NOTICE OF PUBLIC MEETING/PUBLIC HEARING/BUSINESS MEETING

OF THE OCCUPATIONAL SAFETY AND HEALTH STANDARDS BOARD

AND NOTICE OF PROPOSED CHANGES TO TITLE 8

OF THE CALIFORNIA CODE OF REGULATIONS

Pursuant to Government Code Section 11346.4 and the provisions of Labor Code Sections 142.1, 142.2, 142.3, 142.4, and 144.6, the Occupational Safety and Health Standards Board of the State of California has set the time and place for a Public Meeting, Public Hearing, and Business Meeting:

         PUBLIC MEETING:            On September 19, 2002 at 11:00 a.m.

                                                      in the Auditorium of the Harris State Building,

                                                      1515 Clay Street, Oakland, California.

 

At the Public Meeting, the Board will make time available to receive comments or proposals from interested persons on any item concerning occupational safety and health.

         PUBLIC HEARING:            On September 19, 2002 following the Public Meeting in the

                                                      Auditorium of the Harris State Building,

                                                      1515 Clay Street, Oakland, California.

 

At the Public Hearing, the Board will consider the public testimony on the proposed changes noticed below to occupational safety and health regulations in Title 8 and Title 24 of the California Code of Regulations.

         BUSINESS MEETING:        On September 19, 2002 following the Public Hearing

                      in the Auditorium of the Harris State Building,

                                                      1515 Clay Street, Oakland, California.

          

At the Business Meeting, the Board will conduct its monthly business.

The meeting facilities and restrooms are accessible to the physically disabled.  Requests for accommodations for the disabled (assistive listening device, sign language interpreters, etc.) should be made to the Board office no later than 10 working days prior to the day of the meeting.  If Paratransit services are needed, please contact the Paratransit office nearest you.

 


 

NOTICE OF PROPOSED CHANGES TO TITLE 8

OF THE CALIFORNIA CODE OF REGULATIONS

BY THE OCCUPATIONAL SAFETY AND HEALTH STANDARDS BOARD

 

 

Notice is hereby given pursuant to Government Code Section 11346.4 and Labor Code Sections 142.1, 142.4 and 144.5, that the Occupational Safety and Health Standards Board pursuant to the authority granted by Labor Code Section 142.3, and to implement Labor Code Section 142.3, will consider the following proposed revisions to Title 8, General Industry Safety Orders of the California Code of Regulations, as indicated below, at its Public Hearing on September 19, 2002.

 

1.      TITLE 8:       GENERAL INDUSTRY SAFETY ORDERS

                              Chapter 4, Subchapter 7

                              Article 13, Section 3441(a)

                              Operation of Agricultural Equipment

 

 

2.      TITLE 8:       GENERAL INDUSTRY SAFETY ORDERS

                              Chapter 4, Subchapter 7

                              Article 109, Sections 5161 and 5164(a), (b), (c), and (d)

                              Storage of Hazardous Substances

 


                                    

A description of the proposed changes are as follows:

 

1.      TITLE 8:       GENERAL INDUSTRY SAFETY ORDERS

                              Chapter 4, Subchapter 7

                              Article 13, Section 3441(a)

                              Operation of Agricultural Equipment

 

 

INFORMATIVE DIGEST OF PROPOSED ACTION/POLICY

STATEMENT OVERVIEW

 

This rulemaking action is the result of Occupational Safety and Health Standards Board (Board) staff review of a Decision by the Occupational Safety and Health Appeals Board (Appeals Board) in the matter of Herrera Packing Co., Inc., Appeals Board Docket No. 99-R4D5-916.  In the matter of this appeal, the Administrative Law Judge determined that the provisions contained in GISO Section 3441(a) oblige the employer to provide instructions for the safe operation of agricultural equipment.  However, the regulation does not address the employer’s obligation to enforce those instructions and operating rules.  This rulemaking action makes amendments for clarity to ensure that the instructions and operating rules for the safe operation of agricultural equipment provided in Section 3441(a) are enforceable. 

 

This proposed rulemaking action also contains editorial and formatting revisions.  These non-substantive revisions are not discussed in this informative digest.  However, these proposed revisions are clearly indicated in the regulatory text in underline and strikeout format.  The following actions are proposed:

 

Section 3441. Operation of Agricultural Equipment.

 

Subsection (a) Operating Instructions.

 

Existing Section 3441(a) requires that the agricultural employer instruct every employee in the safe operation and servicing of all equipment to include at least the provisions contained in Section 3441(a)(1) through (a)(5).  An amendment is proposed to the title of subsection (a) to add the term “and safe work practices” to clarify the content of subsection (a).  Amendments are also proposed to divide subsection (a) into two subsections, (a)(1) and (a)(2), with language proposed for new subsection (a)(2) that will ensure the employer’s instructions with respect to safe work practices and operating rules are enforced by the employer.  Further, existing subsection (a)(3), proposed as subsection (a)(2)(C), requires the employer to “instruct employees” in the steps and procedures necessary to safely service or maintain equipment.  A proposed amendment deletes the reference to employer instruction and adds language to require that all steps and procedures “shall be taken” to safely service or maintain equipment.  The amendments are for clarification with respect to the employer responsibilities as noted above and will have no effect upon the regulated public.

 

 

COST ESTIMATES OF PROPOSED ACTION

 

Costs or Savings to State Agencies

 

No costs or savings to state agencies will result as a consequence of the proposed action.

 

Impact on Housing Costs

 

The Board has made an initial determination that this proposal will not significantly affect housing costs.

 

Impact on Businesses

 

The Board has made an initial determination that this proposal will not result in a significant statewide adverse economic impact directly affecting businesses, including the ability of California businesses to compete with businesses in other states.

 

Cost Impact on Private Persons or Businesses

 

The Board is not aware of any cost impacts that a representative private person or business would necessarily incur in reasonable compliance with the proposed action.

 

Costs or Savings in Federal Funding to the State

 

The proposal will not result in costs or savings in federal funding to the state.

 

Costs or Savings to Local Agencies or School Districts Required to be Reimbursed

 

No costs to local agencies or school districts are required to be reimbursed.  See explanation under “Determination of Mandate.”

 

Other Nondiscretionary Costs or Savings Imposed on Local Agencies

 

This proposal does not impose nondiscretionary costs or savings on local agencies.

 

 

DETERMINATION OF MANDATE

 

The Occupational Safety and Health Standards Board has determined that the proposed regulations do not impose a local mandate.  Therefore, reimbursement by the State pursuant to Part 7 (commencing with Section 17500) of Division 4 of the Government Code because the proposed amendments will not require local agencies or school districts to incur additional costs in complying with the proposal.  Furthermore, these regulations do not constitute a “new program or higher level of service of an existing program within the meaning of Section 6 of Article XIII B of the California Constitution.”

 

The California Supreme Court has established that a “program” within the meaning of Section 6 of Article XIII B of the California Constitution is one which carries out the governmental function of providing services to the public, or which, to implement a state policy, imposes unique requirements on local governments and does not apply generally to all residents and entities in the state.  (County of Los Angeles v. State of California (1987) 43 Cal.3d 46.)

 

These proposed regulations do not require local agencies to carry out the governmental function of providing services to the public.  Rather, these regulations require local agencies to take certain steps to ensure the safety and health of their own employees only.  Moreover, these proposed regulations do not in any way require local agencies to administer the California Occupational Safety and Health program.  (See City of Anaheim v. State of California (1987) 189 Cal.App.3d 1478.)

 

These proposed regulations do not impose unique requirements on local governments.  All employers - state, local and private - will be required to comply with the prescribed standards.

 

 

EFFECT ON SMALL BUSINESSES

 

The Board has determined that the proposed amendments may affect small businesses.

 

 

ASSESSMENT

 

The adoption of the proposed amendments to these regulations 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.

 

 

REASONABLE ALTERNATIVES CONSIDERED

 

Our Board must determine that no reasonable alternative considered by the Board or that has otherwise been identified and brought to the attention of the Board would be more effective in carrying out the purpose for which the action is proposed or would be as effective and less burdensome to affected private persons than the proposed action.

 

 


 

 

2.      TITLE 8:       GENERAL INDUSTRY SAFETY ORDERS

                              Chapter 4, Subchapter 7

                              Article 109, Sections 5161 and 5164(a), (b), (c), and (d)

                              Storage of Hazardous Substances

 

 

INFORMATIVE DIGEST OF PROPOSED ACTION/POLICY

STATEMENT OVERVIEW

 

On September 28, 2000, a Cal/OSHA Form 9, Request for New, or Change in Existing, Safety Order, was submitted to the Division of Occupational Safety and Health (Division) Research and Standards Development Unit requesting amendments to the definition of hazardous substances and the storage requirements for hazardous or potentially hazardous materials contained in Sections 5161 and 5164 of the General Industry Safety Orders.  This request was made in response to citations and appeals hearings involving the incompatible storage of hazardous substances, and the related existing Title 8 requirements that were found to be inadequate and/or unclear by compliance personnel and the regulated public.

 

This proposed rulemaking action contains minor non-substantive, editorial and grammatical revisions that are not all discussed in this Informative Digest.  However, these revisions are clearly indicated in the regulatory text in underline and strikeout format.  In addition to these non-substantive revisions, the following actions are proposed:

 

Section 5161.  Definitions.

 

Section 5161 contains the definitions applicable to Article 109, Hazardous Substances and Processes.  Section 5161 defines hazardous substances as “A substance which by reason of being explosive, flammable, poisonous, corrosive, oxidizing, irritant; or otherwise harmful is likely to cause injury.  An additional definition, for Hazard Communication purposes only, will be found at section 5194(c).”

 

Revisions are proposed to add the terms “material, or mixture” after the phrase “A substance” to clarify that something other than a substance, which has a specific chemical meaning, can be hazardous, and add “or illness” at the end of the first sentence to clarify that hazardous substances may also cause illness.

 

It is also proposed to add the sentence “Hazardous substance includes hazardous waste as defined in section 5192(a)(3)” in order to clarify that hazardous waste is also considered a hazardous substance and must be stored accordingly.  In addition, it is proposed to revise the last sentence to read, “Additional definitions are found in sections 5194(c), for Hazard Communication purposes only, and 5192(a)(3), for Hazardous Waste Operations purposes only.”  This revision will clarify that a third definition of hazardous substance exists in section 5192 which is specific to “Hazardous Waste Operations and Emergency Response.” 

 

The proposed revisions are necessary to emphasize to employers that “hazardous substances” include hazardous waste and other materials, or mixtures of materials, that if improperly stored could jeopardize the health and safety of employees.

 

Section 5164.  Storage of Hazardous Substances.

 

Section 5164 outlines the storage requirements for hazardous substances.  Subsection (a) further describes hazardous substances and states that such substances are to be separated from each other in storage by distance, by partitions, or otherwise, so as to preclude accidental contact between them.  A note to this subsection provides typical examples of incompatible substances.

 

A revision is proposed to make two sentences out of existing subsection (a):  one describing a hazardous substance, adding the requirement that such substances be evaluated before storing; and the other addressing how “incompatible substances” are to be separated when stored, adding dikes, berms, and secondary containment as separation options.  The proposed revision will require the employer to evaluate the potential hazard of substances prior to storage and provide additional separation options for storage purposes.

 

Existing subsection (b) requires hazardous substances be stored in containers which are chemically inert to and appropriate for the type and quantity of the hazardous substance.  A revision is proposed to add the phrase “such as those approved by the U.S. Department of Transportation (DOT)” to describe the types of containers that may be used to store hazardous substances.  The proposed revision provides an example of what types of containers are considered adequate for the safe storage of hazardous materials.

 

Existing subsection (c) requires that containers of hazardous substances shall not be stored in such locations or manner as to result in damage to the container, and that containers are not to be stored where they are exposed to heat sufficient to rupture the container or cause leakage.  A revision is proposed to the first sentence of this subsection which will clarify that containers of hazardous substances are not to be stored in such locations or manner as to result in “physical” damage to “or deterioration of” the container.  The proposed revision will clarify the types of damage to containers that an employer must prevent when considering how and where to store containers of hazardous substances.

 

Existing subsection (d) requires that containers used to package a substance which gives off toxic, asphyxiant, suffocant, or anesthetic fumes in hazardous amounts (e.g., fuming sulfuric acid, hydrofluoric acid, compressed or liquefied toxic gases) are not to be stored in locations where it could be reasonably anticipated that employees would be exposed.  It is also stated that this requirement does not apply to small quantities of such materials kept in closed containers, or to tank cars or trucks.  A revision is proposed to include “gases, or vapors”, along with anesthetic fumes, to the list of emissions that can be given off from a substance in hazardous amounts; and “poisonous” and “corrosive” to the description of the types of fumes, gases, or vapors which pose a hazard.  It is also proposed to add the terms “nitrous oxide, chlorine, or other” to the examples of compressed or liquefied gases provided in this subsection.  The proposed revisions will increase the employer’s awareness of the types of substances which emit hazardous airborne contaminants, and that these contaminants may be in the form of gases or vapors which could also be corrosive or poisonous.

 

 

COST ESTIMATES OF PROPOSED ACTION

 

Costs or Savings to State Agencies

 

No costs or savings to state agencies will result as a consequence of the proposed action.

 

Impact on Housing Costs

 

The Board has made an initial determination that this proposal will not significantly affect housing costs.

 

Impact on Businesses

 

The Board has made an initial determination that this proposal will not result in a significant, adverse economic impact directly affecting businesses, including the ability of California businesses to compete with businesses in other states.

 

Cost Impact on Private Persons or Businesses

 

The Board is not aware of any cost impact that a representative private person or business would necessarily incur in reasonable compliance with the proposed action.

 

Costs or Savings in Federal Funding to the State

 

The proposal will not result in costs or savings in federal funding to the state.

 

Costs or Savings to Local Agencies or School Districts Required to be Reimbursed

 

No costs to local agencies or school districts are required to be reimbursed.  See explanation under “Determination of Mandate.”

 

Other Nondiscretionary Costs or Savings Imposed on Local Agencies

 

This proposal does not impose nondiscretionary costs or savings on local agencies.

 

 

DETERMINATION OF MANDATE

 

The Occupational Safety and Health Standards Board has determined that the proposed regulations does not impose a local mandate.  Therefore, reimbursement by the state is not required pursuant to Part 7 (commencing with Section 17500) of Division 4 of the Government Code because the proposed amendments will not require local agencies or school districts to incur additional costs in complying with the proposal.  Furthermore, these regulations do not constitute a “new program or higher level of service of an existing program within the meaning of Section 6 of Article XIII B of the California Constitution.”

 

The California Supreme Court has established that a “program” within the meaning of Section 6 of Article XIII B of the California Constitution is one which carries out the governmental function of providing services to the public, or which, to implement a state policy, imposes unique requirements on local governments and does not apply generally to all residents and entities in the state.  (County of Los Angeles v. State of California (1987) 43 Cal.3d 46.)

 

These proposed regulations do not require local agencies to carry out the governmental function of providing services to the public.  Rather, the regulations require local agencies to take certain steps to ensure the safety and health of their own employees only.  Moreover, these proposed regulations do not in any way require local agencies to administer the California Occupational Safety and Health program.  (See City of Anaheim v. State of California (1987) 189 Cal.App.3d 1478.)

 

These proposed regulations do not impose unique requirements on local governments.  All employers - state, local and private - will be required to comply with the prescribed standards.

 

 

EFFECT ON SMALL BUSINESSES

 

The Board has determined that the proposed amendments may affect small businesses.

 

 

ASSESSMENT

 

The adoption of the proposed amendments to these regulations 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.

 

 

REASONABLE ALTERNATIVES CONSIDERED

 

Our Board must determine that no reasonable alternative considered by the Board or that has otherwise been identified and brought to the attention of the Board would be more effective in carrying out the purpose for which the action is proposed or would be as effective and less burdensome to affected private persons than the proposed action.

 

The above proposals do not contain building standards as defined by Health and Safety Code Section 18909.

 

A copy of the proposed changes in STRIKEOUT/UNDERLINE format is available upon request made to the Occupational Safety and Health Standard Board’s Office, 2520 Venture Oaks Way, Suite 350, Sacramento, CA  95833, (916) 274-5721.  Copies will also be available at the Public Hearing.

 

An INITIAL STATEMENT OF REASONS containinga statement of the purpose and factual basis for the proposed actions, identification of the technical documents relied upon, and a description of any identified alternatives has been prepared and is available upon request from the Standards Board’s Office.

 

Notice is also given that any interested person may present statements or arguments orally or in writing at the hearing on the proposed changes under consideration.  It is requested, but not required, that written comments be submitted so that they are received no later than September 13, 2002.  The official record of the rulemaking proceedings will be closed at the conclusion of the public hearing and written comments received after 5:00 p.m. on September 19, 2002 will not be considered by the Board unless the Board announces an extension of time in which to submit written comments.  Written comments should be mailed to the address provided below or submitted by fax at (916) 274-5743 or e-mailed at oshsb@hq.dir.ca.gov.  The Occupational Safety and Health Standards Board may thereafter adopt the above proposal substantially as set forth without further notice. 

 

The Occupational Safety and Health Standards Board's rulemaking file on the proposed actions including all the information upon which the proposals are based are open to public inspection Monday through Friday, from 8:30 a.m. to 4:30 p.m. at the Standards Board's Office, 2520 Venture Oaks Way, Suite 350, Sacramento, California 95833.

 

The full text of proposed changes, including any changes or modifications that may be made as a result of the public hearing, shall be available from the Executive Officer 15 days prior to the date on which the Standards Board adopts the proposed changes.

 

Inquiries concerning either the proposed administrative action or the substance of the proposed changes may be directed to John D. MacLeod, Executive Officer, or Michael Manieri, Principal Safety Engineer,at (916) 274-5721. 

 

You can access the Board’s notice and other materials associated with this proposal on the Standards Board’s homepage/website address which is http://www.dir.ca.gov/oshsb.  Once the Final Statement of Reasons is prepared, it may be obtained by accessing the Board’s website or by calling the telephone number listed above.

                                   


 

NOTICE OF ADOPTION OF REGULATIONS

INTO TITLE 8, CALIFORNIA CODE OF REGULATIONS

BY THE

 OCCUPATIONAL SAFETY AND HEALTH STANDARDS BOARD

 

After proceedings held in accordance with and pursuant to the authority vested in Sections 142, 142.3 and 142.4, of the Labor Code to implement, interpret, or make specific, the Occupational Safety and Health Standards Board, by a majority vote, adopted additions, revisions, or deletions to the California Code of Regulations as follows:

1.   Title 8, Chapter 4, Subchapter 7, General Industry Safety Orders, Article 91, Section 4855, Definition of Trolley Suspended Hoists.

Heard at the October 18, 2001, Public Hearing; adopted on April 18, 2002; filed with the Secretary of State on June 3, 2002; and became effective on July 3, 2002.

2.    Title 8, Chapter 4, Subchapter 7, General Industry Safety Orders, Article 100, Section 5034(f), Crane and Derrick Adjustments and Repairs.

Heard at the February 21, 2002, Public Hearing; adopted on April 18, 2002; filed with the Secretary of the State on June 3, 2002; and became effective on July 3, 2002.

3.   Title 8, Chapter 4, Subchapter 7, General Industry Safety Orders, Article 109, Appendix A to Section 5189, Process Safety Management of Acutely Hazardous Materials Listing of Sulfur Dioxide.

Heard at the April 18, 2002, Public Hearing; adopted on May 16, 2002; filed with the Secretary of the State on June 18, 2002; and became effective on July 18, 2002.

4.   Title 8, Chapter 4, Subchapter 7, General Industry Safety Orders, Article 27, Sections 3700 and 3702, Seatbelt Requirements for Farm Labor Vehicles.

Heard at the March 21, 2002, Public Hearing; adopted on May 16, 2002; filed with the Secretary of the State on June 20, 2002; and became effective on July 20, 2002.

5.   Title 8, Chapter 3.5, Subchapter 1, Administrative Regulations, Article 2, Sections 406, 411.1 – 411.4, 415, 417.3, and 417.5, Variances from Occupational Safety and Health Standards.

Heard at the April 18, 2002, Public Hearing; adopted on May 16, 2002; filed with the Secretary of the State on July 1, 2002; and became effective on July 31, 2002.

A copy of these standards is available upon request from the Occupational Safety and Health Standards Board, 2520 Venture Oaks Way, Suite 350, Sacramento, CA  95833, (916) 274-5721.

If you have Internet access, visit the Occupational Safety and Health Standards Board by going to: http://www.dir.ca.gov/oshsb and follow the links to the Standards Board.  This information is updated monthly.  The Standards Board’s e-mail address is:  oshsb@dir.ca.gov.