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AB-478 Solid waste: thermoform plastic containers: postconsumer recycled plastic.(2021-2022)

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Date Published: 03/18/2021 09:00 PM
AB478:v98#DOCUMENT

Amended  IN  Assembly  March 18, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 478


Introduced by Assembly Member Ting

February 08, 2021


An act to add Chapter 6.2 (commencing with Section 42375) to Part 3 of Division 30 of the Public Resources Code, relating to solid waste.


LEGISLATIVE COUNSEL'S DIGEST


AB 478, as amended, Ting. Solid waste: thermoform plastic containers: minimum postconsumer recycled content. plastic.
The California Integrated Waste Management Act of 1989, administered by the Department of Resources Recycling and Recovery, requires a rigid plastic packaging container, as defined, sold or offered for sale in this state, to meet, on average, at least 1 of 5 specified criteria, including that the container be made from 25% postconsumer material.

This bill would declare the intent of the Legislature to enact subsequent legislation relating to the minimum recycled content of thermoform containers.

This bill, on and after January 1, 2024, would require the total thermoform plastic containers, as defined, sold by a producer, as defined, in the state to contain, on average, specified amounts of postconsumer recycled plastic, as defined, per year pursuant to a tiered plan that would require the total thermoform plastic containers to contain, on average, no less than 30% postconsumer recycled plastic per year on and after January 1, 2030.
The bill would authorize the department to conduct audits and investigations and take an enforcement action against a producer for the purpose of ensuring compliance. The bill would exempt from the California Public Records Act trade secrets and proprietary information obtained from those audits and investigations.
The bill would impose annual administrative penalties in an unspecified amount, calculated as prescribed, on a producer for violating these requirements. The bill would require collected administrative penalties to be deposited into the Recycling Enhancement Penalty Account, which the bill would create. The bill would make moneys in the penalty account available only upon appropriation by the Legislature.
The bill would require, on or before March 1 of each year, a producer to report to the department, under penalty of perjury, the amount in pounds and by resin type of virgin plastic and postconsumer recycled plastic used to manufacture the thermoform plastic containers sold or offered for sale in the state in the previous calendar year. By expanding the crime of perjury, the bill would impose a state-mandated local program. The bill would require the department to post the reported information on its internet website, as specified.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
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 no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NOYES  

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


SECTION 1.

 (a) The Legislature finds and declares all of the following:
(1) For the past two decades, polyethylene terephthalate thermoform clamshell packaging has contained the most California-recycled content of any food packaging in the United States.
(2) In another step to further reduce the produce industry’s environmental impact, major fresh produce growers announced their commitment to using sustainable packaging.
(3) This commitment to recyclable packaging complements existing actions that use recycled content to make thermoform food packaging.
(4) Clamshell packaging revolutionized the ability of farmers to transport their fresh produce to consumers nationwide. The industry is working together on the next phase of that revolution, one that preserves the ability to safely transport fresh produce to market while minimizing product damage, reducing food waste, and demonstrating ongoing environmental stewardship.
(5) Since the 1990s, many farmers have shifted to the use of clear plastic packaging shaped as a vented box with a hinged lid, also known as a clamshell. This type of packaging created a market to convert recycled plastic water bottles into clear, lightweight containers that protect the fruit from damage and contamination, thus reducing food waste.
(6) Further, this type of packaging decreases greenhouse gas emissions by reducing the amount of raw resources needed to make the packaging and reducing fuel use as lighter packaging makes lighter shipments.
(7) Beyond the climate-friendly reduction in resource use and greenhouse gas emissions, enhanced plastic recycling generates jobs and economic benefits for local communities, creating a circular economy to produce, collect, recycle, and reprocess plastic clamshells.
(b) It is the intent of the Legislature in enacting this act to close the loop on thermoform plastic containers used in food and beverage applications in California, ultimately achieving a 75-percent recycling rate for thermoform plastic containers.

SEC. 2.

 Chapter 6.2 (commencing with Section 42375) is added to Part 3 of Division 30 of the Public Resources Code, to read:
CHAPTER  6.2. Thermoform Plastic Containers

42375.
 For purposes of this chapter, the following definitions apply:
(a) “Postconsumer recycled plastic” means plastic produced from the recovery, separation, collection, and reprocessing of a thermoform plastic container that would otherwise be disposed of or processed as waste after consumer use.
(b) (1) “Producer” means the person who manufactures the thermoform plastic container in the state under that person’s own name or brand and who sells or offers for sale the thermoform plastic container in the state.
(2) If there is no person who is the producer for purposes of paragraph (1) in the state, the producer is the person who imports the thermoform plastic container as the owner or licensee of a trademark or brand under which the thermoform plastic container is sold or distributed in the state.
(3) If there is no person who is the producer for purposes of paragraphs (1) and (2) in the state, the producer is the person or company that offers for sale, sells, or distributes the thermoform plastic container in the state.
(c) (1) “Thermoform plastic container” means a plastic container, such as a clamshell, cup, tub, lid, box, tray, egg carton, or similar rigid, nonbottle packaging, formed from sheets of extruded resin and used to package items such as fresh produce, baked goods, nuts, and deli items.
(2) “Thermoform plastic container” does not include any of the following:
(A) A lid or seal of a different material type from plastic.
(B) Thermoform plastic containers that are medical devices, medical products that are required to be sterile, prescription medicine, and packaging used for those products.
(C) A refillable thermoform plastic container.
(D) A plastic beverage container subject to the California Beverage Container Recycling and Litter Reduction Act (Division 12.1 (commencing with Section 14500)).
(E) A thermoform plastic container of a packaging type and resin type for which the total amount of the packaging type and resin type sold in California is less than ____ pounds.

42376.
 (a) Thermoform plastic containers offered for sale, sold, distributed, or imported in or into the state by a producer shall meet the following:
(1) On and after January 1, 2024, until December 31, 2026, inclusive, the total thermoform plastic containers sold by a producer in the state shall, on average, contain no less than 10 percent postconsumer recycled plastic per year.
(2) On and after January 1, 2027, until December 31, 2029, inclusive, the total thermoform plastic containers sold by a producer in the state shall, on average, contain no less than 20 percent postconsumer recycled plastic per year.
(3) On and after January 1, 2030, the total thermoform plastic containers sold by a producer in the state shall, on average, contain no less than 30 percent postconsumer recycled plastic per year.
(b) (1) Beginning January 1, 2024, a producer that does not meet the minimum postconsumer recycled plastic requirements pursuant to subdivision (a) is subject to an annual administrative penalty pursuant to this subdivision. Beginning March 1, 2025, the administrative penalty shall be collected annually, if a reduction has not been approved pursuant to subdivision (e), and calculated in accordance with subdivision (c).
(2) A producer that is assessed penalties pursuant to this subdivision may pay those penalties to the department in quarterly installments or arrange an alternative payment schedule subject to the approval of the department, not to exceed a 12-month payment plan unless an extension is needed due to unforeseen circumstances, such as a public health emergency, state of emergency, or natural disaster.
(c) Beginning March 1, 2025, and annually thereafter, the department shall invoice any assessed administrative penalties for the previous calendar year based on the postconsumer recycled plastic requirement of the previous calendar year. The department shall calculate the amount of the penalty based upon the amount in pounds in the aggregate of virgin and postconsumer recycled plastic used by the producer to produce thermoform plastic containers sold or offered for sale in the state, in accordance with the following:
(1) The annual administrative penalty amount assessed to a producer shall equal the product of both of the following:
(A) The total pounds of plastic used multiplied by the relevant minimum postconsumer recycled plastic percentage, less the pounds of postconsumer recycled plastic used.
(B) ____ cents ($____).
(2) For purposes of paragraph (1), both of the following apply:
(A) The total pounds of plastic used shall equal the sum of the amount of virgin plastic and postconsumer recycled plastic used by the producer, as reported pursuant to Section 42377.
(B) If the product calculated pursuant to paragraph (1) is equal to or less than zero, an administrative penalty shall not be assessed.
(d) (1) The department may conduct audits and investigations and take an enforcement action against a producer for the purpose of ensuring compliance with this section and the information reported pursuant to Section 42377. The department may take an enforcement action against a producer that fails to pay or underpays the assessed or audited administrative penalty only after notice and hearing in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.
(2) The department shall keep confidential all business trade secrets and proprietary information about manufacturing processes and equipment that the department gathers or becomes aware of through the course of conducting audits or investigations pursuant to paragraph (1). Business trade secrets and proprietary information obtained pursuant to this subdivision are not subject to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code).
(3) A producer may obtain a copy of the department’s audit of that producer conducted pursuant to paragraph (1).
(e) (1) The department shall consider granting a reduction of the administrative penalties assessed pursuant to subdivision (b) for the purpose of meeting the minimum postconsumer recycled plastic requirements pursuant to subdivision (a).
(2) In determining whether to grant the reduction pursuant to paragraph (1), the department shall consider, at a minimum, all of the following factors:
(A) Anomalous market conditions.
(B) Disruption in, or lack of supply of, recycled plastic.
(C) Other factors that have prevented a producer from meeting the requirements.
(3) In order to receive a reduction of the administrative penalty, a producer shall submit to the department a corrective action plan detailing the reasons why the producer will fail to meet or has failed to meet the minimum postconsumer recycled plastic requirement and the steps the producer will take to comply with the minimum postconsumer recycled plastic requirement within the next reporting year. The department may approve the corrective action plan, and may reduce the administrative penalties once it approves the corrective action plan and the producer implements the plan. Administrative penalties shall accrue from the point of noncompliance with the minimum postconsumer recycled plastic requirement if the department disapproves the corrective action plan or if the producer fails to implement the plan.
(4) A corrective action plan issued by the department shall include a compliance deadline not to exceed 24 months from the date of the original notice of violation and shall include a description of each action the producer shall take to remedy the violation and the applicable compliance deadline for each action. The corrective action plan shall describe the penalties that may be imposed if a producer fails to comply.
(f) Administrative penalties collected pursuant to this section shall be deposited into the Recycling Enhancement Penalty Account, which is hereby created in the State Treasury. Moneys in the Recycling Enhancement Penalty Account shall be expended upon appropriation by the Legislature in the annual Budget Act for the sole purpose of supporting the recycling, infrastructure, collection, and processing of thermoform plastic containers in the state.

42377.
 (a) On or before March 1 of each year, a producer shall report to the department the amount in pounds and by resin type of virgin plastic and postconsumer recycled plastic used to manufacture the thermoform plastic containers sold or offered for sale in the state in the previous calendar year. The producer shall submit this information to the department under penalty of perjury pursuant to standardized forms in the form and manner prescribed by the department.
(b) The department shall post the information reported pursuant to subdivision (a) within 30 days on the department’s internet website.

42378.
 An action to increase the collection, processing, and recycling taken by the department, or by any person or entity, affecting scrap values, the quantities of materials being recycled, or the method of invoicing the sale of thermoform plastic containers pursuant to this chapter 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) and the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of Part 2 of Division 7 of the Business and Professions Code).

SEC. 3.

 The Legislature finds and declares that Section 2 of this act, which adds Chapter 6.2 (commencing with Section 42375) to Part 3 of Division 30 of the Public Resources Code, imposes a limitation on the public’s right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
In order to appropriately protect the trade secrets and other proprietary materials of businesses, it is necessary to limit access to the proprietary information of businesses complying with the postconsumer recycled plastic requirements for thermoform plastic containers.

SEC. 4.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.
SECTION 1.

It is the intent of the Legislature to enact subsequent legislation relating to the minimum recycled content of thermoform containers.