BILL ANALYSIS AB 2176 Page 1 Date of Hearing: April 20, 2010 ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS Pedro Nava, Chair AB 2176 (Blumenfield) - As Amended: April 14, 2010 SUBJECT : Hazardous waste: lighting products. SUMMARY : Enacts the California Lighting Toxics Reduction and Jobs in Recycling Act (Act), which establishes a producer responsibility program for mercury-containing lamps and a fee program for inefficient lamps. Specifically, this bill : 1)Enacts the Act and establishes legislative intent to require the recycling of all unwanted mercury-containing lamps by January 1, 2020. 2)Defines terms for the purposes of the Act , including: a) "Class 1 lamp" as a lamp containing mercury; and b) "Class 2 lamp" as a lamp that produces fewer than 45 lumens per watt. 3)Establishes a product stewardship program for class 1 lamps: a) Requires, on or before September 30, 2011, a producer of a class 1 lamp, either individually or jointly with other producers, to submit a product stewardship program plan (plan) to the Department of Toxic Substances Control (DTSC). b) Requires the plan to meet specified requirements, such as the plan must include information about the participants of the plan; include a collection system; include educational and outreach efforts; include a processing and disposal system (for which no federal or state prison labor can be used); include a financing system; include plans to minimize the environmental impacts of covered lamps; include a list of collection sites; reasonably demonstrate how the product stewardship program will contribute toward achieving the goal of recycling all unwanted mercury-containing lamps by January 1, 2020; and comply with universal waste regulations. c) Sets plan approval timelines and requirements. d) Requires, on or before January 1, 2012, a producer or AB 2176 Page 2 designated stewardship organization to implement the plan approved by DTSC. e) Requires, at least once every four years, the plan operator to update and submit the plan. f) Requires, on or before April 1, 2013, and annually thereafter, the plan operator to prepare and submit to DTSC a report for the immediately preceding reporting period describing the effectiveness of the program. g) Requires all reports submitted to DTSC to be made available on DTSC's website and at DTSC's headquarters. h) Requires the person that submits a plan to DTSC to enter into an agreement with DTSC to pay DTSC for the costs incurred by DTSC associated with the review, implementation and enforcement of the plan. 4)Establishes a fee program for class 2 lamps . a) Requires, on or before January 30, 2012, and annually thereafter, a producer of a class 2 lamp to pay to the California Energy Commission (CEC) the fee established by the CEC. b) Requires, on or before June 30, 2011, and annually thereafter, a producer of a class 2 lamp to provide to the CEC a written report with the number and efficiency, in lumens per watt, of each model of class 2 lamps sold in the state during the previous calendar year. c) Requires, on or before December 1, 2011, the CEC to adopt regulations for: i) Determining the total environmental impact of a class 2 lamp according to the relative efficiency of each type of class 2 lamp; and ii) Setting the amount of the fee based on the total environmental impact of that type of class 2 lamp according to the relative efficiency of that class 2 lamps. d) Requires the regulations to require the CEC to set the amount of the payment at a level necessary to provide sufficient funds to implement the requirements of the bill, including administrative costs. e) Requires the CEC to assess the fee upon each producer of a class 2 lamp based on the total sales of class 2 lamps by that producer in the state. f) Requires the CEC to deposit all fee revenues collected in to the Energy Efficiency Research Fund. g) Authorizes the funds in the Energy Efficiency Research Fund to be expended by the CEC to provide grants for energy AB 2176 Page 3 efficiency and environmental impact mitigation programs. 5)Reporting requirements . a) Requires, on or before January 1, 2012, DTSC to issue and post on its website a report concerning the status of the collective product stewardship programs. b) Requires, on or before October 1, 2013, and annually thereafter, DTSC to invite comments from stakeholders to ascertain their satisfaction with the program. c) Requires DTSC, on May 1, 2012, and annually thereafter, to provide information on its website including lists of producers participating in an approved product stewardship program, producers that have paid the fee, and producers identified by DTSC as noncompliant. 6)Prohibitions . a) Prohibits, on and after January 1, 2012, a producer, wholesaler, or retailer from selling or offering for sale a class 1 lamp to a person in this state unless the producer of that class 1 lamp is participating in a product stewardship program under a plan approved by DTSC. b) Prohibits, on and after February 1,2010, a producer, wholesaler, or retailer from selling or offering for sale a class 2 lamp to a person in this state unless the producer of that class 2 lamp has paid the fee required. 7)Enforcement requirements . Requires DTSC to send written notices and issue compliance orders with a schedule for achieving compliance to violators of the Act. 8)Authorizes DTSC, under Green Chemistry provisions, to further regulate lamps. 9)Makes legislative findings and declarations. EXISTING LAW : 1)Pursuant to California Code of Regulations, Title 22, Division 4.5, Chapter 23, prohibits the disposal of some common or "universal" wastes in solid waste landfills. Universal wastes are hazardous wastes that are generated by a wide variety of sources that contain mercury, lead, cadmium, copper and other substances hazardous to human and environmental health. 2)Pursuant to Health and Safety Code 25251 et seq., requires AB 2176 Page 4 DTSC to adopt regulations by January 1, 2011, to identify and prioritize chemicals of concern, to evaluate alternatives, and to specify regulatory responses, including product stewardship programs. 3)Pursuant to the California Lighting Efficiency and Toxics Reduction Act (Health and Safety Code 25210.9 and Public Resources Code 25402.5.4. et seq.): a) Prohibits the manufacture, on or after January 1, 2010, of general purpose lights, as defined, for sale that contain levels of hazardous substances prohibited in the European Union (EU) pursuant to the RoHS Directive ("Restriction on the Use of Certain Hazardous Substances in Electrical and Electronic Equipment" or Directive 2002/95/EC.) b) Prohibits the sale of general purpose lights, on or after January 1, 2010, under the following circumstances: the lights would be prohibited in the EU pursuant to the RoHS Directive; the manufacturer has not provided specified information about the lights to the DTSC; and the lights are not certified as being free of levels of hazardous substances that would prohibit their sale in California. c) Required DTSC to convene a task force to consider and make recommendations, on or before September 1, 2008, on the proper collection and recycling of end-of-life general purpose lights. FISCAL EFFECT : Unknown. COMMENTS : Purpose of the bill : According to the author's office, "Lighting is a significant source of environmental mercury contamination. Although [compact fluorescent lamps] CFLs use 75% less energy than traditional incandescent bulbs, if thrown in the trash, CFLs can expose people and the environment to harmful mercury vapor because they contain mercury in the bulb. Currently, 90% of CFLs are not recycled in California. One of the principle reasons for a low recycling rate is that the disposal and recycling opportunities for CFLs are currently inconvenient or non-existent for most consumers. In addition to the health and environmental impacts from mercury, incandescent bulbs have a variety of other environmental impacts including contributing to global warming, heavy metal emissions, particulate matter emissions as well as nitrogen oxide (NOx) and AB 2176 Page 5 sulfur oxide (SOx) emissions. All of these impacts impose serious health and regulatory burdens on the State. It is therefore important to encourage the movement toward energy efficient bulbs, or CFLs, while encouraging their proper handling at end-of-life." Health effects of mercury exposure : Under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65), mercury and mercury compounds were listed in 1990 as reproductive toxicants. According to the US EPA, mercury exposure at high levels can harm the brain, heart, kidneys, lungs, and immune system of people of all ages. Universal waste: Universal wastes are hazardous wastes that are ubiquitous and contain mercury, lead, cadmium, copper and other substances hazardous to human and environmental health. In general, universal waste may not be discarded in solid waste landfills. Examples of these wastes are batteries, fluorescent tubes, and most electronic devices. Under California's Universal Waste Rule, households were allowed to dispose of fluorescent lamps, batteries, mercury thermostats, and electronic devices in the trash through February 8, 2006. While these products are now prohibited in landfills, many consumers dispose of them in the trash, creating an enormous cost and resource burden on local jurisdictions. For example, the County of Santa Clara spent $150,000 to collect and recycle 81,000 pounds of fluorescent lighting alone in fiscal year 2008/09. Product stewardship: According to the USEPA, product stewardship is a product-centered approach to environmental protection. Also known as extended product responsibility (EPR), product stewardship calls on those in the product life cycle-manufacturers, retailers, users, and disposers-to share responsibility for reducing the environmental impacts of products. Product stewardship recognizes that product manufacturers must take on new responsibilities to reduce the environmental footprint of their products. AB 2176 attempts to take a product stewardship approach to managing an ubiquitous waste that is prohibited in landfills. Support (of the April 5 version of the bill): Supporters of the bill argue, "This bill minimizes the mercury impacts from lighting, promotes efficient lighting, provides critical assistance to overburdened local governments tasked with AB 2176 Page 6 disposing of mercury-containing bulbs, and creates jobs in recycling programs. Lighting is a significant source of environmental mercury contamination for two reasons: (1) electricity consumption from inefficient bulbs leads to unnecessary power generation at coal fired power plants-the most significant source of mercury contamination; and (2) some efficient bulbs, like fluorescent lamps, causes less power-plant related emissions but contain small amounts of mercury in the bulb. AB 2176 addresses both sources of mercury pollution from lighting to minimize the harmful impacts of toxins in our environment. By requiring producers to set up and manage recycling programs for mercury-containing bulbs, AB 2176 will create new jobs in recycling all over California. AB 2176 requires CFL producers, rather than local governments, to develop, fund, and manage recycling programs. This will ensure that waste lighting products are kept out of landfills and recycled responsibly by the private sector - and will protect taxpayers from paying the price." Opposition (to the April 5 version of the bill): Opponents of the bill argue, "AB 2176 would require an expensive and unnecessary new program for the collection and recycling of waste fluorescent lamps, which will both discourage the use of energy efficient lighting and derail the progress made to date in establishing a practical network of collection locations for lamps. [Assemblymember Blumenfield's] proposal does not build on prior work in this area, but rather represents a step backward. Specifically, [this] bill would place exclusive responsibility on lighting manufacturers, without any role for utilities, retailers, recyclers, or government to facilitate or fund a recycling infrastructure or to generate responsible consumer behavior. The premise of [this] bill ignores the consensus recommendations issued in 2008 by the Department of Toxic Substances Control's Lamp Recycling Task Force that was convened pursuant to AB 1109." Those with a "support if amended" position argue for clarification of specific definitions, including "distributor" and "producer." Related legislation: Several bills purport to use a product stewardship approach for various consumer products. These include: AB 283 (Chesbro). Creates the California Product Stewardship Act of 2009, and requires regulations to be developed by July 1, 2011, to implement a program for environmentally sound product AB 2176 Page 7 stewardship protocols that encourage producers to research alternatives during the product design and packaging phases, in order to foster cradle-to-cradle producer responsibility and reduce the end-of-life environmental impacts of the product. (Held in the Assembly Appropriation Committee) AB 1343 (Huffman). Creates an architectural paint recovery program to require manufacturers or designated stewardship organizations to develop and submit an architectural paint stewardship plan to reduce the generation of post consumer paint, promote the reuse of post consumer architectural paint, and manage the end-of-life of post consumer architectural paint, in an environmentally sound fashion. (Held in the Senate Appropriations Committee) AB 2139 (Chesbro). Creates the California Product Stewardship Act. Develops a product stewardship program to address medical sharps, containers used to contain pesticides, personal-use propane tanks, personal butane lighters, and single-use food packaging. (Set for hearing in the Assembly Natural Resources Committee on April 19, 2010) AB 2398 (J. Perez). Requires, by September 30, 2011, a producer or the product stewardship organization created by one or more producers of carpet to submit a carpet stewardship plan which would be required to include specified elements, including performance goals. (Set for hearing in the Assembly Natural Resources Committee on April 19, 2010) SB 1100 (Corbett). Creates a product stewardship program for household batteries. (In the Senate Appropriations Committee). Issues: 1)California's Lighting Task Force: The Lighting Efficiency and Toxics Reduction Act, established by AB 1109 (Huffman, 2007), directed DTSC to convene the Lighting Task Force to consider and make recommendations on methods of collection, recycling, education, outreach, labeling, and designations for end of use residential fluorescent lamps. The Task Force released its findings in September, 2008, which included a list of 13 recommendations. While some recommendations seem to be touched upon by this bill, such as the education and outreach program should include a wide range of methods and media, other recommendations seem absent, such as program implementation should be a shared responsibility among all AB 2176 Page 8 parties benefiting from the sale or use of fluorescent lights. Should the requirements of this bill better align with the recommendations of the Task Force? 2)California's Green Chemistry Initiative: As part of the Green Chemistry Initiative, in 2009 the Governor signed AB 1879 (Feuer) into law. AB 1879 requires DTSC to adopt regulations by January 1, 2011, to identify and prioritize chemicals of concern, to evaluate alternatives, and to specify regulatory responses where chemicals of concern are found in consumer products. One of the regulatory responses that DTSC is authorized to take is imposing requirements for the manufacturer to manage the product at the end of its useful life, including recycling or responsible disposal of the consumer product. Are the requirements of this bill duplicative to those already granted to DTSC and should light bulbs be managed through the existing regulatory process instead of through a separate, newly created program? 3)Fee structure : This bill requires the CEC to adopt regulations for determining the total environmental impact of a class 2 lamp according to the relative efficiency of each type of class 2 lamp; and setting the amount of the fee based on the total environmental impact of that type of class 2 lamp according to the relative efficiency of that class 2 lamp. It also requires the CEC to set the amount of the fee at a level necessary to provide sufficient funds to implement the requirements of the bill, including administrative costs. The goal of the fee is to encourage producer and consumer movement toward less environmentally harmful lamps, but the bill does not clearly delineate what is meant by "total environmental impact." 4)100 percent recycling goal : The bill requires, as part of the plan operators' report for the immediately preceding reporting period, a description of the progress toward achieving the goal of recycling all unwanted class 1 lamps sold by the producer or group of producers. The bill also proclaims, "The Legislature hereby finds and declares that it is the intent of this article to require the recycling of all unwanted class 1 lamps, including orphan lamps, by January 1, 2020." Therefore, the bill seems to set a goal of recycling all class 1 lamps, however, a requirement to do so is not delineated in the bill. AB 2176 Page 9 5)Technical corrections : While this bill attempts to create product stewardship and fee based programs to encourage more energy efficient light bulbs and reduce hazardous waste generated by light bulbs throughout their lifecyle, it remains a work in progress. The Committee may wish to consider making the following amendments: a) Require, on page 11, line 11, that mercury collected through the product stewardship program should be reclaimed and recycled, rather than disposed of; b) Clarify, on page 17 line 23, that the requirement for DTSC to invite comments from stakeholders applies to the program created by this bill, not all product stewardship programs; and c) Clarify, on line 7 and line 13 of page 18, that the fee being referred to is that in Section 25210.20, not Section 25250.20 or 25201.20. REGISTERED SUPPORT / OPPOSITION : Support Natural Resources Defense Council (Sponsor) Breast Cancer Fund California Association of Environmental Health Administrators California League of Conservation Voters Californians Against Waste California Product Stewardship Council California Resource Recovery Association Central Contra Costa Solid Waste Authority City and County of San Francisco County of Santa Clara- Board of Supervisors Environmental Defense Fund Environmental Working Group Environment California Napa County Planning and Conservation League Stop Waste Support if amended Pacific Gas and Electric AB 2176 Page 10 San Diego Gas and Electric Southern California Edison Opposition General Electric Lighting OSRAM Sylvania, Inc. Phillips Analysis Prepared by : Shannon McKinney / E.S. & T.M. / (916) 319-3965