BILL ANALYSIS Ó
SB 193
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Date of Hearing: July 2, 2013
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Luis Alejo, Chair
SB 193 (Monning) - As Amended: April 9, 2013
SENATE VOTE : 21-14
SUBJECT : Hazard Evaluation System and Information Service
SUMMARY : Requires chemical manufacturers and importers to
provide the Hazard Evaluation System and Information Service
(HESIS) repository the names and addresses of businesses to
which these manufacturers and importers sold their products.
Specifically, this bill :
1)Requires, upon written request from the HESIS repository,
chemical manufacturers, suppliers, distributors, and importers
to provide to the repository the names and addresses of their
customers who have purchased specified chemicals or commercial
products containing those chemicals. The information request
would meet the following limitations:
a) The information request 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;
b) The information request would not require employers,
other than chemical manufacturers, formulators, suppliers,
distributors, importers, and their agents, to report any
information not otherwise required by law; and
c) Beginning in 2015, the information requested by HESIS
would include current and past customers for not more than
a one-year period prior to the date the request is received
and the information would be due no more than 30 calendar
days from the date the request is received.
2)Authorizes the California Department of Public Health (CDPH)
to receive reimbursement of attorney's fees and costs incurred
in seeking an injunction to enforce this requirement.
3)Exempts from disclosure, under the California Public Records
Act, the customer lists of chemical manufacturers,
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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.
4)Makes a finding and declaration of the Legislature that it is
necessary to protect the data requested by the depository as a
trade secret as the rationale for limiting the public's right
of access to these customer lists.
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EXISTING LAW:
1)Requires the CDPH to maintain the Hazard Evaluation System and
Information Service (HESIS) for purposes of occupational
health and occupational disease prevention.
2)Requires the Department of Industrial Relations, with CDPH, to
establish a repository of current data on toxic materials and
harmful physical agents in use or potentially in use in places
of employment in the state.
3)Requires the repository to provide information and collect and
evaluate data relating to possible hazards to employees
resulting from exposure to toxic materials or harmful physical
agents.
4)Requires, under the California Public Records Act, most public
records to be made available for public inspection, and lists
records that are exempt from disclosure under the act.
5)Requires HESIS to recommend to the Chief of the Division of
Occupational Safety and Health that an occupational safety and
health standard be developed whenever it has been determined
that a substance is potentially in use in places of employment
that is potentially toxic at the concentrations or under the
conditions used.
FISCAL EFFECT : The Senate Appropriations Committee moved this
bill out of its committee pursuant to Senate Rule 28.8
indicating insignificant state costs.
COMMENTS :
1)Need for the bill . 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
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, HESIS has provided early warnings
to various industries concerning prospective hazards, such as
alerts on chemicals posing reproductive hazards.
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2)HESIS is supported through an interagency agreement between
the Department of Industrial Relations, Cal/OSHA, and the
California Department of Public Health, Occupational Health
Branch. The Legislature created HESIS in 1978 to conduct two
primary activities: 1) to provide reliable information about
possible health hazards from exposures to toxic materials;
and, 2) to collect toxicological, epidemiological and other
information pertinent to evaluating potential hazards to human
health. HESIS uses scientific, medical and public health
expertise to prevent occupational illness and disease through
the following activities:
a) Maintains a repository of occupational health
literature;
b) Conducts ongoing reviews of new scientific literature;
c) Identifies new and unappreciated health hazards;
d) Provides "early warnings" and practical information on
workplace toxic chemicals;
e) Operates a statewide helpline on toxic chemicals to
assist employers, employees, healthcare providers, and
government agencies, and others;
f) Recommends protective occupational health standards;
and,
g) Promotes pollution prevention by recommending
alternatives to more hazardous workplace chemicals.
3)Confidentiality . In previous requests to chemical
manufacturers, HESIS has been unable to successfully obtain
customer information. In response, chemical manufacturers
have cited HESIS' inability to guarantee confidentiality. In
the interest of public health protections, the bill exempts
this information from public disclosure.
4)Opponents/Proponents Concerns . Opponents argue that this bill
would impose a new and potentially costly reporting
requirement in the absence of any demonstrated need for such
information. Since employers must provide employees with
access to material safety data sheets (MSDS) on hazardous
materials, additional information is unnecessary.
Proponents note that there is a general absence of information
about the hazards of toxic chemicals in the workplace.
Identifying if and where a chemical that possess a threats to
health, such as cancer and reproductive damage, is a major
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challenge. Proponents are concerned that current law [Labor
Code 147.2(b)(1) ] gives HESIS a mandate it cannot fulfill --
provide information of practical use to business, and other
California employers, employees, and others about toxic
workplace hazards.
5)Prior Legislation . 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."
6)Recommended Amendments :
a) What triggers a request for customer data? This bill
provides authority for the HESIS program to request a broad
range of customer information from chemical manufacturers
and importers. The goal of the author is to assure that
when new information and previously unknown health effects
from a chemical are found the HESIS program can more
rapidly identify likely occupational exposures to these
chemicals and offer preventive action. While the bill
provides the new authority, it is unclear what warrants
these additional data submissions. The Committee may wish
to consider providing a standard to be meet by the HESIS
administrator prior to requesting this data. The
"triggering" standards may require that a new or unknown
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health concern has been raised and that increased health
risk poses a serious and significant health threat to
workers.
b) Is there adequate protection of confidential marketing
information? This 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 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. The
Committee may wish to provide greater protection under the
PRA to unique market and product formulation data submitted
to assist HESIS in responding to immediate worker safety
threats.
7)Double Referral to Judiciary Committee . This bill was subject
to a double-referral to the Assembly Judiciary Committee where
it was approved on a 6 to 2 vote.
REGISTERED SUPPORT / OPPOSITION :
Support
American Sustainable Business Council
Bay Area Healthy 880 Communities
Breast Cancer Fund
CA Conference of the Amalgamated Transit Union
CA Conference of Machinists
Californians for a Healthy and Green Economy (CHANGE)
CA Healthy Nail Salon Collaborative
CA Labor Federation
CA Nurses Association
CA Rural Legal Assistance Foundation
CA State Association of Occupational
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Health Nurses
CA Teamsters Public Affairs Council
Central Coast School Food Alliance
Clean Water Action
Communication Workers of America
Consumer Attorneys of California
Engineers & Scientists of CA, IFPTE Local 20
International Longshore & Warehouse Union
Mujeres Unidas y Activas
National Lawyers Guild, Labor + Employment Committee
Occupational Health and Safety Section/
American Public Health Association
Physicians for Social Responsibility,
Los Angeles
Professional and Technical Engineers, IFPTE Local 21
SEIU California
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 Cleaning Institute
American Coatings Association
California Chamber of Commerce
California Grocers Association
California Healthcare Institute
California League of Food Processors
California Independent Oil Marketers Association
California Manufacturers and Technology Association
California Paint Council
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California Service Station & Auto Repair Association
Chemical Industry Council of California
Consumer Specialty Products Association
National Association of Chemical Distributors
National Federation of Independent Business
Society of Chemical Manufacturers & Affiliates
SPI: The Plastics Industry Trade Association
Styrene Information & Research Center
Toy Industry Association
Western Plant Health Association
Analysis Prepared by : Bob Fredenburg / E.S. & T.M. / (916)
319-3965