Newsroom:
COURT SETS AUGUST 12 HEARING ON SIRC REQUEST TO STOP CALIFORNIA PROPOSITION 65 LISTING OF STYRENE

[Statement date: July 17, 2009]

Judge Shelleyanne Chang of the Superior Court of the State of California (Sacramento County) has set an August 12 hearing on the Styrene Information and Research Center’s (SIRC’s) – www.styrene.org – request to prohibit the California Environmental Protection Agency (Cal/EPA) from implementing illegal “underground” standards by listing styrene as a “chemical known to cause cancer” under Proposition 65.  Under California law, the state must formally adopt appropriate standards through a regulatory process that involves public input.

The action came at a July 15 preliminary hearing in response to a legal challenge filed by SIRC on July 14.  Technically speaking, the court denied SIRC’s request for temporary restraining order (TRO) to halt the implementation of the “underground” standards.  However, the deputy attorney general representing Cal/EPA agreed during the preliminary hearing that the agency would not place styrene on the Proposition 65 list in advance of the August 12 hearing.  So as a practical matter, the court action afforded the same protection to styrene that SIRC would have obtained through a TRO.  The August 12 hearing will begin at 9 a.m. PDT.

Since styrene is not “known to cause cancer” under Proposition 65, listing it would be misleading, as well as illegal, and would irreparably harm SIRC’s members and their customers.

In its July 14 request for a TRO and motion for preliminary injunction, SIRC asked for “a judicial declaration that (the Cal/EPA Office of Environmental Health Hazard Assessment – OEHHA) may not enforce standards of general application interpreting and implementing Proposition 65…unless OEHHA formally adopts those standards as regulations pursuant to the Administrative Procedures Act (APA)…”  Greenberg Traurig LLP, SIRC’s California legal counsel, filed the challenge on SIRC’s behalf.

“The APA requires administrative standards of general application that interpret or implement statutes to be formally adopted through mandatory procedures including public notice and comment, approval by the Office of Administrative Law, and filing with the Secretary of State,” SIRC told the court.

“Standards adopted without the APA’s formal procedures are void, and may not be enforced.  The APA specifically provides for judicial review invalidating underground regulations, that is, standards adopted without public notice and comment pursuant to the APA.”

SIRC also declared in its filings that:

• Styrene does not cause human cancer, and that listing it under Proposition 65 would stigmatize SIRC’s members and their products by creating a false public perception that styrene and styrene products are dangerous to human health, and that

• OEHHA is interpreting and implementing relevant provisions of Proposition 65 in secret, and refuses to consider new scientific evidence indicating that styrene is not a human carcinogen; that evidence has emerged since the 2002 International Agency for Research on Cancer (IARC) review (finding styrene to be “possibly carcinogenic”) upon which California relies.

The Safe Drinking Water and Toxic Enforcement Act of 1986, commonly called Proposition 65, requires California's Governor to publish a list (updated annually) of chemicals “known to the State of California to cause cancer, birth defects or other reproductive harm.”  Proposition 65 requires businesses to notify Californians (e.g., through warning labels) about significant amounts of the listed chemicals in the products they purchase, that are found in homes or workplaces, or that are released into the environment.  Chemicals listed under Proposition 65 can face unwarranted adverse consumer reaction or de-selection of products made from those chemicals.

On June 12, OEHHA proposed listing styrene under Proposition 65 after a California court ruled in February that OEHHA should reference under that law those substances identified in the California Labor Code.  The Labor Code includes thousands of substances that are not known carcinogens, including substances such as styrene, for which IARC has found less than “sufficient evidence” of carcinogenicity.

In April, the Alameda (Calif.) County Superior Court rejected a California Chamber of Commerce lawsuit contending that OEHHA lacks the authority to continue listing chemicals for Proposition 65 under the Labor code mechanism.  SIRC is a member of the coalition that sponsored that suit.  The Chamber has appealed that ruling.  SIRC’s new lawsuit argues that even if OEHHA has authority to list under the Labor Code mechanism, it must first adopt formal criteria for choosing among the thousands of chemicals referenced by the Labor Code that are not known carcinogens or reproductive toxins.