BILL NUMBER: SB 346 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 20, 2009
AMENDED IN SENATE APRIL 23, 2009
AMENDED IN SENATE APRIL 2, 2009
INTRODUCED BY Senators Kehoe and Simitian
FEBRUARY 25, 2009
An act to add Article 13.5 (commencing with Section 25250.50) to
Chapter 6.5 of Division 20 of the Health and Safety Code, relating to
hazardous materials.
LEGISLATIVE COUNSEL'S DIGEST
SB 346, as amended, Kehoe. Hazardous materials: motor vehicle
brake friction materials.
(1) Existing law establishes the Department of Toxic Substances
Control, in the California Environmental Protection Agency, with
powers and duties regarding the management of hazardous waste.
Existing law, administered by the department, prohibits the
management of hazardous waste except in accordance with the hazardous
waste control laws, including laws governing the removal of any
mercury-containing vehicle light switch from a vehicle, and the
regulations adopted by the department. A violation of the hazardous
waste control laws is a crime.
This bill would require the department to conduct a baseline
survey, on or before January 1, 2013, of the concentration levels of
nickel, zinc, copper, and antimony in motor vehicle brake friction
materials. The bill would require the department, commencing on
January 1, 2013, and at least every 3 years thereafter, to monitor
the concentration levels of nickel, zinc, and antimony in motor
vehicle brake friction materials to ensure that those levels do not
increase by more than 50% above the baseline levels established
through the baseline survey. In that case, the bill would require the
department to ask the State Water Resources Control Board or the
Office of Environmental Health Hazard Assessment, as specified, to
determine whether there is a need for controlling the use of the
relevant constituent in brake friction material. If the department
determines that there is a demonstrated need for controlling the use
of the studied constituents in brake pads
friction materials , the bill would require the department to
prioritize the presence of those constituents in brake friction
materials for regulation, as specified. The bill also would require
the department to monitor copper.
The bill, commencing on January 1, 2014, would prohibit the sale
of any motor vehicle brake friction materials containing specified
constituents, including, but not limited to, cadmium, lead, and
mercury, in amounts that exceed certain concentrations. The bill,
commencing on January 1, 2021, would restrict the concentration of
copper in motor vehicle brake friction materials sold in California,
as specified. The bill, commencing on January 1, 2014, would require
all manufacturers of friction materials used in brakes on new motor
vehicles, or as replacement parts, that are sold in this state to
obtain a certification of compliance with these requirements from a
3rd party testing agency, and to mark proof of certification on the
friction materials. The bill would require the department to enforce
these provisions, and would require the department to remove from
sale any replacement brake pads with friction
materials determined to be not in compliance. A violation of these
provisions would be subject to a civil fine of up to $10,000 per
violation. Because a violation of these provisions would also be a
crime pursuant to the hazardous waste control laws, the bill would
impose a state-mandated local program.
The bill would require the department, commencing on January 1,
2011, to impose a fee of $1 on each new axle brake
friction materials set sold in the state, whether fitted
to a new vehicle or sold separately, and would authorize
require the department, commencing on January 1,
2015 2012 , and after
consulting interested parties every year thereafter
, to adjust the fee to a level sufficient to fully
implement these provisions by an amount necessary to
compensate for inflation. If the department determines, after January
1, 2016, that the average annual revenue from the fee is less than
an amount equivalent to $13,000,000 in 2011 dollars, or more than an
amount equivalent to $16,000,000 in 2011 dollars, the bill would
require the department to adjust the fee to an amount necessary to
fall within that range . The bill would establish the
Brake Friction Materials Water Pollution Fund in the State Treasury,
for deposit of the fee. The bill would require the fee to be
used to cover specified costs related to copper and other
constituents in brake friction materials , and for grants for
the purpose of planning, implementing, and measuring the
effectiveness of actions to improve water quality in surface waters
that receive runoff containing pollutants for vehicle brake friction
materials .
The bill would require the department to keep accurate books,
records, and accounts of all of its dealings under the bill, and
would subject those books, records, and accounts, and amounts paid
into or from the fund, to an annual audit.
(2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) Friction materials are an essential component of motor vehicle
brake systems and of critical importance to transportation safety
and the public safety in general.
(b) Debris from friction materials containing copper
are generated and released to the surrounding environment in the
course of normal brake system operation.
(c) Brake friction materials on motor vehicles are known to
contain constituents, including copper, that have been proven to be
harmful when found in significant quantities in the environment, and
are regulated as part of a system of laws and regulations intended to
prevent pollution and preserve the environment.
(d) Limits on the harmful constituents in brake friction materials
are necessary to protect and enhance California's environment.
(e)
(c) Limits on the copper content of brake friction
materials are necessary for compliance with copper water quality
standards and successful implementation of copper total maximum daily
loads in California's urban watersheds.
(f)
(d) Changes in the composition of brake friction
materials made to protect and enhance California's
environment comply with copper water quality standards
and successfully implement copper total maximum daily loads in
California's urban watersheds should meet all applicable safety
standards.
(g) Manufacturers of brake friction materials should use due
diligence to ensure that formulations that replace copper in brake
friction materials are less harmful to public health and the
environment.
SEC. 2. Article 13.5 (commencing with Section 25250.50) is added
to Chapter 6.5 of Division 20 of the Health and Safety Code, to read:
Article 13.5. Motor Vehicle Brake Friction Materials
25250.50. For purposes of this article, the following definitions
apply:
(a) "Board" means the State Water Resources Control Board.
(b) "Department" means the Department of Toxic Substances Control.
(c) "Motor Vehicle" has the same meaning as "vehicle" is defined
in Section 670 of the Vehicle Code.
(d) "Testing agency" means an agency approved by the department as
qualified and equipped for the testing of products, materials,
equipment, and installations in accordance with nationally recognized
standards.
25250.52. (a) On and after January 1, 2021, any motor vehicle
brake friction materials exceeding 5 percent copper by weight shall
not be sold in this state.
(b) On and after January 1, 2032, any motor vehicle brake friction
materials exceeding 0.5 percent copper by weight shall not be sold
in this state.
(c) Manufacturers of vehicles and vehicle brake friction materials
shall monitor and provide two reports to the department on the
reduction of the concentration level of copper in motor vehicle brake
friction materials. The first report shall be due on or before
January 1, 2016, and the second report shall be due on or before
January 1, 2018.
25250.54. On and after January 1, 2014, any motor vehicle brake
friction materials containing any of the following constituents in an
amount that exceeds the following concentrations shall not be sold
in this state:
(a) Cadmium and its compounds: 0.01 percent by weight.
(b) Chromium(VI)-salts: 0.1 percent by weight.
(c) Lead and its compounds: 0.1 percent by weight.
(d) Mercury and its compounds: 0.1 percent by weight.
(e) Asbestiform fibers: 0.1 percent by weight.
25250.56. (a) On or before January 1, 2013, the department shall
conduct a baseline survey of the concentration levels of nickel,
zinc, copper, and antimony in motor vehicle brake friction materials.
Commencing on January 1, 2013, and at least every three years
thereafter, the department shall monitor the following constituents
to ensure that concentration levels of those constituents in motor
vehicle brake friction materials do not increase by more than 50
percent above the baseline levels established through the baseline
survey:
(1) Nickel and its compounds.
(2) Zinc and its compounds.
(3) Antimony and its compounds.
(b) In the monitoring required by subdivision (a), the department
also shall monitor copper.
(c) If monitoring results for zinc show that concentration levels
have increased by more than 50 percent above the baseline levels, the
department shall ask the board to use published data from scientific
literature to estimate the relative contribution of zinc from brake
friction materials to the total quantity of zinc in urban runoff. On
the basis of this estimate, the board shall determine whether there
is a need for controlling the use of zinc in brake friction material.
(d) If monitoring results for nickel show that concentration
levels have increased by more than 50 percent above the baseline
levels, the department shall ask the board to use published data from
scientific literature to estimate the relative contribution of
nickel from brake friction materials to the total quantity of nickel
in urban runoff. On the basis of this estimate, the list adopted as
required by Section 303(d) of the federal Clean Water Act (33 U.S.C.
Sec. 1313(d)), and available water quality monitoring data, the board
shall determine whether there is a need for controlling the use of
nickel in brake friction material.
(e) If monitoring results for antimony show that concentration
levels have increased by more than 50 percent above the baseline
levels, the department shall ask the Office of Environmental Health
Hazard Assessment to review scientific literature to determine
whether there is a need for controlling the use of antimony in brake
friction material.
(f) All studies and surveys conducted by the department under this
section shall be subject to public review and comment.
(g) If the department determines that the scientific studies
demonstrate the need for controlling the use of the studied
constituents in brake pads friction materials
, the department shall prioritize the presence of the studied
constituents in brake friction materials for regulation pursuant to
Section 25252.
(h) Vehicle brake manufacturers shall follow an alternative
evaluation process, for the studied constituents in brake
pads friction materials , adopted by the
department pursuant to Section 25253.
25250.58. The following motor vehicle classes and brakes are
exempt from this article:
(a) Military combat vehicles.
(b) Vehicles employing internal closed oil immersed brakes, or a
similar brake system that is fully contained and emits no copper,
other debris, or fluids under normal operating conditions.
(c) Brakes designed for the primary purpose of holding the vehicle
stationary and not designed to be used while the vehicle is in
motion.
25250.60. (a) Commencing on January 1, 2014, all manufacturers of
friction materials used in brakes on new motor vehicles, or as
replacement parts, that are sold in this state shall obtain a
certification of compliance with the requirements of Section 25250.54
from a third-party testing agency. Proof of certification shall be
marked on the friction materials.
(b) Commencing on January 1, 2021, and until December 31, 2031,
all manufacturers of friction materials used in brakes on new motor
vehicles, or as replacement parts, that are sold in this state shall
obtain a certification of compliance with the requirements of
subdivision (a) of Section 25250.52 and Section 25250.54 from a
third-party testing agency. Proof of certification shall be marked on
the friction materials.
(c) Commencing on January 1, 2032, all manufacturers of friction
materials used in brakes on new motor vehicles, or as replacement
parts, that are sold in this state shall obtain certification of
compliance with the requirements of subdivision (b) of Section
25250.52 and Section 25250.54 from a third-party testing agency.
Proof of certification shall be marked on the friction materials.
(d) Manufacturers of friction materials used for brakes on new
motor vehicles, or as replacement parts, may obtain certification of
compliance with the requirements of subdivision (a) or (b) of Section
25250.52 or Section 25250.54 at any time.
(e) The department, in consultation with all interested parties,
and on or before January 1, 2011, shall develop all certification and
marking criteria required pursuant to this section.
(f) Commencing on January 1, 2014, vehicle manufacturers and
retailers of friction materials shall ensure that only brakes
certified for sale in this state are offered for sale in this state.
25250.62. (a) A violation of this article, including, but not
limited to, the falsification of third-party certification, by
vehicle manufacturers, brake pad friction
materials manufacturers, distributors, or retailers, shall be
subject to a civil fine of up to ten thousand dollars ($10,000) per
violation.
(b) The department shall enforce this article. The department
shall remove from sale in this state any replacement brake
pads with friction materials determined to be not in
compliance with this article.
(c) In enforcing this article, the department shall not recall
automobiles fitted with brake pads friction
materials that do not comply with this article, but the
department may impose fines and penalties authorized pursuant to
subdivision (a) on automobile manufacturers whose vehicles are fitted
with brake pads friction materials
that do not comply with this article.
25250.64. (a) (1) Commencing on January 1, 2011, the department
shall impose a fee of one dollar ($1) on each new axle brake
friction materials set sold in the state,
whether fitted to a new vehicle or sold separately.
(2) Commencing on January 1, 2015, and after consulting interested
parties, the department may adjust the fee on each new axle brake
set sold in this state, whether fitted to a new vehicle or sold
separately, to a level sufficient to fully implement this article.
(2) Commencing on January 1, 2012, and every year thereafter, the
department shall adjust the fee on each new axle friction materials
set sold in the state, whether fitted to a new vehicle or sold
separately, by the amount necessary to compensate for inflation.
(3) Commencing on January 1, 2016, and every two years thereafter,
the department shall calculate the average annual revenue amount
raised by the fee based on the previous four years' revenues.
(4) If the department determines that the average annual revenue
amount calculated pursuant to paragraph (3) is less than an amount
equivalent to thirteen million dollars ($13,000,000) in 2011 dollars,
or more than an amount equivalent to sixteen million dollars
($16,000,000) in 2011 dollars, it shall, pursuant to procedures
established by regulation, adjust the fee by the amount necessary to
provide revenue of at least the equivalent of thirteen million
dollars ($13,000,000) in 2011 dollars but no more than the equivalent
of sixteen million dollars ($16,000,000) in 2011 dollars.
(5) On January 1, 2040, the department shall, pursuant to
procedures established by regulation, reduce the fee to the amount
necessary solely to provide sufficient revenue for the implementation
of this article by the department and the board pursuant to
paragraph (1) of subdivision (b) of Section 25250.65.
(b) The fee shall only be used to cover costs for outreach,
administration, fee collection, enforcement, monitoring, mitigation,
and control measures related to copper and other constituents in
brake friction materials , and for making grants
pursuant to Section 25250.65 .
(c) Not more than 5 percent of the fees collected pursuant to this
section shall be used to offset accounting costs incurred for fee
collection.
(d) Funds for outreach may be allocated by the department to trade
associations associated with the manufacture and sale of brake
friction materials for purposes of outreach to, and education of,
their memberships.
(e) The department shall consult with the board prior to
allocating funds to, or implementing any provisions of this article
relating to, motor vehicle brake friction materials constituent
monitoring, mitigation, or control measures.
25250.65. (a) The Brake Friction Materials Water Pollution Fund
is hereby established in the State Treasury. All fees collected by
the department pursuant to this article shall be deposited in the
fund.
(b) The moneys in the fund shall be expended, upon appropriation
by the Legislature in the annual Budget Act, in the manner and in the
order of priority as follows:
(1) By the department and the board for the purpose of
implementing this article. No more than 5 percent of the funds shall
be expended by the department and the board to reimburse the costs of
administering paragraphs (2) and (3).
(2) (A) By the department, 90 percent of the balance of moneys
remaining in the fund after moneys have been expended pursuant to
paragraph (1), for grants to qualified entities, on a per capita
basis, for the purpose of planning, implementing, and measuring the
effectiveness of actions to improve water quality in surface waters
that receive runoff containing pollutants from vehicle brake friction
materials.
(B) For purposes of subparagraph (A), "qualified entities" include
cities, counties, cities and counties, organizations representing
municipalities on a watershed basis, and organizations representing
copermittees in a single National Pollutant Discharge Elimination
System permit.
(C) The amount for which a city or a county is eligible shall be
based on the total population of the incorporated area of the city or
the total unincorporated area of the county, whichever is
applicable.
(3) (A) By the department, the remaining 10 percent of the moneys
in the fund, plus any moneys reserved for grants pursuant to
subparagraph (A) of paragraph (2) that have not been allocated, for
grants to be issued on a competitive basis for the purpose of
planning, implementing, and measuring the effectiveness of actions on
a regional or statewide basis to improve water quality in surface
waters that receive runoff containing pollutants from vehicle brake
friction materials.
(B) Eligible applicants for competitive grants include, but are
not limited to, qualified entities, as defined in subparagraph (B) of
paragraph (2), and nonprofit organizations.
(c) The department, in consultation with the board, shall prepare
and adopt guidelines for the awarding and administration of grants
awarded from the fund.
(d) The revenue from the Brake Friction Materials Water Pollution
Fund allocated for the purposes stated in paragraphs (2) and (3) of
subdivision (b) shall not be expended on activities unrelated to the
improvement of water quality in surface waters that receive runoff
containing pollutants from vehicle brake friction materials,
consistent with Sinclair Paint Co. v. State Bd. of Equalization
(1997) 15 Cal.4th 866.
(e) The department shall keep accurate books, records, and
accounts of all of its dealings, and these books, records, and
accounts, and any amounts paid into or from the fund, are subject to
an annual audit by an auditing firm selected by the department. The
annual audit shall be posted on the department's Internet Web site.
The auditing firm or the department shall also conduct a selective
audit of entities making payments to, or receiving payments from, the
board to determine whether payments required by Section 25250.64 are
being paid to the department on all new axle friction materials sets
sold in California, and that grants are being paid out properly by
the department.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.