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Occupational Lead Poisoning Prevention Fee Regulations

Title 17 of the California Code of Regulations


Article 1. Definitions

Article 2. Waivers of the Occupational Lead Poisoning Fee

Article 3. Applicable Industries

Occupational Lead Poisoning Prevention Fee Regulations

California Code of Regulations

Division 1. State Department Of Health Services Chapter 11. Occupational Lead Poisoning Prevention Program

Regulation 38001. Definitions.

Authority cited: Sections 105185 and 105191, Health and Safety Code.

Reference: Sections 105185, 105190, 105191 and 105195, Health and Safety Code.

(a) "Altered or disturbed" means subjected to a process that may result in the release of dust, mist, fume, or other particles; such processes may include, but are not limited to, cutting, welding, grinding, polishing, machining, scraping, melting, sanding, spraying or pressure blasting.

(b) "De minimus amount" means any of the following:

(1) Lead present in materials which are altered or disturbed and have a lead concentration less than 0.5 (5000 ppm) by weight;

(2) Lead present in materials where the total weight of such materials altered or disturbed during the calendar year is known to be 16 ounces (one pound) or less by weight;

(3) Lead present in materials where no such material is altered or disturbed at any individual employee's place of employment on more than one day during the calendar year, i.e., if no employee works on more than one day during the calendar year in any location where lead-containing materials are being altered or disturbed, then the amount is de minimus.

(c) "Employee" means any individual employed for at least 160 hours in the prior calendar year, regardless of whether the individual's specific job involved potential exposure to lead or lead-containing materials.

(d) "Lead evaluation" means a review of the place of employment and the materials and processes involved in the operation of an employer's business, including but not limited to review of Material Safety Data Sheets or other manufacturer-supplied data, product labeling, or analytical testing results for presence of lead in materials of unknown composition.

(e) "Lead was not present at the place of employment" means that no amount of lead or lead-containing material was present at the place of employment or in the materials and processes used in the operation of the employer's business, with the following exceptions:

(1) Lead that was not altered or disturbed during the operation of the employer's business and was present in a form, or contained in such a manner, that it could not be inhaled or ingested (examples are undisturbed building materials, unused materials and supplies, intact lead storage batteries); or

(2) Lead present as a result of general environmental contamination which was not the result of the operation of the employer's business.

(f) "Metal work" means the machining or casting of metals or metal alloys.

(g) "Occupational Lead Poisoning Fee" means a fee pursuant to section 105190 of the Health and Safety Code which is assessed annually by the State Board of Equalization on employers with 10 or more employees in industries identified by the Department of Health Services as having documented evidence of potential occupational lead poisoning. These industries are listed by four-digit Standard Industrial Classification (SIC) Code in Section 38005.

(h) "Place of employment" means any location, not limited to a fixed site, where employees carry out work duties which are a part of a business operation.

(i) "Prior calendar year" means the time period from January 1 to December 31 of the year preceding that year in which the Occupational Lead Poisoning Fee is due.

(j) "Standard Industrial Classification (SIC) Code" means a system of four-digit numerical codes to designate the activities of a business operation, set forth by the U.S. Office of Management and Budget in the Standard Industrial Classification Manual, 1987.

History: New chapter 11 and section filed 1-15-93 as an emergency; operative 1-15-93 (Register 93, No. 3). A Certificate of Compliance must be transmitted to OAL 5-17-93 or emergency language will be repealed by operation of law on the following day.

Certificate of Compliance as to 1-15-93 order including amendment of subsections (a), (b) and (h) transmitted to OAL 4-28-93 and filed 6-10-93 (Register 93, No. 24).

Amendment of section and Note filed 5-1-97 as an emergency; operative 5-1-97 (Register 97, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-29-97 or emergency language will be repealed by operation of law on the following day.

Certificate of Compliance as to 5-1-97 order transmitted to OAL 8-8-97 and filed 9-17-97 (Register 97, No. 38).

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Regulation 38002. Fee Waiver Eligibility.

Authority cited: Sections 105185 and 105191, Health and Safety Code.

Reference: Sections 105190(e) and 105191(b), Health and Safety Code.

(a) An employer in an industry listed in section 38005 is eligible for a waiver of the Occupational Lead Poisoning Fee if the employer can demonstrate, by completing the procedures specified in section 38003, that:

(1) Lead was not present at the place of employment during the prior calendar year; or

(2) Lead was present at the place of employment during the prior calendar year only in a de minimus amount.

(b) An employer in an industry listed in section 38005 is not required to pay the Occupational Lead Poisoning Fee if the employer had fewer than 10 employees during the previous year.

(c) An employer in an industry listed in section 38005 that involves painting, including but not limited to Standard Industrial Classification Code 1721, "Painting and Paper Hanging," is not eligible for a fee waiver if, in the operation of the employer's business in the prior calendar year, any employees altered or disturbed paint in or on a building constructed prior to 1978 or on a painted metal structure, unless the employer demonstrates that lead was not present in any of the altered or disturbed paint, or was present only in a de minimus amount.

(d) An employer in an industry listed in section 38005 that involves demolition, including but not limited to Standard Industrial Classification Code 1795, "Wrecking and Demolition Work," is not eligible for a fee waiver if, in the operation of the employer's business in the prior calendar year, any employees altered or disturbed a painted metal structure, or a building with painted surfaces that was constructed prior to 1978, unless the employer demonstrates that lead was not present in any of the disturbed paint, or was present only in a de minimus amount.

(e) An employer in an industry listed in section 38005 that involves handling or processing of scrap metal, including but not limited to Standard Industrial Classification Code 5093, "Scrap and Waste Materials," is not eligible for a fee waiver if, in the operation of the employer's business in the prior calendar year, any employees altered or disturbed materials that may contain lead or have a lead-containing coating, unless the employer demonstrates that lead was not present in any of the altered or disturbed materials, or was present only in a de minimus amount.

(f) An employer's request for a fee waiver may be denied for any of the following reasons:

(1) Identification of the presence of lead in a greater than de minimus amount at the place of employment or in the materials or processes used in the operation of the employer's business; or

(2) Failure of an employer to request a fee waiver and supply the documentation required in section 38003(d) within 180 days following the due date of the Occupational Lead Poisoning Fee; or

(3) Failure of an employer to provide sufficient and accurate information by which to evaluate the request for a fee waiver.

(g) The Department shall give written notice to the employer of the denial of an employer's request for a fee waiver and the reason or reasons for the denial.

(h) An employer whose request for a fee waiver is denied shall have 15 working days from receipt of notice of the denial to request a reconsideration of the denial and to supply any additional facts which the employer believes support the granting of the fee waiver request.

History: New section filed 1-15-93 as an emergency; operative 1-15-93 (Register 93, No. 3). A Certificate of Compliance must be transmitted to OAL 5-17-93 or emergency language will be repealed by operation of law on the following day.

Certificate of Compliance as to 1-15-93 order including of amendment of subsections (a), (g)(1)-(2), (h) and (i) transmitted to OAL 4-28-93 and filed 6-10-93 (Register 93, No. 24).

Amendment of section and Note filed 5-1-97 as an emergency; operative 5-1-97 (Register 97, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-29-97 or emergency language will be repealed by operation of law on the following day.

Certificate of Compliance as to 5-1-97 order transmitted to OAL 8-8-97 and filed 9-17-97 (Register 97, No. 38).

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Regulation 38003. Procedures for Application of a Waiver.

Authority cited: Sections 105185 and 105191, Health and Safety Code.

Reference: Sections 105190(e) and 105191(b), Health and Safety Code.

(a) An employer requesting a fee waiver shall conduct a lead evaluation of the premises, materials and processes used in the operation of the employer's business during the prior calendar year to determine whether lead was present. This evaluation shall include, but not be limited to, review of Material Safety Data Sheets or other manufacturer-supplied data, product labeling, or analytical testing results for presence of lead in materials of unknown composition.

(b) An employer requesting a fee waiver shall establish that lead was not present, or was present only in a de minimus amount, at the place of employment during the prior calendar year.

(c) An employer requesting a fee waiver shall have 180 days following the due date of the Occupational Lead Poisoning Fee to submit documentation that lead was not present, or was present only in a de minimus amount, at the place of employment during the prior calendar year.

(d) An employer requesting a fee waiver shall demonstrate that lead was not present, or was present in a de minimus amount, at the place of employment by providing documentation that includes:

(1) A Request for a Waiver of the Occupational Lead Poisoning Fee [DHS Form 8484 (4/97)], which is hereby incorporated by reference, containing the following information:

(A) Name, title, and affiliation of the person who conducted the lead evaluation of the employer's business operation as outlined in section 38003(a) and, if a consultant, also telephone number and address.

(B) Statement signed by the person conducting the lead evaluation that attests that, to the best of the person's knowledge, no lead or lead-containing materials were present in any amount, or were present only in a de minimus amount (as defined in section 38001) during the prior calendar year, in the premises, materials and processes used in the operation of the business.

(C) Description of the nature of the employer's business, including a description of the products manufactured and/or services provided.

(D) The employer's Board of Equalization-designated, 8-digit account number provided to the employer at the time the Occupational Lead Poisoning Fee is assessed.

(E) Name, title, company, address, telephone number, and signature of an authorized representative of the employer who is requesting the fee waiver.

(F) An employer in an industry listed in section 38005 that involves construction work, who wishes to apply for a fee waiver, shall identify the extent to which the company's operations involved altering or disturbing painted surfaces by completing Part B of Form DHS 8484 (4/97).

(G) An employer in an industry listed in section 38005 that involves detective, guard, armored car or other security services, who wishes to apply for a waiver, shall identify the extent to which the company's operations involved altering or disturbing lead materials by discharging weapons on company time by completing Part C of Form DHS 8484 (4/97).

(H) An employer in an industry listed in section 38005 that involves metal work who wishes to apply for a fee waiver, shall identify the extent to which the company's operations involved altering or disturbing lead-containing metals or alloys (including lead-containing brass or bronze) by completing Part D of Form DHS 8484 (4/97).

(I) An employer in an industry listed in section 38005 that involves the handling or processing of scrap metal who wishes to apply for a fee waiver, shall identify the extent to which the company's operations involved altering or disturbing lead-containing or lead-painted scrap metal by completing Part E of Form DHS 8484 (4/97).

(2) Correspondence from an employer, workers' compensation representative, or consultant that includes all of the information outlined in section 38003(d)(1).

(e) An employer requesting a fee waiver may be required to provide additional information describing the nature of the employer's business, including the premises, materials or processes used in the operation of the employer's business.

(f) Results of industrial hygiene monitoring tests that show non-detectable concentrations of lead in workplace air shall not be considered sufficient documentation that lead was not present at the place of employment.

History: New section filed 1-15-93 as an emergency; operative 1-15-93 (Register 93, No. 3). A Certificate of Compliance must be transmitted to OAL 5-17-93 or emergency language will be repealed by operation of law on the following day.

Certificate of Compliance as to 1-15-93 order transmitted to OAL 4-28-93 and filed 6-10-93 (Register 93, No. 24).

Amendment of section and Note filed 5-1-97 as an emergency; operative 5-1-97 (Register 97, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-29-97 or emergency language will be repealed by operation of law on the following day.

Certificate of Compliance as to 5-1-97 order transmitted to OAL 8-8-97 and filed 9-17-97 (Register 97, No. 38).

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Regulation 38004. Periods for which Fee Waivers are Granted.

Authority cited: Sections 105185 and 105191, Health and Safety Code.

Reference: Sections 105190(e) and 105191(b), Health and Safety Code.

(a) The Department shall have the discretion to grant a permanent or annual waiver of the Occupational Lead Poisoning Fee to an employer who has provided acceptable documentation that lead was not present at the place of employment, or was present only in a de minimus amount. The decision to grant a permanent waiver or annual waiver shall be based on:

(1) A description of the employer's business operation;

(2) The potential for lead use within the industries classified under the employer's Standard Industrial Classification Code;

(3) The likelihood that the employer's business operation may change over time, causing lead to become present at the place of employment in a greater than de minimus amount.

(b) The Department shall, at the timer a fee waiver is granted, inform the employer of whether the waiver is granted on a permanent or annual basis.

(c) The Department shall rescind a company's permanent waiver of the Occupational Lead Poisoning Fee if the Department obtains evidence, including but not limited to a substantiated case report of occupational lead poisoning in an employee, that indicates that lead is present in a greater than de minimus amount at the place of employment.

(d) The Department shall rescind a company's annual waiver of the Occupational Lead Poisoning Fee if the Department obtains evidence, including but not limited to a substantiated case report of occupational lead poisoning in an employee, that indicates that lead was present in a greater than de minimus amount at the place of employment during the calendar year for which the annual waiver was granted.

(e) An employer who is granted a permanent fee waiver shall notify the Department within 30 days of any changes in the premises, materials or processes used in the operation of the business that result in lead being present in a greater than de minimus amount at the place of employment.

(f) An employer who is granted an annual waiver shall notify the Department within 30 days if the employer becomes aware that lead was present in a greater than de minimus amount at the place of employment during the calendar year for which the annual waiver was granted.

History: New section filed 1-15-93 as an emergency; operative 1-15-93 (Register 93, No. 3). A Certificate of Compliance must be transmitted to OAL 5-17-93 or emergency language will be repealed by operation of law on the following day.

Certificate of Compliance as to 1-15-93 order transmitted to OAL 4-28-93 and filed 6-10-93 (Register 93, No. 24).

Amendment of section and Note filed 5-1-97 as an emergency; operative 5-1-97 (Register 97, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-29-97 or emergency language will be repealed by operation of law on the following day.

Certificate of Compliance as to 5-1-97 order transmitted to OAL 8-8-97 and filed 9-17-97 (Register 97, No. 38).

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Regulation 38005. Applicable Industries.

Authority cited: Sections 105185 and 105195, Health and Safety Code.

Reference: Section 105195, Health and Safety Code.

(a) The list of industries in section 105195 of the California Health and Safety Code for which the Occupational Lead Poisoning Fee is applicable is hereby modified as follows:

#SIC CodeIndustry
(1) 1041 Gold ores
(2) 1521 General contractors—Single-family houses
(3) 1541 General contractors—Industrial buildings and warehouses
(4) 1542 General contractors—Nonresidential buildings, other than industrial buildings and warehouses
(5) 1611 Highway and street construction, except elevated highways
(6) 1622 Bridge, tunnel, and elevated highway construction
(7) 1623 Water, sewer, pipeline and communications and power line construction
(8) 1629 Heavy construction, not elsewhere classified
(9) 1711 Plumbing, heating, and air-conditioning
(10) 1721 Painting and paper hanging
(11) 1761 Roofing, siding and sheet metal work
(12) 1791 Structural steel erection
(13) 1795 Wrecking and demolition work
(14) 1796 Installation or erection of building equipment, not elsewhere classified
(15) 1799 Special trade contractors, not elsewhere classified
(16) 2759 Commercial printing, not elsewhere classified
(17) 2782 Blankbooks, looseleaf binders and devices
(18) 2816 Inorganic pigments
(19) 2819 Industrial inorganic chemicals, not elsewhere classified
(20) 2821 Plastics material, synthetic resins, and nonvulcanizable elastomers
(21) 2851 Paints, varnishes, lacquers, enamels, and allied products
(22) 2869 Industrial organic chemicals, not elsewhere classified
(23) 2891 Adhesives and sealants
(24) 2892 Explosives
(25) 2899 Chemicals and chemical preparations, not elsewhere classified
(26) 3053 Gaskets, packing, and sealing devices
(27) 3069 Fabricated rubber products, not elsewhere classified
(28) 3087 Custom compounding of purchased plastics resins
(29) 3089 Plastics products, not elsewhere classified
(30) 3229 Pressed and blown glass and glassware, not elsewhere classified
(31) 3231 Glass products, made of purchased glass
(32) 3253 Ceramic floor and wall tile
(33) 3261 Vitreous china plumbing fixtures and china and earthenware fittings and bathroom accessories
(34) 3262 Vitreous china table and kitchen articles
(35) 3269 Pottery products, not elsewhere classified
(36) 3312 Steel works, blast furnaces (including coke ovens), and rolling mills
(37) 3313 Electrometallurgical products, except steel
(38) 3315 Steel wiredrawing and steel nails and spikes
(39) 3316 Cold-rolled steel sheet, strip and bars
(40) 3317 Steel pipe and tubes
(41) 3321 Gray and ductile iron foundries
(42) 3325 Steel foundries, not elsewhere classified
(43) 3331 Primary smelting and refining of copper
(44) 3339 Primary smelting and refining of nonferrous metals, except copper and aluminum
(45) 3341 Secondary smelting and refining of nonferrous metals
(46) 3351 Rolling, drawing, and extruding of copper
(47) 3356 Rolling, drawing, and extruding of nonferrous metals, except copper and aluminum
(48) 3357 Drawing and insulating of nonferrous wire
(49) 3363 Aluminum die-castings
(50) 3364 Nonferrous die-castings, except aluminum
(51) 3365 Aluminum foundries
(52) 3366 Copper foundries
(53) 3369 Nonferrous foundries, except aluminum and copper
(54) 3398 Metal heat treating
(55) 3399 Primary metal products, not elsewhere classified
(56) 3411 Metal cans
(57) 3429 Hardware, not elsewhere classified
(58) 3431 Enameled iron and metal sanitary ware
(59) 3432 Plumbing fixture fittings and trim
(60) 3433 Heating equipment, except electric and warm air furnaces
(61) 3441 Fabricated structural metal
(62) 3444 Sheet metal work
(63) 3463 Nonferrous forgings
(64) 3479 Coating, engraving, and allied services, not elsewhere classified
(65) 3484 Small arms
(66) 3491 Industrial valves
(67) 3492 Fluid power valves and hose fittings
(68) 3494 Valves and pipe fittings, not elsewhere classified
(69) 3496 Miscellaneous fabricated wire products
(70) 3497 Metal foil and leaf
(71) 3532 Mining machinery and equipment, except oil and gas field machinery and equipment
(72) 3544 Special dies and tools, die sets, jigs and fixtures, and industrial molds
(73) 3561 Pumps and pumping equipment
(74) 3567 Industrial process furnaces and ovens
(75) 3585 Air-conditioning and warm air heating equipment and commercial and industrial refrigeration equipment
(76) 3599 Industrial and commercial machinery and equipment, not elsewhere classified
(77) 3624 Carbon and graphite products
(78) 3661 Telephone and telegraph apparatus
(79) 3663 Radio and television broadcasting and communications equipment
(80) 3669 Communications equipment, not elsewhere classified
(81) 3671 Electron tubes
(82) 3674Semiconductors and related devices
(83) 3678 Electronic connectors
(84) 3679 Electronic components, not elsewhere classified
(85) 3691 Storage batteries
(86) 3692 Primary batteries, dry and wet
(87) 3699 Electrical machinery, equipment and supplies, not elsewhere classified
(88) 3711 Motor vehicles and passenger car bodies
(89) 3714 Motor vehicle parts and accessories
(90) 3721 Aircraft
(91) 3728 Aircraft parts and auxiliary equipment, not elsewhere classified
(92) 3812 Search, detection, navigation, guidance, aeronautical, and nautical systems and instruments
(93) 3825 Instruments for measuring and testing of electricity and electrical signals
(94) 3829 Measuring and controlling devices, not elsewhere classified
(95) 3844 X-ray apparatus and tubes and related irradiation apparatus
(96) 3914 Silverware, plated ware, and stainless steel ware
(97) 3949 Sporting and athletic goods, not elsewhere classified
(98) 3953 Marking devices
(99) 3965 Fasteners, buttons, needles, and pins
(100) 4813 Telephone communications, except radiotelephone
(101) 4911 Electric services
(102) 5064 Electrical appliances, television and radio sets
(103) 5093 Scrap and waste materials
(104) 5941 Sporting goods stores and bicycle shops
(105) 7381 Detective, guard, and armored car services
(106) 7538 General automotive repair shops
(107) 7539 Automotive repair shops, not elsewhere classified
(108) 7997 Membership sports and recreation clubs
(109) 7999 Amusement and recreation services, not elsewhere classified
(110) 8734 Testing laboratories

History: New section filed 1-15-93 as an emergency; operative 1-15-93 (Register 93, No. 3). A Certificate of Compliance must be transmitted to OAL 5-17-93 or emergency language will be repealed by operation of law on the following day.

Certificate of Compliance as to 1-15-93 order transmitted to OAL 4-28-93 and filed 6-10-93 (Register 93, No. 24).

Amendment of section and Note filed 5-1-97 as an emergency; operative 5-1-97 (Register 97, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-29-97 or emergency language will be repealed by operation of law on the following day.

Certificate of Compliance as to 5-1-97 order transmitted to OAL 8-8-97 and filed 9-17-97 (Register 97, No. 38).

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