BILL NUMBER: AB 2398 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 17, 2010
AMENDED IN SENATE JUNE 23, 2010
AMENDED IN ASSEMBLY MAY 28, 2010
AMENDED IN ASSEMBLY APRIL 14, 2010
INTRODUCED BY Assembly Member John A. Perez
FEBRUARY 19, 2010
An act to amend Section 12209 of the Public Contract
Code, and to An act to add Chapter 20
(commencing with Section 42970) to Part 3 of Division 30 of ,
and to repeal Section 42980 of, the Public Resources Code,
relating to recycling.
LEGISLATIVE COUNSEL'S DIGEST
AB 2398, as amended, John A. Perez. Product stewardship:
carpet: public procurement. stewardship: carpet.
(1) The California Integrated Waste Management Act of 1989,
administered by the Department of Resources Recycling and Recovery,
is required to reduce, recycle, and reuse solid waste generated in
the state to the maximum extent feasible in an efficient
cost-effective manner to conserve water, energy, and other natural
resources.
The bill would require, by September 30, 2011, a manufacturer of
carpets sold in this state, individually or through a carpet
stewardship organization, to submit a carpet stewardship plan to the
department, which would be required to include specified elements,
including a funding mechanism that provides sufficient funding to
carry out the plan, including administrative, operational, and
capital costs of the plan. The department
bill would require the funding mechanism to provide for a
carpet stewardship assessment per unit of carpet sold by a
manufacturer, to be paid by each member of the carpet stewardship
organization on and after January 1, 2013.
The bill would require, until January 1, 2013, the Carpet America
Recovery Effort (CARE), a 3rd-party nonprofit stewardship
organization established by the Carpet and Rug Institute, to serve as
the carpet stewardship organization and would allow, on and after
January 1, 2013, a carpet stewardship organization appointed by one
or more manufacturers to submit a plan.
The bill would require, as of April 1, 2011, until January 1,
2013, a manufacturer of carpet to add an assessment of $0.05 per
square yard upon the purchase price of all carpet sold in the state
by that manufacturer. The bill would require the assessment to be
remitted on a quarterly basis, as appropriate, to CARE or would allow
the manufacturer to retain that assessment. The bill would require
these revenues to be expended by CARE or by an individual
manufacturer, prior to approval of its carpet stewardship plan, only
to implement early action measures that are consistent to achieve
measurable improvements in the landfill diversion and recycling of
postconsumer carpet.
The department would be required to, among other
things, within 60 days after the department receives a plan, review
and determine whether the plan is complete
complies with the bill's requirements and notify the submitter
of its determination decision . The
bill would specify that any plan not determined to be
complete approved by March 31, 2012, is out of
compliance until determined to be complete by the department.
The bill would prohibit provide that
a manufacturer, wholesaler, or retailer, on and after April 1, 2012,
from selling a that offers carpet
unless the for sale or promotional purposes
without an approved plan for that carpet is not in
compliance with the act's requirements. The act would also require
the carpet stewardship organization to meet specified
targets demonstrate to the department that it has
achieved continuous meaningful improvement in the recycling rate
in order to be in compliance.
Each manufacturer of carpet sold in the state, individually or
through a carpet stewardship organization, would be required to
prepare and submit to the department an annual report describing the
activities carried out pursuant to the carpet stewardship plan.
A manufacturer or carpet stewardship organization submitting a
carpet stewardship plan would be required to pay the department an
annual administrative fee when submitting the plan for review and
approval, as determined by the department. The bill would provide for
the imposition of administrative civil penalties upon a person who
sells carpet in violation of violates
the bill and would provide that the manufacturer or carpet
stewardship organization whose plan is not approved by the department
by March 31, 2012 , is subject to those
penalties until the plan is approved. The department would be
authorized to expend those fees and penalties, upon appropriation by
the Legislature, to administer the bill's provisions .
(2) Existing law provides various procedures and requirements
pertaining to the purchase of recycled items by the state, including,
among other things, recycled paper products, plastic products, metal
products, and paint.
This bill would additionally provide requirements for the purchase
of carpet.
The bill would require the department and the Department of
General Services to complete a study, by January 1, 2014, that
examines the standard for carpet purchases by the state, in the
NSF/ANSI 140-2007 Standard, Platinum Level, and to submit the study
to the Governor and the Legislature, including recommendations for
any appropriate changes to that standard.
(2) Existing law requires the Department of Toxic Substances
Control to adopt regulations to establish a process to identify and
prioritize chemicals or chemical ingredients in consumer products
that may be considered as being a chemical of concern, as prescribed,
and to establish a process for evaluating chemicals of concern in
consumer products, and their potential alternatives, to determine how
best to limit exposure or to reduce the level of hazard posed by a
chemical of concern.
This bill would require the Department of Toxic Substances Control
to fully consider the measures taken by the carpet industry pursuant
to the program established by the bill, and the results of those
measures, when considering whether to include carpet in the product
registry adopted under those provisions or to otherwise regulate
carpet pursuant to those provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all
of the following:
(a) Discarded carpet is one of the 10 most prevalent waste
materials in California landfills, equaling 3.2 percent of waste by
volume disposed of in California in 2008. Because carpet is heavy and
bulky, it imposes a significant solid waste management cost on local
governments.
(b) Numerous products can be manufactured from recycled carpets,
including carpet, carpet underlayment, automobile parts, picnic
tables, park benches, and erosion control products. Several carpet
recycling facilities currently operate in California, producing
products and feedstock for products made from recycled carpet.
(c) The United States carpet industry has established a
third-party nonprofit organization, the Carpet America Recovery
Effort, also known as CARE, to increase the recycling and reuse of
postconsumer carpet and reduce the amount of carpet going to
landfills.
(d) CARE represents at least 90 percent of United States carpet
manufacturers and 95 percent of the volume of carpet sold in the
United States.
(e) According to CARE, in 2008, the most recent year for which
data are available, 5.2 percent of carpet was diverted from landfills
and 4.3 percent was recycled.
(f) It is in the interest of the state to establish a program,
working to the extent feasible with the carpet industry, to increase
the landfill diversion and recycling of postconsumer carpet generated
in California.
SEC. 2. Chapter 20 (commencing with Section 42970)
is added to Part 3 of Division 30 of the Public Resources
Code , to read:
CHAPTER 20. PRODUCT STEWARDSHIP FOR CARPETS
42970. The purpose of this chapter is to increase the amount of
postconsumer carpet that is diverted from landfills and recycled into
secondary products or otherwise managed in a manner that is
consistent with the state's hierarchy for waste management practices
pursuant to Section 40051.
42971. For purposes of this chapter, and unless the context
otherwise requires, the definitions in this section govern the
construction of this chapter:
(a) "Brand" means a name, symbol, word, or mark that identifies
the carpet, rather than its components, and attributes the carpet to
the owner or licensee of the brand as the manufacturer.
(b) "CARE" means the Carpet America Recovery Effort, a third-party
nonprofit stewardship organization established by the Carpet and Rug
Institute to increase the reclamation and stewardship of
postconsumer carpet.
(c) (1) "Carpet" means a manufactured article that is used in
commercial or residential buildings affixed or placed on the floor or
building walking surface as a decorative or functional building
interior feature and that is primarily constructed of a top visible
surface of synthetic face fibers or yarns or tufts attached to a
backing system derived from synthetic or natural materials.
(2) "Carpet" includes, but is not limited to, a commercial or a
residential broadloom carpet or modular carpet tiles.
(3) "Carpet" does not include a rug, pad, cushion, or underlayment
used in conjunction with, or separately from, a carpet.
(d) (1) "Carpet stewardship organization" or "organization" means
either of the following:
(A) An organization appointed by one or more manufacturers to act
as an agent on behalf of the manufacturer to design, submit, and
administer a carpet stewardship plan pursuant to this chapter.
(B) A carpet manufacturer that complies with this chapter as an
individual manufacturer.
(2) Notwithstanding paragraph (1), until January 1, 2013, CARE
shall be the sole carpet stewardship organization pursuant to
subparagraph (A) of paragraph (1).
This paragraph does not restrict the option of an individual
carpet manufacturer to comply with this chapter as a carpet
stewardship organization, on and after January 1, 2011, pursuant to
subparagraph (B) of paragraph (1).
(e) "Carpet stewardship plan" or "plan" means a plan written by an
individual manufacturer or a carpet stewardship organization, on
behalf of one or more manufacturers, that includes all of the
information required by Section 42972.
(f) "Consumer" means a purchaser or owner of carpet, including a
person, business, corporation, limited partnership, nonprofit
organization, or governmental entity.
(g) "Department" means the Department of Resources Recycling and
Recovery.
(h) "Label" means a graphic representation of three chasing arrows
with a carpet roll inside the arrows, or an alternative design,
designed by CARE and approved by the department for use on all
invoices and contracts pursuant to subparagraph (C) of paragraph (3)
of subdivision (c) of Section 42972.
(i) "Manufacturer" means, with regard to a carpet that is sold,
offered for sale, or distributed in the state any of the following:
(1) The person who manufactures the carpet and who sells, offers
for sale, or distributes that carpet in the state under that person's
own name or brand.
(2) If there is no person who sells, offers for sale, or
distributes the carpet in the state under the person's own name or
brand, the manufacturer of the carpet is the owner or licensee of a
trademark or brand under which the carpet is sold or distributed in
the state, whether or not the trademark is registered.
(3) If there is no person who is a manufacturer of the carpet for
the purpose of paragraphs (1) and (2), the manufacturer of that
carpet is the person who imports the carpet into the state for sale
or distribution.
(j) "Postconsumer carpet" means carpet that is no longer used for
its manufactured purpose.
(k) "Program" means the system for the collection, transportation,
recycling, and disposal of carpets pursuant to a completed carpet
stewardship plan that is financed and managed or provided by an
individual manufacturer or collectively by one or more manufacturers.
(l) "Recycling" means the process, consistent with Section 40180,
of converting postconsumer carpet into a useful product that meets
the quality standards necessary to be used in the marketplace.
(m) "Retailer" means a person who offers new carpet in a retail
sale, as defined in Section 6007 of the Revenue and Taxation Code,
including a retail sale through any means, including remote offerings
such as sales outlets, catalogs, or an Internet Web site or other
similar electronic means.
(n) "Sell" or "sales" means a transfer of title of a carpet for
consideration, including a remote sale conducted through a sales
outlet, catalog, Internet Web site or similar electronic means, but
does not include a lease.
(o) "Wholesaler" means a person who offers new carpet for sale in
this state in a sale that is not a retail sale, as defined in Section
6007 of the Revenue and Taxation Code, and in which the carpet is
intended to be resold.
42972. (a) On or before September 30, 2011, a manufacturer of
carpets sold in this state shall, individually or through a carpet
stewardship organization, submit a carpet stewardship plan to the
department that will do all of the following:
(1) Achieve the purposes of this chapter, as described in Section
42970, and meet the requirements of Section 42975.
(2) Include goals that, to the extent feasible based on available
technology and information, increase the recycling of postconsumer
carpet by increasing the diversion of postconsumer carpets from
landfills, increasing the recyclability of carpets, and incentivizing
the market growth of secondary products made from postconsumer
carpet. The goals established in the plan shall, at a minimum, be
equal to the goals established in a national memorandum of
understanding for carpet stewardship, if one exists at the time the
plan is submitted to the department.
(3) Describe measures that will be taken to manage postconsumer
carpet in a manner consistent with the state's solid waste management
hierarchy, including, but not limited to, source reduction, source
separation and processing to segregate and recover recyclable
materials, and environmentally safe management of materials that
cannot feasibly be recycled.
(4) Include a funding mechanism, consistent with subdivision (c),
that provides sufficient funding to carry out the plan, including the
administrative, operational, and capital costs of the plan.
(5) Include education and outreach efforts to consumers, carpet
installation contractors, and retailers to promote their
participation in achieving the purposes of the carpet stewardship
plan as described in paragraph (1). These education and outreach
materials may include, but are not limited to, any of the following:
(A) Signage that is prominently displayed and easily visible to
the consumer.
(B) Written materials and templates of materials for reproduction
by retailers to be provided to carpet installation contractors and
consumers at the time of purchase or delivery or both.
(C) Promotional materials or activities, or both, that explain the
purpose of carpet stewardship and the means by which it is being
carried out.
(b) The plan prepared pursuant to this section shall be designed
to accept and manage all suitable postconsumer carpet, regardless of
polymer type or primary materials of construction.
(c) (1) The funding mechanism required pursuant to paragraph (4)
of subdivision (a) shall provide for a carpet stewardship assessment
per unit of carpet sold by a manufacturer in the state, as determined
in the plan, to be paid by each member of the carpet stewardship
organization on and after January 1, 2013, in an amount that
cumulatively will adequately fund the plan. The assessment shall be
remitted to the carpet stewardship organization on a quarterly basis
and the carpet stewardship organization may expend the assessment
only to carry out the plan.
(2) The amount of the assessment and the anticipated revenues from
the assessment shall be specified in the plan and shall be approved
by the department as part of the plan. The assessment shall be
sufficient to meet, but not exceed, the anticipated cost of carrying
out the plan. The assessment shall not be used competitively by the
carpet stewardship organization or an individual manufacturer.
(3) The assessment established pursuant to this subdivision and
Section 42972.5 is exempt from the taxes imposed by Part 1
(commencing with Section 6001) of Division 2 of the Revenue and
Taxation Code and shall meet both of the following requirements:
(A) The assessment shall be added by a manufacturer to the
purchase price of all carpet covered by the plan that is sold to a
retailer or a wholesaler or otherwise sold for use in the state.
(B) The assessment shall be clearly visible on all invoices and
contracts as a separate line item and shall be accompanied by a label
approved by the department.
(d) A carpet stewardship organization that submits a plan pursuant
to this section shall consult with retailers and wholesalers in the
development of the plan, in order to minimize the impacts of the plan
on retailers and wholesalers.
42972.5. (a) Notwithstanding Section 42972, on and after April 1,
2011, but not on or after January 1, 2013, a manufacturer of carpet
shall add a carpet stewardship assessment of five cents ($0.05) per
square yard to the purchase price of all carpet sold in the state by
that manufacturer. The assessment added pursuant to this subdivision
shall be remitted on a quarterly basis, as appropriate, to CARE or be
retained by the individual manufacturer referred to in subparagraph
(B) of paragraph (1) of subdivision (d) of Section 42971, for
expenditure pursuant to subdivision (b).
(b) Revenues derived from the assessment imposed pursuant to
subdivision (a) shall only be expended by CARE or by an individual
manufacturer, prior to approval of its carpet stewardship plan, to
implement early action measures that are consistent with the purposes
of this chapter and that are designed to achieve measurable
improvements in the landfill diversion and recycling of postconsumer
carpet.
42973. (a) (1) Within 60 days after the department receives a
plan submitted pursuant to Section 42972, it shall review the plan,
determine whether it complies with Section 42972, and notify the
submitter of its decision to approve or not approve the plan.
(2) On or after January 1, 2013, an organization appointed by one
or more manufacturers to act as an agent on behalf of the
manufacturer to design, submit, and administer a carpet stewardship
plan pursuant to this chapter may submit a plan to the department
pursuant to Section 42972 and that plan may be approved by the
department, subject to the requirements of paragraph (1), only if the
department makes both of the following findings:
(A) The plan will not have the effect of reducing the level of
diversion and recycling of postconsumer carpet that has been achieved
pursuant to this chapter at the time the department reviews the
plan.
(B) The funding mechanism in the plan will not create an unfair
advantage in the marketplace for one or more of the companies in the
organization.
(b) If the department does not approve the plan, it shall describe
the reasons for its disapproval in the notice. The submitter may
revise and resubmit the plan within 60 days after receiving notice of
disapproval and the department shall review and approve or not
approve the revised plan within 60 days after receipt. Any plan not
approved by March 31, 2012, shall be out of compliance with this
chapter and the submitter of the plan is subject to the penalties
specified in Section 42978 until the plan is approved by the
department.
42974. (a) (1) The department shall enforce this chapter.
(2) In enforcing this chapter, the department shall, as part of
this enforcement authority, review the annual report prepared
pursuant to Section 42976 and within 90 days of receipt, determine
whether the submitter of the plan is in compliance with this chapter.
(b) On and after April 1, 2012, a manufacturer, wholesaler, or
retailer that offers a carpet for sale in this state, or who offers a
carpet for promotional purposes in this state, is not in compliance
with this chapter and is subject to penalties pursuant to Section
42978, if the carpet is not subject to a plan that is submitted by an
organization that includes the manufacturer of that carpet, which
plan has been approved by the department pursuant to Section 42973.
42975. (a) In order to achieve compliance with this chapter, a
carpet stewardship organization shall, on or before July 1, 2013, and
annually thereafter, demonstrate to the department that it has
achieved continuous meaningful improvement in the rate of recycling
of postconsumer carpet subject to its stewardship plan. In
determining compliance, the department shall consider all of the
following:
(1) The baseline rate of compliance against which the demonstrated
improvement is compared.
(2) The goals included in the organization's plan pursuant to
paragraph (2) of subdivision (a) of Section 42972.
(3) The goals included in a national memorandum of understanding
for carpet stewardship.
(4) Information provided in the organization's report to the
department pursuant to Section 42976.
(b) The percentage of carpet that has been recycled shall be
calculated by a method adopted by the department after consulting
with carpet stewardship organizations and taking into account the
information provided to the department in its annual report pursuant
to Section 42976.
(c) If more than one organization submits a carpet stewardship
plan pursuant to this chapter, the department shall use information
submitted by the organization in its annual report pursuant to
Section 42976 to determine the recycling rate attributable to each
organization and shall determine compliance with this chapter in
accordance with that plan's recycling rate.
42976. On or before July 1, 2013, and each year thereafter, a
manufacturer of carpet sold in the state shall, individually or
through a carpet stewardship organization, submit to the department a
report describing its activities to achieve the purposes of this
chapter, as described in Section 42970, and to comply with Section
42975. At a minimum, the report shall include all of the following:
(a) The total volume of carpet sold by square yards and weight, in
the state during the reporting period.
(b) The total volume of postconsumer carpet recycled, by weight,
in the state during the reporting period.
(c) The total volume of postconsumer carpet recovered but not
recycled, by weight, and its ultimate disposition.
(d) The total cost of implementing the carpet stewardship program
and other elements of the carpet stewardship plan.
(e) An evaluation of the effectiveness of the program, its funding
mechanism, and other elements of the plan, and anticipated steps, if
needed, to improve performance.
(f) Examples of educational materials that were provided to
consumers during the reporting period.
42977. (a) The carpet stewardship organization submitting a
carpet stewardship plan shall pay the department an annual
administrative fee. The department shall set the fee at an amount
that, when paid by every carpet stewardship organization that submits
a carpet stewardship plan, is adequate to cover the department's
full costs of administering and enforcing this chapter, including any
program development costs or regulatory costs incurred by the
department prior to carpet stewardship plans being submitted. The
department may establish a variable fee based on relevant factors,
including, but not limited to, the portion of carpets sold in the
state by members of the organization compared to the total amount of
carpet sold in the state by all organizations submitting a carpet
stewardship plan.
(b) The total amount of annual fees collected pursuant to this
section shall not exceed the amount necessary to recover costs
incurred by the department in connection with the administration and
enforcement of the requirements of this chapter. The department may
expend those annual fees, upon appropriation by the Legislature, to
recover those costs.
42978. (a) A civil penalty up to the following amounts may be
administratively imposed by the department on any person who is in
violation of any provision of this chapter:
(1) One thousand dollars ($1,000) per day.
(2) Ten thousand dollars ($10,000) per day if the violation is
intentional, knowing, or negligent.
(b) Any penalties collected by the department may be expended by
the department, upon appropriation by the Legislature, to offset the
cost of administering and enforcing this chapter.
42979. (a) This chapter does not limit, supersede, duplicate, or
otherwise conflict with the authority of the Department of Toxic
Substances Control under Section 25257.1 of the Health and Safety
Code to fully implement Article 14 (commencing with Section 25251) of
Chapter 6.5 of Division 20 of the Health and Safety Code, including
the authority of the department to include a carpet in a product
registry adopted pursuant to that article.
(b) Notwithstanding subdivision (a), the Department of Toxic
Substances Control shall fully consider the measures taken by the
carpet industry pursuant to this chapter, and the results of those
measures, when considering whether to include carpet in a product
registry adopted pursuant to, or to otherwise regulate carpet
pursuant to, Article 14 (commencing with Section 25251) of Chapter
6.5 of Division 20 of the Health and Safety Code.
42980. (a) On or before January 1, 2014, the department and the
Department of General Services shall complete a study that examines
the standard for carpet purchases by the state, as provided in the
American National Standards Institute (NSF/ANSI) 140-2007 Standard,
Platinum Level, as in effect on January 1, 2011, and shall submit the
study to the Governor and the Legislature pursuant to Section 9795
of the Government Code, including recommendation for any appropriate
changes to that standard. In examining the standard and recommending
changes to the standard, the department and the Department of General
Services shall consider all of the following:
(1) Any changes to the standard that would further the purpose of
this chapter.
(2) Any changes to the standard that would improve the
environmental sustainability of carpet purchased by the state.
(3) The life-cycle impacts of proposed changes to the standard.
(4) The impacts of the proposed changes to the standard on source
reduction.
(5) The impacts of the proposed changes to the standard on the
recyclability of carpet.
(6) Economic and technological barriers to the proposed changes to
the standard.
(b) The department and Department of General Services shall hold
at least one workshop to receive comments from interested
stakeholders prior to the completion of the study.
(c) Pursuant to Section 10231.5 of the Government Code, this
section is repealed on January 1, 2018. All matter omitted in
this version of the bill appears in the bill as amended in the
Senate, June 23, 2010. (JR11)