California Legislature—2013–14 Regular Session

Assembly Bill No. 2392

Introduced by Assembly Member Gatto

February 21, 2014

An act to amend Sections 42300, 42301, 42310, 42310.3, 42320, 42321, 42322, 42323, 42325, 42326, 42327, and 42330 of, and to repeal Sections 42310.1 and 42310.2 of, the Public Resources Code, relating to recycling.

LEGISLATIVE COUNSEL’S DIGEST

AB 2392, as introduced, Gatto. Recycling: plastic containers.

(1) The California Integrated Waste Management Act of 1989 requires rigid plastic packaging containers that are sold or offered for sale in this state to meet, on average, one of specified criteria and defines terms for purposes of those requirements. One criteria that a product-associated or a single resin type rigid plastic packaging container may meet to satisfy this requirement is that it have a recycling rate of 45%. The Department of Resources Recycling and Recovery is required to enforce the act’s plastic packaging container requirements and a violation of these requirements is a crime.

This bill would increase the recycling rate that a product-associated, or single resin type, rigid plastic packaging container is required to meet under this criteria to 75%, thereby imposing a state-mandated local program by changing the definition of a crime. The bill would also delete obsolete provisions and make conforming and nonsubstantive changes.

(2) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 42300 of the Public Resources Code is
amended to read:

42300.  

The Legislature finds and declares all of the following:

(a) Recycling rigid plastic packaging containers saves landfill
space, reduces energy consumption, and preserves natural
resources.

(b) The California Integrated Waste Management Act of 1989
requires cities and counties to reduce the amount of waste disposed
in landfills by 50 percent by the end of the decade through source
reduction, recycling, and composting.

begin insert

(c) The Legislature has established a statewide goal that 75
percent of solid waste annually generated in this state be source
reduced, recycled, or composted by the year 2020. It is the intent
of the Legislature in enacting the act that added this subdivision
in the 2013-14 Regular Session of the Legislature to update this
chapter to meet that new target recycling goal.

end insert begin delete

(c)

end delete

begin insert (d) end insert  Rigid plastic packaging containers represent a significant
component of the solid waste generated in the state.

begin delete

(d)

end delete

begin insert (e) end insert  In order for recycling in the state to be successful, it is critical
that stable, in-state markets be developed for material separately
collected from the waste stream and processed for recycling.

begin delete

(e)

end delete

begin insert (f) end insert  As of begin delete the effective date of this chapter end delete begin insert January 1, 1994 end insert ,
curbside collection of recyclables begin delete is end delete begin insert was end insert available to nearly 20
percent of the state’s residents. In order to expand the variety of
materials collected in these programs, including all rigid plastic
packaging containers, it is essential that stable markets exist for
the plastic materials collected.

begin delete

(f)

end delete

begin insert ( end insert begin insert g) end insert  The state has required several types of products to use
increasing levels of postconsumer recycled material in their
manufacture, including newsprint, glass containers, and plastic
trash bags.

begin delete

(g)

end delete

begin insert ( end insert begin insert h) end insert  Some of the nation’s largest consumer product manufacturers
have announced plans to require, or are currently requiring, their
plastic packaging suppliers to provide them with containers
comprised of increasing levels of postconsumer recycled materials,
demonstrating that the technology is already available to use
recycled material to make new plastic packaging containers.
However, many businesses continue to purchase packaging
materials made from 100 percent virgin plastic and to sell them in
the state.

begin delete

(h)

end delete

begin insert ( end insert begin insert i) end insert  The food and consumer products industries are manufacturing
safe products and packaging using plastic materials, some of which
use less raw material than other packaging materials through source
reduction and the reuse and recycling of used plastic materials.

begin delete

(i)

end delete

begin insert ( end insert begin insert j) end insert  The Legislature recognizes that the need to reduce the amount
of solid waste generated by food products must be balanced with
the need to package those products so that they are resistant to
tampering, damage, and spoilage.

begin delete

(j)

end delete

begin insert ( end insert begin insert k) end insert  It is, therefore, the intent of the Legislature to spur markets
for plastic materials collected for recycling by requiring
manufacturers to utilize increasing amounts of postconsumer
recycled material in their rigid plastic packaging containers only
if the use of that material does not present an unreasonable risk to
the public health and safety, and to achieve high recycling rates
for these rigid plastic packaging containers.

SEC. 2.  

Section 42301 of the Public Resources Code is
amended to read:

42301.  

For purposes of this chapter, the following definitions
apply:

(a) “Container manufacturer” means a company or a successor
company that sells any rigid plastic packaging container subject
to this chapter to a manufacturer that sells or offers for sale in this
state any product packaged in that container.

(b) “Curbside collection program” means a recycling program
that collects materials set out by households for collection at the
curb at intervals not less than every two weeks. “Curbside
collection program” does not include redemption centers, buyback
locations, drop-off programs, material recovery facilities, or plastic
recovery facilities.

(c) “Refillable package” means a rigid plastic packaging
container that the begin delete board end delete begin insert department end insert determines is routinely returned
to and refilled by the product manufacturer at least five times with
the original product contained by the package.

(d) “Reusable package” means a rigid plastic packaging
container that the begin delete board end delete begin insert department end insert determines is routinely reused
by consumers at least five times to store the original product
contained by the package.

(e) “Manufacturer” means the producer or generator of a product
that is sold or offered for sale in the state and that is stored inside
of a rigid plastic packaging container.

(f) “Rigid plastic packaging container” means any plastic
package having a relatively inflexible finite shape or form, with a
minimum capacity of eight fluid ounces or its equivalent volume
and a maximum capacity of five fluid gallons or its equivalent
volume, that is capable of maintaining its shape while holding
other products, including, but not limited to, bottles, cartons, and
other receptacles, for sale or distribution in the state.

(g) “Postconsumer material” means a material that would
otherwise be destined for solid waste disposal, having completed
its intended end use and product lifecycle. Postconsumer material
does not include materials and byproducts generated from, and
commonly reused within, an original manufacturing and fabrication
process.

(h) “Recycled” means a product or material that has been reused
in the production of another product and has been diverted from
disposal in a landfill.

(i) “Recycling rate” means the proportion, as measured by
weight, volume, or number, of a rigid plastic packaging container
sold or offered for sale in the state that is being recycled in a given
calendar year, that is one of the following:

(1) A particular type of rigid plastic packaging container, such
as a milk jug, soft drink container, or detergent bottle.

(2) A product-associated rigid plastic packaging container.

(3) A single resin type, as specified in Section 18015, of rigid
plastic packaging container, notwithstanding the exemption of that
container from this chapter pursuant to subdivision (b), (c), or (d)
of Section 42340.

(j) (1) “Source reduced container” means begin delete either of the
following: end delete begin insert a rigid plastic container for which the container weight
per unit or number of product uses has been reduced by 10 percent
when compared with any one of the following: end insert

begin delete

(A) A rigid plastic packaging container for which the
manufacturer seeks compliance as of January 1, 1995, whose
package weight per unit or use of product has been reduced by 10
percent when compared with the packaging used for that product
by the manufacturer from January 1, 1990, to December 31, 1994.

end delete begin delete

(B) A rigid plastic container for which the manufacturer seeks
compliance after January 1, 1995, whose package weight per unit
or use of product has been reduced by 10 percent when compared
with one of the following:

end delete begin delete

(i)

end delete

begin insert ( end insert begin insert A) end insert  The begin insert rigid plastic end insert packaging begin insert container end insert used for the product
by the manufacturer on January 1, 1995.

begin delete

(ii)

end delete

begin insert (B) end insert  The begin insert rigid plastic end insert packaging begin insert cont end insert begin insert ain end insert begin insert er end insert used for that product
by the manufacturer over the course of the first full year of
commerce in this state.

begin delete

(iii)

end delete

begin insert (C) end insert  The packaging used in commerce that same year for similar
products whose containers have not been considered source
reduced.

(2) A rigid plastic packaging container is not a source reduced
container for the purposes of this chapter if the packaging reduction
was achieved by any of the following:

(A) Substituting a different material type for a material that
previously constituted the principal material of the container.

(B) Increasing a container’s weight per unit or use of product
after January 1, 1991.

(C) Packaging changes that adversely affect the potential for
the rigid plastic packaging container to be recycled or to be made
of postconsumer material.

(k) “Product-associated rigid plastic packaging container” means
a brand-specific, rigid plastic packaging line that may have one or
more sizes, shapes, or designs and that is used in conjunction with
a particular generic product line.

(l) “PETE” means polyethylene terephthalate as specified in
subdivision (a) of Section 18015.

(m) “HDPE” means high-density polyethylene.

SEC. 3.  

Section 42310 of the Public Resources Code is
amended to read:

42310.  

Except as otherwise provided in this chapter, every
rigid plastic packaging container sold or offered for sale in this
state shall, on average, meet one of the following criteria:

(a) Be made from 25 percent postconsumer material.

(b) Have a recycling rate of begin delete 45 end delete begin insert 75 end insert percent if it is a
product-associated rigid plastic packaging container or a single
resin type of rigid plastic packaging container, as demonstrated to
the begin delete board end delete begin insert department end insert by the product maker, container
manufacturer, or other entity. The begin delete board end delete begin insert department end insert may take
appropriate action to verify the demonstration, but the begin delete board end delete
begin insert department end insert is not required to expend state funds to conduct a
survey or calculate the rate.

(c) Be a reusable package or a refillable package.

(d) Be a source reduced container.

(e) Is a container containing floral preservative that is
subsequently reused by the floral industry for at least two years.

SEC. 4.  

Section 42310.1 of the Public Resources Code is
repealed.

begin delete

42310.1.  

(a) Until January 1, 1997, the criteria specified in
Section 42310 shall not apply to any rigid plastic packaging
container that is manufactured for use with food or cosmetics, as
defined in subdivisions (f) and (i) of Section 321 of Title 21 of the
United States Code.

(b) Notwithstanding subdivision (a), rigid plastic packaging
containers actually recycled shall be included in calculating the
recycling rate pursuant to subdivision (b) or (c) of Section 42310.

(c) Every manufacturer of a product packaged in a rigid plastic
packaging container described in subdivision (a), which is not in
compliance with Section 42310, that is exempt from the criteria
specified in Section 42310 pursuant to subdivision (a), shall do
both of the following:

(1) On or before December 1, 1995, the manufacturer shall
submit a report to the board which demonstrates that the
manufacturer is taking, and will continue to take, all feasible
actions consistent with Section 42310 to ensure the reduction,
recycling, or reuse of the rigid plastic packaging containers
described in subdivision (a) and the development and expansion
of markets for rigid plastic packaging containers. Those actions
may include, but are not limited to, all of the following:

(A) The use of postconsumer recycled plastic in rigid plastic
packaging containers sold in this state.

(B) The use of postconsumer recycled plastic in other packaging
materials sold or manufactured in this state.

(C) The use of postconsumer recycled plastic in other products
sold or manufactured in this state.

(D) Arranging for the use of postconsumer recycled plastic
collected for recycling in this state in the manufacture of nonrigid
plastic packaging container products or packaging of another entity.

(E) The procurement of products containing postconsumer
recycled plastic, including, but not limited to, trash bags, trash
containers, pallets, carpeting, slip sheets, and shrink wrap.

(F) The demonstration of financial investment in recycled plastic
collecting, processing, and remanufacturing activities in the state.

(2) On or before January 1, 1996, every manufacturer of rigid
plastic packaging containers shall, for any rigid plastic packaging
container that is exempt from, and not in compliance with, the
criteria specified in Section 42310 pursuant to subdivision (a),
diligently seek one or more “nonobjection letters” from the United
States Food and Drug Administration which will permit the
manufacturer of rigid plastic packaging containers to use recycled
plastic in the manufacture of the rigid plastic packaging containers
described in subdivision (a).

end delete

SEC. 5.  

Section 42310.2 of the Public Resources Code is
repealed.

begin delete

42310.2.  

(a) On or before July 1, 1994, as part of the
regulations required to be adopted pursuant to Section 42325, the
board shall adopt regulations to carry out the requirements of
paragraph (1) of subdivision (c) of Section 42310.1. In adopting
regulations pursuant to this section, the board shall make every
effort to limit paperwork and information to only those matters
that are needed for the board to determine if manufacturers are
taking all feasible actions to ensure the reduction, recycling, or
reuse of the rigid plastic packaging containers described in
subdivision (a) of Section 42310.1, and the development and
expansion of markets for rigid plastic packaging containers.

(b) On or before February 1, 1996, the board shall review, and
approve or disapprove, the reports required pursuant to paragraph
(1) of subdivision (c) of Section 42310.1. If a report is not
submitted pursuant to a schedule established by the board, or, if,
based upon the report, the board determines that a manufacturer
has not taken all feasible actions to ensure the reduction, recycling,
or reuse of the containers and the development and expansion of
markets for rigid plastic packaging containers, the board may take
one of the following actions, as selected by the manufacturer:

(1) Require the manufacturer to take additional actions,
including, but not limited to, one or more of the measures described
in paragraph (1) of subdivision (c) of Section 42310.1, to ensure
that the manufacturer is taking, and will continue to take, all
feasible actions to ensure the reduction, recycling, or reuse of the
containers and the development and expansion of markets for rigid
plastic packaging containers.

(2) Impose a civil penalty of up to one hundred thousand dollars
($100,000) pursuant to Section 42322. In imposing monetary
penalties pursuant to this paragraph, the board shall take into
consideration all of the following factors:

(A) The size and net worth of the manufacturer.

(B) The impact of the violation on the overall objectives of this
chapter.

(C) The severity of the violation. A penalty imposed pursuant
to this paragraph shall not be required to be paid by a manufacturer
before January 1, 1997.

(c) If the board determines that the conditions in paragraphs (1)
and (2) are met, the board shall enter into a contract, or other legally
binding agreement, with one or more trade associations
representing manufacturers of resin, manufacturers of rigid plastic
packaging containers, or manufacturers of products packaged in
rigid plastic packaging containers subject to this section and
Section 42310.1. The agreement shall allow the trade association,
in lieu of those individual manufacturers in the trade association
who elect to be a party to the contract or agreement, to submit the
report required pursuant to paragraph (1) of subdivision (c) of
Section 42310.1 and to implement the actions identified in the
report. The board shall enter into the agreement only if both of the
following conditions exist:

(1) The agreement ensures that the report will contain sufficient
information that otherwise would be required to be submitted by
individual manufacturers pursuant to Section 42310.1, and any
other information that is necessary and directly related to the
board’s ability to comply with this section.

(2) The agreement ensures that each manufacturer that elects
to be a party to the agreement and that is a member of the trade
association that submits the report shall be liable for the full amount
of any civil penalties that may be imposed or shall comply with
any requirement imposed by the board pursuant to paragraph (1)
of subdivision (b), as selected by the manufacturer. A manufacturer
subject to this paragraph shall not be liable for a civil penalty
greater than one hundred thousand dollars ($100,000), regardless
of the number of trade associations of which the manufacturer is
a member.

(d) Notwithstanding any other provision of this section, a trade
association representing resin manufacturers shall be responsible
for submitting an additional report as provided pursuant to
paragraph (1) of subdivision (c) of Section 42310.1. The resin
manufacturer’s trade association is subject to the review, penalties,
and sanctions specified in paragraphs (1) and (2) of subdivision
(b). No member of the resin manufacturer’s trade association is
liable for penalties and sanctions set forth in paragraph (1) or (2)
of subdivision (b) pursuant to this subdivision if that member
would not otherwise be subject to those penalties and sanctions.

(e) For the purposes of subdivision (b) and paragraph (1) of
subdivision (c) of Section 42310.1, “feasible” means capable of
being accomplished in a successful manner within a reasonable
period of time, taking into account economic, environmental,
social, and technological factors.

(f) For purposes of Section 42310.1 and this section regarding
all reporting, compliance, and penalty obligations, “manufacturer”
includes all subsidiaries and affiliates.

end delete

SEC. 6.  

Section 42310.3 of the Public Resources Code is
amended to read:

42310.3.  

(a) Notwithstanding Section 42310, a manufacturer
is in compliance with this chapter if the manufacturer demonstrates
through its own actions, or the actions of another company under
the same corporate ownership, that one of the following actions
were taken during the same period for which the manufacturer is
subject to this chapter, with regard to a rigid plastic packaging
container that stores the manufacturer’s product that is sold or
intended for sale in this state:

(1) The manufacturer, or another company under the same
corporate ownership, consumed postconsumer material generated
in the state in the manufacture of a rigid plastic packaging container
subject to Section 42310, or a rigid plastic packaging container or
other plastic products or plastic packaging not subject to that
section, and that is equivalent to, or exceeds the postconsumer
material that the rigid plastic packaging container is otherwise
required to contain, as specified in subdivision (a) of Section
42310.

(2) The manufacturer, or any company under the same corporate
ownership, arranged by contractual agreement for the purchase
and consumption of postconsumer material generated in the state
and exported to another state for the manufacture of a rigid plastic
packaging container subject to Section 42310, or a rigid plastic
packaging container or other plastic products or plastic packaging
not subject to that section that is equivalent to, or exceeds the
postconsumer material that the rigid plastic packaging container
is otherwise required to contain, as specified in subdivision (a) of
Section 42310.

(b) The begin delete board end delete begin insert department end insert shall determine the manner of
demonstrating compliance with this section.

SEC. 7.  

Section 42320 of the Public Resources Code is
amended to read:

42320.  

Any entity required to make a certification pursuant to
this chapter may be audited by the begin delete board end delete begin insert department end insert .

SEC. 8.  

Section 42321 of the Public Resources Code is
amended to read:

42321.  

If any entity provides the begin delete board end delete begin insert department end insert with a false
or misleading certificate pursuant to this chapter, the begin delete board end delete
begin insert department end insert , within 30 days of making this determination, shall
refer the provider of the false or misleading certificate to the
Attorney General for prosecution for fraud.

SEC. 9.  

Section 42322 of the Public Resources Code is
amended to read:

42322.  

(a) Any violation of this chapter is a public offense
punishable by a fine of not more than one hundred thousand dollars
($100,000).

(b) In addition to the penalty specified under subdivision (a),
any violation of this chapter may be subject to a civil penalty
assessed by the begin delete board end delete begin insert department end insert of not more than fifty thousand
dollars ($50,000) for each violation, pursuant to a notice and
hearing procedure that conforms with Chapter 5 (commencing
with Section 11500) of Part 1 of Division 3 of Title 2 of the
Government Code.

(c) The total annual fines or penalties assessed upon a violator
of this chapter shall not exceed one hundred thousand dollars
($100,000).

(d) The begin delete board end delete begin insert department end insert shall annually publish a list by July
1 setting forth any fines or penalties that have been levied against
a violator of this chapter in the preceding calendar year, for failure
to comply with the requirements of this chapter.

(e) The begin delete board end delete begin insert department end insert shall deposit all penalties or fines
paid pursuant to this section into the Rigid Container Account,
which is hereby created in the Integrated Waste Management Fund
in the State Treasury. The moneys deposited in the Rigid Container
Account shall be expended by the begin delete board end delete begin insert department end insert , upon
appropriation by the Legislature, to assist local governmental
agencies to develop and implement collection and processing
systems for the recycling of materials that are subject to this
chapter, for the development of markets for these materials, and
for the begin delete board end delete begin insert department end insert begin insert ’s end insert costs of implementing this chapter.

SEC. 10.  

Section 42323 of the Public Resources Code is
amended to read:

42323.  

Proprietary information included in part of a report or
certificate submitted to the begin delete board end delete begin insert department end insert pursuant to this
chapter shall not be made available to the general public.

SEC. 11.  

Section 42325 of the Public Resources Code is
amended to read:

42325.  

The begin delete board end delete begin insert department end insert shall adopt regulations to
implement this chapter. These regulations shall include, but shall
not be limited to, all of the following:

(a) Procedures for certifying compliance with Article 2
(commencing with Section 42310), including a requirement that
product manufacturers include in their specifications for rigid
plastic packaging containers a requirement that the packaging
manufacturer certify that the rigid plastic packaging containers
comply with this chapter.

(b) Procedures for considering and granting waivers pursuant
to Article 4 (commencing with Section 42330).

SEC. 12.  

Section 42326 of the Public Resources Code is
amended to read:

42326.  

In developing the regulations required by Section 42325,
the begin delete board end delete begin insert department end insert shall consult with representatives of the
manufacturers affected by this chapter, with representatives of
environmental organizations, and other interested parties.

SEC. 13.  

Section 42327 of the Public Resources Code is
amended to read:

42327.  

The begin delete board end delete begin insert department end insert may expend funds from the
Integrated Waste Management Account to implement this chapter,
upon appropriation by the Legislature.

SEC. 14.  

Section 42330 of the Public Resources Code is
amended to read:

42330.  

(a) The begin delete board end delete begin insert department end insert shall grant a waiver from
the postconsumer material content requirement of subdivision (a)
of Section 42310, but not from any other requirement of Section
42310, if the begin delete board end delete begin insert department end insert finds one or more of the following:

(1) The rigid plastic packaging containers cannot meet the
postconsumer material requirements of subdivision (a) of Section
42310 and remain in compliance with applicable provisions of
regulations adopted by the Food and Drug Administration or other
state or federal laws or regulations.

(2) It is technologically infeasible to use rigid plastic packaging
containers that achieve the postconsumer material requirement of
subdivision (a) of Section 42310.

(b) The begin delete board end delete begin insert department end insert shall grant a waiver from all of the
requirements of Section 42310 if the begin delete board end delete begin insert department end insert finds begin delete either
of the following: end delete

begin delete (1) end delete begin delete   end delete begin delete Less end delete begin insert less end insert than 60 percent of the single-family homes in the
state on and after January 1, 1994, have curbside collection
programs that include beverage container recycling.

begin delete

(2) At least 50 percent, by number, of a manufacturer’s rigid
plastic packaging containers sold or offered for sale in the state in
the current calendar year achieve the postconsumer material
requirements of subdivision (a) of Section 42310 and all of the
manufacturer’s rigid plastic packaging containers will comply with
the requirements of Section 42310 on or before January 1, 1996.

end delete

(c) The begin delete board end delete begin insert department end insert shall grant a one-year waiver from
all of the requirements of Section 42310 for products packaged in
rigid plastic packaging containers that are introduced and sold in
this state after January 1, 1995.

SEC. 15.   

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