Amended in Senate April 1, 2013

Senate Bill No. 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 amended, Hancock. Solid waste: used mattresses: recycling and recovery.

(1) Existing law requires a retailer of various specified products, such as rechargeable batteries and begin delete cell phones end delete begin insert cellular telephones end insert , 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 begin delete who end delete begin insert that end insert 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:

SECTION 1.  

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

 

Chapter  21. Used Mattress Recovery and Recycling Act

 

42985.  

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

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

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

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

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

42986.  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(A) Replacing the mattress ticking or filling.

(B) Adding additional filling.

(C) Rebuilding a mattress.

(D) Replacing components with new or recycled materials.

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

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

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

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

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

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

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

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

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

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

42987.  

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

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

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

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

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

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

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

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

42988.  

(a) On or before April 1, 2015, a manufacturer shall,
individually, collectively, or begin delete though end delete begin insert through end insert a mattress stewardship
organization, submit a mattress stewardship plan to the department
that meets the requirements of this section.

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

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

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

(3) Program objectives consistent with the state’s solid waste
management hierarchy begin insert . end insert

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

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

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

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

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

begin insert

(7) The establishment of a financial incentive to encourage
parties to collect used mattresses that are discarded or illegally
dumped in the state for recycling.

end insert begin delete

(7)

end delete

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

begin delete

(8)

end delete

begin insert (9) end insert  A consultation process with affected stakeholders.

begin delete

(9)

end delete

begin insert (10) end insert  The names of manufacturers and brands covered under the
plan.

begin delete

(10)

end delete

begin insert (11) end insert  Procedures to ensure implementation of the plan if the
manufacturer or the stewardship organization no longer exists due
to bankruptcy, dissolution, or similar processes.

begin delete

(11)

end delete

begin insert (1 end insert begin insert 2) end insert  Reimbursement of solid waste facilities for the reasonable
costs of collecting, storing, and processing used mattresses in the
implementation of the plan pursuant to this chapter.

begin delete

(12)

end delete

begin insert (13) end insert  Policies to ensure there are adequate and convenient
opportunities for the collection, acceptance, and recovery for
recycling of used mattresses in low-income communities, in
accordance with the poverty line annually established by the
Secretary of California Health and Human Services pursuant to
the federal Omnibus Budget Reconciliation Act of 1981 (Public
Law 97-35), as amended.

begin delete

(13)

end delete

begin insert (14) end insert  Strategies to give priority to recycling facilities that are the
closest to the consumer or retailers.

begin delete

(14)

end delete

begin insert (15) end insert  A program to ensure that used mattresses recovered by a
retailer pursuant to Section 42990 are delivered to a recycling
facility or solid waste facility for recycling. A manufacturer or
retailer may contract out to a third-party entity for the transportation
of used mattresses to such a facility.

begin delete

(15)

end delete

begin insert (16) end insert  As an alternative to the requirements of paragraph begin delete (14) end delete
begin insert (15) end insert , a requirement that the manufacturer provide a retailer with
extra vouchers to provide to a consumer if, when picking up a
consumer’s mattress upon the purchase of a new mattress, the
mattress is infested with a pest or contaminated so that it poses a
contamination risk to personnel, new products, or equipment. These
vouchers shall be provided at no additional cost to the consumer,
retailer, recycling facility, or solid waste facility.

begin delete

(16)

end delete

begin insert (17) end insert  Any other information deemed necessary by the department
related to compliance with the plan.

(c) The plan shall meet the begin insert following goals, consistent with the end insert
portion of the used mattress recycling goals, begin delete for end delete begin insert to end insert which a
manufacturer, individually or collectively, submitting the plan, or
begin delete by end delete the manufacturers included in a plan submitted by a stewardship
organization, are subject begin delete to end delete , pursuant to the methodology specified
in the plan pursuant to paragraph (6) of subdivision (b):

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

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

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

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

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

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

begin insert

(g) This section does not prohibit either of the following:

end insert begin insert

(1) A manufacturer from internalizing the costs of implementing
this chapter.

end insert begin insert

(2) A manufacturer from voluntarily establishing a charge to
be added to the purchase price of a mattress to reimburse the
manufacturer for the costs of implementing this chapter.

end insert

42989.  

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

(b) If the department disapproves the plan pursuant to
subdivision (a), the manufacturer or stewardship organization shall
resubmit the plan to the department. If the manufacturer or
stewardship organization does not resubmit a plan, or submits a
plan that is not approved or conditionally approved by the
department, the department shall remove all manufacturers covered
by the plan from the department’s Internet Web site pursuant to
Section 42992, and a manufacturer so removed from the Internet
Web site shall not sell begin delete a end delete mattresses in the state until the department
approves a plan for that manufacturer.

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

42990.  

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

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

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

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

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

42991.  

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

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

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

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

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

42992.  

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

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

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

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

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

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

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

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

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

42993.  

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

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

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

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

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

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

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

42994.  

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

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

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

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

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

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

42995.  

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

(b) If the department elects to impose an administrative fee, the
amount of the administrative fees imposed pursuant to subdivision
(a) shall be established by the department in an amount that is
sufficient to meet, but that does not exceed, the department’s full
costs of administering and enforcing this chapter, including any
program development costs or regulatory costs incurred by the
department prior to the submittal of the plan required by Section
42988.

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

42996.  

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

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

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

(1) The nature and extent of the violation.

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

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

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

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

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

(7) Any other factor that justice may require.

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

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

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

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

42997.  

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

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

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

(c) As a condition for approval of plans submitted by the
manufacturer or stewardship organization pursuant to Section
42989 after the date of the department’s finding, require additional
reporting not otherwise required under this chapter, at a frequency
determined by the department.

42998.  

(a) Except as provided in subdivision (c), an action
specified in subdivision (b) that is taken by a stewardship
organization or its members is not a violation of the Cartwright
Act (Chapter 2 (commencing with Section 16700) of Part 2 of
Division 7 of the Business and Professions Code), the Unfair
Practices Act (Chapter 4 (commencing with Section 17000) of
Part 2 of Division 7 of the Business and Professions Code), or the
Unfair Competition Law (Chapter 5 (commencing with Section
17200) of Part 2 of Division 7 of the Business and Professions
Code).

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

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

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

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

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

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

(2) Fixes the output of production of mattresses.

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

SEC. 2.  

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.