BILL NUMBER: AB 2392 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Gatto
FEBRUARY 21, 2014
An act to amend Sections 42300, 42301, 42310, 42310.3, 42320,
42321, 42322, 42323, 42325, 42326, 42327, and 42330 of, and to repeal
Sections 42310.1 and 42310.2 of, the Public Resources Code, relating
to recycling.
LEGISLATIVE COUNSEL'S DIGEST
AB 2392, as introduced, Gatto. Recycling: plastic containers.
(1) The California Integrated Waste Management Act of 1989
requires rigid plastic packaging containers that are sold or offered
for sale in this state to meet, on average, one of specified criteria
and defines terms for purposes of those requirements. One criteria
that a product-associated or a single resin type rigid plastic
packaging container may meet to satisfy this requirement is that it
have a recycling rate of 45%. The Department of Resources Recycling
and Recovery is required to enforce the act's plastic packaging
container requirements and a violation of these requirements is a
crime.
This bill would increase the recycling rate that a
product-associated, or single resin type, rigid plastic packaging
container is required to meet under this criteria to 75%, thereby
imposing a state-mandated local program by changing the definition of
a crime. The bill would also delete obsolete provisions and make
conforming and nonsubstantive changes.
(2) 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.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 42300 of the Public Resources Code is amended
to read:
42300. The Legislature finds and declares all of the following:
(a) Recycling rigid plastic packaging containers saves landfill
space, reduces energy consumption, and preserves natural resources.
(b) The California Integrated Waste Management Act of 1989
requires cities and counties to reduce the amount of waste disposed
in landfills by 50 percent by the end of the decade through source
reduction, recycling, and composting.
(c) The Legislature has established a statewide goal that 75
percent of solid waste annually generated in this state be source
reduced, recycled, or composted by the year 2020. It is the intent of
the Legislature in enacting the act that added this subdivision in
the 2013-14 Regular Session of the Legislature to update this chapter
to meet that new target recycling goal.
(c)
(d) Rigid plastic packaging containers represent a
significant component of the solid waste generated in the state.
(d)
(e) In order for recycling in the state to be
successful, it is critical that stable, in-state markets be developed
for material separately collected from the waste stream and
processed for recycling.
(e)
(f) As of the effective date of this chapter
January 1, 1994 , curbside collection of
recyclables is was available to nearly
20 percent of the state's residents. In order to expand the variety
of materials collected in these programs, including all rigid plastic
packaging containers, it is essential that stable markets exist for
the plastic materials collected.
(f)
( g) The state has required several types of
products to use increasing levels of postconsumer recycled material
in their manufacture, including newsprint, glass containers, and
plastic trash bags.
(g)
( h) Some of the nation's largest consumer
product manufacturers have announced plans to require, or are
currently requiring, their plastic packaging suppliers to provide
them with containers comprised of increasing levels of postconsumer
recycled materials, demonstrating that the technology is already
available to use recycled material to make new plastic packaging
containers. However, many businesses continue to purchase packaging
materials made from 100 percent virgin plastic and to sell them in
the state.
(h)
( i) The food and consumer products
industries are manufacturing safe products and packaging using
plastic materials, some of which use less raw material than other
packaging materials through source reduction and the reuse and
recycling of used plastic materials.
(i)
( j) The Legislature recognizes that the
need to reduce the amount of solid waste generated by food products
must be balanced with the need to package those products so that they
are resistant to tampering, damage, and spoilage.
(j)
( k) It is, therefore, the intent of the
Legislature to spur markets for plastic materials collected for
recycling by requiring manufacturers to utilize increasing amounts of
postconsumer recycled material in their rigid plastic packaging
containers only if the use of that material does not present an
unreasonable risk to the public health and safety, and to achieve
high recycling rates for these rigid plastic packaging containers.
SEC. 2. Section 42301 of the Public Resources Code is amended to
read:
42301. For purposes of this chapter, the following definitions
apply:
(a) "Container manufacturer" means a company or a successor
company that sells any rigid plastic packaging container subject to
this chapter to a manufacturer that sells or offers for sale in this
state any product packaged in that container.
(b) "Curbside collection program" means a recycling program that
collects materials set out by households for collection at the curb
at intervals not less than every two weeks. "Curbside collection
program" does not include redemption centers, buyback locations,
drop-off programs, material recovery facilities, or plastic recovery
facilities.
(c) "Refillable package" means a rigid plastic packaging container
that the board department determines
is routinely returned to and refilled by the product manufacturer at
least five times with the original product contained by the package.
(d) "Reusable package" means a rigid plastic packaging container
that the board department determines is
routinely reused by consumers at least five times to store the
original product contained by the package.
(e) "Manufacturer" means the producer or generator of a product
that is sold or offered for sale in the state and that is stored
inside of a rigid plastic packaging container.
(f) "Rigid plastic packaging container" means any plastic package
having a relatively inflexible finite shape or form, with a minimum
capacity of eight fluid ounces or its equivalent volume and a maximum
capacity of five fluid gallons or its equivalent volume, that is
capable of maintaining its shape while holding other products,
including, but not limited to, bottles, cartons, and other
receptacles, for sale or distribution in the state.
(g) "Postconsumer material" means a material that would otherwise
be destined for solid waste disposal, having completed its intended
end use and product lifecycle. Postconsumer material does not include
materials and byproducts generated from, and commonly reused within,
an original manufacturing and fabrication process.
(h) "Recycled" means a product or material that has been reused in
the production of another product and has been diverted from
disposal in a landfill.
(i) "Recycling rate" means the proportion, as measured by weight,
volume, or number, of a rigid plastic packaging container sold or
offered for sale in the state that is being recycled in a given
calendar year, that is one of the following:
(1) A particular type of rigid plastic packaging container, such
as a milk jug, soft drink container, or detergent bottle.
(2) A product-associated rigid plastic packaging container.
(3) A single resin type, as specified in Section 18015, of rigid
plastic packaging container, notwithstanding the exemption of that
container from this chapter pursuant to subdivision (b), (c), or (d)
of Section 42340.
(j) (1) "Source reduced container" means either of the
following: a rigid plastic container for which
the container weight per unit or number of product uses has been
reduced by 10 percent when compared with any one of the following:
(A) A rigid plastic packaging container for which the manufacturer
seeks compliance as of January 1, 1995, whose package weight per
unit or use of product has been reduced by 10 percent when compared
with the packaging used for that product by the manufacturer from
January 1, 1990, to December 31, 1994.
(B) A rigid plastic container for which the manufacturer seeks
compliance after January 1, 1995, whose package weight per unit or
use of product has been reduced by 10 percent when compared with one
of the following:
(i)
( A) The rigid plastic packaging
container used for the product by the manufacturer on
January 1, 1995.
(ii)
(B) The rigid plastic packaging cont
ain er used for that product by the
manufacturer over the course of the first full year of commerce in
this state.
(iii)
(C) The packaging used in commerce that same year for
similar products whose containers have not been considered source
reduced.
(2) A rigid plastic packaging container is not a source reduced
container for the purposes of this chapter if the packaging reduction
was achieved by any of the following:
(A) Substituting a different material type for a material that
previously constituted the principal material of the container.
(B) Increasing a container's weight per unit or use of product
after January 1, 1991.
(C) Packaging changes that adversely affect the potential for the
rigid plastic packaging container to be recycled or to be made of
postconsumer material.
(k) "Product-associated rigid plastic packaging container" means a
brand-specific, rigid plastic packaging line that may have one or
more sizes, shapes, or designs and that is used in conjunction with a
particular generic product line.
( l ) "PETE" means polyethylene terephthalate as
specified in subdivision (a) of Section 18015.
(m) "HDPE" means high-density polyethylene.
SEC. 3. Section 42310 of the Public Resources Code is amended to
read:
42310. Except as otherwise provided in this chapter, every rigid
plastic packaging container sold or offered for sale in this state
shall, on average, meet one of the following criteria:
(a) Be made from 25 percent postconsumer material.
(b) Have a recycling rate of 45 75
percent if it is a product-associated rigid plastic packaging
container or a single resin type of rigid plastic packaging
container, as demonstrated to the board
department by the product maker, container manufacturer, or
other entity. The board department may
take appropriate action to verify the demonstration, but the
board department is not required to expend
state funds to conduct a survey or calculate the rate.
(c) Be a reusable package or a refillable package.
(d) Be a source reduced container.
(e) Is a container containing floral preservative that is
subsequently reused by the floral industry for at least two years.
SEC. 4. Section 42310.1 of the Public Resources Code is repealed.
42310.1. (a) Until January 1, 1997, the criteria specified in
Section 42310 shall not apply to any rigid plastic packaging
container that is manufactured for use with food or cosmetics, as
defined in subdivisions (f) and (i) of Section 321 of Title 21 of the
United States Code.
(b) Notwithstanding subdivision (a), rigid plastic packaging
containers actually recycled shall be included in calculating the
recycling rate pursuant to subdivision (b) or (c) of Section 42310.
(c) Every manufacturer of a product packaged in a rigid plastic
packaging container described in subdivision (a), which is not in
compliance with Section 42310, that is exempt from the criteria
specified in Section 42310 pursuant to subdivision (a), shall do both
of the following:
(1) On or before December 1, 1995, the manufacturer shall submit a
report to the board which demonstrates that the manufacturer is
taking, and will continue to take, all feasible actions consistent
with Section 42310 to ensure the reduction, recycling, or reuse of
the rigid plastic packaging containers described in subdivision (a)
and the development and expansion of markets for rigid plastic
packaging containers. Those actions may include, but are not limited
to, all of the following:
(A) The use of postconsumer recycled plastic in rigid plastic
packaging containers sold in this state.
(B) The use of postconsumer recycled plastic in other packaging
materials sold or manufactured in this state.
(C) The use of postconsumer recycled plastic in other products
sold or manufactured in this state.
(D) Arranging for the use of postconsumer recycled plastic
collected for recycling in this state in the manufacture of nonrigid
plastic packaging container products or packaging of another entity.
(E) The procurement of products containing postconsumer recycled
plastic, including, but not limited to, trash bags, trash containers,
pallets, carpeting, slip sheets, and shrink wrap.
(F) The demonstration of financial investment in recycled plastic
collecting, processing, and remanufacturing activities in the state.
(2) On or before January 1, 1996, every manufacturer of rigid
plastic packaging containers shall, for any rigid plastic packaging
container that is exempt from, and not in compliance with, the
criteria specified in Section 42310 pursuant to subdivision (a),
diligently seek one or more "nonobjection letters" from the United
States Food and Drug Administration which will permit the
manufacturer of rigid plastic packaging containers to use recycled
plastic in the manufacture of the rigid plastic packaging containers
described in subdivision (a).
SEC. 5. Section 42310.2 of the Public Resources Code is repealed.
42310.2. (a) On or before July 1, 1994, as part of the
regulations required to be adopted pursuant to Section 42325, the
board shall adopt regulations to carry out the requirements of
paragraph (1) of subdivision (c) of Section 42310.1. In adopting
regulations pursuant to this section, the board shall make every
effort to limit paperwork and information to only those matters that
are needed for the board to determine if manufacturers are taking all
feasible actions to ensure the reduction, recycling, or reuse of the
rigid plastic packaging containers described in subdivision (a) of
Section 42310.1, and the development and expansion of markets for
rigid plastic packaging containers.
(b) On or before February 1, 1996, the board shall review, and
approve or disapprove, the reports required pursuant to paragraph (1)
of subdivision (c) of Section 42310.1. If a report is not submitted
pursuant to a schedule established by the board, or, if, based upon
the report, the board determines that a manufacturer has not taken
all feasible actions to ensure the reduction, recycling, or reuse of
the containers and the development and expansion of markets for rigid
plastic packaging containers, the board may take one of the
following actions, as selected by the manufacturer:
(1) Require the manufacturer to take additional actions,
including, but not limited to, one or more of the measures described
in paragraph (1) of subdivision (c) of Section 42310.1, to ensure
that the manufacturer is taking, and will continue to take, all
feasible actions to ensure the reduction, recycling, or reuse of the
containers and the development and expansion of markets for rigid
plastic packaging containers.
(2) Impose a civil penalty of up to one hundred thousand dollars
($100,000) pursuant to Section 42322. In imposing monetary penalties
pursuant to this paragraph, the board shall take into consideration
all of the following factors:
(A) The size and net worth of the manufacturer.
(B) The impact of the violation on the overall objectives of this
chapter.
(C) The severity of the violation. A penalty imposed pursuant to
this paragraph shall not be required to be paid by a manufacturer
before January 1, 1997.
(c) If the board determines that the conditions in paragraphs (1)
and (2) are met, the board shall enter into a contract, or other
legally binding agreement, with one or more trade associations
representing manufacturers of resin, manufacturers of rigid plastic
packaging containers, or manufacturers of products packaged in rigid
plastic packaging containers subject to this section and Section
42310.1. The agreement shall allow the trade association, in lieu of
those individual manufacturers in the trade association who elect to
be a party to the contract or agreement, to submit the report
required pursuant to paragraph (1) of subdivision (c) of Section
42310.1 and to implement the actions identified in the report. The
board shall enter into the agreement only if both of the following
conditions exist:
(1) The agreement ensures that the report will contain sufficient
information that otherwise would be required to be submitted by
individual manufacturers pursuant to Section 42310.1, and any other
information that is necessary and directly related to the board's
ability to comply with this section.
(2) The agreement ensures that each manufacturer that elects to be
a party to the agreement and that is a member of the trade
association that submits the report shall be liable for the full
amount of any civil penalties that may be imposed or shall comply
with any requirement imposed by the board pursuant to paragraph (1)
of subdivision (b), as selected by the manufacturer. A manufacturer
subject to this paragraph shall not be liable for a civil penalty
greater than one hundred thousand dollars ($100,000), regardless of
the number of trade associations of which the manufacturer is a
member.
(d) Notwithstanding any other provision of this section, a trade
association representing resin manufacturers shall be responsible for
submitting an additional report as provided pursuant to paragraph
(1) of subdivision (c) of Section 42310.1. The resin manufacturer's
trade association is subject to the review, penalties, and sanctions
specified in paragraphs (1) and (2) of subdivision (b). No member of
the resin manufacturer's trade association is liable for penalties
and sanctions set forth in paragraph (1) or (2) of subdivision (b)
pursuant to this subdivision if that member would not otherwise be
subject to those penalties and sanctions.
(e) For the purposes of subdivision (b) and paragraph (1) of
subdivision (c) of Section 42310.1, "feasible" means capable of being
accomplished in a successful manner within a reasonable period of
time, taking into account economic, environmental, social, and
technological factors.
(f) For purposes of Section 42310.1 and this section regarding all
reporting, compliance, and penalty obligations, "manufacturer"
includes all subsidiaries and affiliates.
SEC. 6. Section 42310.3 of the Public Resources Code is amended to
read:
42310.3. (a) Notwithstanding Section 42310, a manufacturer is in
compliance with this chapter if the manufacturer demonstrates through
its own actions, or the actions of another company under the same
corporate ownership, that one of the following actions were taken
during the same period for which the manufacturer is subject to this
chapter, with regard to a rigid plastic packaging container that
stores the manufacturer's product that is sold or intended for sale
in this state:
(1) The manufacturer, or another company under the same corporate
ownership, consumed postconsumer material generated in the state in
the manufacture of a rigid plastic packaging container subject to
Section 42310, or a rigid plastic packaging container or other
plastic products or plastic packaging not subject to that section,
and that is equivalent to, or exceeds the postconsumer material that
the rigid plastic packaging container is otherwise required to
contain, as specified in subdivision (a) of Section 42310.
(2) The manufacturer, or any company under the same corporate
ownership, arranged by contractual agreement for the purchase and
consumption of postconsumer material generated in the state and
exported to another state for the manufacture of a rigid plastic
packaging container subject to Section 42310, or a rigid plastic
packaging container or other plastic products or plastic packaging
not subject to that section that is equivalent to, or exceeds the
postconsumer material that the rigid plastic packaging container is
otherwise required to contain, as specified in subdivision (a) of
Section 42310.
(b) The board department shall
determine the manner of demonstrating compliance with this section.
SEC. 7. Section 42320 of the Public Resources Code is amended to
read:
42320. Any entity required to make a certification pursuant to
this chapter may be audited by the board
department .
SEC. 8. Section 42321 of the Public Resources Code is amended to
read:
42321. If any entity provides the board
department with a false or misleading certificate pursuant to
this chapter, the board department ,
within 30 days of making this determination, shall refer the provider
of the false or misleading certificate to the Attorney General for
prosecution for fraud.
SEC. 9. Section 42322 of the Public Resources Code is amended to
read:
42322. (a) Any violation of this chapter is a public offense
punishable by a fine of not more than one hundred thousand dollars
($100,000).
(b) In addition to the penalty specified under subdivision (a),
any violation of this chapter may be subject to a civil penalty
assessed by the board department of not
more than fifty thousand dollars ($50,000) for each violation,
pursuant to a notice and hearing procedure that conforms with Chapter
5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2
of the Government Code.
(c) The total annual fines or penalties assessed upon a violator
of this chapter shall not exceed one hundred thousand dollars
($100,000).
(d) The board department shall
annually publish a list by July 1 setting forth any fines or
penalties that have been levied against a violator of this chapter in
the preceding calendar year, for failure to comply with the
requirements of this chapter.
(e) The board department shall
deposit all penalties or fines paid pursuant to this section into the
Rigid Container Account, which is hereby created in the Integrated
Waste Management Fund in the State Treasury. The moneys deposited in
the Rigid Container Account shall be expended by the board
department , upon appropriation by the
Legislature, to assist local governmental agencies to develop and
implement collection and processing systems for the recycling of
materials that are subject to this chapter, for the development of
markets for these materials, and for the board
department 's costs of implementing this
chapter.
SEC. 10. Section 42323 of the Public Resources Code is amended to
read:
42323. Proprietary information included in part of a report or
certificate submitted to the board department
pursuant to this chapter shall not be made available to the
general public.
SEC. 11. Section 42325 of the Public Resources Code is amended to
read:
42325. The board department shall
adopt regulations to implement this chapter. These regulations shall
include, but shall not be limited to, all of the following:
(a) Procedures for certifying compliance with Article 2
(commencing with Section 42310), including a requirement that product
manufacturers include in their specifications for rigid plastic
packaging containers a requirement that the packaging manufacturer
certify that the rigid plastic packaging containers comply with this
chapter.
(b) Procedures for considering and granting waivers pursuant to
Article 4 (commencing with Section 42330).
SEC. 12. Section 42326 of the Public Resources Code is amended to
read:
42326. In developing the regulations required by Section 42325,
the board department shall consult with
representatives of the manufacturers affected by this chapter, with
representatives of environmental organizations, and other interested
parties.
SEC. 13. Section 42327 of the Public Resources Code is amended to
read:
42327. The board department may
expend funds from the Integrated Waste Management Account to
implement this chapter, upon appropriation by the Legislature.
SEC. 14. Section 42330 of the Public Resources Code is amended to
read:
42330. (a) The board department
shall grant a waiver from the postconsumer material content
requirement of subdivision (a) of Section 42310, but not from any
other requirement of Section 42310, if the board
department finds one or more of the following:
(1) The rigid plastic packaging containers cannot meet the
postconsumer material requirements of subdivision (a) of Section
42310 and remain in compliance with applicable provisions of
regulations adopted by the Food and Drug Administration or other
state or federal laws or regulations.
(2) It is technologically infeasible to use rigid plastic
packaging containers that achieve the postconsumer material
requirement of subdivision (a) of Section 42310.
(b) The board department shall grant
a waiver from all of the requirements of Section 42310 if the
board department finds either
of the following:
(1) Less
less than 60 percent of the single-family homes in the
state on and after January 1, 1994, have curbside collection programs
that include beverage container recycling.
(2) At least 50 percent, by number, of a manufacturer's rigid
plastic packaging containers sold or offered for sale in the state in
the current calendar year achieve the postconsumer material
requirements of subdivision (a) of Section 42310 and all of the
manufacturer's rigid plastic packaging containers will comply with
the requirements of Section 42310 on or before January 1, 1996.
(c) The board department shall grant
a one-year waiver from all of the requirements of Section 42310 for
products packaged in rigid plastic packaging containers that are
introduced and sold in this state after January 1, 1995.
SEC. 15. 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.