(a) 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).
(b) 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, or if a body considered to be authoritative by such experts has formally identified it as causing cancer or reproductive toxicity, 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.
(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.
Added by initiative measure, Proposition 65, approved November 4, 1986, effective January 1, 1987.
Editor's Notes- For legislative findings, declarations, severability, and effective date of initiative, see the Note to Ch 6.6 (H & S C §§ 25249.5 et seq.).
Cross References: Definitions: H & S C § 25249.11.
Hazardous substance list: Lab C § 6382.
Collateral References: 12 Witkin Summary (10th ed) Real Property § 894.
Miller & Starr, Cal Real Estate 3d § 23:16.
NOTES OF DECISIONS
Health & Saf. Code, § 25249.8, enacted as part of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65), and the act itself, are concerned only with those substances that authoritative bodies have concluded are known to cause cancer or reproductive toxicity. Thus, despite the incorporation into the act by reference of the federal Hazard Communication Standard (HSC) (29 C.F.R. § 1910.1200), in accordance with the provisions of Health & Saf. Code, § 25249.8 and Lab. Code, § 6382, subd. (d), the list of harmful chemicals required by § 25249.8 to be published by the Governor need not include all those chemicals which, though noncarcinogenic, are included within the scope of the HSC, but only the known carcinogens and reproductive toxins listed there. AFL-CIO v Deukmejian (1989, 3rd Dist) 212 Cal App 3d 425, 260 Cal Rptr 479.
Health & Saf. Code, § 25249.8, subd. (b), which provides that a chemical is known to be a carcinogen or reproductive toxin if so determined by the state's panel of experts, does not conflict with the provisions of § 25249.8, subd. (a), which mandates the Governor to include on an initial list of known carcinogens and reproductive toxins specified chemicals identified by reference in Lab. Code, § 6382, subds. (b)(1), (d). The inclusion on the initial list of the items identified by reference is required as a minimum, but the ballot initiative under which § 25249.8 was passed (Safe Drinking Water and Toxic Enforcement Act of 1986; Proposition 65) was not intended to produce a one-time list. Rather, the act requires revision of the list annually or even more frequently. Subdivision (b) thus complements subd. (a) by providing for a panel of experts to engage in a continuing search for additional harmful chemicals. AFL-CIO v Deukmejian (1989, 3rd Dist) 212 Cal App 3d 425, 260 Cal Rptr 479.
Only those chemicals that are known, and not merely suspected, of causing cancer or reproductive toxicity in humans or animals are required by Health & Saf. Code, § 25249.8, to be included on the list that the Governor must publish in accordance with the terms of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65). Substances that are known to be carcinogenic to humans are clearly subject to the act. But any substance that is only “probably” harmful to humans must still be included on the list if it is in fact a known carcinogen or reproductive toxin with respect only to animals. AFL-CIO v Deukmejian (1989, 3rd Dist) 212 Cal App 3d 425, 260 Cal Rptr 479.
The plain language of Health & Saf. Code, § 25249.8, passed by initiative as part of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65), clearly requires the governor to include both known human and known animal carcinogens and reproductive toxins identified by reference to Labor Code, § 6382, subds. (b)(1), (d), on the initial list required to be published by the governor pursuant to the terms of the initiative. Thus plaintiffs, a group of taxpayers concerned with the environment, were entitled to a writ of mandate compelling the Governor to perform his ministerial duty to place animal carcinogens and reproductive toxins on the initial list which, as originally published, contained only human carcinogens and reproductive toxins identified by Lab. Code, § 6382. AFL-CIO v Deukmejian (1989, 3rd Dist) 212 Cal App 3d 425, 260 Cal Rptr 479.
The Governor's determination of which chemicals to include in the initial list of known carcinogens and reproductive toxins required to be published pursuant to Health & Saf. Code, § 25249.8, subd. (a), is not discretionary; the words of the statute clearly impose a mandatory duty to publish at a minimum the substances identified by reference in Lab. Code, § 6382, subds. (b)(1), (d). Thus, the Governor had no discretion to exclude from the initial list any of the known carcinogens and reproductive toxins referred to in Lab. Code, § 6382. AFL-CIO v Deukmejian (1989, 3rd Dist) 212 Cal App 3d 425, 260 Cal Rptr 479.
The trial court properly denied a writ of mandate seeking to prohibit the Governor from publishing a Proposition 65 list of chemicals as known to the state to cause reproductive toxicity (H & S C § 25249.8), even though the state list was adopted from a list of chemicals established by the federal Environmental Protection Agency (EPA) and the federal definition might be broader than the state definition, since the state could determine that the criteria used by the EPA in placing a particular chemical on the EPA list satisfied the state definition. Western Crop Protection Assn. v Davis (2000, 3rd Dist) 80 Cal App 4th 741, 95 Cal Rptr 2d 631.
Superior court did not err in only requiring a manufacturer to establish by a preponderance of the evidence, under Ev C § 115, that exposure to a chemical presented no significant risk of cancer in humans. Although a chemical has to be “clearly shown” to cause cancer before it may be listed under H & S C § 25249.8(b), the warning exemption of H & S C § 25249.10(c) does not similarly require it to be clearly shown that exposure to the chemical poses no significant risk of causing cancer; this indicates the burden of proving the exemption is less than by clear and convincing evidence. Baxter Healthcare Corp. v Denton (2004, Cal App 3rd Dist) 2004 Cal App LEXIS 1054.
Nothing in the regulations or the final statement of reasons in support of the Safe Drinking Water and Toxic Enforcement Act of 1986, Cal. Health & Safety Code §§ 25249.8 and 25249.11 required an exact identity of medium. Moreover, as remedial statute, the Act had to be broadly construed to effectuate its remedial purpose; the conditions only had to be substantially identical, not absolutely identical. As You Sow v. Conbraco Indus., (2005) 135 Cal App 4th 431, 37 Cal Rptr 3d 399, 2005 Cal. App. LEXIS 2025.
Trial court's interpretation of the “specific medium” as requiring actual California drinking water, for determining the existence of a discharge under the Safe Drinking Water and Toxic Enforcement Act of 1986 was an unduly narrow interpretation. As You Sow v. Conbraco Indus., (2005) 135 Cal App 4th 431, 37 Cal Rptr 3d 399, 2005 Cal. App. LEXIS 2025.