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AB-1001 Hazardous materials: packaging: exemptions.(2013-2014)

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Amended  IN  Senate  August 22, 2013
Amended  IN  Senate  August 21, 2013
Amended  IN  Senate  July 09, 2013
Amended  IN  Senate  June 25, 2013
Amended  IN  Assembly  May 28, 2013
Amended  IN  Assembly  May 08, 2013
Amended  IN  Assembly  April 03, 2013

CALIFORNIA LEGISLATURE— 2013–2014 REGULAR SESSION

Assembly Bill
No. 1001

Introduced by Assembly Member Gordon
(Coauthor: Assembly Member Stone)

February 22, 2013

An act to amend Sections 25214.14 and 25214.15 of the Health and Safety Code, relating to hazardous materials, and declaring the urgency thereof, to take effect immediately.


LEGISLATIVE COUNSEL'S DIGEST


AB 1001, as amended, Gordon. Hazardous materials: packaging: exemptions.
Existing law, the Toxics in Packaging Prevention Act, prohibits a manufacturer, importer, agent, or supplier, as defined, from offering for sale or for promotional purposes in this state a package or packaging component that includes specified regulated metals and prohibits a person from offering for sale or for promotional purposes in the state a product in a package that includes those intentionally introduced regulated metals. A violation of the hazardous waste control laws, including the act, is a crime.
The act exempts from its requirements a package or a packaging component that meets any of specified conditions only if the manufacturer or supplier prepares, retains, and biennially updates documentation containing specified information for that package or packaging component and exempts, until January 1, 2010, a package or packaging component that contains no intentionally introduced regulated metals, but exceeds the applicable maximum concentration level set forth in the act only because of the addition of a recycled material. The act requires, upon a written request from the Department of Toxic Substances Control, the manufacturer or supplier, on or before 30 calendar days after the date of receipt of the request, to submit the required documentation to the department or to submit a letter to the department indicating the date by which the documentation shall be submitted, as specified.
This bill would extend this exemption to January 1, 2017, would require, no later than July 1, 2014, a manufacturer or supplier of packaging exercising the exemption under this provision to coordinate with the department to develop a specified study or studies measuring the content and leaching of regulated metals from the packaging seeking the exemption, and would require the manufacturer or supplier, no later than July 1, 2015, to provide to the department a specified report documenting the results of the study or studies. The bill would require the manufacturer or supplier to reimburse the department for its actual costs associated with coordinating the development of the study or studies and in reviewing and evaluating the report.
The bill would expand the documentation required to be updated by the manufacturer or supplier claiming the exemption and would require the manufacturer or supplier to submit the documentation for all exemptions under the act at least twice a year, on or before July 1 and January 1 of each year in which the exemption is being utilized. By creating new crimes under the act, the bill would impose a state-mandated local program.
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.
This bill would declare that it is to take effect immediately as an urgency statute.
Vote: MAJORITY2/3   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 25214.14 of the Health and Safety Code is amended to read:

25214.14.
 A package or a packaging component is exempt from the requirements of Section 25214.13, and shall be deemed in compliance with this article, if the manufacturer or supplier complies with the applicable documentation requirements specified in Section 25214.15 and the package or packaging component meets any of the following conditions:
(a) The package or packaging component is marked with a code indicating a date of manufacture prior to January 1, 2006.
(b) A regulated metal has been added to the package or packaging component in the manufacturing, forming, printing, or distribution process, to comply with the health or safety requirements of a federal or state law.
(c) (1) The package or packaging component contains no intentionally introduced regulated metals, but exceeds the applicable maximum concentration level set forth in subdivision (c) of Section 25214.13 only because of the addition of a recycled material.
(2) This subdivision, and all exemptions provided pursuant to it, expire on January 1, 2017.
(3) (A) No later than July 1, 2014, a manufacturer or supplier of packaging seeking an exemption under this subdivision shall coordinate with the department to develop a study or studies measuring the content and leaching of regulated metals from the packaging seeking the exemption. The study or studies and the report required pursuant to subparagraph (B) may be a result of individual or collaborative efforts by multiple manufacturers or suppliers. At a minimum, the study or studies shall include the collection of samples from a statistically representative number of packaging units that contain recycled material. The collection of samples shall provide information regarding, but not limited to, the different levels of regulated metals in the packaging, the varying length of time the contents are contained in or exposed to the packaging, the different types of contents in the packaging that represent the range of chemical composition and pH that are typically contained in the packaging, and the various temperatures representing the range of temperatures in which products are stored in the packaging. The study or studies shall use nationally or internationally accepted testing methods for this type of packaging to quantify the concentration of regulated metals in the packaging and the concentration of regulated metals that not only could leach from the packaging into the contents of the package but also that could leach into a landfill environment.
(B) No later than July 1, 2015, a manufacturer or supplier of packaging conducting the study or studies pursuant to subparagraph (A) shall provide to the department a report documenting the results of the study or studies.
(4) A manufacturer or supplier coordinating with the department to develop a study or studies pursuant to subparagraph (A) of paragraph (3), and submitting a report to the department pursuant to subparagraph (B) of paragraph (3) shall reimburse the department for its actual costs associated with coordinating the development of the study or studies and in reviewing and evaluating the report.
(d) (1) A regulated metal has been added to the package or packaging component in the manufacturing, forming, printing, or distribution process for a use for which there is no feasible alternative.
(2) For purposes of this subdivision, “a use for which there is no feasible alternative” means a use, other than for purposes of marketing, for which a regulated metal is essential to the protection, safe handling, or function, of the package’s contents, and technical constraints preclude the substitution of other materials.
(e) (1) The package or packaging component is reused and contains no intentionally introduced regulated metals, but exceeds the applicable maximum concentration level set forth in subdivision (c) of Section 25214.13, and all of the following apply:
(A) The product being conveyed by the package, the package, or packaging component is otherwise regulated under a federal or state health or safety requirement.
(B) The transportation of the packaged product is regulated under federal or state transportation requirements.
(C) The disposal of the package is otherwise performed according to the requirements of this chapter or Chapter 8 (commencing with Section 114960) of Part 9 of Division 104.
(2) This subdivision, and all exemptions provided pursuant to it, expire on January 1, 2010.
(f) (1) The package or packaging component has a controlled distribution and reuse and contains no intentionally introduced regulated metals, but exceeds the applicable maximum concentration level set forth in subdivision (c) of Section 25214.13.
(2) This subdivision, and all exemptions provided pursuant to it, expire on January 1, 2010.
(g) (1) The packaging or packaging component is a glass or ceramic package or packaging component that has a vitrified label, and that, when tested in accordance with the Waste Extraction Test, described in Appendix II of Chapter 11 (commencing with Section 66261.1) of Division 4.5 of Title 22 of the California Code of Regulations does not exceed 1.0 ppm for cadmium, 5.0 ppm for hexavalent chromium, or 5.0 ppm for lead. A glass or ceramic package or packaging component containing mercury is not exempted pursuant to this subdivision.
(2) A glass bottle package with paint or applied ceramic decoration on the bottle does not qualify for an exemption pursuant to this section, if the paint or applied ceramic decoration contains lead or lead compounds in excess of 0.06 percent by weight.
(3) This subdivision, and all exemptions provided pursuant to it, expire on January 1, 2010.

SEC. 2.

 Section 25214.15 of the Health and Safety Code is amended to read:

25214.15.
 (a) A package or packaging component qualifies for an exemption pursuant to Section 25214.14 only if the manufacturer or supplier prepares, retains, and biennially updates documentation containing all of the following information for that package or packaging component:
(1) A statement that the documentation applies to an exemption from the requirements of Section 25214.13.
(2) The name, position, and contact information for the person who is the manufacturer’s or supplier’s contact person on all matters concerning the exemption.
(3) An identification of the exemption and a reference to the applicable subdivision in Section 25214.14 setting forth the conditions for the exemption.
(4) A description of the type of package or packaging component to which the exemption applies.
(5) Identification of the type and concentration of the regulated metal or metals present in the package or packaging component, and a description of the testing methods used to determine the concentration.
(6) An explanation of the reason for the exemption.
(7) Supporting documentation that fully and clearly demonstrates that the package or packaging component is eligible for the exemption.
(8) The documentation listed in subdivisions (b), (c), (d), (e), (f), (g), or (h), whichever is applicable for the exemption.
(b) In addition to the requirements specified in subdivision (a), if an exemption is being claimed under subdivision (a) of Section 25214.14, the manufacturer or supplier shall prepare, retain, and biennially update documentation containing all of the following information for the package or packaging component to which the exemption applies:
(1) Date of manufacture.
(2) Estimated time needed to exhaust current inventory.
(3) Alternative package or packaging component that meets the requirements of Section 25214.13.
(c) In addition to the requirements specified in subdivision (a), if an exemption is being claimed under subdivision (b) of Section 25214.14, the manufacturer or supplier shall prepare, retain, and biennially update documentation that contains all of the following information for each regulated metal intentionally introduced in the package or packaging component to which the exemption applies:
(1) Identification of the specific federal or state law requiring the addition of the regulated metal to the package or packaging component.
(2) Detailed information that fully and clearly demonstrates that the addition of the regulated metal to the package or packaging component is necessary to comply with the law identified pursuant to paragraph (1).
(3) A description of past, current, and planned future efforts to seek or develop alternatives to eliminate the use of the regulated metal in the package or packaging component.
(4) A description of all alternative measures that have been considered, and, for each alternative, an explanation as to why the alternative is not satisfactory for purposes of achieving compliance with the law identified pursuant to paragraph (1).
(d) In addition to the requirements specified in subdivision (a), if an exemption is being claimed under subdivision (c) of Section 25214.14, the manufacturer or supplier shall prepare, retain, and biennially update documentation containing all of the following information for the package or packaging component to which the exemption applies:
(1) The type and percentage of recycled material or materials added to the package or packaging component.
(2) The type and concentration of each regulated metal contained in each recycled material added to the package or packaging component.
(3) Efforts to minimize or eliminate the regulated metals in the package or packaging component.
(4) A description of past, current, and planned future efforts to seek or develop alternatives to minimize or eliminate the use of the regulated metal in the package or packaging component.
(5) A thorough description of the processes utilized in the manufacture of the packaging, including, but not limited to, the source and nature of feed stocks, physical and chemical processing, and the quality assurance and quality control measures utilized to identify and minimize the levels of regulated metals in the packaging product that are due to the addition of a recycled material.
(e) In addition to the requirements specified in subdivision (a), if an exemption is being claimed under subdivision (d) of Section 25214.14, the manufacturer or supplier shall prepare, retain, and biennially update documentation containing all of the following information for each regulated metal intentionally introduced into the package or packaging component to which the exemption applies:
(1) Detailed information and evidence that fully and clearly demonstrates how the regulated metal contributes to, and is essential to, the protection, safe handling, or functioning of the package’s contents.
(2) A description of past, current, and planned future efforts to seek or develop alternatives to minimize or eliminate the use of the regulated metal in the package or packaging component.
(3) A description of all alternative measures that have been considered, and, for each alternative, an explanation as to the technical constraints that preclude substitution of the alternative for the use of the regulated metal.
(4) Documentation that the regulated metal is not being used for the purposes of marketing.
(f) In addition to the requirements specified in subdivision (a), if an exemption is being claimed under subdivision (e) of Section 25214.14, the manufacturer or supplier shall prepare, retain, and biennially update documentation containing all of the following information for the package or packaging component to which the exemption applies:
(1) The percentage of reused materials.
(2) Identification of the federal or state health or safety law regulating the product being conveyed by the package, the package, or the packaging component.
(3) Identification of the federal or state transportation law regulating the transportation of the packaged product.
(4) Information demonstrating that the package is disposed of in accordance with the requirements of this chapter or Chapter 8 (commencing with Section 114960) of Part 9 of Division 104.
(5) A description of past, current, and planned future efforts to seek or develop alternatives to minimize or eliminate the use of the regulated metal in the package or packaging component.
(g) In addition to the requirements specified in subdivision (a), if an exemption is being claimed under subdivision (f) of Section 25214.14, the manufacturer or supplier shall prepare, retain, and biennially update documentation containing all of the following information for the package or packaging component to which the exemption applies:
(1) The percentage of reused materials.
(2) Information and evidence that demonstrates that the environmental benefit of the controlled distribution and reuse of the package or packaging component is significantly greater, as compared to the same package or packaging component manufactured in compliance with the applicable maximum concentration level set forth in subdivision (c) of Section 25214.13.
(3) A means of identifying, in a permanent and visible manner, any reusable package or packaging component containing a regulated metal for which the exemption is sought.
(4) A method of regulatory and financial accountability, so that a specified percentage of the reusable packages or packaging components that are manufactured and distributed to other persons are not discarded by those persons after use, but are returned to the manufacturer or identified designees.
(5) A system of inventory and record maintenance to account for reusable packages or packaging components placed in, and removed from, service.
(6) A means of transforming returned packages or packaging components that are no longer reusable into recycled materials for manufacturing, or a means of collecting and managing returned packages or packaging components as waste in accordance with applicable federal and state law.
(7) A description of past, current, and planned future efforts to seek or develop alternatives to minimize or eliminate the use of the regulated metal in the package or packaging component.
(h) In addition to the requirements specified in subdivision (a), if an exemption is being claimed under subdivision (g) of Section 25214.14, the manufacturer or supplier shall prepare, retain, and biennially update the following documentation for the package or packaging component to which the exemption applies:
(1) Applicable test data.
(2) A description of past, current, and planned future efforts to seek or develop alternatives to minimize or eliminate the use of the regulated metal in the package or packaging component.
(i) A manufacturer or supplier shall submit the documentation required pursuant to subdivisions (a) to (h), inclusive, to the department, at least twice a year, on or before July 1 and January 1 of each year in which the exemption is being utilized. If the department finds that the documentation supplied pursuant to this section is incomplete or incorrect, the department shall notify the manufacturer or supplier that the documentation is incomplete or incorrect, and the manufacturer or supplier shall submit complete and correct documentation to the department within 60 calendar days after the date of receipt of the notification.
(j) If a manufacturer or supplier fails to comply with subdivision (i), the manufacturer or supplier shall, with respect to the package or packaging component to which the documentation request applies, comply with one of the following:
(1) Immediately cease to offer the package or packaging component for sale or for promotional purposes in this state.
(2) Replace the package or packaging component with a package or packaging component that conforms with the regulated metals limitations specified in Section 25214.13, in accordance with a schedule approved in writing by the department.
(3) Submit complete and correct documentation for the package or packaging component, in accordance with a schedule approved in writing 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.

SEC. 4.

 This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order to extend this exemption and study various types of materials for the purpose of beverage container recycling at the earliest possible time, it is necessary for this act to take effect immediately.