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SB-346 Hazardous materials: motor vehicle brake friction materials.(2009-2010)

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SB346:v87#DOCUMENT

Senate Bill No. 346
CHAPTER 307

An act to add Article 13.5 (commencing with Section 25250.50) to Chapter 6.5 of Division 20 of, and to repeal Section 25250.65 of, the Health and Safety Code, relating to hazardous materials.

[ Approved by Governor  September 25, 2010. Filed with Secretary of State  September 27, 2010. ]

LEGISLATIVE COUNSEL'S DIGEST


SB 346, 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.
The bill, commencing on January 1, 2014, would prohibit the sale of any motor vehicle brake friction materials containing specified constituents in amounts that exceed certain concentrations. The bill would allow, until December 31, 2023, motor vehicle manufacturers and distributors, wholesalers, or retailers of replacement brake friction materials to deplete their inventory of noncompliant materials. The bill, commencing on January 1, 2021, would prohibit motor vehicle brake friction materials containing more than 5% copper by weight from being sold in the state, and, commencing on January 1, 2025, would prohibit motor vehicle brake friction materials exceeding 0.5% copper by weight from being sold in the state.
A violation of these provisions by certain manufacturers would be subject to a civil fine of up to $10,000 per violation. The bill would create the Brake Friction Materials Water Pollution Fund in the State Treasury, and would require those fines to be deposited in the fund. The moneys in the fund would be available, upon appropriation in the annual Budget Act, to implement the bill’s requirements. Because a violation of these provisions also would be a crime pursuant to the hazardous waste control laws, the bill would impose a state-mandated local program.
The bill would establish a process by which a manufacturer may apply to the department for an extension of the prohibition against selling motor vehicle brake friction materials containing more than 0.5% copper by weight, including providing for the establishment of an advisory committee to be involved in that process. The bill would require the Secretary for Environmental Protection to issue a decision regarding the extension. In making the determination whether to approve or disapprove the extension, the bill would require the secretary to rely upon certain recommendations made by the advisory committee. The bill would require the department to assess a fee for each extension application, and the department would be authorized to expend those fees, upon appropriation by the Legislature, for reimbursement for the costs incurred in implementing this process.
The bill would exempt brake friction materials used for certain motor vehicle classes from its requirements and would exempt from certain prohibitions the sale of vehicles or brake friction materials manufactured prior to certain dates.
The bill would require a vehicle brake friction material manufacturer to screen potential alternatives to copper using the existing Toxics Information Clearinghouse and to use an open source alternatives assessment or this screening analysis to select alternatives to copper that pose less potential hazard to public health and the environment. The vehicle brake friction material manufacturer or importer of record would be required to provide the department with a demonstration, upon request, of the manner in which the selection of alternatives is informed.
The bill would require all new motor vehicles offered for sale, on and after the specified compliance dates, to be equipped with brake friction materials meeting the requirements of this bill and would require all vehicle brake friction material manufacturers, on or after those compliance dates, to certify compliance with those requirements and mark proof of certification on all brake friction materials. The bill would require a vehicle brake friction materials manufacturer to file a copy of the certification with a testing certification agency.
The bill would require the department and the State Water Resources Control Board, by January 1, 2023, to submit a report to the Governor and the Legislature, on the implementation of the bill’s requirements toward meeting the copper total maximum daily load (TMDL) allocations in the state. The bill would repeal this report requirement on January 1, 2027.
(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   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 in all of its forms, including, but not limited to, elemental copper and all of its alloys and compounds, are generated and released to the surrounding environment in the course of normal brake system operation.
(c) Tens of thousands of pounds of copper and other substances released from brake friction materials enter California’s streams, rivers, and marine environment every year.
(d) Copper is toxic to many aquatic organisms, including salmon.
(e) Limits on the copper content of brake friction materials are essential for California cities, counties, and industries to comply with federal Clean Water Act (33 U.S.C. Sec. 1251 et seq.) mandates, including copper water quality standards and copper total maximum daily loads in California’s urban watersheds.
(f) Without limits on the copper content of brake friction materials, California taxpayers face billions of dollars in federal Clean Water Act compliance costs.
(g) Changes in the composition of brake friction materials made to 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.

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 shall apply:
(a) (1) “Advisory committee” means a committee of nine members appointed by the secretary on or before January 1, 2019, to consider and recommend approval or denial of an application for an extension of the requirements imposed pursuant to Section 25250.53.
(2) A person considered for appointment to the advisory committee shall disclose any financial interests the person may have in any aspect of the vehicle or vehicle parts manufacturing industry prior to appointment by the secretary or, in the case of subparagraph (C) of paragraph (3), prior to nomination.
(3) The advisory committee shall be composed of the following members:
(A) (i) One-third of the members shall be representatives of the manufacturers of brake friction materials and motor vehicles, to be appointed by the secretary in consultation with the chair of the board and the director of the department.
(ii) If the application for an extension of the requirements imposed pursuant to Section 25250.53 pertains solely to brake friction materials to be used on heavy-duty motor vehicles, the members appointed pursuant to this subparagraph shall represent the manufacturers of heavy-duty brake friction materials and heavy-duty motor vehicles.
(B) One-third of the members shall be representatives of municipal storm water quality agencies and nongovernmental environmental organizations, to be appointed by the secretary in consultation with the chair of the board and the director of the department.
(C) One-third of the members shall be experts in vehicle and braking safety, economics, and other relevant technical areas, to be appointed by the secretary, upon nomination by a majority of the members specified in subparagraph (A) concurrently with a majority of the members specified in subparagraph (B).
(4) For purposes of this subdivision, a “financial interest” shall have the same meaning as a financial interest described in Section 87103 of the Government Code, except only with regard to business entities, real property, or sources of income that are related to the vehicle or vehicle parts manufacturing industry.
(b) “Board” means the State Water Resources Control Board.
(c) “Department” means the Department of Toxic Substances Control.
(d) “Heavy-duty motor vehicle” means a motor vehicle of over 26,000 pounds gross weight.
(e) (1) “Manufacturer,” except where otherwise specified, means both of the following:
(A) A manufacturer or assembler of motor vehicles or motor vehicle equipment.
(B) An importer of motor vehicles or motor vehicle equipment for resale.
(2) A manufacturer includes a vehicle brake friction materials manufacturer.
(f) “Motor vehicle” and “vehicle” has the same meaning as the definition of “vehicle” in Section 670 of the Vehicle Code.
(g) “Testing certification agency” means a third-party testing certification agency that is utilized by a vehicle brake friction materials manufacturer and that has an accredited laboratory program that provides testing in accordance with the certification agency requirements that are approved by the department.

25250.51.
 (a) 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:
(1) Cadmium and its compounds: 0.01 percent by weight.
(2) Chromium (VI)-salts: 0.1 percent by weight.
(3) Lead and its compounds: 0.1 percent by weight.
(4) Mercury and its compounds: 0.1 percent by weight.
(5) Asbestiform fibers: 0.1 percent by weight.
(b) Motor vehicle manufacturers and distributors, wholesalers, or retailers of replacement brake friction materials may continue to offer for sale brake friction materials not certified as compliant with subdivision (a) solely for the purpose of depletion of inventories until December 31, 2023.

25250.52.
 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, except as otherwise provided in this article.

25250.53.
 On and after January 1, 2025, any motor vehicle brake friction materials exceeding 0.5 percent copper by weight shall not be sold in this state, except as otherwise provided in this article.

25250.54.
 (a) (1) On and after January 1, 2019, a manufacturer may apply to the department for a one-year, two-year, or three-year extension of the January 1, 2025, deadline established in Section 25250.53, except as provided in subdivision (h).
(2) An extension application submitted pursuant to this section shall be submitted based on vehicle model, class, platform, or other vehicle-based category, and not on the basis of the brake friction material formulation.
(3) The application shall be accompanied by documentation that will allow the advisory committee to make a recommendation pursuant to subdivisions (e) and (f).
(4) The documentation shall include a scientifically sound quantitative estimate of the quantity of copper that would be emitted if the extension is granted, including a description of the assumptions used in arriving at that estimate.
(b) No more than 30 days after receipt of an application for an extension pursuant to subdivision (a), the department shall do all of the following:
(1) Post a notice of receipt on the department’s Internet Web site that includes the vehicle model, class, platform, or other vehicle-based category, whether the brake friction material is intended for use in original equipment or replacement parts, and the quantity of copper that would be emitted if the extension is granted.
(2) Consult with the board and the State Air Resources Board.
(3) Solicit comment from the public and from scientific and vehicle engineering experts on the availability of generally affordable compliant brake friction materials, their safety and performance characteristics, and the feasibility of brake pad copper emissions reduction through means other than friction material reformulation.
(c) (1) In consultation with the board, the department shall determine if sufficient documentation has been presented upon which to base a decision. If the department determines that further documentation is needed, it shall deliver a detailed request for further documentation to the applicant.
(2) Not later than 30 days after receipt of the application for an extension pursuant to subdivision (a), the department shall forward the application to the advisory committee for the purpose of the advisory committee making a recommendation pursuant to subdivisions (e) and (f).
(d) (1) In considering any application for an extension, the advisory committee shall consider all of the documentation supplied by the applicant pursuant to subdivision (a).
(2) The advisory committee may request, no later than 75 days after receipt of the application from the department pursuant to subdivision (c), further documentation from the applicant.
(3) The advisory committee shall hold at least one public hearing at which it shall accept and consider comments from the public on each category of application. The advisory committee meetings shall be open to the public and are subject to the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code).
(e) (1) The advisory committee shall recommend to the secretary that the extension be approved if the advisory committee determines that there are no brake friction materials that are safe and available for individual or multiple vehicle models, classes, platforms, or other vehicle-based categories identified in the application.
(2) The advisory committee shall recommend to the secretary that the extension not be approved if the advisory committee determines that alternative brake friction materials are safe and available for individual or multiple vehicle models, classes, platforms, or other vehicle-based categories identified in the application.
(3) For purposes of this section, “safe and available” shall mean all of the following:
(A) The brake system for which the alternative brake friction material is manufactured meets applicable federal safety standards, or if no federal standard exists, a widely accepted safety standard.
(B) Acceptable alternative brake friction materials are commercially available for the individual or multiple vehicles, classes, platforms, or vehicle-based categories identified in the application.
(C) Adequate industry testing and production capacity exists to supply the alternative brake friction materials for use on the individual or multiple vehicles, classes, platforms, or vehicle-based categories identified in the application.
(D) The alternative brake friction material is technically feasible for use on the individual or multiple vehicles, classes, platforms, or vehicle-based categories identified in the application.
(E) The alternative brake friction materials meet customer performance expectations, including noise, wear, vibration, and durability for the individual or multiple vehicle classes, platforms, or vehicle-based categories identified in the application.
(F) The alternative acceptable brake friction material is economically feasible with respect to the industry and the cost to the consumer for the individual or multiple vehicles, classes, platforms, or vehicle-based categories identified in the application.
(4) The advisory committee shall provide relevant data to the department and the board concerning the potential impacts of the extension on California watersheds for purposes of the report required pursuant to Section 25250.65.
(f) (1) No sooner than 60 days and no later than 120 days after the department solicits comments pursuant to paragraph (3) of subdivision (b), the advisory committee shall make a recommendation to the secretary in accordance with subdivisions (d) and (e) as to whether the application for extension should be approved or not approved.
(2) The recommendation of the advisory committee that the secretary approve or not approve the application for extension shall be accompanied by documentation of the basis for the recommendation.
(g) (1) The secretary shall make available the recommendation of the advisory committee and the accompanying documentation for public review and comment for 60 days following receipt of the recommendation from the advisory committee.
(2) The secretary shall consider public comments on the advisory committee’s recommendation and issue a final decision on the application for extension no later than 45 days after the conclusion of the 60-day comment period.
(3) In making the determination whether to approve or disapprove the extension, the secretary shall rely upon the recommendations made by the advisory committee pursuant to subdivision (f).
(4) If the secretary does not follow the recommendation of the advisory committee made pursuant to subdivision (f), he or she shall explain in writing the basis of his or her decision.
(h) (1) On or before December 31, 2029, a manufacturer with an approved extension of the January 1, 2025, deadline established in Section 25250.53, may reapply to the department for additional two-year extensions from the deadline in accordance with a schedule that may be established by the department.
(2) Except as provided in subdivision (i), a manufacturer may not apply on or after January 1, 2030, for an extension of the January 1, 2025, deadline established in Section 25250.53.
(3) The department shall comply with all of the requirements of this section when granting an additional extension of the January 1, 2025, deadline pursuant to this subdivision.
(i) (1) On and after January 1, 2030, a manufacturer of vehicle brake friction materials to be used on heavy-duty vehicles with an approved extension of the January 1, 2025, deadline established in Section 25250.53, may reapply to the department for additional two-year extensions from the deadline established in Section 25250.53, that results in an extension of that deadline to a date on and after January 1, 2032.
(2) The department shall comply with all of the requirements of this section when granting an additional extension of the January 1, 2025, deadline pursuant to this subdivision.
(j) The department shall assess a fee for each application for an extension sufficient to cover actual costs incurred in implementing this section. The department may expend the fees collected pursuant to this subdivision, upon appropriation by the Legislature, for reimbursement for the costs incurred in implementing this section.
(k) When granting an extension pursuant to this section, the department, board, advisory committee, and secretary shall comply with the requirements of Section 25358.2, to ensure the protection of trade secrets, as defined in Section 25358.2.

25250.55.
 Brake friction materials for the following motor vehicle classes are exempt from this article:
(a) Military tactical support 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.
(d) Motorcycles.
(e) Motor vehicles subject to voluntary or mandatory recalls of brake friction materials or systems due to safety concerns. This exemption shall expire upon the lifting of the recall and provision of new brake friction materials that comply with this article.
(f) Motor vehicles manufactured by small volume manufacturers, as defined in Section 1900 of Title 13 of the California Code of Regulations.
(g) Vehicles manufactured prior to January 1, 2021, and brake friction materials for use on vehicles manufactured prior to January 1, 2021, from the requirements of Section 25250.52.
(h) Vehicles manufactured prior to January 1, 2025, and brake friction materials for use on vehicles manufactured prior to January 1, 2025, from the requirements of Section 25250.53.
(i) Vehicles for which an extension from the requirements of Section 25250.53 was approved pursuant to Section 25250.54.

25250.56.
 (a) In developing new formulations to comply with Sections 25250.52 and 25250.53, a manufacturer of vehicle brake friction materials shall screen potential alternatives to the use of copper by using the Toxic Information Clearinghouse developed by the department and the Office of Environmental Health Hazard Assessment pursuant to Section 25256, for the purpose of identifying potential impacts of these potential alternatives on public health and the environment.
(b) In conducting the screening analysis required by subdivision (a), a manufacturer of vehicle brake friction materials shall, using information available to the manufacturer at the time of the analysis, including information from the department and other sources, consider the environmental fate of brake friction materials and their emissions through all phases of the brake friction material life cycle.
(c) A manufacturer of vehicle brake friction materials shall use the screening analysis required by subdivision (a) or an open source alternatives assessment to select alternatives to copper that pose less potential hazard to public health and the environment.
(d) Upon request by the department, a manufacturer of vehicle brake friction materials or importer of record shall provide a summary demonstrating how the screening analysis conducted pursuant to this section or an open source alternatives assessment is used to inform the selection of alternatives to copper that pose less potential hazard to public health and the environment, as required by subdivision (c).

25250.60.
 (a) The department shall consult with the brake friction materials manufacturing industry in the development of all criteria for testing and marking brake friction materials and adopting certification procedures for brake friction materials, as required pursuant to this article. The mark of proof of certification on brake friction materials shall identify the brake friction material manufacturer, be easily applied, be easily legible, and not impose unreasonable additional costs on manufacturers due to the use of additional equipment or other factors.
(b) On and after January 1, 2014, any new motor vehicle offered for sale in the state shall be equipped with brake friction materials that comply with of Section 25250.51.
(c) (1) On and after January 1, 2014, a manufacturer of vehicle brake friction materials used in brakes on new motor vehicles or as replacement parts that are sold in the state shall certify compliance declaring that its formulation for brake friction materials complies with Section 25250.51.
(2) A vehicle brake friction material manufacturer shall mark proof of certification pursuant to this subdivision on all brake friction materials.
(d) On and after January 1, 2021, any new motor vehicle offered for sale in the state shall be equipped with brake friction materials that comply with Section 25250.52.
(e) (1) On and after January 1, 2021, a manufacturer of vehicle brake friction materials used in brakes on new motor vehicles or as replacement parts for those vehicles that are sold in the state shall certify compliance declaring that its formulation for brake friction materials complies with Section 25250.52.
(2) A vehicle brake friction material manufacturer shall mark proof of certification with this subdivision on all brake friction materials.
(f) On and after January 1, 2025, any new motor vehicle offered for sale in the state shall be equipped with brake friction materials that comply with Section 25250.53.
(g) (1) On and after January 1, 2025, a manufacturer of vehicle brake friction materials used in brakes on new motor vehicles or as replacement parts for those vehicles that are sold in the state shall certify compliance declaring that its formulation for brake friction materials complies with Section 25250.53.
(2) A vehicle brake friction material manufacturer shall mark proof of certification with this subdivision on all brake friction materials.
(h) Prior to offering brake friction materials for sale in this state, a manufacturer of vehicle brake friction materials shall file a copy of the certification for each of its brake friction materials formulations with a testing certification agency. Each certification shall be made available within a reasonable period of time on the testing certification agency’s Internet Web site at no cost to the department and to the public, and shall serve as official registration of certification for compliance with this section.
(i) A manufacturer of vehicle brake friction materials may obtain from a testing certification agency a certification of compliance with the requirements of Section 25250.51, 25250.52, or 25250.53 at any time prior to the dates specified in those sections.
(j) The certification and mark of proof required pursuant to this section shall show a consistent date format, designation, and labeling to facilitate acceptance in all 50 states and United States territories for purposes of demonstrating compliance with all applicable requirements.

25250.62.
 (a) A violation of this article by a vehicle manufacturer, a vehicle brake friction materials manufacturer, a distributor, or a retailer, 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 friction materials determined to be not in compliance with this article.
(c) If the department determines that a distributor, wholesaler, or retailer of replacement brake friction materials has been offering noncompliant brake friction materials for sale in the state, it shall allow the distributor, wholesaler, or retailer of replacement brake friction materials to establish that it obtained the noncompliant brake friction materials in good faith and after exercising due diligence in verifying that the material complied with this article prior to assessing fines and penalties pursuant to subdivision (a).
(d) In determining the amount of the civil fine to be assessed for a violation of this article, the department shall consider the particular circumstances of the violation, including, but not limited to, the amount of noncompliant brake friction material offered for sale in California and whether previous violations have occurred.
(e) The department may waive the imposition of a fine and issue a letter of warning if it determines, based on criteria, including, but not limited to, the amount of brake friction material offered for sale, the presence or absence of prior violations, and whether due diligence was exercised in determining that the brake friction materials offered for sale complied with this article, and that the violation of this article does not merit the imposition of a fine.
(f) A distributor, wholesaler, or retailer found by the department to have offered for sale noncompliant replacement brake materials shall cooperate with the department in the removal of the noncompliant brake friction materials from sale, inform the department of measures being implemented to avoid repeat violations, and provide the department with information that will assist in the identification and location of the source or sources of the noncompliant brake friction materials.
(g) In enforcing this article, the department shall not recall automobiles fitted with brake friction materials that do not comply with this article.
(h) A motor vehicle manufacturer that violates this article shall notify the registered owner of the vehicle within six months of knowledge of the violation and shall replace, at no cost to the owner, the noncompliant brake friction material with brake friction material that complies with this article. A motor vehicle manufacturer that fails to provide the required notification to registered owners of the affected vehicles within six months of knowledge of the violation is subject to fines and penalties authorized pursuant to subdivision (a).

25250.64.
 (a) The Brake Friction Materials Water Pollution Fund is hereby established in the State Treasury. Notwithstanding Section 25192, all fines and penalties 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, solely for the full implementation of this article by the department.

25250.65.
 (a) On or before January 1, 2023, the department and the board shall submit to the Governor and the Legislature, in compliance with Section 9795 of the Government Code, a report on the implementation of vehicle brake copper reduction efforts and the progress of this article toward meeting the copper total maximum daily load (TMDL) allocations in the state. The report shall make recommendations on actions necessary to address any deficiencies in meeting these copper TMDL allocations, including, but not limited to:
(1) Imposing additional restrictions on the extensions granted to manufacturers pursuant to Section 25250.54.
(2) Imposing additional restrictions on the exemptions from this article provided by Section 25250.55.
(3) Allowances for permitting a manufacturer to sell existing inventory, if the additional restrictions described in paragraphs (1) and (2) are implemented.
(b) Pursuant to Section 10231.5 of the Government Code, this section is repealed on January 1, 2027.

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.