BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 193
                                                                  Page 1

          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  








                                                                  SB 193
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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  








                                                                  SB 193
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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