Proposed Amendment of Section 25204 Safe Use Determinations Notice of Modifications to Text of Proposed Amended Regulation

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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 two changes made to the proposed amended regulation: Title 27, California Code of Regulations, section 25204.  The proposed amendments to this regulation were 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.  No oral comments were received at the hearing. One written comment was received during the 45-day comment period which closed on November 21, 2008. 

OEHHA has reviewed the comment it received regarding the proposed amendments to the regulation and is proposing an additional minor clarification and one substantive change to the proposed amendments.  The only comment received may be requested from the Proposition 65 Legal Office at (916) 323-2517.

The proposed additions are designated in underline in the proposed text.  The changes made to the proposed amended text that are the subject of this notice are as follows:

  1. The words “affecting the burden of proof” are added after the word “presumption” in section 25204(a). These words are added to clarify that OEHHA intends this presumption to affect the burden of proof that the activity described in the determination complies with the Act.  This amendment clarifies that OEHHA is not simply intending to shift the burden of production in an enforcement action.
  2. In section 25204(g), the word “accepted” has been added to indicate that the 60-day limit to submit the information requested by the OEHHA refers to the phase of a Safe Use Determination process after the request has been accepted by the agency, but before a decision has been reached.  Before the Determination has been accepted by OEHHA, a 30-day limit for submission of additional information is currently required by section 25204(e).

OEHHA will accept written comments on these changes to the proposed amended regulation between January 9, 2009, and January 26, 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 January 26, 2009, and addressed to

Fran Kammerer, Staff Counsel
Office of Environmental Health Hazard Assessment
1001 I Street, Mailstop 25B
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.

Footnotes and References

Formerly Title 22, Cal. Code of Regulations, section 12204

More commonly known as Proposition 65, codified at Health and Safety Code Section 25249.5 et seq.