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
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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
(more)
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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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