Opportunity for Public Comment Proposition 65 Regulatory Update Project Electronic Notice Regulatory Concept

The Office of Environmental Health Hazard Assessment (OEHHA) is the lead agency for implementation of Proposition 65*.  As part of its responsibilities OEHHA maintains the regulations implementing the Act.  These regulations can be found in Title 27 of the California Code of Regulations, sections 25000-27000 inclusive.

The Act* requires a person who brings an action for violation of Proposition 65 to first give notice of the alleged violation to the alleged violator, the Attorney General, district attorney, city attorney or prosecutor in whose jurisdiction the violation occurred (city attorneys only for cities with populations over 750,000) 60 days prior to filing an enforcement action.

Currently, these so-called “60-Day Notices” are served via U.S. Mail on all public prosecutors in the state.  This notification process can be expensive and time-consuming for both the person providing the notice and the district attorneys and city attorneys throughout the state who have to sort through a significant volume of mail to determine whether any specific notice affects their jurisdiction. 

At the request of affected stakeholders, OEHHA has developed a draft regulatory amendment to Title 27, Cal. Code of Regulations, section 25903(c)(1), that would allow these notices to be sent to prosecutors via electronic mail, if the prosecutor has consented to such service. The draft regulatory amendment is set out below. 

Note that this proposed amendment would not affect the existing requirement in the regulations that notices be served on the alleged violator in a manner consistent with the California Code of Procedure.

OEHHA is requesting public comment concerning this regulatory concept.  If requested, within 15 days of the publication of this notice, a public pre-regulatory workshop will be held before OEHHA begins the formal regulatory process for this amendment.  Interested parties are encouraged to provide written comments concerning this regulatory proposal. 

In order for comments to be considered at this point in the process they must be received by 5:00 p.m. on Friday, August 28, 2008.  All comments or requests for a pre-regulatory hearing should be directed to:

Fran Kammerer
Staff Counsel
Office of Environmental Health Hazard Assessment
1001 I Street
Sacramento, CA 95814
Or via e-mail to fkammerer@oehha.ca.gov

If you have special accommodations or language needs, please contact Monet Vela at (916) 323-2517 or mvela@oehha.ca.gov by April 11, 2008.

Possible Regulatory Amendment (Draft only, this is not a formal regulatory proposal):

25903. Notice of Violation

(c) Service of Notice.

(1) Notices shall be served by first class mail or in any manner that would be sufficient for service of a summons and complaint under the California Code of Civil Procedure. In lieu of service as prescribed in the California Code of Civil Procedure, a notice may be served on a district attorney or city attorney by electronic mail if (a) the District Attorney or City Attorney has specifically authorized such service and the authorization appears on the Attorney General’s website; (2) the documents are sent to the electronic mail address specified, and in the format (e.g. Word, Adobe Acrobat) specified.  Service by this method is not effective until the documents are actually received.  Where a document is served electronically, time shall be computed as it would for service by mail within the State of California.

(2) A certificate of service shall be attached to each notice listing the time, place, and manner of service and each of the parties upon which the notice was served.

(3) Notices shall be served upon each alleged violator, the Attorney General, the district attorney of every county in which a violation is alleged to have occurred, and upon the city attorneys of any cities with populations according to the most recent decennial census of over 750,000 and in which the violation is alleged to have occurred.

(4) Where the alleged violator has a current registration with the California Secretary of State that identifies a Chief Executive Officer, President, or General Counsel of the corporation, the notice shall be addressed to one of those persons.

Link to Public Comments