LEXINGTON LAW GROUP Howard Hirsch, State Bar No. 213209 Lucas Williams, State Bar No. 264518 503 Divisadero Street San Francisco, CA 94117 Telephone: (415) 913-7800 Facsimile: (415) 759?41 12 hhirsch@lexlawgroup.com lwilliams@lexlawgroup.com Attorneys for Plaintiff CENTER FOR ENVIRONMENTAL HEALTH ENDORSED FILED ALAMEDA COUNTY SEP 20 2015 CLERK OF COURT By - Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ALAMEDA CENTER FOR ENVIRONMENTAL HEALTH, a non-pro?t corporation, Plaintiff, DOW AGROSCIENCES and DOES 1 through 100, inclusive, Defendants. Case No. c. ?7 - COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL PENALTIES Health Safety Code 25249.6, et seq. (Other) COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL PENALTIES Plaintiff Center for Environmental Health, in the public interest, based on information and belief and investigation of counsel, except for information based on knowledge, hereby makes the following allegations: INTRODUCTION 1. This Complaint seeks to remedy Defendants? continuing failure to warn individuals in California that they are being exposed to 1,3-Dichloropropene a chemical known to the State of California to cause cancer. Such exposures have occurred, and continue to occur, through the manufacture, distribution, sale and use of soil fumigants that contain l,3?D as an active ingredient such as Telone IITM sold by Defendants (?Telone?). Individuals, including pregnant women and children, living or working in and around Township and Range 28825E in Shafter, California (?Shafter?) where Telone is used are exposed to when they breathe the air following applications of Telone to agricultural crops. 2. Under California?s Proposition 65, Health Safety Code 25249.5, et seq, it is unlawful for businesses to knowingly and intentionally expose individuals in California to chemicals known to the State to cause cancer without providing clear and reasonable warnings to individuals prior to their exposure. Defendants manufacture and sell Telone for use on agricultural crops to control pests. is released into the air following applications of Telone to the agricultural crops, thereby exposing individuals living or working in and around Shafter to 3. Despite the fact that Defendants expose pregnant women, children and other individuals to Defendants provide no warnings whatsoever about the carcinogenic hazards associated with l,3?D exposure. Defendants? conduct thus violates the warning provision of Proposition 65. Health Safety Code 25249.6. PARTIES 4. Plaintiff CENTER FOR ENVIRONMENTAL HEALTH is a non?profit corpOration dedicated to protecting the public from environmental health hazards and toxic exposures. CEH is based in Oakland, California and incorporated under the laws of the State of California. CEH is a ?person? within the meaning of Health Safety Code - 1 - COMPLAINT FOR INIUNCTIVE RELIEF AND (:1er PENALTIES 25249.11(a) and brings this enforcement action in the public interest pursuant to Health Safety Code CEH is a nationally recognized non?profit environmental advocacy group that has prosecuted a large number of Proposition 65 cases in the public interest. These cases have resulted in signi?cant public bene?t, including the reformulation of thousands of products to remove toxic chemicals to make them safer. CEH also provides information to Californians about the health risks associated with exposure to hazardous substances, where manufacturers and other responsible parties fail to do so. 5. Defendant DOW AGROSCIENCES LLC is a person in the course of doing business within the meaning of Health Safety Code 25249.11. Dow AgroSciences LLC manufactures, distributes and/or sells Telone for sale and use in California. 6. DOES 1 through 100 are each a person in the course of doing business within the meaning of Health Safety Code 25249.1 1. DOES 1 through 100 manufacture, distribute, sell and/or use Telone in California. 7. The defendant identi?ed in Paragraph 5 and DOES 1 through 100 are collectively referred to herein as ?Defendants.? 8. The true names of DOES 1 through 100 are unknown to CEH at this time. When their identities are ascertained or the applicable 60-Day Notice of Violation of Proposition 65 runs, the Complaint shall be amended to reflect their true names. JURISDICTION AND VENUE 9. The Court has jurisdiction over this action pursuant to Health Safety Code 25249.7, which allows enforcement in any court of competent jurisdiction, and pursuant to California Constitution Article VI, Section 10, because this case is a cause not given by statute to other trial courts. 10. This Court has jurisdiction over Defendants because each is a business entity that does suf?cient business, has sufficient minimum contacts in California or otherwise intentionally avails itself of the California market through the sale, marketing and/or use of Telone in California and/or by having such other contacts with California so as to render the 2 COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL PENALTIES exercise of jurisdiction over it by the California courts consistent with traditional notions of fair play and substantial justice. 11. Dow AgroSciences LLC has not designated a principal of?ce in California with the California Secretary of State. Therefore, venue is proper in any county in California, including the Alameda County Superior Court. See Easron v. Superior Court (1970) 12 Cal.App.3d 243, 246?247. BACKGROUND FACTS 12. The People of the State of California have declared by initiative under PrOposition 65 their right be informed about exposures to chemicals that cause cancer, birth defects, or other reproductive harm.? Proposition 65, 13. To effectuate this goal, Proposition 65 prohibits exposing people to chemicals listed by the State of California as known to cause birth defects or other reproductive harm above certain levels without a ?clear and reasonable warning? unless the business responsible for the exposure can prove that it ?ts within a statutOry exemption. Health Safety Code 25249.6 states, in pertinent part: No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without ?rst giving clear and reasonable warning to such individual . . . . 14. On January 1, 1989, the State of California of?cially listed as a chemical known to cause cancer. became subject to the Proposition 65 ?clear and reasonable? cancer warning one year later beginning on January 1, 1990. 27 C.C.R. 27001(b); Health Safety Code 15. The active ingredient in Telone is Telone is comprised entirely or mostly of Telone is injected into the soil of agricultural crops and, upon application, the quickly volatizes through the soil and moves up into the air. The primary route of exposure for the violations is inhalation when individuals that live or work in and around Shafter breathe the air following applications of Telone to the soil of agricultural crops. Signi?cant - 3 COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL PENALTIES ?Jam amounts of Telone have been used and continue to be used in and around Shafter. Thus, the exposures occur in and around Shatter. 16. is designated as a hazardous air contaminant under federal and California law. 42 U.S.C. 7412; Cal. Code Regs, tit. 3, 6860. In addition to being a known carcinogen, Defendants acknowledge that excessive inhalation of ?may cause serious adverse effects, even death? as well as causing ?irritation to upper respiratory tract (nose and throat) and lungs.? Material Safety Data Sheet for Telone E.C. Soil Fumigant, available at Likewise, the labels of Defendants? Telone acknowledge the ?high acute inhalation toxicity and carcinogenicity? of Telone. Specimen Label for Telone EC, available at Despite 1,3?D?s widely recognized hazardous health effects, Telone is one of the most commonly used soil fumigants in California. 17. No clear and reasonable warning is provided to individuals living or working in and around Shafter regarding the carcinogenic hazards of 18. Any peI?SOn acting in the public interest has standing to enforce violations of Proposition 65 provided that such person has supplied the requisite public enforcers with a valid 60-Day Notice of Violation and such public enforcers are not diligently prosecuting the action within such time. Health Safety Code 19. More than sixty days prior to naming each Defendant in this lawsuit, CEH provided a 60?Day ?Notice of Violation of Proposition 65? to the California Attorney Generai, the District Attorneys of every county in California, the City Attorneys of every California city with a population greater than 750,000 and to each of the named Defendants. In compliance with Health Safety Code 25249.7(d) and 27 C.C.R. 25903(b), the Notice included the following information: (1) the name and address of each violator; (2) the statute violated; (3) the time period during which violations occurred; (4) specific descriptions of the violations, including 1 This Complaint does not challenge the suf?ciency of the labeling of Defendants? Telone. 4 COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL PENALTIES the route of exposure to from the use of Telone, and the location of the exposures; and (5) the name of the speci?c Proposition 65?listed chemical that is the subject of the violations described in the Notice. 20. CEH also sent a Certi?cate of Merit for the Notice to the California Attorney General, the District Attorneys of every county in California, the City Attorneys of every California city with a population greater than 750,000 and to each of the named Defendants. In compliance with Health Safety Code 25249.7(d) and 11 C.C.R. 3101, the Certificate certi?ed that counsel: (1) has consulted with one or more persons with relevant and appropriate experience or expertise who reviewed facts, studies or other data regarding the exposures to alleged in the Notice; and (2) based on the information obtained through such consultations, believes that there is a reasonable and meritorious case for a citizen enforcement action based on the facts alleged in the Notice. In compliance with Health Safety Code 25249.7(d) and i 1 C.C.R. 3102, the Certificate served on the Attorney General included factual information provided on a confidential basis sufficient to establish the basis for the Certi?cate, including the identity of the person(s) consulted by counsel and the facts, studies or other data reviewed by such persons. 21. None of the public prosecutors with the authority to prosecute violations of Proposition 65 has commenced and/0r is diligently prosecuting a cause of action against Defendants under Health Safety Code 25249.5, et seq, based on the claims asserted in Notice. 22. Defendants both know and intend that individuals will be exposed to 1,3- from the use of Telone manufactured and sold by Defendants. 23. Under Proposition 65, an exposure is ?knowing? where the party responsible for such exposure has: knowledge of the fact that a[n] . . . exposure to a chemical listed pursuant to [Health Safety Code is occurring. No knowledge that the . . . exposure is unlawful is required. 5 COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL PENALTIES noC.C.R. 25102(n). This knowledge may be either actual or constructive. See, cg, Final Statement of Reasons Revised (November 4, 1988) (pursuant to former 22 C.C.R. Division 2, 12201). 24. Defendants know that Telone contains 1.3-1) because it is the active ingredient in Telone. 25. The fact that individuals living or working near agricultural areas where Telone is used are exposed to has also been widely discussed in media reports and government studies such that Defendants have knowledge of the exposures that result from use of Telone. 26. Defendants have also been informed of the exposures caused by use of Telone by the 60?Day Notice of Violation and accompanying Certificate of Merit served on them by CEH. 27. Defendants know or should know that every application of Telone to agricultural crops causes to be emitted into the air. Defendants thus know and intend that individuals who live or work near areas where Telone is used inhale the l,3?D emitted into the air following applications of Telone. These exposures are a natural and foreseeable consequence of Defendants? placing of Telone into the stream of commerce. 28. Nevertheless, Defendants continue to expose individuals living or working in and around Shafter to without providing prior clear and reasonable warnings regarding the carcinogenic hazards of l,3?D. 29. CEH has engaged in extensive good faith efforts to resolve the claims alleged herein prior to filing this Complaint. 30. Any person ?violating or threatening to violate? Proposition 65 may be enjoined in any court of competent jurisdiction. Health Safety Code 25249.7. ?Threaten to violate? is de?ned to mean ?to create a condition in which there is a substantial probability that a violation will occur.? Health Safety Code 25249.1 Proposition 65 provides for civil penalties not to exceed $2,500 per day for each violation of Proposition 65. -6- COMPLAINT FOR RELIEF AND CIVIL PENALTIES FIRST CAUSE OF ACTION (Violations of the Health Safety Code 25249.6) 31. CEH realleges and incorporates by reference as if speci?cally set forth herein Paragraphs 1 through 30, inclusive. 32. By placing Telone into the stream of commerce, each Defendant is a person in the course of doing business within the meaning of Health Safety Code 25249.1 1. 33. l,3-D is a chemical listed by the State of California as known to cause cancer. 34. Defendants know that average use of Telone will expose individuals living or working in and around Shafter where Telone is used to Defendants intend that Telone be used in a manner that results in exposures to from Telone. 35. Defendants have failed, and continue to fail, to provide clear and reasonable warnings regarding the carcinogenic hazards of to individuals living or working in and around Shafter where Telone is used. 36. By committing the acts alleged above, Defendants have at all times relevant to this Complaint violated Proposition 65 by knowingly and intentionally exposing individuals living or working in and around Shafter to without ?rst giving clear and reasonable warnings to such individuals regarding the carcinogenic toxicity of l,3?D. PRAYER FOR RELIEF CEH prays for judgment against Defendants as follows: 1. That the Court, pursuant to Health Safety Code assess civil penalties against each of the Defendants in the amount of $2,500 per day for each violation of Proposition 65 according to proof; 2. That the Court, pursuant to Health Safety Code preliminarily and permanently enjoin Defendants from exposing individuals living or working in and around Shafter to without providing prior clear and reasonable warnings, as CEH shall specify in further application to the Court; -7- COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL PENALTIES 3. That the Court, pursuant to Health Safety Code order Defendants to take action to stop ongoing unwarned exposures of individuals living or working in and around Shatter to 1,3 resulting ?om use of Telone sold by Defendants, as CEH shall specify in further application to the Court; 4. That the Court, pursuant to Code of Civil Procedure 102} .5 or any other applicable theory, grant CEH its reasonable attomeys? fees and costs of suit; and 5. That the Court grant such other and further relief as may be just and proper. Dated: September 20, .2016 Respectfully submitted, LEXINGTON LAW GROUP Howard Hirsch Attorneys for Plaintiff CENTER FOR ENVIRONMENTAL HEALTH .. 3 COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL PENALTIES