TEXT OF PROPOSED REGULATIONS

(1) Add Section 338, entitled Special Procedures for Supplementary Enforcement of State Plan Requirements Concerning Proposition 65.

(a) This section sets forth special procedures necessary to comply with the terms of the approval by the United States Department of Labor of the California Hazard Communication Standard, pertaining to the incorporation of the occupational applications of the California Safe Drinking and Toxic Enforcement Act (hereinafter Proposition 65). as set forth in 62 Federal Register 31,159 (June 6. 1997). Any person proceeding "in the public interest" pursuant to Health and Safety Code § 25249.7(d) (hereinafter "Supplemental Enforcer") or any district attorney or city attorney or prosecutor pursuant to Health and Safety Code § 25249.7(c) (hereinafter "Public Prosecutor'), who alleges the existence of violations of Proposition 65, with respect to occupational exposures as incorporated into the California Hazard Communication Standard (hereinafter "Supplemental Enforcement Matter'), shall comply with requirements of this section.

(b) 22 CCR § 12903, setting forth specific requirements for the content and manner of service of sixty-day notices under Proposition 65, in effect on April 22, 1997, is adopted and incorporated by reference. In addition, any sixty-day notice concerning a Supplemental Enforcement Matter shall include the following statement:

"This notice alleges the violation of Proposition 65 with respect to occupational exposures governed by the California State Plan for Occupational Safety and Health. The State Plan incorporates the provisions of Proposition 65, as approved by Federal OSHA -- on June 6, 1997. This approval specifically placed certain conditions on Proposition 65, including that it does not apply to the conduct of manufacturers occurring outside the State of California. The approval also provides that an employer may use the means of compliance in the general hazard communication requirements to comply with Proposition 65. It also requires that supplemental enforcement is subject to the supervision of the California Occupational Safety and Health Administration. Accordingly, any settlement, civil complaint, or substantive court orders in this matter must be submitted to the Attorney General."

(c) A Supplemental Enforcer or Public Prosecutor who commences a Supplemental Enforcement Matter shall serve a file-endorsed copy of the complaint upon the Attorney General, within ten days after filing with the Court.

(d) A Supplemental Enforcer or Public Prosecutor shall serve upon the Attorney General any decision or order of a court granting or denying summary adjudication, a demurrer, preliminary or final injunctive relief, penalties, or damages relating to a Supplemental Enforcement Matter within five working days after receipt.

(e) A Supplemental Enforcer or Public Prosecutor who agrees to a settlement of a Supplemental Enforcement Matter shall serve the settlement upon the Attorney General within two working days after the agreement is signed by the parties. Where the settlement is submitted to a court for its approval, the Supplemental Enforcer or Public Prosecutor shall notify the court in writing upon presentation of the settlement of its submission to the Attorney General pursuant to this regulation. The submission to the Attorney General shall contain the entire agreement between the parties.

(f) When this section requires that any document or information be provided to the Attorney General, service shall be in a manner Prescribed by Code of Civil Procedure § 1010 et seg. The envelope in which the document is transmitted shall state Prominently "Hazard Communication Standard/Proposition 65 Supplemental Enforcement Matter." The Attorney General may then specify that further documents be served upon a particular office and deputy.

(g) The special procedures set forth in subsections (a) through (f) shall be followed for motions or other applications for judicial enforcement of any existing or future settlement agreements pertaining to Proposition 65, with reference to occupational exposures.

NOTICE IS HEREBY GIVEN that the Department of Industrial Relations, pursuant to the authority granted by Labor Code sections 54, 55, and 6380 to implement, interpret, or make specific 8 Cal. Code Regs. 5194(b)(6)(E) and the terms of the conditional approval of the California Hazard Communication Standard by the Federal Occupational Safety and Health Administration (hereinafter Federal/OSHA) set forth in 62 Fed. Reg. 31159 (June 6, 1997), proposes to adopt section 338, entitled "Special Procedures for Supplementary Enforcement of the State Plan Requirements concerning Proposition 65", in Article 5, entitled "Hazardous Substances Information and Training."

Chapter 3.2, subchapter 1, Regulations of the Director of the Department of Industrial Relations, section 338, Title 8, California Code of Regulations. (Unless otherwise indicated all section references are to Title 8 of the California Code of Regulations.)

Article 5 - Hazardous Substances Information and Training

Section 338. Special Procedures for Supplementary Enforcement of State Plan Requirements concerning Proposition 65.

On September 10, 1980, the Governor of California signed the Hazardous Information and Training Act. California Labor Code, sections 6360 through 6399. This Act in part instructed Director of Industrial Relations, the state designee responsible for administration of the California Occupational Safety and Health State Plan (commonly known as Cal/OSHA) to establish a list of hazardous substances and to issue a standard setting forth employers' duties toward their employees under that Act. General Industry Safety Order section 5194 (8 CCR section 5194) was adopted by the State in 1981. Subsequently, Federal/OSHA adopted a Hazard Communication Standard, 29 CFR. section 1910.1200, in November 1983. The State amended its law in 1985, and, after a period for public review and comment, the California Occupational Safety and Health Standards Board adopted a revised standard for hazard communication on October 24, 1985. The standard became effective on November 22, 1985. By letter dated January 30, 1986, the State submitted the standard and incorporated the standard as part of its occupational safety and health plan.

In a 1986 referendum, voters of the State of California adopted Proposition 65, the "Safe Drinking Water and Toxic Enforcement Act." This law and implementing regulations require any business with ten or more employees that "knowingly and intentionally" exposes an individual to a chemical known to the State to cause cancer or reproductive toxicity to provide the individual with a "clear and reasonable" warning. California Safety and Health Code sections 25249.5 through 25249.13; 22 CCR sections 12,000 et seq. Proposition 65 applies broadly to all exposures to listed chemicals; consequently, the law has consumer and environmental applications, as well as occupational applications.

On January 23, 1991, the California Court of Appeal ordered the California Occupational Safety and Health Standards Board to amend the State's Hazard Communication Standard to incorporate the occupational warning protections of Proposition 65. California Labor Federation, AFL-CIO v. California Occupational Safety and Health Standards Board (1990) 221 Cal.App.3d. 1547. These changes were adopted as subsection (b)(6) in section 5194 of Title 8 of the California Code of Regulations on an emergency basis on May 16, 1991, and became effective on May 31, 1991. A permanent standard became effective on December 17, 1991. On January 30, 1992, the State submitted amendments to its Hazard Communication Standard to Federal/OSHA, including both the substantive requirements and enforcement mechanism in Proposition 65. On June 6, 1997, Federal/OSHA approved changes to a California hazard communication standard, including its incorporation of the occupational applications of Proposition 65. However, the approval was subject to three conditions:

(1) Employers covered by Proposition 65 may comply with the occupational requirements by complying with the OSHA or Cal/OSHA Hazard Communication provisions;

(2) The designated State agency, Cal/OSHA, is responsible for assuring that enforcement of its general Hazard Communication Standard and Proposition 65 results in "at least as effective" worker protection; the agency must take appropriate action to assure that court decisions in supplemental enforcement actions do not result in a less effective standard or in inconsistencies with the conditions under which the standard is Federally approved; and

(3) The State standard, including Proposition 65 and its occupational aspects, may not be enforced against out-of-state manufacturers because the State plan may not regulate conduct occurring outside the State. 62 Fed. Reg. 31160

In correspondence between Federal/OSHA and Cal/OSHA subsequent to the Federal register conditional approval, the concept and mechanism for supplemental enforcement were discussed by the respective agencies. (Letter dated July 21, 1997 from Federal/OSHA to Cal/OSHA; letter dated September 23, 1997 from Cal/OSHA to Federal/OSHA; letter dated December 19, 1997 from Federal/OSHA to Cal/OSHA; letter dated March 5, 1998 from Cal/OSHA to Federal/OSHA; letter dated May 15, 1998 from Cal/OSHA to Federal/OSHA; letter dated June 3, 1998 from Federal/OSHA to Cal/OSHA: letter dated December 2, 1998 from Federal/OSHA to Cal/OSHA; letter dated December 4, 1998 from Cal/OSHA to Federal/OSHA; letter dated February 26, 1999 from Federal/OSHA to Cal/OSHA; letter dated March 19, 1999 from Cal/OSHA to Federal/OSHA; letter dated April 23, 1999 from Federal/OSHA to Cal/OSHA; and letter dated June 1, 1999 from Cal/OSHA to Federal/OSHA.) In summary, Federal/OSHA requested and Cal/OSHA committed to adopting an action plan in which Cal/OSHA, in the context of an inter-agency agreement with the California Attorney General's Office, would adopt a regulation to assure that supplemental enforcement actions concerning occupational requirements with reference to Proposition 65 were effectively monitored by the State program. As a result of the written correspondence and other communications between Federal/OSHA and Cal/OSHA, the Director has proposed to adopt the subject regulation.

Subsection (a) introduces the requirement that special procedures be initiated which are necessary to comply with the terms of approval by the United States Department of Labor. Proposition 65 is subject to both public and private enforcement actions. Although the California Occupational Safety and Health Act and the occupational safety and health standards adopted by the Standards Board are singularly enforced by the California Division of Occupational Safety and Health, the concept of private, supplemental enforcement pursuant to existing statutory provisions in the Health and Safety Code was retained in the incorporation of Proposition 65 into the California Hazard Communication Standard. Although Federal/OSHA concluded that private enforcement actions would be permissible, the conditional approval required that the State monitor such supplemental enforcement actions to assure that they were consistent with State's enforcement of the Hazard Communication Standard, insofar as it incorporated Proposition 65, and the terms and conditions of the Federal/OSHA approval. Thus, the introduction to the regulation in subsection (a) references the conditional approval by Federal/OSHA on June 6, 1997, as set forth in 62 Federal Register of 31,159. Moreover, this subsection provides that any person proceeding in the public interest pursuant to Health and Safety Code section 25249.7(d), referred to as a "Supplemental Enforcer," or any District Attorney or City Attorney or Prosecutor pursuant to Health and Safety Code section 25249.7(c), referred to as a "Public Prosecutor', who alleges the existence of violation of Proposition 65, 'with respect to occupational exposures as incorporated into the California Hazard Communication Standard, referred to as "Supplemental Enforcement Matter", are required to comply with the requirements set forth in the remainder of the section.

Subsection (b) incorporates the existing regulation of the Office of Environmental Health Hazard Assessment in 22 California Code of Regulations, section 12903, which sets forth specific requirements for the content and manner of service of a 60-day notice under Proposition 65. This regulation, as it was in effect on April 22, 1997, is adopted and incorporated by reference. The so-called 60-day notice refers to a statutory requirement, which as a condition precedent to an enforcement action under Proposition 65, provides that the alleged violator, as well as the California Attorney General, must be notified of the reported violation. Health and Safety Code section 25249.(d). In addition to this existing statutory and regulatory notice requirement, subsection (b) would provide that any 60-day notice concerning a supplemental enforcement matter (e.g., previously defined to mean an alleged violation of Proposition 65 with respect to occupational exposures as incorporated into the California Hazard Communication Standard) would be required to include a prescribed Notice, which includes the following statement: "This notice alleges the violation of Proposition 65 with respect to occupational exposures governed by the California State Plan for Occupational Safety and Health. The State Plan incorporates the provisions of Proposition 65, as approved by Federal OSHA on June 6, 1997. This approval .specifically placed certain conditions on Proposition 65, including that it does not apply to the conduct of manufacturers occurring outside the State of California. The approval also provides that an employer may use the means of compliance in the general hazard communication requirements to comply with Proposition 65. It also requires that supplemental enforcement is subject to the supervision of the California Occupational Safety and Health Administration. Accordingly, any settlement, civil complaint, or substantive court orders in this matter must be submitted to the Attorney General''

The notice requirements, set forth as a condition for supplemental enforcement with reference to occupational exposures, are designed in part to assure that alleged violators are informed of the terms of the Federal approval and to assure that the Attorney General's Office is able to maintain a tracking system with reference to purported occupational exposure violations of Proposition 65. In that the Attorney General's Office has in effect a tracking system for 60-day notices pursuant to Proposition 65, the Department of Industrial Relations will enter into an Inter-Agency Agreement with the Attorney General's Office to similarly monitor possible enforcement actions of Proposition 65 with respect to occupational settings. The Attorney General's Office will assist the Department of Industrial Relations by monitoring supplemental enforcement actions to assure that they are consistent with State enforcement of the Hazard Communication Standard, insofar as it incorporates Proposition 65, and the terms and conditions of the Federal/OSHA approval.

Subsection (c) requires that either a private Supplemental Enforcer or Public Prosecutor, who commences a Supplemental Enforcement Matter, serve a file endorsed copy of the complaint upon the Attorney General, within ten days after filing with the Court. This provision is in addition to existing requirements to provide notice to the Attorney General's office. For general civil enforcement of Proposition 65, a copy of the complaint need not be filed with the Attorney General. However, to assure that California can monitor effectively supplemental enforcement actions, this requirement would assure that the Attorney General receive the initial complaint so that the office would be fully aware of all actions with reference to occupational exposures relating to Proposition 65 violations.

Subsection (d) requires that the private Supplemental Enforcer or Public Prosecutor serve upon the Attorney General any decision or order of a Court granting or denying summary adjudication, a demurrer, preliminary or final injunctive relief, penalties, or damages relating to a Supplemental Enforcement Matter within five days after receipt. This requirement also requires additional notifications to the Attorney General so that review can be undertaken of the further development and resolution of a case to assure that the result is consistent with State enforcement of the California Hazard Communication Standard, insofar as it incorporates Proposition 65, as well as the terms and conditions of the Federal/OSHA approval.

Subsection (e) similarly requires that a private Supplemental Enforcer or Public Prosecutor who agrees to a settlement of a Supplemental Enforcement Matter shall serve the settlement upon the Attorney General within two working days after the agreement is signed by the parties. If the settlement is submitted to a court for its approval, the private Supplemental Enforcer or Public Prosecutor would be required to notify the Court in writing upon presentation of the settlement of its submission to the Attorney General pursuant to this regulation. The entire settlement agreement between the parties must be submitted to the California Attorney General. Similar to trial resolution of Proposition 65 contested matters with reference to occupational exposures, this provision requires settlement agreements between the parties to be submitted to the Attorney General's Office. The purpose is to assure that the settlement agreement is consistent with State enforcement of the California Hazard Communication Standard, insofar as it incorporates Proposition 65, as well as the terms and conditions of the Federal/OSHA approval.

Subsection (f) provides that whenever any document or information is required to be provided to the Attorney General, service shall be in a manner prescribed by the Code of Civil Procedure, section 1010 et seq. In addition, the envelope in which the document is transmitted would be required to prominently state, "Hazard Communication Standard/Proposition 65 Supplemental Enforcement Matter." The Attorney General could specify that further documents be served upon a particular office and deputy. This section is designed to assure that standards of service used in civil actions are similarly required for providing information to the Attorney General's Office for purposes of monitoring supplemental enforcement actions.

Lastly, subsection (g) requires that the special procedures set forth in subsections (a) through (f) shall be followed for the judicial enforcement of any existing or future settlement agreement pertaining to Proposition 65, with reference to occupational exposures. This procedure will ensure that enforcement of settlement agreements is also consistent with State enforcement of the California Hazard Communication Standard, insofar as it incorporates Proposition 65, as well as the terms and conditions of the Federal approval.

NOTICE IS ALSO GIVEN that all persons interested in this rulemaking proceeding may present statements, arguments, or contentions, orally or in writing at a public hearing to be held:

These facilities are accessible to persons with mobility impairments. Written comments must be submitted to the official designated below by August 30, 1999, and must be submitted no later than 5:00 p.m., or at the close of the hearing on that date.

The official record of the rulemaking proceeding will be closed at the conclusion of the public hearing. Written comments received after the conclusion of the public hearing will not be considered unless an extension of time in which to receive specific written comments is announced at the hearing.

The Department's rulemaking file on this proposed action is open for public inspection Monday through Friday from 8:00 a.m. to 5:00 p.m., at 455 Golden Gate Avenue, 10th Floor, San Francisco, California.

After the public hearing, the Department may adopt the proposed regulation if it remains substantially the same as the original express terms made available to the public. The Department may make a change to the regulation before adoption. The text of any modified regulation will be available to the public at least 15 days before the Department adopts the regulation. A request for the modified text should be addressed to the official designated above. The Department will accept written comments on the modified text for 15 days after the date on which the text is made is available.

The Department has determined that no increased costs or savings to any State. agency, or costs to any local agency or school district within the meaning of Government Code section 17561, and no other non-discretionary costs or costs or savings in Federal funding to the State will result from this proposed regulation. The regulation does not impose a mandate on local agencies or school districts. The regulation will have no impact on housing costs. The regulation will have no adverse economic on small businesses, including the ability of California businesses to complete with businesses in other states. The costs impact on private persons or businesses will be insignificant. The impact of Federal funding to the State is insignificant.

The Department, pursuant to Government Code section 11346.5(a)(7), must determine that no alternative considered would be more effective in carrying out the purpose for which this regulation is proposed or would be effective or less burdensome to affected private persons in the proposed action.

The adoption of the proposed regulation will neither create nor eliminate jobs in the State of California, nor result in the elimination of existing businesses or create or expand businesses in the State of California. The adoption of the proposed regulation will have no impact upon small businesses because they do not impose any additional costs in order to comply with occupational safety and health standards or create any new compliance obligations.

The express terms of the proposed regulation written in plain English have been prepared by the Department pursuant to Government Code 11342(e) and 11345(a)(1) and the informative digest for this proposal constitutes a plain English overview.