• Challenge to Proposition 65 Proposed Labor Code Listings
  • September 3, 2009 | Author: Peter L. de la Cruz
  • Law Firm: Keller and Heckman LLP - Washington Office
  • On July 12, 2009, the California Environmental Protection Agency's Office of Environmental Health Hazard Assessment (OEHHA) proposed listing 12 substances, including styrene and vinyl acetate monomer, under the Labor Code mechanism of the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65.

    Some chemicals were proposed for listing due to their classification by the International Agency for Research on Cancer (IARC). OEHHA, however, did not propose to list styrene and vinyl acetate based on their IARC Group 2B possible carcinogen status. Rather, OEHHA claimed that styrene and vinyl acetate should be listed via the Labor Code provision because they are carcinogens under the OSHA Hazard Communications Standard (HazCom).[1] However, they are only HazCom carcinogens due to their IARC 2B status, not from any OSHA regulation or decision.

    On July 14, 2009, the Styrene Information and Research Center, Inc. (SIRC) brought an action in California state court challenging OEHHA's proposal to list styrene under the Labor Code provision of Proposition 65.[2] In its complaint and motion for summary judgment, SIRC argued that:

    • OEHHA violated the California Administrative Procedures Act (APA) because OEHHA must first promulgate implementing rules before it can list styrene via the Labor Code provision.
    • Listing styrene would be improper because styrene does not meet the criteria of a ‘known' carcinogen. SIRC argued that an IARC 2B classification does not meet the sufficient evidence criteria for a listing under Proposition 65 as IARC did not find sufficient evidence of styrene's carcinogenicity, but only limited evidence.
    • Finally, SIRC argued that SIRC and its members would face irreparable harm from the threat of an improper listing.

    On August 12, 2009, Judge Shelleyanne W.L. Chang granted SIRC's motion for a preliminary injunction and ordered OEHHA not to add styrene to the Proposition 65 list of chemicals "known to the State of California to cause cancer" until the court reached a decision on the merits of the case brought by SIRC. The judge concluded that SIRC was likely to prevail on the question of whether the listing would be improper because styrene does not meet the criteria of a ‘known' carcinogen under Proposition 65. The court also agreed that the industry would face irreparable harm from an improper listing. The court found that OEHHA did not violate the California APA because the statutory language of Proposition 65 exempted OEHHA from the APA requirements.

    The judge's order granting a preliminary injunction preserves the status quo while the court has an opportunity to give full consideration to SIRC's claims and OEHHA's response. It is not a final decision on the merits of SIRC's claims.

    On August 26, 2009, the court granted a motion by Celanese, a manufacturer of vinyl acetate, to be an intervenor in the SIRC Prop 65 litigation. The court also approved a briefing schedule, with the initial cross-motions for judgment on the pleadings due on September 11 from SIRC, Celanese and OEHHA. The entire briefing process will be completed by late October. A hearing will be held on November 9, 2009. The date when the court will issue its final decision is uncertain.

    The Sacramento case involving styrene and vinyl acetate should not be confused with separate litigation brought much earlier by the Sierra Club California to require that OEHHA list additional substances, such as styrene, under the Labor Code reference provisions of Proposition 65.[3] In an order dated April 24, 2009, the Alameda County court issued a ruling supporting the Sierra Club and directing that OEHHA proceed with the listing under Proposition 65 of the Labor Code. It was this Alameda County litigation that triggered the OEHHA listing proposal in July 2009. The California Chamber of Commerce is leading a coalition that has appealed the trial court's decision.[4] The state court of appeals denied a stay sought by the Chamber.

    To be clear about the differences in the two cases, the litigation involving styrene and vinyl acetate assumes that the Alameda County court decision regarding the Labor Code listing provision applies and the only questions are limited to the implementation of the Labor Code provisions with regard to styrene and vinyl acetate.

    • The Alameda County court said that OEHHA had a duty to list under the Labor Code provision, which is what the Sierra Club contended. The Chamber of Commerce coalition is appealing the question of whether the court properly interpreted the Labor Code listing mechanism of Prop 65, arguing that it was just a one-time action for the initial list of chemicals known to the state to cause cancer and does not require the Proposition 65 list be updated whenever a chemical is added via the Labor Code provision.
    • The Sacramento County litigation does not challenge the applicability of the Labor Code provision or that it requires automatic updating of the Prop 65 list. The parties in that case are arguing that the Labor Code listing mechanism does not capture IARC 2B chemicals through OSHA HazCom when IARC has not found "sufficient" evidence. They have also presented procedural objections.

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    [1] U.S. Occupational Safety and Health Administration's (OSHA) Hazard Communications Standard (HazCom), 29 C.F.R. §1910.1200.

    [2] Styrene Information and Research Center, Inc. v. Office of Environmental Health Hazard Assessment, Superior Court of the State of California, County of Sacramento, Case No. 34-2009-0053089-CU-JR-GDS.

    [3] Sierra Club v. Schwarzenegger, Superior Court of the State of California, County Of Alameda, Case No. RG07356881.

    [4] California Chamber of Commerce v. Schwarzenegger, Court of Appeals of the State of California, First Appellate District, Division One, Case No. A125493.