BILL NUMBER: SB 346 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 24, 2009
AMENDED IN SENATE JUNE 1, 2009
AMENDED IN SENATE MAY 20, 2009
AMENDED IN SENATE APRIL 23, 2009
AMENDED IN SENATE APRIL 2, 2009
INTRODUCED BY Senators Kehoe and Simitian
FEBRUARY 25, 2009
An act to add Article 13.5 (commencing with Section 25250.50) to
Chapter 6.5 of Division 20 of the Health and Safety Code, relating to
hazardous materials.
LEGISLATIVE COUNSEL'S DIGEST
SB 346, as amended, Kehoe. Hazardous materials: motor vehicle
brake friction materials.
(1) Existing law establishes the Department of Toxic Substances
Control, in the California Environmental Protection Agency, with
powers and duties regarding the management of hazardous waste.
Existing law, administered by the department, prohibits the
management of hazardous waste except in accordance with the hazardous
waste control laws, including laws governing the removal of any
mercury-containing vehicle light switch from a vehicle, and the
regulations adopted by the department. A violation of the hazardous
waste control laws is a crime.
This bill would require the department to conduct a baseline
survey, on or before January 1, 2013, of the concentration levels of
nickel, zinc, copper, and antimony in motor vehicle brake friction
materials. The bill would require the department, commencing on
January 1, 2013, and at least every 3 years thereafter, to monitor
the concentration levels of those metals in motor vehicle brake
friction materials to ensure that those levels do not increase by
more than 50% above the baseline levels established through the
baseline survey. The bill would require the department to take
specified acting action if any of those
metals increased by more than 50%,and 50%,
and would require the department to prioritize the presence of
those constituents in brake friction materials for regulation, as
specified.
The bill also would require the department to monitor copper. The
bill would require manufacturer
manufacturers of motor vehicle brake friction materials to
monitor and report to the department on the reduction of copper
concentration in motor vehicle brake friction material. The bill
would require the department to review the reports and, within 6
months of receipt, report certain information to the Legislature.
The bill, commencing on January 1, 2014, would prohibit the sale
of any motor vehicle brake friction materials containing specified
constituents , in amounts that exceed certain
concentrations. The bill, commencing on January 1, 2021, would
restrict the concentration of copper in motor vehicle brake friction
materials sold in California, as specified. The bill, commencing on
January 1, 2014, would require all manufacturers of motor vehicle
brake friction materials that are sold in this state to obtain a
certification of compliance with these requirements from a 3rd-party
testing agency, and to mark proof of certification on the friction
materials. A violation of these provisions would be subject to a
civil fine of up to $10,000 per violation. Because a violation of
these provisions would also be a crime pursuant to the hazardous
waste control laws, the bill would impose a state-mandated local
program.
The bill would require the department, commencing on January 1,
2011, to impose a fee of $1 on each new axle friction materials set
sold in the state, whether fitted to a new vehicle or sold
separately, and would require the department, commencing on January
1, 2012, to adjust annually the fee by an amount necessary to
compensate for inflation. If the department determines, after January
1, 2016, that the average annual revenue from the fee is less than
an amount equivalent to $13,000,000 in 2011 dollars, or more than an
amount equivalent to $16,000,000 in 2011 dollars, the bill would
require the department to adjust the fee to an amount necessary to
fall within that range. The bill would establish the Brake Friction
Materials Water Pollution Fund in the State Treasury, for deposit of
the fee. The bill would require the fee to be used to cover specified
costs related to copper and other constituents in brake friction
materials, and for grants for the purpose of planning, implementing,
and measuring the effectiveness of actions to improve water quality
in surface waters that receive runoff containing pollutants from
vehicle brake friction materials.
The bill would require the department to keep accurate books,
records, and accounts of all of its dealings under the bill, and
would subject those books, records, and accounts, and amounts paid
into or from the fund, to an annual audit.
(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. The Legislature finds and declares all of the
following:
(a) Friction materials are an essential component of motor vehicle
brake systems and of critical importance to transportation safety
and the public safety in general.
(b) Debris from friction materials containing copper in all
of its forms, including, but not limited to, elemental copper and all
of its alloys and compounds, are generated and released to the
surrounding environment in the course of normal brake system
operation.
(c) Limits on the copper content of brake friction materials are
necessary for compliance with copper water quality standards and
successful implementation of copper total maximum daily loads in
California's urban watersheds.
(d) Changes in the composition of brake friction materials made to
comply with copper water quality standards and successfully
implement copper total maximum daily loads in California's urban
watersheds should meet all applicable safety standards.
SEC. 2. Article 13.5 (commencing with Section 25250.50) is added
to Chapter 6.5 of Division 20 of the Health and Safety Code, to read:
Article 13.5. Motor Vehicle Brake Friction Materials
25250.50. For purposes of this article, the following definitions
apply:
(a) "Board" means the State Water Resources Control Board.
(b) "Department" means the Department of Toxic Substances Control.
(c) "Motor Vehicle" has the same meaning as "vehicle" is defined
in Section 670 of the Vehicle Code.
(d) "Testing agency" means an agency approved by the department as
qualified and equipped for the testing of products, materials,
equipment, and installations in accordance with nationally recognized
standards.
25250.52. (a) On and after January 1, 2021, any motor vehicle
brake friction materials exceeding 5 percent copper by weight shall
not be sold in this state.
(b) On and after January 1, 2032, any motor vehicle brake friction
materials exceeding 0.5 percent copper by weight shall not be sold
in this state.
(c) Manufacturers of vehicles and vehicle brake friction materials
shall monitor and provide four reports to the department on the
reduction of the concentration level of copper in motor vehicle brake
friction materials. The first report shall be due on or before
January 1, 2016, the second report shall be due on or before January
1, 2018, the third report shall be due on or before January 1, 2027,
and the fourth report shall be due on or before January 1, 2029.
(d) The department shall review the reports received pursuant to
subdivision (c) and provide the Legislature with reports pursuant to
subdivision (e) no later than six months after receiving each report
required pursuant to subdivision (c).
(e) The reports made by the department to the Legislature shall
include, but not be limited to, all of the following:
(1) A summary of the information contained in the reports received
pursuant to subdivision (c).
(2) Statistics on certifications issued by third-party testing
agencies for friction materials found to be in compliance with any or
all of the requirements of this article pursuant to Section
25250.60.
(3) A summary of the results of the department's monitoring of
copper pursuant to Section 25250.56.
25250.54. On and after January 1, 2014, any motor vehicle brake
friction materials containing any of the following constituents in an
amount that exceeds the following concentrations shall not be sold
in this state:
(a) Cadmium and its compounds: 0.01 percent by weight.
(b) Chromium(VI)-salts: 0.1 percent by weight.
(c) Lead and its compounds: 0.1 percent by weight.
(d) Mercury and its compounds: 0.1 percent by weight.
(e) Asbestiform fibers: 0.1 percent by weight.
25250.56. (a) On or before January 1, 2013, the department shall
conduct a baseline survey of the concentration levels of nickel,
zinc, copper, and antimony in motor vehicle brake friction materials.
Commencing on January 1, 2013, and at least every three years
thereafter, the department shall monitor the following constituents
to ensure that concentration levels of those constituents in motor
vehicle brake friction materials do not increase by more than 50
percent above the baseline levels established through the baseline
survey:
(1) Nickel and its compounds.
(2) Zinc and its compounds.
(3) Antimony and its compounds.
(b) In the monitoring required by subdivision (a), the department
also shall monitor copper.
(c) If monitoring results for zinc show that concentration levels
have increased by more than 50 percent above the baseline levels, the
department shall ask the board to use published data from scientific
literature to estimate the relative contribution of zinc from brake
friction materials to the total quantity of zinc in urban runoff. On
the basis of this estimate, the board shall determine whether there
is a need for controlling the use of zinc in brake friction material.
(d) If monitoring results for nickel show that concentration
levels have increased by more than 50 percent above the baseline
levels, the department shall ask the board to use published data from
scientific literature to estimate the relative contribution of
nickel from brake friction materials to the total quantity of nickel
in urban runoff. On the basis of this estimate, the list adopted as
required by Section 303(d) of the federal Clean Water Act (33 U.S.C.
Sec. 1313(d)), and available water quality monitoring data, the board
shall determine whether there is a need for controlling the use of
nickel in brake friction material.
(e) If monitoring results for antimony show that concentration
levels have increased by more than 50 percent above the baseline
levels, the department shall ask the Office of Environmental Health
Hazard Assessment to review scientific literature to determine
whether there is a need for controlling the use of antimony in brake
friction material.
(f) All studies and surveys conducted by the department under this
section shall be subject to public review and comment.
(g) If the department determines that the scientific studies
demonstrate the need for controlling the use of the studied
constituents in brake friction materials, the department shall
prioritize the presence of the studied constituents in brake friction
materials for regulation pursuant to Section 25252.
(h) Vehicle brake manufacturers shall follow an alternative
evaluation process, for the studied constituents in brake friction
materials, adopted by the department pursuant to Section 25253.
25250.58. The following motor vehicle classes and brakes are
exempt from this article:
(a) Military combat vehicles.
(b) Vehicles employing internal closed oil immersed brakes, or a
similar brake system that is fully contained and emits no copper,
other debris, or fluids under normal operating conditions.
(c) Brakes designed for the primary purpose of holding the vehicle
stationary and not designed to be used while the vehicle is in
motion.
25250.60. (a) Commencing on January 1, 2014, all manufacturers of
friction materials used in brakes on new motor vehicles, or as
replacement parts, that are sold in this state shall obtain a
certification of compliance with the requirements of Section 25250.54
from a third-party testing agency. Proof of certification shall be
marked on the friction materials.
(b) Commencing on January 1, 2021, and until December 31, 2031,
all manufacturers of friction materials used in brakes on new motor
vehicles, or as replacement parts, that are sold in this state shall
obtain a certification of compliance with the requirements of
subdivision (a) of Section 25250.52 and Section 25250.54 from a
third-party testing agency. Proof of certification shall be marked on
the friction materials.
(c) Commencing on January 1, 2032, all manufacturers of friction
materials used in brakes on new motor vehicles, or as replacement
parts, that are sold in this state shall obtain certification of
compliance with the requirements of subdivision (b) of Section
25250.52 and Section 25250.54 from a third-party testing agency.
Proof of certification shall be marked on the friction materials.
(d) Manufacturers of friction materials used for brakes on new
motor vehicles, or as replacement parts, may obtain certification of
compliance with the requirements of subdivision (a) or (b) of Section
25250.52 or Section 25250.54 at any time.
(e) The department, in consultation with all interested parties,
and on or before January 1, 2011, shall develop all certification and
marking criteria required pursuant to this section.
(f) Commencing on January 1, 2014, vehicle manufacturers and
retailers of friction materials shall ensure that only brakes
certified for sale in this state are offered for sale in this state.
25250.62. (a) A violation of this article, including, but not
limited to, the falsification of third-party certification, by
vehicle manufacturers, brake friction materials manufacturers,
distributors, or retailers, shall be subject to a civil fine of up to
ten thousand dollars ($10,000) per violation.
(b) The department shall enforce this article. The department
shall remove from sale in this state any replacement brake friction
materials determined to be not in compliance with this article.
(c) In enforcing this article, the department shall not recall
automobiles fitted with brake friction materials that do not comply
with this article, but the department may impose fines and penalties
authorized pursuant to subdivision (a) on automobile manufacturers
whose vehicles are fitted with brake friction materials that do not
comply with this article.
25250.64. (a) (1) Commencing on January 1, 2011, the department
shall impose a fee of one dollar ($1) on each new axle friction
materials set sold in the state, whether fitted to a new vehicle or
sold separately.
(2) Commencing on January 1, 2012, and every year thereafter, the
department shall adjust the fee on each new axle friction materials
set sold in the state, whether fitted to a new vehicle or sold
separately, by the amount necessary to compensate for inflation.
(3) Commencing on January 1, 2016, and every two years thereafter,
the department shall calculate the average annual revenue amount
raised by the fee based on the previous four years' revenues.
(4) If the department determines that the average annual revenue
amount calculated pursuant to paragraph (3) is less than an amount
equivalent to thirteen million dollars ($13,000,000) in 2011 dollars,
or more than an amount equivalent to sixteen million dollars
($16,000,000) in 2011 dollars, it shall, pursuant to procedures
established by regulation, adjust the fee by the amount necessary to
provide revenue of at least the equivalent of thirteen million
dollars ($13,000,000) in 2011 dollars but no more than the equivalent
of sixteen million dollars ($16,000,000) in 2011 dollars.
(5) On January 1, 2040, the department shall, pursuant to
procedures established by regulation, reduce the fee to the amount
necessary solely to provide sufficient revenue for the implementation
of this article by the department and the board pursuant to
paragraph (1) of subdivision (b) of Section 25250.65.
(b) The fee shall only be used to cover costs for outreach,
administration, fee collection, enforcement, monitoring, and control
measures related to copper and other constituents in brake friction
materials, and for making grants pursuant to Section 25250.65.
(c) Not more than 5 percent of the fees collected pursuant to this
section shall be used to offset accounting costs incurred for fee
collection.
(d) Funds for outreach may be allocated by the department to trade
associations associated with the manufacture and sale of brake
friction materials for purposes of outreach to, and education of,
their memberships.
(e) The department shall consult with the board prior to
allocating funds to, or implementing any provisions of this article
relating to, motor vehicle brake friction materials constituent
monitoring, mitigation, or control measures.
25250.65. (a) The Brake Friction Materials Water Pollution Fund
is hereby established in the State Treasury. All fees collected by
the department pursuant to this article shall be deposited in the
fund.
(b) The moneys in the fund shall be expended, upon appropriation
by the Legislature in the annual Budget Act, in the manner and in the
order of priority as follows:
(1) By the department and the board for the purpose of
implementing this article. No more than 5 percent of the funds shall
be expended by the department and the board to reimburse the costs of
administering paragraphs (2) and (3).
(2) (A) By the department, 90 percent of the balance of moneys
remaining in the fund after moneys have been expended pursuant to
paragraph (1), for grants to qualified entities, on a per capita
basis, for the purpose of planning, implementing, and measuring the
effectiveness of actions to improve water quality in surface waters
that receive runoff containing pollutants from vehicle brake friction
materials.
(B) For purposes of subparagraph (A), "qualified entities" include
cities, counties, cities and counties, organizations representing
municipalities on a watershed basis, and organizations representing
copermittees in a single National Pollutant Discharge Elimination
System permit.
(C) The amount for which a city or a county is eligible shall be
based on the total population of the incorporated area of the city or
the total unincorporated area of the county, whichever is
applicable.
(3) (A) By the department, the remaining 10 percent of the moneys
in the fund, plus any moneys reserved for grants pursuant to
subparagraph (A) of paragraph (2) that have not been allocated, for
grants to be issued on a competitive basis for the purpose of
planning, implementing, and measuring the effectiveness of actions on
a regional or statewide basis to improve water quality in surface
waters that receive runoff containing pollutants from vehicle brake
friction materials.
(B) Eligible applicants for competitive grants include, but are
not limited to, qualified entities, as defined in subparagraph (B) of
paragraph (2), and nonprofit organizations.
(c) The department, in consultation with the board, shall prepare
and adopt guidelines for the awarding and administration of grants
awarded from the fund.
(d) The revenue from the Brake Friction Materials Water Pollution
Fund allocated for the purposes stated in paragraphs (2) and (3) of
subdivision (b) shall not be expended on activities unrelated to the
improvement of water quality in surface waters that receive runoff
containing pollutants from vehicle brake friction materials,
consistent with Sinclair Paint Co. v. State Bd. of Equalization
(1997) 15 Cal.4th 866.
(e) The department shall keep accurate books, records, and
accounts of all of its dealings, and these books, records, and
accounts, and any amounts paid into or from the fund, are subject to
an annual audit by an auditing firm selected by the department. The
annual audit shall be posted on the department's Internet Web site.
The auditing firm or the department shall also conduct a selective
audit of entities making payments to, or receiving payments from, the
board to determine whether payments required by Section 25250.64 are
being paid to the department on all new axle friction materials sets
sold in California, and that grants are being paid out properly by
the department.
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.