BILL NUMBER: AB 2153 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 9, 2016
AMENDED IN SENATE AUGUST 1, 2016
AMENDED IN ASSEMBLY JUNE 1, 2016
AMENDED IN ASSEMBLY APRIL 14, 2016
AMENDED IN ASSEMBLY APRIL 5, 2016
INTRODUCED BY Assembly Member Cristina Garcia
(Coauthor: Assembly Member Santiago)
FEBRUARY 17, 2016
An act to amend, repeal, and add Section 25190 of, to
add Sections Section
25215.5.5 and 124166 to, and to repeal and add
Article 10.5 (commencing with Section 25215) of Chapter 6.5 of
Division 20 of, the Health and Safety Code, relating to hazardous
waste, making an appropriation therefor, and declaring the urgency
thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
AB 2153, as amended, Cristina Garcia. The Lead-Acid Battery
Recycling Act of 2016.
Existing law prohibits a person from disposing, or attempting to
dispose, of a lead-acid battery at a solid waste facility or on or in
any land, surface waters, watercourses, or marine waters, but
authorizes a person to dispose of a lead-acid battery at certain
locations. Existing law requires a dealer to accept, when offered at
the point of transfer, a lead-acid battery from a consumer in
exchange for the new lead-acid battery purchased by that consumer
from the dealer. A violation of these provisions is a
misdemeanor.
This bill, the Lead-Acid Battery Recycling Act of 2016, would, as
of January 1, 2017, revise these provisions to require a dealer to
accept, at the point of transfer, specified types of used lead-acid
batteries and would prohibit the dealer from charging any fee to
accept these used lead-acid batteries. The bill would require a
dealer to collect a refundable deposit, as specified, for each new
lead-acid battery of these types from a person who purchases the
battery and who does not simultaneously provide a used lead-acid
battery of the same size and type, and would require the dealer to
refund the deposit to the person if, within 45 days of the sale of
that lead-acid battery, the person presents a used lead-acid battery
of the same type and size. The bill would require a dealer to post a
specified notice or include specified information on the purchaser's
receipt for one of these lead-acid batteries with regard to these
provisions. The bill would allow the dealer to keep any lead-acid
battery refundable deposit that is not properly claimed within 45
days after the date of sale of the new lead-acid battery.
This bill, on and after April 1, 2017, would require a California
battery fee in the amount of $1 to be imposed on a person, except as
specified, for each replacement lead-acid battery purchased that is
of one of the specified types. The bill would authorize the dealer to
retain 11/2% of the fee as reimbursement for any costs associated
with the collection of the fee and would require the dealer to remit
the remainder to the State Board of Equalization.
This bill, on and after April 1, 2017, would require a
manufacturer battery fee of $1 to be imposed on a manufacturer of
lead-acid batteries for each lead-acid battery it sells at retail to
a person in California, or that it sells to a dealer, wholesaler,
distributor, or other person for retail sale in California, for
deposit into the Lead-Acid Battery Cleanup Fund. The bill
would require manufacturers to temporarily suspend and resume
remitting this manufacturer battery fee if the balance of the
Lead-Acid Battery Cleanup Fund reaches certain amounts. The bill
would permanently terminate the obligation of all manufacturers to
pay a manufacturer battery fee under certain circumstances.
The bill would provide for certain credits against
liability for a person who remits manufacturer battery fees if that
person is held responsible by any court, regional board, agency, or
any other authority for certain hazardous substance violations. The
bill would authorize the state to bring an action against a person
who has remitted manufacturer battery fees for the payment or
reimbursement of any moneys to the state or a regional board for
specified response actions only if the state has a reasonable basis
to believe that the person would ultimately be held responsible for
amounts in excess of the amounts the person has remitted in
manufacturer battery fees that are not already committed to the
person's liability. The bill would allow certain
wholesalers of lead-acid batteries to elect to be considered
manufacturers for these purposes, as specified.
Of moneys collected pursuant to this act, the bill would require
the board to retain moneys necessary for the payment of refunds and
to reimburse the board for expenses in the collection of the
California battery fee and the manufacturer battery fee. The bill
would require that the remaining moneys be deposited into the
Lead-Acid Battery Cleanup Fund, which would be created by the bill,
and would continuously appropriate those moneys to the Department of
Toxic Substances Control for purposes of response actions at areas of
the state that have been contaminated by the production, recycling,
or improper disposal of lead-acid batteries, administration of the
fund, and reimbursement of certain loans for lead cleanup. The bill
would make the reimbursement money available for further loans, as
specified. The bill would require an unspecified amount of moneys be
loaned from the General Fund or a special fund to the board for
implementing the collection of the California battery fee and the
manufacturer battery fee and would require that the loan be repaid
before October 1, 2017. The bill would require the
department, before seeking to recover moneys spent on the
above-described response actions from a person who has remitted
manufacturer battery fees, to first vigorously pursue efforts to
recover any moneys from the owner or operator of the site where the
response action occurred, or the site identified as the source of
release to which the response action was directed. If a person from
whom the department recovers such moneys receives a favorable
judgment against a person who has remitted manufacturer battery fees,
the bill would require that the judgment be reduced by the amount
remitted as manufacturer battery fees.
This bill would require, on and after July 1, 2017, a manufacturer
to place a recycling symbol, as specified, and other information on
all replacement lead-acid batteries sold in California.
This bill would require the department to report annually to the
Governor and the Legislature on the status of the Lead-Acid Battery
Cleanup Fund and on the department's progress in implementing these
provisions.
This bill would authorize the board to adopt regulations to
implement these lead-acid battery management provisions. Because a
violation of these regulations would be a crime, this bill would
impose a state-mandated local program.
This bill would require manufacturers to notify distributors,
wholesalers, and dealers of the lead-acid batteries it manufactures
of the bill's requirements, as specified.
A violation of the existing lead-acid battery management
provisions is punishable as a misdemeanor.
The bill would instead authorize the department to impose civil
administrative penalties on any person who is in violation of these
provisions and would require the penalty money to be deposited into
the Lead-Acid Battery Cleanup Fund.
Under existing law, known as the Childhood Lead Poisoning
Prevention Act of 1991, the department is required to establish
procedures for environmental abatement and followup designed to
reduce the incidence of excessive childhood lead exposure in
California.
The bill would require, by April 1, 2017, the Office of
Environmental Health Hazard Assessment to convene a Lead Advisory
Committee, with a prescribed membership, to review and advise
regarding policies and procedures to reduce childhood lead poisoning
in the state. The bill would require the committee to publish a
recommended regulatory agenda that would identify sources of lead
that affect children and ensure that regulatory standards are
protective of the health of the children of this state, as specified.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
This bill would declare that it is to take effect immediately as
an urgency statute.
Vote: 2/3. Appropriation: yes. Fiscal committee: yes.
State-mandated local program: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 25190 of the Health and
Safety Code is amended to read:
25190. (a) Except as otherwise provided in Sections 25185.6,
25189.5, 25189.6, 25189.7, and 25191, any person who violates any
provision of this chapter, or any permit, rule, regulation, standard,
or requirement issued or adopted pursuant to this chapter, is, upon
conviction, guilty of a misdemeanor and shall be punished by a fine
of not more than one thousand dollars ($1,000) or by imprisonment for
up to six months in a county jail or by both that fine and
imprisonment.
(b) If the conviction is for a second or subsequent violation, the
person shall, upon conviction, be punished by imprisonment in the
county jail for not more than one year or by imprisonment pursuant to
subdivision (h) of Section 1170 of the Penal Code for 16, 20, or 24
months. The court shall also impose upon the person a fine of not
less than five thousand dollars ($5,000) or more than twenty-five
thousand dollars ($25,000).
(c) This section shall remain in effect only until January 1,
2017, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2017, deletes or extends
that date.
SEC. 2. Section 25190 is added to the Health
and Safety Code, to read:
25190. (a) Except as otherwise provided in Sections 25185.6,
25189.5, 25189.6, 25189.7, 25191, and 25215.7, any person who
violates any provision of this chapter, or any permit, rule,
regulation, standard, or requirement issued or adopted pursuant to
this chapter, is, upon conviction, guilty of a misdemeanor and shall
be punished by a fine of not more than one thousand dollars ($1,000)
or by imprisonment for up to six months in a county jail or by both
that fine and imprisonment.
(b) If the conviction is for a second or subsequent violation, the
person shall, upon conviction, be punished by imprisonment in the
county jail for not more than one year or by imprisonment pursuant to
subdivision (h) of Section 1170 of the Penal Code for 16, 20, or 24
months. The court shall also impose upon the person a fine of not
less than five thousand dollars ($5,000) or more than twenty-five
thousand dollars ($25,000).
(c) This section shall become operative on January 1, 2017.
SEC. 3. SECTION 1. Article 10.5
(commencing with Section 25215) is added to Chapter 6.5 of Division
20 of the Health and Safety Code, to read:
Article 10.5. The Lead-Acid Battery Recycling Act of 2016
25215. This article shall be known, and may be cited, as the
Lead-Acid Battery Recycling Act of 2016.
25215.1. For purposes of this article, the following definitions
shall apply:
(a) "Board" means State Board of Equalization.
(b) "Business" means any person, as defined in subdivision (j),
that is not a natural person.
(c) "California battery fee" means the fee imposed pursuant to
Section 25215.25.
(d) "Dealer" means every person who engages in the retail sale of
replacement lead-acid batteries directly to persons in California.
"Dealer" includes a manufacturer of a new lead-acid battery that
sells at retail that lead-acid battery directly to a person through
any means, including, but not limited to, a transaction conducted
through a sales outlet, catalog, or Internet Web site or any other
similar electronic means.
(e) (1) "Lead-acid battery" means any battery weighing over five
kilograms that is primarily composed of both lead and sulfuric acid,
whether sulfuric acid is in liquid, solid, or gel state, with a
capacity of six volts or more that is used for any of the following
purposes:
(2) As a starting battery that is designed to deliver a high burst
of energy to an internal combustion engine until it starts.
(3) As a motive power battery that is designed to provide the
source of power for propulsion or operation of a vehicle, including a
watercraft.
(4) As a stationary storage or standby battery that is designed to
be used in systems where the battery acts as either electrical
storage for electricity generation equipment or a source of emergency
power, or otherwise serves as a backup in case of failure or
interruption in the flow of power from the primary source.
(5) As a source of auxiliary power to support the electrical
systems in a vehicle, as defined in Section 670 of the Vehicle Code,
including a vehicle as defined in Section 36000 of the Vehicle Code,
or an aircraft.
(6) To use with or contained within a medical device, as defined
in the federal Food, Drug, and Cosmetic Act, 21 U.S.C. Section 321
(h), as that definition may be amended.
(f) "Lead-acid battery recycling facility" means any site at which
lead-acid batteries are or have been disassembled for the purpose of
making components available for reclamation to produce elemental
lead or lead alloys or at which lead-acid batteries or their
components, or both, are or have been reclaimed to produce elemental
lead or lead alloys.
(g) "Manufacturer" means either of the following:
(1) The person who manufactures the lead-acid battery and who
sells, offers for sale, or distributes the lead-acid battery in the
state, unless subdivision (b) of Section 25215.35 applies to the
lead-acid battery, in which case the wholesaler shall be deemed the
manufacturer, except for purposes of Section 25215.65. If an entity
engages a third party to manufacture lead-acid batteries on its
behalf, that entity shall be deemed the manufacturer of those
lead-acid batteries.
(2) If there is no person described in paragraph (1) that is
subject to the jurisdiction of the state, the manufacturer is the
person who imports the lead-acid battery into the state for sale or
distribution.
(h) "Manufacturer battery fee" means the fee imposed pursuant to
Section 25215.35.
(i) "Owner or operator" has the same meaning given in Section 9601
(20) of Title 42 of the United States Code.
(j) "Person" means an individual, trust, firm, joint stock
company, business concern, corporation, including, but not limited
to, a government corporation, partnership, limited liability company,
or association. "Person" also includes any city, county, city and
county, district, commission, the state, or any department, agency,
or political subdivision of any of those, interstate body, and the
United States and its agencies and instrumentalities to the extent
permitted by law.
(k) "Remedial action" has the same meaning as in Section 25322.
(l) "Removal" has the same meaning as in Section 25323.
(m) "Replacement lead-acid battery" means a new lead-acid battery
that is sold at retail subsequent to the original sale or lease of
the equipment or vehicle in which the lead-acid battery is intended
to be used. "Replacement lead-acid battery" does not include a spent,
discarded, refurbished, reconditioned, rebuilt, or reused lead-acid
battery.
(n) "Response action" has the same meaning as in Section 25323.3.
(o) (1) A "retail sale" or a "sale at retail" has the same meaning
as defined in Section 6007 of the Revenue and Taxation Code.
(2) "Retail sale" does not include any of the following:
(A) The sale of a battery for which a California battery fee has
previously been paid.
(B) The sale of a replacement lead-acid battery that is
temporarily stored or used in California for the sole purpose of
preparing the replacement lead-acid battery for use thereafter solely
outside of the state and that is subsequently transported outside
the state and thereafter used solely outside of the state.
(C) The sale of a battery for incorporation into new equipment for
subsequent resale.
(D) The replacement of a lead-acid battery pursuant to a warranty
or a vehicle service contract described under Section 12800 of the
Insurance Code.
(p) "Used lead-acid battery" means a lead-acid battery no longer
fully capable of providing the power for which it was designed or
that a person no longer wants for any other reason.
(q) "Wholesaler" means any person who purchases a lead-acid
battery from a manufacturer for the purpose of selling the lead-acid
battery to a dealer, high-volume customer, or to a person for
incorporation into new equipment for resale.
25215.15. (a) Except as provided in subdivision (b), no person
shall dispose, or attempt to dispose, of a lead-acid battery at a
solid waste facility or on or in any land, surface waters,
watercourses, or marine waters.
(b) A person may dispose of a lead-acid battery at any
both of the following locations:
(1) A facility, including a facility located at a solid waste
facility, established and operated for the purpose of recycling, or
providing for the eventual recycling of, lead-acid batteries.
(2) A dealer pursuant to Section 25215.2.
25215.2. (a) A dealer shall accept from persons at the point of
transfer a used lead-acid battery of a type listed in paragraph (1),
(2), or (4) of subdivision (e) of Section 25215.1, but shall not be
required to accept from any person more than six used lead-acid
batteries per day. A dealer shall not charge any fee to receive a
used lead-acid battery.
(b) (1) A dealer shall charge to each person who purchases a
replacement lead-acid battery of a type listed in paragraph (1), (2),
or (4) of subdivision (e) of Section 25215.1 and who does not
simultaneously provide the dealer with a used lead-acid battery of
the same type and size a refundable deposit for each such battery
purchased. The dealer shall display the amount of the deposit
separately on the receipt provided to the purchaser. The dealer shall
refund the deposit to that person if, within 45 days of the sale of
the replacement lead-acid battery, the person presents to the dealer
a used lead-acid battery of the same type and size. A dealer may
require the person to provide a receipt documenting the payment of
the deposit before refunding any deposit. A dealer may keep any
lead-acid battery deposit moneys that are not properly claimed within
45 days after the date of sale of the replacement lead-acid battery,
not including any sales tax reimbursement charged to the consumer.
Sales tax reimbursement charged to the consumer on the amount of the
deposit shall be remitted to the board.
(2) (A) The refundable deposit required under paragraph (1) shall
be a flat rate, in accordance with subparagraph (B), and shall not be
a percentage of the purchase price of the lead-acid battery.
(B) (i) The refundable deposit shall be no less than fifteen
dollars ($15).
(ii) For a lead-acid battery that weighs 50 pounds or less, the
refundable deposit shall be no more than forty dollars ($40).
(iii) For a lead-acid battery that weighs more than 50 pounds but
100 pounds or less, the refundable deposit shall be more than forty
dollars ($40) but no more than eighty dollars ($80).
(iv) For a lead-acid battery that weighs more than 100 pounds, the
refundable deposit shall be more than eighty dollars ($80) but no
more than one hundred dollars ($100).
(c) A dealer shall post a written notice that is clearly visible
in the public sales area of the establishment, or include on the
purchaser's receipt, the following language:
This dealer is required by law to charge a
nonrefundable $1 California battery fee for each
lead-acid battery.
A refundable deposit will be charged for each
replacement lead-acid battery purchased.
A credit of the same amount as the applicable
deposit will be issued if a used lead-acid
battery is returned at the time of purchase.
If a customer does not have a lead-acid battery
at the time of purchase, the customer has up to
45 days to bring in a used lead-acid
battery with a receipt to claim the deposit.
(d) Subdivision (c) does not apply to any of the following:
(1) A person whose ordinary course of business does not include
the sale of lead-acid batteries.
(2) A person that does not sell lead-acid batteries directly to
consumers, such as over-the-counter, but instead removes
nonfunctional or damaged batteries and installs new lead-acid
batteries as a part of an automotive repair dealer service.
(3) A business that removes lead-acid batteries and installs new
lead-acid batteries as a part of roadside services. "Roadside
services," for purposes of this paragraph, means the services
performed upon a motor vehicle for the purpose of transporting the
vehicle or to permit it to be operated under its own power, by or on
behalf of a motor club holding a certificate of authority pursuant to
Chapter 2 (commencing with Section 12160) of Part 5 of Division 2 of
the Insurance Code.
(e) Except as authorized by this article, a dealer shall not
collect a refundable deposit for a lead-acid battery from a person.
25215.25. (a) (1) On and after April 1, 2017, a California
battery fee of one dollar ($1) shall be imposed on a person, not
including a business, for each replacement lead-acid battery of a
type listed in paragraph (1), (2), or (4) of subdivision (e) of
Section 25215.1 purchased from a dealer.
(2) The dealer shall charge a person the amount of the California
battery fee as a charge that is separate from, and not included in,
any other fee, charge, or other amount paid by the person.
(3) The dealer shall collect the California battery fee at the
time of sale and may retain 11/2 percent of the fee as reimbursement
for any costs associated with the collection of the fee. The
remainder of the California battery fee collected by the dealer shall
be paid to the board in a manner and form prescribed by the board
and at the time the return is required to be filed, as specified in
Section 25215.47.
(4) All moneys collected by a dealer pursuant to this section that
are not properly remitted to the board pursuant to paragraph (3)
shall be deemed to be a debt owed to the state by the dealer.
(5) A person who purchases a replacement lead-acid battery in this
state is liable for the California battery fee until that fee has
been paid to the board, except that payment to a dealer registered
under this article is sufficient to relieve the person from further
liability of the fee.
(6) All moneys remitted to the board pursuant to this subdivision
shall be expended in accordance with Section 25215.5.
(b) The California battery fee imposed pursuant to subdivision (a)
shall be separately stated by the dealer on the invoice given to a
consumer or business at the time of sale. Any
other fee charged by the dealer related to the lead-acid battery
purchase, including any deposit charged, credited, or both, pursuant
to Section 25215.2, shall be identified separately from the
California battery fee.
25215.35. (a) (1) On and
after April 1, 2017, a manufacturer battery fee of one dollar ($1)
shall be imposed on a manufacturer of lead-acid batteries for each
lead-acid battery it sells at retail to a person in California or
that it sells to a dealer, wholesaler, distributor, or other person
for retail sale in California.
(2) The obligation to pay the manufacturer battery fee and the
board's authority to collect the fee shall immediately be terminated
as to all payors if either of the following occurs:
(A) The state files suit against any person that has remitted a
manufacturer battery fee to recover moneys spent for purposes
identified in paragraph (1) of subdivision (b) of Section 25215.5,
except for a suit against an owner or operator, or legal successor to
the owner or operator, of the site at which the moneys sought to be
recovered were spent.
(B) The state issues an order to any person who has remitted a
manufacturer battery fee that requires the recipient to take action
to address conditions at or allegedly attributable to a lead-acid
battery recycling facility or its operations, except for an order
issued to a person who is the owner or operator, or legal successor
to the owner or operator, of the site at which the action ordered
would occur.
(b) (1) (A) On and after April 1, 2017, a wholesaler of a
lead-acid battery who ships or arranges for the shipment of used
lead-acid batteries to a lead-acid battery recycling facility may
elect to be considered a manufacturer for purposes of subdivision
(a) and Sections 25215.5, 25215.51, and 25215.55.
(a). To so elect, the wholesaler shall notify the
manufacturer of the lead-acid battery from which the wholesaler
purchased the lead-acid battery, the department, and the board of its
intent to be considered a manufacturer for those purposes and shall
remit a manufacturer battery fee for each lead-acid battery purchased
from the notified manufacturer. The wholesaler shall register with
the board pursuant to subdivision (b) of Section 25215.45 and provide
at least 30 days' notice to the manufacturer, the department, and
the board before the wholesaler is considered a manufacturer under
subdivision (a). If a wholesaler under this subdivision only remits a
manufacturer battery fee for a portion of the manufacturer's
lead-acid battery inventory sold in the state, the manufacturer shall
remain responsible for remittance of the manufacturer battery fee
for the remaining lead-acid batteries sold in the state. Multiple
wholesalers may remit manufacturer battery fees for their sales of
batteries from a single manufacturer. Regardless of the number of
wholesalers paying manufacturer battery fees for sales of a
manufacturer's batteries, the manufacturer shall remain responsible
for manufacturer battery fees not paid by a wholesaler.
(B) A manufacturer shall not be required to pay the manufacturer
battery fee that is to be paid by a wholesaler pursuant to this
subdivision if both of the following conditions are met:
(i) The manufacturer has been notified by the wholesaler and the
board of the wholesaler's election to be considered a manufacturer
and the wholesaler's intent to remit the manufacturer battery fee for
each lead-acid battery purchased from the notified manufacturer.
(ii) The manufacturer has registered with the board pursuant to
subdivision (b) of Section 25215.45, and submits informational
returns to the board in a manner and form to be determined by the
board.
(C) (i) A manufacturer otherwise exempt from subdivision (a)
pursuant to this subdivision may voluntarily submit an additional
manufacturer battery fee of one dollar ($1) per lead-acid battery
that is otherwise paid by a wholesaler. A manufacturer that
voluntarily submits a manufacturer battery fee under this
subparagraph shall be subject to Sections 25215.5 and 25215.55.
(ii) A voluntary manufacturer payment does not relieve a
wholesaler from its responsibility to remit a manufacturer battery
fee pursuant to this subdivision.
(D) A manufacturer that submits a manufacturer battery fee
pursuant to subparagraph (C) shall be prohibited from imposing or
passing on the voluntarily remitted fees to a wholesaler.
(2) A wholesaler that provides notice pursuant to paragraph (1)
shall be considered a manufacturer for purposes of subdivision (a)
and Sections 25215.5 and 25215.55 until 60 days
after the wholesaler provides notice to the board, the department,
and the manufacturer of the lead-acid battery of the wholesaler's
intention to no longer be considered a manufacturer. If the
manufacturer of the lead-acid batteries for which the wholesaler
elects to no longer pay a manufacturer battery fee has not registered
with the board, the wholesaler shall continue to be considered a
manufacturer until notified by the board that the manufacturer has
registered with the board.
(3) The board shall establish appropriate procedures for providing
notifications pursuant to this subdivision.
(c) (1) Manufacturer battery fees shall be paid to the board in a
manner and form as prescribed by the board and at the time the return
is required to be filed, as specified in Section 25215.47.
25215.45. (a) (1) Except as provided in paragraph (2), the
lead-acid battery fees imposed pursuant to Sections 25215.25 and
25215.35 shall be collected by the board in accordance with the Fee
Collection Procedures Law (Part 30 (commencing with Section 55001) of
Division 2 of the Revenue and Taxation Code). For the purposes of
this section, the reference to "feepayer" shall include a dealer,
manufacturer, importer, and wholesaler, including a wholesaler that
makes an election pursuant to paragraph (1) of subdivision (b) of
Section 25215.35, but shall not include a manufacturer that makes a
voluntary payment pursuant to subparagraph (B) of paragraph (1) of
subdivision (b) of Section 25215.35 as to that voluntary payment.
(2) Notwithstanding the petition for redetermination and claim for
refund provisions of the Fee Collection Procedures Law (Article 3
(commencing with Section 55081) of Chapter 3 of, and Article 1
(commencing with Section 55221) of Chapter 5 of, Part 30 of Division
2 of the Revenue and Taxation Code), the board shall not do either of
the following:
(A) Accept or consider any petition for redetermination of fees
determined under this article if the petition is founded upon the
grounds that a battery is or is not a lead-acid battery, as defined
in Section 25215.1. The board shall forward to the department any
petition for redetermination that is based on those grounds.
(B) Accept or consider a claim for refund of fees paid pursuant to
this article, if the claim for refund is founded upon the grounds
that a battery is or is not a lead-acid battery, as defined in
Section 25215.1. The board shall forward to the department any claim
for refund that is based on these grounds.
(b) The following persons shall register with the board:
(1) A dealer of lead-acid batteries in the state.
(2) A manufacturer of lead-acid batteries in the state, including
a manufacturer that voluntarily pays a manufacturer battery fee, as
provided in Section 25215.35.
(3) An importer of lead-acid batteries into the state.
(4) A wholesaler of lead-acid batteries in the state, including a
wholesaler that elects to be considered a manufacturer, as provided
in Section 25215.35.
25215.47. (a) The return required to be filed pursuant to Section
55040 of the Revenue and Taxation Code shall be prepared and filed
by the person required to register with the board, in the form
prescribed by the board, and shall contain the information the board
deems necessary or appropriate for the proper administration of this
article and the Fee Collection Procedures Law. Except as provided in
subdivision (b), the return shall be filed on or before the last day
of the calendar month following the calendar quarter to which the
return relates, together with a remittance payable to the board for
the fee amount due for that period. Returns shall be authenticated in
a form, or pursuant to methods, as may be prescribed by the board,
including, but not limited to, electronic media.
(b) The board may require the payment of the fee and the filing of
the returns for other than quarterly periods.
25215.5. (a) Lead-acid battery fees collected pursuant to this
article shall be managed as follows:
(1) The board shall retain moneys necessary for the payment of
refunds and reimbursement of the board for expenses in the collection
of the fees.
(2) The remaining moneys shall be deposited into the Lead-Acid
Battery Cleanup Fund, which is hereby created in the State Treasury,
and are hereby be continuously appropriated, without regard to fiscal
year, to the department for purposes of the lead-acid battery
activities specified in subdivision (b).
(b) Moneys in the Lead-Acid Battery Cleanup Fund shall be expended
for the following activities:
(1) Investigation, site evaluation, cleanup, abatement, remedy,
removal, monitoring, or other response actions at any area of the
state that has been contaminated by the production, recycling, or
improper disposal of lead-acid batteries.
(2) Administration of the Lead-Acid Battery Cleanup Fund.
(3) Repayment of a loan described in Section 25215.6 that was made
before the effective date of the act which added this section, or
any other loan made for purposes set forth in paragraph (1).
(c) (1) Before seeking to recover moneys spent for purposes
identified in paragraph (1) of subdivision (b) from a person who has
remitted a manufacturer battery fee pursuant to Section 25215.35,
other than a person who is the owner or operator, or legal successor
to the owner or operator, of a site at which the activity occurred,
the department shall vigorously pursue efforts to recover any moneys
expended for an activity described in paragraph (1) of subdivision
(b) from the owner or operator or legal successor to the owner or
operator of the site at which the activity occurred, or the site that
is identified as the source of release to which the activity was
directed, until the earlier of either of the following:
(A) The issuance of a final unappealable legal judgment against
the owner or operator or legal successor to the owner or operator.
(B) Both of the following conditions have been met:
(i) At least 36 months have passed since the department filed suit
against the owner or operator or legal successor to the owner or
operator of the site at which the activity occurred or of the site
that is identified as the source of the release to which the activity
was directed.
(ii) Seventy-one months have passed since the first expenditure of
moneys from the Lead-Acid Battery Cleanup Fund on remedial actions
at the site.
(2) If a person from whom the department recovered moneys under
paragraph (1) receives a favorable judgment against a second person
who has remitted a manufacturer battery fee in an action relating to
those response activities, the judgment shall be reduced by the
amount the second person has already remitted to the Lead-Acid
Battery Cleanup Fund pursuant to Section 25215.35 that is not
previously committed to other payor liabilities.
(3) Nothing in
this subdivision shall be construed to limit or otherwise affect any
cause of action that may exist under any law that the state may bring
against the owner or operator, or legal successor to the owner or
operator, of a site at which any activity described in paragraph (1)
of subdivision (b) occurred.
(d) Any funds
expended from the Lead-Acid Battery Cleanup Fund that are
subsequently recovered from any person pursuant to subdivision (c)
shall be deposited into the Lead-Acid Battery Cleanup Fund.
(e) Moneys from the Lead-Acid Battery Cleanup Fund shall not be
used to implement Article 14 (commencing with Section 25251) with
respect to lead-acid batteries or to loan moneys to any other
program. Provided that the national recycling rate for lead in
lead-acid batteries, determined by the methodology accepted by the
United State Environmental Protection Agency and used in the Battery
Council International's National Recycling Rate Study, exceeds 90
percent, a lead-acid battery shall not be considered for inclusion on
a list of products established under Section 25252 or be otherwise
regulated under Article 14 (commencing with Section 25251) until
after the completion of the fifth Priority Product Work Plan
established pursuant to Section 69503.4 of Title 22 of the California
Code of Regulations. Nothing in this subdivision shall preclude a
study of the impacts and benefits of the manufacture and recycling of
lead-acid batteries from being conducted as a pilot project pursuant
to the department's Community Protection and Hazardous Waste
Reduction Initiative.
(f)
(c) The department shall report annually to the
Governor and to the Legislature on the status of the Lead-Acid
Battery Cleanup Fund and on the department's progress to implement
this article, including, but not limited to, the sites at which
actions were performed using moneys from the fund, the status of
cleanup at those sites, including total anticipated costs of cleanup
at those sites, the balance of the fund, the amount of fees remitted
to the fund, the amount spent by the fund and the purposes for which
those amounts were spent, the amounts reimbursed to the board
pursuant to paragraph (1) of subdivision (a), the amounts
collected by the department pursuant to subdivision (c),
and any other information requested by the Governor or the
Legislature.
25215.51. (a) If, as of October 1 of any calendar year, the
balance in the Lead-Acid Battery Cleanup Fund exceeds one hundred
million dollars ($100,000,000), the board shall, no later than
October 31 of that year, notify each manufacturer to suspend
remitting a manufacturer battery fee pursuant to this article
commencing January 1 of the following year, until the manufacturer
receives a notice from the board pursuant to subdivision (b). The
board shall also provide notice to the department of the suspension
of manufacturer battery fee remittal.
(b) If, as of October 1 of a calendar year in which manufacturers
are not remitting a manufacturer battery fee and the balance of the
Lead-Acid Battery Cleanup Fund is less than thirty million dollars
($30,000,000), the board shall, no later than October 31 of the same
year, notify in writing each manufacturer that is required to remit a
manufacturer battery fee to resume remitting the fee beginning on
January 1 of the following year. The board shall also provide notice
to the department of the resumption of the fee remittal.
25215.55. (a) (1) A person who has remitted a manufacturer
battery fee and who is held responsible by any court, regional board,
agency, or any other authority, under the Carpenter-Presley-Tanner
Hazardous Substance Account Act (commencing with Section 25300) or
any other law, for the payment or reimbursement of any moneys to the
state or a regional board or any other person by or on behalf of a
public entity for any activity listed in paragraph (1) of subdivision
(b) of Section 25215.5 shall have its responsibility for that
payment or reimbursement reduced by the amount that person remitted
pursuant to Section 25215.35 that has not otherwise been committed to
the payor's liability and by the amount recovered by the state
pursuant to subparagraph (B) of paragraph (1) of subdivision (c) of
Section 25215.5.
(2) The state may bring an action against a person who has
remitted a manufacturer battery fee for the payment or reimbursement
of any moneys to the state or a regional board for any of the
activities listed in paragraph (1) of subdivision (b) of Section
25215.5 only if the state has a reasonable basis to believe that the
person ultimately would be held responsible for amounts in excess of
the amount of manufacturer battery fees the person has remitted to
the Lead-Acid Battery Cleanup Fund that is not already committed to
the payor's liability.
(3) Before bringing any action against a person pursuant to
paragraph (2), the state shall notify the person of the state's
intent to bring the action and meet and confer with that person to
attempt to reach an agreement by which the person voluntarily
resolves the state's claim.
(4) Nothing in this subdivision shall be construed to create a
private cause of action against a manufacturer, affect any cause of
action that may exist under other law, or reduce the amount of
damages for which a manufacturer is held liable in any civil action
for personal injury or wrongful death.
(5) Nothing in this subdivision shall be construed to limit or
otherwise affect a claim the state may assert against an owner or
operator, or legal successor of an owner or operator, of a site at
which any activity described in paragraph (1) of subdivision (b) of
Section 25215.5 occurred.
(b) Notwithstanding any other law, not including a person who is
or was an owner or operator of a site subject to paragraph (1) of
subdivision (b) of Section 25215.5, an administrative order shall not
be issued or judicial relief sought to compel any person who has
remitted a manufacturer battery fee to take any activity described in
paragraph (1) of subdivision (b) of Section 25215.5 at that site
unless all of the following conditions are met:
(1) Any activities undertaken by any party at the site have been
inadequate to fully address concerns to which the activities
described in paragraph (1) of subdivision (b) of Section 25215.5
would be directed.
(2) The state has a reasonable basis to believe that, if state or
private funds are used to undertake the activities described in
paragraph (1) of subdivision (b) of Section 25215.5 and recovery of
those funds is sought from the person against whom the administrative
order was issued, that person ultimately would be held responsible
for amounts in excess of the amount of manufacturer battery fees the
person has remitted to the Lead-Acid Battery Cleanup Fund that is not
already committed to the payor's liability.
(3) One of the following:
(A) The state has issued an administrative order against the owner
or operator or legal successor to the owner or operator of the site,
and obtained a final nonappealable judgment enforcing that order
against the owner or operator or legal successor to the owner or
operator, and the owner or operator or legal successor to the owner
or operator has not complied with the order.
(B) Both of the following conditions have been met:
(i) At least 36 months have passed since the department issued an
administrative order against the owner or operator or legal successor
to the owner or operator of the site at which the activity occurred
or of the site that is identified as the source of the release to
which the activity was directed.
(ii) Seventy-one months have passed since the first expenditure of
moneys from the Lead-Acid Battery Cleanup Fund or remedial action
took place at the site.
25215.6. If the state loans money from the General Fund to the
Toxic Substances Control Account for the cleanup of lead
contamination in the state, the following shall apply:
(a) Money from the Lead-Acid Battery Cleanup Fund may be used
towards repaying the loan.
(b) Any moneys designated as repayment of the loan shall be
deposited to that loan, but shall be available to be loaned to the
Toxic Substances Control Account for the purposes of cleaning up
areas of the state that have been contaminated with lead by the
production, handling, storage, reclamation, or improper disposal of
lead-acid batteries.
25215.65. On and after July 1, 2017, a manufacturer shall place a
recycling symbol consistent with the requirements of Section 103(b)
(1) of the Federal Mercury Containing and Rechargeable Battery
Management Act, Pub. L. No. 104-142 (1996) (42 U.S.C. 14301(b)(1))
and either "Pb" or the words "lead," "return," and "recycle" on all
replacement lead-acid batteries sold in California.
25215.7. (a) The department may impose civil administrative
penalties not to exceed one thousand dollars ($1,000) per day on any
person who is in violation of any provision of this article.
(b) The department shall provide notice of the alleged violations
to any person alleged to be in violation of any provision of this
article no less than 60 days before the issuance of any
administrative penalty pursuant to subdivision (a). If the person
corrects the alleged violation before the issuance of an
administrative penalty, the department shall not issue the
administrative penalty.
(c) In assessing or reviewing the amount of a civil penalty
imposed pursuant to subdivision (a) for a violation of this article,
the department or the court shall consider all of the following:
(1) The nature and extent of the violation.
(2) The number and severity of the violation or violations.
(3) The economic effect of the penalty on the violator.
(4) Whether the violator took good faith measures to comply with
this article and the period of time over which these measures were
taken.
(5) The willfulness of the violator's misconduct.
(6) The deterrent effect that the imposition of the penalty would
have on both the violator and the regulated community.
(7) Any other factor that justice may require.
(d) The department shall deposit all penalties collected pursuant
to this section into the Lead-Acid Battery Cleanup Fund.
25215.72. _____ dollars ($_____) shall be loaned from the General
Fund or a special fund to the board for implementing the collection
of the California battery fee and the manufacturer battery
fee and shall be repaid from the proceeds of the collection of fees
pursuant to this article no later than October 1, 2017.
25215.74. (a) The board may prescribe, adopt, and enforce
regulations relating to the administration and enforcement of this
article, including, but not limited to, registration, collections,
reporting, notices for manufacturers, notices for wholesalers
regarding elections pursuant to paragraph (1) of subdivision (b) of
Section 25215.35, refunds, and appeals.
(b) The board may prescribe, adopt, and enforce any emergency
regulations as necessary to implement this article. Any emergency
regulation prescribed, adopted, or enforced pursuant to this article
shall be adopted in accordance with Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code, and, for purposes of this chapter, including Section 11349.6 of
the Government Code, the adoption of the regulation is an emergency
and shall be considered by the Office of Administrative Law as
necessary for the immediate preservation of the public peace, health
and safety, and general welfare. Emergency regulations adopted
pursuant to this subdivision shall remain in effect until regulations
have been adopted pursuant to subdivision (a).
25215.75. This article shall become operative on January 1, 2017.
SEC. 4. SEC. 2. Section 25215.5.5
is added to Article 10.5 (commencing with Section 25215) of Chapter
6.5 of Division 20 of the Health and Safety Code, as added by Chapter
209 of the Statutes of 1988, to read:
25215.5.5. This article shall remain in effect only until January
1, 2017, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2017, deletes or extends
that date.
SEC. 5. Section 124166 is added to the Health
and Safety Code, to read:
124166. (a) On or before April 1, 2017, the Office of
Environmental Health Hazard Assessment shall convene a Lead Advisory
Committee to review and advise regarding policies and procedures to
reduce childhood lead poisoning in the state. Until April 1, 2019,
the committee shall meet quarterly and, by that date, shall publish a
recommended regulatory agenda for the state that would identify
sources of lead that affect children and ensure that regulatory
standards are protective of the health of the children of this state.
After April 1, 2019, the committee shall meet twice a year.
(b) Membership of the committee shall be as follows:
(1) One member shall be a lead exposure assessment expert.
(2) One member shall be a biostatistian or epidemiology expert.
(3) One member shall be a pediatrician.
(4) One member shall be an occupational health expert.
(5) One member shall be a lead remediation expert.
(6) Two members shall be representatives from environmental
justice organizations that work on lead contamination.
(7) Two members shall be local government representatives from
lead poisoning prevention programs.
(8) One member shall be a representative from the program
established pursuant to this article.
(9) One member shall be a representative of industries that use
lead in producing their products.
(10) One member shall be a representative of the lead recycling
industry.
(11) One member shall be a representative of the civil aviation
industry.
(12) One member shall be a representative of industries not
otherwise represented on the committee that are emitters of
significant quantities of lead into the air of the state.
(c) (1) In its recommended regulatory agenda, the committee shall
do all of the following:
(A) Evaluate of each of the following:
(i) The program established pursuant to this article.
(ii) Each county's childhood lead testing programs.
(iii) The drinking water program described in Section 116271.
(iv) Each county's healthy homes program.
(B) Address remedial action strategies that should be considered
by the Department of Toxic Substances Control when approving remedial
action plans.
(C) Advise state and local entities on how to better use
biomonitoring data that the state receives to identify opportunities
to prevent lead poisoning.
(D) Review existing regulatory provisions for the protection and
health of children in California and recommend any appropriate
changes to any regulations that have not been revised on or after
January 1, 2011.
(E) Provide advice on how to align the state's lead regulatory
framework with the Center for Disease Control and Prevention's most
recent findings on the toxicity of lead to children.
(F) Identify key policies, regulations, and protocols for state
agencies to follow to better protect California's children from lead
exposure.
(d) Each member of the committee shall receive reasonable and
necessary traveling expenses and meal allowances as approved by the
Office of Environmental Health Hazard Assessment for each day spent
in actual attendance at, or in traveling to and from, meetings of the
committee.
SEC. 6. SEC. 3. Each manufacturer of
lead-acid batteries sold in this state shall notify the
distributors, wholesalers, and dealers of the lead-acid batteries it
manufactures of the requirements set forth in Article 10.5
(commencing with Section 25215) of Chapter 6.5 of Division 20 of the
Health and Safety Code, as it will read on and after January 1, 2017.
SEC. 4. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.
SEC. 7. SEC. 5. This act is an
urgency statute necessary for the immediate preservation of the
public peace, health, or safety within the meaning of Article IV of
the Constitution and shall go into immediate effect. The facts
constituting the necessity are:
In order to increase the cleanup of toxic materials and to prevent
additional toxic pollution at the earliest possible time, it is
necessary that this act take effect immediately.