Proposed Amendment to Section 25903, Appendix A - The Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65): A Summary

Aug 8, 2014

NOTICE IS HEREBY GIVEN that the Office of Environmental Health Hazard Assessment (OEHHA) proposes to amend Title 27, Cal. Code of Regulations, section 25903, Appendix A,¹ to update the Proposition 65 summary that must be included as an attachment to all Notices of Violation that are served upon alleged violators of Proposition 65. This update would reconcile the regulation with the changes to Proposition 65 made in 2013 by the enactment of Assembly Bill 227 (Gatto, Chapter 581, Statutes of 2013).

PUBLIC PROCEEDINGS

OEHHA is requesting written public comments concerning these proposed amendments to the regulations. Any public comments, regardless of the form or method of transmission, must be received by OEHHA by 5:00 p.m. on September 22, 2014, which is hereby designated as the close of the written comment period. All comments received will be posted on the OEHHA website at the close of the public comment period. If you submit your comments electronically, please include: “Section 25903 – Appendix A” in the subject line. Written comments regarding this proposed action may be sent by fax, mail or e-mail 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

A public hearing to present oral comments will be scheduled only upon request. Such a request must be submitted in writing by no later than September 8, 2014. A notice for the public hearing, if one is requested, will be posted on the OEHHA web site at least ten days in advance of the hearing date. The notice will provide the date, time and location of the hearing. Notices will also be sent to those individuals requesting such notification.

If a hearing is scheduled and you have special accommodation or language needs, please contact Monet Vela at (916) 323-2517 or P65Public.Comments@oehha.ca.go. TTY/TDD/Speech-to-Speech users may dial 7-1-1 for the California Relay Service.

CONTACT

Inquiries concerning the Proposition 65 proposed regulation amendments described in this notice may be directed to Monet Vela at (916) 323-2517 or by e-mail at P65Public.Comments@oehha.ca.gov or by mail to OEHHA, P.O. Box 4010 Sacramento, California 95812-4010. Mario Fernandez is a back-up contact person for inquiries concerning processing of this action and is available at (916) 323-2635 or mario.fernandez@oehha.ca.gov.

INFORMATIVE DIGEST/POLICY STATEMENT OVERVIEW

BACKGROUND

Proposition 65 was enacted as a voters’ initiative on November 4, 1986, and is codified at Health and Safety Code section 25249.5 et seq. OEHHA, within the California Environmental Protection Agency, is the state entity responsible for the implementation of Proposition 65. OEHHA has the authority to adopt and amend regulations to implement and further the purposes of Proposition 65². Proposition 65 requires businesses to provide a warning when they knowingly cause an exposure to a chemical listed as known to cause cancer or reproductive toxicity. Proposition 65 also prohibits persons in the course of doing business from knowingly discharging or releasing a chemical known to the state to cause cancer or reproductive toxicity into water or onto or into land where it passes or probably will pass into a source of drinking water. In 2013, Proposition 65 was amended to provide businesses a limited opportunity to cure violations related to specified exposures.³

NOTICES OF VIOLATION

Businesses that violate Proposition 65 can be sued by state and local prosecutors or private individuals acting in the public interest. A private action, however, can only be started 60 days after a Notice of Violation has been sent by private persons enforcing the law to the Attorney General, district attorney, city attorney in the same jurisdiction and the alleged violator.

Under the current regulation, a notice of violation served upon an alleged violator must include as an attachment the Appendix A of Section 25903. The Appendix is a summary of Proposition 65, its requirements, exemptions, an explanation of how Proposition 65 is enforced and a telephone number where the recipient may obtain further information. In 2012, Appendix A was amended to update and clarify details in the summary. An amendment to Appendix A is now necessary to incorporate the 2013 legislative amendments to Proposition 65.

ANTICIPATED BENEFITS OF THE PROPOSED REGULATION

See “Benefits of the Proposed Regulation” under “RESULTS OF ECONOMIC IMPACT ANALYSIS” below.

NO INCONSISTENCY OR INCOMPATIBILITY WITH EXISTING REGULATIONS

After conducting an evaluation for any related regulations in this area, OEHHA has determined that these are the only regulations dealing with requirements for a Notice of Violation that is served on alleged violators of Proposition 65. Therefore, the proposed the proposed regulations are neither inconsistent nor incompatible with existing state regulations. The regulations do not change the existing mandatory requirements on those businesses, state or local agencies and does not address compliance with any other law or regulation.

RESULTS OF ECONOMIC IMPACT ANALYSIS (Gov. Code section 11346.3(b))

OEHHA finds there will be no economic impact related to these minor proposed regulatory amendments. The amendments do not impose any costs because they update the forms required to be served on alleged violators of Proposition 65 by private persons enforcing the law.

Impact on the Creation, Elimination, or Expansion of Jobs/Businesses in California

These minor regulatory amendments will not affect the creation or elimination of jobs within the State of California.& The proposed amendments will not affect the creation of new businesses; nor will they affect the elimination or expansion of businesses in California. The proposed amendments simply reconcile the regulations with the 2013 amendments to Proposition 65.

Benefits of the Proposed Regulation:

These regulatory amendments will update the regulation and provide a better understanding of Proposition 65 for businesses that have been served with a notice of violation. These regulatory amendments will update Appendix A and provide easier access to information and required forms concerning Proposition 65 for businesses that have been served with a Proposition 65 Notice of Violation. This amendment would provide an update and ensure it conforms to the recent changes in the law.

Appendix A does not currently incorporate the 2013 amendments to Proposition 65. Because the required forms are not easily accessible to private enforcers, a business served with a notice of violation may not be fully informed regarding the opportunity to cure a violation for specified exposures. These proposed amendments update the regulation to reflect the 2013 amendments to Proposition 65.

AUTHORITY

Health and Safety Code section 25249.12.

REFERENCE

Health and Safety Code sections 25249.5, 25249.6, 25249.10(c), 25249.11, and 25249.12

IMPACT ON LOCAL AGENCIES OR SCHOOL DISTRICTS

Because Proposition 65 by its terms⁴ does not apply to local agencies or school districts, OEHHA has determined the proposed regulatory action would not impose a mandate on local agencies or school districts; nor does it require reimbursement by the State pursuant to Part 7 (commencing with Section 17500) of Division 4 of the Government Code. OEHHA has also determined that no nondiscretionary costs or savings to local agencies or school districts will result from the proposed regulatory action.

COSTS OR SAVINGS TO STATE AGENCIES

Because Proposition 65 by its terms⁵ does not apply to any State agency and this regulation is simply an update of the existing summary, OEHHA has initially determined that no significant savings or increased costs to any State agency will result from the proposed regulatory action.

EFFECT ON FEDERAL FUNDING TO THE STATE

OEHHA has initially determined that no costs or savings in federal funding to the State will result from the proposed regulatory action.

EFFECT ON HOUSING COSTS

OEHHA has initially determined that the proposed regulatory action will have no effect on housing costs because it does not impose any new mandatory requirements on any business.

SIGNIFICANT STATEWIDE ADVERSE ECONOMIC IMPACT DIRECTLY AFFECTING BUSINESS, INCLUDING ABILITY TO COMPETE

OEHHA has made an initial determination that the adoption of the proposed amendments to the regulation will not have a significant statewide adverse economic impact directly affecting businesses, including the ability of California businesses to compete with businesses in other states. The proposed regulation does not impose any new requirements upon private persons or businesses.

COST IMPACTS ON REPRESENTATIVE PRIVATE PERSONS OR BUSINESSES

Because the proposed regulatory amendments do not impose any new mandatory requirements on businesses, the OEHHA is not aware of any cost impacts that a representative private person or business would necessarily incur in reasonable compliance with the proposed action.

EFFECT ON SMALL BUSINESSES

OEHHA has determined that the proposed regulatory action will not impose any mandatory requirements on small businesses. Proposition 65 expressly exempts businesses with less than 10 employees⁶ from the warning and discharge requirements of the law.

CONSIDERATION OF ALTERNATIVES

Pursuant to Government Code section 11346.5(a)(13), OEHHA must determine that no reasonable alternative considered by OEHHA, or that has otherwise been identified and brought to the attention of OEHHA, would be more effective in carrying out the purpose for which Proposition 65 is proposed, or would be as effective and less burdensome to affected private persons than the proposed action, or would be more cost-effective to affected private persons and equally effective in implementing the statutory policy or other provision of law.

AVAILABILITY OF STATEMENT OF REASONS AND TEXT OF PROPOSED REGULATIONS

OEHHA has prepared and has available for public review an Initial Statement of Reasons for the proposed regulatory amendments, all the information upon which the amendments are based, and the text of the proposed amendments to the regulation. A copy of the Initial Statement of Reasons and a copy of the text of the proposed regulation are available upon request from Monet Vela at the e-mail or telephone number indicated above.

AVAILABILITY OF CHANGED OR MODIFIED TEXT

The full text of any proposed regulation which is changed or modified from the express terms of this proposed action will be made available at least 15 days prior to the date on which OEHHA adopts the resulting regulation. Notice of the comment period on the changed proposed regulations and the full text will be mailed to individuals who testified or submitted oral or written comments at the public hearing, whose comments were received by OEHHA during the public comment period, and anyone who requests notification from OEHHA of the availability of such change. Copies of the notice and the changed regulation will also be available on the OEHHA Web site.

FINAL STATEMENT OF REASONS

A copy of the Final Statement of Reasons may be obtained, when it becomes available, from Monet Vela at the e-mail or telephone number indicated above. The Final Statement of Reasons will also be available on OEHHA’s web site.

Footnotes and References

¹ All further references are to sections of Title 27, California Code of Regulations, unless otherwise indicated.

² Health and Safety Code section 25249.12 and Executive Order W-15-91.

³ AB 227, Gatto, Chapter 581, Statutes of 2013

⁴ See Health and Safety Code section 25249.11(b)

⁵ See Health and Safety Code section 25249.11(b)

⁶ Health and Safety Code section 25249.11(b)