Regulatory & Legislative Update

David Weinberg

Bad press for lead …

Beyond Flint: Excessive lead levels found in

almost 2,000 water systems across all 50

states

And bad press for lead battery

recycling

Let’s cover the good news first …

• Final Rule Adopted November 2015

• Ambient air lead limit of .100 µg/m3 on 30 consecutive day average (after 4/1/18)

• Compliance plan submission on exceedance

• Implementation of control measures after three exceedances

• Total enclosures around furnace, refining, casting, lead oxide production, materials storage and handling

• Housekeeping, facility design, and maintenance requirements

• Annual source tests and regular sampling

• Reasonable enforcement provisions

SCAQMD Rule 1420.2 – Metal Melting

NAFTA CEC Recycling Guidelines

• Published February 2016

• BCI had extensive input:

– Recognizes responsible lead battery recycling as an environmental success story

– Incorporates BCI battery packaging and sorting guidelines and BCI supported OSHA eTools

– Onerous EHS Management System appendix removed

DOT Rules Revised

• March 2016 New BCI-backed DOT rules:

– Allow multiple shipper battery collection (e.g.,

milk runs) – no more annual “special permits”

– Allow co-shipments of batteries and fresh packs

Arizona Deposit Cap Eliminated

• March 2016 BCI-backed Arizona law adopted

eliminating $15.00 deposit cap

Work in progress…

– Grandfathers existing battery warning (for

consent agreement parties)

– Will also allow non-parties to petition to seek

permission to use the warning

Proposed Changes to Draft California

Prop 65 Rule reflect BCI Comments

Cal/OSHA Lead Standard Review Continues

• Proposing to significantly tighten the state‟s version of the Federal lead standard.

• By law, standard must be “at least as effective” as Fed. OSHA in preventing “material impairment of health”

• It must be economically feasible – taking into account unreasonable costs

• It must be technologically feasible – must actually be available

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Cal/OSHA Draft MRP Proposal (2012) • Medical Removal

• 1 test ≥ 30 µg/dL; • 2 consecutive tests ≥ 20 µg/dL; or • average over 6 months ≥ 20 µg/dL

• Return: ≤ 15 µg/dL (two consecutive tests)

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Cal/OSHA Draft PEL Proposal (2014)

• PEL - 10 μg/m3

• For all areas • Standard hierarchy of controls

• Considering Secondary Engineering Control Air Limits (SECALs) for battery manufacturers • Higher air-lead limit but mandatory respirators • SECALs in November 10 Draft:

• Battery Assembly (50 μg/m3 initial; 40 after 5 years) • Oxide Production (50/40) • Paste Mixing (50/40) • Grid Pasting and Parting (50/40) • Grid Production & Small Parts Casting (50/30) • Plate Formation (50/30)

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More Work on Li-ion Contamination

Courtesy of Richard Leiby

Li-ion Contamination • IEC 21/879 labeling proposal

– Proposed standard for secondary battery color coding, chemistry symbols (e.g., Pb) and chasing arrows

– Working Group likely to accept key US/BCI comments

– Goal to issue final standard by December 2017

• Concurrently, technical sorting solutions are being investigated by industry

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Ongoing Concerns with Metals Theft Laws

Covering Lead Batteries Retailer exclusion:

California

South Carolina

Utah

Small transaction exclusion

(< 2 batteries):

Florida

No express exclusion:

Delaware

Georgia

North Carolina

Ohio

Tennessee

Vermont

Virginia

CA

Georgia Metals Theft Law • Battery retailers burdened by metals theft law

requirements:

– Registration and annual fees

– Transaction recordkeeping and reporting

– Prohibition on cash transfers

– Limitations on store hours for battery collection

• Many retailers have quit collecting batteries from non-customers

• BCI seeking exemption for transactions under $50.00

• House and Senate each passed a bill

• Conference negotiations ongoing

• Basic provisions similar – Priority chemical identification

• Lead a possible candidate under both bills

• House bill approach to metals favored by BCI

– Priority chemical safety assessment/Alternatives analysis

– Regulatory controls to mitigate hazards (must be technologically and economically feasible)

– Article regulation limited to hazard posed

– State preemption

– Possible OSHA authority overlap

TSCA Reform

Now to the bad news…

Hillary Clinton’s Proposal for Lead

• Presidential Commission on Childhood Lead to write national plan re: eliminating risk of

lead exposure from paint, pipes and soil within five years.

– Emphasis on collaboration between federal, state, local and philanthropic resources, as

well as best prevention practices „based on current science‟

• 275 billion dollar plan to invest in modernizing infrastructure, including drinking and

wastewater

• Update environmental, public health and safety laws by enhancing their criminal

provisions

– Criminal provisions for the SDWA; Lead Disclosure Rule. Increasing penalties elsewhere,

especially with „environmental justice‟ related offenses

Goal: Eliminate lead as a major public health threat within five years

What we face:

Key Legislators

Kevin de León Senate President pro Tempo

Senate District 24

Cristina Garcia Assemblymember

Assembly District 58

Anthony Rendon Speaker of the Assembly

Assembly District 63

Exide Technologies RSR-Quemetco Inc

24 58 63

• $176.6 million loan “to help the community”

• “The Department will hold Exide – and any other responsible party – accountable”

• “In addition, the Governor is directing the Department to evaluate lead-acid batteries through a Hazardous Waste Reduction Initiative. The analysis could result in identifying lead batteries as a "Priority Product" under the Safer Consumer Products program, which will require manufacturers to evaluate the product's health impacts and consider ways to reduce impacts.”

Governor’s Press Release (2/17)

• Federal or State government can recover response costs consistent with NCP

– California law generally consistent with Federal except perhaps no “recycling exemption”

• “Generators” jointly and severally liable for costs

• Contribution actions allowed; litigation nightmare

• But very small exposures generally get “cash out” settlement

Superfund (CERCLA) basics

• “Community Protection and Hazardous Waste Reduction Initiative” – Funds 3 “Pilot Projects” to identify opportunities to

reduce hazardous wastes in CA

• Governor mandated LABs be included – Staff appears inclined to push for “information

gathering” project, looking for “leakage”

• Final report due in June 2017

DTSC – CPHWRI Effort

Safer Consumer Products Program • “Green chemistry” law

– 2014 - DTSC listed chemicals for priority product review • Lead among candidate chemicals

– 2015 - DTSC identified three Priority Products for Alternatives Analysis: • Certain paint strippers, foam mattress products,

and foam spray products

1st Stage Alternatives Analysis • Priority Product Manufacturers Must Conduct

Alternatives Analysis within 180 days of product listing – Question: the chemical necessary (function and

performance)?

– Specific analyses required: • Is there a safer alternative(s)?

• What are the physical chemical hazards, adverse environmental and health impacts, environmental fate outcomes?

• Plan for second stage analysis

2nd Stage Alternatives Analysis – Due 1 year after First Stage AA:

• Exposure assessment (quantities, concentrations, etc.)

• Life cycle analysis

• Economic impact analysis

• Chemical comparison and selection

• Decision to select alternative or retain priority product

– Issued for public comment

– DTSC blesses or rejects final report, or requires report addendum

Potential Regulatory Responses

• Require Supplemental Information from Manufacturer

• Require Notice to Consumers (e.g., hazard traits, proper handling)

• Place Use or End of Life Restrictions on Chemical and Product

• Engineering or Administrative Controls to limit worker exposures

• Ban Priority Product

• Require R&D or fund challenge grant to develop a viable safer alternative

EU End of Life Vehicle Directive • Independent of Battery Directive or REACH

– Sets targets for end of life vehicle recovery/reuse

– Bans use of lead, mercury, cadmium and hexavalent chromium in vehicles

– Creates exception for lead in batteries, but regular review

• Exemption review just released by consultant Oeko

• Concludes li-ion not yet a viable alternative for lead starter and dual system auxiliary batteries (e.g., 48V) – Cold cranking performance limitations

– Voltage range limitations

• Lead recyclability and affordability discussed but not basis of findings

• Recommends – January 1, 2019 phase out of high voltage propulsion lead acid batteries

(75V and above, except certain specialty vehicle applications)

– 3-5 years reexamination of remaining exemptions

• EU Response later this year

Oeko-Institut Report (April 2016)

• SB 93 signed April 20th

• Appropriates $176.6 million to test and clean up communities surrounding Exide‟s smelter

• Requires actions pursuit of “all available remedies against potentially responsible parties, including, but not limited to, cost recovery actions against entities that are potentially responsible, for the costs related to the cleanup and investigation of properties contaminated with lead in the communities surrounding the Exide Technologies facility…”

California SB 93 – Exide Cleanup Loan

• No lead acid battery sales in CA after 1/1/19 if not complied with

• Government-supervised Representative Organization (“RO”) to be established by 7/1/18 to “administer recycling program”

• Initial government approval of plan and budget by 10/1/18, annually thereafter

• “California Recycling Sticker” on every lead-acid battery sold after 1/1/19

• $15-$20 Fee (set by RO) to be charged per battery - not limited to SLI – $1 to state Lead-Acid Battery Cleanup Fund;

– $2 to pay for the RO,

– $13 to be refunded to consumer if returned battery has the California sticker

– Unclear, but remainder apparently to be used to fund all battery recycling., pay local government for ;handling batteries at solid waste facilities and retailers for their expenses.

– Unclear what required if this isn‟t enough.

• Retailer who sells used battery to manufacturer to remit 75% of sale price to RO for deposit into the Fund

AB 2153 – Garcia (Surfaced 3/23/16)

EL SEGUNDO

• Kramer, H. & Co.

•

LOS ANGELES

• Berg Metals Corp.

• California By-Products

• California Smelting & Refining Co.

• Electric Babbitt Metals / Los Angeles Smelting Co.

• Federated Metals Div. (ASARCO)

OAKLAND

• A. Bercovich/Sunset Smelting &Refining Co.

SAN FRANCISCO

• Berg Metals Corp.

• Federated Metals Div. (ASARCO)

• Finn, John, Metal Works

• Gollan Type Metal Co.

• Roto Metals Inc.

• United American Metals

WEST SACRAMENTO

• Smelter Supply Co. / C&S. Battery & Lead Co.

“Ghost Smelters” from USA Today

• Respectful opposition because bill based on misunderstandings

• Support and “believe [these elements] could form the basis of an agreement”: – BCI model deposit-in-lieu-of-trade requirement

– Possible to reach consensus among stakeholders to create a substantial revenue source for clean-up at lead sites

– Support appropriate efforts to monitor recycling program and assure it is working as intended

BCI Public Position on AB 2153 (4/8/16)

• BCI discussing legislative alternatives with legislators and other concerned parties

• Assembly Appropriations Committee consideration in May

• Must be voted from Assembly by June 3

• Senate would then have until August to act

• Legislature adjourns August 31

Prospects for Legislative Action

• Staff not “out to get” lead batteries

– Appear inclined to study “leakage” in CPHWRI,

report next June

– Staff appear inclined to defer Safer Consumer

Products consideration until after CPHWRI report

• But DTSC subject to enormous scrutiny and

pressure, including Independent Review Panel

Turning to DTSC Activities

We have a great story to tell …

99% Battery Lead Recycled

• Most recent EPA LA Lead-in-Air Data

– Airports: 94.33%

– Petroleum Refineries: 1.54%

– Lead Smelters: 1.75%

• 1.67% was from Exide-Vernon

– Battery Plants: 0.25%

• New SCAQMD standards may reduce further

Minimal Air Lead Releases

• In 2014 BCI

adopted a voluntary

blood lead target of

30 µg/dl

• Gains made through

air lead control,

PPE, worker

hygiene, etc.

BCI Workers are Protected

≥40 µg/dl

≥30 µg/dl

≥20 µg/dl

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2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015

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% Battery Plant Workers ≥20 µg/dl

Stop-Start Addresses Greenhouse Gas Concerns

Copyright Johnson Controls 2016

From: Life Cycle Assessment of Lead-based Batteries for Vehicles, PE International for EUROBAT – The European Association of

Battery Manufacturers

Responding to the challenge … • Stay United

• Offer Positive

Alternatives

• Tell Our Story

• Keep Improving

Production & Safety