BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: AB 1435
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|Author: |Alejo |
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|Version: |2/27/2015 |Hearing |7/15/2015 |
| | |Date: | |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Rachel Machi Wagoner |
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SUBJECT: Hazardous waste: toxics: packaging.
ANALYSIS:
Existing law:
1)Under the Toxics in Packaging Prevention Act (TPPA),
a) Prohibits a manufacturer, supplier or person from offering
for sale or for promotional purposes a package that includes
an intentionally introduced regulated metal (lead, mercury,
cadmium or hexavalent chromium) or in which the sum of the
incidental total concentration levels of the regulated metals
exceeds 100 parts per million by weight.
b) Exempts, until January 1, 2010, packaging from having to
comply with the prohibition, if the packaging contains no
intentionally introduced regulated metals but exceeds the
maximum concentration level because of the addition of a
recycled material if specified conditions are met by the
manufacturer:
i) The manufacturer or supplier must prepare, retain, and
biennially update documentation containing all of the
following information for that package or packaging
component:
(1) A statement that the documentation applies to an
exemption from TPPA requirements;
(2) The name, position, and contact information for
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the person who is the manufacturer's or supplier's
contact person on all matters concerning the exemption.
(3) An identification of the exemption and a
reference to the applicable subdivision of TPPA setting
forth the conditions for the exemption.
(4) A description of the type of package or packaging
component to which the exemption applies.
(5) Identification of the type and concentration of
the regulated metal or metals present in the package or
packaging component, and a description of the testing
methods used to determine the concentration.
(6) An explanation of the reason for the exemption.
(7) Supporting documentation that fully and clearly
demonstrates that the package or packaging component is
eligible for the exemption.
AND
ii) The manufacturer or supplier shall prepare, retain, and
biennially update documentation containing all of the
following information for the package or packaging component
to which the exemption applies:
(1) The type and percentage of recycled material or
materials added to the package or packaging component.
(2) The type and concentration of each regulated
metal contained in each recycled material added to the
package or packaging components.
(3) Efforts to minimize or eliminate the regulated
metals in the package or packaging component.
(4) A description of past, current, and planned
future efforts to seek or develop alternatives to
minimize or eliminate the use of the regulated metal in
the package or packaging component.
c) Requires the Department of Toxic Substances Control (DTSC)
to enforce TPPA.
2)Under Proposition 65, officially known as the Safe Drinking Water
and Toxic Enforcement Act of 1986, protects the state's drinking
water sources from being contaminated with chemicals known to
cause cancer, birth defects or other reproductive harm, and
requires businesses to inform Californians about exposures to
such chemicals. Leaded crystal glass is required to have a
Proposition 65 warning in California.
3)Regulates the content of various heavy metals, such as lead and
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cadmium, in consumer products (e.g. jewelry and candy).
This bill: Provides a permanent exemption from TPPA for glass
beverage, food or drink containers. In doing so, the bill allows
lead, cadmium, mercury or hexavalent chromium at any level in glass
food containers and also exempts manufacturers and suppliers from
preparing, retaining and updating the documentation required under
TPPA.
Background
Toxics in Packaging Model Legislation. The Model Toxics in
Packaging Legislation was jointly developed by representatives for
the Governors of the nine (9) Northeast States, major national
product producers, major national retailers and national and
regional environmental organizations in 1989 working under the
auspices of the Coalition of Northeast Governors (CONEG) Policy
Research Center. The intent was for individual Northeast states to
adopt the Model Legislation, and thereby, create consistent
requirements for the reduction/elimination of four (4) specific
toxics in packaging: lead, cadmium, mercury, and hexavalent
chromium sold or distributed in the Northeast. Most of the
Northeast states passed and implemented laws based on the Model and
in the subsequent years additional states outside of the region as
well as other countries adopted similar laws based on the Model.
Legislation based on this Model has been adopted by nineteen
states.
The influence of the Model Legislation extends beyond United States
borders. The European Union, for example, uses the Model as the
basis of its packaging requirements (94/62/EC). No intentional
introduction of any amount of the four metals is allowed. The sum
of the concentration levels of incidentally introduced lead,
mercury, cadmium, and hexavalent chromium present in any package or
individual packaging component shall not exceed 100 parts per
million by weight.
There are currently no other jurisdictions, with TPPA model laws,
that contemplate a full exemption for glass packaging from the law.
California TPPA. AB 455 (Chu, Chapter 679, Statutes of 2003)
prohibits, on and after January 1, 2006, a manufacturer, importer,
agent, or supplier from offering for sale in California a package
or packaging component that includes a regulated metal, defined as
lead, cadmium, mercury, or hexavalent chromium, if that regulated
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metal has been intentionally introduced into the package or
packaging component during manufacturing or distribution.
Exemptions were provided in the statute under specified conditions
until January 1, 2010 if specific conditions were met.
Although there have been several discussions since 2010 with the
glass manufacturing industry representatives about extending this
exemption, there currently is not an exemption provision in statute
allowing for packaging to exceed the levels specified in TPPA. It
is unknown as to whether or not this industry is currently
operating in compliance with this law.
The intent of this law is to reduce the toxicity in packaging
without discouraging the use of recycled materials in packaging
production. According to then Assembly Member Chu "Consumer goods
packaging makes up a significant portion of waste going to the
nation's municipal solid waste landfills. Packaging containing
toxic substances, especially heavy metals, can release those
poisonous or dangerous substances, contaminating the soil and
groundwater surrounding the landfill."
While the intent of the 2003 enacted TPPA was to limit heavy metal
contamination in landfills, California's TPPA has been amended
several times in the last 12 years acknowledging the need to
control heavy metal contamination throughout the life cycle of
packaging products in order to prevent human health and
environmental exposures.
Health Risks Associated with Heavy Metal Exposure. Lead, cadmium,
mercury, and hexavalent chromium are heavy metals that accumulate
in the body and can present acute and chronic toxicity leading to
serious health risks.
Exposure to heavy metals, such as these listed, accumulate in the
body over time and are suspected of triggering dangerous conditions
like heart disease, cancer, thyroid problems, dementia,
neurological conditions, autism, infertility and birth defects.
Vulnerable populations such as children and pregnant women are at
particular risk to heavy metal toxicity. In 2013, the Centers for
Disease Control and Prevention (CDC) updated it recommendations on
children's blood lead levels, stating that no safe blood lead level
in children has been identified. Lead exposure can affect nearly
every system in the body.
Do Heavy Metals Leach from Glass?
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European Container Glass Federation (FEVE) Study. A recent study,
conducted by FEVE, the European Container Glass Federation,
examined the likelihood that glass with a relatively high level of
lead would experience leaching of the heavy metals into the
contents of the package or the environment. The study found that
glass has, under accelerated migration testing conditions, been
found to be a material of high chemical inertness. This study was
carried out under the direction of the European glass production
industry and has not been published or reviewed in scientific
literature. The proponents of this legislation point to this study
as evidence that the molecular structure of glass makes it unlikely
that metals contained within the glass could leach and therefore
should not be regulated under TPPA. The study found that generally
glass is an inert food contact material with limited potential for
migration of elements of toxic significance in the compositions
commonly used.
Crystal leaches - what is the difference between glass and crystal?
Ordinary glass has been made for thousands of years from
silica-sand, potash and limestone. Crystal is leaded glass: Lead
oxide is added to the molten glass before it is blown (stemware,
tumblers, barware, decanters, pitchers and other hollowware) or
molded (figurines, objects d'art, jewelry and other objects).
Crystal can consist of up to 33% lead. Lead crystal typically
contains 24% to 32% lead oxide.
Tests have shown that, over time, significant amounts of lead can
migrate from lead crystal containers into liquids stored in them.
Because of the potential exposure to lead from crystal, the State
of California requires that crystal products sold in the State of
California be sold with a Proposition 65 warning.
Lead in Bottled Waters: Contamination from Glass and Comparison
with Pristine Groundwater. A study published in 2007 by Drs.
William Shotyk and Michael Krachler with the Institute of
Environmental Geochemistry at the University of Heidelburg found
that the presence of lead in glass bottles can result in exposures
to lead. The study found that lead did leach into bottled water
from glass containers: glass containers had 26-57 times as much
lead contamination as water from polyethylene terephthalate (PET
(E-plastic)) bottles. The study also found that lead
concentrations in glass bottles increased over time. The authors
concluded: "Lead concentrations in bottled waters stored in glass
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are primarily a reflection of the duration of storage in those
containers."
Recycled Glass into Glass Packaging. Recycling glass into viable
reuses has long been an important solid waste management goal for
the state of California. However, laws and policies on this
subject have also acknowledged that all recycled glass is not
appropriate for all uses because of heavy metal contaminants like
lead and mercury.
The presence of heavy metals in recycled glass and the potential
uses of that glass is a concern: a study of feedstock for glass
recycling found that 1 of 29 sources had lead contamination at a
level exceeding the EPA regulatory threshold.
An example of high content leaded glass is the Cathode Ray Tube
(CRT) glass. CRT glass contains high levels of lead and should not
be used in food packaging. There is currently a great deal of CRT
glass awaiting recycling in California because of the difficulty to
control for lead exposure and recovery of the lead in the recycling
process.
Once in the recycled glass cullet stream it is difficult to
differentiate this glass from other sources of glass.
Additionally, should a complete TPPA exemption be provided by this
legislation, CRT glass could be used as a recycled glass source for
food packaging.
Hazardous Waste Enforcement Action against the Gallo Glass Company.
In March, 2015, on behalf of the Department of Toxic Substances
Control, the California Attorney General's Office filed a complaint
against Gallo Glass Company, alleging the company used hazardous
waste in the manufacturing of glass wine bottles made at its
Modesto plant.
The complaint, filed in Alameda County Superior Court, alleges the
company illegally introduced dust containing lead, arsenic, cadmium
and selenium into the manufacture of its wine bottles. The
contaminated dust is generated by air pollution equipment used to
capture regulated pollutants that would otherwise be released into
the air from its furnaces. The dust is considered a hazardous
waste and must be properly managed and disposed of under California
law.
Gallo asserted it was recycling the waste by putting it into
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materials fed into the furnaces and heated to form molten glass
used to make bottles. The complaint alleges that Gallo failed to
demonstrate that its practices qualify as recycling under
California law; that it also did not comply with requirements for
legitimate recycling; and it improperly stored a large volume of
hazardous waste dust in a manner that presented a potential risk to
public health. Gallo's operations generate hundreds of pounds of
hazardous dust a day.
While this was not a violation of TPPA, it does call into question
what practices glass manufacturers are utilizing to make glass and
whether those practices may be leading to unnecessarily higher
levels of heavy metal contamination.
Comments
1)Purpose of Bill. According to the author, "AB 1435 will remove
an inconsistency in our environmental laws and will preserve the
state's recycling program, reduce greenhouse gas emissions, and
protect manufacturing jobs by appropriately exempting glass
containers from the California Toxics in Packaging Law. Glass
containers do not belong in the statute because studies show that
glass is safe and does not leach heavy metals."
Do heavy metals leach from glass and is it a risk that should be
addressed under TPPA? The proponents have produced a report
commissioned by the glass industry in Europe that tested glass
leachability under various conditions. The FEVE study concludes
that the molecular structure of glass is inert and therefore
heavy metals contained within the glass matrix do not leach or
leach at such de minimis levels that they do not pose any risk to
health or the environment. The proponents believe that this
report provides the necessary justification for a complete
exemption from TPPA for all glass food packaging.
The 2007 study by Drs. Shotyk and Krachler found that lead does
leach from glass and raises question as to whether there is
potential exposure. The proponents assert that this is an
imperfect study and the FEVE study is more reliable science and
that the levels of lead found to leach in the study to not pose a
threat to human health and the environment.
However, the discrepancy between the results of these 2 studies
calls into question whether exempting glass packaging from TPPA
is prudent at this time. There are a series of questions/issues
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that should be addressed before an exemption should be granted:
a) Is all glass the same? Clearly this is not the case.
Glass where lead oxide is intentionally added becomes crystal.
Studies done by many authoritative government and academic
institutions have found that lead (and presumably other
molecularly similar heavy metals) leaches from leaded crystal.
The Shotyk/Krachler study found similarly that lead leaches
from standard glass bottles. What made the outcome of the
FEVE study different? What made the glass tested in the FEVE
study impermeable? Was the feedstock or processing of the
glass different? Was it the level of heavy metal contained in
the glass? Are there other conditions to be considered when
looking at leachability?
If different types of glass have different leachability
capabilities, is it appropriate or safe to use this one
singular study as justification for all glass packaging to be
exempt from TPPA?
Given that the CDC recommendation states that there is no safe
level of lead exposure for children, what is the appropriate
leachability standard for glass food and beverage containers?
b) Why a complete exemption now? When AB 455 was originally
considered by the Legislature, testimony was made in Senate
policy committees that resulted in the exemption language in
AB 455 for products containing recycled content. That
exemption was agreed to for a period of seven years and had
numerous requirements for the manufacturers using recycled
content to produce and provide documentation as to why the
exemption was needed in the first place and what the
manufacturers were doing at present and in the future to limit
the introduction of contaminants into their products.
That language was intended to give those industries using
recycled content feedstock an opportunity to improve their
technologies in order to reduce and eliminate heavy metals
from their products. The language was also intended to
require the manufacturers collect and disclose information
about the contaminants contained in their products. What has
happened with these requirements in the last 12 years? It
does not appear that the glass manufacturing industry complied
with the conditions of the exemption granted in 2003.
Additionally, this exemption sunsetted in 2010. What has the
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manufacturing industry done in the last 5 years since the
sunset to come into compliance with TPPA limits and reduce the
presence of heavy metals in their products?
a) Further information is needed. It appears that there is
not clear data concerning several points:
i) Is there an acceptable level of heavy metals in glass
packaging used for food products meant for human
consumption? Should the 2003 levels be re-evaluated taking
into consideration current information about risks to high
risk populations like children and pregnant women associated
with exposure to heavy metals?
ii) What are the current manufacturing processes used for
recycled content glass packaging? What feedstock is used?
Are there controls preventing highly contaminated recycled
glass cullet, like CRT glass, from being used? Are there
things that the industry can/should be doing differently to
control the introduction of heavy metal contaminants into
their products?
2)Conclusion. Should this legislation move forward, amendments are
needed to extend the exemption for a limited period of three
years in order for DTSC to evaluate the questions listed above
concerning feedstock, recycling and manufacturing processes,
leachability and an analysis of the appropriate levels for each
of the heavy metals. Because it appears that the manufacturers
had not previously produced the documentation regarding their
products required under TPPA as a condition of the exemption, an
amendment is needed to require the manufacturers to provide DTSC
the information needed to do this evaluation. Additionally,
because under Proposition 26 limits, DTSC does not have
discretion to use fees collected from other regulated industries
to pay for this evaluation, an amendment is needed to give DTSC
fee authority to collect the needed revenue from the glass
manufacturers in order to do this evaluation.
SOURCE: Glass Packaging Institute
SUPPORT:
Beer Institute
California Labor Federation
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California Manufacturers and Technology Association
Strategic Materials
West Coast Protective League
Wine Institute
OPPOSITION:
Californians Against Waste
Clean Water Action
Environmental Working Group
ARGUMENTS IN SUPPORT: According to the California Wine
Institute, " The FDA has categorized glass as Generally Recognized
as Safe (GRAS) for food and beverage packaging. Glass is
essentially inert in that it does not deteriorate, corrode, stain
or fade and is therefore one of the safest packaging materials. In
addition, a peer-reviewed extensive study conducted last year by
Stazione Sperimentale del Vetro (SSV) in Italy found that lead
migration from glass was essentially non-detectable, even in
extreme conditions?. The exemption proposed by AB 1435 is
justified by the fact that the Lead contained therein does not
propose a health risk. This is because of the intrinsic properties
of glass; primarily, that a regulated metal which contaminates a
recycling cullet stream will be encapsulated within the glass and
never pose a threat of leaching from the container."
According to the Glass Packaging Institute, "Glass containers may
contain trace amounts of lead that is encapsulated in the matrix of
a glass bottle or container. This lead exists due to contamination
of the recycled glass supply stream by cathode ray tubes, light
bulbs, lead crystal and other contaminants. Glass containers can
be endlessly recycled, so once contaminated, the heavy metal in a
glass container is most likely below the 100 parts per million
threshold of the existing law. However, glass container
manufacturers cannot certify with certainty that any given bottle
coming off a manufacturing line is in compliance. The only way to
be certain is to reduce the amount of cullet that is used in the
manufacturing process. However that solution conflicts with the
following important public policies, including the Greenhouse Gas
Emission Reduction Law, the Beverage Container Recycling Program,
the Minimum Recycled Content Standard and the Toxics in Packaging
Statute itself."
ARGUMENTS IN OPPOSITION: Californians Against Waste raised an
objection to the proposed legislation, "We have reviewed the
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scientific research and can find no evidence of a public health or
environmental threat posed by the levels of lead and other heavy
metals normally and historically found in recycled glass used in
the manufacture of glass food and drink containers. While there is
no known public health threat from recycled glass containing the
levels of lead typically and historically found in and derived from
container glass, there may be a potential risk to public health
and/or the environment from the inclusion of some sources of
'non-container glass' which do contain hazardous levels of heavy
metals and other toxins, including: CRT glass; Fluorescent tube
glass; Solar Panel glass."
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