Senate BillNo. 254


Introduced by Senator Hancock

February 13, 2013


An act to add Chapter 21 (commencing with Section 42985) to Part 3 of Division 30 of the Public Resources Code, relating to solid waste.

LEGISLATIVE COUNSEL’S DIGEST

SB 254, as introduced, Hancock. Solid waste: used mattresses: recycling and recovery.

(1) Existing law requires a retailer of various specified products, such as rechargeable batteries and cell phones, sold in the state to have in place a system for the acceptance and collection of those products for reuse, recycling, or proper disposal.

This bill would establish the Used Mattress Recovery and Recycling Act and would define terms for purposes of the act. The bill would require a manufacturer of mattresses sold in this state, individually, collectively, or through a stewardship organization, to provide in an electronic format an interim plan to the Department of Resources Recycling and Recovery by April 1, 2014, that ensures that the manufacturer will be responsible for the collection and recycling of used mattresses generated by consumers. The bill would require a manufacturer to implement the interim plan by July 1, 2014, and to continue implementation until a mattress stewardship plan is approved, conditionally approved, or disapproved by the department.

The bill would require a manufacturer of mattresses sold in this state, individually, collectively, or through a stewardship organization, to submit a mattress stewardship plan to the department by April 1, 2015. The bill would specify the requirements to be included in the plan, including meeting specified recycling goals. The bill would specify a procedure for the department’s approval, disapproval, or conditional approval of a plan.

The bill would require a retailer of mattresses on and after July 1, 2014, to offer the consumer the option of picking up a used mattress, at the time a new mattress is delivered to the consumer, at no additional cost to the consumer.

The bill would prohibit a manufacturer or retailer from selling or offering for sale a mattress to any person in this state unless the manufacturer is in compliance with the act and would prohibit a manufacturer from selling a mattress on or after August 1, 2015, if the manufacturer is not covered by an approved or conditionally approved plan. The bill would require the department, by August 1, 2015, except as specified, and by July 1 annually thereafter, to post on its Internet Web site a listing of manufacturers that have submitted a plan and to annually post a listing of manufacturers in compliance with the act. The bill would require retailers that distribute or sell mattresses to monitor the department’s Internet Web site to determine if the manufacturer of a mattress is in compliance with the requirements of the act.

The bill would require a manufacturer, individually, collectively, or through a stewardship organization, to submit an annual report to the department describing its mattress stewardship efforts. The bill would require the department to review the annual report within 90 days of receipt and adopt a finding of compliance or noncompliance with the requirements of the act. The bill would authorize the department to require a manufacturer or stewardship organization submitting that annual report that is not meeting the act’s requirements, to amend and resubmit the plan and would require the department to remove the manufacturer’s name from the listing of manufacturers that are in compliance, until as specified.

The bill would require recyclers and renovators, as defined, to submit an annual report to the department regarding mattresses received and recycled and would require the operator of a solid waste facility to submit an annual report to the department regarding the number of used mattresses received and designated for recycling or renovation in the state during the preceding calendar year.

The bill would authorize the department to require a manufacturer to pay the department a quarterly administrative fee, as determined by the department.

The bill would require these fees to be deposited into the Mattress Recovery and Recycling Account, which the bill would establish in the Integrated Waste Management Fund. The bill would provide that the moneys in the account would be available for expenditure by the department, upon appropriation by the Legislature.

The bill would require a manufacturer or stewardship organization to provide the department with reasonable and timely access, as determined by the department, to its facilities or operations, and to provide the department with any relevant records. The bill would require the records to be maintained and accessible for 3 years. The bill would require all reports and records to be provided to the department under penalty of perjury, thereby imposing a state-mandated local program by creating a new crime.

The bill would allow the department to impose an administrative civil penalty in specified amounts on a manufacturer, stewardship organization, or retailer who is in violation of the act. The bill would require the department to deposit all penalties collected into the Mattress Recovery and Recycling Penalty Account, which the bill would establish in the Integrated Waste Management Fund. The bill would provide that the moneys in the penalty account would be available for expenditure by the department, upon appropriation by the Legislature. The bill would also authorize the department to take other actions to enforce the act.

(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:

P3    1

SECTION 1.  

Chapter 21 (commencing with Section 42985)
2is added to Part 3 of Division 30 of the Public Resources Code, to
3read:

4 

5Chapter  21. Used Mattress Recovery and Recycling Act
6

 

7

42985.  

(a) The Legislature finds and declares all of the
8following:

9(1) In order to reduce illegal dumping, increase recycling, and
10substantially reduce public agency costs for the end-of-life
P4    1management of used mattresses, the Used Mattress Recovery and
2Recycling Act is hereby established by this chapter to require
3manufacturers of mattresses sold in this state to develop, finance,
4and implement a convenient and cost-effective program to collect,
5reuse where possible, and recycle used mattresses generated in
6this state.

7(2) Consistent with existing state policy, the program developed
8and implemented by manufacturers of mattresses sold in this state
9shall be capable of the recovery and recycling of at least 75 percent
10of used mattresses generated in this state annually on and after
11January 1, 2020.

12(b) This chapter shall be known, and may be cited, as the Used
13Mattress Recovery and Recycling Act.

14(c) This chapter does not prohibit a manufacturer from
15internalizing the cost of implementing this chapter.

16

42986.  

For the purposes of this chapter, the following terms
17have the following meanings:

18(a) “Account” means the Mattress Recovery and Recycling
19Account established pursuant to Section 42995.

20(b) “Common carrier” has the same meaning as defined in
21Section 2168 of the Civil Code.

22(c) “Consumer” means an owner of a mattress, including a
23person, business, corporation, limited partnership, nonprofit
24organization, or governmental entity.

25(d) “Interim plan” means a plan provided to the department
26pursuant to Section 42987.

27(e) (1) “Manufacturer” means one of the following persons:

28(A) A person who manufactures a mattress and who sells, offers
29for sale, or distributes the mattress in the state under that person’s
30own name or brand.

31(B) If there is no person who is a manufacturer of the mattress
32for the purpose of subparagraph (A), the manufacturer is the person
33named on the label pursuant to Section 1633.12 of Title 16 of the
34Code of Federal Regulations.

35(2) A retailer whose name or brand may be on a mattress is not
36the manufacturer of the mattress, unless the retailer actually made,
37produced, and assembled that product.

38(f) (1) “Mattress” means any resilient material or combination
39of materials that is enclosed by a twin size or larger mattress
P5    1ticking, used alone or in combination with other products, and that
2is intended for or promoted for sleeping upon.

3(2) “Mattress” includes any foundation and any renovation.

4(3) “Mattress” does not include an unattached mattress pad,
5unattached mattress topper, sleeping bag, pillow, car bed, carriage,
6basket, dressing table, stroller, playpen, infant carrier, lounge pad,
7crib bumper, liquid and gaseous filled ticking including any water
8bed and air mattress that does not contain upholstery material
9between the ticking and the mattress core, and upholstered furniture
10that does not otherwise contain a detachable mattress.

11(g) “Mattress stewardship plan” or “plan” means a plan
12submitted to the department pursuant to Section 42988.

13(h) “Recycle” or “recycling” has the same meaning as defined
14in Section 40180. For the purposes of this chapter renovation shall
15be considered recycling.

16(i) “Recycler” means a person that engages in the manual or
17mechanical separation of mattresses to substantially recover
18components and commodities contained in the mattresses for the
19purpose of reuse or recycling.

20(j) (1) “Renovate” or “renovation” means altering a mattress
21for the purpose of resale and includes any one, or a combination
22of, the following:

23(A) Replacing the mattress ticking or filling.

24(B) Adding additional filling.

25(C) Rebuilding a mattress.

26(D) Replacing components with new or recycled materials.

27(2) “Renovate” or “renovation” does not include any of the
28following:

29(A) Stripping of a mattress of its ticking or filling without adding
30new material.

31(B) Sterilizing or sanitizing a mattress without otherwise altering
32the mattress.

33(C) Altering a mattress by a renovator when a person retains
34the altered mattress for lease, rental, or personal use.

35(D) Refurbishing that disqualifies a mattress for a yellow
36wholesale renovator tag to be affixed to the mattress, in accordance
37with the regulations adopted by the Department of Consumer
38Affairs.

39(k) “Renovator” means a person that renovates used mattresses.

P6    1(l) “Retailer” means a person who sells mattresses in the state
2or offers to consumers mattresses in the state through any means,
3including, but not limited to, by remote offering such as sales
4outlets or catalogs.

5(m) “Stewardship organization” means a nonprofit organization
6created by one or more manufacturers to act on behalf of the
7manufacturer to provide an interim plan to the department pursuant
8to Section 42987 or to design, submit, and implement a mattress
9stewardship plan pursuant to Section 42988.

10(n) “Used mattress” means a mattress that is no longer used for
11its manufactured purpose.

12(o) “Voucher” means a promise to a consumer of a new mattress
13to provide that consumer with a future, no cost take back of a used
14mattress for recycling, as described in this chapter. The voucher
15may include a payment, coupon, chit, or other form of paper or
16electronic authorization that enables the consumer to drop off a
17used mattress for recycling at any recycling facility or solid waste
18facility at no cost to the consumer, and which the operator of the
19facility can then redeem from a manufacturer or the manufacturer’s
20agent in order to cover the cost of recovery and recycling.

21

42987.  

(a) On or before April 1, 2014, a manufacturer of
22mattresses sold in this state shall, individually, collectively, or
23through a stewardship organization, provide an interim plan to the
24department in an electronic format.

25(b) The interim plan shall ensure that the manufacturer will be
26responsible for the collection and recycling of used mattresses
27generated by consumers. The interim plan shall include a
28description of activities that the manufacturer shall undertake as
29part of the plan and shall require the manufacturer to do all of the
30following:

31(1) Ensure that when a new mattress is delivered to a consumer
32by a retailer, the consumer is given the option of having a used
33mattress picked up for recycling at the time of delivery, at no
34additional cost to the consumer or retailer. A retailer may contract
35out to a third-party entity for the pickup of used mattresses.

36(2) Ensure that when a new mattress is purchased and picked
37up by a consumer, the consumer is given a voucher that provides
38for the dropoff and recycling of a used mattress at a local solid
39waste or recycling facility at no additional cost to the consumer,
40retailer, or facility.

P7    1(3) Otherwise provide consumers with convenient opportunities
2to properly dispose of their used mattresses.

3(c) The department shall post the interim plan provided pursuant
4to this section on its Internet Web site.

5(d) On and after July 1, 2014, a manufacturer shall implement
6the interim plan provided pursuant to subdivision (a) and shall
7continue implementation of the interim plan until the mattress
8stewardship plan required by Section 42988 is approved,
9conditionally approved, or disapproved by the department pursuant
10to Section 42989.

11(e) A manufacturer shall provide retailers with relevant materials
1260 days prior to implementation of the interim plan.

13

42988.  

(a) On or before April 1, 2015, a manufacturer shall,
14individually, collectively, or though a mattress stewardship
15organization, submit a mattress stewardship plan to the department
16that meets the requirements of this section.

17(b) A mattress stewardship plan submitted pursuant to this
18section shall include all of the following elements:

19(1) Program activities to achieve the used mattress recycling
20goals established in subdivision (c).

21(2) Existing and planned used mattress take-back sites or
22collection locations, including estimated timelines for any planned
23expansion, if applicable.

24(3) Program objectives consistent with the state’s solid waste
25management hierarchy

26(4) Ensure that local governments and solid waste facilities are
27provided with a mechanism for the recovery of illegally dumped
28used mattresses at no additional cost to the local government or
29solid waste facility.

30(5) Arrangements for the pickup of used mattresses that have
31been accepted at solid waste facilities and for the delivery of those
32used mattresses to a recycling or refurbishment facility.

33(6) A program performance measurement that would collect
34program data for purposes of the report required by Section 42991,
35in accordance with the following:

36(A) If the department does not provide a methodology for the
37program performance methodology pursuant to subdivision (e) of
38Section 42991, the plan shall include a methodology for estimating,
39with regard to the manufacturers covered by the plan, the amount
40of mattresses sold in the state and the used mattresses available
P8    1for collection in the state, and for quantifying the number of used
2mattresses collected and recycled in the state.

3(B) The program plan performance measurement may aggregate
4the total number of mattresses sold and recycled by all participating
5members in a plan submitted by manufacturers acting collectively
6or through a stewardship organization.

7(7) Education and outreach efforts to consumers and other
8individuals within the supply chain to promote their participation
9in achieving the purposes of the plan.

10(8) A consultation process with affected stakeholders.

11(9) The names of manufacturers and brands covered under the
12plan.

13(10) Procedures to ensure implementation of the plan if the
14manufacturer or the stewardship organization no longer exists due
15to bankruptcy, dissolution, or similar processes.

16(11) Reimbursement of solid waste facilities for the reasonable
17costs of collecting, storing, and processing used mattresses in the
18implementation of the plan pursuant to this chapter.

19(12) Policies to ensure there are adequate and convenient
20opportunities for the collection, acceptance, and recovery for
21recycling of used mattresses in low-income communities, in
22accordance with the poverty line annually established by the
23Secretary of California Health and Human Services pursuant to
24the federal Omnibus Budget Reconciliation Act of 1981 (Public
25Law 97-35), as amended.

26(13) Strategies to give priority to recycling facilities that are the
27closest to the consumer or retailers.

28(14) A program to ensure that used mattresses recovered by a
29retailer pursuant to Section 42990 are delivered to a recycling
30facility or solid waste facility for recycling. A manufacturer or
31retailer may contract out to a third-party entity for the transportation
32of used mattresses to such a facility.

33(15) As an alternative to the requirements of paragraph (14), a
34requirement that the manufacturer provide a retailer with extra
35vouchers to provide to a consumer if, when picking up a
36consumer’s mattress upon the purchase of a new mattress, the
37mattress is infested with a pest or contaminated so that it poses a
38contamination risk to personnel, new products, or equipment. These
39vouchers shall be provided at no additional cost to the consumer,
40retailer, recycling facility, or solid waste facility.

P9    1(16) Any other information deemed necessary by the department
2related to compliance with the plan.

3(c) The plan shall meet the portion of the used mattress recycling
4goals, for which a manufacturer, individually or collectively,
5submitting the plan, or by the manufacturers included in a plan
6submitted by a stewardship organization, are subject to, pursuant
7to the methodology specified in the plan pursuant to paragraph (6)
8of subdivision (b):

9(1) On and after January 1, 2015, recycle not less than 25 percent
10of used mattresses generated by consumers in the state from the
11manufacturers included in the plan.

12(2) On and after January 1, 2017, recycle not less than 50 percent
13of used mattresses generated by consumers in the state from the
14manufacturers included in the plan.

15(3) On and after January 1, 2020, recycle not less than 75 percent
16of used mattresses generated by consumers in the state from the
17manufacturers included in the plan.

18(d) A manufacturer is deemed to meet the mattress recycling
19percentile goal specified in subdivision (c) if the plan submitted
20by the manufacturer, or by the stewardship organization formed
21or joined by the manufacturer, when implemented, collects an
22amount of mattresses equal to, or greater than, the equivalent
23portion of the used mattresses available for collection, as
24determined pursuant to paragraph (6) of subdivision (b) of the
25plan.

26(e) A manufacturer, individually or collectively, or stewardship
27organization may coordinate with local governments, solid waste
28facilities, retailers, and mattress recyclers to achieve the purposes
29of this chapter.

30(f) The plan shall not require the funding for the plan to be
31collected from a consumer at the point of collection or discard.

32

42989.  

(a) The department shall review the plan submitted
33pursuant to Section 42988 and within 90 days of receipt shall
34approve, disapprove, or conditionally approve the plan.

35(b) If the department disapproves the plan pursuant to
36subdivision (a), the manufacturer or stewardship organization shall
37resubmit the plan to the department. If the manufacturer or
38stewardship organization does not resubmit a plan, or submits a
39plan that is not approved or conditionally approved by the
40department, the department shall remove all manufacturers covered
P10   1by the plan from the department’s Internet Web site pursuant to
2Section 42992, and a manufacturer so removed from the Internet
3Web site shall not sell a mattresses in the state until the department
4approves a plan for that manufacturer.

5(c) The approved plan shall be a public record, except that
6financial, production, or sales data reported to the department by
7a manufacturer or the stewardship organization is not a public
8record for purposes of the California Public Records Act (Chapter
93.5 (commencing with Section 6250) of Division 7 of Title 1 of
10the Government Code) and shall not be open to public inspection.
11The department may release financial, production, or sales data in
12summary form only that cannot be attributable to a specific
13manufacturer.

14

42990.  

(a) On and after July 1, 2014, a retailer shall offer a
15consumer the option to have a used mattress picked up for recovery
16at the time of delivery, at no additional cost to the consumer, if a
17new mattress is delivered to the consumer.

18(1) A retailer may contract out to a third-party entity for the
19pickup of used mattresses.

20 (2) This chapter does not require a common carrier delivering
21a new mattress to a consumer on behalf of a retailer to pick up a
22used mattress for recovery.

23(3) If a new mattress is delivered to a consumer by a common
24carrier, the manufacturer shall provide the consumer the option of
25having a used mattress picked up for recovery through a voucher
26or another mechanism, at no additional cost to the consumer.

27(b) This chapter does not prohibit a retailer from charging a
28consumer an additional cost for the delivery of a new mattress.

29

42991.  

(a) On or before April 1, 2016, and each year thereafter,
30a manufacturer shall, individually, collectively, or through a
31stewardship organization, submit a report to the department
32describing the mattress stewardship efforts taken pursuant to the
33approved or conditionally approved plan, in the form and manner
34that the department may prescribe.

35(b) The department shall review the annual report required
36pursuant this section and within 90 days of receipt shall adopt a
37finding of compliance or noncompliance with this chapter.

38(c) If the department adopts a finding of noncompliance pursuant
39to subdivision (b), the department may require the manufacturer
P11   1or stewardship organization to amend and resubmit the plan within
290 days of the department’s determination.

3(d) If the manufacturer or stewardship organization does not
4resubmit the plan pursuant to subdivision (c), or the department
5does not approve or conditionally approve the plan submitted to
6subdivision (c), the department shall post a notice of
7noncompliance pursuant to Section 42992 and the manufacturers
8subject to the plan shall not sell a mattress in the state until the
9department approves a plan.

10(e) The department may adopt a uniform methodology that shall
11be used by all manufacturers for purposes of estimating the amount
12of mattresses sold in the state and the number of used mattresses
13available for collection in the state, and for quantifying the number
14of used mattresses collected and recycled in the state.

15

42992.  

(a) A manufacturer or retailer shall not sell or offer for
16sale a mattress to any person in this state unless the manufacturer
17is in compliance with this chapter.

18(b) (1) On or after August 1, 2015, if a manufacturer is not
19covered by an approved or conditionally approved plan, the
20manufacturer shall not sell or offer for sale a mattress in the state.

21(2) A manufacturer is a covered manufacturer if the
22manufacturer has submitted a plan, either individually, collectively,
23or through a stewardship organization, to the department pursuant
24to Section 42988.

25(c) (1) On August 1, 2015, or upon the date the plan is approved
26or conditionally approved by the department, whichever date comes
27first, and on or before July 1 annually thereafter, the department
28shall post on its Internet Web site a list of manufacturers for which
29the department has approved or conditionally approved the plan
30pursuant to Section 42989.

31(2) On July 1, 2016, and annually thereafter, the department
32shall post on its Internet Web site a list of manufacturers for which
33the department has adopted a finding of compliance with regard
34to the report filed pursuant to subdivision (b) of Section 42991.

35(3) A manufacturer that is not listed on the department’s Internet
36Web site pursuant to this section, but demonstrates to the
37satisfaction of the department that it is in compliance with this
38chapter before the next notice is required to be posted pursuant to
39this section, may request a certification letter from the department
40stating that the manufacturer is in compliance. The manufacturer
P12   1that receives that letter shall be deemed to be in compliance with
2this chapter.

3(4) A retailer that distributes or sells a mattress shall monitor
4the department’s Internet Web site to determine if a manufacturer
5is a covered manufacturer or is in compliance with this chapter.
6A retailer otherwise in compliance with this chapter shall be
7deemed in compliance with subdivision (a) if, on the date the
8retailer ordered or purchased a mattress, or within five calendar
9days after that date, the manufacturer was listed as covered or
10compliant on the department’s Internet Web site.

11(5) A retailer may exhaust existing stock in its inventory through
12sales to the public if the existing stock was purchased when the
13manufacturer was in compliance with the requirements of this
14chapter at the time of the existing stock’s initial purchase.

15(d) If the department determines that a manufacturer or
16stewardship organization is not in compliance with this chapter,
17the department shall remove the manufacturer or the manufacturers
18covered by the plan submitted by the stewardship organization
19from the department’s Internet Web site pursuant to this section
20and the manufacturer shall not sell a mattresses in the state until
21the department determines that the manufacturer is in compliance
22with this chapter.

23

42993.  

(a) On or before April 1, 2016, and each year thereafter,
24a person that is engaged in business as a recycler shall submit a
25report to the department that includes, but is not limited to, both
26of the following:

27(1) Quantitative information on the number of mattresses
28received and recycled or renovated in the state during the preceding
29calendar year.

30(2) Quantitative information on the number of vouchers received
31from customers in the state in the preceding calendar year, if
32applicable.

33(b) On or before April 1, 2016, and each year thereafter, a person
34who renovates used mattresses shall submit a report to the
35 department, that at a minimum, includes both of the following:

36(1) Quantitative information on the number of mattresses
37received and recycled or renovated in California during the
38preceding calendar year.

P13   1(2) Quantitative information on the number of vouchers received
2from customers in California in the preceding calendar year, if
3applicable.

4(c) For purposes of determining the recycling rate for a used
5mattress, on or before April 1, 2016, and each year thereafter, a
6solid waste landfill facility operator shall report to the department,
7in a form and manner determined by the department, regarding
8the number of used mattresses received and designated for
9recycling or renovation within the state in the preceding calendar
10year.

11

42994.  

(a) A manufacturer and a mattress stewardship
12organization shall do all of the following:

13(1) Upon request, provide the department with reasonable and
14timely access, as determined by the department and as authorized
15pursuant to Title 13 (commencing with Section 1822.50) of Part
163 of the Code of Civil Procedure, to its facilities and operations,
17as necessary to determine compliance with this chapter.

18(2) Upon request, provide the department with relevant records
19necessary to determine compliance with this chapter.

20(3) If a manufacturer or the stewardship organization does not
21comply with the department’s request made pursuant to paragraph
22(1) or (2), it shall provide the department with a complete
23explanation for its inability or decision not to comply with that
24request.

25(b) The records required by this chapter shall be maintained and
26accessible for three years. All reports and records provided to the
27department pursuant to this chapter shall be provided under penalty
28of perjury.

29(c) The department may take disciplinary action against a
30manufacturer if the stewardship organization or manufacturer fails
31to provide the department with the access required pursuant to this
32section, including, but not limited to, imposing penalties pursuant
33to Section 42996 and posting an immediate notice on the
34department’s Internet Web site pursuant to Section 42292 that the
35manufacturer is no longer in compliance with this chapter.

36

42995.  

(a) The department may require a manufacturer to pay
37the department a quarterly administrative fee, as determined by
38the department.

39(b) If the department elects to impose an administrative fee, the
40amount of the administrative fees imposed pursuant to subdivision
P14   1(a) shall be established by the department in an amount that is
2sufficient to meet, but that does not exceed, the department’s full
3costs of administering and enforcing this chapter, including any
4program development costs or regulatory costs incurred by the
5department prior to the submittal of the plan required by Section
642988.

7(c) The administrative fees collected pursuant to this section
8shall be deposited into the Mattress Recovery and Recycling
9Account, which is hereby established in the Integrated Waste
10Management Fund. Upon appropriation by the Legislature, moneys
11in the account shall be expended by the department to administer
12and enforce this chapter. The fees collected pursuant to this section
13shall not be expended for any other purpose.

14

42996.  

(a) The department may impose an administrative civil
15penalty on any manufacturer or stewardship organization that is
16in violation of this chapter. The amount of the civil penalty shall
17not exceed five hundred dollars ($500) per day, but if the violation
18is intentional, knowing, or reckless, the department may impose
19 a civil penalty of not more than five thousand dollars ($5,000) per
20day.

21(b) The department may impose an administrative civil penalty
22on any retailer who is in violation of this chapter. The amount of
23the civil penalty shall not exceed five hundred dollars ($500) per
24day, but if the violation is intentional, knowing, or reckless the
25department may impose a civil penalty of not more than five
26thousand dollars ($5,000) per day.

27(c) In assessing or reviewing the amount of a civil penalty
28imposed pursuant to subdivision (a) or (b) for a violation of this
29chapter, the department or the court shall consider all of the
30following:

31(1) The nature and extent of the violation.

32(2) The number and severity of the violation or violations.

33(3) The economic effect of the penalty on the violator.

34(4) Whether the violator took good faith measures to comply
35with this chapter and the period of time over which these measures
36were taken.

37(5) The willfulness of the violator’s misconduct.

38(6) The deterrent effect that the imposition of the penalty would
39have on both the violator and the regulated community.

40(7) Any other factor that justice may require.

P15   1(d) If more than one stewardship organization submits a plan
2pursuant to this chapter, the department shall determine the
3manufacturer’s or retailer’s compliance with this chapter in
4accordance with the plan to which the manufacturer or retailer is
5subject.

6(e) The department may impose the administrative civil penalties
7pursuant to this section in accordance with Chapter 5 (commencing
8with Section 11500) of Part 1 of Division 3 of Title 2 of the
9Government Code, except that subdivision (c) of Section 11505
10of the Government Code shall not apply to the department.

11(f) The department shall not impose a penalty upon a mattress
12stewardship organization pursuant to this section for a failure to
13comply with this chapter as a result of submitting false or
14misleading information if the stewardship organization
15demonstrates that it received false or misleading information from
16a manufacturer that was the direct cause of its failure to comply
17with this chapter.

18(g) The department shall deposit all penalties collected pursuant
19to this section into the Mattress Recovery and Recycling Penalty
20Account, which is hereby created in the Integrated Waste
21Management Fund. Upon appropriation by the Legislature, moneys
22deposited into the Mattress Recovery and Recycling Penalty
23Account may be expended by the department to implement this
24chapter.

25

42997.  

Upon a finding that a manufacturer or stewardship
26organization has not met a requirement of this chapter, in addition
27to any other penalties authorized under this chapter, the department
28may take any of following actions to ensure compliance with the
29requirements of this chapter:

30(a) Revoke the manufacturer’s or stewardship organization’s
31plan approval, amend an approval or conditional approval to
32include new conditions, or require the manufacturer or stewardship
33organization to resubmit the plan.

34(b) Remove the manufacturer from the department’s Internet
35Web site and list of compliant manufacturers, as specified in
36subdivision (d) of Section 42992.

37(c) As a condition for approval of plans submitted by the
38manufacturer or stewardship organization pursuant to Section
3942989 after the date of the department’s finding, require additional
P16   1reporting not otherwise required under this chapter, at a frequency
2determined by the department.

3

42998.  

(a) Except as provided in subdivision (c), an action
4specified in subdivision (b) that is taken by a stewardship
5organization or its members is not a violation of the Cartwright
6Act (Chapter 2 (commencing with Section 16700) of Part 2 of
7Division 7 of the Business and Professions Code), the Unfair
8Practices Act (Chapter 4 (commencing with Section 17000) of
9Part 2 of Division 7 of the Business and Professions Code), or the
10Unfair Competition Law (Chapter 5 (commencing with Section
1117200) of Part 2 of Division 7 of the Business and Professions
12Code).

13(b) Subdivision (a) shall apply to all of the following actions
14taken by the stewardship organization or a manufacturer:

15(1) The creation, implementation, or management of an interim
16plan provided to the department pursuant to Section 42987 or of
17a plan approved by the department pursuant to Section 42989 and
18the types or quantities of used mattresses recycled or otherwise
19managed pursuant to the plan, as described in Section 42988.

20(2) The cost and structure of an approved plan.

21(3) The establishment, administration, or disbursement of the
22costs associated with funding the implementation of this chapter.

23(c) Subdivision (a) does not apply to an agreement that does
24any of the following:

25(1) Fixes a price of or for mattresses, except for an agreement
26related to costs associated with participation in a plan approved
27or conditionally approved by the department and otherwise in
28 accordance with this chapter.

29(2) Fixes the output of production of mattresses.

30(3) Restricts the geographic area in which, or customers to
31whom, mattresses will be sold.

32

SEC. 2.  

No reimbursement is required by this act pursuant to
33Section 6 of Article XIII B of the California Constitution because
34the only costs that may be incurred by a local agency or school
35district will be incurred because this act creates a new crime or
36infraction, eliminates a crime or infraction, or changes the penalty
37for a crime or infraction, within the meaning of Section 17556 of
38the Government Code, or changes the definition of a crime within
P17   1the meaning of Section 6 of Article XIII B of the California
2Constitution.



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