Cal. Chamber of Commerce v. Brown

196 Cal.App.4th 233

126 Cal.Rptr.3d 214

11 Cal. Daily Op. Serv. 6829

2011 Daily Journal D.A.R. 8236

CALIFORNIA CHAMBER OF COMMERCE, Plaintiff and Appellant,

v.Edmund G. BROWN, Jr., as Governor of California, etc., et al., Defendants and Respondents.

No. A125493.

Court of Appeal, First District, Division 1, California.

June 6, 2011.

Morrison & Foerster, Michèle B. Corash, San Francisco, Miriam A. Vogel, Los Angeles, and Robin Stafford, San Francisco, for Plaintiff and Appellant.

Edmund G. Brown, Jr., Attorney General, Ken Alex, Senior Assistant Attorney General, and Susan S. Fiering, Deputy Attorney General for Defendants and Respondents.

Altshuler Berzon, San Francisco, Stephen P. Berzon, Jonathan A. Weisglass and Danielle E. Leonard; Coughlin Stoia Geller Rudman & Robbins and Pamela M. Parker, San Diego, for Sierra Club et al., as Amici Curiae on behalf of Defendants and Respondents.

Michael E. Wall, San Francisco, and Avinash Kar for Natural Resources Defense Council as Amicus Curiae on behalf of Defendants and Respondents.

BANKE, J.

I. Introduction

In November 1986, California voters approved Proposition 65, an initiative that enacted the Safe Drinking Water and Toxic Enforcement Act of 1986, now set forth in Health and Safety Code section 25249.5 et seq. (Proposition 65).¹ A key provision of Proposition 65 is its mandate that the Governor publish “a list of chemicals known to the state to cause cancer or reproductive toxicity.” ( § 25249.8, subd. (a).) This list is “to be revised and republished in light of additional knowledge at least once per year” ( ibid.) and is commonly referred to as the “Proposition 65 list.”

This case concerns the methods by which the list can be updated, and specifically whether the Office of Environmental Health Hazard Assessment (OEHHA) can add chemicals to the list by use of a methodology set forth in subdivision (a) of section 25249.8. The California Chamber of Commerce (CalChamber) contends this listing method is no longer operable and applied only to the creation of the initial Proposition 65 list. It asserts further changes to the list must be made using one of the three methods set forth in subdivision (b) of section 25249.8. The trial court concluded the language of section 25249.8 is unambiguous and the listing method set forth in subdivision (a) remains operable. While we do not agree the statutory language is, in all respects, unambiguous, we agree the Proposition 65 list not only can, but must be, updated by the method used here by the OEHHA and set forth in subdivision (a) of section 25249.8. We therefore affirm the judgment.

II. Background

A. Proposition 65

Proposition 65 imposes two significant requirements on businesses. First, it prohibits businesses from discharging into drinking water sources any chemical “known to the state to cause cancer or reproductive toxicity” (the discharge prohibition). (§ 25249.5.) Second, it requires businesses to provide a public warning if they “knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity” (the warning requirement). (§ 25249.6.) The warning requirement appliesto any exposure, and thus includes exposures in the workplace, service and retail, and recreational environments. (Health & Saf.Code, § 25249.6; Cal.Code Regs., tit. 27, §§ 25602–25605.2.) A business that violates the discharge prohibition or warning requirement can be sued in a public or private enforcement action and is subject to injunctive relief and civil penalties. (§ 25249.7, subds. (a), (b).)

The discharge prohibition and warning requirement are triggered by the inclusion of a chemical on the Proposition 65 list of “chemicals known to the state to cause cancer or reproductive toxicity.” ² ( § 25249.8.) Thus, the methods by which a chemical is placed on the list are among the pivotal features of Proposition 65.

Section 25249.8 addresses the content of the Proposition 65 list, and does so principally in two subdivisions. Subdivision (a) provides: “On or before March 1, 1987, the Governor shall cause to be published a list of those chemicals known to the state to cause cancer or reproductive toxicity within the meaning of this chapter, and he shall cause such list to be revised and republished in light of additional knowledge at least once per year thereafter. Such list shall include at a minimum those substances identified by reference in Labor Code Section 6382(b)(1) and those substances identified additionally by reference in Labor Code Section 6382(d) [ (the Labor Code reference method) ].” ³ ( § 25249.8, subd. (a).)

Subdivision (b) provides: “A chemical is known to the state to cause cancer or reproductive toxicity within the meaning of this chapter if in the opinion of the state's qualified experts it has been clearly shown through scientifically valid testing according to generally accepted principles to cause cancer or reproductive toxicity [ (the Expert Review method) ], or if a body considered to be authoritative by such experts has formally identified it as causing cancer or reproductive toxicity [ (the Authoritative Body method) ], or if an agency of the state or federal government has formally required it to be labeled or identified as causing cancer or reproductive toxicity [ (the Formally Required to be Labeled method) ].” ⁴ ( § 25249.8, subd. (b).)

This lawsuit primarily concerns whether the Labor Code reference method set forth in subdivision (a) continues to be a method by which chemicals are listed, or whether this method provided the content of only the initial Proposition 65 list. CalChamber advocates the latter and asserts the three methods provided by subdivision (b)—the Expert Review, Authoritative Body, and Formally Required to be Labeled methods—are the means by which chemicals can now be added to the list.

B. Labor Code Section 6382, Subdivisions (b)(1) and (d)

The Labor Code reference method set forth in subdivision (a) of section 25249.8, provides in pertinent part: “Such list shall include at a minimum those substances identified by reference in Labor Code Section 6382(b)(1) and those substances identified additionally by reference in Labor Code Section 6382(d).” (§ 25249.8, subd. (a).)

Labor Code section 6382 is part of the Hazardous Substances Information and Training Act (HSITA) (Lab.Code, § 6360 et seq.) and sets forth criteria for the preparation and amendment of a list of “hazardous substances” in the workplace, known as the “HSITA list.” ( Id., § 6380.) The legislative findings supporting the enactment of HSITA included that exposure to hazardous substances in the workplace posed serious health hazards to employees and the “right and ... need to know” about these hazards were necessary to reduce “the incidence and cost of occupational disease.” ( Id., § 6361, subd. (a)(2).) Accordingly, one of HSITA's primary purposes is to “ensure the transmission of necessary information to employees regarding the properties and potential hazards of hazardous substances in the workplace.” ( Id., § 6361, subd. (b).)

Subdivision (a) of Labor Code section 6382 states any substance identified in any source listed in subdivision (b) is presumed to be “potentially hazardous.” (Lab.Code, § 6361, subd. (a).) Labor Code section 6382, subdivision (b)(1)—expressly referenced in Proposition 65's Labor Code reference method (§ 25249.8, subd. (a))—identifies “[s]ubstances listed as human or animal carcinogens by the International Agency for Research on Cancer (IARC).” (Lab.Code, § 6382, subd. (b)(1).)

Subdivision (d) of Labor Code section 6382—also expressly referenced in Proposition 65's Labor Code reference method (§ 25249.8, subd. (a))—states “in addition to those substances on the director's list of hazardous substances, any substance within the scope of the federal Hazard Communication Standard (29 C.F.R. Sec. 1910.1200) is a hazardous substance subject to this chapter.” (Lab.Code, § 6382, subd. (d).)

Thus, Proposition 65's Labor Code reference method embraces “[s]ubstances listed as human or animal carcinogens by the [IARC]” (Lab.Code, § 6382, subd. (b)(1)) and “any substance within the scope of the federal Hazard Communication Standard (29 C.F.R. Sec. 1910.1200)” (Lab.Code, § 6382, subd. (d)).

C. The Federal Hazard Communication Standard

The federal Hazard Communication Standard (HCS) referenced in Labor Code section 6382, subdivision (d), was created in 1983, pursuant to title 29 United States Code section 655. That federal statute authorized the Department of Labor, through the Occupational Safety and Health Administration (OSHA), to promulgate “a final occupational safety and health standard entitled ‘Hazard Communication’ (29 C.F.R. § 1910.1200).” (48 Fed.Reg. 53280 (Nov. 25, 1983).)

The purpose of the HCS is “to ensure that the hazards of all chemicals produced or imported are evaluated, and that informationconcerning their hazards is transmitted to employers and employees.” (29 C.F.R. § 1910.1200(a) (2010).) This information is transmitted by “means of comprehensive hazard communication programs” which include, among other things, “container labeling and other forms of warning.” ( Ibid.)

Health “hazards” under the federal HCS include more than “chemicals known to the state to cause cancer or reproductive toxicity” included in the Proposition 65 list, but do include “carcinogens” and “reproductive toxins.” (29 C.F.R. § 1910.1200(c) (2010).) Instead of attempting to identify every hazardous chemical by creation of a single list of hazardous substances, the HCS requires manufacturers, importers and employers to evaluate chemicals they produce, import or utilize to determine if the chemicals are hazardous and the particular hazards they pose. (29 C.F.R. § 1910.1200(d)(1) (2010); see also 48 Fed.Reg. 53296 (Nov. 25, 1983) [“The agency determined that the most comprehensive approach would be to require evaluation of all chemicals, not some pre-selected list of...