SB 303: Solid waste: Plastic Pollution Prevention and Packaging Producer Responsibility Act.
- Session Year: 2023-2024
- House: Senate
- Latest Version Date: 2023-09-14
Current Status:
Failed
(2024-01-25: Veto sustained.)
Introduced
In Committee
First Chamber
In Committee
Second Chamber
Enacted
The California Integrated Waste Management Act of 1989, administered by the Department of Resources Recycling and Recovery, generally regulates the disposal, management, and recycling of, among other solid waste, plastic packaging containers and single-use foodware accessories.
Existing law establishes the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which covers certain single-use packaging and plastic single-use food serviceware, as provided. As part of its comprehensive statutory scheme, existing law requires producers, as defined, of these covered materials to source reduce plastic covered material, to ensure that all covered material offered for sale, distributed, or imported in or into the state on or after January 1, 2032, is recyclable or compostable, and to ensure that plastic covered material offered for sale, distributed, or imported in or into the state achieves specified recycling rates, as provided.
The act prohibits a producer from selling, offering for sale, importing, or distributing covered materials in the state unless the producer is approved to participate in the producer responsibility plan of a producer responsibility organization (PRO), as prescribed, for the source reduction, collection, processing, and recycling of covered material, except as provided.
The act requires the department to establish a producer responsibility advisory board for specified purposes. The act authorizes an affected entity that asserts that specific actions taken to meet the requirements of the act are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements, to bring the concern and evidence supporting that assertion to the advisory board for discussion and to ask the advisory board to conduct a preliminary evaluation of the information. If the evaluation demonstrates that specific actions are disrupting or otherwise adversely affecting existing operations, the act requires the advisory board to submit the concern to the department for further analysis. The act requires the department to analyze the information provided by the advisory board and authorizes the department to offer a recommendation for resolution.
This bill would instead authorize an affected entity that asserts that specific actions taken by the PRO, a producer, or an entity under contract with the PRO are not consistent with specified prohibitions and requirements of the act and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements to bring that concern and supporting evidence to the advisory board. The bill would delete the requirement that the board submit the concern to the department for further analysis and would instead require that the advisory board, rather than the department, offer a recommendation for resolution within 90 days of submission of the request for a preliminary evaluation. The bill would thereafter authorize either party to initiate nonbinding arbitration, as specified. The bill would specify the duties and the authority of the arbitrator, as described, including requiring the arbitrator to transmit the proposed decision to the department and the advisory board. The bill would require the department to review the arbitrators proposed decision within 60 days of receipt and to make a specified determination. If the arbitrator proposes a revision to an approved producer responsibility plan, the bill would require the department to publicly notice the proposed plan revision on its internet website, as provided. The bill would authorize the department, if the department makes a specified determination, to approve or reject the proposed plan revision. The bill would authorize any party to request that the department conduct a de novo adjudicative proceeding within 60 days after the arbitrator delivers the proposed decision to the department and the advisory board. The bill would deem the arbitrators proposed decision to be final if no action is taken by the department or other party within 60 days of the arbitrators proposed decision being submitted to the department and the advisory committee. The bill would require the department to include any actions taken under these provisions in a specified report submitted to the Legislature. The bill would also require an approved producer responsibility plan to remain in effect and be implemented during any action taken pursuant to these new and revised procedures in response to an assertion described above. The bill would also prohibit initiation of that action from delaying the approval of a proposed plan or plan amendment.
The act authorizes the department to adopt regulations to identify responsible end markets and to establish criteria regarding benefits to the environment and minimizes risks to public health and worker health and safety. The act sets forth definitions for purposes of the act.
This bill would instead authorize the department to adopt regulations to establish standards for the PRO regarding responsible end markets for covered material and to establish criteria that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety. The bill would also revise and clarify certain definitions in the act.
This bill would incorporate additional changes to Section 42041 of the Public Resources Code proposed by AB 1526 to be operative only if this bill and AB 1526 are enacted and this bill is enacted last.
The California Integrated Waste Management Act of 1989, administered by the Department of Resources Recycling and Recovery, generally regulates the disposal, management, and recycling of, among other solid waste, plastic packaging containers and single-use foodware accessories.
Existing law establishes the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which covers certain single-use packaging and plastic single-use food serviceware, as provided. As part of its comprehensive statutory scheme, existing law requires producers, as defined, of these covered materials to source reduce plastic covered material, to ensure that all covered material offered for sale, distributed, or imported in or into the state on or after January 1, 2032, is recyclable or compostable, and to ensure that plastic covered material offered for sale, distributed, or imported in or into the state achieves specified recycling rates, as provided.
The act prohibits a producer from selling, offering for sale, importing, or distributing covered materials in the state unless the producer is approved to participate in the producer responsibility plan of a producer responsibility organization (PRO), as prescribed, for the source reduction, collection, processing, and recycling of covered material, except as provided.
The act requires the department to establish a producer responsibility advisory board for specified purposes. The act authorizes an affected entity that asserts that specific actions taken to meet the requirements of the act are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements, to bring the concern and evidence supporting that assertion to the advisory board for discussion and to ask the advisory board to conduct a preliminary evaluation of the information. If the evaluation demonstrates that specific actions are disrupting or otherwise adversely affecting existing operations, the act requires the advisory board to submit the concern to the department for further analysis. The act requires the department to analyze the information provided by the advisory board and authorizes the department to offer a recommendation for resolution.
This bill would instead authorize an affected entity that asserts that specific actions taken by the PRO, a producer, or an entity under contract with the PRO are not consistent with specified prohibitions and requirements of the act and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements to bring that concern and supporting evidence to the advisory board. The bill would delete the requirement that the board submit the concern to the department for further analysis and would instead require that the advisory board, rather than the department, offer a recommendation for resolution within 90 days of submission of the request for a preliminary evaluation. The bill would thereafter authorize either party to initiate nonbinding arbitration, as specified. The bill would specify the duties and the authority of the arbitrator, as described, including requiring the arbitrator to transmit the proposed decision to the department and the advisory board. The bill would require the department to review the arbitrators proposed decision within 60 days of receipt and to make a specified determination. If the arbitrator proposes a revision to an approved producer responsibility plan, the bill would require the department to publicly notice the proposed plan revision on its internet website, as provided. The bill would also authorize the department, if the department makes a specified determination, to approve or reject the proposed plan revision. The bill would authorize any party to request that the department conduct a de novo adjudicative proceeding within 60 days after the arbitrator delivers the proposed decision to the department and the advisory board. The bill would deem the arbitrators proposed decision to be final and binding if no action is taken by the department or other party within 60 days of the arbitrators proposed decision being submitted to the department and the advisory committee. The bill would require the department to include any actions taken under these provisions in a specified report submitted to the Legislature. The bill would also require an approved producer responsibility plan to remain in effect and be implemented during any action taken pursuant to these new and revised procedures in response to an assertion described above. The bill would also prohibit initiation of that action from delaying the approval of a proposed plan or plan amendment.
The act authorizes the department to adopt regulations to identify responsible end markets and to establish criteria regarding benefits to the environment and minimizes risks to public health and worker health and safety. The act sets forth definitions for purposes of the act.
This bill would instead authorize the department to adopt regulations to establish standards for the PRO regarding responsible end markets for covered material and to establish criteria that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety. The bill would also revise and clarify certain definitions in the act.
This bill would incorporate additional changes to Section 42041 of the Public Resources Code proposed by AB 1526 to be operative only if this bill and AB 1526 are enacted and this bill is enacted last.
The California Integrated Waste Management Act of 1989, administered by the Department of Resources Recycling and Recovery, generally regulates the disposal, management, and recycling of, among other solid waste, plastic packaging containers and single-use foodware accessories.
Existing law establishes the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which covers certain single-use packaging and plastic single-use food serviceware, as provided. As part of its comprehensive statutory scheme, existing law requires producers, as defined, of these covered materials to source reduce plastic covered material, to ensure that all covered material offered for sale, distributed, or imported in or into the state on or after January 1, 2032, is recyclable or compostable, and to ensure that plastic covered material offered for sale, distributed, or imported in or into the state achieves specified recycling rates, as provided.
The act prohibits a producer from selling, offering for sale, importing, or distributing covered materials in the state unless the producer is approved to participate in the producer responsibility plan of a producer responsibility organization (PRO), as prescribed, for the source reduction, collection, processing, and recycling of covered material, except as provided.
The act requires the department to establish a producer responsibility advisory board for specified purposes. The act authorizes an affected entity that asserts that specific actions taken to meet the requirements of the act are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements, to bring the concern and evidence supporting that assertion to the advisory board for discussion and to ask the advisory board to conduct a preliminary evaluation of the information. If the evaluation demonstrates that specific actions are disrupting or otherwise adversely affecting existing operations, the act requires the advisory board to submit the concern to the department for further analysis. The act requires the department to analyze the information provided by the advisory board and authorizes the department to offer a recommendation for resolution.
This bill would instead authorize an affected entity that asserts that specific actions taken by the PRO, a producer, or an entity under contract with the PRO are not consistent with specified prohibitions and requirements of the act and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements to bring that concern and supporting evidence to the advisory board. The bill would delete the requirement that the board submit the concern to the department for further analysis and would instead require that the advisory board, rather than the department, offer a recommendation for resolution within 90 days of submission of the request for a preliminary evaluation. The bill would thereafter authorize either party to initiate nonbinding arbitration, as specified. The bill would specify the duties and the authority of the arbitrator, as described, including requiring the arbitrator to transmit the proposed decision to the department and the advisory board. The bill would require the department to review the arbitrators proposed decision within 60 days of receipt and to make a specified determination. If the arbitrator orders proposes a revision to an approved producer responsibility plan, the bill would require the department to publicly notice the proposed plan revision on its internet website, as provided. The bill would also authorize the department, if the department makes a specified determination, to approve or reject the proposed plan revision. The bill would authorize any party to request that the department conduct a de novo adjudicative proceeding within 60 days after the arbitrator delivers the proposed decision to the department and the advisory board. The bill would deem the arbitrators proposed decision to be final and binding if no action is taken by the department or other party within 60 days of the arbitrators proposed decision being submitted to the department and the advisory committee. The bill would require the department to include any actions taken under these provisions in a specified report submitted to the Legislature.
The act authorizes the department to adopt regulations to identify responsible end markets and to establish criteria regarding benefits to the environment and minimizes risks to public health and worker health and safety. The act sets forth definitions for purposes of the act.
This bill would instead authorize the department to adopt regulations to establish standards for the PRO regarding responsible end markets for covered material and to establish criteria that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety. The bill would also revise and clarify certain definitions in the act.
The California Integrated Waste Management Act of 1989, administered by the Department of Resources Recycling and Recovery, generally regulates the disposal, management, and recycling of, among other solid waste, plastic packaging containers and single-use foodware accessories.
Existing law establishes the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which covers certain single-use packaging and plastic single-use food serviceware, as provided. As part of its comprehensive statutory scheme, existing law requires producers, as defined, of these covered materials to source reduce plastic covered material, to ensure that all covered material offered for sale, distributed, or imported in or into the state on or after January 1, 2032, is recyclable or compostable, and to ensure that plastic covered material offered for sale, distributed, or imported in or into the state achieves specified recycling rates, as provided.
The act prohibits a producer from selling, offering for sale, importing, or distributing covered materials in the state unless the producer is approved to participate in the producer responsibility plan of a producer responsibility organization (PRO), as prescribed, for the source reduction, collection, processing, and recycling of covered material, except as provided.
The act requires the department to establish a producer responsibility advisory board for specified purposes. The act authorizes an affected entity that asserts that specific actions taken to meet the requirements of the act are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements, to bring the concern and evidence supporting that assertion to the advisory board for discussion and to ask the advisory board to conduct a preliminary evaluation of the information. If the evaluation demonstrates that specific actions are disrupting or otherwise adversely affecting existing operations, the act requires the advisory board to submit the concern to the department for further analysis. The act requires the department to analyze the information provided by the advisory board and authorizes the department to offer a recommendation for resolution.
This bill would instead authorize an affected entity that asserts that specific actions taken by the PRO, a producer, or an entity under contract with the PRO are not consistent with specified prohibitions and requirements of the act and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements to bring that concern and supporting evidence to the advisory board. The bill would delete the requirement that the board submit the concern to the department for further analysis and would instead require that the advisory board, rather than the department, offer a recommendation for resolution within 90 days of submission of the request for a preliminary evaluation. The bill would thereafter authorize either party to initiate nonbinding arbitration, as specified. The bill would make the arbitrators decision in a nonbinding arbitration final unless within 30 days after the arbitrator delivers the decision to the advisory board a party requests that the department conduct a de novo adjudicative proceeding. The bill would require the arbiter to consider the information provided to the advisory board and any other information provided to the arbiter by the parties, and would authorize the arbiter to order actions to remedy any disrupting or adverse effect determined by the arbiter to exist. The bill would specify the duties and the authority of the arbitrator, as described, including requiring the arbitrator to transmit the decision to the department and the advisory board. The bill would require the department to review the arbitrators decision within 60 days of receipt and to make a specified determination. If the arbitrator orders a revision to an approved producer responsibility plan, the bill would require the department to publicly notice the proposed plan revision on its internet website, as provided. The bill would also authorize the department, if the department makes a specified determination, to approve or reject the proposed plan revision. The bill would authorize any party to request that the department conduct a de novo adjudicative proceeding within 60 days after the arbitrator delivers the decision to the department and the advisory board. The bill would deem the arbitrators decision to be final and binding if no action is taken by the department or other party within 60 days of the arbitrators decision being submitted to the department and the advisory committee. The bill would require the department to include any actions taken under these provisions in a specified report submitted to the Legislature.
The act authorizes the department to adopt regulations to identify responsible end markets and to establish criteria regarding benefits to the environment and minimizes risks to public health and worker health and safety. The act sets forth definitions for purposes of the act.
This bill would instead authorize the department to adopt regulations to establish standards for the PRO regarding responsible end markets for covered material and to establish criteria that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety. The bill would also revise and clarify certain definitions in the act.
The California Integrated Waste Management Act of 1989, administered by the Department of Resources Recycling and Recovery, generally regulates the disposal, management, and recycling of, among other solid waste, plastic packaging containers and single-use foodware accessories.
Existing law establishes the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which covers certain single-use packaging and plastic single-use food serviceware, as provided. As part of its comprehensive statutory scheme, existing law requires producers, as defined, of these covered materials to source reduce plastic covered material, to ensure that all covered material offered for sale, distributed, or imported in or into the state on or after January 1, 2032, is recyclable or compostable, and to ensure that plastic covered material offered for sale, distributed, or imported in or into the state achieves specified recycling rates, as provided.
The act prohibits a producer from selling, offering for sale, importing, or distributing covered materials in the state unless the producer is approved to participate in the producer responsibility plan of a producer responsibility organization (PRO), as prescribed, for the source reduction, collection, processing, and recycling of covered material, except as provided.
The act requires the department to establish a producer responsibility advisory board for specified purposes. The act authorizes an affected entity that asserts that specific actions taken to meet the requirements of the act are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements, to bring the concern and evidence supporting that assertion to the advisory board for discussion and to ask the advisory board to conduct a preliminary evaluation of the information. If the evaluation demonstrates that specific actions are disrupting or otherwise adversely affecting existing operations, the act requires the advisory board to submit the concern to the department for further analysis. The act requires the department to analyze the information provided by the advisory board and authorizes the department to offer a recommendation for resolution.
This bill would instead authorize an affected entity that asserts that specific actions taken by the PRO, a producer, or an entity under contract with the PRO are not consistent with specified prohibitions and requirements of the act and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements to bring that concern and supporting evidence to the advisory board. The bill would delete the requirement that the board submit the concern to the department for further analysis and would instead require that the advisory board, rather than the department, offer a recommendation for resolution within 90 days of submission of the request for a preliminary evaluation. The bill would thereafter authorize either party to initiate nonbinding arbitration, as specified. The bill would make the arbitrators decision in a nonbinding arbitration final unless within 30 days after the arbitrator delivers the decision to the advisory board a party requests that the department conduct a de novo adjudicative proceeding. The bill would require the arbiter to consider the information provided to the advisory board and any other information provided to the arbiter by the parties, and would authorize the arbiter to order actions to remedy any disrupting or adverse effect determined by the arbiter to exist. The bill would require the department to include any actions taken under these provisions in a specified report submitted to the Legislature.
The act authorizes the department to adopt regulations to identify responsible end markets and to establish criteria regarding benefits to the environment and minimizes risks to public health and worker health and safety. The act sets forth definitions for purposes of the act.
This bill would instead authorize the department to adopt regulations to establish standards for the PRO regarding responsible end markets for covered material and to establish criteria that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety. The bill would also revise and clarify certain definitions in the act.
The California Integrated Waste Management Act of 1989, administered by the Department of Resources Recycling and Recovery, generally regulates the disposal, management, and recycling of, among other solid waste, plastic packaging containers and single-use foodware accessories.
Existing law establishes the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which covers certain single-use packaging and plastic single-use food serviceware, as provided. As part of its comprehensive statutory scheme, existing law requires producers, as defined, of these covered materials to source reduce plastic covered material, to ensure that all covered material offered for sale, distributed, or imported in or into the state on or after January 1, 2032, is recyclable or compostable, and to ensure that plastic covered material offered for sale, distributed, or imported in or into the state achieves specified recycling rates, as provided.
The act prohibits a producer from selling, offering for sale, importing, or distributing covered materials in the state unless the producer is approved to participate in the producer responsibility plan of a producer responsibility organization (PRO), as prescribed, for the source reduction, collection, processing, and recycling of covered material, except as provided.
The act requires the department to establish a producer responsibility advisory board for specified purposes. The act authorizes an affected entity that asserts that specific actions taken to meet the requirements of the act are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements, to bring the concern and evidence supporting that assertion to the advisory board for discussion and to ask the advisory board to conduct a preliminary evaluation of the information. If the evaluation demonstrates that specific actions are disrupting or otherwise adversely affecting existing operations, the act requires the advisory board to submit the concern to the department for further analysis. The act requires the department to analyze the information provided by the advisory board and authorizes the department to offer a recommendation for resolution.
This bill would instead authorize an affected entity that asserts that specific actions taken by the PRO, a producer, or an entity under contract with the PRO are not consistent with specified prohibitions and requirements of the act and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements to bring that concern and supporting evidence to the advisory board. The bill would delete the requirement that the board submit the concern to the department for further analysis and would instead require that the advisory board, rather than the department, offer a recommendation for resolution within 90 days of submission of the request for a preliminary evaluation. The bill would thereafter authorize either party to initiate nonbinding arbitration, as specified. The bill would require the arbiter to consider the information provided to the advisory board and any other information provided to the arbiter by the parties, and would authorize the arbiter to order actions to remedy any disrupting or adverse effect determined by the arbiter to exist. The bill would require the department to include any actions taken under these provisions in a specified report submitted to the Legislature.
The act authorizes the department to adopt regulations to identify responsible end markets and to establish criteria regarding benefits to the environment and minimizes risks to public health and worker health and safety. The act sets forth definitions for purposes of the act.
This bill would instead authorize the department to adopt regulations to establish standards for the PRO regarding responsible end markets for covered material and to establish criteria that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety. The bill would also revise and clarify certain definitions in the act.
Existing law establishes the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which covers certain single-use packaging and plastic single-use food service ware, as provided. As part of its comprehensive statutory scheme, the act requires the producers, as defined, of these covered materials to source reduce plastic covered material, to ensure that covered material offered for sale, distributed, or imported in or into the state on or after January 1, 2032, is recyclable or compostable, and to ensure that plastic covered material offered for sale, distributed, or imported in or into the state meets specified recycling rates.This bill would state the Legislatures intent to enact future legislation relating to the Plastic Pollution Prevention and Packaging Producer Responsibility Act.Existing law establishes the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which covers certain single-use packaging and plastic single-use food service ware, as provided. As part of its comprehensive statutory scheme, the act requires the producers, as defined, of these covered materials to source reduce plastic covered material, to ensure that covered material offered for sale, distributed, or imported in or into the state on or after January 1, 2032, is recyclable or compostable, and to ensure that plastic covered material offered for sale, distributed, or imported in or into the state meets specified recycling rates.
This bill would state the Legislatures intent to enact future legislation relating to the Plastic Pollution Prevention and Packaging Producer Responsibility Act.
For purposes of this chapter, the following definitions apply:
(a)Advisory board means the producer responsibility advisory board established pursuant to Section 42070.
(b)Bulk or large format packaging means packaging for a large amount of a product in a large packaging, thereby offsetting the need for multiple smaller packaging units for the same amount of product.
(c)California circular economy administrative fee means the fee imposed by the department pursuant to Section 42053.5.
(d)Concentrate or concentration means reducing the amount of packaging needed for a product by reformulating the product to allow for smaller quantities of the product to be used for the same purpose as the previous, larger quantity.
(e)(1)Covered material means both of the following:
(A)Single-use packaging that is routinely recycled, disposed of, or discarded after its contents have been used or unpackaged, and typically not refilled or otherwise reused by the producer.
(B)Plastic single-use food serviceware, including, but not limited to, plastic-coated paper or plastic-coated paperboard, paper or paperboard with plastic intentionally added during the manufacturing process, and multilayer flexible material. For purposes of this subparagraph, single-use food serviceware includes both of the following:
(i)Trays, plates, bowls, clamshells, lids, cups, utensils, stirrers, hinged or lidded containers, and straws.
(ii)Wraps or wrappers and bags sold to food service establishments.
(2)Notwithstanding paragraph (1), covered material does not include any of the following:
(A)Packaging used for any of the following products:
(i)Medical products and products defined as devices or prescription drugs, as specified in the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Secs. 321(g), 321(h), and 353(b)(1)).
(ii)Drugs that are used for animal medicines, including, but not limited to, parasiticide products for animals.
(iii)Products intended for animals that are regulated as animal drugs, biologics, parasiticides, medical devices, or diagnostics used to treat, or administered to, animals under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 301 et seq.), the federal Virus-Serum-Toxin Act (21 U.S.C. Sec. 151 et seq.), or the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.).
(iv)Infant formula, as defined in Section 321(z) of Title 21 of the United States Code.
(v)Medical food, as defined in Section 360ee(b)(3) of Title 21 of the United States Code.
(vi)Fortified oral nutritional supplements used for persons who require supplemental or sole source nutrition to meet nutritional needs due to special dietary needs directly related to cancer, chronic kidney disease, diabetes, malnutrition, or failure to thrive, as those terms are defined as by the International Classification of Diseases, Tenth Revision, or other medical conditions as determined by the department.
(B)Packaging used to contain products regulated by the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.).
(C)Plastic packaging containers that are used to contain and ship products that are classified for transportation as dangerous goods or hazardous materials under Part 178 (commencing with Section 178.0) of Subchapter C of Chapter I of Subtitle B of Title 49 of the Code of Federal Regulations.
(D)Packaging used to contain hazardous or flammable products regulated by the 2012 federal Occupational Safety and Health Administration Hazard Communications Standard (29 C.F.R. 1910.1200).
(E)Beverage containers subject to the California Beverage Container Recycling and Litter Reduction Act (Division 12.1 (commencing with Section 14500)).
(F)Packaging used for the long-term protection or storage of a product that has a lifespan of not less than five years, as determined by the department.
(G)Packaging associated with products covered under the architectural paint recovery program established pursuant to Chapter 5 (commencing with Section 48700) of Part 7.
(H)(i)Covered material for which the producer demonstrates to the department that the covered material meets all of the following criteria:
(I)The covered material is not collected through a residential recycling collection service.
(II)The covered material does not undergo separation from other materials at a commingled recycling processing facility.
(III)The covered material is recycled at a responsible end market.
(IV)The material has demonstrated a recycling rate of 65 percent for three consecutive years before January 1, 2027, and on and after that date demonstrates a recycling rate at or over 70 percent annually, as demonstrated to the department every two years.
(ii)If only a portion of the covered material sold in or into the state by a producer meets the criteria of clause (i), only the portion of the covered material that meets the criteria of clause (i) is exempt from this chapter and any portion that does not meet the criteria is a covered material for purposes of this chapter.
(f)Covered material category means a category that includes covered material of a similar type and form, as determined by the department.
(g)Curbside collection means a program that includes the collection of material, including, but not limited to, covered materials, by a local jurisdiction or recycling or composting service provider under contract with a local jurisdiction.
(h)Department means the Department of Resources Recycling and Recovery.
(i)Disadvantaged community means an area identified by the California Environmental Protection Agency pursuant to Section 39711 of the Health and Safety Code or an area identified as a disadvantaged unincorporated community pursuant to Section 65302.10 of the Government Code.
(j)Eliminate or elimination, with respect to source reduction, means the removal of a plastic component from a covered material without replacing that component with a nonplastic component.
(k)Expanded polystyrene means blown polystyrene and expanded or extruded foams that are thermoplastic petrochemical materials using a styrene monomer and processed by any technique or techniques, including, but not limited to, fusion of polymer spheres (expandable bead polystyrene), injection molding, foam molding, and extrusion-blow molding (extruded foam polystyrene).
(l)Local jurisdiction means a city, county, city and county, regional agency formed pursuant to Chapter 5 (commencing with Section 6500) of Division 7 of Title 1 of the Government Code or Article 3 (commencing with Section 40970) of Chapter 1 of Part 2, or special district that provides solid waste collection services.
(m)Lightweighting means reducing the weight or amount of material used in a specific packaging or food serviceware without functionally changing the packaging or food serviceware. Lightweighting does not include changes that result in a recyclable or compostable covered material becoming nonrecyclable or noncompostable or less likely to be recycled or composted.
(n)Low-income community means an area with household incomes at or below 80 percent of the statewide median income or with household incomes at or below the threshold designated as low income by the Department of Housing and Community Developments list of state income limits adopted pursuant to Section 50093 of the Health and Safety Code.
(o)Malus fee means a charge imposed by a PRO on a participant producer for a covered material due to the adverse environmental or public health impacts of the covered material.
(p)Materials recovery facility or MRF means a recycling facility that receives recyclable material, including, but not limited to, any covered material, for mechanical or manual sorting into specification-grade commodities for processing or for sale to a broker or end market.
(q)Needs assessment means a needs assessment prepared pursuant to Section 42067.
(r)Optimize or optimization means limiting the amount of covered material used in packaging by meeting product or packaging needs with minimal material. This includes, but is not limited to, eliminating unnecessary components, right-sizing, concentrating, and using bulk or large format packaging.
(s)Packaging means any separable and distinct material component used for the containment, protection, handling, delivery, or presentation of goods by the producer for the user or consumer, ranging from raw materials to processed goods. Packaging includes, but is not limited to, all of the following:
(1)Sales packaging or primary packaging intended to provide the user or consumer the individual serving or unit of the product and most closely containing the product, food, or beverage.
(2)Grouped packaging or secondary packaging intended to bundle, sell in bulk, brand, or display the product.
(3)Transport packaging or tertiary packaging intended to protect the product during transport.
(4)Packaging components and ancillary elements integrated into packaging, including ancillary elements directly hung onto or attached to a product and that perform a packaging function, except both of the following:
(A)An element of the packaging or food serviceware with a de minimis weight or volume, which is not an independent plastic component, as determined by the department.
(B)A component or element that is an integral part of the product, if all components or elements of the product are intended to be consumed or disposed of together.
(t)Plastic means a synthetic or semisynthetic material chemically synthesized by the polymerization of organic substances that can be shaped into various rigid and flexible forms, and includes coatings and adhesives. Plastic includes, without limitation, polyethylene terephthalate (PET), high density polyethylene (HDPE), polyvinyl chloride (PVC), low density polyethylene (LDPE), polypropylene (PP), polystyrene (PS), polylactic acid (PLA), and aliphatic biopolyesters, such as polyhydroxyalkanoate (PHA) and polyhydroxybutyrate (PHB). Plastic does not include natural rubber or naturally occurring polymers such as proteins or starches.
(u)Plastic component means any single piece of covered material made partially or entirely of plastic. A plastic component may constitute the entirety of the covered material or a separate or separable piece of the covered material.
(v)Processing means to sort, segregate, break or flake, and clean material to prepare it to meet the specification for sale to a responsible end market in which the recovery of materials and the disposal of contaminants is conducted in a way that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety.
(w)(1)Producer means a person who manufactures a product that uses covered material and who owns or is the licensee of the brand or trademark under which the product is used in a commercial enterprise, sold, offered for sale, or distributed in the state.
(2)If there is no person in the state who is the producer for purposes of paragraph (1), the producer of the covered material is the owner or, if the owner is not in the state, the exclusive licensee of a brand or trademark under which the covered product using the covered material is used in a commercial enterprise, sold, offered for sale, or distributed in the state. For purposes of this subdivision, a licensee is a person holding the exclusive right to use a trademark or brand in the state in connection with the manufacture, sale, or distribution of the product packaged in or made from the covered material.
(3)If there is no person in the state who is the producer for purposes of paragraph (1) or (2), the producer of the covered material is the person who sells, offers for sale, or distributes the product that uses the covered material in or into the state.
(4)Producer does not include a person who produces, harvests, and packages an agricultural commodity on the site where the agricultural commodity was grown or raised.
(5)For purposes of this chapter, the sale of covered materials shall be deemed to occur in the state if the covered materials are delivered to the purchaser in the state.
(x)Producer responsibility organization or PRO means an organization that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code of 1986 and is formed for the purpose of implementing a plan to meet the requirements of this chapter.
(y)Producer responsibility plan or plan, unless context requires otherwise, means the plan produced by a PRO, or by a producer that chooses to assume responsibility to comply with this chapter individually, and submitted to the advisory board and department pursuant to Section 42051.1.
(z)Rate of inbound contamination means the amount of nonrecyclable or noncompostable materials arriving at a materials recovery facility or other recycling or composting facility.
(aa)(1)Recycle or recycling means the process of collecting, sorting, cleansing, treating, and reconstituting materials that would otherwise ultimately be disposed of onto land or into water or the atmosphere, and returning them to, or maintaining them within, the economic mainstream in the form of recovered material for new, reused, or reconstituted products, including compost, that meet the quality standards necessary to be used in the marketplace.
(2)Recycle or recycling does not include any of the following:
(A)Combustion.
(B)Incineration.
(C)Energy generation.
(D)Fuel production, except for anaerobic digestion of source separated organic materials.
(E)Other forms of disposal.
(3)To be considered recycled, covered material shall be sent to a responsible end market.
(4)(A)The department may adopt regulations to define guidelines and verification requirements for the PRO and for any producers complying with this chapter pursuant to paragraph (2) of subdivision (b) of Section 42051, for covered material shipped out of state and exported to other countries for recycling, including processing requirements and contamination standards, or to otherwise implement this paragraph. The PRO or producer shall ensure and certify to the department that it has included any applicable guidelines and verification requirements in any contracts with entities involved in the processing or recycling of covered materials.
(B)For any mixture of plastic waste exported to another country, the PRO or producer shall certify to the department that the processes and recycling technologies used meet both of the following requirements, as determined by the department:
(i)The plastic waste is a mixture of plastic types consisting only of one or more of polyethylene, polypropylene, or polyethylene terephthalate, and the export is destined for separate recycling of each material.
(ii)The plastic waste export is not prohibited by an applicable law or treaty of the destination jurisdiction, and the import of the plastic waste into the destination jurisdiction will be conducted in accordance with all applicable laws and treaties of that destination jurisdiction.
(C)For any mixture of plastic waste exported to other states or countries, the PRO or producer shall certify to the department that the recycling technology used meets the requirements of this subdivision.
(D)In meeting the requirements of subparagraphs (B) and (C), the PRO or producer shall provide documentation necessary to verify this certification and shall make the certification under penalty of perjury.
(5)The departments regulations shall encourage recycling that minimizes generation of hazardous waste, generation of greenhouse gases, environmental impacts, environmental justice impacts, and public health impacts. The regulations shall include criteria to exclude plastic recycling technologies that produce significant amounts of hazardous waste.
(ab)Recycling rate means the percentage, overall and by category, of covered material sold, offered for sale, distributed, or imported in the state that is ultimately recycled. The recycling rate shall be calculated as the amount of covered material that is recycled in a given year divided by the total amount of covered material disposed of, as defined in subdivision (b) of Section 40192, and the amount of covered material recycled, unless and until the department adopts a new methodology for calculating the recycling rate by regulation.
(ac)Recycling service provider means a solid waste enterprise that provides solid waste handling services on behalf of a local jurisdiction.
(ad)(1)Responsible end market means an entity that uses recycled covered material for the manufacturing of products when the manufacturing, including the disposal of contaminates, is conducted in a way that benefits the environment and minimizes risks to public health and worker health and safety.
(2)Responsible end market does not include entities that process covered material in a manner that is prohibited under the definition of recycling pursuant to paragraph (2) of subdivision (aa).
(3)The PRO or producer shall ensure and certify to the department that it has included any applicable regulations and guidelines in any contracts with entities providing responsible end markets for covered materials.
(ae)(1)Retailer or wholesaler means the person or entity who sells covered material in the state to purchasers or offers to purchasers the covered material in the state through any means, including, but not limited to, any of the following:
(A)Remote offering, including sales outlets or catalogs.
(B)Electronically through the internet.
(C)Telephone.
(D)Mail.
(E)Direct sales.
(2)A person who sells covered material as a third-party seller using an online marketplace as described in paragraph (3) shall be considered the retailer or wholesaler for purposes of such transactions. The owner or operator of the online marketplace shall not be considered the retailer or wholesaler for such sales.
(3)For purposes of this subdivision, online marketplace means a consumer-directed, electronically accessed platform in which all of the following are true:
(A)The platform includes features that enable third-party sellers to sell consumer products directly to consumers in the state without the owner or operator of the platform involved in the transaction other than by providing order processing, payment, storage, shipping, or delivery services.
(B)Third-party sellers use the features described in subparagraph (A) to sell directly to consumers in the state, with title to the consumer product passing from the third-party sellers directly to consumers and not being held by the owner or operator of the online marketplace at any point during the transaction, including upon receipt of the order and throughout the order fulfillment process.
(C)Except as provided by subparagraph (E), the owner or operator of the platform does not directly or indirectly control the covered material used in packaging and shipping of a consumer product in this state.
(D)The person or entity operating the platform has a contractual or similar relationship with consumers governing their use of the platform to purchase consumer products.
(E)Third-party sellers agree, pursuant to the platforms terms and conditions or other enforceable agreement, that they will not use the platform to offer for sale, sell, or distribute into the state covered material that does not meet the requirements of this chapter.
(af)Reusable or refillable or reuse or refill, in regard to packaging or food serviceware, means either of the following:
(1)For packaging or food serviceware that is reused or refilled by a producer, it satisfies all of the following:
(A)Explicitly designed and marketed to be used multiple times for the same product, or for another purposeful packaging use in a supply chain.
(B)Designed for durability to function properly in its original condition for multiple uses.
(C)Supported by adequate infrastructure to ensure the packaging or food serviceware can be conveniently and safely reused or refilled for multiple cycles.
(D)Repeatedly recovered, inspected, and repaired, if necessary, and reissued into the supply chain for reuse or refill for multiple cycles.
(2)For packaging or food serviceware that is reused or refilled by a consumer, it satisfies all of the following:
(A)Explicitly designed and marketed to be used multiple times for the same product.
(B)Designed for durability to function properly in its original condition for multiple uses.
(C)Supported by adequate and convenient availability of and retail infrastructure for bulk or large format packaging that may be refilled to ensure the packaging or food serviceware can be conveniently and safely reused or refilled by the consumer multiple times.
(ag)Right-size or right-sizing means reducing the amount of material used to package an item by reducing unnecessary space or eliminating unnecessary components of the packaging.
(ah)Rural area has the same meaning as defined in Section 50101 of the Health and Safety Code.
(ai)Single use means conventionally disposed of after a single use or not sufficiently durable or washable to be, or not intended to be, reusable or refillable.
(aj)Source reduction means the reduction in the amount of covered material created by a producer relative to a baseline established pursuant to subdivision (b) of Section 42057. Methods of source reduction include, but are not limited to, shifting covered material to reusable or refillable packaging or a reusable product or eliminating unnecessary packaging. Source reduction does not include either of the following:
(1)Replacing a recyclable or compostable covered material with a nonrecyclable or noncompostable covered material or a covered material that is less likely to be recycled or composted.
(2)Switching from virgin covered material to postconsumer recycled content.
(ak)Source reduction plan means the plan prepared as part of the PRO plan in accordance with Section 42057.
(al)Unexpended funds means moneys in a PROs accounts that the organization is not already obligated to pay pursuant to a contract, claim, or similar mechanism. Unexpended funds excludes the California circular economy administrative fees.
SEC. 1.5.Section 42041 of the Public Resources Code is amended to read:42041.For purposes of this chapter, the following definitions apply:
(a)Advisory board means the producer responsibility advisory board established pursuant to Section 42070.
(b)Bulk or large format packaging means packaging for a large amount of a product in a large packaging, thereby offsetting the need for multiple smaller packaging units for the same amount of product.
(c)California circular economy administrative fee means the fee imposed by the department pursuant to Section 42053.5.
(d)Concentrate or concentration means reducing the amount of packaging needed for a product by reformulating the product to allow for smaller quantities of the product to be used for the same purpose as the previous, larger quantity.
(e)(1)Covered material means both of the following:
(A)Single-use packaging that is routinely recycled, disposed of, or discarded after its contents have been used or unpackaged, and typically not refilled or otherwise reused by the producer.
(B)Plastic single-use food serviceware, including, but not limited to, plastic-coated paper or plastic-coated paperboard, paper or paperboard with plastic intentionally added during the manufacturing process, and multilayer flexible material. For purposes of this subparagraph, single-use food serviceware includes both of the following:
(i)Trays, plates, bowls, clamshells, lids, cups, utensils, stirrers, hinged or lidded containers, and straws.
(ii)Wraps or wrappers and bags used in the packaging of food offered for sale or provided to customers by food service establishments.
(2)Notwithstanding paragraph (1), covered material does not include any of the following:
(A)Packaging used for any of the following products:
(i)Medical products and products defined as devices or prescription drugs, as specified in the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Secs. 321(g), 321(h), and 353(b)(1)).
(ii)Drugs that are used for animal medicines, including, but not limited to, parasiticide products for animals.
(iii)Products intended for animals that are regulated as animal drugs, biologics, parasiticides, medical devices, or diagnostics used to treat, or administered to, animals under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 301 et seq.), the federal Virus-Serum-Toxin Act (21 U.S.C. Sec. 151 et seq.), or the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.).
(iv)Infant formula, as defined in Section 321(z) of Title 21 of the United States Code.
(v)Medical food, as defined in Section 360ee(b)(3) of Title 21 of the United States Code.
(vi)Fortified oral nutritional supplements used for persons who require supplemental or sole source nutrition to meet nutritional needs due to special dietary needs directly related to cancer, chronic kidney disease, diabetes, malnutrition, or failure to thrive, as those terms are defined as by the International Classification of Diseases, Tenth Revision, or other medical conditions as determined by the department.
(B)Packaging used to contain products regulated by the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.).
(C)Plastic packaging containers that are used to contain and ship products that are classified for transportation as dangerous goods or hazardous materials under Part 178 (commencing with Section 178.0) of Subchapter C of Chapter I of Subtitle B of Title 49 of the Code of Federal Regulations.
(D)Packaging used to contain hazardous or flammable products classified by the 2012 federal Occupational Safety and Health Administration Hazard Communication Standard (29 C.F.R. 1910.1200).
(E)Beverage containers subject to the California Beverage Container Recycling and Litter Reduction Act (Division 12.1 (commencing with Section 14500)).
(F)Packaging used for the long-term protection or storage of a product that has a lifespan of not less than five years, as determined by the department.
(G)Packaging associated with products covered under the architectural paint recovery program established pursuant to Chapter 5 (commencing with Section 48700) of Part 7.
(H)(i)Covered material for which the producer demonstrates to the department that the covered material meets all of the following criteria:
(I)The covered material is not collected through a residential recycling collection service.
(II)The covered material does not undergo separation from other materials at a commingled recycling processing facility.
(III)The covered material is recycled at a responsible end market.
(IV)Until January 1, 2027, the producer annually demonstrates to the department that the material has had a recycling rate of 65 percent for three consecutive years. On and after January 1, 2027, the producer demonstrates to the department that the material has had a recycling rate at or over 70 percent annually, as demonstrated to the department every two years.
(ii)If only a portion of the covered material sold in or into the state by a producer meets the criteria of clause (i), only the portion of the covered material that meets the criteria of clause (i) is exempt from this chapter and any portion that does not meet the criteria is a covered material for purposes of this chapter.
(f)Covered material category means a category that includes covered material of a similar type and form, as determined by the department.
(g)Curbside collection means a program that includes the collection of material, including, but not limited to, covered materials, by a local jurisdiction or recycling or composting service provider under contract with a local jurisdiction.
(h)Department means the Department of Resources Recycling and Recovery.
(i)Disadvantaged community means an area identified by the California Environmental Protection Agency pursuant to Section 39711 of the Health and Safety Code or an area identified as a disadvantaged unincorporated community pursuant to Section 65302.10 of the Government Code.
(j)Eliminate or elimination, with respect to source reduction, means the removal of a plastic component from a covered material without replacing that component with a nonplastic component.
(k)Expanded polystyrene means blown polystyrene and expanded or extruded foams that are thermoplastic petrochemical materials using a styrene monomer and processed by any technique or techniques, including, but not limited to, fusion of polymer spheres (expandable bead polystyrene), injection molding, foam molding, and extrusion-blow molding (extruded foam polystyrene).
(l)Lightweighting means reducing the weight or amount of material used in a specific packaging or food serviceware without functionally changing the packaging or food serviceware. Lightweighting does not include changes that result in a recyclable or compostable covered material becoming nonrecyclable or noncompostable or less likely to be recycled or composted.
(m)Local jurisdiction means a city, county, city and county, regional agency formed pursuant to Chapter 5 (commencing with Section 6500) of Division 7 of Title 1 of the Government Code or Article 3 (commencing with Section 40970) of Chapter 1 of Part 2, or special district that provides solid waste collection services.
(n)Low-income community means an area with household incomes at or below 80 percent of the statewide median income or with household incomes at or below the threshold designated as low income by the Department of Housing and Community Developments list of state income limits adopted pursuant to Section 50093 of the Health and Safety Code.
(o)Malus fee means a charge imposed by a PRO on a participant producer for a covered material due to the adverse environmental or public health impacts of the covered material.
(p)Materials recovery facility or MRF means a recycling facility that receives recyclable material, including, but not limited to, any covered material, for mechanical or manual sorting into specification-grade commodities for processing or for sale to a broker or end market.
(q)Needs assessment means a needs assessment prepared pursuant to Section 42067.
(r)Optimize or optimization means limiting the amount of covered material used in packaging by meeting product or packaging needs with minimal material. This includes, but is not limited to, eliminating unnecessary components, right-sizing, concentrating, and using bulk or large format packaging.
(s)Packaging means any separable and distinct material component used for the containment, protection, handling, delivery, or presentation of goods by the producer for the user or consumer, ranging from raw materials to processed goods. Packaging includes, but is not limited to, all of the following:
(1)Sales packaging or primary packaging intended to provide the user or consumer the individual serving or unit of the product and most closely containing the product, food, or beverage.
(2)Grouped packaging or secondary packaging intended to bundle, sell in bulk, brand, or display the product.
(3)Transport packaging or tertiary packaging intended to protect the product during transport.
(4)Packaging components and ancillary elements integrated into packaging, including ancillary elements directly hung onto or attached to a product and that perform a packaging function, except both of the following:
(A)An element of the packaging or food serviceware with a de minimis weight or volume, which is not an independent plastic component, as determined by the department.
(B)A component or element that is an integral part of the product, if all components or elements of the product are intended to be consumed or disposed of together.
(t)Plastic means a synthetic or semisynthetic material chemically synthesized by the polymerization of organic substances that can be shaped into various rigid and flexible forms, and includes coatings and adhesives. Plastic includes, without limitation, polyethylene terephthalate (PET), high density polyethylene (HDPE), polyvinyl chloride (PVC), low density polyethylene (LDPE), polypropylene (PP), polystyrene (PS), polylactic acid (PLA), and aliphatic biopolyesters, such as polyhydroxyalkanoate (PHA) and polyhydroxybutyrate (PHB). Plastic does not include natural rubber or naturally occurring polymers such as proteins or starches.
(u)Plastic component means any single piece of covered material made partially or entirely of plastic. A plastic component may constitute the entirety of the covered material or a separate or separable piece of the covered material.
(v)Processing means to sort, segregate, break or flake, and clean material to prepare it to meet the specification for sale to a responsible end market in which the recovery of materials and the disposal of contaminants is conducted in a way that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety.
(w)(1)Producer means a person who manufactures a product that uses covered material and who owns or is the licensee of the brand or trademark under which the product is used in a commercial enterprise, sold, offered for sale, or distributed in the state.
(2)If there is no person in the state who is the producer for purposes of paragraph (1), the producer of the covered material is the owner or, if the owner is not in the state, the exclusive licensee of a brand or trademark under which the product using the covered material is used in a commercial enterprise, sold, offered for sale, or distributed in the state. For purposes of this subdivision, a licensee is a person holding the exclusive right to use a trademark or brand in the state in connection with the manufacture, sale, or distribution of the product packaged in or made from the covered material.
(3)If there is no person in the state who is the producer for purposes of paragraph (1) or (2), the producer of the covered material is the person who sells, offers for sale, or distributes the product that uses the covered material in or into the state.
(4)Producer does not include a person who produces, harvests, and packages an agricultural commodity on the site where the agricultural commodity was grown or raised.
(5)For purposes of this chapter, the sale of covered materials shall be deemed to occur in the state if the covered materials are delivered to the purchaser in the state.
(x)Producer responsibility organization or PRO means an organization that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code of 1986 and is formed for the purpose of implementing a plan to meet the requirements of this chapter.
(y)Producer responsibility plan or plan, unless context requires otherwise, means the plan produced by a PRO, or by a producer that chooses to assume responsibility to comply with this chapter individually, and submitted to the advisory board and department pursuant to Section 42051.1.
(z)Rate of inbound contamination means the amount of nonrecyclable or noncompostable materials arriving at a materials recovery facility or other recycling or composting facility.
(aa)(1)Recycle or recycling means the process of collecting, sorting, cleansing, treating, and reconstituting materials that would otherwise ultimately be disposed of onto land or into water or the atmosphere, and returning them to, or maintaining them within, the economic mainstream in the form of recovered material for new, reused, or reconstituted products, including compost, that meet the quality standards necessary to be used in the marketplace.
(2)Recycle or recycling does not include any of the following:
(A)Combustion.
(B)Incineration.
(C)Energy generation.
(D)Fuel production, except for anaerobic digestion of source separated organic materials.
(E)Other forms of disposal.
(3)To be considered recycled, covered material shall be sent to a responsible end market.
(4)(A)The department may adopt regulations to define guidelines and verification requirements for the PRO and for any producers complying with this chapter pursuant to paragraph (2) of subdivision (b) of Section 42051, for covered material shipped out of state and exported to other countries for recycling, including processing requirements and contamination standards, or to otherwise implement this paragraph. The PRO or producer shall ensure and certify to the department that it has included any applicable guidelines and verification requirements in any contracts with entities involved in the processing or recycling of covered materials.
(B)For any mixture of plastic waste exported to another country, the PRO or producer shall certify to the department that the processes and recycling technologies used meet both of the following requirements, as determined by the department:
(i)The plastic waste is a mixture of plastic types consisting only of one or more of polyethylene, polypropylene, or polyethylene terephthalate, and the export is destined for separate recycling of each material.
(ii)The plastic waste export is not prohibited by an applicable law or treaty of the destination jurisdiction, and the import of the plastic waste into the destination jurisdiction will be conducted in accordance with all applicable laws and treaties of that destination jurisdiction.
(C)For any mixture of plastic waste exported to other states or countries, the PRO or producer shall certify to the department that the recycling technology used meets the requirements of this subdivision.
(D)In meeting the requirements of subparagraphs (B) and (C), the PRO or producer shall provide documentation necessary to verify this certification and shall make the certification under penalty of perjury.
(5)The departments regulations shall encourage recycling that minimizes generation of hazardous waste, generation of greenhouse gases, environmental impacts, environmental justice impacts, and public health impacts. The regulations shall include criteria to exclude plastic recycling technologies that produce significant amounts of hazardous waste.
(ab)Recycling rate means the percentage, overall and by category, of covered material sold, offered for sale, distributed, or imported in the state that is ultimately recycled. The recycling rate shall be calculated as the amount of covered material that is recycled in a given year divided by the total amount of covered material disposed of, as defined in subdivision (b) of Section 40192, and the amount of covered material recycled, unless and until the department adopts a new methodology for calculating the recycling rate by regulation.
(ac)Recycling service provider means a solid waste enterprise that provides solid waste handling services on behalf of a local jurisdiction.
(ad)(1)Responsible end market means an entity that uses recycled covered material for the manufacturing of products when the manufacturing, including the disposal of contaminates, is conducted in a way that benefits the environment and minimizes risks to public health and worker health and safety.
(2)Responsible end market does not include entities that process covered material in a manner that is prohibited under the definition of recycling pursuant to paragraph (2) of subdivision (aa).
(3)The PRO or producer shall ensure and certify to the department that it has included any applicable regulations and guidelines in any contracts with entities providing responsible end markets for covered materials.
(ae)(1)Retailer or wholesaler means the person or entity who sells covered material in the state to purchasers or offers to purchasers the covered material in the state through any means, including, but not limited to, any of the following:
(A)Remote offering, including sales outlets or catalogs.
(B)Electronically through the internet.
(C)Telephone.
(D)Mail.
(E)Direct sales.
(2)A person who sells covered material as a third-party seller using an online marketplace as described in paragraph (3) shall be considered the retailer or wholesaler for purposes of such transactions. The owner or operator of the online marketplace shall not be considered the retailer or wholesaler for such sales.
(3)For purposes of this subdivision, online marketplace means a consumer-directed, electronically accessed platform in which all of the following are true:
(A)The platform includes features that enable third-party sellers to sell consumer products directly to consumers in the state without the owner or operator of the platform involved in the transaction other than by providing order processing, payment, storage, shipping, or delivery services.
(B)Third-party sellers use the features described in subparagraph (A) to sell directly to consumers in the state, with title to the consumer product passing from the third-party sellers directly to consumers and not being held by the owner or operator of the online marketplace at any point during the transaction, including upon receipt of the order and throughout the order fulfillment process.
(C)Except as provided by subparagraph (E), the owner or operator of the platform does not directly or indirectly control the covered material used in packaging and shipping of a consumer product in this state.
(D)The person or entity operating the platform has a contractual or similar relationship with consumers governing their use of the platform to purchase consumer products.
(E)Third-party sellers agree, pursuant to the platforms terms and conditions or other enforceable agreement, that they will not use the platform to offer for sale, sell, or distribute into the state covered material that does not meet the requirements of this chapter.
(af)Reusable or refillable or reuse or refill, in regard to packaging or food serviceware, means either of the following:
(1)For packaging or food serviceware that is reused or refilled by a producer, it satisfies all of the following:
(A)Explicitly designed and marketed to be used multiple times for the same product, or for another purposeful packaging use in a supply chain.
(B)Designed for durability to function properly in its original condition for multiple uses.
(C)Supported by adequate infrastructure to ensure the packaging or food serviceware can be conveniently and safely reused or refilled for multiple cycles.
(D)Repeatedly recovered, inspected, and repaired, if necessary, and reissued into the supply chain for reuse or refill for multiple cycles.
(2)For packaging or food serviceware that is reused or refilled by a consumer, it satisfies all of the following:
(A)Explicitly designed and marketed to be used multiple times for the same product.
(B)Designed for durability to function properly in its original condition for multiple uses.
(C)Supported by adequate and convenient availability of and retail infrastructure for bulk or large format packaging that may be refilled to ensure the packaging or food serviceware can be conveniently and safely reused or refilled by the consumer multiple times.
(ag)Right-size or right-sizing means reducing the amount of material used to package an item by reducing unnecessary space or eliminating unnecessary components of the packaging.
(ah)Rural area has the same meaning as defined in Section 50101 of the Health and Safety Code.
(ai)Single use means conventionally disposed of after a single use or not sufficiently durable or washable to be, or not intended to be, reusable or refillable.
(aj)Source reduction means the reduction in the amount of covered material created by a producer relative to a baseline established pursuant to subdivision (b) of Section 42057. Methods of source reduction include, but are not limited to, shifting covered material to reusable or refillable packaging or a reusable product or eliminating unnecessary packaging. Source reduction does not include either of the following:
(1)Replacing a recyclable or compostable covered material with a nonrecyclable or noncompostable covered material or a covered material that is less likely to be recycled or composted.
(2)Switching from virgin covered material to postconsumer recycled content.
(ak)Source reduction plan means the plan prepared as part of the PRO plan in accordance with Section 42057.
(al)Unexpended funds means moneys in a PROs accounts that the organization is not already obligated to pay pursuant to a contract, claim, or similar mechanism. Unexpended funds excludes the California circular economy administrative fees.
SEC. 2.Section 42060 of the Public Resources Code is amended to read:42060.(a)By January 1, 2025, the department shall adopt regulations necessary to implement and enforce this chapter and to ensure that the requirements of this chapter and in particular the requirements established in Section 42050 and the policy goal established in Section 41780.01 as it relates to covered material are met. The regulations shall include, but not be limited to, all of the following:
(1)Any regulations necessary to ensure the PRO fully funds plan implementation, including fully funding the budget. This shall include the costs incurred by a local jurisdiction or a local jurisdictions recycling service providers to implement this chapter, including, but not limited to, the cost of consumer education and of collection, including the cost of containers where relevant, as well as the processing, storage, and transportation of covered materials. Costs may vary based on population density or other relevant factors and shall allow local jurisdictions to protect ratepayers from increased costs associated with the processing and marketing of covered material.
(2)(A)Establish a mandatory process for producers, retailers, and wholesalers, or a PRO operating on behalf of a producer, retailer, or wholesaler, to register with and report to the department.
(B)The process shall include establishing appropriate timelines to begin regular reporting following the adoption of the regulations. The department shall consider, along with any other factors the department deems appropriate, the amount of information being reported in developing the timelines.
(C)(i)Data requests by the department shall be consistent with the covered material categories established and posted on the departments internet website pursuant to subdivision (a) of Section 42061.
(ii)To the maximum extent feasible, the department shall seek to use records and information that the local jurisdiction, producer, retailer, wholesaler, or PRO already maintains, in order to minimize the burden imposed by the reporting and recordkeeping requirements while still enabling the department to determine compliance with this chapter.
(D)The department shall, to the extent feasible, make the reporting consistent with other recognized third-party reporting systems used by producers or other packaging extended producer responsibility programs.
(E)Market-sensitive trade secret data received by the department pursuant to this chapter shall be held confidentially by the department as required by Section 40062 and any implementing regulations, provided that the furnisher of the data complies with the requirements set forth in subdivision (b) of Section 40062 and any implementing regulations for identifying the information claimed to be a trade secret.
(F)The department shall create an online registration form to facilitate submitting reports pursuant to this subdivision. To the extent permissible under applicable law, the department may contract with an independent third-party online reporting system with recognized standards for waste characterization, source reduction, and recycling.
(3)(A)The department shall establish a process to identify covered material that, while determined to be single use for purposes of this chapter, presents unique challenges in complying with this chapter. The department may exempt covered material identified pursuant to this subparagraph from this chapter.
(B)For any covered material identified as presenting unique challenges and exempted from this chapter under subparagraph (A), the department may at any point develop a plan to phase the covered material into the requirements of this chapter.
(4)The department shall establish a process to identify covered material that cannot comply with this chapter for health and safety reasons, or because it is unsafe to recycle. The department may exempt that covered material from this chapter.
(5)The department shall establish a process to exempt from the requirements of this chapter, except for the requirements of subdivision (b) of Section 42050, small producers, small retailers, and small wholesalers based on size, revenue, number of retail locations, and market share, as follows:
(A)Subject to subparagraph (B), the department shall exempt producers, retailers, or wholesalers that, in the most recent calendar year, had gross sales of less than one million dollars ($1,000,000) in the state.
(B)If the department determines that exempting a particular small producer, small retailer, or small wholesaler pursuant to subparagraph (A) would hinder the ability of a type of covered material or covered material category from complying with the requirements of this chapter, the department may determine that the particular small producer, small retailer, or small wholesaler will not be exempted from the requirements of this chapter.
(6)(A)The department shall include mechanisms necessary to reduce the amount of covered material entering the environment, in accordance with the regulations adopted pursuant to this section.
(B)The department may consider reductions of covered material achieved by a producer before the effective date of the regulations toward a producers compliance with this chapter if the producer can demonstrate to the satisfaction of the department that the producer reduced the covered material in a manner consistent with this chapter and actions taken to comply with Chapter 5.5 (commencing with Section 42300).
(C)In calculating the reductions necessary to achieve the requirements adopted pursuant to subdivision (a), the department shall consider source reduction achieved pursuant to Section 42057.
(7)The department shall establish a process to require coordination between a PRO and producer that is not a participant of the PROs approved plan and between multiple PROs as necessary. This includes determining how much each PRO shall charge producers of plastic covered material in order to prorate the funding as necessary to raise the revenue required by Section 42064.
(8)The department shall establish a methodology and process to calculate, to the extent feasible, an annual recycling rate defined in subdivision (ab) of Section 42041.
(b)The department may adopt regulations to establish standards for the PRO regarding responsible end markets for covered material and to establish criteria that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety.
(c)(1)The department shall ensure that any regulations adopted pursuant to this chapter consider guidelines and do not conflict with regulations issued by the United States Food and Drug Administration and the United States Department of Agriculture and consider requirements imposed by other California state agencies.
(2)Neither the department nor the PRO shall impose any requirement, including, but not limited to, a recycled content requirement, in direct conflict with a federal law or regulation, including, but not limited to, laws or regulations covering tamper-evident packaging pursuant to Section 211.132 of Title 21 of the Code of Federal Regulations, laws or regulations covering child-resistant packaging pursuant to Part 1700 (commencing with Section 1700.1) of Subchapter E of Chapter II of Title 16 of the Code of Federal Regulations, regulations, rules, or guidelines issued by the United States Department of Agriculture or the United States Food and Drug Administration relevant to packaging agricultural commodities, requirements for microbial contamination, structural integrity, or safety of packaging under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 301 et seq.), 21 U.S.C. Sec. 2101 et seq., the federal FDA Food Safety Modernization Act (21 U.S.C. Sec. 2201 et seq.), the Federal Poultry Products Inspection Act (21 U.S.C. Sec. 451 et seq.), the Federal Meat Inspection Act (21 U.S.C. Sec. 601 et seq.), or the federal Egg Products Inspection Act (21 U.S.C. Sec. 1031 et seq.). Neither the department nor a PRO shall impose a postconsumer recycled content requirement for covered material for fresh produce.
(d)In developing the regulations, the department shall consider relevant information on reduction programs and approaches in other states, localities, and nations, including, but not limited to, the European Union, India, Costa Rica, China, Chile, and Canada, and international standards, including, but not limited to, ISO 18602.
(e)In adopting regulations pursuant to this section, the department shall ensure the regulations, and activities conducted in accordance with the regulations, avoid or minimize disproportionate impacts to disadvantaged or low-income communities or rural areas.
SEC. 3.Section 42070 of the Public Resources Code is amended to read:42070.(a)In implementing this chapter, the department shall establish a producer responsibility advisory board for the purpose of identifying barriers and solutions to creating a circular economy consistent with this chapter and advising the department, producers, and producer responsibility organizations in the implementation of this chapter. The advisory board shall be composed of 13 voting and 3 nonvoting members as provided in the following categories, who shall be appointed by the director:
(1)One representative nominated by a statewide city association.
(2)One representative nominated by a statewide rural county association.
(3)One representative from an environmental protection organization.
(4)One representative from an ocean advocacy organization.
(5)One representative from an environmental justice organization.
(6)One representative from a disadvantaged or low-income community or rural area.
(7)One representative of a materials recovery facility located within the State of California.
(8)One representative of a recycling service provider, or a representative of an association of recycling service providers.
(9)One representative from the composting industry operating in the State of California.
(10)A representative of each of four manufacturers of covered materials of different material types using postconsumer recycled content, one of which produces third-party certified compostable covered material. These board members shall not be a board member of a PRO.
(11)One representative nominated by a statewide association representing the retail sector. This board member shall be a nonvoting member.
(12)One representative nominated by a statewide association representing the grocery sector. This board member shall be a nonvoting member.
(13)One representative of a producer responsibility organization. This board member shall be a nonvoting member.
(b)The director shall appoint all members to the advisory board on or before July 1, 2023. The director shall appoint the members for staggered three-year terms, and may reappoint a member for additional terms. At its first meeting, the advisory board shall elect a chair who will serve as chair for the calendar year, and who may be reelected as chair.
(c)The advisory board shall meet at least once per year by the call of the chair or by request of a majority of the voting members. The department shall provide administrative support to the advisory board.
(d)The advisory board meetings shall be open to the public and are subject to the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code).
(e)(1)The advisory board shall provide the PRO and the department, and a third party conducting or updating a needs assessment if applicable, with initial recommendations regarding all of the following:
(A)Key barriers and possible solutions to advance the objectives of increasing recovery of covered materials and decreasing the leakage of plastic into the environment no later than one year after the advisory boards initial meeting. This shall include key barriers and possible solutions related to available and viable responsible end markets and market development for covered materials.
(B)Key barriers and possible solutions to advance the objectives of reducing the production of virgin material for covered material and reducing the landfilling of covered material.
(C)Key barriers and possible pathways toward reusable packaging and products and refillable systems.
(D)Key barriers and other considerations needed for covered material to meet the requirements of this chapter.
(E)How a PRO will cover the costs incurred by local jurisdictions and local jurisdictions recycling service providers associated with implementing this chapter and managing the material covered in a plan.
(2)The department shall consider the recommendations provided under paragraph (1) as it evaluates which specific actions may be appropriate to advance the objectives of this chapter.
(f)The advisory board may take any of the following actions through written recommendations as the advisory board deems appropriate:
(1)Advise the department, producers, or PROs on technical matters in support of the goals of this chapter to create a circular economy and reduce covered material pollution.
(2)Advise the department in the adoption of the regulations required by this chapter.
(3)Advise the department, producers, or PROs on any other pertinent matters in implementing this chapter, as determined by the advisory board or department.
(g)Pursuant to Section 42067, the advisory board shall review any needs assessment or revised needs assessment submitted to it within 90 calendar days of receipt of the assessment.
(h)Within 60 calendar days of receiving a plan submitted pursuant to subdivision (a) of Section 42051.2, the advisory board shall review the plan and offer written comments, which may include suggested modifications to the plan.
(i)The advisory board shall submit written recommendations to the department only if a majority of the advisory boards voting members endorse the recommendation. One or more advisory board members who do not endorse the recommendation may submit a separate written recommendation to the department reflecting the minority opinion or opinions.
(j)(1)If an affected entity asserts that specific actions taken by the PRO, a producer, or an entity under contract with the PRO are not consistent with paragraph (3) or (4) of subdivision (c) of, or paragraph (2) of subdivision (i) of, Section 42051.1 and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements, the affected entity may bring the concern and evidence supporting this assertion to the advisory board for discussion and ask the advisory board to conduct a preliminary evaluation of the information. If the evaluation demonstrates that specific actions are disrupting or otherwise adversely affecting existing operations, the advisory board shall offer a recommendation for resolution within 90 days of submission of the request for a preliminary evaluation.
(2)After the advisory board offers its recommendation pursuant to paragraph (1), either party may initiate nonbinding arbitration by a neutral arbitrator with the consent of all parties, consistent with procedures set forth in Title 9 (commencing with Section 1280) of Part 3 of the Code of Civil Procedure, and without prejudice to seeking judicial relief, to determine whether specific actions taken by the PRO, a producer, or an entity under contract with the PRO are not consistent with paragraph (3) or (4) of subdivision (c) of, or paragraph (2) of subdivision (i) of, Section 42051.1 and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements. The arbitrator shall consider the information presented to the advisory board and any other information provided to the arbitrator by the parties.
(3)If the arbitrator determines pursuant to paragraph (2) that specific actions taken by the PRO, a producer, or an entity under contract with the PRO are not consistent with paragraph (3) or (4) of subdivision (c) of, or paragraph (2) of subdivision (i) of, Section 42051.1 and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements, the arbitrator may propose actions, to the extent feasible, to remedy the disruption or adverse effect, including, but not limited to, proposing a revision to the producer responsibility plan causing the disruption or adverse effect. The arbitrator shall transmit the proposed decision to the department and to the advisory board.
(4)The department shall review the arbitrators proposed decision within 60 days of receipt and shall determine whether or not the arbitrators proposed decision conflicts with or impedes the requirements, targets, and goals of this chapter.
(5)If the arbitrator proposes a revision to an approved producer responsibility plan, the department shall publicly notice the proposed plan revision on its internet website and shall accept comments from the advisory board and the public about the proposed revision. If the department determines, after reviewing the proposed plan revision and considering public comment, that the proposed plan revision is consistent with this chapter and associated regulations, does not adversely impact other organizations impacted by the proposed plan revision, and does not adversely affect the PROs or producers ability to comply with this chapter and associated regulations, it may approve the proposed plan revision. If the department determines, after reviewing the proposed plan revision and considering public comment, that the proposed plan revision is not consistent with the requirements of this chapter, associated regulations, or the PROs or producers ability to comply with this chapter or associated regulations, it may reject the proposed plan revision.
(6)Within 60 days after the arbitrator delivers the proposed decision to the department and the advisory board, any party, including, but not limited to, the department, the advisory board, local governments, nongovernmental organizations, other producers, and other entities under contract with a PRO or producer, may request that the department conduct a de novo adjudicative proceeding.
(7)If no action is taken by the department or other party within 60 days of the arbitrators proposed decision being submitted to the department and the advisory committee, the proposed decision shall then be deemed final.
(8) The department shall include any actions taken pursuant to this subdivision in the subsequent report submitted to the Legislature pursuant to subdivision (a) of Section 42065.
(9)(A)An approved producer responsibility plan shall remain in effect and be implemented during an action taken pursuant to this subdivision.
(B)Initiation of an action pursuant to this subdivision shall not delay the approval of a proposed plan or plan amendment.
SEC. 4.Section 1.5 of this bill incorporates amendments to Section 42041 of the Public Resources Code proposed by both this bill and Assembly Bill 1526. That section shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2024, (2) each bill amends Section 42041 of the Public Resources Code, and (3) this bill is enacted after Assembly Bill 1526, in which case Section 1 of this bill shall not become operative.
For purposes of this chapter, the following definitions apply:
(a)Advisory board means the producer responsibility advisory board established pursuant to Section 42070.
(b)Bulk or large format packaging means packaging for a large amount of a product in a large packaging, thereby offsetting the need for multiple smaller packaging units for the same amount of product.
(c)California circular economy administrative fee means the fee imposed by the department pursuant to Section 42053.5.
(d)Concentrate or concentration means reducing the amount of packaging needed for a product by reformulating the product to allow for smaller quantities of the product to be used for the same purpose as the previous, larger quantity.
(e)(1)Covered material means both of the following:
(A)Single-use packaging that is routinely recycled, disposed of, or discarded after its contents have been used or unpackaged, and typically not refilled or otherwise reused by the producer.
(B)Plastic single-use food serviceware, including, but not limited to, plastic-coated paper or plastic-coated paperboard, paper or paperboard with plastic intentionally added during the manufacturing process, and multilayer flexible material. For purposes of this subparagraph, single-use food serviceware includes both of the following:
(i)Trays, plates, bowls, clamshells, lids, cups, utensils, stirrers, hinged or lidded containers, and straws.
(ii)Wraps or wrappers and bags sold to food service establishments.
(2)Notwithstanding paragraph (1), covered material does not include any of the following:
(A)Packaging used for any of the following products:
(i)Medical products and products defined as devices or prescription drugs, as specified in the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Secs. 321(g), 321(h), and 353(b)(1)).
(ii)Drugs that are used for animal medicines, including, but not limited to, parasiticide products for animals.
(iii)Products intended for animals that are regulated as animal drugs, biologics, parasiticides, medical devices, or diagnostics used to treat, or administered to, animals under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 301 et seq.), the federal Virus-Serum-Toxin Act (21 U.S.C. Sec. 151 et seq.), or the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.).
(iv)Infant formula, as defined in Section 321(z) of Title 21 of the United States Code.
(v)Medical food, as defined in Section 360ee(b)(3) of Title 21 of the United States Code.
(vi)Fortified oral nutritional supplements used for persons who require supplemental or sole source nutrition to meet nutritional needs due to special dietary needs directly related to cancer, chronic kidney disease, diabetes, malnutrition, or failure to thrive, as those terms are defined as by the International Classification of Diseases, Tenth Revision, or other medical conditions as determined by the department.
(B)Packaging used to contain products regulated by the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.).
(C)Plastic packaging containers that are used to contain and ship products that are classified for transportation as dangerous goods or hazardous materials under Part 178 (commencing with Section 178.0) of Subchapter C of Chapter I of Subtitle B of Title 49 of the Code of Federal Regulations.
(D)Packaging used to contain hazardous or flammable products regulated by the 2012 federal Occupational Safety and Health Administration Hazard Communications Standard (29 C.F.R. 1910.1200).
(E)Beverage containers subject to the California Beverage Container Recycling and Litter Reduction Act (Division 12.1 (commencing with Section 14500)).
(F)Packaging used for the long-term protection or storage of a product that has a lifespan of not less than five years, as determined by the department.
(G)Packaging associated with products covered under the architectural paint recovery program established pursuant to Chapter 5 (commencing with Section 48700) of Part 7.
(H)(i)Covered material for which the producer demonstrates to the department that the covered material meets all of the following criteria:
(I)The covered material is not collected through a residential recycling collection service.
(II)The covered material does not undergo separation from other materials at a commingled recycling processing facility.
(III)The covered material is recycled at a responsible end market.
(IV)The material has demonstrated a recycling rate of 65 percent for three consecutive years before January 1, 2027, and on and after that date demonstrates a recycling rate at or over 70 percent annually, as demonstrated to the department every two years.
(ii)If only a portion of the covered material sold in or into the state by a producer meets the criteria of clause (i), only the portion of the covered material that meets the criteria of clause (i) is exempt from this chapter and any portion that does not meet the criteria is a covered material for purposes of this chapter.
(f)Covered material category means a category that includes covered material of a similar type and form, as determined by the department.
(g)Curbside collection means a program that includes the collection of material, including, but not limited to, covered materials, by a local jurisdiction or recycling or composting service provider under contract with a local jurisdiction.
(h)Department means the Department of Resources Recycling and Recovery.
(i)Disadvantaged community means an area identified by the California Environmental Protection Agency pursuant to Section 39711 of the Health and Safety Code or an area identified as a disadvantaged unincorporated community pursuant to Section 65302.10 of the Government Code.
(j)Eliminate or elimination, with respect to source reduction, means the removal of a plastic component from a covered material without replacing that component with a nonplastic component.
(k)Expanded polystyrene means blown polystyrene and expanded or extruded foams that are thermoplastic petrochemical materials using a styrene monomer and processed by any technique or techniques, including, but not limited to, fusion of polymer spheres (expandable bead polystyrene), injection molding, foam molding, and extrusion-blow molding (extruded foam polystyrene).
(l)Local jurisdiction means a city, county, city and county, regional agency formed pursuant to Chapter 5 (commencing with Section 6500) of Division 7 of Title 1 of the Government Code or Article 3 (commencing with Section 40970) of Chapter 1 of Part 2, or special district that provides solid waste collection services.
(m)Lightweighting means reducing the weight or amount of material used in a specific packaging or food serviceware without functionally changing the packaging or food serviceware. Lightweighting does not include changes that result in a recyclable or compostable covered material becoming nonrecyclable or noncompostable or less likely to be recycled or composted.
(n)Low-income community means an area with household incomes at or below 80 percent of the statewide median income or with household incomes at or below the threshold designated as low income by the Department of Housing and Community Developments list of state income limits adopted pursuant to Section 50093 of the Health and Safety Code.
(o)Malus fee means a charge imposed by a PRO on a participant producer for a covered material due to the adverse environmental or public health impacts of the covered material.
(p)Materials recovery facility or MRF means a recycling facility that receives recyclable material, including, but not limited to, any covered material, for mechanical or manual sorting into specification-grade commodities for processing or for sale to a broker or end market.
(q)Needs assessment means a needs assessment prepared pursuant to Section 42067.
(r)Optimize or optimization means limiting the amount of covered material used in packaging by meeting product or packaging needs with minimal material. This includes, but is not limited to, eliminating unnecessary components, right-sizing, concentrating, and using bulk or large format packaging.
(s)Packaging means any separable and distinct material component used for the containment, protection, handling, delivery, or presentation of goods by the producer for the user or consumer, ranging from raw materials to processed goods. Packaging includes, but is not limited to, all of the following:
(1)Sales packaging or primary packaging intended to provide the user or consumer the individual serving or unit of the product and most closely containing the product, food, or beverage.
(2)Grouped packaging or secondary packaging intended to bundle, sell in bulk, brand, or display the product.
(3)Transport packaging or tertiary packaging intended to protect the product during transport.
(4)Packaging components and ancillary elements integrated into packaging, including ancillary elements directly hung onto or attached to a product and that perform a packaging function, except both of the following:
(A)An element of the packaging or food serviceware with a de minimis weight or volume, which is not an independent plastic component, as determined by the department.
(B)A component or element that is an integral part of the product, if all components or elements of the product are intended to be consumed or disposed of together.
(t)Plastic means a synthetic or semisynthetic material chemically synthesized by the polymerization of organic substances that can be shaped into various rigid and flexible forms, and includes coatings and adhesives. Plastic includes, without limitation, polyethylene terephthalate (PET), high density polyethylene (HDPE), polyvinyl chloride (PVC), low density polyethylene (LDPE), polypropylene (PP), polystyrene (PS), polylactic acid (PLA), and aliphatic biopolyesters, such as polyhydroxyalkanoate (PHA) and polyhydroxybutyrate (PHB). Plastic does not include natural rubber or naturally occurring polymers such as proteins or starches.
(u)Plastic component means any single piece of covered material made partially or entirely of plastic. A plastic component may constitute the entirety of the covered material or a separate or separable piece of the covered material.
(v)Processing means to sort, segregate, break or flake, and clean material to prepare it to meet the specification for sale to a responsible end market in which the recovery of materials and the disposal of contaminants is conducted in a way that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety.
(w)(1)Producer means a person who manufactures a product that uses covered material and who owns or is the licensee of the brand or trademark under which the product is used in a commercial enterprise, sold, offered for sale, or distributed in the state.
(2)If there is no person in the state who is the producer for purposes of paragraph (1), the producer of the covered material is the owner or, if the owner is not in the state, the exclusive licensee of a brand or trademark under which the covered product using the covered material is used in a commercial enterprise, sold, offered for sale, or distributed in the state. For purposes of this subdivision, a licensee is a person holding the exclusive right to use a trademark or brand in the state in connection with the manufacture, sale, or distribution of the product packaged in or made from the covered material.
(3)If there is no person in the state who is the producer for purposes of paragraph (1) or (2), the producer of the covered material is the person who sells, offers for sale, or distributes the product that uses the covered material in or into the state.
(4)Producer does not include a person who produces, harvests, and packages an agricultural commodity on the site where the agricultural commodity was grown or raised.
(5)For purposes of this chapter, the sale of covered materials shall be deemed to occur in the state if the covered materials are delivered to the purchaser in the state.
(x)Producer responsibility organization or PRO means an organization that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code of 1986 and is formed for the purpose of implementing a plan to meet the requirements of this chapter.
(y)Producer responsibility plan or plan, unless context requires otherwise, means the plan produced by a PRO, or by a producer that chooses to assume responsibility to comply with this chapter individually, and submitted to the advisory board and department pursuant to Section 42051.1.
(z)Rate of inbound contamination means the amount of nonrecyclable or noncompostable materials arriving at a materials recovery facility or other recycling or composting facility.
(aa)(1)Recycle or recycling means the process of collecting, sorting, cleansing, treating, and reconstituting materials that would otherwise ultimately be disposed of onto land or into water or the atmosphere, and returning them to, or maintaining them within, the economic mainstream in the form of recovered material for new, reused, or reconstituted products, including compost, that meet the quality standards necessary to be used in the marketplace.
(2)Recycle or recycling does not include any of the following:
(A)Combustion.
(B)Incineration.
(C)Energy generation.
(D)Fuel production, except for anaerobic digestion of source separated organic materials.
(E)Other forms of disposal.
(3)To be considered recycled, covered material shall be sent to a responsible end market.
(4)(A)The department may adopt regulations to define guidelines and verification requirements for the PRO and for any producers complying with this chapter pursuant to paragraph (2) of subdivision (b) of Section 42051, for covered material shipped out of state and exported to other countries for recycling, including processing requirements and contamination standards, or to otherwise implement this paragraph. The PRO or producer shall ensure and certify to the department that it has included any applicable guidelines and verification requirements in any contracts with entities involved in the processing or recycling of covered materials.
(B)For any mixture of plastic waste exported to another country, the PRO or producer shall certify to the department that the processes and recycling technologies used meet both of the following requirements, as determined by the department:
(i)The plastic waste is a mixture of plastic types consisting only of one or more of polyethylene, polypropylene, or polyethylene terephthalate, and the export is destined for separate recycling of each material.
(ii)The plastic waste export is not prohibited by an applicable law or treaty of the destination jurisdiction, and the import of the plastic waste into the destination jurisdiction will be conducted in accordance with all applicable laws and treaties of that destination jurisdiction.
(C)For any mixture of plastic waste exported to other states or countries, the PRO or producer shall certify to the department that the recycling technology used meets the requirements of this subdivision.
(D)In meeting the requirements of subparagraphs (B) and (C), the PRO or producer shall provide documentation necessary to verify this certification and shall make the certification under penalty of perjury.
(5)The departments regulations shall encourage recycling that minimizes generation of hazardous waste, generation of greenhouse gases, environmental impacts, environmental justice impacts, and public health impacts. The regulations shall include criteria to exclude plastic recycling technologies that produce significant amounts of hazardous waste.
(ab)Recycling rate means the percentage, overall and by category, of covered material sold, offered for sale, distributed, or imported in the state that is ultimately recycled. The recycling rate shall be calculated as the amount of covered material that is recycled in a given year divided by the total amount of covered material disposed of, as defined in subdivision (b) of Section 40192, and the amount of covered material recycled, unless and until the department adopts a new methodology for calculating the recycling rate by regulation.
(ac)Recycling service provider means a solid waste enterprise that provides solid waste handling services on behalf of a local jurisdiction.
(ad)(1)Responsible end market means an entity that uses recycled covered material for the manufacturing of products when the manufacturing, including the disposal of contaminates, is conducted in a way that benefits the environment and minimizes risks to public health and worker health and safety.
(2)Responsible end market does not include entities that process covered material in a manner that is prohibited under the definition of recycling pursuant to paragraph (2) of subdivision (aa).
(3)The PRO or producer shall ensure and certify to the department that it has included any applicable regulations and guidelines in any contracts with entities providing responsible end markets for covered materials.
(ae)(1)Retailer or wholesaler means the person or entity who sells covered material in the state to purchasers or offers to purchasers the covered material in the state through any means, including, but not limited to, any of the following:
(A)Remote offering, including sales outlets or catalogs.
(B)Electronically through the internet.
(C)Telephone.
(D)Mail.
(E)Direct sales.
(2)A person who sells covered material as a third-party seller using an online marketplace as described in paragraph (3) shall be considered the retailer or wholesaler for purposes of such transactions. The owner or operator of the online marketplace shall not be considered the retailer or wholesaler for such sales.
(3)For purposes of this subdivision, online marketplace means a consumer-directed, electronically accessed platform in which all of the following are true:
(A)The platform includes features that enable third-party sellers to sell consumer products directly to consumers in the state without the owner or operator of the platform involved in the transaction other than by providing order processing, payment, storage, shipping, or delivery services.
(B)Third-party sellers use the features described in subparagraph (A) to sell directly to consumers in the state, with title to the consumer product passing from the third-party sellers directly to consumers and not being held by the owner or operator of the online marketplace at any point during the transaction, including upon receipt of the order and throughout the order fulfillment process.
(C)Except as provided by subparagraph (E), the owner or operator of the platform does not directly or indirectly control the covered material used in packaging and shipping of a consumer product in this state.
(D)The person or entity operating the platform has a contractual or similar relationship with consumers governing their use of the platform to purchase consumer products.
(E)Third-party sellers agree, pursuant to the platforms terms and conditions or other enforceable agreement, that they will not use the platform to offer for sale, sell, or distribute into the state covered material that does not meet the requirements of this chapter.
(af)Reusable or refillable or reuse or refill, in regard to packaging or food serviceware, means either of the following:
(1)For packaging or food serviceware that is reused or refilled by a producer, it satisfies all of the following:
(A)Explicitly designed and marketed to be used multiple times for the same product, or for another purposeful packaging use in a supply chain.
(B)Designed for durability to function properly in its original condition for multiple uses.
(C)Supported by adequate infrastructure to ensure the packaging or food serviceware can be conveniently and safely reused or refilled for multiple cycles.
(D)Repeatedly recovered, inspected, and repaired, if necessary, and reissued into the supply chain for reuse or refill for multiple cycles.
(2)For packaging or food serviceware that is reused or refilled by a consumer, it satisfies all of the following:
(A)Explicitly designed and marketed to be used multiple times for the same product.
(B)Designed for durability to function properly in its original condition for multiple uses.
(C)Supported by adequate and convenient availability of and retail infrastructure for bulk or large format packaging that may be refilled to ensure the packaging or food serviceware can be conveniently and safely reused or refilled by the consumer multiple times.
(ag)Right-size or right-sizing means reducing the amount of material used to package an item by reducing unnecessary space or eliminating unnecessary components of the packaging.
(ah)Rural area has the same meaning as defined in Section 50101 of the Health and Safety Code.
(ai)Single use means conventionally disposed of after a single use or not sufficiently durable or washable to be, or not intended to be, reusable or refillable.
(aj)Source reduction means the reduction in the amount of covered material created by a producer relative to a baseline established pursuant to subdivision (b) of Section 42057. Methods of source reduction include, but are not limited to, shifting covered material to reusable or refillable packaging or a reusable product or eliminating unnecessary packaging. Source reduction does not include either of the following:
(1)Replacing a recyclable or compostable covered material with a nonrecyclable or noncompostable covered material or a covered material that is less likely to be recycled or composted.
(2)Switching from virgin covered material to postconsumer recycled content.
(ak)Source reduction plan means the plan prepared as part of the PRO plan in accordance with Section 42057.
(al)Unexpended funds means moneys in a PROs accounts that the organization is not already obligated to pay pursuant to a contract, claim, or similar mechanism. Unexpended funds excludes the California circular economy administrative fees.
SEC. 1.5.Section 42041 of the Public Resources Code is amended to read:42041.For purposes of this chapter, the following definitions apply:
(a)Advisory board means the producer responsibility advisory board established pursuant to Section 42070.
(b)Bulk or large format packaging means packaging for a large amount of a product in a large packaging, thereby offsetting the need for multiple smaller packaging units for the same amount of product.
(c)California circular economy administrative fee means the fee imposed by the department pursuant to Section 42053.5.
(d)Concentrate or concentration means reducing the amount of packaging needed for a product by reformulating the product to allow for smaller quantities of the product to be used for the same purpose as the previous, larger quantity.
(e)(1)Covered material means both of the following:
(A)Single-use packaging that is routinely recycled, disposed of, or discarded after its contents have been used or unpackaged, and typically not refilled or otherwise reused by the producer.
(B)Plastic single-use food service ware, serviceware, including, but not limited to, plastic-coated paper or plastic-coated paperboard, paper or paperboard with plastic intentionally added during the manufacturing process, and multilayer flexible material. For purposes of this subparagraph, single-use food service ware serviceware includes both of the following:
(i)Trays, plates, bowls, clamshells, lids, cups, utensils, stirrers, hinged or lidded containers, and straws.
(ii)Wraps or wrappers and bags sold to used in the packaging of food offered for sale or provided to customers by food service establishments.
(2)Notwithstanding paragraph (1), covered material does not include any of the following:
(A)Packaging used for any of the following products:
(i)Medical products and products defined as devices or prescription drugs, as specified in the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Secs. 321(g), 321(h), and 353(b)(1)).
(ii)Drugs that are used for animal medicines, including, but not limited to, parasiticide products for animals.
(iii)Products intended for animals that are regulated as animal drugs, biologics, parasiticides, medical devices, or diagnostics used to treat, or administered to, animals under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 301 et seq.), the federal Virus-Serum-Toxin Act (21 U.S.C. Sec. 151 et seq.), or the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.).
(iv)Infant formula, as defined in Section 321(z) of Title 21 of the United States Code.
(v)Medical food, as defined in Section 360ee(b)(3) of Title 21 of the United States Code.
(vi)Fortified oral nutritional supplements used for persons who require supplemental or sole source nutrition to meet nutritional needs due to special dietary needs directly related to cancer, chronic kidney disease, diabetes, malnutrition, or failure to thrive, as those terms are defined as by the International Classification of Diseases, Tenth Revision, or other medical conditions as determined by the department.
(B)Packaging used to contain products regulated by the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.).
(C)Plastic packaging containers that are used to contain and ship products that are classified for transportation as dangerous goods or hazardous materials under Part 178 (commencing with Section 178.0) of Subchapter C of Chapter I of Subtitle B of Title 49 of the Code of Federal Regulations.
(D)Packaging used to contain hazardous or flammable products regulated classified by the 2012 federal Occupational Safety and Health Administration Hazard Communications Communication Standard (29 C.F.R. 1910.1200).
(E)Beverage containers subject to the California Beverage Container Recycling and Litter Reduction Act (Division 12.1 (commencing with Section 14500)).
(F)Packaging used for the long-term protection or storage of a product that has a lifespan of not less than five years, as determined by the department.
(G)Packaging associated with products covered under the architectural paint recovery program established pursuant to Chapter 5 (commencing with Section 48700) of Part 7.
(H)(i)Covered material for which the producer demonstrates to the department that the covered material meets all of the following criteria:
(I)The covered material is not collected through a residential recycling collection service.
(II)The covered material does not undergo separation from other materials at a commingled recycling processing facility.
(III)The covered material is recycled at a responsible end market.
(IV)The material has demonstrated Until January 1, 2027, the producer annually demonstrates to the department that the material has had a recycling rate of 65 percent for three consecutive years prior to years. On and after January 1, 2027, and on and after that date demonstrates the producer demonstrates to the department that the material has had a recycling rate at or over 70 percent annually, as demonstrated to the department every two years.
(ii)If only a portion of the covered material sold in or into the state by a producer meets the criteria of clause (i), only the portion of the covered material that meets the criteria of clause (i) is exempt from this chapter and any portion that does not meet the criteria is a covered material for purposes of this chapter.
(f)Covered material category means a category that includes covered material of a similar type and form, as determined by the department.
(g)Curbside collection means a program that includes the collection of material, including, but not limited to, covered materials, by a local jurisdiction or recycling or composting service provider under contract with a local jurisdiction.
(h)Department means the Department of Resources Recycling and Recovery.
(i)Disadvantaged community means an area identified by the California Environmental Protection Agency pursuant to Section 39711 of the Health and Safety Code or an area identified as a disadvantaged unincorporated community pursuant to Section 65302.10 of the Government Code.
(j)Eliminate or elimination, with respect to source reduction, means the removal of a plastic component from a covered material without replacing that component with a nonplastic component.
(k)Expanded polystyrene means blown polystyrene and expanded or extruded foams that are thermoplastic petrochemical materials utilizing using a styrene monomer and processed by any technique or techniques, including, but not limited to, fusion of polymer spheres (expandable bead polystyrene), injection molding, foam molding, and extrusion-blow molding (extruded foam polystyrene).
(l)Local jurisdiction means a city, county, city and county, regional agency formed pursuant to Chapter 5 (commencing with Section 6500) of Division 7 of Title 1 of the Government Code or Article 3 (commencing with Section 40970) of Chapter 1 of Part 2, or special district that provides solid waste collection services.(m)(l)Lightweighting means reducing the weight or amount of material used in a specific packaging or food service ware serviceware without functionally changing the packaging or food service ware. serviceware. Lightweighting does not include changes that result in a recyclable or compostable covered material becoming nonrecyclable or noncompostable or less likely to be recycled or composted.
(m)Local jurisdiction means a city, county, city and county, regional agency formed pursuant to Chapter 5 (commencing with Section 6500) of Division 7 of Title 1 of the Government Code or Article 3 (commencing with Section 40970) of Chapter 1 of Part 2, or special district that provides solid waste collection services.
(n)Low-income community means an area with household incomes at or below 80 percent of the statewide median income or with household incomes at or below the threshold designated as low income by the Department of Housing and Community Developments list of state income limits adopted pursuant to Section 50093 of the Health and Safety Code.
(o)Malus fee means a charge imposed by a PRO on a participant producer for a covered material due to the adverse environmental or public health impacts of the covered material.
(p)Materials recovery facility or MRF means a recycling facility that receives recyclable material, including, but not limited to, any covered material, for mechanical or manual sorting into specification-grade commodities for processing or for sale to a broker or end market.
(q)Needs assessment means a needs assessment prepared pursuant to Section 42067.
(r)Optimize or optimization means limiting the amount of covered material used in packaging by meeting product or packaging needs with minimal material. This includes, but is not limited to, eliminating unnecessary components, right-sizing, concentrating, and using bulk or large format packaging.
(s)Packaging means any separable and distinct material component used for the containment, protection, handling, delivery, or presentation of goods by the producer for the user or consumer, ranging from raw materials to processed goods. Packaging includes, but is not limited to, all of the following:
(1)Sales packaging or primary packaging intended to provide the user or consumer the individual serving or unit of the product and most closely containing the product, food, or beverage.
(2)Grouped packaging or secondary packaging intended to bundle, sell in bulk, brand, or display the product.
(3)Transport packaging or tertiary packaging intended to protect the product during transport.
(4)Packaging components and ancillary elements integrated into packaging, including ancillary elements directly hung onto or attached to a product and that perform a packaging function, except both of the following:
(A)An element of the packaging or food service ware serviceware with a de minimis weight or volume, which is not an independent plastic component, as determined by the department.
(B)A component or element that is an integral part of the product, if all components or elements of the product are intended to be consumed or disposed of together.
(t)Plastic means a synthetic or semisynthetic material chemically synthesized by the polymerization of organic substances that can be shaped into various rigid and flexible forms, and includes coatings and adhesives. Plastic includes, without limitation, polyethylene terephthalate (PET), high density polyethylene (HDPE), polyvinyl chloride (PVC), low density polyethylene (LDPE), polypropylene (PP), polystyrene (PS), polylactic acid (PLA), and aliphatic biopolyesters, such as polyhydroxyalkanoate (PHA) and polyhydroxybutyrate (PHB). Plastic does not include natural rubber or naturally occurring polymers such as proteins or starches.
(u)Plastic component means any single piece of covered material made partially or entirely of plastic. A plastic component may constitute the entirety of the covered material or a separate or separable piece of the covered material.
(v)Processing means to sort, segregate, break or flake, and clean material to prepare it to meet the specification for sale to a responsible end market. market in which the recovery of materials and the disposal of contaminants is conducted in a way that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety.
(w)(1)Producer means a person who manufactures a product that uses covered material and who owns or is the licensee of the brand or trademark under which the product is used in a commercial enterprise, sold, offered for sale, or distributed in the state.
(2)If there is no person in the state who is the producer for purposes of paragraph (1), the producer of the covered material is the owner or, if the owner is not in the state, the exclusive licensee of a brand or trademark under which the covered product using the covered material is used in a commercial enterprise, sold, offered for sale, or distributed in the state. For purposes of this subdivision, a licensee is a person holding the exclusive right to use a trademark or brand in the state in connection with the manufacture, sale, or distribution of the product packaged in or made from the covered material.
(3)If there is no person in the state who is the producer for purposes of paragraph (1) or (2), the producer of the covered material is the person who sells, offers for sale, or distributes the product that uses the covered material in or into the state.
(4)Producer does not include a person who produces, harvests, and packages an agricultural commodity on the site where the agricultural commodity was grown or raised.
(5)For purposes of this chapter, the sale of covered materials shall be deemed to occur in the state if the covered materials are delivered to the purchaser in the state.
(x)Producer responsibility organization or PRO means an organization that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code of 1986 and is formed for the purpose of implementing a plan to meet the requirements of this chapter.
(y)Producer responsibility plan or plan, unless context requires otherwise, means the plan produced by a PRO, or by a producer that chooses to assume responsibility to comply with this chapter individually, and submitted to the advisory board and department pursuant to Section 42051.1.
(z)Rate of inbound contamination means the amount of nonrecyclable or noncompostable materials arriving at a materials recovery facility or other recycling or composting facility.
(aa)(1)Recycle or recycling means the process of collecting, sorting, cleansing, treating, and reconstituting materials that would otherwise ultimately be disposed of onto land or into water or the atmosphere, and returning them to, or maintaining them within, the economic mainstream in the form of recovered material for new, reused, or reconstituted products, including compost, that meet the quality standards necessary to be used in the marketplace.
(2)Recycle or recycling does not include any of the following:
(A)Combustion.
(B)Incineration.
(C)Energy generation.
(D)Fuel production, except for anaerobic digestion of source separated organic materials.
(E)Other forms of disposal.
(3)To be considered recycled, covered material shall be sent to a responsible end market.
(4)(A)The department may adopt regulations to define guidelines and verification requirements for the PRO and for any producers complying with this chapter pursuant to paragraph (2) of subdivision (b) of Section 42051, for covered material shipped out of state and exported to other countries for recycling, including processing requirements, requirements and contamination standards, or to otherwise implement this paragraph. The PRO or producer shall ensure and certify to the department that it has included any applicable guidelines and verification requirements in any contracts with entities involved in the processing or recycling of covered materials.
(B)For any mixture of plastic waste exported to another country, the PRO or producer shall certify to the department that the processes and recycling technologies used meet both of the following requirements, as determined by the department:
(i)The plastic waste is a mixture of plastic types consisting only of one or more of polyethylene, polypropylene, or polyethylene terephthalate, and the export is destined for separate recycling of each material.
(ii)The plastic waste export is not prohibited by an applicable law or treaty of the destination jurisdiction, and the import of the plastic waste into the destination jurisdiction will be conducted in accordance with all applicable laws and treaties of that destination jurisdiction.
(C)For any mixture of plastic waste exported to other states or countries, the PRO or producer shall certify to the department that the recycling technology used meets the requirements of this subdivision.
(D)In meeting the requirements of subparagraphs (B) and (C), the PRO or producer shall provide documentation necessary to verify this certification and shall make the certification under penalty of perjury.
(5)The departments regulations shall encourage recycling that minimizes generation of hazardous waste, generation of greenhouse gases, environmental impacts, environmental justice impacts, and public health impacts. The regulations shall include criteria to exclude plastic recycling technologies that produce significant amounts of hazardous waste.
(ab)Recycling rate means the percentage, overall and by category, of covered material sold, offered for sale, distributed, or imported in the state that is ultimately recycled. The recycling rate shall be calculated as the amount of covered material that is recycled in a given year divided by the total amount of covered material disposed of, as defined in subdivision (b) of Section 40192, and the amount of covered material recycled, unless and until the department adopts a new methodology for calculating the recycling rate by regulation.
(ac)Recycling service provider means a solid waste enterprise that provides solid waste handling services on behalf of a local jurisdiction.
(ad)(1)Responsible end market means a materials market in which the recycling and recovery of materials or the disposal of contaminants an entity that uses recycled covered material for the manufacturing of products when the manufacturing, including the disposal of contaminates, is conducted in a way that benefits the environment and minimizes risks to public health and worker health and safety. The department may adopt regulations to identify responsible end markets and to establish criteria regarding benefits to the environment and minimizes risks to public health and worker health and safety.
(2)Responsible end market does not include entities that process covered material in a manner that is prohibited under the definition of recycling pursuant to paragraph (2) of subdivision (aa).
(3)The PRO or producer shall ensure and certify to the department that it has included any applicable regulations and guidelines in any contracts with entities providing responsible end markets for covered materials.
(ae)(1)Retailer or wholesaler means the person or entity who sells covered material in the state to purchasers or offers to purchasers the covered material in the state through any means, including, but not limited to, any of the following:
(A)Remote offering, including sales outlets or catalogs.
(B)Electronically through the internet.
(C)Telephone.
(D)Mail.
(E)Direct sales.
(2)A person who sells covered material as a third-party seller using an online marketplace as described in paragraph (3) shall be considered the retailer or wholesaler for purposes of such transactions. The owner or operator of the online marketplace shall not be considered the retailer or wholesaler for such sales.
(3)For purposes of this subdivision, online marketplace means a consumer-directed, electronically accessed platform in which all of the following are true:
(A)The platform includes features that enable third-party sellers to sell consumer products directly to consumers in the state without the owner or operator of the platform involved in the transaction other than by providing order processing, payment, storage, shipping, or delivery services.
(B)Third-party sellers use the features described in subparagraph (A) to sell directly to consumers in the state, with title to the consumer product passing from the third-party sellers directly to consumers and not being held by the owner or operator of the online marketplace at any point during the transaction, including upon receipt of the order and throughout the order fulfillment process.
(C)Except as provided by subparagraph (E), the owner or operator of the platform does not directly or indirectly control the covered material used in packaging and shipping of a consumer product in this state.
(D)The person or entity operating the platform has a contractual or similar relationship with consumers governing their use of the platform to purchase consumer products.
(E)Third-party sellers agree, pursuant to the platforms terms and conditions or other enforceable agreement, that they will not use the platform to offer for sale, sell, or distribute into the state covered material that does not meet the requirements of this chapter.
(af)Reusable or refillable or reuse or refill, in regard to packaging or food service ware, serviceware, means either of the following:
(1)For packaging or food service ware serviceware that is reused or refilled by a producer, it satisfies all of the following:
(A)Explicitly designed and marketed to be utilized used multiple times for the same product, or for another purposeful packaging use in a supply chain.
(B)Designed for durability to function properly in its original condition for multiple uses.
(C)Supported by adequate infrastructure to ensure the packaging or food service ware serviceware can be conveniently and safely reused or refilled for multiple cycles.
(D)Repeatedly recovered, inspected, and repaired, if necessary, and reissued into the supply chain for reuse or refill for multiple cycles.
(2)For packaging or food service ware serviceware that is reused or refilled by a consumer, it satisfies all of the following:
(A)Explicitly designed and marketed to be utilized used multiple times for the same product.
(B)Designed for durability to function properly in its original condition for multiple uses.
(C)Supported by adequate and convenient availability of and retail infrastructure for bulk or large format packaging that may be refilled to ensure the packaging or food service ware serviceware can be conveniently and safely reused or refilled by the consumer multiple times.
(ag)Right-size or right-sizing means reducing the amount of material used to package an item by reducing unnecessary space or eliminating unnecessary components of the packaging.
(ah)Rural area has the same meaning as defined in Section 50101 of the Health and Safety Code.
(ai)Single use means conventionally disposed of after a single use or not sufficiently durable or washable to be, or not intended to be, reusable or refillable.
(aj)Source reduction means the reduction in the amount of covered material created by a producer relative to a baseline established pursuant to subdivision (b) of Section 42057. Methods of source reduction include, but are not limited to, shifting covered material to reusable or refillable packaging or a reusable product or eliminating unnecessary packaging. Source reduction does not include either of the following:
(1)Replacing a recyclable or compostable covered material with a nonrecyclable or noncompostable covered material or a covered material that is less likely to be recycled or composted.
(2)Switching from virgin covered material to postconsumer recycled content.
(ak)Source reduction plan means the plan prepared as part of the PRO plan in accordance with Section 42057.
(al)Unexpended funds means moneys in a PROs accounts that the organization is not already obligated to pay pursuant to a contract, claim, or similar mechanism. Unexpended funds excludes the California circular economy administrative fees.
SEC. 2.Section 42060 of the Public Resources Code is amended to read:42060.(a)By January 1, 2025, the department shall adopt regulations necessary to implement and enforce this chapter and to ensure that the requirements of this chapter and in particular the requirements established in Section 42050 and the policy goal established in Section 41780.01 as it relates to covered material are met. The regulations shall include, but not be limited to, all of the following:
(1)Any regulations necessary to ensure the PRO fully funds plan implementation, including fully funding the budget. This shall include the costs incurred by a local jurisdiction or a local jurisdictions recycling service providers to implement this chapter, including, but not limited to, the cost of consumer education and of collection, including the cost of containers where relevant, as well as the processing, storage, and transportation of covered materials. Costs may vary based on population density or other relevant factors and shall allow local jurisdictions to protect ratepayers from increased costs associated with the processing and marketing of covered material.
(2)(A)Establish a mandatory process for producers, retailers, and wholesalers, or a PRO operating on behalf of a producer, retailer, or wholesaler, to register with and report to the department.
(B)The process shall include establishing appropriate timelines to begin regular reporting following the adoption of the regulations. The department shall consider, along with any other factors the department deems appropriate, the amount of information being reported in developing the timelines.
(C)(i)Data requests by the department shall be consistent with the covered material categories established and posted on the departments internet website pursuant to subdivision (a) of Section 42061.
(ii)To the maximum extent feasible, the department shall seek to use records and information that the local jurisdiction, producer, retailer, wholesaler, or PRO already maintains, in order to minimize the burden imposed by the reporting and recordkeeping requirements while still enabling the department to determine compliance with this chapter.
(D)The department shall, to the extent feasible, make the reporting consistent with other recognized third-party reporting systems used by producers or other packaging extended producer responsibility programs.
(E)Market-sensitive trade secret data received by the department pursuant to this chapter shall be held confidentially by the department as required by Section 40062 and any implementing regulations, provided that the furnisher of the data complies with the requirements set forth in subdivision (b) of Section 40062 and any implementing regulations for identifying the information claimed to be a trade secret.
(F)The department shall create an online registration form to facilitate submitting reports pursuant to this subdivision. To the extent permissible under applicable law, the department may contract with an independent third-party online reporting system with recognized standards for waste characterization, source reduction, and recycling.
(3)(A)The department shall establish a process to identify covered material that, while determined to be single use for purposes of this chapter, presents unique challenges in complying with this chapter. The department may exempt covered material identified pursuant to this subparagraph from this chapter.
(B)For any covered material identified as presenting unique challenges and exempted from this chapter under subparagraph (A), the department may at any point develop a plan to phase the covered material into the requirements of this chapter.
(4)The department shall establish a process to identify covered material that cannot comply with this chapter for health and safety reasons, or because it is unsafe to recycle. The department may exempt that covered material from this chapter.
(5)The department shall establish a process to exempt from the requirements of this chapter, except for the requirements of subdivision (b) of Section 42050, small producers, small retailers, and small wholesalers based on size, revenue, number of retail locations, and market share, as follows:
(A)Subject to subparagraph (B), the department shall exempt producers, retailers, or wholesalers that, in the most recent calendar year, had gross sales of less than one million dollars ($1,000,000) in the state.
(B)If the department determines that exempting a particular small producer, small retailer, or small wholesaler pursuant to subparagraph (A) would hinder the ability of a type of covered material or covered material category from complying with the requirements of this chapter, the department may determine that the particular small producer, small retailer, or small wholesaler will not be exempted from the requirements of this chapter.
(6)(A)The department shall include mechanisms necessary to reduce the amount of covered material entering the environment, in accordance with the regulations adopted pursuant to this section.
(B)The department may consider reductions of covered material achieved by a producer before the effective date of the regulations toward a producers compliance with this chapter if the producer can demonstrate to the satisfaction of the department that the producer reduced the covered material in a manner consistent with this chapter and actions taken to comply with Chapter 5.5 (commencing with Section 42300).
(C)In calculating the reductions necessary to achieve the requirements adopted pursuant to subdivision (a), the department shall consider source reduction achieved pursuant to Section 42057.
(7)The department shall establish a process to require coordination between a PRO and producer that is not a participant of the PROs approved plan and between multiple PROs as necessary. This includes determining how much each PRO shall charge producers of plastic covered material in order to prorate the funding as necessary to raise the revenue required by Section 42064.
(8)The department shall establish a methodology and process to calculate, to the extent feasible, an annual recycling rate defined in subdivision (ab) of Section 42041.
(b)The department may adopt regulations to establish standards for the PRO regarding responsible end markets for covered material and to establish criteria that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety.
(c)(1)The department shall ensure that any regulations adopted pursuant to this chapter consider guidelines and do not conflict with regulations issued by the United States Food and Drug Administration and the United States Department of Agriculture and consider requirements imposed by other California state agencies.
(2)Neither the department nor the PRO shall impose any requirement, including, but not limited to, a recycled content requirement, in direct conflict with a federal law or regulation, including, but not limited to, laws or regulations covering tamper-evident packaging pursuant to Section 211.132 of Title 21 of the Code of Federal Regulations, laws or regulations covering child-resistant packaging pursuant to Part 1700 (commencing with Section 1700.1) of Subchapter E of Chapter II of Title 16 of the Code of Federal Regulations, regulations, rules, or guidelines issued by the United States Department of Agriculture or the United States Food and Drug Administration relevant to packaging agricultural commodities, requirements for microbial contamination, structural integrity, or safety of packaging under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 301 et seq.), 21 U.S.C. Sec. 2101 et seq., the federal FDA Food Safety Modernization Act (21 U.S.C. Sec. 2201 et seq.), the Federal Poultry Products Inspection Act (21 U.S.C. Sec. 451 et seq.), the Federal Meat Inspection Act (21 U.S.C. Sec. 601 et seq.), or the federal Egg Products Inspection Act (21 U.S.C. Sec. 1031 et seq.). Neither the department nor a PRO shall impose a postconsumer recycled content requirement for covered material for fresh produce.
(d)In developing the regulations, the department shall consider relevant information on reduction programs and approaches in other states, localities, and nations, including, but not limited to, the European Union, India, Costa Rica, China, Chile, and Canada, and international standards, including, but not limited to, ISO 18602.
(e)In adopting regulations pursuant to this section, the department shall ensure the regulations, and activities conducted in accordance with the regulations, avoid or minimize disproportionate impacts to disadvantaged or low-income communities or rural areas.
SEC. 3.Section 42070 of the Public Resources Code is amended to read:42070.(a)In implementing this chapter, the department shall establish a producer responsibility advisory board for the purpose of identifying barriers and solutions to creating a circular economy consistent with this chapter and advising the department, producers, and producer responsibility organizations in the implementation of this chapter. The advisory board shall be composed of 13 voting and 3 nonvoting members as provided in the following categories, who shall be appointed by the director:
(1)One representative nominated by a statewide city association.
(2)One representative nominated by a statewide rural county association.
(3)One representative from an environmental protection organization.
(4)One representative from an ocean advocacy organization.
(5)One representative from an environmental justice organization.
(6)One representative from a disadvantaged or low-income community or rural area.
(7)One representative of a materials recovery facility located within the State of California.
(8)One representative of a recycling service provider, or a representative of an association of recycling service providers.
(9)One representative from the composting industry operating in the State of California.
(10)A representative of each of four manufacturers of covered materials of different material types using postconsumer recycled content, one of which produces third-party certified compostable covered material. These board members shall not be a board member of a PRO.
(11)One representative nominated by a statewide association representing the retail sector. This board member shall be a nonvoting member.
(12)One representative nominated by a statewide association representing the grocery sector. This board member shall be a nonvoting member.
(13)One representative of a producer responsibility organization. This board member shall be a nonvoting member.
(b)The director shall appoint all members to the advisory board on or before July 1, 2023. The director shall appoint the members for staggered three-year terms, and may reappoint a member for additional terms. At its first meeting, the advisory board shall elect a chair who will serve as chair for the calendar year, and who may be reelected as chair.
(c)The advisory board shall meet at least once per year by the call of the chair or by request of a majority of the voting members. The department shall provide administrative support to the advisory board.
(d)The advisory board meetings shall be open to the public and are subject to the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code).
(e)(1)The advisory board shall provide the PRO and the department, and a third party conducting or updating a needs assessment if applicable, with initial recommendations regarding all of the following:
(A)Key barriers and possible solutions to advance the objectives of increasing recovery of covered materials and decreasing the leakage of plastic into the environment no later than one year after the advisory boards initial meeting. This shall include key barriers and possible solutions related to available and viable responsible end markets and market development for covered materials.
(B)Key barriers and possible solutions to advance the objectives of reducing the production of virgin material for covered material and reducing the landfilling of covered material.
(C)Key barriers and possible pathways toward reusable packaging and products and refillable systems.
(D)Key barriers and other considerations needed for covered material to meet the requirements of this chapter.
(E)How a PRO will cover the costs incurred by local jurisdictions and local jurisdictions recycling service providers associated with implementing this chapter and managing the material covered in a plan.
(2)The department shall consider the recommendations provided under paragraph (1) as it evaluates which specific actions may be appropriate to advance the objectives of this chapter.
(f)The advisory board may take any of the following actions through written recommendations as the advisory board deems appropriate:
(1)Advise the department, producers, or PROs on technical matters in support of the goals of this chapter to create a circular economy and reduce covered material pollution.
(2)Advise the department in the adoption of the regulations required by this chapter.
(3)Advise the department, producers, or PROs on any other pertinent matters in implementing this chapter, as determined by the advisory board or department.
(g)Pursuant to Section 42067, the advisory board shall review any needs assessment or revised needs assessment submitted to it within 90 calendar days of receipt of the assessment.
(h)Within 60 calendar days of receiving a plan submitted pursuant to subdivision (a) of Section 42051.2, the advisory board shall review the plan and offer written comments, which may include suggested modifications to the plan.
(i)The advisory board shall submit written recommendations to the department only if a majority of the advisory boards voting members endorse the recommendation. One or more advisory board members who do not endorse the recommendation may submit a separate written recommendation to the department reflecting the minority opinion or opinions.
(j)(1)If an affected entity asserts that specific actions taken by the PRO, a producer, or an entity under contract with the PRO are not consistent with paragraph (3) or (4) of subdivision (c) of, or paragraph (2) of subdivision (i) of, Section 42051.1 and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements, the affected entity may bring the concern and evidence supporting this assertion to the advisory board for discussion and ask the advisory board to conduct a preliminary evaluation of the information. If the evaluation demonstrates that specific actions are disrupting or otherwise adversely affecting existing operations, the advisory board shall offer a recommendation for resolution within 90 days of submission of the request for a preliminary evaluation.
(2)After the advisory board offers its recommendation pursuant to paragraph (1), either party may initiate nonbinding arbitration by a neutral arbitrator with the consent of all parties, consistent with procedures set forth in Title 9 (commencing with Section 1280) of Part 3 of the Code of Civil Procedure, and without prejudice to seeking judicial relief, to determine whether specific actions taken by the PRO, a producer, or an entity under contract with the PRO are not consistent with paragraph (3) or (4) of subdivision (c) of, or paragraph (2) of subdivision (i) of, Section 42051.1 and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements. The arbitrator shall consider the information presented to the advisory board and any other information provided to the arbitrator by the parties.
(3)If the arbitrator determines pursuant to paragraph (2) that specific actions taken by the PRO, a producer, or an entity under contract with the PRO are not consistent with paragraph (3) or (4) of subdivision (c) of, or paragraph (2) of subdivision (i) of, Section 42051.1 and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements, the arbitrator may propose actions, to the extent feasible, to remedy the disruption or adverse effect, including, but not limited to, proposing a revision to the producer responsibility plan causing the disruption or adverse effect. The arbitrator shall transmit the proposed decision to the department and to the advisory board.
(4)The department shall review the arbitrators proposed decision within 60 days of receipt and shall determine whether or not the arbitrators proposed decision conflicts with or impedes the requirements, targets, and goals of this chapter.
(5)If the arbitrator proposes a revision to an approved producer responsibility plan, the department shall publicly notice the proposed plan revision on its internet website and shall accept comments from the advisory board and the public about the proposed revision. If the department determines, after reviewing the proposed plan revision and considering public comment, that the proposed plan revision is consistent with this chapter and associated regulations, does not adversely impact other organizations impacted by the proposed plan revision, and does not adversely affect the PROs or producers ability to comply with this chapter and associated regulations, it may approve the proposed plan revision. If the department determines, after reviewing the proposed plan revision and considering public comment, that the proposed plan revision is not consistent with the requirements of this chapter, associated regulations, or the PROs or producers ability to comply with this chapter or associated regulations, it may reject the proposed plan revision.
(6)Within 60 days after the arbitrator delivers the proposed decision to the department and the advisory board, any party, including, but not limited to, the department, the advisory board, local governments, nongovernmental organizations, other producers, and other entities under contract with a PRO or producer, may request that the department conduct a de novo adjudicative proceeding.
(7)If no action is taken by the department or other party within 60 days of the arbitrators proposed decision being submitted to the department and the advisory committee, the proposed decision shall then be deemed final and binding. final.
(8) The department shall include any actions taken pursuant to this subdivision in the subsequent report submitted to the Legislature pursuant to subdivision (a) of Section 42065.
(9)(A)An approved producer responsibility plan shall remain in effect and be implemented during an action taken pursuant to this subdivision.
(B)Initiation of an action pursuant to this subdivision shall not delay the approval of a proposed plan or plan amendment.
SEC. 4.Section 1.5 of this bill incorporates amendments to Section 42041 of the Public Resources Code proposed by both this bill and Assembly Bill 1526. That section shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2024, (2) each bill amends Section 42041 of the Public Resources Code, and (3) this bill is enacted after Assembly Bill 1526, in which case Section 1 of this bill shall not become operative.
For purposes of this chapter, the following definitions apply:
(a)Advisory board means the producer responsibility advisory board established pursuant to Section 42070.
(b)Bulk or large format packaging means packaging for a large amount of a product in a large packaging, thereby offsetting the need for multiple smaller packaging units for the same amount of product.
(c)California circular economy administrative fee means the fee imposed by the department pursuant to Section 42053.5.
(d)Concentrate or concentration means reducing the amount of packaging needed for a product by reformulating the product to allow for smaller quantities of the product to be used for the same purpose as the previous, larger quantity.
(e)(1)Covered material means both of the following:
(A)Single-use packaging that is routinely recycled, disposed of, or discarded after its contents have been used or unpackaged, and typically not refilled or otherwise reused by the producer.
(B)Plastic single-use food serviceware, including, but not limited to, plastic-coated paper or plastic-coated paperboard, paper or paperboard with plastic intentionally added during the manufacturing process, and multilayer flexible material. For purposes of this subparagraph, single-use food serviceware includes both of the following:
(i)Trays, plates, bowls, clamshells, lids, cups, utensils, stirrers, hinged or lidded containers, and straws.
(ii)Wraps or wrappers and bags sold to food service establishments.
(2)Notwithstanding paragraph (1), covered material does not include any of the following:
(A)Packaging used for any of the following products:
(i)Medical products and products defined as devices or prescription drugs, as specified in the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Secs. 321(g), 321(h), and 353(b)(1)).
(ii)Drugs that are used for animal medicines, including, but not limited to, parasiticide products for animals.
(iii)Products intended for animals that are regulated as animal drugs, biologics, parasiticides, medical devices, or diagnostics used to treat, or administered to, animals under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 301 et seq.), the federal Virus-Serum-Toxin Act (21 U.S.C. Sec. 151 et seq.), or the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.).
(iv)Infant formula, as defined in Section 321(z) of Title 21 of the United States Code.
(v)Medical food, as defined in Section 360ee(b)(3) of Title 21 of the United States Code.
(vi)Fortified oral nutritional supplements used for persons who require supplemental or sole source nutrition to meet nutritional needs due to special dietary needs directly related to cancer, chronic kidney disease, diabetes, malnutrition, or failure to thrive, as those terms are defined as by the International Classification of Diseases, Tenth Revision, or other medical conditions as determined by the department.
(B)Packaging used to contain products regulated by the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.).
(C)Plastic packaging containers that are used to contain and ship products that are classified for transportation as dangerous goods or hazardous materials under Part 178 (commencing with Section 178.0) of Subchapter C of Chapter I of Subtitle B of Title 49 of the Code of Federal Regulations.
(D)Packaging used to contain hazardous or flammable products regulated by the 2012 federal Occupational Safety and Health Administration Hazard Communications Standard (29 C.F.R. 1910.1200).
(E)Beverage containers subject to the California Beverage Container Recycling and Litter Reduction Act (Division 12.1 (commencing with Section 14500)).
(F)Packaging used for the long-term protection or storage of a product that has a lifespan of not less than five years, as determined by the department.
(G)Packaging associated with products covered under the architectural paint recovery program established pursuant to Chapter 5 (commencing with Section 48700) of Part 7.
(H)(i)Covered material for which the producer demonstrates to the department that the covered material meets all of the following criteria:
(I)The covered material is not collected through a residential recycling collection service.
(II)The covered material does not undergo separation from other materials at a commingled recycling processing facility.
(III)The covered material is recycled at a responsible end market.
(IV)The material has demonstrated a recycling rate of 65 percent for three consecutive years before January 1, 2027, and on and after that date demonstrates a recycling rate at or over 70 percent annually, as demonstrated to the department every two years.
(ii)If only a portion of the covered material sold in or into the state by a producer meets the criteria of clause (i), only the portion of the covered material that meets the criteria of clause (i) is exempt from this chapter and any portion that does not meet the criteria is a covered material for purposes of this chapter.
(f)Covered material category means a category that includes covered material of a similar type and form, as determined by the department.
(g)Curbside collection means a program that includes the collection of material, including, but not limited to, covered materials, by a local jurisdiction or recycling or composting service provider under contract with a local jurisdiction.
(h)Department means the Department of Resources Recycling and Recovery.
(i)Disadvantaged community means an area identified by the California Environmental Protection Agency pursuant to Section 39711 of the Health and Safety Code or an area identified as a disadvantaged unincorporated community pursuant to Section 65302.10 of the Government Code.
(j)Eliminate or elimination, with respect to source reduction, means the removal of a plastic component from a covered material without replacing that component with a nonplastic component.
(k)Expanded polystyrene means blown polystyrene and expanded or extruded foams that are thermoplastic petrochemical materials using a styrene monomer and processed by any technique or techniques, including, but not limited to, fusion of polymer spheres (expandable bead polystyrene), injection molding, foam molding, and extrusion-blow molding (extruded foam polystyrene).
(l)Local jurisdiction means a city, county, city and county, regional agency formed pursuant to Chapter 5 (commencing with Section 6500) of Division 7 of Title 1 of the Government Code or Article 3 (commencing with Section 40970) of Chapter 1 of Part 2, or special district that provides solid waste collection services.
(m)Lightweighting means reducing the weight or amount of material used in a specific packaging or food serviceware without functionally changing the packaging or food serviceware. Lightweighting does not include changes that result in a recyclable or compostable covered material becoming nonrecyclable or noncompostable or less likely to be recycled or composted.
(n)Low-income community means an area with household incomes at or below 80 percent of the statewide median income or with household incomes at or below the threshold designated as low income by the Department of Housing and Community Developments list of state income limits adopted pursuant to Section 50093 of the Health and Safety Code.
(o)Malus fee means a charge imposed by a PRO on a participant producer for a covered material due to the adverse environmental or public health impacts of the covered material.
(p)Materials recovery facility or MRF means a recycling facility that receives recyclable material, including, but not limited to, any covered material, for mechanical or manual sorting into specification-grade commodities for processing or for sale to a broker or end market.
(q)Needs assessment means a needs assessment prepared pursuant to Section 42067.
(r)Optimize or optimization means limiting the amount of covered material used in packaging by meeting product or packaging needs with minimal material. This includes, but is not limited to, eliminating unnecessary components, right-sizing, concentrating, and using bulk or large format packaging.
(s)Packaging means any separable and distinct material component used for the containment, protection, handling, delivery, or presentation of goods by the producer for the user or consumer, ranging from raw materials to processed goods. Packaging includes, but is not limited to, all of the following:
(1)Sales packaging or primary packaging intended to provide the user or consumer the individual serving or unit of the product and most closely containing the product, food, or beverage.
(2)Grouped packaging or secondary packaging intended to bundle, sell in bulk, brand, or display the product.
(3)Transport packaging or tertiary packaging intended to protect the product during transport.
(4)Packaging components and ancillary elements integrated into packaging, including ancillary elements directly hung onto or attached to a product and that perform a packaging function, except both of the following:
(A)An element of the packaging or food serviceware with a de minimis weight or volume, which is not an independent plastic component, as determined by the department.
(B)A component or element that is an integral part of the product, if all components or elements of the product are intended to be consumed or disposed of together.
(t)Plastic means a synthetic or semisynthetic material chemically synthesized by the polymerization of organic substances that can be shaped into various rigid and flexible forms, and includes coatings and adhesives. Plastic includes, without limitation, polyethylene terephthalate (PET), high density polyethylene (HDPE), polyvinyl chloride (PVC), low density polyethylene (LDPE), polypropylene (PP), polystyrene (PS), polylactic acid (PLA), and aliphatic biopolyesters, such as polyhydroxyalkanoate (PHA) and polyhydroxybutyrate (PHB). Plastic does not include natural rubber or naturally occurring polymers such as proteins or starches.
(u)Plastic component means any single piece of covered material made partially or entirely of plastic. A plastic component may constitute the entirety of the covered material or a separate or separable piece of the covered material.
(v)Processing means to sort, segregate, break or flake, and clean material to prepare it to meet the specification for sale to a responsible end market in which the recovery of materials and the disposal of contaminants is conducted in a way that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety.
(w)(1)Producer means a person who manufactures a product that uses covered material and who owns or is the licensee of the brand or trademark under which the product is used in a commercial enterprise, sold, offered for sale, or distributed in the state.
(2)If there is no person in the state who is the producer for purposes of paragraph (1), the producer of the covered material is the owner or, if the owner is not in the state, the exclusive licensee of a brand or trademark under which the covered product using the covered material is used in a commercial enterprise, sold, offered for sale, or distributed in the state. For purposes of this subdivision, a licensee is a person holding the exclusive right to use a trademark or brand in the state in connection with the manufacture, sale, or distribution of the product packaged in or made from the covered material.
(3)If there is no person in the state who is the producer for purposes of paragraph (1) or (2), the producer of the covered material is the person who sells, offers for sale, or distributes the product that uses the covered material in or into the state.
(4)Producer does not include a person who produces, harvests, and packages an agricultural commodity on the site where the agricultural commodity was grown or raised.
(5)For purposes of this chapter, the sale of covered materials shall be deemed to occur in the state if the covered materials are delivered to the purchaser in the state.
(x)Producer responsibility organization or PRO means an organization that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code of 1986 and is formed for the purpose of implementing a plan to meet the requirements of this chapter.
(y)Producer responsibility plan or plan, unless context requires otherwise, means the plan produced by a PRO, or by a producer that chooses to assume responsibility to comply with this chapter individually, and submitted to the advisory board and department pursuant to Section 42051.1.
(z)Rate of inbound contamination means the amount of nonrecyclable or noncompostable materials arriving at a materials recovery facility or other recycling or composting facility.
(aa)(1)Recycle or recycling means the process of collecting, sorting, cleansing, treating, and reconstituting materials that would otherwise ultimately be disposed of onto land or into water or the atmosphere, and returning them to, or maintaining them within, the economic mainstream in the form of recovered material for new, reused, or reconstituted products, including compost, that meet the quality standards necessary to be used in the marketplace.
(2)Recycle or recycling does not include any of the following:
(A)Combustion.
(B)Incineration.
(C)Energy generation.
(D)Fuel production, except for anaerobic digestion of source separated organic materials.
(E)Other forms of disposal.
(3)To be considered recycled, covered material shall be sent to a responsible end market.
(4)(A)The department may adopt regulations to define guidelines and verification requirements for the PRO and for any producers complying with this chapter pursuant to paragraph (2) of subdivision (b) of Section 42051, for covered material shipped out of state and exported to other countries for recycling, including processing requirements and contamination standards, or to otherwise implement this paragraph. The PRO or producer shall ensure and certify to the department that it has included any applicable guidelines and verification requirements in any contracts with entities involved in the processing or recycling of covered materials.
(B)For any mixture of plastic waste exported to another country, the PRO or producer shall certify to the department that the processes and recycling technologies used meet both of the following requirements, as determined by the department:
(i)The plastic waste is a mixture of plastic types consisting only of one or more of polyethylene, polypropylene, or polyethylene terephthalate, and the export is destined for separate recycling of each material.
(ii)The plastic waste export is not prohibited by an applicable law or treaty of the destination jurisdiction, and the import of the plastic waste into the destination jurisdiction will be conducted in accordance with all applicable laws and treaties of that destination jurisdiction.
(C)For any mixture of plastic waste exported to other states or countries, the PRO or producer shall certify to the department that the recycling technology used meets the requirements of this subdivision.
(D)In meeting the requirements of subparagraphs (B) and (C), the PRO or producer shall provide documentation necessary to verify this certification and shall make the certification under penalty of perjury.
(5)The departments regulations shall encourage recycling that minimizes generation of hazardous waste, generation of greenhouse gases, environmental impacts, environmental justice impacts, and public health impacts. The regulations shall include criteria to exclude plastic recycling technologies that produce significant amounts of hazardous waste.
(ab)Recycling rate means the percentage, overall and by category, of covered material sold, offered for sale, distributed, or imported in the state that is ultimately recycled. The recycling rate shall be calculated as the amount of covered material that is recycled in a given year divided by the total amount of covered material disposed of, as defined in subdivision (b) of Section 40192, and the amount of covered material recycled, unless and until the department adopts a new methodology for calculating the recycling rate by regulation.
(ac)Recycling service provider means a solid waste enterprise that provides solid waste handling services on behalf of a local jurisdiction.
(ad)(1)Responsible end market means an entity that uses recycled covered material for the manufacturing of products when the manufacturing, including the disposal of contaminates, is conducted in a way that benefits the environment and minimizes risks to public health and worker health and safety.
(2)Responsible end market does not include entities that process covered material in a manner that is prohibited under the definition of recycling pursuant to paragraph (2) of subdivision (aa).
(3)The PRO or producer shall ensure and certify to the department that it has included any applicable regulations and guidelines in any contracts with entities providing responsible end markets for covered materials.
(ae)(1)Retailer or wholesaler means the person or entity who sells covered material in the state to purchasers or offers to purchasers the covered material in the state through any means, including, but not limited to, any of the following:
(A)Remote offering, including sales outlets or catalogs.
(B)Electronically through the internet.
(C)Telephone.
(D)Mail.
(E)Direct sales.
(2)A person who sells covered material as a third-party seller using an online marketplace as described in paragraph (3) shall be considered the retailer or wholesaler for purposes of such transactions. The owner or operator of the online marketplace shall not be considered the retailer or wholesaler for such sales.
(3)For purposes of this subdivision, online marketplace means a consumer-directed, electronically accessed platform in which all of the following are true:
(A)The platform includes features that enable third-party sellers to sell consumer products directly to consumers in the state without the owner or operator of the platform involved in the transaction other than by providing order processing, payment, storage, shipping, or delivery services.
(B)Third-party sellers use the features described in subparagraph (A) to sell directly to consumers in the state, with title to the consumer product passing from the third-party sellers directly to consumers and not being held by the owner or operator of the online marketplace at any point during the transaction, including upon receipt of the order and throughout the order fulfillment process.
(C)Except as provided by subparagraph (E), the owner or operator of the platform does not directly or indirectly control the covered material used in packaging and shipping of a consumer product in this state.
(D)The person or entity operating the platform has a contractual or similar relationship with consumers governing their use of the platform to purchase consumer products.
(E)Third-party sellers agree, pursuant to the platforms terms and conditions or other enforceable agreement, that they will not use the platform to offer for sale, sell, or distribute into the state covered material that does not meet the requirements of this chapter.
(af)Reusable or refillable or reuse or refill, in regard to packaging or food serviceware, means either of the following:
(1)For packaging or food serviceware that is reused or refilled by a producer, it satisfies all of the following:
(A)Explicitly designed and marketed to be used multiple times for the same product, or for another purposeful packaging use in a supply chain.
(B)Designed for durability to function properly in its original condition for multiple uses.
(C)Supported by adequate infrastructure to ensure the packaging or food serviceware can be conveniently and safely reused or refilled for multiple cycles.
(D)Repeatedly recovered, inspected, and repaired, if necessary, and reissued into the supply chain for reuse or refill for multiple cycles.
(2)For packaging or food serviceware that is reused or refilled by a consumer, it satisfies all of the following:
(A)Explicitly designed and marketed to be used multiple times for the same product.
(B)Designed for durability to function properly in its original condition for multiple uses.
(C)Supported by adequate and convenient availability of and retail infrastructure for bulk or large format packaging that may be refilled to ensure the packaging or food serviceware can be conveniently and safely reused or refilled by the consumer multiple times.
(ag)Right-size or right-sizing means reducing the amount of material used to package an item by reducing unnecessary space or eliminating unnecessary components of the packaging.
(ah)Rural area has the same meaning as defined in Section 50101 of the Health and Safety Code.
(ai)Single use means conventionally disposed of after a single use or not sufficiently durable or washable to be, or not intended to be, reusable or refillable.
(aj)Source reduction means the reduction in the amount of covered material created by a producer relative to a baseline established pursuant to subdivision (b) of Section 42057. Methods of source reduction include, but are not limited to, shifting covered material to reusable or refillable packaging or a reusable product or eliminating unnecessary packaging. Source reduction does not include either of the following:
(1)Replacing a recyclable or compostable covered material with a nonrecyclable or noncompostable covered material or a covered material that is less likely to be recycled or composted.
(2)Switching from virgin covered material to postconsumer recycled content.
(ak)Source reduction plan means the plan prepared as part of the PRO plan in accordance with Section 42057.
(al)Unexpended funds means moneys in a PROs accounts that the organization is not already obligated to pay pursuant to a contract, claim, or similar mechanism. Unexpended funds excludes the California circular economy administrative fees.
SEC. 2.Section 42060 of the Public Resources Code is amended to read:42060.(a)By January 1, 2025, the department shall adopt regulations necessary to implement and enforce this chapter and to ensure that the requirements of this chapter and in particular the requirements established in Section 42050 and the policy goal established in Section 41780.01 as it relates to covered material are met. The regulations shall include, but not be limited to, all of the following:
(1)Any regulations necessary to ensure the PRO fully funds plan implementation, including fully funding the budget. This shall include the costs incurred by a local jurisdiction or a local jurisdictions recycling service providers to implement this chapter, including, but not limited to, the cost of consumer education and of collection, including the cost of containers where relevant, as well as the processing, storage, and transportation of covered materials. Costs may vary based on population density or other relevant factors and shall allow local jurisdictions to protect ratepayers from increased costs associated with the processing and marketing of covered material.
(2)(A)Establish a mandatory process for producers, retailers, and wholesalers, or a PRO operating on behalf of a producer, retailer, or wholesaler, to register with and report to the department.
(B)The process shall include establishing appropriate timelines to begin regular reporting following the adoption of the regulations. The department shall consider, along with any other factors the department deems appropriate, the amount of information being reported in developing the timelines.
(C)(i)Data requests by the department shall be consistent with the covered material categories established and posted on the departments internet website pursuant to subdivision (a) of Section 42061.
(ii)To the maximum extent feasible, the department shall seek to use records and information that the local jurisdiction, producer, retailer, wholesaler, or PRO already maintains, in order to minimize the burden imposed by the reporting and recordkeeping requirements while still enabling the department to determine compliance with this chapter.
(D)The department shall, to the extent feasible, make the reporting consistent with other recognized third-party reporting systems used by producers or other packaging extended producer responsibility programs.
(E)Market-sensitive trade secret data received by the department pursuant to this chapter shall be held confidentially by the department as required by Section 40062 and any implementing regulations, provided that the furnisher of the data complies with the requirements set forth in subdivision (b) of Section 40062 and any implementing regulations for identifying the information claimed to be a trade secret.
(F)The department shall create an online registration form to facilitate submitting reports pursuant to this subdivision. To the extent permissible under applicable law, the department may contract with an independent third-party online reporting system with recognized standards for waste characterization, source reduction, and recycling.
(3)(A)The department shall establish a process to identify covered material that, while determined to be single use for purposes of this chapter, presents unique challenges in complying with this chapter. The department may exempt covered material identified pursuant to this subparagraph from this chapter.
(B)For any covered material identified as presenting unique challenges and exempted from this chapter under subparagraph (A), the department may at any point develop a plan to phase the covered material into the requirements of this chapter.
(4)The department shall establish a process to identify covered material that cannot comply with this chapter for health and safety reasons, or because it is unsafe to recycle. The department may exempt that covered material from this chapter.
(5)The department shall establish a process to exempt from the requirements of this chapter, except for the requirements of subdivision (b) of Section 42050, small producers, small retailers, and small wholesalers based on size, revenue, number of retail locations, and market share, as follows:
(A)Subject to subparagraph (B), the department shall exempt producers, retailers, or wholesalers that, in the most recent calendar year, had gross sales of less than one million dollars ($1,000,000) in the state.
(B)If the department determines that exempting a particular small producer, small retailer, or small wholesaler pursuant to subparagraph (A) would hinder the ability of a type of covered material or covered material category from complying with the requirements of this chapter, the department may determine that the particular small producer, small retailer, or small wholesaler will not be exempted from the requirements of this chapter.
(6)(A)The department shall include mechanisms necessary to reduce the amount of covered material entering the environment, in accordance with the regulations adopted pursuant to this section.
(B)The department may consider reductions of covered material achieved by a producer before the effective date of the regulations toward a producers compliance with this chapter if the producer can demonstrate to the satisfaction of the department that the producer reduced the covered material in a manner consistent with this chapter and actions taken to comply with Chapter 5.5 (commencing with Section 42300).
(C)In calculating the reductions necessary to achieve the requirements adopted pursuant to subdivision (a), the department shall consider source reduction achieved pursuant to Section 42057.
(7)The department shall establish a process to require coordination between a PRO and producer that is not a participant of the PROs approved plan and between multiple PROs as necessary. This includes determining how much each PRO shall charge producers of plastic covered material in order to prorate the funding as necessary to raise the revenue required by Section 42064.
(8)The department shall establish a methodology and process to calculate, to the extent feasible, an annual recycling rate defined in subdivision (ab) of Section 42041.
(b)The department may adopt regulations to establish standards for the PRO regarding responsible end markets for covered material and to establish criteria that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety.
(c)(1)The department shall ensure that any regulations adopted pursuant to this chapter consider guidelines and do not conflict with regulations issued by the United States Food and Drug Administration and the United States Department of Agriculture and consider requirements imposed by other California state agencies.
(2)Neither the department nor the PRO shall impose any requirement, including, but not limited to, a recycled content requirement, in direct conflict with a federal law or regulation, including, but not limited to, laws or regulations covering tamper-evident packaging pursuant to Section 211.132 of Title 21 of the Code of Federal Regulations, laws or regulations covering child-resistant packaging pursuant to Part 1700 (commencing with Section 1700.1) of Subchapter E of Chapter II of Title 16 of the Code of Federal Regulations, regulations, rules, or guidelines issued by the United States Department of Agriculture or the United States Food and Drug Administration relevant to packaging agricultural commodities, requirements for microbial contamination, structural integrity, or safety of packaging under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 301 et seq.), 21 U.S.C. Sec. 2101 et seq., the federal FDA Food Safety Modernization Act (21 U.S.C. Sec. 2201 et seq.), the Federal Poultry Products Inspection Act (21 U.S.C. Sec. 451 et seq.), the Federal Meat Inspection Act (21 U.S.C. Sec. 601 et seq.), or the federal Egg Products Inspection Act (21 U.S.C. Sec. 1031 et seq.). Neither the department nor a PRO shall impose a postconsumer recycled content requirement for covered material for fresh produce.
(d)In developing the regulations, the department shall consider relevant information on reduction programs and approaches in other states, localities, and nations, including, but not limited to, the European Union, India, Costa Rica, China, Chile, and Canada, and international standards, including, but not limited to, ISO 18602.
(e)In adopting regulations pursuant to this section, the department shall ensure the regulations, and activities conducted in accordance with the regulations, avoid or minimize disproportionate impacts to disadvantaged or low-income communities or rural areas.
SEC. 3.Section 42070 of the Public Resources Code is amended to read:42070.(a)In implementing this chapter, the department shall establish a producer responsibility advisory board for the purpose of identifying barriers and solutions to creating a circular economy consistent with this chapter and advising the department, producers, and producer responsibility organizations in the implementation of this chapter. The advisory board shall be composed of 13 voting and 3 nonvoting members as provided in the following categories, who shall be appointed by the director:
(1)One representative nominated by a statewide city association.
(2)One representative nominated by a statewide rural county association.
(3)One representative from an environmental protection organization.
(4)One representative from an ocean advocacy organization.
(5)One representative from an environmental justice organization.
(6)One representative from a disadvantaged or low-income community or rural area.
(7)One representative of a materials recovery facility located within the State of California.
(8)One representative of a recycling service provider, or a representative of an association of recycling service providers.
(9)One representative from the composting industry operating in the State of California.
(10)A representative of each of four manufacturers of covered materials of different material types using postconsumer recycled content, one of which produces third-party certified compostable covered material. These board members shall not be a board member of a PRO.
(11)One representative nominated by a statewide association representing the retail sector. This board member shall be a nonvoting member.
(12)One representative nominated by a statewide association representing the grocery sector. This board member shall be a nonvoting member.
(13)One representative of a producer responsibility organization. This board member shall be a nonvoting member.
(b)The director shall appoint all members to the advisory board on or before July 1, 2023. The director shall appoint the members for staggered three-year terms, and may reappoint a member for additional terms. At its first meeting, the advisory board shall elect a chair who will serve as chair for the calendar year, and who may be reelected as chair.
(c)The advisory board shall meet at least once per year by the call of the chair or by request of a majority of the voting members. The department shall provide administrative support to the advisory board.
(d)The advisory board meetings shall be open to the public and are subject to the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code).
(e)(1)The advisory board shall provide the PRO and the department, and a third party conducting or updating a needs assessment if applicable, with initial recommendations regarding all of the following:
(A)Key barriers and possible solutions to advance the objectives of increasing recovery of covered materials and decreasing the leakage of plastic into the environment no later than one year after the advisory boards initial meeting. This shall include key barriers and possible solutions related to available and viable responsible end markets and market development for covered materials.
(B)Key barriers and possible solutions to advance the objectives of reducing the production of virgin material for covered material and reducing the landfilling of covered material.
(C)Key barriers and possible pathways toward reusable packaging and products and refillable systems.
(D)Key barriers and other considerations needed for covered material to meet the requirements of this chapter.
(E)How a PRO will cover the costs incurred by local jurisdictions and local jurisdictions recycling service providers associated with implementing this chapter and managing the material covered in a plan.
(2)The department shall consider the recommendations provided under paragraph (1) as it evaluates which specific actions may be appropriate to advance the objectives of this chapter.
(f)The advisory board may take any of the following actions through written recommendations as the advisory board deems appropriate:
(1)Advise the department, producers, or PROs on technical matters in support of the goals of this chapter to create a circular economy and reduce covered material pollution.
(2)Advise the department in the adoption of the regulations required by this chapter.
(3)Advise the department, producers, or PROs on any other pertinent matters in implementing this chapter, as determined by the advisory board or department.
(g)Pursuant to Section 42067, the advisory board shall review any needs assessment or revised needs assessment submitted to it within 90 calendar days of receipt of the assessment.
(h)Within 60 calendar days of receiving a plan submitted pursuant to subdivision (a) of Section 42051.2, the advisory board shall review the plan and offer written comments, which may include suggested modifications to the plan.
(i)The advisory board shall submit written recommendations to the department only if a majority of the advisory boards voting members endorse the recommendation. One or more advisory board members who do not endorse the recommendation may submit a separate written recommendation to the department reflecting the minority opinion or opinions.
(j)(1)If an affected entity asserts that specific actions taken by the PRO, a producer, or an entity under contract with the PRO are not consistent with paragraph (3) or (4) of subdivision (c) of, or paragraph (2) of subdivision (i) of, Section 42051.1 and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements, the affected entity may bring the concern and evidence supporting this assertion to the advisory board for discussion and ask the advisory board to conduct a preliminary evaluation of the information. If the evaluation demonstrates that specific actions are disrupting or otherwise adversely affecting existing operations, the advisory board shall offer a recommendation for resolution within 90 days of submission of the request for a preliminary evaluation.
(2)After the advisory board offers its recommendation pursuant to paragraph (1), either party may initiate nonbinding arbitration by a neutral arbitrator with the consent of all parties, consistent with procedures set forth in Title 9 (commencing with Section 1280) of Part 3 of the Code of Civil Procedure, and without prejudice to seeking judicial relief, to determine whether specific actions taken by the PRO, a producer, or an entity under contract with the PRO are not consistent with paragraph (3) or (4) of subdivision (c) of, or paragraph (2) of subdivision (i) of, Section 42051.1 and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements. The arbitrator shall consider the information presented to the advisory board and any other information provided to the arbitrator by the parties.
(3)If the arbitrator determines pursuant to paragraph (2) that specific actions taken by the PRO, a producer, or an entity under contract with the PRO are not consistent with paragraph (3) or (4) of subdivision (c) of, or paragraph (2) of subdivision (i) of, Section 42051.1 and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements, the arbitrator may propose actions, to the extent feasible, to remedy the disruption or adverse effect, including, but not limited to, proposing a revision to the producer responsibility plan causing the disruption or adverse effect. The arbitrator shall transmit the proposed decision to the department and to the advisory board.
(4)The department shall review the arbitrators proposed decision within 60 days of receipt and shall determine whether or not the arbitrators proposed decision conflicts with or impedes the requirements, targets, and goals of this chapter.
(5)If the arbitrator orders proposes a revision to an approved producer responsibility plan, the department shall publicly notice the proposed plan revision on its internet website and shall accept comments from the advisory board and the public about the proposed revision. If the department determines, after reviewing the proposed plan revision and considering public comment, that the proposed plan revision is consistent with this chapter and associated regulations, does not adversely impact other organizations impacted by the proposed plan revision, and does not adversely affect the PROs or producers ability to comply with this chapter and associated regulations, it may approve the proposed plan revision. If the department determines, after reviewing the proposed plan revision and considering public comment, that the proposed plan revision is not consistent with the requirements of this chapter, associated regulations, or the PROs or producers ability to comply with this chapter or associated regulations, it may reject the proposed plan revision.
(6)Within 60 days after the arbitrator delivers the proposed decision to the department and the advisory board, any party, including, but not limited to, the department, the advisory board, local governments, nongovernmental organizations, other producers, and other entities under contract with a PRO or producer, may request that the department conduct a de novo adjudicative proceeding.
(7)If no action is taken by the department or other party within 60 days of the arbitrators proposed decision being submitted to the department and the advisory committee, the proposed decision shall be deemed final and binding.
(8) The department shall include any actions taken pursuant to this subdivision in the subsequent report submitted to the Legislature pursuant to subdivision (a) of Section 42065.
For purposes of this chapter, the following definitions apply:
(a)Advisory board means the producer responsibility advisory board established pursuant to Section 42070.
(b)Bulk or large format packaging means packaging for a large amount of a product in a large packaging, thereby offsetting the need for multiple smaller packaging units for the same amount of product.
(c)California circular economy administrative fee means the fee imposed by the department pursuant to Section 42053.5.
(d)Concentrate or concentration means reducing the amount of packaging needed for a product by reformulating the product to allow for smaller quantities of the product to be used for the same purpose as the previous, larger quantity.
(e)(1)Covered material means both of the following:
(A)Single-use packaging that is routinely recycled, disposed of, or discarded after its contents have been used or unpackaged, and typically not refilled or otherwise reused by the producer.
(B)Plastic single-use food serviceware, including, but not limited to, plastic-coated paper or plastic-coated paperboard, paper or paperboard with plastic intentionally added during the manufacturing process, and multilayer flexible material. For purposes of this subparagraph, single-use food serviceware includes both of the following:
(i)Trays, plates, bowls, clamshells, lids, cups, utensils, stirrers, hinged or lidded containers, and straws.
(ii)Wraps or wrappers and bags sold to food service establishments.
(2)Notwithstanding paragraph (1), covered material does not include any of the following:
(A)Packaging used for any of the following products:
(i)Medical products and products defined as devices or prescription drugs, as specified in the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Secs. 321(g), 321(h), and 353(b)(1)).
(ii)Drugs that are used for animal medicines, including, but not limited to, parasiticide products for animals.
(iii)Products intended for animals that are regulated as animal drugs, biologics, parasiticides, medical devices, or diagnostics used to treat, or administered to, animals under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 301 et seq.), the federal Virus-Serum-Toxin Act (21 U.S.C. Sec. 151 et seq.), or the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.).
(iv)Infant formula, as defined in Section 321(z) of Title 21 of the United States Code.
(v)Medical food, as defined in Section 360ee(b)(3) of Title 21 of the United States Code.
(vi)Fortified oral nutritional supplements used for persons who require supplemental or sole source nutrition to meet nutritional needs due to special dietary needs directly related to cancer, chronic kidney disease, diabetes, malnutrition, or failure to thrive, as those terms are defined as by the International Classification of Diseases, Tenth Revision, or other medical conditions as determined by the department.
(B)Packaging used to contain products regulated by the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.).
(C)Plastic packaging containers that are used to contain and ship products that are classified for transportation as dangerous goods or hazardous materials under Part 178 (commencing with Section 178.0) of Subchapter C of Chapter I of Subtitle B of Title 49 of the Code of Federal Regulations.
(D)Packaging used to contain hazardous or flammable products regulated by the 2012 federal Occupational Safety and Health Administration Hazard Communications Standard (29 C.F.R. 1910.1200).
(E)Beverage containers subject to the California Beverage Container Recycling and Litter Reduction Act (Division 12.1 (commencing with Section 14500)).
(F)Packaging used for the long-term protection or storage of a product that has a lifespan of not less than five years, as determined by the department.
(G)Packaging associated with products covered under the architectural paint recovery program established pursuant to Chapter 5 (commencing with Section 48700) of Part 7.
(H)(i)Covered material for which the producer demonstrates to the department that the covered material meets all of the following criteria:
(I)The covered material is not collected through a residential recycling collection service.
(II)The covered material does not undergo separation from other materials at a commingled recycling processing facility.
(III)The covered material is recycled at a responsible end market.
(IV)The material has demonstrated a recycling rate of 65 percent for three consecutive years before January 1, 2027, and on and after that date demonstrates a recycling rate at or over 70 percent annually, as demonstrated to the department every two years.
(ii)If only a portion of the covered material sold in or into the state by a producer meets the criteria of clause (i), only the portion of the covered material that meets the criteria of clause (i) is exempt from this chapter and any portion that does not meet the criteria is a covered material for purposes of this chapter.
(f)Covered material category means a category that includes covered material of a similar type and form, as determined by the department.
(g)Curbside collection means a program that includes the collection of material, including, but not limited to, covered materials, by a local jurisdiction or recycling or composting service provider under contract with a local jurisdiction.
(h)Department means the Department of Resources Recycling and Recovery.
(i)Disadvantaged community means an area identified by the California Environmental Protection Agency pursuant to Section 39711 of the Health and Safety Code or an area identified as a disadvantaged unincorporated community pursuant to Section 65302.10 of the Government Code.
(j)Eliminate or elimination, with respect to source reduction, means the removal of a plastic component from a covered material without replacing that component with a nonplastic component.
(k)Expanded polystyrene means blown polystyrene and expanded or extruded foams that are thermoplastic petrochemical materials using a styrene monomer and processed by any technique or techniques, including, but not limited to, fusion of polymer spheres (expandable bead polystyrene), injection molding, foam molding, and extrusion-blow molding (extruded foam polystyrene).
(l)Local jurisdiction means a city, county, city and county, regional agency formed pursuant to Chapter 5 (commencing with Section 6500) of Division 7 of Title 1 of the Government Code or Article 3 (commencing with Section 40970) of Chapter 1 of Part 2, or special district that provides solid waste collection services.
(m)Lightweighting means reducing the weight or amount of material used in a specific packaging or food serviceware without functionally changing the packaging or food serviceware. Lightweighting does not include changes that result in a recyclable or compostable covered material becoming nonrecyclable or noncompostable or less likely to be recycled or composted.
(n)Low-income community means an area with household incomes at or below 80 percent of the statewide median income or with household incomes at or below the threshold designated as low income by the Department of Housing and Community Developments list of state income limits adopted pursuant to Section 50093 of the Health and Safety Code.
(o)Malus fee means a charge imposed by a PRO on a participant producer for a covered material due to the adverse environmental or public health impacts of the covered material.
(p)Materials recovery facility or MRF means a recycling facility that receives recyclable material, including, but not limited to, any covered material, for mechanical or manual sorting into specification-grade commodities for processing or for sale to a broker or end market.
(q)Needs assessment means a needs assessment prepared pursuant to Section 42067.
(r)Optimize or optimization means limiting the amount of covered material used in packaging by meeting product or packaging needs with minimal material. This includes, but is not limited to, eliminating unnecessary components, right-sizing, concentrating, and using bulk or large format packaging.
(s)Packaging means any separable and distinct material component used for the containment, protection, handling, delivery, or presentation of goods by the producer for the user or consumer, ranging from raw materials to processed goods. Packaging includes, but is not limited to, all of the following:
(1)Sales packaging or primary packaging intended to provide the user or consumer the individual serving or unit of the product and most closely containing the product, food, or beverage.
(2)Grouped packaging or secondary packaging intended to bundle, sell in bulk, brand, or display the product.
(3)Transport packaging or tertiary packaging intended to protect the product during transport.
(4)Packaging components and ancillary elements integrated into packaging, including ancillary elements directly hung onto or attached to a product and that perform a packaging function, except both of the following:
(A)An element of the packaging or food serviceware with a de minimis weight or volume, which is not an independent plastic component, as determined by the department.
(B)A component or element that is an integral part of the product, if all components or elements of the product are intended to be consumed or disposed of together.
(t)Plastic means a synthetic or semisynthetic material chemically synthesized by the polymerization of organic substances that can be shaped into various rigid and flexible forms, and includes coatings and adhesives. Plastic includes, without limitation, polyethylene terephthalate (PET), high density polyethylene (HDPE), polyvinyl chloride (PVC), low density polyethylene (LDPE), polypropylene (PP), polystyrene (PS), polylactic acid (PLA), and aliphatic biopolyesters, such as polyhydroxyalkanoate (PHA) and polyhydroxybutyrate (PHB). Plastic does not include natural rubber or naturally occurring polymers such as proteins or starches.
(u)Plastic component means any single piece of covered material made partially or entirely of plastic. A plastic component may constitute the entirety of the covered material or a separate or separable piece of the covered material.
(v)Processing means to sort, segregate, break or flake, and clean material to prepare it to meet the specification for sale to a responsible end market in which the recovery of materials and the disposal of contaminants is conducted in a way that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety.
(w)(1)Producer means a person who manufactures a product that uses covered material and who owns or is the licensee of the brand or trademark under which the product is used in a commercial enterprise, sold, offered for sale, or distributed in the state.
(2)If there is no person in the state who is the producer for purposes of paragraph (1), the producer of the covered material is the owner or, if the owner is not in the state, the exclusive licensee of a brand or trademark under which the covered product using the covered material is used in a commercial enterprise, sold, offered for sale, or distributed in the state. For purposes of this subdivision, a licensee is a person holding the exclusive right to use a trademark or brand in the state in connection with the manufacture, sale, or distribution of the product packaged in or made from the covered material.
(3)If there is no person in the state who is the producer for purposes of paragraph (1) or (2), the producer of the covered material is the person who sells, offers for sale, or distributes the product that uses the covered material in or into the state.
(4)Producer does not include a person who produces, harvests, and packages an agricultural commodity on the site where the agricultural commodity was grown or raised.
(5)For purposes of this chapter, the sale of covered materials shall be deemed to occur in the state if the covered materials are delivered to the purchaser in the state.
(x)Producer responsibility organization or PRO means an organization that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code of 1986 and is formed for the purpose of implementing a plan to meet the requirements of this chapter.
(y)Producer responsibility plan or plan, unless context requires otherwise, means the plan produced by a PRO, or by a producer that chooses to assume responsibility to comply with this chapter individually, and submitted to the advisory board and department pursuant to Section 42051.1.
(z)Rate of inbound contamination means the amount of nonrecyclable or noncompostable materials arriving at a materials recovery facility or other recycling or composting facility.
(aa)(1)Recycle or recycling means the process of collecting, sorting, cleansing, treating, and reconstituting materials that would otherwise ultimately be disposed of onto land or into water or the atmosphere, and returning them to, or maintaining them within, the economic mainstream in the form of recovered material for new, reused, or reconstituted products, including compost, that meet the quality standards necessary to be used in the marketplace.
(2)Recycle or recycling does not include any of the following:
(A)Combustion.
(B)Incineration.
(C)Energy generation.
(D)Fuel production, except for anaerobic digestion of source separated organic materials.
(E)Other forms of disposal.
(3)To be considered recycled, covered material shall be sent to a responsible end market.
(4)(A)The department may adopt regulations to define guidelines and verification requirements for the PRO and for any producers complying with this chapter pursuant to paragraph (2) of subdivision (b) of Section 42051, for covered material shipped out of state and exported to other countries for recycling, including processing requirements and contamination standards, or to otherwise implement this paragraph. The PRO or producer shall ensure and certify to the department that it has included any applicable guidelines and verification requirements in any contracts with entities involved in the processing or recycling covered materials.
(B)For any mixture of plastic waste exported to another country, the PRO or producer shall certify to the department that the processes and recycling technologies used meet both of the following requirements, as determined by the department:
(i)The plastic waste is a mixture of plastic types consisting only of one or more of polyethylene, polypropylene, or polyethylene terephthalate, and the export is destined for separate recycling of each material.
(ii)The plastic waste export is not prohibited by an applicable law or treaty of the destination jurisdiction, and the import of the plastic waste into the destination jurisdiction will be conducted in accordance with all applicable laws and treaties of that destination jurisdiction.
(C)For any mixture of plastic waste exported to other states or countries, the PRO or producer shall certify to the department that the recycling technology used meets the requirements of this subdivision.
(D)In meeting the requirements of subparagraphs (B) and (C), the PRO or producer shall provide documentation necessary to verify this certification and shall make the certification under penalty of perjury.
(5)The departments regulations shall encourage recycling that minimizes generation of hazardous waste, generation of greenhouse gases, environmental impacts, environmental justice impacts, and public health impacts. The regulations shall include criteria to exclude plastic recycling technologies that produce significant amounts of hazardous waste.
(ab)Recycling rate means the percentage, overall and by category, of covered material sold, offered for sale, distributed, or imported in the state that is ultimately recycled. The recycling rate shall be calculated as the amount of covered material that is recycled in a given year divided by the total amount of covered material disposed of, as defined in subdivision (b) of Section 40192, and the amount of covered material recycled, unless and until the department adopts a new methodology for calculating the recycling rate by regulation.
(ac)Recycling service provider means a solid waste enterprise that provides solid waste handling services on behalf of a local jurisdiction.
(ad)(1)Responsible end market means an entity that uses recycled covered material for the manufacturing of products when the manufacturing, including the disposal of contaminates, is conducted in a way that benefits the environment and minimizes risks to public health and worker health and safety.
(2)Responsible end market does not include entities that process covered material in a manner that is prohibited under the definition of recycling pursuant to paragraph (2) of subdivision (aa).
(3)The PRO or producer shall ensure and certify to the department that it has included any applicable regulations and guidelines in any contracts with entities providing responsible end markets for covered materials.
(ae)(1)Retailer or wholesaler means the person or entity who sells covered material in the state to purchasers or offers to purchasers the covered material in the state through any means, including, but not limited to, any of the following:
(A)Remote offering, including sales outlets or catalogs.
(B)Electronically through the internet.
(C)Telephone.
(D)Mail.
(E)Direct sales.
(2)A person who sells covered material as a third-party seller using an online marketplace as described in paragraph (3) shall be considered the retailer or wholesaler for purposes of such transactions. The owner or operator of the online marketplace shall not be considered the retailer or wholesaler for such sales.
(3)For purposes of this subdivision, online marketplace means a consumer-directed, electronically accessed platform in which all of the following are true:
(A)The platform includes features that enable third-party sellers to sell consumer products directly to consumers in the state without the owner or operator of the platform involved in the transaction other than by providing order processing, payment, storage, shipping, or delivery services.
(B)Third-party sellers use the features described in subparagraph (A) to sell directly to consumers in the state, with title to the consumer product passing from the third-party sellers directly to consumers and not being held by the owner or operator of the online marketplace at any point during the transaction, including upon receipt of the order and throughout the order fulfillment process.
(C)Except as provided by subparagraph (E), the owner or operator of the platform does not directly or indirectly control the covered material used in packaging and shipping of a consumer product in this state.
(D)The person or entity operating the platform has a contractual or similar relationship with consumers governing their use of the platform to purchase consumer products.
(E)Third-party sellers agree, pursuant to the platforms terms and conditions or other enforceable agreement, that they will not use the platform to offer for sale, sell, or distribute into the state covered material that does not meet the requirements of this chapter.
(af)Reusable or refillable or reuse or refill, in regard to packaging or food serviceware, means either of the following:
(1)For packaging or food serviceware that is reused or refilled by a producer, it satisfies all of the following:
(A)Explicitly designed and marketed to be used multiple times for the same product, or for another purposeful packaging use in a supply chain.
(B)Designed for durability to function properly in its original condition for multiple uses.
(C)Supported by adequate infrastructure to ensure the packaging or food serviceware can be conveniently and safely reused or refilled for multiple cycles.
(D)Repeatedly recovered, inspected, and repaired, if necessary, and reissued into the supply chain for reuse or refill for multiple cycles.
(2)For packaging or food serviceware that is reused or refilled by a consumer, it satisfies all of the following:
(A)Explicitly designed and marketed to be used multiple times for the same product.
(B)Designed for durability to function properly in its original condition for multiple uses.
(C)Supported by adequate and convenient availability of and retail infrastructure for bulk or large format packaging that may be refilled to ensure the packaging or food serviceware can be conveniently and safely reused or refilled by the consumer multiple times.
(ag)Right-size or right-sizing means reducing the amount of material used to package an item by reducing unnecessary space or eliminating unnecessary components of the packaging.
(ah)Rural area has the same meaning as defined in Section 50101 of the Health and Safety Code.
(ai)Single use means conventionally disposed of after a single use or not sufficiently durable or washable to be, or not intended to be, reusable or refillable.
(aj)Source reduction means the reduction in the amount of covered material created by a producer relative to a baseline established pursuant to subdivision (b) of Section 42057. Methods of source reduction include, but are not limited to, shifting covered material to reusable or refillable packaging or a reusable product or eliminating unnecessary packaging. Source reduction does not include either of the following:
(1)Replacing a recyclable or compostable covered material with a nonrecyclable or noncompostable covered material or a covered material that is less likely to be recycled or composted.
(2)Switching from virgin covered material to postconsumer recycled content.
(ak)Source reduction plan means the plan prepared as part of the PRO plan in accordance with Section 42057.
(al)(al)Unexpended funds means moneys in a PROs accounts that the organization is not already obligated to pay pursuant to a contract, claim, or similar mechanism. Unexpended funds excludes the California circular economy administrative fees.
SEC. 2.Section 42060 of the Public Resources Code is amended to read:42060.(a)By January 1, 2025, the department shall adopt regulations necessary to implement and enforce this chapter and to ensure that the requirements of this chapter and in particular the requirements established in Section 42050 and the policy goal established in Section 41780.01 as it relates to covered material are met. The regulations shall include, but not be limited to, all of the following:
(1)Any regulations necessary to ensure the PRO fully funds plan implementation, including fully funding the budget. This shall include the costs incurred by a local jurisdiction or a local jurisdictions recycling service providers to implement this chapter, including, but not limited to, the cost of consumer education and of collection, including the cost of containers where relevant, as well as the processing, storage, and transportation of covered materials. Costs may vary based on population density or other relevant factors and shall allow local jurisdictions to protect ratepayers from increased costs associated with the processing and marketing of covered material.
(2)(A)Establish a mandatory process for producers, retailers, and wholesalers, or a PRO operating on behalf of a producer, retailer, or wholesaler, to register with and report to the department.
(B)The process shall include establishing appropriate timelines to begin regular reporting following the adoption of the regulations. The department shall consider, along with any other factors the department deems appropriate, the amount of information being reported in developing the timelines.
(C)(i)Data requests by the department shall be consistent with the covered material categories established and posted on the departments internet website pursuant to subdivision (a) of Section 42061.
(ii)To the maximum extent feasible, the department shall seek to use records and information that the local jurisdiction, producer, retailer, wholesaler, or PRO already maintains, in order to minimize the burden imposed by the reporting and recordkeeping requirements while still enabling the department to determine compliance with this chapter.
(D)The department shall, to the extent feasible, make the reporting consistent with other recognized third-party reporting systems used by producers or other packaging extended producer responsibility programs.
(E)Market-sensitive trade secret data received by the department pursuant to this chapter shall be held confidentially by the department as required by Section 40062 and any implementing regulations, provided that the furnisher of the data complies with the requirements set forth in subdivision (b) of Section 40062 and any implementing regulations for identifying the information claimed to be a trade secret.
(F)The department shall create an online registration form to facilitate submitting reports pursuant to this subdivision. To the extent permissible under applicable law, the department may contract with an independent third-party online reporting system with recognized standards for waste characterization, source reduction, and recycling.
(3)(A)The department shall establish a process to identify covered material that, while determined to be single use for purposes of this chapter, presents unique challenges in complying with this chapter. The department may exempt covered material identified pursuant to this subparagraph from this chapter.
(B)For any covered material identified as presenting unique challenges and exempted from this chapter under subparagraph (A), the department may at any point develop a plan to phase the covered material into the requirements of this chapter.
(4)The department shall establish a process to identify covered material that cannot comply with this chapter for health and safety reasons, or because it is unsafe to recycle. The department may exempt that covered material from this chapter.
(5)The department shall establish a process to exempt from the requirements of this chapter, except for the requirements of subdivision (b) of Section 42050, small producers, small retailers, and small wholesalers based on size, revenue, number of retail locations, and market share, as follows:
(A)Subject to subparagraph (B), the department shall exempt producers, retailers, or wholesalers that, in the most recent calendar year, had gross sales of less than one million dollars ($1,000,000) in the state.
(B)If the department determines that exempting a particular small producer, small retailer, or small wholesaler pursuant to subparagraph (A) would hinder the ability of a type of covered material or covered material category from complying with the requirements of this chapter, the department may determine that the particular small producer, small retailer, or small wholesaler will not be exempted from the requirements of this chapter.
(6)(A)The department shall include mechanisms necessary to reduce the amount of covered material entering the environment, in accordance with the regulations adopted pursuant to this section.
(B)The department may consider reductions of covered material achieved by a producer before the effective date of the regulations toward a producers compliance with this chapter if the producer can demonstrate to the satisfaction of the department that the producer reduced the covered material in a manner consistent with this chapter and actions taken to comply with Chapter 5.5 (commencing with Section 42300).
(C)In calculating the reductions necessary to achieve the requirements adopted pursuant to subdivision (a), the department shall consider source reduction achieved pursuant to Section 42057.
(7)The department shall establish a process to require coordination between a PRO and producer that is not a participant of the PROs approved plan and between multiple PROs as necessary. This includes determining how much each PRO shall charge producers of plastic covered material in order to prorate the funding as necessary to raise the revenue required by Section 42064.
(8)The department shall establish a methodology and process to calculate, to the extent feasible, an annual recycling rate defined in subdivision (ab) of Section 42041.
(b)The department may adopt regulations to establish standards for the PRO regarding responsible end markets for covered material and to establish criteria that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety.
(c)(1)The department shall ensure that any regulations adopted pursuant to this chapter consider guidelines and do not conflict with regulations issued by the United States Food and Drug Administration and the United States Department of Agriculture and consider requirements imposed by other California state agencies.
(2)Neither the department nor the PRO shall impose any requirement, including, but not limited to, a recycled content requirement, in direct conflict with a federal law or regulation, including, but not limited to, laws or regulations covering tamper-evident packaging pursuant to Section 211.132 of Title 21 of the Code of Federal Regulations, laws or regulations covering child-resistant packaging pursuant to Part 1700 (commencing with Section 1700.1) of Subchapter E of Chapter II of Title 16 of the Code of Federal Regulations, regulations, rules, or guidelines issued by the United States Department of Agriculture or the United States Food and Drug Administration relevant to packaging agricultural commodities, requirements for microbial contamination, structural integrity, or safety of packaging under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 301 et seq.), 21 U.S.C. Sec. 2101 et seq., the federal FDA Food Safety Modernization Act (21 U.S.C. Sec. 2201 et seq.), the Federal Poultry Products Inspection Act (21 U.S.C. Sec. 451 et seq.), the Federal Meat Inspection Act (21 U.S.C. Sec. 601 et seq.), or the federal Egg Products Inspection Act (21 U.S.C. Sec. 1031 et seq.). Neither the department nor a PRO shall impose a postconsumer recycled content requirement for covered material for fresh produce.
(d)In developing the regulations, the department shall consider relevant information on reduction programs and approaches in other states, localities, and nations, including, but not limited to, the European Union, India, Costa Rica, China, Chile, and Canada, and international standards, including, but not limited to, ISO 18602.
(e)In adopting regulations pursuant to this section, the department shall ensure the regulations, and activities conducted in accordance with the regulations, avoid or minimize disproportionate impacts to disadvantaged or low-income communities or rural areas.
SEC. 3.Section 42070 of the Public Resources Code is amended to read:42070.(a)In implementing this chapter, the department shall establish a producer responsibility advisory board for the purpose of identifying barriers and solutions to creating a circular economy consistent with this chapter and advising the department, producers, and producer responsibility organizations in the implementation of this chapter. The advisory board shall be composed of 13 voting and 3 nonvoting members as provided in the following categories, who shall be appointed by the director:
(1)One representative nominated by a statewide city association.
(2)One representative nominated by a statewide rural county association.
(3)One representative from an environmental protection organization.
(4)One representative from an ocean advocacy organization.
(5)One representative from an environmental justice organization.
(6)One representative from a disadvantaged or low-income community or rural area.
(7)One representative of a materials recovery facility located within the State of California.
(8)One representative of a recycling service provider, or a representative of an association of recycling service providers.
(9)One representative from the composting industry operating in the State of California.
(10)A representative of each of four manufacturers of covered materials of different material types using postconsumer recycled content, one of which produces third-party certified compostable covered material. These board members shall not be a board member of a PRO.
(11)One representative nominated by a statewide association representing the retail sector. This board member shall be a nonvoting member.
(12)One representative nominated by a statewide association representing the grocery sector. This board member shall be a nonvoting member.
(13)One representative of a producer responsibility organization. This board member shall be a nonvoting member.
(b)The director shall appoint all members to the advisory board on or before July 1, 2023. The director shall appoint the members for staggered three-year terms, and may reappoint a member for additional terms. At its first meeting, the advisory board shall elect a chair who will serve as chair for the calendar year, and who may be reelected as chair.
(c)The advisory board shall meet at least once per year by the call of the chair or by request of a majority of the voting members. The department shall provide administrative support to the advisory board.
(d)The advisory board meetings shall be open to the public and are subject to the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code).
(e)(1)The advisory board shall provide the PRO and the department, and a third party conducting or updating a needs assessment if applicable, with initial recommendations regarding all of the following:
(A)Key barriers and possible solutions to advance the objectives of increasing recovery of covered materials and decreasing the leakage of plastic into the environment no later than one year after the advisory boards initial meeting. This shall include key barriers and possible solutions related to available and viable responsible end markets and market development for covered materials.
(B)Key barriers and possible solutions to advance the objectives of reducing the production of virgin material for covered material and reducing the landfilling of covered material.
(C)Key barriers and possible pathways toward reusable packaging and products and refillable systems.
(D)Key barriers and other considerations needed for covered material to meet the requirements of this chapter.
(E)How a PRO will cover the costs incurred by local jurisdictions and local jurisdictions recycling service providers associated with implementing this chapter and managing the material covered in a plan.
(2)The department shall consider the recommendations provided under paragraph (1) as it evaluates which specific actions may be appropriate to advance the objectives of this chapter.
(f)The advisory board may take any of the following actions through written recommendations as the advisory board deems appropriate:
(1)Advise the department, producers, or PROs on technical matters in support of the goals of this chapter to create a circular economy and reduce covered material pollution.
(2)Advise the department in the adoption of the regulations required by this chapter.
(3)Advise the department, producers, or PROs on any other pertinent matters in implementing this chapter, as determined by the advisory board or department.
(g)Pursuant to Section 42067, the advisory board shall review any needs assessment or revised needs assessment submitted to it within 90 calendar days of receipt of the assessment.
(h)Within 60 calendar days of receiving a plan submitted pursuant to subdivision (a) of Section 42051.2, the advisory board shall review the plan and offer written comments, which may include suggested modifications to the plan.
(i)The advisory board shall submit written recommendations to the department only if a majority of the advisory boards voting members endorse the recommendation. One or more advisory board members who do not endorse the recommendation may submit a separate written recommendation to the department reflecting the minority opinion or opinions.
(j)(1)If an affected entity asserts that specific actions taken by the PRO, a producer, or an entity under contract with the PRO are not consistent with paragraph (3) or (4) of subdivision (c) of, or paragraph (2) of subdivision (i) of, Section 42051.1 and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements, the affected entity may bring the concern and evidence supporting this assertion to the advisory board for discussion and ask the advisory board to conduct a preliminary evaluation of the information. If the evaluation demonstrates that specific actions are disrupting or otherwise adversely affecting existing operations, the advisory board shall offer a recommendation for resolution within 90 days of submission of the request for a preliminary evaluation.
(2)After the advisory board offers its recommendation pursuant to paragraph (1), either party may initiate nonbinding arbitration by a neutral arbitrator with the consent of all parties, consistent with procedures set forth in Title 9 (commencing with Section 1280) of Part 3 of the Code of Civil Procedure, and without prejudice to seeking judicial relief, to determine whether specific actions taken by the PRO, a producer, or an entity under contract with the PRO are not consistent with paragraph (3) or (4) of subdivision (c) of, or paragraph (2) of subdivision (i) of, Section 42051.1 and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements. The arbiter arbitrator shall consider the information presented to the advisory board and any other information provided to the arbiter arbitrator by the parties.
(3)If the arbiter arbitrator determines pursuant to paragraph (2) that specific actions taken by the PRO, a producer, or an entity under contract with the PRO are not consistent with paragraph (3) or (4) of subdivision (c) of, or paragraph (2) of subdivision (i) of, Section 42051.1 and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements, the arbiter may order arbitrator may propose actions, to the extent feasible, to remedy the disruption or adverse effect, including, but not limited to, requiring a change proposing a revision to the producer responsibility plan causing the disruption or adverse effect. The arbitrators decision in a nonbinding arbitration is final unless within 30 days after the arbitrator delivers the decision to the advisory board a party requests that the department conduct a de novo adjudicative proceeding. The arbitrator shall transmit the decision to the department and to the advisory board.
(4)The department shall review the arbitrators decision within 60 days of receipt and shall determine whether or not the arbitrators decision conflicts with or impedes the requirements, targets, and goals of this chapter.
(5)If the arbitrator orders a revision to an approved producer responsibility plan, the department shall publicly notice the proposed plan revision on its internet website and shall accept comments from the advisory board and the public about the proposed revision. If the department determines, after reviewing the proposed plan revision and considering public comment, that the proposed plan revision is consistent with this chapter and associated regulations, does not adversely impact other organizations impacted by the proposed plan revision, and does not adversely affect the PROs or producers ability to comply with this chapter and associated regulations, it may approve the proposed plan revision. If the department determines, after reviewing the proposed plan revision and considering public comment, that the proposed plan revision is not consistent with the requirements of this chapter, associated regulations, or the PROs or producers ability to comply with this chapter or associated regulations, it may reject the proposed plan revision.
(6)Within 60 days after the arbitrator delivers the decision to the department and the advisory board, any party, including, but not limited to, the department, the advisory board, local governments, nongovernmental organizations, other producers, and other entities under contract with a PRO or producer, may request that the department conduct a de novo adjudicative proceeding.
(7)If no action is taken by the department or other party within 60 days of the arbitrators decision being submitted to the department and the advisory committee, the decision shall be deemed final and binding.
(4)(8) The department shall include any actions taken pursuant to this subdivision in the subsequent report submitted to the Legislature pursuant to subdivision (a) of Section 42065.
For purposes of this chapter, the following definitions apply:
(a)Advisory board means the producer responsibility advisory board established pursuant to Section 42070.
(b)Bulk or large format packaging means packaging for a large amount of a product in a large packaging, thereby offsetting the need for multiple smaller packaging units for the same amount of product.
(c)California circular economy administrative fee means the fee imposed by the department pursuant to Section 42053.5.
(d)Concentrate or concentration means reducing the amount of packaging needed for a product by reformulating the product to allow for smaller quantities of the product to be used for the same purpose as the previous, larger quantity.
(e)(1)Covered material means both of the following:
(A)Single-use packaging that is routinely recycled, disposed of, or discarded after its contents have been used or unpackaged, and typically not refilled or otherwise reused by the producer.
(B)Plastic single-use food serviceware, including, but not limited to, plastic-coated paper or plastic-coated paperboard, paper or paperboard with plastic intentionally added during the manufacturing process, and multilayer flexible material. For purposes of this subparagraph, single-use food serviceware includes both of the following:
(i)Trays, plates, bowls, clamshells, lids, cups, utensils, stirrers, hinged or lidded containers, and straws.
(ii)Wraps or wrappers and bags sold to food service establishments.
(2)Notwithstanding paragraph (1), covered material does not include any of the following:
(A)Packaging used for any of the following products:
(i)Medical products and products defined as devices or prescription drugs, as specified in the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Secs. 321(g), 321(h), and 353(b)(1)).
(ii)Drugs that are used for animal medicines, including, but not limited to, parasiticide products for animals.
(iii)Products intended for animals that are regulated as animal drugs, biologics, parasiticides, medical devices, or diagnostics used to treat, or administered to, animals under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 301 et seq.), the federal Virus-Serum-Toxin Act (21 U.S.C. Sec. 151 et seq.), or the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.).
(iv)Infant formula, as defined in Section 321(z) of Title 21 of the United States Code.
(v)Medical food, as defined in Section 360ee(b)(3) of Title 21 of the United States Code.
(vi)Fortified oral nutritional supplements used for persons who require supplemental or sole source nutrition to meet nutritional needs due to special dietary needs directly related to cancer, chronic kidney disease, diabetes, malnutrition, or failure to thrive, as those terms are defined as by the International Classification of Diseases, Tenth Revision, or other medical conditions as determined by the department.
(B)Packaging used to contain products regulated by the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.).
(C)Plastic packaging containers that are used to contain and ship products that are classified for transportation as dangerous goods or hazardous materials under Part 178 (commencing with Section 178.0) of Subchapter C of Chapter I of Subtitle B of Title 49 of the Code of Federal Regulations.
(D)Packaging used to contain hazardous or flammable products regulated by the 2012 federal Occupational Safety and Health Administration Hazard Communications Standard (29 C.F.R. 1910.1200).
(E)Beverage containers subject to the California Beverage Container Recycling and Litter Reduction Act (Division 12.1 (commencing with Section 14500)).
(F)Packaging used for the long-term protection or storage of a product that has a lifespan of not less than five years, as determined by the department.
(G)Packaging associated with products covered under the architectural paint recovery program established pursuant to Chapter 5 (commencing with Section 48700) of Part 7.
(H)(i)Covered material for which the producer demonstrates to the department that the covered material meets all of the following criteria:
(I)The covered material is not collected through a residential recycling collection service.
(II)The covered material does not undergo separation from other materials at a commingled recycling processing facility.
(III)The covered material is recycled at a responsible end market.
(IV)The material has demonstrated a recycling rate of 65 percent for three consecutive years before January 1, 2027, and on and after that date demonstrates a recycling rate at or over 70 percent annually, as demonstrated to the department every two years.
(ii)If only a portion of the covered material sold in or into the state by a producer meets the criteria of clause (i), only the portion of the covered material that meets the criteria of clause (i) is exempt from this chapter and any portion that does not meet the criteria is a covered material for purposes of this chapter.
(f)Covered material category means a category that includes covered material of a similar type and form, as determined by the department.
(g)Curbside collection means a program that includes the collection of material, including, but not limited to, covered materials, by a local jurisdiction or recycling or composting service provider under contract with a local jurisdiction.
(h)Department means the Department of Resources Recycling and Recovery.
(i)Disadvantaged community means an area identified by the California Environmental Protection Agency pursuant to Section 39711 of the Health and Safety Code or an area identified as a disadvantaged unincorporated community pursuant to Section 65302.10 of the Government Code.
(j)Eliminate or elimination, with respect to source reduction, means the removal of a plastic component from a covered material without replacing that component with a nonplastic component.
(k)Expanded polystyrene means blown polystyrene and expanded or extruded foams that are thermoplastic petrochemical materials using a styrene monomer and processed by any technique or techniques, including, but not limited to, fusion of polymer spheres (expandable bead polystyrene), injection molding, foam molding, and extrusion-blow molding (extruded foam polystyrene).
(l)Local jurisdiction means a city, county, city and county, regional agency formed pursuant to Chapter 5 (commencing with Section 6500) of Division 7 of Title 1 of the Government Code or Article 3 (commencing with Section 40970) of Chapter 1 of Part 2, or special district that provides solid waste collection services.
(m)Lightweighting means reducing the weight or amount of material used in a specific packaging or food serviceware without functionally changing the packaging or food serviceware. Lightweighting does not include changes that result in a recyclable or compostable covered material becoming nonrecyclable or noncompostable or less likely to be recycled or composted.
(n)Low-income community means an area with household incomes at or below 80 percent of the statewide median income or with household incomes at or below the threshold designated as low income by the Department of Housing and Community Developments list of state income limits adopted pursuant to Section 50093 of the Health and Safety Code.
(o)Malus fee means a charge imposed by a PRO on a participant producer for a covered material due to the adverse environmental or public health impacts of the covered material.
(p)Materials recovery facility or MRF means a recycling facility that receives recyclable material, including, but not limited to, any covered material, for mechanical or manual sorting into specification-grade commodities for processing or for sale to a broker or end market.
(q)Needs assessment means a needs assessment prepared pursuant to Section 42067.
(r)Optimize or optimization means limiting the amount of covered material used in packaging by meeting product or packaging needs with minimal material. This includes, but is not limited to, eliminating unnecessary components, right-sizing, concentrating, and using bulk or large format packaging.
(s)Packaging means any separable and distinct material component used for the containment, protection, handling, delivery, or presentation of goods by the producer for the user or consumer, ranging from raw materials to processed goods. Packaging includes, but is not limited to, all of the following:
(1)Sales packaging or primary packaging intended to provide the user or consumer the individual serving or unit of the product and most closely containing the product, food, or beverage.
(2)Grouped packaging or secondary packaging intended to bundle, sell in bulk, brand, or display the product.
(3)Transport packaging or tertiary packaging intended to protect the product during transport.
(4)Packaging components and ancillary elements integrated into packaging, including ancillary elements directly hung onto or attached to a product and that perform a packaging function, except both of the following:
(A)An element of the packaging or food serviceware with a de minimis weight or volume, which is not an independent plastic component, as determined by the department.
(B)A component or element that is an integral part of the product, if all components or elements of the product are intended to be consumed or disposed of together.
(t)Plastic means a synthetic or semisynthetic material chemically synthesized by the polymerization of organic substances that can be shaped into various rigid and flexible forms, and includes coatings and adhesives. Plastic includes, without limitation, polyethylene terephthalate (PET), high density polyethylene (HDPE), polyvinyl chloride (PVC), low density polyethylene (LDPE), polypropylene (PP), polystyrene (PS), polylactic acid (PLA), and aliphatic biopolyesters, such as polyhydroxyalkanoate (PHA) and polyhydroxybutyrate (PHB). Plastic does not include natural rubber or naturally occurring polymers such as proteins or starches.
(u)Plastic component means any single piece of covered material made partially or entirely of plastic. A plastic component may constitute the entirety of the covered material or a separate or separable piece of the covered material.
(v)Processing means to sort, segregate, break or flake, and clean material to prepare it to meet the specification for sale to a responsible end market in which the recovery of materials and the disposal of contaminants is conducted in a way that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety.
(w)(1)Producer means a person who manufactures a product that uses covered material and who owns or is the licensee of the brand or trademark under which the product is used in a commercial enterprise, sold, offered for sale, or distributed in the state.
(2)If there is no person in the state who is the producer for purposes of paragraph (1), the producer of the covered material is the owner or, if the owner is not in the state, the exclusive licensee of a brand or trademark under which the covered product using the covered material is used in a commercial enterprise, sold, offered for sale, or distributed in the state. For purposes of this subdivision, a licensee is a person holding the exclusive right to use a trademark or brand in the state in connection with the manufacture, sale, or distribution of the product packaged in or made from the covered material.
(3)If there is no person in the state who is the producer for purposes of paragraph (1) or (2), the producer of the covered material is the person who sells, offers for sale, or distributes the product that uses the covered material in or into the state.
(4)Producer does not include a person who produces, harvests, and packages an agricultural commodity on the site where the agricultural commodity was grown or raised.
(5)For purposes of this chapter, the sale of covered materials shall be deemed to occur in the state if the covered materials are delivered to the purchaser in the state.
(x)Producer responsibility organization or PRO means an organization that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code of 1986 and is formed for the purpose of implementing a plan to meet the requirements of this chapter.
(y)Producer responsibility plan or plan, unless context requires otherwise, means the plan produced by a PRO, or by a producer that chooses to assume responsibility to comply with this chapter individually, and submitted to the advisory board and department pursuant to Section 42051.1.
(z)Rate of inbound contamination means the amount of nonrecyclable or noncompostable materials arriving at a materials recovery facility or other recycling or composting facility.
(aa)(1)Recycle or recycling means the process of collecting, sorting, cleansing, treating, and reconstituting materials that would otherwise ultimately be disposed of onto land or into water or the atmosphere, and returning them to, or maintaining them within, the economic mainstream in the form of recovered material for new, reused, or reconstituted products, including compost, that meet the quality standards necessary to be used in the marketplace.
(2)Recycle or recycling does not include any of the following:
(A)Combustion.
(B)Incineration.
(C)Energy generation.
(D)Fuel production, except for anaerobic digestion of source separated organic materials.
(E)Other forms of disposal.
(3)To be considered recycled, covered material shall be sent to a responsible end market.
(4)(A)The department may adopt regulations to define guidelines and verification requirements for the PRO and for any producers complying with this chapter pursuant to paragraph (2) of subdivision (b) of Section 42051, for covered material shipped out of state and exported to other countries for recycling, including processing requirements and contamination standards, or to otherwise implement this paragraph.
(B)For any mixture of plastic waste exported to another country, the PRO or producer shall certify to the department that the processes and recycling technologies used meet both of the following requirements, as determined by the department:
(i)The plastic waste is a mixture of plastic types consisting only of one or more of polyethylene, polypropylene, or polyethylene terephthalate, and the export is destined for separate recycling of each material.
(ii)The plastic waste export is not prohibited by an applicable law or treaty of the destination jurisdiction, and the import of the plastic waste into the destination jurisdiction will be conducted in accordance with all applicable laws and treaties of that destination jurisdiction.
(C)For any mixture of plastic waste exported to other states or countries, the PRO or producer shall certify to the department that the recycling technology used meets the requirements of this subdivision.
(D)In meeting the requirements of subparagraphs (B) and (C), the PRO or producer shall provide documentation necessary to verify this certification and shall make the certification under penalty of perjury.
(5)The departments regulations shall encourage recycling that minimizes generation of hazardous waste, generation of greenhouse gases, environmental impacts, environmental justice impacts, and public health impacts. The regulations shall include criteria to exclude plastic recycling technologies that produce significant amounts of hazardous waste.
(ab)Recycling rate means the percentage, overall and by category, of covered material sold, offered for sale, distributed, or imported in the state that is ultimately recycled. The recycling rate shall be calculated as the amount of covered material that is recycled in a given year divided by the total amount of covered material disposed of, as defined in subdivision (b) of Section 40192, and the amount of covered material recycled, unless and until the department adopts a new methodology for calculating the recycling rate by regulation.
(ac)Recycling service provider means a solid waste enterprise that provides solid waste handling services on behalf of a local jurisdiction.
(ad)Responsible end market means an entity that uses recycled covered material for the manufacturing of products when the manufacturing, including the disposal of contaminates, is conducted in a way that benefits the environment and minimizes risks to public health and worker health and safety.
(ae)(1)Retailer or wholesaler means the person or entity who sells covered material in the state to purchasers or offers to purchasers the covered material in the state through any means, including, but not limited to, any of the following:
(A)Remote offering, including sales outlets or catalogs.
(B)Electronically through the internet.
(C)Telephone.
(D)Mail.
(E)Direct sales.
(2)A person who sells covered material as a third-party seller using an online marketplace as described in paragraph (3) shall be considered the retailer or wholesaler for purposes of such transactions. The owner or operator of the online marketplace shall not be considered the retailer or wholesaler for such sales.
(3)For purposes of this subdivision, online marketplace means a consumer-directed, electronically accessed platform in which all of the following are true:
(A)The platform includes features that enable third-party sellers to sell consumer products directly to consumers in the state without the owner or operator of the platform involved in the transaction other than by providing order processing, payment, storage, shipping, or delivery services.
(B)Third-party sellers use the features described in subparagraph (A) to sell directly to consumers in the state, with title to the consumer product passing from the third-party sellers directly to consumers and not being held by the owner or operator of the online marketplace at any point during the transaction, including upon receipt of the order and throughout the order fulfillment process.
(C)Except as provided by subparagraph (E), the owner or operator of the platform does not directly or indirectly control the covered material used in packaging and shipping of a consumer product in this state.
(D)The person or entity operating the platform has a contractual or similar relationship with consumers governing their use of the platform to purchase consumer products.
(E)Third-party sellers agree, pursuant to the platforms terms and conditions or other enforceable agreement, that they will not use the platform to offer for sale, sell, or distribute into the state covered material that does not meet the requirements of this chapter.
(af)Reusable or refillable or reuse or refill, in regard to packaging or food serviceware, means either of the following:
(1)For packaging or food serviceware that is reused or refilled by a producer, it satisfies all of the following:
(A)Explicitly designed and marketed to be used multiple times for the same product, or for another purposeful packaging use in a supply chain.
(B)Designed for durability to function properly in its original condition for multiple uses.
(C)Supported by adequate infrastructure to ensure the packaging or food serviceware can be conveniently and safely reused or refilled for multiple cycles.
(D)Repeatedly recovered, inspected, and repaired, if necessary, and reissued into the supply chain for reuse or refill for multiple cycles.
(2)For packaging or food serviceware that is reused or refilled by a consumer, it satisfies all of the following:
(A)Explicitly designed and marketed to be used multiple times for the same product.
(B)Designed for durability to function properly in its original condition for multiple uses.
(C)Supported by adequate and convenient availability of and retail infrastructure for bulk or large format packaging that may be refilled to ensure the packaging or food serviceware can be conveniently and safely reused or refilled by the consumer multiple times.
(ag)Right-size or right-sizing means reducing the amount of material used to package an item by reducing unnecessary space or eliminating unnecessary components of the packaging.
(ah)Rural area has the same meaning as defined in Section 50101 of the Health and Safety Code.
(ai)Single use means conventionally disposed of after a single use or not sufficiently durable or washable to be, or not intended to be, reusable or refillable.
(aj)Source reduction means the reduction in the amount of covered material created by a producer relative to a baseline established pursuant to subdivision (b) of Section 42057. Methods of source reduction include, but are not limited to, shifting covered material to reusable or refillable packaging or a reusable product or eliminating unnecessary packaging. Source reduction does not include either of the following:
(1)Replacing a recyclable or compostable covered material with a nonrecyclable or noncompostable covered material or a covered material that is less likely to be recycled or composted.
(2)Switching from virgin covered material to postconsumer recycled content.
(ak)Source reduction plan means the plan prepared as part of the PRO plan in accordance with Section 42057.
(al)Unexpended funds means moneys in a PROs accounts that the organization is not already obligated to pay pursuant to a contract, claim, or similar mechanism. Unexpended funds excludes the California circular economy administrative fees.
SEC. 2.Section 42060 of the Public Resources Code is amended to read:42060.(a)By January 1, 2025, the department shall adopt regulations necessary to implement and enforce this chapter and to ensure that the requirements of this chapter and in particular the requirements established in Section 42050 and the policy goal established in Section 41780.01 as it relates to covered material are met. The regulations shall include, but not be limited to, all of the following:
(1)Any regulations necessary to ensure the PRO fully funds plan implementation, including fully funding the budget. This shall include the costs incurred by a local jurisdiction or a local jurisdictions recycling service providers to implement this chapter, including, but not limited to, the cost of consumer education and of collection, including the cost of containers where relevant, as well as the processing, storage, and transportation of covered materials. Costs may vary based on population density or other relevant factors and shall allow local jurisdictions to protect ratepayers from increased costs associated with the processing and marketing of covered material.
(2)(A)Establish a mandatory process for producers, retailers, and wholesalers, or a PRO operating on behalf of a producer, retailer, or wholesaler, to register with and report to the department.
(B)The process shall include establishing appropriate timelines to begin regular reporting following the adoption of the regulations. The department shall consider, along with any other factors the department deems appropriate, the amount of information being reported in developing the timelines.
(C)(i)Data requests by the department shall be consistent with the covered material categories established and posted on the departments internet website pursuant to subdivision (a) of Section 42061.
(ii)To the maximum extent feasible, the department shall seek to use records and information that the local jurisdiction, producer, retailer, wholesaler, or PRO already maintains, in order to minimize the burden imposed by the reporting and recordkeeping requirements while still enabling the department to determine compliance with this chapter.
(D)The department shall, to the extent feasible, make the reporting consistent with other recognized third-party reporting systems used by producers or other packaging extended producer responsibility programs.
(E)Market-sensitive trade secret data received by the department pursuant to this chapter shall be held confidentially by the department as required by Section 40062 and any implementing regulations, provided that the furnisher of the data complies with the requirements set forth in subdivision (b) of Section 40062 and any implementing regulations for identifying the information claimed to be a trade secret.
(F)The department shall create an online registration form to facilitate submitting reports pursuant to this subdivision. To the extent permissible under applicable law, the department may contract with an independent third-party online reporting system with recognized standards for waste characterization, source reduction, and recycling.
(3)(A)The department shall establish a process to identify covered material that, while determined to be single use for purposes of this chapter, presents unique challenges in complying with this chapter. The department may exempt covered material identified pursuant to this subparagraph from this chapter.
(B)For any covered material identified as presenting unique challenges and exempted from this chapter under subparagraph (A), the department may at any point develop a plan to phase the covered material into the requirements of this chapter.
(4)The department shall establish a process to identify covered material that cannot comply with this chapter for health and safety reasons, or because it is unsafe to recycle. The department may exempt that covered material from this chapter.
(5)The department shall establish a process to exempt from the requirements of this chapter, except for the requirements of subdivision (b) of Section 42050, small producers, small retailers, and small wholesalers based on size, revenue, number of retail locations, and market share, as follows:
(A)Subject to subparagraph (B), the department shall exempt producers, retailers, or wholesalers that, in the most recent calendar year, had gross sales of less than one million dollars ($1,000,000) in the state.
(B)If the department determines that exempting a particular small producer, small retailer, or small wholesaler pursuant to subparagraph (A) would hinder the ability of a type of covered material or covered material category from complying with the requirements of this chapter, the department may determine that the particular small producer, small retailer, or small wholesaler will not be exempted from the requirements of this chapter.
(6)(A)The department shall include mechanisms necessary to reduce the amount of covered material entering the environment, in accordance with the regulations adopted pursuant to this section.
(B)The department may consider reductions of covered material achieved by a producer before the effective date of the regulations toward a producers compliance with this chapter if the producer can demonstrate to the satisfaction of the department that the producer reduced the covered material in a manner consistent with this chapter and actions taken to comply with Chapter 5.5 (commencing with Section 42300).
(C)In calculating the reductions necessary to achieve the requirements adopted pursuant to subdivision (a), the department shall consider source reduction achieved pursuant to Section 42057.
(7)The department shall establish a process to require coordination between a PRO and producer that is not a participant of the PROs approved plan and between multiple PROs as necessary. This includes determining how much each PRO shall charge producers of plastic covered material in order to prorate the funding as necessary to raise the revenue required by Section 42064.
(8)The department shall establish a methodology and process to calculate, to the extent feasible, an annual recycling rate defined in subdivision (ab) of Section 42041.
(b)The department may adopt regulations to establish standards for the PRO regarding responsible end markets for covered material and to establish criteria that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety.
(c)(1)The department shall ensure that any regulations adopted pursuant to this chapter consider guidelines and do not conflict with regulations issued by the United States Food and Drug Administration and the United States Department of Agriculture and consider requirements imposed by other California state agencies.
(2)Neither the department nor the PRO shall impose any requirement, including, but not limited to, a recycled content requirement, in direct conflict with a federal law or regulation, including, but not limited to, laws or regulations covering tamper-evident packaging pursuant to Section 211.132 of Title 21 of the Code of Federal Regulations, laws or regulations covering child-resistant packaging pursuant to Part 1700 (commencing with Section 1700.1) of Subchapter E of Chapter II of Title 16 of the Code of Federal Regulations, regulations, rules, or guidelines issued by the United States Department of Agriculture or the United States Food and Drug Administration relevant to packaging agricultural commodities, requirements for microbial contamination, structural integrity, or safety of packaging under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 301 et seq.), 21 U.S.C. Sec. 2101 et seq., the federal FDA Food Safety Modernization Act (21 U.S.C. Sec. 2201 et seq.), the federal Federal Poultry Products Inspection Act (21 U.S.C. Sec. 451 et seq.), the Federal Meat Inspection Act (21 U.S.C. Sec. 601 et seq.), or the federal Egg Products Inspection Act (21 U.S.C. Sec. 1031 et seq.). Neither the department nor a PRO shall impose a postconsumer recycled content requirement for covered material for fresh produce.
(d)In developing the regulations, the department shall consider relevant information on reduction programs and approaches in other states, localities, and nations, including, but not limited to, the European Union, India, Costa Rica, China, Chile, and Canada, and international standards, including, but not limited to, ISO 18602.
(e)In adopting regulations pursuant to this section, the department shall ensure the regulations, and activities conducted in accordance with the regulations, avoid or minimize disproportionate impacts to disadvantaged or low-income communities or rural areas.
SEC. 3.Section 42070 of the Public Resources Code is amended to read:42070.(a)In implementing this chapter, the department shall establish a producer responsibility advisory board for the purpose of identifying barriers and solutions to creating a circular economy consistent with this chapter and advising the department, producers, and producer responsibility organizations in the implementation of this chapter. The advisory board shall be composed of 13 voting and 3 nonvoting members as provided in the following categories, who shall be appointed by the director:
(1)One representative nominated by a statewide city association.
(2)One representative nominated by a statewide rural county association.
(3)One representative from an environmental protection organization.
(4)One representative from an ocean advocacy organization.
(5)One representative from an environmental justice organization.
(6)One representative from a disadvantaged or low-income community or rural area.
(7)One representative of a materials recovery facility located within the State of California.
(8)One representative of a recycling service provider, or a representative of an association of recycling service providers.
(9)One representative from the composting industry operating in the State of California.
(10)A representative of each of four manufacturers of covered materials of different material types using postconsumer recycled content, one of which produces third-party certified compostable covered material. These board members shall not be a board member of a PRO.
(11)One representative nominated by a statewide association representing the retail sector. This board member shall be a nonvoting member.
(12)One representative nominated by a statewide association representing the grocery sector. This board member shall be a nonvoting member.
(13)One representative of a producer responsibility organization. This board member shall be a nonvoting member.
(b)The director shall appoint all members to the advisory board on or before July 1, 2023. The director shall appoint the members for staggered three-year terms, and may reappoint a member for additional terms. At its first meeting, the advisory board shall elect a chair who will serve as chair for the calendar year, and who may be reelected as chair.
(c)The advisory board shall meet at least once per year by the call of the chair or by request of a majority of the voting members. The department shall provide administrative support to the advisory board.
(d)The advisory board meetings shall be open to the public and are subject to the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code).
(e)(1)The advisory board shall provide the PRO and the department, and a third party conducting or updating a needs assessment if applicable, with initial recommendations regarding all of the following:
(A)Key barriers and possible solutions to advance the objectives of increasing recovery of covered materials and decreasing the leakage of plastic into the environment no later than one year after the advisory boards initial meeting. This shall include key barriers and possible solutions related to available and viable responsible end markets and market development for covered materials.
(B)Key barriers and possible solutions to advance the objectives of reducing the production of virgin material for covered material and reducing the landfilling of covered material.
(C)Key barriers and possible pathways toward reusable packaging and products and refillable systems.
(D)Key barriers and other considerations needed for covered material to meet the requirements of this chapter.
(E)How a PRO will cover the costs incurred by local jurisdictions and local jurisdictions recycling service providers associated with implementing this chapter and managing the material covered in a plan.
(2)The department shall consider the recommendations provided under paragraph (1) as it evaluates which specific actions may be appropriate to advance the objectives of this chapter.
(f)The advisory board may take any of the following actions through written recommendations as the advisory board deems appropriate:
(1)Advise the department, producers, or PROs on technical matters in support of the goals of this chapter to create a circular economy and reduce covered material pollution.
(2)Advise the department in the adoption of the regulations required by this chapter.
(3)Advise the department, producers, or PROs on any other pertinent matters in implementing this chapter, as determined by the advisory board or department.
(g)Pursuant to Section 42067, the advisory board shall review any needs assessment or revised needs assessment submitted to it within 90 calendar days of receipt of the assessment.
(h)Within 60 calendar days of receiving a plan submitted pursuant to subdivision (a) of Section 42051.2, the advisory board shall review the plan and offer written comments, which may include suggested modifications to the plan.
(i)The advisory board shall submit written recommendations to the department only if a majority of the advisory boards voting members endorse the recommendation. One or more advisory board members who do not endorse the recommendation may submit a separate written recommendation to the department reflecting the minority opinion or opinions.
(j)(1)If an affected entity asserts that specific actions taken by the PRO, a producer, or an entity under contract with the PRO are not consistent with paragraph (3) or (4) of subdivision (c) of, or paragraph (2) of subdivision (i) of, Section 42051.1 and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements, the affected entity may bring the concern and evidence supporting this assertion to the advisory board for discussion and ask the advisory board to conduct a preliminary evaluation of the information. If the evaluation demonstrates that specific actions are disrupting or otherwise adversely affecting existing operations, the advisory board shall offer a recommendation for resolution within 90 days of submission of the request for a preliminary evaluation.
(2)After the advisory board offers its recommendation pursuant to paragraph (1), either party may initiate nonbinding arbitration, arbitration by a neutral arbitrator with the consent of all parties, consistent with procedures set forth in Title 9 (commencing with Section 1280) of Part 3 of the Code of Civil Procedure, and without prejudice to seeking judicial relief, to determine whether specific actions taken to meet the requirements of this chapter are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements. by the PRO, a producer, or an entity under contract with the PRO are not consistent with paragraph (3) or (4) of subdivision (c) of, or paragraph (2) of subdivision (i) of, Section 42051.1 and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements. The arbiter shall consider the information presented to the advisory board and any other information provided to the arbiter by the parties.
(3)If the arbiter determines pursuant to paragraph (2) that specific actions are disruptive or otherwise have an adverse effect, taken by the PRO, a producer, or an entity under contract with the PRO are not consistent with paragraph (3) or (4) of subdivision (c) of, or paragraph (2) of subdivision (i) of, Section 42051.1 and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements, the arbiter may order actions, to the extent feasible, to remedy the disruption or adverse effect, including, but not limited to, requiring a change to the producer responsibility plan causing the disruption or adverse effect. The arbitrators decision in a nonbinding arbitration is final unless within 30 days after the arbitrator delivers the decision to the advisory board a party requests that the department conduct a de novo adjudicative proceeding. The
(4) The department shall include any actions taken pursuant to this subdivision in the subsequent report submitted to the Legislature pursuant to subdivision (a) of Section 42065.
For purposes of this chapter, the following definitions apply:
(a)Advisory board means the producer responsibility advisory board established pursuant to Section 42070.
(b)Bulk or large format packaging means packaging for a large amount of a product in a large packaging, thereby offsetting the need for multiple smaller packaging units for the same amount of product.
(c)California circular economy administrative fee means the fee imposed by the department pursuant to Section 42053.5.
(d)Concentrate or concentration means reducing the amount of packaging needed for a product by reformulating the product to allow for smaller quantities of the product to be used for the same purpose as the previous, larger quantity.
(e)(1)Covered material means both of the following:
(A)Single-use packaging that is routinely recycled, disposed of, or discarded after its contents have been used or unpackaged, and typically not refilled or otherwise reused by the producer.
(B)Plastic single-use food service ware, serviceware, including, but not limited to, plastic-coated paper or plastic-coated paperboard, paper or paperboard with plastic intentionally added during the manufacturing process, and multilayer flexible material. For purposes of this subparagraph, single-use food service ware serviceware includes both of the following:
(i)Trays, plates, bowls, clamshells, lids, cups, utensils, stirrers, hinged or lidded containers, and straws.
(ii)Wraps or wrappers and bags sold to food service establishments.
(2)Notwithstanding paragraph (1), covered material does not include any of the following:
(A)Packaging used for any of the following products:
(i)Medical products and products defined as devices or prescription drugs, as specified in the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Secs. 321(g), 321(h), and 353(b)(1)).
(ii)Drugs that are used for animal medicines, including, but not limited to, parasiticide products for animals.
(iii)Products intended for animals that are regulated as animal drugs, biologics, parasiticides, medical devices, or diagnostics used to treat, or administered to, animals under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 301 et seq.), the federal Virus-Serum-Toxin Act (21 U.S.C. Sec. 151 et seq.), or the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.).
(iv)Infant formula, as defined in Section 321(z) of Title 21 of the United States Code.
(v)Medical food, as defined in Section 360ee(b)(3) of Title 21 of the United States Code.
(vi)Fortified oral nutritional supplements used for persons who require supplemental or sole source nutrition to meet nutritional needs due to special dietary needs directly related to cancer, chronic kidney disease, diabetes, malnutrition, or failure to thrive, as those terms are defined as by the International Classification of Diseases, Tenth Revision, or other medical conditions as determined by the department.
(B)Packaging used to contain products regulated by the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.).
(C)Plastic packaging containers that are used to contain and ship products that are classified for transportation as dangerous goods or hazardous materials under Part 178 (commencing with Section 178.0) of Subchapter C of Chapter I of Subtitle B of Title 49 of the Code of Federal Regulations.
(D)Packaging used to contain hazardous or flammable products regulated by the 2012 federal Occupational Safety and Health Administration Hazard Communications Standard (29 C.F.R. 1910.1200).
(E)Beverage containers subject to the California Beverage Container Recycling and Litter Reduction Act (Division 12.1 (commencing with Section 14500)).
(F)Packaging used for the long-term protection or storage of a product that has a lifespan of not less than five years, as determined by the department.
(G)Packaging associated with products covered under the architectural paint recovery program established pursuant to Chapter 5 (commencing with Section 48700) of Part 7.
(H)(i)Covered material for which the producer demonstrates to the department that the covered material meets all of the following criteria:
(I)The covered material is not collected through a residential recycling collection service.
(II)The covered material does not undergo separation from other materials at a commingled recycling processing facility.
(III)The covered material is recycled at a responsible end market.
(IV)The material has demonstrated a recycling rate of 65 percent for three consecutive years prior to before January 1, 2027, and on and after that date demonstrates a recycling rate at or over 70 percent annually, as demonstrated to the department every two years.
(ii)If only a portion of the covered material sold in or into the state by a producer meets the criteria of clause (i), only the portion of the covered material that meets the criteria of clause (i) is exempt from this chapter and any portion that does not meet the criteria is a covered material for purposes of this chapter.
(f)Covered material category means a category that includes covered material of a similar type and form, as determined by the department.
(g)Curbside collection means a program that includes the collection of material, including, but not limited to, covered materials, by a local jurisdiction or recycling or composting service provider under contract with a local jurisdiction.
(h)Department means the Department of Resources Recycling and Recovery.
(i)Disadvantaged community means an area identified by the California Environmental Protection Agency pursuant to Section 39711 of the Health and Safety Code or an area identified as a disadvantaged unincorporated community pursuant to Section 65302.10 of the Government Code.
(j)Eliminate or elimination, with respect to source reduction, means the removal of a plastic component from a covered material without replacing that component with a nonplastic component.
(k)Expanded polystyrene means blown polystyrene and expanded or extruded foams that are thermoplastic petrochemical materials utilizing using a styrene monomer and processed by any technique or techniques, including, but not limited to, fusion of polymer spheres (expandable bead polystyrene), injection molding, foam molding, and extrusion-blow molding (extruded foam polystyrene).
(l)Local jurisdiction means a city, county, city and county, regional agency formed pursuant to Chapter 5 (commencing with Section 6500) of Division 7 of Title 1 of the Government Code or Article 3 (commencing with Section 40970) of Chapter 1 of Part 2, or special district that provides solid waste collection services.
(m)Lightweighting means reducing the weight or amount of material used in a specific packaging or food service ware serviceware without functionally changing the packaging or food service ware. serviceware. Lightweighting does not include changes that result in a recyclable or compostable covered material becoming nonrecyclable or noncompostable or less likely to be recycled or composted.
(n)Low-income community means an area with household incomes at or below 80 percent of the statewide median income or with household incomes at or below the threshold designated as low income by the Department of Housing and Community Developments list of state income limits adopted pursuant to Section 50093 of the Health and Safety Code.
(o)Malus fee means a charge imposed by a PRO on a participant producer for a covered material due to the adverse environmental or public health impacts of the covered material.
(p)Materials recovery facility or MRF means a recycling facility that receives recyclable material, including, but not limited to, any covered material, for mechanical or manual sorting into specification-grade commodities for processing or for sale to a broker or end market.
(q)Needs assessment means a needs assessment prepared pursuant to Section 42067.
(r)Optimize or optimization means limiting the amount of covered material used in packaging by meeting product or packaging needs with minimal material. This includes, but is not limited to, eliminating unnecessary components, right-sizing, concentrating, and using bulk or large format packaging.
(s)Packaging means any separable and distinct material component used for the containment, protection, handling, delivery, or presentation of goods by the producer for the user or consumer, ranging from raw materials to processed goods. Packaging includes, but is not limited to, all of the following:
(1)Sales packaging or primary packaging intended to provide the user or consumer the individual serving or unit of the product and most closely containing the product, food, or beverage.
(2)Grouped packaging or secondary packaging intended to bundle, sell in bulk, brand, or display the product.
(3)Transport packaging or tertiary packaging intended to protect the product during transport.
(4)Packaging components and ancillary elements integrated into packaging, including ancillary elements directly hung onto or attached to a product and that perform a packaging function, except both of the following:
(A)An element of the packaging or food service ware serviceware with a de minimis weight or volume, which is not an independent plastic component, as determined by the department.
(B)A component or element that is an integral part of the product, if all components or elements of the product are intended to be consumed or disposed of together.
(t)Plastic means a synthetic or semisynthetic material chemically synthesized by the polymerization of organic substances that can be shaped into various rigid and flexible forms, and includes coatings and adhesives. Plastic includes, without limitation, polyethylene terephthalate (PET), high density polyethylene (HDPE), polyvinyl chloride (PVC), low density polyethylene (LDPE), polypropylene (PP), polystyrene (PS), polylactic acid (PLA), and aliphatic biopolyesters, such as polyhydroxyalkanoate (PHA) and polyhydroxybutyrate (PHB). Plastic does not include natural rubber or naturally occurring polymers such as proteins or starches.
(u)Plastic component means any single piece of covered material made partially or entirely of plastic. A plastic component may constitute the entirety of the covered material or a separate or separable piece of the covered material.
(v)Processing means to sort, segregate, break or flake, and clean material to prepare it to meet the specification for sale to a responsible end market. market in which the recovery of materials and the disposal of contaminants is conducted in a way that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety.
(w)(1)Producer means a person who manufactures a product that uses covered material and who owns or is the licensee of the brand or trademark under which the product is used in a commercial enterprise, sold, offered for sale, or distributed in the state.
(2)If there is no person in the state who is the producer for purposes of paragraph (1), the producer of the covered material is the owner or, if the owner is not in the state, the exclusive licensee of a brand or trademark under which the covered product using the covered material is used in a commercial enterprise, sold, offered for sale, or distributed in the state. For purposes of this subdivision, a licensee is a person holding the exclusive right to use a trademark or brand in the state in connection with the manufacture, sale, or distribution of the product packaged in or made from the covered material.
(3)If there is no person in the state who is the producer for purposes of paragraph (1) or (2), the producer of the covered material is the person who sells, offers for sale, or distributes the product that uses the covered material in or into the state.
(4)Producer does not include a person who produces, harvests, and packages an agricultural commodity on the site where the agricultural commodity was grown or raised.
(5)For purposes of this chapter, the sale of covered materials shall be deemed to occur in the state if the covered materials are delivered to the purchaser in the state.
(x)Producer responsibility organization or PRO means an organization that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code of 1986 and is formed for the purpose of implementing a plan to meet the requirements of this chapter.
(y)Producer responsibility plan or plan, unless context requires otherwise, means the plan produced by a PRO, or by a producer that chooses to assume responsibility to comply with this chapter individually, and submitted to the advisory board and department pursuant to Section 42051.1.
(z)Rate of inbound contamination means the amount of nonrecyclable or noncompostable materials arriving at a materials recovery facility or other recycling or composting facility.
(aa)(1)Recycle or recycling means the process of collecting, sorting, cleansing, treating, and reconstituting materials that would otherwise ultimately be disposed of onto land or into water or the atmosphere, and returning them to, or maintaining them within, the economic mainstream in the form of recovered material for new, reused, or reconstituted products, including compost, that meet the quality standards necessary to be used in the marketplace.
(2)Recycle or recycling does not include any of the following:
(A)Combustion.
(B)Incineration.
(C)Energy generation.
(D)Fuel production, except for anaerobic digestion of source separated organic materials.
(E)Other forms of disposal.
(3)To be considered recycled, covered material shall be sent to a responsible end market.
(4)(A)The department may adopt regulations to define guidelines and verification requirements for the PRO and for any producers complying with this chapter pursuant to paragraph (2) of subdivision (b) of Section 42051, for covered material shipped out of state and exported to other countries for recycling, including processing requirements, requirements and contamination standards, or to otherwise implement this paragraph.
(B)For any mixture of plastic waste exported to another country, the PRO or producer shall certify to the department that the processes and recycling technologies used meet both of the following requirements, as determined by the department:
(i)The plastic waste is a mixture of plastic types consisting only of one or more of polyethylene, polypropylene, or polyethylene terephthalate, and the export is destined for separate recycling of each material.
(ii)The plastic waste export is not prohibited by an applicable law or treaty of the destination jurisdiction, and the import of the plastic waste into the destination jurisdiction will be conducted in accordance with all applicable laws and treaties of that destination jurisdiction.
(C)For any mixture of plastic waste exported to other states or countries, the PRO or producer shall certify to the department that the recycling technology used meets the requirements of this subdivision.
(D)In meeting the requirements of subparagraphs (B) and (C), the PRO or producer shall provide documentation necessary to verify this certification and shall make the certification under penalty of perjury.
(5)The departments regulations shall encourage recycling that minimizes generation of hazardous waste, generation of greenhouse gases, environmental impacts, environmental justice impacts, and public health impacts. The regulations shall include criteria to exclude plastic recycling technologies that produce significant amounts of hazardous waste.
(ab)Recycling rate means the percentage, overall and by category, of covered material sold, offered for sale, distributed, or imported in the state that is ultimately recycled. The recycling rate shall be calculated as the amount of covered material that is recycled in a given year divided by the total amount of covered material disposed of, as defined in subdivision (b) of Section 40192, and the amount of covered material recycled, unless and until the department adopts a new methodology for calculating the recycling rate by regulation.
(ac)Recycling service provider means a solid waste enterprise that provides solid waste handling services on behalf of a local jurisdiction.
(ad)Responsible end market means a materials market in which the recycling and recovery of materials or the disposal of contaminants an entity that uses recycled covered material for the manufacturing of products when the manufacturing, including the disposal of contaminates, is conducted in a way that benefits the environment and minimizes risks to public health and worker health and safety. The department may adopt regulations to identify responsible end markets and to establish criteria regarding benefits to the environment and minimizes risks to public health and worker health and safety.
(ae)(1)Retailer or wholesaler means the person or entity who sells covered material in the state to purchasers or offers to purchasers the covered material in the state through any means, including, but not limited to, any of the following:
(A)Remote offering, including sales outlets or catalogs.
(B)Electronically through the internet.
(C)Telephone.
(D)Mail.
(E)Direct sales.
(2)A person who sells covered material as a third-party seller using an online marketplace as described in paragraph (3) shall be considered the retailer or wholesaler for purposes of such transactions. The owner or operator of the online marketplace shall not be considered the retailer or wholesaler for such sales.
(3)For purposes of this subdivision, online marketplace means a consumer-directed, electronically accessed platform in which all of the following are true:
(A)The platform includes features that enable third-party sellers to sell consumer products directly to consumers in the state without the owner or operator of the platform involved in the transaction other than by providing order processing, payment, storage, shipping, or delivery services.
(B)Third-party sellers use the features described in subparagraph (A) to sell directly to consumers in the state, with title to the consumer product passing from the third-party sellers directly to consumers and not being held by the owner or operator of the online marketplace at any point during the transaction, including upon receipt of the order and throughout the order fulfillment process.
(C)Except as provided by subparagraph (E), the owner or operator of the platform does not directly or indirectly control the covered material used in packaging and shipping of a consumer product in this state.
(D)The person or entity operating the platform has a contractual or similar relationship with consumers governing their use of the platform to purchase consumer products.
(E)Third-party sellers agree, pursuant to the platforms terms and conditions or other enforceable agreement, that they will not use the platform to offer for sale, sell, or distribute into the state covered material that does not meet the requirements of this chapter.
(af)Reusable or refillable or reuse or refill, in regard to packaging or food service ware, serviceware, means either of the following:
(1)For packaging or food service ware serviceware that is reused or refilled by a producer, it satisfies all of the following:
(A)Explicitly designed and marketed to be utilized used multiple times for the same product, or for another purposeful packaging use in a supply chain.
(B)Designed for durability to function properly in its original condition for multiple uses.
(C)Supported by adequate infrastructure to ensure the packaging or food service ware serviceware can be conveniently and safely reused or refilled for multiple cycles.
(D)Repeatedly recovered, inspected, and repaired, if necessary, and reissued into the supply chain for reuse or refill for multiple cycles.
(2)For packaging or food service ware serviceware that is reused or refilled by a consumer, it satisfies all of the following:
(A)Explicitly designed and marketed to be utilized used multiple times for the same product.
(B)Designed for durability to function properly in its original condition for multiple uses.
(C)Supported by adequate and convenient availability of and retail infrastructure for bulk or large format packaging that may be refilled to ensure the packaging or food service ware serviceware can be conveniently and safely reused or refilled by the consumer multiple times.
(ag)Right-size or right-sizing means reducing the amount of material used to package an item by reducing unnecessary space or eliminating unnecessary components of the packaging.
(ah)Rural area has the same meaning as defined in Section 50101 of the Health and Safety Code.
(ai)Single use means conventionally disposed of after a single use or not sufficiently durable or washable to be, or not intended to be, reusable or refillable.
(aj)Source reduction means the reduction in the amount of covered material created by a producer relative to a baseline established pursuant to subdivision (b) of Section 42057. Methods of source reduction include, but are not limited to, shifting covered material to reusable or refillable packaging or a reusable product or eliminating unnecessary packaging. Source reduction does not include either of the following:
(1)Replacing a recyclable or compostable covered material with a nonrecyclable or noncompostable covered material or a covered material that is less likely to be recycled or composted.
(2)Switching from virgin covered material to postconsumer recycled content.
(ak)Source reduction plan means the plan prepared as part of the PRO plan in accordance with Section 42057.
(al)Unexpended funds means moneys in a PROs accounts that the organization is not already obligated to pay pursuant to a contract, claim, or similar mechanism. Unexpended funds excludes the California circular economy administrative fees.
SEC. 2.Section 42060 of the Public Resources Code is amended to read:42060.(a)By January 1, 2025, the department shall adopt regulations necessary to implement and enforce this chapter and to ensure that the requirements of this chapter and in particular the requirements established in Section 42050 and the policy goal established in Section 41780.01 as it relates to covered material are met. The regulations shall include, but not be limited to, all of the following:
(1)Any regulations necessary to ensure the PRO fully funds plan implementation, including fully funding the budget. This shall include the costs incurred by a local jurisdiction or a local jurisdictions recycling service providers to implement this chapter, including, but not limited to, the cost of consumer education and of collection, including the cost of containers where relevant, as well as the processing, storage, and transportation of covered materials. Costs may vary based on population density or other relevant factors and shall allow local jurisdictions to protect ratepayers from increased costs associated with the processing and marketing of covered material.
(2)(A)Establish a mandatory process for producers, retailers, and wholesalers, or a PRO operating on behalf of a producer, retailer, or wholesaler, to register with and report to the department.
(B)The process shall include establishing appropriate timelines to begin regular reporting following the adoption of the regulations. The department shall consider, along with any other factors the department deems appropriate, the amount of information being reported in developing the timelines.
(C)(i)Data requests by the department shall be consistent with the covered material categories established and posted on the departments internet website pursuant to subdivision (a) of Section 42061.
(ii)To the maximum extent feasible, the department shall seek to use records and information that the local jurisdiction, producer, retailer, wholesaler, or PRO already maintains, in order to minimize the burden imposed by the reporting and recordkeeping requirements while still enabling the department to determine compliance with this chapter.
(D)The department shall, to the extent feasible, make the reporting consistent with other recognized third-party reporting systems used by producers or other packaging extended producer responsibility programs.
(E)Market-sensitive trade secret data received by the department pursuant to this chapter shall be held confidentially by the department as required by Section 40062 and any implementing regulations, provided that the furnisher of the data complies with the requirements set forth in subdivision (b) of Section 40062 and any implementing regulations for identifying the information claimed to be a trade secret.
(F)The department shall create an online registration form to facilitate submitting reports pursuant to this subdivision. To the extent permissible under applicable law, the department may contract with an independent third-party online reporting system with recognized standards for waste characterization, source reduction, and recycling.
(3)(A)The department shall establish a process to identify covered material that, while determined to be single use for purposes of this chapter, presents unique challenges in complying with this chapter. The department may exempt covered material identified pursuant to this subparagraph from this chapter.
(B)For any covered material identified as presenting unique challenges and exempted from this chapter under subparagraph (A), the department may at any point develop a plan to phase the covered material into the requirements of this chapter.
(4)The department shall establish a process to identify covered material that cannot comply with this chapter for health and safety reasons, or because it is unsafe to recycle. The department may exempt that covered material from this chapter.
(5)The department shall establish a process to exempt from the requirements of this chapter, except for the requirements of subdivision (b) of Section 42050, small producers, small retailers, and small wholesalers based on size, revenue, number of retail locations, and market share, as follows:
(A)Subject to subparagraph (B), the department shall exempt producers, retailers, or wholesalers that, in the most recent calendar year, had gross sales of less than one million dollars ($1,000,000) in the state.
(B)If the department determines that exempting a particular small producer, small retailer, or small wholesaler pursuant to subparagraph (A) would hinder the ability of a type of covered material or covered material category from complying with the requirements of this chapter, the department may determine that the particular small producer, small retailer, or small wholesaler will not be exempted from the requirements of this chapter.
(6)(A)The department shall include mechanisms necessary to reduce the amount of covered material entering the environment, in accordance with the regulations adopted pursuant to this section.
(B)The department may consider reductions of covered material achieved by a producer before the effective date of the regulations toward a producers compliance with this chapter if the producer can demonstrate to the satisfaction of the department that the producer reduced the covered material in a manner consistent with this chapter and actions taken to comply with Chapter 5.5 (commencing with Section 42300).
(C)In calculating the reductions necessary to achieve the requirements adopted pursuant to subdivision (a), the department shall consider source reduction achieved pursuant to Section 42057.
(7)The department shall establish a process to require coordination between a PRO and producer that is not a participant of the PROs approved plan and between multiple PROs as necessary. This includes determining how much each PRO shall charge producers of plastic covered material in order to prorate the funding as necessary to raise the revenue required by Section 42064.
(8)The department shall establish a methodology and process to calculate, to the extent feasible, an annual recycling rate defined in subdivision (ab) of Section 42041.
(b)The department may adopt regulations to establish standards for the PRO regarding responsible end markets for covered material and to establish criteria that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety.
(b)(c)(1)The department shall ensure that any regulations adopted pursuant to this chapter consider guidelines and do not conflict with regulations issued by the United States Food and Drug Administration and the United States Department of Agriculture and consider requirements imposed by other California state agencies.
(2)Neither the department nor the PRO shall impose any requirement, including, but not limited to, a recycled content requirement, in direct conflict with a federal law or regulation, including, but not limited to, laws or regulations covering tamper-evident packaging pursuant to Section 211.132 of Title 21 of the Code of Federal Regulations, laws or regulations covering child-resistant packaging pursuant to Part 1700 (commencing with Section 1700.1) of Subchapter E of Chapter II of Title 16 of the Code of Federal Regulations, regulations, rules, or guidelines issued by the United States Department of Agriculture or the United States Food and Drug Administration relevant to packaging agricultural commodities, requirements for microbial contamination, structural integrity, or safety of packaging under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 301 et seq.), 21 U.S.C. Sec. 2101 et seq., the federal FDA Food Safety Modernization Act (21 U.S.C. Sec. 2201 et seq.), the federal Poultry Products Inspection Act (21 U.S.C. Sec. 451 et seq.), the Federal Meat Inspection Act (21 U.S.C. Sec. 601 et seq.), or the federal Egg Products Inspection Act (21 U.S.C. Sec. 1031 et seq.). Neither the department nor a PRO shall impose a postconsumer recycled content requirement for covered material for fresh produce.
(c)(d)In developing the regulations, the department shall consider relevant information on reduction programs and approaches in other states, localities, and nations, including, but not limited to, the European Union, India, Costa Rica, China, Chile, and Canada, and international standards, including, but not limited to, ISO 18602.
(d)(e)In adopting regulations pursuant to this section, the department shall ensure the regulations, and activities conducted in accordance with the regulations, avoid or minimize disproportionate impacts to disadvantaged or low-income communities or rural areas.
SEC. 3.Section 42070 of the Public Resources Code is amended to read:42070.(a)In implementing this chapter, the department shall establish a producer responsibility advisory board for the purpose of identifying barriers and solutions to creating a circular economy consistent with this chapter and advising the department, producers, and producer responsibility organizations in the implementation of this chapter. The advisory board shall be composed of 13 voting and 3 nonvoting members as provided in the following categories, who shall be appointed by the director:
(1)One representative nominated by a statewide city association.
(2)One representative nominated by a statewide rural county association.
(3)One representative from an environmental protection organization.
(4)One representative from an ocean advocacy organization.
(5)One representative from an environmental justice organization.
(6)One representative from a disadvantaged or low-income community or rural area.
(7)One representative of a materials recovery facility located within the State of California.
(8)One representative of a recycling service provider, or a representative of an association of recycling service providers.
(9)One representative from the composting industry operating in the State of California.
(10)A representative of each of four manufacturers of covered materials of different material types utilizing using postconsumer recycled content, one of which produces third-party certified compostable covered material. These board members shall not be a board member of a PRO.
(11)One representative nominated by a statewide association representing the retail sector. This board member shall be a nonvoting member.
(12)One representative nominated by a statewide association representing the grocery sector. This board member shall be a nonvoting member.
(13)One representative of a producer responsibility organization. This board member shall be a nonvoting member.
(b)The director shall appoint all members to the advisory board on or before July 1, 2023. The director shall appoint the members for staggered three-year terms, and may reappoint a member for additional terms. At its first meeting, the advisory board shall elect a chair who will serve as chair for the calendar year, and who may be reelected as chair.
(c)The advisory board shall meet at least once per year by the call of the chair or by request of a majority of the voting members. The department shall provide administrative support to the advisory board.
(d)The advisory board meetings shall be open to the public and are subject to the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code).
(e)(1)The advisory board shall provide the PRO and the department, and a third party conducting or updating a needs assessment if applicable, with initial recommendations regarding all of the following:
(A)Key barriers and possible solutions to advance the objectives of increasing recovery of covered materials and decreasing the leakage of plastic into the environment no later than one year after the advisory boards initial meeting. This shall include key barriers and possible solutions related to available and viable responsible end markets and market development for covered materials.
(B)Key barriers and possible solutions to advance the objectives of reducing the production of virgin material for covered material and reducing the landfilling of covered material.
(C)Key barriers and possible pathways toward reusable packaging and products and refillable systems.
(D)Key barriers and other considerations needed for covered material to meet the requirements of this chapter.
(E)How a PRO will cover the costs incurred by local jurisdictions and local jurisdictions recycling service providers associated with implementing this chapter and managing the material covered in a plan.
(2)The department shall consider the recommendations provided under paragraph (1) as it evaluates which specific actions may be appropriate to advance the objectives of this chapter.
(f)The advisory board may take any of the following actions through written recommendations as the advisory board deems appropriate:
(1)Advise the department, producers, or PROs on technical matters in support of the goals of this chapter to create a circular economy and reduce covered material pollution.
(2)Advise the department in the adoption of the regulations required by this chapter.
(3)Advise the department, producers, or PROs on any other pertinent matters in implementing this chapter, as determined by the advisory board or department.
(g)Pursuant to Section 42067, the advisory board shall review any needs assessment or revised needs assessment submitted to it within 90 calendar days of receipt of the assessment.
(h)Within 60 calendar days of receiving a plan submitted pursuant to subdivision (a) of Section 42051.2, the advisory board shall review the plan and offer written comments, which may include suggested modifications to the plan.
(i)The advisory board shall submit written recommendations to the department only if a majority of the advisory boards voting members endorse the recommendation. One or more advisory board members who do not endorse the recommendation may submit a separate written recommendation to the department reflecting the minority opinion or opinions.
(j)(1)If an affected entity asserts that specific actions taken to meet the requirements of this chapter by the PRO, a producer, or an entity under contract with the PRO are not consistent with paragraph (3) or (4) of subdivision (c) of, or paragraph (2) of subdivision (i) of, Section 42051.1 and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements, the affected entity may bring the concern and evidence supporting this assertion to the advisory board for discussion and ask the advisory board to conduct a preliminary evaluation of the information. If the evaluation demonstrates that specific actions are disrupting or otherwise adversely affecting existing operations, the advisory board shall submit this concern to the department for further analysis. The department shall analyze the information provided by the advisory board and may offer a recommendation for resolution. offer a recommendation for resolution within 90 days of submission of the request for a preliminary evaluation.
(2)After the advisory board offers its recommendation pursuant to paragraph (1), either party may initiate nonbinding arbitration, consistent with procedures set forth in Title 9 (commencing with Section 1280) of Part 3 of the Code of Civil Procedure, and without prejudice to seeking judicial relief, to determine whether specific actions taken to meet the requirements of this chapter are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements. The arbiter shall consider the information presented to the advisory board and any other information provided to the arbiter by the parties.
(3)If the arbiter determines pursuant to paragraph (2) that specific actions are disruptive or otherwise have an adverse effect, the arbiter may order actions, to the extent feasible, to remedy the disruption or adverse effect, including, but not limited to, requiring a change to the producer responsibility plan causing the disruption or adverse effect. The department shall include any actions taken pursuant to this subdivision in the subsequent report submitted to the Legislature pursuant to subdivision (a) of Section 42065.
SECTION 1.It is the intent of the Legislature to enact future legislation relating to the Plastic Pollution Prevention and Packaging Producer Responsibility Act.It is the intent of the Legislature to enact future legislation relating to the Plastic Pollution Prevention and Packaging Producer Responsibility Act.
|
Date
|
Status
|
|---|---|
| Jan 25, 2024 | Veto sustained. |
| Jan 25, 2024 | Stricken from file. |
| Oct 8, 2023 | In Senate. Consideration of Governor's veto pending. |
| Oct 8, 2023 | Vetoed by the Governor. |
| Sep 18, 2023 | Enrolled and presented to the Governor at 3 p.m. |
| Sep 12, 2023 | Assembly amendments concurred in. (Ayes 39. Noes 0. Page 2672.) Ordered to engrossing and enrolling. |
| Sep 11, 2023 | In Senate. Concurrence in Assembly amendments pending. |
| Sep 11, 2023 | Read third time. Passed. (Ayes 80. Noes 0. Page 3154.) Ordered to the Senate. |
| Sep 7, 2023 | Read third time and amended. |
| Sep 7, 2023 | Assembly Rule 69 suspended. |
| Sep 7, 2023 | Ordered to third reading. |
| Sep 5, 2023 | Read second time. Ordered to third reading. |
| Sep 1, 2023 | From committee: Do pass. (Ayes 16. Noes 0.) (September 1). |
| Aug 16, 2023 | August 16 set for first hearing. Placed on suspense file. |
| Jul 12, 2023 | Read second time and amended. Re-referred to Com. on APPR. |
| Jul 11, 2023 | From committee: Do pass as amended and re-refer to Com. on APPR. with recommendation: To consent calendar. (Ayes 11. Noes 0.) (July 11). |
| Jun 29, 2023 | Read second time and amended. Re-referred to Com. on JUD. |
| Jun 28, 2023 | From committee: Do pass as amended and re-refer to Com. on JUD. (Ayes 11. Noes 0.) (June 26). |
| Jun 8, 2023 | Referred to Coms. on NAT. RES. and JUD. |
| May 25, 2023 | In Assembly. Read first time. Held at Desk. |
| May 25, 2023 | Read third time. Passed. (Ayes 40. Noes 0. Page 1297.) Ordered to the Assembly. |
| May 23, 2023 | Ordered to special consent calendar. |
| May 18, 2023 | Read second time. Ordered to third reading. |
| May 18, 2023 | From committee: Do pass. (Ayes 7. Noes 0. Page 1164.) (May 18). |
| May 12, 2023 | Set for hearing May 18. |
| May 8, 2023 | May 8 hearing: Placed on APPR suspense file. |
| May 2, 2023 | Set for hearing May 8. |
| Apr 27, 2023 | Read second time and amended. Re-referred to Com. on APPR. |
| Apr 26, 2023 | From committee: Do pass as amended and re-refer to Com. on APPR with recommendation: To consent calendar. (Ayes 11. Noes 0. Page 892.) (April 25). |
| Apr 19, 2023 | From committee: Do pass and re-refer to Com. on JUD. with recommendation: To consent calendar. (Ayes 7. Noes 0. Page 793.) (April 19). Re-referred to Com. on JUD. |
| Apr 18, 2023 | Set for hearing April 25 in JUD. pending receipt. |
| Apr 11, 2023 | Set for hearing April 19. |
| Mar 29, 2023 | Re-referred to Coms. on E.Q. and JUD. |
| Mar 22, 2023 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on RLS. |
| Feb 15, 2023 | Referred to Com. on RLS. |
| Feb 3, 2023 | From printer. May be acted upon on or after March 5. |
| Feb 2, 2023 | Introduced. Read first time. To Com. on RLS. for assignment. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Sep 12, 2023 | Unfinished Business SB303 Allen Concurrence | Senate Floor |
Passed |
|
| Sep 11, 2023 | SB 303 Allen Senate Third Reading By Boerner | Assembly Floor |
Passed |
|
| Sep 1, 2023 | Do pass. | Assembly Standing Committee on Appropriations |
Passed |
|
| Jul 11, 2023 | Do pass as amended, and be re-referred to the Committee on [Appropriations] with recommendation: To Consent Calendar | Assembly Standing Committee on Judiciary |
Passed |
|
| Jun 26, 2023 | Do pass as amended and be re-referred to the Committee on [Judiciary] | Assembly Standing Committee on Natural Resources |
Passed |
|
| May 25, 2023 | Special Consent SB303 Allen | Senate Floor |
Passed |
|
| May 18, 2023 | Do pass | Senate Standing Committee on Appropriations |
Passed |
|
| May 8, 2023 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Apr 25, 2023 | Do pass as amended, but first amend, and re-refer to the Committee on [Appropriations] with the recommendation: To Consent Calendar | Senate Standing Committee on Judiciary |
Passed |
|
| Apr 19, 2023 | Do pass, but first be re-referred to the Committee on [Judiciary] with the recommendation: To Consent Calendar | Senate Standing Committee on Environmental Quality |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| A Voice for Choice Advocacy | ** Support | |
| Athens Services | ** Support | |
| CALIFORNIA WASTE & RECYCLING ASSOCIATION | ** Support | |
| California Waste Haulers Council | ** Support | |
| Climate Action California | ** Support | |
| Climate Reality Project, Los Angeles Chapter | ** Support | |
| Climate Reality Project, San Fernando Valley | ** Support | |
| Recology | ** Support | |
| Republic Services - Western Region | ** Support | |
| Resource Recovery Coalition Of California | ** Support | |
| Waste Management | ** Support |
SENATE RULES COMMITTEE Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB 303 |
VETO
Bill No: SB 303
Author: Allen (D)
Amended: 9/7/23
Vote: 27
SENATE ENVIRONMENTAL QUALITY COMMITTEE: 7-0, 4/19/23
AYES: Allen, Dahle, Gonzalez, Limón, Menjivar, Nguyen, Skinner
SENATE JUDICIARY COMMITTEE: 11-0, 4/25/23
AYES: Umberg, Wilk, Allen, Ashby, Caballero, Durazo, Laird, Min, Niello, Stern, Wiener
SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/18/23
AYES: Portantino, Jones, Ashby, Bradford, Seyarto, Wahab, Wiener
SENATE FLOOR: 40-0, 5/25/23
AYES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk
SENATE FLOOR: 39-0, 9/12/23
AYES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk
NO VOTE RECORDED: Caballero
ASSEMBLY FLOOR: 80-0, 9/11/23 - See last page for vote
SUBJECT: Solid waste: Plastic Pollution Prevention and Packaging Producer Responsibility Act
SOURCE: Author
DIGEST:
This bill establishes a non-binding arbitration process for adjudicating disputes between entities subject to the Plastic Pollution Prevention and Packaging Producer Responsibility Act (SB 54, Allen Chapter 75, Statutes of 2022), revises three definitions in SB 54, and makes other technical and clarifying changes to SB 54.
ANALYSIS:
Existing law:
- Establishes the California Integrated Waste Management Act of 1989 (IWMA), administered by the CalRecycle, to regulate the disposal, management, and recycling of solid waste. Establishes under the IWMA a state policy goal that at least 75% of solid waste be source reduced, recycled, or composted by 2020. (Public Resources Code (PRC) §§ 40000 et. seq.)
- Establishes the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which imposes minimum recycled content requirements and source reduction requirements for single-use packaging and plastic food serviceware, to be achieved through an extended producer responsibility (EPR) program. (PRC § 42070)
- Requires, by January 1, 2025, CalRecycle to adopt regulations necessary to implement and enforce the Plastic Pollution Prevention and Packaging Producer Responsibility Act.
This bill establishes a non-binding arbitration process for adjudicating disputes between entities subject to SB 54, revises three definitions in SB 54, and makes other technical and clarifying changes.
- Revises three definitions in SB 54 (Allen) including:
- Revises "processing" to specify that it is conducted in a way that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety.
- Revises the definition of "recycle" or "recycling" to specify that CalRecycle's regulations define guidelines and verification requirements apply to the PRO and any producers complying with the Act, as specified.
- Revises the definition of "responsible end market" to mean an entity that uses recycled covered material for the manufacturing of products when the manufacturing, including the disposal of contaminants, is conducted in a way that benefits the environment and minimizes risks to public health and worker health and safety. Specifies that "responsible end market" does not include entities that process covered material in a manner that is prohibited under the definition of "recycling."
- Authorizes an entity that asserts that specific actions taken by a PRO or producer or an entity under contract with the PRO are not consistent with requirements of SB 54 to bring the concern and supporting evidence to the advisory board for discussion and to ask the advisory board to conduct an evaluation.
- Requires that the advisory board offer a recommendation for resolution, if the assertion is found to be true, within 90 days of submission of the request for a preliminary evaluation. Authorizes, upon the issuance of the advisory board's recommendation, either party to initiate nonbinding arbitration.
- Authorizes the arbitrator, if the arbitrator makes a specified determination, to propose actions to remedy the disruption, including proposing a revision to the PRO plan.
- Requires CalRecycle to review the arbitrator's proposed decision within 60 days of receipt; determine whether the arbitrator's proposed decision conflicts with or impedes the requirements, targets, and goals of SB 54; publicly notice any proposed plan revision on its website; and accept comments from the advisory board and the public about any proposed plan revision.
- Authorizes CalRecycle to approve or reject the proposed plan revision based on specified criteria. Authorizes any party, within 60 days after the arbitrator delivers a proposed decision to CalRecycle and the advisory board, to request that CalRecycle conduct a de novo adjudicative proceeding.
- Provides that if no action is taken by CalRecycle or other party within 60 days of the arbitrator's proposed decision being submitted to CalRecycle and the advisory committee, the proposed decision shall be deemed final and binding.
- Specifies that any approved producer responsibility plan remains in effect and must be implemented during any arbitration process pursuant to the bill, and arbitration does not delay the approval of a proposed plan or plan amendment.
- Requires CalRecycle to include any actions taken pursuant to this bill in a specified report to the Legislature.
Background
- Solid waste in California. For more than three decades, CalRecycle has been tasked with reducing the amount of waste that is landfilled and promoting recycling in California through the IWMA. The IWMA establishes a goal of source reducing, recycling, or composting at least 75% of solid waste generated in the State by 2020. However, according to CalRecycle’s 2021 State of Disposal and Recycling, the State’s 2021 recycling rate was just 40%. The single largest contributor to this recycling rate was recyclables that were exported out of the state. The statewide recycling rate has declined over the last decade, following a peak of 50% in 2014. The recycling rate has been impacted and may continue to be impacted by global policies like China’s National SWORD and the Basel Convention, which restrict the amount of foreign waste these countries will accept.
The Legislature has enacted various laws to move the needle on the state’s waste diversion goal, including policies that target organic material and plastic, two major categories of waste. The Legislature chartered a course toward comprehensive organics recycling in 2016 with the passage of SB 1383 (Lara, Chapter 395, Statutes of 2016), which required local entities to build organics recycling infrastructure to achieve a 75% composting rate by 2025. Major plastics legislation followed in 2022 with the passage of SB 54 (Allen, 2022) which uses an EPR program to significantly reduce plastics in packaging and single-use serviceware.
- The problem with plastic. Plastics pose a threat to the environment from origin to end-of-life. Plastics are petroleum-based and have a large carbon footprint. The global production of plastic is responsible for three and a half percent of all greenhouse gas emissions, or more carbon emissions than the entire aviation sector. In 2021, global plastics production was estimated at 390.7 million metric tons, a four percent increase from the previous year. The United Nations Environment Programme reports that only 9% of all plastic ever made has been recycled. A further 12% has been incinerated, and the remaining 79% has accumulated in landfills or in natural environments.
Once plastics enter the environment, they remain there for hundreds to thousands of years. Plastics do not break down into their constituent parts, but instead break down into very small particles of plastic, or microplastics (plastics under five millimeters). Because they are so small, microplastics can travel in the air, in water, and can be easily absorbed by living things and accumulate up the food chain. Microplastics have been found in the most pristine natural environments on earth, including in the deep ocean, pristine areas of national parks, Antarctic sea ice, and in human placentas. Laboratory studies have found that microplastics increase the risk of cancer and disrupt hormone pathways.
- The basics of EPR programs. One strategy to reduce waste generation is to put responsibility on producers to oversee the safe end-of-life of their products through an EPR program. EPR programs rely on industry, formalized in a product stewardship organization (PRO), to develop and implement approaches to create a circular economy that make business sense, with oversight and enforcement provided by the government. EPR programs require producers to factor in costs associated with disposal. In doing so, EPR programs incentivize industry to design products with waste minimization in mind. Currently, there are six statewide EPR programs: paint, carpet, mattresses, pharmaceutical and sharps waste, batteries, and, following the passage of SB 54 (Allen, 2022), packaging and single-use plastic serviceware items.
- SB 54 goals. SB 54 uses an EPR approach to reach ambitious targets to reduce single-use serviceware and packaging through source reduction and postconsumer recycled content. These goals include:
- Requiring all covered material sold in the state to be recyclable or compostable by January 1, 2032;
- Requiring that all plastic-covered material sold in the state meet a recycling rate of 65% by Jan 1, 2032, with interim goals beginning in 2028;
- Prohibiting producers of expanded polystyrene (EPS) from selling EPS food serviceware unless they meet a 65% recycling rate by January 1, 2032; and
- Requiring the PRO to pay $500 million per year from January 1, 2027, through January 1, 2037 to fund the program, and authorizes the PRO to collect up to $150 million from plastic manufacturers.
Comments
- Purpose of Bill. According to the author, “In June 2022, the Legislature and Governor approved SB 54, the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which placed California at the forefront of tackling the environmental, health, and monetary costs associated with plastics. SB 303 improves the new law to ensure implementation aligns with legislative intent. Ambiguity in the definitions of "recycling" and "responsible end markets," as well as ambiguity in the dispute resolution process, require crucial clarifications to ensure the program is properly implemented. SB 303 makes three minor revisions including: a minor edit to the definition of "recycling" to clarify the PRO and producers are responsible for ensuring material meets CalRecycle criteria not local governments or waste haulers; clarification of the definition of "responsible end markets" to better articulate that the end market is where the material is actually reclaimed and reconstituted into new material, not the entire collection and recycling process (which starts with consumers placing the material into a recycling bin and continues with it being sorted at recovery facilities); more detail around the dispute resolution function to make clear that the advisory board, and not CalRecycle, will recommend solutions to any dispute that may arise between the PRO and local governments.”
- SB 54 Cleanup. As with any major piece of legislation, SB 54 contained some ambiguities that only became apparent after the bill had been signed into law. Cleanup for SB 54 includes minor spelling corrections and also includes more substantive revisions and clarifications on the author’s intent for processes and definitions.
Most notably, SB 303 establishes a non-binding arbitration process to assist in dispute resolution. Under SB 54, the advisory board handles claims by a local waste hauler that a producer responsibility plan impacts its operations or finances and makes a recommendation to resolve the dispute. SB 303 would permit stakeholders to have a neutral arbitrator review the advisory board's recommendation, who would then submit a proposed decision to CalRecycle for final review and potential approval.
SB 303 also revises some key definitions in SB 54. The bill amends the definition of “recycling” to clarify that only producers, not waste haulers or local governments, are required to meet recycling requirements in the bill, and revises the definition of “processing” and “responsible end markets” including specifying that the producer or PRO must certify to the CalRecycle that it has baked the criteria for “responsible end markets” into their contracts with entities that act as those end markets.
Related/Prior Legislation
SB 54 (Allen Chapter 75, Statutes of 2022) established the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which imposes minimum content and source reduction requirements for plastic single-use packaging and food service ware through an EPR program.
AB 1080 (Gonzalez, 2019) would have enacted the California Circular Economy and Pollution Reduction Act, which would impose a comprehensive regulatory scheme on producers, retailers, and wholesalers of single-use packaging, overseen by CalRecycle. The bill died at the desk before coming up for Assembly concurrence vote.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No
According to the Assembly Appropriations Committee, CalRecycle estimates ongoing annual staffing costs of $286,000 (California Circular Economy Fund (CCEF) starting in fiscal year (FY) 2024-25 to implement the provisions of this bill. In addition, as discussed in more detail below, CalRecycle notes this bill will delay its ability to develop regulations related to the Act in time to meet its January 1, 2025, deadline, which could result in additional one-time costs of at least $150,000 (CCEF) to reopen and revise its regulations.
SUPPORT: (Verified 10/13/23)
A Voice for Choice Advocacy
Climate Action California
Climate Reality Project, Los Angeles Chapter
Climate Reality Project, San Fernando Valley
OPPOSITION: (Verified 10/13/23)
None received
GOVERNOR'S VETO MESSAGE:
This bill would amend the Plastic Pollution Prevention and Packaging Producer Responsibility Act (the Act) by: 1) revising the definition of "recycling," 2) revising the definition of "responsible end markets," and 3) adding an arbitration process for affected parties to contest and revise an approved implementation plan. While I appreciate the author's intent to clarify certain provisions within the Act, this bill will interfere with the Department of Resources Recycling and Recovery (Cal Recycle) 's ability to meet its statutory obligation to adopt regulations pursuant to the Act by January 1, 2025. I encourage the author and stakeholders to work with CalRecycle through the regulatory process on the issues this bill seeks to address.
ASSEMBLY FLOOR: 80-0, 9/11/23
AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas
Prepared by: Brynn Cook / E.Q. / (916) 651-4108
10/25/23 10:52:40
**** END ****
SENATE RULES COMMITTEE Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB 303 |
UNFINISHED BUSINESS
Bill No: SB 303
Author: Allen (D)
Amended: 9/7/23
Vote: 21
SENATE ENVIRONMENTAL QUALITY COMMITTEE: 7-0, 4/19/23
AYES: Allen, Dahle, Gonzalez, Limón, Menjivar, Nguyen, Skinner
SENATE JUDICIARY COMMITTEE: 11-0, 4/25/23
AYES: Umberg, Wilk, Allen, Ashby, Caballero, Durazo, Laird, Min, Niello, Stern, Wiener
SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/18/23
AYES: Portantino, Jones, Ashby, Bradford, Seyarto, Wahab, Wiener
SENATE FLOOR: 40-0, 5/25/23
AYES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk
ASSEMBLY FLOOR: 80-0, 9/11/23 - See last page for vote
SUBJECT: Solid waste: Plastic Pollution Prevention and Packaging Producer Responsibility Act
SOURCE: Author
DIGEST:
This bill establishes a non-binding arbitration process for adjudicating disputes between entities subject to the Plastic Pollution Prevention and Packaging Producer Responsibility Act (SB 54), revises three definitions in SB 54, and makes other technical and clarifying changes to SB 54.
Assembly Amendments
flesh out the process for the non-binding arbitration process for adjudicating disputes between entities under SB 54, and specify that this arbitration process will not pause the implementation of the producer responsibility organization (PRO) plan. Amendments further specify that the PRO or producer will certify to the Department of Resources Recycling and Recovery (CalRecycle) that it has included any applicable guidelines and verification requirements in any contracts with entities involved in the processing or recycling of covered materials and responsible end markets. The bill also adopted chaptering amendments with AB 1526, the Assembly Natural Resources Committee bill.
ANALYSIS:
Existing law:
- Establishes the California Integrated Waste Management Act of 1989 (IWMA), administered by the CalRecycle, to regulate the disposal, management, and recycling of solid waste. Establishes under the IWMA a state policy goal that at least 75% of solid waste be source reduced, recycled, or composted by 2020. (Public Resources Code (PRC) §§ 40000 et. seq.)
- Establishes the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which imposes minimum recycled content requirements and source reduction requirements for single-use packaging and plastic food serviceware, to be achieved through an extended producer responsibility (EPR) program. (PRC § 42070)
- Requires, by January 1, 2025, CalRecycle to adopt regulations necessary to implement and enforce the Plastic Pollution Prevention and Packaging Producer Responsibility Act.
This bill establishes a non-binding arbitration process for adjudicating disputes between entities subject to SB 54, revises three definitions in SB 54, and makes other technical and clarifying changes.
- Revises three definitions in SB 54 (Allen) including:
- Revises "processing" to specify that it is conducted in a way that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety.
- Revises the definition of "recycle" or "recycling" to specify that CalRecycle's regulations define guidelines and verification requirements apply to the PRO and any producers complying with the Act, as specified.
- Revises the definition of "responsible end market" to mean an entity that uses recycled covered material for the manufacturing of products when the manufacturing, including the disposal of contaminants, is conducted in a way that benefits the environment and minimizes risks to public health and worker health and safety. Specifies that "responsible end market" does not include entities that process covered material in a manner that is prohibited under the definition of "recycling."
- Authorizes an entity that asserts that specific actions taken by a PRO or producer or an entity under contract with the PRO are not consistent with requirements of SB 54 to bring the concern and supporting evidence to the advisory board for discussion and to ask the advisory board to conduct an evaluation.
- Requires that the advisory board offer a recommendation for resolution, if the assertion is found to be true, within 90 days of submission of the request for a preliminary evaluation. Authorizes, upon the issuance of the advisory board's recommendation, either party to initiate nonbinding arbitration.
- Authorizes the arbitrator, if the arbitrator makes a specified determination, to propose actions to remedy the disruption, including proposing a revision to the PRO plan.
- Requires CalRecycle to review the arbitrator's proposed decision within 60 days of receipt; determine whether the arbitrator's proposed decision conflicts with or impedes the requirements, targets, and goals of SB 54; publicly notice any proposed plan revision on its website; and accept comments from the advisory board and the public about any proposed plan revision.
- Authorizes CalRecycle to approve or reject the proposed plan revision based on specified criteria. Authorizes any party, within 60 days after the arbitrator delivers a proposed decision to CalRecycle and the advisory board, to request that CalRecycle conduct a de novo adjudicative proceeding.
- Provides that if no action is taken by CalRecycle or other party within 60 days of the arbitrator's proposed decision being submitted to CalRecycle and the advisory committee, the proposed decision shall be deemed final and binding.
- Specifies that any approved producer responsibility plan remains in effect and must be implemented during any arbitration process pursuant to the bill, and arbitration does not delay the approval of a proposed plan or plan amendment.
- Requires CalRecycle to include any actions taken pursuant to this bill in a specified report to the Legislature.
Background
- Solid waste in California. For more than three decades, CalRecycle has been tasked with reducing the amount of waste that is landfilled and promoting recycling in California through the IWMA. The IWMA establishes a goal of source reducing, recycling, or composting at least 75% of solid waste generated in the State by 2020. However, according to CalRecycle’s 2021 State of Disposal and Recycling, the State’s 2021 recycling rate was just 40%. The single largest contributor to this recycling rate was recyclables that were exported out of the state. The statewide recycling rate has declined over the last decade, following a peak of 50% in 2014. The recycling rate has been impacted and may continue to be impacted by global policies like China’s National SWORD and the Basel Convention, which restrict the amount of foreign waste these countries will accept.
The Legislature has enacted various laws to move the needle on the state’s waste diversion goal, including policies that target organic material and plastic, two major categories of waste. The Legislature chartered a course toward comprehensive organics recycling in 2016 with the passage of SB 1383 (Lara, Chapter 395, Statutes of 2016), which required local entities to build organics recycling infrastructure to achieve a 75% composting rate by 2025. Major plastics legislation followed in 2022 with the passage of SB 54 (Allen, 2022) which uses an EPR program to significantly reduce plastics in packaging and single-use serviceware.
- The problem with plastic. Plastics pose a threat to the environment from origin to end-of-life. Plastics are petroleum-based and have a large carbon footprint. The global production of plastic is responsible for three and a half percent of all greenhouse gas emissions, or more carbon emissions than the entire aviation sector. In 2021, global plastics production was estimated at 390.7 million metric tons, a four percent increase from the previous year. The United Nations Environment Programme reports that only 9% of all plastic ever made has been recycled. A further 12% has been incinerated, and the remaining 79% has accumulated in landfills or in natural environments.
Once plastics enter the environment, they remain there for hundreds to thousands of years. Plastics do not break down into their constituent parts, but instead break down into very small particles of plastic, or microplastics (plastics under five millimeters). Because they are so small, microplastics can travel in the air, in water, and can be easily absorbed by living things and accumulate up the food chain. Microplastics have been found in the most pristine natural environments on earth, including in the deep ocean, pristine areas of national parks, Antarctic sea ice, and in human placentas. Laboratory studies have found that microplastics increase the risk of cancer and disrupt hormone pathways.
- The basics of EPR programs. One strategy to reduce waste generation is to put responsibility on producers to oversee the safe end-of-life of their products through an EPR program. EPR programs rely on industry, formalized in a product stewardship organization (PRO), to develop and implement approaches to create a circular economy that make business sense, with oversight and enforcement provided by the government. EPR programs require producers to factor in costs associated with disposal. In doing so, EPR programs incentivize industry to design products with waste minimization in mind. Currently, there are six statewide EPR programs: paint, carpet, mattresses, pharmaceutical and sharps waste, batteries, and, following the passage of SB 54 (Allen, 2022), packaging and single-use plastic serviceware items.
- SB 54 goals. SB 54 uses an EPR approach to reach ambitious targets to reduce single-use serviceware and packaging through source reduction and postconsumer recycled content. These goals include:
- Requiring all covered material sold in the state to be recyclable or compostable by January 1, 2032;
- Requiring that all plastic-covered material sold in the state meet a recycling rate of 65% by Jan 1, 2032, with interim goals beginning in 2028;
- Prohibiting producers of expanded polystyrene (EPS) from selling EPS food serviceware unless they meet a 65% recycling rate by January 1, 2032; and
- Requiring the PRO to pay $500 million per year from January 1, 2027, through January 1, 2037 to fund the program, and authorizes the PRO to collect up to $150 million from plastic manufacturers.
Comments
- Purpose of Bill. According to the author, “In June 2022, the Legislature and Governor approved SB 54, the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which placed California at the forefront of tackling the environmental, health, and monetary costs associated with plastics. SB 303 improves the new law to ensure implementation aligns with legislative intent. Ambiguity in the definitions of "recycling" and "responsible end markets," as well as ambiguity in the dispute resolution process, require crucial clarifications to ensure the program is properly implemented. SB 303 makes three minor revisions including: a minor edit to the definition of "recycling" to clarify the PRO and producers are responsible for ensuring material meets CalRecycle criteria not local governments or waste haulers; clarification of the definition of "responsible end markets" to better articulate that the end market is where the material is actually reclaimed and reconstituted into new material, not the entire collection and recycling process (which starts with consumers placing the material into a recycling bin and continues with it being sorted at recovery facilities); more detail around the dispute resolution function to make clear that the advisory board, and not CalRecycle, will recommend solutions to any dispute that may arise between the PRO and local governments.”
- SB 54 Cleanup. As with any major piece of legislation, SB 54 contained some ambiguities that only became apparent after the bill had been signed into law. Cleanup for SB 54 includes minor spelling corrections and also includes more substantive revisions and clarifications on the author’s intent for processes and definitions.
Most notably, SB 303 establishes a non-binding arbitration process to assist in dispute resolution. Under SB 54, the advisory board handles claims by a local waste hauler that a producer responsibility plan impacts its operations or finances and makes a recommendation to resolve the dispute. SB 303 would permit stakeholders to have a neutral arbitrator review the advisory board's recommendation, who would then submit a proposed decision to CalRecycle for final review and potential approval.
SB 303 also revises some key definitions in SB 54. The bill amends the definition of “recycling” to clarify that only producers, not waste haulers or local governments, are required to meet recycling requirements in the bill, and revises the definition of “processing” and “responsible end markets” including specifying that the producer or PRO must certify to the CalRecycle that it has baked the criteria for “responsible end markets” into their contracts with entities that act as those end markets.
Related/Prior Legislation
SB 54 (Allen Chapter 75, Statutes of 2022) established the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which imposes minimum content and source reduction requirements for plastic single-use packaging and food service ware through an EPR program.
AB 1080 (Gonzalez, 2019) would have enacted the California Circular Economy and Pollution Reduction Act, which would impose a comprehensive regulatory scheme on producers, retailers, and wholesalers of single-use packaging, overseen by CalRecycle. The bill died at the desk before coming up for Assembly concurrence vote.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No
According to the Assembly Appropriations Committee, CalRecycle estimates ongoing annual staffing costs of $286,000 (California Circular Economy Fund (CCEF) starting in fiscal year (FY) 2024-25 to implement the provisions of this bill. In addition, as discussed in more detail below, CalRecycle notes this bill will delay its ability to develop regulations related to the Act in time to meet its January 1, 2025, deadline, which could result in additional one-time costs of at least $150,000 (CCEF) to reopen and revise its regulations.
SUPPORT: (Verified 9/11/23)
A Voice for Choice Advocacy
Climate Action California
Climate Reality Project, Los Angeles Chapter
Climate Reality Project, San Fernando Valley
OPPOSITION: (Verified 9/11/23)
None received
ASSEMBLY FLOOR: 80-0, 9/11/23
AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas
Prepared by: Brynn Cook / E.Q. / (916) 651-4108
9/11/23 19:51:22
SENATE THIRD READING
STR Bill Id:SB 303
Author:(Allen)
As Amended Ver:September 7, 2023
Majority vote
SUMMARY
This bill establishes a non-binding arbitration process for adjudicating disputes between entities subject to the Plastic Pollution Prevention and Packaging Producer Responsibility Act (Act) and makes other technical and clarifying changes to the Act.
Major Provisions
- Revises definitions with in the Act:
- Revises the definition of "processing" to mean to sort, segregate, break or flake, and clean material to prepare it for use by a responsible end market in which the recovery of materials and the disposal of contaminants is conducted in a way that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety.
- Revises the definition of "recycle" or "recycling" to specify that CalRecycle's regulations to define guidelines and verification requirements apply to the PRO and any producers complying with the Act, as specified.
- Revises the definition of "responsible end market" to mean an entity that uses recycled cover material for the manufacturing of products when the manufacturing, including the disposal of contaminants, is conducted in a way that benefits the environment and minimizes risks to public health and worker health and safety. Specifies that "responsible end market" does not include entities that process covered material in a manner that is prohibited under the definition of "recycling."
- Authorizes an entity that asserts that specific actions taken by a producer responsibility organization (PRO), a producer, or an entity under contract with the PRO are not consistent with specified prohibitions and requirements of the Act and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of specified waste facilities and programs to bring the concern and supporting evidence to the advisory board for discussion and to ask the advisory board to conduct a preliminary evaluation.
- Requires the advisory board, if the evaluation demonstrates that specific actions are disrupting or otherwise adversely affecting existing operations, to offer a recommendation for resolution within 90 days of submission of the request for a preliminary evaluation. Authorizes, upon the issuance of the advisory board's recommendation, either party to initiate nonbinding arbitration, as specified.
- Authorizes the arbitrator, if the arbitrator makes a specified determination, to propose actions, to the extent feasible, to remedy the disruption or adverse effect, including proposing a revision to the producer responsibility plan causing the disruption or adverse effect.
- Requires the Department of Resources Recycling and Recovery (CalRecycle) to review the arbitrator's proposed decision within 60 days of receipt; determine whether the arbitrator's proposed decision conflicts with or impedes the requirements, targets, and goals of the Act; publicly notice any proposed plan revision on its website; and accept comments from the advisory board and the public about any proposed plan revision.
- Authorizes CalRecycle to approve or reject the proposed plan revision based on specified criteria. Authorizes any party, within 60 days after the arbitrator delivers a proposed decision to CalRecycle and the advisory board, to request that CalRecycle conduct a de novo adjudicative proceeding.
- Provides that if no action is taken by CalRecycle or other party within 60 days of the arbitrator's proposed decision being submitted to CalRecycle and the advisory committee, the proposed decision shall be deemed final and binding.
- Specifies that any approved producer responsibility plan remains in effect and must be implemented during any arbitration process pursuant to the bill.
- Specifies that any arbitration process pursuant to the bill does not delay the approval of a proposed plan or plan amendment.
- Requires CalRecycle to include any actions taken pursuant to this bill in a specified report to the Legislature.
- Authorizes CalRecycle to adopt regulations to establish specified standards for PROs and any producers complying with the Act.
COMMENTS
The Act, created by SB 54 (Allen), Chapter 75, Statutes of 2022, established new minimum recycling requirements for single-use plastic packaging and food service ware (covered material) and source reduction requirements for plastic covered material, and prohibited the sale or distribution of expanded polystyrene unless it meets accelerated recycling rates. The Act requires producers to comply with the bill's requirements through an extended producer responsibility (EPR) program, and requires producers, through a PRO, to pay $500 million per year for ten years (from 2027 to 2037) to be deposited into the California Plastic Pollution Mitigation Fund, to fund various environmental and public health programs. The Act also created an advisory board to drive policy and resolve disputes between stakeholders regarding the implementation of various plans and procedures that must be developed in accordance with the law.
This bill, among other things, establishes a non-binding arbitration process to assist in dispute resolution. Under the Act, the advisory board handles claims by a local waste hauler that a producer responsibility plan impacts its operations or finances and makes a recommendation to resolve the dispute. This bill would permit stakeholders to have a neutral arbitrator review the advisory board's recommendation, who would then submit a proposed decision to CalRecycle for final review and potential approval.
This bill also modifies and clarifies several definitions within the Act. For example, it revises the definition of "responsible end market" to specify that any associated regulations apply to the PRO and not to other entities in the waste collection and processing chain.
CalRecycle asserts this bill will delay its regulations. In order to meet the Act's statutory deadline of January 1, 2025, the department must submit draft regulations to the Office of Administrative Law no later than March 2024. CalRecycle is compiling draft regulatory text, conducting monthly public workshops, and developing a number of other necessary rulemaking documents. CalRecycle notes it is actively engaging with interested parties to ensure the department integrates input from the regulated community and other stakeholders on its draft regulations. The department contends this bill will not only limit its regulatory authority but also cause delays in the implementation of SB 54 and require it to redo some of the work that is already underway.
According to the Author
In June 2022, the Legislature and Governor approved SB 54, the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which placed California at the forefront of tackling the environmental, health, and monetary costs associated with plastics. SB 303 improves the new law to ensure implementation aligns with legislative intent. Ambiguity in the definitions of "recycling" and "responsible end markets," as well as ambiguity in the dispute resolution process, require crucial clarifications to ensure the program is properly implemented. SB 303 makes three minor revisions including: a minor edit to the definition of "recycling" to clarify the PRO and producers are responsible for ensuring material meets CalRecycle criteria not local governments or waste haulers; clarification of the definition of "responsible end markets" to better articulate that the end market is where the material is actually reclaimed and reconstituted into new material, not the entire collection and recycling process (which starts with consumers placing the material into a recycling bin and continues with it being sorted at recovery facilities); more detail around the dispute resolution function to make clear that the advisory board, and not CalRecycle, will recommend solutions to any dispute that may arise between the PRO and local governments.
Arguments in Support
A coalition of supporters state:
As reflected throughout SB 54, implementation of the program must not violate existing franchise agreements between the solid waste industry and local government, nor negatively impact the billions of dollars of existing recycling and materials handling infrastructure. If, by chance, violation of these provisions occurs, the dispute resolution process outlined in SB 303 will allow parties to resolve these issues without being forced to turn to the courts as the first option.
Arguments in Opposition
None on file
FISCAL COMMENTS
According to the Assembly Appropriations Committee, CalRecycle estimates ongoing annual staffing costs of $286,000 (California Circular Economy Fund (CCEF) starting in fiscal year (FY) 2024-25 to implement the provisions of this bill. In addition, as discussed in more detail below, CalRecycle notes this bill will delay its ability to develop regulations related to the Act in time to meet its January 1, 2025, deadline, which could result in additional one-time costs of at least $150,000 (CCEF) to reopen and revise its regulations.
VOTES
SENATE FLOOR: 40-0-0
YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk
ASM NATURAL RESOURCES: 11-0-0
YES: Luz Rivas, Flora, Addis, Friedman, Hoover, Mathis, Muratsuchi, Pellerin, Ward, Wood, Zbur
ASM JUDICIARY: 11-0-0
YES: Maienschein, Essayli, Connolly, Dixon, Haney, Kalra, Pacheco, Papan, Reyes, Sanchez, McKinnor
ASM APPROPRIATIONS: 16-0-0
YES: Holden, Megan Dahle, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Hart, Lowenthal, Mathis, Papan, Pellerin, Sanchez, Soria, Weber, Wilson
UPDATED
VERSION: September 7, 2023
CONSULTANT: Elizabeth MacMillan / NAT. RES. / (916) 319-2092 FN: 0002116
SENATE THIRD READING
STR Bill Id:SB 303
Author:(Allen)
As Amended Ver:July 12, 2023
Majority vote
SUMMARY
This bill establishes a non-binding arbitration process for adjudicating disputes between entities subject to the Plastic Pollution Prevention and Packaging Producer Responsibility Act (Act) and makes other technical and clarifying changes to the Act.
Major Provisions
- Revises definitions with in the Act:
- Revises the definition of "processing" to mean to sort, segregate, break or flake, and clean material to prepare it for use by a responsible end market in which the recovery of materials and the disposal of contaminants is conducted in a way that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety.
- Revises the definition of "recycle" or "recycling" to specify that CalRecycle's regulations to define guidelines and verification requirements apply to the PRO and any producers complying with the Act, as specified.
- Revises the definition of "responsible end market" to mean an entity that uses recycled cover material for the manufacturing of products when the manufacturing, including the disposal of contaminants, is conducted in a way that benefits the environment and minimizes risks to public health and worker health and safety. Specifies that "responsible end market" does not include entities that process covered material in a manner that is prohibited under the definition of "recycling."
- Authorizes an entity that asserts that specific actions taken by a producer responsibility organization (PRO), a producer, or an entity under contract with the PRO are not consistent with specified prohibitions and requirements of the Act and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of specified waste facilities and programs to bring the concern and supporting evidence to the advisory board for discussion and to ask the advisory board to conduct a preliminary evaluation.
- Requires the advisory board, if the evaluation demonstrates that specific actions are disrupting or otherwise adversely affecting existing operations, to offer a recommendation for resolution within 90 days of submission of the request for a preliminary evaluation. Authorizes, upon the issuance of the advisory board's recommendation, either party to initiate nonbinding arbitration, as specified.
- Authorizes the arbitrator, if the arbitrator makes a specified determination, to propose actions, to the extent feasible, to remedy the disruption or adverse effect, including proposing a revision to the producer responsibility plan causing the disruption or adverse effect.
- Requires the Department of Resources Recycling and Recovery (CalRecycle) to review the arbitrator's proposed decision within 60 days of receipt; determine whether the arbitrator's proposed decision conflicts with or impedes the requirements, targets, and goals of the Act; publicly notice any proposed plan revision on its website; and accept comments from the advisory board and the public about any proposed plan revision.
- Authorizes CalRecycle to approve or reject the proposed plan revision based on specified criteria. Authorizes any party, within 60 days after the arbitrator delivers a proposed decision to CalRecycle and the advisory board, to request that CalRecycle conduct a de novo adjudicative proceeding.
- Provides that if no action is taken by CalRecycle or other party within 60 days of the arbitrator's proposed decision being submitted to CalRecycle and the advisory committee, the proposed decision shall be deemed final and binding.
- Requires CalRecycle to include any actions taken pursuant to this bill in a specified report to the Legislature.
- Authorizes CalRecycle to adopt regulations to establish specified standards for PROs and any producers complying with the Act.
COMMENTS
The Act, created by SB 54 (Allen), Chapter 75, Statutes of 2022, established new minimum recycling requirements for single-use plastic packaging and food service ware (covered material) and source reduction requirements for plastic covered material, and prohibited the sale or distribution of expanded polystyrene unless it meets accelerated recycling rates. The Act requires producers to comply with the bill's requirements through an extended producer responsibility (EPR) program, and requires producers, through a PRO, to pay $500 million per year for ten years (from 2027 to 2037) to be deposited into the California Plastic Pollution Mitigation Fund, to fund various environmental and public health programs. The Act also created an advisory board to drive policy and resolve disputes between stakeholders regarding the implementation of various plans and procedures that must be developed in accordance with the law.
This bill, among other things, establishes a non-binding arbitration process to assist in dispute resolution. Under the Act, the advisory board handles claims by a local waste hauler that a producer responsibility plan impacts its operations or finances and makes a recommendation to resolve the dispute. This bill would permit stakeholders to have a neutral arbitrator review the advisory board's recommendation, who would then submit a proposed decision to CalRecycle for final review and potential approval.
This bill also modifies and clarifies several definitions within the Act. For example, it revises the definition of "responsible end market" to specify that any associated regulations apply to the PRO and not to other entities in the waste collection and processing chain.
CalRecycle asserts this bill will delay its regulations. In order to meet the Act's statutory deadline of January 1, 2025, the department must submit draft regulations to the Office of Administrative Law no later than March 2024. CalRecycle is compiling draft regulatory text, conducting monthly public workshops, and developing a number of other necessary rulemaking documents. CalRecycle notes it is actively engaging with interested parties to ensure the department integrates input from the regulated community and other stakeholders on its draft regulations. The department contends this bill will not only limit its regulatory authority but also cause delays in the implementation of SB 54 and require it to redo some of the work that is already underway.
According to the Author
In June 2022, the Legislature and Governor approved SB 54, the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which placed California at the forefront of tackling the environmental, health, and monetary costs associated with plastics. SB 303 improves the new law to ensure implementation aligns with legislative intent. Ambiguity in the definitions of "recycling" and "responsible end markets," as well as ambiguity in the dispute resolution process, require crucial clarifications to ensure the program is properly implemented. SB 303 makes three minor revisions including: a minor edit to the definition of "recycling" to clarify the PRO and producers are responsible for ensuring material meets CalRecycle criteria not local governments or waste haulers; clarification of the definition of "responsible end markets" to better articulate that the end market is where the material is actually reclaimed and reconstituted into new material, not the entire collection and recycling process (which starts with consumers placing the material into a recycling bin and continues with it being sorted at recovery facilities); more detail around the dispute resolution function to make clear that the advisory board, and not CalRecycle, will recommend solutions to any dispute that may arise between the PRO and local governments.
Arguments in Support
A coalition of supporters state:
As reflected throughout SB 54, implementation of the program must not violate existing franchise agreements between the solid waste industry and local government, nor negatively impact the billions of dollars of existing recycling and materials handling infrastructure. If, by chance, violation of these provisions occurs, the dispute resolution process outlined in SB 303 will allow parties to resolve these issues without being forced to turn to the courts as the first option.
Arguments in Opposition
None on file
FISCAL COMMENTS
According to the Assembly Appropriations Committee, CalRecycle estimates ongoing annual staffing costs of $286,000 (California Circular Economy Fund (CCEF) starting in fiscal year (FY) 2024-25 to implement the provisions of this bill. In addition, as discussed in more detail below, CalRecycle notes this bill will delay its ability to develop regulations related to the Act in time to meet its January 1, 2025, deadline, which could result in additional one-time costs of at least $150,000 (CCEF) to reopen and revise its regulations.
VOTES
SENATE FLOOR: 40-0-0
YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk
ASM NATURAL RESOURCES: 11-0-0
YES: Luz Rivas, Flora, Addis, Friedman, Hoover, Mathis, Muratsuchi, Pellerin, Ward, Wood, Zbur
ASM JUDICIARY: 11-0-0
YES: Maienschein, Essayli, Connolly, Dixon, Haney, Kalra, Pacheco, Papan, Reyes, Sanchez, McKinnor
ASM APPROPRIATIONS: 16-0-0
YES: Holden, Megan Dahle, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Hart, Lowenthal, Mathis, Papan, Pellerin, Sanchez, Soria, Weber, Wilson
UPDATED
VERSION: July 12, 2023
CONSULTANT: Elizabeth MacMillan / NAT. RES. / (916) 319-2092 FN: 0001487
Date of Hearing: August 16, 2023
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Chris Holden, Chair
SBPCA Bill Id:SB 303
Author:(Allen) – As Amended Ver:July 12, 2023
Policy Committee: | Natural Resources | Vote: | 11 - 0 |
Judiciary | 11 - 0 | ||
|
|
Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
This bill establishes a non-binding arbitration process for adjudicating disputes between entities subject to the Plastic Pollution Prevention and Packaging Producer Responsibility Act (Act) and makes other technical and clarifying changes to the Act.
Specifically, this bill, among other things:
- Authorizes an entity that asserts that specific actions taken by a producer responsibility organization (PRO), a producer, or an entity under contract with the PRO are not consistent with specified prohibitions and requirements of the Act and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of specified waste facilities and programs to bring the concern and supporting evidence to the advisory board for discussion and to ask the advisory board to conduct a preliminary evaluation.
- Requires the advisory board, if the evaluation demonstrates that specific actions are disrupting or otherwise adversely affecting existing operations, to offer a recommendation for resolution within 90 days of submission of the request for a preliminary evaluation. Authorizes, upon the issuance of the advisory board’s recommendation, either party to initiate nonbinding arbitration, as specified.
- Authorizes the arbitrator, if the arbitrator makes a specified determination, to propose actions, to the extent feasible, to remedy the disruption or adverse effect, including proposing a revision to the producer responsibility plan causing the disruption or adverse effect.
- Requires CalRecycle to review the arbitrator’s proposed decision within 60 days of receipt; determine whether the arbitrator’s proposed decision conflicts with or impedes the requirements, targets, and goals of the Act; publicly notice any proposed plan revision on its website; and accept comments from the advisory board and the public about any proposed plan revision.
- Authorizes CalRecycle to approve or reject the proposed plan revision based on specified criteria. Authorizes any party, within 60 days after the arbitrator delivers a proposed decision to CalRecycle and the advisory board, to request that CalRecycle conduct a de novo adjudicative proceeding.
- Provides that if no action is taken by CalRecycle or other party within 60 days of the arbitrator’s proposed decision being submitted to CalRecycle and the advisory committee, the proposed decision shall be deemed final and binding.
- Requires CalRecycle to include any actions taken pursuant to this bill in a specified report to the Legislature.
- Authorizes CalRecycle to adopt regulations to establish specified standards for PROs and any producers complying with the Act.
FISCAL EFFECT:
CalRecycle estimates ongoing annual staffing costs of $286,000 (California Circular Economy Fund (CCEF) starting in fiscal year (FY) 2024-25 to implement the provisions of this bill. In addition, as discussed in more detail below, CalRecycle notes this bill will delay its ability to develop regulations related to the Act in time to meet its January 1, 2025, deadline, which could result in additional one-time costs of at least $150,000 (CCEF) to reopen and revise its regulations.
COMMENTS:
1) Purpose. According to the author:
SB 303 makes three minor revisions including: a minor edit to the definition of “recycling” to clarify the PRO and producers are responsible for ensuring material meets CalRecycle criteria not local governments or waste haulers; clarification of the definition of “responsible end markets” to better articulate that the end market is where the material is actually reclaimed and reconstituted into new material, not the entire collection and recycling process (which starts with consumers placing the material into a recycling bin and continues with it being sorted at recovery facilities); more detail around the dispute resolution function to make clear that the advisory board, and not CalRecycle, will recommend solutions to any dispute that may arise between the PRO and local governments.
2) Background.
The Act. The Act, created by SB 54 (Allen), Chapter 75, Statutes of 2022, established new minimum recycling requirements for single-use plastic packaging and food service ware (covered material) and source reduction requirements for plastic covered material, and prohibited the sale or distribution of expanded polystyrene unless it meets accelerated recycling rates. The Act requires producers to comply with the bill’s requirements through an extended producer responsibility (EPR) program, and requires producers, through a PRO, to pay $500 million per year for ten years (from 2027 to 2037) to be deposited into the California Plastic Pollution Mitigation Fund, to fund various environmental and public health programs. The Act also created an advisory board to drive policy and resolve disputes between stakeholders regarding the implementation of various plans and procedures that must be developed in accordance with the law.
This bill, among other things, builds on SB 54 by adopting a non-binding arbitration process to assist in dispute resolution. Under the Act, the advisory board handles claims by a local waste hauler that a producer responsibility plan impacts its operations or finances and makes a recommendation to resolve the dispute. This bill would permit stakeholders to have a neutral arbitrator review the advisory board’s recommendation, who will then submit a proposed decision to CalRecycle for final review and potential approval. Writing in support, a coalition of organizations in the waste industry state:
As reflected throughout SB 54, implementation of the program must not violate existing franchise agreements between the solid waste industry and local government, nor negatively impact the billions of dollars of existing recycling and materials handling infrastructure. If, by chance, violation of these provisions occurs, the dispute resolution process outlined in SB 303 will allow parties to resolve these issues without being forced to turn to the courts as the first option.
Beyond the arbitration provisions, this bill modifies and clarifies several definitions within the Act. For example, it revises the definition of “responsible end market” to specify that any associated regulations apply to the PRO and not to other entities in the waste collection and processing chain.
Timelines. CalRecycle asserts this bill will delay its regulations. In order to meet the Act’s statutory deadline of January 1, 2025, for adopting regulations, the department must submit draft regulations to the Office of Administrative Law no later than March 2024. CalRecycle is compiling draft regulatory text, conducting monthly public workshops, and developing a number of other necessary rulemaking documents. CalRecycle notes it is actively engaging with interested parties to ensure the department integrates input from the regulated community and other stakeholders on its draft regulations. The department contends this bill will not only limit its regulatory authority but also cause delays in the implementation of SB 54 and require it to redo much of the work that is already underway.
CCEF. The Act requires, on or before the end of FY 2026-27, and once every three months thereafter, the PRO to pay to CalRecycle a California circular economy administrative fee, which will be funded by the producers that make up the PRO. The Act requires CalRecycle to set the fee at an amount adequate to cover the department’s and any other state agency’s full costs of implementing and enforcing SB 54, and to deposit PRO administrative fees into the CCEF. Upon appropriation by the Legislature, CalRecycle may expends moneys in the CCEF for the department’s activities pursuant to the Act and to reimburse any outstanding loans made from other funds used to finance the initial costs of the department’s activities pursuant to this bill. The 2022 Budget Act loaned $11.2 million from the Beverage Container Recycling Fund (BCRF) to the CCEF to help fund CalRecycle’s SB 54 implementation startup costs. The 2023 Budget Act loaned $10.3 million from the BCRF for the same purpose. Statute requires repayment of these loans by 2028.
Analysis Prepared by: Nikita Koraddi / APPR. / (916) 319-2081
Date of Hearing: July 11, 2023
ASSEMBLY COMMITTEE ON JUDICIARY
Brian Maienschein, Chair
SBPCA Bill Id:SB 303
Author:(Allen) – As Amended Ver:June 29, 2023
PROPOSED CONSENT (As Proposed to be Amended)
SENATE VOTE: 40-0
SUBJECT: Solid waste: Plastic Pollution Prevention and Packaging Producer Responsibility Act
KEY ISSUE: should a non-binding arbitration process be adopted to assist in resolving disputes involving decisions made by the Department of Resource Recycling and Recover advisory board tasked with overseeing the implementation of the Plastic Pollution Prevention and Packaging Producer Responsibility Act?
SYNOPSIS
In 2022, after years of contentious debate, the Legislature approved SB 54 (Allen) Chap.75, Stats. 2022, to enact the Plastic Pollution Prevention and Packaging Producer Responsibility Act. That Act marked the state’s most comprehensive attempt to tackle plastic pollution by adopting new producer responsibility targets and recycling goals. The primary agency tasked with implementing the Act is the Department of Resource Recovery and Recycling. To assist the Department, the Plastic Pollution Prevention and Packaging Producer Responsibility Act created an advisory board to drive policy and resolve disputes between stakeholders regarding the implementation of various plans and procedures that must be developed in accordance with the law. The law also requires plastic producers to enter into producer responsibility organizations to facilitate waste management under the Act.
This bill builds on SB 54 by adopting a non-binding arbitration process to assist in dispute resolution. In the event a producer responsibility plan results in impacts to local waste haulers or financial impacts overall those disputes currently are to be handled by the advisory board. This bill would permit stakeholders to agree to have the advisory board’s recommendation reviewed by a neutral arbitrator who will then submit a proposed decision on the matter to the Department of Resource Recovery and Recycling for final review and potential approval.
This measure is sponsored by several of the environmental and waste management stakeholders who were involved in SB 54. The proponents of this bill note that the arbitration process will ensure that existing waste hauling agreements are not unnecessarily impacted as plastic reduction and recycling plans are implemented. This bill has no opposition and was previously heard and unanimously approved by the Committee on Natural Resources.
SUMMARY: Establishes a non-binding arbitration process for adjudicating disputes involving decisions made by the Department of Resource Recycling and Recover advisory board tasked with implementing the Plastic Pollution Prevention and Packaging Producer Responsibility Act. Specifically, this bill:
- Authorizes an entity that asserts that specific actions taken by a producer responsibility organization, a producer, or an entity under contract with the producer responsibility organization are not consistent with specified aspects of a producer responsibility organization’s plan and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements, to bring the concern and evidence supporting this assertion to the Department of Resources Recycling and Recovery advisory board for discussion and ask the advisory board to conduct a preliminary evaluation of the information.
- Requires the Department of Resources Recycling and Recovery advisory board to offer a recommendation for resolution within 90 days of submission of the request for a preliminary evaluation.
- Authorizes, upon the issuance of the advisory board’s reccomendation, a party to initiate nonbinding arbitration by a neutral arbitrator with the consent of all parties, consistent with procedures established in the Code of Civil Procedure, and without prejudice to seeking judicial relief, to determine whether specific actions taken by the producer responsibility organization, a producer, or an entity under contract with the organization are not consistent with the organizatyions’s plan and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements.
- Requires an arbitrator appointed pursuant to 3) to consider the information presented to the advisory board and any other information provided to the arbitrator by the parties.
- Provides that if the arbitrator determines that specific actions taken by the producer responsibility organization, a producer, or an entity under contract with the organization are not consistent with the plan, and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements, the arbitrator may propose actions, to the extent feasible, to remedy the disruption or adverse effect, including, but not limited to, proposing a revision to the producer responsibility plan causing the disruption or adverse effect.
- Requires the arbitrator to transmit the prposed decision to the department and to the advisory board.
- Requires the Department of Resources Recycling and Recovery to review the arbitrator’s proposed decision within 60 days of receipt and determine whether or not the arbitrator’s proposed decision conflicts with or impedes the requirements, targets, and goals of the Plastic Pollution Prevention and Packaging Producer Responsibility Act.
- Requires that if the arbitrator proposes a revision to an approved producer responsibility plan, the Department of Resources Recycling and Recovery to publicly notice the proposed plan revision on its internet website and to accept comments from the advisory board and the public about the proposed revision.
- If the Department of Resources Recycling and Recovery determines, after reviewing the proposed plan revision and considering public comment, that the proposed plan revision is consistent with the Plastic Pollution Prevention and Packaging Producer Responsibility Act and associated regulations, does not adversely impact other organizations impacted by the proposed plan revision, and does not adversely affect the producer responsibility organization’s or producer’s ability to comply with the Plastic Pollution Prevention and Packaging Producer Responsibility Act associated regulations, it may approve the proposed plan revision.
- Provides that if the Department of Resources Recycling and Recovery determines, after reviewing the proposed plan revision and considering public comment, that the proposed plan revision is not consistent with the requirements of the Plastic Pollution Prevention and Packaging Producer Responsibility Act, associated regulations, or the producer responsibility organization’s or producer’s ability to comply with the Act or associated regulations, it may reject the proposed plan revision.
- Authorizes the Department of Resources Recycling and Recovery to adopt regulations to establish standards for the producer responsbility organziations regarding responsible end markets for covered material and to establish criteria that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety.
- Clarifies the existing definition of “responsible end market” to ensure that the definition does not include entities that process covered material in a manner that is prohibited under the definition of “recycling.”
- Makes various technical and conforming changes.
EXISTING LAW:
- Establishes the Plastic Pollution Prevention and Packaging Producer Responsibility Act, to be administered by the Department of Resources Recycling and Recovery, to create a statewide comprehensive circular economy framework to shift the burden of costs to collect, process, and recycle materials from the local jurisdictions to the producers of plastic products. (Public Resources Code Section 42040 et seq.)
- Requires, by January 1, 2024, producers of covered material to form and join a producer responsibility organization for the purposes of complying with existing law. (Public Resources Code Section 42051 (a).)
- Requires the governing board of a producer responsibility organization to submit an application to the Department of Resources Recycling and Recovery describing how the producer responsibility organization meets the requirements to be approved pursuant to existing law, and upon approval by the Department authorizes the producer responsibility organization to carry out the requirements of existing law. (Ibid.)
- Requires a producer responsibility organization to develop a plan to comply with the existing law that contains the following:
- Actions and investments that the organization will implement in order to meet the requirements of the Plastic Pollution Prevention and Packaging Producer Responsibility Act;
- A source reduction plan, as specified;
- Technologies and means that will be utilized to achieve recycling requirements, including demonstration that the means and technologies meet the conditions specified in law. (Public Resources Code Section 42051.1 (b).)
- Requires that a producer responsibility organization develop a plan to use education and promotion to encourage proper participation in recycling and composting collection and reuse and refill systems. (Public Resources Code Section 42051 (e).)
- Requires, by January 1, 2025, the Department of Resources Recycling and Recovery to adopt regulations necessary to implement and enforce the Plastic Pollution Prevention and Packaging Producer Responsibility Act which must address the following:
- Ensure a producer responsibility organization fully funds implementation of the plan established pursuant to 4);
- Establish a mandatory process for producers, retailers, and wholesalers, or a producer responsibility organization operating on behalf of a producer, retailer, or wholesaler, to register with and report to the Department;
- A process to identify covered material that, while determined to be single use for purposes of existing law, presents unique compliance challenges;
- A process to identify covered material that cannot comply with the law for health and safety reasons, or because it is unsafe to recycle;
- A process to exempt from the Plastic Pollution Prevention and Packaging Producer Responsibility Act small producers, small retailers, and small wholesalers based on size, revenue, number of retail locations, and market share;
- Mechanisms necessary to reduce the amount of covered material entering the environment;
- A process to require coordination between a producer responsibility organization and producer that is not a participant of the organizations’ approved plan and between multiple producer responsibility organizations, as necessary; and
- A methodology and process to calculate, to the extent feasible, an annual recycling rate. (Public Resources Code Section 42060.)
- Requires the Department of Resources Recycling and Recovery to establish a producer responsibility advisory board for the purpose of identifying barriers and solutions to creating a circular economy and advising the department, producers, and producer responsibility organizations in the implementation of the Plastic Pollution Prevention and Packaging Producer Responsibility Act.
- Defines a “neutral arbitrator” as an arbitrator who is selected jointly by the parties or by the arbitrators selected by the parties, or appointed by the court when the parties or the arbitrators selected by the parties fail to select an arbitrator who was to be selected jointly by the parties. (Code of Civil Procedure Section 1280 (g).)
- Provides that, unless the arbitration agreement otherwise provides, or unless the parties to the arbitration otherwise provide by an agreement which is not contrary to the arbitration agreement as made or as modified by all of the parties thereto:
- The arbitration must be conducted by a single neutral arbitrator;
- If there is more than one arbitrator, the powers and duties of the arbitrators, other than the powers and duties of a neutral arbitrator, may be exercised by a majority of them if reasonable notice of all proceedings has been given to all arbitrators. (Code of Civil Procedure Section 1282.)
- Authorizes any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award, as specified. (Code of Civil Procedure Section 1285.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: After years of effort, in 2022, the Legislature enacted the Plastic Pollution Prevention and Packaging Producer Responsibility Act to create an extended producer responsibility program seeking to decrease single-use service ware and packaging by way of source reduction and the development of more postconsumer recycled content. (SB 51 (Allen) Chap. 75, Stats. 2022.) That measure created an advisory board at the Department of Resources Recycling and Recovery (Cal Recycle) to assist the Department in implementing the program. At the heart of the new program are producer responsibility organizations (PROs) that are industry-created entities designed to develop and implement approaches to create a circular economy in a financially prudent manner, with oversight and enforcement provided by the government. One of the primary tasks of a PRO is to develop and deploy a plan for creating the circular economy. As with many governmental edicts with private-sector involvement, disputes regarding compliance are likely to arise. This bill provides for a non-binding arbitration system to be able to evaluate and make recommendations as to how to solve these disputes. In support of this measure the author states:
In June 2022, the Legislature and Governor approved SB 54 (Allen), the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which placed California at the forefront of tackling the environmental, health, and monetary costs associated with plastics. SB 303 improves the new law to ensure implementation aligns with legislative intent. Ambiguity in the definitions of “recycling” and “responsible end markets,” as well as ambiguity in the dispute resolution process, require crucial clarifications to ensure the program is properly implemented. SB 303 makes three minor revisions including: a minor edit to the definition of “recycling” to clarify the PRO and producers are responsible for ensuring material meets CalRecycle criteria not local governments or waste haulers; clarification of the definition of “responsible end markets” to better articulate that the end market is where the material is actually reclaimed and reconstituted into new material, not the entire collection and recycling process (which starts with consumers placing the material into a recycling bin and continues with it being sorted at recovery facilities); more detail around the dispute resolution function to make clear that the advisory board, and not CalRecycle, will recommend solutions to any dispute that may arise between the PRO and local governments.
The passage of SB 54 and the creation of PROs. After years of debate, in 2022, the Legislature finally adopted a sweeping bill to establish new minimum recycling requirements for single-use plastic packaging and food service wares. The Plastic Pollution Prevention and Packaging Producer Responsibility Act also implements new source pollution reduction targets for plastics and prohibits the sales of certain plastic products unless recycling targets can be met. The bill establishes goals for both plastic producers and local waste management agencies. For plastic producers, the primary means of compliance is through a PRO which in turn is required to produce a comprehensive plan for the reduction in plastic waste. At the waste management level, local agencies and the companies they contract with are required to implement some of the new recycling requirements. Under existing law, Cal Recycle is to establish an advisory board to help implement the new program and resolve any disputes that might arise between the state, PROs, and local agencies.
This bill. Of primary focus to this Committee, this bill establishes a voluntary arbitration process whereby disputes regarding financial disputes between the various parties implementing the Plastic Pollution Prevention and Packaging Producer Responsibility Act can seek to resolve disputes. The arbitrator would also be granted authority to resolve disputes regarding PRO plan’s impacts on local solid waste hauling networks. The bill would permit, upon agreement of all parties, the arbitrator to be appointed to review an initial determination of Cal Recycle’s advisory board as to how the dispute should be resolved. Once the arbitrator makes their determination, the proposed decision would be submitted to Cal Recycle, where it would be reviewed within 60 days of receipt to determine if the proposals is consistent with the Plastic Pollution Prevention and Packaging Producer Responsibility Act. If the proposed decision modifies a PRO’s plan, the Department must submit the plan for public comment. After reviewing the plan’s consistency with the law, and the public comments, the Department may approve or deny the arbitrator’s decision.
As it pertains to the conduct of the arbitration proceeding, the bill defaults to all existing procedures specified in the Code of Civil Procedure. The bill also states that the arbitration process does not foreclose judicial review of any disputes. Thus, these two provisions provide all parties adequate due process in having their concerns heard.
Beyond the arbitration provisions, this bill modifies and clarifies several definitions within the Plastic Pollution Prevention and Packaging Producer Responsibility Act, and makes various technical and conforming changes to the Act that fall outside the jurisdiction of this Committee.
This measure adopts the procedural guidelines for arbitration already provided by the Code of Civil Procedure. As noted this bill defaults to the existing Code of Civil Procedure sections that make up the California Arbitration Act (Code of Civil Procedure Section 1280 et seq.) The California Arbitration Act provides guidance as to how a neutral arbitrator is to be chosen, what evidence is to be considered and how it may be entered into the record, timelines for proceedings, and means of appeals. The only major procedural difference between the arbitrations contemplated by the Code of Civil Procedure and this bill is Cal Recycle’s final review and approval of a proposed decision. Given the Department’s role in overseeing California’s resource recovery programs and statutory direction to implement the Plastic Pollution Prevention and Packaging Producer Responsibility Act, this oversight appears prudent.
Minor technical amendments. As currently in print this bill refers to the arbitrator’s “decision.” Various stakeholders worry that this may be interpreted to be a final decision, thus negating Cal Recycle’s review and the voluntary nature of the arbitration contemplated by this measure. Accordingly, the author is offering amendments to insert the word “proposed” before the word “decision” in every instance in which the word is used in paragraphs (3) through (7) of subdivision (j) of Public Resources Code Section 42070.
ARGUMENTS IN SUPPORT: This measure is supported by a coalition of environmental and waste management groups who argue it is a helpful addition to the Plastic Pollution Prevention and Packaging Producer Responsibility Act. A coalition letter in support of the bill state:
As part of the SB 54 process, the solid waste industry raised some concerns with the final version of SB 54, and because of the press of time to enact SB 54 before June 30, those concerns could not be addressed in SB 54. SB 303 seeks to address those outstanding concerns, as explained below.
SB 54 governs the producers of single-use packaging and plastic single-use food service ware. It is important to recognize that the provisions of SB 54 are applied to the producer responsibility organization (PRO) of those covered materials and that local agencies and solid waste services providers do not face redundant or even conflicting regulation. Therefore, we believe that it is important to make clear that the PRO provides data and verification that covered materials are shipped to responsible end markets. SB 303 provides necessary clarity of SB 54’s application to the PRO.
We also believe that provisions in SB 54 will impose unknown restrictions on the movement of covered materials, an especially concerning development given the existence of current franchise agreements that may be inconsistent with future CalRecycle regulations. SB 303 clarifies the definition of “processing” and “responsible end market” to not overly burden the movement of material to end markets and reflect that contaminants are removed during processing, not at the end market.
Last, as reflected throughout SB 54, implementation of the program must not violate existing franchise agreements between the solid waste industry and local government, nor negatively impact the billions of dollars of existing recycling and materials handling infrastructure. If, by chance, violation of these provisions occurs, the dispute resolution process outlined in SB 303 will allow parties to resolve these issues without being forced to turn to the courts as the first option.
REGISTERED SUPPORT / OPPOSITION:
Support
A Voice for Choice Advocacy
Athens Services
California Waste & Recycling Association
California Waste Haulers Council
Climate Action California
Climate Reality Project, Los Angeles Chapter
Climate Reality Project, San Fernando Valley
Recology
Republic Services - Western Region
Resource Recovery Coalition of California
Waste Management
Opposition
None on file
Analysis Prepared by: Nicholas Liedtke / JUD. / (916) 319-2334
Date of Hearing: June 26, 2023
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Luz Rivas, Chair
SBPCA Bill Id:SB 303
Author:(Allen) – As Amended Ver:April 27, 2023
SENATE VOTE: 40-0
SUBJECT: Solid waste: Plastic Pollution Prevention and Packaging Producer Responsibility Act
SUMMARY: Revises and makes technical and clarifying amendments to the Plastic Pollution Prevention and Packaging Producer Responsibility Act (Act), including revising the definition of “responsible end markets” and establishing an arbitration process for disputes between entities subject to the Act.
EXISTING LAW:
- Establishes the Act (Public Resources Code (PRC) 42040 et seq.), which:
- Requires, by January 1, 2024, producers of covered material to form and join a producer responsibility organization (PRO), subject to specified requirements and Department of Resources Recycling and Recovery (CalRecycle) approval, to carry out the requirements of the Act. Prohibits a producer of covered material from selling, offering for sale, importing, or distributing covered materials in the state unless the producer is approved to participate in the PRO.
- Requires that all covered material offered for sale, distributed, or imported into the state on and after January 1, 2032, is recyclable in the state or eligible to be labeled "compostable," as specified.
- Requires that all plastic covered material offered for sale, distributed, or imported into the state to meet the following recycling rates:
- Not less than 30% of covered material on and after January 1, 2028;
- Not less than 40% of covered material on and after January 1, 2030; and,
- Not less than 65% of covered material on and after January 1, 2032.
- By January 1, 2032, requires the PRO to develop and implement a plan to achieve 25% reduction by weight and 25% reduction by plastic component for covered material sold, offered for sale, or distributed in the state, as prescribed, including interim targets of 10% by January 1, 2027, and 20% by January 1, 2030.
- Establishes a producer responsibility advisory board for the purpose of identifying barriers and solutions to creating a circular economy consistent with the Act and advising CalRecycle, producers, and the PRO in the implementation of the Act. Requires the advisory board to evaluate claims that actions taken pursuant to the Act are “disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements” and, as specified, submit the claim to CalRecycle for potential recommendations to resolve the dispute.
- Requires the producer responsibility plans to include, in part:
- How the plan is supplemental to, and not in conflict with, disruptive of, or adversely affecting the performance of the solid waste network providing services in accordance with local solid waste handling requirements and the intent described in PRC 40004, and how the PRO will leverage and use existing collection programs and recycling, composting, sorting, and processing infrastructure and how, except as specified, the plan will be implemented using existing solid waste collection programs and facilities as the designated system for the curbside collection and processing of covered material; and,
- In accordance with PRC 40059 how the plan and activities undertaken pursuant to the plan will be implemented in compliance with state and local laws, rules, and regulations applicable to solid waste handling and in a manner that does not violate existing franchise agreements.
- How the plan is supplemental to, and not in conflict with, disruptive of, or adversely affecting the performance of the solid waste network providing services in accordance with local solid waste handling requirements and the intent described in PRC 40004, and how the PRO will leverage and use existing collection programs and recycling, composting, sorting, and processing infrastructure and how, except as specified, the plan will be implemented using existing solid waste collection programs and facilities as the designated system for the curbside collection and processing of covered material; and,
- Prohibits the PRO budget from proposing investing in activities that violate PRC 40004 or an agreement entered into pursuant to PRC 40059. Requires the budget to include a mechanism to disburse funds for identified activities.
- Requires, by January 1, 2024, producers of covered material to form and join a producer responsibility organization (PRO), subject to specified requirements and Department of Resources Recycling and Recovery (CalRecycle) approval, to carry out the requirements of the Act. Prohibits a producer of covered material from selling, offering for sale, importing, or distributing covered materials in the state unless the producer is approved to participate in the PRO.
- Pursuant to AB 341 (Chesbro), Chapter 476, Statutes of 2011:
- States that it is the intent of the Legislature that the development of the additional solid waste processing and composting capacity that is needed to meet state objectives for decreasing solid waste disposal by identifying incentives for local governments to locate and approve new or expanded facilities that meet and exceed their capacity needs, and to recognize local agencies that make significant contributions to the state’s overall solid waste reduction and recycling objectives through the siting of facilities for the processing and composting of materials diverted from the solid waste stream.
- States that by establishing commercial recycling requirements, the Legislature does not intend to limit a right afforded to local governments pursuant to PRC 40059, or to modify or abrogate in any manner the rights of a local government or solid waste enterprise with regard to a solid waste handling franchise or contract. (PRC 40004)
- States that it is the intent of the Legislature that the development of the additional solid waste processing and composting capacity that is needed to meet state objectives for decreasing solid waste disposal by identifying incentives for local governments to locate and approve new or expanded facilities that meet and exceed their capacity needs, and to recognize local agencies that make significant contributions to the state’s overall solid waste reduction and recycling objectives through the siting of facilities for the processing and composting of materials diverted from the solid waste stream.
- States that each county, city, district attorney, or other local governmental agency may determine the following:
- Aspects of solid waste handling which are of local concern, including frequency of collection, means of collection and transportation, level of services, charges and fees, and nature, location, and extent of providing solid waste handling services;
- Whether the services are to be provided by means of nonexclusive franchise, contract, license, permit, or otherwise with or without competitive bidding, or if the public health, safety, and well-being so require, by partially exclusive or wholly exclusive franchise, contract, license, permit, or otherwise, either with or without competitive bidding. The authority to provide solid waste handling services may be granted under the terms and conditions prescribed by the governing body of the local government agency by resolution or ordinance. (PRC 40059)
- Aspects of solid waste handling which are of local concern, including frequency of collection, means of collection and transportation, level of services, charges and fees, and nature, location, and extent of providing solid waste handling services;
- States that nothing in the Integrated Waste Management Act modifies or abrogates any franchise previously granted or extended by any county or other local government agency or any contract, license, or permit to collect solid waste previously granted or extended by a city, county, or a city and county. (PRC 40059)
THIS BILL:
- Revises definitions with in the Act:
- Revises the definition of “processing” to mean to sort, segregate, break or flake, and clean material to prepare it for use by a responsible end market in which the recovery of materials and the disposal of contaminants is conducted in a way that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety;
- Revises the definition of “recycle” or “recycling” to specify that CalRecycle’s regulations to define guidelines and verification requirements apply to the PRO and any producers complying with the Act, as specified.
- Revises the definition of “responsible end market” to mean an entity that uses recycled cover material for the manufacturing of products when the manufacturing, including the disposal of contaminants, is conducted in a way that benefits the environment and minimizes risks to public health and worker health and safety; and,
- Makes technical and clarifying changes to other definitions.
- Authorizes CalRecycle to adopt regulations to establish standards for the PRO regarding responsible end markets for covered material and to establish criteria that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety.
- Specifies that if an affected entity asserts that specific actions taken by the PRO, producer, or an entity under contract with the PRO are not consistent with the plan components regarding adverse effects on solid waste networks or the requirement that the budget not propose investing in activities in violation of the Legislature’s intent pursuant to PRC sections 40004 and 40051.1 that specified actions are not intended to limit solid waste franchises or contracts, the entity may bring the concern to the advisory board for discussion and requires the advisory board to offer a recommendation for resolution within 90 days of submission.
- After the advisory board offers its recommendation, authorizes either party to initiate nonbinding arbitration by a neutral arbitrator, as specified, to determine whether specific actions taken by the PRO, a producer, or an entity under contract with the PRO that are not consistent with the plan components regarding adverse effects on solid waste networks or the requirement that the budget not propose investing in activities in violation of the Legislature’s intent pursuant to PRC sections 40004 and 40051.1 that specified actions are not intended to limit solid waste franchises or contracts and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements. Requires the arbiter to consider the information presented to the advisory board and any other information provided by the parties.
- If the arbiter determines that specified actions taken by the PRO, producer, or an entity under contract with the PRO are not consistent with the plan components regarding adverse effects on solid waste networks or the requirement that the budget not propose investing in activities in violation of the Legislature’s intent pursuant to PRC sections 40004 and 40051.1 that specified actions are not intended to limit solid waste franchises or contracts and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements
FISCAL EFFECT: According to the Senate Appropriations Committee, CalRecycle estimates ongoing costs of $286,000 annually [California Circular Economy Fund (CCEF)] starting in Fiscal Year 2023-24 for staffing costs to implement provisions of this bill. In addition, CalRecycle notes that SB 303 would delay its ability to develop regulations related to the Act in time to meet its January 1, 2025 deadline, which would result in potentially substantial one-time costs of at least $150,000 (CCEF) to reopen the regulations.
COMMENTS:
- Author’s statement:
In June 2022, the Legislature and Governor approved SB 54 (Allen), the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which placed California at the forefront of tackling the environmental, health, and monetary costs associated with plastics. SB 303 improves the new law to ensure implementation aligns with legislative intent. Ambiguity in the definitions of “recycling” and “responsible end markets,” as well as ambiguity in the dispute resolution process, require crucial clarifications to ensure the program is properly implemented. SB 303 makes three minor revisions including: a minor edit to the definition of “recycling” to clarify the PRO and producers are responsible for ensuring material meets CalRecycle criteria not local governments or waste haulers; clarification of the definition of “responsible end markets” to better articulate that the end market is where the material is actually reclaimed and reconstituted into new material, not the entire collection and recycling process (which starts with consumers placing the material into a recycling bin and continues with it being sorted at recovery facilities); more detail around the dispute resolution function to make clear that the advisory board, and not CalRecycle, will recommend solutions to any dispute that may arise between the PRO and local governments.
- The Act. The Act was established by SB 54 (Allen, Chapter 75, Statutes of 2022), and created sweeping new minimum recycling requirements for single-use plastic packaging and food service ware (covered material), source reduction requirements for plastic covered material, and prohibits the sale or distribution of expanded polystyrene unless it meets accelerated recycling rates. SB 54 requires producers to comply with the bill’s requirements through an expanded producer responsibility program. This bill additionally requires producers, through the producer responsibility organization, to pay $500 million per year for ten years (from 2027 to 2037) to be deposited into the California Plastic Pollution Mitigation Fund, which is established to fund various environmental and public health programs.
- This bill. This bill is intended to revise and cleanup provisions of SB 54. SB 303 includes some pure cleanup, such as correcting “food service ware” to “food serviceware” and clarifying the definitions of “materials recovery facility” and “processing.” The bill also makes substantive changes, including revising the definition of “responsible end market” to specify that any associated regulations apply to the PRO and not to other entities in the waste collection and processing chain and moving a provision that establishes CalRecycle regulatory authority to the appropriate code section. The bill also establishes an arbitration process that is intended to resolve conflicts between the PRO or producers and other parties.
- Limiting applicability. Under the existing definition of responsible end market in the Act, CalRecycle has the ability to regulate entities along the recycling supply chain to ensure that the process of handling recyclables is consistent with the requirements of the Act. This bill limits CalRecycle’s regulatory authority to the PRO and individual producers. According to the author and certain stakeholders, this revision reflects the legislative intent of SB 54 and mirrors other EPR programs, which place the responsibility for compliance on the PRO.
According to CalRecycle, this change will also limit CalRecycle’s ability to collect information necessary to track materials subject to the bill through the collection and recycling chain, which will make it difficult, if not impossible, for CalRecycle to effectively determine whether or not the material is managed in accordance with the requirements of the Act. - Arbitration authority. This bill establishes an arbitration process for disputes that are not settled by the bringing the matter to the advisory board for resolution. The arbitration process is intended to resolve financial disputes between parties implementing that Act, as well as specific requirements of a plan that may create adverse effects on solid waste networks and actions that conflict with the requirement that the PRO’s budget not propose investing in activities that are inconsistent with prior legislative intent that specified actions are not intended to limit solid waste franchises or contracts. Some actions ordered by an arbiter, such as resolving financial disputes, may not impact the implementation of the Act. However, the bill also authorizes an arbiter to order actions that conflict with an approved PRO plan, require revisions to an approved plan without CalRecycle review or approval and that may impede achieving the goals of the Act. The bill allows “a party” (i.e., a participant in the arbitration process) to request CalRecycle to conduct a de novo adjudicative proceeding within 30 days of the arbiter’s decision; however, any entity that is not a party in the arbitration, including CalRecycle or affected stakeholders, has no option to request a review of the decision. This exceptionally broad authority granted to the arbiter undermines the state’s oversight of the program and may impede the state’s and PRO’s ability to meet the goals and requirements of the Act.
- Meeting deadlines. This bill makes revisions to provisions in the Act for which CalRecycle has already begun the process of promulgating regulations. For example, CalRecycle has made significant progress working on the definition of “responsible end market” in its informal rulemaking process. CalRecycle hosted a workshop that discussed the definition on May 31st, and has collected written feedback from the public that was due on June 14th in preparation for further workshops on June 28th and 29th. The revisions to the definition included in this bill would go into effect on January 1, 2024, which would require CalRecycle to revise and reopen discussions about the term after that date, potentially delaying the rulemaking process necessary to implement the Act. The aggressive timelines and expansive nature of the Act require that changes to its provisions be kept to a minimum to ensure that delays in implementation are minimal.
- Suggested amendments: The committee may wish to make the following amendments to the bill:
- Clarify that the definition of “responsible end market” references the definition of recycling to ensure that it does not include processes that are prohibited under the PRC 42041(aa)(2).
- Require the PRO certify that contracts with recyclers, processors, and responsible end markets meet the standards established by the Act.
- Revise the arbitration provision to:
- Require that the final decision by the arbitrator is submitted to CalRecycle for review when it is submitted to the advisory board;
- Require CalRecycle to review the arbitrator’s decision and determine if it is consistent with the requirements of the Act. If the decision includes revisions to a producer responsibility plan, establish public notice requirements and require CalRecycle to approve or disapprove the revision, based on the revision’s consistency with the requirements of the Act;
- Allow stakeholders that are not a party to the arbitration to request a de novo adjudicative proceeding, and extend the timeline for requesting a proceeding from 30 days to 60 days; and,
- Specify that if no action is taken by CalRecycle or any other party within 60 days of the arbitrator’s decision being submitted to the advisory committee and CalRecycle, the decision becomes binding.
- Related legislation. AB 1526 (Natural Resources Committee) is an omnibus code cleanup bill that includes numerous technical, correction, and clarifying amendments to SB 54. This bill has been referred to the Senate Environmental Quality Committee.
- Double referral. This bill has been double referred to the Assembly Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
Athens Services
California Waste & Recycling Association
California Waste Haulers Council
Climate Action California
Climate Reality Project, Los Angeles Chapter
Climate Reality Project, San Fernando Valley
Recology
Republic Services, Western Region
Waste Management
Opposition
None on file
Analysis Prepared by: Elizabeth MacMillan / NAT. RES. /
SENATE RULES COMMITTEE Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB 303 |
THIRD READING
Bill No: SB 303
Author: Allen (D)
Amended: 4/27/23
Vote: 21
SENATE ENVIRONMENTAL QUALITY COMMITTEE: 7-0, 4/19/23
AYES: Allen, Dahle, Gonzalez, Limón, Menjivar, Nguyen, Skinner
SENATE JUDICIARY COMMITTEE: 11-0, 4/25/23
AYES: Umberg, Wilk, Allen, Ashby, Caballero, Durazo, Laird, Min, Niello, Stern, Wiener
SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/18/23
AYES: Portantino, Jones, Ashby, Bradford, Seyarto, Wahab, Wiener
SUBJECT: Solid waste: Plastic Pollution Prevention and Packaging Producer Responsibility Act
SOURCE: Author
DIGEST:
This bill makes clarifying amendments to the Plastic Pollution Prevention and Packaging Producer Responsibility Act (SB 54, Allen, Chapter 75, Statutes of 2022).
ANALYSIS:
Existing law:
- Establishes the California Integrated Waste Management Act of 1989 (IWMA), administered by the Department of Resources Recycling and Recovery (CalRecycle), to regulate the disposal, management, and recycling of solid waste. Establishes under the IWMA a state policy goal that at least 75% of solid waste be source reduced, recycled, or composted by 2020. (Public Resources Code (PRC) §§ 40000 et. seq.)
- Establishes the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which imposes minimum recycled content requirements and source reduction requirements for single-use packaging and plastic food serviceware, to be achieved through an extended producer responsibility (EPR) program. (PRC § 42070)
This bill makes clarifying technical, definitional, and procedural changes to the Plastic Pollution Prevention and Packaging Producer Responsibility Act.
Background
- Solid waste in California. For more than three decades, CalRecycle has been tasked with reducing the amount of waste that is landfilled and promoting recycling in California through the IWMA. The IWMA establishes a goal of source reducing, recycling, or composting at least 75% of solid waste generated in the State by 2020. However, according to CalRecycle’s 2021 State of Disposal and Recycling, the State’s 2021 recycling rate was just 40%. The single largest contributor to this recycling rate was recyclables that were exported out of the state. The statewide recycling rate has declined over the last decade, following a peak of 50% in 2014. The recycling rate has been impacted and may continue to be impacted by global policies like China’s National SWORD and the Basel Convention, which restrict the amount of foreign waste these countries will accept.
The Legislature has enacted various laws to move the needle on the state’s waste diversion goal, including policies that target organic material and plastic, two major categories of waste. The Legislature chartered a course toward comprehensive organics recycling in 2016 with the passage of SB 1383 (Lara, Chapter 395, Statutes of 2016), which requires local entities to build organics recycling infrastructure to achieve a 75% composting rate by 2025. Major plastics legislation followed in 2022 with the passage of SB 54 (Allen, 2022) which uses an EPR program to significantly reduce plastics in packaging and single-use serviceware.
- The problem with plastic. Plastics pose a threat to the environment from origin to end-of-life. Plastics are petroleum-based and have a large carbon footprint. The global production of plastic is responsible for three and a half percent of all greenhouse gas emissions, or more carbon emissions than the entire aviation sector. In 2021, global plastics production was estimated at 390.7 million metric tons, a four percent increase from the previous year. The United Nations Environment Programme reports that only 9% of all plastic ever made has been recycled. A further 12% has been incinerated, and the remaining 79% has accumulated in landfills or in natural environments.
Once plastics enter the environment, they remain there for hundreds to thousands of years. Plastics do not break down into their constituent parts, but instead break down into very small particles of plastic, or microplastics (plastics under five millimeters). Because they are so small, microplastics can travel in the air, in water, and can be easily absorbed by living things and accumulate up the food chain. Microplastics have been found in the most pristine natural environments on earth, including in the deep ocean, pristine areas of national parks, Antarctic sea ice, and in human placentas. Laboratory studies have found that microplastics increase the risk of cancer and disrupt hormone pathways. - The basics of EPR programs. One strategy to reduce waste generation is to put responsibility on producers to oversee the safe end-of-life of their products through an EPR program. EPR programs rely on industry, formalized in a product stewardship organization (PRO), to develop and implement approaches to create a circular economy that make business sense, with oversight and enforcement provided by the government. EPR programs require producers to factor in costs associated with disposal. In doing so, EPR programs incentivize industry to design products with waste minimization in mind. Currently, there are six statewide EPR programs: paint, carpet, mattresses, pharmaceutical and sharps waste, batteries, and, following the passage of SB 54 (Allen, 2022), packaging and single-use plastic serviceware items.
- SB 54 goals. SB 54 uses an EPR approach to reach ambitious targets to reduce single-use serviceware and packaging through source reduction and postconsumer recycled content. These goals include:
- Requiring all covered material sold in the state to be recyclable or compostable by January 1, 2032;
- Requiring that all plastic-covered material sold in the state meet a recycling rate of 65% by Jan 1, 2032, with interim goals beginning in 2028;
- Prohibiting producers of expanded polystyrene (EPS) from selling EPS food serviceware unless they meet a 65% recycling rate by January 1, 2032; and
- Requiring the PRO to pay $500 million per year from January 1, 2027, through January 1, 2037 to fund the program, and authorizes the PRO to collect up to $150 million from plastic manufacturers.
- SB 54 cleanup. As with any major piece of legislation, SB 54 contained some ambiguities that only became apparent after the bill had been signed into law. Cleanup for SB 54 includes minor spelling corrections and more substantive clarifications on processes and definitions. SB 303 clarifies that the advisory board, not CalRecycle, will handle complaints and arbitrations with producers and adds details to that process. SB 303 also amends the definition of “responsible end market” to specify a narrow scope for “end markets.” Finally, SB 303 amends the definition of “recycling” to clarify that only producers, not waste haulers or local governments, are required to meet recycling requirements in the bill.
Comments
- Purpose of Bill. According to the author, “In June 2022, the Legislature and Governor approved SB 54 (Allen), the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which placed California at the forefront of tackling the environmental, health, and monetary costs associated with plastics. SB 303 makes three minor revisions including a minor edit to the definition of “recycling” to clarify the PRO and producers are responsible for ensuring material meets CalRecycle criteria, not local governments or waste haulers; clarification of the definition of “responsible end markets” to better articulate that the end market is where the material is actually reclaimed and reconstituted into new material, not the entire collection and recycling process (which starts with consumers placing the material into a recycling bin and continues with it being sorted at recovery facilities); more detail around the dispute resolution function to make clear that the advisory board, and not CalRecycle, will recommend solutions to any dispute that may arise between the PRO and local governments.”
- Clarifying the definition of recycling. Because SB 54 encompasses such a wide swath of materials and sets such ambitious goals, the definitions and processes by which the EPR program operates have significant impacts on waste reduction policy. In SB 54, the current definition of “recycling” does not specify whether recycling requirements fall on the shoulders of producers or on every entity along the product chain, including waste haulers and local governments. SB 303 clarifies the author’s intent that only producers are subject to CalRecycle’s regulations and requirements for recycling.
Related/Prior Legislation
SB 54 (Allen Chapter 75, Statutes of 2022) established the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which imposes minimum content and source reduction requirements for plastic single-use packaging and food service ware through an EPR program.
AB 1080 (Gonzalez, 2019) would have enacted the California Circular Economy and Pollution Reduction Act, which would impose a comprehensive regulatory scheme on producers, retailers, and wholesalers of single-use packaging, overseen by CalRecycle. This bill died at the desk before coming up for Assembly concurrence vote.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No
According to the Senate Appropriations Committee:
- The Department of Resources Recycling and Recovery (CalRecycle) estimates ongoing costs of $286,000 annually (California Circular Economy Fund [CCEF]) starting in Fiscal Year 2024-25 for staffing costs to implement the provisions of this bill. In addition, CalRecycle notes that SB 303 would delay its ability to develop regulations related to the Act in time to meet its January 1, 2025 deadline, which could result in potentially substantial one-time costs of at least $150,000 (CCEF) to reopen the regulations.
SUPPORT: (Verified 5/17/23)
A Voice for Choice Advocacy
OPPOSITION: (Verified 5/17/23)
None received
Prepared by: Brynn Cook / E.Q. / (916) 651-4108
5/20/23 12:41:17
**** END ****
SENATE COMMITTEE ON
Senator Anthony Portantino, Chair
2023 - 2024 Regular Session
SB 303 (Allen) - Solid waste: Plastic Pollution Prevention and Packaging Producer Responsibility Act
Version: | Policy Vote: |
Urgency: | Mandate: |
Hearing Date: | Consultant: |
Bill Summary:
This bill would make changes to the Plastic Pollution Prevention and Packaging Producer Responsibility Act (Act) including authorizing nonbinding arbitration if requested by an affected entity that asserts specific actions taken by the Producer Responsibility Organization (PRO), a producer, or entity under contract with the PRO are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements, as specified.
Fiscal Impact:
- The Department of Resources Recycling and Recovery (CalRecycle) estimates ongoing costs of $286,000 annually (California Circular Economy Fund [CCEF]) starting in Fiscal Year 2024-25 for staffing costs to implement the provisions of this bill. In addition, CalRecycle notes that SB 303 would delay its ability to develop regulations related to the Act in time to meet its January 1, 2025 deadline, which could result in potentially substantial one-time costs of at least $150,000 (CCEF) to reopen the regulations.
Background:
Extended producer responsibility (EPR). EPR refers to a waste management strategy that makes the manufacturer of a product responsible for the products’ entire life–cycle costs including its end–of–life costs associated with recycling or disposal. These costs have traditionally been borne by local governments (and ultimately tax payers) through municipal waste disposal programs. This traditional structure results in an “externality” or a situation where the costs of recycling or disposal are not paid by the buyer or seller of the product, but rather by a third party (such as tax payers). EPR shifts the costs of managing a product at its end of life from waste disposal programs to the manufacturer of the product. By requiring manufacturers to cover end–of–life costs, these costs are incorporated or “internalized” into the total cost of the product when it is sold. Therefore, the price that consumers pay reflects the entire cost of the product—its production and disposal. This means that the people making and using the product cover all of its costs, rather than local governments and taxpayers covering a share of disposal costs. Moreover, manufacturers have a financial incentive to design products that are inexpensive to recycle. In California, EPR is already used for carpet, mattresses, and paint.
The Plastic Pollution Prevention and Packaging Producer Responsibility Act. Last year the Legislature enacted the Act (SB 54 (Allen, Ch. 75 Stats. 2022)) to establish an EPR program approach to meet ambitious targets to decrease single-use serviceware and packaging by way of source reduction and postconsumer recycled content. These goals include:
- Requiring all covered material sold in the state to be recyclable or compostable by January 1, 2032;
- Requiring that all plastic-covered material sold in the state meet a recycling rate of 65% by Jan 1, 2032, with interim goals beginning in 2028;
- Prohibiting producers of expanded polystyrene (EPS) from selling EPS food serviceware unless they meet a 65% recycling rate by January 1, 2032; and
- Requiring the PRO to pay $500 million per year from January 1, 2027, through January 1, 2037 to fund the program, and authorizes the PRO to collect up to $150 million from plastic manufacturers.
Proposed Law:
This bill would make changes to the Act. Specifically, this bill would:
- Make various changes to the Act, including authorizing the Department to adopt regulations to establish standards for the PRO regarding responsible end markets for covered material and to establish criteria that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety.
- Provide that if an affected entity asserts that specific actions taken by the PRO, a producer, or an entity under contract with the PRO are not consistent with the provisions described in 1)b) of the existing law section above and those actions are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements the affected entity may initiate nonbinding arbitration after the advisory board offers its recommendation to resolve the issue.
- Provide that this action is taken without prejudice to seeking judicial relief.
- The arbitrator is to determine whether specific actions taken by the PRO, a producer, or an entity under contract with the PRO are not consistent with paragraph (3) or (4) of subdivision (c) of, or paragraph (2) of subdivision (i) of, Section 42051.1 and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements.
- The arbiter is required to consider the information presented to the advisory board and any other information provided to the arbiter by the parties.
- Provide that if the arbiter determines that specific actions taken by the PRO, a producer, or an entity under contract with the PRO are not consistent with paragraph (3) or (4) of subdivision (c) of, or paragraph (2) of subdivision (i) of, Section 42051.1 and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements, the arbiter may order actions, to the extent feasible, to remedy the disruption or adverse effect, including, but not limited to, requiring a change to the producer responsibility plan causing the disruption or adverse effect.
- The arbitrator’s decision in a nonbinding arbitration is final unless within 30 days after the arbitrator delivers the decision to the advisory board a party requests that the department conduct a de novo adjudicative proceeding.
Related Legislation:
SB 54 (Allen Chapter 75, Statutes of 2022) establishes the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which imposes minimum content and source reduction requirements for plastic single-use packaging and food service ware through an EPR program.
AB 1080 (Gonzalez, 2019) would have enacted the California Circular Economy and Pollution Reduction Act, which would impose a comprehensive regulatory scheme on producers, retailers, and wholesalers of single-use packaging, overseen by CalRecycle. This bill died at the desk before coming up for Assembly concurrence vote.
-- END --
Senator Thomas Umberg, Chair
2023-2024 Regular Session
Bill No: SB 303 (Author:Allen)
Version: March 22, 2023
Hearing Date: April 25, 2023
Fiscal: Yes
Urgency: No
AMConsultant:
SUBJECT
Solid waste: Plastic Pollution Prevention and Packaging Producer Responsibility Act
DIGEST
This bill makes changes to the Plastic Pollution Prevention and Packaging Producer Responsibility Act (Act) including authorizing nonbinding arbitration if requested by an affected entity that asserts specific actions taken by the Producer Responsibility Organization (PRO), a producer, or entity under contract with the PRO are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements, as specified.
EXECUTIVE SUMMARY
Last year the Legislature enacted the Act (SB 54 (Allen, Ch. 75 Stats. 2022)) to establish an extended producer responsibility (EPR) program approach to meet ambitious targets to decrease single-use serviceware and packaging by way of source reduction and postconsumer recycled content. The Act was enacted in response to a ballot initiative that qualified for November 8, 2022, General Election that, among other things, placed requirements on producers to ensure that single-use plastic packaging and foodware is recyclable, reusable, refillable, or compostable by 2030. The initiative was withdrawn after the passage of the Act. This bill seeks to make some changes to the Act, including establishing a nonbinding arbitration procedure for an affected entity to assert that certain actions taken by the PRO, a producer, or entity under contract with the PRO are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities.
The bill is author sponsored. The bill is supported by A Voice for Choice Advocacy. There is no known opposition. The bill passed the Senate Environmental Quality Committee on a vote of 7 to 0.
PROPOSED CHANGES TO THE LAW
Existing law:
- Establishes the Plastic Pollution Prevention and Packaging Producer Responsibility Act (Act), which is to be administered by the Department of Resources Recycling and Recovery (Department), imposing minimum recycled content requirements and source reduction requirements for single-use packaging and plastic food serviceware that are to be achieved through an EPR program. (Pub. Res. Code § 42040 et. seq.)[1]
- Prohibits a producer from selling, offering for sale, importing, or distributing covered materials in the state unless the producer is approved to participate in the producer responsibility plan of a producer responsibility organization (PRO), as prescribed, for the source reduction, collection, processing, and recycling of covered material, except as provided.
- Requires a PRO plan to contain certain provisions, including, but not limited to:
- How the plan is supplemental to, and not in conflict with, disruptive of, or adversely affecting, the performance of the solid waste network providing services in accordance with local solid waste handling requirements and the intent described in Section 40004,[2] and how the PRO will leverage and utilize existing collection programs and recycling, composting, sorting, and processing infrastructure. (§ 420051.1 (c)(3).)
- In accordance with Section 40059, [3] how the plan and the activities undertaken pursuant to the plan will be implemented in compliance with state and local laws, rules, and regulations applicable to solid waste handling and in a manner that does not violate existing franchise agreements. (Id. at (c)(4).)
- Prohibits the budget from proposing investing in activities in violation of Section 40004 or an agreement entered into pursuant to Section 40059, and requires it to include a mechanism to disburse funds for identified activities. (Id. at (i)(2).)
- Governs arbitrations in California, pursuant to the California Arbitration Act (CAA), including the enforcement of arbitration agreements, rules for neutral arbitrators, the conduct of arbitration proceedings, and the enforcement of arbitration awards. (Code Civ. Proc. §§ 1280 et. seq.)
This bill:
- Makes various changes to the Act, including authorizing the Department to adopt regulations to establish standards for the PRO regarding responsible end markets for covered material and to establish criteria that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety.
- Provides that if an affected entity asserts that specific actions taken by the PRO, a producer, or an entity under contract with the PRO are not consistent with the provisions described in 1)b) of the existing law section above and those actions are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements the affected entity may initiate nonbinding arbitration after the advisory board offers its recommendation to resolve the issue.
- Provides that this action is taken without prejudice to seeking judicial relief.
- The arbitrator is to determine whether specific actions taken to meet the requirements of the Act are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements.
- The arbiter is required to consider the information presented to the advisory board and any other information provided to the arbiter by the parties.
- Provides that if the arbiter determines that specific actions are disruptive or otherwise have an adverse effect, the arbiter may order actions, to the extent feasible, to remedy the disruption or adverse effect, including, but not limited to, requiring a change to the producer responsibility plan causing the disruption or adverse effect.
COMMENTS
- Stated need for the bill
The author writes:
In June 2022, the Legislature and Governor approved SB 54 (Allen), the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which placed California at the forefront of tackling the environmental, health, and monetary costs associated with plastics. SB 303 improves the new law to ensure implementation aligns with legislative intent. Ambiguity in the definitions of “recycling” and “responsible end markets,” as well as ambiguity in the dispute resolution process, require crucial clarifications to ensure the program is properly implemented. SB 303 makes three minor revisions including: a minor edit to the definition of “recycling” to clarify the PRO and producers are responsible for ensuring material meets CalRecycle criteria not local governments or waste haulers; clarification of the definition of “responsible end markets” to better articulate that the end market is where the material is actually reclaimed and reconstituted into new material, not the entire collection and recycling process (which starts with consumers placing the material into a recycling bin and continues with it being sorted at recovery facilities); more detail around the dispute resolution function to make clear that the advisory board, and not CalRecycle, will recommend solutions to any dispute that may arise between the PRO and local governments.
- Plastic Pollution Prevention and Packaging Producer Responsibility Act
Last year the Legislature enacted the Plastic Pollution Prevention and Packaging Producer Responsibility Act (Act) (SB 54 (Allen, Ch. 75 Stats. 2022).). The Act uses an EPR program approach to reach ambitious targets to decrease single-use serviceware and packaging by way of source reduction and postconsumer recycled content. As the Senate Environmental Quality Committee analysis explains, an EPR program is a program that relies on “industry, formalized in a product stewardship organization (PRO), to develop and implement approaches to create a circular economy that make business sense, with oversight and enforcement provided by the government. EPR programs require producers to factor in costs associated with disposal. In doing so, EPR programs incentivize industry to design products with waste minimization in mind.”[4] Six statewide EPR programs currently exist in California for paint, carpets, mattresses, pharmaceutical and sharps waste, batteries, and packaging and single-use plastic serviceware items.
- Non-binding arbitration
This bill authorizes nonbinding arbitration to be initiated by an affected entity that asserts specific actions taken by the PRO, a producer, or an entity under contract with the PRO are not consistent with the specified provisions of Act and those actions are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements. Those specified provision of the Act are described in Existing Law 1)b) above. Essentially they are actions that adversely affect the performance of a solid waste network providing services in accordance with local solid waste handling requirements, including adversely affecting an existing franchise agreement. The bill specifies that the nonbinding arbitration does not prejudice either party and must be consistent with the procedures under the CAA. The bill provides that, if the arbiter determines those specific actions are disruptive or otherwise have an adverse effect, then the arbiter can order actions, to the extent feasible, to remedy the disruption or adverse effect. These include requiring a change to the producer responsibility plan causing the disruption or adverse effect.
It is unclear under the bill what effect the nonbinding arbitration would have if one party chooses to initiate nonbinding arbitration but the other party does not want to participate. Is the initiating party’s only recourse to then pursue their action in court or with the Department? Additionally, since the arbitration is nonbinding, it is unclear what force the arbiter’s determination would have on the parties. Do the parties have a certain amount of days to accept the arbiter’s determination? If they do accept the arbiter’s determination, does it then become binding on the parties? The author may wish to address these issues to ensure that it is clear how the nonbinding arbitration provisions of the bill are intended to function.
- Proposed amendments
The author mays wish to amend the bill to address the issues raised regarding nonbinding arbitration. The specific amendments are as follows:
Amendment 1
On page 17, in line 11, strike out “federal” and insert:
Federal
Amendment 2
On page 20, in line 34, strike out “arbitration,” and insert:
arbitration by a neutral arbitrator with the consent of all parties,
Amendment 3
On page 20, in line 38, strike out “to meet the requirements of this chapter are”, strike out lines 39 and 40, on page 21, strike out lines 1 and 2, in line 3, strike out “requirements.” and insert:
by the PRO, a producer, or an entity under contract with the PRO are not consistent with paragraph (3) or (4) of subdivision (c) of, or paragraph (2) of subdivision (i) of, Section 42051.1 and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements.
Amendment 4
On page 21, in line 7, strike out “are disruptive or otherwise have an adverse effect,” and insert:
taken by the PRO, a producer, or an entity under contract with the PRO are not consistent with paragraph (3) or (4) of subdivision (c) of, or paragraph (2) of subdivision (i) of, Section 42051.1 and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements,
Amendment 5
On page 21, in line 11, after the period insert:
The arbitrator’s decision in a nonbinding arbitration is final unless within 30 days after the arbitrator delivers the decision to the advisory board a party requests that the department conduct a de novo adjudicative proceeding.
Amendment 6
On page 21, in line 11, strike out “The” and insert:
(4) The
- Statements in support
A Voice for Choice Advocacy rites in support stating:
We support this measure to authorize the Department of Resources Recycling and Recovery to adopt regulations to identify responsible end markets, and to establish criteria regarding benefits to the environment while minimizing risks to public health and worker health and safety.
SUPPORT
A Voice for Choice Advocacy
OPPOSITION
None known
RELATED LEGISLATION
Pending Legislation: AB 1526 (Assembly Committee on Natural Resources, 2023), among other things, makes changes to the Act to require a producer responsibility plan to include arrangements with processors or recyclers to ensure that covered materials are collected and recycled at a viable responsible end market if not collected otherwise, and places a surcharge on a producer not in a PRO, as provided. AB 1526 is currently pending in the Assembly Natural Resources Committee.
Prior Legislation:
SB 54 (Allen Ch. 75, Stats. 2022) establishes the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which imposes minimum content and source reduction requirements for plastic single-use packaging and food service ware through an EPR program.
AB 1080 (Gonzalez, 2019) would have enacted the California Circular Economy and Pollution Reduction Act, which would impose a comprehensive regulatory scheme on producers, retailers, and wholesalers of single-use packaging, overseen by CalRecycle. This bill died at the desk before coming up for Assembly concurrence vote.
PRIOR VOTES:
Senate Environmental Quality Committee (7 Ayes, 0 Noes)
**************
All further references are to the Public Resources Code unless specified otherwise. ↑
Section 40004 states it is the intent of the Legislature “to encourage the development of the additional solid waste processing and composting capacity that is needed to meet state objectives for decreasing solid waste disposal by identifying incentives for local governments to locate and approve new or expanded facilities that meet and exceed their capacity needs, and to recognize local agencies that make significant contributions to the state’s overall solid waste reduction and recycling objectives through the siting of facilities for the processing and composting of materials diverted from the solid waste stream.” ↑
Section 40059 provides that each county, city, district, or other local governmental agency may determine aspects of solid waste handling which are of local concern and whether the services are to be provided by means of nonexclusive franchise, contract, license, permit, or otherwise, as specified. ↑
Sen. Environmental Quality Comm. analysis SB 303 (2023-24 reg. sess.) as amended Mar. 22, 2023 at p. 3. ↑
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Allen, Chair
2023 - 2024 Regular
Bill No: SB 303
Author: | Allen | ||
Version: | 3/22/2023 | Hearing Date: | 4/19/2023 |
Urgency: | No | Fiscal: | Yes |
Consultant: | Brynn Cook | ||
SUBJECT: Solid waste: Plastic Pollution Prevention and Packaging Producer Responsibility Act.
DIGEST: This bill makes clarifying amendments to the Plastic Pollution Prevention and Packaging Producer Responsibility Act. (SB 54, Allen, Chapter 75, Statutes of 2022)
ANALYSIS:
Existing law:
- Establishes the California Integrated Waste Management Act of 1989 (IWMA), administered by the Department of Resources Recycling and Recovery (CalRecycle), to regulate the disposal, management, and recycling of solid waste. Establishes under the IWMA a state policy goal that at least 75% of solid waste be source reduced, recycled, or composted by 2020. (Public Resources Code (PRC) §§ 40000 et. seq.)
- Establishes the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which imposes minimum recycled content requirements and source reduction requirements for single-use packaging and plastic food serviceware, to be achieved through an extended producer responsibility (EPR) program. (PRC § 42070)
This bill:
Makes clarifying technical, definitional, and procedural changes to the Plastic Pollution Prevention and Packaging Producer Responsibility Act.
Background
- Solid waste in California. For more than three decades, CalRecycle has been tasked with reducing the amount of waste that is landfilled and promoting recycling in California through the IWMA. The IWMA establishes a goal of source reducing, recycling, or composting at least 75% of solid waste generated in the State by 2020. However, according to CalRecycle’s 2021 State of Disposal and Recycling, the State’s 2021 recycling rate was just 40%. The single largest contributor to this recycling rate was recyclables that were exported out of the state. The statewide recycling rate has declined over the last decade, following a peak of 50% in 2014. The recycling rate has been impacted and may continue to be impacted by global policies like China’s National SWORD and the Basel Convention, which restrict the amount of foreign waste these countries will accept.
The Legislature has enacted various laws to move the needle on the state’s waste diversion goal, including policies that target organic material and plastic, two major categories of waste. The Legislature chartered a course toward comprehensive organics recycling in 2016 with the passage of SB 1383 (Lara, Chapter 395, Statutes of 2016), which requires local entities to build organics recycling infrastructure to achieve a 75% composting rate by 2025. Major plastics legislation followed in 2022 with the passage of SB 54 (Allen, 2022) which uses an EPR program to significantly reduce plastics in packaging and single-use serviceware.
- The problem with plastic. Plastics pose a threat to the environment from origin to end-of-life. Plastics are petroleum-based and have a large carbon footprint. The global production of plastic is responsible for three and a half percent of all greenhouse gas emissions, or more carbon emissions than the entire aviation sector. In 2021, global plastics production was estimated at 390.7 million metric tons, a four percent increase from the previous year. The United Nations Environment Programme reports that only 9% of all plastic ever made has been recycled. A further 12% has been incinerated, and the remaining 79% has accumulated in landfills or in natural environments.
Once plastics enter the environment, they remain there for hundreds to thousands of years. Plastics do not break down into their constituent parts, but instead break down into very small particles of plastic, or microplastics (plastics under five millimeters). Because they are so small, microplastics can travel in the air, in water, and can be easily absorbed by living things and accumulate up the food chain. Microplastics have been found in the most pristine natural environments on earth, including in the deep ocean, pristine areas of national parks, Antarctic sea ice, and in human placentas. Laboratory studies have found that microplastics increase the risk of cancer and disrupt hormone pathways. - The basics of EPR programs. One strategy to reduce waste generation is to put responsibility on producers to oversee the safe end-of-life of their products through an EPR program. EPR programs rely on industry, formalized in a product stewardship organization (PRO), to develop and implement approaches to create a circular economy that make business sense, with oversight and enforcement provided by the government. EPR programs require producers to factor in costs associated with disposal. In doing so, EPR programs incentivize industry to design products with waste minimization in mind. Currently, there are six statewide EPR programs: paint, carpet, mattresses, pharmaceutical and sharps waste, batteries, and, following the passage of SB 54 (Allen, 2022), packaging and single-use plastic serviceware items.
- SB 54 goals. SB 54 uses an EPR approach to reach ambitious targets to reduce single-use serviceware and packaging through source reduction and postconsumer recycled content. These goals include:
- Requiring all covered material sold in the state to be recyclable or compostable by January 1, 2032;
- Requiring that all plastic-covered material sold in the state meet a recycling rate of 65% by Jan 1, 2032, with interim goals beginning in 2028;
- Prohibiting producers of expanded polystyrene (EPS) from selling EPS food serviceware unless they meet a 65% recycling rate by January 1, 2032; and
- Requiring the PRO to pay $500 million per year from January 1, 2027, through January 1, 2037 to fund the program, and authorizes the PRO to collect up to $150 million from plastic manufacturers.
- SB 54 cleanup. As with any major piece of legislation, SB 54 contained some ambiguities that only became apparent after the bill had been signed into law. Cleanup for SB 54 includes minor spelling corrections and more substantive clarifications on processes and definitions. SB 303 clarifies that the advisory board, not CalRecycle, will handle complaints and arbitrations with producers and adds details to that process. SB 303 also amends the definition of “responsible end market” to specify a narrow scope for “end markets.” Finally, SB 303 amends the definition of “recycling” to clarify that only producers, not waste haulers or local governments, are required to meet recycling requirements in the bill.
Comments
- Purpose of Bill. According to the author, “In June 2022, the Legislature and Governor approved SB 54 (Allen), the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which placed California at the forefront of tackling the environmental, health, and monetary costs associated with plastics. SB 303 makes three minor revisions including a minor edit to the definition of “recycling” to clarify the PRO and producers are responsible for ensuring material meets CalRecycle criteria, not local governments or waste haulers; clarification of the definition of “responsible end markets” to better articulate that the end market is where the material is actually reclaimed and reconstituted into new material, not the entire collection and recycling process (which starts with consumers placing the material into a recycling bin and continues with it being sorted at recovery facilities); more detail around the dispute resolution function to make clear that the advisory board, and not CalRecycle, will recommend solutions to any dispute that may arise between the PRO and local governments.”
- Clarifying the definition of recycling. Because SB 54 encompasses such a wide swath of materials and sets such ambitious goals, the definitions and processes by which the EPR program operates have significant impacts on waste reduction policy. In SB 54, the current definition of “recycling” does not specify whether recycling requirements fall on the shoulders of producers or on every entity along the product chain, including waste haulers and local governments. SB 303 clarifies the author’s intent that only producers are subject to CalRecycle’s regulations and requirements for recycling.
DOUBLE REFERRAL:
If this measure is approved by the Senate Environmental Quality Committee, the do pass motion must include the action to re-refer the bill to the Senate Judiciary Committee.
Related/Prior Legislation
SB 54 (Allen Chapter 75, Statutes of 2022) establishes the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which imposes minimum content and source reduction requirements for plastic single-use packaging and food service ware through an EPR program.
AB 1080 (Gonzalez, 2019) would have enacted the California Circular Economy and Pollution Reduction Act, which would impose a comprehensive regulatory scheme on producers, retailers, and wholesalers of single-use packaging, overseen by CalRecycle. This bill died at the desk before coming up for Assembly concurrence vote.
SOURCE:
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SUPPORT:
None received
OPPOSITION:
None received
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