California’s Office of Environmental Health Hazard Assessment (OEHHA) has released its third version of a proposed regulation for chemical listings using the Labor Code listing mechanism.
The latest version of the proposal removes language that was hotly disputed by several industry associations and interested parties in the prior two drafts. In the latest revision, the agency makes a major concession by agreeing that when chemicals no longer meet the criteria for a Proposition 65 listing, removal from the list shall be automatic. If adopted, delisting of chemicals will take effect immediately and automatically. However, the regulation would enable OEHHA to refer delisted chemicals to the state’s Carcinogen Identification Committee or the Developmental and Reproductive Toxicant Identification committee to determine whether the chemical should be re-classified under another listing mechanism or endpoint.
But disagreement remains on other issues, most significantly with provisions that would prevent the public from commenting on the underlying science supporting a proposed listing.
Although this provision raised many objections, the language restricting comments on the underlying science was retained in the current draft proposal.
The Initial Statement of Reasons states:
“Since the listing procedure for this mechanism is ministerial and therefore essentially automatic, OEHHA restricts comment to the identification of a chemical as causing cancer or reproductive toxicity, not the underlying scientific determinations sup-porting the identification.”
OEHHA also says that although it is not required to provide notice, allowing public comments “will promote transparency and provide members of the public an opportunity to comment on whether they believe the chemical has been identified by reference in the Labor Code as causing cancer.”
But the California Chamber of Commerce previously observed the “SIRC court expressly rejected OEHHA’s stated position that ‘the listing procedure for this mechanism is ministerial and therefore essentially automatic.’ Similar to OEHHA’s position in its Initial Statement of Reasons, in SIRC, OEHHA argued that the Labor Code listing mechanism ‘must be read to mean any chemical that meets the criteria set forth in Section 25249.8 is, by definition, ‘known to the state to cause cancer or reproductive toxicity within the meaning of this chapter.’” The SIRC court expressly rejected OEHHA’s position, stating the following:
“As for OEHHA’s interpretation of Proposition 65, this too is entitled to little or no deference. As described earlier, for 15 years after enactment of Proposition 65, OEHHA did not even utilize the Labor Code method for listing chemicals solely based on their inclusion in an IARC monograph.”
“OEHHA’s position that listing pursuant to the Labor Code listing mechanism is ‘essentially automatic’ flies in the face of the SIRC decision, which expressly held that such a position is “entitled to little or no deference.” In establishing a new “sufficient evidence” standard OEHHA is obligated to provide the public with an opportunity to comment on whether the sufficient evidence standard for a given listing proposal has been established,” the Chamber wrote.
Public comments on the latest version of the proposed regulation have been submitted to OEHHA but have not yet been released to the public.