Workshop - Proposition 65 Regulatory Update Project Safe Use Determination Regulation

The Office of Environmental Health Hazard Assessment (OEHHA) is the lead agency for implementation of Proposition 65 (The Safe Drinking Water and Toxic Enforcement Act of 1986, Health and Safety Code section 25249.5, et. seq., hereafter referred to as Proposition 65 or the Act). As part of its responsibilities related to Proposition 65, OEHHA maintains the regulations implementing the Act. These regulations can be found in Title 27 of the California Code of Regulations.

Title 27, of the California Code of regulations, section 25204 sets out the procedures and criteria for requesting that OEHHA issue a Safe Use Determination (SUD). OEHHA considers these determinations upon the request of persons subject to Proposition 65 who need to know how the warning and discharge prohibitions apply to their business activities. Currently, the regulations state that OEHHA’s SUD’s are advisory only. OEHHA wants to encourage businesses to use the SUD process to resolve the often difficult legal and scientific issues that arise under the law and regulations, rather than wait to have these issues decided by the courts on a case-by-case basis. Some interested parties have requested that OEHHA’s SUDs carry more weight in court so that they are worth the time and expense involved in obtaining one. Therefore, OEHHA is proposing changes in the regulatory language of section 25204 that will give OEHHA’s determinations presumptive effect in an enforcement proceeding. The text of the possible changes to the regulation is attached to this notice. This is a pre-regulatory proposal. The language proposed may change substantially prior to it being proposed in a formal regulatory proceeding.

On Friday, July 11, 2008 from 10 to Noon in the Sierra Hearing Room at the Cal/EPA Headquarters Building located at 1001 I Street, Sacramento, California, OEHHA will hold a public pre-regulatory workshop for the purpose of gathering input from interested parties concerning this possible regulatory action.

If you have special accommodations or language needs, please contact Monet Vela at (916) 323-2517 or

Interested parties may also submit their ideas on this regulatory concept by 5:00 p.m. on July 25, 2008. All submissions should be directed to:

Fran Kammerer
Staff Counsel
Office of Environmental Health Hazard Assessment
1001 I Street
Sacramento, CA 95812
Or via e-mail to

Proposed Amended Language

§25204 Safe Use Determination

(a) As a part of this overall responsibility to provide guidance to persons or organizations that are or may be affected by the Act, the lead agency will consider the applicability of the Act or the exemptions specified in the Act to business activities or prospective business activities. A safe use determination issued by the lead agency represents the state’s best judgment concerning the application of the Act to the particular facts presented in the request. A safe use determination is advisory only. It does not affect the authority of the Attorney General, district attorneys, certain city attorneys and any other person in the public interest to prosecute violations of the Act pursuant to Section 25249.7 of the Act nor does it affect the responsibility of courts to interpret the Act and apply the provisions of the Act to particular facts. A safe use determination issued by the lead agency and adopted pursuant to this section creates a presumption that the activity described in the determination, when conducted as described, is in compliance with the Act and all related regulations.

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