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News Release USDOL
Thursday, June 5, 1997
Contact: Susan Hall Fleming, (202) 219-8151

The Occupational Safety and Health Administration (OSHA) today announced approval, subject to certain conditions, of a California state standard for labeling hazardous chemicals and providing information on those hazards to workers exposed to the chemicals.

OSHA's approval of California's hazard communication standard is intended to clarify concerns about the extent to which the California standard covers out-of-state manufacturers, importers and distributors. It also outlines employer compliance provisions. The decision is premised on OSHA's understanding that, under state law, compliance with state or federal hazard communication standards constitutes compliance with Proposition 65, the 1986 "Safe Drinking Water and Toxic Enforcement Act," including the supplemental enforcement mechanism that gives private parties the right to file lawsuits.

"We agree that the California standard effectively protects workers by giving them needed information on toxic materials with which they work, and that is our paramount concern" said Gregory R. Watchman, acting assistant secretary of labor for occupational safety and health. "At the same time, OSHA acknowledges that Prop 65 raises consumer and environmental issues that are beyond the scope of a state occupational safety and health program, and therefore are not affected by this decision."

OSHA's approval of California's hazard communication standard is based on three conditions, which apply to both Cal/OSHA and private party enforcement:

• Employers in California can fulfill their obligations under Proposition 65 by complying with the federal or the California hazard communication standard.

• Cal/OSHA, the designated occupational safety and health authority in California, must assure that the California standard continues to provide worker protection "at least as effective" as the federal standard and remains consistent with the approval conditions. This may mean challenging legal decisions from supplemental enforcement actions that would reduce worker protection or be contrary to OSHA's conditions for approval.

• Cal/OSHA's hazard communication standard may not be enforced against out-of-state manufacturers, because a state plan may not regulate conduct occurring outside the state.

Under Proposition 65, private citizens may file civil lawsuits and receive 25 percent of any penalties imposed against companies for failing to provide "clear and reasonable warning" about occupational, environmental or consumer exposures to chemicals that may cause cancer or reproductive harm. The hazard communication standard adopted by Cal/OSHA covers only occupational exposures.

After enactment of Proposition 65, the California Court of Appeals in 1991 ordered the state to incorporate the occupational warning provisions of the statute in the California hazard communication standard. The change included adding supplemental enforcement procedures permitting citizen lawsuits to enforce the warning requirements. The revised Cal/OSHA standard explicitly states that compliance with federal or state hazard communication requirements constitutes compliance with Proposition 65.

Federal OSHA received California's revised hazard communication standard in 1992 and began discussions with the state on enforcement issues involving Proposition 65. OSHA formally requested public comment on the standard in a Sept. 13, 1996, Federal Registernotice. When the comment period closed Nov. 26, 1996, the agency had received more than 200 public comments. Many of the issues raised by commentors concerned compliance obligations of chemical manufacturers, distributors and importers operating outside California borders. Other concerns dealt with Proposition 65's requirements involving consumer and environmental exposures to toxic chemicals, however, these issues are beyond the scope of OSHA's review of Cal/OSHA's hazard communication standard.

The California Department of Industrial Relations has operated an OSHA approved state plan since 1973. The federal Occupational Safety and Health Act of 1970 requires OSHA to review and approve standards adopted by state OSHA programs. Once established by the state authority, a state standard remains in effect until federal review is complete. (If, instead of approving California's hazard communication standard, OSHA had decided to reject the standard, OSHA would have been required to institute a formal review process under the Occupational Safety and Health Act. During the review, the state standard would remain in effect.)

Under the OSH Act, a state with an OSHA-approved state plan, may enforce its standards only within its borders. State standards must be "at least as effective" as comparable federal standards, must not unduly burden interstate commerce and must be required by compelling local conditions.

OSHA has determined that the Cal/OSHA hazard communication standard, including the occupational aspects of Proposition 65, is at least as effective as the federal standard in protecting workers. The standard covers essentially the same chemicals as federal OSHA and the right of private action serves as a supplement to, rather than a substitute for, Cal/OSHA enforcement.

Further, since the California regulations specifically state that compliance with the state or the federal hazard communication standard constitutes compliance with Proposition 65, OSHA believes that the Cal/OSHA standard will not unduly burden interstate commerce.

Finally, since Proposition 65 was a voter initiative that deals with individuals' access to information about chemical hazards, it is considered to be required by compelling local conditions.

Notice of OSHA's approval of the California hazard communication standard is scheduled for publication in the June 6, 1997, Federal Register.