Beginning on December 18, 2010, contractors, suppliers, manufactures, and any other businesses in the construction trades which manufacture, install, transport, or deal in any way with wood products which may contain wood dust, are mandated to post a Proposition 65 warning at their facilities or on their products.
The Safe Drinking Water and Toxic Enforcement Act of 1986 (typically referred to as Proposition 65) requires that the State of California maintain a list of substances known by the state to cause cancer or reproductive harm. It then provides that no person in the course of doing business shall knowingly and intentionally expose an individual to these substances without first providing a clear and reasonable warning. The warning can be given by a variety of means, such as by labeling a consumer product, posting signs at the workplace, or distributing or publishing notices. Proposition 65 warning are now a common sight to most Californians, as a they are commonly posted at department stores, home improvement retailers, and many other businesses.
The warning requirement applies to any person employing ten or more employees who manufactures, produces, sells, distributes, or otherwise transfers a listed substance into the stream of commerce in California.
Once a substance is listed on the state’s list, subject businesses have 12 months to comply with warning requirements. In December 2009 the state published a new list, which included “wood dust” as a substance subject to the proposition’s requirements, thereby giving businesses until December 2010 to come into compliance. As such, beginning this month, businesses with ten or more employees must post a Proposition 65 warning if wood dust is present at their facility or if they sell or transport wood products.
No definition of “wood dust” accompanied its listing. Although, the phrase is defined elsewhere in the law. U.S. OSHA guidelines define wood dust as, “pulverized wood wastes, or other dusts from cutting, shaping, drilling, sanding, or general handling of wood,” and identifies wood dust synonyms such as, “finely divided wood particles, powdered wood, sawdust, wood flour, hardwood dust, wood shavings, [and] softwood dust” If these definitions are adopted by the courts and/or by further Proposition 65 regulation, then wood dust could deemed present on nearly every construction site, and in nearly every shop and construction related retail or wholesale location.
A warning sign which appears to be in current usage by some business is following:
“Drilling, sawing, sanding or machining wood products generates wood dust, a substance known to the State of California to cause cancer. Avoid inhaling wood dust or use a dust mask or other safeguards for personal protection.”
Businesses who fail to comply with Proposition 65 could be subject to an attorney general enforcement proceeding. Still worse, they could be subject to a private enforcement lawsuit by a member of the public, and be levied with a monetary judgment for damages and the claimant’s attorney’s fees, an injunction, and/or civil penalties. As such, prudent businesses should determine if they are subject to Proposition 65, and – if yes – their compliance with the same.
For more information, businesses can visit the California OSHA Proposition 65 website.