The Business Council of New York State, Inc. opposes the above referenced legislation that requires record keeping of employees who handle or use toxic substances on the job. We oppose this legislation because existing federal law pre-empts this legislation.
Section 1902.1(a) of the Federal Occupational Safety and Health Regulations pre-empts state legislation except where there is a state plan. New York is not a state plan state. A state plan state is one where the state has applied, been subject to strict review, and approved by the federal government as a state plan state.
" Section 18(a) of the Williams-Steiger Occupational Safety and Health Act of 1970 is read as preventing any State agency or court from asserting jurisdiction under State law over any occupational safety or health issue with respect to which a Federal standard has been issued under section 6 of the Act. However, section 18(b) provides that any State that desires to assume responsibility for the development and enforcement therein of occupational safety and health standards relating to issues covered by corresponding standards promulgated under section 6 of the Act shall submit a plan for doing so to the Assistant Secretary." (Federal OSHA Section 1902.1(a))
Section 18 (b) of the Williams-Steiger Occupational Safety and Health Act of 1970 clearly states "Any State which, at any time, desires to assume responsibility for development and enforcement therein of occupational safety and health standards relating to any occupational safety or health issue with respect to which a Federal standard has been promulgated under section 6 shall submit a State plan for the development of such standards and their enforcement." This is an extremely expensive and lengthy process to complete. In fact, several years ago the State of California gave up it's State Plan and reverted to Federal OSHA after determining that it was far too expensive to administer its own plan. California then had to go through the process to become a Federally approved state plan state, which it did.
If this legislation were enacted it would require that everyone who uses a substance which appears in 1910.1000 Tables Z1, Z2 & Z3 be recorded. While the sponsors' memo states that this legislation would impose no burdensome requirements on employers, it fails to explain that under the provisions of this bill every person, for example, that handles a toner cartridge for their copiers would have to be recorded and kept for forty years.
To be clear, New York is not a state plan state and is subject to federal regulations. Therefore, this legislation is pre-empted by federal OSHA regulations. New York State does not have the authority to implement this legislation. The Business Council of the State of New York, Inc. strongly opposes this legislation.