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New Breed of Bounty Hunter to Hit Polluters

February 14, 1988|RICHARD C. PADDOCK | Times Staff Writer

SACRAMENTO — Soon in California there will be a new breed of bounty hunters. Their target will be corporate polluters. Their weapon will be a potent new law: Proposition 65, the anti-toxics initiative.

Environmentalists and other citizens, who often have been powerless to halt pollution in their communities, will be able to haul offenders into court and seek huge penalties against them for exposing the public to cancer-causing chemicals.

The reward for bringing lawbreakers to justice will be large. Beginning Feb. 27, anyone who wins a Proposition 65 lawsuit will receive 25% of the fine assessed by the court against a business found in violation of the law.

Environmentalists, who are known more for championing causes than for making money, may soon get a lesson in what the profit motive is all about.

"Its major contribution is going to be to enlist private citizens in the battle to prevent toxic contamination of drinking water and the environment," said Al Meyerhoff, an attorney with the Natural Resources Defense Council. "It's unique, and will have a dramatic effect on industry."

Under Proposition 65, which won with 63% of the vote in 1986, businesses are prohibited from exposing the public to chemicals known to cause cancer or birth defects unless they first provide a "clear and reasonable" warning of the danger. The warning requirements take effect for 29 chemicals at the end of this month.

Businesses that violate the initiative can be fined up to $2,500 a day for each individual exposed to a toxic chemical--a penalty that could quickly add up to substantial sums of money.

The initiative will also make it easier for citizens to win toxic cases in court by shifting the burden of proof onto businesses and requiring them to demonstrate that the chemicals they use do not pose a danger to the public.

The prospect of hundreds of citizen lawsuits with fines potentially reaching into the millions of dollars has sent shock waves through the business community.

Possible Abuse Seen

"Anybody can bring a lawsuit," protested John Hunter, a lobbyist for the California Manufacturers Assn. "It certainly puts a tool in the hands of some people who want to abuse it."

Both environmentalists and business leaders realize that judicial decisions in the first Proposition 65 lawsuits will shape the way the initiative is enforced for years.

For that reason, environmental lawyers are planning to pick their initial cases with care, zeroing in on clear-cut violations that are likely to bring substantial penalties.

"We are not supportive of widespread or thoughtless or scatter-gun enforcement," said David Roe, an attorney for the Environmental Defense Fund and a principal author of the initiative. "There are going to be a few cases, they are going to be carefully thought-out and they are going to be well-aimed."

The fears of corporate executives were intensified recently when the Sierra Club, the Environmental Defense Fund and the Natural Resources Defense Counsel sponsored a two-day conference in Los Angeles to teach attorneys how to take advantage of the new law.

Firms Sent Own Lawyers

Dozens of companies were so worried that they sent their own lawyers to the conference. One firm, the Kerr-McGee Corp.--perhaps best known for operating the Oklahoma plutonium plant where Karen Silkwood was exposed to radiation--even requested a group rate for its attorneys, organizers of the meeting said.

At the conference, legal experts outlined how to bring a successful lawsuit under Proposition 65, using such hypothetical examples as an oil refinery that emits dangerous levels of benzene and a lumberyard that sells products treated with an arsenic-based wood preservative.

Both arsenic and benzene are among the 29 chemicals that will be subject to the initiative's warning requirements beginning Feb. 27. They are also widespread in the environment and have a broad variety of commercial uses that come under the restrictions of the initiative.

Proposition 65, according to its backers, was designed to persuade businesses that it is cheaper to eliminate toxic chemicals than it is to endanger the public health--and that they run a high risk of being caught if they break the law.

"What better incentive for industry to get these chemicals out of the marketplace than the threat of substantial penalties," said Meyerhoff, the Natural Resources Defense Council attorney. "Unfortunately, corporations seem to listen best when their assets are under threat of diminution."

Bankroll for Movement

As an added insult, companies that are penalized for violating the initiative may help bankroll the environmental movement. Meyerhoff and other activists plan to use proceeds from their first successful Proposition 65 lawsuits to create a legal fund to finance a wide range of cases.

"The environmental community hopefully will increase its legal resources a hundredfold," Meyerhoff said.

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