Hexavalent chromium considered for prop 65 listing

By CMTA Staff

Capitol Update, Sept. 23, 2011 Share this on FacebookTweet thisEmail this to a friend

The Office of Environmental Health Hazard Assessment (OEHHA) posted a notice of proposed rulemaking on September 16, 2011, to amend the regulations implementing Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986 (see: www.oehha.ca.gov/prop65/law/091611_Cr6.html). OEHHA’s proposal would eliminate a long standing exemption for hexavalent chromium (Cr VI) from the consumer warnings requirements of Prop 65. The exemption is based upon a previous finding that Cr VI does not pose a significant risk of cancer through ingestion. OEHHA now asserts that the risk assessment it performed for its recently issued Public Health Goal (PHG) for Cr VI in drinking water demonstrates that human exposure to Cr VI by way of ingestion does in fact pose a significant cancer risk.  As you may be aware, CMTA submitted extensive comments to OEHHA in February of this year arguing that the risk assessment upon which the PHG is based is fatally flawed.  Preliminary results from a comprehensive Cr VI scientific research program, and recently released reports from an external peer review of a similar draft risk assessment prepared by US-EPA, support our position.  In its responses to our comments on the draft PHG, OEHHA agreed to review the results of the new research when they are published and, if necessary, revise the PHG.

OEHHA’s commitment to review emerging science on the potential health effects of Cr VI ingestion is an admission that the science underpinning their PHG risk assessment is in a state of flux.  Accordingly, it would be premature for OEHHA to codify the risk assessment in a regulation.  Such action would validate use of the current PHG as a foundation for other regulatory decisions, such as discharge limits and site cleanup orders.

Of more immediate concern, the proposed Prop. 65 rulemaking could create a new obligation on manufacturers and retailers of products containing Cr VI to provide warnings to consumers indicating that the products in question contain a chemical known to the state to cause cancer.  A cursory review of the Prop. 65 regulations suggests that water-based products containing Cr VI as a consequence of residual concentrations in the source water would be exempt from the warning requirement.  However, there is no clear-cut exemption for other products used in a manner that could, at least in theory, result in ingestion of small amounts of Cr VI, such as plumbing fixtures, decorative hardware, children’s toys and costume jewelry.

CMTA members should be aware that Prop. 65 also provides a private right of action which has spawned extensive litigation against manufacturers for failure to warn the public about exposures to listed substances in their products.  OEHHA’s proposed rulemaking could expand the universe of Cr VI-containing products subject to such litigation.

CMTA is coordinating with the American Chemistry Council on a response to OEHHA’s notice of proposed rulemaking.  The deadline for public comments is October 31st. In the meantime, we recommend that members who manufacture Cr VI-containing products consult legal counsel to determine if your products could be subject to the Prop. 65 warning requirement. Please let CMTA’s Environmental Policy Director, Mike Rogge, know if that is the case at MRogge@cmta.net.

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