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DRAFT January' 25, 19'~93 22 CALIFORNIA CODE OF REOULATION'SI DIVISIONi2 CHAPTER 3. SAFE DRINKING WATER AND TOXIC EI+TFORCEMENT ACT OF 1986 Method of' Indicating Changes The text of this draftf proposal is based upon the current language of sections 12201 and 12601 of title 22 of the California Code of Regulations. Clear text represents language of the current regulation. Proposed'changes: to existing regulations made in the draft dated June 9, 1992 are shown as underlined text and strikeouts, the underlined text representing additions and the strikeouts representing deletions. Proposedl changes made since the June 9th draft are indicated as foi'lows: Additions are depicted as double-underlined! text. Text added by the June 9th draft which is proposed to be deleted'is shown as underlined and struck-throuah text. New deletions are shown as jouble-underlined and struck-through text. ARTICLE,2. DEFINITIONS 122'01. Definitions Unless otherwise provided the definitions set forth in this article shall apply for purposes of this chapter and Chapter 6.6,, commencirng with section 252:49.5 of the Health and Safety Code.. 12202. Act f 3}-Fer-pe~rpeses-ef-thie-elkapter- "Act" means the Safe Drinking Water and: Toxic Enforcement Act of 1986 (Health and ~. Safety Code Sections 25249.5' et seq.). 12205. fe} Discharge or Release to Water or Land. f+}(a) The term "water" includes both surface and ground' water. f2}u "'ProbabIy will pass into~ any source of' drinking water" refers to~a discharge, or release which more likely than not will pass into any source of drinking water.

DRAFTi -2- ,J~anuary 25, 1993, fa}_LQJ "Discharge or release into water or onto or into~ land"' includes a discharge or release to air that is directly and immediately deposited into water or onto, land. {*'},(d) Except as provided in paragraphs f5}(el and f6}Ltj, "discharge or release into, water or onto or into land" includes the direct or indirect transfer by any person within the meaning of Health and Safety Code Section 2524'9.11 (a) for the purpose of'f discharging or releasing the chemical to land or water in a manner which, if committed by the transferor,, would violate Health and Safety Code Section 25249.5. f5*e "'Discharge or release into water or onto or into land"' does not include the sale, exchange or other transfer of a, chemical to: a solid waste disposal facility as defined in: Sections 6167'14 and 667'19: of the Government Code, or a hazardous waste facility as defined in Health and Safety Code 25117.1 provided that the disposal to such facility complies with all applicable state and federal statutes, rules, regulations, permits, requirements and orders. "Sale, exchange or otherr transfer," as used in this paragraph, does not include disposal to a facility owned or operated by the transferor. t6}(f) "'Discharge or release into water or onto or into land" does not include the sale, exchange or other transfer of a chemical to any treatment works as defined in, 3'3 United States. Code Section 1292 provided! that the discharge or release to such treatment works complies with alli applicable standards and limitations imposed', and'permits required, under federal law or

DFtAFT January 25', 1993 an approved state progiraza. "Sale, exchange or other transfer," as used in this paragraph, does not include disposal to a facility owned'or operated by the transferor. 12207o fe} Employee. The.term "employee" shall have the same meaning as it does in Unemployment Insurance Code Section 621 1 and in Labor Code Section, 3351. Generally, and without liimiting the applicability of the definitions in these two statutes, this means that an employee is a person who performs services for remuneration under any appointment or contract of hire or apprenticeship, express or implied,, oral or written, whether lawfully or unlawfully employed. In computing whether a person employs ten or fewer employees in his business, all full-time and part-time employees on the date on which the discharcie, release or exposure occurs must be counted. Thus, the prohibitions on discharge or release and' exposures to certain chemicals will apply to any person who! has '\ ten or more full-time or part-time employees on the date in question. 12209. fft Expose. The term "expose" means to: cause to ingest, inhale, contact via body surfaces or otherwise come into, contact with a chemical. An individual may come into contact with a chemical through

D R A F T' January 25, 1993 -4- water, air, food, consumer products and any other environmental exposure as well as occupational or workplace exposures. 12215. {e} In The Course of Doing Business per-perpeaes-ef-Heefth-eusd-SafetY-Hede-6eetiens-2 52 49-S -and i5a49-6'; -utft (a) "In the course of doing business" means any act or omission, whether or not for profit, except: (1) as excluded by subdivision (b) of Section 252491.11 of the Health andiSafety Code; or (2) when caused by acts'of war or grave and irresistible natural disasters such that no reasonable amount of'resistance or advance preparation would be sufficient to avoid the discharge, release or exposure. frs~~he-2eesrse-ef-9e3ng-Bnsir~esa;-~sets-ef-~mpfe~reas- (b) "In the course of doing business" includes any act or. omission of'any employee which furthers the purpose or operation of'the business, or which is expressly or implicitly authorized,, except for the personal use, consumption or production of listed chemicals by an empIoyee on the business premises or while performing activities for the business, unless the employer knows or should know that such use, consumption or production wilil expose other individuals within the meaning of Health and!Safety Code Siection 25249.6 to a listed chemical.

DRAFT' -5- January 25,, 1993 12216. Intentionally "Intentionally"' means that an exposure is the result of' a voluntary, deliberate act or omission by a person in the course of doing business. 12217. ~d} Knowingly u'Hnew4: ng f y" -ref era-enfr-te-knewl-edge-ef-ltMe-f aet-thnt-e dieeMerg,e-ef;-re~eeee-ef:,-er-expeee~re-te-e-ehemiea~-~3eted' persuent-te-Heefth-end-SefetY-eede-Seetie~rtr~5~f9~6- f e}-~a eeenrr#ng- "Knowingly"'means only that the person in the coursee of doinc business has actual knowledge of conditions making it more likely thaninot that the discharge, release, or exposure in ctuestion is occurring or will occur. In other words,, it must be proven that the person in the course of doing business had actual knowledkie of conditions which made it more likely thaninot that the dlischaretie, release, or exposure at issue in the enforcement action was occurrinct or would occur in order for civil penalties or injunctive relief to be imposed. No knowledge that the ~ discharge, release or exposure is unlawful is required. However, a person in the course of doing business who, through misfortune or accident and without evil design, intention or negligence, commits an act or omits to do something which results in a discharge, release or exposure has not violated Health and Safety Code 25249~-5' or 25249.6.

D R A F T January 25, 1993 ' -6- 12220. Listed Chemical., f,k} rer-purpeeee-ei-this-ehapter: -'++tsted "'Listed chemical" means a chemical listedpursuant to Health~and!Safety Code Section 25249.8', subsection (a). tg-~-Threatened"f}}ega}-83sehargesyr A-uthreatened!-i }-1 ega}-disehergeu -mearns-the-ereetsen-ef-a vendttien-er-the-taJttng-ef-m~n-aetien~whieh-is-3ntended-te-er-w#}} feresevab}Y-ereate-a-eubstantte}-prebabi}itY-that-an-i}}eg,e} d3eeharge-w}l}-eeenr- f'k}-Stabetent3a}-fn~er7r 'Plae-term-uenbetanti~}-3n~wrY'~-meane-a-rea}-end-isnmediata phYe'sea}-tn~arY-er~e-reew}ttr~g_edweree-ph~eive}-eenditien-ef-a aubetentia}-natere-te-ene-er-mere-pereeneT f #}-6enera }-pub} 'te-iEnew}edqe- ~he-term-ug~enera~}-pm,b}3e~kr~er+~edge~'-meana-}~new}edge-w~kte~e kae-been-d!ieoeminated-te-the-genera}-pnb}ie--tne}nd'3ng inf errnatien-tn-newspapers-ef-genera}-eirett}ati an-er-rad3e-er te}evtoien-reperts-3n-the-geegraphie-area-Offreted-by-the di'eknrge---fn-erd'er-te-demenetrete-genera3: -pedbie-3enew}edge; -it eha!}}-nat-be-neeesaazlr-te-pteve-that-enY-members-ef-the-ptab}3e have -eetea}}Y-aeqntred-etieh-itnew}edge-bmt-en}Y-that-the- infermatien-has-been-d3a oemiriatedlr NOTE: Authority cited: Section 25249.12, Health and, Safety Code!. Reference: 25249.5, 25249.6, 25249.9, 25249'.10, and 252'49'.11, Hiealthiand Safety Code.

DRAFT -7- January 25, 1993 AF2TICL.E' 6. CI.EAFt' AND REASOhtiABLE: WARNINGS 12601. C1!ear and Reasonable Warnings (a) Whenever a clear and reasonable warning is reqtitred iven under Section, 252419.6 of the: Health and' Safety Code, the method employed to transmit the warning and, the warning messaae must conform to the minimum criteria set forth in this sectioni. {b}--The-methed-empie7ed--een'ideri netthe-Qiternetitie :neth~ed'-eve3~eb~e--te~tresn'~nit-the-w~ern~ng-m~aet~tren'~~t-be reaeenabiy-ee+eckleted;-eeneider4a ng- the-eI ternetive-metheda eva3}ab~e-t~nder-the-eiret~~neteneee; -te-~nai~e-the-Warn3ng-~nee'age. eres~~ebie-te-the-indt~r~daei-the-Nern3n~-t~eesea~e-ee-thet-the expeacd-3ndividtac~-3e-reaeeneb~Y-~~3~e~Y-te-reee3We-end-t~nder'tand the-wernina-~neee~e ~e-prier-te-expeenre:--'~he-~aeeeage-2enet-e~enr~y eemmun3eate-that-the-ehem#enk-3n-queet3en-i e-3tner+n- te-the-stete te~enr~ee-enneer; -er-b~rth-defeete-er-ether-reprede~ett~re-ha~n- Nething~3n-thie-9eetien-eba~~-be-eenetr~ted-te-pree~nde-a-pereen f rem-previdi ngrwa rni ng,e-ether-then-these-spee#f +ed--in enbdi~3eiene~-{b};-~e},-,,p~md-{d~};-wh~eh~'ntief7-the-reqg3rements-ef th3e-e~bdt*+te3en, -er-te-reqetre-th~nt-~rnrn3x~ge~be-pre~r~ded eeperete~Y-te-eeeh-expeeed-~nd~v~3dme~- (b) The method or methods employed. considerinq the alternative methods awailable, must transmit the warninQ messacre so that the exposed individual is likely to receive and understand the warnina message prior to exposure.. (c) The warnincan message must clearlv:

D R A F T' January 25, 19193 -8- (1) inform the individual that he or she will be exposed to a chemical or chemicals known, to cause cancer, or birth defects or otherrep~roductiv& harm., (2) in the case of comsumer products excosures as defi'ned in section 1260'2. (A) identify.the vroduct fbr which the warning is given. SBI identify any listed chemical for which either of'the folliowina conditions exist: (i) the chemical is present in the product as a known component or inarredient, tnn~ees-exeeebre-te-the-ehemtea~-web}d-be e~e+c~net.-=re~n-the-warn~z~g-reeq~3re~n~ent-ee-dkterra~ned-petreeeMt-te Artie}e-~'-er-~rtte~e-8-ef-tl~~s-eheeterz-er~ however, if'exposure to the chemical would be exempt from the warni : na reauirement as determined!pu'rsuant to Article 7' or Article 8 of this chanter, the chemical needi rnot be identified.. (ii) the Aersoni in the course of' dpina business actually knows that an individual will be exposed to the listed chemicall as a result of the intended use of the prodiuct:-neless-the expoenre-te-th~e-eh~e~e3ea~-wan~d-be-exernpt-f~re~n-the-werr~3n9 t "ent-te-Avtie -7-e t S-eke t _ however i!_f.thee osure to the chemic_a1 would_b exempt from t he warnin re Qo irement_a_s determined ursuant t Article 7 or Article 8 of'this chapter. the chemical need not be identified.

DRAFT' January 25, 1993 (3) in the case of occupational exposures as d'ef ined in section 12602. identify eeeh any listed chemical for which either of the, followincx conditions exist: (A) r+hieh the.person in the course of'dbing business actually knows the employee will be: exposed to the listed chemical in the workplace-, -cgn+ese-the-eMpeeure-te-the-ehem3ea+ weta~d!-be-exernn~-frem-t~he-~+arn~ng= re~a~3re:aer~t'_ee-d~eterm3raed' para~ant-te-~irt~e~e-~-er-Art~e}e-9-ef-tk~s-chnpter--er, however, if'the exposure to the chemicali would be exempt fromthe warning recNirement as: determined pursuant to Article 7 or Article 8 of this chapter, the chemical need not be identified; or the chemical exposure te-wh3eh is subject to the federal Hazard Communication Standard~ (29 CFR section 1910.1200), or the California Hazard Communication Standard (Cal. Code Regs.,; title 8, section 5194'). Nothinqin this subsection shall be construed to relieve any person in the course of doingbusiness from prowiding awarning for chemical exposures which are not subiect to the.federali Hazard Communication Standard (29 CFFt >. section 1910._120!0)-er-Ehe-2a~3fern~e-Haaerd-~oa~n~r~3enC~e_n Stend'drd-f8nl--eeele-Regp:--tit3:e-8.-seetien-5i:94}. G4)in the case of environmental exposures as defined inn N ~ section 1260'.2, ~V. ~ SR,) identify any eaeh listed~ chemical for which the-werntng ~ ~. ~ ~a-g~~rea~--t~r~~eeee-expee~are-te-tke-ehe:niea~-we~a~d_be-exempt-f~reat ~ t~he-werrn~ir~q-req~t3 reMent~-e s-deb errn~n~ed-p~'retaen~-te-~l~t~e~e-~-e~ CO Wj

UR A F' T January 25, 1993 -101- ~lrtie~e-9-ef-th~s-ehaoter- either of the following conditions exist• : (i) the person in the course of doina business is rernuired to report emissions of the chemical pursuant to an emissions reoortincr reauirement under state or federal law. includina but not limited to the Emergency Plannina andCommunity Riaht-to-Know Act of 1986 (42 U.S.C.. sec. 110!01. et seai. )i and Air Toxics "Hot Spots" Informationiand Assessment Act of 1987 (Health &' Saf. Code, sec. 44300, et sea.), however, if exmosure to the chemical would, be exempt from the warnirna requirement as determined pursuant to Article 7 or Article 8 of this chaAter. the chemical need not be identified; or (ii) the aerson in the course of dioina,business actuallv knows that an individual will be exposed to the listed chemical; however, if the! exnosure to the chemical would, be exemot fromi the warning reauirement as determined pursuant to Article 7 or Article 8 of this chanter, the chemical need'.not be identified. (B) identify the medium of exvosure ('e.g. air emissions, soil, discharges to water). (C) identify the person in the course of doing busirness~and the name and address er--3m-tke-esbeenee-ef-ea-addreee--tke t er facilit ag is a retail outlet fi franchise which d ite cau a lavs a_commonl nq merchandisin Where the chain o 0 recoanized 10 or trademark to identify the facilitv, the location of the facility may be identif'ied bv reference to~the logo or trademark.