Ear To The Ground

California Superior Court questions use of "Labor Code Mechanism" for listing substances under California's Proposition 65

Numerous prior posts have described California's Prop. 65 and the listing of various substances under that law.  [For an overview of Prop. 65, and the various ways a substance can be listed as either a carcinogen or a "reproductive toxicant", see http://www.ropers.com/pdf/253.pdf.]  OEHHA, the state agency that oversees Prop. 65, has taken the position that, under California Health & Safety Code Section 25249.8(a), it has a continuing and non-discretionary obligation to list all chemicals referred to in the two Labor Code sections referred to in the H.&S.C. section cited.  Those two sections refer to listings of chemicals identified as carcinogens by the International Agency for Cancer Research (IARC), as well as carcinogens and reproductive toxicants covered by the Federal Hazard Communication Standard (HCS).

As noted in a prior post, earlier this year an Alameda County Superior Court upheld this listing mechanism; that ruling is now on appeal.

In June 2009, OEHHA proposed to list 11 carcinogens and 19 reproductive toxicants under this "authority".  Most of the carcinogens were listed by IARC as Group 2B carcinogens (possibly carcinogenic to humans).  The listing triggered a lawsuit in Sacramento County Superior Court by the Styrene Information & Research Center (SIRC).  SIRC asserted that this process constituted an "underground regulation" and that therefore the process should have been adopted under the state Administrative Procedure Act.  [The nature of underground regulations has been noted in prior posts.]  The Court in Sacramento issued a preliminary injunction.  The Judge rejected the underground regulation argument, but did agree with SIRC that Section 25249.8(a) required that the substance be a "known" human carcinogen to use the Labor Code Mechanism.  The Judge followed an earlier appellate decision that had found that Section 25249.8(a)'s reference to HCS only applied to known and probable carcinogens.  The preliminary injunction applies to the listing of styrene.

Thereafter Celanese Corp. sought to intervene.  In a stipulation approved by all parties, Celanese was allowed to intervene and the preliminary injunction was extended to five other carcinogens that OEHHA had sought to list:  vinyl acetate, chlorophenoxy herbicides, bleomycins, progestrins, and marine diesel fuel.  Like styrene, these were Group 2B carcinogens for which IARC did not explicitly also determine that there was sufficient evidence of carcinogenicity in experimental animals. 

A hearing on a motion for judgment on the pleadings is scheduled for Nov. 9.  Stay tuned.

The case is Styrene Information & Research Center v. OEHHA, Sacramento County Superior Court, Docket No. 34-2009-00053089-CU-JR-GDS.

California's DTSC outlines protocols for testing lead content in plumbing materials

For many years, Proposition 65 plaintiffs and the California Attorney General filed a lot of cases against manufacturers of plumbing fixtures because (a) the lead contained in various components leached into the water passing through, and (b) as noted in prior posts, the lead standard under Prop. 65 is very, very strict (the concentration needed to show a violation of the lead standard as a reproductive toxicant was quite small).  Eventually, AB 1953 [http://www.leginfo.ca.gov/pub/05-06/bill/asm/ab_1951-2000/ab_1953_bill_20060930_chaptered.html] became law in 2006 and SB 1334 [http://www.leginfo.ca.gov/pub/07-08/bill/sen/sb_1301-1350/sb_1334_bill_20080929_chaptered.html] in 2008; both created a so-called "lead free" standard for plumbing materials effective 1/1/10.  ["Lead free" of course does not mean lead free.  Fixtures conveying drinking water were limited to 0.25% weighted average lead content.]

The Department of Toxic Substances Control is required to select up to 75 fixtures annually and test them for compliance.  DTSC has now issued a Fact Sheet outlining its test protocols.  See http://www.dtsc.ca.gov/PollutionPrevention/upload/lead-in-plumbing-testing-protocol.pdf.

BPA may eventually be listed under California's Prop. 65 despite negative vote of DART Committee

A prior post noted that OEHHA's DART Committee voted to not list BPA as a reproductive toxicant because although the animal studies were overwhelming in their conclusion that BPA was a reproductive toxicant, there was a dearth of evidence of human impacts.  What went unreported was that the DART Committee has asked the OEHHA staff to take an further look at BPA's impact on susceptible populations and to expand on the details of some of the numerous studies that were noted in the staff report (known as a HIM).  It should also be noted that under Prop. 65 the DART process is not permitted to look at post-natal exposures.

Two other developments may lead down the road to a ban or listing.  First, SB 797 has passed the Senate and is pending on the Assembly floor.  The bill bans, after 1/1/11, the manufacture, sale, or distribution of any bottle or cap that contains BPA at a level about 0.1 ppb if the bottle or cap is designed to be filled with food, liquid, or a beverage intended primarily for consumption by children aged 3 years or younger.  A similar ban would apply to any can lined with BPA exceeding 0.1 ppb.  The sale of infant formula in a can containing any infant formula is banned completely.  The bill allows for the elimination of these constraints if DTSC adopts a regulatory standard under California's green chemistry program (which has been described in prior post).  Finally, the bill requires manufacturers to use the "least toxic alternative" to BPA as a replacement.

Second, as noted in prior posts, there are three separate and independent mechanisms for the listing of a "chemical" [term of art] under Proposition 65.  [See http://www.ropers.com/pdf/253.pdf for a description of Prop. 65 and the three mechanisms.]  One is known as the Labor Code mechanism.  Another is the authoritative body mechanism.  Finally, there are the DART and CIC committee processes.  See aforenoted article.  With this in mind, the Natural Resources Defense Council has now petitioned OEHHA to list BPA under the authoritative bodies mechanism since the National Toxicology Program has concluded that there is "clear evidence" that BPA is a reproductive toxicant at "high doses". 

Stay tuned as the saga continues. 

EPA considering petition requesting ban on lead wheel weights

EPA has responded to a petition by the Sierra Club and Ecology Center, pursuant to TSCA, to prohibit the manufacture, processing, and distribution of lead wheel balancing weights.  See 74 FR 34,342 [http://www.epa.gov/EPA-TOX/2009/July/Day-15/t16815.htm].  The petition is similar to one rejected by EPA in 2005.  The Federal Register notice stated that EPA was seeking information about ways children and the environment could be exposed (e.g., dust around roadways, emissions from the smelting of the weights, emissions from the shredding of cars, and impacts on water from residues washed off of roadways).

The petitioners cited to "new information" since the rejection of the 2005 petition.  The petition argued that the voluntary program which EPA launched in 2008 [see http://www.epa.gov/osw/hazard/wastemin/nlfwwi.htm] does not go far enough in that said program will eliminate no more than 1/3 of the lead wheel weight market.  The petition also asserted that, since 2005, 1.6 million pounds of lead has fallen off of wheels onto streets where the wheel weights could be picked up and played with by children or ground into dust by vehicles.

EPA has now taken comments on the petition; the comments can be found at http://www.regulations.gov/search/Regs/home.html#home.  In the "Enter Keyword or ID" box, put EPA-HQ-OPPT-2009-0467, and hit "Enter".  The comments will be displayed.

A copy of the petition can be found at http://www.leadfreewheels.org/TSCA_Wheel_Weight_Petition_5-28-09.pdf.

Federal judgment may collaterally estop re-litigation of the same action in state court, rules California Supreme Court

In a case which has application to environmental and toxic tort cases, by analogy, the California Supreme Court in Hernandez v. City of Pomona (2009), 46 Cal.4th 501, held that a Federal judgment may operate as collateral estoppel to preclude re-litigation of the same issues in a subsequently filed state court action.  In Hernandez, the plaintiff filed and lost a 1983 action in Federal court; he subsequently filed a wrongful death action in state court, based on the same set of facts.  The California Supreme Court applied collateral estoppel under this circumstance.

It is rare for environmental and toxic court cases in California to not include, if applicable, both Federal and State causes of action in the original complaint.  However, this case notes the risk of not so proceeding, and attempting to address Federal and state causes of action sequentially.

[For the sake of full disclosure, I should note in passing that the City of Pomona is a client of mine.]

Consistent with various rulings by federal courts, California's Court of Appeal holds that service on a foreign corporation is effective by serving the American subsidiary as the "manager"; the Hague Service Convention need not be followed

To say that the Hague Service Convention is a pain when it comes to serving a foreign company is an understatement.  It greatly slows a case because of the time consuming manner of service dictated by the Hague Service Convention.  Consistent with numerous rulings by Federal courts in the 9th Circuit, California's Court of Appeal in Yamaha Motor Co. Ltd. v. Superior Court (2009), 174 Cal.App.4th 264, held that service upon an American subsidiary of a foreign corporation is sufficient.  The Court did note, however, that such service may impair the ability of the party to execute abroad on any judgment obtained.

I should note in passing that the 9th Circuit permits service of a foreign corporation by Federal Express as long as the country in which the corporation is located has not opted out of the service-by-mail provision of the Hague Service Convention.  Thus, parties that seek to circumvent the Hague Service Convention's more traditional modes of service may wish to consider serving both the U.S. subsidiary and, if permitted, serving the parent by FedEx, especially given the cost savings.

Summary judgment cannot be subject to stipulation, rules California Court of Appeal

Occasionally, as a vehicle to get a case before an appellate court, especially when the sole question is one of law (not fact), parties will stipulate to a summary judgment in the trial court.  Following cases noted in prior posts, the Court of Appeal in Magana Carthcart McCarthy v. CB Richard Ellis, Inc. (2009), 174 Cal.App.4th 106, held (2-1) that a trial court may not grant summary judgment by stipulation unless the procedural requirements of Section 437c Code of Civil Procedure are followed.  This case follows in the footsteps of prior opinions that have held, consistent with California law, that explicit statutory requirements trump stipulations or other attempts to modify statutorily mandated procedural requirements.

Revivor of corporate powers can be applied retroactively, rules California appellate court

The general rule in California is that a corporation that is suspended (e.g., failure to file corporate tax returns) cannot file suit or a "responsive pleading" (e.g., answer, demur).  In Center for Self-Improvement v. Lennar Corp. (2009), 173 Cal.App.4th 1543, the plaintiff was suspended at the time that it gave notice under Prop. 65, a prerequisite to filing a lawsuit.  The trial court granted judgment for defendant on the grounds that plaintiff lacked standing.  The Court of Appeal reversed.  The Court noted that under Section 23301 Revenue & Tax Code, once deliquencies are corrected, revivor of the corporate status occurs "without prejudice to any action, defense, or right which has accrued."  The Court found that the revivor operates retroactively, thus validating the notice.

It is for this reason that any party seeking to disqualify an opposing party in an environmental or toxic tort or Prop. 65 action usually waits until the last moment (e.g., eve of trial) to raise the issue so that the opposing party lacks the time needed to correct the error.

California Governor signs new e-discovery legislation; it is effective immediately

Federal and State rules pertaining to e-discovery have been at odds for several years.  After several attempts, California has now enacted explicit e-discovery rules that will impact all litigation, including that related to environmental and toxic tort issues in State court.  A copy of the State legislation can be found at http://www.leginfo.ca.gov/pub/09-10/bill/asm/ab_0001-0050/ab_5_bill_20090629_chaptered.html.  Since the bill is "urgency legislation" it takes effect immediately.

A copy of an e-discovery hold letter can be found at http://www.ediscoverycalifornia.com/insights/pdf/Preservation%20of%20Electronic%20Data.pdf.  [My thanks to the blog, e-Discovery Insights.] 

More later.

OEHHA's DART Committee votes to not list BPA under California's Proposition 65

A prior post (7/10/09) noted that the listing of BPA under Prop. 65 was scheduled for consideration by the DART Committee of OEHHA.  Although the members of the committee were impressed by the scope of the animal test data supporting the listing, they noted the dearth of evidence that BPA had an adverse effect on humans.  As such, they voted unanimously to not recommend the listing.  See http://www3.signonsandiego.com/stories/2009/jul/15/us-california-bpa-071509/?business.