Senate Bill No. 1274

Introduced by Senator Hancock

February 21, 2014

An act to amend Sections 42986, 42987, 42987.1, 42990, 42991, 42993.1, 42993.2, 42993.3, and 42993.4 of the Public Resources Code, relating to recycling.

LEGISLATIVE COUNSEL’S DIGEST

SB 1274, as introduced, Hancock. Recycling: used mattresses.

(1) Existing law, the Used Mattress Recovery and Recycling Act, requires a mattress recycling organization to be established by a qualified industry association to develop, implement, and administer a mattress recycling program, including the development of a state plan by July 1, 2015, for recycling used mattresses in the state that includes specified goals and elements. The plan is required to include an element that ensures that urban and rural local governments and participating solid waste facilities that accept mattresses are provided with a mechanism for the recovery of illegally disposed used mattresses that is funded at no additional cost to the local government or solid waste facility, as provided.

This bill would require that element to ensure that urban and rural local governments and participating permitted solid waste facilities and authorized solid waste operations that accept mattresses are provided with the above mechanism.

The plan is also required to include a provision that allows an individual to drop off a mattress, at no charge, at a mattress recycling center, permitted solid waste facility, or other municipal facility that accepts mattresses, and for the payment of a reasonable amount to that municipal or solid waste facility.

This bill would authorize an individual to also drop off a mattress at a recycler, renovator, authorized solid waste operation, or other municipal facility that accepts mattresses consistent with solid waste regulations. The bill would also require the payment amount to be determined as reasonable by the municipal facility or solid waste facility or operation and the mattress recycling organization.

For purposes of the act, existing law defines a solid waste facility to mean a facility that accepts, under its normal operating conditions, used mattresses from the public for collection, storing, and handling, whether for recycling or disposal.

This bill would instead define a solid waste facility as including a solid waste transfer or processing station, a composting facility, a gasification facility, a transformation facility, an EMSW conversion facility, and a disposal facility, as provided.

(2) The act requires the mattress recycling organization to arrange for an audit conducted by a independent certified public accountant to be delivered to the department, allows the mattress recycling organization to obtain copies of that audit, and prohibits the department from disclosing any confidential proprietary information in the audit. The department is authorized to conduct its own audit if it determines that an audit is necessary. The act also requires a mattress recycler or mattress renovator to submit an annual report to the department, which the department is required to make public.

This bill would instead prohibit the department from disclosing any confidential proprietary information in the audit that the department is authorized to conduct, would instead allow the mattress recycling organization to obtain copies of that audit, and would also prohibit the department from disclosing this confidential information in the annual report submitted by recyclers and renovators.

(3) The act authorizes the department to impose an administrative civil penalty on a manufacturer, organization, recycler, renovator, or retailer in violation of the act and to take other specified enforcement actions. The department is required to deposit these penalties into the Mattress Recovery and Recycling Penalty Account, which is available for expenditure by the department, upon appropriation by the Legislature, to implement and enforce the act and for offsetting certain costs reimbursed by the mattress recycling organization.

This bill would additionally authorize the department to impose civil penalties against distributors and to take those specified enforcement actions against distributors and recyclers. The bill would delete the authorization for the expenditure of these penalties to offset those reimbursed costs. The bill would also make technical and clarifying changes.

(4) Existing law authorizes the department to adopt emergency regulations relating to the used mattress recovery and recycling plan and the program budget. Existing law prohibits the department from adopting regulations with regard to any other provision of the act.

This bill would prohibit the department from adopting emergency regulations with regard to any other provision of the act.

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.  

Section 42986 of the Public Resources Code is
amended to read:

42986.  

For purposes of this chapter, the following definitions
shall apply:

(a) (1) “Consumer” means an owner of a mattress, including a
person, business, corporation, limited partnership, nonprofit
organization, or governmental entity, and including the ultimate
purchaser, owner, or lessee of a mattress.

(2) “Consumer” does not include a government organization or
other party that obtains one or more used mattresses in the course
of collecting used mattresses for recycling for purposes of this
chapter, or through the ordinary collection and handling of
municipal solid waste.

(b) “Distributor” means a company that has a contractual
relationship with one or more manufacturers to market and sell
mattresses to retailers.

(c) “Foundation” means a ticking-covered structure used to
support a mattress or sleep surface. The structure may include
constructed frames, foam, box springs, or other materials, used
alone or in combination.

(d) “Good faith effort” means all reasonable and economically
practical efforts by a mattress recycling organization to implement
the components identified in its approved plan consistent with its
annual budget.

(e) “Importer” means a party qualifying as an “importer of
record” for purposes of Section 1484(a)(2)(B) of Title 19 of the
United States Code, with regard to the import of a finished mattress
sold in the state that was manufactured or assembled by a company
outside the United States.

(f) (1) “Manufacturer” means any of the following:

(A) The person who manufactures a mattress and who sells,
offers for sale, or distributes a mattress in the state.

(B) If there is no person who is a manufacturer of a mattress
for purposes of subparagraph (A), the manufacturer is the person
who imports the mattress into the state for sale or distribution.

(2) Except as provided pursuant to paragraph (2) of subdivision
(b) of Section 42987, a retailer that brings a mattress into its store
locations from an out-of-state warehouse or distribution center is
not a manufacturer.

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

(2) “Mattress” includes a foundation and a renovated mattress
or renovated foundation.

(3) “Mattress” does not include the following:

(A) An unattached mattress pad or unattached mattress topper,
including items with resilient filling, with or without ticking,
intended to be used with or on top of a mattress.

(B) A sleeping bag or pillow.

(C) A car bed, crib, or bassinet mattress.

(D) Juvenile products, including a carriage, basket, dressing
table, stroller, playpen, infant carrier, lounge pad, or crib bumper,
and the pads for those juvenile products.

(E) A product containing liquid- and gaseous-filled ticking,
including a water bed and air mattress that does not contain
upholstery material between the ticking and the mattress core.

(F) Upholstered furniture that does not otherwise contain a
detachable mattress or that is a fold out sofa bed or futon.

(h) “Mattress recycling organization” or “organization” means
an organization exempt from taxation under Section 501(c)(3) or
Section 501(c)(6) of the Internal Revenue Code of 1986, that is
established by a qualified industry association, composed of
manufacturers, renovators, and retailers, and certified pursuant to
Section 42987, to develop, implement, and administer the mattress
recycling program established pursuant to this chapter.

(i) “Used mattress recovery and recycling plan” or “plan” means
the plan for recycling used mattresses that is developed by the
mattress recycling organization pursuant to this chapter.

(j) “Program” or “used mattress recycling program” means the
program implemented by the mattress recycling organization
pursuant to a plan approved by the department.

(k) “Qualified industry association” means the International
Sleep Products Association or a successor of that organization, or
a group of mattress manufacturers that collectively represent at
least 35 percent of the volume of mattresses manufactured in the
United States.

(l) “Recycle” or “recycling” has the same meaning as defined
in Section 40180.

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

(n) “Recycling charge” or “charge” means the charge imposed
on the sale of a new or renovated mattress at the point of sale and
collected by the organization to fund the recycling of used
mattresses pursuant to this chapter.

(o) (1) “Renovate” or “renovation” means altering a used
mattress for the purpose of resale and includes one or more of the
following:

(A) Replacing the mattress, ticking, or filling.

(B) Adding additional filling.

(C) Rebuilding a used mattress.

(D) Replacing components with new or postconsumer materials
unless the material is a clean recycled material, consists of used
electronic parts or controls, or is a used mattress base that is not
covered by ticking.

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

(A) Stripping 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.

(p) “Renovator” means a person who renovates used mattresses
for the purpose of sale, or offering for sale, in this state.

(q) “Retailer” means a person who sells mattresses in the state
or offers to a consumer a mattress in the state through any means,
including, but not limited to, by remote offering, including sales
outlets or catalogs, electronically through the Internet, by
telephone, or through the mail.

(r) “Sale” or “sell” means the transfer of title of a mattress for
consideration, including by a manufacturer, a distributor, or a
retailer for eventual consumption to a consumer in the state,
including remote sales conducted through sales outlets, catalogs,
or the Internet or any other similar electronic means. For purposes
of this chapter, a long-term lease of not less than 12 months is the
same as a sale.

(s) “Solid waste facility” begin delete means, for purposes of this chapter, a
solid waste facility that accepts under its normal operating
conditions, used mattresses from the public for collection, storing,
and handling, whether for recycling or disposal. end delete begin insert has the same
meaning as that term is defined in Section 4019 end insert begin insert 4. end insert

(t) (1) “Ticking” means the outermost layer of fabric or related
material of a mattress.

(2) “Ticking” does not include another layer of fabric or related
material that is quilted together with, or otherwise attached to, the
outermost layer of fabric or related material.

(u) “Used mattress” means a mattress that has been abandoned
or discarded by a consumer.

SEC. 2.  

Section 42987 of the Public Resources Code is
amended to read:

42987.  

(a) (1)  begin delete On or before July 1, 2014, a end delete begin insert A end insert qualified industry
association or a successor organization may establish a mattress
recycling organization for purposes of this chapter, which shall be
composed of manufacturers, renovators, and retailers and be
certified pursuant to this section to develop, implement, and
administer the mattress recycling program established pursuant to
this chapter.

(2) Within 60 days of receipt of a request for certification, the
department shall notify the requesting qualified industry association
of the department’s decision whether or not to certify that a
mattress recycling organization has been established by the
qualified industry association or successor organization and is
composed of manufacturers, renovators, and retailers for purposes
of establishing the mattress recycling plan.

(3) Prior to certification by the department, the department’s
director shall appoint an advisory committee to be part of the
mattress recycling organization.

(A) The advisory committee may be comprised of members of
the environmental community, solid waste industry, local
government, and public and private representatives involved in
the collection, processing and recycling of used mattresses, and
other interested parties.

(B) The mattress recycling organization shall consult the
advisory committee at least once during the development and
implementation of the plan required pursuant to Section 42987.1,
and annually prior to the submittal of both an annual report required
pursuant to Section 42990.1 and an annual budget required pursuant
to Section 42988.

(b) (1)  begin delete On or before January 1, 2015, each end delete begin insert Each end insert begin insert end insert manufacturer,
retailer, and renovator shall register with the mattress recycling
organization.

(2) A retailer may register with the mattress recycling
organization as a manufacturer for a brand for which there is not
a registered manufacturer.

(c) On and after January 1, 2016, a retailer shall not sell,
distribute, or offer for sale a mattress in the state unless the retailer
is in compliance with this chapter and the manufacturer or
renovator of the mattress sold by the retailer is listed in compliance
with this chapter.

(d) On and after January 1, 2016, a manufacturer or renovator
shall not sell, offer for sale, or import a mattress in this state, or
sell or distribute a mattress to a distributor or retailer, unless the
manufacturer or renovator is in compliance with this chapter.

SEC. 3.  

Section 42987.1 of the Public Resources Code is
amended to read:

42987.1.  

On or before July 1, 2015, the mattress recycling
organization shall develop and submit to the department a plan for
recycling used mattresses in the state in an economically efficient
and practical manner that includes all of the following goals and
elements:

(a) Program objectives consistent with the state’s solid waste
management hierarchy.

(b) The names of manufacturers, renovators, and brands covered
under the plan.

(c) A consultation process with affected stakeholders, including,
but not limited to, local government representatives, recyclers, and
solid waste industry representatives.

(d) Methods to increase the number of used mattresses diverted
from landfills, reduce the number of illegally dumped used
mattresses, and increase the quantity of used materials recovered
through this process and recycled for other uses.

(e) (1) The establishment and administration of a means for
funding the plan in a manner that distributes the mattress recycling
organization’s costs uniformly over all mattresses sold in the state.

(2) The funding mechanism shall provide sufficient funding for
the mattress recycling organization to carry out the plan, including
the administrative, operational, and capital costs of the plan.

(f) The publishing of an annual report for each calendar year of
operation.

(g) Conducting research, as needed, related to improving used
mattress collection, dismantling, and recycling operations,
including pilot programs to test new processes, methods, or
equipment on a local, regional, or otherwise limited basis.

(h) A program performance measurement that shall collect
program data for the purpose of the annual report. The information
shall include:

(1) A methodology for estimating the amount of mattresses sold
in the state, used mattresses available for collection in the state,
and for quantifying the number of used mattresses collected and
recycled in the state.

(2) A methodology for determining mattresses sold in the state
by the manufacturers and renovators of the mattress recycling
organization.

(i) A description of methods used to coordinate activities with
existing used mattress collecting and recycling programs, including
existing nonprofit mattress recyclers, and with other relevant parties
as appropriate, with regard to the proper management or recycling
of discarded or abandoned mattresses, for purposes of providing
the efficient delivery of services and avoiding unnecessary
duplication of effort and expense.

(j) Entering into contracts or agreements, which may include
contracts and agreements with existing nonprofit or for-profit
recyclers, that are necessary and proper for the mattress recycling
organization to carry out these duties consistent with the terms of
this chapter.

(k) Establishment of a financial incentive to encourage parties
to collect for recycling used mattresses discarded or illegally
dumped in the state.

(l) Ensuring, to the maximum extent possible, that urban and
rural local governments and participating begin insert permitted end insert solid waste
facilities begin insert and authorized solid waste operations end insert that accept
mattresses are provided with a mechanism for the recovery of
illegally disposed used mattresses that is funded at no additional
cost to the local government begin delete or end delete begin insert , end insert solid waste facility begin insert , or solid waste
operation end insert .

(m) Developing processes to collect used mattresses from
low-income communities for recycling 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.

(n) Providing outreach efforts and education to consumers,
manufacturers, and retailers, for the purpose of promoting the
recycling of used mattresses and options available to consumers
for the free dropoff of used mattresses.

(o) A provision that allows an individual to drop off, at no
charge, a mattress at a begin insert recycler, renovator, end insert mattress recycling
center, permitted solid waste facility, begin insert authorized solid waste
operation, end insert or other municipal facility that accepts mattresses
begin insert consistent with state solid waste regulations end insert , and that provides for
the payment to a municipal or solid waste facility begin insert or operation end insert
that accepts mattresses begin delete a reasonable amount end delete begin insert an amount determined
by the municipal or solid waste facility or operation and the
mattress recycling organization to be reasonable end insert for accepting,
collecting, storing, transporting, and handling used mattresses.

(p) Ensuring that the impact of Article XIII C of the California
Constitution is addressed for local governments participating in
the program.

(q) A report from the advisory committee, established pursuant
to paragraph (3) of subdivision (a) of Section 42987, which
includes a summary of the consultative process between the
advisory committee and the mattress recycling organization during
the development of the plan, as well as any other information
deemed pertinent by the advisory committee to maximizing the
recovery and recycling of used mattresses in the state.

(r) Other information requested by the department that is
reasonably related to compliance with the recycling plan and that
the organization can reasonably compile.

SEC. 4.  

Section 42990 of the Public Resources Code is
amended to read:

42990.  

(a) The mattress recycling organization shall keep
minutes, books, and records that clearly reflect the activities and
transactions of the mattress recycling organization.

(b) The accounting books of the mattress recycling organization
shall be audited at the organization’s expense by an independent
certified public accountant retained by the organization at least
once each calendar year.

(c) The mattress recycling organization shall arrange for the
audit to be delivered to the department, along with the annual
report required pursuant to Section 42990.1. The department shall
review the audit for compliance with this chapter and consistency
with the plan created pursuant to this chapter. The department shall
notify the mattress recycling organization of any compliance issues
or inconsistencies. begin delete The mattress recycling organization may obtain
copies of the audit upon request. end delete The department shall not disclose
any confidential proprietary information in the audit.

(d) The department may conduct its own audit if it determines
that an audit is necessary to enforce the requirements of this chapter
and that the audit conducted pursuant to subdivision (b) is not
adequate for this purpose. begin insert The mattress recycling organization
may obtain copies of the audit upon request. The department shall
not disclose any confidential proprietary information in the audit. end insert

SEC. 5.  

Section 42991 of the Public Resources Code is
amended to read:

42991.  

(a) On or before July 1, 2017, and annually thereafter,
a person that is engaged in business as a recycler or renovator shall
submit a report to the department that includes the following:

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

(2) Other information deemed necessary by the department that
is reasonably related to compliance with this chapter and that can
be reasonably compiled.

(b) For purposes of determining the used mattress recycling
rate, on or before July 1, 2017, and annually thereafter, begin delete the end delete begin insert an end insert
operator of a solid waste begin delete landfill end delete facility begin delete operator end delete begin insert or operation, end insert
shall report to the department, if requested, in a form and manner
determined by the department, regarding the number of used
mattresses received by that facility that were recycled, renovated,
or disposed of within the state in the preceding calendar year.

(c) The department shall make the information provided pursuant
to this section available to interested parties and to the public. begin insert The
department shall not disclose any confidential proprietary
information. end insert

SEC. 6.  

Section 42993.1 of the Public Resources Code is
amended to read:

42993.1.  

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

(b) The department shall not impose a penalty on the mattress
recycling organization pursuant to this section for a failure to
comply with this chapter if the organization demonstrates it
received false or misleading information from a member of the
organization or other party that was the direct cause of its failure
to comply.

(c) 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 Used Mattress Recycling
Fund. Upon appropriation by the Legislature, moneys deposited
into the Mattress Recovery and Recycling Penalty Account shall
be expended by the department to administer and enforce this
begin delete chapter, including offsetting the costs incurred by the department
pursuant to Section 42988.2. end delete begin insert chapter. end insert

SEC. 7.  

Section 42993.2 of the Public Resources Code is
amended to read:

42993.2.  

Upon a written finding that a manufacturer, mattress
recycling organization, renovator, begin insert distributor, recycler, end insert or retailer
has not met a material requirement of this chapter, in addition to
any other penalties authorized under this chapter, the department
may take any of the following actions, after affording the
manufacturer, organization, renovator, or retailer a reasonable
opportunity to respond to, or rebut, the finding, to ensure
compliance with the requirements of this chapter:

(a) Revoke the mattress recycling organization’s plan approval
or require the mattress recycling organization to resubmit the plan.

(b) Remove the manufacturer or renovator from the department’s
Internet Web site and list of compliant manufacturers and
renovators, as specified in Section 42993.

(c) Require additional reporting requirements relating to
compliance with the material requirement identified by the
department.

SEC. 8.  

Section 42993.3 of the Public Resources Code is
amended to read:

42993.3.  

(a) A manufacturer, renovator, begin insert distributor, recycler, end insert
retailer, and mattress recycling organization shall do both 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.

(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, renovator, begin insert distributor, recycler, end insert retailer, or mattress
recycling organization if the manufacturer, renovator, begin insert distributor,
recycler, end insert retailer, or mattress recycling organization fails to provide
the department with the access required pursuant to this section,
including, but not limited to, imposing penalties pursuant to Section
42993.1 and posting an immediate notice on the department’s
Internet Web site pursuant to Section 42993 that the manufacturer
or renovator is no longer in compliance with this chapter.

SEC. 9.  

Section 42993.4 of the Public Resources Code is
amended to read:

42993.4.  

(a) (1) The department may adopt emergency
regulations to implement this chapter with regard to establishing
a process for the submission of the used mattress recovery and
recycling plan to the department, and the approval of that plan,
pursuant to Section 42987.3 and for the submission of the proposed
used mattress recycling program budget to the department, and
the approval of the budget by the department, pursuant to Sections
42988 and 42988.1.

(2) The department shall not adopt begin insert emergency end insert regulations
pursuant to this section with regard to any other provision of this
chapter.

(3) This section does not limit the department’s authority to
adopt regulations pursuant to Section 40502.

(b) The emergency regulations adopted pursuant to this section
shall be adopted in accordance with Chapter 3.5 (commencing
with Section 11340) of Part 1 of Division 3 of Title 2 of the
Government Code, and for the purposes of that chapter, including
Section 11349.6 of the Government Code, the adoption of these
regulations is an emergency and shall be considered by the Office
of Administrative Law as necessary for the immediate preservation
of the public peace, health, safety, and general welfare.
Notwithstanding Chapter 3.5 (commencing with Section 11340)
of Part 1 of Division 3 of Title 2 of the Government Code, any
emergency regulations adopted by the department pursuant to this
section shall be filed with the Office of Administrative Law.