Supplement to California State Plan; Request for Public Comment

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1952

Supplement to California State Plan; Request for Public Comment

AGENCY: Occupational Safety and Health Administration (OSHA),

Department of Labor.

ACTION: Request for public comment: California State Standard on Hazard

Communication Incorporating Proposition 65.

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SUMMARY: This document invites public comment on a supplement to the

California occupational safety and health plan. The supplement,

submitted on January 30, 1986, with amendments submitted on November

22, 1986 and January 30, 1992, concerns the State's adoption of a

hazard communication standard, which incorporates provisions of the

Safe Drinking Water and Toxic Enforcement Act, also called Proposition

65. California also submitted clarifications concerning the standard

and its enforcement on February 16 and February 28, 1996. The State's

standard is substantively different in both its content and

supplemental method of enforcement from the Federal Occupational Safety

and Health Administration (OSHA) standard found at 29 CFR 1910.1200.

Where a State standard adopted pursuant to an OSHA-approved State plan

differs significantly from a comparable Federal standard, the

Occupational Safety and Health Act of 1970 (29 U.S.C. 667) (the Act)

requires that the State standard must be ``at least as effective'' as

the Federal standard. In addition, if the standard is applicable to a

product distributed or used in interstate commerce, it must be required

by compelling local conditions and not pose any undue burden on

interstate commerce. OSHA, therefore, seeks public comment on whether

the California hazard communication standard meets the above

requirements.

DATES: Written comments should be submitted by November 12, 1996.

ADDRESSES: Written comments should be submitted to Docket T-032, Docket

Office, Room N-2625, Occupational Safety and Health Administration,

U.S. Department of Labor, 200 Constitution Avenue, N.W., Room N3700,

Washington, D.C. 20210.

FOR FURTHER INFORMATION CONTACT: Ann Cyr, Acting Director, Office of

Information and Consumer Affairs, Occupational Safety and Health

Administration, U.S. Department of Labor, Room N-3647, 200 Constitution

Avenue, N.W., Washington, DC 20210. Telephone: (202) 219-8148.

A. Background

The Act generally preempts any State occupational safety and health

standard that addresses an issue covered by an OSHA standard, unless a

State plan has been submitted and approved. (See Gade, Director,

Illinois Environmental Protection Agency v. National Solid Wastes

Management Association, No. 90-1676 (June 18, 1992).) Once a State plan

is approved, the bar of preemption is removed and the State is then

able to adopt and enforce standards under its own legislative and

administrative authority. Therefore, any State standard or policy

promulgated under an approved State plan becomes enforceable upon State

promulgation. Newly adopted State standards must be submitted for OSHA

review and approval under procedures set forth in 29 CFR Part 1953, but

are enforceable by the State prior to Federal review and approval. (See

Florida Citrus Packers, et. al. v. State of California, Department of

Industrial Relations, Division of Occupational Safety and Health et al,

No. C-81-4218 (July 26, 1982).)

On May 1, 1973, a document was published in the Federal Register

(38 FR 10717) of the approval of the California State plan and the

adoption of Subpart CC to Part 1952 containing the decision.

The requirements for adoption and enforcement of safety and health

standards by a State with a State plan approved under section 18(b) of

the Act are set forth in section 18(c)(2) of the Act and in 29 CFR

1902.29, 1952.7, 1953.21, 1953.22 and 1953.23. OSHA regulations require

that States respond to the adoption of new or revised permanent Federal

standards by State promulgation of comparable standards within six

months of OSHA publication in the Federal Register.

Section 18(c)(2) of the Act provides that if State standards which

are not identical to Federal standards are applicable to products which

are distributed or used in interstate commerce, such standards, in

addition to being at least as effective as the comparable Federal

standards, must be required by compelling local conditions and must not

unduly burden interstate commerce. (This latter requirement is commonly

referred to as the ``product clause.'') OSHA's policy (as contained in

OSHA Instruction STP 2-1.117) is to make a preliminary determination as

to whether the standard is at least as effective as the Federal

standard, and then rely on public comment as the basis for its decision

on the product clause issue.

B. Description of the Supplement

Original Hazard Communication Standard

On September 10, 1980, the Governor of California signed the

Hazardous Information and Training Act (California Labor Code, sections

6360 through 6399). This Act provided that the Director of Industrial

Relations establish a list of hazardous substances and issue a standard

setting forth employers' duties toward their employees under that Act.

The standard, General Industry Safety Order 5194, was adopted by the

State in 1981. Both the Director's initial list and the standard became

effective on February 21, 1983. Subsequently, Federal OSHA promulgated

a hazard communication standard (29 CFR 1910.1200) in November 1983.

The State amended its law in 1985, and, after a period for public

review and comment, the California Standards Board adopted a revised

standard for hazard communication comparable to the Federal standard on

October 24, 1985. The standard became effective on November 22, 1985.

By letter dated January 30, 1986, with attachments, from Dorothy H.

Fowler, Assistant Program Manager, to then Regional Administrator,

Russell B. Swanson, the State submitted the standard (8 CCR section

5194) and incorporated the standard as part of its occupational safety

and health plan.

The State hazard communication standard differs from the Federal

standard in several respects. The State standard requires that each

Material Safety Data Sheet contain certain information including

Chemical Abstracts Service (CAS) name and a description in lay terms of

the specific potential health risks posed by the hazardous substance.

These two State requirements are not included in the Federal standard.

However, in a memorandum from John Howard, Chief,

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Division of Occupational Safety and Health, enclosed with a letter of

February 28, 1996, from John MacLeod, Executive Officer of the

California Occupational Safety and Health Standards Board to Regional

Administrator Frank Strasheim, the State notes that section 6392 of the

California Labor Code provides that provision of a Federal material

safety data sheet or equivalent shall constitute prima facie proof of

compliance with the standard. The memorandum states, ``Thus, a

manufacturer who supplies a MSDS which is accurate and fully complies

with the federal OSHA regulation is in compliance in California.''

While the Federal standard allows for release of trade secret

information to health professionals, the California standard allows

access to such information to safety professional as well. The State

argues that this provision is more protective of worker safety, since

many safety and health programs are managed by safety professionals who

have both safety and health expertise.

Finally, the State standard does not include many of the exemptions

and exceptions added to the Federal standard in 1994.

Proposition 65

Subsequently, on January 30, 1992, in a letter from John Howard,

Chief, California Division of Occupational Safety and Health, to

Regional Administrator Frank Strasheim, the State submitted changes to

its hazard communication standard by incorporating provisions found in

the State's Safe Drinking Water and Toxic Enforcement Act (Proposition

65). This Act was passed by referendum of the voters of California in

1986. The Safe Drinking Water and Toxic Enforcement Act (California

Health and Safety Code sections 25249.5 through 25249.13) and

implementing regulations issued by the Office of Environmental Health

Hazard Assessment in the California Environmental Protection Agency (22

California Code of Regulations 12601) require that any business with

ten or more employees which exposes an individual to a chemical known

to the State to cause cancer or reproductive toxicity must provide the

individual with a clear and reasonable warning. The regulations provide

that the warning may be given through the label of a product or a sign

in the workplace and give sample language for the warning. For labels,

the warnings which are deemed to meet the requirements of Proposition

65 are: ``WARNING: This product contains a chemical known to the State

of California to cause cancer,'' or ``WARNING: This product contains a

chemical known to the State of California to cause birth defects or

other reproductive harm.'' For signs, the language deemed to meet the

requirements is: ``WARNING: This area contains a chemical known to the

State of California to cause cancer,'' or ``WARNING: This area contains

a chemical known to the State of California to cause birth defects or

other reproductive harm.'' In accordance with Proposition 65, the State

annually publishes a list of chemicals known to cause cancer or

reproductive toxicity (22 CCR Section 12000).

The provisions of Proposition 65 relating to occupational exposure

were incorporated into the California Hazard Communication standard

after a January 23, 1991, court order which required the California

Standards Board to amend the State's Hazard Communication standard to

incorporate the warning protections of Proposition 65. (See California

Labor Federal, AFL-CIO v. California Occupational Safety and Health

Standards Board.) (Absent adoption of these additional requirements as

occupational safety and health standards under the OSHA-approved

California State plan, the Proposition 65 requirements would be

preempted as they apply in the workplace.) These changes were adopted

on an emergency basis on May 16, 1991, and became effective on May 31,

1991. The permanent standard became effective on December 17, 1991.

Enforcement of Proposition 65

Proposition 65 is enforceable with regard to occupational hazards

through the usual California State plan system of citations and

proposed penalties which has been determined to be at least as

effective as Federal OSHA enforcement. Proposition 65 as incorporated

into the State plan provides for the supplemental enforcement mechanism

of judicial enforcement procedures including civil lawsuits filed by

the Attorney General, district attorneys, city attorneys or city

prosecutors. In addition, a private right of action may be brought by

any ``person'' in the public interest against any ``person'' for

knowingly and intentionally exposing any individual to a chemical known

to the State to cause cancer or reproductive toxicity without first

giving clear and reasonable warning. The person bringing the action

must first give notice to the Attorney General and appropriate local

prosecutors, and may proceed if those officials do not bring an action

in court within sixty days. In such actions, the burden of proof is on

the defendant to demonstrate that the exposure to the listed chemical

``poses no significant risk assuming lifetime exposure at the level in

question for substances known to the State to cause cancer, and that

the exposure will have no observable effect assuming exposure at one

thousand times the level in question for substances known to the State

to cause reproductive toxicity, based on evidence and standards of

comparable scientific validity to the evidence and standards which form

the scientific basis for the listing of such chemical. `` (California

Health and Safety Code, Section 25249.10(c).)

The law provides for penalties of up to $2500 per day, per

violation. The plaintiff may obtain up to 25% of penalties levied

against a company found in violation of Proposition 65 for failing to

warn the public and/or employees. Numerous such ``bounty hunter''

actions with regard to occupational exposures have been brought in

California courts, and many have been settled on varying bases prior to

trial.

Other Hazard Communication Provisions

For exposures subject to the remainder of the hazard communication

standard, the employer must provide specific information about the

chemicals to which employees may be exposed, including, among other

things, the identity of the hazardous chemical, potential health risks

including signs and symptoms of exposure, precautions for safe handling

and use of the chemical, any generally applicable control measures,

such as engineering controls, work practices or personal protective

equipment, and emergency and first-aid procedures. The provisions of

the hazard communication standard apart from Proposition 65 are

enforced solely by the Division of Occupational Safety and Health under

approved procedures similar to those of Federal OSHA. These include on-

site inspections by Division personnel, including the right of

employees to be involved in the inspections, citations and proposal of

penalties for violations, and opportunity for appeal of citations and

penalties. (Proposition 65 is also enforceable by DOSH through this

mechanism, but, to date, this authority has not been exercised.)

Public Interest

On April 18, 1995, McKenna and Cuneo, a law firm representing a

coalition of chemical manufacturers, filed a petition with OSHA

requesting that the California hazard communication standard with its

[[Page 48445]]

incorporation of Proposition 65 be rejected as being unduly burdensome

on interstate commerce in both its provisions and enforcement

mechanism. The Chemical Manufacturers Association and several employers

have filed letters in support of the McKenna and Cuneo request, citing

difficulties experienced by its members with both the alternative

enforcement scheme and the impact on interstate commerce. Other parties

have expressed concern to OSHA about the continued enforceability of

the private right of action provisions of Proposition 65 in the

workplace during the pendency of the OSHA review process. In addition,

the Environmental Defense Fund has written asking OSHA to reject the

McKenna and Cuneo position and accept the California Hazard

Communication standard as it is currently being applied in occupational

settings. All of these letters are included in Docket T-032 for this

proceeding and are available for public inspection.

C. Issues for Determination

The California Hazard Communication standard is now under review by

the Assistant Secretary to determine whether it meets the requirements

of section 18(c)(2) of the Act and 29 CFR Parts 1902 and 1953. While

Proposition 65 includes provisions relating to public health as well as

occupational safety and health, OSHA's review of the law is limited to

its occupational aspects as incorporated into the State hazard

communication standard. Public comment is being sought by OSHA on the

following issues.

1. ``At least as effective'' requirement. The provisions of the

California hazard communication standard, other than those

incorporating Proposition 65, have been preliminarily determined to be

at least as effective as the Federal hazard communication standard (29

CFR 1910.1200). The incorporation of Proposition 65 imposes

requirements which go beyond those contained in the Federal standard;

therefore, it may be viewed as more effective than the Federal

standard. However, the issue has been raised that the different

warnings required by Proposition 65 for exposures not otherwise covered

by the hazard communication standard make the standard less effective

by engendering confusion and failing to give employees information

about the chemicals to which they may be exposed and ways to mitigate

exposure. In addition, questions have been raised about the

effectiveness of occupational safety and health standards being

enforced by local attorneys and private parties in addition to the

State designee. Therefore, public comment on the effectiveness of the

standard as well as the supplemental enforcement mechanism provided for

in Proposition 65 is solicited for OSHA's consideration in its final

decision on whether or not to approve this California standard.

2. Product clause requirement. OSHA is also seeking through this

notice public comment as to whether the California standard:

(a) Is applicable to products which are distributed or used in

interstate commerce;

(b) If so, whether it is required by compelling local conditions;

and

(c) Unduly burdens interstate commerce.

As noted above, OSHA has already received comments on the California

hazard communication standard, and Proposition 65 in particular, from

several individual employers and employer groups. These parties have

raised several issues concerning the product clause. Under Proposition

65, warnings are required for different substances than those covered

by the Federal hazard communication standard, and for different levels

of exposure or different health effects for some substances which are

covered by the Federal standard. In addition, the State has

acknowledged that the provision of information on the Material Safety

Data Sheets required by the hazard communication standard may not

always be accepted as compliance with Proposition 65. Therefore, some

commenters have asserted that manufacturers may need to have products

labeled as carcinogens or reproductive toxins in California but not in

other States, and must include specific language not required for

products destined for other States, thus creating a burden on

interstate commerce.

The issue has also been raised that enforcement by private parties

may create a burden on interstate commerce by subjecting out-of-State

employers and suppliers to inconsistent requirements depending on the

circumstances of individual lawsuits and the settlements or decision

rendered thereon.

The State addressed both effectiveness and product clause issues in

a letter dated February 16, 1996 from John Howard, Chief, Division of

Occupational Safety and Health, to OSHA Regional Administrator Frank

Strasheim (included in Docket T-032). The State argues that the

additional enforcement mechanisms merely supplement the administrative

enforcement of the standard by Cal/OSHA and therefore do not detract

from its effectiveness. In addition, the State notes that supplemental

enforcement is a feature of several Federal laws, including Solid Waste

Disposal Act (Pub. L. 98-616) and the Federal Water Pollution Control

Act (Pub. L. 92-500).

The State asserts that this standard does not fall within the

product clause because it does not require machinery or equipment to be

custom-built. The letter cites the Congressional history of section

18(c)(2) of the Act to demonstrate that the discussion focused on

avoiding the need for manufacturers to design machinery differently to

meet requirements in different States (116 Congressional Record 38381

et seq.). In addition, according to the State's position, the standard

does not unduly burden interstate commerce because compliance may be

achieved by workplace postings which need not travel in interstate

commerce. Finally, the State maintains that the standard is justified

by compelling local conditions because the voters of California, in

passing Proposition 65, determined that there is a pressing need for

additional protection from exposure to toxic chemicals, beyond that

provided by the existing Federal hazard communication standard.

D. Public Participation

Interested persons are invited to submit written data, views and

arguments with respect to the issues described above. These comments

must be received on or before October 15, 1996, and be submitted in

quadruplicate to Docket T-032, Docket Office, Room N-2625, U.S.

Department of Labor, OSHA, 200 Constitution Avenue, N.W., Washington,

DC 20210. Comments under 10 pages long may be sent by telefax to the

Docket Office at 202-219-55046 but must be followed by a mailed

submission in quadruplicate. Written submissions must clearly identify

the issues which are addressed and the position taken with respect to

each issue. The State will be given an opportunity to respond to the

public comments. Interested persons may request an informal hearing

concerning OSHA's consideration of the plan change. Such requests also

must be received on or before October 15, 1996, and should be submitted

in quadruplicate to the Docket Office, Docket T-032, at the address

noted above. The Assistant Secretary will decide within 30 days of the

last day for filing written comments and requests for a hearing and

opportunity for State response whether substantial issues

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have been raised which warrant public discussion, and, if so, will

publish notice of the time and place of an informal hearing.

The Assistant Secretary will consider all relevant comments,

arguments, and requests submitted concerning these standards, including

the record of any hearing held, and will publish notice of the decision

approving or disapproving them.

E. Location of Supplement for Inspection and Copying

A copy of the California Hazard Communication standard may be

inspected and copied during normal business hours at the following

locations: Docket Office (Docket T-032), Room N-2625, U.S. Department

of Labor, OSHA, 200 Constitution Avenue, N.W., Washington, DC 20210;

Office of the Regional Administrator, Occupational Safety and Health

Administration, 71 Stevenson Street, Suite 415, San Francisco, CA

94105; California Division of Occupational Safety and Health,

Department of Industrial Relations, 45 Fremont Street, Room 1200, San

Francisco, CA 94105.

Authority: Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); 29 CFR part

1902, Secretary of Labor's Order No. 1-90 (55 FR 9033).

Signed this 6th day of September, 1996 in Washington, D.C.

Joseph A. Dear,

Assistant Secretary.

[FR Doc. 96-23458 Filed 9-12-96; 8:45 am]

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