Proposition 65 in the Workplace: Are Chemical Manufacturers Obligated to Warn Workers of Carcinogenic Hazards?

by Raphael Metzger, Esq.

 

1.         Introduction

In 1986, California voters overwhelmingly adopted Proposition 65 which is now formally known as the Safe Drinking Water & Toxic Enforcement Act of 1986.  Cal. Health & Safety Code § 25249.5 et seq.  The Act has two main provisions.  The first prohibits businesses from discharging carcinogens and reproductive toxins into sources of drinking water.  Health & Safety Code § 25249.5.  The second prohibits businesses from exposing individuals to such toxins without first giving them clear and reasonable warning of such toxic hazards.  Health & Safety Code § 25249.6.

The California Court of Appeal has held that “[a]ll employees are individuals and thus are entitled to Proposition 65 warnings in the workplace absent an exemption in the law.”  California Labor Federation v. Occupational Safety & Health Standards Board (1990) 221 Cal.App.3d 1547,1556, 271 Cal.Rptr. 310.

However, in order to be enforceable in the workplace, Proposition 65 had to be incorporated into the state’s Occupational Safety and Health Plan and be approved by the U.S. Department of Labor.  Otherwise, the protections of Proposition 65 would be preempted by the federal Occupational Safety and Health Act.  See 29 U.S.C. §§ 667(a), 667(b), 667(c); United Airlines, Inc. v. Occupational Safety & Health Appeals Bd. (1982) 32 Cal.3d 762, 772,  654 P.2d 157, 187 Cal.Rptr. 387; Industrial Truck Ass’n, Inc. v. Henry (9th Cir. 1997) 125 F.3d 1305.

After more than a decade of litigation, Proposition 65 was incorporated into California’s state plan and the Plan was approved by the U.S. Department of Labor with certain conditions.

However, chemical manufacturers in the State of California are now claiming that in the process of incorporating Proposition 65 into the state plan, something went awry and that California chemical manufacturers were not required to give cancer hazard warnings to workers other than their own employees in their own workplaces.  This article will explain the error of the manufacturers’ argument.

 

2.         Historical Background

A.        The Safe Drinking Water and Toxic Enforcement Act (Prop. 65)

On November 4, 1986, the voters approved Proposition 65,  whose purposes of Proposition 65 are stated in the preamble to the Act, which declares: “The people of California find that hazardous chemicals pose a serious potential threat to their health and well-being, that state government agencies have failed to provide them with adequate protection, and that these failures have been serious enough to lead to investigations by federal agencies of the administration of California's toxic protection programs.”  Safe Drinking Water and Toxic Enforcement Act of 1986 (commonly known as “Proposition 65"), codified at Health & Safety Code § 25249.5 et seq.

The Proposition contains a “declaration of rights” which states: “The people therefore declare their rights:
(a) To protect themselves and the water they drink against chemicals that cause cancer, birth defects, or other reproductive harm. 
(b) To be informed about exposures to chemicals that cause cancer, birth defects, or other reproductive harm. 
(c) To secure strict enforcement of the laws controlling hazardous chemicals and deter actions that threaten public health and safety.
(d) To shift the cost of hazardous waste cleanups more onto offenders and less onto  law-abiding taxpayers.

Health & Safety Code § 25249.5 (Historical Note).

The first operative provision of Proposition 65 prohibits any person in the course of doing business from knowingly discharging or releasing to a source of drinking water any chemical known to the state to cause cancer or reproductive toxicity.  Health and Safety Code § 25249.5.

The second operative provision prohibits any person in the course of doing business from knowingly and intentionally exposing, without prior clear and reasonable warning, any individual to any chemical known to the state to cause cancer or reproductive toxicity.  Health and Safety Code § 25249.6

 

B.        The Federal Occupational Safety and Health Act (“Fed-OSHA”)

In 1970, Congress enacted the Occupational Safety and Health Act, which provides for the adoption of minimum national health and safety standards in the workplace.  29 U.S.C. § 651 et seq.  Pursuant to the Occupational Safety and Health Act, the Secretary was authorized to adopt regulations  to implement the remedial provisions of the Act.  29 U.S.C. § 655.

The principal implementing regulation that has been adopted by the Department of Labor is the Hazard  Communication Standard (commonly known as  “Haz-Comm”). 29 C.F.R. § 1910.1200 et seq.

The purpose of the Hazard Communication Standard is "to ensure that the hazards of all chemicals produced or imported are evaluated, and that information concerning their hazards is transmitted to employers and employees."  29 C.F.R. § 1910.1200(a).

Chemical manufacturers and suppliers must provide their customers with a Material Safety Data Sheet (“MSDS”) for each hazardous chemical they produce.  9. 29 C.F.R. § 1910.1200(g)(1) see also, 8 C.C.R. § 5194(g)(1) [the regulation in California’s approved plan].

The Material Safety Data Sheets must disclose the identities of all hazardous ingredients which comprise 1% or more of the composition, and all carcinogenic ingredients which comprise .1% or greater of the composition, or which could be released in concentrations which could present a health hazard to employees. 29 C.F.R. §§ 1910.1200(g)(2)(i)(C)(2); 8 C.C.R. § 5194(g)(2)(A)(3)b.

For each hazardous chemical, the manufacturer or supplier must list on the Material Safety Data Sheet "the health hazards of the hazardous chemical, including signs and symptoms of exposure, and any medical conditions which are generally recognized as being aggravated by exposure to the chemical."  29 C.F.R. § 1910.1200(g)(2)(iv); 8 C.C.R. § 5194(g)(2)(D).

The manufacturer or supplier must also state, on the Material Safety Data Sheet, whether the hazardous chemical is listed in the National Toxicology Program Annual Report on Carcinogens or has been found to be a potential carcinogen in the International Agency for Research on Cancer Monographs, or by OSHA.
29 C.F.R. § 1910.1200(g)(2)(vii); 8 C.C.R. § 5194(g)(2)(G).

Employers must "maintain copies of the required material safety data sheets for each hazardous chemical in the workplace," and "ensure that they are readily accessible during each work shift to employees when they are in their work areas."  29 C.F.R. § 1910.1200(g)(8); see also, 8 C.C.R. § 5194(g)(8).

The premise of Haz-Comm is that by requiring chemical manufacturers and suppliers to give toxic hazard information to their customers, and by requiring all employers to make the information available to their employees, workers will receive the information provided by the manufacturer.  29 C.F.R. § 1910.1200 et seq.

 

C.        State Jurisdiction over Occupational Safety and Health

The Occupational Safety and Health Act does not vest sole and exclusive jurisdiction over occupational safety and health with the U.S. Department of Labor.  29 U.S.C. § 667 et seq.  The Act provides that a state desiring to assume responsibility for development and enforcement of occupational safety and health standards with respect to which a federal standard has been adopted may do so under certain conditions.  29 U.S.C. § 667 et seq.

Two prerequisites to such regulation are that the state law be "at least as effective" as the federal standard covering the same subject matter and that the state law be incorporated in a state plan submitted to and approved by the federal Secretary of Labor.  29 U.S.C. §§ 667(b), 667(c). The Secretary is not required to approve such a plan unless in the Secretary’s judgment "standards, when applicable to products which are distributed or used in interstate commerce, are required by compelling local conditions and do not unduly burden interstate commerce."  29 U.S.C. § 667(c)(2).

Unless a state occupational safety and health law is incorporated in an approved state plan, it will be preempted to the extent that it covers subject matter as to which there is a federal standard.  19.  See 29 U.S.C. §§ 667(a), 667(b), 667(c); United Airlines, Inc. v. Occupational Safety & Health Appeals Bd. (1982) 32 Cal.3d 762, 772,  654 P.2d 157, 187 Cal.Rptr. 387; Industrial Truck Ass’n, Inc. v. Henry (9th Cir. 1997) 125 F.3d 1305.

 

D.        The California Occupational Safety and Health Act (CAL-OSHA)

In 1973, the California Legislature enacted the California Occupational Safety and Health Act ("Cal-OSHA").  Cal. Labor Code § 6300 et seq.

Section 107 of Cal-OSHA states in pertinent part:  "The purpose of this act is to allow the State of California to assume responsibility for development and enforcement of occupational safety and health standards under a state plan pursuant to Section 18 [29 United States Code section 667] of the Federal Occupational Safety and Health Act of 1970 (Public Law 91-596) which was enacted December 29, 1970."  Stats. 1973, ch. 993, § 107, pp. 1954-1955.

"It was in response to [29 U.S.C.] section 667 that the California Legislature enacted the California Occupational Safety and Health Act of 1973.  ([Lab. Code,] § 6300 et seq.)"  United Airlines, Inc. v. Occupational Safety & Health Appeals Bd. (1982) 32 Cal.3d 762, 772,  654 P.2d 157, 187 Cal.Rptr. 387.

The Department of Industrial Relations (“DIR”) is the state agency charged with administering the state plan.  Cal. Labor Code §§ 50.7(a); Cal. Labor Code § 6302.

In February 1987, the Governor advised the Secretary of his intent to withdraw the State Plan and to return exclusive control over the administration and enforcement of occupational safety and health law in California in the private sector to the federal government.  California Labor Federation v. Occupational Safety & Health Standards Bd. (1990) 221 Cal.App.3d 1547, 1552, 271 Cal.Rptr. 310.  Thereafter, the Governor reduced the amount of funds appropriated to DIR in the 1987 budget bill by $7 million for the announced purpose of terminating California's enforcement of its private sector responsibilities under Cal-OSHA.  California Labor Federation v. Occupational Safety & Health Standards Bd. (1990) 221 Cal.App.3d 1547, 1552, 271 Cal.Rptr. 310.

In October 1987, the California Court of Appeal for the Third Appellate District held the Governor's action to be ineffective as an improper exercise of his item veto power.  Ixta v. Rinaldi (Oct. 26, 1987) C 002805.  California Labor Federation v. Occupational Safety & Health Standards Bd. (1990) 221 Cal.App.3d 1547, 1552, 271 Cal.Rptr. 310.

On January 21, 1988, the California Supreme Court granted a petition for review in the Ixta v. Rinaldi case.  California Labor Fed. v. Occupational Safety & Health Standards Bd. (1990) 221 Cal. App.3d 1547, 1552.  Following the approval of Proposition 97, the Supreme Court dismissed the cause as moot on March 23, 1989. California Labor Fed. v. Occupational Safety & Health Standards Bd. (1990) 221 Cal. App.3d 1547, 1552.

 

E.         California’s Proposition 97: Restoration of State Jurisdiction

On November 8, 1988, the  voters approved Proposition 97, amending Labor Code § 50.7(a) to state:  "The Department of Industrial Relations is the state agency designated to be responsible for administering the state plan for the development and enforcement of occupational safety and health standards relating to issues covered by corresponding standards promulgated under the federal Occupational Safety and Health Act of 1970 (Public Law 91-596.)  The state plan shall be consistent with the provisions of state law governing occupational safety and health, including, but not limited to, Chapter 6 (commencing with Section 140) and Chapter 6.5 (commencing with Section 148) of Division 1, and Division 5 (commencing with Section 6300), of this code."  California Labor Federation v. Occupational Safety & Health Standards Bd. (1990) 221 Cal.App.3d 1547, 1552-1553, 271 Cal.Rptr. 310.

The preamble to Proposition 97 states its purposes:

“The people of California find and declare that:

"(1) Californians have the right to be effectively protected from injury, illness, and death in the workplace, and from the hazards of exposure to toxic substances on the job and in the community.

"(2) The restoration of adequate state standards and enforcement policies to reduce exposure to cancer-causing substances, chemicals that cause birth defects, and other toxic materials is in the interest of all Californians.

"(3) Catastrophic releases of such contaminants into our communities can best be prevented through the restoration of effective state safety and health practices in the workplace, including proper equipment and maintenance policies, employee training, and safe handling of toxic materials.

"(4) We disapprove of the elimination in 1987 of Cal/OSHA, the California Occupational Safety and Health Administration, and the transfer of control over worker safety and health to the federal government.

"(5) Cal/OSHA has a superior record to Federal OSHA in regulating hazardous industries and occupations such as construction, manufacturing, transportation, electronics, chemical, mining, utilities, service, health care, retail and entertainment.

"(6) Over the years Cal/OSHA has served as a safety and health model for other states.

"(7) A weaker safety and health system means increased death, illness, disabling injuries, pain and suffering for the working people of California.

"(8) It is more cost effective for California employers to retain state control over workplace health and safety matters.

"(9) The cost of restoring Cal/OSHA to the state is minor . . . especially when compared to the amounts spent on bureaucratic activities of a less essential nature. . . .

"(10) It is the purpose of this Act to restore California control over private sector safety and health, which the state has provided for since 1913, and has administered since 1973 through Cal/OSHA.  Pursuant to Article XIV, Section 4, of the California Constitution, state jurisdiction over worker safety and health should not be limited, eliminated or otherwise restricted, unless absolutely required by the Federal Constitution."

Cal. Labor Code § 50.7 (historical note).

 

F.         The California Occupational Safety and Health Standards Board

The Occupational Safety and Health Standards Board is in the Department of Industrial Relations and consists of seven members appointed by the Governor.  Cal. Labor Code § 140.  The board is the only agency in the state authorized to adopt occupational safety and health standards and “shall adopt standards at least as effective as the federal standards for all issues for which federal standards have been promulgated.”  Cal. Labor Code § 142.3.

 

G.        California Labor Federation v. Occupational Safety & Health Standards Board

On February 7, 1989, several labor and environmental organizations filed a petition for rulemaking with the Board, asking it to “amend its existing regulations, or adopt such other regulations, and otherwise take all such action as is necessary to assure that the California State Plan for Occupational Safety and Health includes and is consistent with the ‘clear and reasonable warning’ requirement, and other  pertinent provisions, of Proposition 65.”  California Labor Federation v. Occupational Safety & Health Standards Bd. (1990) 221 Cal.App.3d 1547, 1554, 271 Cal.Rptr. 310.

On July 27, 1989, the Board denied the petition, ruling that Proposition 65 is not a “state law governing occupational safety and health” within the meaning of the Labor Code, and that even if it were, it is not inconsistent with the state plan.  California Labor Federation v. Occupational Safety & Health Standards Bd. (1990) 221 Cal.App.3d 1547, 1554, 271 Cal.Rptr. 310.

After the Board denied the petition, the organizations petitioned the Court of Appeal, requesting it to invoke its original jurisdiction to issue a writ of mandate directing the Board to incorporate Proposition 65 into the state plan.  California Labor Federation v. Occupational Safety & Health Standards Bd. (1990) 221 Cal.App.3d 1547, 271 Cal.Rptr. 310.  The labor organizations asserted that under Proposition 97, which amended Labor Code § 50.7 to provide that the state plan must be consistent with state laws governing occupational health and safety, the Board had a ministerial duty to include Proposition 65 in the state plan.  California Labor Federation v. Occupational Safety & Health Standards Bd. (1990) 221 Cal.App.3d 1547, 1550.

The Court of Appeal noted that it was undisputed that several million California workers would be entitled to Proposition 65 warnings in the workplace if the proposition is not preempted.  California Labor Federation v. Occupational Safety & Health Standards Bd. (1990) 221 Cal.App.3d 1547, 1557, 271 Cal.Rptr. 310.

The Court therefore rejected the Board’s premise that Proposition 65 was not a state law governing occupational and safety and health within the meaning of Proposition 97 simply because it also applied outside the workplace and exempted certain employers from its requirements.  California Labor Federation v. Occupational Safety & Health Standards Bd. (1990) 221 Cal.App.3d 1547, 1557, 271 Cal.Rptr. 310.

The Court reasoned that since Proposition 97 plainly stated that the state plan shall be consistent with state laws governing occupational safety and health, its language required that the state plan be consistent with Proposition 65 and its implementing provisions.  Cal. Labor Code § 50.7; California Labor Federation v. Occupational Safety & Health Standards Bd. (1990) 221 Cal.App.3d 1547, 1557, 271 Cal.Rptr. 310. 

The Court held that the State Plan “is not consistent with Proposition 65 unless it includes all of the protections afforded by the proposition.” (emphasis added)  California Labor Federation v. Occupational Safety & Health Standards Bd. (1990) 221 Cal.App.3d 1547, 1558, 271 Cal.Rptr. 310.

The Court of Appeal therefore issued the requested peremptory writ of mandate, directing the Board to incorporate in the State Plan occupational safety and health standards that provide for the protections of Proposition 65 applicable to the workplace, and to submit such amendments for approval to the Secretary of Labor.  California Labor Federation v. Occupational Safety & Health Standards Bd. (1990) 221 Cal.App.3d 1547, 271 Cal.Rptr. 310.  The Court of Appeal issued its writ of mandate requiring on January 23, 1991.

 

H.        Standards Board Determines Emergency Standards Should Issue

Following the mandate, the Board determined:  “Workers are currently not being warned in every instance in which the People determined it is necessary for workers to receive warning, and in which the People determined that it is necessary to effectuate and preserve that right.  Proposition 65 warnings provide workers with basic information that enables them to further investigate and ultimately choose appropriate measures to mitigate the effects of exposures to chemicals known to the state to cause cancer and reproductive toxicity.  Workers’ abilities to learn of, hence control, the extent of their exposures to those toxic chemicals, are hindered unless immediate action is taken to effectuate their right to warnings in the workplace.”  Memorandum dated May 24, 1991 from Steven A. Jablonsky, Executive Officer, Occupational Safety and Health Standards Board, to John Smith, Director of the Office of Administrative Law, regarding Proposition 65 Warnings.

 

I.          The Occupational Safety and Health Standards Board’s Drafting of Provisions Incorporating Proposition 65 in the State Plan

An early draft amendment of the State Plan proposed the following language: “No employer shall knowingly and intentionally expose its employees to a chemical known to the State to cause cancer or reproductive toxicity without first giving a clear and reasonable warning.”  (emphasis added)  Proposed Rulemaking Option #1 for “Prop 65 Warning” Regulation, For Discussion Only Draft 3/27/91, p. 3.  This proposed language was eliminated from later drafts of the proposed regulations and was not adopted in the final regulation.  See 8 Cal. Code of Regs. § 5194 (Cal. General Industry Safety Order § 5194).

The Occupational Safety and Health Standards Board then proposed amending the Hazard Communication Standard by adding certain provisions to 8 C.C.R. § 5194(b)(6) regarding Proposition 65.  Proposed State Standard, Title 8, Chapter 4.

The first proposed provision (8 C.C.R. § 5194(b)(6)(A)) stated: “Notwithstanding any other provision of law including the preceding subsections, an employer which is a person in the course of doing business within the meaning of health and Safety Code Section 25249.11(a) and (b), is subject to the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65 or the “Act”) (Health and Safety Code § 25249.5 et seq.), and shall comply with the Act in the manner set forth in subsections (B) and (C) below.”  Proposed State Standard, Title 8, Chapter 4.

The second proposed provision (8 C.C.R. § 5194(b)(6)(B)) stated: “Exposures Subject to Proposition 65 and hazard Communication.  Before exposing any employee to any hazardous substance that otherwise falls within the scope of this section and which requires a warning under the Act, any employer subject to the Act shall comply with the requirements set forth in subsections (d) through (k).  Such compliance shall be deemed compliance with the Act.”  Proposed State Standard, Title 8, Chapter 4.

The third proposed provision (8 C.C.R. § 5194(b)(6)(C)) stated: “Exposures Subject to Proposition 65 Only.  Before knowingly and intentionally exposing any employee to any hazardous substance that does not otherwise fall within the scope of this section, but which requires a warning under the Act, any employer subject to the Act shall either provide a warning to employees in compliance with California Code of Regulations Title 22 (22 CCR) Section 12601(c) in effect on May 9, 1991 or shall comply with the requirements set forth in subsections (d) through (k).”  Proposed State Standard, Title 8, Chapter 4.

A proposal was subsequently made to replace the foregoing two proposals with the following language: “Before knowingly and intentionally exposing any employee to any chemical known to the state to cause cancer or reproductive toxicity as listed by the Governor pursuant to Health and Safety Code Section 25249.8(a), such employer shall provide clear and reasonable warning to its employees....”  Proposed amendment to proposed change.

David Roe of the Environmental Defense Fund and Stephen P. Berzon of Alschuler & Berzon (representing the labor and environmental organizations) suggested that the language “its employees” should be changed to “any employee” in order “to meet the intent of the Act.”  April 22, 1991 Draft of Proposition 65 Advisory Committee Minutes of April 16, 1991 meeting; Proposition 65 Advisory Committee Meeting: Summary of Discussion: April 16, 1991, pp. 3, 5.

The Occupational Safety and Health Standards Board invited written comments to the proposed changes and received comments from interested parties.  Final Statement of Reasons: California Code of Regulations, Title 8, Chapter 4, Subchapter 7, General Industry Safety Orders, “Proposition 65 Warnings” Amendment to Section 5194, Hazard Communication.

In a letter to the Board dated July 31, 1991, regarding the proposed changes, R. M. Warner, Industrial Hygiene Manager of Southern California Edison Company, commented that the court decision did not require that Proposition 65 be incorporated into Title 8 in its entirety.  R. M. Warner letter dated July 31, 1991;  Final Statement of Reasons: California Code of Regulations, Title 8, Chapter 4, Subchapter 7, General Industry Safety Orders, “Proposition 65 Warnings” Amendment to Section 5194, Hazard Communication, p. 3.

The Board rejected this comment as contrary to the mandate of the Court of Appeal.  The Board specifically wrote:  “The Court of Appeal determined that there were millions of workers not afforded all the protections of Proposition 65 and that there was a need for the Board to adopt regulations that incorporate all the protections of Proposition 65 into the State Plan.”  Final Statement of Reasons: California Code of Regulations, Title 8, Chapter 4, Subchapter 7, General Industry Safety Orders, “Proposition 65 Warnings” Amendment to Section 5194, Hazard Communication, p. 33.

Mr. Warner also suggested that Section 5194(b)(6)(B) be amended to read: “Before knowingly exposing any employee,” because if the word “knowingly” were not added, the subsection would unreasonably indicate that an employer who is unaware of a Proposition 65 chemical’s present would need to comply with the Hazard Communication Standard.  R. M. Warner letter dated July 31, 1991; Final Statement of Reasons: California Code of Regulations, Title 8, Chapter 4, Subchapter 7, General Industry Safety Orders, “Proposition 65 Warnings” Amendment to Section 5194, Hazard Communication, p. 4.

The Board rejected this suggestion, because it thought adding the word “knowingly” would be redundant and unnecessary since an employer would have to have known the chemical is present in the workplace in order to “fall within the scope of this section....”  Final Statement of Reasons: California Code of Regulations, Title 8, Chapter 4, Subchapter 7, General Industry Safety Orders, “Proposition 65 Warnings” Amendment to Section 5194, Hazard Communication, p. 4.

The Textile Industry Coalition commented that “for occupational exposure warnings, the proposed rule attempts to transfer the burden of ensuring compliance with the federal or California Hazard Communication Standard (HCS) to upstream manufacturers or distributors by mandating that warnings complying with the HCS ‘must be received and understood by the employee prior to exposure.’”  The Textile Industry Coalition noted that “[u]nder current federal and California law, the obligation to inform employees of workplace hazards rests with the employer, not manufacturers or other entities far removed from the workplace setting.”  Comments of the Textile Industry Coalition on Proposition 65 Before the California Health and Welfare Agency, p. 2.

The Textile Industry Coalition also noted: “In most instances, the manufacturer or distributor of a product containing a listed chemical will be the person issuing the warning, but the “cause” of the exposure will be an employer or downstream customer.”  Comments of the Textile Industry Coalition on Proposition 65 Before the California Health and Welfare Agency, p. 8.

Two other commentators recommended that businesses only be required to warn of listed chemicals found on the material safety data sheets, or where the threshold level under the federal Hazard Communication Standard is exceeded.  Final Statement of Reasons: 22 California Code of regulations Division 2, p. 32.

This recommendation was rejected:  “[A] supplier who knows of the presence of a listed chemical in its material which cannot be proved to pose no significant risk or to produce no observable effect assuming exposure at 1000 times the level in question must communicate that information to its customers.”  Final Statement of Reasons: 22 California Code of Regulations Division 2, p. 32.  (emphasis added)

 

J.          California’s Inclusion of Proposition 65 Cancer and
Reproductive Toxic Warning Requirements in the Plan

 

The Occupational Safety and Health Standards Board adopted the final version of changes to the State Plan on an emergency basis on May 16, 1991 and the standard became effective on May 31, 1991.  62 F.R. at 31161.  The State Plan incorporating the cancer and reproductive toxicity warning provisions of Proposition 65 is now found at 8 C.C.R. § 5194.  8 California Code of Regulations § 5194  (Cal. General Industry Safety Order § 5194).

 

K.        Exemptions Approved as Part of the Amended State Plan

The amended plan exempts certain employers: “The following employers are not subject to the Act:

1.  An employer employing fewer than ten employees;

2.  Any city, county, or district or any department or agency thereof or the state or any department or agency thereof or the federal government or any department or agency thereof;

3.  Any entity in its operation of a public water system as defined in Health and Safety Code Section 4010.1.”  8 Cal. Code of Regs. § 5194(b)(6)(A).

There is no exemption in the amended State Plan for employers who are in-state manufacturers and no exemption limits enforcement against in-state manufacturers to its own worksites or its own employees.  8 Cal. Code of Regs. § 5194(b)(6)(A).

 

L.         Industry Arguments to Fed-OSHA Regarding Manufacturers’ Obligations

In arguing to Fed-OSHA against approval of the State Plan, industry commentators claimed that enforcement of the State Plan (by private attorneys general) places full responsibility for warning California employees against out-of-state manufacturers.   62 F.R. at 31166 (June 6, 1997).

Some industry commentators asserted that Proposition 65 as incorporated into the State standard should not be enforced against out-of-state manufacturers, because a State plan by definition can only be enforced against in-State employers.  62 F.R. at 31166 (June 6, 1997).

Other commentators, who supported enforcement of the standards against out-of-state employers, maintained that manufacturers are in the best position to assess the hazards and effectively communicate them and that if manufacturers are not held responsible for exposures to their products, the burden would fall on tens of thousands of California employers.  62 F.R. at 31166 (June 6, 1997).

M.        Fed-OSHA’s Approval of California’s Amended State Plan

On January 30, 1992, California submitted to Fed-OSHA for approval the amendments to its Hazard Communication Standard, adapting both the substantive requirements and enforcement mechanism of Proposition 65.  62 F.R. at 31161 (June 6, 1997).

In approving the proposed Proposition 65 amendments to the State Plan, Fed-OSHA imposed certain conditions, including that “[t]he State standard, including Proposition 65 in its occupational aspects, may not be enforced against out-of-state manufacturers because a State plan may not regulate conduct occurring outside the State.”  62 F.R. at 31180 (June 6, 1997).

Fed-OSHA did not, however, impose a condition that the State Plan could not be enforced against in-state manufacturers or limit enforcement against in-state manufacturers to its own workplaces or employees.  62 F.R. at 31180 (June 6, 1997).

In approving the amended State Plan, Fed-OSHA recognized that “the Attorney General has maintained that the State plan imposes obligations upon manufacturers in their relation to the employees of other businesses.”  62 F.R. at 31176 (June 6, 1997).

In approving the amended State Plan, Fed-OSHA wrote: “The State may, of course, apply its laws to all workplaces within California, including those maintained by manufacturers or distributors incorporated in other States; in that situation, the ‘out-of-state’ business also would be an ‘in-state’ employer.”  62 F.R. at 31167 (June 6, 1997).

 

N.        Interpretation of the Plan by State Enforcement Agencies

The Attorney General is the chief law enforcement officer of the State of California and has authority to file actions necessary to safeguard the public interest and specifically to protect the environment and natural resources of the State.  Cal. Const., Art. V, § 13; Gov’t Code §§ 12511, 12600-12612; D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 14-15.  The Attorney General has interpreted Proposition 65 when representing the State in lawsuits filed against it.  62 F.R. at 31166, 31167, 31176.

The California Attorney General has consistently interpreted the Plan to authorize enforcement of Proposition 65 against chemical manufacturers who supply their products to California employers.  62 F.R. at 31166, 31167, 31176 (June 6, 1997); Attorney General and Cal/OSHA’s Amici Curiae Memorandum of Points and Authorities re Demurrer to Consolidated Complaint, in As You Sow v. Shell Oil Co., San Francisco Superior Court, No. 975116.

The Attorney General has interpreted the State Plan to apply to manufacturers other than chemical manufacturers, because some products of non-chemical manufacturers may be combined with a chemical to produce a hazardous chemical (e.g., an industrial truck using diesel fuel produces diesel exhaust, which is a listed hazardous chemical).  62 F.R. at 31176 (June 6, 1997).

The Attorney General has also taken the position that 22 C.C.R. § 12601(c)’s definition of an “occupational exposure” does not limit the Plan’s Proposition 65 coverage to the duties owed by manufacturers to their own employees, but rather imposes obligations upon manufacturers in their relation to the employees of other businesses.  62 F.R. at 31176 (June 6, 1997); Attorney General and Cal/OSHA’s Amici Curiae Memorandum of Points and Authorities re Demurrer to Consolidated Complaint, in As You Sow v. Shell Oil Co., San Francisco Superior Court, No. 975116.

The Division of Occupational Safety and Health is the agency within the Department of Industrial Relations that is responsible for administering the Plan. Cal. Labor Code § 50.7(a) and historical note thereto; 62 F.R. at 31161 (June 6, 1997).  It has administered the State Plan since 1973.  Cal. Labor Code § 50.7(a).  The Division of Occupational Safety and Health has consistently interpreted the Plan to authorize enforcement of Proposition 65 against chemical manufacturers who supply their products to California employers.  Attorney General and Cal/OSHA’s Amici Curiae Memorandum of Points and Authorities re Demurrer to Consolidated Complaint, filed September 10, 1998 in As You Sow v. Shell Oil Co., San Francisco Superior Court, No. 975116.

 

3.         Legal Analysis

A.        California Voters and the California Occupational Safety and Health Standards Board Exempted Certain Employers from the Provisions of the Plan, but Did Not Exempt Chemical Manufacturers from Giving Cancer Warnings

The State Plan exempted two types of employers from the warning requirements: (1) employers employing fewer than ten employees; and (2) public employers.  However, the Plan did not exempt employers who are chemical manufacturers.  Likewise, Fed-OSHA conditioned its approval of the State Plan on the State’s not enforcing the Plan against out-of-state chemical manufacturers.  However, Fed-OSHA did not impose a condition that the State Plan could not be enforced against in-state manufacturers or limit enforcement against in-state manufacturers to their own workplaces or their own employees.  Since the Board and Fed-OSHA exempted some employers, but not in-state manufacturers, from warning of cancer hazards, no such exemption should be implied in the Plan.

B.        The Occupational Safety and Health Standards Board Rejected Proposals Which Would Have Only Required a Chemical Manufacturer to Warn its Own Employees

In the course of the rulemaking proceedings before the Occupational Safety and Health Standards Board, various proposals for incorporating the provisions of Proposition 65 were considered.

One draft proposed this language:  “Before knowingly and intentionally exposing any employee to any hazardous substance ..., any employer shall comply [by providing a cancer hazard warning].” This is the language which was actually approved and adopted in the State Plan.

A proposal was made to change the words “any employer” to “such employer.”  However, this proposal was rejected, because it would have limited a manufacturer’s warning obligation to its own employees.

Another draft proposed: “No employer shall knowingly and intentionally expose its employees to a chemical known to the State to cause cancer.”

However, at an Advisory Committee Meeting, David Roe (of the Environmental Defense Fund) and Steve Berzon (representing the labor organizations) commented that the language “its employees” should be changed to “any employee” in order “to meet the intent of the Act.”

Thus, the Board considered proposals which would have resulted in the interpretation that Safety-Kleen advocates, but rejected such proposals as contrary to the intent of the voters.

C.        In-State Chemical Manufacturers Must Provide Cancer Hazard Warnings to California Workers Before Exposing Them to Carcinogenic and Reproductive Toxins

As previously explained, the premise of the Hazard Communication Standard is that by requiring chemical manufacturers and suppliers to provide toxicity hazard information to their customers, and requiring all employers to make the information available to their employees, workers will receive the information provided by the manufacturer.             

While the federal Hazard Communication Standard does not require chemical manufacturers to directly disclose toxicity hazard information to customers' employees, the California OSHA plan does.

“Proposition 65 requires that warnings be given to individuals.  All employees are individuals and thus are entitled to Proposition 65 warnings in the workplace absent an exemption in the law.”  California Labor Federation v. Occupational Safety & Health Standards Board (1990) 221 Cal.App.3d 1547, 1556, 271 Cal.Rptr. 310 (emphasis added).

Fed-OSHA recognized that “the Attorney General has maintained that the State plan imposes obligations upon manufacturers in their relation to the employees of other businesses.”  62 F.R. 31176.  Had Fed-OSHA disapproved of such and deemed it necessary to protect employers therefrom, it could have conditioned its approval of the State Plan on exempting in-state manufacturers from providing cancer hazard warnings to customers’ employees.  However, Fed-OSHA did not impose such a condition, thereby approving of such an obligation on in-state manufacturers.

D.        Proper Interpretation of the State Plan Negates the Notion That it Requires Manufacturers to Provide Cancer Hazard Warnings Only to Their Own Employees

The Plan provides that “an employer which is a person in the course of doing business . . . is subject to the Safe Drinking Water and Toxic Enforcement Act of 1986 . . . and shall comply with the Act in the manner set forth in subsections (B) and (C) below.”

Nothing in this language limits the obligation to exposures occurring in the workplace of the employer.  The language is straightforward: employers must comply with Proposition 65.

Neither of the two compliance methods set forth limit the duty to warn.  Subsection (C), governing exposures subject to Proposition 65 only, requires that “[b]efore exposing any employee to any hazardous substance . . . which requires a warning under the Act . . . any employer subject to the Act shall either provide a warning to employees in compliance with section 12601(c)” or the remaining parts of the Hazard Communication Standard”. (emphasis added), Subsection (B), concerning exposures subject to Proposition 65 and the Hazard Communication Standard, requires compliance with the remaining provisions of the Hazard Communication Standard.

As the regulation provides, employers may comply by “providing a warning to employees in compliance with 22 CCR Section 12601(c),” i.e., the safe-harbor warning regulation for occupational exposures.  The regulation then sets out safe-harbor warning methods of warning that are “deemed clear and reasonable” for occupational exposures.  However, this does not mean that Proposition 65 or the State Plan would apply only in those situations, it only means that the safe harbor warning regulation applies only in that situation.  This language does not extinguish or narrow the scope of an employer’s duty to provide occupational warnings; it only means that an employer can comply through the occupational exposure safe-harbor regulation.

The Occupational Safety and Health Standards Board wanted employers to be able to use the warning methods of 22 C.C.R. § 12601(c) for all occupational exposures, even those not in their own workplace, so it specifically included language allowing them to use the safe-harbor warning methods, even though they otherwise would be available only for employers to warn their own employees.  In addition, subsection (E), which specifically provides for enforcement of Proposition 65, again states that, “compliance with 22 CCR Section 12601(c) in effect on May 9, 1991 shall be deemed a defense to an enforcement action.”

Moreover, when the Occupational Safety and Health Standards Board submitted the Plan amendments to  Fed-OSHA, the Board was acting under an order from the California Court of Appeal to include all the occupational protections of Proposition 65 in the State Plan.  California Labor Federation v. Occupational Safety and Health Standards Board (1990) 221 Cal.App.3d 1547, 1557, 271 Cal.Rptr. 310.

Thus, any interpretation that would limit an in-state chemical manufacturer’s obligation to warning only its own employees in its own workplaces would contravene the Court of Appeal’s order requiring inclusion of all the protections of Proposition 65 in the State Plan.  Such an interpretation would nullify the will of the People that all Californians receive cancer hazard warnings before being exposed to carcinogenic chemicals and would only protect a small percentage of workers.

E.         Fed-OSHA’s Approval Contemplates an Obligation of In-State Manufacturers to Warn Customer’s Employees of Carcinogenic and Reproductive Hazards

In approving the California State Plan Amendment, federal OSHA established the much-discussed “out-of-state manufactured products” exception, under which approval of the State Plan was granted on the condition that the Plan could not be applied to companies with respect to products that they manufactured outside of the state.  In considering that very issue, federal OSHA specifically noted that some companies claimed that the State Plan applied only to in-state employers warning their own employees.  62 F.R. 31,166 - 31,167.  Had federal OSHA accepted that interpretation of the State Plan, it would have had no reason to impose the out-of-state manufacturer condition, because the Plan, by its terms, would not have applied to out-of-state manufacturers.

F.         Industrial Truck Does Not Negate a Manufacturer’s Duty to Warn

Chemical manufacturers contend the cancer hazard warning obligations of Proposition 65 were incorporated into the State Plan as to employers, but not manufacturers.  They base their argument on Industrial Truck Ass’n v. Henry (9th Cir. 1997) 125 F.3d 1305.

In Industrial Truck Ass’n v. Henry (9th Cir. 1997) 125 F.3d 1305, the Ninth Circuit held that “as applied to manufacturers and distributors of industrial trucks, the Proposition 65 occupational warning requirements at issue are preempted ... except to the extent those requirements are contained in California’s State Plan.”  Id. at 1314.  At the district court level in that case, the parties had vigorously disputed the meaning of the State Plan amendments, but the district court had not resolved the issue, because it found industrial trucks to be outside the initial preemptive scope of the Hazard Communication Standard.

The Ninth Circuit noted these contentions, and that the District Court had not resolved them.  Id. at 1308.  The Court then reversed on the preemption issue, but expressly declined to express a view on the issue of the meaning of the Plan, stating that its “preemption holding moots the State’s remaining arguments.”  Id. at 1315.  Thus the Court did not resolve the issue.  Moreover, the plaintiffs in Industrial Truck were out-of-state manufacturers that did not qualify as “employers” under section 5194(b)(6)(A), because they were out-of-state companies.  Indeed, this could be the reason why the Ninth Circuit did not think it was necessary to address the meaning of section 12601(c) of the safe-harbor warning regulations.

 

G.        Legislative History of Proposition 65 and the Plan Precludes an Interpretation That Would Only Require Employers to Warn Their Own Employees in Their Own Plants

“[I]t is undisputed that several million California workers are entitled to Proposition 65 warnings in the workplace if the proposition is not preempted by Fed/OSHA.”   California Labor Federation v. Occupational Safety & Health Standards Bd. (1990) 221 Cal.App.3d 1547, 1557, 271 Cal.Rptr. 310.  If the State Plan were interpreted so as to require in-state manufacturers to warn only their own employees of cancer hazards, the Initiative’s purpose of affording all Californians warning of the cancer hazards of chemicals to which they are exposed would be thwarted.

H.        Since the Division of Occupational Safety and Health and the Attorney General Are Charged with Enforcement of Proposition 65 and the State Plan, Their Interpretation of the Plan Should Be Accepted

“[T]he contemporaneous administrative construction of [an] enactment by those charged with its enforcement . . . is entitled to great weight, and courts generally will not depart from such construction unless it is clearly erroneous or unauthorized.”  People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 309, 926 P.2d 1042, 58 Cal.Rptr.2d 855; quoting, Coca-Cola Co. v. State Board of Equalization (1945) 25 Cal.2d 918, 921, 156 P.2d 1.

The Division and the Attorney General have consistently interpreted the Plan to require chemical manufacturers to provide required cancer hazard warnings not only to their own employees, but also to employees of downstream users.  See 62 F.R. at 31176; Memorandum of Points and Authorities of Amici Curiae California Attorney General and Division of Occupational Safety & Health in As You Sow v. Shell Oil Company.

Since the interpretation of the Division and the Attorney General’s is not clearly erroneous and is clearly authorized (Fed-OSHA having been aware of such when it approved the State Plan), their interpretation should be accepted as correct.

 

4.         Conclusion

In the “translation” of Proposition 65 to the workplace, ambiguities have arisen which California chemical manufacturers are seizing on to attempt to avoid giving cancer hazard warnings to California workers.  However, an accurate interpretation of the State Plan, based on both its plain meaning and its complicated and lengthy legislative history, establishes that in-state chemical manufacturers who manufacture chemical products containing chemicals known to the State of California to cause cancer and/or reproductive toxicity must provide toxic hazard warnings to downstream industrial users of their products.  Any contrary interpretation would nullify the will of the voters of the State of  California and the mandate of the California Court of Appeal that the State Plan must include all the protections of Proposition 65.