[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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