Proposition 65 citizen enforcement group Center for Environmental Health (CEH) has filed a petition with the California Office of Environmental Health Hazard Assessment (OEHHA) to repeal or amend its Maximum Allowable Dose Level (MADL) for Lead.
Earlier this year, another longtime citizen enforcement group filed a similar petition with the agency along with a writ of mandate in Alameda County Superior Court.
Mateel Environmental Justice Foundation in January called for a repeal of the MADL, and for OEHHA to change the level of the MADL to zero, as the advocacy group argues there is evidence that there is no safe level of exposure to lead.
The grounds for CEH’s petition mirror those cited in Mateel’s petition in several significant ways. Both organizations claim the MADL is invalid because when OEHHA adopted the Safe Harbor Level in 1992, the agency “cited no studies in support of the regulatory safe harbor level it set for lead.”
According to CEH’s petition, “OEHHA based this exemption on a federal Occupational Safety and Health Administration (OSHA) permissible exposure limit (PEL) of 500 micrograms per day based on air exposures for an 8-hour work shift (dividing the 500 microgram PEL by 1000 to get 0.5 micrograms.
At the time OEHHA relied on the OSHA PEL and its supporting documentation that information was already fourteen years old. Instead of finding that there was scientifically valid testing, conducted according to generally accepted principles that clearly showed a level at which there would be no observable effect, “OEHHA blithely stated that: [T]here is experience derived from the occupational setting which suggests that exposure to certain regulated levels does not produce the reproductive effect of concern.”
CEH states in its petition that OEHHA has known since establishing the MADL that the Safe Harbor exceeded the No Observable Effects Level (NOEL) when it was adopted.
“Specifically as to lead, OEHHA concluded based on OSHA’s 1979 analysis that 30 micrograms/gram (µg/g) blood lead levels was a “functional equivalent reproductive NOEL,” but did not use this level in develop-ing the MADL. Although OEHHA recognized that the PEL upon which it based the safe harbor was set to ensure that workers’ blood levels did not exceed 40 µg/g blood lead levels, the agency tied the MADL to the higher PEL exposure.
The environmental group also cited the testimony of Acting Chief of Reproductive Toxicity Unit James Donald in a 1991 court case where Donald stated:
“The level set by OSHA – 500 micrograms per day – was known at that time to be above the No Observable Effect Level for reproductive effects.” Declaration of James Donald, Ph.D., in Support of Order to Show Cause re: Preliminary Injunction (“Donald Decl.”), People ex rel. Lungren v. Baccarat, Inc., et al. (Sept. 6, 1991), San Francisco Superior Court Case No. 932292.
Dr. Donald further acknowledged that, although lead is listed as a reproductive toxicant based in part on its developmental effects, “[d]evelopmental toxicity of lead was not considered by OSHA in setting this standard.” In support of his conclusion, Dr. Donald pointed out that, although OEHHA had set the MADL based on a 40 microgram per deciliter blood lead level, “OSHA specifically stated that women who are pregnant, or planning to become pregnant, should maintain a blood-lead level below 30 micrograms per deciliter.”
In its petition, CEH said OEHHA had a duty to reevaluate the MADL for lead when it reclassified its listing of Lead in 2013, in light of scientific developments that have occurred since 1979. The group notes that Proposition 65 explicitly requires the Governor and OEHHA as his designee re-evaluate the list of chemicals known to cause cancer and reproductive harm at least once per year “in light of additional knowledge.”
CEH’s petition also requests OEHHA to issue a regulation that clearly states that the MADL for lead is a single day exposure limit and would not permit averaging. The environmental group notes California Attorney General Kamala Harris has taken the position that the MADL is a daily limit, having argued against averaging exposures in Proposition 65 cases. CEH hopes to overturn the Beech-Nut appellate decision that permits averaging of exposures to reproductive toxicants if OEHHA adopts an official policy that its MADLs represent single day exposure limits.
The California Chamber of Commerce and a coalition of California businesses and trade associations urged OEHHA to “vigorously defend itself” against Mateel’s lawsuit when it was filed in January, but has not yet commented on CEH’s petition.