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CALIFORNIA CHAMBER OF COMMERCE v. BROWN
196 Cal.App.4th 233 (2011)
Court of Appeals of California, First District, Division One.
June 6, 2011.
G. The Current Litigation
On November 21, 2008, CalChamber filed a petition for a writ of mandate and complaint for declaratory relief in the San Diego County Superior Court.8 CalChamber alleged OEHHA had exceeded its authority under section 25249.8 by using the Labor Code reference method to add chemicals to the Proposition 65 list that were not included in the "initial Proposition [65] list following final judgment in AFL-CIO v. Deukmejian, [supra,] 212 Cal.App.3d 425 ...." CalChamber sought a declaration that (1) "the mandatory duty to include Labor Code Chemicals ... set forth in section 25249.8(a) applied only to the Initial [Proposition 65] List" finalized and required to be published by March 1, 1987 and (2) "any future action ... to automatically add Labor Code Chemicals to the Proposition 65 List as carcinogens or reproductive toxicants" exceeds OEHHA's authority. CalChamber sought a writ of mandate directing OEHHA to remove any chemicals it had added to any revised Proposition 65 list using the Labor Code reference method, and an order enjoining OEHHA from adding any more chemicals to the list except pursuant to one of the listing methods set forth in subdivision (b) of section 25249.8. On January 26, 2009, the San Diego court granted OEHHA's motion to transfer CalChamber's action to Alameda County and consolidate it with a case that had been filed by the Sierra Club and other environmental and labor organizations (Sierra Club v. Schwarzenegger (2009, No. RG07356881)) for the purpose of trying common issues concerning the interpretation of section 25249.8.9 CalChamber and OEHHA filed cross-motions for judgment on the pleadings, accompanied by requests for judicial notice. The trial court granted the requests, denied CalChamber's motion, and ruled in favor of OEHHA on the issues raised by the cross-motions. It did not enter judgment, however, but allowed CalChamber to file an amended complaint and writ petition challenging the inclusion of chemicals from Threshold Limit Values for Chemical Substances and Physical Agents in the Work Environment, compiled by the American Conference of Governmental Industrial Hygenists (ACGIH) (ACGIH list) as part of the Labor Code reference method set forth in subdivision (a) of section 25249.8. CalChamber and OEHHA filed further cross-motions for judgment on the pleadings. The trial court denied
CalChamber's motion, granted OEHHA's motion, and entered judgment against CalChamber on all causes of action alleged in its first amended complaint and writ petition. This appeal by CalChamber followed.10 III. DISCUSSIONCalChamber raises two issues on appeal: (1) Can OEHHA use the Labor Code reference method set forth in Health and Safety Code section 25249.8, subdivision (a), in annually revising and republishing the Proposition 65 list and (2) if OEHHA can do so, do chemicals identified by reference to Labor Code section 6382, subdivision (d), include chemicals identified on the ACGIH list? We review these questions of statutory construction de novo.11 (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 724 [90 Cal.Rptr.3d 889, 248 P.3d 1185]; California Correctional Peace Officers Assn. v. State of California (2010) 189 Cal.App.4th 849, 856 [117 Cal.Rptr.3d 109].)
1. Undesignated statutory references are to the Health and Safety Code.
2. A business can obtain an exemption from the discharge prohibition and warning requirement by proving the particular discharge or exposure for which it is responsible is below a certain threshold level that does not pose a significant risk of cancer or reproductive toxicity. (§§ 25249.9, 25249.10.) Given the expense of making such a showing, however, the exemption provisions are of little practical consequence. (See DiPirro v. Bondo Corp. (2007) 153 Cal.App.4th 150, 191 [62 Cal.Rptr.3d 722] [recognizing "onerous" burden of proving an exemption and the costs associated with decision to, instead, forego use of a potentially beneficial product].)
3. We use this and other listing method descriptors in the remainder of this opinion for ease of reference.
4. Additional subdivisions provide:
"(c) On or before January 1, 1989, and at least once per year thereafter, the Governor shall cause to be published a separate list of those chemicals that at the time of publication are required by state or federal law to have been tested for potential to cause cancer or reproductive toxicity but that the state's qualified experts have not found to have been adequately tested as required.
"(d) The Governor shall identify and consult with the state's qualified experts as necessary to carry out his duties under this section.
"(e) In carrying out the duties of the Governor under this section, the Governor and his designates shall not be considered to be adopting or amending a regulation within the meaning of the Administrative Procedure Act as defined in Government Code Section 11370." (§ 25249.8, subds. (c)-(e).)
5. OEHHA is the lead agency designated by the Governor to implement and enforce Proposition 65. (§ 25249.12, subd. (a); Cal. Code Regs., tit. 27, § 25102, subd. (o).)
6. The court also explained Labor Code section 6382, subdivisions (b)(1) and (d), are part of "California and Federal OSHA" which are statutory and regulatory schemes "designed to protect humans in the workplace. Yet these regulatory schemes expressly impose controls on chemicals carcinogenic both to humans and animals.... Proposition 65 is in pari materia and therefore must be read in harmony with these regulatory schemes." (Deukmejian, supra, 212 Cal.App.3d at p. 438, fn. 7, italics & citations omitted.)
7. To date, designated authoritative bodies are: IARC, National Institute for Occupational Safety and Health, National Toxicology Program (NTP), U.S. Environmental Protection Agency (EPA) and U.S. Food and Drug Administration (FDA). (Cal. Code Regs., tit. 27, § 25306, subds. (l), (m).)
8. CalChamber named as defendants the Governor of California, the Secretary of the California Environmental Protection Agency and the Director of OEHHA.
9. In the Sierra Club case, OEHHA conceded it has a mandatory duty to revise the Proposition 65 list in accordance with the Labor Code reference method, and the dispute is whether OEHHA has violated that duty by delaying or failing to list certain alleged carcinogens and reproductive toxins.
10. The plaintiffs in the Sierra Club case are not parties to this appeal. They have, however, filed an amici curiae brief.
11. While the standard of judicial review in a traditional mandamus proceeding, in the trial court and on appeal, is often stated as being whether the governmental agency "abused its discretion," i.e., by not proceeding in the manner required by law, making a decision that is not supported by the agency's findings, or failing to follow proper procedures (see Exxon Mobil, supra, 169 Cal.App.4th at p. 1276; SN Sands Corp. v. City and County of San Francisco (2008) 167 Cal.App.4th 185, 191 [83 Cal.Rptr.3d 885]), legal issues, such as issues of statutory construction, are reviewed de novo. (Schram Construction, Inc. v. Regents of University of California (2010) 187 Cal.App.4th 1040, 1052 [114 Cal.Rptr.3d 680]; California School Employees Assn. v. Torrance Unified School Dist. (2010) 182 Cal.App.4th 1040, 1044 [106 Cal.Rptr.3d 375].)
12. For example, the Labor Code reference method set forth in section 25249.8, subdivision (a) embraces "[s]ubstances listed as human or animal carcinogens by the [IARC]." (Lab. Code, § 6382, subd. (b)(1).) One of the bodies embraced by the Authoritative Body method set forth in Health and Safety Code section 25249.8, subdivision (b) is the IARC. (Cal. Code Regs., tit. 27, § 25306, subds. (l), (m).)
13. In Exxon Mobil, supra, 169 Cal.App.4th at pages 1269-1270, the court similarly described section 25249.8, subdivision (b) as specifying the means by which chemicals are identified as "known to the state to cause cancer" and thereby included on the Proposition 65 list. "Thus, section 25249.8, subdivision (b) of the statute sets out three different ways by which a chemical can be listed." (Exxon Mobil, at p. 1269.) The issue in Exxon, however, was whether a chemical was properly listed under the Authoritative Body method set forth in subdivision (b). (Exxon Mobil, at pp. 1276-1278.) The issue in Western Crop Protection Assn. v. Davis (2000) 80 Cal.App.4th 741, 747-748 [95 Cal.Rptr.2d 631], was also whether chemicals were properly listed under the Authoritative Body method. Neither case involved, nor considered, use of the Labor Code reference method set forth in 25249.8, subdivision (a).
14. OEHHA started the process of enacting such regulations before this lawsuit was filed, but has deferred further action pending the outcome of the litigation.
15. Specifically, there has been no change to title 29 Code of Federal Regulations part 1910.1200(c) (2010) defining "health hazard" and (d) (2010) addressing "hazard determination."
16. As OEHHA explained in its final statement of reasons issued when it adopted regulations applicable to the Authoritative Body method: "The apparent purpose of the authoritative bodies provision [of Proposition 65] is to establish a streamlined process for the Panel. Rather than review each chemical already subjected to review by another organization, the Panel needs only determine the organization's competence. The chemicals which the organization has formally identified as causing cancer or reproductive toxicity can then be listed. This permits the Panel to focus its attention on chemicals which have not previously been evaluated." (OEHHA, Final Statement of Reasons for Cal. Code Regs., tit. 22, div. 2, former § 12306 (Feb. 1990) p. 8.)
17. Indeed, in its final statement of reasons issued when it adopted regulations applicable to the Formally Required to be Labeled method, OEHHA addressed objections that this method involved no analysis and review by state experts. OEHHA explained the method "is clearly intended to be a totally separate and distinct method of listing chemicals ... designed to recognize the determinations of other federal and state agencies and does not contain any authority by which [OEHHA] could impose a requirement of making an independent determination of carcinogenicity or reproductive toxicity. The only question which is relevant is whether a state or federal government agency possessing the requisite legal authority, has formally required a third party to label or identify a chemical as causing cancer or reproductive toxicity. Once that question has been answered in the affirmative, listing of the chemical must occur." (OEHHA, Final Statement of Reasons for Cal. Code Regs., tit. 22, div. 2, former § 12902 (Mar. 1990) pp. 6-7.)
18. ACGIH is "`an organization devoted to the administrative and technical aspects of occupational and environmental health.... [It] is a professional society, not a government agency.' ... ACGIH's work reflects `scientific opinion based on a review of existing peer-reviewed scientific literature by committees of experts in public health and related sciences ... [of] the level of exposure that the typical worker can experience without adverse health effects.'" (National Assn. of Manufacturers v. Occupational Safety & Health Administration (2007) 376 U.S. App.D.C. 171 [485 F.3d 1201, 1203].)
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