California Superior Court questions use of "Labor Code Mechanism" for listing substances under California''s Proposition 65

California Superior Court questions use of "Labor Code Mechanism" for listing substances under California''s Proposition 65

Numerous prior posts have described California's Prop. 65 and the listing of various substances under that law.  [For an overview of Prop. 65, and the various ways a substance can be listed as either a carcinogen or a "reproductive toxicant", see http://www.ropers.com/pdf/253.pdf.]  OEHHA, the state agency that oversees Prop. 65, has taken the position that, under California Health & Safety Code Section 25249.8(a), it has a continuing and non-discretionary obligation to list all chemicals referred to in the two Labor Code sections referred to in the H.&S.C. section cited.  Those two sections refer to listings of chemicals identified as carcinogens by the International Agency for Cancer Research (IARC), as well as carcinogens and reproductive toxicants covered by the Federal Hazard Communication Standard (HCS).
 
As noted in a prior post, earlier this year an Alameda County Superior Court upheld this listing mechanism; that ruling is now on appeal.
 
In June 2009, OEHHA proposed to list 11 carcinogens and 19 reproductive toxicants under this "authority".  Most of the carcinogens were listed by IARC as Group 2B carcinogens (possibly carcinogenic to humans).  The listing triggered a lawsuit in Sacramento County Superior Court by the Styrene Information & Research Center (SIRC).  SIRC asserted that this process constituted an "underground regulation" and that therefore the process should have been adopted under the state Administrative Procedure Act.  [The nature of underground regulations has been noted in prior posts.]  The Court in Sacramento issued a preliminary injunction.  The Judge rejected the underground regulation argument, but did agree with SIRC that Section 25249.8(a) required that the substance be a "known" human carcinogen to use the Labor Code Mechanism.  The Judge followed an earlier appellate decision that had found that Section 25249.8(a)'s reference to HCS only applied to known and probable carcinogens.  The preliminary injunction applies to the listing of styrene.
 
Thereafter Celanese Corp. sought to intervene.  In a stipulation approved by all parties, Celanese was allowed to intervene and the preliminary injunction was extended to five other carcinogens that OEHHA had sought to list:  vinyl acetate, chlorophenoxy herbicides, bleomycins, progestrins, and marine diesel fuel.  Like styrene, these were Group 2B carcinogens for which IARC did not explicitly also determine that there was sufficient evidence of carcinogenicity in experimental animals. 
 
A hearing on a motion for judgment on the pleadings is scheduled for Nov. 9.  Stay tuned.
 
The case is Styrene Information & Research Center v. OEHHA, Sacramento County Superior Court, Docket No. 34-2009-00053089-CU-JR-GDS.