BILL NUMBER: AB 218 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 6, 2008
AMENDED IN SENATE JANUARY 31, 2008
INTRODUCED BY Assembly Member Saldana
(Coauthor: Assembly Member Huffman)
JANUARY 29, 2007
An act to add Sections 25214.10.3 and 25214.10.4 to the Health and
Safety Code, relating to hazardous waste.
LEGISLATIVE COUNSEL'S DIGEST
AB 218, as amended, Saldana. Hazardous waste: electronic waste.
(1) Existing law requires the Department of Toxic Substances
Control to adopt regulations to prohibit an electronic device from
being sold or offered for sale in this state if the electronic device
is prohibited from being sold or offered for sale in the European
Union on and after its date of manufacture, due to the presence of
certain heavy metals, as specified. Existing law requires these
regulations to take effect January 1, 2007, or on or after the date
that the Directive 2002/95/EC, adopted by the European Parliament and
the Council of the European Union on January 27, 2003, (Directive
2002/95/EC) takes effect, whichever date is later. Existing law
defines the term "electronic device," for purposes of those
provisions to have the same meaning, with reference to the Electronic
Waste Recycling Act of 2003, as "covered electronic device" which is
defined as a video display device, as specified, that is identified
by the department, pursuant to specified regulations, as a presumed
hazardous waste when discarded.
A violation of the hazardous waste control laws, including a
regulation adopted pursuant to those laws, is a crime.
This bill would define the term "RoHS Directive" to mean that
directive on the restriction of the use of certain hazardous
substances in electrical and electronic equipment, cited as Directive
2002/95/EC, as amended on or before January 1, 2009, and would
define the term "electronic equipment" for purposes of the bill's
requirements to mean a device that is dependent on electric currents
or electromagnetic fields to work properly or that is a device for
the generation, transfer, or measurement of electric currents or
fields that falls within the scope of Article 2 of Directive
2002/96/EC, is designed for use with a voltage rating that does not
exceed 1,000 volts for alternating current and 1,500 volts for direct
current, and falls within the scope of Article 2.1 of the RoHS
Directive.
The bill would exclude from the definition of "electronic
equipment" certain electronic devices, including fixed-installation
devices that are electrical or mechanical, or electrical and
mechanical, as specified, electrical and electronic equipment in
aeronautical and aerospace applications, and certain refrigeration
equipment.
The bill would also exclude from the definition of electronic
equipment: (A) an electronic device that is a video display device;
(B) a medical device that contains a substance that is used to comply
with consumer, health, or safety requirements that are required by
the Underwriters Laboratories Inc., the federal government, or the
state; (C) electronic equipment manufactured before January 1, 2010,
as specified; (D) a replacement or spare part for equipment
manufactured before January 1, 2010; and (E) an
electronic or electrical lighting device ; and (F) Certain
communications products and devices .
The bill would provide that if an electronic device that was
exempted before January 1, 2009, by the RoHS Directive is
subsequently subjected to the RoHS Directive after that date, the
department would be required to adopt regulations requiring a
producer to comply with those prohibitions at a date that is at least
24 months after the effective date of the sale prohibition in the
European Union.
The bill would require the department's implementation and
enforcement of these provisions to be consistent with all uniform
implementation guidelines for the RoHS Directive that are adopted by
the European Union or by its member states and would require the
department, if it finds that the RoHS Directive is not consistently
implemented by the member states of the European Union, to implement
these provisions consistent with a specified document.
The bill would prohibit a producer, as defined, on and after
January 1, 2010, from manufacturing for sale in this state electronic
equipment that contains a hazardous substance for which the RoHS
Directive would prohibit the sale or offering for sale of that
electronic equipment in the European Union pursuant to the RoHS
Directive. A producer would be required to prepare and, at the
request of the department, submit to the department, within 28 days
of the date of the request, technical documentation or other
information showing that electronic equipment sold or offered for
sale is not prohibited from sale by the RoHS Directive.
The bill would also delay until January 1, 2011, the
implementation of the bill's requirements for a producer of a major
appliance, and until January 2013, for a producer of welding
equipment or plasma cutting equipment who submits a
specified certification to the department. The department would be
authorized to require a producer who submits such a certification to
pay a fee of not more than $200 to the department.
The bill would allow a producer to submit a request to the
department for an exemption from the bill's requirements, for the use
of specified hazardous substances in specified electronic equipment,
if there is no technically feasible alternative, available at a
reasonable cost, to the use of those hazardous substances or
components containing those hazardous substances in the electronic
equipment. The department would be authorized to grant or renew an
exemption, for a period of not more than 3 years, if the producer
submits specified information to the department, including a plan for
the proper collection, transportation, and management of the
electronic equipment at the end of its useful life. The bill would
specify procedures for the granting of an exemption, including
procedures for the reimbursement of the department and the protection
of trade secrets.
Since a violation of the bill's requirements would be a crime, the
bill would impose a state-mandated local program by creating a new
crime.
(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.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 25214.10.3 is added to the Health and Safety
Code, to read:
25214.10.3. (a) For the purposes of this section and Section
25214.10.4, the following definitions shall apply:
(1) "Electronic equipment" means a device that meets all of the
following conditions:
(A) The device is dependent on electric currents or
electromagnetic fields to work properly or is a device for the
generation, transfer, or measurement of electric currents or fields.
(B) The device falls within the scope of Article 2 of Directive
2002/96/EC, adopted by the European Parliament and the Council of the
European Union on January 27, 2003, and as amended on or before
January 1, 2009, by the Commission of European Communities.
(C) The device is designed for use with a voltage rating that does
not exceed 1,000 volts for alternating current and 1,500 volts for
direct current.
(D) The device falls within the scope of Article 2.1 of the RoHS
Directive.
(2) "Electronic equipment" does not include any of the following:
(A) A fixed-installation device that is electrical or mechanical,
or electrical and mechanical, that is electrically wired directly to
a fixed electrical system, or connected to a fixed mechanical system
of a structure, or both a fixed electrical and fixed mechanical
system, and that cannot be readily disconnected without altering the
electrical or mechanical system connections, or both the electrical
and mechanical system connections. An electronic device that is
portable and uses an electrical plug as the means to connect to an
electrical source is not a fixed-installation electrical or
mechanical device, or both an electrical and mechanical device.
(B) Electrical and electronic equipment in all military,
commercial, and general aeronautical and aerospace applications,
including equipment used to test or monitor aeronautical or aerospace
applications.
(C) Commercial refrigeration equipment that is subject to the
recycling requirements of Article 10.1 (commencing with Section
25211).
(D) An "electronic device" as defined in Section 25214.10.
(E) A medical device that meets both of the following conditions:
(i) Is listed under Category 8 of Annex 1A of Directive
2002/96/EC, adopted by the European Parliament and the Council of the
European Union on January 27, 2003, or is defined as a medical
device under the federal Food, Drug, and Cosmetic Act (Chapter 9
(commencing with Section 301) of Title 21 of the United States Code).
(ii) Contains a substance that is used to comply with the
consumer, health, or safety requirements that are required by the
Underwriters Laboratories Inc., the federal government, or the state.
(F) Electronic equipment that was manufactured before January 1,
2010, and subsequently refurbished and sold, or recovered from the
initial consumer and reused, or otherwise resold.
(G) Electronic equipment that was manufactured for sale before
January 1, 2010, and then subsequently leased, resold, financed,
brokered, or distributed.
(H) Electronic equipment that is a replacement or spare part for
electronic equipment that was manufactured before January 1, 2010.
(I) Electronic equipment or components that are exempt from the
RoHS Directive.
(J) Electronic or electrical lighting devices.
(K) Electronic equipment, including infrastructure products,
communications devices, information devices, or information and
communication devices, that is used by an individual as part of a
system that augments, or is added to, an existing governmental
communications system sold before January 1, 2010, and that is
intended to expand the existing system's capabilities or use, thus
prolonging the life of the existing system.
(3) "Hazardous substance" means any substance for which the RoHS
Directive prohibits the sale, or offering for sale, of electronic
equipment containing that substance.
(4) "Producer" means a person who, irrespective of the selling
technique used, does any of following:
(A) Manufactures and sells electronic equipment under the producer'
s own brand.
(B) Resells, under the producer's own brand, electronic equipment
produced by other suppliers. For the purposes of this section, a
person who resells electronic equipment is not the producer of that
electronic equipment, if the brand of the producer appears on the
equipment, as provided in subparagraph (A).
(5) "RoHS Directive" means the directive on the restriction of the
use of certain hazardous substances in electrical and electronic
equipment RoHS, and is cited as Directive 2002/95/EC, adopted by the
European Parliament and the Council of the European Union on January
27, 2003, on the restriction of certain hazardous substances in
electronic equipment, as amended on or before January 1, 2009
(13.2.2003 Official Journal of the European Union).
(b) (1) Unless granted an exemption pursuant to Section
25214.10.4, or except as provided in paragraphs (2) and (3), on and
after January 1, 2010, a producer shall not manufacture for sale, in
this state, electronic equipment that contains a hazardous substance
for which the RoHS Directive would prohibit the sale, or offering for
sale, of that electronic equipment in the European Union.
(2) A producer of a major appliance, as defined in Section 42166
of the Public Resources Code, that is electronic equipment, as
defined in this section, and subject to the recycling requirements of
Article 10.1 (commencing with Section 25211), shall have until
January 1, 2011, to comply with the requirements of this section with
regard to that major appliance.
(3) A producer of welding equipment or plasma cutting
equipment , as used in accordance with Section 4795 of Title 8
of the California Code of Regulations, may, for each affected model,
no later than November 30, 2009, certify under penalty of perjury to
the department that the producer is making efforts to comply with
this section. A model of welding equipment or plasma cutting
equipment for which a certificate is submitted to the
department shall have until January 1, 2013, to comply with the
requirements of this section. The department may require a producer
to submit a fee for certification of not more than two hundred
dollars ($200) per certificate for the department's costs of
accepting and acknowledging that certificate.
(4) A producer shall prepare and, at the request of the
department, submit to the department within 28 days of the date of
the request, technical documentation or other information showing
that electronic equipment sold or offered for sale by that producer
is not prohibited from sale by the RoHS Directive.
(5) If electronic equipment that is exempted before January 1,
2009 from the RoHS Directive is subsequently prohibited on or after
January 1, 2009 from being sold or offered for sale in the European
Union pursuant to the RoHS Directive, or pursuant to any amendments
made to the RoHS Directive on and after January 1, 2009, the
department shall adopt regulations specifying that a producer of that
electronic equipment sold or offered shall comply with paragraph (1)
with regard to that electronic equipment at a date that is at least
24 months after the effective date of the prohibition of that sale in
the European Union.
(c) The department shall implement and enforce this section and
Section 25214.10.4, in accordance with all of the following:
(1) The department shall not prohibit the manufacture or sale of
electronic equipment that is different than, or otherwise not
prohibited by, the RoHS Directive.
(2) The department shall not impose any requirements or conditions
that are in addition to, or more stringent than, the requirements
and conditions expressly authorized by this section.
(3) (A) The department's implementation and enforcement of this
section shall be consistent with any uniform implementation
guidelines for the RoHS Directive that are adopted by the European
Union, by its member states, or by both.
(B) If the department finds that any section of the RoHS Directive
is not consistently implemented by the member states of the European
Union, the department's implementation and enforcement of this
section and Section 25214.10.4 shall be consistent with the
provisions of the Statutory Instrument 2005 No. 2748 of the United
Kingdom, as in effect on July 1, 2006.
SEC. 2. Section 25214.10.4 is added to the Health and Safety Code,
to read:
25214.10.4. (a) A producer may submit a request to the department
for an exemption from the prohibition of subdivision (b) of Section
25214.10.3 for the use of a specified hazardous substance in
specified electronic equipment if there is no technically feasible
alternative, available at a reasonable cost, to the use of that
specified hazardous substance, or component containing that hazardous
substance, in the electronic equipment. The department may grant a
producer an exemption from the prohibition of subdivision (b) of
Section 25214.10.3, or renew an exemption, for a period of not more
than three years, if all of the following conditions are met:
(1) The producer of the electronic equipment submits a request for
an initial or renewed exemption to the department that specifies the
hazardous substance in the electronic equipment for which an
exemption is requested, along with the supporting information
required by subdivision (b).
(2) The supporting information submitted by the producer pursuant
to subdivision (b) demonstrates that the electronic equipment is
eligible for the exemption.
(3) The producer requesting the exemption enters into a cost
reimbursement agreement with the department, pursuant to subdivision
(e), and complies with the terms of that agreement.
(b) The supporting information that a producer shall submit to the
department, before the department may grant or renew an exemption
pursuant to this section, shall include all of the following:
(1) The name of the producer requesting the exemption and the
name, position, and contact information for the person who is the
producer's contact person on all matters concerning the exemption.
(2) An identification and description of the hazardous substance,
including the quantity of the hazardous substance, and the electronic
equipment for which the exemption is requested.
(3) For each use for which an exemption is requested, information
that fully and clearly demonstrates that there is no technically
feasible alternative, available at a reasonable cost, to the use of
that hazardous substance, or component containing that hazardous
substance in the electronic equipment. This information shall
include, but is not limited to, a description of past, current, and
planned future efforts to seek or develop those alternatives, a
description of all alternatives that have been considered, and an
explanation of the technical or economic reasons as to why each
alternative is not satisfactory.
(4) Information that fully and clearly demonstrates that the
electronic equipment is constructed, with regard to the use of the
specified hazardous substance, so that the release of the specified
hazardous substance to the environment is prevented.
(5) (A) A feasible, effective, detailed, and complete plan for the
proper collection, transportation, and management of the electronic
equipment at the end of its useful life, including removal and proper
management of the hazardous substance contained in the product, and
information fully and clearly demonstrating that the producer,
individually, or in conjunction with an industry or trade group, is
committed to, and capable of, implementing the plan. The plan shall
include an education and outreach component to ensure that users of
the product are aware of available collection opportunities and legal
requirements for management of the product once it becomes a waste.
(B) An exemption granted pursuant to this section shall become
null and void if the producer individually, or in conjunction with an
industry or trade group, has not implemented the plan submitted in
support of the exemption request within six months of the effective
date of the exemption.
(6) A copy of all similar exemption requests, including supporting
documentation, submitted by the applicant to other jurisdictions,
and a copy of each jurisdiction's response to the exemption request.
(c) A producer who requests an exemption, or an exemption renewal,
pursuant to this section shall enter into a written agreement with
the department in accordance with the procedures set forth in Article
9.2 (commencing with Section 25206.1), for reimbursement of all
costs incurred by the department in processing and responding to the
request.
(d) (1) The department shall treat as confidential any information
provided pursuant to this section that is a trade secret and that is
identified at the time of submission by a producer, in the same
manner as the procedures adopted by the department pursuant to
Section 25173 with regard to hazardous waste handling and disposal.
Any information that is not a trade secret, or that is not identified
by the producer as a trade secret, shall be made available to the
public upon request pursuant to the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1
of the Government Code).
(2) For purposes of this section "trade secret" has the same
meaning as defined in Section 25173.
(e) (1) The department shall grant or deny an exemption requested
pursuant to this section no later than 180 calendar days after
receiving the exemption request, including all information determined
by the department to be necessary to determine if the exemption
request complies with the requirements of this section.
(2) An exemption shall not be deemed to have been granted if the
department fails to grant or deny the exemption request within the
time limit specified in paragraph (1).
(3) Nothing in this subdivision shall preclude the applicant and
the department from mutually agreeing to an extension of the time
limit specified in paragraph (1).
SEC. 3. 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.