BILL NUMBER: AB 147 ENROLLED
BILL TEXT
PASSED THE SENATE SEPTEMBER 3, 2009
PASSED THE ASSEMBLY SEPTEMBER 9, 2009
AMENDED IN SENATE SEPTEMBER 1, 2009
AMENDED IN SENATE AUGUST 17, 2009
AMENDED IN ASSEMBLY JUNE 1, 2009
AMENDED IN ASSEMBLY MAY 5, 2009
INTRODUCED BY Assembly Member Saldana
(Coauthors: Assembly Members Block, Blumenfield, Chesbro, Huffman,
Ma, and Nava)
(Coauthor: Senator Wiggins)
JANUARY 22, 2009
An act to amend Section 25214.10.1 of the Health and Safety Code,
relating to hazardous waste.
LEGISLATIVE COUNSEL'S DIGEST
AB 147, Saldana. Hazardous waste: electronic waste.
(1) Existing law requires the Department of Toxic Substances
Control to adopt regulations to prohibit an electronic device from
being sold or offered for sale in this state if the electronic device
is prohibited from being sold or offered for sale in the European
Union on and after its date of manufacture, due to the presence of
certain heavy metals. Existing law requires these regulations to take
effect January 1, 2007, or on or after the date that the Directive
2002/95/EC, adopted by the European Parliament and the Council of the
European Union on January 27, 2003 (Directive 2002/95/EC), takes
effect, whichever date is later. Existing law defines the term
"electronic device," for purposes of those provisions, to have the
same meaning, with reference to the Electronic Waste Recycling Act of
2003, as "covered electronic device" which is defined as a video
display device that is identified by the department, pursuant to
specified regulations, as a presumed hazardous waste when discarded.
A violation of the hazardous waste control laws, including a
regulation adopted pursuant to those laws, is a crime.
This bill would require a manufacturer of an electronic device, at
the request of the department, based on the department's reasonable
cause, as the bill would define that term, to believe that a specific
electronic device identified by the department is prohibited from
sale, to prepare and submit to the department within 28 days of
receipt of the request, documentation or other information typically
maintained by the manufacturer's industry under Directive 2002/95/EC,
showing that the electronic device specifically identified by the
department and sold or offered for sale by that manufacturer is not
prohibited from sale. The bill would authorize the department to
extend the 28-day response time at the request of the manufacturer.
The bill would require the department to treat as confidential any
information that is a trade secret, as defined, that is provided to
the department pursuant to the bill's requirements, and that is
identified as a trade secret at the time of submission, in the same
manner as the procedures adopted by the department with regard to
hazardous waste handling and disposal. The department would be
required to make available, pursuant to the California Public Records
Act, any information that is not a trade secret or that is not
identified as a trade secret.
Because a violation of the bill's requirements would be a crime,
the bill would impose a state-mandated local program by creating a
new crime.
(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.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 25214.10.1 of the Health and Safety Code is
amended to read:
25214.10.1. (a) For purposes of this section, the following
definitions shall apply:
(1) "Electronic device" means a video display device, as defined
in subdivision (u) of Section 42463 of the Public Resources Code,
with a screen size of greater than four inches.
(2) "Covered electronic device," "manufacturer," and "retailer"
have the same meaning as those terms are defined in Section 42463 of
the Public Resources Code.
(3) "Reasonable cause" means knowledge of any of the following:
(A) Hazardous substance enforcement activities by another state or
country for the same or similar electronic device that indicate that
the electronic device may be prohibited from sale pursuant to
Section 25214.10.
(B) Conflicting publicly available documentation regarding
hazardous substances for a specific electronic device that indicates
that the electronic device may be prohibited from sale pursuant to
Section 25214.10.
(C) Homogenous material level testing of a specific electronic
device regarding hazardous substances, conducted according to the
International Electrotechnical Commission's IEC 62321 or equivalent
method, that indicates that one or more homogenous materials may
result in the electronic device being prohibited from sale pursuant
to Section 25214.10.
(D) Information from other companies or competitors, if it is a
documented allegation, based on homogenous materials reports, for a
specific electronic device, that indicate that the electronic device
may be prohibited from sale pursuant to Section 25214.10.
(E) Other comparable justification to question whether a specific
electronic device is prohibited from sale pursuant to Section
25214.10.
(4) "Trade secret" has the same meaning as defined in Section
25173.
(b) The department shall adopt regulations that identify
electronic devices that the department determines are presumed to be,
when discarded, a hazardous waste pursuant to this chapter.
(c) (1) Except as provided in subdivision (e), a manufacturer of
an electronic device that is identified in the regulations adopted by
the department shall send a notice in accordance with the schedule
specified in subparagraph (A) or (B), as applicable, of paragraph
(3), to any retailer that sells that electronic device manufactured
by the manufacturer. The notice shall identify the electronic device,
and shall inform the retailer that the electronic device is a
covered electronic device and is subject to a fee in accordance with
subdivision (d).
(2) A manufacturer subject to this subdivision shall also send a
copy of the notice to the State Board of Equalization.
(3) The notice required by this subdivision shall be sent in
accordance with the following schedule:
(A) On or before October 1, 2004, the manufacturer shall send a
notice covering any electronic device manufactured by that
manufacturer that is identified in the regulations adopted by the
department on or before July 1, 2004, that identify the electronic
devices that the department determines are presumed to be, when
discarded, a hazardous waste pursuant to this chapter.
(B) On or before April 1, 2005, and on or before every April 1 of
each year thereafter, the manufacturer shall send a notice covering
any electronic device manufactured by that manufacturer identified in
the regulations adopted by the department pursuant to subdivision
(b) on or before December 31 of the prior year.
(4) If a retailer sells a refurbished covered electronic device,
the manufacturer is required to comply with the notice requirement of
this subdivision only if the manufacturer directly supplies the
refurbished covered electronic device to the retailer.
(d) (1) Except as provided in subdivision (e), a covered
electronic device that is identified in the regulations adopted, on
or before July 1, 2004, by the department, that identify electronic
devices that the department determines are presumed to be, when
discarded, a hazardous waste pursuant to this chapter shall, on and
after January 1, 2005, be subject to Chapter 8.5 (commencing with
Section 42460) of Part 3 of Division 30 of the Public Resources Code,
including the fee imposed pursuant to Section 42464 of the Public
Resources Code.
(2) Except as provided in subdivision (e), a covered electronic
device identified in the regulations adopted by the department,
pursuant to subdivision (b), shall, on and after July 1 of the year
subsequent to the year in which the covered electronic device is
first identified in the regulations, be subject to Chapter 8.5
(commencing with Section 42460) of Part 3 of Division 30 of the
Public Resources Code, including the fee imposed pursuant to Section
42464 of the Public Resources Code.
(e) (1) If the manufacturer of an electronic device that is
identified in the regulations adopted by the department pursuant to
subdivision (b) obtains the concurrence of the department that an
electronic device, when discarded, would not be a hazardous waste, in
accordance with procedures set forth in Section 66260.200 of Title
22 of the California Code of Regulations, the electronic device shall
cease to be a covered electronic device and shall cease to be
subject to subdivisions (c) and (d) on the first day of the quarter
that begins not less than 30 days after the date that the department
provides the manufacturer with a written nonhazardous concurrence for
the electronic device pursuant to this subdivision. A manufacturer
shall notify each retailer, to which that manufacturer has sold a
covered electronic device, that the device has been determined
pursuant to this subdivision to be nonhazardous and is no longer
subject to a covered electronic recycling fee.
(2) No later than 10 days after the date that the department
issues a written nonhazardous concurrence to the manufacturer, the
department shall do both of the following:
(A) Post on the department's Internet Web site a copy of the
nonhazardous concurrence, including, but not limited to, an
identification and description of the electronic device to which the
concurrence applies.
(B) Send a copy of the nonhazardous concurrence, including, but
not limited to, an identification and description of the electronic
device to which the concurrence applies, to the California Integrated
Waste Management Board and the State Board of Equalization.
(f) (1) A manufacturer, at the request of the department, based on
the department's reasonable cause to believe that a specific
electronic device identified by the department is prohibited from
sale pursuant to Section 25214.10, shall prepare and submit to the
department within 28 days of receipt of the request, documentation or
other information typically maintained by the manufacturer's
industry under Directive 2002/95/EC, adopted by the European
Parliament and the Council of the European Union on January 27, 2003,
showing that the electronic device specifically identified by the
department and sold or offered for sale by that manufacturer is not
prohibited from sale pursuant to Section 25214.10. The department may
extend the 28-day response time upon request of the manufacturer.
(2) The department's request pursuant to paragraph (1) shall focus
only on the specific substance in a specific product part that gives
rise to reasonable cause to believe that the specific electronic
device is prohibited from sale pursuant to Section 25214.10.
(3) A manufacturer's failure to submit documentation required by
this subdivision is not grounds for prohibiting the sale of an
electronic device pursuant to Section 25214.10.
(4) The department shall treat as confidential any information
provided pursuant to this section that is a trade secret and that is
identified as a trade secret at the time of submission by a
manufacturer, in the same manner as the procedures adopted by the
department pursuant to Section 25173 with regard to hazardous waste
handling and disposal. Any information that is not a trade secret, or
that is not identified by the manufacturer as a trade secret, shall
be made available to the public upon request pursuant to the
California Public Records Act (Chapter 3.5 (commencing with Section
6250) of Division 7 of Title 1 of the Government Code).
(g) Notwithstanding Section 42474 of the Public Resources Code, a
fine or penalty shall not be assessed on a retailer who unknowingly
sells, or offers for sale, in this state a covered electronic device
for which the covered electronic waste recycling fee has not been
collected or paid, if the failure to collect the fee was due to the
failure of the State Board of Equalization to inform the retailer
that the electronic device was subject to the fee.
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.