A description of the proposed changes are as follows:

1. TITLE 8:

GENERAL INDUSTRY SAFETY ORDERS
Chapter 4, Subchapter 7, Article 110, Section 5202

Methylene Chloride


The Board intends to adopt the proposed rulemaking action pursuant to Labor Code Section 142.3, which mandates the Board to adopt regulations at least as effective as federal regulations addressing occupational safety and health issues.

The U.S. Department of Labor, Occupational Safety and Health Administration (OSHA) promulgated regulations addressing methylene chloride on September 22, 1998, as 29 Code of Federal Regulations, Section 1910.1052. Section 1910.1052 was amended by revising paragraphs (d)(3), (j)(9)(i)(A) and (B), and paragraph (n)(2); and by adding paragraphs (j)(10), (j)(11), (j)(12), (j)(13), and (j)(14). The Board is relying on the explanation of the provisions of the federal regulations in Federal Register, Volume 63, No. 183, pages 50712 to 50732, September 22, 1998, as the justification for the Board’s proposed rulemaking action. The Board proposes to adopt regulations which are the same as the federal regulations except for editorial and format differences.

On January 10, 1997, OSHA promulgated a standard regulating occupational exposure to methylene chloride as reported in Federal Register, Volume 62, Number 7, pages 1494 to 1619. A motion for reconsideration was filed jointly by the International Union: United Automobile, Aerospace and Agricultural Implement Workers of America; UAW; the Halogenated Solvents Industry Alliance, Inc.; and others. The motion for reconsideration was reported in Federal Register, Volume 63, Number 85, pages 24501 to 24515. Subsections (d), (j), and (n) of 29 CFR 1910.1052 were subsequently amended on September 22, 1998 as reported in Federal Register, Volume 63, No. 183, pages 50712 to 50732.

The proposed revisions amend the standard regulating exposure to methylene chloride (MC), by adding a provision for temporary medical removal protection benefits for employees who are removed or transferred to another job because of a medical determination that exposure to MC may aggravate or contribute to the employee’s existing skin, heart, liver, or neurological disease.

Federal OSHA is also amending the startup dates by which employees in certain identified application groups (i.e., those who use MC in certain work operations) must achieve the 8-hour time-weighted-average (TWA) permissible exposure limit and the dates by which they must achieve the short-term exposure limit by means of engineering controls.

Section 5202(n)(2) pertaining to effective dates also contains nonsubstantive changes to eliminate obsolete language regarding start-up dates.

The proposed regulations are substantially the same as the final rule promulgated by federal OSHA. Therefore, Labor Code Section 142.3(a)(3) exempts the Board from the provisions of Article 5 (commencing with Section 11346) and Article 6 (commencing with Section 11349) of Chapter 3.5, Part 1, Division 3 of Title 2 of the Government Code when adopting standards substantially the same as a federal standard; however, the Board is still providing a comment period and will convene a public hearing. The primary purpose of the written and oral comments at the public hearing is to: 1) identify any clear and compelling reasons for California to deviate from the federal standard; 2) identify any issues unique to California related to this proposal which should be addressed in this rulemaking and/or subsequent rulemaking; and 3) solicit comments on the proposed effective date. The responses to comments will be available in a rulemaking file on this matter and will be limited to the above areas.

The effective date is proposed to be upon filing with the Secretary of State as provided by Labor Code Section 142.3(a)(4)(C) to allow California employers the same amount of time to come into compliance with the new requirements as was allowed in the federal final rule. The regulation may be adopted without further notice even though modifications may be made to the original proposal in response to public comments or at the Board’s discretion.

DOCUMENTS RELIED UPON

This document is available for review at the Occupational Safety and Health Standards Board’s office, 1300 I Street, Suite 920, Sacramento, CA 95814, (916) 322-3640.

DOCUMENTS INCORPORATED BY REFERENCE

None.

COST ESTIMATES OF PROPOSED ACTION

The Standards Board relies on the benefit and cost estimates provided on pages 50721-50729 of the preamble to OSHA’s final rule. OSHA summarizes that the proposal will benefit workers by reducing their exposures to methylene chloride induced or aggravated dermatitis or abnormal hepatic conditions arising from workplace exposure. OSHA concludes that the methylene chloride medical removal protection required by the final rule is clearly economically feasible. On average, annualized compliance costs amount to only 0.0014% of estimated sales, and 0.03% of profits. For the small business groups affected as defined by the Small Business Administration, annualized compliance costs for medical removal protection are 0.0017% of profits and 0.04% of sales. OSHA states that impacts of this magnitude do not threaten the economic feasibility of firms in any of these affected application groups.

For very small businesses (those employing fewer than 20 workers), annualized costs for medical removal protection are 0.0026% of profits and 0.06% of sales. Of these very small businesses, furniture stripping would experience the greatest impact at 0.3% of profits and 0.016% of sales. For these very small firms, the standard includes a provision (subsection (j)(11)(A)2.) requiring special consideration of the feasibility of and economic burden imposed by the regulation in the unusual case in which a very small employer would have to provide medical removal protection benefits to more than one employee. For these reasons, OSHA certifies that the medical removal protection provisions in this final rule will not have significant impact on any substantial number of small entities.

DETERMINATION OF MANDATE

The Occupational Safety and Health Standards Board has determined that the proposed regulations do not impose a mandate requiring 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 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 government 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, the 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.

PLAIN ENGLISH STATEMENT

It has been determined that the proposal may affect small business. The express terms of the proposal written in plain English have been prepared by the Board pursuant to Government Code Sections 11342(e) and 11346.2(a)(1) and the informative digest for this proposal constitutes a plain English overview.

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.

ALTERNATIVES THAT WOULD AFFECT PRIVATE PERSONS

No alternative considered by 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.