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Sunday, September 22, 2019

Denial of injunction paves way for addition of six pesticides to Prop 65 List

By Andrew Burger | Jul 28, 2016

SACRAMENTO, Calif. (Legal Newsline) — California's Office of Environmental Health Hazard Assessment (OEHHA) on July 15 announced six pesticides were being added to the Proposition 65 list of chemicals known to cause cancer, birth defects or other reproductive harm.

OEHHA on July 16 issued public notice that effective July 15, 2017 Prop 65 warnings will be required for products that contain atrazine, propazine, simazine, des-ethyl atrazine (DEA), des-isopropyl atrazine and 2,4-diamino-6-chloro-s-triazine (DACT).

The state agency is adding the six chemicals, collectively known as triazines pesticides, to the Prop 65 list in the wake of a trial court decision in which Syngenta Crop Protection's request for injunction relief was denied.

Syngenta is appealing the state Superior Court decision, but the company's failure to be granted injunction relief prompted OEHHA to move ahead and add the pesticides to the Prop 65 list, which now numbers more than 800.

OEHHA officially announced it would list the six triazines pesticides under Prop 65 back on Feb. 7, 2014. The agency issued a public notice of its intent to do so on March 27, 2015, announcing that the listing would be effective Aug. 1, 2015. 

Syngenta filed a Petition for Writ of Mandate (And Complaint for Injunction Relief) to stop OEHHA from listing the six triazines pesticides on July 16, 2015 in Sacramento County Superior Court. OEHHA delayed the effective date of the listing to Oct. 1, 2015, as a result of Syngenta's legal challenge. The listing was postponed a second time, to Dec. 13, 2015, in light of rescheduling of a hearing. 

In its petition, Syngenta contends OEHHA violated Prop 65 listing regulations by withholding hundreds of pages of documents from a public records request it had made. More specifically, Syngenta alleges OEHHA failed to include correspondence between it and the Sierra Club at a time when the two were embroiled in Prop 65 litigation.

In the correspondence, which stretches over a period from 2007 to 2012, the environmental advocacy group asserted OEHHA failed in its responsibility to list chemicals shown to cause cancer or reproductive harm proposed via the Labor Code mechanism, one of four procedural pathways chemicals can be added to the Prop 65 list.

Syngenta claims the reasons for OEHHA's decision to list the six triazines pesticides are unclear. OEHHA says its decision is based on EPA studies that show they are linked to developmental and female reproductive toxicity, and that it followed Prop 65 listing procedures to the letter.

The pesticide chemical atrazine is commonly used in fields where corn and sugarcane is grown, as well as on golf courses and lawns. Propazine is used on fields where sorghum is grown, while simazine is used to protect grapes, apples, citrus fruits and wheat from pests.

The firm Bryan Cave has handled numerous defense actions against plaintiffs seeking to enforce Prop 65 actions, one of its attorneys, Merrit Jones, told Legal Newsline.

"Proving that chemicals produced by manufacturers without warning expose the public to the risk of cancer or reproductive harm has to be the basis for OEHAA including them on the Prop 65 list," she said.

"Prop 65 sets a fairly low level for exposure and 'Safe Harbor' levels below which no warning is required," she added. Exposure could entail people touching — handling, rubbing off — via ingestion or inhalation of fumes.

Looking ahead to the completion of Syngenta's appeal, Jones said that OEHAA and Syngenta could appeal an unfavorable decision in the California Supreme Court.

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California Supreme Court Sacramento County Superior Court