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: |8/1/2016 |Hearing |8/3/2016 |
| | |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,
watercourses, or marine waters.
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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
contamination cleanup caused by lead-acid batteries.
Specifically, this bill:
1) Repeals and adds Article 10.5 of Chapter 6.5 of the Health &
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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 for recycling and caps the
number of batteries that can be returned by a consumer at six
lead-acid batteries per day.
3) Requires dealers to collect a refundable flat-fee deposit on
the sale of new batteries that ranges from $15 to $100,
depending on weight on the new lead-acid batteries sold if a
used battery is not exchanged for the new battery.
4) Requires consumers to be refunded the deposit if the lead-acid
battery is returned within 45 days after purchase.
5) 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.
6) Requires a lead-acid battery dealer to charge a non-refundable
$1 California Battery Fee on each lead-acid battery sold to a
person buying a replacement lead-acid battery, except as
specified.
7) Requires all replacement lead-acid batteries to have a
recycling symbol.
8) Requires a lead-acid battery dealer to collect the California
Battery Fee at the time of sale and authorizes the dealer to
retain 1.5% 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).
9) Requires each manufacturer to remit to the BOE a $1
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Manufacturer Battery Fee for each lead-acid battery sold at
retail to a person in California.
10)Authorizes a wholesaler to be deemed the manufacturer for
purposes of this article, as specified.
11) 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.
Prohibits the manufacturer from passing along the costs to the
wholesaler or consumers.
12)Requires all California Battery Fee and Manufacturer Battery
Fee revenues be remitted to BOE for administration of the fee
and the remainder to be deposited into the Lead-Acid Battery
Cleanup Fund.
13)States that 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.
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14)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 areas of the
state that have been contaminated by the production,
recycling, or improper disposal of lead-acid batteries,
administration and repayment of General Fund loans for lead
contamination cleanup.
15) 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.
16)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
successors to owners or operators, of a site at which such
activity occurred, to do the following:
a) Draw from the funds in the Lead-Acid Battery Cleanup
Fund.
b) Vigorously pursue efforts to recover any moneys expended
for specified activities 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:
i) The issuance of a final unappealable legal judgment
against the owner or operator or legal successor to the
owner or operator.
ii) Both of the following conditions have been met:
(1) 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
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occurred or of the site that is identified as the
source of the release to which the activity was
directed.
(2) Seventy-one months have passed since
the first expenditure of moneys from the
Lead-Acid Battery Cleanup Fund on remedial
actions at the site.
17)If a person from whom the department recovered moneys receives
a favorable judgment against a second person who has remitted
a manufacturer battery fee in an action relating to those
response activities, requires the judgment to be reduced by
the amount the second person has already remitted to the
Lead-Acid Battery Cleanup Fund that is not previously
committed to other payor liabilities.
18) 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.
19) 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
occurred.
20) 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.
21) Prohibits funds from the Lead-Acid Battery Cleanup Fund from
funding Green Chemistry as it relates to lead-acid batteries.
22)Precludes lead-acid batteries from consideration for inclusion
on a list of Priority Products under DTSC's Safer Consumer
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Products Program until after the completion of the fifth
Priority Product Work Plan 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 90%.
23)Requires DTSC to 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.
24)Requires, 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), that BOE shall 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.
25)Requires 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), that BOE 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.
26)States that, notwithstanding any other law, 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 as specified at that site unless all of the
following conditions are met:
a) Any activities undertaken by any party at the site have
been inadequate to fully address concerns to which the
activities would be directed.
b) The state has a reasonable basis to believe, that if the
state or private funds are used to undertake the activities
as specified and recovery of those funds is sought from the
person against whom the administrative order was issued,
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that person ultimately would be held responsible for
amounts in excess of the amount manufacturer battery fees
the person has remitted to the Lead-Acid Battery Cleanup
Fund that is not already committed to the payor's
liability.
c) One of the following:
i) 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;
or
ii) Both of the following conditions have been met:
(1) 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.
(2) 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.
27) 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, requires DTSC or the court to
consider all of the following:
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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.
28)Requires DTSC to 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. If the person corrects the alleged
violation before the issuance of an administrative penalty,
DTSC shall not issue the administrative penalty.
29) Provides an unspecified General Fund loan for the initial
administration of this act that is to be paid back from the
proceeds of the fee.
30) Requires all penalties to be deposited into the Lead-Acid
Battery Cleanup Fund.
31) Requires, on or before April 1, 2017, the Office of
Environmental Health Hazard Assessment to convene a Lead
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Advisory Committee to review and advise regarding policies and
procedures to reduce childhood lead poisoning in the state, as
specified.
32) 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.
33)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, and 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.
Lead-acid batteries contain chemicals that have the potential
to be hazardous to public 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, California law requires
proper handling as a hazardous waste.
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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. According to the Centers for Disease Control
and Prevention there is no safe threshold for lead exposure.
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.
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.
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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.
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
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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.
3) Quemetco West LLC. The facility in the City of Industry,
operated by Quemetco, Inc., recycles leadacid batteries,
which involves separating lead from other components,
smelting the lead and refining it to meet customer
specifications. The facility has been in operation since
1959. The facility operates under several different permits
and regulations including:
Air Quality overseen by the South Coast Air
Quality Management District.
Water Quality overseen by the Los Angeles
Regional Water Quality Control Board and the Los Angeles
County Sanitation District.
Hazardous Waste overseen by the Department of
Toxic Substances Control.
DTSC is currently overseeing an investigation to determine
if past emissions of airborne lead impacted the area
surrounding the facility, including sampling soil in
residential and industrial neighborhoods, as well as public
streets and waterways.
On July 26, 2016, DTSC ordered the Quemetco battery
recycling facility in the City of Industry to correct
violations related to its failure to have a functioning
leak-detection system and maintain its containment building,
which holds hazardous lead waste, to minimize the
possibility of any release.
In issuing this order, DTSC stated that it is elevating its
enforcement actions against Quemetco after issuing a series
of violations over the last year, including seven non-minor
violations this month.
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On July 15, 2016, DTSC issued a Second Addendum to Quemetco
for violations stemming from a multi-day inspection. Among
other corrective actions, the facility was instructed to
reduce the amount of ground-up lead waste from batteries
being stored in its containment building, and maintain the
building to prevent any release of hazardous waste.
On July 12, 2016, DTSC issued an Addendum to Quemetco citing
it for its failure to have a functioning leak detection and
liquid collection system for its containment building.
On June 20, 2016, DTSC issued Quemetco another Summary of
Violations after DTSC inspectors observed problems with the
leak-detection system in Quemetco's containment building.
Quemetco was required to take the affected portion of the
containment building out of service until it could
demonstrate to the Department that the facility is in
compliance with required safeguards.
On August 5, 2015, DTSC issued Quemetco a Summary of
Violations that notified the facility it failed to maintain
an adequate groundwater and surface water monitoring system.
On June 1, 2016, DTSC issued an Addendum to that Summary of
Violations requiring Quemetco to develop compliant water
monitoring plans that will effectively measure if operations
at the facility result in contamination.
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."
AB 2153 was amended on August 1, 2016. According to the
author, "the amendments largely reflect extensive amendments
from BOE, amendments that were agreed upon in Assembly ESTM
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committee and a large stakeholder group. The author states
that the amendments set the refundable deposit to be charged,
create and stop/start trigger for the fund, remove the
requirement to expend the fund before suit can be filed
against an arranger, and many other more technical things."
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.
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 drawn down 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) Shifting 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
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after efforts to force the site owner/operator have failed.
Even then, manufacturers and wholesalers will be insulated
from liability because, as drafted, the bill sets such high
obstacles prior to talking an action holding a manufacturer
responsible, that it is unlikely the state would be able to
meet the requirements.
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. This means that if a court finds the owner
60% liable and another responsible party 40% liable, the
owner can recover that 40% 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) Granting 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 for five cycles of the
Safer Consumer Product priorities list. 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
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
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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.
A consumer and manufacturer fee that is pooled to cleanup
contamination from mishandled lead-acid batteries does not
meet these criteria to be considered a "fee" under
Proposition 26.
4) 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-per-battery on the
table, this bill does not help California innovate better,
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
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portion of California's lead-acid battery waste, rather than
create a better technology, this bill creates 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).
5) Governor's Budget. The 2016-2017 Budget Act designates 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 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.
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 Californian's exposure to hazardous chemicals.
6) Is this too great a sacrifice? AB 2153 aims to create a fund
to provide resources to clean up sites across California that
have been contaminated by lead-acid battery manufacturing,
use, recycling and disposal. This contamination has caused
AB 2153 (Cristina Garcia) Page 19 of
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public health and environmental damage for not just years but
decades and the health impacts are not temporary but can be
for a lifetime.
Creating a fee on lead-acid batteries to address this damage
and harm is appropriate and consistent with California
environmental law and policy in which the state generates
revenue from a product or waste to address the damage or
potential harm caused by that product or waste. For example,
California collects a fee on the sale of tires to fund
recycling incentive programs. There is also a state fee to
facilitate the recycling of used motor oil.
Similarly, this bill could help facilitate the cleanup of
sites across the state where lead presents health and
environmental risk.
However, this bill conflicts with its own goal of reducing the
harm done by lead-acid batteries by granting responsible
parties immunity from administrative, civil and criminal
prosecution, and by allowing exemption from both California
law for the proper and safe management of hazardous waste
management and California law designed to help improve
products sold in the state to decrease adverse impacts to the
environmental and human health.
What is the justification for sacrificing environmental
protections?
The recent regulatory actions taken at Exide and Quemetco
battery recycling facilities and the contamination found
elsewhere in the state illustrate that this product and waste
steam, which present complicated environmental risks not only
during recycling but throughout the lifecycle and the legacy
in California, is far-reaching.
In order to best address the long-standing significant problem
identified by this bill, AB 2153 should be amended to strike
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the provisions related to liability relief, exemption from
HWCA enforcement provisions and the Consumer Product Safety
regulations for battery manufacturers; while maintaining the
fees on lead-acid battery manufacturers to clean up
contaminated sites across California.
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:
California Automotive Wholesalers Association
California Communities Against Toxics
California Labor Federation
California Safe Schools
Coalition For A Safe Environment
Del Amo Action Committee
Desert Citizens Against Pollution
Healthy Homes Collaborative
Society for Positive Action
OPPOSITION:
Environmental Working Group
Quemetco, Inc.
Sierra Club, California
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