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: |8/31/2016 |Hearing |8/31/2016 |
| | |Date: | |
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|Urgency: |Yes |Fiscal: |Yes |
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|Consultant:|Rachel Wagoner |
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SUBJECT: The Lead-Acid Battery Recycling Act of 2016
ANALYSIS:
Existing law:
1) Governs, under the federal Resource Conservation and Recovery
Act (RCRA) of 1976, 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) Enacts the California Hazardous Waste Control Act (HWCA) of
1972, which:
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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.
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) Provides that 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
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thousand dollars ($25,000).
3) Requires the Department of Resources, Recycling and Recovery
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 &
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 deposit on the sale of
new batteries, 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)Provides that DTSC provide notice of an alleged violation of
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the noticing requirement no less than 60 days before the
issuance of an order or filing an action imposing a civil
penalty and provides that if a person corrects the alleged
violation before the order or action is filed the department
shall not impose the penalty.
7)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.
8)Requires all replacement lead-acid batteries to have a
recycling symbol.
9)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).
10)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.
11)Sunsets the $1 manufacturing after 5 years.
12)At the point of the manufacturing fee sunsets, increases the
consumer fee to $2.
13)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.
14)Continuously appropriates all funds in the Lead-Acid Battery
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Cleanup Fund to DTSC to fund ONLY the following activities:
investigation, site evaluation, cleanup, remedial action,
removal, monitoring, or other response actions at any area of
the state that is reasonably suspected to have been
contaminated by the operation of a lead acid battery recycling
facility and repayment of General Fund loans for lead
contamination cleanup.
15) 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.
16) States that "this article does not create a private cause of
action. Nothing in this article shall be construed to affect,
expand , alter or limit any requirement s, duties, rights, or
remedies under other law, or limit the state or any other party
from bringing any cause of action that may exist under any
law."
17) 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.
18) Prohibits funds from the Lead-Acid Battery Cleanup Fund from
funding Green Chemistry as it relates to lead-acid batteries or
for any other purposes not specified above.
19)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.
20)Provides a loan of $1.2 million from the California Tire
Management Fund for the initial administration of this act that
is to be paid back from the proceeds of the fee.
21) Requires all penalties to be deposited into the Lead-Acid
Battery Cleanup Fund.
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22) 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.
Background
Health Impacts Associated With Lead.
Lead is a toxic metal, which doesn't break down in the
environment and accumulates in our body. High levels of lead
have been found in jewelry, especially inexpensive children's
jewelry.
Exposures to lead can lead to a number of health problems,
including:
behavioral problems
learning disabilities
joint and muscle weakness
anemia
organ failure
and even death
Children 6 years old and under are most at risk because their
bodies are growing quickly.
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According to the Centers for Disease Control and Prevention there
is no safe blood level in children. Lead is a leading
environmental threat to children's health in the United States.
When children are exposed to lead it has lifelong adverse
effects, such as lowered IQ scores, learning and hearing
disabilities, behavioral problems, difficulty paying attention,
hyperactivity and disrupted postnatal growth.
Lead exposure has decreased dramatically in the last 30 years due
to lead bans, but experts point out that there are lead-poisoning
hot spots throughout the country. The Los Angeles County
Department of Public Health has found the highest concentration
of blood lead levels in people under 21 years of age in South Los
Angeles that is adjacent to Vernon, where Exide Technologies is
located.
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. 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 California BOE'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.
The United States and California have increased regulations over
smelting operations (the process through which lead is retrieved)
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to decrease potential environmental and public health exposures
to smelting emissions and contamination. However, some smelters
in California, like the Exide facility, have pollution resulting
from operations prior to the air, soil and water regulations of
today.
The Past - 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
per day, providing a source of lead for new batteries. During
its 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 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-somewhere between 5,000 - 10,000 residential
properties. Assuming cleanup costs of approximately $45,000 per
home, the total cost of cleanup in and around the Exide facility
is expected to top $500 million.
The Budget. In February, 2016, Governor Jerry Brown announced a
budget proposal to fund 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 the cleanup. Some estimates are $500
million dollars to conduct cleanups around Exide.
The Present - Quemetco West LLC. The Quemetco, Inc. facility in
the City of Industry recycles lead-acid batteries. The facility
has been in operation since 1959 and operates under several
different permits and regulations including:
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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 DTSC.
DTSC is currently overseeing an investigation to determine if
past airborne lead emissions impacted the area surrounding the
facility. Beginning in July 2016, DTSC has ordered numerous
corrective actions due to, among other things, its failure to
have a functioning leak-detection system and maintain its
containment building and failure to maintain an adequate
groundwater and surface water monitoring system.
It is unknown how much will be needed to remediate contamination
in the area surrounding the Quemetco plant. However, it is
likely to be very significant like the Exide cleanup the decades
of contamination caused by that plant.
FISCAL EFFECT: Appropriation: Yes Fiscal
Com.:YesLocal: Yes
According to the Senate Appropriations Committee:
Approximately $1.2 million for the first two years of
implementation and ongoing costs of approximately $1.6 million
annually (Battery Cleanup Fund) to the BOE for implementation
and administration of the program.
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Minor costs to the Department of Toxic Substances Control
(Battery Cleanup Fund).
Up to $32 million in revenue from the fee assessment (Battery
Cleanup Fund).
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) What is the purpose of this bill? The author states that the
bill creates a fund to address contamination today rather than
wait years until litigation against the responsible parties is
complete. The author states that this bill does not provide
any relief for manufacturers but simply provides them a credit
against their liability in the future for the amount that they
contribute to this Fund.
However, in a letter submitted to the Assembly journal today,
the author states, "It is my intent in authoring this bill,
and the Legislature's intent in approving this legislation
that rather than further delaying funding for clean up by
choosing the costly path of litigation with an uncertain
outcome against battery manufacturers or other parties who are
not owners or operators of the battery recycling facilities,
that the State choose instead the collaborative approach
contained in this bill."
While a letter to the journal of one house does not hold the
weight of law, this letter states that it is the intent of the
Legislature that the State not pursue litigation against
responsible parties.
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This statement is directly contrary to the statements made by
the Senate Environmental Quality Committee when this bill was
heard on August 3, 2016.
3) Limitations of the bill. The language in the bill has been
further constrained, contrary to the amendments taken in this
committee on August 3, 2016, to
allow the moneys generated by this bill to "fund ONLY the
following activities: investigation, site evaluation, cleanup,
remedial action, removal, monitoring, or other response
actions at any area of the state that is reasonably suspected
to have been contaminated by the operation of a lead acid
battery recycling facility" and repayment of General Fund
loans for lead contamination cleanup.
What about other costs associated with lead acid batteries
that are not directly linked to a lead acid battery recycling
center (of which there are only 2 in California)? What about
blood level testing and treatment in communities that have a
historic burden from the use, recycling, disposal of lead acid
batteries? What about social programs for those communities
to help offset the lifelong health and educational impacts
associated with the chronic poisoning of these entire
communities? What about biomonitoring to establish what types
of potential cumulative impacts may exist? What about any
other program that may benefit these communities and the
communities that are yet to be identified?
Additionally, the amendments of the bill reinstate language
removed by the Senate Environmental Quality Committee at the
August 3, 2016 hearing, prohibiting these funds from being
used for California to evaluate lead acid batteries as part of
the Safer Consumer Products program (Green Chemistry). Why?
Isn't it appropriate for the state to evaluate better products
that do not contaminate our state and risk public health?
4) Temporary manufacturer fee for lifetime credit for
contribution. This bill only collects $1 per battery sold in
California for 5 years from manufacturers, but manufacturers
can claim the credit in perpetuity - that includes not only
legacy sites but contamination that hasn't even occurred yet.
As written this bill creates a state sponsored savings fund
for manufacturers.
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5) How big is this problem? Does this bill do enough to address
it? And at what cost? This bill will generate a maximum of
$32 million dollars a year. It will take at least six years
to repay the General Fund loan and at least another 10 to
address the current estimated costs for remediation around
Exide. In July, it was announced that DTSC is now
investigating similar concerns around the Quemetco facility.
It is unknown what other sites may exist across the state that
may need remediation. This fee will not be sufficient to
address that need.
Does it make more sense to ask DTSC to give a thorough
evaluation over the interim of the potential need of the state
and craft a solution that will do what is needed for
California?
6) What does this bill accomplish? This bill creates a new
sources of revenue, collected at great administrative burden,
that is not likely to be eligible to do much more than repay
the $176 million General Fund loan appropriated in the year's
budget.
7) Amendments Needed.
a) The language prohibiting the use of this fund for Green
Chemistry review of this product should be deleted.
b) The amendments reinstate language removed by the Senate
Environmental Quality Committee that provides that DTSC is
required 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. What
prevents a dealer from hanging the sign and then removing
it over and over again? This language sets a bad
precedence and should be removed again.
c) If the intent of this bill is to create a fund that
offsets the damage done by lead acid batteries in
California two amendments are needed.
i) The fee should be at least $10 per battery. As
mentioned above, at $2 a battery it will take at least
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six years to repay the General Fund loan and at least
another 10 to address the current estimated costs for
remediation around Exide. If the fund is to address
other sites, like the Quemetco facility and others,
yet to be identified sites throughout the state - the
fee needs to be significantly increased.
ii) The bill should be amended to remove the
constraints on how the money can be used for
contamination associated with lead acid batteries so
that the state can address the decades of harm already
done as well as prevent future harm.
SOURCE: Author
SUPPORT:
Action Now
Auto Care Association
Battery Council International
California Automotive Wholesalers' Association
California Communities Against Toxics
California League of Conversation Voters
California Retailers Association
California Safe Schools
Californians Against Waste
Coalition For A Safe Environment
Del Amo Action Committee
Desert Citizens Against Pollution
Healthy Homes Collaborative
Los Angeles County Board of Supervisors
Los Angeles County Solid Waste Management Committee/Integrated
Waste
Management Task Force
Mothers of East Los Angeles
Natural Resources Defense Council
Resurrection Church
Society for Positive Action
OPPOSITION:
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Howard Jarvis Taxpayers Association
Quemetco
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