BILL ANALYSIS
SB 757
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Date of Hearing: June 30, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 757 (Pavley) - As Amended: June 23, 2009
SENATE VOTE : 21-13
SUBJECT : LEAD WHEEL WEIGHTS
KEY ISSUE : SHOULD THE LEGISLATURE PROHIBIT THE MANUFACTURE,
SALE, AND INSTALLATION OF LEAD WHEEL WEIGHTS IN CALIFORNIA AND
ENACT SPECIFIED CIVIL AND ADMINISTRATIVE PENALTIES FOR
VIOLATIONS OF THE PROHIBITION?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill, co-sponsored by the Center for Environmental Health
and Clean Water Action, seeks to prohibit the manufacture, sale,
and installation of lead wheel weights, and enacts specified
civil and administrative penalties for violations of the
prohibition. Lead wheel weights are commonly used to balance
vehicle wheels, but regularly separate from vehicles upon impact
with curbs or potholes. Separated wheel weights are inevitably
ground into smaller particles by roadway traffic, and the
resulting lead dust can wash into storm drains, streams, and
reservoirs, where it may contaminate supplies of drinking water.
Lead is a potent neurotoxin, linked to cancer and brain damage,
and does not easily break down in the environment. This bill
seeks to codify the settlement in a recent Proposition 65
enforcement action, in which leading manufacturers of lead wheel
weights agreed to phase out their use in California. The bill
clarifies that new lead alternatives in wheel weights will still
be subject to the evaluation process prescribed by existing
Green Chemistry law. Supporters of the bill contend that the
bill will not only protect the environment and public health,
but will also create a level playing field to enable "good
actor" companies, who are eradicating lead from their products,
to effectively compete with overseas companies who continue to
manufacture lead wheel weights. There is no known opposition to
this bill. After passing off the Senate floor with by a 21-13
vote, the bill was approved by the Assembly Environmental Safety
and Toxics Committee by a 5-1 vote.
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SUMMARY : Seeks to prohibit the manufacture, sale, and
installation of lead wheel weights, and enacts specified civil
and administrative penalties for violations of the prohibition.
Specifically, this bill :
1)Prohibits the manufacture, sale, or installation of a wheel
weight in California that contains more than 0.1 percent
(0.1%) lead by weight.
2)Provides that a person who violates these provisions shall not
be subject to criminal penalties, but may be enjoined by a
court and subject to an administrative or civil penalty not to
exceed $2,500 per day for each violation.
3)Requires the presiding officer or the court, in assessing the
amount of an administrative or civil penalty, to consider a
number of specified factors, including: 1) the nature and
extent of the violation; 2) the number and severity of the
violations; 3) the economic effect of the penalty on the
violator; 4) any good faith efforts taken by the violator to
comply; 5) the willfulness of the misconduct; 6) the deterrent
effect of the penalty; and 7) any other factors that justice
may require.
4)Requires administrative and civil penalties collected pursuant
to this legislation to be deposited in the Hazardous Waste
Control Account, for expenditure by the Department of Toxic
Substances Control (DTSC), to implement and enforce these
provisions.
5)Provides that if an alternative to lead contained in wheel
weights is identified as a chemical of concern, pursuant to
the Green Chemistry law, then the lead alternative shall be
subject to the prescribed evaluation process to best limit its
exposure to the public or reduce the level of hazard it poses
to human health or the environment.
6)Provides that nothing in this legislation shall prohibit or
restrict the authority of the DTSC, pursuant to the Green
Chemistry law, to take actions on a chemical or chemical
ingredient in wheel weights, including, but not limited to, an
alternative to lead.
EXISTING LAW :
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1)Pursuant to the Safe Drinking Water and Toxic Enforcement Act
of 1986, enacted by Proposition 65:
a) Prohibits persons from knowingly discharging or
releasing a chemical known to the state to cause cancer or
reproductive toxicity into water or onto or into land where
such chemical passes or probably will pass into any source
of drinking water. (Health & Safety Code Section 25249.5.)
b) Provides that a person who violates these provisions
shall not be subject to criminal penalties, but may be
enjoined by a court and subject to a civil penalty not to
exceed $2,500 per day for each violation.
c) Requires the court, in assessing the amount of any civil
penalty, to consider a number of specified factors,
including: 1) the nature and extent of the violation; 2)
the number and severity of the violations; 3) the economic
effect of the penalty on the violator; 4) any good faith
efforts taken by the violator to comply; 5) the willfulness
of the misconduct; 6) the deterrent effect of the penalty;
and 7) any other factors that justice may require.
2)Prohibits the manufacturing, shipping, selling, offering for
sale, or offering for promotional purposes, of specified types
of jewelry, unless the jewelry complies with certain
requirements on its composition that restrict the amount of
lead that may be present. Specifies administrative and civil
penalties for violation of this prohibition, and requires the
officer or court to consider various factors in assessing the
amount of the penalty. (Health & Safety Code Section 25214.1
et seq.)
3)Pursuant to the Green Chemistry Initiative:
a) Requires the DTSC, by January 1, 2011, to adopt
regulations to establish a process to identify and
prioritize chemicals or chemical ingredients in products
that may be considered a "chemical of concern," in
accordance with a review process, as specified.
b) Requires the DTSC to adopt regulations to establish a
process for evaluating chemicals of concern in products,
and their potential alternatives in order to determine how
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best to limit exposure or to reduce the level of hazard
posed by a chemical of concern, as specified. (Health and
Safety Code Section 25251 et seq.)
COMMENTS : This bill, co-sponsored by the Center for
Environmental Health and Clean Water Action, seeks to prohibit
the manufacture, sale, and installation of lead wheel weights,
and enacts specified civil and administrative penalties for
violations of the prohibition.
Separated Lead Wheel Weights Can Contaminate Drinking Water,
Posing Health Risks : Lead has long been the material of choice
in weights used to balance vehicle wheels. According to the
U.S. Geological Survey, about 65,000 tons of lead wheel weights
are in use in over 200 million cars and trucks that are driven
in the U.S. Unfortunately, these lead weights regularly
separate from vehicles upon impact with curbs or potholes and
are ground into lead dust by traffic as they lie in the roadway.
The lead dust can wash into storm drains, streams, and
reservoirs, where it may contaminate supplies of drinking water.
The Environmental Protection Agency (EPA) considers lead and
lead compounds to be "persistent bioaccumulative toxic"
chemicals because they remain in the environment for a long
time, are not readily destroyed, and build up or accumulate in
body tissue. Lead is a potent neurotoxin that is linked to
cancer and can cause brain damage, including irreparable harm to
the brains of children and developing fetuses. Lead exposure
can result in mental retardation, learning and behavioral
disabilities, as well as impaired growth, motor function, vision
and hearing.
This Bill Codifies A Recent Settlement of a Proposition 65
Enforcement Action . In August 2008, Chrysler and three other
lead wheel weight makers agreed to end shipment and installation
of lead wheel weights in California by the end of 2009 as part
of the settlement of a Proposition 65 enforcement action brought
by the Center for Environmental Health, one of the co-sponsors
of this bill. ("Lead wheel weights to be phased out in
California by end of 2009," Los Angeles Times , 8/21/2008.) The
settlement was approved by Alameda County Superior Court Judge
Barbara Miller and, according to the author, marks the
first-ever legally binding statewide rule phasing out lead wheel
weights in the U.S. This bill seeks to codify this settlement,
in order to encourage other companies to begin phasing out use
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of these weights and to ensure that lead does not one day make
its way back into wheel weights sold or installed in California.
The Bill's Proposed Penalties Largely Mirror Those From
Proposition 65 . Under the penalty provisions of this bill,
violators of the prohibition on lead wheel weights shall not be
subject to criminal penalties, but may be enjoined by a court
and subject to a civil penalty not to exceed $2,500 per day for
each violation. As befits a bill that arises from a civil
action to enforce Proposition 65, it is appropriate that the
penalty provisions under this bill mirror existing penalties for
violations of Proposition 65. (See Health & Safety Code Section
25249.7.) In addition, the factors that the court must consider
in assessing the amount of the penalty are identical to the
factors currently required under Proposition 65.
In addition to authorizing the court to assess penalties in a
civil action, this bill also authorizes an administrative
penalty if there is an action filed with the Office of
Administrative Hearings.
The Bill Seeks to Create a Level Playing Field for "Good Actor"
Companies. According to the author, the EPA is sponsoring a
voluntary initiative to reduce the use of lead wheel weights,
but has not officially banned them. Many companies have joined
the initiative, including General Motors, Ford, Chrysler,
Toyota, Costco, Bridgestone Firestone, and Wal-Mart, presumably
because there are economically viable alternatives that can be
made from less hazardous materials than lead. In addition, the
U.S. Defense Department and the U.S. Postal Service are phasing
out lead wheel weights in their fleets nationwide.
With the agreement of Chrysler and three leading manufacturers
to phase out lead wheel weights in California as part of the
recent settlement of that lawsuit, the bill is not only useful
in codifying the planned phase out of lead wheel weights
reflected in the settlement, but also will enable companies who
are eradicating lead from their products to effectively compete
with overseas companies who continue to manufacture lead wheel
weights. As Clean Water Action explains in its letter of
support:
While these [voluntary phase-out] actions are to be
applauded, lead wheel weights are still manufactured
overseas, putting companies moving away from lead at a
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disadvantage. SB 757 will not only serve to protect
the environment and public health, but provide a level
playing field on which "good actor" companies can
effectively compete.
By prohibiting the manufacture, sale, and installation of lead
wheel weights throughout California, this bill levels the
playing field by ensuring that no company doing business in the
state has an economic incentive to "fill the void" and establish
itself as the primary source of lead wheel weights in place of
the companies who previously were the leading manufacturers of
these toxic auto parts. Presumably for this reason, the bill is
even supported by at least one manufacturer of lead wheel
weights, Perfect Equipment, Inc., that was a defendant in the
Proposition 65 enforcement action. There is no known opposition
to the bill.
Recent Amendments Clarify That Lead Alternatives in Wheel
Weights Will Be Evaluated Under the Green Chemistry Law to
Ensure Health and Environmental Safety. Lead wheel weights are
already being phased out in California, and this bill is
intended to further expedite that outcome. However, the bill
does not prescribe an alternative substance that manufacturers
must use to replace lead in wheel weights. Wheel weights in
California may be expected to contain a number of other
chemicals or substances used by manufacturers instead of lead,
some of which may be just as harmful to human health or the
environment as lead.
To ensure that wheel weights containing alternative chemicals
intended to replace lead do not perpetuate the risks to public
health and environmental safety posed by lead, the author has
recently amended the bill to clarify that alternative chemical
ingredients in wheel weights will be subject to the review and
regulatory process set forth by last year's Green Chemistry
Initiative (Health & Safety Code Section 25251 et seq.) to
identify so-called "chemicals of concern" and limit the level of
hazard they pose to human health and the environment. The
author's amendment also clarifies that nothing in this bill will
prohibit or restrict DTSC's authority, pursuant to the Green
Chemistry law, to take appropriate action on any chemical found
in wheel weights, including a lead alternative.
REGISTERED SUPPORT / OPPOSITION :
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Support
Clean Water Action (co-sponsor)
Center for Environmental Health (co-sponsor)
American Federation of State, County and Municipal Employees
(AFSCME)
Consumers Union
East Bay Municipal Utility District (EBMUD)
Environmental Working Group
Perfect Equipment, Inc.
Planning and Conservation League
Sierra Club California
Worksafe
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334