BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2013-2014 Regular Session


          SB 193 (Monning)
          As Amended April 9, 2013
          Hearing Date: April 23, 2013
          Fiscal: Yes
          Urgency: No
          TW
                    

                                        SUBJECT
                                           
                      Hazard Evaluation System and Information

                                     DESCRIPTION  

          This bill would require, upon written request from the  
          repository of the Department of Industrial Relations with the  
          State Department of Public Health, chemical manufacturers,  
          formulators, suppliers, distributors, importers, and their  
          agents to provide the repository with the names and addresses of  
          their customers, who have purchased certain chemicals, or  
          commercial product information.  This bill would exempt the  
          names and addresses of these customers from the California  
          Public Records Act.

                                      BACKGROUND  

          In 1973, the Legislature enacted the California Occupational  
          Safety and Health Act for the purpose of assuring safe and  
          healthful working conditions.  In furtherance of this purpose,  
          the Legislature subsequently established comprehensive statutory  
          mandates requiring the Department of Industrial Relations and  
          the Department of Public Health to safeguard the health and  
          safety of California workers.  One such mandate requires the  
          Department of Industrial Relations and the Department of Public  
          Health to maintain a repository, which collects and maintains  
          data on toxic materials and harmful physical agents in use or  
          potentially in use in workplaces.  The Hazard Evaluation System  
          and Information Service (HESIS), a Department of Public Health  
          program, utilizes the information collected by the repository to  
          evaluate potential hazards to human health and provides  
          information about possible health hazards that may be caused by  
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          exposure to toxic materials.  HESIS also issues early warnings  
          to various industries concerning potential workplace hazards.

          The author of this bill asserts that the repository is unable to  
          gather sufficient information about prospective users of toxic  
          materials to provide HESIS with the capacity to issue early  
          warnings of prospective toxic material hazards.  The current  
          strategy used by HESIS when mailing out hazard alerts is to  
          identify each business likely to use the targeted chemical by  
          searching commercial databases using standard industry codes.   
          For example, after participating in a workplace fatality  
          investigation last year, HESIS mailed out a hazard alert on the  
          use of methylene chloride-containing paint strippers.  To  
          identify employees potentially exposed to the potential hazard  
          of these paint strippers, HESIS searched the commercial  
          databases for businesses classified as furniture refinishers,  
          furniture strippers, or bathtub refinishers.  

          Additionally, the Occupational Health Branch (OHB) (of which  
          HESIS is a part) maintains a database of businesses,  
          contractors, unions, and advocacy groups.  That database is of  
          limited use in directed hazard alert mailings since a search for  
          potential users of toxic materials is based upon the likely  
          relevance of the businesses, contractors, unions, and advocacy  
          groups to the toxic material.  

          The OHB, in its Summer 2004 Occupational Health Watch  
          publication, indicated that "[a]lthough businesses are required  
          to submit hazardous materials inventories to local agencies,  
          these data are not computerized, easily accessed, nor compiled  
          on a statewide basis.  Direct requests to manufacturers and  
          importers to voluntarily submit their client lists for the test  
          chemicals was unsuccessful.  Requiring client lists of hazardous  
          chemicals, or making inventory data available on a statewide  
          basis, would help ensure that workers and employers receive OHB  
          alerts in a manner timely enough to keep workers health."  (Cal.  
          Dept. of Health Services, Occupational Health Branch,  
          Occupational Health Watch (Summer 2004)  
           [as of  
          Aug. 10, 2013], p. 5.)

          This bill would authorize the repository to gather name and  
          address information of toxic material purchasers so that HESIS  
          can issue early warnings of toxic material hazards to businesses  
          employing people who may be exposed to the potentially hazardous  
          material.  This bill would exempt the customer names and  
                                                                      



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          addresses from public disclosure under the California Public  
          Records Act. 

          This bill contains similar provisions as those in AB 815  
          (Lieber, 2005), which was passed out of the Senate Labor and  
          Employment Committee but held under submission in the Senate  
          Appropriations Committee.  This bill is substantially similar to  
          AB 816 (Lieber, 2005), which passed out of the Senate  
          Environmental Quality Committee and ultimately vetoed by  
          Governor Schwarzenegger because he believed the bill was  
          unnecessary and an invasion of privacy.

                                CHANGES TO EXISTING LAW
           
          1.     Existing law  recognizes that hazardous substances in the  
            workplace in some forms and concentrations pose potential  
            acute and chronic health hazards to employees who are exposed  
            to these substances.  (Lab. Code Sec. 6361(a)(1).)

             Existing law  provides that employers and employees have a  
            right and a need to know the properties and potential hazards  
            of substances to which they may be exposed, and such knowledge  
            is essential to reducing the incidence and cost of  
            occupational disease.  (Lab. Code Sec. 6361 (a)(2).)  Further,  
            existing law recognizes that employers do not always have  
            available adequate data on the contents and properties of  
            specific hazardous substances necessary for the provision of a  
            safe and healthful workplace.  (Lab. Code Sec. 6361(a)(3).)

             Existing law  ensures the transmission of necessary information  
            to employees regarding the properties and potential hazards of  
            hazardous substances in the workplace.  (Lab. Code Sec.  
            6361(b).)
             
            Existing law  requires the Department of Industrial Relations,  
            by interagency agreement with the State Department of Health  
            Services, to establish a repository of current data on toxic  
            materials and harmful physical agents in use or potentially in  
            use in workplaces.  (Lab. Code Sec. 147.2.)

             Existing law  requires the Department of Public Health to  
            maintain a program, known as the Hazard Evaluation System and  
            Information Service (HESIS), on occupational health and  
            occupational disease prevention.  (Health & Saf. Code Sec.  
            105175.)  

                                                                      



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             Existing law  requires the Department of Industrial Relations  
            and the State Department of Health Services to provide  
            reliable information of practical use to employers, employees,  
            representatives of employees, and other governmental agencies  
            on the possible hazards to employees of exposure to toxic  
            materials or harmful physical agents.  (Lab. Code Sec. 147.2.)  
             Existing case law settled the authority of HESIS, on behalf  
            of the Department of Health Services, to issue hazard alerts  
            and fact sheets to the public.  (ICN Pharmaceuticals, Inc. v.  
            State of California (1992) 3 Cal.App.4th 1131.)  

             This bill  , for every product whose final destination may be a  
            place of employment within the state, would require chemical  
            manufacturers, formulators, suppliers, distributors,  
            importers, and their agents, upon written request by the  
            repository, to provide the names and addresses of customers  
            who have purchased certain chemicals, as specified by the  
            repository, or commercial products containing those chemicals  
            and information related to those shipments, including the  
            quantity and dates of shipments, and the proportion of a  
            specified chemical within a mixture containing the specified  
            chemical.

             This bill  would require, on or after January 1, 2015, the  
            information requested by the repository to include current and  
            past customers for not more than a one-year period prior to  
            the date the request is received.  This bill would require the  
            information to be provided within a reasonable timeframe as  
            determined by the State Department of Public Health, not to  
            exceed 30 calendar days from the date the request is received.  
             This bill would require the information to be provided in a  
            format specified by the State Department of Public Health but  
            consistent with the responding entity's current data system.

             This bill  would authorize the Department of Public Health to  
            seek reimbursement for attorney's fees and costs incurred in  
            seeking an injunction to enforce these provisions.

             This bill  would not apply to a retail seller if the sale of  
            the chemical or mixture is in the same form, approximate  
            amount, concentration, and manner as the chemical or mixture  
            is sold to the general public.

             This bill  would not require employers, other than chemical  
            manufacturers, formulators, suppliers, distributors,  
            importers, and their agents, to report any information not  
                                                                      



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            otherwise required by law.

             This bill  would make conforming changes to reflect the recent  
            reorganization of the Department of Public Health.
           
          2.  Existing law  , the California Public Records Act, governs the  
            disclosure of information collected and maintained by public  
            agencies.  (Gov. Code Sec. 6250 et seq.)  Generally, all  
            public records are accessible to the public upon request,  
            unless the record requested is exempt from public disclosure.   
            (Gov. Code Sec. 6254.)  

             This bill  would exempt from disclosure, under the California  
            Public Records Act, the customer lists of chemical  
            manufacturers, formulators, suppliers, distributors,  
            importers, and their agents that are required to be provided  
            pursuant to the repository's request.  This bill would  
            authorize disclosure of customer lists only to officers or  
            employees of the state not affiliated with the repository who  
            are responsible for carrying out the purposes of the  
            California Occupational Safety and Health Act of 1973, the  
            Division of Occupational Safety and Health Administration, and  
            the Secretary of Food and Agriculture.

                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
            
            In the absence of a robust federal policy on chemicals,  
            California has confronted a number of difficulties when  
            responding to the release of chemical hazards in recent years.  
             Too often, the public is provided protections only after  
            damaging effects to workers' health have become pervasive.   
            Finding information concerning new, unregulated chemicals,  
            such as certain solvents, is often very difficult to track  
            when they are used in many different settings.  When it has  
            been able to obtain the necessary information, [the Hazardous  
            Evaluation System and Information Service (HESIS)] has  
            provided early warnings to various industries concerning  
            prospective hazards, such as alerts on chemicals posing  
            reproductive hazards.
            
            SB 193 would require chemical manufacturers, suppliers,  
            distributors, importers and their agents, when requested to do  
                                                                      



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            so by [HESIS] maintained jointly at the Department of  
            Industrial Relations (DIR) and the Department of Public Health  
            (DPH), and under conditions of confidentiality, to provide the  
            names and addresses of their customers who have purchased  
            chemicals or products containing those chemicals, and their  
            proportions, to the repository maintained by the HESIS.
          
          2.  Exemption for customer names and addresses from disclosure  
            under the California Public Records Act (CPRA)  

          Under the CPRA, the public has a right to inspect records  
          maintained by public agencies.  (Gov. Code Sec. 6250 et seq.)   
          Generally, all public records are accessible to the public upon  
          request, unless the record requested is exempt from public  
          disclosure.  (Gov. Code Sec. 6254.)  Although this bill would  
          authorize a public agency (the Department of Industrial  
          Relations and/or the Department of Public Health via the  
          repository) to collect and maintain a database of toxic material  
          customers, this bill would exempt from disclosure under the CPRA  
          the customer lists of chemical manufacturers, formulators,  
          suppliers, distributors, importers, and their agents required to  
          be provided pursuant to the repository's request.  

          Existing law provides that employers and employees have a right  
          and a need to know the properties and potential hazards of  
          substances to which they may be exposed, and such knowledge is  
          essential to reducing the incidence and cost of occupational  
          disease.  (Lab. Code Sec. 6361 (a)(2).)  Further, existing law  
          recognizes that employers do not always have available adequate  
          data on the contents and properties of specific hazardous  
          substances necessary for the provision of a safe and healthful  
          workplace.  (Lab. Code Sec. 6361(a)(3).)  The author argues that  
          this bill, by authorizing the repository to collect the names,  
          addresses, and chemical shipment information so that HESIS can  
          send hazard alerts directly to the purchasers of potentially  
          hazardous material, would better educate employers and employees  
          of potential hazards of substances to reduce the incidence and  
          cost of occupational disease.

          The California State Association of Occupational Health Nurses,  
          in support of this bill, asserts that, although the repository  
          "provides information of practical use to employers, employees,  
          and other governmental agencies on the hazards of toxic  
          materials and harmful physical agents used in [the] workplace[,]  
          [c]urrent law however does not require compliance with requests  
          for information on where chemicals are used, and therefore,  
                                                                      



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          undermines the ability of HESIS to provide early warnings to  
          various industries regarding prospective hazards.  HESIS has  
          been handicapped for years in its ability to do the prevention  
          and dissemination of technical information for best practices."
          Further, the Silicon Valley Toxics Coalition argues in support  
          that this bill would allow HESIS "to target those at risk rather  
          than merely posting its valuable guidance to limit exposure and  
          prevent disease on the web with no guarantee it will reach those  
          in need.  Workers are the first exposed to toxic chemicals and  
          we must ensure that HESIS can act quickly and efficiently in  
          order to protect them."

          To ensure the confidentiality and privacy of businesses that  
          purchase potentially hazardous materials, this bill was recently  
          amended to clarify that the customers lists may only be  
          disclosed to officers or employees of the state not affiliated  
          with the repository who are responsible for carrying out the  
          purposes of the California Occupational Safety and Health Act of  
          1973, the Division of Occupational Safety and Health  
          Administration, and the Secretary of Food and Agriculture.   
          Since this bill would specifically state that the customer lists  
          are confidential under the CPRA exemptions, the public agencies  
          who receive information from the repository would also be  
          required to keep the information confidential.  

          Additionally, recent amendments exempt retail stores from this  
          bill.  These amendments sought to protect consumers, who shop at  
          retail stores that sell potentially harmful products but who do  
          not have the same toxic material exposure as employees, from  
          being included in the repository database.  Further, these  
          amendments sought to protect these consumers from being included  
          in a database maintained by the retail seller, who could  
          potentially utilize the consumer's information for reasons other  
          than to assist in the hazardous material alert process.  General  
          public users of toxic materials would still be able to access,  
          via the Internet or by contacting HESIS, the hazard alert  
          information prepared by HESIS.  This bill, by maintaining the  
          confidentiality of customer lists while providing the agencies  
          charged with alerting employers and employees of potential toxic  
          material hazards, strikes an appropriate balance between  
          purchaser privacy and the public's need for information.

          3.  Maintenance of one-year period of customer information  

          This bill would require information requested by the repository  
          to include current and past customers for not more than a  
                                                                      



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          one-year period prior to the date the request is received.   
          Given that the responding party may not have maintained a  
          customer list for the year prior to the date that this bill  
          would be enacted, this bill has been amended to require a  
          one-year customer list on or after January 1, 2015.  This  
          provision is intended to protect the responding party from being  
          held in violation of this bill if that party did not begin to  
          compile the customer information until the enactment date of  
          this bill.  However, a responding party that has maintained a  
          customer list prior to the enactment date of this bill is not  
          precluded from providing up to one year of customer information.  


          This bill would also require the responding party to provide the  
          requested information in a format specified by the State  
          Department of Public Health but consistent with the responding  
          entity's current data system.  This provision would allow the  
          State Department of Public Health to request the information in  
          electronic or paper format so as to maximize the utility and  
          efficiency of the information requested.  This provision also  
          recognizes the responding entity's potential limitations on  
          electronic formats and arguably protects the responding entity  
          from being overburdened by a specified format request that the  
          responding entity is unable to produce without additional  
          expenditure.

          4.  Opposition concerns  

          An opposition coalition argues that "[p]resuming this bill  
          becomes law, [the Department of Industrial Relations] DIR could  
          theoretically on January 1, 2014 issue requests to thousands of  
          businesses requesting customer information on thousands of  
          chemicals without any clear indication as to how this  
          information would be used and to what extent the information  
          will help address a potential public health threat in the  
          workplace. . . . Depending upon the products in question and  
          industries targeted, this bill could result in an enormous  
          cascade of information and data that could easily overwhelm DIR,  
          raising the question of how DIR could put this information to  
          meaningful use in actually enhancing workplace safety."  The  
          opposition coalition also raises concerns about ensuring the  
          protection of sensitive information, and asserts that DIR should  
          only be granted access to customer lists through a clearly  
          defined process and under very specific circumstances.

          Opponents have requested to amend the bill to narrow its scope  
                                                                      



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          as follows:  (1) notify regulated businesses in a written  
          request that the repository is seeking information on a specific  
          chemical, specify why the chemical has been identified and the  
          hazard concern being evaluated, explain how the customer list  
          information will help address the potential health concern, and  
          how the issue cannot be addressed through existing health and  
          safety regulations; (2) make reasonable attempts to consult with  
          chemical manufacturers, formulators, suppliers, distributors,  
          importers, and their agents so that the repository can obtain  
          relevant information held by these entities that may not be  
          publicly available but potentially helpful in addressing the  
          repository's concerns or questions; (3) prior to issuing a  
          hazard alert, request the chemical manufacturers, formulators,  
          suppliers, distributors, importers, and their agents to  
          distribute repository materials to its customers within 30 days;  
          and (4) if after 30 days the repository determines that it is  
          unsatisfied with the distribution of information, only then may  
          the repository request the customer lists.  

          5.  Governor Schwarzenegger's veto of AB 816  

          This bill is substantially similar to the enrolled version of AB  
          816 (Lieber, 2005).  In vetoing AB 816, Governor Schwarzenegger  
          stated:

            This bill is unnecessary and an invasion of privacy.   
            Employers are currently required to notify their workers about  
            health hazards and to provide a safe and healthy workplace.   
            Other protective measures that ensure worker safety include  
            the Business Plan Hazardous Materials Inventories; the Air  
            Toxics Program; CalSites Database, Unidocs Hazardous Materials  
            Online Inventory Database; and the Wastewater Pretreatment and  
            Pollution Prevention Plans.  Employers must also inform their  
            employees of the availability of material safety data sheets  
            (MSDS) relating to any chemical to which the employee may be  
            exposed.   Further, employers routinely undergo Division of  
            Occupational Safety and Health inspections to ensure that MSDS  
            documents are available for employees.

            Assembly Bill 816 imposes an unreasonable, labor intensive and  
            duplicative reporting requirement when there are existing  
            programs and standards in place to ensure that employees are  
            protected from hazardous chemical exposure.


           Support  :  California Conference of the Amalgamated Transit  
                                                                      



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          Union; California Conference of Machinists; California Health  
          Nail Salon Collaborative; California Labor Federation;  
          California Nurses Association; California State Association of  
          Occupational Health Nurses; California Teamsters Public Affairs  
          Council; Clean Water Action California; Consumer Attorneys of  
          California; Engineers & Scientists of California, IFPTE Local  
                                                                      20; International Longshore & Warehouse Union; Mujeres Unidas y  
          Activas; Occupational Health and Safety Section of the American  
          Public Health Association; Professional and Technical Engineers,  
          IFPTE Local 21; Silicon Valley Toxics Coalition; UNITE-HERE,  
          AFL-CIO; United Food and Commercial Workers Western States  
          Council; Utility Workers Union of America, AFL-CIO; Western  
          Occupational & Environmental Medical Association; Worksafe

           Opposition  :  American Chemistry Council; American Coatings  
          Association; California Chamber of Commerce; California League  
          of Food Processors; California Manufacturers and Technology  
          Association; California Paint Council; Chemical Industry Council  
          of California; Consumer Specialty Products Association

                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  :  None Known

           Prior Legislation  :

          AB 816 (Lieber, 2005) See Background; Comment 5

          AB 815 (Lieber, 2005) See Background.

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