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Business Taxes Law Guide—Revision 2024
Occupational Lead Poisoning Prevention Fee Regulations
Title 17. Public Health
Division 1. State Department of Health Services
Chapter 11. Occupational Lead Poisoning Prevention Program
Article 1. Definitions
Article 2. Waivers of the Occupational Lead Poisoning Fee (View article)
- 38002 Fee Waiver Eligibility
- 38003 Procedures for Application of a Waiver
- 38004 Periods for which Fee Waivers are Granted
Article 3. Applicable Industries
Article 1. Definitions
Regulation 38001. Definitions.
Reference: Sections 105185, 105190, 105191 and 105195, Health and Safety Code.
Authority cited: Sections 105185 and 105191, 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).
Article 2. Article 2. Waivers of the Occupational Lead Poisoning Fee
Regulation 38002. Fee Waiver Eligibility.
Reference: Sections 105190(e) and 105191(b), Health and Safety Code.
Authority cited: Sections 105185 and 105191, 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).
Regulation 38003. Procedures for Application of a Waiver.
Reference: Sections 105190(e) and 105191(b), Health and Safety Code.
Authority cited: Sections 105185 and 105191, 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).
Regulation 38004. Periods for which Fee Waivers are Granted.
Reference: Sections 105190(e) and 105191(b), Health and Safety Code.
Authority cited: Sections 105185 and 105191, 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).
Article 3. Applicable Industries
Regulation 38005. Applicable Industries.
Reference: Section 105195, Health and Safety Code.
Authority cited: Sections 105185 and 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 Code | Industry |
|---|---|---|
| (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) | 3674 | Semiconductors 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).