Prop 65 Methods of Detection

By Loretta Macktal, Executive Assistant to the Vice President, Government Relations

Capitol Update, Oct. 15, 2004 Share this on FacebookTweet thisEmail this to a friend

On June 4th, the Office of Environmental Health Hazard Assessment (OEHHA) announced their intent to repeal Section 12901, which is the Prop 65 regulation for methods of detection protocols.

Metalworking defendants had recently executed successful challenges to Prop 65 cases on discharging lead from brass to drinking water based on the plaintiffs not being able to meet the scientific standards in the Rule 12901 hierarchy. In response, "As You Sow" (an environmental activist group) launched an initiative to repeal Rule 12901.

Section 12901 was initially adopted by OEHHA to clarify and make more specific what is meant by "any detectable amount." The current version of the regulation adopted in 1989 provides that, where specified state or local governmental agencies have adopted or employed a method of analysis, that method must be used for purposes of the Act. Where these specified state or local government agencies have not adopted a method of analysis, but where a federal governmental agency has, the federally adopted method must be used. Where no governmental (local, state, or federal) agency has adopted a method of analysis, a method of analysis that is generally accepted in the scientific community must be used. Where no such method is available, a scientifically valid method must be used. Where more than one method of analysis had been adopted in a given tier, then any method within the tier could be used.

The structure of the current regulation, therefore, created a tiered hierarchy of acceptable methods of analysis. The existing regulation also provides that generally accepted standards and practices for sampling, analyzing, and interpreting the data must be observed when using a particular method of analysis and that no discharge, release or exposure occurs under the Act, unless a listed chemical is detectable as provided in the regulation.

A number of industry associations have filed comments primarily stating that: 1) consideration of a repeal of the current Section 12901 should first include an analysis of the impact that a repeal would have on business, and 2) a decision to repeal the Section in its entirety would create a situation of ambiguity and confusion that could have a negative impact on the regulated community. This Section has provided a degree of clarity and certainty regarding the appropriate methods of detection for chemicals under Proposition 65.

To see OEHHA's Notice of Intent to Repeal Title 22, California Code of Regulations Section 12901 or the text of the regulation that would be repealed, go to: http://www.oehha.ca.gov/prop65/law/12901revise.html
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