Gino DiCaro

Prop. 65 listing procedure in question

By Gino DiCaro, VP, Communications

Capitol Update, July 21, 2006 Share this on FacebookTweet thisEmail this to a friend

It has come to our attention that California Environmental Protection Agency's (Cal-EPA's) Office of Environmental Health Hazard Assessment (OEHHA) changed the method mid-2004 for expanding the carcinogen list of Proposition 65 chemicals.  For 17 years, candidates for listing have been subject to hearings, public comment and scientific review per Proposition 65's standards, but, apparently, this process has changed.  

According to OEHHA's own guidance, there have been only three ways to list a chemical: determination by the State's experts; determination by an "authoritative body;" and, requirement by a state or federal agency.  Each allows for substantive comment and hearings.

These processes have resulted in the narrowing of some listings and the rejection of others, as well as the production of robust administrative records that both courts and the regulated community can look to for guidance in determining precisely what chemical is at issue based on the abbreviated listing.

In July 2004, OEEHA quietly began automatically listing any chemical determined to cause cancer by the International Agency for Research on Cancer (IARC).  The only process afforded by OEHHA was a simple notice and short comment period.  OEHHA views its role as "ministerial."  IARC is a non-governmental body, based in France, which brings together ad hoc groups of scientists to summarize research.  It is explicitly not a regulatory body, and it does not take public comment.   

So far, OEHHA has listed seven chemicals this way.  Late in 2005, the American Herbal Products Association objected to this new policy of OEHHA.  OEHHA proceeded to list chemicals, but, for the first time, stated its new policy.  Using this mechanism, OEHHA has also listed two chemicals that IARC has classified only as possible carcinogens.  The authority on which OEHHA relies calls for listing of only "known and probable" carcinogens identified by IARC, not "possible" carcinogens.

OEHHA's new policy delegates its authority to IARC, which, again, is not a policymaking body, has no public involvement, is not democratic or representative, and is a private, ad hoc group of scientists without governmental authority.  This practice is bad public policy.  IARC's standards are different from Proposition 65's.  IARC is often imprecise in identifying a specific substance.  For example, a few years ago, IARC listed "carbon black".  If OEHHA had automatically added "carbon black" to the Prop. 65 list, the electronics, printing and tire industries would have suffered severe problems, including lawsuits.  The existing system, at that time, worked properly and the listing of "carbon black" was narrowed to instances where only the very fine particles could become airborne.

CMTA and a number of other industry associations met this week with Cal-EPA to discuss the need to revert back to the previous method of listing.  
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