Prop 65 Chemical Listing Litigation

NRDC v. Wilson

On August 6, 1997, the Natural Resources Defense Council, Inc. and other plaintiffs sued Governor Pete Wilson, Cal/EPA and its acting secretary Peter Rooney, and OEHHA and its acting chief deputy director Richard Becker, over OEHHA's refusal to list a number of chemicals. The 66 chemicals, many of which are pesticides, are included as reproductive hazards on the EPA's Toxic Release Inventory (TRI), compiled in accordance with the Emergency Planning and Community Right to Know Act (EPCRA). OEHHA declined to list the chemicals under Prop 65's "authoritative bodies" provision, claiming that these chemicals were not shown to be reproductive toxins. (See OEHHA's description of the mechanisms for listing chemicals under Prop 65). NRDC claims that inclusion of a chemical on the TRI imposes a "ministerial duty" on OEHHA to list chemicals under Prop 65.

On April 24, Sacramento Superior Court Judge James T. Ford dismissed the NRDC's suit, as well as a companion suit filed by the Western Crop Protection Association, which had argued that OEHHA should not have relied at all upon the EPA's reproductive toxicity findings as an "authoritative body." The court accepted the Attorney General's view that the regulations allowing OEHHA to consider the scientific evidence relating to chemicals being considered under the authoritative bodies listing provision was appropriate, and rejecting the industry claim that EPA was not an "authoritative body" for Prop 65 purposes.

On September 22, 1998, the plaintiffs refiled their complaint, arguing that OEHHA had not moved on considering the TRI chemicals as it had promised at the earlier hearing. At a hearing on October 9, the court reversed course, and ordered that OEHHA complete the review of 50 of the 66 chemicals by the end of the year. For an account of OEHHA's efforts to list these chemicals, see Regulatory Update.

Western Crop Protection v. Davis

On May 9, 2000, the Third District Court of Appeal affirmed the trial court's dismissal of WCPA's action alleging that OEHHA had violated Prop 65's listing requirements by including the EPA TRI chemicals.  As the court held:

The court found that "OEHHA has the authority to examine the administrative record of the TRI procedure to determine if there is substantial evidence that the EPA has placed a chemical on the EPA list because it meets the state’s criteria of 'causing . . . reproductive toxicity.'  Therefore, the fact that EPA's criteria are broader than Prop 65's did not require overturning OEHHA's use of the authoritative bodies mechanism to list chemicals under Prop 65.

Read the opinion [Microsoft Word/pdf].

Enforcer Challenges Cadmium NSRL

An August 13, 2002 lawsuit has challenged OEHHA's adoption of a 4.1 ug/day NSRL for cadmium. In American Environmental Safety Institute v. Denton, Los Angeles Superior Court no. BC 279638, the plaintiff has requested that the recent amendment to the safe harbor regulation (22 CCR 12805) be vacated. AESI claims that the cadmium regulation violates fails to follow the Prop 65 statutory and regulatory requirements, by disregarding the "most sensitive study." AESI claims that the level set by OEHHA is more than 17 times higher than the level should be, "plac[ing] millions of Californians at needless risk of exposure to excessive and dangerous levels of Cadmium by way of ingestion."

This page last updated 5/17/03