I held off on posting until I had time to dig a little further than the press releases. And what I found is pretty interesting. This is kind of Proposition 65 inside baseball, but it's potentially important.
More after the jump.
There were two cases filed, one by the Sierra Club, NRDC, Steelworkers, etc. against the governor, State EPA, OEHHA, the Cancer Identification Committee ("CIC"), its members and others and the other by the Chamber of Commerce against the governor and the directors of the State EPA and OEHHA. The latter case was filed in San Diego County, but the two cases have been consolidated before Judge Freedman in Alameda Superior.
In their First Amended Complaint, available here, the Sierra Club, et al, allege that California has essentially allowed the process for adding chemicals to the Proposition 65 list to grind to a halt. The plaintiffs point out that the CIC meets only once a year, that at the time the complaint was filed, it hadn't added a chemical in five years (since then, in December, 2008, CIC added two chemicals) and that OEHHA was refusing to expedite agendizing the chemical PFOA for CIC's consideration on the ground that federal agency study of PFOA was ongoing. They further allege that the state is violating its mandatory duty to list chemicals idenitified by reference in California Labor Code Sections 6382(b)(1) and 6382(d).
The Chamber of Commerce, on the other hand, sought a court order prohibiting the state from adding chemicals to the list based solely on the two Labor Code sections. A copy of the Chamber's petition is available here (I understand an amended petition was filed on April 21, but it isn't yet available on the court's web site).
Proposition 65, as interpreted by the Court of Appeal in AFL-CIO v. Deukmajian (1989) 212 Cal.App.3d 425, sets out multiple ways that chemicals must be added to the list, and also provides (Health and Safety Code section 25249.8):
Fundamentally, the Chamber has been taking the position that this was a one-time provision for listing chemicals as carcinogens before March 1, 1987, and that thereafter, the state could only add chemicals as carcinogens through the mechanisms of Health and Safety Code section 25249.8(b):
The Sierra Club, et al., and the state ultimately both took the position that the process was dynamic, and as the chemicals referenced by the Labor Code sections changed, the list had to change. In ruling on cross-motions for judgment on the pleadings last month, Judge Freedman granted judgment on the pleadings against the Chamber. The ruling (available here) states as follows:
Next up, May 27, the Court will hear argument on this question: can the state add chemicals to the Proposition 65 list based on the fact that the American Conference of Governmental Industiral Hygienists ("ACGIH") has adopted threshold limit values ("TLVs") for workplace exposures for those chemicals? The state and the Sierra Club say yes. The argument is this: Labor Code section 6382(d) references chemicals within the scope of the federal Hazard Communication Standard (29 C.F.R. Sec. 1910.1200). The HCS requires manufacturers and employers to treat TLVs as "establishing that the chenmicals listed in them are hazardous." Ergo, section 6382(d) references chemicals on the ACGIH TLV list, and must therefore, if they are carcinogens or reproductive or developmental toxicants, they must be on the Propositoin 65 list. The Chamber, needless to say, opposes.
CalBizLit's crystal ball predicts: Sierra Club and State win, Chamber loses. The whole thing goes up on appeal. After that's over, the Proposition 65 list gets longer than its current 800+ chemicals.