Pfeiffer Thigpen
FitzGibbon & Ziontz LLP

The Firm handles all types of environmental matters for a wide range of clients. Specific areas of expertise and the types of matters handled are indicated below:

Contaminated Property
Prosecution and defense of private party cost recovery claims under CERCLA and California state law
Defense of EPA claims for cleanup costs
Negotiation with oversight agencies regarding remediation
Negotiation of Indemnities and Access Agreements

Clean Water Act & California Porter-Cologne Act
Defense of governmental enforcement action
Compliance disputes from transactions

Clean Air Act & South Coast AQMD Regulations
Defense of agency enforcement action
Counseling and regulatory compliance advice to regulated companies

Hazardous Waste
Defense of administrative enforcement actions
Regulatory compliance advice - federal and California
Auditing

Underground Storage Tanks
Defense of governmental compliance actions
Compliance advice to owners and operators

Brownfields
Provide advice regarding remediation obligations and possible funding sources

California Environmental Quality Act
Litigation regarding compliance issues
Provide advice and guidance to developers

Climate Change
Advise companies on emerging legal requirements

Transactional Matters
Provide advice in environmental due diligence phase of transactions
Prepare and negotiate indemnity agreements
Prepare and negotiate environmental representations and warranties
Consult regarding environmental insurance and other risk allocation techniques

Proposition 65

The Firm has handled many matters involving California’s Proposition 65, a statute passed by the initiative process by California voters in 1986. We handle litigation matters as well as provide compliance advice to businesses. Larger law firms also handle Proposition 65 matters and often do so very effectively, but as a smaller, boutique law firm we have a strong background and are able to handle most matters on a far more cost-effective basis than the larger firms. We also have relationships and have worked with very experienced toxicologists and testing laboratories in defending enforcement actions and providing compliance advice to clients.

Proposition 65 Background:

Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, was enacted as a ballot initiative in November 1986. The Proposition was intended by its authors to protect California citizens and the State's drinking water sources from chemicals known to cause cancer, birth defects or other reproductive harm, and to inform citizens about exposures to such chemicals. Thus, the statute has two principal components: (1) the prohibition on the discharge of listed substances into drinking water or sources of drinking water, and (2) the warning provisions, which require companies or individuals to provide a clear and reasonable warning to any person prior to exposing such person to a listed chemical, unless certain exceptions are met.

In order to determine the scope of the discharge prohibition and the warning requirement, Proposition 65 requires the Governor to publish, at least annually, a list of chemicals known to the state to cause cancer or reproductive toxicity.

Over the years, the warning requirements in the statute have been abused by private enforcers because of the statute’s unique liability structure that places the burden of proof on the defendant in the event that a plaintiff proves an exposure to a listed chemical has occurred. The statute also has a penalty provision that provides penalties of up to $2,500 per exposure, although as a practical matter, most cases are settled for far, far less than this amount on a per exposure basis, although settlements have a broad range from $40,000 to in excess of $1,000,000. Because of these liability risks and because future compliance in many contexts is fairly simple (e.g. the placement or provision of a warning), many cases settle because the costs of defense would outweigh the proposed settlement.

Because the cases began to follow a pattern with repeat private plaintiffs and the same plaintiff’s counsel, the statute was amended to require a “Certificate of Merit” and the California Attorney General became involved to prevent what they felt were meritless settlements benefitting only private enforcers and their counsel. As a result, new regulations were promulgated that placed specific requirements on Prop. 65 settlements and required reporting to the Attorney General of all settlements. Although abuses continue, these legislative and regulatory changes have limited the frequency of frivolous exposure litigation.

Despite its abuses, Proposition 65 has achieved some positive results and encouraged businesses to find alternative chemicals or formulations in consumer products, which has resulted in potentially fewer heath risks for citizens of California.

Representative Cases and Matters: Firm lawyers have handled the following Proposition 65 matters

Hotel Industry
Firm lawyers represented a large publicly traded hotel chain with over 100 properties in California in the defense of Proposition 65 litigation brought by Reuben Yeroushalmi relating to alleged exposures to cigarette and cigar smoke as well as automobile exhaust. The matter was resolved very favorably by settlement in what became a benchmark settlement for many other hotel owners and operators.
Our lawyers have also represented other hotel owners in defense of similar litigation and achieved similarly effective results.

Residential Apartment Buildings
Tom FitzGibbon defended what was the largest apartment owner in the state at the time (over 100 properties) in the defense of litigation brought by the Consumer Defense Group relating to alleged exposures to cigarette and cigar smoke as well as automobile exhaust and other chemical exposures at residential apartment units. The matter was favorably settled through another industry-leading settlement.

Consumer Products
We have defended a publicly traded pharmaceutical company against Prop. 65 litigation brought by the California Attorney General that involved the presence of coal tar in anti-dandruff shampoos. The matter was litigated for several years and resolved through an industry-wide settlement.
The Firm defended a manufacturer of painted glassware in litigation brought by Russell Brimer that alleged exposure to lead and cadmium. The matter was litigated and eventually resolved favorably for the client after a mediation with Justice Harry Low.

Food & Vitamin Products
The Firm has defended manufacturers and retailers of food and vitamin supplement products in defense of Proposition 65 and failure to warn litigation, including class action litigation.
The Firm has provided compliance advice to manufacturers of vitamin supplements with respect to Proposition 65 compliance issues.
Firm lawyers have provided advice to makers of medical products and vaccines about regulatory issues, including regarding Proposition 65.

Vehicle Manufacturers
Firm lawyers defended a major Japanese motorcycle manufacturer in litigation brought by Steven DiPirro over the presence of toluene in motorcycle paint. The matter was favorably resolved with a minimal payment by the client.

Computer Products
Firm lawyers defended the largest retail seller of computer cables in the United States in the defense of litigation brought by Mateel Environmental Justice Foundation regarding the presence of lead and cadmium in wire and cable. The matter was very favorably settled as a part of an industry-wide settlement.

Chemicals
Firm lawyers have experience in the defense of enforcement actions or providing compliance advice with a range of chemicals:

Arsenic
Acrylamide
Cadmium
Coal Tar
DEA
Lead
Mercury
MTBE
Soots, Tars and Oils
Tobacco Smoke and associated compounds
Toluene
Others

Links to Useful Web Sites
http://www.oehha.ca.gov/prop65.html
http://www.prop65news.com/
http://www.prop65clearinghouse.com/prop65/
http://ag.ca.gov/prop65/