BILL ANALYSIS
AB 147
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Date of Hearing: April 28, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 147 (Saldana) - As Introduced: January 22, 2009
As Proposed to be Amended
SUBJECT : HAZARDOUS WASTE: ELECTRONIC WASTE
KEY ISSUE : IN ORDER TO EFFECTIVELY ENFORCE EXISTING HAZARDOUS
MATERIALS PROHIBITIONS AND INFORM THE GREEN CHEMISTRY
INITIATIVE, SHOULD THE DEPARTMENT OF TOXIC SUBSTANCES CONTROL
REQUIRE MANUFACTURERS OF ELECTRONIC DEVICES TO SUBMIT SPECIFIED
INFORMATION ABOUT THE HAZARDOUS CHARACTERISTICS OF THEIR
DEVICES?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill, sponsored by Californians Against Waste, would
require manufacturers and producers of electronic devices to
submit information about the hazardous characteristics of the
devices they sell in California to the Department of Toxic
Substances Control (DTSC). Manufacturers are currently
providing this information upon request in the European Union
per the EU's Restriction of Hazardous Substances (RoHS)
Directive. According to the author, without the authority
provided by this bill, DTSC must resort to expensive
product-by-product testing to determine the hazardous materials
content, if any, of consumer electronic items sold in the state.
In many respects, this bill is in harmony with the objectives of
last year's Green Chemistry Initiative and will help to inform
future policy development of those issues. Opponents contend it
is unwise to base California law on the RoHS Directive, which
they say is still unsettled and undergoing significant review.
SUMMARY : Requires manufacturers and producers of electronic
devices to submit information about hazardous characteristics of
the device to the Department of Toxic Substances Control (DTSC).
Specifically, this bill :
1)Regarding "covered electronic devices" (a video display device
with a screen larger than four inches in size):
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a) Requires a manufacturer to prepare and, at the request
of DTSC, to submit within 28 days, technical documentation
or other information demonstrating that the device is not
prohibited from sale. Requires the manufacturer to prepare
and submit, if requested, available information about the
hazardous characteristics of the device.
b) Requires DTSC to treat as confidential any information
that is identified by the manufacturer as a trade secret.
Requires information that is not a trade secret to be made
available to the public pursuant to the California Public
Records Act.
2)Regarding electronic equipment:
a) Defines "electronic equipment" as a consumer device that
works by use of or relates to electric currents or
electromagnetic fields but is not a non-portable,
fixed-installation device; a covered electronic device or a
light.
b) Requires a producer to prepare, and at the request of
DTSC to submit within 28 days, technical documentation or
other information demonstrating that the device is allowed
in the European Union (EU) under the RoHS Directive
(European Directive on the "Restriction on the Use of
Certain Hazardous Substances in Electrical and Electronic
Equipment"). Requires the producer to prepare and submit,
if requested, available information about the hazardous
substance content and hazardous characteristics of the
device.
c) Requires a producer of electronic equipment that is not
sold in the EU to submit to DTSC available information
relating to the hazardous substance content and hazardous
characteristics of the equipment.
d) Requires DTSC to treat as confidential any information
that is identified by the manufacturer as a trade secret.
Requires information that is not a trade secret be made
available to the public, pursuant to the California Public
Records Act.
3)Prohibits DTSC from imposing any requirements or conditions
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that are in addition to, or more stringent than, the
requirements of the bill.
EXISTING LAW :
1)Pursuant to the Electronic Waste Recycling Act, defines
"covered electronic device" as a video display device
containing a screen greater than four inches, measured
diagonally, except for video display devices that are in a
motor vehicle or contained within specified large appliances
or industrial, commercial or medical equipment. (Public
Resources Code Section 42463(f).)
2)Pursuant to the Electronic Waste Law:
a) Requires DTSC to adopt regulations that prohibit an
electronic device, as defined in Section 42463 of the
Public Resources Code, from being sold if the electronic
device is prohibited from being sold in the EU under the
RoSH Directive due to the presence of certain heavy metals
in the device.
b) Prohibits DTSC, in adopting regulations, from requiring
the manufacture or sale of an electronic device that is
different than, or otherwise not prohibited by, the EU
under the RoSH Directive.
c) Prohibits DTSC from adopting any regulations that impose
any requirements or conditions that are in addition to, or
more stringent than, the requirements and conditions
expressly authorized by the Electronic Waste Law. (Health
and Safety Code Section 25214.10 et seq.)
3)Pursuant to the Green Chemistry Initiative:
a) Requires the DTSC, by January 1, 2011, to adopt
regulations to establish a process to identify and
prioritize chemicals or chemical ingredients in products
that may be considered a "chemical of concern," in
accordance with a review process, as specified.
b) Requires the DTSC to adopt regulations to establish a
process for evaluating chemicals of concern in products,
and their potential alternatives in order to determine how
best to limit exposure or to reduce the level of hazard
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posed by a chemical of concern, as specified. (Health and
Safety Code Section 25251 et seq.)
4)Defines "trade secret" as any formula, plan, pattern, process,
tool, mechanism, compound, procedure, production data, or
compilation of information which is not patented, which is
known only to certain individuals within a commercial concern
who are using it to fabricate, produce, or compound an article
of trade or a service having commercial value, and which gives
its user an opportunity to obtain a business advantage over
competitors who do not know or use it. (Health and Safety
Code Section 25173.)
COMMENTS : This bill seeks to require manufacturers and
producers of electronic devices to submit information detailing
the content and amount of hazardous materials contained in their
devices to the Department of Toxic Substances Control (DTSC).
The author states:
According to the U.S. Environmental Protection Agency,
roughly 70% of the toxic heavy metals found in
landfills come from electronic waste. Electronic
waste can contain . . . heavy metals that are highly
toxic and pose a serious threat to public health and
the environment.
[L]ast year the legislature enacted the Green
Chemistry Initiative, which requires the Department of
Toxic Substances Control (DTSC) to regulate chemicals
of concern in consumer products so they can be
replaced with more benign alternatives.
The purpose of this bill is to give DTSC a more
cost-effective tool to enforce California's existing
hazardous materials ban and inform the Green Chemistry
Initiative. [In order to do this, DTSC] needs
authority to request documentation from electronics
manufacturers detailing the amount of hazardous
materials contained in their products. Without this
authority, DTSC is only able to resort to expensive
product by product testing to determine the hazardous
materials content, if any, of a consumer item sold in
the state.
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The Bill's Reporting Requirements Are Consistent with the
Objectives of the Green Chemistry Initiative. Over the past
several years, the Legislature has considered numerous bills
that would have expanded California's RoSH law to prohibit the
sale of more products and align the state's e-waste standards
with those in Europe. This bill takes a more modest approach,
instead requiring manufacturers and producers to report data on
the hazardous characteristics of electronic devices sold in the
state. The reporting requirements in this bill follow the
structure of the reporting requirements for lights under the
California Lighting Efficiency and Toxics Reduction Act (Health
and Safety Code 25210.9 and Public Resources Code 25402.5.4 et
seq.).
In 2008, AB 1879 (Feuer) and SB 509 (Simitian) together
established the Green Chemistry Initiative, a broad approach to
the problem of identifying the risks of hazardous materials
that, among other things, requires the DTSC to adopt regulations
to: (1) establish a process to identify and prioritize chemicals
or chemical ingredients in products that may be considered a
"chemical of concern;" and (2) establish a process for
evaluating chemicals of concern in products, and their potential
alternatives in order to determine how best to limit their
exposure or reduce the level of hazard the chemicals pose.
This bill seeks reporting requirements that are crafted to
assist the state in (1) enforcing current regulations on covered
electronic devices; (2) determining more precisely the universe
of hazardous materials contained in electronic devices as a
whole in the state; and (3) ascertaining the best approach to
reducing and eliminating toxics in those products in the future.
As such, these requirements are consistent with the objectives
of the Green Chemistry Initiative to identify the presence of
hazardous materials in common products and devices so that
health and environmental risks can be specifically targeted.
Trade Secret Provisions. This bill requires DTSC to treat as
confidential any information provided pursuant to its reporting
requirements that is a trade secret and that is identified by
the manufacturer as a trade secret. The bill also requires
information that is not a trade secret be made available to the
public, pursuant to the California Public Records Act.
Under the Green Chemistry Initiative, an individual may request
the DTSC to release information that has been claimed to be a
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trade secret. In that situation, DTSC must immediately notify
the person who submitted the information and then, based on the
request, determine whether the information claimed to be a trade
secret is to be released to the public. In contrast, this bill
does not provide any options for the release of information
identified by the manufacturer as a trade secret. Although
there are several different mechanisms in existing law for
handling a request for information claimed to be a trade secret,
it is not clear why this bill differs from the Green Chemistry
Initiative in this respect.
Author's Proposed Technical Amendment : The author proposes a
technical amendment to correct an improper cross reference in
the bill as it left the Environmental, Safety, and Toxic
Materials Committee:
On page 5, line 27, replace "pursuant to this
section" with the phrase "pursuant to Section
25214.10".
In addition, the author wishes to add Asm. Blumenfield and Sen.
Wiggins as co-authors.
ARGUMENTS IN SUPPORT : In support of the bill, Californians
Against Waste writes, "AB 147 will aid the effort to control and
reduce hazardous materials in electronics [and] is also
consistent with the goals of the Green Chemistry Initiative,
which requires DTSC to regulate chemicals of concern in consumer
products so they can be replaced with more benign alternatives."
ARGUMENTS IN OPPOSITION : Opponents, including two associations
of computer and electronics manufacturers, write:
We recognize that California legislators may desire to
establish enforcement mechanisms for covered devices
in the state as well as provide the DTSC with
"documentation" of EU RoHS compliance; however, our
members are concerned with efforts to tie California
to an unsettled EU directive that is still struggling
with issues of implementation, interpretation and
enforcement several years after going into effect.
REGISTERED SUPPORT / OPPOSITION :
Support
AB 147
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Californians Against Waste (sponsor)
Environmental Working Group
Opposition
Information Technology Industry Council
TechAmerica
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334