Notice of Proposed Rulemaking, Amendments to Section 25903(b)(2)(E) and Appendix A, Contents of Notices of Violation

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NOTICE IS HEREBY GIVEN that the Office of Environmental Health Hazard Assessment (OEHHA) proposes amending Section 25903(b)(2)(E) and Appendix A of Title 27 of the California Code of Regulations[1] to clarify the content required in notices of violation served on alleged violators of Proposition 65.

PUBLIC PROCEEDINGS

Any written comments concerning this proposed action, regardless of the form or method of transmission, must be received by OEHHA by 5:00 p.m. on July 3, 2017, the designated close of the written comment period.  All comments received will be posted on the OEHHA website at the close of the public comment period.

The public is encouraged to submit written information via e-mail, rather than in paper form.  Send e-mail comments to P65Public.Comments@oehha.ca.gov.  Please include “Notice of Violation Amendments” in the subject line.  Hard-copy comments may be mailed, faxed, or delivered in person to the appropriate address below.

Mailing Address:  Ms. Monet Vela
Office of Environmental Health Hazard Assessment
P.O. Box 4010, MS-23B
Sacramento, California 95812-4010
Fax: (916) 323-2610
Street Address:  1001 I Street
Sacramento, California 95814

Please be aware that OEHHA is subject to the California Public Records Act and other laws that require the release of certain information upon request. Comments on all regulatory and other actions are routinely posted on our website. By sending us your comments you are waiving any right to privacy you may have in the information you provide.  Individual commenters should advise OEHHA when submitting documents to request redaction of home address or personal telephone numbers.  Names of commenters will not be redacted.

A public hearing on this proposed regulatory amendment will be scheduled on request. To request a hearing send an e-mail to Monet Vela at monet.vela@oehha.ca.gov or to the address listed above by no later than June 19, 2017, which is 14 days before the close of the comment period.  OEHHA will mail a notice of the hearing to the requester and interested parties on the Proposition 65 mailing list for regulatory public hearings.  The notice will also be posted on the OEHHA web site at least ten days before the public hearing date.  The notice will provide the date, time, and location of the hearing. 

If a hearing is scheduled and you have special accommodation or language needs, please contact Monet Vela at (916) 323-2517 or monet.vela@oehha.ca.gov at least one week in advance of the hearing.  TTY/TDD/Speech-to-Speech users may dial 7-1-1 for the California Relay Service. 

CONTACT

Please direct inquiries concerning the proposed regulatory action described in this notice to Monet Vela, in writing at the address given above, via e-mail to monet.vela@oehha.ca.gov or (916) 323-2517.  Carl DeNigris will be a back-up contact.  He can be contacted at (916) 322-5624 or carl.denigris@oehha.ca.gov.

AUTHORITY

Health and Safety Code Section 25249.12.

REFERENCE

Health and Safety Code Sections 25249.5, 25249.6, 25249.7, 25249.9, 25249.10 and 25249.11.

INFORMATIVE DIGEST/POLICY STATEMENT OVERVIEW

Proposition 65 prohibits a person in the course of doing business from knowingly and intentionally exposing any individual to a chemical that has been listed as known to the state to cause cancer or reproductive toxicity, without first giving clear and reasonable warning to such individual[2].  The Act also prohibits a business from knowingly discharging a listed chemical into water or onto or into land where such chemical passes or probably will pass into any source of drinking water[3].  

Businesses that violate Proposition 65 can be sued by state and local prosecutors or private individuals acting in the public interest.[4]  However, a private action can only be started 60 days after the private enforcer has sent the notice of violation to the Attorney General, district attorney, city attorney in the same jurisdiction, and the alleged violator.

Section 25903(b)(2)(E) of the California Code of Regulations, Title 27, describes the contents required for notices of violation involving occupational exposures.  Notices alleging an occupational exposure must contain specific language required by the Occupational Health and Safety Regulations in section 338(b) of the CCR, Title 8.[5]  However, section 25903(b)(2)(E) does not currently cross-reference section 338(b).  The proposed amendments will include a cross-reference to this mandatory language.

Additionally, a notice of violation served upon an alleged violator must include Appendix A of section 25903 as an attachment.[6]  Included in the current Appendix A is a Special Compliance Procedure Proof of Compliance Form that must only be provided to the alleged violator for the following types of exposures that occur without a warning pursuant to Health and Safety Code section 25249.7(k):

  • An exposure to alcoholic beverages that are consumed on the alleged violator's premises to the extent onsite consumption is permitted by law;
  • An exposure to a Proposition 65 listed chemical in a food or beverage prepared and sold on the alleged violator's premises that is primarily intended for immediate consumption on- or off-premises. This only applies if the chemical was not intentionally added to the food, and was formed by cooking or similar preparation of food or beverage components necessary to render the food or beverage palatable or to avoid microbiological contamination;
  • An exposure to environmental tobacco smoke caused by entry of persons (other than employees) on premises owned or operated by the alleged violator where smoking is permitted at any location on the premises;
  • An exposure to listed chemicals in engine exhaust, to the extent the exposure occurs inside a facility owned or operated by the alleged violator and primarily intended for parking non-commercial vehicles.

The proposed amendments would move the Special Compliance Procedure Proof of Compliance Form to Appendix B in order to clarify that this special procedure is only required for the specific exposures described above,[7]  and need not be included with all notices of violation. 

Further details on the basis for the proposed amendments to section 25903(b)(2)(E) and Appendix A of section 25903 are provided in the Initial Statement of Reasons for this regulatory amendment, which is available on request from Monet Vela and is posted on the OEHHA web site at www.oehha.ca.gov.

ANTICIPATED BENEFITS OF THE PROPOSED REGULATION 

Private enforcers and alleged violators will benefit from the proposed amendment because it will clarify the information required in a valid notice of violation.  These clarifications will ensure that alleged violators are correctly and fully informed of proper compliance procedures.

NO INCONSISTENCY OR INCOMPATIBILITY WITH EXISTING REGULATIONS

OEHHA has determined that the proposed amendment is neither inconsistent nor incompatible with existing state regulations because it does not address compliance with any other law or regulation.  These amendments further the purposes of Proposition 65 by ensuring clear notice and compliance procedures.

LOCAL MANDATE/FISCAL IMPACT

Because Proposition 65 expressly[8] 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

OEHHA does not anticipate any savings or increased costs for state agencies as a result of the proposed regulatory action.

EFFECT ON FEDERAL FUNDING TO THE STATE

Because Proposition 65 expressly[9] does not apply to any federal agency, OEHHA has 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 determined that the proposed regulatory action will have no effect on housing costs. 

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

Because the proposed regulatory amendment does not impose any new mandatory requirements on businesses subject to the Act, OEHHA has made an initial determination that this amendment 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.

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

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

This regulatory proposal will not affect the creation or elimination of jobs or businesses within the State of California, nor will it impact the expansion of existing businesses in the state.  Proposition 65 requires businesses with ten or more employees to provide warnings when they expose people to chemicals that are known to cause cancer or reproductive harm.  The law also prohibits the discharge of listed chemicals into sources of drinking water.  This regulatory proposal does not create additional compliance requirements.  The proposed amendments seek to clarify the requirements for private individuals who serve notices of violation on businesses.  These amendments should reduce confusion for both noticing parties and notice recipients.

CONSIDERATION OF ALTERNATIVES

Government Code section 11346.5(a)(13) requires that 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 the action is proposed, 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 than the proposal described in this Notice. 

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 employees from the warning and discharge requirements of the law.[10] 

COST IMPACTS ON REPRESENTATIVE PRIVATE PERSONS OR BUSINESSES

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.

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 regulation, which contains the text of the regulation, and all the information upon which the regulation is based (rulemaking file).  A copy of the Initial Statement of Reasons and the text of the regulation, as well as the complete rulemaking file, are available upon request from OEHHA at the address, e-mail address and telephone number indicated above.  These documents are also posted on OEHHA’s Web site at www.oehha.ca.gov

AVAILABILITY OF CHANGED OR MODIFIED TEXT

The full text of any 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 changed regulations and the full text will be mailed to individuals who testified or submitted written comments at the public hearing, if held, or whose comments were received by OEHHA during the public comment period, and anyone who requests notification from OEHHA of the availability of such changes.  Copies of the notice and the changed regulation will also be available on the OEHHA Web site at www.oehha.ca.gov.  

AVAILABILITY OF FINAL STATEMENT OF REASONS

A copy of the Final Statement of Reasons may be obtained, when it becomes available, from OEHHA at the address, e-mail address and telephone number indicated above, and on the OEHHA website at www.oehha.ca.gov

OFFICE OF ENVIRONMENTAL HEALTH HAZARD ASSESSMENT

Allan Hirsch
Chief Deputy Director

Dated: May 19, 2017

Footnotes and References

[1] All further references are to sections of Title 27, Cal. Code of Regs., unless otherwise indicated.

[2] Health and Safety Code section 25249.6.

[3] Health and Safety Code section 25249.5.

[4] Health and Safety Code section 25249.7.

[5] See Appendix I of this Initial Statement of Reasons (required text highlighted).

[6] Health and Safety Code, section 25903(b)(1).

[7] Health and Safety Code section 25249.7(k).

[8] See Health and Safety Code section 25249.11(b).

[9] See Health and Safety Code section 25249.11(b).

[10] Health and Safety Code section 25249.11(b).