Beveridge & Diamond
 

California Court Affirms Proposition 65 Labor Code Listing Mechanism

Ruling Would Permit Adding Chemicals to Proposition 65 List
Beveridge & Diamond, P.C., May 15, 2009

On April 24, 2009, a California trial court ruled that chemicals identified in worker safety standards as carcinogens and reproductive toxicants must be listed under California’s Safe Drinking Water and Toxics Enforcement Act of 1986,[1] popularly known as “Proposition 65,” without further scientific review.  Sierra Club v. Schwarzenegger, No. RG07-356881 (Cal. Super. Ct., Alameda, Apr. 24, 2009).  Proposition 65 requires the State of California to compile and maintain a list of substances known to cause cancer, birth defects, and reproductive harm, and to update the list annually.  Listed chemicals may not be discharged to drinking water and businesses may not expose people to them without first providing a clear and reasonable warning.  Currently, the Proposition 65 list includes more than 800 chemicals.  Approximately two dozen chemicals would be have to be added to the list as a result of the court’s decision, and approximately twenty more could be required to be added depending on the outcome of remaining issues in the case.

Proposition 65 provides that the list of chemicals must include, at a minimum, the substances listed in worker safety standards set forth in California Labor Code sections 6382(b)(1) and Section 6382(d).  Those standards refer to substances listed as carcinogens by the International Agency for Research on Cancer and substances identified as carcinogens and/or reproductive toxicants by the federal Occupational Health and Safety Administration (“OSHA”) in its Hazard Communication Standard (“HCS”), 29 C.F.R. § 1910.1200.[2]  This provision of Proposition 65 has come to be known as the “labor code mechanism” for listing chemicals.

The April 24 ruling held that the state can employ the labor code mechanism to list chemicals without additional scientific review.  The California Chamber of Commerce (“CCC”) brought the lawsuit, challenging the action of the California Office of Environmental Health Hazard Assessment (“OEHHA”) to add chemicals to the Proposition 65 list through the labor code mechanism.  That suit was consolidated with a lawsuit brought by a coalition of environmental and labor groups.  The environmental and labor groups alleged that OEHHA is failing to enforce Proposition 65 by: (a) moving too slowly in identifying carcinogens for listing and (b) not using all available mechanisms, including the labor code mechanism, to list chemicals.  A decision is pending on several issues in the consolidated case, including whether chemicals listed by the ACGIH can be added to the Proposition 65 list without additional scientific review.  Approximately twenty chemicals on the ACGIH list, such as tert-Amyl methyl ether and calcium chromate, could be added to the Proposition 65 list depending on the outcome of the case.

The language of Proposition 65 suggests that the labor code mechanism was intended only for a one-time application to establish the initial list of chemicals in 1987.  CCC, representing industry interests, argued in Sierra Club v. Schwarzenegger that the labor code mechanism is no longer available as a listing mechanism.  The court rejected that argument, finding that Proposition 65 “imposes a clear ministerial duty” on the state to list chemicals linked to cancer and reproductive harm already identified in labor codes “without review.”  Environmental and labor groups declared the April 24 decision a victory.  CCC has indicated it will appeal the ruling after the related issues are decided.

Regulation Underway

The labor code mechanism is one of four mechanisms in Proposition 65 for listing chemicals.[3]  For over fifteen years after the adoption of Proposition 65 and creation of the initial list in 1987, OEHHA ignored the labor code mechanism and used the other mechanisms for listing chemicals.  In 2006 OEHHA listed the chemical Areca nut & Betel quid w/o tobacco based solely on its status as a labor code chemical.  In 2008 OEHHA listed four additional chemicals using the labor code mechanism.  Opposition to those listings prompted OEHHA in 2008 to request input from stakeholders concerning a possible regulation clarifying the Proposition 65 listing process.  The new regulation would set forth the method OEHHA uses to determine whether a chemical or substance has been identified for listing by reference to the labor code provisions.  Possible regulatory language offered by OEHHA can be found here.

Public comments on the pre-regulatory proposal were accepted last year.  Industry opposed the proposed regulation, arguing, among other things, that it will create an ongoing, mandatory, and non-discretionary duty to add chemicals to the Proposition 65 list without review by the state’s qualified experts.  That expert review, industry argues, is critical to ensure listings are supported by science, and is what the public intended when it voted Proposition 65 into law.  Further, industry argues the proposed regulation is based on a flawed interpretation of the HCS.

OEHHA has not issued a proposed or final regulation on the labor code mechanism, and has not indicated when it will do so.  OEHHA may postpone formally proposing the regulation until the remaining issues in Sierra Club v. Schwarzenegger are decided.  Because the case will certainly be appealed, the proposal could be postponed for months.  Interested parties should monitor OEHHA’s website for additional opportunities to comment as they arise.  A link to OEHHA’s Proposition 65 website is available here.

For more information, please contact Gary Smith at gsmith@bdlaw.com, Mark Duvall at mduvall@bdlaw.com, or Suzanne Piluso at spiluso@bdlaw.com.


[1] California Health and Safety Code section 25249.5 et. seq.

[2] The OSHA standards include chemicals listed by the American Conference of Governmental Industrial Hygienists (“ACGIH”) and included in the National Toxicology Program Report on Carcinogens.  29 C.F.R. § 1910.1200(d)(3). 

[3] The other three mechanisms are: (1) chemicals identified by the State’s Qualified Experts, (2) chemicals identified by other federal or state authoritative bodies (including, for example, the U.S. Environmental Protection Agency and the U.S. Food and Drug Administration), and (3) chemicals formally required to be listed by an agency of the state or federal government (chemicals that fall in this category are mainly prescription drugs).

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