California Assembly Bill AB1435 Latest Draft

 BILL NUMBER: AB 1435AMENDED BILL TEXT AMENDED IN SENATE AUGUST 18, 2015 INTRODUCED BY Assembly Member Alejo (Principal coauthors: Assembly Members Bigelow and Cooper) (Principal coauthor: Senator Cannella) (Coauthors: Assembly Members Calderon, Dodd, Eggman, Gordon, Gray, and Olsen) (Coauthor: Senator Galgiani) FEBRUARY 27, 2015 An act to amend  Section 25214.12 of   Sections 25214.14 and 25214.15 of, and to add Section 25214.25 to,  the Health and Safety Code, relating to hazardous waste. LEGISLATIVE COUNSEL'S DIGEST AB 1435, as amended, Alejo. Hazardous waste: toxics: packaging. The Toxics in Packaging Prevention Act generally prohibits a manufacturer or supplier from offering for sale or for promotional purposes in this state a package or packaging component that includes intentionally introduced lead, mercury, cadmium, or hexavalent chromium in the package or in a packaging component. The act  defines the term "package" as meaning any container that provides a means of marketing, protecting, or handling a product and specifies that a package does not include a reusable bag.   exempted from this prohibition, until January 1, 2010, a package or a packaging component if the manufacturer or supplier complied with specific documentation requirements and the package or   packaging component did not contain any intentionally introduced lead, mercury, cadmium, or hexavalent chromium, but exceeded a specific maximum concentration level because of the addition of a recycled material.  This bill would  also exclude a "glass beverage container" and a "glass food or drink container" from the definition of "package."   provide a similar exemption, until January 1, 2019, for a glass beverage, food, or drink container. The bill would require the Department of Toxic Substances Control to evaluate the packaging of glass beverage, food, and drink containers, as specified, to determine if lead, mercury, cadmium, or hexavalent chromium is present in glass beverage, food, or drink containers sold in California. If the department determines that these metals are   present, the bill would require the depart   ment to also evaluate whether and under what circumstances those metals can leach from the glass containers into the food or beverage and whether the presence of the metals in the glass containers presents a risk to human health and the environment. The bill would authorize the department to request any information and collect any samples necessary for the evaluations from glass manufacturers or feedstock or raw material suppliers in the state that are subject to the act, and would require the department to provide the results of the evaluations to the Legislature by January 1, 2018. The bill would authorize the department to adopt regulations, pursuant to existing authority, based on these evaluations. The bill would authorize the department to seek reimbursement from the glass manufacturers and feedstock and raw material suppliers to cover the reasonable costs directly related to collecting glass samples, reviewing and processing those samples, analyzing the   samples, disseminating certain information, and implementing any regulations that are developed as a result of the evaluations.   The bill would delete obsolete provisions and would make conforming changes.  Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. 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   before  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   is a glass beverage container, as defined in Section 14513 of the Public Resources Code, or a glass   food or drink container, as defined in Section 14513.3 of the Public Resources Code, and the package  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,  2010.   2019.  (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),  or  (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. (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)   (f)  A manufacturer or supplier shall submit the documentation required pursuant to subdivisions (a) to  (h),   (e),  inclusive, to the department, as follows: (1) Upon receipt of a written request from the department, the manufacturer or supplier shall, on or before 30 calendar days after the date of receipt, do one of the following: (A) Submit the required documentation to the department. (B) Submit a letter to the department indicating the date by which the documentation shall be submitted, which  may   shall not  be  no  more than 90 calendar days after the date of receipt of the department's request. (2) If the department finds that the documentation supplied pursuant to paragraph (1) 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)   (g)  If a manufacturer or supplier fails to comply with subdivision  (i)   (f)  by any of the specified dates in that subdivision, 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.   Section 25214.25 is added to the   Health and Safety Code   , to read:   25214.25. (a) The department shall evaluate the packaging of glass beverage, food, and drink containers to determine if regulated metals are present in glass food, beverage, and drink containers sold in California. If the department determines regulated metals are present in those containers, the department shall also evaluate whether and under what circumstances the regulated metals can leach from the glass containers into the food or beverage and whether the presence of the regulated metals in the glass containers presents a risk to human health or the environment. The evaluation shall include, but not be limited to, the following: (1) An evaluation of the feedstock or raw materials used in the manufacture of glass beverage, food, and drink containers to determine the presence and prevalence of regulated metals in the feedstock or raw materials used to manufacture glass beverage, food, and drink containers. (2) An evaluation of the levels of regulated metals, if found, in glass beverage, food, and drink containers, including an evaluation of whether or not those regulated metals leach from the glass containers into the food or beverage. (3) If department determines regulated metals do leach from glass beverage, food, or drink containers, an evaluation of the levels and concentrations of the leached metals and whether any of those levels pose a risk to human health or the environment. (4) An evaluation of the practices of the glass manufacturing industry in the state, including the efforts of glass manufacturers to comply with this article and steps the glass manufacturers have taken to reduce the presence of regulated metals in their glass beverage, food, and drink containers since this article's enactment. (b) To carry out the evaluations required by this section, the department is authorized to request any information and collect any samples necessary from glass manufacturers and feedstock or raw material suppliers in the state that are subject to this article. Any glass manufacturer or feedstock or raw material supplier that receives a request for information or samples from the department shall provide the information or samples to the department. (c) The department may consult with state and federal agencies to carry out the evaluations required pursuant to this section. (d) (1) The department may adopt regulations, pursuant to Section 25150, based on the evaluations required by this section. The department is authorized to seek reimbursement from glass manufacturers and feedstock or raw material suppliers subject to this article for the reasonable costs directly relating to collecting glass samples, reviewing and processing those samples, analyzing the samples, disseminating any information necessary to relevant parties to complete the evaluations required by this section, and implementing any regulations that are developed as a result of the evaluations. The amount collected by the department pursuant to this subdivision shall be determined and adjusted as necessary based on the duties imposed on the department pursuant to this section and shall not exceed the costs of implementing this section. (2) A glass manufacturer or feedstock or raw material supplier that receives an invoice from the department seeking reimbursement for costs directly related to carrying out the provisions of this section shall pay the amount invoiced to the department no later than 60 days from receiving the invoice. (e) (1) The department shall provide the results of the evaluation required by this section to the Legislature no later than January 1, 2018. (2) A report to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.   SECTION 1.   Section 25214.12 of the Health and Safety Code is amended to read: 25214.12. For purposes of this article, the following terms have the following meanings: (a) "Authorized official" means a representative of a manufacturer or supplier who is authorized pursuant to the laws of this state to bind the manufacturer or supplier regarding the accuracy of the content of a certificate of compliance. (b) "ASTM" means ASTM International. (c) "Distribution" means the practice of taking title to a package or a packaging component for promotional purposes or resale. A person involved solely in delivering a package or a packaging component on behalf of a third party is not engaging in distribution. (d) (1) "Intentional introduction" means the act of deliberately utilizing a regulated metal in the formation of a package or packaging component where its continued presence is desired in the final package or packaging component to provide a specific characteristic, appearance, or quality. (2) "Intentional introduction" does not include either of the following: (A) The use of a regulated metal as a processing agent or intermediate to impart certain chemical or physical changes during manufacturing, where the incidental retention of a residue of that metal in the final package or packaging component is not desired or deliberate, if the final package or packaging component is in compliance with subdivision (c) of Section 25214.13. (B) The use of recycled materials as feedstock for the manufacture of new packaging materials, where some portion of the recycled materials may contain amounts of a regulated metal, if the new package or packaging component is in compliance with subdivision (c) of Section 25214.13. (e) "Incidental presence" means the presence of a regulated metal as an unintended or undesired ingredient of a package or packaging component. (f) "Manufacturer" means any person, firm, association, partnership, or corporation producing a package or packaging component. (g) "Manufacturing" means the physical or chemical modification of a material to produce packaging or a packaging component. (h) (1) Except as provided in paragraph (2), "package" means any container, produced either domestically or in a foreign country, providing a means of marketing, protecting, or handling a product from its point of manufacture to its sale or transfer to a consumer, including a unity package, an intermediate package, or a shipping container, as defined in the ASTM specification D 996. "Package" also includes, but is not limited to, unsealed receptacles, including carrying cases, crates, cups, pails, rigid foil and other trays, wrappers and wrapping films, bags, and tubs. (2) "Package" does not include any of the following: (A) A "glass beverage container," as defined in Section 14513 of the Public Resources Code. (B) A "glass food or drink container," as defined in Section 14513.3 of the Public Resources Code. (C) A reusable bag, as defined in subdivision (d) of Section 42250 of the Public Resources Code. (i) "Packaging component" means any individual assembled part of a package that is produced either domestically or in a foreign country, including, but not necessarily limited to, any interior or exterior blocking, bracing, cushioning, weatherproofing, exterior strapping, coatings, closures, inks, labels, dyes, pigments, adhesives, stabilizers, or any other additives. Tin-plated steel that meets the ASTM specification A 623 shall be considered as a single package component. Electrogalvanized coated steel and hot dipped coated galvanized steel that meet the ASTM qualifications A 591, A 653, A 879, and A 924 shall be treated in the same manner as tin-plated steel. (j) "Purchaser" means a person who purchases and takes title to a package or a packaging component, from a manufacturer or supplier, for the purpose of packaging a product manufactured, distributed, or sold by the purchaser. (k) "Recycled material" means a material that has been separated from solid waste for the purpose of recycling the material as a secondary material feedstock. Recycled materials include paper, plastic, wood, glass, ceramics, metals, and other materials, except that recycled material does not include a regulated metal that has been separated from other materials into its elemental or other chemical state for recycling as a secondary material feedstock. (  l  ) "Regulated metal" means lead, mercury, cadmium, or hexavalent chromium. (m) (1) "Supplier" means a person who does or is one or more of the following: (A) Sells, offers for sale, or offers for promotional purposes, a package or packaging component that is used by any other person to package a product. (B) Takes title to a package or packaging component, produced either domestically or in a foreign country, that is purchased for resale or promotional purposes. (C) Acts as an intermediary for the purchase of a package or packaging component for resale from a manufacturer located in another country to a purchaser located in this state, and who may receive a commission or a fee on that sale. (D) Listed as the importer of record on a United States Customs Service form for an imported package or packaging component. (2) "Supplier" does not include a person involved solely in delivering a package or packaging component on behalf of a third party. (n) "Toxics in Packaging Clearinghouse" means the Toxics in Packaging Clearinghouse (TPCH) of the Council of State Governments.