BILL ANALYSIS �
AB 553
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Date of Hearing: April 13, 2011
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
AB 553 (Monning) - As Introduced: February 16, 2011
SUBJECT : Employment safety: hazardous materials.
SUMMARY : Requires the Occupational Safety and Health Standards
Board (Standards Board) to promulgate standards dealing with
certain toxic materials in a specified manner. Specifically,
this bill :
1)Requires the Standards Board, when adopting standards dealing
with toxic materials for which a quantitative risk assessment
has been prepared by other specified state and federal
agencies, to adopt a permissible exposure limit (PEL) as
follows:
a) The PEL must correspond with a "health-based
occupational exposure limit" (as defined) to the extent
feasible.
b) The "health-based occupational exposure limit" shall be
calculated from the lowest quantitative risk assessment
that addresses cancer or reproductive, developmental, or
other serious physical harm.
c) There is a rebuttable presumption that any PEL adopted
shall be the same as the "health-based occupational
exposure limit" unless it is not feasible.
2)Requires the Standards Board to place primary emphasis on
attainment of the highest degree of health and safety
protection, as specified.
3)Specifies that, when calculating the "health-based
occupational exposure limit," adjustments shall be made to
reflect a standard work week over a working life period of 40
years.
4)Specifies that for carcinogens, the PEL shall ensure that
there is no significant risk to employee health (defined as
not less protective than the level that would result in cancer
in one employee per 100,000 employees exposed to the
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carcinogen over a working lifetime).
5)Specifies that for other toxicants that cause or contribute to
reproductive, developmental or serious physical harm, the PEL
shall be at a level at which no harm occurs.
6)Requires the Standards Board, in determining feasibility, to
consider the most cost-effective approach possible.
7)Requires the determination of feasibility to include
evaluating whether an employer may achieve compliance through
the substitution of a safer alternative. If no safer
alternative exists, the Standards Board may consider a
reasonable phase-in period.
8)Specifies that if the Standards Board adopts a PEL that is
less protective that the "health-based occupational exposure
limit," it shall do both of the following:
a) Make findings of fact regarding feasibility, giving more
weight to independently verified evidence, as specified.
b) Identify the degree of excess cancer risk and risk of
reproductive, developmental, or serious physical harm for
the PEL compared to the "health-based occupational exposure
limit."
9)Makes related legislative findings and declarations.
EXISTING LAW :
1)Establishes the Standards Board as the only agency in the
state authorized to adopt occupational safety and health
standards.
2)Requires the Standards Board to adopt occupational safety and
health standards that are at least as effective as federal
standards promulgated under the Occupational Safety and Health
Act of 1970.
3)Requires the Standards Board, in promulgating standards
dealing with toxic materials or harmful physical agents, to
adopt the standard that most adequately assures, to the extent
feasible, that no employee will suffer material impairment
even if the employee regular and prolonged exposure to the
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hazard.
FISCAL EFFECT : Unknown
COMMENTS : This bill proposes to revise the manner in which
permissible exposure limits (PELs) are adopted for toxic
substances in the workplace.
General Background
Labor Code Section 144.6 requires the Standards Board, when
dealing with standards for toxic materials and harmful physical
agents, to adopt standards which most adequately assure, to the
extent feasible, that no employees suffer material impairment of
health or functional capacity, even if the employee has regular
exposure to the hazard for the period of one's working lifetime.
This section also requires the Standards Board to base
standards on research, demonstrations, experiments and other
information that may be appropriate. Labor Code Section 144.6
also lists other considerations (such as the latest scientific
literature, the reasonableness of the standards, and the
experience gained in other health and safety laws) that are to
be considered.
The Advisory Committee Process and the 2007 Policy and Procedure
The issue of permissible exposure limits (PELs) for hazardous
substances is generally dealt with by the Division of
Occupational Safety and Health (DOSH) and the Standards Board
through an administrative process in which an advisory committee
reviews scientific information and makes recommendations to the
Standards Board.
By some accounts, this advisory committee process has been
delayed in recent years. Some observers have alleged that
particularly controversial proposals (where it is difficult to
reach consensus among industry and employee representatives) or
proposals seeking to establish PELs below certain levels have
been pulled out of the rulemaking process and delayed and/or
ultimately abandoned.
In 2007, DOSH convened an advisory group to establish a formal
"policy and procedure" for the advisory committee process
related to PELs for airborne contaminants. On March 16, 2007,
DOSH released its final version of the PEL process document,
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which outlined the formal process to be used by DOSH to develop
proposals for new or revised PELs.
Under this procedure, a three-part advisory committee process is
primarily used. First, DOSH staff develops a list of existing
and new substances to be review for possible inclusion or
updating and an advisory committee will be held to review the
entire list of substances to be considered. Second, a health
expert advisory committee (HEAC) is used to review the
scientific literature and, where it deems there is sufficient
scientific evidence, recommend a new or revised PEL to protect
the health of employees. Third, the recommended PEL from the
HEAC is then considered by a feasibility advisory committee
(FAC). The FAC provides an opportunity for interested parties
to comment in an informal process prior to formal rulemaking on
technical and economic feasibility of recommended PELs. The
primary focus of the FAC is to determine whether, and if so how,
a PEL proposed by HEAC should be modified based on feasibility
issues.
The 2007 document also outlined procedures intended to improve
public notice and interested party involvement in the advisory
committee process.
Current Process for Determining a Prioritized List of Substances
The 2007 policy and procedure document stated that, prior to the
formation of the HEAC and FAC, DOSH staff will develop a list of
existing and new airborne contaminant substances to be reviewed
for possible inclusion or updating.
The document also directed DOSH staff to prioritize the list of
substances based on the following considerations:
Evidence of a serious potential hazard not
adequately addressed by existing regulations of DOSH or
other governmental agency.
A substantial change in the value of an OEL that
could contribute to increased protection of workers if
adhered to by employers.
The degree to which a substance is in widespread use
in California or to which there are other indications of
pervasive and potentially hazardous worker exposure to
the substance.
The seriousness of the nature of the health hazard
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presented by the substance. For example, substances with
apparent potential for cancer, reproductive,
developmental, or sensitizing effects would generally
receive a higher priority for consideration than
substances where the major hazard potential is mild
respiratory irritation.
The potential for exposure in California in
combination with the degree of hazard. For example, a
limited exposure to a highly toxic substance may be just
as significant as widespread exposure to a less toxic
substance.
Current Substances Under Consideration and What Else Is In the
"Pipeline"
With respect to airborne contaminants currently going through
the PEL process, it appears that nine substances are in various
stages of readiness for discussion by the HEAC. Six substances
are in mid-discussion by the HEAC. Fourteen substances are
through the committee process. Of these, four substances
(carbon disulfide, hydrogen fluoride, sulfuric acid, and
toluene) have been noticed for discussion by the Standards Board
this month (April 2011). These appear to be the first four
substances for which a proposed PEL has been developed under
this new updated process.
With respect to other substances on the priority list, there are
25 substances designated as "Priority 1" for which sufficient
information and California usage are available to warrant work
by the HEAC. Fifteen of these substances are already in the
pipeline discussed above. "Priority 2" substances are those
requiring more initial DOSH research before moving. There are
55 substances on this list. "Priority 3" substances are those
probably not warranting more research for promotion to higher
priority due to likely low usage. Sixty-three substances are on
the priority 3 list. "Priority 4" is defined as other
substances not currently anticipated for additional work, and
there appear to be 123 substances on this list.
How is the Revised Process Working?
Unfortunately, the answer to this question depends on who you
ask.
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Supporters of this bill allege that the current process is
delayed and inadequate, despite the 2007 revisions to the policy
and procedure document. They contend that there are several
substances that have been of concern for many years that have
not yet made it through the PEL process. Supporters contend
that industry representatives delay the process for years, that
DOSH allows the process to "drag on" for years, and sometimes
refuses to even send along a recommendation that came out of the
advisory committee process to the Standards Board.
Opponents of the bill, on the other hand, contend that the
current PEL development process takes all available and relevant
information into account, including the levels recommended by
other agencies. This process is designed to evaluate
discrepancies in the available data and professional opinions in
order to facilitate the most informed and scientifically
defensible decision possible.
Opponents note that 18 PELs were adopted in December 2009.
These PELs did not go through the updated process, but were
completed by DOSH while running the updated process.
According to industry representatives, a least two of these PELs
were adopted despite strong industry concerns. Opponents also
point to two other standards (for diacetyl and aerosol
transmissible disease) which were highly contentious rules
adopted to protect workers from airborne hazardous substances.
ARGUMENTS IN SUPPORT :
According to the author, this bill amends current law to require
the Standards Board to establish PELs that meet specified
criteria, with an emphasis on obtaining the highest degree of
health and safety protection for workers. The author states
that this will ensure that the Standards Board adequately
protects workers against effects of substances/chemicals that
may cause cancer or reproductive, developmental or other serious
physical harm when it regulates hazardous substances or toxic
materials.
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The author states that California workers are exposed to toxic
chemicals known to cause cancer or reproductive, developmental
and other serious physical harm to workers and their children.
However, it can take years before the Standards Board adopts
protective PELs for various toxic chemicals when data exists
clearly showing their dangerous nature. The Standards Board
delays protecting the workers when it unnecessarily duplicates
the effort of other California and national agencies that have
already researched and prepared quantitative risk assessments
for toxic chemicals that cause cancer or reproductive,
developmental and other serious physical harm. The author
argues that the Standards Board should bear the responsibility
to rely on the scientific findings of these other governmental
agencies that protect the public and apply equal protections for
workers when exposed to the same chemicals in the workplace.
Similarly, supporters contend that many chemicals known to cause
cancer or reproductive toxicity are unregulated or
under-regulated in the workplace. Fifteen toxic chemicals known
to cause cancer or reproductive toxicity (as listed under
Proposition 65) are simply not regulated in the workplace.
Additionally, fifty-three toxic chemicals on the Proposition 65
list are regulated in the workplace, but only to protect against
acute or short-term health effects like headaches or irritation
but not cancer or reproductive toxicity.
ARGUMENTS IN OPPOSITION :
Opponents contend that this bill is an unwarranted attempt to
pre-empt the Standards Board and DOSH from crafting and adopting
rational consensus standards for workplace exposures to
hazardous substances. The Standards Board is the only agency in
the state authorized to adopt, amend or repeal occupational
safety and health standards. This bill would undermine the
Standards Board's authority and mission by constraining its
ability to consider all relevant data and derive reasonable
PELs. Opponents argue that this bill is intended to drive PELs
lower using risk estimates based on worst-case exposure
scenarios that do not reflect actual workplace conditions.
Opponents argue that California already leads the nation in both
quantity of new PELs and their protectiveness. The first set of
PELs developed under DOSH's updated process is scheduled for
public hearing before the Standards Board this month. Also,
opponents state that DOSH has new federal funding for a Med-Tox
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unit staffed with a doctor and two toxicologists who will
provide new analytical resources to the PEL setting process.
This bill would seriously disrupt the current flow of PELs to
the Standards Board.
In addition, opponents state that this bill requires a costly
"safer-alternatives" analysis for every affected manufacturing
process. This will substantially delay the PEL setting process
and divert limited resources from higher-risk substances not
covered under this bill. For example, substances causing severe
irritation such as asthma or central nervous system effects like
narcosis could be pushed aside, though they may be far more
important to worker health.
Finally, opponents argue that this bill constructs unreasonable
hurdles for the consideration of feasibility as a real factor in
setting PELs. It requires a series of findings that demand
original research and analysis well beyond Standards Board and
DOSH capacity and would make the Board a target for litigation.
For example, the Board would have to find that an employer
couldn't achieve compliance through the substitution of a safer
alternative. In addition, they contend that the bill would
force the Board to discount the value of employer or industry
data which has not been "independently verified" (undefined),
and publish an estimate of the additional illnesses or deaths
that would result from the higher PEL based on worst-case
exposure scenarios that do not reflect actual workplace
conditions. Opponents state that these feasibility hurdles will
lead inevitably to a rubber stamp of the lowest limit based on a
quantitative risk assessment by one of the few agencies named in
the bill. Hence, the lowest value may not be a solid foundation
on which to set a PEL.
PRIOR LEGISLATION :
This bill is similar to AB 515 (Lieber) from 2007. That measure
was held in the Senate Committee on Environmental Quality.
This bill is also similar to AB 815 (Lieber) from 2005, which
was held in the Senate Committee on Appropriations.
REGISTERED SUPPORT / OPPOSITION :
Support
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Asian Law Caucus
Asian Pacific American Legal Center
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Healthy Nail Salon Collaborative
California Labor Federation, AFL-CIO
California Nurses Association
California Official Court Reporters Association
California Rural Legal Assistance Foundation
California Teamsters Public Affairs Council
Consumer Attorneys of California
Engineers and Scientists of California
Health Officers Association of California
International Longhsore and Warehouse Union
National Lawyers Guild Labor & Employment Committee
Natural Resources Defense Council
Northern California District Council, ILWU
Physicians for Social Responsibility (San Francisco Bay Area
Chapter)
Professional and Technical Engineers, Local 21
San Mateo County Central Labor Council
SCOPE, Laborers International Union of North America
Sierra Club California
UNITE HERE!
United Food and Commercial Workers Union, Western States
Conference
Utility Workers of America, Local 132
Women's Employment Rights Clinic - Golden Gate University School
of Law
Working Partnerships USA
Worksafe, Inc.
Opposition
Advanced Medical Technology Association
American Chemistry Council
American Industrial Hygiene Association
Associated General Contractors
BIOCOM
California Chamber of Commerce
California Framing Contractors Association
California Healthcare Institute
California Industrial Hygiene Council
California League of Food Processors
California Manufacturers and Technology Association
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Chemical Industry Council of California
Consumer Specialty Products Association
CSAC Excess Insurance Authority
District Council of Ironworkers/California Ironworker Employer
Council Safety Institute
Industrial Environmental Association
Residential Contractor's Association
Styrene Information and Research Center
Western Growers
Western Plant Health Association
Western States Petroleum Association
Western Steel Council
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091