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Proposed Amendment of Section 25204, Safe Use Determinations

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 made to the proposed regulation: Title 27, California Code of Regulations, section 25204.  This proposed regulation was originally the subject of a Notice of Proposed Rulemaking issued on September 12, 2008 and published in the California Regulatory Notice Register (Register 2008, No 37-Z). A public hearing on this regulatory proposal was held on November 7, 2008.  Written comments were received during a 45-day comment period which closed on November 21, 2008.  One comment was received and, in response to this comment, changes were made to the proposed regulatory language.  No written comments were received during an additional 15-day comment period which closed January 26, 2009.

OEHHA submitted the regulatory package to OAL but subsequently withdrew it for further changes.  Following discussion with OAL, OEHHA has determined that the regulatory language will be clearer if the following changes are made:

For reasons of clarity, the words “a safe use determination issued by the lead agency creates a rebuttable presumption affecting the burden of proof that the activity described in the determination, when conducted as described, is in compliance with the Act and all related regulations” are stricken from the proposed amendments to the regulation in section 25204(a). A safe use determination is the agency’s opinion, and as such, will be given due deference by a court in an enforcement proceeding without need for further explanation.

A copy of the text of the amended proposed regulation is attached.  The changes proposed in the initial 15-day comment period that closed on January 26, 2009 are indicated by underline and deletions indicated by strikeout.  The additional proposed changes that are the subject of this notice are indicated by double strikeout.

OEHHA will accept written comments on this amendment to the proposed regulation between May 15, 2009, and June 1, 2009.  All written comments must be submitted to OEHHA by mail, fax, courier, e-mail, or hand-delivery, no later than 5:00 p.m. on June 1, 2009, and addressed to

Fran Kammerer
Office of Environmental Health Hazard Assessment
P. O. Box 4010
Sacramento, California 95812-4010
Fax No.: 916-324-1786
E-mail: fkammerer@oehha.ca.gov

Inquiries concerning the action described in this notice may be directed to Fran Kammerer, in writing at the address given above, or by telephone at (916) 445-4693 or Monet Vela at (916) 323-2517.