BILL ANALYSIS �
AB 358
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Jerry Hill, Chair
2013-2014 Regular Session
BILL NO: AB 358
AUTHOR: Holden
AMENDED: May 7, 2013
FISCAL: Yes HEARING DATE: July 3, 2013
URGENCY: No CONSULTANT: Rebecca Newhouse
SUBJECT : LEAD HAZARD EVALUTION
SUMMARY :
Existing federal law , under the Residential Lead-Based Paint
Hazard Reduction Act (Act) of 1992:
1) Requires the Secretary of the Urban Housing and Development
Department (HUD), in consultation with the Administrator of
the United States Environmental Protection Agency (US EPA),
the Secretary of Labor, and the Secretary of Health and
Human Services, to issue guidelines for the conduct of
federally supported work involving risk assessments,
inspections, interim controls, and abatement of lead-based
paint hazards.
2) Requires the Secretary of HUD and the Administrator of the
US EPA to promulgate regulations for the disclosure of
lead-based paint hazards in housing which is offered for
sale or lease to the purchaser or lessee, including the
disclosure of the presence of any known lead-based paint,
known lead-based paint hazards, and any lead hazard
evaluation report available to the seller or lessor. The
regulations must also allow the purchaser a 10-day period
to conduct a risk assessment or inspection for the presence
of lead-based paint hazards.
Existing state law :
3) Establishes a program within the Department of Public
Health (DPH) to meet the requirements of the federal Act
and requires DPH to adopt regulations governing the
accreditation of training and certification of employees
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who engage in or supervise lead-related construction work
and the certification of employees who have successfully
completed that training (Health and Safety Code �105250).
4) Requires persons engaged in the specified types of lead
construction work, including persons who receive pay for
doing lead hazard evaluations, such as lead inspections,
lead risk assessments or lead clearance inspections in
residential or public buildings, to be certified by the
department (HSC �105254).
5) Requires any person issued a certificate by DPH to conduct
lead-related construction work, abatement, or lead hazard
evaluation, to comply with department regulations (HSC
�105253).
6) Under the Childhood Lead Poisoning Prevention Act of
1991(HSC �105280 et seq.):
a) Requires DPH to adopt regulations establishing a
standard of care for evaluation of lead poisoning in
children by health care providers during periodic health
assessments.
b) Requires DPH to ensure appropriate case management,
including environmental assessments, for children
identified with lead poisoning.
c) States that a qualified professional who is certified
by DPH as an inspector/assessor is eligible to provide
environmental investigation services as a part of the
department's activities relating to case management.
This bill requires that a lead hazard evaluation for public
and residential buildings is conducted in a manner determined
by DPH, using lead hazard evaluation methods recognized by the
US EPA.
COMMENTS :
1) Purpose of Bill . According to the author, California's
lead detection regulations do not reflect current
EPA-approved lead testing standards. The author notes that
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existing DPH regulations reference the outdated US HUD
Guidelines published in 1995 and 1997, which did not
authorize qualitative chemical tests, however the 2012 US
Housing and Urban Development Guidelines were updated to
authorize the use of three EPA-approved qualitative
chemical tests. The author states that AB 358 allows DPH
to authorize the use of US EPA recognized lead test kits,
providing more options for lead testing.
2) Background . Lead is a potent toxin that interferes with a
variety of bodily processes and readily accumulates in soft
tissue and bone. Because lead interferes with the
development of the nervous system, it is especially toxic
to children. Prior to the federal ban on leaded paints in
1978, lead was used ubiquitously in paint in order to speed
up drying and prevent corrosion. Corroded pre-1978 paint
presents a health hazard, since dust from the paint
containing high levels of lead is released and is readily
inhaled or ingested, especially by children. According to
the US Center for Disease Control (CDC), there are
approximately half a million US children ages one to five
with blood lead levels above five micrograms per deciliter
(g/dL), the reference level at which CDC recommends public
health actions be initiated. The level at which the state
Department of Public Health has determined lead to
represent3) a hazard is 5,000 ppm in paint and 400 ppm in
soil. Federal regulations define lead-based paint free
housing as housing that does not contain paint or coated
surfaces with lead values exceeding 5,000 ppm. However, it
widely recognized that there is no safe level of lead in
the body and to the extent that lead can be ingested or
inhaled, it is a public health concern, especially for
structures built prior to 1978 where children reside.
States like Wisconsin have lead paint hazards standards of
600 ppm.
4) Federal Guidelines and EPA-recognized tests . As part of
the federal Residential Lead-Based Paint Hazard Reduction
Act (Act), the US HUD and the US EPA guidelines for work
practices involving risk assessments, inspections, interim
controls, and abatement of lead-based paint hazards were
first released in 1995 and updated in 1997. These
guidelines include two lead-assessment methods including
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through X-ray Fluorescence Spectroscopy (XRF) or by sending
samples to EPA-certified laboratories for analysis. In
2012, updated guidelines were issued that describe the
certain cases in which three qualitative tests kits
recognized by the US EPA may be used to test paint. All
three of these tests (including the 3M? LeadCheck? test
kit) are qualitative, and therefore do not provide the
assessor with a lead concentration or value, but instead
indicate whether or not lead is present above a certain
threshold. The threshold above which a specified test can
detect lead varies depending on technology.
The EPA recognition rule for test kits includes a two-phase
process for evaluating and recognizing test kits that can
be used to determine the presence of regulated levels of
lead in lead-based paint surfaces. Initially, a lead test
kit could be EPA-recognized if it met the negative response
criterion of no more than 5 percent false negatives (with
95% confidence) at or above the regulated level. All three
currently recognized test kits meet this criterion.
However, any newly recognized test kit must meet both the
negative and positive response criteria of no more than 5
percent false negatives and no more than 10 percent false
positives (with 95% confidence). No commercial test kits,
including the three that are currently recognized by the
EPA, meet both the false and positive criteria.
State regulations . The state program is designed to
implement the federal Act and requires accreditation for
training programs that certify persons to perform specified
types of lead-related construction work, including
lead-hazard evaluations and assessments. Current
regulations require that lead hazard evaluation for public
and residential buildings be conducted according to
procedures described in the 1995 version and 1997 revision
of the US HUD Guidelines.
5) Quantitative vs. Qualitative . Qualitative tests provide a
quick and often simple way to determine the absence or
presence of lead above a certain threshold. For cases
where the test comes back negative and there is either a
very low level or no detectable lead present, the
simplicity and low cost of a qualitative test would seem
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preferable to a more expensive test or one with delayed
results. On EPA's website, they note that all three
EPA-recognized qualitative test kits, when used by a
professional can reliably determine that regulated
lead-based paint is not present on various surfaces.
However, for those cases where a qualitative test indicates
the presence of lead, the results do not offer any
information on whether the lead concentration was near the
detection limit of the method (600 ppm for certain tests)
or is much higher and above the DHP determined lead hazard
level for the state (5,000 ppm). From a legal perspective,
if the definition for lead-based paint is above the
threshold for a qualitative test (as is the case for the
California definition and the 3M EPA-recognized qualitative
test) then a positive test result from the qualitative test
does not reveal whether there is lead-based paint, as
defined under state or federal law. In addition, none of
the currently recognized EPA test kits meet the EPA's false
positive criteria, and therefore they have a higher
likelihood of resulting in positive results when lead in
paint is not actually present in a level above the state or
federal standard than evaluation methods like XRF.
Additionally, a quantitative level of lead is important for
the owner of the property to understand the degree to which
their paint presents a significant threat to their family's
health (for example, depending on the condition of the
paint, if lead levels were measured close to 600 ppm, their
risk of exposure is significantly less than if the paint
contained well over 5,000 ppm of lead). A quantitative
value is also important in determining whether the federal
regulations for safe work practices when performing
renovations, remodeling or painting on structures that have
lead levels in paint over 5,000 ppm are legally required.
Federal regulations for state lead hazard certification
programs require that the environmental sampling
requirements for lead in paint allow for comparison to the
standard for lead-based paint hazards established by the
state. A negative result from an EPA-recognized test kit,
according to the EPA, can reveal reliably that lead is
absent. However, a positive result from an EPA-recognized
test kit cannot meet the above requirement, because,
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current EPA-recognized qualitative tests cannot reliably
tell you if you have lead in paint above 5,000 ppm .
From the 2012 US HUD guidelines, "when a certified
inspector or risk assessor obtains a negative response from
an EPA-recognized test kit - but not a positive
response-the response may be included in a lead-based paint
inspection, hazard screen or risk assessment report."
6) Certification for qualitative test kits ? This bill would
allow any US EPA recognized test for lead detection to be
used in the state when conducting lead hazard evaluations
in residential and public buildings, and would therefore
supersede current DPH regulations which currently only
allow quantitative methods including XRF and testing by an
EPA-certified laboratory. However, the bill does not
require that training to certify persons to perform lead
hazard evaluations include training for EPA-recognized
methods that are not included in the 1995/97 Guidelines.
Current regulations allow certification training to include
methods included in the 1995/97 or in a more recent version
of the guidelines. This could lead to a circumstance where
a certified person performing a lead assessment was not
trained on a particular EPA-recognized method that AB 358
authorizes them to use. Improper use could lead to a
higher false negative rate and unnecessarily expose those
living or working in the building to greater health risk
since they believe the paint to be lead-free.
7) Precluding quantitative tests ? EPA regulations define the
term "recognized test kits" as meeting certain negative and
positive detection criteria as described in Comment #3.
However, the EPA does not use the term "recognized" to
refer to lead hazard evaluation methods of XRF or
laboratory analysis by an EPA certified laboratory.
In addition, there is no clear definition of what
constitutes a "lead hazard evaluation method." Because the
bill requires the use of lead hazard evaluation methods
recognized by the US EPA, the language could be interpreted
as only allowing EPA-recognized test kits and precluding
the use of quantitative methods like XRF and laboratory
analysis.
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8) Opposition concerns . Opponents note that although current
regulations under DPH do reference out-of-date federal HUD
guidelines, the current version of these guidelines do not
make qualitative test kits equivalent to either laboratory
testing or portable x-ray fluorescence testing. Opponents
further state that AB 358 would provide a back door way to
make these qualitative test kits equivalent in California
to quantitative methods that have been the standard for
over 30 years. They state that to use these test kits, one
must cut and damage the paint on building surfaces, so
paint that was once intact will become a lead hazard. They
note that current testing guidelines for homes require a
surface-by-surface inspection of all the painted surfaces,
which would amount to 50-250 cuts throughout the home.
Opponents further note that the costs for this type of
inspection, along with the cost of repairing these
surfaces, would greatly exceed that with any of the other
methods currently authorized.
9) Suggested amendment . Since this bill deals with technical
issues regarding lead hazard evaluation methods, detection
levels, reliability and the appropriate use of test kits,
it may be best to allow experts at the agency level to
examine this issue through a comprehensive regulatory
process. Instead of requiring lead hazard evaluations for
public and residential buildings be conducted using
EPA-recognized lead hazard evaluation, the committee may
wish to suggest that the bill be amended to instead
authorize DPH to update their regulations on lead hazard
evaluations in order to incorporate the updated federal HUD
guidelines.
SOURCE : 3M
SUPPORT : California Chamber of Commerce
OPPOSITION : AAA Lead Consultants & Inspections, Inc.
Aardvark Environmental Consultants
Alameda County Healthy Homes Department
American Technologies, Inc.
Anchor Environmental
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Andersen Environmental
Asbestos & Lead Poisoning Prevention
Association
Barr & Clark Independent Environmental Testing
California Safe Schools
Center For Social Advocacy
Citadel Environmental Services, Inc.
Clean Water Action
Coalition for Clean Air
Coalition For Economic Survival
Comite Civico Del Valle, Inc.
Comite De La Esperanza
Del Amo Action Committee
Eagle One Contractors
Environmental Health Coalition
Environmental Inspection Service
Environmental Lead Detect, Inc.
Environmental Working Group
Eviction Defense Center
Food & Water Watch
Fresno Interdenominational Refugee Ministries,
Inc.
Healthy Homes Collaborative
HMS, Inc.
HomeSafe Environmental, Inc.
Housing Programs
Inquilinos Unidos
Mr. G Trees
National Center for Healthy Housing
Occupational Knowledge International
Pacoima Beautiful
Patriot Environmental Laboratory Services, Inc.
Physicians for Social Responsibility - Los
Angeles
Public Health Institute
Safety Management Systems
Society for Allergy Friendly Environmental
(SAFE) Gardening
URS Corporation
Vista Environmental Consulting
Wangerin Environmental
15 Individuals
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