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AB-1897 Solid waste: reporting, packaging, and plastic food service ware.(2021-2022)

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Date Published: 08/26/2022 04:00 AM
AB1897:v93#DOCUMENT

Amended  IN  Senate  August 25, 2022
Amended  IN  Senate  August 11, 2022
Amended  IN  Senate  June 23, 2022
Amended  IN  Assembly  April 27, 2022
Amended  IN  Assembly  April 20, 2022
Amended  IN  Assembly  April 07, 2022

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 1897

Introduced by Assembly Member Wicks Boerner Horvath
(Coauthors: Senators Allen and Hertzberg)

February 09, 2022

An act to amend Sections 42400.7, 42402, 42402.1, 42402.2, 42402.3, and 42403 of, and to add Sections 42402.6 and 42412 to, the Health and Safety Code, relating to air pollution. An act to amend Sections 42041 and 42070 of the Public Resources Code, relating to solid waste.


LEGISLATIVE COUNSEL'S DIGEST


AB 1897, as amended, Wicks Boerner Horvath. Nonvehicular air pollution control: civil penalties: refineries. Solid waste: reporting, packaging, and plastic food service ware.
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 service ware, 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 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, 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 act’s requirements 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. The act requires, if the evaluation demonstrates that specific actions are disrupting or otherwise adversely affecting existing operations, 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 require, if the advisory board’s evaluation demonstrates that specific actions are disrupting or otherwise adversely affecting existing operations, the advisory board to offer a recommendation for resolution within 90 days of submission of the request for a preliminary evaluation and thereafter authorizes 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 to the Legislature, as specified.
The bill would also make technical amendments and other revisions to the act’s definitions.

Existing law prohibits a person from discharging from nonvehicular sources air contaminants or other materials that cause injury, detriment, nuisance, or annoyance to any considerable number of persons or to the public, or that endanger the comfort, repose, health, or safety of those persons or the public, or that cause, or have a natural tendency to cause, injury or damage to business or property. Under existing law, a person who violates this provision, or any other statute, rule, regulation, permit, or order, as provided, is strictly liable for a civil penalty of not more than $10,000, unless that person alleges by affirmative defense and establishes that the act was not the result of intentional or negligent conduct, in which case the person is strictly liable for a civil penalty of not more than $5,000. A violator who acts negligently, knowingly, willfully and intentionally, or with reckless disregard, is liable for a civil penalty in a greater amount, as specified. Existing law requires the civil penalties to be assessed and recovered in a court of competent jurisdiction through a civil action brought by the Attorney General, a district attorney, or the attorney for the district in which the violation occurs. Existing law precludes prosecution under specified statutes if civil penalties are recovered for the same offense.

This bill would make a person who violates the above provision liable for a civil penalty of not more than $30,000 if the violation results from a discharge from a stationary source required by federal law to be included in an operating permit program established pursuant to Title V of the federal Clean Air Act, the discharge results in a significant increase in hospitalizations, residential displacement, shelter in place, evacuation, or destruction of property, and the discharge contains or includes one or more toxic air contaminants, as specified. The bill would additionally make a person who violates this provision liable for a civil penalty of not more than $50,000 for a subsequent violation within a 12-month period. The bill would require additional civil penalties collected by an air pollution control district or an air quality management district pursuant to this provision, above the costs of prosecution, to be expended to mitigate the effects of air pollution in communities affected by the violation. The bill would prohibit this provision from applying if the violation is caused by unforeseen and unforeseeable criminal acts, acts of war, acts of terrorism, or civil unrest. The bill would preclude prosecution under specified statutes if civil penalties are recovered pursuant to this provision. The bill would authorize the Attorney General, a district attorney, or an attorney for the district in which the violation occurs who prevails in a civil action for a violation of the above provisions, or any other statute, rule, regulation, permit, or order, as provided, to recover the actual costs of investigation, expert witness fees, and reasonable attorney’s fees.

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

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


SECTION 1.

 Section 42041 of the Public Resources Code, as added by Section 2 of Chapter 75 of the Statutes of 2022, 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, 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” 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 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 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 without functionally changing the packaging or food service ware. “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 Development’s 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 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 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.
(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 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 department’s 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 reclaiming, reconstituting, and end use of covered materials or and the disposal of contaminants by the responsible end market 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. for responsible end markets.
(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 platform’s 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, means either of the following:
(1) For packaging or food service ware that is reused or refilled by a producer, it satisfies all of the following:
(A) Explicitly designed and marketed to be utilized 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 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 that is reused or refilled by a consumer, it satisfies all of the following:
(A) Explicitly designed and marketed to be utilized 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 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 PRO’s 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 42070 of the Public Resources Code, as added by Section 2 of Chapter 75 of the Statutes of 2022, 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 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 board’s 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 board’s 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 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. resolution within 90 days of submission of the request for a preliminary evaluation.
(2) After the advisory board offers its recommendation, either party may initiate nonbinding arbitration, consistent with the 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. 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.Section 42400.7 of the Health and Safety Code is amended to read:
42400.7.

(a)The recovery of civil penalties pursuant to Section 39674, 42401, 42402, 42402.1, 42402.2, 42402.3, 42402.4, or 42402.6 precludes prosecution under Section 42400, 42400.1, 42400.2, 42400.3, 42400.3.5, or 42400.4 for the same offense. When a district refers a violation to a prosecuting agency, the filing of a criminal complaint is grounds requiring the dismissal of a civil action brought pursuant to this article for the same offense.

(b)If the pending civil action described in subdivision (a) includes a request for injunctive relief, that portion of the civil action shall not be dismissed upon the filing of a criminal complaint for the same offense.

SEC. 2.Section 42402 of the Health and Safety Code is amended to read:
42402.

(a)Except as provided in Sections 42402.1, 42402.2, 42402.3, 42402.4, and 42402.6, a person who violates this part, an order issued pursuant to Section 42316, or a rule, regulation, permit, or order of a district, including a district hearing board, or of the state board issued pursuant to Part 1 (commencing with Section 39000) to Part 4 (commencing with Section 41500), inclusive, is strictly liable for a civil penalty of not more than five thousand dollars ($5,000).

(b)(1)A person who violates a provision of this part, an order issued pursuant to Section 42316, or a rule, regulation, permit, or order of a district, including a district hearing board, or of the state board issued pursuant to Part 1 (commencing with Section 39000) to Part 4 (commencing with Section 41500), inclusive, is strictly liable for a civil penalty of not more than ten thousand dollars ($10,000).

(2)(A)If a civil penalty in excess of five thousand dollars ($5,000) for each day in which a violation occurs is sought, there is no liability under this subdivision if the person accused of the violation alleges by affirmative defense and establishes that the violation was caused by an act that was not the result of intentional conduct or negligent conduct.

(B)Subparagraph (A) does not apply to a violation of a federally enforceable requirement that occurs at a Title V source in a district in which a Title V permit program has been fully approved.

(C)Subparagraph (A) does not apply to a person who is determined to have violated an annual facility emissions cap established pursuant to a market-based incentive program adopted by a district pursuant to subdivision (b) of Section 39616.

(c)A person who owns or operates a source of air contaminants in violation of Section 41700 that causes actual injury, as defined in subdivision (d) of Section 42400, to the health and safety of a considerable number of persons or the public, is liable for a civil penalty of not more than fifteen thousand dollars ($15,000).

(d)Each day during a portion of which a violation occurs is a separate offense.

SEC. 3.Section 42402.1 of the Health and Safety Code is amended to read:
42402.1.

(a)Except as provided in Section 42402.6, a person who negligently emits an air contaminant in violation of this part or a rule, regulation, permit, or order of the state board or of a district, including a district hearing board, pertaining to emission regulations or limitations is liable for a civil penalty of not more than twenty-five thousand dollars ($25,000).

(b)A person who negligently emits an air contaminant in violation of Section 41700 that causes great bodily injury, as defined in subdivision (f) of Section 12022.7 of the Penal Code, to a person or that causes the death of a person, is liable for a civil penalty of not more than one hundred thousand dollars ($100,000).

(c) Each day during a portion of which a violation occurs is a separate offense.

SEC. 4.Section 42402.2 of the Health and Safety Code is amended to read:
42402.2.

(a)Except as provided in Section 42402.6, a person who emits an air contaminant in violation of a provision of this part, or a rule, regulation, permit, or order of the state board or of a district, including a district hearing board, pertaining to emission regulations or limitations, and who knew of the emission and failed to take corrective action, as defined in subdivision (b) of Section 42400.2, within a reasonable period of time under the circumstances, is liable for a civil penalty of not more than forty thousand dollars ($40,000).

(b)A person who owns or operates a source of air contaminants in violation of Section 41700 that causes great bodily injury, as defined in subdivision (f) of Section 12022.7 of the Penal Code, to a person or that causes the death of a person, and who knew of the emission and failed to take corrective action, as defined in subdivision (b) of Section 42400.2, within a reasonable period of time under the circumstances, is liable for a civil penalty not to exceed two hundred fifty thousand dollars ($250,000).

(c)Each day during a portion of which a violation occurs is a separate offense.

SEC. 5.Section 42402.3 of the Health and Safety Code is amended to read:
42402.3.

(a)Except as provided in Section 42402.6, a person who willfully and intentionally emits an air contaminant in violation of this part or a rule, regulation, permit, or order of the state board, or of a district, including a district hearing board, pertaining to emission regulations or limitations, is liable for a civil penalty of not more than seventy-five thousand dollars ($75,000).

(b)A person who willfully and intentionally, or with reckless disregard for the risk of great bodily injury, as defined in subdivision (f) of Section 12022.7 of the Penal Code, to, or death of, a person, emits an air contaminant in violation of Section 41700 that results in an unreasonable risk of great bodily injury to, or death of, a person, is liable for a civil penalty of not more than one hundred twenty-five thousand dollars ($125,000). If the violator is a corporation, the maximum penalty may be up to five hundred thousand dollars ($500,000).

(c)A person who willfully and intentionally, or with reckless disregard for the risk of great bodily injury, as defined in subdivision (f) of Section 12022.7 of the Penal Code, to, or death of, a person, emits an air contaminant in violation of Section 41700 that causes great bodily injury, as defined in subdivision (f) of Section 12022.7 of the Penal Code, to a person or that causes the death of a person, is liable for a civil penalty of not more than two hundred fifty thousand dollars ($250,000). If the violator is a corporation, the maximum penalty may be up to one million dollars ($1,000,000).

(d)Each day during a portion of which a violation occurs is a separate offense.

SEC. 6.Section 42402.6 is added to the Health and Safety Code, to read:
42402.6.

(a)(1)A person is liable for a civil penalty of not more than thirty thousand dollars ($30,000) if the person violates Section 41700 and all of the following occur:

(A)The discharge is from a Title V source.

(B)The discharge results in a significant increase in hospitalizations, residential displacement, shelter in place, evacuation, or destruction of property.

(C)The discharge contains or includes one or more toxic air contaminants, as identified by the state board pursuant to Section 39657.

(2)A person shall be liable for a civil penalty of not more than fifty thousand dollars ($50,000) for a discharge subject to paragraph (1) if that discharge occurs within 12 months of a prior discharge subject to paragraph (1).

(b)Except as provided in subdivision (b) of Section 42402.2 or subdivision (b) or (c) of Section 42402.3, a civil penalty described in subdivision (a) shall apply on the initial date of a violation.

(c)If a violation of subdivision (a) continues to occur subsequent to the initial date of the violation, the civil penalty described in Section 42402, 42402.1, 42402.2, or 42402.3 shall apply to those subsequent days.

(d)The civil penalty described in paragraphs (1) and (2) of subdivision (a) shall not apply if the violation is caused by unforeseen and unforeseeable criminal acts, acts of war, acts of terrorism, or civil unrest.

(e)Additional civil penalties collected by a district pursuant to this section above the costs of prosecution shall be expended to mitigate the effects of air pollution in communities affected by the violation.

SEC. 7.Section 42403 of the Health and Safety Code is amended to read:
42403.

(a)The civil penalties prescribed in Sections 39674, 42401, 42402, 42402.1, 42402.2, 42402.3, and 42402.6 shall be assessed and recovered in a civil action brought in the name of the people of the State of California by the Attorney General, by a district attorney, or by the attorney for the district in which the violation occurs in a court of competent jurisdiction.

(b)In determining the amount of the civil penalty assessed, the court, or in reaching a settlement, the district, shall take into consideration all relevant circumstances, including, but not limited to, the following:

(1)The extent of harm caused by the violation.

(2) The nature and persistence of the violation.

(3)The length of time over which the violation occurs.

(4)The frequency of past violations.

(5)The record of maintenance.

(6)The unproven or innovative nature of the control equipment.

(7)Action, if any, taken by the defendant, including the nature, extent, and time of response of the cleanup and construction undertaken, to mitigate the violation.

(8)The financial burden to the defendant.

SEC. 8.Section 42412 is added to the Health and Safety Code, to read:
42412.

In any action brought pursuant to this article, a prevailing plaintiff may recover its actual costs of investigation, expert witness fees, and reasonable attorney’s fees.