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AB-2104 Lead-Acid Battery Recycling Act of 2016.(2019-2020)

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Date Published: 09/30/2020 09:00 PM
AB2104:v95#DOCUMENT

Assembly Bill No. 2104
CHAPTER 276

An act to amend Sections 25215.1, 25215.5, 25215.51, and 25215.59 of the Health and Safety Code, relating to hazardous waste.

[ Approved by Governor  September 29, 2020. Filed with Secretary of State  September 29, 2020. ]

LEGISLATIVE COUNSEL'S DIGEST


AB 2104, Cristina Garcia. Lead-Acid Battery Recycling Act of 2016.
The Lead-Acid Battery Recycling Act of 2016 prohibits a person from disposing, or attempting to dispose, of a lead-acid battery at a solid waste facility or on or in any land, surface waters, watercourses, or marine waters, and authorizes a person to dispose of a lead-acid battery only at certain locations. The act imposes a manufacturer battery fee on a manufacturer of lead-acid batteries for each lead-acid battery it sells at retail to a person in California, or that it sells to a dealer, wholesaler, distributor, or other person for retail sale in California.
The act creates in the State Treasury the Lead-Acid Battery Cleanup Fund and requires that the fees collected pursuant to the act, except for specified administrative expenses, be deposited into the fund. The act provides that moneys in the fund are available upon appropriation by the Legislature to the Department of Toxic Substances Control for specified activities relating to lead-acid battery recycling facilities, including for specified activities relating to the former Exide Technologies lead-acid battery recycling facility in the City of Vernon, as provided, for repayment of a loan made for one of those activities, and for repayment of another loan made before September 26, 2016. Existing law authorizes moneys to be expended for the repayment of those loans only after certain other activities for which expenditure from the fund is authorized have been fully funded in a given fiscal year. The act defines “lead-acid battery recycling facility” for purposes of the act.
This bill would exclude from the definition of “lead-acid battery recycling facility” a facility that incidentally processes lead-acid batteries. The bill would authorize moneys in the fund to be available upon appropriation by the Legislature for the repayment of loans made for additional specified activities for which direct expenditure from the fund is authorized under existing law, as provided. The bill would require that moneys be expended for the repayment of those loans only after additional specified activities related to the former Exide Technologies lead-acid battery recycling facility in the City of Vernon, for which expenditure from the fund is authorized under existing law, have been fully funded in a given fiscal year. The bill would revise to apply retroactively to September 26, 2016, the authorization to expend moneys in the fund for those activities related to the former Exide Technologies lead-acid battery recycling facility in the City of Vernon.
Existing law requires the department to establish a Lead-Acid Battery Recycling Facility Investigation and Cleanup Program to identify areas of the state that are eligible for expenditure of moneys from the fund. Existing law requires the program to provide public notice of the initiation of the investigation or site evaluation of any area reasonably suspected to have been contaminated by the operation of a lead-acid battery recycling facility. Existing law requires the department to accept and review comments or information submitted from the public on the public notice until the department completes its investigation.
This bill would revise the public notice and public comment requirements to, among other things, require the department to accept comments and information from the public that are submitted within 90 days after the issuance of the public notice and to review, and respond in writing to, the comments and information before the department completes its investigation.
Existing law requires the department, upon completion of an investigation or site evaluation, to provide notice and an opportunity to comment on the proposed designation of a site as determined with reasonable certainty to have been contaminated by releases from the operation of a facility known to have been a lead-acid battery recycling facility. Existing law requires the department to investigate and respond to any reasonable information provided by the public that might suggest the area was not contaminated by the operation of a lead-acid battery recycling facility or that the facility in question was not involved in the recycling of lead-acid batteries.
This bill would instead require the department to evaluate, investigate, if appropriate, and respond to any reliable information provided by the public that indicates either of the two circumstances described above. The bill would make other changes relating to that proposed designation, as provided.
Existing law provides that expenditure from the fund for purposes of further investigation or evaluation for a site is no longer authorized if, within 2 years of the public notice of the initiation of the investigation or site evaluation, the department is unable to designate a site as determined with reasonable certainty to have been contaminated by the operation of a lead-acid battery recycling facility. Existing law authorizes the department to extend the deadline for the completion of an investigation to no more than 3 months after the original 2-year deadline, as provided.
The bill would authorize the department to extend the deadline for the completion of an investigation additional times in increments of up to 3 months, not to exceed one year after the original 2-year deadline in total.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 Section 25215.1 of the Health and Safety Code is amended to read:

25215.1.
 For purposes of this article, the following definitions shall apply:
(a) “Board” means the California Department of Tax and Fee Administration.
(b) “Business” means any person, as defined in subdivision (k), except a natural person or a city, county, city and county, district, commission, the state, or any department, agency, or political subdivision of any of those, or an interstate body or, to the extent permitted by law, the United States and its agencies and instrumentalities.
(c) “California battery fee” means the fee imposed pursuant to Section 25215.25.
(d) “Dealer” means a person who engages in the retail sale of replacement lead-acid batteries directly to persons in California. “Dealer” includes a manufacturer of a new lead-acid battery that sells at retail that lead-acid battery directly to a person through any means, including, but not limited to, a transaction conducted through a sales outlet, catalog, or internet website or any other similar electronic means.
(e) “Importer” means a person described in paragraph (2) of subdivision (h).
(f) “Lead-acid battery” means a battery weighing over five kilograms that is primarily composed of both lead and sulfuric acid, whether sulfuric acid is in liquid, solid, or gel state, with a capacity of six volts or more that is used for any of the following purposes:
(1) As a starting battery that is designed to deliver a high burst of energy to an internal combustion engine until it starts.
(2) As a motive power battery that is designed to provide the source of power for propulsion or operation of a vehicle, including a watercraft.
(3) As a stationary storage or standby battery that is designed to be used in systems where the battery acts as either electrical storage for electricity generation equipment or a source of emergency power, or otherwise serves as a backup in case of failure or interruption in the flow of power from the primary source.
(4) As a source of auxiliary power to support the electrical systems in a vehicle, as defined in Section 670 of the Vehicle Code, including an implement of husbandry, as defined in Section 36000 of the Vehicle Code, or an aircraft.
(g) (1) “Lead-acid battery recycling facility” means a site at which lead-acid batteries are or have been disassembled for the purpose of making components available for reclamation to produce elemental lead or lead alloys or at which lead-acid batteries or their components, or both, are or have been reclaimed to produce elemental lead or lead alloys.
(2) “Lead-acid battery recycling facility” does not include a facility designed and operated for the primary purpose of recovering lead from materials other than used lead-acid batteries or a facility that incidentally processes lead-acid batteries. The processing of lead previously reclaimed from a lead-acid battery at a separate facility or the incidental processing of lead-acid batteries shall not be sufficient to establish that a facility is a lead-acid battery recycling facility.
(h) “Manufacturer” means either of the following:
(1) The person who manufactures the lead-acid battery and who sells, offers for sale, or distributes the lead-acid battery in the state.
(2) (A) If there is no person described in paragraph (1) that is subject to the jurisdiction of the state, the manufacturer is the person who imports the lead-acid battery into the state for sale or distribution.
(B) For purposes of this article, a person is subject to the jurisdiction of the state with respect to a lead-acid battery if the person is engaged in business in this state. For purposes of this subparagraph, a person shall be considered to be engaged in business in this state if the person is a “retailer engaged in business in this state,” as defined in subdivision (c) of Section 6203 of the Revenue and Taxation Code, with respect to that lead-acid battery, or if the person has a substantial nexus with this state for purposes of the commerce clause of the United States Constitution.
(i) “Manufacturer battery fee” means the fee imposed pursuant to Section 25215.35.
(j) “Owner or operator” has the same meaning given in Section 9601(20) of Title 42 of the United States Code and any person that previously met that definition or is the legal successor to a person that meets the definition or previously met the definition.
(k) “Person” means an individual, trust, firm, joint stock company, business concern, corporation, including, but not limited to, a government corporation, partnership, limited liability company, or association. “Person” also includes any city, county, city and county, district, commission, the state, or any department, agency, or political subdivision of any of those, interstate body, and the United States and its agencies and instrumentalities to the extent permitted by law.
(l) “Remedial action” has the same meaning as in Section 25322.
(m) “Removal” has the same meaning as in Section 25323.
(n) “Replacement lead-acid battery” means a new lead-acid battery that is sold at retail subsequent to the original sale or lease of the equipment or vehicle in which the lead-acid battery is intended to be used. “Replacement lead-acid battery” does not include a spent, discarded, refurbished, reconditioned, rebuilt, or reused lead-acid battery.
(o) “Response action” has the same meaning as in Section 25323.3.
(p) (1) A “retail sale” or a “sale at retail” has the same meaning as defined in Section 6007 of the Revenue and Taxation Code.
(2) The following shall not be considered a “retail sale” or a “sale at retail” for purposes of this article:
(A) The sale of a battery for which a California battery fee has previously been paid.
(B) The sale of a replacement lead-acid battery that is temporarily stored or used in California for the sole purpose of preparing the replacement lead-acid battery for use thereafter solely outside of the state and that is subsequently transported outside the state and thereafter used solely outside of the state.
(C) The sale of a battery for incorporation into new equipment for subsequent resale.
(D) The replacement of a lead-acid battery pursuant to a warranty or a vehicle service contract described under Section 12800 of the Insurance Code.
(E) The sale of any battery intended for use with or contained within a medical device, as defined in the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 321(h)), as that definition may be amended.
(q) “Used lead-acid battery” means a lead-acid battery no longer fully capable of providing the power for which it was designed or that a person no longer wants for any other reason.
(r) “Wholesaler” means a person who purchases a lead-acid battery from a manufacturer for the purpose of selling the lead-acid battery to a dealer, high-volume customer, or person for incorporation into new equipment for resale.

SEC. 2.

 Section 25215.5 of the Health and Safety Code is amended to read:

25215.5.
 (a) Lead-acid battery fees collected pursuant to this article shall be managed as follows:
(1) The board shall retain moneys necessary for the payment of refunds and reimbursement of the board for expenses in the collection of the fees.
(2) The remaining moneys shall be deposited into the Lead-Acid Battery Cleanup Fund, which is hereby created in the State Treasury, and is available upon appropriation by the Legislature to the department for the purposes specified in this section.
(b) (1) Moneys in the Lead-Acid Battery Cleanup Fund shall be expended for the following activities:
(A) Investigation or site evaluation of any area of the state that is reasonably suspected to have been contaminated by the operation of a lead-acid battery recycling facility.
(B) Cleanup, remedial action, removal, monitoring, or other response actions to address contamination from a lead-acid battery recycling facility at any area of the state that, pursuant to Section 25215.51, the department determines with reasonable certainty was contaminated by releases from the operation of that lead-acid battery recycling facility.
(C) Oversight or performance of closure activities and response and corrective actions to protect public health and the environment from hazardous substances and hazardous waste at or from the former Exide Technologies lead-acid battery recycling facility in the City of Vernon. This subparagraph shall apply retroactively to oversight or performance of closure activities and response and corrective actions conducted on or after September 26, 2016.
(D) Administration of the Lead-Acid Battery Cleanup Fund and the department’s administration and implementation of this article.
(E) Repayment of a loan described in Section 25215.59 that was made before September 26, 2016, or any other loan made for purposes set forth in subparagraphs (A) to (C), inclusive. Moneys shall be expended for purposes of this subparagraph only after the activities specified in subparagraphs (A) to (D), inclusive, have been fully funded in a given fiscal year.
(2) (A) Moneys in the Lead-Acid Battery Cleanup Fund shall not be used to implement Article 14 (commencing with Section 25251) with respect to lead-acid batteries or to loan moneys to any other program.
(B) Any government action not required by this article that would have the effect of reducing the availability of fee revenue to the Lead-Acid Battery Cleanup Fund shall be considered a negative economic impact pursuant to subparagraph (M) of paragraph (2) of subdivision (a) of Section 25253.
(3) Notwithstanding any other law, any costs incurred by the department using moneys from the Lead-Acid Battery Cleanup Fund pursuant to paragraph (1) that are recovered shall be deposited into the Lead-Acid Battery Cleanup Fund.
(c) The department shall report to the Legislature by March 1 of each year on the status of the Lead-Acid Battery Cleanup Fund and on the department’s progress implementing this article, including, but not limited to, the sites at which actions were performed using moneys from the fund, the status of cleanup at those sites, including total anticipated costs of cleanup at those sites, the balance of the fund, the amount of fees remitted to the fund, the amount spent by the fund and the purposes for which those amounts were spent, the amounts reimbursed to the board pursuant to paragraph (1) of subdivision (a), and any other information requested by the Legislature. Each annual report shall be released to the public on the same day it is provided to the Legislature.

SEC. 3.

 Section 25215.51 of the Health and Safety Code is amended to read:

25215.51.
 (a) The department shall establish a Lead-Acid Battery Recycling Facility Investigation and Cleanup Program, or LABRIC Program, which shall be responsible for identifying areas of the state that are eligible for expenditure of moneys from the Lead-Acid Battery Cleanup Fund pursuant to subparagraphs (A) and (B) of paragraph (1) of subdivision (b) of Section 25215.5.
(b) The LABRIC Program shall provide public notice of the initiation of the investigation or site evaluation of any area reasonably suspected to have been contaminated by the operation of a lead-acid battery recycling facility. The public notice shall provide a summary of the information relied on by the department, including, but not limited to, copies of any information or documents currently in the department’s possession that indicate that the facility might not be a lead-acid battery recycling facility, if subject to disclosure pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). The department shall accept comments or information that the public submits within 90 days after issuance of the public notice required by this subdivision and, before the department completes its investigation pursuant to subdivision (c), shall review and provide written responses to any comments or information submitted.
(c) (1) Upon completion of an investigation or site evaluation conducted pursuant to subdivision (b), the department, consistent with procedures included within the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), shall provide notice and an opportunity for comment on the proposed designation of a site as determined with reasonable certainty to have been contaminated by releases from the operation of a lead-acid battery recycling facility. Reasonable certainty shall be established based on all reasonably available information, including information provided by the public, to conclude that the contamination in a specific area was from the lead-acid battery recycling facility.
(2) Any proposed designation, as described in paragraph (1), shall include an explanation of the basis for the department’s designation, a summary of the evidence relied on by the department in reaching the proposed designation, including the assumptions and methodologies the department used to attribute any contamination to the lead acid battery facility, and including information indicating that the facility may not be a lead-acid battery recycling facility, and copies of any information or documents relied on during the investigation and evaluation of the site, if subject to disclosure pursuant to the California Public Records Act.
(3) The department shall accept comments from the public consistent with the procedures included within the Administrative Procedure Act. The department shall evaluate, investigate, if appropriate, and respond to any reliable information provided by the public indicating that the area was not contaminated by the operation of a lead-acid battery recycling facility, or that the facility in question was not involved in the recycling of lead-acid batteries.
(4) A site designation shall be considered a final action, subject to judicial review in the same manner as provided pursuant to the Administrative Procedure Act.
(d) (1) If, within two years of a public notice required by subdivision (b), the department is unable to designate a site as determined with reasonable certainty to have been contaminated by releases from the operation of a lead-acid battery recycling facility, the public notice shall be deemed to have been withdrawn and expenditure pursuant to subparagraph (A) of paragraph (1) of subdivision (b) of Section 25215.5 for purposes of further investigation or evaluation for the site shall no longer be authorized, except as provided in paragraph (3).
(2) No less than 30 days before the deadline established pursuant to paragraph (1), the department may extend the deadline for the completion of an investigation initiated pursuant to subdivision (b), with good cause shown and adequate public notice of the basis for that extension, by up to three months, and may extend the deadline additional times in increments of up to three months, not to exceed one year after the deadline established pursuant to paragraph (1) in total.
(3) The department may, within its discretion, issue a new public notice pursuant to subdivision (b) for a site if the department determines that new evidence warrants continued or renewed investigation or evaluation of the site.
(e) Information regarding the department’s progress in implementing this section shall be included in the report required by subdivision (c) of Section 25215.5.

SEC. 4.

 Section 25215.59 of the Health and Safety Code is amended to read:

25215.59.
 If the state loans money from the General Fund to the Toxic Substances Control Account for the cleanup of lead contamination in the state, the following shall apply:
(a) Money from the Lead-Acid Battery Cleanup Fund may be used towards repaying the loan that was made before September 26, 2016, or any other loan of public funds made for the purposes set forth in subparagraphs (A) to (C), inclusive, of paragraph (1) of subdivision (b) of Section 25215.5.
(b) Any moneys designated as repayment of the loan shall be deposited to that loan, but shall be available to be loaned to the Toxic Substances Control Account for the purposes of cleaning up areas of the state that are reasonably suspected to have been contaminated by the operation of a lead-acid battery recycling facility.