BILL ANALYSIS SB 346 PageA Date of Hearing: June 15, 2010 ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS Pedro Nava, Chair SB 346 (Kehoe) - As Amended: June 7, 2010 SENATE VOTE : 22-16 SUBJECT : Motor vehicle brake pads: copper. SUMMARY : Restricts the use of copper and other toxic chemicals in automobile brake pads. Specifically, this bill : 1)Limits the use of copper in motor vehicle brake pads to no more than .5 percent by weight by January 2025. 2)Exempts vehicles from the copper limitation on brake pad including: a) Military vehicles: b) Vehicles with internal closed oil immersed brakes that do not emit copper or other debris under normal operating conditions; c) Parking brakes; and d) Motorcycles. 3)Restricts the use of the following toxic materials in brake pads by January 1, 2014: 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; and d) Mercury and its compounds: 0.1 percent by weight. 4)Requires manufacturers of brake pads to follow the process to be adopted by DTSC regarding criteria to evaluate alternatives to copper in brake pads. 5)Require brake pad manufacturers, beginning in 2014, to obtain certification to demonstrate compliance with these requirements and include that certification of the content of the brake pads. 6)Requires vehicle manufacturers and retailers of brake pads to ensure that only compliant brake pads are sold in this state. 7)Establishes a civil fine of up to $10,000 per violation of the SB 346 PageB brake pad certification requirements. 8)Establishes Department of Toxic Substances Control (DTSC) as the enforcing agency for the new article and permits them to remove non-compliant brake pads from sale, but specifically does not authorize the recall of vehicles to effect the removal of illegal brake pads. EXISTING LAW 1)Requires 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)Requires the State Water Resources Control Board and the California Regional Water Quality Control Boards to regulate the discharge of stormwater in accordance with the Federal Clean Water Act and the Porter-Cologne Water Quality Control Act. FISCAL EFFECT : Not known. COMMENTS : 1)Need for the 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. SB 346 PageC 2)Copper in the aquatic environment . According to the U.S. EPA, elevated levels of copper are toxic in aquatic environments and may adversely affect fish, invertebrates, plants, and amphibians. Acute toxic effects may include mortality of organisms; chronic toxicity can result in reductions in survival, reproduction, and growth.<1> Motor vehicles are a major source of toxic contaminants such as copper, a metal that originates from vehicle exhaust and brake pad wear. Copper and other pollutants are deposited on roads and other impervious surfaces and then transported to aquatic habitats via stormwater runoff. 3)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 local governments. 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. 4)Washington State Copper Brake Pad Legislation . In March of 2010 the state of Washington enacted the first state restriction on copper brake pads. That bill, SB 6556, provides that by January 1, 2015, brake pads sold as replacement parts (after-market brake pads) may not exceed 5 percent copper by weight. By January 1, 2020, new vehicles may not have brake pads that exceed 5 percent copper. The State of Washington may require copper levels as low as .5 percent if they find that those products are available. Issues: 1)Do we need a regulatory process for vehicles for which brake --------------------------- <1> US, EPA, Aquatic Life Ambient Freshwater Quality Criteria-Copper 2007 Revision (February 22, 2007). SB 346 PageD friction materials containing less than .5% copper content cannot be developed by the statutory deadline? Auto industry and brake pad manufactures have suggested that an "off-ramp" is needed in the event the industry does not meet the 2025 deadline based on the inability to develop an effective alternative to the copper content in vehicle brake pads. 2)Should the existing vehicle fleet be allowed to continue to use copper brake pads after the 2025 deadline ? Auto industry and brake pad manufactures have argued that there needs to be an exemption from the .5% copper limit for brake pads designed for vehicles manufactured prior to the operative date of the .5% copper limit. At this time the State does not know if new non-copper brake pads will operate effectively on the current and future auto braking systems. 3)Is third party certification needed to insure proper enforcement of the copper restrictions ? The bill as currently drafted provides for certification by an independent third party certification process for brake pads sold in California after 2014. This private party certification may provide a less expensive and more user friendly process for insuring enforcement of this new copper standard than a traditional DTSC certification and enforcement model. 4)Green Chemistry coordination and evaluation of safer alternatives. As part of the Green Chemistry Initiative, the Governor signed AB 1879 (Feuer and Huffman) Chapter 559, Statutes of 2008, 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. "Consumer product" is broadly defined as a product or part of the product that is used, bought, or leased for use by a person for any purpose including auto parts like vehicle brake pads. The current Green Chemistry statute contains two relevant provisions. This bill and the green chemistry statute provides for an evaluation of alternatives to a chemical of concern. This means that manufactures must examine the alternatives to a chemical to assure that the replacement product is less harmful to the environment. SB 346 attempts to reference the current Green Chemistry statute addressing the alternatives analysis but appears to in fact adopt the SB 346 PageE entirety of the green chemistry process established in Health and Safety Code section 25253. The enactment of this bill may have the effect of precluding any action by DTSC on brake pads under the State Green Chemistry statute. Specifically, the current law provides an exemption from Green Chemistry for those products subject to regulation similar to the Green Chemistry Statutes (H&S code 252571(c)). This bill may be interpreted as an exemption for vehicle brake pads from the current authority under Green Chemistry. The Committee may consider adopting an amendment to limit the manufactures obligation to perform an alternative analysis to those already outlined in the Green Chemistry statute. The Committee may consider adopting amendments to allow the Green Chemistry process to establish new standards for brake pads if DTSC finds that more stringent standards are warranted as a result of the Green Chemistry evaluation. REGISTERED SUPPORT / OPPOSITION : Support: Sustainable Conservation (co-sponsor) City of San Diego (co-sponsor) Alameda County Board of Supervisors Bay Area Stormwater Management Agencies Association California Association of Environmental Health Administrators California League of Conservation Voters California Product Stewardship Council California State Association of Counties California Stormwater Quality Association Center for Environmental Health City and County of San Francisco City of Arcadia City of Azusa City of Bellflower City of Beverly Hills City of Camarillo City of Carson City of Cerritos SB 346 PageF City of Commerce City of Covina City of Downey City of Duarte City of La Marada City of Lakewood City of Long Beach City of Los Angeles City of Lynwood City of Monterey Park City of Norwalk City of Paramount City of Rolling Hills City of San Jose City of San Pablo City of Santa Marino City of Sante Fe Springs City of Signal Hill City of Thousand Oaks City of Torrance City of Vernon City of Vista City of Whittier City/County Association of Governments of San Mateo County Clean Water Action Coalition for Practical Regulation Coastal Environmental Rights Foundation Environmental Entrepreneurs Forests Forever Heal the Bay Industrial Environmental Association League of California Cities Los Angeles County Flood Control District Natural Resources Defense Council Planning and Conservation League Port of San Diego San Diego Coastkeeper Save the Bay Sierra Club California StopWaste.Org TDC Environmental U.S. Department of the Navy UC San Diego Ventura County Board of Supervisors Ventura Countywide Stormwater Quality Management Program SB 346 PageG Opposition Association of International Automobile Manufacturers Automotive Aftermarket Industry Association Automotive Service Councils of California Best Brakes California Autobody Association California Automotive Business Coalition California Automotive Wholesalers' Association California New Car Dealers Association California Retailers Association Centric Parts Coalition for Auto Repair Equality Motor and Equipment Manufacturers Association O'Reilly Auto Parts Power Slot Stop Tech Analysis Prepared by : Bob Fredenburg / E.S. & T.M. / (916) 319-3965