California agency's Prop 65 lead regulation upheld by appellate court

By Sandra Lane | Jun 19, 2018

SAN FRANCISCO (Legal Newsline) – The California Court of Appeal, 1st Appellate District, Division Two recently affirmed the ruling of a lower court in favor of the California Office of Environmental Health Hazard Assessment (OEHHA) regarding acceptable levels of lead in water as it relates to reproductive health.

On June 5, Presiding Judge J. Anthony Kline affirmed the Alameda County Superior Court's decision, stating “Given our determination that the Agency did not abuse its discretion in setting the maximum allowable dose level (MADL), we need not address intervenors’ arguments. The judgment is affirmed. OEHHA is awarded costs on appeal.”

There were three organizations involved in this appeal. Mateel Environmental Justice Foundation is the plaintiff and appellant and OEHHA is the defendant and respondent. Intervenors include the California Chamber of Commerce, California Farm Bureau, and David Roe, principal drafter and author of Proposition 65, which set the standards for lead in water.

This case concerned the enforcement of lead levels in water established by OEHHA. In 2015, appellant Mateel Environmental Justice Foundation sued OEHHA to compel that agency to repeal part of a regulation that invalidated a safe level for lead as a reproductive toxicant of 0.5 micrograms per day. The trial court denied Mateel’s motion for judgment and entered judgment in favor of OEHHA.

As a result, Mateel filed an appeal in this court, arguing that OEHHA failed to comply with the Proposition 65 mandate requirements. Furthermore, it alleged that the lead levels set by the U.S. Occupational Safety and Health Administration were not set to achieve a safe level for men or women who wished to plan pregnancies in accordance with the permissible exposure limits for lead. 

Mateel argued that OEHHA failed to make a downward adjustment to account for this discrepancy. Mateel also stated that nothing in the record indicated that OEHHA considered this issue in setting the MADL, the opinion states.

The California Chamber of Commerce and California Farm Bureau Federation intervened in support of the respondent. They argued that “the lead 'safe harbor' provides certainty as a presumptively valid warning threshold, allowing businesses to sell their products and services and workplaces to comply with the law and to avoid unnecessary warnings. 

Without the safe harbor, they argue that these businesses will be "'vulnerable to Proposition 65 enforcers' in pursuit of injunctive relief and civil penalties provided by the statute," the opinion states.

Furthermore, the court ruled that new arguments regarding OEHHA’s alleged failure to comply with specific provisions of the government code would not be considered.

Judge Therese M. Stewart and Judge Marla J. Miller concurred.

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Organizations in this Story

California Chamber of Commerce California Farm Bureau Federation First District Court of Appeal California

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