ASSEMBLY THIRD READING

ATR Bill Id:AB 1509

Author:(Mullin and Berman)

As Amended Ver:May 1, 2019

Majority vote

SUMMARY:

Establishes the Lithium-Ion Battery Recycling Program within the California Department of Resources, Recycling, and Recovery (CalRecycle) that requires manufacturers of lithium-ion batteries to provide convenient collection, transportation, and disposal of lithium-ion batteries.

Major Provisions

COMMENTS:

Regulation of batteries: Disposal of batteries in the trash or household recycling collection bins intended to receive other non-hazardous waste and/or recyclable material is prohibited by law. Many types of batteries, regardless of size, exhibit hazardous characteristics and are considered hazardous waste when they are discarded. These include single use alkaline and lithium batteries, and rechargeable lithium metal, nickel cadmium, and nickel metal hydride batteries of various sizes (AAA, AA, C, D, button cell, 9-Volt, and small sealed lead-acid batteries).

Lithium-ion batteries: Lithium-ion batteries are widely used in portable electronics like laptops, smart phones, digital cameras, game consoles, and cordless power tools. All batteries, including lithium-ion batteries, are considered hazardous waste in California when they are discarded. All batteries in California that are intended for disposal must be recycled, or taken to a household hazardous waste disposal facility, a universal waste handler, or an authorized recycling facility.

Product stewardship: Product stewardship, also known as Extended Producer Responsibility (EPR), is a strategy to place a shared responsibility for end-of-life product management on the producers and all entities involved in the product chain, instead of the general public. Product stewardship encourages product design changes that minimize negative impacts on human health and the environment at every stage of the product's lifecycle. This allows the costs of treatment and disposal to be incorporated into the total cost of a product. It places primary responsibility on the producer, or brand owner, who makes design and marketing decisions. AB 1509 sets up an EPR program for lithium-ion batteries and sets recycling rates for retailers for products that contain lithium-ion batteries. The bill has two main goals: to reduce (ideally eliminate) the amount of lithium-ion batteries that are being illegally sent to solid waste landfills by consumers and to increase the recycling of lithium-ion batteries. This bill starts with the structure of an EPR program, however, there are several open questions and outstanding issues. It is important to note that recent EPR legislation has been heavily negotiated over a period of a year or two. Because AB 1509 is the first bill setting up an EPR program for lithium-ion batteries, it is understandable that there is additional work to be done.

Outstanding Issues: The authors will want to clarify that the EPR program must comply with all applicable laws and regulations at the state and federal level. Like other EPR programs, this bill will need to address certain elements of the stewardship program, such as ensuring that manufacturers and retailers provide CalRecycle and the Department of Toxic Substances Control with whatever information they need, ensure there is a public outreach component, and include enforcement provisions for noncompliance. Lastly, the bill currently states the Legislature's intent to amend the Electronic Waste Recycling Act of 2003 to allow lithium-ion batteries to be included. The authors will want to continue to work with stakeholders to pursue more definitive options, such as allowing a stewardship plan to have an alternative compliance path that includes voluntary participation in the state E-Waste program.

According to the Author:

"Assemblymember Berman, Senator Hill and I introduced AB 1509 in response to the fire caused by a lithium-ion battery at the Shoreway Facility in San Mateo County, which caused $8.5 million in damages that shut down the facility for 90 days and took over a year to restore. But the cost didn’t stop there. After the fire, the insurance premium at the facility went from $100,000+ to over $1 million a year, due to ongoing and increasing risk of fire caused by lithium-ion batteries in the waste stream. Should another incident occur at the facility it would be uninsurable.

With over a half million Li-ion batteries sold last year, and the number of batteries on the market expected to double in the next seven years, the quantity of Li-ion batteries found in the waste stream will only increase. It would be short-sighted to ban Li-ion batteries from the myriad of products that they power in our consumer products, but it is reasonable and necessary to include the manufacturers and retailers of these products in our effort to properly recycle them and reduce their improper disposal."

Arguments in Support:

According to Rethink Waste, "AB 1509 would help reduce the fire and safety risk these batteries pose by ensuring their proper disposal. Manufacturers and retailers must take more responsibility for the products they create if we are going to protect our workers, communities, and waste management infrastructure from battery-related fires."

Arguments in Opposition:

According to the Consumer Technology Association (CTA), "CTA understands and shares the Assembly’s concerns regarding the risks associated with mishandling of lithium-ion batteries. CTA’s members, as demonstrated through our support of the Avoid the Spark^TM campaign, are committed to addressing safety concerns related to lithium-ion batteries. However, the amended language of AB1509 is not the right solution to those challenges and we respectfully oppose the bill."

FISCAL COMMENTS:

According to the Assembly Appropriations, enactment of this bill could result in costs to CalRecycle of approximately $620,000 per year to oversee the establishment and implementation of the stewardship program, and $500,000 in contract funds for waste characterization studies or other mechanisms to estimate the disposals of these products.

VOTES:

ASM ENVIRONMENTAL SAFETY AND TOXIC MATERIALS: 6-0-3

YES: Quirk, Kalra, Bauer-Kahan, Cristina Garcia, Holden, Muratsuchi

ABS, ABST OR NV: Melendez, Dahle, Mathis

ASM NATURAL RESOURCES: 8-0-3

YES: Friedman, Chau, Eggman, Cristina Garcia, Limón, McCarty, Muratsuchi, Mark Stone

ABS, ABST OR NV: Flora, Mathis, Melendez

ASM APPROPRIATIONS: 13-0-5

YES: Gonzalez, Bloom, Bonta, Calderon, Carrillo, Chau, Eggman, Gabriel, Eduardo Garcia, Maienschein, Petrie-Norris, Quirk, Robert Rivas

ABS, ABST OR NV: Bigelow, Brough, Diep, Fong, Obernolte

UPDATED:

VERSION: May 1, 2019

CONSULTANT: Josh Tooker / E.S. & T.M. / (916) 319-3965 FN: 0000562

Date of Hearing: May 16, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 1509

Author:(Mullin) – As Amended Ver:May 1, 2019

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill establishes the Lithium-Ion Battery Recycling Program (Program) in CalRecycle. Specifically, this bill:

1. Defines "covered battery" as a lithium-ion battery or battery pack that is sold separately or with a product.

2) Defines "covered battery-embedded product" as a product containing a lithium-ion battery or battery pack that is not designed to be removed from the product by the consumer.

1. Defines “covered product” as a covered battery or covered battery-embedded product.
2. Defines "covered entity" as any of the following:

a) The person or company that manufactures a covered product and that sells, offers for sale, or distributes the covered batteries in the state.

b) If there is no person that meets the description in (a), the covered entity is the person or company that imports the covered product into the state for sale or distribution.

c) If there is no person that meets the description in (a) or (b), the covered entity is the person or company that sells, offers for sale or distributes the covered product in the state.

1. Defines "stewardship program" as a program established by manufacturers for the free and convenient collection, transportation and disposal of covered batteries.
2. Requires a covered entity, by March 1, 2021, to provide CalRecycle with a list of the covered products it sells or offers for sale in the state and the total number of each covered product it sold in the state the prior year. Requires a covered entity or a stewardship organization on behalf of a covered entity or entities to update the list annually.
3. Requires covered entities to pay an administrative fee to CalRecycle, beginning July 1, 2021, and every three months thereafter, to be deposited into the newly established Lithium-Ion Battery Recycling Cost of Implementation Account (Account). Authorizes funds in the Account to be spent, upon appropriation by the Legislature, by CalRecycle or another agency to assist in the regulatory activities necessary to enforce the Program and reimburse any loans for start-up costs.
4. Requires covered entities to achieve specified annual collection and recycling rates, based on the total number of covered products sold in the previous year and a reasonable projection of covered products discarded in the state determined by CalRecyle.
5. Requires covered entities to establish a stewardship program for covered batteries independently or as part of a group of entities through membership in a stewardship organization.
6. Authorizes a covered entity to achieve the recycling rates mandated in the bill through any of the following mechanisms:
7. A take-back program for covered battery-embedded products offered to consumers through collection receptacles or a mail-back program.
8. A deposit system, in which the covered entity charges a refundable deposit sufficient to encourage recovery of a covered battery-embedded product sold by the covered entity.
9. Participating in an existing battery recycling program that includes covered batteries and that may include covered battery-embedded products if CalRecycle determines that inclusion of covered battery-embedded products in that battery recycling program would accomplish the intent of the program.
10. Requires CalRecycle to adopt regulations by January 1, 2022.

FISCAL EFFECT:

CalRecycle costs of approximately $620,000 per year to oversee the establishment and implementation of the stewardship program and $500,000 in contract funds for waste characterization studies or other mechanisms to estimate the disposals of these products.

The fund will be the Integrated Waste Management Account until funds from the Lithium-Ion Battery Recycling Cost of Implementation Account, established by this bill, are appropriated.

COMMENTS:

1. Purpose. This bill establishes an extended producer responsibility (EPR) program for lithium-ion batteries and sets recycling rates for products that contain lithium-ion batteries. The bill has two main goals: to reduce the number of lithium-ion batteries that are illegally sent to solid waste landfills by consumers and to increase the recycling of lithium-ion batteries.
2. Background. Batteries are prohibited from disposal in the trash or household recycling collection bins intended to receive other non-hazardous waste or recyclable materials. Most batteries, regardless of size, are considered universal waste or hazardous waste when they are discarded. These include single use alkaline and lithium batteries and rechargeable lithium metal, nickel-cadmium and nickel-metal-hydride batteries of various sizes.

Lithium-ion batteries are commonly used in portable electronics like laptops, smart phones, digital cameras, game consoles and cordless power tools. Like other batteries, lithium-ion batteries are considered hazardous waste in California at the end of the batteries’ life. Batteries are hazardous due to the metals and other toxic or corrosive materials they contain; these metals also make batteries a potentially valuable source of recyclable materials. Under state law and regulations, batteries must be taken to a household hazardous waste disposal facility, a universal waste handler or an authorized recycling facility.

1. Product Stewardship. Product stewardship, also known as EPR, is the concept of sharing responsibility for end-of-life product management among all entities involved in the product’s life, from production to disposal (or recycling). Product stewardship encourages product design changes to minimize harm to human health and the environment at every stage of the product's lifecycle. This allows the costs of treatment and disposal to be incorporated into the total cost of a product. It places primary responsibility on the producer or brand owner, since they make design and marketing decisions. It also encourages the market to truly reflect the environmental costs of a product. CalRecycle has developed a product stewardship framework and checklists to guide statutory proposals to allow CalRecycle and other stakeholders to implement product stewardship programs.

There are several statewide product stewardship programs in California, all of which are overseen by CalRecycle. They include programs for carpet, paint, mattresses and pharmaceuticals.

Analysis Prepared by: Jennifer Galehouse / APPR. / (916) 319-2081

Date of Hearing: April 22, 2019

ASSEMBLY COMMITTEE ON NATURAL RESOURCES

Laura Friedman, Chair

ABPCA Bill Id:AB 1509 (

Author:Mullin) – As Amended Ver:April 1, 2019

SUBJECT: Solid waste: lithium-ion batteries

SUMMARY: Establishes the Lithium-Ion Battery Recycling Program (Program) within the California Department of Resources, Recycling, and Recovery (CalRecycle) that requires manufacturers of lithium-ion batteries to provide convenient collection, transportation, and disposal of lithium-ion batteries.

EXISTING LAW:

1. Establishes the Rechargeable Battery Recycling Act (Act), which requires every retailer to have a system in place, on or before July 1, 2006, for the acceptance and collection of used rechargeable batteries for reuse, recycling, or proper disposal.
   
2. Establishes the Electronic Waste Recycling Act to create a program for consumers to return, recycle, and ensure the safe and environmentally-sound disposal of “covered devices” (i.e., video display devices) that are hazardous wastes when discarded.
   
3. Establishes the Cell Phone Recycling Act, which requires all retailers of cellular phones to have a system in place for the collection, reuse, and recycling of cell phones and requires the Department of Toxic Substances Control (DTSC) to provide information on cell phone recycling.
4. Establishes the Hazardous Waste Control Law and requires DTSC to oversee the management of hazardous waste.
5. Establishes the Integrated Waste Management Act and requires CalRecycle to oversee the management of solid waste.

THIS BILL:

1) Defines "covered battery" as a lithium-ion battery or battery pack that is sold separately or is sold with an electronic product and is removable from the electronic product.

2) Defines "covered battery-embedded product" as a product containing a lithium-ion battery or battery pack that is not designed to be removed from the electronic product by the consumer.

3) Defines "manufacturer" as any of the following:

a) The person or company that manufactures covered batteries and that sells, offers for sale, or distributes the covered batteries in the state; or

b) If there is no person that meets the description in (a), then the manufacturer is the person or company that imports the covered batteries into the state for sale or distribution; or

c) If there is no person that meets the description in (a) or (b), then the manufacturer is the person or company that sells the covered batteries in the state.

4) Defines "retailer" as a person or company who sells, offers for sale, imports, or distributes a covered battery-embedded product in the state.

5) Defines "Program" as the Lithium-Ion Battery Recycling Program.

6) Defines "Stewardship program" as a program established by manufacturers for the free and convenient collection, transportation, and disposal of covered batteries.

7) Requires, by March 1, 2021 and by March 1 each year thereafter, CalRecycle to track the total number of covered batteries and the total number of covered battery-embedded products disposed of in the state in the previous year.

8) Requires manufacturers and retailers to achieve the following recycling rates for covered batteries and covered battery-embedded products, based on the total number of covered batteries and covered battery-embedded products disposed of in the previous year:

a) Twenty-five percent by December 31, 2025;

b) Fifty percent by December 31, 2028;

c) Seventy-five percent by December 31, 2013; and,

d) Ninety percent by December 31, 2034.

9) Requires manufacturers to establish and implement a stewardship program for covered batteries independently or as part of a group of manufacturers through membership in a stewardship organization.

10) Requires, by January 1, 2022, CalRecycle to adopt regulations requiring manufacturers to establish or join a stewardship program for covered batteries.

11) Authorizes a retailer to achieve the recycling rates mandated in the bill through any of the following mechanisms:

a) A take-back program for covered battery-embedded products offered to consumers at the retail location or through a mail-back program;

b) A deposit system, where the retailer charges a refundable deposit sufficient to encourage recovery of a covered battery-embedded product sold by the retailers; or,

c) Participating in an existing battery recycling program, that includes covered batteries, may include covered battery-embedded products if CalRecycle determines that inclusion of covered battery-embedded products in that battery recycling program would accomplish the intent of the program.

FISCAL EFFECT: Unknown

COMMENTS:

1. Author’s statement:

Lithium-ion (Li-ion) batteries are increasingly common in our everyday products. Call2Recycle’s data estimates California consumes 64 million Li-ion batteries, or 1.63 batteries per Californian, annually.

When improperly disposed of, these batteries pose a serious fire, health, and safety hazard. As the increased rate of consumption has led to higher levels of batteries that end up in the waste stream, an alarming number of fires have resulted at our material recovery facilities (MRFs), transfer stations, waste collection trucks, and landfills. These fires cause immense damage to cities’ and counties’ waste collection and processing vehicles, equipment, and facilities while also endangering the lives of their workers.

AB 1509 would create a recycling program for both loose Li-ion batteries and ones embedded in products to prevent them from being improperly disposed of in the waste stream. Segregating them from our waste stream will significantly reduce the fire and safety risks these batteries impose.

1. Battery dangers. The lithium-ion batteries embedded in most rechargeable electronic gadgets, from children’s toys to electronics to vape pens, can explode and ignite whatever is nearby when bent or crushed. The batteries pose a risk throughout their life. Apple stores in Switzerland, Spain, and the Netherlands experienced battery fires last year.
   
   While some products enable consumers to remove the battery prior to disposal, many make them extremely difficult to remove, including Apple’s popular products. It is likely that they are designed this way to discourage at-home or inexpensive repair and force consumers to bring their products back to the manufacturer for more costly (and profitable) repair or replacement. Additionally, safer product design isn’t compatible with the sleek, thin shape that consumers expect in electronic devices. The shielding required to make the batteries safer adds bulk. In the case of Apple’s wireless AirPods, the batteries are essentially impossible to remove, because they contain three separate batteries, each contained within sealed plastic. In one example provided by the Washington Post, it took a trained recycler 40 minutes to remove the battery from one iPad. Some manufacturers, like HP, have chosen to make products that are easy to disassemble for repair and recycling.
   
   When lithium-ion batteries, either contained in a product or loose, enter the waste stream, they can cause serious fires throughout the waste handling and disposal process. These fires pose a significant threat to the health and safety of workers. Just last month, a recycling worker was injured in Oakland as he loaded a curbside recycling bin into a truck and an “unknown item” exploded. Witnesses reported that the explosion threw the worker into the air. He was treated for “non-life threatening injuries.” Earlier this month, a garbage truck driver near San Diego dumped the truck’s contents into the highway when he realized the load had ignited. In 2016, the Shoreway Environmental Center, a recycling and transfer station in San Carlos, experienced a 4-alarm fire likely caused by a lithium-ion battery that caused $8.5 million in damages. Following a fire, facility operators face significant challenges finding and maintaining proper insurance. In March 2018, the California Product Stewardship Council surveyed its members about waste facility fires. They received 22 responses from California waste facilities. Twenty-one reported facility fires; 56% reported that fires were due to batteries.
   

Universal waste. Universal wastes are hazardous wastes that are widely produced by households and many different types of businesses. Universal wastes include items like televisions, computers, and other electronic devices, as well as batteries, fluorescent lamps, and mercury thermostats. DTSC’s hazardous waste regulations identify seven categories of hazardous wastes that can be managed as universal wastes: electronic devices; household batteries; fluorescent tubes and bulbs; mercury-containing equipment such as thermostats and thermometers; cathode ray tubes (CRTs) from televisions and computer monitors; and, non-empty aerosol cans. Any unwanted item that falls within one of these waste streams can be handled, transported, and recycled following the requirements of the state’s universal waste regulations instead of the more stringent requirements for hazardous waste.

California’s Universal Waste Rule allows individuals and businesses to transport, handle, and recycle universal wastes less stringently than other hazardous wastes. Universal waste standards are less complex and easier to comply with, in an attempt to ensure that they are managed safely and are not disposed of in the trash.

1. Battery regulation. Batteries are prohibited from disposal in the trash or household recycling collection bins intended to receive other non-hazardous waste or recyclable materials. Most batteries, regardless of size, are considered universal waste or hazardous waste when they are discarded. These include single use alkaline and lithium batteries and rechargeable lithium metal, nickel cadmium, and nickel metal hydride batteries of various sizes.

If batteries end up in the trash or a recycling bin, owners/operators of solid waste transfer stations, municipal landfills, and recycling centers who discover batteries in the waste or recyclable materials are required to remove and manage the batteries separately. The facility that removes the batteries from the municipal solid waste stream or recyclable materials legally becomes the generator of the hazardous waste batteries and must comply with the state’s hazardous waste management regulations. Facilities that do not properly manage hazardous waste may be subject to regulatory enforcement and may be liable for monetary penalties.

Depending on the type of battery and applicable management requirements, batteries must be sent to a facility permitted to accept hazardous waste batteries, universal wastes, or spent lead acid batteries. Only facilities that have a DTSC permit or other type of authorization to treat, store, or dispose of hazardous wastes may accept hazardous waste. Facilities that do not have a DTSC permit may accept and store universal waste batteries and spent lead acid batteries if they operate according to the regulations specifically tailored for those types of batteries.

1. Lithium-ion batteries. Lithium-ion batteries are commonly used in portable electronics like laptops, smart phones, digital cameras, game consoles, and cordless power tools. Like other batteries, lithium-ion batteries are considered hazardous waste in California at the end of their life. Batteries are hazardous due to the metals and other toxic or corrosive materials they contain; these metals also make batteries a potentially valuable source of recyclable materials. Under state laws and regulations, batteries must be taken to a household hazardous waste disposal facility, a universal waste handler, or an authorized recycling facility.

According to CalRecycle's 2014 Waste Characterization Study, batteries, which include car, flashlight, small appliance, watch, and hearing aid batteries, represented 11,887 tons (0.003%) of California's overall disposed waste stream. This figure does not distinguish between single-use and reusable batteries. As noted above, no batteries should be entering the state’s landfills.

1. California Rechargeable Battery Recycling Act. Most portable electronic devices use rechargeable batteries and millions of rechargeable batteries are sold in California each year. In 2005, to help promote proper disposal of rechargeable batteries by the public, the Act [AB 1125 (Pavley), Chapter 572, Statutes of 2005] requires retailers to have a mechanism to accept all rechargeable batteries from consumers for recycling.

The Act applies to a retailer, defined as "a person who makes a retail sale of a rechargeable battery to a consumer in the state." A sale includes, but is not limited to, a transaction conducted through sales outlets, catalogs, or the internet. For the purposes of the Act, a consumer can be an individual, business, corporation, limited partnership, nonprofit organization, or governmental entity, but not a person who purchases batteries in a wholesale transaction.

Large chain supermarkets and persons (including corporations or franchisees) who have less than one million dollars annually in gross sales are not considered "retailers" under the Act; therefore, these businesses are not subject to the Act’s requirements. Also, sales of rechargeable batteries that are contained in, or packaged with, a battery-operated device are not subject to the Act. However, a retailer selling replacement batteries for such devices must comply.

The Act requires DTSC to survey battery handling and recycling facilities and post on its website, by July 1 of each year, the estimated amount of each type of rechargeable batteries returned for recycling. DTSC relies on data voluntarily submitted by the major California battery recyclers to estimate how many rechargeable batteries, by type (e.g., nickel-cadmium, nickel metal hydride, etc.), are collected in each calendar year.

According to DTSC's website, the following are approximate quantities of rechargeable batteries collected for recycling in California in 2017: 400,000 pounds of nickel cadmium batteries; 500,000  pounds of lithium ion batteries; 1.1 million pounds of nickel metal hydride batteries; and, 2.3 million pounds of small lead acid batteries.

It is difficult to accurately estimate the rechargeable batteries collected for recycling in California. Some battery handlers and recyclers do not track the state from which batteries are collected. Batteries contained in electronic devices that are recycled are not counted separately but may represent a significant portion of the total quantity. There may be duplicate data as some battery handlers collect batteries from other collection points. Finally, California law does not require battery handlers or recyclers to report the number or weight of batteries collected for recycling.

1. Product Stewardship. Product stewardship, also known as Extended Producer Responsibility (EPR), is the concept of sharing responsibility for end-of-life product management between all entities involved in the product’s life, from production to disposal (or recycling), instead of the public and local governments. Product stewardship encourages product design changes to minimize a negative impact on human health and the environment at every stage of the product's lifecycle. This allows the costs of treatment and disposal to be incorporated into the total cost of a product. It places primary responsibility on the producer, or brand owner, since they make design and marketing decisions. It also encourages the market to truly reflect the environmental costs of a product. CalRecycle has developed a product stewardship framework and checklists to guide statutory proposals that would allow CalRecycle and other stakeholders to implement product stewardship programs.

There are several statewide product stewardship programs in California, all of which are overseen by CalRecycle. They include programs for carpet, paint, and mattresses. In 2018, SB 212 (Jackson), Chapter 1004, Statutes of 2018, was enacted to establish an EPR program for home-generated pharmaceutical waste and sharps waste.

This bill establishes an EPR program for lithium-ion batteries and sets recycling rates for retailers for products that contain lithium-ion batteries. The bill has two main goals: to reduce the number of lithium-ion batteries that are being illegally sent to solid waste landfills by consumers and to increase the recycling of lithium-ion batteries.

1. Outstanding issues. The authors may wish to consider whether updating and revising the existing Rechargeable Battery Recycling Act to remove the current exemptions for batteries within a product and improve the effectiveness, including establishing enforcement provisions, of the Act would be a simpler way to achieve the goals of the bill. It is not clear why the state needs two different programs to manage rechargeable batteries. Similarly, the state has the Electronic Waste Recycling Act, which is an established EPR program for electronic devices with display screens that are 4 inches or larger. In 2018, CalRecycle published the “Future of Electronic Waste Recycling in California,” which recommends that the program should be expanded to include revising the definition to reflect the European Union’s Waste Electrical and Electronic Equipment Directive definition of electronic products (devices that require batteries or contain a power cord), with initial implementation priority given to products containing a battery or mercury lamp. This change would accomplish the goals of this bill without the creation of an entirely new program. (Such a change would also require a 2/3 vote of the Legislature, because the program includes a fee.)
   
   If the authors and the Legislature determine that a new product stewardship program is the best approach for lithium-ion batteries, there are several outstanding issues that will need to be addressed if the bill moves forward. For example, is CalRecycle the appropriate state entity to implement this program? CalRecycle does have experience overseeing EPR programs for non-hazardous wastes. However, DTSC has regulatory authority over the batteries in the waste stream. Like other EPR programs, this bill will need to address certain elements of the stewardship program, such as ensuring that manufacturers and retailers provide CalRecycle and DTSC with whatever information they need, include a public outreach component, and include enforcement provisions for noncompliance. In order to set the recycling rates, the bill uses a baseline of the number of lithium-ion batteries disposed of in solid waste landfills; however; these batteries are not legally permitted be disposed of in landfills. The baseline for landfill disposal should be zero. The authors may wish to work with CalRecycle, DTSC, and stakeholders to determine an appropriate baseline. Lastly, the bill currently states the Legislature's intent to amend the Electronic Waste Recycling Act of 2003 to allow lithium-ion batteries to be included. The authors may wish to continue to work with stakeholders to pursue more definitive options.
   
   It is not clear that consumers understand the fire risk associated with products containing lithium ion batteries. The author may wish to consider requiring clear labeling on all products containing these batteries identifying the risk of fire and recommending proper disposal.
   
2. Double referral. This bill was also referred to the Environmental Safety and Toxic Materials Committee. It was passed on April 9^th with a vote of 6-0.
   

REGISTERED SUPPORT / OPPOSITION:

Support

ACR Solar International Corp.
Alameda County Board of Supervisors
California League of Conservation Voters
California Product Stewardship Council
California Refuse Recycling Council
California Resource Recovery Association
California State Association of Counties
Californians Against Waste
CEAR, Inc.
Cigarette Butt Pollution Project
City of Burbank
City of Roseville
City of San Carlos
City of San Mateo
City of Thousand Oaks
Clean Water Action
County of Alameda
Ecology Center 
Environmental Working Group
GreenWaste Recovery, Inc.
Los Angeles Alliance for a New Economy
Los Angeles County Solid Waste Management Committee/Integrated Waste
Management Task Force
Marin County Hazardous Hazardous And Solid Waste Management Joint Powers Authority
Marin Household Hazardous Waste Facility
Monterey Regional Waste Management District
Napa Recycling and Waste Services
National Stewardship Action Council
Potential Industries, Inc.
Recology
Republic Services 
Rethink Waste
Sanitation Districts of Los Angeles County
Save Our Shores
Sierra Club California
Solid Waste Association of North America
South San Francisco Scavenger Company and Blue Line Transfer
StopWaste
The Coastodian
West Bay Sanitary District
Zanker Recycling
Zero Waste Company
Zero Waste Sonoma

Opposition

Consumer Technology Association
PRBA - The Rechargeable Battery Association

Analysis Prepared by: Elizabeth MacMillan / NAT. RES. /

Date of Hearing: April 9, 2019

ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS

Bill Quirk, Chair

ABPCA Bill Id:AB 1509 (

Author:Mullin) – As Amended Ver:April 1, 2019

SUBJECT: Solid waste: lithium-ion batteries

SUMMARY: Establishes the Lithium-Ion Battery Recycling Program within the California Department of Resources, Recycling, and Recovery (CalRecycle) that requires manufacturers of lithium-ion batteries to provide convenient collection, transportation, and disposal of lithium-ion batteries. Specifically, this bill:

1) Defines "covered battery" as a lithium-ion battery or battery pack that is sold separately or is sold with an electronic product and is removable from the electronic product.

2) Defines "covered battery-embedded product" as a product containing a lithium-ion battery or battery pack that is not designed to be removed from the electronic product by the consumer.

3) Defines "manufacturer" as any of the following:

a) The person or company that manufactures covered batteries and that sells, offers for sale, or distributes the covered batteries in the state; or

b) If there is no person that meets the description in (a), then the manufacturer is the person or company that imports the covered batteries into the state for sale or distribution; or

c) If there is no person that meets the description in (a) or (b), then the manufacturer is the person or company that sells the covered batteries in the state.

4) Defines "retailer" as a person or company who sells, offers for sale, imports, or distributes a covered battery-embedded product in the state.

5) Defines "Program" as the Lithium-Ion Battery Recycling Program.

6) Defines "Stewardship program" as a Program established by manufacturers for the free and convenient collection, transportation, and disposal of covered batteries.

7) Requires, by March 1, 2021 and by March 1 each year thereafter, CalRecycle to track the total number of covered batteries and the total number of covered battery-embedded products disposed of in the state in the previous year.

8) Requires manufacturers and retailers to achieve the following recycling rates for covered batteries and covered battery-embedded products, based on the total number of covered batteries and covered battery-embedded products disposed of in the previous year:

a) Twenty-five percent by December 31, 2025;

b) Fifty percent by December 31, 2028;

c) Seventy-five percent by December 31, 2013; and,

d) Ninety percent by December 31, 2034.

9) Requires manufacturers to establish and implement a stewardship program for covered batteries independently or as part of a group of manufacturers through membership in a stewardship organization.

10) Requires, by January 1, 2022, CalRecycle to adopt regulations requiring manufacturers to establish or join a stewardship program for covered batteries.

11) Authorizes a retailer to achieve the recycling rates mandated in the bill through any of the following mechanisms:

a) A take-back program for covered battery-embedded products offered to consumers at the retail location or through a mail-back program;

b) A deposit system, where the retailer charges a refundable deposit sufficient to encourage recovery of a covered battery-embedded product sold by the retailers; or,

c) Participating in an existing battery recycling program, that includes covered batteries, may include covered battery-embedded products if CalRecycle determines that inclusion of covered battery-embedded products in that battery recycling program would accomplish the intent of the program.

EXISTING LAW:

1) Enacts the Rechargeable Battery Recycling Act of 2006, that requires every retailer to have a system in place, on or before July 1, 2006, for the acceptance and collection of used rechargeable batteries for reuse, recycling, or proper disposal. (Public Resources Code (PRC) § 42451-42456)

2) Enacts the Electronic Waste Recycling Act of 2003, establishing a program for consumers to return, recycle, and ensure the safe and environmentally sound disposal of video display devices, such as televisions and computer monitors, that are hazardous wastes when discarded. (PRC § 42460 et seq.)

3) Enacts the Cell Phone Recycling Act which requires all retailers of cellular telephone to have in place a system for the collection, reuse, and recycling of cell phones and requires the Department of Toxic Substances Control (DTSC) to provide information on cell phone recycling. (PRC § 42490-42499)

4) Creates the Hazardous Waste Control Law and provides the DTSC with the responsibility for overseeing the management of hazardous waste in California. (Health and Safety Code § 25100 et seq).

FISCAL EFFECT: Unknown.

COMMENTS:

Need for the bill: According to the author, "Assemblymember Berman, Senator Hill and I introduced AB 1509 in response to the fire caused by a lithium-ion battery at the Shoreway Facility in San Mateo County, which caused $8.5 million in damages that shut down the facility for 90 days and took over a year to restore. But the cost didn’t stop there. After the fire, the insurance premium at the facility went from $100,000+ to over $1 million a year, due to ongoing and increasing risk of fire caused by lithium-ion batteries in the waste stream. Should another incident occur at the facility it would be uninsurable.

With over a half million Li-ion batteries sold last year, and the number of batteries on the market expected to double in the next seven years, the quantity of Li-ion batteries found in the waste stream will only increase. It would be short-sighted to ban Li-ion batteries from the myriad of products that they power in our consumer products, but it is reasonable and necessary to include the manufacturers and retailers of these products in our effort to properly recycle them and reduce their improper disposal."

Universal Waste: Universal wastes are hazardous wastes that are widely produced by households and many different types of businesses. Universal wastes include televisions, computers, and other electronic devices as well as batteries, fluorescent lamps, mercury thermostats, and other mercury containing equipment, among others. The hazardous waste regulations (California Code of Regulations (CCR), Title 22, Division 4.5, Chapter 11 Section 66261.9) identify seven categories of hazardous wastes that can be managed as universal wastes. Any unwanted item that falls within one of these waste streams can be handled, transported, and recycled following the simple requirements set forth in the universal waste regulations (CCR, Title 22, Division 4.5, Chapter 23) versus the more stringent requirements for hazardous waste. Universal wastes include: electronic devices, household batteries, fluorescent tubes and bulbs, mercury-containing equipment such as thermostats and thermometers, cathode ray tubes (CRTs) from televisions and computer monitors, and non-empty aerosol cans.

Electronic waste (E-Waste): E-waste refers to any unwanted electronic device or CRT and is classified as universal waste. E-waste frequently contains hazardous materials, predominantly lead and mercury, and is produced by households, businesses, governments, and industries. Each year in California, hundreds of thousands of computers, monitors, copiers, fax machines, printers, televisions, and other electronic items become "obsolete" in the eyes of consumers. Rapid advances in technology and an expanding demand for new features accelerate the generation of "old" electronic equipment ("e-waste"). The result is a growing challenge for businesses, residents, and local governments as they search for ways to reuse, recycle, or properly dispose of this equipment. To meet this challenge, California enacted the Electronic Waste Recycling Act of 2003, which established the covered electronic waste recycling program to offset the cost of compliantly handling certain unwanted electronic devices.

Electronic Waste Recycling Act (EWRA): The EWRA was designed to establish a new program for consumers to return, recycle, and ensure the safe and environmentally sound disposal of video display devices, such as televisions and computer monitors that are hazardous wastes when discarded. On January 1, 2005, California consumers began paying a fee of $6 to $10 at the time they purchase certain video display devices. Those fees are deposited into a special account that is used to pay qualified e-waste collectors and recyclers to cover their costs of managing e-waste.

Two of the major goals of the EWRA was to limit the amount of toxic substances in certain electronic products sold in California and to establish a funding system for the collection and recycling of discarded covered electronic devices.
 

The Cell Phone Recycling Act of 2004: Consumers usually replace their cellular phones about every 18 months. Used cellular phones contain hazardous substances and should not be disposed of with regular household waste. Circuit boards in cellular phones contain arsenic, antimony, beryllium, cadmium, copper, lead, mercury, nickel, and zinc. The rechargeable batteries used with cellular phones contain cobalt, zinc, and copper. The Cell Phone Recycling Act of 2004 AB 2901 (Pavley, Chapter 891, Statutes of 2004) requires retailers to have in place, and promote, a system for accepting and collecting used cellular phones for reuse, recycling, or proper disposal, at no cost to the consumer. This law took effect on July 1, 2006.

Regulation of batteries: Batteries may not be disposed of in the trash or household recycling collection bins intended to receive other non-hazardous waste and/or recyclable materials: it is prohibited by law. Many types of batteries, regardless of size, exhibit hazardous characteristics and are considered hazardous waste when they are discarded. These include single use alkaline and lithium batteries and rechargeable lithium metal, nickel cadmium, and nickel metal hydride batteries of various sizes (AAA, AA, C, D, button cell, 9-Volt, and small sealed lead-acid batteries).

If batteries end up in the trash or a recycling bin, owners/operators of solid waste transfer stations, municipal landfills, and recycling centers, who discover batteries in the waste or recyclable materials are required to remove and manage the batteries separately. The facility that removes the batteries from the municipal solid waste stream or recyclable materials becomes the generator of the hazardous waste batteries and must comply with the hazardous waste management regulations. Facilities that do not properly manage hazardous waste may be subject to regulatory enforcement and may be liable for monetary penalties.

Depending on the type of battery and applicable management requirements, batteries must be sent to a facility permitted to accept hazardous waste batteries, universal wastes, or spent lead acid batteries. Only facilities that have a DTSC permit or other type of authorization to treat, store, or dispose of hazardous wastes may accept hazardous waste batteries. Persons that do not have a DTSC permit may accept and store universal waste batteries and spent lead acid batteries if they operate according to the regulations specifically tailored for those types of batteries.

California’s Universal Waste Rule allows individuals and businesses to transport, handle, and recycle certain common hazardous wastes, termed universal wastes, in a manner that differs from the requirements for most hazardous wastes. The more relaxed requirements for managing universal wastes were adopted to ensure that they are managed safely and are not disposed of in the trash. The universal waste requirements are also less complex and easier to comply with, thereby increasing compliance.

Lithium-ion batteries: Lithium-ion batteries, widely used in portable electronics like laptops, smart phones, digital cameras, game consoles, and cordless power tools. All batteries, including lithium-ion batteries, are considered hazardous waste in California when they are discarded. Batteries are considered hazardous because of the metals and/or other toxic or corrosive materials contained within. Batteries are potentially a valuable source of recyclable metal. All batteries in California that are intended for disposal must be recycled, or taken to a household hazardous waste disposal facility, a universal waste handler, or an authorized recycling facility.

Lithium-ion battery waste: According to CalRecycle's 2014 Waste Characterization Study, batteries, which include car, flashlight, small appliance, watch, and hearing aid batteries, represented 11,887 tons (0.003%) of California's overall disposed waste stream. This figure does not distinguish between single-use and automotive batteries, but it is also likely that automotive Li-ion batteries represent a de minimis amount of this total.

California Rechargeable Battery Recycling Act: Most portable electronic devices use rechargeable batteries, and millions of rechargeable batteries are sold in California each year. California does not allow batteries to be disposed of in the trash because they contain toxic metals such as mercury, lead, cadmium, and nickel. If released, these metals may be harmful to humans and the environment. In 2005, to help promote proper disposal of rechargeable batteries by the public, the Governor signed the California Rechargeable Recycling Act AB 1125 (Pavley, Chapter 572, Statutes of 2005), which requires retailers to have a mechanism to accept all rechargeable batteries from consumers for recycling.

The Rechargeable Battery Recycling Act applies to a retailer, defined in the law as "a person who makes a retail sale of a rechargeable battery to a consumer in the state." A sale includes, but is not limited to, a transaction conducted through sales outlets, catalogs, or the internet. For the purposes of this law, a consumer can be an individual, business, corporation, limited partnership, nonprofit organization, or governmental entity, but not a person who purchases batteries in a wholesale transaction.

Large chain supermarkets and persons (including corporations or franchisees) who have less than one million dollars annually in gross sales are not considered "retailers" under this law’s definition; and therefore, these businesses are not subject to the law’s requirements. Also, sales of rechargeable batteries that are contained in, or packaged with, a battery-operated device are not subject to this law. However, a retailer selling replacement batteries for such devices must comply.

To track how effective this program is, the law requires DTSC to survey battery handling and/or recycling facilities and post on its website, by July 1 of each year, the estimated amount, by weight, of each type of rechargeable batteries returned for recycling in California during the previous calendar year. DTSC receives data voluntarily submitted by the major California battery recyclers to estimate how many rechargeable batteries, by type (e.g., nickel-cadmium, nickel metal hydride, etc.), are collected in each calendar year.

According to DTSC's website, the following are approximate quantities of rechargeable batteries collected for recycling in California in 2017:

   400,000    pounds of nickel cadmium batteries (Ni-Cd)
   500,000    pounds of lithium ion batteries (Li-ion)
1,100,000    pounds of nickel metal hydride batteries (Ni-MH)
2,300,000    pounds of small lead acid batteries (SS Lead Acid)

It is difficult to accurately estimate the rechargeable batteries collected for recycling in California due to the following reasons: some battery handlers and recyclers do not track the state from which batteries are collected; batteries contained within electronic devices that are recycled (e.g., cell phones and laptop computers) are not counted separately but may represent a significant portion of the total quantity; there may be duplicate data as some battery handlers collect batteries from other collection points; and, California law does not require battery handlers or recyclers to report the number or weight of batteries collected for recycling.

Product Stewardship (stewardship): Product stewardship, also known as Extended Producer Responsibility (EPR), is a strategy to place a shared responsibility for end-of-life product management on the producers, and all entities involved in the product chain, instead of the general public. Product stewardship encourages product design changes that minimize a negative impact on human health and the environment at every stage of the product's lifecycle. This allows the costs of treatment and disposal to be incorporated into the total cost of a product. It places primary responsibility on the producer, or brand owner, who makes design and marketing decisions. It also creates a setting for markets to emerge that truly reflect the environmental impacts of a product, and to which producers and consumers respond. CalRecycle has developed a product stewardship framework and checklists to guide statutory proposals that would allow CalRecycle and other stakeholders to implement product stewardship programs.

Current State Stewardship Programs: There are several statewide Stewardship programs in California, all of which are overseen by CalRecycle. They include: Carpet Materials Management, Paint Product Management, and Mattress Product Management. In 2018, the Legislature passed and the Governor signed SB 212 (Jackson, Chapter 1004, Statutes of 2018) that enacted an EPR program for home-generated pharmaceutical waste and sharps waste.

AB 1509 sets up an EPR program for lithium-ion batteries and sets recycling rates for retailers for products that contain lithium-ion batteries. The bill has two main goals: to reduce (ideally eliminate) the amount of lithium-ion batteries that are being illegally sent to solid waste landfills by consumers and to increase the recycling of lithium-ion batteries. This bill does start with the structure of an EPR program, however, there are several open questions and outstanding issues. It is important to note that recent EPR legislation has been heavily negotiated over a period of a year or two and AB 1509 is the first bill setting up an EPR program for lithium-ion batteries, so it is understandable that there is work to be done. One of the first questions the author will wish to consider as the bill moves through the process is whether or not an EPR is the right approach or would it be possible to build upon the existing Rechargeable Battery Recycling Act by removing the exemptions for batteries within a product? If the authors, likely involving extensive stakeholder input, decide that an EPR program is the best approach for lithium-ion batteries, they will want to address some outstanding issues.

Outstanding Issues: The authors will want to clarify that the EPR program must comply with all applicable state and federal laws and regulations. This is important because the bill is requiring CalRecycle to administer this EPR program, however; only DTSC has regulatory authority over the batteries once they become a waste. The bill will need to ensure that both CalRecycle and DTSC are reimbursed from the EPR program for their regulatory costs associated with the program. Like other EPR programs, this bill will need to address certain elements of the stewardship program such as ensuring that manufacturers and retailers provide CalRecycle and DTSC with whatever information they need, ensure there is a public outreach component, and include enforcement provisions for noncompliance. In order to set the recycling rates, the bill uses a baseline of the number of lithium-ion batteries disposed of in solid waste landfills, however; these batteries cannot legally be disposed of in these landfills. The authors will want to work with CalRecycle to see if another baseline, such as using sales data, could be more appropriate. Because other EPR programs had interactions with local ordinances, the authors will want to work with stakeholders to see if there are any local ordinances on the horizon and if so, determine how this bill would interact with those ordinances. Lastly, the bill currently states the Legislature's intent to amend the Electronic Waste Recycling Act of 2003 to allow lithium-ion batteries to be included. The authors will want to continue to work with stakeholders to pursue more definitive options, such as allowing a stewardship plan to have an alternative compliance path that includes voluntary participation in the state E-Waste program.

Related legislation:

1) AB 2832 (Dahle, Chapter 822, Statutes of 2018). Requires the Secretary for CalEPA to convene a research group to review and advise the Legislature on policies pertaining to the recovery and recycling of lithium-ion vehicle batteries sold with motor vehicles in the state.

2) SB 212 (Jackson, Chapter 1004, Statutes of 2018). Requires entities that sell drugs or sharps in the state to individually, or with other entities, develop and implement a statewide home-generated drug stewardship plan, or a home-generated sharps waste stewardship plan, or both, for the collection and proper disposal of home-generated drug and sharps waste. Requires CalRecycle to oversee and enforce each stewardship plan.

3) AB 1125 (Pavley, Chapter 572, Statutes of 2005). Enacts the Rechargeable Battery Recycling Act of 2006, and requires retailers of rechargeable batteries, by July 1, 2006, to establish a system for accepting rechargeable batteries for reuse, recycling, or proper disposal.

4) AB 2901 (Pavley, Chapter 891, Statutes of 2004). Enacts the Cell Phone Recycling Act of 2004 and requires all retailers of cellular telephone to have in place a system for the collection, reuse and recycling of cell phones, requires DTSC to provide information on cell phone recycling.

5) SB 20 (Sher, Chapter 526, Statutes of 2003). Enacts the Electronic Waste Recycling Act of 2003 to provide for the convenient recycling of covered electronic devices in California.

REGISTERED SUPPORT / OPPOSITION:

Support

CALIFORNIA PRODUCT STEWARDSHIP COUNCIL (CO-SPONSOR)

CALIFORNIANS AGAINST WASTE (CO-SPONSOR)

RETHINKWASTE (CO-SPONSOR)

ACR SOLAR INTERNATIONAL CORP.
ALAMEDA COUNTY BOARD OF SUPERVISORS
CALIFORNIA REFUSE RECYCLING COUNCIL
CALIFORNIA REFUSE RECYCLING COUNCIL, SOUTHERN DISTRICT
CALIFORNIA REFUSE RECYCLING COUNCIL-NORTHERN DISTRICT (CRRC)
CALIFORNIA RESOURCE RECOVERY ASSOCIATION
CALIFORNIA STATE ASSOCIATION OF COUNTIES
CEAR
CIGARETTE BUTT POLLUTION PROJECT, CITY OF SAN CARLOS
CITY OF BURBANK
CITY OF THOUSAND OAKS
CLEAN WATER ACTION
COASTOADIAN.ORG
ECOLOGY CENTER (BERKELEY)
GREENWASTE RECOVERY 
LOS ANGELES ALLIANCE FOR A NEW ECONOMY
LOS ANGELES COUNTY SOLID WASTE MANAGEMENT COMMITTEE/INTEGRATED WASTE MANAGEMENT TASK FORCE
MARIN COUNTY HAZARDOUS AND SOLID WASTE MANAGEMENT JOINT POWERS AUTHORITY
MARIN HOUSEHOLD HAZARDOUS WASTE FACILITY
NAPA RECYCLING & WASTE SERVICES
NAPA RECYCLING AND WASTE SERVICES
NATIONAL STEWARDSHIP ACTION COUNCIL
POTENTIAL INDUSTRIES
RECOLOGY
REPUBLIC SERVICES INC.
ROSEVILLE; CITY OF
SAN MATEO CITY COUNCIL MEMBER RICK BONILLA
SANITATION DISTRICTS OF LOS ANGELES COUNTY
SAVE OUR SHORES
SIERRA CLUB CALIFORNIA
SOLID WASTE ASSOCIATION OF NORTH AMERICA, CALIFORNIA CHAPTERS
SOUTH BAYSIDE WASTE MANAGEMENT AUTHORITY (SBWMA ) DBA RETHINKWASTE
SOUTH SAN FRANCISCO SCAVENGER COMPANY
STOPWASTE
WEST BAY SANITARY DISTRICT
ZANKER RECYCLING
ZERO WASTE SONOMA

Opposition

NONE ON FILE.

Analysis Prepared by: Josh Tooker / E.S. & T.M. /