Chapter 3.2. California Occupational Safety and Health Regulations (CAL/OSHA)
Subchapter 1. Regulations of the Director of Industrial Relations

Article 5. Hazardous Substances Information and Training

§338. Special Procedures for Supplementary Enforcement of State Plan Requirements Concerning Proposition 65.

(a) This section sets forth special procedures necessary to comply with the terms of the approval by the United States Department of Labor of the California Hazard Communication Standard, pertaining to the incorporation of the occupational applications of the California Safe Drinking and Toxic Enforcement Act (hereinafter Proposition 65), as set forth in 62 Federal Register 31159 (June 6, 1997). This approval specifically placed certain conditions on the enforcement of Proposition 65 with regard to occupational exposures, including that it does not apply to the conduct of manufacturers occurring outside the State of California. Any person proceeding “in the public interest” pursuant to Health and Safety Code §25249.7(d) (hereinafter “Supplemental Enforcer”) or any district attorney or city attorney or prosecutor pursuant to Health and Safety Code §25249.7(c) (hereinafter “Public Prosecutor”), who alleges the existence of violations of Proposition 65, with respect to occupational exposures as incorporated into the California Hazard Communication Standard (hereinafter “Supplemental Enforcement Matter”), shall comply with the requirements of this section. No Supplemental Enforcement Matter shall proceed except in compliance with the requirements of this section.

(b) 22 CCR §12903, setting forth specific requirements for the content and manner of service of sixty-day notices under Proposition 65, in effect on April 22, 1997, is adopted and incorporated by reference. In addition, any sixty-day notice concerning a Supplemental Enforcement Matter shall include the following statement:

“This notice alleges the violation of Proposition 65 with respect to occupational exposures governed by the California State Plan for Occupational Safety and Health. The State Plan incorporates the provisions of Proposition 65, as approved by Federal OSHA on June 6, 1997. This approval specifically placed certain conditions with regard to occupational exposures on Proposition 65, including that it does not apply to the conduct of manufacturers occurring outside the State of California. The approval also provides that an employer may use the means of compliance in the general hazard communication requirements to comply with Proposition 65. It also requires that supplemental enforcement is subject to the supervision of the California Occupational Safety and Health Administration. Accordingly, any settlement, civil complaint, or substantive court orders in this matter must be submitted to the Attorney General.”

(c) A Supplemental Enforcer or Public Prosecutor who commences a Supplemental Enforcement Matter shall serve a file-endorsed copy of the complaint upon the Attorney General within ten days after filing with the Court.

(d) A Supplemental Enforcer or Public Prosecutor shall serve upon the Attorney General a copy of any motion, or opposition to a motion for summary judgment or summary adjudication of issues, a demurrer, motion for preliminary or injunctive relief, or other dispositive motion, and all memoranda of points and authorities in support of or opposing such motions. These materials shall be served upon the Attorney General on the same day which they are served on the opposing party. A Supplemental Enforcer or Public Prosecutor shall serve upon the Attorney General any decision or order of a court granting or denying summary adjudication, a demurrer, preliminary or final injunctive relief, penalties, or damages relating to a Supplemental Enforcement Matter within five working days after receipt.

(e) A Supplemental Enforcer or Public Prosecutor who agrees to a settlement of a Supplemental Enforcement Matter shall serve the settlement upon the Attorney General within two working days after the agreement is signed by the parties. Where the settlement is submitted to a court for its approval, the Supplemental Enforcer or Public Prosecutor shall notify the court in writing upon presentation of the settlement of its submission to the Attorney General pursuant to this regulation. The submission to the Attorney General shall contain the entire agreement between the parties. (f) When this section requires that any document or information be provided to the Attorney General, service shall be in a manner prescribed by Code of Civil Procedure §1010 et seq. The envelope in which the document is transmitted shall state prominently “Hazard Communication Standard/Proposition 65 Supplemental Enforcement Matter.” The Attorney General may then specify that further documents be served upon a particular office and deputy. (g) The special procedures set forth in subsections (a) through

(f) shall be followed for motions or other applications for judicial enforcement of any existing or future settlement agreements pertaining to Proposition 65, with reference to occupational exposures. (h) Where, in the judgment of the Director and the Attorney General, a Supplemental Enforcer or Public Prosecutor has not complied with the provisions of this section, or the provisions of the OSHA approval decision of June 6, 1997, the Attorney General may seek to intervene in the action, or take such actions within his authority as he deems appropriate to assure compliance.

NOTE

Authority cited: Sections 54, 55 and 6380, Labor Code; and 62 Fed. Reg. 31159 (June 6, 1997). Reference: Sections 54, 55 and 6380, Labor Code; and 62 Fed. Reg. 31159 (June 6, 1997).

HISTORY

1. New section filed 10-12-2000; operative 10-12-2000 pursuant to Government Code section 11343.4(d) (Register 2000, No. 41).