BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 193
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          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