24 Cal. App. 5th 220
Cal. Ct. App. 5th2018Background
- In 1989 OEHHA (then HWA) adopted Prop. 65 regulations including a MADL (maximum allowable dose level) for lead as a reproductive toxicant: 0.5 µg/day (Regs., tit. 27, § 25805(b)).
- Mateel sued in 2015 seeking writ of mandate to invalidate the 0.5 µg/day MADL, arguing it was improperly derived from OSHA’s PEL and not from a true NOEL (no observable effect level).
- OEHHA derived 0.5 µg/day by converting OSHA’s air PEL (50 µg/m3 → 500 µg/day) and dividing by 1,000, and treated OSHA’s blood-lead target of 30 µg/100g as a ‘‘functional equivalent’’ NOEL.
- Statutory framework: Proposition 65 exempts exposures that would have no observable reproductive effect at 1,000× the level in question; the NOEL must be based on evidence of comparable scientific validity to that supporting listing.
- Trial court entered judgment for OEHHA; this appeal challenges (1) use of OSHA materials as a surrogate NOEL, and (2) lack of adjustment for background body‑burden differences between OSHA’s PEL model and isolated consumer exposures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of using OSHA-derived blood-lead target as NOEL | Mateel: OSHA’s materials do not establish a true NOEL; OSHA itself said 30 µg/100g is not guaranteed a "no effect" level, so OEHHA unlawfully relied on a surrogate | OEHHA: OSHA’s studies are the same high-quality science underlying the Proposition 65 listing; a NOEL can be derived from alternative, scientifically appropriate methods and OSHA’s 30 µg/100g is a functional NOEL | Court: OEHHA did not abuse discretion; OSHA record and methodologies were scientifically sufficient and could support treating 30 µg/100g as a surrogate NOEL |
| Whether MADL (0.5 µg/day) actually achieves 30 µg/100g blood level | Mateel: OSHA’s PEL was not set to achieve 30 µg/100g; OSHA’s model predicted mean ≈35 µg/dL for workers, so OEHHA should have adjusted downward | OEHHA: OSHA’s PEL reflects total body burden; Proposition 65 MADL addresses incremental exposure from a single source and may appropriately rely on OSHA data without further downward adjustment; agency considered body‑burden issue | Court: OEHHA’s approach was not arbitrary or capricious; record shows awareness of body‑burden considerations and the agency’s explanation sufficed |
| Applicability of listing-case precedents (Styrene, Western Crop) | Mateel: Those cases show federal standards that are less rigorous cannot be relied on to satisfy Prop. 65 NOEL requirement | OEHHA: Listing cases are distinct; for MADL setting the agency acts independently and may use the same underlying authoritative science to derive a NOEL | Court: Distinguishes listing cases; OEHHA may independently determine a MADL from the same scientific record used for listing |
| Record adequacy / procedural compliance | Mateel: Administrative record lacks explicit contemporaneous analysis showing OEHHA accounted for OSHA modeling/body burden; procedural defects under Gov. Code claimed | OEHHA: FSOR and ISOR addressed rationales and comments; presumption that agency performed duties; Mateel forfeited newly invoked Government Code claims on appeal | Court: Presumes official duties performed; record and FSOR adequate; Mateel forfeited late-raised Gov. Code claims |
Key Cases Cited
- Beech-Nut Nutrition Corp. v. California OEHHA, 235 Cal.App.4th 307 (Cal. Ct. App.) (explaining NOEL→MADL 1/1000 relationship and prior treatment of lead MADL)
- Exxon Mobil Corp. v. Office of Environmental Health Hazard Assessment, 169 Cal.App.4th 1264 (Cal. Ct. App.) (deference and standard of review for OEHHA rulemaking)
- Styrene Information & Research Ctr. v. OEHHA, 210 Cal.App.4th 1082 (Cal. Ct. App.) (limits on relying on less‑rigorous foreign/federal listings for Proposition 65 listing decisions)
- Western Crop Prot. Assn. v. Davis, 80 Cal.App.4th 741 (Cal. Ct. App.) (agency review of authoritative‑body listings and statutory listing standards)
- California Assn. for Health Services at Home v. State Dept. of Health Care Services, 204 Cal.App.4th 676 (Cal. Ct. App.) (requirements for agency to consider relevant factors; arbitrary/capricious review)
- California Hotel & Motel Assn. v. Industrial Welfare Comm'n, 25 Cal.3d 200 (Cal.) (‘‘statement of basis’’ principles and administrative adequacy)
- Johnson v. American Standard, Inc., 43 Cal.4th 56 (Cal.) (warning/over‑warning considerations in public policy context)