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News Release USDL: 96-381
Friday, September 13, 1996
Contact: Frank Kane (202) 219-8151

The Occupational Safety and Health Administration (OSHA) today requested comments on California's state hazard communication standard, which incorporates the Safe Drinking Water and Toxic Enforcement Act, also known as Proposition 65.

The state standard differs both in content and supplemental method of enforcement from the federal hazard communication standard.

When an OSHA approved state health and safety plan adopts a standard that differs significantly from the comparable federal standard, the law requires it to be at least as effective as the federal standard. In addition, if the standard applies 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 is seeking comment on whether the California hazard communication standard meets those requirements. Written comments should be submitted in quadruplicate by Nov. 12, 1996, to Docket T-032, Docket Office, Room N-2625, Occupational Safety and Health Administration, U.S. Department of Labor, 200 Constitution Ave., N.W., Washington, D.C., 20210. Comments less than 10 pages long may be sent by telefax to the Docket Office at (202) 219-5046 but must be followed by a mailed submission in quadruplicate.

Proposition 65 was passed by a referendum of the voters of California in 1986. Provisions relating to occupational exposure were incorporated into the California hazard communication standard after a January 23, 1991, court order requiring the action.

Proposition 65 requires businesses with 10 or more employees to provide individuals with clear and reasonable warning if the individual is exposed to a chemical known by the state to cause cancer or reproductive toxicity. A product label or a sign can serve as the warning in the workplace. California annually publishes a list of chemicals known to cause cancer or reproductive toxicity.

On April 18, 1995, a coalition of chemical manufacturers filed a petition with OSHA requesting that the California standard, with its incorporation of Proposition 65, be rejected as unduly burdensome on interstate commerce in both its provisions and enforcement mechanism. The Chemical Manufacturers Association and several employers are supporting the request. The Environmental Defense Fund has asked OSHA to reject the petition and accept the standard as it is currently being applied in occupational settings.

OSHA is seeking comment on whether the California standard is at least as effective as the federal standard. Because the incorporation of Proposition 65 imposes requirements that go beyond those in the federal standard, it might be viewed as more effective than the federal standard. However, some persons say 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. Questions also have been raised about whether occupational safety and health standards can be as effectively enforced by local attorneys and private parties in addition to the state occupational safety and health officials.

OSHA also is seeking comment on whether the California standard:

1. is applicable to products that are distributed or used in interstate commerce;

2. if so, whether it is required by compelling local conditions; and

3. unduly burdens interstate commerce.

Individual employers and employer groups have said 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.

They also have said that 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 settlement of those cases.

The state has addressed both the effectiveness and product clause issues in a letter to federal OSHA dated Feb. 16, 1996. The state argues that the additional enforcement measures merely supplement the administrative enforcement of the standard by Cal/OSHA and do not detract from its effectiveness. The state also argues that the standard does not require machinery or equipment to be custom-built for California and that compliance may be achieved by workplace postings that do not need to travel in interstate commerce. The standard also 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, the state argues.