Proposed Rulemaking Title 27, Proposed Section 25904 Listings by Reference to the California Labor Code
NOTICE IS HEREBY GIVEN that the Office of Environmental Health Hazard Assessment (OEHHA) proposes to add section 25904 to Title 27, Cal. Code of Regulations. This regulation would clarify the procedure and criteria OEHHA uses to list and de-list chemicals via the “Labor Code” listing mechanism of Proposition 651.
PUBLIC PROCEEDINGS
Public Hearing
A public hearing will be held on March 21, 2014, at which time any person may present statements or arguments orally or in writing relevant to the action described in this notice. The public hearing will commence at 10:00 in the Coastal Hearing Room, California Environmental Protection Agency Building, 1001 I Street, 2nd Floor, Sacramento, California and will last until all business has been conducted, or until 12:00 noon.
Written Comment Period
OEHHA held a pre-regulatory workshop on June 17, 2013, comments were received and have been carefully considered in this new proposed language. 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 April 4, 2014, 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 “Labor Code” in the subject line. Hard-copy comments may be mailed, faxed, or delivered in person to the appropriate address below.
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
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. If you provide comments, please be aware that your name, address and e-mail may be provided to third parties upon request.
CONTACT
Inquiries concerning the proposed Proposition 65 regulation described in this notice may be directed to Monet Vela at (916) 323-2517, or by e-mail at monet.vela@oehha.ca.gov, or by mail to OEHHA, P.O. Box 4010, Sacramento, California 95812-4010. Fran Kammerer is a back-up contact person for inquiries concerning processing of this action and is available at (916) 445-4693 or fran.kammerer@oehha.ca.gov.
INFORMATIVE DIGEST/POLICY STATEMENT OVERVIEW
BACKGROUND
OEHHA is the state entity responsible for the implementation of Proposition 65.2 OEHHA has the authority to adopt and amend regulations to make specific and further the purposes of Proposition 65. OEHHA maintains a list of chemicals known to cause reproductive toxicity or cancer. The law requires businesses to provide a warning when they knowingly cause an exposure to a listed chemical, and prohibits the discharge of listed chemicals into sources of drinking water.
OEHHA is responsible for maintaining the list of chemicals that are known to the state to cause cancer or reproductive toxicity. There are four ways chemicals are added to the Proposition 65 list3. Listing is required when chemicals are: (1) identified by reference to certain subsections of the California Labor Code, (2) identified by the state’s qualified experts, (3) identified by designated authoritative bodies, or (4) “formally required” to be labeled or identified as causing cancer or reproductive toxicity by a state or federal agency.
SPECIFIC BENEFITS OF THE PROPOSED REGULATIONS
This proposed regulation will provide information and clarification to the public regarding how OEHHA identifies chemicals for listing via the Labor Code. The proposed regulation would provide increased openness and transparency for businesses and others affected by these listings.
NO INCONSISTENCY OR INCOMPATIBILITY WITH EXISTING REGULATIONS
OEHHA has determined that the proposed regulation is neither inconsistent nor incompatible with existing state regulations because it would not change the existing mandatory requirements on 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))
Because this proposed regulation simply clarifies OEHHA’s existing process for listing and de-listing chemicals via the Labor Code mechanism, the proposed regulatory action will not have a significant statewide adverse economic impact.
Impact on the Creation, Elimination, or Expansion of Jobs/Businesses in California:
This regulatory proposal will not directly affect the creation or elimination of jobs within the State of California.
The proposed regulation is procedural in nature and does not impose any mandatory requirements on businesses subject to the Act, OEHHA has determined that the proposed regulatory action will not have any impact on the creation or elimination of jobs, the creation of new businesses or the elimination of existing businesses, or the expansion of businesses currently doing business within the State of California.
Benefits of the Proposed Action:
The proposed regulation will clarify and explain to interested parties the way OEHHA identifies chemicals and substances that must be added to the Proposition 65 list based on their identification by reference via the Labor Code provisions in Proposition 654 and explain the process for reconsidering chemicals that have been listed via this mechanism. This regulation will ensure transparency, certainty and clarity for the general public, non-governmental organizations, and the business and enforcement communities.
NECESSITY
Although the process for listing chemicals under Proposition 65 is expressly excluded from the Administrative Procedure Act5, OEHHA has previously adopted regulations setting out the general criteria for listing chemicals via the other three listing mechanisms6. The purpose of this proposed regulation is to clarify and explain to interested parties the way OEHHA identifies chemicals and substances that must be added to the Proposition 65 list based on their identification by reference via the Labor Code provisions in Proposition 657 and explain the process for reconsidering chemicals that have been listed via this mechanism.
AUTHORITY
Health and Safety Code section 25249.12 and Health and Safety Code section 25249.8(a).
REFERENCE
Health and Safety Code sections 25249.5, 25249.6, 25249.8(a), 25249.11 and 25249.12
IMPACT ON LOCAL AGENCIES OR SCHOOL DISTRICTS
Because Proposition 65 by its terms8 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 terms9 does not apply to any State agency and this regulation is simply a clarification of the existing process, 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 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 will not impose any new requirements upon private persons or businesses.
COST IMPACTS ON REPRESENTATIVE PRIVATE PERSONS OR BUSINESSES
Because the proposed regulation does not impose any new 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 actions.
EFFECT ON SMALL BUSINESSES
OEHHA has determined that the proposed regulatory action will not impose any mandatory requirements on small businesses. Because the proposed regulation will only clarify the existing process already used by OEHHA for listing and de-listing chemicals under Proposition 65, the regulation will not have an adverse economic impact directly affecting businesses, including the ability of California businesses to compete with businesses in other states.
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 the regulation 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 regulation, all the information upon which the regulation is based, and the text of the proposed 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. 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 proposed regulation that 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 revised 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 at www.oehha.ca.gov.
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 at www.oehha.ca.gov.
OFFICE OF ENVIRONMENTAL
HEALTH HAZARD ASSESSMENT
Allan Hirsch
Chief Deputy Director
- Comment Period - Proposed Rulemaking Title 27, Proposed Section 25904 Listings by Reference to the California Labor Code
Comment Period
Link to Public Comments
Related Notices
Footnotes and References
1 The Safe Drinking Water and Toxic Enforcement Act of 1986, codified at Health and Safety Code section 25249.5 et seq., commonly known as Proposition 65.
2 The Safe Drinking Water and Toxics Enforcement Act of 1986, codified at Health and Safety Code section 25249.5 et seq., commonly referred to as “Proposition 65”.
3 Health and Safety Code section 25249.8
4 Health and Safety Code section 25249.8(a)
5 Health and Safety Code section 25249.8(e)
6 Title 27, Cal. Code of Regs., sections 25306 (authoritative bodies), 25902 (formally required) and 25305 (State’s Qualified Experts)
7 Health and Safety Code section 25249.8(a)
8 See Health and Safety Code section 25249.11(b)
9 See Health and Safety Code section 25249.11(b)
The comment period closed on April 4, 2014