BILL NUMBER: SB 55 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 20, 2009
AMENDED IN SENATE MAY 13, 2009
AMENDED IN SENATE APRIL 22, 2009
INTRODUCED BY Senator Corbett
JANUARY 15, 2009
An act to amend Sections 14588.1 and 14588.2
Section 14551 of, and to add Section 14588.3 to
repeal Section 14523.5 of , the Public Resources
Code, relating to recycling.
LEGISLATIVE COUNSEL'S DIGEST
SB 55, as amended, Corbett. Recycling: handling fees:
supermarket sites. California redemption value
containers.
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 words 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.
(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.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 14523.5 of the
Public Resources Code is repealed.
14523.5. "Redemption rate" means the proportion of empty beverage
containers returned to processors measured in the manner prescribed
in Section 14551.
SEC. 2. Section 14551 of the Public
Resources Code is amended to read:
14551. (a) The department shall establish reporting periods for
the reporting of redemption rates and recycling
rates. Each reporting period shall be six months. The department
shall determine all of the following for each reporting period and
shall issue a report on its determinations, within 130 days of the
end of each reporting period:
(1) Sales of beverages in aluminum beverage containers, bimetal
beverage containers, glass beverage containers, plastic beverage
containers, and other beverage containers in this state, including
refillable beverage containers.
(2) Returns for recycling, and returns not for recycling, of empty
aluminum beverage containers, bimetal beverage containers, glass
beverage containers, plastic beverage containers, and other beverage
containers in this state, including refillable beverage containers
returned to distributors pursuant to Section 14572.5. These numbers
shall be calculated using the average current weights of beverage
containers, as determined and reported by the department. To
these numbers shall be added and separately reported the following,
if greater than, or equal to, zero:
(A) All empty postfilled aluminum, glass, and plastic food or
drink packaging materials sold in the state, returned for recycling,
and reported by weight to the department which do not have a refund
value less the number specified in subparagraph (B).
(B) The number of beverage containers which comprise the first
five percentage points of the redemption rate without including the
empty postfilled aluminum, glass, and plastic food or drink packaging
materials sold in the state, returned for recycling and reported by
weight to the department which do not have a refund value.
(3) An aluminum beverage container redemption rate, the numerator
of which shall be the number of empty aluminum beverage containers
returned, including refillable aluminum beverage containers and empty
postfilled aluminum food or drink packaging material included in
paragraph (2), and the denominator of which shall be the number of
aluminum beverage containers sold in this state.
(4)
(3) An aluminum beverage container recycling rate, the
numerator of which shall be the number of empty aluminum beverage
containers returned for recycling, including refillable aluminum
beverage containers, and the denominator of which shall be the number
of aluminum beverage containers sold in this state.
(5) A bimetal beverage container redemption rate, the numerator of
which shall be the number of empty bimetal beverage containers
returned, and the denominator of which shall be the number of bimetal
beverage containers sold in this state.
(6)
(4) A bimetal beverage container recycling rate, the
numerator of which shall be the number of empty bimetal containers
returned for recycling, including refillable bimetal beverage
containers, and the denominator of which shall be the number of
bimetal beverage containers sold in this state.
(7) A glass beverage container redemption rate, the numerator of
which shall be the number of empty glass beverage containers
returned, including refillable glass beverage containers and empty
postfilled food or drink packaging materials included in paragraph
(2), and the denominator of which shall be the number of glass
beverage containers sold in this state.
(8)
(5) A glass beverage container recycling rate, the
numerator of which shall be the number of empty glass beverage
containers returned for recycling, including refillable glass
beverage containers, and the denominator of which shall be the number
of glass beverage containers sold in this state.
(9) A plastic beverage container redemption rate, the numerator of
which shall be the number of empty plastic beverage containers
returned, including refillable plastic beverage containers and empty
postfilled food or drink packaging materials included in paragraph
(2), and the denominator of which shall be the number of plastic
beverage containers sold in this state.
(10)
(6) A plastic beverage container recycling rate, the
numerator of which shall be the number of empty plastic beverage
containers returned for recycling, including refillable plastic
beverage containers, and the denominator of which shall be the number
of plastic beverage containers sold in this state.
(11) A redemption rate for other beverage containers, the
numerator of which shall be the number of empty beverage containers
other than those containers specified in paragraphs (1) to (10),
inclusive, returned, and the denominator of which shall be the number
of beverage containers, other than those containers specified in
paragraphs (1) to (10), inclusive, sold in this state.
(12)
(7) A recycling rate for other beverage containers, the
numerator of which shall be the number of empty beverage containers
other than those containers specified in paragraphs (1) to
(10) (6) , inclusive, returned for recycling,
and the denominator of which shall be the number of beverage
containers, other than those containers specified in paragraphs (1)
to (10) (6) , inclusive, sold in this
state.
(13)
(8) The department may define categories of other
beverage containers, and report a redemption rate and
a recycling rate for each such category
of those categories of other beverage containers.
(14)
(9) The volumes of materials collected from certified
recycling centers, by city or county, as requested by the city or
county, if the reporting is consistent with the procedures
established pursuant to Section 14554 to protect proprietary
information.
(b) The department shall determine the manner of collecting the
information for the reports specified in subdivision (a), including
establishing procedures, to protect any proprietary information
concerning the sales and purchases.
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 California refund value for that container.
(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 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 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 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 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 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.