BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: AB 2153
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|Author: |Cristina Garcia |
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|Version: |6/1/2016 |Hearing |6/15/2016 |
| | |Date: | |
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|Urgency: |Yes |Fiscal: |Yes |
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|Consultant:|Rachel Machi Wagoner |
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SUBJECT: The Lead-Acid Battery Recycling Act of 2016
ANALYSIS:
Existing law:
1)Under the federal Resource Conservation and Recovery Act (RCRA)
of 1976, governs the disposal of hazardous waste:
a) Through regulation, sets standards for the treatment,
storage, transport, tracking and disposal of hazardous
waste in the United States.
b) Authorizes states to carry out many of the functions of
the federal law through their own hazardous waste laws if
such programs have been approved by the United States
Environmental Protection Agency (US EPA).
2)Under the California Hazardous Waste Control Act (HWCA) of
1972:
a) Establishes the Hazardous Waste Control program;
b) Regulates the handling, transport and disposal of
hazardous waste and authorizes the Department of Toxic
Substances Control (DTSC) to implement and enforce HWCA and
RCRA.
c) Prohibits the disposal of a lead-acid battery at a solid
waste facility, or on or in any land, surface waters,
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watercourses, or marine waters.
d) Requires retailers to accept the trade-in of a spent
lead-acid battery by a consumer upon purchase of a new one.
e) Governs the management of used lead-acid batteries as a
hazardous waste and provides alternative management
standards for the recycling of lead acid batteries.
f) Requires all lead-acid batteries purchased by any state
agency for, and, at the next required installation of a
battery in, an automobile or light truck owned or operated
by the state agency, to be a recycled lead-acid battery, to
the extent that all existing stock of nonrecycled batteries
have been utilized.
g) A violation of the existing lead-acid battery management
provisions is punishable as a misdemeanor with 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 for the first violation.
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).
3) Requires the Department of Resources, Recycling and Recovery
(CalRecycle) to coordinate with DTSC to develop and implement
a public information program to provide uniform and
consistent information on the proper disposal of hazardous
substances found in and around homes, and to assist the
efforts of counties required to provide household hazardous
collection, recycling, and disposal programs.
This bill: Establishes new fees on lead-acid batteries to fund
lead contamination cleanup. Specifically, this bill:
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1)Repeals and adds Article 10.5 of Chapter 6.5 of the Health &
Safety Code regarding the management of lead-acid batteries.
2)Requires a replacement lead-acid battery dealer to accept from
a consumer a used lead-acid battery without regard to the
brand or original dealer of the used battery for recycling.
Cap the number of batteries that can be returned by a consumer
at six lead-acid batteries per day.
3)Authorizes consumers to be refunded the deposit if the
lead-acid battery is returned within 45 days after purchase.
4)Requires a lead-acid battery dealer to conspicuously post a
written notice stating that the dealer is required by law to
accept used lead-acid batteries and charge a fee on all
replacement lead-acid battery sold.
5)Requires a lead-acid battery dealer to charge a refundable
deposit (unspecified dollar amount) plus a non-refundable $1
California Battery Fee on each lead-acid battery sold to a
person buying a replacement lead-acid battery.
6)Requires all replacement lead-acid batteries to have a widely
understood recycling symbol.
7)Requires a lead-acid battery dealer to collect the California
Battery Fee at the time of sale and authorize the dealer to
retain 1.5-percent of the fee as reimbursement for any costs
associated with the collection of the fee. Requires the
remainder of the fee be remitted to the State Board of
Equalization (BOE).
8)Requires each manufacturer to remit to the BOE a $1
Manufacturer Battery Fee for each lead-acid battery sold at
retail to a person in California.
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9)Requires all California Battery Fee and Manufacturer Battery
Fee revenues to be deposited into the Lead-Acid Battery
Cleanup Fund.
10) Requires DTSC and BOE to be reimbursed for the costs of
collection, auditing, and administration of funds. Cap
administrative costs at 3 percent.
11) Authorizes a wholesaler of lead-acid batteries to assume
responsibility of paying the Manufacturer Battery Fee at the
behest of the manufacturer. Requires the wholesaler to notify
BOE, DTSC, and the manufacturer of its intention to pay the
Manufacturer Battery Fee.
12) Authorizes any manufacturer exempted from its obligations to
pay the Manufacturer Battery Fee to voluntarily submit an
additional $1 Manufacturer Battery Fee per lead-acid battery.
Prohibit the manufacturer from passing along the costs to the
wholesaler or consumers.
13) Continuously appropriates all funds in the Lead-Acid Battery
Cleanup Fund to DTSC to fund the following activities:
investigation, site evaluation, cleanup, abatement, remedy,
removal, monitoring, or other response actions at any site in
California investigated because of concerns about lead
releases from a lead-acid battery recycling facility (from
hereto referred to as eligible lead-related activities), and
repayment of General Fund loans for lead contamination
cleanup.
14) Requires any funds spent by DTSC for any eligible
lead-related activities to be drawn from the Lead-Acid Battery
Cleanup Fund before drawing from any other fund source.
15) Requires DTSC, prior to seeking to recover any moneys spent
on eligible lead-related activities from any person who has
remitted any amount of Manufacturer Battery Fees, other than
persons who are or were the owners or operators, or legal
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successors to owners or operators, of a site at which such
activity occurred, to draw from and deplete the funds in the
Lead-Acid Battery Cleanup Fund, and exhaust efforts to recover
any funds expended for any eligible lead-related activity from
the owners or operators, or legal successors to owners or
operators, of the site at which such activity occurred.
16) Requires the balance of a judgment against any manufacturer
who has remitted any amount of Manufacturer Battery Fees to be
reduced by the amount the manufacturer has remitted to the
state.
17) States that nothing in this bill 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 owners or
operators, or legal successors to owners or operators, of a
site at which any described eligible lead-related activity.
18) Requires any funds spent from the Lead-Acid Battery Cleanup
Fund that are subsequently recovered from any person to be
deposited into the Lead-Acid Battery Cleanup Fund.
19) Prohibits funds from the Lead-Acid Battery Cleanup Fund from
funding Green Chemistry as it relates to lead-acid batteries.
20) Precludes lead-acid batteries from consideration for
inclusion on a list of Priority Products under DTSC's Safer
Consumer Products Program as long as the national recycling
rate for lead in batteries determined by the methodology
accepted by the US EPA employed in the Battery Council
International's National Recycling Rate Study exceeds a
to-be-determined percentage.
21) States that this shall not preclude a study of the impacts
and benefits of manufacture and recycling of lead-acid
batteries pursuant to the Governor's May Revise proposal.
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22) Requires DTSC to report annually to the Governor and to the
Legislature on the status of the Lead-Acid Battery Cleanup
Fund and on DTSC's progress on implementation.
23) Requires any manufacturer who has remitted any amount of
fees and who is held responsible by any authority under the
California Hazardous Substances Account Act or any other law
for the payment or reimbursement of any moneys to the state or
a regional board for an eligible lead-related activity to have
its responsibility for such payment or reimbursement reduced
by the amounts that manufacturer remitted.
24) Authorizes the state to bring an action against a
manufacturer who has remitted any amount of fees for the
payment or reimbursement of any moneys to the state or a
regional board for any of the eligible lead-related activities
if the state has a reasonable basis to believe that the
manufacturer ultimately would be held responsible for amounts
in excess of the amount the manufacturer has remitted.
25) Requires the state to notify the manufacturer of the state's
intent to bring an action and meet and confer with the
manufacturer to reach an agreement by which the manufacture
voluntarily resolves the state's claim.
26) States that nothing 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 the manufacturer is held liable in any civil
action for personal injury or wrongful death.
27) States that nothing shall be construed to limit or otherwise
affect a claim the state may assert against the owners or
operators, or legal successors to owners or operators, of a
site at which any eligible lead-related activity.
28) Prohibits any administrative order or judicial relief from
being sought to compel any person who has remitted fees to
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take any eligible lead-related activity at a site unless the
Lead-Acid Battery Cleanup Fund has been exhausted by the
state.
29) Rather than providing that a violation of lead acid
batteries is a misdemeanor, authorizes DTSC to impose civil
administrative penalties not to exceed $1,000 per day on any
person who is in violation and does not provide for more
severe fines for subsequent violations. In assessing or
reviewing the amount of a civil penalty imposed for a
violation of this article, DTSC or the court shall consider
all of the following:
a) The nature and extent of the violation.
b) The number and severity of the violation or
violations.
c) The economic effect of the penalty on the
violator.
d) Whether the violator took good faith measures to
comply with this article and the period of time over
which these measures were taken.
e) The willfulness of the violator's misconduct.
f) The deterrent effect that the imposition of the
penalty would have on both the violator and the
regulated community.
g) Any other factor that justice may require.
30) Requires all penalties to be deposited into the Lead-Acid
Battery Cleanup Fund.
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31) Establishes this as an urgency act in order to increase the
cleanup of toxic materials and prevent additional toxic
pollution at the earliest possible time.
32) Establishes the effective date as January 1, 2017.
Background
1) Lead Acid Batteries. Lead acid batteries are rechargeable
batteries made of lead plates situated in sulfuric acid
within a plastic casing. They are used globally for a wide
range of purposes, most commonly in vehicles like
automobiles, boats, trucks industrial vehicles. There is
approximately 6 million tons of lead used worldwide annually.
Three quarters of that is used for lead acid batteries.
According to the U.S. Geological Survey, the lead-acid
battery industry accounted for about 90% of reported U.S.
lead consumption during 2015. The average battery contains
17.5 pounds of lead and 1.5 gallons of sulfuric acid.
For example, more than 25 million motor vehicles are registered
in California. Each vehicle currently still uses a lead-acid
battery. According to the California Board of Equalization's
estimates, based on 2012 Census data, lead-acid car battery
sales in California are approximately $1.6 billion. That is
based on an estimate of roughly 16 million batteries sold at an
average cost of $100.
The demand for lead is high and as such lead is a highly valued
commodity that makes recycling highly profitable.
Under current law, any dealer of lead-acid batteries is required
to accept a lead-acid battery from a consumer, regardless of
type and size of the battery. AB 2153, as amended, narrows the
requirement for retailers to take back virtually any lead acid
battery and authorizes retailers to reject a lead-acid battery
if it is not the same "type and size" that is sold by that
retailer.
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Lead-acid batteries contain chemicals that have the potential to
be hazardous to your health and the environment. The batteries
contain lead, a highly toxic metal, and sulfuric acid, a
corrosive electrolyte solution. Since both of these materials
are classified as hazardous, it is very important that the
battery be handled properly.
Contact with the sulfuric acid solution may lead to irritation
or burns to the skin, or irritation to the mucous membranes of
the eyes or the upper respiratory system.
Symptoms of low-level lead exposure include fatigue, impaired
central nervous system functions, and impaired learning. Severe
lead poisoning can result in coma, convulsions, irreversible
neurological damage, seizures, and even death.
If lead-acid batteries are disposed of in a solid waste landfill
or illegally dumped, the lead and sulfuric acid can seep into
the soil and contaminate groundwater, potentially affecting the
quality of our drinking water supply. If the batteries are
disposed of near rivers, streams, lakes, or marine waters, the
lead and sulfuric acid can also threaten aquatic life.
In California, lead-acid batteries are a hazardous waste unless
they are recycled. California law specifies management for
lead-acid batteries when entering the recycling stream.
To recover lead from a battery for recycling, the battery is
broken and the components are classified. The lead containing
components are processed in a furnace or smelter.
Humans have been smelting lead for thousands of years, poisoning
themselves in the process. Although lead poisoning is one of the
oldest known work and environmental hazards, the modern
understanding of the small amount of lead necessary to cause
harm did not come about until the latter half of the 20th
century. No safe threshold for lead exposure has been
discovered-that is, there is no known amount of lead that is too
small to cause the body harm.
Lead smelters with little pollution controls have contributed to
several environmental problems, especially raised blood lead
levels in the surrounding population. The problem is
particularly significant in many children who have grown up in
proximity to a lead smelter.
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The United States and California have increased regulations
over smelting operations to decrease potential
environmental and public health exposures to smelting
emissions and contamination over the last several decades.
However, there are many historic smelters in California,
like the Exide facility in Vernon, that have historic
pollution that goes back for many decades prior to the air,
soil and water regulations of today.
As of 2015, there is only one lead smelter, recycler of
lead-acid batteries in California. That is Quemetco West
LLC in the City of Industry.
2) Exide Technologies: The Exide Technologies (Exide) battery
recycling facility in Vernon, California recycled lead from
used automotive batteries and other sources. The facility
could process about 25,000 automotive and industrial
batteries a day, providing a source of lead for new
batteries. Over the course of decades of operation, the
facility polluted the soil beneath it with high levels of
lead, arsenic, cadmium and other toxic metals. It also has
contaminated groundwater, released battery acid onto roads
and contaminated homes and yards in surrounding communities
with lead emissions. In March, 2015, Exide was forced to
close the facility for good and, under a state agreement with
DTSC, set aside $7.7 million to test homes and other
structures around the facility for pollution resulting from
the facility.
DTSC estimates homes between 1.3 and 1.7 miles away from the
facility may potentially be affected by Exide's lead
contamination - that equates to somewhere between 5,000 -
10,000 residential properties. Cleaning each home costs about
$45,000, according to DTSC. If the cleanup grows to thousands
of properties, it could cost hundreds of millions of dollars.
Removing lead-contaminated soil from thousands of homes
surrounding Exide could result in the most extensive cleanup
of its kind in California and will be among the largest
cleanup ever conducted in the nation. At the end of the day,
the cost of cleanup in and around the Exide facility is
expected to top $500 million dollars.
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In February, 2016, Governor Jerry Brown announced a budget
proposal for funding cleanup in the polluted communities
surrounding the shuttered Exide facility. The proposal
includes making $176.6 million available to DTSC to expedite
and expand testing and cleanup of residential properties,
schools, daycare centers and parks in the 1.7 mile radius
around the facility and remove contaminated soil at the
properties that have the highest lead levels and greatest
potential to expose residents.
After the $176.6 million is expended, DTSC will need additional
funds to do complete and thorough cleanup. This bill is
intended to fill that gap while providing an ongoing source of
funds to address future lead contamination from lead-acid
batteries.
Comments
1) Purpose of Bill. According to the author, "AB 2153 will
create a state mandated Lead-Acid (Car) Battery fee that
will serve as a funding mechanism for clean-up of areas
contaminated by lead-acid batteries. Consumers will be
charged a $1 fee per car battery at point of sale.
Manufacturers will pay a $1 fee on all batteries sold in
the state. The money from the fee can go to re-pay the
Governor's 176.6 million dollar loan, and will be used to
clean up areas of the state that have been contaminated by
the production and recycling of lead acid batteries."
2) So much more than a funding mechanism for cleanups: This
Lets Manufacturers off the Hook by:
a) Changing the HWCA to create a complicated
system by which to hold battery manufacturers
responsible as responsible parties.
b) Changing the HWCA to remove the crime and
decrease civil penalties for lead acid battery
violations.
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c) Fundamentally changing, under HWCA, the
existing cleanup reimbursement, penalty and
prosecution regime under which the state can pursue
the owner/operator of the site and/or anyone who
generated or arranged for wastes to be transported to
the contaminated site. This bill instead requires the
state to exhaust all of its efforts to recover
reimbursement from the owner/operator of a site before
it can go after anyone else who might be liable under
current law.
d) Creating a "pooled account" for liability for
cleanups that is funded not just by manufacturers but
by consumers that must be depleted prior to holding a
contributing manufacturer responsible for a cleanup
that it is responsible for. Additionally, the
manufacturer can recoup its "fee" by passing it along
to the consumer by raising its prices.
e) Shifts burden of cleanup costs from
manufacturers/wholesalers to consumers and site
owners/operators. By providing significant
protections from liability to manufacturers and
wholesalers, and requiring the state to first exhaust
efforts to recover reimbursement from the site
owner/operator, this bill shifts the burden of cleanup
costs away from manufacturers and wholesalers. The
state will only be able to pursue a manufacturer or
wholesaler for reimbursement or cleanup after efforts
to force the site owner/operator have failed. Even
then, manufacturers and wholesalers will be insulated
from liability because they will have simply passed
the costs of the tax onto consumers through higher
product prices.
f) Hindering a responsible party's ability to
recover judgments against a manufacturer or wholesaler
who has paid this new "fee." This bill also reduces
the amount of money that a battery manufacturer or
wholesaler will have to pay to the owner/operator of a
site for cleanup costs. Under existing law, the state
can force the owner/operator to reimburse the state
for all cleanup costs. That owner/operator can then
sue any other responsible party for contribution.
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This means that if a court finds the owner 60% liable
and another responsible party 30% liable, the owner
can recover that 30% from the other responsible party.
This bill would prohibit the owner from recovering
from a manufacturer or wholesaler the amount of the
taxes the manufacturer or wholesaler paid into the
cleanup fund thereby undercutting a responsible
party's ability to seek contribution from other
responsible parties.
g) May inadvertently double the amount of
liability protection manufacturers and wholesalers
receive. The bill also seems to double-count the
"credit" that a battery manufacturer or wholesaler
gets from paying into the fund. Under proposed
Section 25215.55(a)(1), the
manufacturer's/wholesaler's liability for
reimbursement costs shall be reduced by the amount the
manufacturer/wholesaler paid in taxes and by the
amount recovered by the state from the site
owner/operator. Section 25215.5 already requires the
state to fully deplete the Cleanup fund before it can
go after a manufacturer or wholesaler. As such, any
additional "credit" for moneys paid into the fund will
essentially double count those contributions. This
may be complicated because the bill fails to define
what the "payor's liability" is as referenced in
25215.55.
h) Grants an exemption for lead-acid batteries
from California's Safer Consumer Product Regulations.
This bill exempts lead-acid batteries from regulation
under the state's Green Chemistry program. While
these have a high recycling rate, some may object to
any statutory exemption from the program. Indeed,
this conflicts with the Governor's May Revise proposal
that requires DTSC to consider whether lead-acid
batteries should be added to the initial list of
priority products that DTSC may regulate over the next
few years. Finally, it is not clear that the
exemption should be predicated on a national lead-acid
battery collection rate.
3) Tax not a Fee. The bill collects a consumer "fee" and
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manufacturer "fee" to be collected at the purchase of a new
lead-acid battery and be deposited in the Lead-Acid Battery
Cleanup Fund to be used to off-set cleanup costs for former
and future sites that are contaminated by the mishandling
of this hazardous waste stream. Under Proposition 26 of
2010 a fee (not a tax) is defined as:
a) A charge imposed for a specific benefit
conferred or privilege granted directly to the payor
that is not provided to those not charged, and which
does not exceed the reasonable costs to the state of
conferring the benefit or granting the privilege to
the payor.
b) A charge imposed for a specific government
service or product provided directly to the payor that
is not provided to those not charged, and which does
not exceed the reasonable costs to the state of
providing the service or product to the payor.
c) A charge imposed for the reasonable regulatory
costs to the state incident to issuing licenses and
permits, performing investigations, inspections, and
audits, enforcing agricultural marketing orders, and
the administrative enforcement and adjudication
thereof.
d) A charge imposed for entrance to or use of
state property, or the purchase, rental, or lease of
state property, except charges governed by Section 15
of Article XI.
A consumer and manufacturer fee that is pooled to cleanup
contamination from mishandled lead-acid batteries does not
meet these criteria.
4) Insult to Injury. Exide Industries is currently funding
part of the cleanup of the neighborhood and facility in
Vernon, California. In the event that the state uses the
Cleanup Fund to cleanup sites other than the Exide
Technologies recycling facility in Vernon, this bill
perversely provides Exide with all the liability
protections that other manufacturers will enjoy. Exide is
one of the nation's largest lead-acid battery
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manufacturers. They declared bankruptcy and closed their
Vernon facility as a result of the contamination caused by
them and the site's previous operators. As such, it is not
clear just how much the state will be able to recover from
Exide for cleanup activities. Exide still remains one of
the largest manufacturers and will likely opt to pay the
$1/battery tax. If they do so, and if they are found
liable for contamination at any other site in the state,
they will also enjoy all of the immunities provided by this
bill.
5) Potential for loss of jobs and innovation in California.
This bill sets up a structure for battery manufacturers
that sell in California to contribute to a fund that will
be used to cleanup sites contaminated by used lead-acid
battery handling. Unlike other programs in California
that are funded by a consumer fee, this fund is not used to
help spur recycling or new research and development for
better products. In fact, this bill prohibits the state
from using the fund for such activities. Other than
reducing the financial liability for battery manufacturers
by putting a-dollar-a-battery on the table, this bill does
not help California innovate better battery, safer, cleaner
battery technology. Rather it hinders that ability while
attempting to clean up the industry's past contamination in
California. Additionally, because there is only one
smelter in California that is currently recycling a portion
California's lead-acid battery waste, rather than create a
better technology we are creating a system to ship our
wastes to other countries where the transport and lead
smelting process will harm the environment and public
health elsewhere (where there is not a fee for cleanup of
the contamination).
6) Governor's Budget: The May Revise proposed an increase
and two positions for DTSC to evaluate listing lead-acid
batteries as "priority products" subject to DTSC's Safer
Consumer Products regulations. As part of DTSC's Hazardous
Waste Reduction Initiative, it will conduct research,
engage with stakeholders, evaluate options, and implement
recommended actions to better protect the people and
environment of California from adverse impacts related to
the manufacture, use, recycling, and disposal of lead acid
batteries. AB 2153 would preclude lead-acid batteries from
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consideration for inclusion in the Safer Consumer Products
Regulations as long as the national recycling rate for lead
in batteries determined by the methodology accepted by the
US EPA employed in the BCI's National Recycling Rate Study
exceeds a to-be-determined percentage.
While the bill is mindful of the Administration's budget
proposal, it is in conflict with the direction of that
proposal. According to the auto care industry, 99.6% of all
lead-acid core batteries are recycled in California.
Supposing that statistic is accurate for California, the
author will have to consider what percentage could be
applied to the bill to render the exemption meaningful.
In addition, the proposed exemption for lead-acid batteries
would be precedent setting. The intent of the Safer
Consumer Product Program is to do a comprehensive analysis
of products, chemicals, and exposure pathways, and
prioritize the most dangerous chemicals for regulation to
protect public health and limit Californians' exposure to
hazardous chemicals.
7) The Minutia of Administration of this Program. The
structure of this bill is complicated - requiring the
collection of $1.00 from a consumer, another from the
manufacturer or a wholesaler who may choose to contribute
in place of the manufacturer. The bill provides the
retailer may retain 1.5 percent for administration and then
also retain the deposit left by the consumer if that
consumer did not return a used battery at the time of sale
or within 45 days. Then the bill provides that up to 3
percent may go to the Board of Equalization and DTSC for
state administration. How does the money get tracked? Who
is enforcing all of these provisions and ensuring that the
consumer gets their money back and is charged the correct
amount? How is BOE tracking and administering the fund?
Who is enforcing the labeling requirements of this bill or
the signage requirements? This bill is very complicated
and as such is likely to be very costly to administer and
enforce. The state administration is limited to 3 percent
of the amount collected. While that is potentially
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significant, the complexity of this program could exceed
what is allotted, necessitating General Fund subsidies of
the program. As the goal of the bill is repaying the
General Fund for the loan for the cleanup around Exide,
this seems counter to the goal of the bill.
8) Additional Concerns as raised by the Assembly
Environmental Safety and Toxic Materials Committee.
The following are concerns that were raised by the analysis of
this bill by the Assembly Environmental Safety and Toxic
Materials Committee. In the hearing of this bill in that
committee on June 1, 2016, the author committed to addressing
these issues in the Senate.
a) Use of proposed battery charge revenues: This bill
would require a fee to be added to the purchase price of a
replacement lead-acid battery at the point of sale. A
non-refundable $1 Consumer Battery Fee would be paid by the
consumer and $1 Manufacturer Battery Fee would be paid per
lead-acid battery manufacturer. An additional $1 per
battery could be collected if a wholesaler pays the
Manufacturer Battery Fee on the manufacturer's behest and
the manufacturer voluntarily pays an additional $1 fee.
The bill would authorize those fee revenues to be
continuously appropriated to DTSC for the investigation,
site evaluation, cleanup, abatement, remedy, removal,
monitoring, or other response actions at any site in
California investigated because of concerns about lead
releases from a lead-acid battery recycling facility. In
addition, AB 2153 would authorize funds in the Lead-Acid
Battery Cleanup Fund to be used towards repaying the
General Fund loan. The April 14 version of the bill
authorized use of the funds for the cleanup of areas of the
state that have been contaminated by the production,
recycling, or improper disposal of lead-acid batteries and
activities.
The author may wish to consider amending the bill to clarify
that the funds can be used beyond cleanup at recycling
facilities (of which there are only two in California) and be
used at any facility that may have lead contamination resulting
from the production, recycling, or improper disposal of
lead-acid batteries and activities.
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b) Manufacturer credits: Under AB 2153, any funds spent by
DTSC for any eligible lead-related activities must be drawn
from the Lead Acid Battery Cleanup Fund before drawing from
any other fund source. The bill also requires the financial
obligations of any manufacturer found financially
responsible for any lead-related activity (site cleanup) to
be reduced by the amount that the manufacturer remitted in
Manufacturer Battery Fee or voluntary fees. If a
manufacturer is found responsible for site cleanup, those
fees act like a deposit on their cleanup costs. If a
manufacturer is never found responsible for site cleanup,
those remitted fees help to cover other manufacturer or
recycler's cleanup costs, which could be considered a way
of mandating corporate social responsibility.
c) Accounting correction: The bill requires DTSC to deplete
all funds in the Lead-Acid Battery Cleanup Fund before it
can seek to recover funds from a person who has remitted a
Manufacturer Battery Fee, unless that person is an owner or
operator of a contaminated site. The bill also states that
the balance of a judgment against any person responsible
for a contaminated site and who has remitted any amount of
Manufacturer Battery Fees shall be reduced by the amount
that person has remitted to the state. If the fees are
remitted on a quarterly basis, the fund will likely never
be extinguished, which prevents DTSC from recouping costs
from a Responsible Party (RP) who is not an owner or
operator or legal successor of a site. Under current law,
there is a statute of limitations on when DTSC can recoup
costs of removal or remedial actions, which is within three
years after completion of all response or corrective
actions have been certified by DTSC or a regional water
quality control board. The author may wish to consider
correcting this provision to eliminate any constraint on
DTSC from recovering costs from an RP.
d) Clarifying responsibility: A manufacturer could have
more than one wholesaler selling lead-acid batteries in
California. The bill does not determine any threshold at
which the manufacturer is released from responsibility. The
bill simply requires a wholesaler to notify intent to pay
the Manufacturer Battery Fee. If a wholesaler who manages
20% of a manufacturer's battery sales in California elects
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to pay the Manufacturer Battery Fee, it's unclear if the
manufacturer is off the hook for the fee for the other 80%
of its batteries sold in California. The author may wish to
consider clarifying the manufacturer's obligations under
the bill so that they are commensurate with the
wholesaler(s) paying the fee on that manufacturer's behalf,
or simply stating that any single wholesaler paying the
Manufacturer Battery Fee on behalf of a manufacturer shall
assume responsibility for the entirety of the
manufacturer's inventory sold in California. Keeping score:
In order to accurately determine how much a person has
remitted in Manufacture Battery Fees when determining the
amount of a judgment or settlement, DTSC will need to know
exactly which manufacturers and wholesalers have remitted
fees and how much each remitted. The author may wish to
add language requiring the BOE to keep track of how much
and from whom the fees were remitted, and require the BOE
to transmit that information to DTSC on a regular basis.
e) Core battery charges: According to a 2007 contracted
report to the California Integrated Waste Management Board
(CIWMB, which is now CalRecycle), Framework for Evaluating
End-of-Life Product Management Systems in California, the
need to have disposal options for lead-acid batteries lead
to an industry response by Battery Council International
(BCI) to promote model legislation for states to enact.
That resulted in a model that included a landfill ban, a
mandatory retailer-take back system, and mandatory
collection of deposit on the purchase of a new battery if
an old battery is not returned. California adopted a
modified version of the model legislation in 1989 with only
two of those components:
i. Prohibit the disposal of a lead-acid battery
at a solid waste facility, or on or in any land,
surface waters, watercourses, or marine waters (H&S
§25215.2); and,
ii. Require that retailers accept the trade-in of
a spent lead-acid battery by a consumer upon purchase
of a new one. (H&S §25215.3)
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California's laws, therefore, do not identify that a
deposit should be added to the sale of batteries. Despite
the lack of a deposit requirement, many retailers
voluntarily charge a deposit as an incentive to get the
batteries returned, and the deposit charge varies (usually
between $15-$18). If a used battery is returned to the
retailer at the time of purchase of a new battery, the
deposit is conditionally waived. The deposit is considered
a "core" charge, or deposit.
Since it is illegal to dispose of lead-acid batteries in
California landfills, and all retailers that sell lead-acid
batteries must accept their return for disposal, the core
charge is supposed to give retailers a tool to comply with
those laws by incentivizing consumers to return their
batteries. However, the core charge is unevenly charged and
refunded in the retail industry, which has created an
inconsistent implementation of the core charge amongst
California car battery dealers. Establishing a
state-mandated fee-for-recycling will compel all lead-acid
battery manufacturers and dealers to comply with the
requirements set forth in this bill and prevent an ongoing
patchwork of retailer participation, as is the case under
the current core charges.
Since AB 2153 is intending to replace the existing,
voluntary industry core charge with a statutory charge, the
author may wish to consider adding language to clarify the
charge required under this bill shall supplant any
voluntary core charge currently being charged to prevent a
consumer from being charged two times by a retailer.
9) Additional issues for consideration: As raised and
suggested by the Assembly Committee on Environmental Safety
and Toxic Materials, the author committed to addressing the
following additional issues:
a) The baseline amount of the "deposit" portion of the
fee. The author acknowledges this is an issue to be worked
out. Statutorily establishing the core fee (the amount in
addition to the nonrefundable Consumer Battery Fee) will
ensure consumers pay the same fee statewide. This is
especially important if the refund must be paid regardless
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of where the battery is returned.
b) Restoring current law under H&S §25215.2 for returning
lead-acid batteries to a dealer to prevent any limitation
on consumer flexibility for returning spent batteries to a
dealer.
c) Clarification of the recycling symbol to be included
on all lead-acid batteries.
d) Expanding how the fee revenues in the Lead-Acid
Battery Cleanup Fund can be used to be more consistent
with the April 14 version of the bill.
e) Correcting confusion over when DTSC can take action
and when the Lead-Acid Battery Cleanup Fund is
extinguished to eliminate any constraint on DTSC from
recovering costs from an RP.
f) Proportionality of wholesaler payment of the
Manufacturer Battery Fee and the total manufacturer's
battery sales.
g) Requiring the BOE to keep track of how much and from
whom the fees were remitted, and requiring the BOE to
transmit that information to DTSC on a regular basis.
h) The differences between the Green Chemistry proposals
in the bill and the impacts on the Governor's proposed
budget.
i) To prevent obfuscating DTSC's budget processes for
funding hazardous waste cleanup, consider how language
impacts DTSC's current process.
j) Eliminating prohibitions on loans to other programs.
The Legislature has used loans from state funds to balance
AB 2153 (Cristina Garcia) Page 22
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the budget, and restricting loans restricts the budgeting
process for future Legislatures.
aa) Clarifying the charge required under this bill shall
supplant any voluntary core charge currently being charged
to prevent a consumer from being charged two times by a
retailer.
DOUBLE REFERRAL:
This measure provides liability relief provisions and
restructures the judicial review of responsibility for
remediation under HWCA for lead-acid battery manufacturers.
If this measure is approved by the Senate Environmental Quality
Committee, the do pass motion must include the action to
re-refer the bill to the Senate Judiciary Committee.
SOURCE: Author
SUPPORT:
Action Now
Battery Council International
California Automotive Wholesalers Association
California Communities Against Toxics
California Labor Federation
California League of Conservation Voters
California Safe Schools
Californians Against Waste
Coalition For A Safe Environment
Del Amo Action Committee
Desert Citizens Against Pollution
Healthy Homes Collaborative
Motor and Equipment Manufacturers Association
Society for Positive Action
OPPOSITION:
None received
-- END --
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