Request for Public Participation, Notice of Public Workshop, Proposition 65 Regulatory Update Project - Labor Code Mechanism Regulatory Concept

May 16, 2008

The Office of Environmental Health Hazard Assessment (OEHHA) is the lead agency for implementation of Proposition 65 (The Safe Drinking Water and Toxic Enforcement Act of 1986, Health and Safety Code section 25249.5, et. seq., hereafter referred to as Proposition 65 or the Act). As part of its responsibilities related to Proposition 65, OEHHA maintains the regulations implementing the Act. These regulations can currently be found in Title 22 of the California Code of Regulations, sections 12000-14000¹ inclusive, though they will soon be located in Title 27, sections 25000-27000.

There are four mechanisms for listing chemicals under Proposition 65 as specified in Health and Safety Code section 25249.8. OEHHA has previously adopted regulations describing the procedures for listing chemicals via three of the four mechanisms: Section 12305 covers listings by the State’s Qualified Experts, Section 12306 covers listings based on authoritative bodies and Section 12902 covers formally required listings. There are currently no regulations discussing the Labor Code mechanism for listing chemicals.

Chemicals or substances identified by reference to Labor Code sections 6382(b)(1) or 6382(d) as known to cause cancer or reproductive toxicity must be included on the Proposition 65 list. OEHHA is considering adopting a regulation that clarifies the process OEHHA uses to determine whether a chemical or substance has been identified by reference to these Labor Code provisions.

OEHHA is requesting input from stakeholders in the enforcement and business communities, as well as other members of the public, concerning issues that may arise if OEHHA proceeds with such a regulatory proposal. A copy of draft regulatory language is included with this notice for purposes of discussion. This is a pre-regulatory proposal. The language proposed may change substantially prior to it being proposed in a formal regulatory proceeding.

On June 17, 2008 OEHHA will hold a public workshop for the purpose of gathering input from interested parties concerning the issues raised by this regulatory concept. Stakeholders are encouraged to provide input concerning this concept, including alternative regulatory language. The workshop will be held from 10 am to Noon in Room 11 at the Elihu Harris Building, located at 1515 Clay Street in Oakland, California, 94612.

Interested parties may also submit their ideas in writing. In order for comments to be considered at this point in the process, they must be received by 5:00 p.m. on June 27, 2008. If OEHHA proceeds to propose a formal regulation on this issue, additional opportunities for public comment will be provided. All submissions should be directed to:

Carol J. Monahan-Cummings
Chief Counsel
Office of Environmental Health Hazard Assessment
1001 I Street
Sacramento, CA 95812
Or via e-mail to cmcummings@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 June 10, 2008. TTY/TDD/Speech-to-Speech users may dial 7-1-1 for the California Relay Service.

Possible Regulatory Language (Concept only, this is not a formal regulatory proposal):

Listings by Reference to the California Labor Code

(a) Pursuant to Section 25249.8(a), of the Act, a substance shall be included on the list of chemicals known to the state to cause cancer or reproductive toxicity if it is a substance identified by reference in Labor Code Section 6382(b)(1) or by reference in Labor Code Section 6382(d) as causing cancer or reproductive toxicity.

(b) A substance is identified by reference in Labor Code Section 6382(b)(1) for purposes of subsection (a) and shall be included on the list of chemicals known to cause cancer if the International Agency for Research on Cancer (IARC) has evaluated the carcinogenicity of the substance, and published a document in its series “IARC Monographs on the Evaluation of Carcinogenic Risks to Humans” identifying the substance as a human carcinogen (Group 1) or an animal carcinogen, and classified in either Group 1, 2A, or 2B. If a substance has been evaluated in multiple IARC Monographs, the classification in the most recent Monograph evaluating the substance will be used for this purpose.

(c) A substance is identified by reference in Labor Code Section 6382(d) for purposes of subsection (a) and shall be included on the list of chemicals known to the state to cause cancer or reproductive toxicity as follows:

(1) Substances listed in 29 Code of Federal Regulations (CFR) part 1910.1200, subpart Z, Toxic and Hazardous Substances, Occupational Safety and Health Administration (OSHA) shall be included on the list if they are regulated by OSHA as carcinogens under the Federal Hazard Communication Standard.

(2) Substances listed in 29 CFR part 1910.1200, subpart Z, Toxic and Hazardous Substances, Occupational Safety and Health Administration (OSHA) shall be included on the list if they are identified by OSHA as causing reproductive toxicity or developmental toxicity using any words or phrases intended to communicate a risk of reproductive harm, a risk of birth defects, or other harm to the developing conceptus.

(3) Substances for which a Threshold Limit Value (TLV) for Chemical Substances and Physical Agents in the Work Environment has been established by the American Conference of Governmental Industrial Hygienists (ACGIH) (latest edition) shall be included on the list if a basis for the TLV is in whole or in part a risk of reproductive harm, a risk of birth defects, or other harm to the developing conceptus.

(4) Substances identified in the latest edition of the National Toxicology Program Report on Carcinogens as known to be human carcinogens or reasonably anticipated to be human carcinogens shall be included on the list.

(5) Substances identified by the International Agency for Research on Cancer (IARC) in its series “IARC Monographs on the Evaluation of Carcinogenic Risks to Humans” as carcinogens (Group 1) or potential carcinogens (Group 2A or 2B) shall be included on the list. If a substance has been evaluated in multiple IARC Monographs, the classification in the most recent Monograph evaluating the substance will be used for this purpose.

(d) Any person may petition the lead agency to consider or reconsider listing a substance pursuant to this section. The petition shall identify the substance in question, the provision of subsection (b) or (c) above that provides the basis for listing or delisting pursuant to this section and Health and Safety Code section 25249.8(a).