That Proposition 65 applies to potentially impose penalties on companies with ten or more employees is widely known. Recently the California Court of Appeal, in an unpublished (non-citable) opinion, clarified what that term means, as well as addressing the question of the time period when violations occur and thus for which liability can be imposed.
As opposed to the more common cases involving sales of goods, the issue in Mateel Environmental Justice Foundation v. Ukiah Rifle and Pistol Club was environmental, specifically water contamination, or potential contamination. Mateel alleged that the shooters on the 98 acre Rifle Club grounds used lead ammunition, which was allowed to remain on the land, and that when it rained, lead from the spent ammunition was leached out and flowed into an adjacent creek, and thus into the Russian River.
The Rifle Club brought a motion for summary judgment on the grounds that during the four days within the relevant time period before the Notice of Violation was issued, which were identified by Mateel as days when it was raining (thus allowing rainwater to leach lead into the creek), the Rifle Club did not have ten employees. The trial court granted that motion, entering Judgment on behalf of the Rifle Club. Mateel appealed, and the Appellate Court partially reversed, and sent the case back to the trial court level to ascertain further facts.
First of all, the Appeals Court held that the relevant time period during which a violation could occur was not just the four days when it was actually raining: Rather, the relevant dates were all times in which lead was deposited onto the land, where it could be leached into the water in the future. “No person in the course of doing business shall knowingly discharge or release a chemical known to the state to cause cancer or reproductive toxicity into water or onto or into land where such chemical passes or probably will pass into any source of drinking water, notwithstanding any other provision or authorization of law except as provided in Section 25249.9.” (emphasis added). In this case, given a Notice of Violation date in February of 2018, the relevant time period for which a penalty for violation of the law could be applied was the entire period from February of 2017 to the Notice date.
The next and more complicated issue was the question of “who is an employee”? The Rifle Club was more than a shooting range: it had several programs which Board members, and possibly others, oversaw. There were nine Board members during the time frame relevant to the action, and while not guaranteed, the Board members received waivers of the Club dues in exchange for the work that they did supervising the programs and managing the Rifle Club.. Using an admittedly broad interpretation of the term “employee” (mostly derived from Workers’ Compensation case law) the Court held that Board Members who work on behalf of the Rifle club in the anticipation that they might receive a fee waiver are, legally, employees of the Rifle Club. That was, by the way, a $150 annual fee.
The Appeals Court sent the case back to the trial court level for fact finding as to whether, during the relevant time in which spent ammunition was being left on the ground, there was one club member in addition to Board members who had their fees waived. If so, the Rifle Club will be subject to penalties under Proposition 65. Again, this case cannot be cited, but the laws and cases cited by the Court can be used in discussing future cases.
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