BILL ANALYSIS �
SB 193
Page 1
Date of Hearing: June 25, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
SB 193 (Monning) - As Amended: April 9, 2013
SENATE VOTE : 21-14
SUBJECT : Hazard Evaluation System and Information Service
KEY ISSUE : Should manufacturers and distributors of hazardous
workplace chemicals be required to give certain information -
including the names and addresses of their California customers
- to a state agency that collects information on the use of
these products?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
According to the author, California has confronted a number of
difficulties when responding to the release of chemical hazards
in recent years. Too often, the author claims, protections are
provided only after damaging effects to workers' health have
become pervasive. In order to ensure that employers and
employees have pertinent information before a problem occurs,
this bill would, according to the author, give the Hazardous
Evaluation System and Information Service (HESIS) - a state
repository of current data on toxic materials - the tools that
it needs to effectively implement its existing legislative
mandate to provide practical information to employers,
employees, and government agencies about hazardous materials in
California workplaces. This bill, again according to the author,
will give HESIS the ability to provide employers and employees
with practical information about possible hazards and ways to
avoid them, and, when necessary, to issue "early warnings" to
employers and employees if it learns of workplace dangers.
Specifically, this bill will require chemical manufacturers,
suppliers, and distributers to provide HESIS, upon request, the
following information: (1) the names and addresses of customers
who have purchased certain chemicals products; (2) information
related to shipments to customers, including the quantity and
dates of shipments; and (3) the proportion of a specified
chemical contained with a specified chemical-based product. The
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bill would not apply to retailers if the chemical or product is
one that is sold to the general public. The party receiving the
request would be required to respond "within a reasonable time
frame" as determined by the DPH, but not to exceed 30 days from
the date of the request. Finally, the bill provides that the
names and addresses of customers submitted to HESIS pursuant to
a request shall be considered "confidential" and generally
exempt from disclosure under the California Public Records Act
(PRA). The bill is supported by several labor and environmental
groups, among others; it is opposed by several trade
associations representing chemical manufacturers and
distributors.
SUMMARY : Requires businesses involved in the manufacture or
distribution of chemicals used in places of employment within
this state to provide the Hazard Evaluation System and
Information Service (HESIS or "repository") with the names and
addresses of their customers, and other information about their
shipments within the state, upon request by the repository.
Specifically, this bill :
1)Requires, upon written request of the repository (or HESIS),
that for every product destined for a place of employment
within this state, chemical manufacturers, formulators,
suppliers, distributors, importers, and their agents to
provide to the repository the names and addresses of their
customers who have purchased certain chemicals (or products
containing those chemicals) and other information, including
the quantity and dates of shipments, and the proportion of a
specified chemical within a mixture containing the specified
chemical. Specifies that this requirement shall not apply to
a retail seller if the sale of the chemical or mixture is sold
to the general public. Provides that the DPH shall be
entitled to reimbursement of attorney's fees and costs
incurred in seeking an injunction to enforce these provisions.
2)Specifies that, on or after January 1, 2015, the information
requested shall include current and past customers for not
more than a one-year period prior to the date the request is
received, and requires that the information be provided within
a reasonable time period, as determined by the State
Department of Public Health, not to exceed 30 calendar days
from the date of the request.
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3)Provides that the names and addresses of the customers
provided to the repository shall be considered confidential
and exempt from public disclosure under the California Public
Records Act. However, the Department of Public Health may
disclose those names and addresses to agencies responsible for
carrying out the provisions of the California Occupational
Safety & Health Act.
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
substances. (Labor Code Section 6361(a) (1).)
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. (Labor Code Section 6361 (a)
(2)-(3).)
3)Ensures the transmission of necessary information to employees
regarding the properties and potential hazards of hazardous
substances in the workplace. (Labor Code Section 6321 (b).)
4)Requires the Department of Industrial Relations (DIR), by
interagency agreement with the Department of Public Health
(DPH), to establish a repository of current data on toxic
materials and harmful physical agents in use or potentially in
use in workplaces. (Labor Code Section 147.2 (a).)
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.
(Health & Safety Code Section 105175.)
6)Requires HESIS 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, and to collect and evaluate toxicological and
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epidemiological data and other pertinent information, as
specified. (Labor Code Section 147.2 (b).)
7)Recognizes the authority of HESIS, on behalf of DPH, to issue
hazard alerts and fact sheets to the public. (ICN
Pharmaceuticals v. California (1992) 3 Cal. App. 4th 1131.)
8)Governs, under the California Public Records Act, the
disclosure of information collected and maintained by public
agencies. Provides, generally, that all public records are
accessible to the public upon request, unless the record is
subject to a specific statutory exemption. (Government Code
Sections 6250 et seq.)
COMMENTS : According to the author's office, in the absence of a
strong federal policy on the use of chemicals in the workplace,
California has confronted a number of difficulties when
responding to the release of chemical hazards in recent years.
Many existing remedies, the author claims, are provided only
after damaging effects to workers' health have become pervasive.
This bill seeks to address this problem by giving the Hazardous
Evaluation System and Information Service (HESIS) - a state
repository of current data on toxic materials - the tools that
it needs to effectively implement its existing legislative
mandate to provide early and practical information to employers,
employees, and other government agencies about hazardous
materials in California workplaces.
Background : The U.S. Occupational Safety and Health
Administration (OSHA) was created in 1970 to assure safe and
healthy working conditions for working men and women by setting
and enforcing standards and providing training, outreach, and
education about workplace safety. In 1973, the California
Legislature followed suit by enacting the California
Occupational Safety and Health Act (Cal OHSA). As part of this
larger purpose, the Legislature later required the Department of
Industrial Relations (DIR) and the Department of Public Health
(DPH) to jointly establish and maintain a "repository" to
collect and maintain data on toxic materials and harmful
physical agents used in places of employment in California.
This "repository" currently exists as the Hazard Evaluation
System and Information Service (HESIS) and is administered by
DPH.
In addition to acting as a clearinghouse for current data on
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toxic chemicals and other hazardous materials in the workplace,
HESIS is also mandated by statute to perform a number of other
tasks, including providing "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 agents or harmful physical agents." (Labor
Code Section 147.2 (b)(1).) Currently, HESIS fulfills this
mandate by publishing fact sheets, based on the data it has
collected, and by posting information on its website identifying
dangers and suggesting less harmful alternatives. (See
http://www.cdph.ca.gov/programs/hesis/Pages/default.aspx .)
This bill, according to the author, will give HESIS an important
tool in fulfilling its mandates to collect information about the
use of harmful chemicals in California workplaces, provide
employers and employees with practical information about
possible hazards and ways to avoid them, and, when necessary, to
issue "early warnings" to employers and employees if it learns
of workplace dangers. Specifically, this bill will require
chemical manufacturers, formulators, suppliers, distributers,
importers, and their agents to provide HESIS, upon request, with
the following: (1) the names and addresses of their customers
who have purchased certain chemicals or commercial products
containing those chemicals; (2) information related to shipments
to customers, including the quantity and dates of shipments; and
(3) the proportion of a specified chemical contained with a
mixture containing the specified chemical. The bill would
apparently only apply to employers who purchase bulk amounts of
chemicals and chemical products for use in the workplace. The
bill expressly states that it would not apply to retailers if
the chemical or product is one that is sold to the general
public. The bill specifies that, as of January 1, 2015, the
requests shall only include information on past and current
customers for the one-year period prior to the date the request
is received. The party receiving the request would be required
to respond "within a reasonable time frame" as determined by the
DPH, but not to exceed 30 days from the date the request is
received.
Finally, the bill provides that the names and addresses of
customers submitted to HESIS pursuant to a request shall be
considered "confidential" and exempt from public disclosure
under the California Public Records Act (PRA). However, HESIS
and DPH would be permitted to disclose those customer names and
addresses to other specified agencies, officials, or employees
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who are responsible for carrying out the policies of Cal OSHA.
Because the bill only expressly exempts names and addresses, all
other information obtained by HESIS through a request would be
subject to PRA. This other information would include the
quantity and dates of shipments and the proportion of any
specified chemical in mixed product.
SUGGESTED OPPOSITION AMENDMENTS. Several business groups and
trade associations (mostly representing manufacturers and
distributors of chemicals and chemical-based products) oppose
this bill unless it is amended. Their arguments are more fully
elaborated below, but they have communicated to the Committee
that they would consider removing their opposition if a number
of their suggested amendments were taken. Specifically, the
opponents' suggestions appear to revolve around three major
issues, which are treated in turn below.
Create a Triggering Mechanism . Opponents contend that the bill
in print would permit HESIS to request customer names and
addresses and other information at any time and for any reason.
Opponents suggest that HESIS should be permitted to make these
requests only when there is some reasonable belief that a hazard
exists. For example, opponents suggest that before making a
request, HESIS should be required to make some determination
based on "the best available scientific evidence" that a
substance in use poses an "emerging and substantial threat" to
workplace safety.
Cooperate with Industry and Work within Existing Hazard
Communication Structures. When some identifiable threat
triggers an action by HESIS, opponents recommend that before
requesting information and sending communications to employers
and employees, HESIS should first cooperate with industry and
attempt to provide notice through existing U.S. and California
OSHA procedures. Opponents believe that the manufacturer or
distributor should be given the first opportunity to distribute
information to its customers and their employees. Only if a
manufacturer or distributor fails to comply with an order to
send a communication would HESIS be permitted to contact
customers directly.
Impose More Restrictions on the Use of Information Collected:
Finally, opponents would place more restrictions on what and how
information can be used. For example, opponents would prohibit
HESIS from distributing directly to customers any information on
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alternative chemicals or products. Opponents appear to have no
objection to the existing HESIS practice of posting information
about safer alternatives on its website or in its published fact
sheets, but they object to HESIS using customer lists provided
by the manufacturers and distributors to send this information
directly to customers. In addition, opponents have informed the
Committee that they would prefer exempting all submitted
information from the PRA (not just names and addresses) or
requiring HESIS to destroy submitted information within one
year.
The Author's Office Has Communicated To The Committee That It Is
Willing To Consider Some Of These Issues: While the author has
stated his willingness to consider some of the opponents'
proposed amendments, it seems unlikely that the author would, or
should, consider imposing a triggering mechanism on HESIS
requests. Opponents claim that "theoretically" HESIS could
request "thousands" of businesses to provide information about
"thousands" of chemicals, resulting in an "enormous cascade of
information and data that could easily overwhelm DIR." However
this concern appears very unlikely in practice since it seems
unlikely that HESIS, DPH, or DIR would knowingly elect to
overwhelm themselves with such data. Moreover, it should be
noted that having this information will permit HESIS to carry
out its mandate of providing employers and employees with
information "of practical use." That is, HESIS is not only
required to warn employers and employees about imminent threats,
but to provide "practical" information presumably on an on-going
basis. Furthermore, in the event of a true emergency, it would
seem helpful for HESIS to have ready access to the names and
addresses of users, rather than having to make a request and
wait for the manufacturer or distributor to respond.
Opponents appear to raise more persuasive points, however, about
working through the existing hazard notification channels, or at
the very least clarifying the relationship between this
provision in this bill and the existing structures. However,
these issues shall best be addressed by the Assembly
Environmental Safety and Toxic Materials Committee, which has
more expertise in this area and will hear this bill next should
it move out of this Committee.
Exemptions from PRA : Finally, as to the opponents' desire to
keep more rather than less information confidential, and thus
exempt more information from the PRA, the Committee may, based
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on its long history supporting transparency under the PRA,
instead be inclined to move in the opposite direction. This
bill, as noted above, would only exempt the names and addresses
of customers from the PRA; members of the public could still
obtain access to the other important information about the
quantity of use in California workplaces, and the proportions of
specified chemicals in specified workplace products. Opponents
apparently prefer that all information submitted be exempt from
PRA, and they even ask that information collected be made
forever inaccessible by destroying it after one year.
However, the Committee may wish to consider whether exempting
even the names and addresses from the PRA is a wise policy.
After all, the names and addresses of customers, by definition,
will be the names and addresses of employers. Therefore, they
will most likely be business names and business addresses, not
personal names or residential addresses. One could argue that
the public potentially has a compelling interest in knowing the
kinds of chemicals that particular employers are using in their
workplaces. Indeed, rather than recommending that the author
amend the bill to make more of the information exempt from
public access, the Committee may wish to explore with the author
his willingness to consider shielding from the PRA only personal
names and residential addresses, while instead amending the
measure to allow business names and addresses to be accessible
under the PRA. This could be easily achieved as follows: on
page 5 line 22 before "names" insert personal and before
"addresses" insert residential. Due to time constraints, such
an adopted amendment would technically be made to the measure
when it is heard in the next committee.
ARGUMENTS IN SUPPORT : According to the author: "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."
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The American Sustainable Business Council (ASBC) supports this
bill because it is concerned that current law "gives HESIS a
mandate it cannot fulfill - to provide information of practical
use to our members, and other California employers, employees
and others about toxic workplace hazards. Our members want
HESIS to be able to find out where toxics are used in
California, so it can provide the early warnings we need as
responsible employers. We contend that there is a strong
business case for this bill. Today's business leaders are
concerned about the health and business impacts that can arise
if the products they use or sell contain toxic chemicals, as
well as the toxic chemical exposures that may occur to their
employees and others as a result of their supply chains.
Dealing with hazardous chemicals is costly to businesses on many
fronts. That's why leading companies are highly motivated to
identify and use safer alternatives to toxic chemicals.
Transparency is the first step in this process." ASBC contends
that SB 193 will give HESIS "the ability to request information
from manufacturers, suppliers, etc., as needed, to fulfill [its]
existing mandate to provide reliable information of practical
use to employers, employees, etc., about possible hazards to
employees from exposure to toxic materials or harmful physical
agents." Finally, ASBC believes that this bill will "contribute
toward clarity in the workplace and marketplace, and build trust
amongst the public as well as between businesses and their
employees; all of which will be good for businesses' financial
bottom line. Workers are often exposed to toxics whose health
effects are not all known, making HESIS's ability to act quickly
and efficiently vital to protect workers' health and safety and
prevent disruptions in the supply chains, again providing
benefits to business."
ARGUMENTS IN OPPOSITION UNLESS AMENDED : Several associations
representing manufacturers and distributors of chemicals,
solvents, and other chemical-based industrial products oppose
this bill. In a joint coalition letter, the opponents argue
that SB 193 will grant DPH "open-ended authority. . . .to
require a chemical manufacturer, supplier, distributor, importer
or formulator to turn over private and highly coveted customer
lists and specific chemical mixture information to the State
without any upfront justification or clear explanation of why
the information is needed and how it will be used."
Opponents raise several specific concerns about the bill, as
noted earlier. But opponents also question the overall need for
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bill, pointing out that California employers are already
required "to comply with a variety of state and federal laws to
protect employees who come into contact with chemicals in the
workplace." Moreover, opponents claim, the U.S. Department of
Labor's Occupational Safety and Health Administration (OSHA)
recently issued a final rule relating to its "hazard
communication" standard, which according to opponents is "aimed
that improving the quality and consistency of information
provided to employers and employees regarding chemical hazards
in the workplace and associated protective measures. This new
standard also requires manufacturers and importers to evaluate
the downstream uses of their products, and disseminate the
potential hazards to their users." Opponents claim that the
California Occupational Safety and Health Administration (Cal
OSHA) is currently in the process of "harmonizing its hazard
communication program to communicate potential hazards in the
workplace in a manner similar to these federal regulations."
Opponents argue that rather than permit HESIS to request
customer information at will and directly contact customers, it
should first work through existing channels and make reasonable
attempts to consult with manufacturers, in order to allow them
to the first opportunity to distribute information to their
customers.
In addition, opponents argue that "customer information is often
of great competitive significance and must be held as highly
confidential." Opponents express concern that, while the bill
exempts names and addresses from the PRA, it apparently leaves
other information open to public inspection and does not impose
any limit on how state agencies - who will have access to all
information, including names and addresses - will use or protect
that information.
REGISTERED SUPPORT / OPPOSITION :
Support
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
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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 (Unless Amended):
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
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334