HP0490, LD 699, item 1, An Act To Enact the Toxic Chemicals in the Workplace Act

An Act To Enact the Toxic Chemicals in the Workplace Act

Be it enacted by the People of the State of Maine as follows:

Sec. 1. 26 MRSA c. 23 is enacted to read:

CHAPTER 23

TOXIC CHEMICALS IN THE WORKPLACE ACT

§ 1731. Short title

This chapter may be known and cited as "the Toxic Chemicals in the Workplace Act."

§ 1732. Definitions

As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings.

1. Affected employee. "Affected employee" means an employee who in the course of employment works with, is in close contact with or otherwise has the potential to be exposed to a highly toxic chemical.

2. Alternative. "Alternative" means a substitute process, product, material, chemical, strategy or combination of these that serves a functionally equivalent purpose to a chemical or chemicals used in the workplace.

3. Alternative chemical work plan. "Alternative chemical work plan" or "plan" means a plan developed under section 1734.

4. Authoritative bodies. "Authoritative bodies" means the United States Department of Health and Human Services, National Toxicology Program, Food and Drug Administration and Centers for Disease Control and Prevention; the United States Environmental Protection Agency; the World Health Organization; and the European Union, European Chemicals Agency.

5. Chemical. "Chemical" means any substance or mixture of substances and may be a substance with a distinct molecular composition or a group of structurally related substances and includes the breakdown products of the substance or substances that form through decomposition, degradation, metabolism or other chemical process.

6. Credible scientific evidence. "Credible scientific evidence" means the results of a study, the experimental design and conduct of which have undergone independent scientific peer review, that are published in a peer-reviewed journal or publication of an authoritative federal or international governmental agency, including, but not limited to, the authoritative bodies.

7. Department. "Department" means the Department of Labor.

8. Employee. "Employee" means a current employee, a former employee or a person who may be permitted, required or directed by an employer in consideration of direct or indirect gain or profit to engage in any employment activities.

9. Employer. "Employer" means an individual, partnership, association, corporation, legal representative, trustee in bankruptcy or any common carrier by rail, motor, water or air or express company doing business or operating within the State:

A. That is engaged in the manufacture within the State of products for sale or distribution in the State, nationally or internationally;

B. That is engaged in any employment activities within the State involving the use or storage in the workplace of methylene chloride or perchloroethylene;

C. That is engaged in any employment activities within the State involving the use or handling of chemicals by employees in the workplace or involving chemicals that are stored, generated, located or otherwise present in the workplace; or

D. That is engaged in any employment activities within the State that include a workplace constructed of materials, and equipment in and around the workplace, that under normal conditions of use, construction or repair release a highly toxic chemical that poses a health risk to employees.

10. Highly toxic chemical. "Highly toxic chemical" means a chemical that, as based on credible scientific evidence, has a significant potential for harm to human health.

11. Safer alternative. "Safer alternative" means an alternative that, when compared to a highly toxic chemical that it could replace, would reduce the potential for harm to human health or that has not been shown to pose the same or greater potential harm to human health as that highly toxic chemical.

12. Transition team. "Transition team" or "team" means the team designated by an employer pursuant to section 1734.

13. Workplace. "Workplace" means any plant, yard, premises, room or other place where an employee or employees are engaged in the performance of labor or service over which the employer has the right of access or control.

§ 1733. Designation of chemicals

A chemical for which there is credible scientific evidence that the chemical is a carcinogen, a mutagen, a reproductive toxin, a developmental toxin, an endocrine disruptor or a neurotoxicant is designated a highly toxic chemical and is regulated by this chapter.

1. Consult material safety data sheets. The employer shall consult material safety data sheets under the United States Occupational Safety and Health Act of 1970 for a chemical in the workplace to determine if the chemical is classified as a carcinogen, a mutagen, a reproductive toxin, a developmental toxin, an endocrine disruptor or a neurotoxicant and is a candidate for transitioning to a safer alternative.

2. Consult databases of authoritative bodies. The employer shall consult the databases of authoritative bodies to determine if a chemical in the workplace is classified as a carcinogen, a mutagen, a reproductive toxin, a developmental toxin, an endocrine disruptor or a neurotoxicant and is a candidate for transitioning to a safer alternative.

3. Department website. The department shall publish and periodically update on its publicly accessible website lists of online databases that identify highly toxic chemicals subject to regulation under this chapter.

§ 1734. Alternative chemical work plan; transition team

As described in this section, an employer shall develop and implement a written alternative chemical work plan and designate a transition team.

1. Plan contents. The plan must include a general description of the process the employer intends to implement in transitioning from highly toxic chemicals in the workplace to safer alternatives, describe the responsibilities of and tasks to be completed by each team member and include any additional information as required by the department by rule. If multiple chemicals are considered by the employer for transition to safer alternatives, the employer may develop a separate plan for each chemical or may address all chemicals in a single plan. The employer shall update the plan as necessary to include additional information as required by sections 1735, 1736, 1737, 1738, 1739, 1741 and 1744.

2. Transition team. The employer shall select individuals to serve as the transition team to assist in the development and implementation of the plan. Team members must include:

A. The employer or a representative of the employer;

B. An employee or an employee representative; and

C. At least one affected employee. If multiple chemicals are considered for transition in a single plan, an affected employee for each chemical must be included on the team.

Additional team members may include managers, supply chain partners, customers, marketers, health and safety committee members, safety engineers, industrial hygienists, occupational health nurses or physicians and occupational health consultants.

§ 1735. Identification of highly toxic chemicals

The transition team described in section 1734, subsection 2 shall develop a written inventory of all chemicals, both toxic and nontoxic, that are used by employees in the workplace or that are stored, located or otherwise present in the workplace. For each identified chemical, the transition team shall determine and record whether the chemical is presently designated a highly toxic chemical as described in section 1733. Information developed and collected under this section must be added to the alternative chemical work plan.

§ 1736. Transition priorities

The transition team described in section 1734, subsection 2 shall develop a priority ranking of all highly toxic chemicals identified under section 1735 for use in determining priority for transition to safer alternatives. The transition team may consider other chemicals, both toxic and nontoxic, in a separate priority ranking. In developing a priority ranking, the transition team shall, at a minimum, consider for each highly toxic chemical:

1. Exposure potential. The frequency with which employees are exposed to the highly toxic chemical or the likelihood of potential employee exposure to the highly toxic chemical;

2. Associated harms. The potential harms associated with the highly toxic chemical as based on information available to the employer; and

3. Alternatives analysis. An analysis of the anticipated difficulty of transitioning to a safer alternative, both from a technical and from a financial perspective, as determined under section 1737.

Information developed and collected under this section must be added to the alternative chemical work plan.

§ 1737. Alternatives analysis

For each highly toxic chemical identified under section 1735, the transition team shall develop an alternatives analysis that must:

1. Alternatives. Identify all alternatives that can potentially and reasonably be substituted in place of the highly toxic chemical. The employer shall contact chemical suppliers and manufacturers for possible safer alternatives;

2. Effects. Evaluate the potential effects of transitioning to each alternative, including, but not limited to, effects on energy use, water use, the environment and employee health and safety;

3. Harms. Describe any potential harms associated with the alternative; and

4. Costs. Provide a detailed financial analysis of the potential short-term and long-term costs of substituting each alternative for a highly toxic chemical.

The transition team shall review the analysis developed under this section and the priority ranking developed under section 1736 and shall determine the highly toxic chemicals identified under section 1735 for which safer alternatives will be tested and evaluated for transition under section 1738. Information developed and collected under this section must be added to the alternative chemical work plan.

§ 1738. Testing, evaluation and implementation of safer alternative

1. Develop testing process. After review of all information generated or collected under sections 1736 and 1737, the transition team shall, for each highly toxic chemical, determine whether to proceed with testing and evaluation of an alternative that the transition team determines to be a safer alternative. The transition team shall develop and implement a process for testing and evaluating the feasibility of transition to a safer alternative.

2. Transition. If, after testing and evaluation of the safer alternative pursuant to subsection 1, the transition team elects to proceed with transition on a permanent basis, the transition team shall develop and recommend a process for implementing a permanent transition to the safer alternative.

3. Permanent transition. If the transition team recommends permanent transition pursuant to subsection 2 to the safer alternative and the safer alternative analysis under sections 1736 and 1737 and the testing and evaluation under subsection 1 are favorable, the employer shall, with the transition team, develop and implement a process for permanent transition to the safer alternative.

4. Process for decision of no transition. If the employer elects not to proceed with permanent transition pursuant to subsection 3, the employer shall record the basis for its decision. The employer may not elect not to proceed with permanent transition without proper justification. If the results of the safer alternative analysis under sections 1736 and 1737 and the testing and evaluation under subsection 1 are favorable, the employer's decision not to proceed with the safer alternative is not justified.

If the employer elects not to proceed with the use of the safer alternative, the employer shall submit a report to the department detailing the basis for not proceeding.

5. Additional information for work plan. Information developed and collected under this section must be added to the alternative chemical work plan.

§ 1739. Discontinuance of safer alternative

1. Discontinuance of safer alternative. At any time following completion of the permanent transition process to a safer alternative under section 1738, subsection 3, the employer may determine that substitution of the safer alternative is no longer technically, financially or otherwise feasible and elect to discontinue use of the safer alternative only if the provisions of subsections 2 and 3 are met.

2. Justification of discontinuance. The employer may not discontinue use of a safer alternative following completion of the permanent transition process under section 1738, subsection 3 without proper justification. To justify a decision to discontinue use of the safer alternative, the employer shall, with the transition team, conduct another safer alternative analysis under sections 1736 and 1737 and review the testing and evaluation under section 1738, subsection 1. If the results of the safer alternative analysis and testing and evaluation continue to be favorable, the employer has not justified a decision to discontinue use of the safer alternative.

3. Report of discontinuance. If the employer elects to discontinue use of a safer alternative under subsection 1, the employer shall submit a report to the department detailing the basis for discontinuance. Information developed and collected and reports submitted under this section must be added to the alternative chemical work plan.

§ 1740. Self-audit by employer

Every 3 years, an employer shall certify that the employer has audited the employer's compliance with this chapter. The audit must include review of the highly toxic chemicals previously identified in the alternative chemical work plan and review of whether there are new highly toxic chemicals to be evaluated for transitioning to safer alternatives. The employer shall develop a report of the audit findings and the response to the findings and shall also document that any deficiencies have been corrected. The audit report under this section must be added to the alternative chemical work plan, and the employer shall retain the 2 most recent audit reports on file pursuant to section 1742.

§ 1741. Reporting requirements

The employer shall annually submit to the department a report describing the employer's progress with identifying highly toxic chemicals, priorities for transition and all ongoing or completed transitions to safer alternatives and shall include in the report any additional information as determined by the department by rule. Following completion of each permanent transition to a safer alternative, the employer shall submit to the department a final report describing the transition process and including any additional information as determined by the department by rule. The employer shall, on request and within a reasonable period of time not to exceed 30 days, provide to the department a progress report on any activities related to this chapter and any ongoing transition to a safer alternative. Information developed and collected and reports submitted under this section must be added to the alternative chemical work plan.

§ 1742. Records retention

An employer shall maintain information developed, collected or otherwise generated by the employer or a transition team under this chapter regarding the transition to a safer alternative for 5 years following the submission of the report to the department regarding the completed transition to the safer alternative as required under section 1741.

An employer shall maintain information developed, collected or otherwise generated by the employer or a transition team under this chapter regarding the election not to proceed with a permanent transition and the discontinuance of a safer alternative previously transitioned to for 3 years following the submission of the report to the department regarding the election not to proceed as required under section 1738 or the discontinuance of the safer alternative as required under section 1741.

§ 1743. Access to information

1. Employee access. Upon the written or oral request of an employee or an employee representative for specific information developed, collected or otherwise generated under this chapter, the employer shall, within 15 working days, provide any information in its possession that is responsive to the request.

2. State access. Upon the written or oral request of the department or the Department of Health and Human Services, Maine Center for Disease Control and Prevention for specific information developed, collected or otherwise generated under this chapter, the employer shall, within 15 working days, provide any information in its possession that is responsive to the request.

§ 1744. Annual employee training and informational materials

The transition team must develop, implement and annually revise employee training and informational materials related to the alternative chemical work plan, including identifying highly toxic chemicals and priorities for transition, and any ongoing or completed transitions to safer alternatives under this chapter.

An employer shall conduct annual employee training following the employee information and training section of the United States Department of Labor, Occupational Safety and Health Administration's globally harmonized system of classification and labeling of chemicals as found in 29 Code of Federal Regulations, Section 1910.1200(h).

When relevant, training and informational materials developed under this section must be added to an alternative chemical work plan.

§ 1745. Enforcement and penalties

The department shall enforce the provisions of this chapter and may impose penalties for violations of this chapter.

1. Inspections for compliance. During normal business hours, the department may conduct unannounced site inspections of an employer's workplace to determine employer compliance with this chapter. If an inspection conducted by the department pursuant to this subsection is based in whole or in part on an employee complaint previously filed with the department, the department shall ensure that any information contained in the complaint that might identify the employee or employees who filed the complaint is afforded confidentiality protection.

2. Penalties. An employer who violates any provision of this chapter commits a civil violation for which a fine of not more than $1,000 for each violation may be adjudged.

§ 1746. Rulemaking

The department shall adopt rules to implement the provisions of this chapter. Rules adopted pursuant to this section are major substantive rules as defined in Title 5, chapter 375, subchapter 2-A.

§ 1747. Effective date

This chapter is effective September 1, 2018.

Sec. 2. Department of Labor; major substantive rulemaking. By January 1, 2018, the Department of Labor shall provisionally adopt and submit to the Legislature for review rules related to the Toxic Chemicals in the Workplace Act established pursuant to the Maine Revised Statutes, Title 26, chapter 23. Rules adopted pursuant to this section are major substantive rules as defined in Title 5, chapter 375, subchapter 2-A.

SUMMARY

This bill enacts the Toxic Chemicals in the Workplace Act to create a statutory and regulatory framework designed to prevent harm to employees by reducing exposure to highly toxic chemicals in the workplace and thereby decrease the rates of cancer and other chronic diseases in the State, improve workplace chemical management and safety and ensure safer workplaces and healthier communities.

This bill specifically:

1. Directs employers to identify highly toxic chemicals and directs the Department of Labor to publish lists of online resources that identify highly toxic chemicals;

2. Requires employers subject to the provisions of the Act to develop and implement a written alternative chemical work plan and designate a transition team to assist in transitioning from highly toxic chemicals in the workplace to safer alternatives;

3. Directs the transition team to inventory all chemicals in the workplace, both toxic and nontoxic, and determine which chemicals have been designated as highly toxic chemicals;

4. Requires the transition team to develop a priority ranking of all identified highly toxic chemicals, based on a number of criteria, to assist in determining which chemicals will be transitioned to safer alternatives;

5. Directs the transition team, as part of developing the priority ranking, to conduct for each highly toxic chemical an alternatives analysis that includes, among other things, a detailed financial analysis of the costs of substituting an alternative;

6. Requires the transition team to decide which alternatives to highly toxic chemicals are safer alternatives and which safer alternatives should be tested and evaluated for permanent transition. After testing and evaluation of selected safer alternatives, the employer, with the transition team, may elect to transition to a safer alternative on a permanent basis;

7. Requires an employer to contact chemical suppliers and manufacturers for possible safer alternatives and to implement a process for permanent transition to the safer alternatives. If the employer elects not to use safer alternatives, the employer must submit a report to the Department of Labor detailing the basis for not proceeding with the transition to the safer alternatives;

8. Requires employers to complete self-audits for compliance with this Act;

9. Stipulates reporting and records retention requirements for the employer, as well as guidelines for access to information by employees and state agencies;

10. Requires annual employee training that follows the United States Department of Labor, Occupational Safety and Health Administration's globally harmonized system of classification and labeling of chemicals;

11. Requires the Department of Labor to enforce the provisions of the Act and authorizes the department to issue penalties for violations of the Act;

12. Requires the Department of Labor to adopt all rules necessary to implement the provisions of the Act;

13. Stipulates an effective date for the Act of September 1, 2018; and

14. Directs the Department of Labor, by January 1, 2018, to submit for legislative review major substantive rules related to the Act.

HP0490 LD 699	Session - 128th Maine Legislature		LR 1218 Item 1
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