BILL ANALYSIS
AB 2398
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2009-2010 Regular Session
BILL NO: AB 2398
AUTHOR: John A. Perez
AMENDED: June 23, 2010
FISCAL: Yes HEARING DATE: June 28, 2010
URGENCY: No CONSULTANT: Caroll
Mortensen
SUBJECT : PRODUCT STEWARDSHIP: CARPET: PUBLIC
PROCUREMENT
SUMMARY :
Existing law :
1) Establishes procedures and requirements for the purchase of
recycled content items such as paper by state agencies.
(Public Contract Code 12209).
2) Establishes procedures for the procurement by state
agencies of environmentally preferable products, as
defined, including providing state agencies with
information and assistance regarding environmentally
preferable purchasing including, but not limited to, the
development, to the extent fiscally feasible, of an
environmentally preferable purchasing best practices manual
for state purchasing employees. (PCC 12400 et seq).
This bill :
1) Adds carpet to the state agency buy-recycled requirements
and specifies a minimum content of 25% recycled material.
2) Establishes a new chapter in the Public Resources Code that
establishes a product stewardship program for carpet with
the purpose to require carpet manufacturers to develop and
implement a program to increase the diversion of
postconsumer carpet from landfills, increase the
recyclability of carpets, and promote the recycling of
postconsumer carpet into materials that are used to
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manufacture new products to be overseen by the Department
of Resource Recovery and Recycling (DRRR).
3) Requires, on or before September 30, 2011, a carpet
producer or carpet stewardship organization to submit a
carpet stewardship plan to DRRR.
4) Specifies that the carpet stewardship plan do all of the
following:
a) Develop and implement a program, including measurable
goals established by the stewardship organization.
b) Include a funding mechanism to provide sufficient
funding to carry out the program; and,
c) Include education and outreach efforts to consumers,
retailers, and carpet installation contractors, to
promote the purposes of promoting the carpet stewardship
program through the development and distribution of
educational materials.
5) Specifies that the funding mechanism shall provide for an
assessment per unit of carpet sold in the state, as
determined in the plan, to be paid by each member of the
organization in an amount that cumulatively will adequately
fund the program. The assessment is to be approved by DRRR
and can only be used by the stewardship organization. The
revenue from the assessment can not be used competitively
by the stewardship organization or an individual
manufacturer.
6) Requires DRRR, within 60 days of receipt of a plan, to
determine if a plan is complete and to notify the submitter
of its determination. If it is not complete, requires the
submitter to revise and resubmit the plan within 60 days.
7) On and after April 1, 2012, prohibits a manufacturer,
wholesaler, or retailer from offering a carpet for sale
unless a plan has been submitted that is in compliance with
the bill.
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8) Provides that DRRR enforce the chapter, including the
review and approval of the annual reports required pursuant
to the bill to determine compliance with the chapter.
9) Requires an organization to demonstrate to DRRR that the
following targets have been met:
a) The amount of postconsumer carpet recycled in the
state shall equal or exceed 25% by January 1, 2017; and,
b) The amount of postconsumer carpet recycled in the
state shall equal or exceed 50% by January 1, 2022.
10)If more than one organization submits a plan pursuant to
this bill, requires DRRR to use information submitted by
the organization in its annual report to determine the
recycling rate attributable to each organization and to
determine compliance accordingly.
11)On or before July 1, 2013, and each year thereafter,
requires a manufacturer or organization to submit a report,
to include:
a) The total amount of carpet sold and postconsumer
carpet collected, by volume and weight, in the state
during the reporting period.
b) The total amount of postconsumer carpet recycled, by
volume and weight, in the state during the reporting
period.
c) The total cost of implementing the program and other
elements of the plan.
d) 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.
12)Requires the organization to submit to DRRR an annual
administrative fee, to be established by DRRR in an amount
adequate to cover the full costs of administering and
enforcing this bill.
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13)Establishes administrative civil penalties for any person
who sells or offers for sale a carpet that is prohibited
from sale of $1,000 per violation and $10,000 per violation
if the violation is intentional, knowing, or negligent.
14)Defines terms used in the bill.
COMMENTS :
1) Purpose of Bill . According to the author, this bill is
"intended to reduce costs to local government, to harmonize
the state's producer responsibility obligations with other
national and international programs, and to enhance the
protection of public health and the environment through
safer product design, use, and end-of-life management."
2) Carpet ? According to DRRR's 2008 Statewide Waste
Characterization Study, an estimated 1.3 million tons of
carpet is disposed in California landfills annually,
comprising 3.2 percent of all solid waste. Carpet can be
recycled and can be manufactured using recycled-content.
According to the USEPA, barriers to effective recycling
include the lack of an established infrastructure for the
collection and processing of waste carpet, especially from
residential sources.
3) Yes Carpet! Department of General Services (DGS)
Platinum/Gold Standard . The California Gold Sustainable
Carpet Standard (standard) was developed through a
collaborative effort by members of California's
Environmentally Preferable Purchasing (EPP) Task Force, and
was adopted by California's Department of General Services
by State Administrative Manual (SAM) Management Memo 06-08,
on May 15, 2006. This action placed a requirement into the
SAM for all state carpet purchases to meet the standard.
The standard was based on the Draft American National
Standard for Trial Use, NSF 140 Sustainable Carpet
Assessment Standard (Draft Standard), developed as part of
the ongoing efforts of a number of interested parties to
document and improve the sustainability profile of carpet
and rug products using established and/or advanced
scientific principles, practices, materials and standards.
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Stakeholders involved in developing the Draft Standard
included carpet and rug manufacturers, end users such as
interior design professionals, state agencies responsible
for environmentally preferable product procurement
practices, academics and non-governmental organizations.
The standard takes the NSF-140 national standard further by
adding 14 additional prerequisites in areas important to
California and a full 100% audit by a third party
certification organization, as well as at least 52 credits
overall from all categories. California Platinum
certification requires all prerequisites and at least 71
credits overall from all categories. Additionally,
California Gold only recognizes and accepts products that
meet these highest two levels: California Gold and
California Platinum. The additional prerequisites added
include requirements such as:
Carpet must contain at least 10% postconsumer content.
Carpet must meet the low-emission requirements of the
Carpet and Rug Institute's Green Label Plus" program or
California's Section 01350 specification.
Carpet must not contain polybrominated diphenyl ether
(PBDE) flame retardants.
Manufacturers must have completed a life cycle
assessment (LCA) process for the product category.
Manufacturers must meet the Carpet America Recovery
Effort (CARE) recycling goals.
1) Extended Producer Responsibility . Rather than seeking to
manage waste after it has been produced, this bill seeks to
implement extended producer responsibility (EPR), which
addresses waste generation at the point of product design.
Typically, producers do not consider recycling
possibilities, disposal costs, and environmental impacts
when designing products because public agencies and other
entities, not the producers, bear those costs, which each
year amount to hundreds of millions of dollars. By placing
responsibility for product disposal on the producer, EPR
provides the producer, rather than state or local
government, a financial incentive to reduce the generation
of waste.
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EPR was the adopted policy of the former Integrated Waste
Management Board (eliminated pursuant to SB 63 (Strickland)
Chapter 21, Statutes of 2009 as of January 1, 2010). The
IWMB's EPR Framework, developed and adopted after two years
of public workshops and meetings with local governments,
legislative members, retailers, and producers, was
supported by the League of California Cities, California
State Association of Counties, and the Regional Council of
Rural Counties. This bill is consistent with that
framework.
2) Current industry product stewardship efforts . The carpet
industry has attempted to address these issues through a
voluntary product stewardship program. Carpet America
Recovery Effort (CARE) is a third-party entity created in
2002 by a Memorandum of Understanding (MOU) between carpet
producers, federal, state, and local government agencies,
and non-governmental organizations. The MOU was signed by
the California Integrated Waste Management Board (now DRRR)
and three California carpet manufacturers. The MOU
established national goals over a ten-year timeframe to
increase the amount of recycling and reuse of post-consumer
carpet, with a final goal of 40% diversion from landfill
disposal by 2012. CARE is tasked with monitoring,
evaluating, and assessing progress toward the MOU's goals.
While the goals of this program are laudable, the diversion
numbers are not keeping pace with the goals. In 2007, the
percentage of carpet recycled and diverted from landfill
disposal was 4.9 and 5.3, respectively; in 2008, these
percentages were 4.3 and 5.2. This lack of progress is
part of the rationale provided by DRRR when they opted out
of MOU participation in the next cycle, currently being
negotiated for 2012.
3) Support and Opposition . Supporters generally purport an
EPR approach to the management of carpet removes the
financial burden of managing the end-of-life product from
local governments and ratepayers and taxpayers to the
producers to be included in the cost of doing business.
This approach also provides an incentive to design carpet
that is more environmentally friendly and more easily
recycled.
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Opponents generally contend that the EPR approach in
general, and AB 2398 specifically, would hinder job
creation in the state and place an additional burden on an
industry that is struggling in the current economic
climate. Specifically, the Carpet and Rug Institute, which
has been working on a reclamation program through CARE,
states that recovery efforts demonstrated to date show
great progress and they are committed to an on-going effort
with staff and resources. They are currently working on an
updated MOU and believe that a mandatory program is not
necessary. Also, the setting of mandated recycling goals
is problematic as recycling rates are influenced by not
just recovery rates, but markets as well, which can be
volatile.
4) Related Legislation.
a) AB 283 (Chesbro, 2009) creates the California Product
Stewardship Act of 2009, which requires the Integrated
Waste Management Board to administer an Extended Producer
Responsibility program of product stewardship. The bill
was held in Assembly Appropriations Committee.
b) AB 1343 (Huffman, 2009) requires manufacturers of
architectural paint to develop and implement stewardship
programs to manage post-consumer paint. The bill passed
the Assembly 48-29 and is currently in the Senate
Appropriations Committee.
c) AB 2176 (Blumenfield, 2010) enacts the California
Lighting Toxics Reduction and Jobs in Recycling Act,
which establishes a producer responsibility program for
mercury-containing lamps and a fee program for
inefficient lamps. The bill was held in Assembly
Appropriations Committee.
d) AB 2139 (Chesbro, 2010) establishes the California
Product Stewardship Act, which creates a Product
Stewardship Program of extended producer responsibility
and identifies three products subject to the act--
home-generated sharps, pesticides and nonrefillable
propane cylinders. AB 2139 failed passage on the
Assembly Floor.
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e) SB 1100 (Corbett, 2010) creates a product stewardship
program for household batteries. The bill is awaiting
consideration by the Assembly Environmental Safety and
Toxic Materials Committee.
SOURCE : Assemblymember John A. Perez
SUPPORT : Association of Bay Area Governments, California
Product Stewardship Council, California
Resource Recovery Association, California
Retailers Association, California State
Association of Counties, Californians Against
Waste, Camarillo, City and County of San
Francisco, Clean Water Action, Cupertino, East
Bay Municipal Utility District, Eureka, League
of California Cities, Marin County Hazardous
and Solid Waste Management Joint Powers
Authority, Marin Sanitary Service and Marin
Resource Recovery, Napa Recycling & Waste
Services, Planning and Conservation League, San
Gabriel Valley Council of Governments,
Sacramento, Santa Cruz County Board of
Supervisors, Santa Monica, Sierra Club
California, Solid Waste Association of North
America, StopWaste.Org - Alameda County Waste
Management Authority, Sacramento, Sunnyvale,
Torrance, Vernon, Ventura
OPPOSITION : Atlas Carpet Mills Inc., Beaulieu Group LLC,
Bentley Prince Street, California Manufacturers
& Technology Association, Carpet Warehouse and
Interiors, Cal-Tax, Carpet Man, Carpet and Rug
Institute, Conklin Bros., Dick's Carpet One,
Dixie Group, Fabrica, Howards Carpet One,
Isensee Floorcovering, Lassen Regional Solid
Waste Management Authority, Metro Flooring,
Mohawk, RJ's Carpet Service, Royalty Carpet
Mills, Shaw Industries, WD-40 Company, Western
Carpet Care