BILL NUMBER: AB 455 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 6, 2003
AMENDED IN ASSEMBLY APRIL 22, 2003
INTRODUCED BY Assembly Member Chu
(Coauthor: Assembly Member Levine)
FEBRUARY 14, 2003
An act to add Article 10.3 (commencing with Section 25214.11) to
Chapter 6.5 of Division 20 of the Health and Safety Code, relating to
hazardous waste.
LEGISLATIVE COUNSEL'S DIGEST
AB 455, as amended, Chu. Packaging materials: regulated metals.
(1) Existing hazardous waste control laws regulate the disposal of
discarded appliances, lead acid batteries, small household
batteries, recyclable latex paint, and household hazardous waste.
Existing law prohibits any person from managing any hazardous waste,
except as provided in the hazardous waste control laws and
regulations. A violation of the hazardous waste control laws is a
crime.
This bill would enact the "Toxics in Packaging Prevention Act,"
and would define terms. The act would prohibit, on and after January
1, 2006, a manufacturer , supplier, or distributor, as
defined, from offering for sale or for promotional purposes in this
state any package or packaging component that includes any
regulated metal, defined as lead, cadmium, mercury, or
hexavalent chromium, if that regulated metal has been intentionally
introduced as an element during manufacturing or distribution, as
defined. The act would also prohibit, on and after January 1, 2006,
a manufacturer , supplier, or distributor from offering
for sale or for promotional purposes in this state any product in a
package that includes those intentionally introduced regulated
metals. The bill would specify a schedule for the summed incidental
concentration levels of lead, cadmium, mercury, and
hexavalent chromium level of regulated metal
that may be present in any a single component
package or individual packaging component, which
would be set at 600 parts per million by weight between January 1,
2006, and January 1, 2007, 250 parts per million by weight on and
after January 1, 2007, and until January 1, 2008, and 100
parts per million by weight thereafter.
The bill would exempt provide an exemption
process , from those requirements, for a package or
a packaging component that meets specified conditions, including,
among other things, if the lead, cadmium, mercury, or
hexavalent chromium regulated metal is added to
comply with specified health or safety requirements of a state
or federal law, or if there is no feasible alternative for
adding those regulated metals
metal . The bill would also exempt
provide an exemption process , from those requirements,
for a package or packaging component manufactured
on or before January 1, 2010, that has a controlled
distribution and reuse, if the manufacturer or distributor
has submitted a plan submits information to the
department that complies with specified requirements, and
including demonstrating that there is an
environmental benefit of the controlled distribution and reuse.
The bill would provide that some exemptions expire on January 1,
2010. The bill would require a manufacturer or distributor
that requests an exemption to pay a fee for the costs of
reviewing and approving the request. The bill would require the fee
specified exemptions to enter into a written agreement
with the department, pursuant to which the manufacturer or
distributor would reimburse the department for costs incurred by the
department in processing or responding to the request. The bill
would require all reimbursements received by the department to
be deposited in the Hazardous Waste Control Account, to be
expended by the Department of Toxic Substances Control, only upon
appropriation by the Legislature and only for the costs of conducting
those reviews .
The bill would require, on and after January 1, 2006, each
manufacturer , distributor, or supplier to furnish a
certificate of compliance to the purchaser of a package or packaging
component stating that the package or packaging component is in
compliance with the act. The bill would require a purchaser to
retain the certificate of compliance for as long as the package or
packaging component is in use by the purchaser . The bill
would require the department to provide the public with access to
the information submitted by a manufacturer , distributors,
or supplier.
The department would be required, by January 1, 2009, and at least
once every 5 years thereafter, in consultation with the Toxics in
Packaging Clearinghouse, to review the implementation of the act and
to submit a report, based upon that review, to the Governor and the
Legislature. The department would also be required to review the
extension expiration date of
any an exemption condition , pursuant
to a specified procedure.
Because a violation of the bill's requirements would be a crime,
the bill would impose a state-mandated local program.
(2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Article 10.3 (commencing with Section 25214.11) is
added to Chapter 6.5 of Division 20 of the Health and Safety Code, to
read:
Article 10.3. Toxics in Packaging Prevention Act
25214.11. (a) The Legislature finds and declares all of the
following:
(1) The management of solid waste can pose a wide range of hazards
to public health and safety and to the environment.
(2) Packaging comprises a significant percentage of the overall
solid waste stream.
(3) The presence of heavy metals in packaging is a part of the
total concern regarding the disposal of hazardous waste in the solid
waste stream, in light of the presence of heavy metals in emissions
or ash when packaging is incinerated, or in leachate when packaging
is disposed of in a solid waste landfill.
(4) Lead, mercury, cadmium, and hexavalent chromium, on the basis
of available scientific and medical evidence, are of particular
concern.
(5) It is desirable, as a first step in reducing the toxicity of
packaging waste, and reducing the hazardous materials that may be
disposed of in solid waste landfills, to eliminate the addition of
these heavy metals to packaging.
(6) The intent of this article is to achieve this reduction in
toxicity without impeding or discouraging the expanded use of
recycled materials in the production of packaging and its components.
(b) This article shall be known, and may be cited as, the "Toxics
in Packaging Prevention Act."
25214.12. For purposes of this article, the following terms have
the following meanings:
(a) "Consumer" means a person who purchases, and takes title to, a
package, or a product in a package, for purposes of that consumer's
own use or consumption.
(b) "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.
(c) "Distributor" means any person, firm, or corporation who takes
title to a good, produced either domestically or in a foreign
country, that is purchased for resale or promotional purposes.
"Distributor" does not include a person involved solely in delivering
a package or a packaging component on behalf of a third party.
(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) "Package" means any container, produced either domestically or
in a foreign country, providing a means of marketing, protecting, or
handling a product, including a unity package, an intermediate
package or a shipping container, as defined in the American Society
of Testing and Materials (ASTM) specification D 996. "Package" also
includes unsealed receptacles, such as carrying cases, crates, cups,
pails, rigid foil and other trays, wrappers and wrapping films, bags,
and tubs.
(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, and labels
, dyes, pigments, adhesives, stabilizers, or any other additives
. Tin-plated steel that meets the American Society for
Testing and Materials (ASTM) specification A 623 shall be considered
as a single package component. Electrogalvanized coated steel and
hot dipped coated galvanized steel that meet the American Society for
Testing and Materials (ASTM) qualifications A 525 and A 879 shall be
treated in the same manner as tin-plated steel.
(j) "Purchaser" means any a person
who purchases and takes title to a package , a packaging
component, or a product in a package, from a manufacturer or
supplier, but does not include a consumer. 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
reused in the production of another product and has been diverted
from disposal in a landfill. generated by a business
or a consumer 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 a material specified in
subdivision (c) of Section 25214.13. lead, mercury,
cadmium, or hexavalent chromium.
(m) "Supplier" means any person, firm, association, partnership,
or corporation that sells, offers for sale, or offers for promotional
purposes, a package or packaging component that is used by any other
person, firm, association, partnership, or corporation to package a
product.
(n) "Toxics in Packaging Clearinghouse" means the Toxics in
Packaging Clearinghouse (TPCH) of the Council of State Governments,
which was formed in 1992 to promote model toxics in packaging
legislation in an effort to reduce the amount of heavy metals in
packaging and packaging components that are sold or distributed
throughout the United States.
25214.13. (a) Except as provided in Section 25214.14, on and
after January 1, 2006, a manufacturer or distributor
, distributor, or supplier may not offer for
sale or for promotional purposes in this state any
a package or packaging component that includes
any lead, cadmium, mercury, or hexavalent chromium a
regulated metal , in the package itself, or in any
a packaging component, ink, dye,
pigment, adhesive, stabilizer, or any other additive, if
the regulated metal has been intentionally introduced as an element
during manufacturing or distribution.
(b) Except as provided in Section 25214.14, on and after January
1, 2006, a manufacturer or distributor ,
distributor, or supplier may not offer for sale or for
promotional purposes in this state any a
product in a package that includes any lead, cadmium,
mercury, or hexavalent chromium a regulated metal
, in the package itself, or in any a
packaging component, ink, dye, pigment, adhesive,
stabilizer, or any other additive, if the regulated metal
has been intentionally introduced as an element during manufacturing
or distribution.
(c) Except as provided in Section 25214.14, the summed incidental
concentration levels of lead, cadmium, mercury, and
hexavalent chromium present in any level of regulated
metal present in single-component package or individual
packaging component may not exceed the following:
(1) On and after January 1, 2006, until January 1, 2007, 600 parts
per million by weight.
(2) On and after January 1, 2007, until January 1, 2008, 250 parts
per million by weight.
(3) On and after January 1, 2008, 100 parts per million by weight.
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 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, 2004.
(b) (1) Lead, cadmium, mercury, or hexavalent chromium has
2006.
(b) (1) A manufacturer of a package or packaging component has
obtained an exemption, pursuant to the process described in paragraph
(2), for a regulated metal that 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.
(2) A manufacturer of a package or packaging component may request
the department for an exemption pursuant to this subdivision for a
particular package or packaging component, and the department shall
grant an exemption from Section 25214.13 for up to two years, if the
package or packaging component is eligible for the exemption. The
department shall renew an exemption granted pursuant to this
subdivision, upon reapplication for exemption, if the package or
packaging component is eligible for an exemption during the period
for which the exemption is requested.
(2) The department shall grant an exemption under paragraph (1)
from Section 25214.13 for two years only if both of the following
conditions are met:
(A) The manufacturer of the package or packaging component submits
supporting information with the request for an initial and a renewed
exemption.
(B) The supporting information demonstrates that the package or
packaging component is eligible for the exemption.
(c) (1) The package or packaging component exceeds the maximum
contaminant levels concentration level
set forth in subdivision (c) of Section 25214.13 only because of the
addition of a recycled material.
(2) Paragraph (1) does not apply to any cadmium, lead, mercury, or
hexavalent chromium that has been recovered or separated from other
materials for use as a metal or metallic compound.
(3) This subdivision shall apply only to a package or packaging
component manufactured on or before January 1, 2010.
(d) (1) A package or packaging component to which lead, cadmium,
mercury, or hexavalent chromium has been added in the manufacturing,
forming, printing, or distribution process, and for which there is no
feasible alternative for that use.
(2) A manufacturer of a package or packaging component may request
the department for an exemption pursuant to this subdivision for a
particular package or packaging component, and the department shall
grant an exemption from Section 25214.13 for up to two years, if the
package or packaging component is eligible for the exemption. The
department shall renew an exemption granted pursuant to this
subdivision, upon reapplication for exemption, if the package or
packaging component is eligible for an exemption during the period
for which the exemption is requested.
(3) For purposes of this subdivision, "a use for which there is no
feasible alternative" is one for which the regulated substance is
essential to the
(2) This subdivision, and all exemptions provided pursuant to it,
expire on January 1, 2010.
(d) (1) A manufacturer of a package or packaging component has
obtained an exemption, pursuant to the process described in paragraph
(2), for use of a regulated metal for which there is no feasible
alternative in the manufacturing, forming, printing, or distribution
process.
(2) The department shall grant an exemption under paragraph (1)
from Section 25214.13 for two years only if both of the following
conditions are met:
(A) The manufacturer of the package or packaging component submits
supporting information with the request for an initial and a renewed
exemption.
(B) The supporting information demonstrates that the package or
packaging component is eligible for the exemption.
(3) Notwithstanding paragraph (2), the department may not exempt
the use of a regulated metal pursuant to this subdivision for the
purposes of marketing.
(4) For purposes of this subdivision, "no feasible alternative"
means the use of a regulated metal is essential to the
protection, safe handling, or function of the package's contents and
for which technical constraints preclude the
substitution of other materials. However, the department
may not exempt the use of any regulated metal pursuant to this
subdivision for the purposes of marketing.
(e) (1) A package or packaging component that is reused but
exceeds the contaminant levels summed
incidental concentration level of regulated metal set forth in
subdivision (c) of Section 25214.13, if all of the following apply:
(A) The product being conveyed by the package or 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 shall apply only to a package or packaging
component manufactured on or before January 1, 2010.
(f) (1) A package or packaging component that has a controlled
distribution and reuse that exceeds the contaminant levels set forth
in subdivision (c) of Section 25214.13.
(2) A manufacturer or distributor of a package or packaging
component may request the department for an exemption pursuant to
this subdivision for a particular package or packaging component.
The department shall grant an exemption from Section 25214.13
pursuant to this subdivision for up to two years, if the manufacturer
or distributor submits to the department a plan, pursuant to
paragraph (3), that complies with this article, and the environmental
benefit of the controlled distribution and reuse is significantly
greater, as compared to the same package manufactured in compliance
with the maximum contaminant levels set forth in subdivision (c) of
Section 25214.13.
(3) The plan that a manufacturer
(2) This subdivision, and all exemptions provided pursuant to it,
expire on January 1, 2010.
(f) (1) A manufacturer or distributor of a package or packaging
component has obtained an exemption, pursuant to the process
described in paragraph (2), for use of a regulated metal that exceeds
the summed incidental concentration level set forth in subdivision
(c) of Section 25214.13 in a package or packaging component that has
a controlled distribution and reuse.
(2) The department shall grant an exemption under paragraph (1)
from Section 25214.13 for two years only if both of the following
conditions are met:
(A) The manufacturer or distributor of the package or packaging
component submits supporting information that complies with the
requirements set forth in paragraph (3) with the request for an
initial and a renewed exemption.
(B) The supporting information demonstrates that the package or
packaging component is eligible for the exemption.
(3) The supporting information that a manufacturer or
distributor shall submit to the department, before the department may
grant an exemption pursuant to this subdivision shall include all of
the following:
(A) Information 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
maximum summed incidental concentration level of regulated metal set
forth in subdivision (c) of Section 25214.13.
(B) 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.
(B)
(C) A method of regulatory and financial accountability, so
that a specified percentage of the reusable packages or packaging
components, manufactured and distributed to other persons are not
discarded by those persons after use, but are returned to the
manufacturer or designee.
(C)
(D) A system of inventory and record maintenance to account
for reusable packages or packaging components, placed in, and removed
from, service.
(D)
(E) A means of transforming returned packages or packaging
components, that are no longer reusable into recycled materials for
manufacturing or into manufacturing wastes, that are subject
to existing federal or state laws or regulations governing those
manufacturing wastes, to ensure that these wastes do not enter the
commercial or municipal waste stream.
(E) manufacturing, or a means of collecting and
managing returned packages or packaging components as a waste in
accordance with federal and state laws.
(F) A system of annually reporting to the department any
changes to the system and changes in designees.
(4) This subdivision shall apply only to a package or packaging
component manufactured on or before January 1, 2010.
(4) This subdivision, and all exemption provided pursuant to it,
expire on January 1, 2010.
(g) (1) A glass or ceramic package or packaging component that has
a vitrified label 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, and does not exceed 1.0 ppm for cadmium, 5.0 ppm
for hexavalent chromium, and or 5.0
ppm for lead. A glass or ceramic package or packaging component
containing mercury is not exempted pursuant to this subdivision.
(2) This subdivision applies only to a glass or ceramic package or
packaging component manufactured on or before January 1, 2005.
25214.15. A manufacturer or distributor that requests an
exemption pursuant to Section 25214.14 shall pay a fee set by the
department to pay the costs of reviewing and approving the request.
The fee shall be deposited into the Hazardous Waste Control Account
and may be expended by the department only upon appropriation by the
Legislature and only for the costs of conducting those reviews.
(2) This subdivision, and all exemptions provided pursuant to it,
expire on January 1, 2010.
25214.15. (a) A manufacturer or distributor that requests an
exemption pursuant to subdivision (b), (d), or (f) of Section
25214.14 shall enter into a written agreement with the department
pursuant to which that manufacturer or distributor shall reimburse
the department, pursuant to Article 9.2 (commencing with Section
25206.1), for costs incurred by the department in processing or
responding to the request.
(b) The department shall deposit all reimbursements received
pursuant to this section in the Hazardous Waste Control Account for
appropriation in accordance with Section 25174.
25214.16. (a) On and after January 1, 2006, each manufacturer
, distributor, or supplier shall furnish a certificate of
compliance to the purchaser of a package or packaging component
stating that the package or packaging component is in compliance with
the requirements of this article. However, if, pursuant to Section
25214.14, the package is exempt from the requirements of Section
25214.13, the certificate of compliance shall state the specific
basis upon which the exemption is claimed. The certificate of
compliance shall be signed by an authorized official of the
manufacturer , distributor, or supplier. A copy of the
certificate of compliance shall be kept on file by the manufacturer
, distributor, or supplier of the package or packaging
component. A manufacturer , distributor, or supplier
shall furnish a certificate of compliance, or a copy thereof, to the
department, upon its request.
(b) A purchaser of a package or packaging component subject to
subdivision (a) shall retain the certificate of compliance for as
long as the package or packaging component is in use by the
purchaser .
(c) If a manufacturer , distributor, or supplier of a
package or packaging component subject to subdivision (a)
reformulates or creates a new package or packaging component, the
manufacturer , distributor, or supplier shall provide the
purchaser with an amended or new certificate of compliance for the
reformulated or new package or packaging component.
(d) The department, pursuant to the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1
of the Government Code), shall provide the public with access to the
information relating to a package or packaging component submitted by
a manufacturer , distributor, or supplier of a package or
packaging component.
25214.18. (a) On or before January 1, 2009, and at least once
every five years thereafter, the department shall, in consultation
with the Toxics in Packaging Clearinghouse, review the implementation
of this article. The department shall submit a report, based upon
that review, to the Governor and the Legislature. The report may
contain recommendations to add other hazardous substances contained
in packaging to the list set forth in subdivision (c) of
Section 25214.13 (l) of Section 25214.12 in
order to further reduce the toxicity of packaging waste, and a
description of the nature of the substitutes used in lieu of
lead, mercury, cadmium, and hexavalent chromium. of
regulated metal.
(b) The department shall, in consultation with the Toxics in
Packaging Clearinghouse, review the extension of any
expiration date of an exemption condition
granted pursuant to Section 25214.14
subdivision (c), (e), (f), or (g) of Section 25214.14 and determine
whether to extend that expiration date . This review shall
commence no later than the January 1 that is two years prior to the
expiration of the exemption condition . A report based
upon that review shall be submitted to the Governor and the
Legislature by January 1 of the year prior to the expiration of the
exemption condition .
25214.19. This article does not affect any duty or other
requirement imposed under any other federal or state law.
SEC. 2. 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.