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October 17, 2017

Prop 65 Amendments Now Effective Regarding Content of Notices of Violation Involving Occupational Exposures

Bergeson & Campbell, P.C.

On October 1, 2017, the California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment’s (OEHHA) regulations amending the content required in Proposition 65 (Prop 65) Notices of Violation involving occupational exposure became effective.  The regulations (found at Title 27 of the California Code of Regulations, Section 25903(b)(2)(E)), first proposed on May 19, 2017, are intended to clarify that the “Special Compliance Procedure Proof of Compliance” form is intended only to be included in those Notices of Violation sent to alleged violators for the specific types of occupational exposures identified in Health and Safety Code Section 25249.7(k).  Under current requirements, this form was part of the general Prop 65 summary (Appendix A) that is required to be appended to a Notice of Violation, which was creating some confusion and leading some notice recipients to attempt to use the special compliance form for circumstances that did not qualify for such use.  By bifurcating the form from Appendix A and instead including the form in a new Appendix B, OEHHA hopes to “ensure that the special compliance form is only included with a Notice of Violation in the special instances where it is applicable.”
The special compliance form (Appendix B) will now be required only in Notices of Violation sent to alleged violators for the following types of occupational exposures that occur without a warning pursuant to Health and Safety Code Section 25249.7(k):

  • An exposure to alcoholic beverages that are consumed on the alleged violator’s premises to the extent onsite consumption is permitted by law;
  • An exposure to a Prop 65 listed chemical in a food or beverage prepared and sold on the alleged violator’s premises that is primarily intended for immediate consumption on- or off-premises.  This only applies if the chemical was not intentionally added to the food, and was formed by cooking or similar preparation of food or beverage components necessary to render the food or beverage palatable or to avoid microbiological contamination;
  • An exposure to environmental tobacco smoke caused by entry of persons (other than employees) on premises owned or operated by the alleged violator where smoking is permitted at any location on the premises; and
  • An exposure to listed chemicals in engine exhaust, to the extent the exposure occurs inside a facility owned or operated by the alleged violator and primarily intended for parking non-commercial vehicles.  

In these specific cases, private parties are prohibited from filing an action against an alleged violator if such violator, within 14 days of receipt of the Notice of Violation, corrects the violation, agrees to pay a $500 civil penalty, and completes the Special Compliance Procedure Proof of Compliance form certifying that it has taken these corrective steps and that it is the first time it has submitted this form for a violation arising from the same exposure in the same facility on the same premises.