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Lawsuit Against OEHHA Seeks Prop 65 Zero Threshold for Lead

On January 13, 2015, Mateel Environmental Justice Foundation filed a lawsuit against the California Office of Environmental Health Hazard Assessment in Alameda County Superior Court (Case No. RG15754547), alleging that the current Proposition 65 warning level for lead of 0.5 micrograms per day is based on old science and that “there is no threshold exposure level below which the neurodevelopmental toxicity of lead cannot be seen to occur.” Mateel, a prolific Proposition 65 bounty hunter which has filed thousands of Proposition 65 lawsuits, seeks an order requiring OEHHA to rescind the current Maximum Acceptable Dose Level (MADL) for lead — and, implicitly, seeks an order requiring OEHHA to establish a lead MADL of zero.

Mateel and OEHHA have been in discussions about the current lead MADL for several months. But, rather than submitting a petition to the agency to formally review the current MADL, which would have triggered a transparent regulatory process to which all stakeholders could contribute, Mateel filed suit. In this regard, Mateel’s lawsuit may be challenged for failure to exhaust administrative remedies. However, it is not clear at this time whether OEHHA will defend the lawsuit vigorously or seek a settlement that would establish a lower MADL.

A lower lead MADL — and, certainly, a MADL of zero — would dramatically increase the number of Proposition 65 warnings businesses must provide, increase the number of Proposition 65 enforcement actions, and potentially reopen thousands of Proposition 65 settlements involving lead. This is hardly what OEHHA or the Governor’s office has been aiming to achieve in recent efforts to revise the Proposition 65 warning regulations. Nor should OEHHA open the door to legal adjudication of matters of critical importance to a broad spectrum of stakeholders, without requiring the challenger to proceed through a transparent administrative process first. OEHHA would better serve all of its stakeholders by defending this case vigorously.

Ms. Grimaldi maintains a diverse environmental law practice focusing on chemical and product regulation and litigation defense. Her practice areas include Proposition 65, California's Safer Consumer Products Regulations, California's Rigid Plastic Packaging Container Act and the federal Toxic Substances Control Act. Ms. Grimaldi graduated from the University of California Hastings College of the Law magna cum laude and holds a Bachelor of Science Degree in Bacteriology from University of California, Davis. Prior to attending law school, she worked as a research assistant in laboratories at the University of California, San Francisco Cancer Research Institute and at the University of California, San Francisco School of Medicine.