Proposition 65 Advisory

OEHHA Proposes NSRLs and NOELs for Twenty-Two Chemicals

June 10, 2001

Proposition 65 Advisory 01-VI

OEHHA Proposes NSRLs and NOELs for Twenty-Two Chemicals

California's Office of Environmental Health Hazard Assessment ("OEHHA") will establish or change specific regulatory levels posing "no significant risk" for eighteen Proposition 65-listed carcinogens and "no observable effect" for four reproductive toxins. Public notice, dated June 8, 2001, is available at www.oehha.ca.gov/prop65/lawNotrev53101.html. OEHHA will hold a public hearing on July 23, 2001. Comments may be submitted at the public hearing, or in writing at any time prior to 5:00 p.m. on that date.

Significance of NSRLs and NOELs. The NSRLs and NOELs for Proposition 65-listed chemicals determine whether, and when, key provisions of Proposition 65 take effect. The Proposition 65 "warning requirement," Cal. Health & Safety Code § 25249.6, allows an exemption for exposures to carcinogens at levels beneath the NSRL, and to reproductive toxins at levels 1/1000th beneath the NOEL. See § 25249.10. The Proposition 65 "discharge prohibition," § 25249.5, allows an exemption for a discharge or release beneath a "significant amount," see § 25249.9, defined as an amount that would not result in exposures that exceed those levels. See § 25249.11.

The NSRLs and NOELs for Proposition 65 chemicals similarly determine whether, and when, Proposition 65 may be enforced. The failure to distribute a Proposition 65 warning for a product that contains a Proposition 65-listed chemical does not result in a violation of the law, if the exposure to the chemical from the product does not exceed the NSRL or 1000th of the NOEL, as applicable. A leak or spill of Proposition 65-listed chemicals similarly does not result in a violation of the law if it is not in a "significant amount."

This regulatory action to set or change NSRLs and NOELs thus will have a material effect on whether and how the law may be applied. It further may affect companies that have agreed to provide warnings for certain chemicals under settlements or consent judgments in Proposition 65 enforcement actions. Changes to NSRLs or NOELs may trigger warning requirements that did not apply before, or cause other warning requirements no longer to apply.

Recommendation. We recommend that you determine whether changes to NSRLs or NOELs for chemicals in the OEHHA notice would affect your company's Proposition 65 compliance obligations, including those imposed under settlement agreements. Chemicals in the notice include lead, arsenic, benzene and cadmium, as well as a number of pharmaceutical and pesticide chemicals.

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