[Federal Register Volume 61, Number 179 (Friday, September 13, 1996)]
[Proposed Rules]
[Pages 48443-48446]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23458]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1952
Supplement to California State Plan; Request for Public Comment
AGENCY: Occupational Safety and Health Administration (OSHA),
Department of Labor.
ACTION: Request for public comment: California State Standard on Hazard
Communication Incorporating Proposition 65.
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SUMMARY: This document invites public comment on a supplement to the
California occupational safety and health plan. The supplement,
submitted on January 30, 1986, with amendments submitted on November
22, 1986 and January 30, 1992, concerns the State's adoption of a
hazard communication standard, which incorporates provisions of the
Safe Drinking Water and Toxic Enforcement Act, also called Proposition
65. California also submitted clarifications concerning the standard
and its enforcement on February 16 and February 28, 1996. The State's
standard is substantively different in both its content and
supplemental method of enforcement from the Federal Occupational Safety
and Health Administration (OSHA) standard found at 29 CFR 1910.1200.
Where a State standard adopted pursuant to an OSHA-approved State plan
differs significantly from a comparable Federal standard, the
Occupational Safety and Health Act of 1970 (29 U.S.C. 667) (the Act)
requires that the State standard must be ``at least as effective'' as
the Federal standard. In addition, if the standard is applicable to a
product distributed or used in interstate commerce, it must be required
by compelling local conditions and not pose any undue burden on
interstate commerce. OSHA, therefore, seeks public comment on whether
the California hazard communication standard meets the above
requirements.
DATES: Written comments should be submitted by November 12, 1996.
ADDRESSES: Written comments should be submitted to Docket T-032, Docket
Office, Room N-2625, Occupational Safety and Health Administration,
U.S. Department of Labor, 200 Constitution Avenue, N.W., Room N3700,
Washington, D.C. 20210.
FOR FURTHER INFORMATION CONTACT: Ann Cyr, Acting Director, Office of
Information and Consumer Affairs, Occupational Safety and Health
Administration, U.S. Department of Labor, Room N-3647, 200 Constitution
Avenue, N.W., Washington, DC 20210. Telephone: (202) 219-8148.
A. Background
The Act generally preempts any State occupational safety and health
standard that addresses an issue covered by an OSHA standard, unless a
State plan has been submitted and approved. (See Gade, Director,
Illinois Environmental Protection Agency v. National Solid Wastes
Management Association, No. 90-1676 (June 18, 1992).) Once a State plan
is approved, the bar of preemption is removed and the State is then
able to adopt and enforce standards under its own legislative and
administrative authority. Therefore, any State standard or policy
promulgated under an approved State plan becomes enforceable upon State
promulgation. Newly adopted State standards must be submitted for OSHA
review and approval under procedures set forth in 29 CFR Part 1953, but
are enforceable by the State prior to Federal review and approval. (See
Florida Citrus Packers, et. al. v. State of California, Department of
Industrial Relations, Division of Occupational Safety and Health et al,
No. C-81-4218 (July 26, 1982).)
On May 1, 1973, a document was published in the Federal Register
(38 FR 10717) of the approval of the California State plan and the
adoption of Subpart CC to Part 1952 containing the decision.
The requirements for adoption and enforcement of safety and health
standards by a State with a State plan approved under section 18(b) of
the Act are set forth in section 18(c)(2) of the Act and in 29 CFR
1902.29, 1952.7, 1953.21, 1953.22 and 1953.23. OSHA regulations require
that States respond to the adoption of new or revised permanent Federal
standards by State promulgation of comparable standards within six
months of OSHA publication in the Federal Register.
Section 18(c)(2) of the Act provides that if State standards which
are not identical to Federal standards are applicable to products which
are distributed or used in interstate commerce, such standards, in
addition to being at least as effective as the comparable Federal
standards, must be required by compelling local conditions and must not
unduly burden interstate commerce. (This latter requirement is commonly
referred to as the ``product clause.'') OSHA's policy (as contained in
OSHA Instruction STP 2-1.117) is to make a preliminary determination as
to whether the standard is at least as effective as the Federal
standard, and then rely on public comment as the basis for its decision
on the product clause issue.
B. Description of the Supplement
Original Hazard Communication Standard
On September 10, 1980, the Governor of California signed the
Hazardous Information and Training Act (California Labor Code, sections
6360 through 6399). This Act provided that the Director of Industrial
Relations establish a list of hazardous substances and issue a standard
setting forth employers' duties toward their employees under that Act.
The standard, General Industry Safety Order 5194, was adopted by the
State in 1981. Both the Director's initial list and the standard became
effective on February 21, 1983. Subsequently, Federal OSHA promulgated
a hazard communication standard (29 CFR 1910.1200) in November 1983.
The State amended its law in 1985, and, after a period for public
review and comment, the California Standards Board adopted a revised
standard for hazard communication comparable to the Federal standard on
October 24, 1985. The standard became effective on November 22, 1985.
By letter dated January 30, 1986, with attachments, from Dorothy H.
Fowler, Assistant Program Manager, to then Regional Administrator,
Russell B. Swanson, the State submitted the standard (8 CCR section
5194) and incorporated the standard as part of its occupational safety
and health plan.
The State hazard communication standard differs from the Federal
standard in several respects. The State standard requires that each
Material Safety Data Sheet contain certain information including
Chemical Abstracts Service (CAS) name and a description in lay terms of
the specific potential health risks posed by the hazardous substance.
These two State requirements are not included in the Federal standard.
However, in a memorandum from John Howard, Chief,
[[Page 48444]]
Division of Occupational Safety and Health, enclosed with a letter of
February 28, 1996, from John MacLeod, Executive Officer of the
California Occupational Safety and Health Standards Board to Regional
Administrator Frank Strasheim, the State notes that section 6392 of the
California Labor Code provides that provision of a Federal material
safety data sheet or equivalent shall constitute prima facie proof of
compliance with the standard. The memorandum states, ``Thus, a
manufacturer who supplies a MSDS which is accurate and fully complies
with the federal OSHA regulation is in compliance in California.''
While the Federal standard allows for release of trade secret
information to health professionals, the California standard allows
access to such information to safety professional as well. The State
argues that this provision is more protective of worker safety, since
many safety and health programs are managed by safety professionals who
have both safety and health expertise.
Finally, the State standard does not include many of the exemptions
and exceptions added to the Federal standard in 1994.
Proposition 65
Subsequently, on January 30, 1992, in a letter from John Howard,
Chief, California Division of Occupational Safety and Health, to
Regional Administrator Frank Strasheim, the State submitted changes to
its hazard communication standard by incorporating provisions found in
the State's Safe Drinking Water and Toxic Enforcement Act (Proposition
65). This Act was passed by referendum of the voters of California in
1986. The Safe Drinking Water and Toxic Enforcement Act (California
Health and Safety Code sections 25249.5 through 25249.13) and
implementing regulations issued by the Office of Environmental Health
Hazard Assessment in the California Environmental Protection Agency (22
California Code of Regulations 12601) require that any business with
ten or more employees which exposes an individual to a chemical known
to the State to cause cancer or reproductive toxicity must provide the
individual with a clear and reasonable warning. The regulations provide
that the warning may be given through the label of a product or a sign
in the workplace and give sample language for the warning. For labels,
the warnings which are deemed to meet the requirements of Proposition
65 are: ``WARNING: This product contains a chemical known to the State
of California to cause cancer,'' or ``WARNING: This product contains a
chemical known to the State of California to cause birth defects or
other reproductive harm.'' For signs, the language deemed to meet the
requirements is: ``WARNING: This area contains a chemical known to the
State of California to cause cancer,'' or ``WARNING: This area contains
a chemical known to the State of California to cause birth defects or
other reproductive harm.'' In accordance with Proposition 65, the State
annually publishes a list of chemicals known to cause cancer or
reproductive toxicity (22 CCR Section 12000).
The provisions of Proposition 65 relating to occupational exposure
were incorporated into the California Hazard Communication standard
after a January 23, 1991, court order which required the California
Standards Board to amend the State's Hazard Communication standard to
incorporate the warning protections of Proposition 65. (See California
Labor Federal, AFL-CIO v. California Occupational Safety and Health
Standards Board.) (Absent adoption of these additional requirements as
occupational safety and health standards under the OSHA-approved
California State plan, the Proposition 65 requirements would be
preempted as they apply in the workplace.) These changes were adopted
on an emergency basis on May 16, 1991, and became effective on May 31,
1991. The permanent standard became effective on December 17, 1991.
Enforcement of Proposition 65
Proposition 65 is enforceable with regard to occupational hazards
through the usual California State plan system of citations and
proposed penalties which has been determined to be at least as
effective as Federal OSHA enforcement. Proposition 65 as incorporated
into the State plan provides for the supplemental enforcement mechanism
of judicial enforcement procedures including civil lawsuits filed by
the Attorney General, district attorneys, city attorneys or city
prosecutors. In addition, a private right of action may be brought by
any ``person'' in the public interest against any ``person'' for
knowingly and intentionally exposing any individual to a chemical known
to the State to cause cancer or reproductive toxicity without first
giving clear and reasonable warning. The person bringing the action
must first give notice to the Attorney General and appropriate local
prosecutors, and may proceed if those officials do not bring an action
in court within sixty days. In such actions, the burden of proof is on
the defendant to demonstrate that the exposure to the listed chemical
``poses no significant risk assuming lifetime exposure at the level in
question for substances known to the State to cause cancer, and that
the exposure will have no observable effect assuming exposure at one
thousand times the level in question for substances known to the State
to cause reproductive toxicity, based on evidence and standards of
comparable scientific validity to the evidence and standards which form
the scientific basis for the listing of such chemical. `` (California
Health and Safety Code, Section 25249.10(c).)
The law provides for penalties of up to $2500 per day, per
violation. The plaintiff may obtain up to 25% of penalties levied
against a company found in violation of Proposition 65 for failing to
warn the public and/or employees. Numerous such ``bounty hunter''
actions with regard to occupational exposures have been brought in
California courts, and many have been settled on varying bases prior to
trial.
Other Hazard Communication Provisions
For exposures subject to the remainder of the hazard communication
standard, the employer must provide specific information about the
chemicals to which employees may be exposed, including, among other
things, the identity of the hazardous chemical, potential health risks
including signs and symptoms of exposure, precautions for safe handling
and use of the chemical, any generally applicable control measures,
such as engineering controls, work practices or personal protective
equipment, and emergency and first-aid procedures. The provisions of
the hazard communication standard apart from Proposition 65 are
enforced solely by the Division of Occupational Safety and Health under
approved procedures similar to those of Federal OSHA. These include on-
site inspections by Division personnel, including the right of
employees to be involved in the inspections, citations and proposal of
penalties for violations, and opportunity for appeal of citations and
penalties. (Proposition 65 is also enforceable by DOSH through this
mechanism, but, to date, this authority has not been exercised.)
Public Interest
On April 18, 1995, McKenna and Cuneo, a law firm representing a
coalition of chemical manufacturers, filed a petition with OSHA
requesting that the California hazard communication standard with its
[[Page 48445]]
incorporation of Proposition 65 be rejected as being unduly burdensome
on interstate commerce in both its provisions and enforcement
mechanism. The Chemical Manufacturers Association and several employers
have filed letters in support of the McKenna and Cuneo request, citing
difficulties experienced by its members with both the alternative
enforcement scheme and the impact on interstate commerce. Other parties
have expressed concern to OSHA about the continued enforceability of
the private right of action provisions of Proposition 65 in the
workplace during the pendency of the OSHA review process. In addition,
the Environmental Defense Fund has written asking OSHA to reject the
McKenna and Cuneo position and accept the California Hazard
Communication standard as it is currently being applied in occupational
settings. All of these letters are included in Docket T-032 for this
proceeding and are available for public inspection.
C. Issues for Determination
The California Hazard Communication standard is now under review by
the Assistant Secretary to determine whether it meets the requirements
of section 18(c)(2) of the Act and 29 CFR Parts 1902 and 1953. While
Proposition 65 includes provisions relating to public health as well as
occupational safety and health, OSHA's review of the law is limited to
its occupational aspects as incorporated into the State hazard
communication standard. Public comment is being sought by OSHA on the
following issues.
1. ``At least as effective'' requirement. The provisions of the
California hazard communication standard, other than those
incorporating Proposition 65, have been preliminarily determined to be
at least as effective as the Federal hazard communication standard (29
CFR 1910.1200). The incorporation of Proposition 65 imposes
requirements which go beyond those contained in the Federal standard;
therefore, it may be viewed as more effective than the Federal
standard. However, the issue has been raised that the different
warnings required by Proposition 65 for exposures not otherwise covered
by the hazard communication standard make the standard less effective
by engendering confusion and failing to give employees information
about the chemicals to which they may be exposed and ways to mitigate
exposure. In addition, questions have been raised about the
effectiveness of occupational safety and health standards being
enforced by local attorneys and private parties in addition to the
State designee. Therefore, public comment on the effectiveness of the
standard as well as the supplemental enforcement mechanism provided for
in Proposition 65 is solicited for OSHA's consideration in its final
decision on whether or not to approve this California standard.
2. Product clause requirement. OSHA is also seeking through this
notice public comment as to whether the California standard:
(a) Is applicable to products which are distributed or used in
interstate commerce;
(b) If so, whether it is required by compelling local conditions;
and
(c) Unduly burdens interstate commerce.
As noted above, OSHA has already received comments on the California
hazard communication standard, and Proposition 65 in particular, from
several individual employers and employer groups. These parties have
raised several issues concerning the product clause. Under Proposition
65, warnings are required for different substances than those covered
by the Federal hazard communication standard, and for different levels
of exposure or different health effects for some substances which are
covered by the Federal standard. In addition, the State has
acknowledged that the provision of information on the Material Safety
Data Sheets required by the hazard communication standard may not
always be accepted as compliance with Proposition 65. Therefore, some
commenters have asserted that manufacturers may need to have products
labeled as carcinogens or reproductive toxins in California but not in
other States, and must include specific language not required for
products destined for other States, thus creating a burden on
interstate commerce.
The issue has also been raised that enforcement by private parties
may create a burden on interstate commerce by subjecting out-of-State
employers and suppliers to inconsistent requirements depending on the
circumstances of individual lawsuits and the settlements or decision
rendered thereon.
The State addressed both effectiveness and product clause issues in
a letter dated February 16, 1996 from John Howard, Chief, Division of
Occupational Safety and Health, to OSHA Regional Administrator Frank
Strasheim (included in Docket T-032). The State argues that the
additional enforcement mechanisms merely supplement the administrative
enforcement of the standard by Cal/OSHA and therefore do not detract
from its effectiveness. In addition, the State notes that supplemental
enforcement is a feature of several Federal laws, including Solid Waste
Disposal Act (Pub. L. 98-616) and the Federal Water Pollution Control
Act (Pub. L. 92-500).
The State asserts that this standard does not fall within the
product clause because it does not require machinery or equipment to be
custom-built. The letter cites the Congressional history of section
18(c)(2) of the Act to demonstrate that the discussion focused on
avoiding the need for manufacturers to design machinery differently to
meet requirements in different States (116 Congressional Record 38381
et seq.). In addition, according to the State's position, the standard
does not unduly burden interstate commerce because compliance may be
achieved by workplace postings which need not travel in interstate
commerce. Finally, the State maintains that the standard is justified
by compelling local conditions because the voters of California, in
passing Proposition 65, determined that there is a pressing need for
additional protection from exposure to toxic chemicals, beyond that
provided by the existing Federal hazard communication standard.
D. Public Participation
Interested persons are invited to submit written data, views and
arguments with respect to the issues described above. These comments
must be received on or before October 15, 1996, and be submitted in
quadruplicate to Docket T-032, Docket Office, Room N-2625, U.S.
Department of Labor, OSHA, 200 Constitution Avenue, N.W., Washington,
DC 20210. Comments under 10 pages long may be sent by telefax to the
Docket Office at 202-219-55046 but must be followed by a mailed
submission in quadruplicate. Written submissions must clearly identify
the issues which are addressed and the position taken with respect to
each issue. The State will be given an opportunity to respond to the
public comments. Interested persons may request an informal hearing
concerning OSHA's consideration of the plan change. Such requests also
must be received on or before October 15, 1996, and should be submitted
in quadruplicate to the Docket Office, Docket T-032, at the address
noted above. The Assistant Secretary will decide within 30 days of the
last day for filing written comments and requests for a hearing and
opportunity for State response whether substantial issues
[[Page 48446]]
have been raised which warrant public discussion, and, if so, will
publish notice of the time and place of an informal hearing.
The Assistant Secretary will consider all relevant comments,
arguments, and requests submitted concerning these standards, including
the record of any hearing held, and will publish notice of the decision
approving or disapproving them.
E. Location of Supplement for Inspection and Copying
A copy of the California Hazard Communication standard may be
inspected and copied during normal business hours at the following
locations: Docket Office (Docket T-032), Room N-2625, U.S. Department
of Labor, OSHA, 200 Constitution Avenue, N.W., Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health
Administration, 71 Stevenson Street, Suite 415, San Francisco, CA
94105; California Division of Occupational Safety and Health,
Department of Industrial Relations, 45 Fremont Street, Room 1200, San
Francisco, CA 94105.
Authority: Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); 29 CFR part
1902, Secretary of Labor's Order No. 1-90 (55 FR 9033).
Signed this 6th day of September, 1996 in Washington, D.C.
Joseph A. Dear,
Assistant Secretary.
[FR Doc. 96-23458 Filed 9-12-96; 8:45 am]
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