AN ACT Relating to hazardous substances; and adding new sections to chapter 49.70 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Chemical abstracts service number" means the unique identification number assigned by the Chemical Abstracts Service to chemicals.

(2) "Chemical name" is the scientific designation of a chemical in accordance with the nomenclature system developed by the International Union of Pure and Applied Chemistry or the Chemical Abstracts Service rules of nomenclature.

(3) "Common name" means any designation or identification such as a code name, code number, trade name, brand name, or generic name used to identify a chemical other than by its chemical name.

(4) "Container" means a receptacle used to hold a liquid, solid, or gaseous substance, including, but not limited to, bottles, pipelines, bags, barrels, boxes, cans, cylinders, drums, cartons, vessels, vats, and stationary or mobile storage tanks. "Container" does not include process containers.

(5) "Council" means the "right-to-know advisory council" created pursuant to RCW 49.70.120.

(6) "County health department" means a county health agency established pursuant to Title 70 RCW.

(7) "Department" means the department of labor and industries.

(8) "Employee" means a person who is employed in the business of his or her employer and every person in this state who is engaged in the employment of or who is working under an independent contract the essence of which is the employee's personal labor for an employer under this chapter.

(a) "Employee" does not include:

(i) Any person employed as a domestic servant in a private home by an employer who has less than two employees regularly employed forty or more hours a week in such employment;

(ii) Any person employed to do gardening, maintenance, repair, remodeling, or similar work in or about the private home of the employer which does not exceed ten consecutive work days;

(iii) A person whose work is casual and the employment is not in the course of the trade, business, or profession of his employer;

(iv) Any person performing services in return for aid or sustenance only, received from any religious or charitable organization;

(v) Any child under eighteen years of age employed by his parent or parents if the child or children are the only employees of the parent or parents; or

(vi) Jockeys while participating in or preparing horses for race meets licensed by the Washington horse racing commission pursuant to chapter 67.16 RCW.

(b) The application of this chapter is limited for the following employees:

(i) Employees of research and development laboratories;

(ii) Employees of handlers of sewage or solid waste; and

(iii) Employees who are performing duties subject to regulations regarding the transportation of hazardous substances promulgated by any of the following agencies:

(A) Federal department of transportation;

(B) Washington utilities and transportation commission; or

(c) Employers shall be limited to the following responsibilities in regard to employees listed in (b) of this subsection:

(i) Extensive education and training programs shall be provided to employees in accordance with section 10 of this act including a study of the possible acute and chronic health effects of exposure to the hazardous substance, the medical conditions that might be aggravated by exposure, and any permissible exposure limits established by chapter 49.17 RCW;

(ii) Employers shall ensure that labels on incoming containers of hazardous substances are not removed or defaced;

(iii) Employers shall maintain any material safety data sheets that are received with incoming shipments for each type of hazardous substance in their workplaces, and ensure that they are readily accessible to employees;

(iv) The workplace survey required by section 3 of this act shall be completed to the extent that information is available; and

(v) Any employee who is exposed to a hazardous substance shall be immediately provided with a material safety data sheet if readily available.

(9) "Employee representative" means any individual or organization to whom an employee gives written authorization to exercise a right of access. For the purposes of access to employee exposure records and analysis using exposure or medical records, a recognized or certified collective bargaining agent shall be treated automatically as a designated representative without regard to written employee authorization.

(10) "Employer" means any person, firm, corporation, partnership, business trust, legal representative, or other business entity which engages in any business, industry, profession, or activity in this state and employs one or more employees or who contracts with one or more persons, the essence of which contract is the personal labor of such person or persons and includes the state, counties, cities, and all municipal corporations, public corporations, political subdivisions of the state, and charitable organizations. Any person, partnership, or business entity not having employees, and who is covered by the industrial insurance act shall be considered both an employer and an employee.

(11) "Exposure" or "exposed" means that an employee is subjected to a hazardous chemical in the course of employment through any route of entry such as inhalation, ingestion, skin contact or absorption, and includes accidental or reasonably forseeable possibilities of exposure.

(12) "Hazardous substance" means any substance, or substance contained in a mixture, included on the workplace hazardous substance list developed by the department pursuant to section 2 of this act.

(13) "Label" means a sign, emblem, sticker, or marker affixed to or stenciled onto a container.

(14) "Manufacturer" means a person who produces, synthesizes, extracts, or otherwise makes a hazardous substance.

(15) "Material safety data sheet" means a written document prepared by the manufacturer or supplier for each product containing a hazardous substance and transmitted by the manufacturer or supplier to purchasers pursuant to this chapter. Manufacturers and importers shall obtain or develop a material safety data sheet for each hazardous substance they produce or import. Employers shall have a material safety data sheet for each hazardous substance which they use. Each material safety data sheet shall contain at least the following information:

(a) The identity used on the label and on trade secrets:

(i) If the hazardous substance is a single substance, its chemical and common name;

(ii) If the hazardous substance is a mixture which has been tested as a whole to determine its hazards, the chemical and common name of the ingredients which contribute to these known hazards and the common name of the mixture itself; or

(iii) If the hazardous substance is a mixture which has not been tested as a whole:

(A) The chemical and common name of all ingredients that have been determined to be health hazards, and that comprise one percent or greater of the composition, except that chemicals identified as carcinogens shall be listed if the concentrations are one-tenth of one percent or greater; and

(B) The chemical and common name of all ingredients that have been determined to present a physical hazard when present in the mixture;

(b) Emergency and first aid procedures;

(c) Any generally applicable control measures that are known to the chemical manufacturer, importer, or employer preparing the material safety data sheet, such as appropriate engineering controls, work practices, or personal protective equipment;

(d) Any generally applicable precautions for safe handling and use that are known to the chemical manufacturer, importer, or employer preparing the material safety data sheet, including appropriate hygienic practices, protective measures during repair and maintenance of contaminated equipment, and procedures for clean-up of spills and leaks;

(e) Physical and chemical characteristics of the hazardous substance, such as vapor pressure and flash point;

(f) The physical hazards of the hazardous substance including the potential for fire, explosion, and reactivity;

(g) The acute and chronic health hazards of the hazardous substance, including signs and symptoms of exposure, and any medical conditions that are generally recognized as being aggravated by exposure to the hazardous substance;

(h) The primary route of entry;

(i) The occupational safety and health act (OSHA) permissible exposure limit, American Conference of Governmental Industrial Hygienists threshold limit value, and any other exposure limit used or recommended by the chemical manufacturer, importer, or employer preparing the material safety data sheet, where available;

(j) Whether the hazardous chemical is listed in the National Toxicology Program (NTP) Annual Report on Carcinogens (latest edition) or has been found to be a potential carcinogen in the International Agency for Research on Cancer (IARC) Monographs (latest editions), or by the occupational safety and health act;

(k) The date of preparation of the material safety data sheet or the last change to it;

(l) The name, address, and telephone number of the chemical manufacturer, importer, employer, or other responsible party preparing or distributing the material safety data sheet, who can provide additional information on the hazardous chemical and appropriate emergency procedures, if necessary; and

(m) Any additional information the department may require.

If no relevant information is found for any given category on the material safety data sheet, the chemical manufacturer, importer, or employer preparing the material safety data sheet shall mark it to indicate that no applicable information was found.

Where complex mixtures have similar hazards and contents, i.e., the chemical ingredients are essentially the same, but the specific composition varies from mixture to mixture, the chemical manufacturer, importer, or employer may prepare one material safety data sheet to apply to all of these similar mixtures.

The chemical manufacturer, importer, or employer preparing the material safety data sheet shall make every reasonable effort to ensure that the information recorded accurately reflects the scientific evidence used in making the hazard determination. If the chemical manufacturer, importer, or employer becomes newly aware of any significant information regarding the hazards of a chemical, or ways to protect against the hazards, this new information shall be added to the material safety data sheet within three months. If the hazardous substance is not currently being produced or imported, the chemical manufacturer or importer shall add the new information to the material safety data sheet before the hazardous substance is introduced into the workplace again.

(16) "Mixture" means any combination of two or more chemicals if the combination is not, in whole or in part, the result of a chemical reaction.

(17) "Nonhazardous substance" means any item not included in workplace or special health hazardous substance lists as prepared by the department pursuant to section 2 of this act.

(18) "Process container" means:

(a) A container, excluding a pipeline, the content of which is changed frequently;

(b) A container into which substances are transferred from labeled containers, and which is intended only for the immediate use of the employee who performs the transfer;

(d) A test tube, beaker, vial, or other container which is routinely used and reused;

(e) The employer may use signs, placards, process sheets, batch tickets, operating procedures, or other written materials in lieu of affixing labels to individual process containers, as long as the alternative method identifies the containers to which the label is applicable and conveys the information required by section 11 of this act to be on a label. The written materials shall be readily accessible to the employees in their work area throughout each work shift;

(f) The employer is not required to label portable containers into which hazardous chemicals are transferred from labeled containers, and which are intended only for the immediate use of the employee who performs the transfer.

(19) "Research and development laboratory" means a specially designated area used primarily for research, development, teaching, and testing activity, and not primarily involved in the production of goods for commercial sale, in which hazardous substances or environmental hazardous substances are used by or under the direct supervision of a technically qualified person.

(20) "Special health hazard substance" means any hazardous substance that may be considered especially hazardous to health and safety because of its known carcinogencity, mutagenicity teratogencity flammability, explosiveness, corrosivity, or reactivity. A special health substance cannot be claimed as a trade secret by the manufacturer, importer, or employer.

(21) "Special health hazard substance list" means the list of special health hazard substances developed by the department under section 2 of this act.

(22) "Technically qualified individual" means a person who, because of education, training, or experience, understands the health risks associated with the hazardous substance or mixture handled by or under his or her supervision.

(23) "Trade secret" has the definition found in the uniform trade secrets act, RCW 19.108.010(4).

(24) "Work area" means a room or defined space in a workplace where hazardous substances are produced or used and where employees are present.

(25) "Workplace" means an establishment at one geographical location containing one or more work areas.

(26) "Workplace hazardous substance list" means the list of health hazard substances developed by the department under section 2 of this act for which a manufacturer or supplier may make a trade secret claim.

NEW SECTION. Sec. 2. The department of labor and industries shall develop special health hazard and workplace hazardous substance lists in accordance with rules adopted under chapter 34.04 RCW.

(1) The workplace hazardous substance list shall include:

(a) Any substance or a substance contained in a mixture regulated under the Washington industrial safety and health act, chapter 49.17 RCW;

(b) Those environmental hazardous substances designated by the federal Environmental Protection Agency pursuant to section 307 and 311 of the federal Clean Water Act of 1977 (33 U.S.C. Secs. 1317 and 1321 respectively) or as hazardous air pollutants pursuant to section 112 of the federal Clean Air Act (42 U.S.C. Sec. 4712) as amended, which have known adverse human health risks;

(d) Substances for which an information alert has been issued by the department; and

(e) Any other substance which the department, based on documented scientific evidence, determines may reasonably pose a threat to the health or safety of an employee.

(2) The special health hazard substance list shall include hazardous substances that may be considered especially hazardous to health and safety because of their known carcinogencity, mutagenicity, teratogencity, flammability, explosiveness, corrosivity, or reactivity. A special health substance cannot be claimed as a trade secret by the manufacturer, importer, or employer.

(3) Within one hundred twenty days of receipt of the special health hazard and workplace hazardous substance lists from the department, the employer or user shall provide copies of these lists to the manufacturers or suppliers who are not supplying material safety data sheets with their products that contain hazardous substances found on the list. The manufacturer or supplier shall respond to an employer's or user's request within thirty days of the receipt of the request.

(4) The department shall develop by rule, in accordance with chapter 34.04 RCW, criteria by which hazardous substances may be placed or deleted from the lists established under this section.

NEW SECTION. Sec. 3. (1) The department shall develop a workplace survey designed to facilitate the reporting by employers of those hazardous substances present at their facilities. The workplace survey shall include:

(a) A copy of the special health hazard and workplace hazardous substance lists;

(b) A description of the use of the hazardous substances at the facility;

(c) The maximum inventory of the hazardous substances used at the facility, the method of storage, and the frequency and methods of transfer.

(2) All facilities regulated under chapter 70.94 RCW shall list on the workplace survey any hazardous substances which they emit as point or nonpoint air emissions and estimate total annual discharge.

(3) All facilities regulated under chapter 90.48 RCW shall list on the workplace survey the:

(a) Total discharge of the hazardous substance into the surface or ground water;

(b) Treatment method of that discharge;

(d) Total discharge into publicly owned treatment works.

(4) All facilities regulated under chapter 70.105 RCW shall list on the workplace survey:

(a) The quantity and methods of disposal of any wastes;

(b) The method of on-site storage;

(d) The identity of the hauler of the wastes.

(5) The department shall transmit the workplace survey to each employer in the state no later than April 1, 1986.

(6) Within one hundred eighty days, an employer shall complete the survey and transmit a copy of the completed survey to the department. If this deadline presents a hardship to the employer the department shall grant an extension.

(7) If an employer has reason to believe that a mixture present at the workplace contains a hazardous substance as a component, but is unable to obtain from the manufacturer or supplier of the mixture the chemical names and chemical abstracts service numbers of the hazardous components of the mixture, the employer shall list the mixture by its common name in the space provided on the survey. The department shall have the responsibility of obtaining the material safety data sheet, and, upon obtaining this information, shall transmit it to the employer.

NEW SECTION. Sec. 4. (1) The manufacturer or supplier of any product used or brought into the state, which product contains hazardous substances as listed pursuant to section 2 of this act, shall prepare and provide its purchasers of the product and the department with a material safety data sheet or sheets containing information specified in section 1(15) of this act. The manufacturer or supplier shall make every reasonable effort to ensure that the information contained in each material safety data sheet is current, accurate, and complete. Failure to provide current, accurate, and complete information as required by this section shall result in civil and criminal penalties as provided in chapter 49.17 RCW.

(a) This material safety data sheet shall be provided to the purchaser and to the department at the time of initial shipment and with the first shipment after each update of the material safety data sheet.

(b) The manufacturer or supplier shall revise a material safety data sheet on a timely basis regarding new information that affects the accuracy of the existing material safety data sheet. If the new information indicates increased risks or additional measures necessary to protect employee health as compared to those stated on the material safety data sheet previously provided, the manufacturer or supplier shall provide the new material safety data sheet to the department and to those who have purchased the product directly from the manufacturer or supplier within the last year.

(2) The manufacturer or supplier may provide the information required by section 1(15) of this act on an entire product mixture instead of on each hazardous substance in it when all of the following conditions exist:

(a) Hazard test information exists on the mixture itself, or adequate information exists to form a valid judgment of the hazardous properties of the mixture itself and the material safety data sheet indicates that the information presented and the conclusions drawn are from some source other than direct test data on the mixture itself, and that a material safety data sheet on each constituent hazardous substance identified on the material safety data sheet is available on request;

(b) Providing information on the mixture will be as effective in protecting employee health as information on the ingredients; and

(c) The hazardous substances in the mixture are identified on the material safety data sheet unless it is either unfeasible to describe all the ingredients in the mixture or the identity of the ingredients is itself a valid trade secret. In either case, the reason why the hazardous substances in the mixture are not identified shall be stated on the material safety data sheet.

(3) A single mixture material safety data sheet may be provided for more than one formulation of a product mixture if the information provided pursuant to section 1(15) of this act does not vary for the formulation.

NEW SECTION. Sec. 5. The department shall establish, by rule, procedures which assure that local fire and police departments will have ready access to any workplace surveys or material safety data sheets of employers in their jurisdictions. In addition, the department shall establish, by rule, procedures which assure that members of the public have ready access to the workplace surveys or material safety data sheets of employers in their county.

NEW SECTION. Sec. 6. (1) The manufacturer or supplier may make a trade secret claim to the department. Such a trade secret claim does not relieve the manufacturer or supplier from the duty to provide the department with the material safety data sheet. The department shall, by rules adopted in accordance with chapter 34.04 RCW, establish criteria to determine whether the trade secret claim is warranted, and if warranted set forth procedures for the transmittal of information obtained on the material safety data sheet to the employer while providing protection for the trade secret. While the trade secret claim is under review, a manufacturer or supplier may withhold the chemical name of a hazardous substance from the label required by section 11 of this act and the material safety data sheet required by section 4 of this act. For any trade secret claim, the manufacturers or producers shall compensate the department for expenses incurred in evaluating the validity of that claim.

(2) Any challenge to the denial of a trade secret claim shall be heard by an administrative law judge in accordance with chapter 34.04 RCW.

NEW SECTION. Sec. 7. (1) The department shall maintain a file of all completed workplace surveys and material safety data sheets received pursuant to sections 2, 4, and 5 of this act. The workplace surveys and material safety data sheets shall be retained by the department for thirty years.

(2) Copies of records maintained on microfiche shall be admissible evidence in any judicial or administrative proceeding.

(3) The department shall require employers who have hazardous substances present at their workplaces to update annually the workplace survey for the employer's workplace.

(4) The department shall require all employees to complete a workplace survey at least once every five years.

(5) Any person may request from the department a copy of a workplace survey for a workplace, together with the appropriate material safety data sheets. The department shall honor the request as soon as possible. A "community right-to-know" state-wide toll-free telephone number shall be made available by the department to receive workplace survey and material safety data sheet requests. The department may impose reasonable limits on requests made under this section and may establish reasonable fees to be charged for copies. Any request by an employee for material pertaining to the workplace where the employee is employed made pursuant to this subsection shall be treated by the department as confidential.

NEW SECTION. Sec. 8. Every employer shall establish and maintain a central file at that employer's workplace in which the employer shall retain a workplace survey for the workplace and appropriate material safety data sheets. Every employer shall post on bulletin boards readily accessible to employees a notice of the availability of the information in the file. Every employer shall supply employees with any material designed and provided by the department to inform employees of their rights under this chapter.

NEW SECTION. Sec. 9. (1) Within three working days of receipt of a written request from an employee or the employee's designated representative, employers shall make available as soon as possible without interrupting normal work operations, any requested workplace surveys or material safety data sheets for hazardous substances in the workplace.

(2) If the material safety data sheet is not on file with the employer and it has been requested from the manufacturer or supplier in accordance with section 2 of this act, the employer shall, on behalf of the employee, so notify the department and identify the product and manufacturer or supplier and trade name to the department.

(3) If the material safety data sheet is not on file with the department, the department shall request the manufacturer or supplier to furnish:

(a) The most current material safety data sheet; or

(b) A statement that the material safety data sheet is under development and the estimated completion date; or

(4) The manufacturer or supplier shall provide a response to the department's request under subsection (3) of this section within fifteen days of the receipt of the request.

(5) The department shall supply the employer and employee with copies of the response.

NEW SECTION. Sec. 10. Every employer or group of employers shall establish or use an existing education and training program for that employer's employees, which shall be designed to inform employees in writing and orally of the nature of the hazardous substances to which they are exposed in the course of their employment and the potential health risks which the hazardous substances pose, and to train them in the proper and safe procedures for handling the hazardous substances under reasonably forseeable circumstances. However, employers whose employees are not subject to exposure to hazardous substances except as the result of an accidental discharge shall only be required to train employees in the proper procedures to follow in case of such accidental discharge. An employer shall provide current employees with the education and training program by November 1, 1986, and annually thereafter. Beginning November 1, 1986, all new employees shall be provided with the training and education program within the first month of employment. At the time of entering an employment agreement with a prospective employee, an employer shall notify a prospective employee of the availability of workplace surveys and appropriate material safety data sheets for the workplace at which the prospective employee will be employed.

NEW SECTION. Sec. 11. (1) A company or individual who manufactures, imports, or distributes a hazardous substance or mixture containing a hazardous substance and who supplies the substance or mixture to an employer in the state shall label all such substances and mixtures by the chemical or common name, chemical abstract service number if assigned, and the appropriate hazard warnings. These labels shall be updated whenever the product mix is changed or if the manufacturer becomes aware of any information which is both new and significant regarding the health hazard of a component of the product.

(2) By November 1, 1986, every employer shall take any action necessary to assure that every container at the employer's workplace containing a hazardous substance shall bear a label indicating the chemical name, the chemical abstracts service number, if assigned, and the appropriate hazard warnings in accordance with chapter 49.17 RCW.

(3) The labeling requirements of subsections (1) and (2) of this section shall not apply to containers labeled pursuant to the "Federal Insecticide, Fungicide, and Rodenticide Act" (61 Stat. 163; 7 U.S.C. sec. 121 et al.). The department may, by rule, certify containers labeled pursuant to any other federal act as labeled in compliance with this section.

(4) In cases of pipes or piping systems, a fixed storage tank, or a reaction vessel, an employer may choose to convey the information required by this section by posting signs, placards, or operating instructions, or other methods rather than affixing labels. For any pipe or piping system, the information required by this section shall be provided at points where direct employee exposure to the toxic or hazardous substance contained in the pipe or piping system is likely to occur under normal operating conditions.

(5) The employer is not required to label portable containers into which hazardous chemicals are transferred from labeled containers, and which are intended only for the immediate use of the employee who performs the transfer.

NEW SECTION. Sec. 12. For those employees who communicate primarily in a language other than English, employers shall make a reasonable effort to inform such employees of their rights under this chapter including notification of the availability of workplace surveys and material safety data sheets. When necessary or desirable, the department shall prepare and, upon request, make available to the employers and the public a translation of the workplace survey and material safety data sheets. The department shall also prepare and make available, when necessary or desirable, translations of written material prepared by the department to inform employees of their rights under this chapter.

An employer shall ensure that all employees, regardless of any language barriers, are provided with a suitable education and training program required pursuant to section 11 of this act.

NEW SECTION. Sec. 13. The department, in conjunction with the council, shall establish a procedure for annually receiving information, advice, testimony, and recommendations from the council, the public, and any other interested party concerning the implementation of this chapter. This procedure shall include a mechanism for revising the special health hazard and workplace hazardous substance lists. Any revision of the special health hazard and workplace hazardous substance lists shall be based on documented scientific evidence. The department shall publicly announce any revisions of the special health hazard and workplace hazardous substance lists, and any such additions or revisions shall be made pursuant to chapter 34.04 RCW.

NEW SECTION. Sec. 14. Substances not included on the special health hazard and workplace hazardous substance lists shall not be subject to the reporting provisions of this chapter. However, the absence of any substance from the special health hazards or workplace hazardous substance lists, or the provision of any information by an employer to an employee or any other person pursuant to the provisions of this chapter shall not affect any other liability of an employer with regard to safeguarding the health and safety of an employee or any other person exposed to the substance, nor shall it eliminate any other duty or responsibility of an employer to warn ultimate users of a substance of any potential health hazards associated with the use of the substance pursuant to the provisions of any law or rule adopted pursuant thereto.

NEW SECTION. Sec. 15. Sections 1 through 14 of this act are each added to chapter 49.70 RCW.