BILL NUMBER: SB 55 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 13, 2009
AMENDED IN SENATE APRIL 22, 2009
INTRODUCED BY Senator Corbett
JANUARY 15, 2009
An act to amend Sections 14504, 14551, 14575, 14581, and
14585 of, to add Section 14575.5 to, and to repeal Section 14523.5
of, the Public Resources Code, relating to recycling, and making an
appropriation therefor. An act to amend Sections
14588.1 and 14588.2 of, and to add Section 14588.3 to, the Public
Resources Code, relating to recycling.
LEGISLATIVE COUNSEL'S DIGEST
SB 55, as amended, Corbett. Recycling: California
redemption value containers. handling fees:
supermarket sites.
(1) Under existing law, the California Beverage Container
Recycling and Litter Reduction Act, every beverage container sold or
offered for sale in this state is required to have a minimum refund
value. A distributor is required to pay a redemption payment for
every beverage container sold or offered for sale in the state to the
Department of Conservation and the department is required to deposit
those amounts in the California Beverage Container Recycling Fund.
The money in the fund is continuously appropriated to the department
for the payment of refund values and processing fees. A violation of
the act is a crime. Existing law requires the department to
adopt guidelines and methods for paying handling fees to supermarket
sites. To ensure that handling fees paid to the supermarket site are
not used for the purpose of engaging in unfair and predatory pricing,
existing law requires an audit upon certain complaints
filed with the department and sets forth a procedure for handling the
audit.
This bill would revise the auditing procedure and would revise the
definition of "unfair and predatory pricing."
(2) Existing law requires the department to convene an informal
hearing if the director of the department determines there is
probable cause that a supermarket site has engaged in unfair and
predatory pricing. Existing law allows the respondent to rebut the
presumption of unfair and predatory pricing by demonstrating
specified facts to the director.
This bill would eliminate this opportunity to rebut the
presumption of unfair predatory pricing.
(3) Existing law prohibits a supermarket site from receiving
handling fees for a period of 6 months to 5 years, depending on
certain criteria, if the director determines that a supermarket site
has engaged in unfair and predatory pricing.
This bill would decrease the period of time that a supermarket
site is ineligible to receive handling fees to a period of 2 months
to 3 years, depending on certain criteria, if the director determines
that the supermarket site has engaged in unfair and predatory
pricing.
(4) Existing law establishes the amount that a beverage
distributor shall pay the department for each beverage container sold
or offered for sale in this state.
This bill would prohibit a certified recycling center that
receives handling fees from paying scrap value for redeemed beverage
containers and instead would require the recycling center to pay only
the refund value established in statute for each type of beverage
container. The bill would impose a state-mandated local program by
creating a new crime relating to beverage containers.
(5) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Beverage is defined, for purposes of the act, to include, among
other things, beer and other malt beverages, wine and distilled
spirit coolers, carbonated mineral and soda waters, noncarbonated
fruit drinks, and vegetable juices, in liquid form that are intended
for human consumption, but excludes from that definition vegetable
drinks in beverage containers of more than 16 ounces. The act also
excludes, from the definition of beverage, any product sold in a
container that is not an aluminum beverage container, a glass
container, a plastic beverage container, or a bimetal container.
This bill would revise the term beverage to include vegetable,
nut, grain, or soy drinks that contain any percentage of juice, and
would delete the requirement that a vegetable drink subject to the
act be sold in a container of 16 ounces or less. The bill would
delete the exclusion from the term beverage, for a product that is
not sold in the above-specified types of containers. The bill would
additionally exclude from the definition a beverage in a flexible
foil, plastic pouch, or aseptic container delivering 7 or less fluid
ounces. The bill would also make conforming changes to other
definitions, for purposes of the act.
Since the payments for the plastic beverage containers and other
beverage containers that this bill would make subject to the act
would be deposited in a continuously appropriated fund, the bill
would make an appropriation. The bill would also impose a
state-mandated local program by creating new crimes relating to
beverage containers.
(2) The Department of Conservation is required to establish
reporting periods of 6 months each for redemption rates and recycling
rates for specified types of beverage containers. The act also
requires the department to determine the redemption rates and
recycling rates for those beverage containers for each reporting
period and to issue a report on those determinations. The act defines
various terms for purposes of those provisions, including redemption
rate.
This bill would delete the provisions that require the department
to establish reporting periods for redemption rates and that require
the department to determine redemption rates for specified types of
beverage containers. The bill also would delete the definition of
redemption rate.
(3) The act requires the department to calculate a processing fee
and a processing payment for each beverage container with a specified
scrap value. The processing fee is required to be paid by beverage
manufacturers for each beverage container sold or transferred to a
dealer. Existing law authorizes, subject to the availability of
funds, a reduction in the processing fee paid by beverage
manufacturers for container types with certain recycling rates.
Existing law requires the department to pay processing payments for
redeemed containers to processors, for each type of beverage
container, in a specified manner. The department is also required to
pay a handling fee to specified recyclers.
The bill would make changes with regard to the processing fee
reductions for container types with certain recycling rates. The bill
would include provisions for determining a supplemental processing
payment, based on the volume of redeemed containers, which would be
paid to processors and ultimately to recyclers.
This bill would revise the provisions for the payment of handling
fees with regard to payments for beverage containers with a 24-ounce
capacity.
(4) The department is authorized to make other specified
expenditures from the moneys remaining in the fund after the moneys
for certain purposes have been set aside, including $10,500,000
annually for payments to cities and counties for beverage container
recycling and litter cleanup activities. Existing law requires the
department to expend $15,000,000 annually, plus a proportional
cost-of-living adjustment, for grants for eligible community
conservation corps beverage container litter reduction and recycling
programs.
This bill would increase the payments to cities and counties to
$15,000,000 to be paid as specified. The bill would require the
department to expend $17,500,000 annually, plus a proportional
cost-of-living adjustment, for grants for eligible community
conservation corps beverage container litter reduction and recycling
programs.
(5) The department is authorized to expend up to $20,000,000 to
issue grants for recycling market development and expansion-related
activities aimed at increasing the recycling of beverage containers.
This bill would additionally include, as activities eligible for
these grants, the upgrading or retrofitting of existing facilities or
construction of new facilities that process or use postconsumer
beverage container material and payments to manufacturers located in
this state who utilize material from the types of recycled beverage
containers that are generated in this state and that became subject
to the act pursuant to this bill.
(6) The bill would make conforming changes.
(7) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: yes no
. Fiscal committee: yes. State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 14588.1 of the
Public Resources Code is amended to read:
14588.1. (a) As used in this chapter, "unfair and predatory
pricing" means the payment to consumers by a supermarket site, that
receives handling fees for the redemption of beverage containers, in
an amount that exceeds the sum of both of the following:
(1) The
the California refund value for that container.
(2) (A) If the supermarket site is not located in a rural region,
the average scrap value paid per pound for that container type by
specified certified recycling centers located within a five-mile
radius of the supermarket site on the date of the alleged occurrence,
the day before the alleged occurrence, and the day after the alleged
occurrence.
(B) If the supermarket site is located in a rural region, the
average scrap value paid per pound for that container type by
specified certified recycling centers located within a 10-mile radius
of the supermarket site on the date of the alleged occurrence, the
day before the alleged occurrence, and the day after the alleged
occurrence.
(b) In calculating the three-day average price paid by recyclers
within the specified distance of a recycler alleged to have engaged
in predatory pricing, as required by subdivision (a), the department
shall only survey those recyclers who did not receive handling fees
in three or more of the 12 whole months immediately preceding the
date of the allegation of predatory pricing.
(c)
(b) For purposes of this chapter, "rural region" means
a nonurban area identified by the department on an annual basis using
the loan eligibility criteria of the Rural Housing Service of the
United States Department of Agriculture, Rural Development
Administration, or its successor agency. Those criteria include, but
are not limited to, places, open country, cities, towns, or census
designated places with populations that are less than 10,000 persons.
The department may designate an area with population of between
10,000 and 50,000 persons as a rural region, unless the area is
identified as part of, or associated with, an urban area, as
determined by the department on an individual basis.
SEC. 2. Section 14588.2 of the Public
Resources Code is amended to read:
14588.2. (a) To ensure that handling fees paid to a supermarket
site are not used for the purpose of engaging in unfair and predatory
pricing, and to otherwise further the intent of this chapter, the
department shall follow all of the requirements of this section upon
the complaint of either of the following:
(1) Any certified recycler located within five miles of the
supermarket site alleged to have engaged in unfair and predatory
pricing if not located in a rural region.
(2) Any certified recycler located within 10 miles of the
supermarket site alleged to have engaged in unfair and predatory
pricing if located in a rural region.
(b) (1) Within 50 days of receiving the complaint, the department
shall complete an audit of the payments for the redemption of
beverage containers being paid by the supermarket site , and
by all other certified recycling centers as specified in Section
14588.1, for the purpose of determining whether the
supermarket site is engaged in unfair and predatory pricing.
(2) The department shall withhold from public disclosure any
proprietary information collected by the department in the course of
the audit mandated by paragraph (1). The department shall exercise
its discretion in determining what information is proprietary.
(c) (1) If the director determines there is probable cause that a
supermarket site, against which a complaint has been made, has
engaged in unfair and predatory pricing, the director shall, within
60 days of receiving the complaint, convene an informal hearing
before the director, or the director's designee.
(2) At least 10 days before the hearing, the director shall
forward the results of the audit to the complainant and respondent.
(3) At the hearing, the director, or the director's designee,
shall review the audit conducted pursuant to subdivision (b) and any
evidence presented by the complainant that a supermarket site has
engaged in unfair and predatory pricing. The director, or the
director's designee, shall also review any evidence presented by the
respondent that the respondent has not engaged in unfair and
predatory pricing.
(4) The respondent shall be given the opportunity to rebut the
presumption of unfair and predatory pricing imposed by Section
14588.1 by demonstrating to the satisfaction of the director, or the
director's designee, that the respondent did both of the following:
(A) The respondent made a good faith effort to determine the
average scrap value paid per pound for that container type by
certified recycling centers located within a five-mile or 10-mile
radius of the supermarket site, pursuant to subdivision (a) of
Section 14588.1, within 30 days before the date of the alleged
violation.
(B) The three-day average scrap value the respondent paid per
pound for that container type was within 2.5 percent of the three-day
average scrap value paid per pound determined by the department
pursuant to subdivision (a).
(5)
(4) The director, or the director's designee, may
dismiss a complaint made pursuant to subdivision (a) upon determining
either of the following:
(A) The complaint is without basis.
(B) The complaint is repetitious of prior similar complaints
against the same supermarket site for which the director or the
director's designee has determined that no unfair and predatory
pricing occurred.
(d) Within 20 days of the completion of the hearing, the director,
or the director's designee, shall determine whether the supermarket
site has engaged in unfair and predatory pricing. This determination
shall be based upon the audit conducted pursuant to subdivision (b),
and upon any clear and convincing evidence of unfair and predatory
pricing presented at the hearing.
(e) During the time period from the date of the receipt of a
complaint pursuant to subdivision (a), until the date the director
makes a determination pursuant to subdivision (d), the supermarket
site against which the allegation of unfair and predatory pricing is
made shall not receive handling fees that were earned during the
period commencing with the date of the alleged unfair and predatory
pricing. However, nothing in this subdivision shall affect the
payment of handling fees to a supermarket site that is found not to
have engaged in unfair and predatory pricing pursuant to this
section, or to the activities of a supermarket site prior to the date
of the alleged unfair and predatory pricing.
(f) If, after complying with the procedure established pursuant to
this section, the director, or the director's designee, determines
that a supermarket site has engaged in unfair and predatory pricing,
the site is ineligible to receive handling fees as specified by this
section.
(1) If the determination of unfair and predatory pricing is the
first for the site, the site is ineligible to receive handling fees
for six two months from the date that
the respondent is found to have engaged in unfair and predatory
pricing.
(2) If the determination of unfair and predatory pricing is the
second for the site, the site is ineligible to receive handling fees
for one year six months from the date
that the respondent is found to have engaged in unfair and predatory
pricing.
(3) If the determination of unfair and predatory pricing is the
third or more for the site, the site is ineligible to receive
handling fees for five three years
after the date that the respondent is found to have engaged in unfair
and predatory pricing.
(g) The complainant or respondent may obtain a review of the
determination made pursuant to this section by filing in the superior
court a petition for a writ of mandate within 30 days following the
issuance of the determination. Section 1094.5 of the Code of Civil
Procedure shall govern judicial proceedings pursuant to this
subdivision, except that the court shall exercise its independent
judgment. If a petition for a writ of mandate is not filed within the
time limits set forth in this subdivision, the determination made
pursuant to this subdivision is not subject to review by any court or
agency.
(h) If either party appeals the determination of the director, or
the director's designee, pursuant to subdivision (g), and the
department prevails, the department may recover any costs associated
with its defense of the complaint.
SEC. 3. Section 14588.3 is added to the
Public Resources Code , to read:
14588.3. If a certified recycling center receives handling fees,
it shall not pay scrap value for redeemed beverage containers, but
shall only pay the refund value established for each beverage
container pursuant to Section 14560.
SEC. 4. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution. All matter omitted in this version of
the bill appears in the bill as amended in the Senate April 22, 2009.
(JR11)