Bill Text: CA AB1080 | 2019-2020 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

---

Bill Title: Solid waste: packaging and products.

Spectrum: Partisan Bill (Democrat 21-0)

Status: (Engrossed - Dead) 2020-09-04 - Held at Desk pursuant to Joint Rule 51(b)(3). [AB1080 Detail]

Download: California-2019-AB1080-Amended.html

---

Amended  IN  Senate  August 14, 2019

Amended  IN  Senate  July 11, 2019

Amended  IN  Senate  July 05, 2019

Amended  IN  Senate  June 20, 2019

Amended  IN  Assembly  May 22, 2019

Amended  IN  Assembly  May 07, 2019

Amended  IN  Assembly  March 19, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill

No. 1080

---

Introduced by Assembly Members Gonzalez, Calderon, Friedman, and Ting
(Principal coauthor: Assembly Member Bloom)
(Principal coauthor: Senator Allen)
(Coauthors: Assembly Members Boerner Horvath, Carrillo, Kalra, Kamlager-Dove, McCarty, Luz Rivas, and Wicks)
(Coauthors: Senators Skinner, Stern, Wieckowski, and Wiener)

February 21, 2019

---

An act to add Chapter 3 (commencing with Section 42040) to Part 3 of Division 30 of the Public Resources Code, relating to solid waste.

LEGISLATIVE COUNSEL'S DIGEST

AB 1080, as amended, Gonzalez. California Circular Economy and Plastic Pollution Reduction 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 solid waste, including, among other solid waste, single-use plastic straws.

The Sustainable Packaging for the State of California Act of 2018 prohibits a food service facility located in a state-owned facility, operating on or acting as a concessionaire on state property, or under contract to provide food service to a state agency from dispensing prepared food using a type of food service packaging unless the type of food service packaging is on a list that the department publishes and maintains on its internet website that contains types of approved food service packaging that are reusable, recyclable, or compostable.

Existing law makes a legislative declaration that it is the policy goal of the state that not less than 75% of solid waste generated be source reduced, recycled, or composted by 2020.

This bill would enact the California Circular Economy and Plastic Pollution Reduction Act, which would require the department, before January 1, 2024, to adopt regulations that require covered entities, producers, as defined, (1) to source reduce, to the maximum extent feasible, single-use packaging and priority single-use plastic products, as defined, and (2) to ensure that by 2030 all single-use packaging and priority single-use plastic products manufactured on or after January 1, 2030, and offered for sale, sold, distributed, or imported in or into the California market are recyclable or compostable. The bill would require those regulations compostable, and (3) to achieve, collectively achieve and maintain, by January 1, 2030, a statewide 75% reduction of the waste generated from single-use packaging, and a statewide 75% reduction of the waste generated from priority single-use plastic products, offered for sale or sold sale, sold, distributed, or imported in or into the state through source reduction, recycling, or composting, and would establish a policy goal to achieve, by 2030, a 75% reduction of the waste generated from all other single-use products offered for sale or sold in the state through source reduction, recycling, or composting. The bill would authorize the department to determine which actions producers may undertake to achieve those requirements. The bill would require covered entities producers to annually report specified information to the department. The bill would require the department, by January 1, 2023, and before adopting the regulations, to develop finalize a scoping plan, as specified.

The bill would require the department to develop criteria to determine which types of single-use packaging or priority single-use plastic products are reusable, recyclable, or compostable. The bill would require authorize local governments, solid waste facilities, recycling facilities, and composting facilities to provide information requested by the department for purposes of developing that criteria. By imposing additional duties on local governments, the bill would impose a state-mandated local program.

The bill would require a covered entity to demonstrate a recycling rate of not less than 20% on and after January 1, 2024, not less than 40% on and after January 1, 2028, and not less than 75% on and after January 1, 2030, as a condition of sale of single-use plastic packaging or priority single-use plastic products, single-use plastic packaging, single-use poly lined paper packaging, and single-use poly lined paperboard packaging and priority single-use plastic products offered for sale, sold, distributed, or imported in or into California by a producer to meet specified recycling rates that are based on date of manufacture and that increase over a prescribed timeframe, and would authorize the department to impose a higher recycling rate as a condition of sale, rate, as specified. The bill would require the department to create, update, and post on its internet website a list of recycling rates of single-use plastic packaging and priority single-use plastic products, rates, as specified.

The bill would require the department to report to the Legislature every 2 years its progress in implementing the bill’s provisions.

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

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

The bill would provide for exceptions to, and enforcement of, its provisions, including authorizing the department to impose an administrative civil penalty in an amount not to exceed $50,000 per day on a producer that is not in compliance with the bill’s requirements.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YESNO  

---

Bill Text

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

SECTION 1.

 Chapter 3 (commencing with Section 42040) is added to Part 3 of Division 30 of the Public Resources Code, to read:

CHAPTER  3. California Circular Economy and Plastic Pollution Reduction Act

42040.

 This chapter shall be known, and may be cited, as the California Circular Economy and Plastic Pollution Reduction Act.

42041.

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

(a)

(1) Annual global production of plastic has reached 335 million tons and continues to rise. The United States alone discards 30 million tons each year. Global plastic production is projected to more than triple by 2050, accounting for 20 percent of all fossil fuel consumption.

(b)

(2) Without action, projections estimate that by 2050 the mass of plastic pollution in the ocean will exceed the mass of fish. A study by the University of Exeter and Plymouth Marine Laboratory in the United Kingdom found plastics in the gut of every single sea turtle examined and in 90 percent of seabirds. Additionally, plastic negatively affects marine ecosystems and wildlife, as demonstrated by countless seabirds, turtles, and marine mammals, including, but not limited to, whales and dolphins, dying from plastic ingestion or entanglement.

(c)

(3) Based on data from the United States Environmental Protection Agency, Institute of Scrap Recycling Industries trade statistics, and industry news source Resource Recycling, the national recycling rate for plastic is projected to sink from 9.1 percent in 2015 to 4.4 percent in 2018, and could drop to 2.9 percent in 2019. Even in California, less than 15 percent of single-use plastic is recycled.

(d)

(4) Before 2017, the United States was sending 4,000 shipping containers a day full of American waste to China every year, including two-thirds of California’s recyclable materials. However, China has implemented the Green Fence, National Sword, and Blue Sky policies, severely restricting the amount of contaminated and poorly sorted plastics it would accept. This shift in China’s policy has resulted in the loss of markets for low-value plastic packaging that was previously considered recyclable. That material is now being landfilled or burned.

(e)

(5) Additionally, the foreign market for recycled paper has collapsed in California. Foreign exports of mixed paper fell from over 400,000 tons in the first quarter of 2017 to just 136,000 tons in the first quarter of 2018. The price of mixed paper fell from ninety-five dollars ($95) per ton to just ten dollars ($10) a ton in the same timeframe.

(f)

(6) The loss of markets for recyclable material has added huge costs to local governments for the disposal and diversion of material. For many cities, counties, and waste haulers in California, recycling has turned from a profitable business into an activity that actually costs local governments money. These costs are being absorbed by city general funds or by rate increases on residents for waste collection.

(g)

(7) The environmental and public health impacts of plastic pollution are devastating and the environmental externalities and public costs of cleaning up and mitigating plastic pollution are already staggering and continue to grow.

(h)

(8) Local governments in California annually spend in excess of four hundred twenty million dollars ($420,000,000) in ongoing efforts to clean up and prevent plastic and other litter from entering our rivers and streams and polluting our beaches and oceans.

(i)

(9) Evidence now shows that even our own food and drinking water sources are contaminated with plastic. Microplastics have been found in tap water, bottled water, table salt, and fish and shellfish from local California fish markets. A growing body of research is finding plastic and associated toxins throughout the food web, including in our blood, feces, and tissues. Exposure to these toxins has been linked to cancers, birth defects, impaired immunity, endocrine disruption, and other ailments.

(j)

(10) It is the policy goal of the state that not less than 75 percent of solid waste generated be source reduced, recycled, or composted by the year 2020. However, as of 2017, the state was only on track to reach 44 percent, falling far short of this important goal. Additionally, the state has done little to require businesses to reduce the amount of packaging and single-use product waste they generate in California.

(k)

(11) As the fifth largest economy in the world, California has a responsibility to lead on solutions to the growing plastic pollution crisis, and to lead in the reduction of unnecessary waste generally.

(l)

(12) Further, businesses selling products into California have a responsibility to ensure that their packaging and products are minimizing waste, including ensuring materials used are reusable, recyclable, or compostable. This responsibility includes paying for the cost of the negative externality of recovery for materials they sell in California.

(b) (1) Consistent with the policy goal established in Section 41780.01, it is the intent of the Legislature that, by 2030, producers of single-use products that are not priority single-use plastic products collectively achieve and maintain a statewide 75-percent reduction of the waste generated from single-use products offered for sale, sold, distributed, or imported in or into the state that are not priority single-use plastic products through source reduction, recycling, or composting.

(2) In accordance with paragraph (1), it is the intent of the Legislature that producers of single-use products that are not priority single-use plastic products do all of the following for single-use products that are not priority single-use plastic products:

(A) Source reduce those products, and transition those products to reusable products, to the maximum extent feasible.

(B) Ensure those products are recyclable or compostable, as determined by the department pursuant to Section 42044.

(C) For single-use plastic products that are not priority single-use plastic products and that are offered for sale, sold, distributed, or imported in or into California, reduce waste generation by 75 percent through combined source reduction and recycling.

42042.

 (a) For purposes of this chapter, all of the following shall apply:

(1) “Packaging” means the material 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:

(A) Sales packaging or primary packaging.

(B) Grouped packaging or secondary packaging.

(C) Transport packaging or tertiary packaging.

(2) “Poly” includes polyethylene terephthalate (PET) and polypropylene.

(3) “Priority single-use plastic products” means the 10 single-use plastic products, or categories of those products, that are the most littered in California, as determined by the department. The department may reference relevant data, including, but not limited to, either of the following, when making this determination:

(A) Beach cleanup surveys.

(B) Factors relating to total maximum daily load or stormwater discharge requirements.

(4) (A) “Producer” means the person or company in the state that manufactures and offers for sale, sells, or distributes the single-use packaging or priority single-use plastic product in the state under that person or company’s own name or brand.

(B) If subparagraph (A) does not apply, the producer is the person or company in the state that imports the single-use packaging or priority single-use plastic product as the owner or licensee of a trademark or brand under which the single-use packaging or priority single-use plastic product is offered for sale, sold, or distributed in the state.

(C) If neither subparagraph (A) nor (B) apply, the producer is the person or company that offers for sale, sells, or distributes the single-use packaging or priority single-use plastic product in the state.

(5) “Recycling rate” means the percentage, as measured by weight, volume, or number of units, of the material used in single-use plastic packaging, single-use poly lined paper packaging, or single-use poly lined paperboard packaging or priority single-use plastic products that are offered for sale, sold, distributed, or imported in or into the state that is recycled over a three-year rolling period, as determined by the department. Recycling rate shall be measured by the material type and form, such as a thermoformed or molded container of a particular resin type as specified in Section 18015.

(6) (A) “Single-use packaging ” means the packaging of a product when the packaging is routinely disposed of after its contents have been used or unpackaged, and typically not refilled.

(B) Single-use packaging does not include either of the following:

(i) Packaging that is durable or washable, and routinely used for its original purpose multiple times before disposal.

(ii) Packaging containing toxic or hazardous products regulated by the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.).

(7) “Source reduction” includes, but is not limited to, transitioning single-use packaging to refillable or reusable packaging. Source reduction does not include replacing a recyclable or compostable material with a nonrecyclable or noncompostable material or a material that is less likely to be recycled or composted, and does not include a shift to plastic material.

(b) For purposes of this chapter, medical devices, medical products, prescription drugs, and the packaging used for these products, that require approval from the United States Food and Drug Administration, and drugs that are used for animal medicines, including, but not limited to, parasiticide products for animals, and the packaging used for these products, shall not be considered single-use packaging or priority single-use plastic products.

42042. 42043.

 (a) Before January 1, 2024, the department shall, in consultation with all relevant state agencies with jurisdiction over sources of waste in California, relevant to this chapter and local jurisdictions and regional agencies charged with meeting waste diversion goals, adopt regulations that do all of the following:

(1) (A) Require covered entities producers of single-use packaging to source reduce single-use packaging to the maximum extent feasible.

(B) Require covered entities producers of single-use packaging to ensure that by 2030 all single-use packaging manufactured on or after January 1, 2030, and offered for sale, sold, distributed, or imported in or into the California market is recyclable or compostable as determined by the department pursuant to Section 42044.

(2) (A) Require covered entities producers of priority single-use plastic products to source reduce priority single-use plastic products to the maximum extent feasible.

(B) Require covered entities producers of priority single-use plastic products to ensure that by 2030 priority single-use plastic products manufactured on or after January 1, 2030, and offered for sale, sold, distributed, or imported in or into the California market are recyclable or compostable as determined by the department pursuant to Section 42044.

(3) Achieve, Require producers to collectively achieve and maintain, by January 1, 2030, a statewide 75-percent reduction of the waste generated from single-use packaging, and a statewide 75-percent reduction of the waste generated from priority single-use plastic products, offered for sale or sold sale, sold, distributed, or imported in or into the state through source reduction, recycling, or composting.

(b) (1) Before By January 1, 2023, and before adopting the regulations, the department shall develop finalize a scoping plan for meeting the requirements of this section.

(2) As part of the scoping plan, the department shall conduct do all of the following:

(A) Conduct extensive outreach to stakeholders. stakeholders and to state and local agencies with jurisdiction relevant to this chapter. This outreach shall include, but is not limited to, all of the following:

(A)Convening convening a series of public workshops throughout the state to give interested parties an opportunity to comment.

(B)Convening comment and a series of stakeholder meetings designed to facilitate dialogue between stakeholders representing different interest groups such as local governments, the solid waste and recycling industries, product and packaging manufacturers, retailers, trade associations, and environmental organizations. These meetings shall be held throughout the state to increase the opportunity for participation and shall inform the development of regulations pursuant to this section.

(3)As part of the scoping plan, the department shall evaluate

(B) Evaluate the feasibility of employing the following regulatory measures:

(A)

(i) Developing incentives and policies to maximize and encourage in-state manufacturing using recycled material generated in California.

(B)

(ii) Developing economic mechanisms to reduce the distribution of single-use packaging and priority single-use plastic products. products or to transition single-use packaging and priority single-use plastic products to recyclable or compostable alternatives. These economic mechanisms may include, but are not limited to, allowing producers to establish and operate a collection and deposit program, assess a generation-based fee, or assess an advanced recycling fee.

(C)

(iii) Discouraging, to the extent feasible, the litter, export, or improper disposal of single-use packaging, priority single-use plastic products, and other materials likely to harm the environment or public health in California or elsewhere in the world.

(D)Requiring individuals or entities, including, but not limited to, brokers, processors, and sorting facilities, to notify the department prior to the export of unprocessed plastic for recycling in a country that is not a member of the Organization for Economic Cooperation and Development.

(E)

(iv) Establishing labeling requirements regarding the recyclability or compostability recyclability, compostability, or reusability of single-use packaging and priority single-use plastic products. Labeling may reflect whether the packaging or product can be readily recycled or composted recycled, composted, or reused and whether the packaging or product is likely to contaminate other recyclable or compostable material or complicate processing.

(F)

(v) Adopting model best practices for covered entities producers to reduce packaging waste, including through the creation of effective and convenient take-back opportunities, deposit systems, reusable and refillable delivery systems, designing for recyclability, or similar mechanisms.

(G)Developing alternative compliance mechanisms for covered entities, including market mechanisms that reduce the overall material usage across a company’s product line or between multiple manufacturers of similar products.

(H)

(vi) Adopting actions identified through the California Ocean Litter Prevention Strategy and the Statewide Microplastics Strategy.

(I)

(vii) Establishing an extended producer responsibility program program, where appropriate, to require covered entities producers to contribute to the costs associated with processing the single-use packaging and priority single-use plastic products they produce.

(J)

(viii) Establishing criteria for the source reduction requirements specified in subdivision (a), including reducing weight, volume, or quantity of single-use packaging and priority single-use plastic product material in a way that does not decrease the ability of the material to be recycled or reused.

(K)

(ix) Establishing minimum postconsumer recycled content requirements requirements, where appropriate, for single-use packaging and priority single-use plastic products.

(C) Identify all of the following:

(i) Opportunities to improve and expand waste collection and processing capabilities and infrastructure, including the use of innovative new recycling technologies and secondary material recovery facilities.

(ii) Opportunities to harmonize local waste, recycling, and composting programs among local jurisdictions and barriers to cooperation and standardization of programs.

(iii) Opportunities for encouraging the use of reusable or refillable packaging.

(iv) Opportunities for public education efforts to increase recycling and composting of single-use packaging and priority single-use plastic products and reducing litter from these items.

(v) Potential end-use markets for collected materials and policies required to stimulate domestic markets.

(c) (1) The department may identify single-use packaging or priority single-use plastic products that, while determined to be single use for purposes of this chapter, present unique challenges in complying with this chapter. For

(2) For any packaging or products identified as presenting those unique challenges, the department shall may develop a plan to phase the packaging or products into the regulations.

(3) The department shall ensure that any regulations adopted pursuant to this chapter account for guidelines issued by the United States Food and Drug Administration. If the department determines a type of single-use packaging or priority single-use plastic product cannot comply with this chapter due to health and safety reasons, or because it is unsanitary or unsafe to recycle, the department may exempt that packaging or product from this chapter.

(d) The regulations shall include a mechanism for accounting for the total statewide generation of single-use packaging and priority single-use plastic products in order to set a baseline amount for waste generation from these sources.

(e) (1) The department shall require a covered entity producer to annually report all of the following information to the department for the covered entity’s producer’s single-use packaging and priority single-use plastic products:

(A) The quantity, weight, volume, and type of single-use packaging and priority single-use plastic product materials sold or distributed offered for sale, sold, distributed, or imported in or into California by the covered entity producer annually.

(B) The quantity, weight, volume, and type of material source reduced by the covered entity producer annually.

(C) Any other data the department deems necessary to establish a baseline for waste generation and subsequent source reduction by a covered entity. producer.

(2) Any market sensitive data received by the department pursuant to this subdivision shall be held confidentially by the department to the extent required by existing law.

(3) The department shall create an online registration form to facilitate submitting reports pursuant to this subdivision.

(4)The department may audit reports submitted pursuant to this subdivision to ensure compliance with this chapter.

(5)Covered entities

(4) Producers shall submit the information required by the department pursuant to paragraph (1) using the format established by the department pursuant to paragraph (3).

(5) To receive this reporting data in a timely manner to inform the regulations adopted pursuant to this chapter, the department may adopt emergency regulations to implement the requirements of this subdivision.

(f) (1) The regulations shall include direct source reductions of single-use packaging and priority single-use plastic products to the maximum extent feasible, in accordance with subdivision (a), as follows: (a).

(1)

(2) To determine the amount of source reduction required pursuant to the regulations, the department shall establish a baseline for each covered entity producer using the last three years of packaging material and product data sold offered for sale, sold, distributed, or imported by that covered entity into or producer in or into the State of California. For purposes of this chapter, source reduction shall not include replacing a recyclable or compostable material with a nonrecyclable or noncompostable material, and shall not include a shift to plastic material. The

(3) The department may consider single-use packaging and priority single-use plastic product reductions achieved by a covered entity producer before the effective date of the regulations if the covered entity producer can demonstrate to the satisfaction of the department that the covered entity producer reduced the single-use packaging or priority single-use plastic product in a manner consistent with this chapter.

(4) (A) The department shall develop a checklist of source reduction measures, and a producer that complies with all applicable measures on the checklist shall be in compliance with the requirement to source reduce to the maximum extent feasible pursuant to subdivision (a). The department shall also offer guidance on how to use the checklist as a means of complying with subdivision (a). The checklist measures may include, but are not limited to, right-sizing products, eliminating excess packaging, concentrating a product to reduce packaging, and transitioning to reusable alternatives where those alternatives are readily available.

(2)

(B) To determine which source reduction measures to implement, include in the checklist, the department shall consider which single-use packaging and priority single-use plastic products are prone to become litter, have readily available alternatives, make up a significant portion of the waste stream, or have established, or have the potential for, recycling or composting infrastructure.

(3)

(5) When establishing the source reduction measures, the department shall avoid incentivizing substitutions that may have a more substantial negative impact on the environment.

(4)

(6) In developing the regulations, the department shall count a covered entity’s producer’s source reductions achieved to comply with Chapter 5.5 (commencing with Section 42300) toward compliance with this chapter.

(g) If the department determines that early actions to source reduce certain single-use packaging and priority single-use plastic products can further the purposes of this chapter, the department may adopt regulations to achieve those reductions.

(h) In developing the regulations, the department shall consider all relevant information on reduction programs in other states, localities, and nations, including, but not limited to, the European Union, India, Costa Rica, and Canada.

(i)As an alternative compliance mechanism, the department may allow covered entities to comply with the regulations through alternative methods. The department shall provide technical guidance and outreach to these covered entities to help them identify packaging and product reform solutions to achieve the requirements of the alternative methods.

(j)The department shall ensure that any regulations adopted pursuant to this chapter account for health and safety as required by the United States Food and Drug Administration.

(i) The department may determine which actions producers may undertake to achieve the requirements of subdivision (a) based on material type and form.

(j) In adopting regulations pursuant to this section, the department shall consider and avoid disproportionate impacts to low-income or disadvantaged communities.

42043.

(a)Consistent with the policy goal established in Section 41780.01, it is the policy goal of the State of California that, by 2030, covered entities achieve a 75-percent reduction of the waste generated from single-use products offered for sale or sold in the state that are not priority single-use plastic products through source reduction, recycling, or composting.

(b)In accordance with the policy goal established in subdivision (a), it is the intent of the Legislature that covered entities do all of the following for single-use products that are not priority single-use plastic products:

(1)Source reduce those products, and transition those products to reusable products, to the maximum extent feasible.

(2)Ensure those products are recyclable or compostable, as determined by the department pursuant to Section 42044.

(3)For single-use plastic products that are not priority single-use plastic products and that are offered for sale or sold in California, reduce waste generation by 75 percent through combined source reduction and recycling.

42044.

 (a) In adopting regulations pursuant to Section 42042, 42043, the department shall develop criteria to determine which types of single-use packaging or priority single-use plastic products are reusable, recyclable, or compostable.

(b) For purposes of determining if single-use packaging or priority single-use plastic products are recyclable, the director shall consider, at a minimum, all of the following criteria:

(1) Whether the single-use packaging or priority single-use plastic product is eligible to be labeled as “recyclable” in accordance with the uniform standards contained in Article 7 (commencing with Section 17580) of Chapter 1 of Part 3 of Division 7 of the Business and Professions Code.

(2) Whether the single-use packaging or priority single-use plastic product is regularly collected, separated, and cleansed for recycling by recycling service providers.

(3) Whether the single-use packaging or priority single-use plastic product is regularly sorted and aggregated into defined streams for recycling processes.

(4) Whether the single-use packaging or priority single-use plastic product is regularly processed and reclaimed or recycled with commercial recycling processes.

(5) Whether the single-use packaging or priority single-use plastic product material regularly becomes feedstock that is used in the production of new products.

(6) Whether the single-use packaging or priority single-use plastic product material is recycled in sufficient quantity, and is of sufficient quality, to maintain a market value.

(c) For purposes of determining if single-use packaging or priority single-use plastic products are compostable, the director shall consider, at a minimum, all of the following criteria:

(1) Whether the single-use packaging or priority single-use plastic product will, in a safe and timely manner, break down or otherwise become part of usable compost that can be composted in a public or private compost facility designed for and capable of processing postconsumer food waste and food-soiled paper.

(2) Whether the single-use packaging or priority single-use plastic product made from plastic is certified to meet the ASTM standard specification identified in either subparagraph (A) or (C) of paragraph (1) of subdivision (b) of Section 42356 and adopted in accordance with Section 42356.1, if applicable.

(3) Whether the single-use packaging or priority single-use plastic product is regularly collected and accepted for processing at public and private compost facilities.

(4) Whether the single-use packaging or priority single-use plastic product is eligible to be labeled as “compostable” in accordance with the uniform standards contained in Article 7 (commencing with Section 17580) of Chapter 1 of Part 3 of Division 7 of the Business and Professions Code.

(d) (1) In implementing this section, the department may consult with local governments and representatives of the solid waste industry, the recycling industry, the compost industry, and single-use product and packaging manufacturers to determine if a type of single-use packaging or priority single-use plastic product is recyclable, reusable, or compostable.

(2) Local governments, solid waste facilities, recycling facilities, and composting facilities shall may provide information requested by the department pursuant to paragraph (1) to the department.

42045.

(a)A covered entity shall demonstrate the following recycling rates as a condition of sale of single-use plastic packaging or priority single-use plastic products:

42045.

 (a) Single-use plastic packaging, single-use poly lined paper packaging, and single-use poly lined paperboard packaging and priority single-use plastic products offered for sale, sold, distributed, or imported in or into California by a producer shall meet the following recycling rates:

(1) On and after January 1, 2024, not less than 20 percent. percent for single-use plastic packaging, single-use poly lined paper packaging, and single-use poly lined paperboard packaging and priority single-use plastic products manufactured on or after January 1, 2024.

(2) On and after January 1, 2028, not less than 40 percent. percent for single-use plastic packaging, single-use poly lined paper packaging, and single-use poly lined paperboard packaging and priority single-use plastic products manufactured on or after January 1, 2028.

(3) On and after January 1, 2030, not less than 75 percent. percent for single-use plastic packaging, single-use poly lined paper packaging, and single-use poly lined paperboard packaging and priority single-use plastic products manufactured on or after January 1, 2030.

(b) Notwithstanding subdivision (a), the department may impose a higher recycling rate as a condition of sale of for single-use plastic packaging, single-use poly lined paper packaging, or single-use poly lined paperboard packaging or priority single-use plastic products by a covered entity as needed to achieve the requirements established in Section 42042. 42043. The department may subsequently increase or decrease a recycling rate imposed pursuant to this subdivision, but shall not decrease the recycling rate below the rates listed in subdivision (a).

(c) (1) The department shall create and post on its internet website a list of recycling rates by material type and form of single-use plastic packaging, single-use poly lined paper packaging, and single-use poly lined paperboard packaging and priority single-use plastic products. products no later than January 1, 2022. In creating the list, the department may consider data gathered pursuant to any of the following:

(A) Chapter 746 of the Statutes of 2015.

(B) Chapter 6 (commencing with Section 42370).

(C) Chapter 395 of the Statutes of 2016.

(D) Chapter 5.5 (commencing with Section 42300).

(E) Division 12.1 (commencing with Section 14500).

(F) Data received from local jurisdictions.

(2) A covered entity producer may comply demonstrate compliance with subdivision (a) or (b) by submitting to the department evidence that the particular type of single-use plastic packaging, single-use poly lined paper packaging, or single-use poly lined paperboard packaging or priority single-use plastic product meets the applicable recycling rate threshold established in subdivision (a) or (b) by reference to a recycling rate on the department’s list or through another mechanism approved by the department.

(3) The department shall update the list at least every two years and shall regularly, but no less than once every three two years, evaluate the list of recycling rates to determine whether the recycling rates are still accurate. After evaluation, the department may amend the list to remove, add, or change recycling rates. The department shall post any updates to the list on its internet website.

(4) A covered entity producer that seeks to have its a recycling rate included or changed on the list may be required by the department to submit data for purposes of the department’s determination of the recycling rate to include on the list.

(5) Development of, publication of, and updates made to the list pursuant to this subdivision are exempt from Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.

(d)The department may audit demonstrations made pursuant to subdivision (a) to ensure compliance with this chapter.

(e)For purposes of this section, “recycling rate” means the percentage, as measured by weight, volume, or number, of single-use plastic packaging or priority single-use plastic products sold or offered for sale in the state that is recycled over a three-year rolling period, as determined by the department. Recycling rate may be measured by either of the following:

(1)A particular type of single-use plastic packaging or priority single-use plastic product, such as a thermoformed or molded container, soft drink container, or detergent bottle.

(2)A single resin type, as specified in Section 18015.

42045.5. 42046.

 The department shall report to the Legislature in compliance with Section 9795 of the Government Code every two years its progress in implementing this chapter.

42046.

(a)For purposes of this chapter, the following definitions apply:

(1)(A)“Covered entity” means the person or company that manufactures the single-use packaging or single-use product that is sold or distributed in or into the state.

(B)If there is no person or company that meets the description in subparagraph (A) in the state, the covered entity is the person or company that imports the single-use packaging or single-use product into the state for sale or distribution.

(C)If there is no person or company that meets the description in either subparagraph (A) or (B) in the state, the covered entity is the person or company that sells, offers for sale, or distributes the single-use packaging or single-use product in the state.

(2)“Packaging” means the material 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:

(A)Sales packaging or primary packaging.

(B)Grouped packaging or secondary packaging.

(C)Transport packaging or tertiary packaging.

(3)“Priority single-use plastic products” means the 10 single-use plastic products, or categories of products, that are the most littered in California, as determined by the department. The department may reference any of the following when making this determination:

(A)Beach cleanup surveys.

(B)Factors relating to total maximum daily load or stormwater discharge requirements.

(C)International actions.

(4)(A)“Single-use packaging” means the packaging of a product when the packaging is routinely disposed of after its contents have been used or unpackaged, and typically not refilled.

(B)Single-use packaging does not include any of the following:

(i)Packaging that is durable or washable, and routinely used for its original purpose multiple times before disposal.

(ii)Packaging containing toxic or hazardous products regulated by the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.).

(b)For purposes of this chapter, medical devices, medical products, prescription drugs, and the packaging used for these products, that require approval from the United States Food and Drug Administration shall not be considered single-use packaging or priority single-use plastic products.

42047.

 (a) (1) The department may issue a notice of violation to and impose an administrative civil penalty not to exceed fifty thousand dollars ($50,000) per day on a producer not in compliance with this chapter.

(2) Before assessing a penalty, the department may require a producer to submit a corrective action plan to the department detailing how the producer will come into compliance with this chapter. Corrective action plans may include, but are not limited to, actions such as shifting production away from material types and forms that do not meet the recycling rates required pursuant to Section 42045, reaching a minimum content standard set by the department, or establishing a take-back system or deposit fee system for single-use packaging or priority single-use plastic products that would increase the recycling rate of the material type and form. A producer may request approval from the department to comply with a corrective action plan or elements of a corrective action plan through a joint venture or joint actions with other producers.

(3) The department, in determining the penalty amount and whether or not to assess a penalty, shall consider all of the following:

(A) The nature, circumstances, extent, and gravity of the violation or a condition giving rise to the violation and the various remedies and penalties that are appropriate in the given circumstances, with primary emphasis on protecting the public health and safety and the environment.

(B) Whether the violation or conditions giving rise to the violation have been corrected in a timely fashion or whether reasonable progress is being made to correct the violation or conditions giving rise to the violation.

(C) Whether the violation or conditions giving rise to the violation demonstrate a chronic pattern of noncompliance with this chapter or the regulations adopted pursuant to this chapter.

(D) Whether the violation or conditions giving rise to the violation were intentional.

(E) Whether the violation or conditions giving rise to the violation were voluntarily and promptly reported to the department before the commencement of an investigation or audit by the department.

(F) Whether the violation or conditions giving rise to the violation were due to circumstances beyond the reasonable control of the producer or were otherwise unavoidable under the circumstances, including, but not limited to, unforeseen changes in market conditions.

(G) The size and economic condition of the producer.

(4) (A) The department may extend a previously established timeframe for a producer to comply with a corrective action plan for up to 24 months if the department sets forth steps for the producer to achieve compliance with the corrective action plan and if the producer has demonstrated that it has made a substantial effort to comply and that there are extenuating circumstances that have prevented it from complying.

(B) For purposes of this paragraph, “substantial effort” means that a producer has taken all practicable actions to comply with a corrective action plan. Substantial effort does not include circumstances in which the decisionmaking body of a producer has not taken the necessary steps to comply with a corrective action plan, including, but not limited to, a failure to provide staff resources or a failure to provide sufficient funding to ensure compliance with a correction action plan.

(b) A producer may offer for sale, sell, distribute, or import single-use plastic packaging, single-use poly lined paper packaging, or single-use poly lined paperboard packaging or priority single-use plastic products in a material type and form that does not meet the recycling rates established pursuant to subdivision (a) or (b) of Section 42045 if the producer demonstrates to the department that it has achieved the recycling rates established pursuant to subdivision (a) or (b) of Section 42045 for any of the following:

(1) The specific single-use plastic packaging, single-use poly lined paper packaging, or single-use poly lined paperboard packaging or priority single-use plastic products in that material type and form offered for sale, sold, distributed, or imported by that producer.

(2) An amount equivalent to the producer’s market share of that material type and form.

(3) Any combination of paragraphs (1) and (2).

(c) (1) The department may audit producers, including, but not limited to, reports submitted by a producer and demonstrations made by a producer pursuant to Section 42045.

(2) The department shall notify a producer of any conduct or practice that does not comply with this chapter or of any inconsistencies identified in the department’s audit.

(3) A producer may obtain copies of the department’s audit of the producer upon request.

(4) The department shall not disclose any confidential or proprietary information that is included in the department’s audit to the extent that information is protected from disclosure by existing law.

SEC. 2.

If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.