Filed 6/8/00
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
WESTERN CROP PROTECTION ASSOCIATION
et al.,
C029727
(Super. Ct. No. 97CS02514)
Plaintiffs and Appellants,
v.
Opinion On Denial of
Rehearing and Order
Modifying Opinion
GRAY DAVIS, as Governor, etc. et
al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of Sacramento
County. James T. Ford, Judge. Affirmed.
McCutchen, Doyle, Brown & Enersen, Patricia L. Shanks,
Barry P. Goode, A. Joshua Henig, Lonnie Finkel, for Plaintiffs
and Appellants.
Bill Lockyer and Daniel E. Lungren, Attorneys General,
Roderick E. Walston, Chief Assistant Attorney General, Theodora
P. Berger, Senior Assistant Attorney General, Craig C. Thompson,
Supervising Deputy Attorney General, Edward G. Weil, Deputy
Attorney General, for Defendants and Respondents.
Altshuler, Berzon, Nussbaum, Berzon & Rubin, Michael Rubin,
Christopher Pederson; Milberg, Weiss, Bershad, Hynes & Lerach,
Albert M. Meyerhoff; David B. Roe; for Amici Curiae Natural
Resources Defense Council, AFL-CIO, United Farm Workers,
1
Environmental Defense Fund, Sierra Club, Pesticide Action
Network, California Public Interest Research Group Charitable
Trust, Pesticide Watch Education Fund, and Environmental Defense
Center on behalf of Defendants and Respondents.
Western Crop Protection petitions for rehearing.
It
contends the opinion disposing of this appeal, filed May 9,
2000, rests on an incorrect assumption of fact and an incorrect
legal theory and, in any event, the legal theory is a novel one
which requires a grant of rehearing under Government Code
section 68081.
We will modify the opinion1 to remove the
incorrect assumption of fact and to clarify the legal theory
claimed to be erroneous.
We will deny the petition for
rehearing.
I
Western Crop Protection first contends the opinion rests on
an invalid assumption of fact.
The assumption of fact is that
OEHHA did not go beyond the administrative record of the EPA
proceedings in determining that EPA placed a chemical on its
list for reasons that satisfy the criteria of the California
law.
The pertinent portion of the opinion follows.
“Western Crop Protection contends the trial court erred in
failing to grant relief on its claim that the listing process of
1
The Reporter of Decisions is directed to publish only the
modifications to the published opinion filed May 9, 2000,
contained in the Disposition.
2
OEHHA for disputed TRI chemicals is unlawful because OEHHA
considers materials that were not considered by the EPA.
The
State replies that it does not consider materials that were not
considered by the EPA.
“Western Crop Protection quotes the following excerpt in
the announcement of proposed rulemaking by EPA for these
additions to the TRI.
“‘The information summarized below for each
chemical or chemical category represents the
key data elements that lead EPA to believe
that there is sufficient evidence to
establish that one of the [TRI] listing
criteria is met. A more extensive review of
the existing data base for each chemical or
chemical category proposed for listing,
which reflects the entire weight-of-theevidence considered by EPA, is contained in
following support documents: [5 references
listed]. . . . .’”
“Western Crop Protection submits this shows the EPA
reviewers did not look at the actual studies cited in the
summary information, but only summaries of the data from the
studies.
It argues that since the EPA did not use the actual
studies, OEHHA cannot use the actual studies, but can only look
to the summary data, which an OEHHA official had described, in a
letter to NRDC, as inadequate to warrant listing under
Proposition 65.
“The quotation by Western Crop Protection omits the
concluding sentence of the paragraph:
‘These support documents
contain a complete list of the references (which can be found in
3
the public record for this proposed rulemaking) that were used
in support of these proposed additions.’
“It suffices to say that Western Crop Protection failed to
supply evidence compelling a finding that the EPA reviewers did
not use the studies themselves.
Accordingly, the trial court
did not err in declining relief to prevent OEHHA from reviewing
the studies in question, as well as the summaries.”
[This
concludes the quotation from the opinion.]
Western Crop Protection says this reasoning is inadequate
because it incorrectly assumes the “complete list of references”
refers to the studies in question.
It submits the references
include only secondary sources, i.e., memoranda that summarize
and comment on the original studies.
It argues the trial court
erred in failing to grant it relief on the claim the listing of
chemicals on the TRI list was infirm because OEHHA looked at the
original studies which were not before EPA.
“Thus, [Western
Crop Protection argues that] to the extent that OEHHA has
considered original scientific studies, or other scientific
data, that are not contained in the EPA administrative record or
listed in the ‘complete list of references’ contained in the
administrative record, OEHHA is acting outside the scope of its
authority under Proposition 65 and its implementing
regulations.”
In its answer to the petition for rehearing OEHHA does not
contend the “complete list of references” refers to the studies
in question.
The references are: “detailed reviews [which] may
4
or may not physically attach the studies that they analyze, but
they clearly are documents in which other EPA staff already had
analyzed actual scientific studies.”
(Fn. omitted.)
OEHHA
argues, as follows, that it is immaterial whether the actual
studies are included.
“To be sure, OEHHA’s task would have been
made easier for some chemicals if the EPA
rulemaking record for each chemical
contained the actual scientific studies, a
detailed set of analytical findings
(tailored to the Proposition 65 standards)
concerning the studies, or both. In many
instances, these documents contain a
sufficiently detailed description of the
study relied on to enable OEHHA to find that
the study met the technical criteria,
without obtaining a copy of the study
itself. In other instances, the discussion
of the underlying studies is not
sufficiently precise to enable OEHHA to
determine whether the study met the
technical criteria, and thus OEHHA must
review the study itself.”
Western Crop Protection makes a valid point concerning the
reasoning in the opinion.
However, the point it makes does not
warrant changing the disposition.
Western Crop Protection has made an across-the-board
challenge to all of the TRI chemicals placed on the Proposition
65 list by OEHHA on the ground OEHHA looked at original studies
not contained in the EPA record.
However, that circumstance is
significant only if information material to the listing of a
particular chemical was contained in an original study and was
not contained in the secondary source’s report about the study.
5
If there is a particular chemical as to which the original
studies contain material information, i.e., information
necessary to afford the inference that EPA put the chemical on
the TRI list on grounds that satisfy the Proposition 65
criteria, which is not reported in the secondary source, a
challenge to the listing of the chemical on that ground would be
warranted.
As related in the opinion, an administrative procedure for
bringing such a challenge is provided in the OEHHA regulations,
section 12306, subdivision (i).
The record fails to show that
Western Crop Protection availed itself of this procedure.
Accordingly, the trial court did not err in denying Western Crop
Protection relief on its facial challenge.
We will modify the opinion to correct the assumption of
fact challenged by Western Crop Protection.
II
Western Crop Protection’s second contention is the opinion
is incorrect in concluding that OEHHA can apply a substantial
evidence test to determine whether EPA identified chemicals as
causing reproductive toxicity within the California definition.
Western Crop Protection argues the opinion conflates the
notions of “sufficient evidence” of causing reproductive
toxicity with “substantial evidence.”
It also argues the
substantial evidence reasoning is an issue not raised by the
6
parties warranting rehearing under Government Code section
68081.2
The arguments are unpersuasive.
There is no confusion in the usage of the terms.
The
phrase “substantial evidence” as used in the opinion refers to
evidence of the grounds upon which EPA put a chemical on the TRI
list.
Regardless whether EPA said it was putting a chemical on
the list because it meets California’s Proposition 65 criteria,
OEHHA can find that it did so on the basis of substantial
evidence in the administrative record of the EPA proceedings.
That leaves the claim that rehearing is mandatory under
Government Code section 68081.
The legislative history of
section 68081 indicates the court may apply rules, principles,
or theories of law to the issues raised by the parties without
affording supplemental briefing.
The language of Senate Bill
No. 2321 was amended prior to enactment to substitute the word
"issue" for the phrase "a rule, principle, or theory of law" in
the language of section 68081.
2
(Assem. Amend. to Sen. Bill No.
Government Code section 68081 is as follows.
“Before the Supreme Court, a court of appeal, or the
appellate division of a superior court renders a decision in a
proceeding other than a summary denial of a petition for an
extraordinary writ, based upon an issue which was not proposed
or briefed by any party to the proceeding, the court shall
afford the parties an opportunity to present their views on the
matter through supplemental briefing. If the court fails to
afford that opportunity, a rehearing shall be ordered upon
timely petition of any party.”
7
2321 (1986 Reg.Sess.) July 9, 1986.)
That OEHHA can ascertain
the reason why EPA placed a chemical on the TRI on the basis of
substantial evidence in the EPA record is a theory of law
compassed within the issues raised by the parties.
DISPOSITION
The opinion filed May 9, 2000, is modified as follows.
1.
On page 14, replace “developmental” with “reproductive”
on line 18.
2.
The following sentence on page 18 of the typed opinion
is deleted: “Thus, in ascertaining if there is substantial
evidence of the state’s criteria, OEHHA ascertains that the
reason the EPA placed a particular chemical on the TRI is
because the EPA found sufficient evidence of developmental
toxicity.”
3.
On page 23, replace “developmental” with “reproductive”
on the second line from the bottom of the page.
4.
The last two paragraphs in section IV of the Discussion
(page 22, lines 7-16) are deleted and the following text,
exclusive of quotation marks, shall be inserted in place of the
deleted matter.
“Western Crop Protection makes an across-the-board attack
upon all of the TRI chemicals placed on the Proposition 65 list
on the ground that OEHHA looked at original studies referred to
in secondary sources which were not contained in the
administrative record of the EPA proceedings.
8
“However, the success of such a challenge is dependent upon
a showing that evidence contained in original studies not
considered by the EPA was material, i.e., was necessary to
sustain the inference that EPA put the chemical on the TRI list
for reasons which satisfy the Proposition 65 criteria.
“If OEHHA placed a particular chemical on the Proposition
65 list on the basis of information in an original study not
considered by the EPA, a challenge to the listing would be
warranted on grounds of materiality.
As noted, such a challenge
may be made pursuant to the procedures provided for in section
12306, subdivision (i).
However, there is no evidence in the
record that Western Crop Protection employed this procedure.
“Lacking such a particularized showing of materiality
regarding each of the chemicals on the Proposition 65 list,
Western Crop Protection cannot sustain its facial challenge to
the entire list on the ground OEHHA looked beyond the EPA
record.”
The modification of the opinion effects no change in the
judgment.
The petition for rehearing is denied.
(CERTIFIED FOR
PARTIAL PUBLICATION.)
BLEASE
We concur:
SCOTLAND
, P. J.
CALLAHAN
, J.
9
, J.