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Litigation

: CalBizLit

You Like The Proposition 65 List Now? Wait 'Til You See It With Still More Chemicals

By Bruce Nye

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Early this month, CalBizLit received a number of press releases concerning a Proposition 65 case in Alameda County Superior Court, generally stating as follows (from the NRDC's press release):

The Alameda Superior Court has ruled that California?s landmark ?right-to-know? and safe drinking water protection law, Proposition 65, must be extended to toxic chemicals known to cause cancer and reproductive harm identified under worker protection standards. The ruling finds in favor of labor and environmental groups, including the Natural Resources Defense Council, United Steelworkers and Sierra Club that fought the case against the California Chamber of Commerce.

I held off on posting until I had time to dig a little further than the press releases. And what I found is pretty interesting. This is kind of Proposition 65 inside baseball, but it's potentially important.

More after the jump.

There were two cases filed, one by the Sierra Club, NRDC, Steelworkers, etc. against the governor, State EPA, OEHHA, the Cancer Identification Committee ("CIC"), its members and others and the other by the Chamber of Commerce against the governor and the directors of the State EPA and OEHHA. The latter case was filed in San Diego County, but the two cases have been consolidated before Judge Freedman in Alameda Superior.

In their First Amended Complaint, available here, the Sierra Club, et al, allege that California has essentially allowed the process for adding chemicals to the Proposition 65 list to grind to a halt. The plaintiffs point out that the CIC meets only once a year, that at the time the complaint was filed, it hadn't added a chemical in five years (since then, in December, 2008, CIC added two chemicals) and that OEHHA was refusing to expedite agendizing the chemical PFOA for CIC's consideration on the ground that federal agency study of PFOA was ongoing. They further allege that the state is violating its mandatory duty to list chemicals idenitified by reference in California Labor Code Sections 6382(b)(1) and 6382(d).

The Chamber of Commerce, on the other hand, sought a court order prohibiting the state from adding chemicals to the list based solely on the two Labor Code sections. A copy of the Chamber's petition is available here (I understand an amended petition was filed on April 21, but it isn't yet available on the court's web site).

Proposition 65, as interpreted by the Court of Appeal in AFL-CIO v. Deukmajian (1989) 212 Cal.App.3d 425, sets out multiple ways that chemicals must be added to the list, and also provides (Health and Safety Code section 25249.8):

(a) On or before March 1, 1987, the Governor shall cause to be published a list of those chemicals known to the state to cause cancer or reproductive toxicity within the meaning of this chapter, and he shall cause such list to be revised and republished in light of additional knowledge at least once per year thereafter. Such list shall include at a minimum those substances identified by reference in Labor Code Section 6382(b)(1) and those substances identified additionally by reference in Labor Code Section 6382(d).

Fundamentally, the Chamber has been taking the position that this was a one-time provision for listing chemicals as carcinogens before March 1, 1987, and that thereafter, the state could only add chemicals as carcinogens through the mechanisms of Health and Safety Code section 25249.8(b):

(b) A chemical is known to the state to cause cancer or reproductive toxicity within the meaning of this chapter if in the opinion of the state's qualified experts it has been clearly shown through scientifically valid testing according to generally accepted principles to cause cancer or reproductive toxicity, or if a body considered to be authoritative by such experts has formally identified it as causing cancer or reproductive toxicity, or if an agency of the state or federal government has formally required it to be labeled or identified as causing cancer or reproductive toxicity.

The Sierra Club, et al., and the state ultimately both took the position that the process was dynamic, and as the chemicals referenced by the Labor Code sections changed, the list had to change. In ruling on cross-motions for judgment on the pleadings last month, Judge Freedman granted judgment on the pleadings against the Chamber. The ruling (available here) states as follows:

The plain language of Health and Safety Code �25249.8 requires that the substances identified by reference in Labor Code sections 6382(b)(1) and 6382(d) be included on the list of chemicals known to the state to cause cancer or reproductive toxicity, and that the list, including the chemicals referenced in the Labor Code sections, be updated annually. Thus, the statute imposes a clear ministerial duty on Respondents to list the carcinogens and reproductive toxicants identified by reference to the above Labor Code sections without further review.

Next up, May 27, the Court will hear argument on this question: can the state add chemicals to the Proposition 65 list based on the fact that the American Conference of Governmental Industiral Hygienists ("ACGIH") has adopted threshold limit values ("TLVs") for workplace exposures for those chemicals? The state and the Sierra Club say yes. The argument is this: Labor Code section 6382(d) references chemicals within the scope of the federal Hazard Communication Standard (29 C.F.R. Sec. 1910.1200). The HCS requires manufacturers and employers to treat TLVs as "establishing that the chenmicals listed in them are hazardous." Ergo, section 6382(d) references chemicals on the ACGIH TLV list, and must therefore, if they are carcinogens or reproductive or developmental toxicants, they must be on the Propositoin 65 list. The Chamber, needless to say, opposes.

CalBizLit's crystal ball predicts: Sierra Club and State win, Chamber loses. The whole thing goes up on appeal. After that's over, the Proposition 65 list gets longer than its current 800+ chemicals.

Full post as published by CalBizLit on May 15, 2009 (boomark / email).