BILL NUMBER: AB 1159 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 21, 2015
AMENDED IN ASSEMBLY APRIL 6, 2015
INTRODUCED BY Assembly Members Gordon and Williams
( Coauthor: Assembly Member
Mark Stone )
FEBRUARY 27, 2015
An act to add and repeal Chapter 19.5 (commencing with Section
42968) of Part 3 of Division 30 of the Public Resources Code,
relating to solid waste.
LEGISLATIVE COUNSEL'S DIGEST
AB 1159, as amended, Gordon. Product stewardship: pilot program:
household batteries and home-generated sharps waste.
The California Integrated Waste Management Act of 1989,
administered by the Department of Resources Recycling and Recovery,
is required to reduce, recycle, and reuse solid waste generated in
the state to the maximum extent feasible in an efficient and
cost-effective manner to conserve water, energy, and other natural
resources.
Existing law requires a pharmaceutical manufacturer selling or
distributing medication that is intended to be self-injected at home
to submit, on an annual basis, to the Department of Resources
Recycling and Recovery a plan supporting the safe collection and
proper disposal of specified waste devices.
Existing law leaves in operation Department of Toxic Substances
Control regulations, adopted until January 1, 2008, to exempt a
hazardous waste management activity, including management of
hazardous waste batteries, from certain statutory requirements
related to hazardous waste management if specified conditions for
exemption are met, including that the regulations identify the waste
as a universal waste.
This bill would establish the Product Stewardship Pilot Program
and, until January 1, 2024, would require producers and product
stewardship organizations of covered products, defined to mean a
consumer product that is used or discarded in this state and is
either home-generated sharps waste or household batteries, to develop
and implement a product stewardship plan, as specified.
This bill would require, by July 1, 2017, a producer of a covered
product, individually or through a product stewardship organization,
to submit a product stewardship plan to the Department of Resources
Recycling and Recovery. The bill would require the product
stewardship plan to include specified elements, including strategies
to achieve performance standards and a funding mechanism that
provides sufficient funding to carry out the plan. The department
would be required to review and determine whether the plan is
complete and, if complete, determine whether to approve or not
approve the plan. The bill would require the department to notify the
submitter of its decision to approve or not approve the plan, and,
if the department does not approve the plan, would require the
department to describe the reasons for its disapproval. The bill
would authorize the submitter to revise and resubmit the plan and
would specify that a plan not approved by January 1, 2018, is out of
compliance.
The bill would require a producer or product stewardship
organization implementing a product stewardship plan to prepare and
submit to the department an annual report describing the activities
carried out pursuant to the product stewardship plan, including
whether the producer or product stewardship organization, in
implementing the plan, attained the performance standards for the
covered product, and if the performance standards were not met, what
actions the producer or product stewardship organization will be
taking to attain those performance standards.
A producer or product stewardship organization submitting a
product stewardship plan would be required to pay the
department, on an unspecified schedule, department
an annual administrative fee, as determined by the department.
The bill would require the fee be set at an amount that, when paid by
every product stewardship organization that submits a product
stewardship plan, is adequate to cover the department's full costs of
administering and enforcing the program. The bill would provide for
the imposition of administrative civil penalties upon a person who
violates the bill and would provide that a plan submitter whose plan
is not approved by the department by July 1, 2018, is subject to
those penalties until the plan is approved. The bill would establish
the Product Stewardship Account in the Integrated Waste Management
Fund and would require the fees collected by the department to be
deposited in that account, for expenditure by the department, upon
appropriation by the Legislature, to cover the department's cost to
implement the bill's provisions. The bill would also establish the
Product Stewardship Penalty Subaccount in the Integrated Waste
Management Fund and would require that the civil penalties collected
by the department pursuant to the bill's provisions be deposited in
that subaccount, for expenditure by the department, upon
appropriation by the Legislature, to cover the department's costs to
implement the bill's provisions.
The bill would provide that certain actions of a product
stewardship organization or its members are not violations of the
Cartwright Act or certain provisions regulating unfair business
practices or unfair competition.
The bill would require the department, by January 1, 2017, to
adopt regulations to implement these provisions, including setting
performance standards for each covered product, which would include a
minimum collection rate and appropriate geographic coverage, and
procedures for product stewardship plan submittal. By March 1, 2017,
the department would also be required to appoint a stakeholder
advisory committee for each covered product to provide technical
feedback to a product stewardship organization. The bill would also
require the advisory committee to annually report to the department
on the progress of the product stewardship organizations'
implementation of the bill's provisions.
The bill would require the department, by July 1, 2023, to report,
for each covered product, specified information to the appropriate
committees of the Legislature, including, the department's evaluation
of each product stewardship organization, product stewardship
organization evaluations of the department and stakeholder advisory
committee, stakeholder advisory committee reports, and audited
financials of each product stewardship organization. The bill would
authorize the department to impose additional reporting requirements
on product stewardship organizations and the stakeholder advisory
committees to meet the department's reporting requirements to the
Legislature.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 19.5 (commencing with Section 42968) is added
to Part 3 of Division 30 of the Public Resources Code, to read:
CHAPTER 19.5. PRODUCT STEWARDSHIP PILOT PROGRAM
Article 1. Definitions
42968. "Collection rate" means the percentage of covered
products, by weight, that are collected during a calendar year by a
product stewardship organization as compared to the average annual
weight of all covered products that were estimated to have been sold
in the state during the previous three years by that product
stewardship organization's members or the individual producer. The
collection rate of a product stewardship organization of covered
products may be based on a reasonable pro rata calculation of
national sales.
42968.01. "Consumer" means a purchaser, owner, or lessee of a
product, including a person, business, corporation, limited
partnership, nonprofit organization, or governmental entity.
42968.02. "Consumer product" means a product that is sold in this
state in a transaction that is a retail sale or in a transaction to
which a use tax applies pursuant to Part 1 (commencing with Section
6001) of Division 2 of the Revenue and Taxation Code.
42968.04. "Covered product" means a consumer product that is used
or discarded in this state and is either of the following:
(a) Home-generated sharps waste, as defined in Section 117671 of
the Health and Safety Code.
(b) Household batteries, as defined in subdivision (c) of Section
42450.
42968.06. "Department" means the Department of Resources
Recycling and Recovery.
42968.07. "Geographic coverage" means the number of convenient
collection sites provided by a product stewardship organization, free
of charge, for consumers in each county of the state where the
product stewardship organization's members or the individual producer
sell, offer for sale, or distribute a covered product.
42968.08. "Performance standards" means the standards set by the
department pursuant to Section 42968.22.
42968.10. "Producer," with regard to a covered product that is
sold, offered for sale, or distributed in the state, means one of the
following:
(a) A person who manufactures the covered product and who sells,
offers for sale, or distributes that covered product in the state
under that person's own name or brand.
(b) If there is no person who sells, offers for sale, or
distributes the covered product in the state under the person's own
name or brand, the producer of the covered product is the owner or
licensee of a trademark or brand under which the covered product is
sold or distributed in the state, whether or not the trademark is
registered.
(c) If there is no person who is a producer of the covered product
for purposes of subdivisions (a) and (b), the producer of that
covered product is the person who imports the product into the state
for sale or distribution.
42968.12. "Product stewardship organization" means either of the
following:
(a) An organization created by one or more producers of a covered
product to act as an agent on behalf of the producer to design,
submit, and administer a product stewardship plan pursuant to this
chapter.
(b) A producer of a covered product that complies with
this chapter as an individual producer. product.
42968.14. "Product stewardship plan" or "plan" means a plan
written by an individual producer or a product stewardship
organization that includes all of the information required by Section
42968.32.
Article 2. General Provisions
42968.20. Each product stewardship organization of a covered
product in this state shall develop and implement a product
stewardship plan in accordance with the provisions of this chapter.
42968.22. (a) On or before January 1, 2017, the department shall
adopt regulations to implement the provisions of this chapter. The
regulations shall, at a minimum, include:
(1) Performance standards for a covered product that are to be met
by a product stewardship plan, which shall include a minimum
collection rate for a covered product and appropriate geographic
coverage for a covered product.
(2) Procedures for product stewardship plan submittal to the
department.
(3) The appointment of a stakeholder advisory committee, as
described in Article 6 (commencing with Section 42968.60).
(b) Regulations adopted pursuant to subdivision (a) shall have no
effect after the repeal of this chapter.
42968.26. (a) Except as provided in subdivision (b), any action
by a product stewardship organization or its members that relates to
any of the following 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):
(1) The creation, implementation, or management of a product
stewardship plan approved by the department pursuant to Section
42968.34.
(2) The cost and structure of an approved product stewardship
plan.
(b) Subdivision (a) does not apply to an agreement that does any
of the following:
(1) Fixes a price of or for a covered product, except for any
agreement related to a product stewardship plan approved by the
department and otherwise in accordance with this chapter.
(2) Fixes the output of production of a covered product.
(3) Restricts the geographic area in which, or customers to whom,
a covered product will be sold.
Article 3. Product Stewardship Plan
42968.30. On or before July 1, 2017, a product stewardship
organization shall submit a product stewardship plan to the
department that will divert the covered product from landfills and
manage the covered product in a manner that is consistent with the
state's hierarchy for waste management practices pursuant to Section
40051.
42968.32. A product stewardship plan required to be submitted
pursuant to Section 42968.30 shall include all of the following:
(a) Strategies to achieve the performance standards set by the
department pursuant to Section 42968.22.
(b) Strategies for managing and reducing the life-cycle impacts of
the covered product.
(c) A funding mechanism that provides sufficient funding to carry
out the plan, including the administrative, operational, and capital
costs of the plan, and payment of fees pursuant to Section 42968.40.
(d) A process by which the financial activities of the product
stewardship organization that are related to implementation of the
plan will be subject to an independent audit, which may be reviewed
by the department.
42968.34. (a) Within 30 days after the department receives a plan
submitted pursuant to Section 42968.30, the department shall review
the plan, and determine whether the plan is complete or incomplete.
If the department does not deem the plan complete, the department
shall notify the product stewardship organization that submitted the
plan of the deficiencies, and the product stewardship organization
shall revise and resubmit the plan within 30 days of receiving the
notice.
(b) If the department determines that the plan is complete, the
department shall have 60 days after determining the plan is complete
to determine whether it complies with Section 42968.32,
42968.32 and any regulations adopted by the department
pursuant to this chapter, and notify the submitter of its
decision to approve or not approve the plan.
(c) If the department does not approve the plan, it shall describe
the reasons for its disapproval in the notice. The submitter may
revise and resubmit the plan within 60 days after receiving notice of
disapproval and the department shall review and approve or not
approve the revised plan within 60 days after receipt. Any plan not
approved by January 1, 2018, shall be out of compliance with this
chapter and, commencing July 1, 2018, if the plan is not approved as
of that date, the submitter of the plan is subject to the penalties
specified in Section 42968.50 until the plan is approved by the
department.
Article 4. Financial Provisions
42968.40. (a) A product stewardship organization submitting a
product stewardship plan shall pay the department an annual
administrative fee. The department shall set the fee at an amount
that, when paid by every product stewardship organization that
submits a product stewardship plan, is adequate to cover 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 product stewardship plans being submitted.
The department may establish a variable fee based on relevant
factors, including, but not limited to, the portion of covered
products sold in the state by members of the organization compared to
the total amount of covered products sold in the state by all
organizations submitting a product stewardship plan.
(b) The total amount of annual fees collected pursuant to this
section shall not exceed the amount necessary to recover costs
incurred by the department in connection with the administration and
enforcement of the requirements of this chapter.
(c) A product stewardship organization subject to this section
shall pay the department the administrative fee pursuant to
subdivision (a) on or before ____, and annually thereafter through
____.
(d)
(c) The department shall deposit the fees collected
pursuant to this section into the Product Stewardship Account created
pursuant to Section 42968.42.
42968.42. (a) The Product Stewardship Account and the Product
Stewardship Penalty Subaccount are hereby established in the
Integrated Waste Management Fund.
(b) All fees collected by the department pursuant to this article
shall be deposited in the Product Stewardship Account and may be
expended by the department, upon appropriation by the Legislature, to
cover the department's costs to implement this chapter.
(c) All civil penalties collected pursuant to Article 5
(commencing with Section 42968.50) shall be deposited in the Product
Stewardship Penalty Subaccount and may be expended by the department,
upon appropriation by the Legislature, to cover the department's
costs to implement this chapter.
Article 5. Penalties
42968.50. (a) A civil penalty up to the following amounts may be
administratively imposed by the department or imposed by the court on
any person who is in violation of any provision of this chapter:
(1) One thousand dollars ($1,000) per day.
(2) Ten thousand dollars ($10,000) per day if the violation is
intentional, knowing, or negligent.
(b) In assessing or reviewing the amount of a civil penalty
imposed pursuant to subdivision (a) 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 or violations.
(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.
(Added by Stats. 2010, Ch. 681, Sec. 2. (AB 2398) Effective
January 1, 2011.)
42968.52. Moneys collected pursuant to this article shall be
deposited in the Product Stewardship Penalty Subaccount, established
pursuant to Section 42968.42.
Article 6. Stakeholder Advisory Committee
42968.60. (a) On or before March 1, 2017, the department shall
appoint a stakeholder advisory committee for each covered product to
provide technical feedback to a product stewardship organization. The
stakeholder advisory committee shall report annually to the
department on the progress of the product stewardship organizations'
implementation of this chapter.
(b) Members of the advisory committee for a covered product shall
include members of the environmental community, solid waste industry,
local governments, retailers, and other key stakeholders for that
covered product.
(c) The stakeholder advisory committee for a covered product shall
be independent of the product stewardship organizations for that
covered product. The advisory committee's expenses shall be covered
by its members and not the product stewardship organizations for that
covered product or the state.
(d) A product stewardship organization for a covered product shall
have no control over the advisory committee for that covered product
or its activities.
Article 7. Reporting
42968.70. Beginning on or before the first January 1 more than
one year after a product stewardship plan is approved, and on or
before every January 1 thereafter, each product stewardship
organization implementing a product stewardship plan shall prepare
and submit to the department an annual report describing the
activities carried out pursuant to the product stewardship plan
during the previous reporting period, including, but not limited to,
whether the product stewardship organization, in implementing the
plan, attained the performance standards for the covered product,
and and, if the performance standards
were not met, what actions the product stewardship organization will
take during the next reporting period to attain those performance
standards.
42968.72. On or before July 1, 2023, the department shall report
all of the following, for each covered product, to the appropriate
committees of the Legislature:
(a) The department's evaluation of each product stewardship
organization.
(b) Each product stewardship organization's evaluation of the
department and the advisory committee.
(c) Stakeholder advisory committee reports submitted to the
department pursuant to Section 42968.60.
(d) Audited financials of each product stewardship organization.
(e) The amount of money saved by state and local governments as a
result of implementing a product stewardship plan.
(f) Whether the performance standards set by the department were
met.
42968.74. The department may impose reporting requirements on
product stewardship organizations and the stakeholder advisory
committee of a covered product to ensure that the department is able
to meet its reporting requirements to the Legislature pursuant to
Section 42968.72.
Article 8. Repeal
42968.80. This chapter shall remain in effect only until January
1, 2024, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2024, deletes or extends
that date.