BILL NUMBER: AB 455 CHAPTERED
BILL TEXT
CHAPTER 679
FILED WITH SECRETARY OF STATE OCTOBER 9, 2003
APPROVED BY GOVERNOR OCTOBER 8, 2003
PASSED THE ASSEMBLY SEPTEMBER 11, 2003
PASSED THE SENATE SEPTEMBER 10, 2003
AMENDED IN SENATE SEPTEMBER 8, 2003
AMENDED IN SENATE JULY 10, 2003
AMENDED IN ASSEMBLY MAY 6, 2003
AMENDED IN ASSEMBLY APRIL 22, 2003
INTRODUCED BY Assembly Member Chu
(Coauthors: Assembly Members Koretz, Levine, Lieber, and
Longville)
FEBRUARY 14, 2003
An act to add Article 10.3 (commencing with Section 25214.11) to
Chapter 6.5 of Division 20 of the Health and Safety Code, relating to
hazardous waste.
LEGISLATIVE COUNSEL'S DIGEST
AB 455, Chu. Packaging materials: regulated metals.
(1) Existing hazardous waste control laws regulate the disposal of
discarded appliances, lead acid batteries, small household
batteries, recyclable latex paint, and household hazardous waste.
Existing law prohibits any person from managing any hazardous waste,
except as provided in the hazardous waste control laws and
regulations. A violation of the hazardous waste control laws is a
crime.
This bill would enact the "Toxics in Packaging Prevention Act,"
and would define terms. The act would prohibit, on and after January
1, 2006, a manufacturer, importer, agent, or supplier, as defined,
from offering for sale or for promotional purposes in this state a
package or packaging component that includes a regulated metal,
defined as lead, cadmium, mercury, or hexavalent chromium, if that
regulated metal has been intentionally introduced into the package or
packaging component during manufacturing or distribution, as
defined. The act would also prohibit, on and after January 1, 2006,
a person, as defined, from offering for sale or for promotional
purposes in this state a product in a package that includes those
intentionally introduced regulated metals. The bill would prohibit,
on and after January 1, 2006, the sum of the incidental total
concentration levels of all regulated metals present in a
single-component package or individual packaging component from
exceeding 100 parts per million by weight.
The bill would exempt from those requirements a package or a
packaging component that meets specified conditions, including, among
other things, if the package or packaging component is marked with a
code indicating a date of manufacture before January 1, 2006,
contains a regulated metal that has been added to comply with health
or safety requirements of a state or federal law, or contains a
regulated metal for which there is no feasible alternative that may
be used in the package or packaging component, as specified. The
bill would also provide an exemption process from those requirements
for a package or packaging component that has a controlled
distribution and reuse, if the manufacturer or distributor submits
information to the department that complies with specified
requirements, including demonstrating that there is an environmental
benefit of the controlled distribution and reuse. The bill would
provide that some exemptions expire on January 1, 2010. The bill
would require a manufacturer or distributor that requests specified
exemptions to enter into a written agreement with the department,
pursuant to which the manufacturer or distributor would reimburse the
department for costs incurred by the department in processing or
responding to the request. The bill would require all reimbursement
received by the department to be deposited in the Hazardous Waste
Control Account.
The bill would require, on and after January 1, 2006, each
manufacturer, importer, agent, or supplier to furnish a certificate
of compliance to the purchaser of a package or packaging component
stating that the package or packaging component is in compliance with
the act. The bill would require a purchaser to retain the
certificate of compliance for as long as the package or packaging
component is in use by the purchaser. The bill would require the
department to provide the public with access to the information
relating to a package or packaging component that has been submitted
to the department by a manufacturer or supplier.
The bill would authorize the department to submit recommendations
to the Governor and the Legislature for additional substances that
should be included as regulated metals.
The bill would provide that its provisions are severable and that
it shall be liberally construed.
Because a violation of the bill's requirements would be a crime,
the bill would impose a state-mandated local program.
(2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Article 10.3 (commencing with Section 25214.11) is
added to Chapter 6.5 of Division 20 of the Health and Safety Code, to
read:
Article 10.3. Toxics in Packaging Prevention Act
25214.11. (a) The Legislature finds and declares all of the
following:
(1) The management of solid waste can pose a wide range of hazards
to public health and safety and to the environment.
(2) Packaging comprises a significant percentage of the overall
solid waste stream.
(3) The presence of heavy metals in packaging is a part of the
total concern regarding the disposal of hazardous constituents in the
solid waste stream, in light of the presence of heavy metals in
emissions or ash when packaging is incinerated, or in leachate when
packaging is disposed of in a solid waste landfill.
(4) Lead, mercury, cadmium, and hexavalent chromium, on the basis
of available scientific and medical evidence, are of particular
concern.
(5) It is desirable, as a first step in reducing the toxicity of
packaging waste, and reducing the hazardous materials that may be
disposed of in solid waste landfills, to eliminate the addition of
these heavy metals to packaging.
(6) The intent of this article is to achieve this reduction in
toxicity without impeding or discouraging the expanded use of
recycled materials in the production of packaging and its components.
(b) This article shall be known, and may be cited, as the "Toxics
in Packaging Prevention Act."
25214.12. For purposes of this article, the following terms have
the following meanings:
(a) "Distribution" means the practice of taking title to a package
or a packaging component for promotional purposes or resale. A
person involved solely in delivering a package or a packaging
component on behalf of a third party is not engaging in distribution.
(b) (1) "Importer or agent" means a person who does either of the
following:
(A) Acts as an intermediary for the purchase of a package or
packaging component for resale from a manufacturer in another country
to a purchaser in this state, and who may receive a commission or
fee based on that sale.
(B) Is the importer of record listed on the United States Customs
Service forms for imported packaging or packaging components.
(2) An importer or agent does not include a person who takes title
to a package or packaging component.
(c) (1) "Intentional introduction" means the act of deliberately
utilizing a regulated metal in the formation of a package or
packaging component where its continued presence is desired in the
final package or packaging component to provide a specific
characteristic, appearance, or quality.
(2) "Intentional introduction" does not include either of the
following:
(A) The use of a regulated metal as a processing agent or
intermediate to impart certain chemical or physical changes during
manufacturing, where the incidental retention of a residue of that
metal in the final package or packaging component is not desired or
deliberate, if the final package or packaging component is in
compliance with subdivision (c) of Section 25214.13.
(B) The use of recycled materials as feedstock for the manufacture
of new packaging materials, where some portion of the recycled
materials may contain amounts of a regulated metal, if the new
package or packaging component is in compliance with subdivision (c)
of Section 25214.13.
(d) "Incidental presence" means the presence of a regulated metal
as an unintended or undesired ingredient of a package or packaging
component.
(e) "Manufacturer" means any person, firm, association,
partnership, or corporation producing a package or packaging
component.
(f) "Manufacturing" means the physical or chemical modification of
a material to produce packaging or a packaging component.
(g) "Package" means any container, produced either domestically or
in a foreign country, providing a means of marketing, protecting, or
handling a product, including a unity package, an intermediate
package or a shipping container, as defined in the American Society
of Testing and Materials (ASTM) specification D 996. "Package" also
includes unsealed receptacles, such as carrying cases, crates, cups,
pails, rigid foil and other trays, wrappers and wrapping films, bags,
and tubs.
(h) "Packaging component" means any individual assembled part of a
package that is produced either domestically or in a foreign
country, including, but not necessarily limited to, any interior or
exterior blocking, bracing, cushioning, weatherproofing, exterior
strapping, coatings, closures, inks, labels, dyes, pigments,
adhesives, stabilizers, or any other additives. Tin-plated steel
that meets the American Society for Testing and Materials (ASTM)
specification A 623 shall be considered as a single package
component. Electrogalvanized coated steel and hot dipped coated
galvanized steel that meet the American Society for Testing and
Materials (ASTM) qualifications A 591, A 653, A 879, and A 924 shall
be treated in the same manner as tin-plated steel.
(i) "Purchaser" means a person who purchases and takes title to a
package or a packaging component, from a manufacturer or supplier,
for the purpose of packaging a product manufactured, distributed, or
sold by the purchaser.
(j) "Recycled material" means a material that has been separated
from solid waste for the purpose of recycling the material as a
secondary material feedstock. Recycled materials include paper,
plastic, wood, glass, ceramics, metals, and other materials, except
that recycled material does not include a regulated metal that has
been separated from other materials into its elemental or other
chemical state for recycling as a secondary material feedstock.
(k) "Regulated metal" means lead, mercury, cadmium, or hexavalent
chromium.
(l) (1) "Supplier" means a person who does one or more of the
following:
(A) Sells, offers for sale, or offers for promotional purposes, a
package or packaging component that is used by any other person to
package a product.
(B) Takes title to a package or packaging component, produced
either domestically or in a foreign country, that is purchased for
resale or promotional purposes.
(2) "Supplier" does not include a person involved solely in
delivering a package or packaging component on behalf of a third
party.
(m) "Toxics in Packaging Clearinghouse" means the Toxics in
Packaging Clearinghouse (TPCH) of the Council of State Governments.
25214.13. (a) Except as provided in Section 25214.14, on and
after January 1, 2006, a manufacturer, importer, agent, or supplier
may not offer for sale or for promotional purposes in this state a
package or packaging component that includes a regulated metal, in
the package itself, or in a packaging component, if the regulated
metal has been intentionally introduced into the package or packaging
component during manufacturing or distribution.
(b) Except as provided in Section 25214.14, on and after January
1, 2006, a person may not offer for sale or for promotional purposes
in this state a product in a package that includes a regulated
metal, in the package itself, or in a packaging component, if the
regulated metal has been intentionally introduced into the package or
packaging component during manufacturing or distribution.
(c) Except as provided in Section 25214.14, on and after January
1, 2006, the sum of the incidental total concentration levels of all
regulated metals present in a single-component package or in an
individual packaging component may not exceed 100 parts per million
by weight.
25214.14. A package or a packaging component is exempt from the
requirements of Section 25214.13, and shall be deemed in compliance
with this article, if the package or packaging component meets any of
the following conditions:
(a) The package or packaging component is marked with a code
indicating a date of manufacture prior to January 1, 2006.
(b) A regulated metal has been added to the package or packaging
component in the manufacturing, forming, printing, or distribution
process, to comply with the health or safety requirements of a
federal or state law, and the manufacturer or supplier maintains
documentation that fully and clearly demonstrates that the package or
packaging component is eligible for this exemption.
(c) (1) The package or packaging component exceeds the maximum
concentration level set forth in subdivision (c) of Section 25214.13
only because of the addition of a recycled material.
(2) This subdivision, and all exemptions provided pursuant to it,
expire on January 1, 2010.
(d) (1) A regulated metal, for which there is no feasible
alternative that may be used in the package or packaging component,
has been added to the package or packaging component in the
manufacturing, forming, printing, or distribution process, and the
manufacturer or supplier maintains documentation that fully and
clearly demonstrates that the package or packaging component is
eligible for this exemption.
(2) For purposes of this subdivision, "no feasible alternative
that may be used" means that the use of the regulated metal is
essential to the protection, safe handling, or function, of the
package's contents, and technical constraints preclude the
substitution of other materials. This does not include the use of a
regulated metal for marketing purposes.
(e) (1) A package or packaging component that is reused but
exceeds the summed incidental concentration level of regulated metal
set forth in subdivision (c) of Section 25214.13, if all of the
following apply:
(A) The product being conveyed by the package or packaging
component is otherwise regulated under a federal or state health or
safety requirement.
(B) The transportation of the packaged product is regulated under
federal or state transportation requirements.
(C) The disposal of the package is otherwise performed according
to the requirements of this chapter or Chapter 8 (commencing with
Section 114960) of Part 9 of Division 104.
(2) This subdivision, and all exemptions provided pursuant to it,
expire on January 1, 2010.
(f) (1) A manufacturer or distributor of a package or packaging
component has obtained an exemption, pursuant to the process
described in paragraph (2), for use of a regulated metal that exceeds
the summed incidental concentration level set forth in subdivision
(c) of Section 25214.13 in a package or packaging component that has
a controlled distribution and reuse.
(2) The department shall grant an exemption under paragraph (1)
from Section 25214.13 for two years only if both of the following
conditions are met:
(A) The manufacturer or distributor of the package or packaging
component submits supporting information that complies with the
requirements set forth in paragraph (3) with the request for an
initial and a renewed exemption.
(B) The supporting information demonstrates that the package or
packaging component is eligible for the exemption.
(3) The supporting information that a manufacturer or distributor
shall submit to the department, before the department may grant an
exemption pursuant to this subdivision, shall include all of the
following:
(A) Information that demonstrates that the environmental benefit
of the controlled distribution and reuse of the package or packaging
component is significantly greater, as compared to the same package
or packaging component manufactured in compliance with the maximum
summed incidental concentration level of regulated metal set forth in
subdivision (c) of Section 25214.13.
(B) A means of identifying, in a permanent and visible manner, any
reusable package or packaging component, containing a regulated
metal for which the exemption is sought.
(C) A method of regulatory and financial accountability, so that a
specified percentage of the reusable packages or packaging
components, manufactured and distributed to other persons are not
discarded by those persons after use, but are returned to the
manufacturer or designee.
(D) A system of inventory and record maintenance to account for
reusable packages or packaging components, placed in, and removed
from, service.
(E) A means of transforming returned packages or packaging
components, that are no longer reusable into recycled materials for
manufacturing, or a means of collecting and managing returned
packages or packaging components as a waste in accordance with
federal and state laws.
(F) A system of annually reporting to the department any changes
to the system and changes in designees.
(4) This subdivision, and all exemptions provided pursuant to it,
expire on January 1, 2010.
(g) (1) A glass or ceramic package or packaging component that has
a vitrified label when tested in accordance with the Waste
Extraction Test, described in Appendix II of Chapter 11 (commencing
with Section 66261.1) of Division 4.5 of Title 22 of the California
Code of Regulations, and does not exceed 1.0 ppm for cadmium, 5.0 ppm
for hexavalent chromium, or 5.0 ppm for lead. A glass or ceramic
package or packaging component containing mercury is not exempted
pursuant to this subdivision.
(2) This subdivision, and all exemptions provided pursuant to it,
expire on January 1, 2010.
25214.15. (a) A manufacturer or distributor that requests an
exemption pursuant to subdivision (b), (d), or (f) of Section
25214.14 shall enter into a written agreement with the department
pursuant to which that manufacturer or distributor shall reimburse
the department, pursuant to Article 9.2 (commencing with Section
25206.1), for costs incurred by the department in processing or
responding to the request.
(b) The department shall deposit all reimbursements received
pursuant to this section in the Hazardous Waste Control Account for
appropriation in accordance with Section 25174.
25214.16. (a) On and after January 1, 2006, each manufacturer,
importer, agent, or supplier shall furnish a certificate of
compliance to the purchaser of a package or packaging component
stating that the package or packaging component is in compliance with
the requirements of this article. However, if, pursuant to Section
25214.14, the package is exempt from the requirements of Section
25214.13, the certificate of compliance shall state the specific
basis upon which the exemption is claimed. The certificate of
compliance shall be signed by an authorized official of the
manufacturer, importer, agent, or supplier. A copy of the
certificate of compliance shall be kept on file by the manufacturer,
importer, agent, or supplier of the package or packaging component.
A manufacturer, importer, agent, or supplier shall furnish a
certificate of compliance, or a copy thereof, to the department, upon
its request.
(b) A purchaser of a package or packaging component subject to
subdivision (a) shall retain the certificate of compliance for as
long as the package or packaging component is in use by the
purchaser.
(c) If a manufacturer, importer, agent, or supplier of a package
or packaging component subject to subdivision (a) reformulates or
creates a new package or packaging component, the manufacturer,
importer, agent, or supplier shall provide the purchaser with an
amended or new certificate of compliance for the reformulated or new
package or packaging component.
(d) The department, pursuant to the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1
of the Government Code), shall provide the public with access to all
information relating to a package or packaging component that has
been submitted to the department by a manufacturer or supplier of a
package or packaging component.
25214.18. If the department determines that other substances
contained in packaging should be added as regulated metals to the
list set forth in subdivision (k) of Section 25214.12 in order to
further reduce the toxicity of packaging waste, the department may
submit recommendations to the Governor and the Legislature for
additions to the list, along with a description of the nature of the
substitutes used in lieu of the recommended additions to the list.
25214.19. This article does not affect any duty or other
requirement imposed under any other federal or state law.
25214.20. (a) The provisions of this article are severable, and
if a court holds that a phrase, clause, sentence, or provision of
this article is invalid, or that its applicability to a person or
circumstance is invalid, the remainder of the article and its
applicability to other persons and circumstances may not be affected.
(b) The provisions of this article shall be liberally construed to
give effect to the purposes of this article.
SEC. 2. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.