCES OVERVIEW: 1972 AMENDMENTS, CONT’D EFFLUENT LIMITS For existing sources effluent limits must require: Best practicable technology currently available (“BPT”) “average of the best” Requires cost-benefit analysis For new sources must require: Best demonstrated available technology (“BDAT”) Most stringent; just consider costs to determine if reasonable for new sources

14. 14 POINT SOURCES OVERVIEW: 1977 AMENDMENTS CREATED POLLUTANT CLASSIFICATIONS Toxics Cause death, disease, cancer, genetic mutations e.g. mercury & PCBS Initial 126 “priority pollutants” listed by congress Conventional Oxygen depleting substances, sediment, nutrients, & ph; pollutants typical of municipal sewage (BOD, fecal coli form bacteria, oil & grease) Nonconventional Pollutants not listed as conventional or toxic intermediate environmental concern e.g. total organic carbon, chemical oxygen demand (COD), phosphorous

15. 15 POINT SOURCES OVERVIEW: 1977 AMENDMENTS, CONT’D REQUIRED EFFLUENT LIMITS BY POLLUTANT CLASS Conventional pollutants: Best conventional pollutant control tech (“BCT”) More stringent than BPT, but less stringent than bat since requires cost- benefit analysis Compliance deadlines were after BPT deadlines Toxics and nonconventional pollutants : Best available technology economically achievable (“BAT”) More stringent than BCT May match single best performer Considers cost, but no cost-benefit analysis New sources: BDAT Most stringent

16. 16 Hal

17. 17 PERMIT REQUIREMENT: NRDC V COSTLE Issue: may EPA exempt classes of sources from permit requirement? EPA concerns: Workload Difficulty of establishing uniform standards for agriculture Held: no authority to exempt Rationale Leg history Need for uniformity to avoid competition for industry Uniform limitations can be modified to account for special characteristics Can also use general permits