Amended in Assembly April 23, 2013

Amended in Assembly April 8, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 488

Introduced by Assembly Member Williams

begin insert

(Coauthor: Assembly Member Chesbro)

end insert

February 19, 2013

An act to add Article 3 (commencing with Section 42450.1) to Chapter 8 of Part 3 of Division 30 of the Public Resources Code, relating to recycling.

LEGISLATIVE COUNSEL’S DIGEST

AB 488, as amended, Williams. Recycling: household batteries.

The California Integrated Waste Management Act of 1989, administered by the Department of Resources Recycling and Recovery, requires retailers of rechargeable batteries to have in place a system for the acceptance and collection of rechargeable batteries.

This bill would require, by January 1, 2015, a producer or a household battery stewardship organization begin delete created end delete begin insert appointed end insert by one or more producers of a household battery to submit to the department a household battery stewardship plan, which would be required to include specified elements. The bill would require the department to review a household battery stewardship plan submitted to the department within 30 days after receipt and to approve or disapprove the plan, as specified.

The bill would prohibit a producer, wholesaler, or retailer, on and after begin delete April end delete begin insert September end insert 1, 2015, from selling a household battery unless the plan for that battery is approved by the department. The bill would require a producer or the household battery stewardship organization to implement the household battery program pursuant to the household battery stewardship plan, including achieving a specified collection rate. The bill would require each producer or household battery stewardship organization implementing a household battery stewardship plan to prepare and submit to the department an annual report describing the activities carried out pursuant to the household battery stewardship plan.

The bill would require a producer or household battery stewardship organization submitting a household battery stewardship plan to pay the department a plan review fee, as determined by the department, when submitting the plan to the department and to pay an administrative fee, as determined by the department, when submitting the annual report. The bill would provide for the imposition of administrative civil penalties upon a wholesaler or retailer selling household batteries in violation of the bill. The bill would create the Household Battery Stewardship Account in the existing Integrated Waste Management Fund and would require that the fees be deposited into that account and that the penalties be deposited into the Household Battery Stewardship Penalty Subaccount that the bill would create in that account. The bill would authorize the fees and penalties to be expended, upon appropriation by the Legislature, to cover the department’s program implementation costs and would authorize all funds collected or received by the department under the program, except for the fees, to be expended as incentives to enhance recyclability and redesign efforts and to reduce environmental and safety impacts of batteries.

The bill would also allow a producer or organization that is implementing an approved plan and incurring specified costs to bring a civil action to recover costs, damages, and fees from another producer for failure to comply with the bill’s 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) In early 2006, most household batteries were classified by
the state as universal waste and prohibited from being disposed of
in solid waste landfills. Under state law, “household batteries”
means batteries made of mercury, alkaline, carbon-zinc, and
nickel-cadmium, and other batteries typically generated as
household waste, including, but not limited to, batteries used in
hearing aids, cameras, watches, computers, calculators, flashlights,
lanterns, standby and emergency lighting, portable radios,
television sets, meters, toys, and clocks, but excluding lead-acid
batteries, batteries that are sold in a “covered electronic device,”
as defined in Section 42463 of the Public Resources Code, and
batteries that are not easily removable or are not intended or
designed to be removed from the products, other than by the
manufacturer.

(b) Effective July 1, 2006, state law prohibits most retailers
from selling rechargeable batteries in the state unless they have a
system in place for collecting used rechargeable batteries from
consumers.

(c) Approximately 80 percent of batteries sold in this state are
alkaline batteries and are not covered under the retail take-back
requirements.

(d) Local governments throughout the state are responsible for
the collection and management of household batteries, and to
manage this hazardous waste, these local governments and
taxpayers pay a range of between eight hundred dollars ($800) per
ton to two thousand seven hundred dollars ($2,700) per ton, or
tens of millions of dollars each year.

(e) Because other types of recycling programs have proven to
have limited success, state and regional governments in Europe
and Canada have adopted producer responsibility programs to
begin delete redirect the responsibility for the end-of-life management of
discarded hazardous and hard-to-manage products from local
governments and retailers primarily to producers end delete begin insert distribute
responsibility for the end-of-life management of discarded
hazardous or hard-to- end insert begin insert manage products among all entities involved
in the distribution chain end insert .

(f) After many public hearings and discussions, the former
California Integrated Waste Management Board adopted an overall
Framework for an Extended Producer Responsibility (EPR)
guidance document as a policy priority in January 2008.

(g) The program established by Article 3 (commencing with
Section 42450.1) of Chapter 8 of Part 3 of Division 30 of the Public
Resources Code, by Section 2 of this act, 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 begin insert the end insert
environment through the use, reuse, and end-of-life management
of those household batteries.

(h) The plan review fee and the administrative fee imposed
pursuant to Section 42450.10 of the Public Resources Code are
regulatory fees within the meaning of paragraph (3) of subdivision
(b) of Section 3 of Article XIII A of the California Constitution,
as the fees are imposed solely for the purpose of recovering the
reasonable regulatory costs to the Department of Resources
Recycling and Recovery incident to investigating, inspecting, and
auditing the fee payer, and the enforcement costs thereof, and with
respect to reviewing the household battery stewardship plan, and
the annual reports and enforcing Article 3 (commencing with
Section 42450.1) of Chapter 8 of Part 3 of Division 30 of the Public
Resources Code.

SEC. 2.  

Article 3 (commencing with Section 42450.1) is added
to Chapter 8 of Part 3 of Division 30 of the Public Resources Code,
to read:

 

Article 3.  Product Stewardship for Household Batteries

 

42450.1.  

For purposes of this article, begin delete and end delete unless the context
begin delete otherwise end delete begin insert clearly end insert requires begin insert otherwise end insert , the begin delete definitions in this article
govern the construction of this article. end delete begin insert following terms have the
following meanings: end insert

(a)  begin delete “Baseline of the number of household batteries collected by
all producers subject to the plan” means end delete begin insert “Baseline” means the
number of household batteries collected by all producers subject
to the plan as end insert a number calculated by weight based on the
percentage of household batteries that are collected during a
calendar year, as compared to the average number of household
batteries that were annually sold in the state by those producers
during the previous three calendar years.

(b) “Brand” means a name, symbol, word, or traceable mark
that identifies a household begin delete battery, rather than its components, end delete
begin insert battery end insert and attributes the household battery to the owner or
licensee of the brand as the producer.

(c) “Collection rate” means begin delete a quantitative measure that each
program is required to collect by an established date. The collection
rate shall be calculated by weight and shall distinguish between
nonrechargeable household batteries and rechargeable household
batteries, but not by the individual producer of each battery end delete begin insert a
percentage by weight that each program is required to collect by
an established date end insert .

(d) “Discarded household battery” means a household battery
that has been discarded, as defined in subdivision (b) of Section
25124 of the Health and Safety Code.

begin delete

(e) “Distributor” means an entity that sells, offers for sale, or
makes available for sale in the state one or more unused household
batteries or one or more unused products incorporating or packaged
with a household battery and is not the brand owner of the unused
household batteries or unused products incorporating or packaged
with one or more household batteries.

(f) (1) “Household battery” has the same meaning as defined
in subdivision (c) of Section 42450, but shall not include any of
the following:

end delete begin insert

(e) “Household battery” means a battery weighing two
kilograms or less made of mercury, alkaline, carbon-zinc, or
nickel-cadmium, and any other battery typically generated as
household waste, including, but not limited to, a battery used in
cameras, watches, calculators, flashlights, lanterns, standby and
emergency lighting, portable radio and television sets, meters,
toys, and clocks. “Household battery” does not include any of the
following:

end insert begin delete

(A)

end delete

begin insert ( end insert begin insert 1) end insert  A battery that is sold in a covered electronic device, as
defined in Section 42463.

begin delete

(B)

end delete

begin insert ( end insert begin insert 2) end insert  A battery that is not easily removable or is not intended or
designed to be removed from the product, other than by the
manufacturer.

begin delete

(2) “Household battery” includes both rechargeable and
nonrechargeable household batteries.

end delete begin insert

(3) A battery that is sold in a medical device, as defined in the
federal Food, Drug, and Cosmetic Act by paragraph (h) of Section
321 of Title 21 of the United States Code.

end insert begin delete

(g)

end delete

begin insert (f) end insert  “Household battery stewardship organization” or
“organization” means an organization appointed by one or more
producers pursuant to paragraph (1) of subdivision (b) of Section
42450.2 to act as an agent on behalf of the producer to design,
submit, and administer a household battery stewardship plan
pursuant to this article.

begin delete

(h)

end delete

begin insert ( end insert begin insert g) end insert  “Household battery stewardship plan” or “plan” means a
plan submitted to the department pursuant to Section 42450.2 by
an individual producer or a household battery stewardship
organization.

begin delete

(i) “Recycling” means the process of collecting and preparing
recyclable materials and reusing the materials in their original form
or using them in manufacturing processes that do not cause the
destruction of recyclable materials in a manner that precludes
further use.

(j) “Nonrechargeable battery” means a battery weighing 2
kilograms or less that is not designed to be electrically recharged.
A nonrechargeable battery includes, but is not limited to, alkaline
manganese, carbon zinc, lithium, silver oxide, and zinc air batteries.

end delete begin insert

(h) “Recycling” has the same meaning as defined in Section
40180.

end insert begin delete

(k)

end delete

begin insert (i) end insert  “Producer” shall be determined, with regard to a household
battery that is sold, offered for sale, or distributed in the state, as
meaning one of the following:

(1) The person who manufactures the household battery and
who sells begin delete , end delete begin insert or end insert offers for sale begin delete , or is the distributor of, end delete that household
battery in the state under that person’s own name or brand.

(2) If there is no person who sells begin delete , end delete begin insert or end insert offers for sale begin delete , or is the
distributor of, end delete the household battery in the state under the person’s
own name or brand, the producer of the household battery is the
owner or licensee of a trademark or brand under which the
household battery is sold or distributed in the state, whether or not
the trademark is registered.

(3) If there is no person who is a producer of the household
battery for purposes of paragraphs (1) and (2), the producer of that
household battery is the person who imports the household battery
into the state for sale or distribution.

begin delete

(l)

end delete

begin insert ( end insert begin insert j) end insert  “Product stewardship” means requiring the producer of a
household battery, and all other entities involved in the distribution
chain of a household battery, to share in the collection and
recycling of the household battery.

begin delete

(m)

end delete

begin insert (k) end insert  “Program” means the system for the collection,
transportation, recycling, and disposal of household batteries
implemented pursuant to an approved household battery
stewardship plan.

begin delete

(n)

end delete

begin insert (l) end insert  “Reporting period” means the period commencing January
1 and ending on December 31 of the same calendar year.

begin delete

(o)

end delete

begin insert ( end insert begin insert m) end insert  “Retailer” means a person that offers new household
batteries in a retail sale, as defined in Section 6007 of the Revenue
and Taxation Code, including a retail sale at retail through any
means, including remote offerings such as sales outlets, catalogs,
or an Internet Web site.

begin delete

(p) “Sell” or “sales” means any transfer of title of a household
battery for consideration, including a remote sale conducted
through a sale outlet, catalog, or Internet Web site or similar
electronic means, but does not include a lease.

end delete begin delete

(q)

end delete

begin insert ( end insert begin insert n) end insert  “Wholesaler” means a person that offers new household
batteries 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
for which the household battery is intended to be resold.

42450.2.  

(a) On or before January 1, 2015, each producer or
the household battery stewardship organization begin delete for one or more
producers of household batteries end delete shall submit a household battery
stewardship plan to the department.

(b) (1) If one or more producers appoint a household battery
stewardship organization to act as an agent on behalf of one or
more of those producers, the organization may include producers,
and shall also include, at minimum, one voting member from each
of the following organizations, with priority given to those based
in California:

(A) Retailers.

(B) Local governments.

(C) Public representatives.

(D) Haulers.

(E) Recyclers.

(2) If the household battery stewardship organization is unable
to recruit members from the organizations identified in paragraph
(1), the stewardship organization shall provide an explanation to
the department in the plan submitted pursuant to this section or
the annual report required by Section 42450.9.

(c) (1) Except as provided in paragraph (2), before submitting
the household battery stewardship plan to the department, the
producer begin delete , group of producers, end delete or household battery stewardship
organization shall consult with stakeholders, including retailers,
collectors, recyclers, local government, and customers, during the
development of the household battery stewardship plan, and shall
solicit stakeholder comments and respond to stakeholder comments.
begin insert All stakeholder meetings shall be available using
telecommunication. end insert

(2) If stakeholder involvement is not feasible, the producer,
group of producers, or household battery stewardship organization
shall provide an explanation to the department in the plan submitted
pursuant to this section or the annual report required by Section
42450.9.

(d) Each household battery stewardship plan shall include, at a
minimum, all of the following elements:

(1) Contact information for all participating producers.

(2) The collection rate for the household batteries subject to the
plan in the following manner, except as provided in Section
42450.3:

(A) A baseline of the number of household batteries collected
by all producers subject to the plan, which shall be calculated by
weight based on the percentage of household batteries collected
during the previous calendar year, as compared to the average
number of household batteries that were sold in the state during
the previous three calendar years by all producers that are subject
to the plan.

(B) If a producer subject to the plan previously collected data
to establish a baseline number of household batteries, that baseline
number may be used to fulfill the requirement in subparagraph
(A), if the data is no more than three years old and the producer
submits the data collected and methodology used to calculate that
number to the department in the plan.

(C) The program shall achieve an increase in the household
battery collection rate of 25 percent, starting at the baseline rate
calculated pursuant to subparagraph (A) or (B), for the 2019
calendar year.

(3) A description of the brands of the household batteries
covered by the plan and the baseline of household batteries
collected during the previous calendar year, as determined pursuant
to subparagraph (A) of paragraph (2).

(4) The number and type of convenient collection opportunities
provided free of charge for consumers in all counties of the state,
the methods by which the discarded household batteries will be
collected in all areas in the state, and an explanation of how the
collection system will be convenient and adequate to serve the
ongoing needs of small businesses and consumers in both urban
and rural areas.

(5) A description of the method that will be used to recycle the
discarded household batteries to ensure that the components of the
discarded household batteries, to the extent feasible, are
begin delete transformed or remanufactured into finished batteries for use end delete
begin insert recycled or remanufacutured into new products end insert .

(6) Roles and responsibilities of key participants in the
household battery distribution chain.

(7) The outreach procedures that will be used to provide notice
of the program to begin delete employers end delete begin insert businesses end insert , local agencies, retailers,
wholesalers, and begin delete waste end delete haulers.

(8) The manner in which existing household battery collection
points and other programs can be identified and maximized to
achieve the required collection rates.

(9) The methods begin delete of disposing end delete begin insert for managing end insert the household
batteries collected pursuant to the plan.

(10) (A) The financing method selected to sustainably fund the
implementation of the plan for achieving the identified collection
rates described in the plan.

(B) The financing method shall not include a separate and
distinct fee at the point of purchase.

(11) The planned educational activities to maximize collection
rates, including, but not limited to, the use of social media,
billboards, print, and radio, and information provided at the point
of sale.

begin insert

(12) A report on the feedback from any stakeholders’ meetings
held pursuant to subdivision (c).

end insert

(e) The producer or household battery stewardship organization
may elect to include provisions in the plan for the implementation
of the program in conjunction with those cities, counties, districts,
and regional agencies, in whose jurisdictions the program will be
implemented. If the producer or household battery stewardship
organization makes this election, the producer or household battery
stewardship organization shall provide one or more of the following
to cities, counties, districts, and regional agencies participating in
the stewardship program:

(1) Reasonable reimbursement for the mutually agreed upon
cost per pound of collected household batteries.

(2) The location, hours, and contact information for the
convenient collection points for discarded household batteries that
are located within the county where the local agency is located
and that are consistent with the plan.

(3) Products for setting up a collection point within that local
agency and providing for the pickup of household batteries
collected, including, but not limited to, arranging for the disposal
of those household batteries.

42450.3.  

A producer or household battery stewardship
organization may petition the department for an adjustment to the
collection rate specified in the plan. The department may grant an
adjustment to the collection rate only if the department determines
there are documented exigent circumstances that are beyond the
control of the producer or household battery stewardship
organization.

42450.4.  

(a) On or before 30 days after the date a plan is
received pursuant to Section 42450.2, the department shall review
the plan to determine whether each plan element has been
addressed in the plan and the plan adequately addresses stakeholder
comments and oversight concerns. If the department does not
approve the plan, the department shall notify the producer or
organization that submitted the plan which elements were not
adequately addressed, and the producer or organization shall revise
and resubmit the plan within 45 days after receiving the
notification. If the department approves the plan, the department
shall, within begin delete 45 end delete begin insert 30 end insert days after receipt, notify the producer or
organization that the submitted plan is approved.

(b) The department shall make all household battery stewardship
plans submitted to the department pursuant to Section 42450.2
available to the public on the department’s Internet Web site begin insert , but
shall not publish information protected under the Uniform Trade
Secrets Act (Title 5 (commencing with Section 3426) of Part 1 of
Division 4 of the Civil Code) end insert .

(c) A producer or organization shall notify the department 30
days before instituting a significant or material change to an
approved household battery stewardship plan.

(d) On or before begin delete September end delete begin insert April end insert 1, 2015, and on or before
begin delete September end delete begin insert April end insert 1 annually thereafter, the department shall post
on its Internet Web site a listing of the brands of household
batteries for which the producer is in compliance with this article
and for which the household battery stewardship plan is in
compliance with this article, as specified in Section 42450.7.

42450.5.  

On and after begin delete , April end delete begin insert September end insert 1, 2015, a producer,
wholesaler, or retailer shall not offer a household battery for sale
in this state or offer a household battery for promotional purposes
in this state unless the plan submitted by the producer or household
battery stewardship organization of that household battery has
been approved by the department pursuant to Section 42450.4.

42450.6.  

Upon receiving notification from the department
pursuant to Section 42450.4 that a plan is approved, the producer
or the household battery stewardship organization shall do all of
the following:

(a) Implement the plan, including, but not limited to, achieving
the collection rate specified in the plan.

begin delete

(b) Pay the administrative fees imposed pursuant to subdivision
(b) of Section 42450.10.

end delete begin delete

(c)

end delete

begin insert (b) end insert  Submit the annual report required by Section 42450.9.

begin delete

(d)

end delete

begin insert (c) end insert  (1) If a producer or household battery stewardship
organization elects to implement the plan in conjunction with cities,
counties, districts, and regional agencies pursuant to subdivision
(e) of Section 42450.2, the producer or organization shall take the
actions specified in subdivision (e) of Section 42450.2.

(2) A local agency that elects to participate in the program shall
separate from any other materials the household batteries begin delete made
available end delete for collection by the producer or household battery
stewardship organization.

42450.7.  

A household battery stewardship program shall be
considered in compliance with this article if it achieves the
collection rate for household batteries covered by the plan, as
required by paragraph (2) of subdivision (d) of Section 42450.2.

42450.8.  

(a) A wholesaler or a retailer that distributes or sells
household batteries shall monitor the department’s Internet Web
site to determine if the sale of a producer’s household batteries is
begin delete not prohibited by end delete begin insert approved pursuant to end insert Section 42450.5.

(b) A retailer shall have 90 days from the date begin delete a noncompliant
brand is posted on the department’s Internet Web site to sell the
remaining stock of those noncompliant household batteries or to
remove the product from sale. An enforcement action shall not be
taken against a retailer pursuant to this article with regard to that
noncompliant brand end delete begin insert the list of approved brands is posted on the
department’s Internet Web site pursuant to subdivision (d) of
Section 42450.4 to sell the remaining stock of those household
batteries that are not approved or to remove the product from sale.
An enforcement action shall not be taken against a retailer
pursuant to this article with regard to brands that are not approved end insert
until after that 90-day period has expired.

42450.9.  

(a) On or before April 1, 2015, and every begin delete subsequent end delete
year thereafter, each producer or household battery stewardship
organization implementing a plan shall prepare and submit to the
department an annual report describing the activities carried out
pursuant to the plan during the previous calendar year. The annual
report shall include, but is not limited to, all of the following
elements:

(1) The weight of household batteries collected by the program
in the prior year and the collection rate achieved in the prior year.

(2) A report of the estimated total sales data by weight for
household batteries sold in the state for the previous three calendar
years.

(3) A report on the feedback from a stakeholders’ meeting,
hosted by producers, that was made available through
telecommunication, prior to submittal of the annual report.

(4)  begin delete Independently audited financial end delete begin insert Financial end insert statements that
detail the financing of the plan.

(5) Locations, hours, and contact information for all collection
points set up by the producers covered by the plan.

(6) Examples and description of educational materials used to
increase collection.

(7) The manner in which the collected household batteries were
begin delete disposed of and end delete recycled.

(b) The department shall review an annual report by doing all
of the following:

(1) For the 2019 calendar year, if the report is submitted for that
year, begin delete and end delete or for each year thereafter, the department shall certify
that the collection points listed in the annual report are located in
every county and serve the ongoing needs of small businesses and
consumers in both urban and rural areas, as specified in paragraph
(4) of subdivision (d) of Section 42450.2.

(2) Review sales and collection data provided for the state to
verify collection rates.

(3) Verify that all annual report elements specified in subdivision
(a) have been addressed in the report.

(c) If the department does not act on a report within 45 days of
receipt, the report shall be deemed to be approved.

(d) The department shall make all reports submitted to the
department pursuant to this section available to the public on the
department’s Internet Web site begin insert , but shall not publish information
protected under the Uniform Trade Secrets Act (Title 5
(commencing with Section 3426) of Part 1 of Division 4 of the
Civil Code) end insert .

(e) If the collection rate for the household batteries subject to
the plan meets the collection rate specified in subparagraph (C) of
paragraph (2) of subdivision (d) of Section 42450.2, the report
shall be submitted once every two years.

begin insert

(f) The department may audit any information provided in the
annual report.

end insert

42450.10.  

(a) (1) A producer or household battery stewardship
organization that submits a household battery stewardship plan to
the department shall pay a plan review fee to the department
pursuant to this subdivision.

(2) The department shall set the plan review fee at an amount
so that the total amount of plan review fees received by the
department is no more than necessary to cover the reasonable costs
of reviewing and enforcing the plan. The department may establish
a variable plan review fee based on relevant factors, including, but
not limited to, the proportion of household batteries produced by
the feepayer as compared to the total amount of batteries produced
by all producers or household battery stewardship organizations
submitting a household battery stewardship plan. The department
shall establish the fee so that the manner in which the fee is
allocated bears a fair and reasonable relationship to the
department’s costs in reviewing a plan.

(3) The fee shall be due to the department upon submittal of the
plan.

(b) (1) A producer or household battery stewardship
organization required to submit an annual report pursuant to this
article shall pay an annual administrative fee to the department
pursuant to this subdivision.

(2) The department shall set the annual administrative fee in an
amount that is no more than necessary to cover the reasonable
costs of reviewing annual reports and enforcing this article. The
department may establish a variable annual administrative fee
based on relevant factors, including, but not limited to, the
proportion of household batteries produced by the feepayer, as
compared to the total amount of household batteries produced by
all producers or household battery stewardship organizations
submitting an annual report, and whether the producer is submitting
a plan every two years as specified in subdivision (e) of Section
42450.9. The department shall establish the fee so that the manner
in which the fee is allocated bears a fair and reasonable relationship
to the department’s costs in reviewing the annual reports and
enforcing this article.

(3) The fee shall be due to the department upon submittal of the
annual report.

(c) The total amount of 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 article.

42450.11.  

(a) The Household Battery Stewardship Account
and the Household Battery Stewardship Penalty Subaccount are
hereby established in the Integrated Waste Management Fund.

(b) All fees collected pursuant to this article shall be deposited
in the Household Battery Stewardship Account and may be
expended by the department, upon appropriation by the Legislature,
to cover the department’s costs to implement this article.

(c) All penalties collected pursuant to this article shall be
deposited in the Household Battery Stewardship Penalty
Subaccount and may be expended by the department, upon
appropriation by the Legislature, to cover the department’s costs
to implement this article.

(d) All funds that are collected or received by the department
pursuant to this article, other than the fees specified in subdivision
(b), may be expended as incentives to enhance reuse, recyclability,
and redesign efforts and to reduce environmental and safety impacts
of household batteries.

42450.13.  

(a) The department may impose an administrative
civil penalty not to exceed one thousand dollars ($1,000) per day
against a wholesaler or retailer that violates Section 42450.5.

(b) A wholesaler or retailer that removes from sale any
household battery within 90 days of discovery that it is not in
compliance with this article shall not be deemed to be in violation
of Section 42450.5.

(c) Prior to begin delete enforcing end delete begin insert issuing end insert any penalty pursuant to this
section, the department shall issue a compliance order to the
wholesaler or retailer selling the household battery that allows 30
days from the date of the compliance order to cease sales of the
household battery.

42450.14.  

(a) A producer or begin insert household battery stewardship end insert
organization that implements a plan in compliance with this article
and incurs costs in excess of five thousand dollars ($5,000) in
collecting, handling, begin insert or end insert recycling begin delete , or properly disposing of end delete
household batteries sold or offered for sale in the begin delete state, end delete begin insert state end insert may
bring a civil action to recover costs, damages, and fees, as specified
in subdivision (c), from another producer for failure to comply
with this article, if that producer can be identified from a brand or
marking on a discarded household battery or from other
information.

(b) An action under this section may be brought against one or
more producers who are not in compliance with this article, except
an action shall not be commenced under either of the following
circumstances:

(1) No earlier than 60 days after a written notice of the
organization’s or producer’s intention to file an action has been
provided to the department and to the producer who is alleged to
be noncompliant.

(2) If the department has commenced an enforcement action
against the producer who is alleged to be noncompliant and is
diligently pursuing that action.

(c) In an action under this section, the plaintiff may recover
from a producer who has been found to be noncompliant all of the
following:

(1) The costs the plaintiff incurred in collecting, handling,
recycling, or properly disposing of household batteries reasonably
identified as having originated from the noncompliant producer.

(2) An amount of damages equal to no more than three times
those costs specified in paragraph (1).

(3) The plaintiff’s attorney’s fees and costs of bringing the
action.

begin delete

(d) An action to recover the costs specified in this section may
be brought in any court in the state, without regard to the amount
in dispute.

end delete begin delete

(e) An action to recover the costs specified in this section may
be brought in any court in the state, without regard to the amount
in dispute.

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42450.16.  

This article 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
household batteries in its household battery registry.

42450.17.  

(a) Except as provided in subdivision (b), an action
taken to increase the recycling of household batteries pursuant to
this article by a producer or household battery stewardship
organization that affects the types or quantities being recycled or
the cost and structure of any return program is not a violation of
either the Cartwright Act (Chapter 2 (commencing with Section
16700) of Part 2 of Division 7 of the Business and Professions
Code), or the Unfair Practices Act (Chapter 4 (commencing with
Section 17000), of Part 2 of Division 7 of the Business and
Professions Code).

(b) Subdivision (a) shall not apply to any agreement establishing
or affecting the price of household batteries or the output or
production of household batteries, or any agreement restricting
the geographic area in which, or customers to whom, household
batteries will be sold.