4th Modification to Text of Proposed Regulation and Augmentation of Record Title 27, Proposed Section 25904 Listings by Reference to the California Labor Code

Go to downloads

As required by Government Code section 11346.8(c), and Title 1, Section 44 of the California Code of Regulations, the Office of Environmental Health Hazard Assessment (OEHHA) is providing notice of additional changes to the proposed regulation to add section 25904 to Title 27 of the California Code of Regulations. As required by Government Code section 11346.8(c), and Title 1, Section 44 of the California Code of Regulations, OEHHA is giving notice of this revision.

This regulation was originally the subject of a Notice of Proposed Rulemaking published on January 31, 2014, in the California Regulatory Notice Register (Register 2014, No 5-Z), which initiated a public comment period. Eight written public comments were received during the comment period that ended April 4, 2014. In addition, OEHHA heard comments at a public hearing on the proposed regulation held on March 21, 2014. On June 20, 2014, OEHHA published a Notice of Modification to Text of Proposed Regulation. The comment period closed on July 7, 2014. Three comments were received. On September 12, 2014, OEHHA published a Notice of Modification to Text of Proposed Regulation. The comment period closed on September 29, 2014. No comments were received during this comment period.

On January 15, 2015, the Office of Administrative Law (OAL) disapproved the proposed regulation for failing to comply with the clarity standard of Government Code section 11349.1. After careful consideration of the OAL determination, OEHHA decided to modify the proposed regulatory language in subsection (a)(1). Additionally, OEHHA considered stakeholder comments submitted in the regulatory process concerning subsection (a)(2) and modified the text to not include potential listing under the HCS in as part of this proposed regulatory action. On February 27, 2015 OEHHA published a Notice of Modification to Text and Augmentation of Record. Two written comments were submitted during the comment period that closed on March 20, 2015.

OEHHA considered the comments from stakeholders and from OAL regarding the clarity of subsection (a)(1). OEHHA has modified the text to increase clarity and ensure consistency with the decision in Styrene Information and Research Center v. Office of Environmental Health Hazard Assessment, (2012) 210 Cal. App. 4th 1082. The modified text clearly excludes from listing any chemicals or substances classified by IARC as Group 2B based on limited evidence of carcinogenicity in experimental animals. Additionally, OEHHA considered the Second Interim Order in the Sierra Club v. Schwarzenegger (Brown) case (Case No. RG07356881). In the Sierra Club case, the court ordered OEHHA to list any chemical for which IARC has concluded there is “sufficient” evidence of cancer in humans or animals, including agents added to the IARC list of Agents Classified by the IARC Monographs, whether or not the final monograph has been published. To ensure compliance with this court order, OEHHA has modified the proposed text to include chemicals or substances classified by IARC as Group 1, 2, and 2B in the list of Agents Classified by the IARC Monographs.

OEHHA also further considered comments in the OAL disapproval decision letter concerning subsection (b). This subsection requires the lead agency to provide a 30 day public comment period prior to adding a chemical meeting the criteria for listing a chemical or substance with reference to the Labor Code section 6382(b)(1). In the proposed regulation, public comment must focus “on whether or not the chemical has been identified by reference in Labor Code section 6382 (b)(1).” According to the OAL decision of disapproval, the Initial Statement of Reasons (ISOR) expressly excludes comments related to the underlying scientific determinations supporting the identification. OAL concluded that this subsection lacked clarity because a person directly affected by the regulation would not understand that the regulation expressly excludes comments related to the underlying scientific determination. The regulation has been modified so as to accurately reflect OEHHA’s intent that was correctly expressed in the ISOR. The modified subsection thus excludes comments related to the underlying scientific determinations in support of the identification of the chemical or substance with reference in Labor Code section 6382(b)(1) as causing cancer because these listings are ministerial in nature.

The record is being augmented to include the Second Interim Order on Labor Code Claims from Sierra Club v. Schwarzenegger (Brown) (Case No. RG07356881); and is being augmented to include the decision in SIRC v. OEHHA (2012) 210 Cal. App. 4th 1082. Additionally, the record is being augmented to include the United States Occupational Safety & Health Administration (OSHA) “Side-by-Side Comparison of OSHA's Existing Hazard Communication Standard (HCS 1994) vs. the Revised Hazard Communication Standard (HCS 2012)” published on the OSHA website at https://www.osha.gov/dsg/hazcom/side-by-side.html. These documents were relied upon by OEHHA during the development of this proposed regulation.

Included with this notice are copies of the proposed regulation with the modified language provided in underline and strikeout (June 20, 2014 amendments), double underline and double strikeout (September 12, 2014 amendments), italicized underline and italicized strikeout (February 27, 2015 amendments), and italicized double underline and italicized double strikeout (May 1, 2015) format to identify all changes to the originally proposed regulation. All these materials are also available on the OEHHA website at www.oehha.ca.gov, and may be requested from Monet Vela of the OEHHA Legal Office at (916) 323-2517.

OEHHA will accept written comments on the additional amendments to the proposed regulation until May 15, 2015, at 5:00 p.m.

We encourage you to submit comments in electronic form, rather than in paper form. Comments transmitted by e-mail should be addressed to P65Public.comments@oehha.ca.gov. Please include “Labor Code” in the subject line. Comments submitted in paper form may be mailed, faxed, or delivered in person to the address below. Mailed, faxed or hand-delivered comments should be addressed to:

Monet Vela
Office of Environmental Health Hazard Assessment
P. O. Box 4010
Sacramento, California 95812-4010
Telephone: 916-323-2517
Fax: 916-323-2610
E-mail: P65Public.Comments@oehha.ca.gov