Western Crop Protection Assn. v. Davis (2000)

WESTERN CROP PROTECTION ASSOCIATION et al., Plaintiffs and Appellants, v. GRAY DAVIS, as Governor, etc. et al., Defendants and Respondents.

[Modification fn. * of Opinion (80 Cal.App.4th 741)on denial of petition for rehearing.]

BLEASE, J.-The opinion filed May 9, 2000, is modified fn. 1 as follows.

1. On page 14, replace "developmental" with "reproductive" on line 18 80 Cal. App. 4th 752, advance report, 1st par., lines 5-6].

2. The following sentence on page 18 of the typed opinion [80 Cal. App. 4th 754, advance report, 2d par., lines 6-9] 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 page80 Cal. App. 4th 757, advance report, 4th par., line 8 (correction made in adv. rep. opn.)].

4. The last two paragraphs in section IV of the Discussion (page 22, lines 7-16 [80 Cal. App. 4th 756, advance report, 5th and 6th pars.]) 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.

"However, the success of such a challenge is dependent upon a showing that evidence contained in original studies not considered by the EPA was [81 Cal. App. 4th 190d] 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.

Scotland, P. J., and Callahan, J., concurred.

FN *. This modification requires movement of text affecting pages 757-758 of the bound volume report.

FN 1. The Reporter of Decisions is directed to publish only the modifications to the published opinion filed May 9, 2000; an opinion on denial of rehearing filed with the modification was not certified for publication.