BILL ANALYSIS                                                                                                                                                                                                    



                                                                SB 346
                                         

                      SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
                        Senator S. Joseph Simitian, Chairman
                              2009-2010 Regular Session
                                           
           BILL NO:    SB 346
           AUTHOR:     Kehoe             
           AMENDED:    April 2, 2009
           FISCAL:     Yes               HEARING DATE:     April 20, 2009
           URGENCY:    No                CONSULTANT:       Caroll  
           Mortensen
            
           SUBJECT  :    BRAKE PADS

            SUMMARY  :    
           
            Existing law  :

           1) Requires the Department of Toxic Substances Control (DTSC),  
              by January 1, 2011, to adopt regulations to establish a  
              process to identify and prioritize chemicals or chemical  
              ingredients in consumer products that may be considered a  
              "chemical of concern," in accordance with a review process,  
              as specified.

           2) Requires DTSC, on or before January 1, 2011, to adopt  
              regulations to establish a process to evaluate chemicals of  
              concern, and their potential alternatives, in consumer  
              products in order to determine how best to limit exposure  
              or to reduce the level of  hazard posed by a chemical of  
              concern, as specified.

           3) Prohibits the manufacture, processing, and distribution in  
              products containing certain materials found to raise health  
              risks, including lead, polybrominated diphenyl ethers  
              (PBDEs), and phthalates.

           4) Requires the State Water Resources Control Board and the  
              California regional water quality control boards regulate  
              the discharge of stormwater in accordance with the federal  
              Clean Water Act and the Porter-Cologne Water Quality  
              Control Act.











                                                                SB 346
                                                                 Page 2


            
           This bill  :  

           1) Prohibits, after January 1, 2021, the sale of brake pads in  
              California that contain more than 5% copper by weight.

           2) Prohibits, after January 1, 2032, the sale of brake pads in  
              California that contain more than 0.5% copper by weight.

           3) Requires manufacturers of vehicles and brake pads to  
              monitor and provide two reports to DTSC on their efforts to  
              comply with the copper reduction mandate.  The first report  
              is due on or before January 1, 2016; the second, on or  
              before January 1, 2018.

           4) Prohibits, after January 1, 2014, the sale of brake pads in  
              California that contain the following materials in the  
              amounts specified:
              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.

           5) Requires, on or before January 1, 2013, DTSC to perform a  
              base-line survey of the levels of nickel, zinc, copper and  
              antimony in brake pads.

           6) Requires, on January 1, 2013 and at least every three years  
              thereafter, DTSC to monitor for nickel, zinc, and antimony  
              to ensure that the levels of those constituents to not  
              increase more than 50% above the levels established in the  
              baseline study in #5 above.

           7) Requires, if the levels for any of materials in #5 above  
              exceed the 50% threshold established in #6 above, DTSC to  
              take further action with other state agencies as specified  
              to determine if there is a need to control the use of those  
              materials.

           8) Requires manufacturers of brake pads to follow the process  
              to be adopted by DTSC regarding criteria to evaluate  









                                                                SB 346
                                                                 Page 3

              alternatives to copper in brake pads.  

           9) Requires, on January 1, 2014, all brake pad manufacturers  
              to obtain certification as specified to demonstrate  
              compliance with the requirements in #4 above and include  
              that certification on the brake pads.

           10)Requires, on January 1, 2021 and until December 31, 2031,  
              all brake pad manufacturers to obtain certification as  
              specified as to compliance with the requirements in #1  
              above and include that certification on the brake pads.

           11)Requires, on January 1, 2032, all brake pad manufacturers  
              to obtain certification as specified as to compliance with  
              the requirements in #2 above and include that certification  
              on the brake pads.

           12)Requires vehicle manufacturers and retailers of brake pads  
              to ensure that only compliant brake pads are sold in this  
              state.

           13)Establishes a civil fine of up to $10,000 per violation of  
              the new article.

           14)Establishes DTSC as the enforcing agency for the new  
              article and permits them to remove non-compliant brake pads  
              from sale.

           15)Requires, on January 1, 2011, DTSC to impose a fee of $1.00  
              per axle set of brake pads sold in this state (installed in  
              a new car and replacement pads) and after January 1, 2015  
              allows DTSC to adjust the fee as necessary to fully  
              implement the new article.

           16)Requires that the fee be used to only cover specified costs  
              related to control of copper and other materials in brake  
              pads.

           17)Allows up to 5% of the fees collection to be used for  
              account costs of fee collection.

           18)Allows funds to be allocated by DTSC to trade associations  
              associated with brake pad sale and manufacture for purposes  









                                                                SB 346
                                                                 Page 4

              of outreach to their memberships. 

           19)Requires DTSC to consult with the State Water Resources  
              Control Board regarding implementation of the new article  
              and use of the fees.

            COMMENTS  :

            1) Purpose of Bill  .  According the author, elevated copper  
              levels occur in urban watersheds across California.   
              Dissolved copper is toxic to phytoplankton (the base of the  
              aquatic food chain).  It also impairs salmon's ability to  
              avoid predators and deters them from returning to their  
              home streams to spawn.  Scientific studies have shown that  
              a major source of copper in highly urbanized watersheds is  
              material worn off vehicle brake pads. It is estimated that  
              about one-half of the copper found in run-off is attributed  
              to brake pads.

            2) Total Maximum Daily Loads  .  The State Water Resources  
              Control Board (SWRCB) has established Total Maximum Daily  
              Loads (TMDLs) as allowable pollution limits on copper and  
              other pollutants in several Southern California urban  
              watersheds.  Failure to comply with these TMDLs will result  
              in serious penalties to the responsible jurisdictions.  The  
              SWRCB is working to establish these TMDLs for watersheds  
              throughout California. The ubiquity of copper in the urban  
              environment, and the technical difficulty and  
              impracticality of treating stormwater to remove it, mean  
              that compliance with copper TMDLs will not be feasible  
              without source reduction of copper. Cost could go into the  
              billions of dollars to remediate if source reduction  
              measures are not taken.

            3) The Brake Pad Partnership  .   The Brake Pad Partnership is a  
              collaborative group of brake manufacturers,  
              environmentalists, stormwater management entities, and  
              regulators that originally came together to understand the  
              impact on the environment of brake pad wear debris.  Before  
              the Partnership committed to investing significant state  
              and private resources in technical studies, the Brake  
              Manufacturers Council (BMC) and its members (primarily  
              manufacturers of original equipment friction materials)  









                                                                SB 346
                                                                 Page 5

              agreed to introduce reformulated products if the technical  
              studies indicated that copper in brake pads was  
              contributing significantly to water quality impairment.   
              The SWRCB and Caltrans together contributed close to $1  
              million towards paying for the subsequent research into the  
              issue.  In late 2007 the Partnership completed a series of  
              interlinked laboratory, environmental monitoring, and  
              environmental modeling studies that indicated that brake  
              pads are a substantial contributor to copper in runoff to  
              the San Francisco Bay.  As the technical studies' results  
              emerged, the Partnership shifted its focus to determining  
              an appropriate mechanism for reducing copper in brakes in  
              California.  According to the sponsor, the result is this  
              measure as a product of a collaborative, consensus-based  
              approach to crafting a workable balance between necessary  
              innovations, long manufacturing timelines, and the  
              stringent water quality compliance deadlines facing  
              California.  Details of these studies can be found at  
               www.suscon.org/brakepad  .

            4) Baseline Studies and Alternatives  .  The bill requires DTSC  
              to do work in evaluating what is currently in brake pads  
              and keeping an eye on what the new pads will contain.  The  
              bill requires, if levels of nickel, zinc, and antimony  
              increase in pads, that DTSC consult with the appropriate  
              state agency to determine if there is a need to try to  
              limit those levels.  This type of study will allow DTSC to  
              keep abreast of the new materials in the brake pads and try  
              to prevent other public health and environmental issues.   
              This coupled with the requirement on brake pad  
              manufacturers to follow a process to evaluate alternatives  
              to copper in brake pads to ensure the alternatives to  
              copper do not have the same problematic characteristics.

            5) Long Time Lines for Implementation  .  Vehicle design,  
              including that of the braking system, is a complex process  
              and must incorporate the lengthy development, safety and  
              performance testing, and manufacturing timelines for brake  
              pads and vehicles.  This begs the question of other  
              hazardous materials in an automobile and what can be done  
              to encourage auto manufacturers to look more  
              comprehensively at design and materials used to eliminate  
              the need to address environmental and health threats after  









                                                                SB 346
                                                                 Page 6

              production.  If the timelines are indeed 10-15 years for  
              design to production, efforts should be undertaken to  
              ensure new cars are built to be as 'clean' as possible  
              during their useful life as well as easy to recycle at the  
              end, including, using non-toxic and non-hazardous materials  
              in construction.
            
           6) Amendment Needed .  To further clarify this new article an  
              amendment is need to clarify that DTSC does not have the  
              authority to recall a new vehicle if it is found to have  
              non-compliant brake pads, but is authorized to impose  
              penalties on automobile manufacturers as described in the  
              bill.

            SOURCE  :        Sustainable Conservation on behalf of the Brake  
                          Pad Partnership, City of San Diego  

           SUPPORT  :       Akebono Brake Corporation
                          Alameda Countywide Clean Water Program
                          Alameda County
                          Bay Area Stormwater Management Agencies  
                          Association
           California Coastkeeper Alliance
                          California Council for Environmental and  
                          Economic Balance
                          California Product Stewardship Council
                          California Stormwater Quality Association
                          City/County Association of Governments of San  
                          Mateo County
                          City of Camarillo
                          City of Concord
                          City of Clayton
                          City of Cupertino
                          City of Los Angeles
           City of Laguna Woods
                          City of Monte Sereno
                          City of Ojai
                          City of Palo Alto
           City of Port Hueneme
                          City of San Diego
           City of San Pablo
                          City of Thousand Oaks
           CLEAN South Bay









                                                                SB 346
                                                                 Page 7

                          Clean Water Action
                          Clean Water Consultants
                          Contra Coast Clean Water Program
                          Environmental Health Coalition
                          San Diego Coastkeeper
                          San Francisco Baykeeper
                          Santa Clara Valley Urban Runoff Pollution  
                          Prevention Program
                          Save the Bay
                          Sierra Club California
                          TDC Environmental
                          Ventura Countywide Stormwater Quality  
                          Management Program
                          West Valley Clean Water Program
            
           OPPOSITION :    Alliance of Automobile Manufacturers