BILL ANALYSIS Ó
AB 488
Page 1
Date of Hearing: April 15, 2013
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 488 (Williams) - As Amended: April 8, 2013
SUBJECT : Recycling: household batteries
SUMMARY : Requires producers of non-rechargeable household
batteries to develop and implement a plan to collect and manage
batteries sold in the state.
EXISTING LAW:
1)Under the California Integrated Waste Management Act of 1989,
requires each city or county to divert 50 percent of solid
waste from landfill disposal or transformation on and after
January 1, 2000. The Act establishes a statewide policy goal
that not less than 75 percent of solid waste be source
reduced, recycled, or composted on and after January 1, 2020.
2)Establishes the California Oil Recycling Enhancement Act,
which requires manufacturers of used oil to pay a fee of 4
cents per quart (16 cents per gallon) to the Department of
Resources Recycling and Recovery (CalRecycle), which then pays
a recycling incentive of 4 cents per quart to industrial
generators, curbside collection program operators, and
certified used oil collection centers for used oil collected
from the public and transported for recycling. The Act
includes related grants and loans, development and
implementation of an information and education program, and a
reporting, monitoring, and enforcement program.
3)Establishes the Electronic Waste Recycling Act of 2003, which
requires a retailer selling a covered electronic device (CED)
in California to collect a recycling fee (between $3 and $5)
from the consumer. Fees are deposited into the Electronic
Waste Recovery and Recycling Account, which is continuously
appropriated to CalRecycle and the Department of Toxic
Substances Control (DTSC) to make electronic waste recovery
payments to cover the net cost of an authorized collector in
operating a "free and convenient" system for collecting,
consolidating, and transporting CEDs, and to make electronic
waste recycling payments to cover an electronic waste
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recycler's average net cost of receiving, processing, and
recycling CEDs. The Act defines CED as a product that
contains a video display device 4 inches and larger.
4)Establishes the Cell Phone Recycling Act, which requires every
retailer of cell phones to have in place a system for the
acceptance and collection of used cell phones for reuse,
recycling, or proper disposal.
5)Establishes the Rechargeable Battery Recycling Act, which
requires every retailer of rechargeable batteries to have in
place a system for the acceptance and collection of used
rechargeable batteries for reuse, recycling, or proper
disposal.
6)Establishes the Dry Cell Battery Management Act, which
establishes requirements for the production and labeling of
consumer products with dry cell batteries and sets limits on
the amount of mercury in those batteries.
7)Establishes the Mercury Thermostat Collection Act, which
requires manufacturers to establish and maintain a program for
mercury-added thermostats. Requires the program to include
collection, handling, and arranging for appropriate management
of mercury-added thermostats.
8)Requires pharmaceutical manufacturers that sell or distribute
a medication in California that is usually self-injected at
home with a hypodermic needle to submit to CalRecycle a plan
that describes any actions taken by the manufacturer for the
safe collection and proper disposal of the waste devices by
July 1, 2010, and annually thereafter.
9)Establishes the Product Stewardship for Carpets Program, which
requires manufacturers of carpet sold in California to submit
a carpet product stewardship plan to CalRecycle that
demonstrates how waste carpet will be collected and properly
managed.
10)Establishes the Architectural Paint Recovery Program, which
requires architectural paint manufacturers to develop and
implement a program to manage waste latex paint.
11)Under the Unfair Business Practices Act, imposes civil
liability and criminal penalties for any unlawful, unfair, or
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fraudulent business act.
THIS BILL establishes a product stewardship program for
household batteries. Under the program:
1)Defines the terms used in the program, including:
a) "Baseline of the number of household batteries collected
by all producers subject to the plan" as the average of all
batteries collected for the previous three calendar years.
b) "Brand" as the name, symbol, word, or traceable mark
that identifies a household battery.
c) "Collection rate" as the amount of batteries a producer
or battery stewardship organization is required to collect
by a specified date.
d) "Household battery" as rechargeable and
non-rechargeable household batteries made of mercury,
alkaline, carbon zinc, nickel-cadmium, and other batteries
typically generated as household waste, including those
used in hearing aids, cameras, watches, computers,
calculators, flashlights, lanterns, lighting, portable
radios and televisions, meters, toys, and clocks.
Excludes: lead-acid batteries, batteries sold in covered
electronic devices, batteries not easily removable or not
intended or designed to be removed from the product.
e) "Household battery stewardship organization" or
"organization" as an organization appointed by one or more
producers to act as an agent on their behalf of to design,
submit, and administer a household battery stewardship
plan.
f) "Household battery stewardship plan" or "plan" as a plan
submitted to CalRecycle by a producer or organization
pursuant to the requirements of the bill.
g) "Recycling" as the process of collecting and preparing
recyclable materials and reusing the materials in their
original form or using them in manufacturing processes that
do not cause the destruction of recyclable materials in a
manner that precludes further use.
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h) "Nonrechargable battery" as a battery weighing two
kilograms or less that is not designed to be electronically
recharged. Includes, but is not limited to, alkaline
manganese, carbon zinc, lithium, silver oxide, and zinc air
batteries.
i) "Producer" as one of the following:
i) The person who manufactures the household battery
and who sells, offers for sale, or is the distributor of,
that household battery in the state under that person's
own name or brand; or,
ii) If there is no person who meets the above
definition, the owner or licensee of a trademark or brand
under which the household battery is sold or distributed
in the state, whether or not the trademark is registered.
j) "Retailer" as the person that offers new household
batteries in a retail sale, including remote offerings and
Internet sales.
aa) "Wholesaler" as a person that offers new household
batteries for sale in the state at a sale that is not a
retail sale, and for which the batteries are intended to be
resold.
2)On or before January 1, 2015, requires each producer or
organization to submit a product stewardship plan to
CalRecycle.
3)Requires that any organization formed to develop and implement
a plan must include "one voting member" from each of the
following, with priority given to members located in
California:
a) Retailers;
b) Local governments;
c) Public representatives;
d) Haulers; and,
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e) Recyclers.
4)Requires the producer or organization to consult with
stakeholders, solicit stakeholder comments, and respond to any
comments received.
5)Requires that the plan include the following:
a) The collection rate for the household batteries subject
to the plan, as specified, which must be at least a 25
percent increase over the baseline;
b) Contact information for the producers and a description
of all brands included in the plan;
c) Information regarding the number and type of "convenient
collection opportunities provided free of charge" for
consumers in all counties of the state, and ways that the
existing collection infrastructure can be maximized to
achieve the goals of the program;
d) A description of the methods that will be used to
recycle the batteries collected;
e) Outreach procedures and educational activities;
f) Methods for "disposing of" batteries collected; and,
g) The financing method selected to sustainably fund the
program, which shall not include a separate fee at the
point of sale.
6)Authorizes the producer or organization to develop a program
in conjunction with cities, counties, districts, and regional
agencies. If the producer or organization develops a plan in
conjunction with local agencies, requires that the program
provides for one or more of the following:
a) Reasonable reimbursement for the mutually agreed upon
cost per pound of collected batteries;
b) The location, hours, and contact information for the
collection points within the local jurisdiction; and,
c) Procedures for setting up a collection point within that
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local jurisdiction and providing for the pickup of
batteries collected, including arrangements for disposal.
7)Allows a producer or organization to petition CalRecycle for a
lower collection rate than the rate specified in the plan.
Authorizes CalRecycle to approve the lower rate if it
determines that there are documented exigent circumstances
that are beyond the control of the producer or organization.
8)Requires CalRecycle to act on a plan submitted within 30 days,
as specified, and establishes a procedure if a plan is
rejected. Requires CalRecycle to post all approved plans on
its website. Requires a producer or organization to notify
CalRecycle 30 days prior to making any significant changes to
an approved plan.
9)On or before September 1, 2015, and annually thereafter,
requires CalRecycle to post a list of all approved household
battery brands on its website.
10)On and after April 1, 2015, prohibits a producer, wholesaler,
or retailer from offering a battery for sale that is not
covered by an approved plan.
11)Specifies that retailers have 90 days to cease sales of a
"noncompliant brand" (e.g., a brand not included in an
approved plan and listed in CalRecycle's website). Prohibits
CalRecycle from taking an enforcement action until after the
90 days have expired and requires CalRecycle to issue a
compliance order 30 days before "enforcing" penalties.
12)Requires a producer or an organization to submit an annual
report to CalRecycle beginning April 1, 2015, and annually
thereafter. Requires that the annual report include:
a) The weight of household batteries collected by the
program in the prior year and the collection rate for that
year;
b) A report of estimated total sales data by weight for the
previous three years;
c) A report on the feedback from a stakeholder meeting;
d) Independently audited financial statements that detail
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program financing;
e) Locations, hours, and contact information for all
collection sites;
f) Educational materials; and,
g) The manner in which the batteries collected were
recycled or disposed.
13)Requires a producer or organization to pay a "plan review
fee" at the time the plan is submitted and specifies that
CalRecycle establish the fee at an amount to cover, but not
exceed, its costs associated with reviewing, approving, and
enforcing the plan.
14)Requires a producer or organization to pay an "annual
administrative fee" at the time the annual report is submitted
and specifies that CalRecycle establish the fee at an amount
to cover, but not exceed, its costs associated with reviewing,
approving, and enforcing the requirements of the bill.
15)Authorizes CalRecycle to assess administrative civil
penalties not to exceed $1,000 per day against a wholesaler or
retailer that violates the requirements of the bill, as
specified.
16)Authorizes a producer or organization that implements a plan
in compliance with the bill and incurs costs in excess of
$5,000 in collecting, handling, recycling, or properly
disposing batteries to bring a civil action to recover costs,
damages, and fees from another producer for failure to comply
with the bill, as specified.
FISCAL EFFECT : Unknown
COMMENTS : According to the author, more than 150 million
household batteries are sold in the state annually; yet only
about five percent are currently collected for recycling. AB
488 requires battery manufacturers to design, fund, and operate
a stewardship program to properly manage batteries sold in
California. This bill also requires battery manufacturers to
increase collection and recycling 25 percent by 2019. While 25
percent is a significant increase over the current collection,
which is only about five percent, it is substantially lower than
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the collection goals of similar programs. Producers and
stewardship organizations are required to report annually on
their progress toward meeting this goal and on plan
implementation efforts to CalRecycle, which is tasked with
approving and overseeing the implementation of each stewardship
plan.
Background on batteries . In California, household batteries are
classified as universal waste, which include materials that DTSC
has determined are hazardous waste that are ubiquitous and
contain mercury, lead, cadmium, copper, or other substances
hazardous to human and environmental health. Since 2006,
universal waste has been prohibited from disposal in solid waste
landfills.
Product stewardship . According to the California Product
Stewardship Council:
Product stewardship involves consumers, government
agencies, and product manufacturers sharing the
responsibility of reducing the impact of product waste on
public health, the environment, and the economy. Extended
Producer Responsibility (EPR) is a strategy to place a
shared responsibility for end-of-life product management on
and all entities involved in the product chain, instead of
the general public; while encouraging product design
changes that minimize a negative impact on human health and
the environment at every stage of the product's lifecycle.
This allows the costs of treatment and disposal to be
incorporated into the total cost of a product. It places
primary responsibility on the producer, or brand owner, who
makes design and marketing decisions. It also creates a
setting for markets to emerge that truly reflect the
environmental impacts of a product, and to which producers
and consumers respond.
Local government impacts . Currently, local household hazardous
waste collection programs are the primary outlet for proper
management of universal waste and other hazardous wastes
generated by households, including batteries. Cost estimates to
manage waste batteries average around $800 per ton (with some
costing up to $2700 per ton), amounting to tens of millions of
dollars each year. With decreasing revenues and increasing
responsibilities on local governments, another solution is
necessary to manage these products. Many local governments have
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greatly decreased, or in some instances, shuttered, their
household hazardous waste programs, leaving few management
options for the public. To date, 133 local resolutions have
been adopted in California supporting the EPR model.
Current Battery Recycling Efforts . The non-profit organization
Call2Recycle is working in North America to collect and recycle
rechargeable batteries. Call2Recycle operates under the
Rechargeable Battery Recycling Corporation to promote
"environmental sustainability by providing free battery and cell
phone recycling in North America." The Call2Recycle program for
rechargeable battery and cell phone recycling is available to
residents, retailers, businesses, communities, municipalities,
and public agencies in the U.S. and Canada. The program was
created in 1994 and is funded by battery and product
manufacturers to raise awareness about the importance of battery
recycling and to promote product stewardship initiatives.
In 2006, the European Commission adopted the Batteries Directive
2006/66/EC, which requires member states of the European Union
to reach a 25 percent collection rate by 2012 and 45 percent by
2016. The directive also establishes toxicity limits for
batteries.
Prior legislation . SB 515 (Corbett, 2011) would have required a
producer of batteries sold in California to develop and
implement a household battery stewardship plan describing how it
would achieve collection of household batteries and the maximum
feasible recovery of materials from the collected batteries.
This bill was held in the Senate Appropriations Committee.
SB 1100 (Corbett, 2010) was substantially similar to SB 515.
This bill was held in the Assembly Rules Committee.
Suggested amendments . The committee may wish to consider a
number of amendments to clean-up, revise, and clarify the intent
of this bill:
1)Simplify the definitions of "baseline of the number of
household batteries collected by all producers subject to the
plan," "brand," "collection rate," "household battery," and
"recycling" and delete the unnecessary definitions of
"distributor" and "sell or sales."
2)Remove references to rechargeable batteries in the definitions
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and plan requirements; rechargeable batteries are not intended
to be included in the program and were added by a drafting
error.
3)Delete references to the "disposal of" household batteries and
replace them with "management" or "recycling" for consistency
with the intent of the bill.
4)Specify that the stakeholder meeting required during
development of the stewardship plan be made available to the
public through telecommunications.
5)Require that the plan submitted to CalRecycle include a report
on the feedback from any stakeholders' meetings.
6)Clarify that outreach efforts should be made to businesses,
rather than "employers."
7)Shorten the time allotted to CalRecycle for reviewing a
revised stewardship plan from 45 days to 30 days.
8)Revise the date by which CalRecycle is required to post a list
of approved household battery brands and the date by which
retailers and wholesalers must cease sales of batteries that
are not approved by CalRecycle to April 1, 2015 and September
1, 2015, respectively.
9)Delete the requirement that the fee associated with the plan
be paid at the time of plan approval. A different provision
in the bill requires that the fee be paid when the plan is
submitted to CalRecycle.
10)Correct references to "noncompliant brands" to specify that
the provisions apply to brands not approved by CalRecycle.
11)Require producers or stewardship organizations to hold a
stakeholder meeting prior to submitting the annual report, to
be consistent with the reporting requirements and the stated
intent of the author.
12)Delete the requirement for "independently audited financial
statements," and instead authorize CalRecycle to perform
audits of reported financial data.
13)Clarify that when posting the plan or annual report on its
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website, CalRecycle shall not disclose any information that is
protected pursuant to the Uniform Trade Secrets Act.
14)Clarify that CalRecycle shall not "issue" rather than
"enforce" a penalty against a retailer or wholesaler prior to
the 90-day timeline established by the bill.
15)Exempt medical devices, as defined by the federal Food, Drug,
and Cosmetic Act [United States Code 18.32, Title 21, Section
321, Paragraph (h)], which would make it consistent with other
state EPR programs and prevent any impact on the availability
and cost of these devices.
16)Delete the provision that authorized producers to pursue cost
recovery in "any court in the state, without regard to the
amount in dispute," as this provision conflicts with laws that
govern the roles and jurisdictions of the courts.
17)Make related technical and clarifying changes.
REGISTERED SUPPORT / OPPOSITION :
Support
California Product Stewardship Council (sponsor)
California State Association of Counties
Californians Against Waste
Central Contra Costa Solid Waste Authority
City of Chula Vista
City of Covina
City of Monterey
City of Roseville
City of Sacramento
City of San Diego
City of Sunnyvale
City of Torrance
Contra Costa Clean Water Program
Contra Costa County
ECS Refining
Green Cities California
Marin County Hazardous and Solid Waste Management Joint Powers
Authority
Marin Sanitary Service
Monterey Regional Waste Management District
Napa County Board of Supervisors
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National Electrical Manufacturers Association
Rural County Representatives of California
Santa Barbara County
Sierra Club California
Sonoma County
South Bayside Waste Management Authority (Rethink Waste)
Tamalpais Community Services District
Yolo County Waste Management Authority
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Opposition
Advanced Medical Technology Association (AdvaMed)
BayBio
California Healthcare Institute
California Manufacturers and Technology Association
DynaVox
FELD Entertainment
Pharmaceutical Researchers and Manufacturers of America (PhRMA)
Silicon Valley Leadership Group
TechAmerica
TechNet
Analysis Prepared by : Elizabeth MacMillan / NAT. RES. / (916)
319-2092