Mateel Environmental Justice Foundation v. Edmund A. Gray Co.

The Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Saf. Code, §§ 25249.5-25249.13), adopted by vote of the people at the November 1986 election as Proposition 65, regulates the discharge of specific toxins into California’s drinking water. A Proposition 65 plaintiff alleging an unlawful discharge bears the burden of proving that a discharge has in fact occurred. Regulations adopted pursuant to Proposition 65 establish a hierarchy of four “tiers” of tests that may be used to measure whether a listed toxin has been discharged. The regulations provide that a discharge occurs if the toxin is detectable using a test from the highest available tier.

In this case, plaintiff alleged that plumbing parts distributed by defendants discharge lead into drinking water. On a motion for summary judgment, defendants asserted that a Tier 1 test for lead in drinking water exists, the trial court agreed that a Tier 1 test exists, and the trial court granted summary judgment because plaintiff had not performed a Tier 1 test. We disagree with the trial court’s conclusion that the test put forward by the defendants is a Tier 1 test. Consequently, we reverse the judgment for…