CALIFORNIA CODE OF REGULATIONS

TITLE 8: CONSTRUCTION SAFETY ORDERS
Chapter 4, Subchapter 4, Article 4, Section 1532.1

Notification to the Division of Lead-Related Work

SUMMARY

This proposal has been initiated by the Division of Occupational Safety and Health (the Division) as a result of the consensus recommendation of an Advisory Committee convened by the Division to review the effectiveness of the Lead-in-Construction Standard, Section 1532.1. The proposal is to amend the standard to include a pre-job notification requirement, which will enable the Division to review pertinent information about certain jobs covered by the standard. Additionally, this proposal will increase the Division’s ability to determine the necessity for inspections of these jobs and conduct them in a timely fashion.

The existing California standard is modeled largely after the Federal equivalent, 29 CFR 1926.62. Neither the California nor the Federal standard currently contains any job or pre-job notification requirement.

Despite the adoption of the California Lead-in-Construction Standard in 1993, workers in the construction industry have continued to experience occupational exposures resulting in elevated blood-lead levels. Recent California Department of Health Services' lead registry data for the period 1997 to 1998 show that 154 workers out of 386 workers tested had blood-lead levels over 25 micrograms per liter of whole blood. The workers tested were employed by 122 employers. In California there are almost 70,000 employers with employees exposed or potentially exposed to lead in the construction trades. The Occupational Lead Prevention Program of the California Department of Health Services is of the opinion that such blood-lead exposure data are grossly under-reported.

Attempts to enforce the California standard in its current form have pointed to the necessity for measures to increase the Division's ability to identify lead jobs in progress so that they can be inspected and evaluated for compliance with the standard. The general experience of the agency has been that most lead jobs begin and end without the Division having any means of finding out about them until they have terminated and the opportunity to conduct an inspection has passed. This is primarily due to the intrinsic nature of the work, which is typically performed for short durations at locations that continually change.

In July 1996, in recognition of this problem, the Division initiated a "Special Emphasis Program" for enforcement of the standard. As part of this Program, the Division attempted to develop a means of locating lead jobs in progress by contracting with the McGraw-Hill Publishing Company to receive the "Dodge Report," a computerized bidding service for large public and private sector contracts in California. Although it was hoped that access to the Dodge Report would provide the Division with the information necessary to identify these jobs, most of the Dodge Report-generated inspections resulted in compliance officers coming to the site when the lead work had either not yet begun or had terminated. The Division and its representative Advisory Committee concluded that the information base provided by the Dodge Report is too imprecise to facilitate timely inspections.

SPECIFIC PURPOSE AND FACTUAL BASIS OF PROPOSED ACTION

The purpose of the proposal generally is to increase the ability of the Division to enforce Section 1532.1 by creating a notification requirement that will increase the ability of the Division to conduct timely inspections of those projects where employees may be exposed to elevated levels of lead while the projects are underway. This notification requirement will require employers whose employees are likely to be substantially exposed to lead as a result of construction work activities to notify the Division when the lead work will commence and how long the work will continue.

The specific proposed amendments are as follows:

Section 1532.1

Currently, subsection (p) references the date the standard is to become effective. This language is no longer needed as the date has passed.

Amended subsection (p) titled "Lead-Work Notification," is proposed to require employers to notify the nearest Division District Office when work is planned that includes any task listed in subsection (d)(2) of Section 1532.1.

This requirement is necessary to provide the Division’s District Manager, who has enforcement jurisdiction over the work activity, with the information necessary to decide whether or not to conduct a programmed inspection. Proposed changes to Section 1532.1(p), by referring to subsection (d)(2), indicates that the tasks invoking the notification requirement are: abrasive blasting; welding, cutting and burning on steel structures; lead burning; manual scraping and sanding; manual demolition of structures; heat gun application; using lead-containing mortar; abrasive blasting enclosure movement and removal; power tool cleaning; rivet busting; and clean-up activities where dry expendable abrasives are used. It is necessary to require notification of the tasks listed in subsection (d)(2) because they are presumed to involve substantial employee exposure to the extent that employers are required by the regulation to provide interim protections, especially respiratory protection, until an exposure assessment is conducted.

Exception No. 1 to subsection (p) is proposed to relieve employers of the notification requirement when the amount of lead-containing materials to which employees are exposed is less than 100 square feet or 100 linear feet; or when the employer's activities are limited to conducting torch cutting or welding for less than 1 hour in duration per shift. This exception is necessary to give both the regulated community and the Division relief from the reporting requirement when the jobs involved are likely to be of such small size and limited duration that the Division would not find it consistent with enforcement priorities to conduct programmed inspections for these jobs.

Exception No. 2 to subsection (p) is proposed to relieve employers of the notification requirement when the amount of lead in the material disturbed is less than 0.5%, 5,000 parts per million (weight by weight) or 1.0 milligram per square centimeter. This exception is necessary to give both the regulated community and the Division relief from the reporting requirement when the job materials involved are of low lead concentrations that are likely to cause airborne exposures that are relatively low. The Division would not find it consistent with enforcement priorities to conduct programmed inspections for these jobs.

Proposed subsection (p)(1) identifies the acceptable means of communication and the timeliness of the notification. This proposed subsection indicates that the notification for the typical lead construction job is to be in written form and the acceptable means of delivery include mail, electronic facsimile, and electronic mail. This subsection also establishes that a notification, in order to be timely, must reach the Division District Office at least 24 hours before the lead-related activities commence. A telephone notification to the Division is acceptable if it is made at least 24 hours before the work commences and written confirmation follows within 24 hours of placing the call. This requirement is necessary to provide the Division with a written notification record; allow the employer flexibility in finding the most convenient transmittal method; and provide the Division at least 24 hours to evaluate the job for a possible inspection and if selected, allow Division personnel adequate time to prepare for the inspection.

The Exception to proposed subsection (p)(1) indicates that the notification for a job requiring immediate lead abatement, (e.g., responding to an emergency situation involving tasks listed in subsection (d)(2), such as torch cutting on the structural steel beams or railings of a highway damaged by earthquake or major accident), may be done by telephone anytime prior to the commencement of the job. This telephone notification is to be followed within 24 hours by a confirming written notification. This requirement for reporting unanticipated lead work of an urgent or emergency nature is necessary in order to permit the employer to alert the Division that such work is commencing without unduly delaying the work.

Proposed subsection (p)(2) identifies the specific items that the notification must contain. The required information includes: employer contact information including the name, address, and phone number of the employer; the address and location of the lead work; timing information about the job, including the date and time the job will commence; and the anticipated date the job will end or how long it is expected to last. Subsection (p)(2) requires information about the actual work including the area, type of structure, lead content of the material that will be disturbed, the actual tasks and work practices that will be performed; the number of employees involved; and the name of the supervisor responsible for this job. The specified information is necessary to enable the Division District Manager to decide if a work site should be evaluated or to prioritize inspections if more than one job is occurring simultaneously and to enable Division personnel to locate the work while it is in progress.

Proposed subsection (p)(3) requires the employer to notify the Division if changes are made to the information that was provided within the initial notification for any of four aspects of the job. These include the starting date, the surface area to be disturbed, the type of lead-related work to be performed, or the type of work practices to be utilized. The specified information is needed to enable the District Manager to know when the job is in progress, and to prioritize the job in comparison with concurrent lead jobs.

Proposed subsection (p)(4) establishes an annual notification process for employers involved in ongoing lead-related operations to provide employers such as California Department of Transportation or waste water treatment plants with the option of notifying the Division on a more inclusive, long-term basis about the lead-related operations and maintenance (O&M) work they perform with their own employees on the permanent steel structures they own or have responsibility for. The option refers to ongoing maintenance work involving lead tasks listed in subsection (d)(2) on stationary steel structures such as bridges, waste water treatment plant buildings and/or tanks or oil refinery tank farms. The employer must inform the Division of the lead-related work schedule, insofar as the employer knows, for jobs that exceed the criteria found in Exceptions 1 & 2 above. The employer may provide the Division with as many notifications as necessary, but must provide at least one notification per year for each structure for which they have responsibility. This requirement is necessary to provide the Division’s District Offices with sufficient information to make decisions concerning appropriate scheduled inspections without creating an unnecessary paperwork burden for the employer and the Division personnel who receive the notifications.

DOCUMENT RELIED UPON

1. Analysis of lead related construction activities in California; Barbara Materna, California Department of Health Services, Memorandum dated December 29,1999. Subject: Data Requested on Lead in Construction.

This document is available for review during normal business hours at the Standards Board Office located at 2520 Venture Oaks Drive, Suite 350, Sacramento, California.

REASONABLE ALTERNATIVES THAT WOULD LESSEN ADVERSE
IMPACT ON SMALL BUSINESSES

No reasonable alternatives were identified by the Board and no reasonable alternatives identified by the Board or otherwise brought to its attention would lessen the impact on small business.

FINDING OF NECESSITY FOR REPORT REQUIREMENT

The Board finds that it is necessary for the health, safety and welfare of the people of the state that this regulation’s reporting requirements apply to business. The current absence of a notification impairs the ability of the Division to assure that the requirements of 1532.1 are being properly implemented by employers to minimize their employees’ exposures to lead.

SPECIFIC TECHNOLOGY OR EQUIPMENT

This proposal does not mandate the use of specific technologies or equipment except a telephone or fax machine.

COST ESTIMATES OF PROPOSED ACTION

Costs or Savings to State Agencies

No costs or savings to state agencies will result as a consequence of the proposed action.

Impact on Housing Costs

The Board has made an initial determination that this proposal will not significantly affect housing costs.

Impact on Businesses

The Board has made an initial determination that this proposal will not result in a significant, statewide adverse economic impact directly affecting businesses, including the ability of California businesses to compete with businesses in other states. The proposed amendment merely requires employers to notify the Division that specific lead-related activities are scheduled. Employers are already subject to the requirements of Section 1532.1 that are not otherwise amended. Some of these employers already provide a similar notification when performing asbestos-related construction work. Employers are required to make a lead notification similar to the proposal for work in San Francisco County.

Cost Impact on Private Persons or Entities

The Board is not aware of any cost impacts that a representative private person or business would necessarily incur in reasonable compliance with the proposed action.

Costs or Savings in Federal Funding to the State

The proposal will not result in costs or savings in federal funding to the state.

Costs or Savings to Local Agencies or School Districts Required to be Reimbursed

No costs to local agencies or school districts are required to be reimbursed. These entities are already subject to the requirements of Section 1532.1 that are not otherwise amended. These agencies are currently required to make a similar notification for asbestos-related work, and in San Francisco County local agencies are required to make a notification of lead-related work.

Other Nondiscretionary Costs or Savings Imposed on Local Agencies

This proposal does not impose nondiscretionary costs or savings on local agencies.

DETERMINATION OF MANDATE

The Occupational Safety and Health Standards Board has determined that the proposed regulations do not impose a local mandate. Therefore, reimbursement by the state is not required pursuant to Part 7 (commencing with Section 17500) of Division 4 of the Government Code because this regulation does not constitute a "new program or higher level of service of an existing program within the meaning of Section 6 of Article XIII B of the California Constitution."

The California Supreme Court has established that a "program" within the meaning of Section 6 of Article XIII B of the California Constitution is one which carries out the governmental function of providing services to the public, or which, to implement a state policy, imposes unique requirements on local governments and does not apply generally to all residents and entities in the state. (County of Los Angeles v. State of California (1987) 43 Cal.3d 46.)

These proposed regulations do not require local agencies to carry out the governmental function of providing services to the public. Rather, the regulations require local agencies to take certain steps to ensure the safety and health of their own employees only. Moreover, these proposed regulations do not in any way require local agencies to administer the California Occupational Safety and Health program. (See City of Anaheim v. State of California (1987) 189 Cal.App.3d 1478.)

The proposed regulations do not impose unique requirements on local governments. All employers - state, local and private - will be required to comply with the prescribed standards.

EFFECT ON SMALL BUSINESSES

The Board has determined that the proposed amendments may effect small businesses.

ASSESSMENT

The adoption of the proposed amendment to these regulations will neither create nor eliminate jobs in the State of California nor result in the elimination of existing businesses or create or expand businesses in the State of California.

ALTERNATIVES THAT WOULD AFFECT PRIVATE PERSONS

No reasonable alternatives have been identified by the Board or have otherwise been identified and brought to its attention that would be more effective in carrying out the purpose for which the action is proposed or would be as effective and less burdensome to affected private persons than the proposed action.