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AB-2921 Expanded Polystyrene Food Service Packaging Recovery and Recycling Act.(2017-2018)

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Date Published: 04/05/2018 09:00 PM
AB2921:v98#DOCUMENT

Amended  IN  Assembly  April 05, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 2921


Introduced by Assembly Member Low
(Coauthors: Assembly Members Burke, Cooper, Daly, Gloria, Grayson, McCarty, Santiago, Rodriguez, and Rubio)
(Coauthors: Senators Pan and Roth)

February 16, 2018


An act to add Chapter 6 6.4 (commencing with Section 42370) 42385) to Part 3 of Division 30 of the Public Resources Code, relating to recycling.


LEGISLATIVE COUNSEL'S DIGEST


AB 2921, as amended, Low. Expanded Polystyrene Food Service Packaging Recovery and Recycling 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. Existing law requires all rigid plastic bottles and rigid plastic containers sold in the state to be labeled with a code that indicates the resin used to produce the rigid plastic bottle or rigid plastic container, and designates the number “6” as the code number for polystyrene resin.
This bill would enact the Expanded Polystyrene Food Service Packaging Recovery and Recycling Act, which would authorize expanded polystyrene food service packaging (PFP) manufacturers and polystyrene resin producers to form or designate an organization consisting of PFP manufacturers and resin producers, to be known as the Expanded Polystyrene Food Service Packaging Recycling Organization. If the PFP manufacturers and resin producers form or designate a PFP Recycling Organization, the bill would require each PFP manufacturer or resin producer that formed or designated the organization that sells expanded polystyrene food service packaging or polystyrene resin in this state to pay to the PFP Recycling Organization the expanded polystyrene food service packaging assessment fee, which the bill would require to be established in an amount reasonably anticipated to generate an unspecified number of dollars within the first year of the program. fee established by the PFP Recycling Organization. The bill would require the collected fees to be used by the organization to carry out the requirements of the act and for appropriate projects and programs that would further the purposes of the act, including awarding grants to public specified entities for programs designed to increase community access to PFP recycling, to promote efforts to recycle PFP, and to reduce or abate litter from PFP. The bill would impose civil penalties on the PFP manufacturers or resin producers that formed or designated the PFP Recycling Organization that fail to remit the PFP assessment fee, as specified, and would authorize the department to expend the civil penalty moneys to support its duties under the act.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 Chapter 6 6.4 (commencing with Section 42370) 42385) is added to Part 3 of Division 30 of the Public Resources Code, to read:
CHAPTER  6.4. Expanded Polystyrene Food Service Packaging Recovery and Recycling Act
Article  1. General Provisions

42370.42385.
 This chapter shall be known, and may be cited, as the Expanded Polystyrene Food Service Packaging Recovery and Recycling Act.

42370.2.42385.2.
 (a) The Legislature finds and declares all of the following:
(1) California had a statewide recycling rate of 50 percent in 2014, which had remained consistent for the preceding five years.
(2) In 2011, AB 341 (Chapter 476 of the Statutes of 2011) established a new statewide goal of diverting 75 percent of solid waste, through source reduction, recycling, and composting, by 2020.
(3) California is home to a number of expanded polystyrene food service packaging manufacturers that produce a variety of products. These facilities employ thousands of Californians and are important components of the state’s economy.
(4) Polystyrene Expanded polystyrene food service packaging, such as cups, to-go containers, and other single-use containers, provide consumers with a convenient and cost-effective way of carrying food and beverages from a restaurant or other food service provider, a way that keeps food and beverages hot or cold and does not absorb liquids.
(5) Manufacturers, distributors, and users of expanded polystyrene food service packaging and resin producers have a shared responsibility to identify, finance, and implement expanded polystyrene food service packaging life cycle management solutions that are both environmentally responsible and economically sustainable. These solutions include, but are not limited to, reuse of expanded polystyrene food service packaging packaging, enhanced collection, sorting, and recycling programs for expanded polystyrene food service packaging packaging, anti-litter, pollution prevention, and other public education programs programs, and developing and supporting emerging material recycling and conversion technologies to facilitate greater reuse and recycling of expanded polystyrene food service packaging.
(6) Manufacturers of expanded polystyrene food service packaging, resin producers, transporters, solid waste haulers, recyclers, the State of California, local governments, and other stakeholders should work together to develop and implement programs to ensure that expanded polystyrene food service packaging is managed in an environmentally sound and economically sustainable manner.
(b) It is the intent of the Legislature in adopting this chapter to do all of the following:
(1) To increase the amount of expanded polystyrene food service packaging waste that is diverted from landfills and recycled into new products or otherwise managed in a manner that is consistent with the state’s hierarchy for waste management practices pursuant to Section 40051.
(2) To reduce the amount of expanded polystyrene food service packaging that is disposed of in landfills, littered, or improperly disposed of.
(3) To reduce the amount of litter affecting the creeks and other waterways in California.
(4) To increase opportunities for businesses or multifamily complexes to save money.
(5) To create jobs in California by providing materials for recycling to manufacturing facilities.
(6) To reduce greenhouse gas emissions.
(7) To keep valuable materials out of landfills.
(8) To create a healthy environment for the community and future generations by recovering natural resources by increasing the recycling of expanded polystyrene food service packaging.
(9) To encourage increasing the availability of opportunities for California residents to recycle expanded polystyrene food service packaging and to encourage the development of recycling and recovery technologies for expanded polystyrene food service packaging. It is anticipated that the methods and programs that will be developed under this chapter will serve as a model for similar programs addressing other types of recyclable materials.
(10) To create incentives to increase the availability of curbside recycling of expanded polystyrene food service packaging to California residents to accomplish all of the following:
(A) By the fifth year of the program, to provide access to curbside recycling of expanded polystyrene food service packaging to 30 percent of California residents.
(B) By the 10th year of the program, to provide access to curbside recycling of expanded polystyrene food service packaging to 40 percent of California residents.
(C) By the 15th year of the program, to provide access to curbside recycling of expanded polystyrene food service packaging to 50 percent of California residents.
(D) By the 20th year of the program, to provide access to curbside recycling of expanded polystyrene food service packaging to 60 percent of California residents.

42370.4.42385.4.
 (a) For purposes of this chapter, and unless the context otherwise requires, the following terms have the following meanings:
(1) “Community recycling access rate” means the number of residents in a jurisdiction that have access to a residential curbside collection or drop off dropoff program that accepts expanded polystyrene food service packaging for recycling, divided by the total number of residents in the jurisdiction.
(2) “Department” means the Department of Resources Recycling and Recovery.

(3)“Jurisdiction” means a city, county, special district, or other local governmental entity responsible for the collection of solid waste.

(4)“Material recovery facility” means a facility that sorts residential solid waste that includes recyclable materials for the purpose of separating recyclable materials from materials destined for disposal at a landfill.

(5)“Polystyrene

(3) “Expanded polystyrene” means polystyrene that has been expanded or blown using a blowing agent into a solid foam.
(4) “Expanded polystyrene food service packaging” or “PFP” means a container or other single-use food service packaging product that is labeled or should be labeled with resin code “6” pursuant to Section 18015 and that is used by food service providers to carry or contain food and beverages that are prepared onsite for customer consumption offsite.

(6)“Polystyrene

(5) “Expanded polystyrene food service packaging assessment fee” or “assessment fee” means the assessment fee collected pursuant to Article 3 (commencing with Section 42372). 42387).

(7)“Polystyrene

(6) “Expanded polystyrene food service packaging manufacturer” or “manufacturer” means a person or entity that manufactures polystyrene food service packaging that is sold, offered for sale, or distributed for use in the state. If polystyrene food service packaging sold in the state is manufactured by a person or entity outside of the state, then “manufacturer” means the person or entity that imports the polystyrene food service packaging into the state for sale, distribution, or use in the state.

(8)“Polystyrene

(7) “Expanded Polystyrene Food Service Packaging Recycling Organization” or “organization” means the organization composed of PFP manufacturers and resin producers formed or designated pursuant to Section 42371. 42386.
(8) “Jurisdiction” means a city, county, special district, or other local governmental entity responsible for the collection of solid waste.
(9) “Material recovery facility” means a facility that sorts residential solid waste that includes recyclable materials for the purpose of separating recyclable materials from materials destined for disposal at a landfill.

(9)

(10) “Program” means the expanded polystyrene food service packaging program implemented in accordance with this chapter.

(10)

(11) “Recycle” means to divert PFP that has been used and discarded and would otherwise become solid waste for the purpose of being transformed, converted back to styrene monomer, or regenerated or reused in the production of a useful product.

(11)

(12) “Resin producer” means a producer of polystyrene resin that is sold for use in PFP.

(12)

(13) “Water board” means the State Water Resources Control Board.
(b) Terms not specifically defined in this section shall be interpreted consistent with their meaning elsewhere in this division.

Article  2. Expanded Polystyrene Food Service Packaging Recycling Organization

42371.42386.
 Polystyrene Expanded polystyrene food service packaging manufacturers and resin producers may form or designate an organization consisting of PFP manufacturers and resin producers that shall be known as the Expanded Polystyrene Food Service Packaging Recycling Organization. If manufacturers and resin producers choose to designate an organization, it shall be the Foam Recycling Coalition of the Foodservice Packaging Institute for, at a minimum, the first five years of the program. If expanded polystyrene food service packaging manufacturers and resin producers form or designate more than one organization, the organization with the membership that introduces the most pounds of expanded polystyrene food service packaging in the state shall be the Expanded Polystyrene Food Service Packaging Recycling Organization.

42371.2.42386.2.
 The Expanded Polystyrene Food Service Packaging Recycling Organization shall do all of the following:
(a) Establish goals that, to the extent feasible based on available technology and information, increase the recycling of expanded polystyrene food service packaging, increase the diversion of expanded polystyrene food service packaging from landfills, increase the recyclability of expanded polystyrene food service packaging, and incentivize market growth for products made from recycled expanded polystyrene food service packaging.
(b) Determine criteria for awarding grants pursuant to Article 4 (commencing with Section 42373) 42388) to be funded by the expanded polystyrene food service packaging assessment fee collected pursuant to Article 3 (commencing with Section 42372). 42387).
(c) (1) Establish a grant award committee consisting of all of no more than 10 members, limited to the following:
(A) Three to six persons affiliated with the PFP manufacturers and resin producers.
(B) Two persons affiliated with nonprofit organizations that have a goal of increasing recycling, reducing solid waste sent to landfills, or reducing litter in the waterways of the state.
(C) One person designated by the department.
(D) One person designated by the water board.
(2) The grant award committee shall evaluate applications for grants based on the criteria developed pursuant to subdivision (b) and shall select the applicants to receive grants.

42371.4.42386.4.
 The Expanded Polystyrene Food Service Packaging Recycling Organization shall annually submit a report to the department, the water board, and the Legislature in compliance with Section 9795 of the Government Code on its implementation of this chapter.

42371.6.42386.6.
 (a) Except as provided in subdivision (c), an action specified in subdivision (b) that is taken by the Expanded Polystyrene Food Service Packaging Recycling Organization or its members is not a violation of the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of Part 2 of Division 7 of the Business and Professions Code), or the Unfair Competition Law (Chapter 5 (commencing with Section 17200) of Part 2 of Division 7 of the Business and Professions Code).
(b) Subdivision (a) shall apply to the establishment, administration, collection, or disbursement of the assessment fee collected pursuant to Article 3 (commencing with Section 42372). 42387).
(c) Subdivision (a) shall not apply to an agreement that does any of the following:
(1) Fixes a price of expanded polystyrene food service packaging.
(2) Fixes the output of production of expanded polystyrene food service packaging.
(3) Restricts the geographic area in which, or customers to whom, expanded polystyrene food service packaging will be sold.

Article  3. Expanded Polystyrene Food Service Packaging Assessment Fee

42372.42387.
 (a) The Expanded Polystyrene Food Service Packaging Recycling Organization shall establish a expanded polystyrene food service packaging assessment fee to be paid by PFP manufacturers and resin producers that voluntarily participate in this chapter by forming or designating an organization pursuant to Section 42371. 42386.
(b) Each PFP manufacturer or resin producer in the organization who sells PFP or polystyrene resin, respectively, in the state shall pay to the organization the applicable PFP assessment fee. For purposes of this subdivision, sales include all sales made electronically, telephonically, or by any other means that result in expanded polystyrene food service packaging or polystyrene resin being shipped to or used in this state.
(c) The assessment fee shall be established in an amount reasonably anticipated to generate ____ dollars ($____) within the first year of the program. The Expanded Polystyrene Food Service Packaging Recycling Organization may adjust the assessment fee rate in future years to meet the goals of the program.
(d) The Expanded Polystyrene Food Service Packaging Recycling Organization shall determine the rules and procedures that are necessary and proper to implement the collection of the assessment fee in a fair, efficient, and lawful manner.
(e) Any PFP manufacturer wishing to contest its PFP assessment fee may do so by requesting a hearing with the department within 30 days of receiving an invoice for a PFP assessment fee. Hearings shall be conducted pursuant to Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3 of Title 2 of the Government Code.

42372.2.42387.2.
 The assessment fee shall be remitted to the Expanded Polystyrene Food Service Packaging Recycling Organization and deposited in accounts that are maintained and disbursed by the organization. Funds collected pursuant to this article shall be used by the Expanded Polystyrene Food Service Packaging Recycling Organization for purposes of carrying out its duties under this chapter and for appropriate projects and programs that would further the goals of this chapter. Those projects or programs may include, but are not limited to, investments in infrastructure that promote the recycling of expanded polystyrene food service packaging.

Article  4. Expanded Polystyrene Food Service Packaging Grants

42373.42388.
 The Expanded Polystyrene Food Service Packaging Recycling Organization shall provide grants to be funded by the PFP assessment fee that will further the purposes of this chapter, including, but not limited to, grants for programs designed to increase community recycling access rates in jurisdictions that do not prohibit the use of expanded polystyrene food service packaging, grants to promote efforts to recycle PFP, and grants for programs designed to reduce or abate litter from PFP.

42373.2.42388.2.
 (a) Only the following entities shall be eligible to apply for and receive PFP grants:
(1) Public entities with jurisdiction over the collection of solid waste and recyclables.
(2) Private persons or entities engaged in collecting, sorting, or processing of solid waste or recyclables if those private persons or entities apply in collaboration with, or with the support of, one or more public entities with jurisdiction over the collection of solid waste and recyclables.
(3) Persons or entities that reclaim recycled PFP in the postconsumer market.
(b) A public entity, including a public entity collaborating with or supporting an application by a private person or entity, with an ordinance restricting or prohibiting the use of PFP within its jurisdiction is ineligible to apply for and receive PFP grant funds. A public entity that adopts such an ordinance after receiving grant funds becomes ineligible and shall return the grant funds.

42373.4.42388.4.
 (a) Seventy-five percent of grants shall be awarded for one or more of the following purposes:
(1) To create or expand a residential curbside recycling program designed to accept PFP for recycling or increase the amount of PFP recycled, including, but not limited to, education and outreach.
(2) To develop or improve a material recovery facility in order to make possible the acceptance and recycling of PFP or increase the facility’s ability to accept and recycle PFP.
(3) To develop or improve equipment or technology designed to recycle PFP.
(4) To develop or improve end markets for recycled PFP.
(b) Twenty-five percent of grants shall be awarded for one or more of the following purposes:
(1) To organize and conduct litter reduction programs in places impacted by discarded PFP.
(2) To organize and conduct litter abatement programs in places impacted by discarded PFP, including, but not limited to, programs to remove litter from creeks and other waterways of the state.
(c) Grant recipients shall do both of the following:
(1) Use grant funds for the approved purposes for which the grant is awarded.
(2) Report to the Expanded Polystyrene Food Service Packaging Recycling Organization on the use of grant funds, including progress towards achieving the purposes for which the grant funds were awarded.

Article  5. Enforcement

42374.42389.
 (a) Collection of the PFP assessment fee shall be enforced by the department.
(b) (1) A manufacturer or resin producer that formed or designated the Expanded Polystyrene Food Service Packaging Recycling Organization and that fails to remit a PFP assessment fee within 30 days of receiving an invoice for the amount of the PFP assessment fee shall be liable for an equivalent amount, in addition to the PFP assessment fee, as a civil penalty.
(2) A manufacturer or resin producer that formed or designated the Expanded Polystyrene Food Service Packaging Recycling Organization and that fails to remit a PFP assessment fee within 60 days of receiving an invoice for the amount of the PFP assessment fee shall be liable for twice an equivalent amount, in addition to the PFP assessment fee, as a civil penalty.
(3) A manufacturer or resin producer that formed or designated the Expanded Polystyrene Food Service Packaging Recycling Organization and that fails to remit a PFP assessment fee within 90 days of receiving an invoice for the amount of the PFP assessment fee shall be liable for three times an equivalent amount, in addition to the PFP assessment fee, plus one hundred dollars ($100) per day of violation, as a civil penalty.
(4) This subdivision shall not apply to a manufacturer or resin producer that contests its PFP assessment fee in accordance with subdivision (e) of Section 42372. 42387.
(c) All civil penalties imposed pursuant to this article shall be remitted to the department for deposit into the Expanded Polystyrene Food Service Packaging Penalty Account, which is hereby created. Any funds deposited in the account may be expended by the department to support its duties under this chapter.