BILL ANALYSIS                                                                                                                                                                                                    



                                                                            



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                                    THIRD READING


          Bill No:  SB 193
          Author:   Monning (D)
          Amended:  4/9/13
          Vote:     21

           
           SENATE JUDICIARY COMMITTEE  :  5-2, 4/23/13
          AYES:  Evans, Corbett, Jackson, Leno, Monning
          NOES:  Walters, Anderson

           SENATE APPROPRIATIONS COMMITTEE  :  Senate Rule 28.8


           SUBJECT  :    Hazard evaluation system and information service

           SOURCE  :     Author


           DIGEST  :    This bill requires, upon written request from the  
          repository of the Department of Industrial Relations (DIR) with  
          the Department of Public Health (DPH), 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.

           ANALYSIS  :    

          Existing law:

          1. 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  
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             substances.

          2. 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.   
             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.

          3. Ensures the transmission of necessary information to  
             employees regarding the properties and potential hazards of  
             hazardous substances in the workplace.

          4. Requires the DIR, by interagency agreement with the  
             Department of Health Services (DHS), to establish a  
             repository of current data on toxic materials and harmful  
             physical agents in use or potentially in use in workplaces.

          5. Requires the DPH to maintain a program, known as the Hazard  
             Evaluation System and Information Service (HESIS), on  
             occupational health and occupational disease prevention.

          6. Requires DIR and DHS 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.  Existing case law settled the  
             authority of HESIS, on behalf of DHS, to issue hazard alerts  
             and fact sheets to the public.  

          7. The California Public Records Act, governs the disclosure of  
             information collected and maintained by public agencies.   
             Generally, all public records are accessible to the public  
             upon request, unless the record requested is exempt from  
             public disclosure.

          This bill:

          1. Requires that for every product whose final destination may  
             be a place of employment within the state, chemical  
             manufacturers, formulators, suppliers, distributors,  
             importers, and their agents, upon written request by the  

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             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.

          2. Requires, 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; requires the information to be  
             provided within a reasonable timeframe as determined by DPH,  
             not to exceed 30 calendar days from the date the request is  
             received; and requires the information to be provided in a  
             format specified by DPH but consistent with the responding  
             entity's current data system.

          3. Authorizes DPH to seek reimbursement for attorney's fees and  
             costs incurred in seeking an injunction to enforce these  
             provisions.

          4. Does 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.

          5. Does not require employers, other than chemical  
             manufacturers, formulators, suppliers, distributors,  
             importers, and their agents, to report any information not  
             otherwise required by law.

          6. Makes conforming changes to reflect the recent reorganization  
             of DPH.

          7. Exempts 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; and authorizes 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  

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             Safety and Health Administration, and the Secretary of Food  
             and Agriculture.

           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 DIR and DPH to safeguard the health and  
          safety of California workers.  One such mandate requires DIR and  
          DPH to maintain a repository, that collects and maintains data  
          on toxic materials and harmful physical agents in use or  
          potentially in use in workplaces.  HESIS, a DPH 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 exposure to toxic  
          materials.  HESIS also issues early warnings to various  
          industries concerning potential workplace 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.  

          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  

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          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.)

           Prior legislation
           
          AB 816 (Lieber, 2005), would have required chemical  
          manufacturers and importers to provide HESIS the names and  
          addresses of businesses to which they sold their products.  The  
          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.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  No

           SUPPORT  :   (Verified  5/3/13)


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          American Sustainable Business Council
          Breast Cancer Fund
          California Conference of Machinists
          California Conference of the Amalgamated Transit Union
          California Health Nail Salon Collaborative
          California Labor Federation
          California Nurses Association
          California Rural Legal Assistance Foundation
          California State Association of Occupational Health Nurses
          California Teamsters Public Affairs Council
          Californians for a Healthy and Green Economy
          Central Coast School Food Alliance
          Clean Water Action California
          Consumer Attorneys of California
          Engineers & Scientists of California, IFPTE Local 20
          International Longshore & Warehouse Union
          Mujeres Unidas y Activas
          National Lawyers Guild Labor and Employment Committee
          Occupational Health and Safety Section of the American Public
               Health Association
          Physicians for Social Responsibility
          Professional and Technical Engineers, IFPTE Local 21
          Silicon Valley Toxics Coalition
          United Food and Commercial Workers Western States Council
          UNITE-HERE, AFL-CIO
          Utility Workers Union of America, AFL-CIO
          Western Occupational & Environmental Medical Association
          Worksafe

           OPPOSITION  :    (Verified  5/3/13)

          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

           ARGUMENTS IN SUPPORT  :    According to the author's office, 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  

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          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.

          This bill requires chemical manufacturers, suppliers,  
          distributors, importers and their agents, when requested to do  
          so by [HESIS] maintained jointly at DIR and the 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.

           ARGUMENTS IN OPPOSITION  :    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.


          AL:d  5/7/13   Senate Floor Analyses 

                           SUPPORT/OPPOSITION:  SEE ABOVE

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