Bill Text: CA SB1143 | 2023-2024 | Regular Session | Introduced

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

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Bill Title: Household hazardous waste: producer responsibility.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Engrossed) 2024-07-02 - From committee: Do pass and re-refer to Com. on APPR. (Ayes 9. Noes 2.) (July 1). Re-referred to Com. on APPR. [SB1143 Detail]

Download: California-2023-SB1143-Introduced.html

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CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Senate Bill

No. 1143

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Introduced by Senator Allen

February 14, 2024

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An act to add Chapter 1.5 (commencing with Section 47725) to Part 7 of Division 30 of the Public Resources Code, relating to hazardous materials.

LEGISLATIVE COUNSEL'S DIGEST

SB 1143, as introduced, Allen. Household hazardous waste: producer responsibility.

(1) The California Integrated Waste Management Act of 1989, which is administered by the Department of Resources Recycling and Recovery (CalRecycle), requires a city and a county to prepare and submit to the department a countywide integrated waste management plan. The act requires the plan to include a household hazardous waste element that identifies a program in each city and county for the safe collection, recycling, treatment, and disposal of hazardous wastes that are generated by households. The act authorizes a city or county to form a regional agency with another city or county for purposes of complying with these requirements.

Under existing law, as part of the hazardous waste control laws, the Department of Toxic Substances Control (DTSC) generally regulates the management and handling of hazardous waste and hazardous materials. Existing law authorizes a public agency, as defined, to operate a household hazardous waste collection facility under permit from DTSC.

Existing law, the Plastic Pollution Prevention and Packaging Producer Responsibility Act, establishes a producer responsibility program designed to ensure that producers of single-use packaging and food service ware covered by that program take responsibility for the costs associated with the end-of-life management of that material and ensure that the material is recyclable or compostable.

This bill would create a producer responsibility program for products containing household hazardous waste and require a producer responsibility organization (PRO) to provide a free and convenient collection and management system for covered products. The bill would define “covered product” to mean a product containing household hazardous waste, except a product that is subject to another statewide extended producer responsibility program and pesticides, as specified. The bill would require a producer of a covered product to register with a PRO, which would be required to develop and implement a producer responsibility plan for the collection, transportation, and the safe and proper management of covered products. The bill would require CalRecycle to adopt regulations to implement the program with an effective date no earlier than July 1, 2026.

The bill would require a PRO, within 12 months of the effective date of the regulations, to submit a product responsibility plan to CalRecycle. The bill would require the plan to include specified elements, including a funding mechanism that provides sufficient funding to carry out the plan. The bill would require, within 6 months of receipt of the plan, CalRecycle to approve, approve in part, or disapprove the plan. The bill would require CalRecycle to notify the PRO of its decision. If CalRecycle does not approve the plan in full, then the bill would require CalRecycle to specify the reasons for disapproval or identify the portions of the partially approved plan that do not comply with the program, as applicable. The bill would require a PRO to submit a revised plan if its plan is not fully approved. The bill would require CalRecycle to conditionally approve a plan if CalRecycle does not approve, approve in part, or disapprove a plan within one year of receipt of the plan.

The bill would require a PRO to implement its plan within 90 days of approval. The bill would require the plan to be fully funded in a manner that equitably distributes the plan’s costs among participant producers that reflects sales volumes and the cost to manage the covered products that a producer produces. The bill would require the PRO to reimburse local jurisdictions for costs associated with providing a convenient collection system for covered products if the PRO’s plan relies on local jurisdictions to collect or manage covered products.

The bill would require the PRO to prepare and submit to CalRecycle an annual report describing the activities carried out pursuant to the plan. The bill would require the PRO to retain specified documents, annually audit its accounting books, and make documents available to CalRecycle for review, as specified. The bill would require all reports and records provided to CalRecycle pursuant to the program to be provided under the penalty of perjury. By expanding the scope of a crime, the bill would impose a state-mandated local program.

The bill would require a participant producer, through the PRO, to pay CalRecycle, on an unspecified schedule, an annual administrative charge, as determined by CalRecycle. The bill would require the charge be set at an amount that is adequate to cover CalRecycle’s full costs of administering and enforcing the program. The bill would provide for the imposition of administrative civil penalties on producers and other specified persons who violate the program. The bill would establish the Household Hazardous Waste Producer Responsibility Fund in the State Treasury and would require the administrative charges collected by CalRecycle to be deposited into that fund for expenditure by CalRecycle, upon appropriation by the Legislature, to cover CalRecycle’s cost to implement the program. The bill would also establish the Household Hazardous Products Penalty Account in the Household Hazardous Waste Producer Responsibility Fund and would require that the civil penalties collected by CalRecycle pursuant to the program be deposited into that account, for expenditure by CalRecycle, upon appropriation by the Legislature, for activities related to the collection, reuse, and recycling of covered products, grants for related purposes, and the administration and enforcement of the program.

The bill would provide that certain actions of a PRO or a producer are not violations of the Cartwright Act or certain provisions regulating unfair business practices or unfair competition.

(2) 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.

(3) 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.

Digest Key

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

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Bill Text

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

SECTION 1.

 The Legislature finds and declares all the following:

(a) Thousands of household products that are sold in the state contain substances designated as hazardous under state or federal law.

(b) Leftover household products, known as household hazardous waste, are regulated through a requirement that municipal solid waste management entities include provisions in solid waste implementation plans for the management and diversion of unregulated hazardous waste.

(c) California’s hazardous waste laws and regulations establish specific requirements for the management of hazardous waste, including a prohibition on disposal in landfills.

(d) The Department of Resources Recycling and Recovery has supported the construction of household hazardous waste facilities and management by offering household hazardous waste grants to local governments, and those grants are currently limited to $5,000,000 per year when a single facility, such as the one in progress in the County of Sonoma, will cost between $13,000,000 and $16,000,000.

(e) California already has extended producer responsibility programs for some household hazardous waste products, including mercury thermostats, pharmaceuticals, sharps and needles, and paint. These programs cover almost half the total costs of household hazardous waste. At the recommendation of the Statewide Commission on Recycling Markets and Curbside Recycling, the Legislature added a program for aerosol paint cans in 2023.

(f) The Statewide Commission on Recycling Markets and Curbside Recycling convened from July 2020 to June 2022 and its first recommendation was to create a household hazardous waste extended producer responsibility program.

(g) According to the Department of Toxic Substances Control’s Hazardous Waste Management Report, released November 2023, “The previous waste reduction efforts were discontinued because they did not produce reductions large enough to be seen as effective.”

(h) The cost of managing household hazardous waste for local government ratepayers is extremely high and yet proper disposal is still inconvenient for the public. Extended producer responsibility is used for a wide variety of household hazardous waste products in Canada and other countries for products like antifreeze, pesticides, flammables, radioactive smoke alarms, lighting, and others.

(i) To improve diversion of household hazardous waste from landfills, reduce the financial burden on local jurisdictions and taxpayers, reduce the cost of the overall system of managing household hazardous waste, improve the convenience to the public, and lessen the environmental and public health risks posed by improperly disposed household hazardous waste, the state shall implement a program to require the manufacturers of household hazardous waste products to implement a producer responsibility organization to improve collection and diversion and to cover the costs of managing household products containing a hazardous substance.

SEC. 2.

 Chapter 1.5 (commencing with Section 47725) is added to Part 7 of Division 30 of the Public Resources Code, to read:

CHAPTER  1.5. Household Hazardous Waste Producer Responsibility Act of 2024

Article  1. General Provisions and Definitions

47725.

 (a) This chapter shall be known, and may be cited, as the Household Hazardous Waste Producer Responsibility Act of 2024.

(b) The purpose of this chapter is to provide for the safe and proper management of household hazardous waste, which poses a threat to public health and safety, is costly for California’s local governments, and may cause significant damage to the environment when managed improperly.

47726.

 (a) Except as provided in Section 47740, the department shall adopt, amend, or repeal, in accordance with the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), regulations to implement this chapter. The department shall not adopt regulations pursuant to this section with an effective date earlier than July 1, 2026.

(b) On or before July 1, 2025, the department, in consultation with the Department of Toxic Substances Control, shall establish and post on its internet website a list of covered products.

(c) On or before January 1, 2026, the department shall approve a PRO that meets the requirements of this chapter.

47727.

 For purposes of this chapter, the following definitions apply:

(a) (1) “Approved plan” means a producer responsibility plan that has been approved by the department pursuant to Section 47740 and that has not been revoked by the department pursuant to Section 47757.

(2) A conditionally approved plan is an approved plan, except as used in Section 47740.

(3) A partially approved plan is not an approved plan.

(b) “Brand” means a name, symbol, word, or mark that identifies a covered product rather than its components, and attributes the covered product to the owner or licensee of the brand as the producer.

(c) “Consumer” means a purchaser, owner, or lessee of a covered product, including a person, business, corporation, limited partnership, nonprofit organization, or governmental entity.

(d) “Contact information” means a name, physical address, mailing address, email address, and phone number.

(e) (1) “Covered product” means any product containing household hazardous waste, as defined in Section 25218.1 of the Health and Safety Code, and any product defined by the Department of Toxic Substances Control in regulations as, or containing, household hazardous waste.

(2) “Covered product” does not include either of the following:

(A) A product that is subject to another statewide extended producer responsibility program pursuant to state law.

(B) Pesticides required to be registered with the Department of Pesticide Regulation.

(f) “Department” means the Department of Resources Recycling and Recovery.

(g) “Importer” means either of the following:

(1) A person qualifying as an importer of record for purposes of Section 1484(a)(2)(B) of Title 19 of the United States Code with regard to the import of a covered product that is sold, distributed for sale, or offered for sale in or into the state that was manufactured or assembled by a company outside of the United States.

(2) A person importing into the state for sale, distributing for sale, or offering for sale in the state a covered product that was manufactured or assembled by a company physically located outside of the state.

(h) “Participant producer” means a producer that is registered with the PRO.

(i) (1) “Producer” means a person who manufactures a covered product and who sells, offers for sale, or distributes a covered product into the state under the person’s own name or brand.

(2) If there is no person in the state who is the producer for purposes of paragraph (1), the producer of the covered product is the owner or licensee of a brand under which the covered product is sold or distributed into the state. For purposes of this subdivision, an exclusive licensee is a person holding the exclusive right to use a brand in the state in connection with the manufacture, sale, or distribution for sale in or into the state of the covered product.

(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 product is the person that imports the covered product into the state for sale, distribution, or installation.

(4) If there is no person in the state who is the producer for purpose of paragraph (1), (2), or (3), the producer of the covered product is the distributor, retailer, dealer, or wholesaler who sells the product in or into the state.

(5) For purposes of this chapter, the sale of a covered product shall be deemed to occur in the state if the covered product is delivered to the consumer in the state.

(j) “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 that is appointed by one or more producers to act as an agent on behalf of the producers to design, submit, and administer a producer responsibility organization pursuant to this chapter.

(k) “Producer responsibility plan” or “plan” means the plan developed by a PRO for the collection, transportation, and the safe and proper management of covered products pursuant to Article 4 (commencing with Section 47740) and submitted to the department for approval pursuant to Section 47740.

(l) “Sell” or “sales” means a transfer of title of a covered product for consideration, including a remote sale conducted through a sales outlet, catalog, internet website, online marketplace, or similar electronic means. For purposes of this chapter, “sell” or “sales” includes a lease through which a covered product is provided to a consumer by a manufacturer, wholesaler, or retailer.

Article  2. Producers

47730.

 (a) No later than 90 days after the department’s approval of the PRO, pursuant to subdivision (c) of Section 47726, a producer shall register with the PRO.

(b) No later than 30 days after the effective date of the regulations described in subdivision (a) of Section 47726, a producer shall notify the department electronically that the producer has registered with the PRO.

(c) A producer shall register with the PRO in accordance with the procedures and requirements established by the PRO.

(d) Upon approval of a plan pursuant to Section 47740, a producer shall not sell, offer for sale, import, or distribute a covered product in the state unless all the following are met:

(1) The producer is registered with the PRO.

(2) The covered product is accounted for in the plan.

(3) The department has approved the plan.

(e) If an entity does not meet the definition of a producer and is not subject to this chapter but, at any point, meets the definition of a producer, that entity shall be deemed a producer at that point and shall register with the PRO and otherwise comply with the requirements of this chapter before beginning to sell, offer for sale, import, or distribute covered products in the state.

47731.

 (a) No later than 180 days after the effective date of the regulations described in Section 47726, a producer shall provide to the department, in a form and manner established by the department, both of the following:

(1) The producer’s contact information.

(2) A list of covered products and brands of covered products that the producer sells, distributes for sale, imports for sale, or offers for sale in or into the state.

(b) A producer shall provide to the department updates to the information described in subdivision (a) on or before January 15 of each year, within 30 days of changes to the contact information or list, and upon the department’s request.

Article  3. Producer Responsibility Organizations

47735.

 A PRO shall have a governing board consisting of participant producers that represent the diversity of covered products.

47736.

 If the department determines that the PRO no longer meets the requirements of this chapter or fails to implement or administer an approved plan in a manner that effectuates the purposes of this chapter, the department may revoke its approval of the plan and may approve a plan submitted by another PRO.

47737.

 A PRO shall notify the department within 30 calendar days of any the following:

(a) The end of a three-month period during which the PRO unsuccessfully attempted to obtain a fee, records, or information from a participant producer.

(b) The date that a producer no longer participates in the PRO’s approved plan.

(c) Any instance of noncompliance by a participant producer.

47738.

 Within 24 months of the effective date of the regulations described in Section 47726, a PRO with an approved plan shall provide a free and convenient collection and management system for covered products.

Article  4. Producer Responsibility Plans

47740.

 (a) Within 12 months of the effective date of the regulations described in subdivision (a) of Section 47726, a PRO shall develop and submit a proposed plan to the department, in a form and manner determined by the department.

(b) Within six months of receipt of a proposed plan, the department shall approve, approve in part, or disapprove the plan.

(c) If the department approves a proposed plan, a revised plan, or a conditionally approved plan, then the department shall notify the PRO of the approval. The PRO shall implement the approved plan within 90 days of receipt of the notice of approval, or as otherwise agreed to by the department.

(d) If the department disapproves a proposed plan or a revised plan, then the department shall notify the PRO of the disapproval and specify the reasons for disapproval. Within 30 days of receipt of notice of disapproval, the PRO shall submit a revised plan.

(e) (1) If the department approves a proposed plan or a revised plan in part, then the department shall notify the PRO of the partial approval and identify the portions of the plan that do not comply with this chapter.

(2) Within 30 days of receipt of the notice of partial approval, the PRO shall submit a revised plan to the department.

(3) The PRO shall implement the approved parts of the plan within 90 days of receipt of the notice of partial approval, or as otherwise agreed to by the department.

(f) Within 30 days of receipt of a revised plan, the department shall approve, approve in part, or disapprove the revised plan.

(g) If the department has not approved, approved in part, or disapproved a plan within one year of receipt of the plan, then the plan shall be deemed conditionally approved and the department shall notify the PRO of the conditional approval.

(h) The department may impose additional requirements for any portion of a proposed plan, a revised plan, or a conditionally approved plan that does not comply with this chapter and that has not been approved.

(i) When reviewing a proposed plan, revised plan, or a conditionally approved plan, the department may solicit information from producers, other agencies or departments, or stakeholders as the department deems appropriate.

(j) The department may review an approved plan or a conditionally approved plan at any time. If the department finds that an approved plan or a conditionally approved plan is deficient, then it may recommend modifications.

(k) Any substantial changes to an approved plan shall be submitted to the department for approval.

(l) (1) An approved plan and a conditionally approved plan shall be a public record, except that financial, production, or sales data reported by the PRO to the department is not a public record for purposes of the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code) and shall not be open to public inspection. The department may release financial or sales data in summary form only so the information cannot be attributable to a specific entity.

(2) A PRO may submit to the department a redacted version of the approved plan or conditionally approved plan that removes any proprietary or confidential information.

(3) Within 90 days of approval, conditional approval, or revision of a plan, the department shall post on its internet website the plan and a list of all the participant producers covered by the plan.

(m)  Within 24 months of the effective date of the regulations described in Section 47726, a PRO shall have a plan approved or conditionally approved by the department, and each producer shall be subject to an approved plan or conditionally approved plan.

47741.

 A plan shall do all of the following:

(a) Be designed to ensure the safe and convenient collection and management of covered products.

(b) Include the contact information of each participant producer that is covered by the plan.

(c) Include a financial section that demonstrates how the PRO will comply with Section 47745, including, but not limited to, a five-year budget that demonstrates how the PRO will comply with subdivision (b) of Section 47745.

(d) Include a section describing the PRO’s contingency plan in the event the plan expires or is revoked. The contingency plan shall guarantee that all the contracts, financial data, and any other necessary authority and assets to operate the program shall vest in a trustee approved by the department. The trustee shall operate the most recently approved plan, subject to the direction of the department, until such time as a new plan is approved. Upon plan expiration or revocation of the plan, the balance of the PRO’s operating reserves collected shall be transferred to the control of the trustee within five calendar days. All documents, digital records, contracts, and files related to the operation of the plan shall be transferred to the control of the trustee within five calendar days.

(e) Include a section describing a comprehensive statewide education and outreach program designed to educate consumers and promote participation in the program offered by the PRO. The comprehensive statewide education and outreach program shall do both of the following:

(1) Promote the safe and proper management of a covered product and shall not promote the disposal of a covered product in a manner inconsistent with the services offered by the plan.

(2) Include information for consumers on how to avoid improper disposal of a covered product.

47742.

 (a) The PRO shall review its approved plan at least every five years and determine whether revisions are necessary.

(b) If the PRO determines that revisions to its approved plan are necessary, the PRO shall submit to the department a revised plan for review and approval using the procedures set forth in Section 47740. The PRO shall submit the revised plan to the department at least 12 months before the review deadline outlined in subdivision (a). The revised plan shall include a cover letter that summarizes the revisions to the plan.

(c) If the PRO determines that no revisions to the plan are necessary, the PRO shall send a letter to the department, 12 months before the review deadline outlined in subdivision (a) explaining that the PRO has reviewed the plan and determined that no revisions are needed. The department may disapprove the PRO’s determination within 30 days of receipt of the letter if the department concludes that the PRO cannot implement the objectives of this chapter without revising the plan. If the department disapproves the PRO’s determination, the department may indicate to the PRO which sections of the plan need revision and the PRO shall submit to the department a revised plan, or plan sections, for review and approval, following the procedures set forth in Section 47740. The PRO shall submit the revised plan pursuant to this subdivision within 60 days of receipt of the department’s disapproval.

(d) The department may consult with or submit the revised plan to another state agency or department if the department determines it is necessary for making its determination. The duration of time the department takes for this consultation is not included in the time allotted to the department for review pursuant to this section.

Article  5. Financial Provisions

47745.

 The PRO shall do all of the following:

(a) Establish a method for fully funding its plan in a manner that equitably distributes the plan’s costs among participant producers that reflects sales volumes and the cost to manage the covered products that a producer produces.

(b) (1) Operate on a budget that establishes a funding level sufficient to operate the PRO in a prudent and responsible manner. The budget shall demonstrate how the PRO’s estimated revenues will cover all of the PRO’s budgeted costs for each cost category. Budgeted cost categories shall include, but not be limited to, administrative costs, capital costs, and a reserve.

(2) Administrative costs shall include the department’s actual and reasonable regulatory costs, which includes full personnel costs, to implement and enforce this chapter, consistent with the regulations described in Section 47726. For purposes of this paragraph, PRO implementation begins upon the department’s approval of the PRO’s plan, except the department’s costs shall include actual regulatory development costs and other startup costs incurred before plan’s submittal and approval.

(3) The reserve shall include funds to operate the PRO if there are unexpected events, losses of income, or large unbudgeted expenses. The reserve shall also protect the infrastructure that the PRO relies on in its plan during any lapse in producer participation during the life of the program. The reserve cost category shall include a reserve level amount description justifying the reserve level amount indicated. The PRO shall maintain reserve funds sufficient to operate the plan for not less than six months. When a new PRO is approved by the department, the PRO shall establish its reserve and maintain the required reserve fund balance by the end of the second year of plan operation. If the PRO’s plan expires or is revoked, the reserve balance shall be transferred to a successor PRO or a trustee pursuant to the portion of the plan described in subdivision (d) of Section 47741.

(c) On a schedule determined by the department, pay the department fees to cover the department’s cost as described in Section 47747.

(d) Establish a process by which the financial activities of the PRO that are related to implementation of the plan will be subject to an independent audit consistent with generally accepted accounting principles and pursuant to Section 47752. Written certification by an authorized representative of the PRO that, at the time of submission to the department, all aspects of the plan are in compliance with all applicable state and federal laws and regulations.

(e) Have adequate financial responsibility and financial controls in place, including fraud prevention measures, to ensure proper management of funds.

47746.

 Each participant producer shall, through the PRO, pay all administrative and operational costs associated with establishing and implementing the PRO’s approved plan, including the cost of the collection, transportation, and safe and proper management of covered products.

47747.

 (a) Within four months of the effective date of the regulations described in Section 47726, the department shall notify the PRO of the estimated regulatory costs and the criteria for the costs specified in the regulations. Those costs shall include the costs associated with developing the regulations and other department activities that occur before plan’s submittal and approval, including, but not limited to, full personnel costs related to implementing and enforcing this chapter. The costs shall not exceed the department’s reasonable regulatory costs to implement and enforce this chapter.

(b) The department shall deposit all moneys received from the PRO pursuant to this section into the Household Hazardous Waste Producer Responsibility Fund, which is hereby established in the State Treasury.

(c) Upon appropriation by the Legislature, moneys in the Household Hazardous Waste Producer Responsibility Fund shall be expended by the department to implement and enforce this chapter and to reimburse any outstanding loans made from other funds used to finance the development of the regulations and the startup costs of the department’s activities pursuant to this chapter.

(d) The moneys in the Household Hazardous Waste Producer Responsibility Fund shall only be expended for purposes described in subdivision (c).

47748.

 (a) If the plan relies on a local jurisdiction to collect or manage a covered product, or to otherwise comply with Section 47738, then the PRO shall reimburse the local jurisdiction for costs associated with the collection and management of the covered product.

(b) Reimbursement costs shall be limited to the actual costs of transportation and management of a covered product.

Article  6. Records, Audits, and Reports

47750.

 (a) The PRO shall keep board minutes, books, and records that clearly reflect the activities and transactions of the PRO for a period of not less than five years.

(b) The department may audit the PRO annually.

(c) The failure of the PRO, a participant producer, or their respective agent who holds records, to produce documents or data that is requested by the department, required to be collected or generated to carry out operation of the plan in the form and manner determined by the department as part of a department audit, or review of a third-party audit, shall constitute a violation of this chapter.

47751.

 (a) A producer, PRO, manufacturer, distributor, retailer, dealer, or importer shall do both of the following:

(1) Upon request, provide the department with reasonable and timely access, as determined by the department, to its facilities and operations, as necessary to determine compliance with this chapter.

(2) Within 14 days of a request from the department, provide the department with relevant records, as determined by the department, necessary to determine compliance with this chapter.

(b) All reports and records provided to the department pursuant to this chapter shall be provided under penalty of perjury.

(c) The department may impose administrative civil penalties pursuant to Article 7 (commencing with Section 47755) on a producer, PRO, manufacturer, distributor, retailer, dealer, or importer that fails to provide the department with the access required pursuant to this section.

47752.

 (a) The PRO shall retain an independent certified public accountant, certified in the United States, to annually audit the accounting books of the PRO. The department shall review the independent certified public accountant’s audit for compliance with this chapter and consistency with the PRO’s approved plan and the annual report required by Section 47753. After the department conducts its own audit, the department shall notify the PRO of any conduct or practice that does not comply with this chapter or of any inconsistencies identified in the audit. The PRO may obtain copies of the department’s audit, including proprietary information contained in the department’s audit, upon request. The producer or PRO may withhold from disclosure confidential proprietary information to the extent allowed under Section 1040 of the Evidence Code and the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code).

(b) The items submitted to the department as part of the independent audit shall include all of the following:

(1) Financial statements audited in accordance with generally accepted accounting principles.

(2) An audit of the PRO’s compliance with this chapter.

(3) An audit of the PRO’s adherence to, execution of, and consistency with its approved plan.

(c) The PRO shall include the independent audit in its annual report submitted to the department pursuant to Section 47753 commencing within 18 months of plan approval by the department. The department shall review the audit for compliance with this chapter and consistency with the PRO’s approved plan.

47753.

 On or before January 1 of each year, the PRO shall submit to the department, and make publicly available, an annual report, in a format prescribed by the department, that includes, at minimum, all of the following information for the preceding calendar year, unless otherwise specified:

(a) The PRO’s costs, according to the cost categories established in the plan, and revenues.

(b) A summary of any anticipated changes to allocations in cost categories for the next calendar year.

(c) Any changes to the distribution of costs to the producers registered with the PRO.

(d) Updated contact information for participant producers.

(e) An estimate of the quantity of covered products sold in or into the state by participant producers, as determined by the best available commercial data.

(f) A summary of efforts made as part of the comprehensive statewide education and outreach program, as required by subdivision (e) of Section 47741, including the PRO’s evaluation of the effectiveness of the program.

(g) Recommendations for any future proposed substantial changes to the plan.

(h) Any other information required by the regulations adopted pursuant to Section 47726.

47754.

 (a) No later than 120 days after the date the department receives an annual report, the department shall notify the PRO if the annual report is compliant or noncompliant.

(b) If the department determines that the annual report is noncompliant due to failure to meet the requirements of this chapter, the department may require the resubmittal of the annual report and take enforcement action.

(c) The department may consult with or submit the annual report to a state agency or department if it determines it is necessary to determine the annual report’s compliance or noncompliance. The duration of time the department takes for this consultation shall not be included in the time allotted to the department for review pursuant to subdivision (a).

Article  7. Enforcement

47755.

 A retailer, dealer, importer, or distributor shall not sell, distribute, offer for sale, or import a covered product in or into the state unless the producer of the covered product is listed as a compliant producer pursuant to Section 47756 or received a certification letter described in subdivision (e) of Section 47756.

47756.

 (a) Within 12 months of the effective date of the regulations described in Section 47726, and on or before July 1 of each year thereafter, the department shall publish on the department’s internet website, a list of the names of producers that are compliant with this chapter. The department shall list, as appropriate, the reported brands of covered products for each producer.

(b) A retailer, importer, or distributor shall monitor the department’s internet website to determine if a producer, brand, or covered product is in compliance with this chapter.

(c) Notwithstanding any other provision of this chapter, upon identification of a producer that is not registered with the PRO with an approved plan, the department shall issue a notice of noncompliance to the producer.

(d) If the department determines a producer is not in compliance with this chapter, the department shall remove the producer, and its brands of covered products, from the compliance list on its internet website.

(e) The department shall provide a certification letter to a producer that is not listed on the department’s internet website as a compliant producer, but that has demonstrated compliance with this chapter to the department. The certification letter shall state that the producer of a covered product is in compliance with this chapter. The department may update the compliance list on its website.

47757.

 (a) The department may administratively impose on any person who is in violation of this chapter a civil penalty of up to the following amounts:

(1) Ten thousand dollars ($10,000) per day.

(2) Fifty thousand dollars ($50,000) per day if the violation is intentional or knowing.

(b) In assessing or reviewing the amount of a civil penalty imposed pursuant to subdivision (a) for a violation of this chapter, the department or the court shall consider all of the following:

(1) The nature and extent of the violation.

(2) The number and severity of the violation or violations.

(3) The economic effect of the penalty on the violator.

(4) Whether the violator took good faith measures to comply with this chapter and the period of time over which these noncompliant actions were taken.

(5) The willfulness of the violator’s misconduct.

(6) The deterrent effect that the imposition of the penalty would have on both the violator and the regulated community.

(7) Any other factor that justice may require.

(c) Upon a written finding that a PRO, producer, importer, distributor, or any other party regulated pursuant to this chapter has not met a material requirement of this chapter, in addition to any other penalties authorized pursuant to this chapter, the department may take one or both of the following actions to ensure compliance with the requirements of this chapter, after affording the PRO, producer, importer, distributor, or any other party regulated pursuant to this chapter, an opportunity to respond to or rebut the finding:

(1) Revoke the PRO’s plan approval or require the PRO to resubmit the plan or plan section.

(2) Require additional reporting relating to compliance with the material requirements of this chapter that were not met.

(d) The department shall deposit all penalties collected pursuant to this section into the Household Hazardous Products Penalty Account, which is hereby created in the Household Hazardous Waste Producer Responsibility Fund. Upon appropriation by the Legislature, moneys in the Household Hazardous Products Penalty Account shall be available for expenditure by the department on activities related to the collection, reuse, and recycling of covered products, grants for related purposes, and the administration and enforcement of this chapter.

(e) The Administrative Adjudication Bill of Rights (Article 6 (commencing with Section 11425.10) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of the Government Code), applies to hearings conducted pursuant to this chapter and mandates minimum due process requirements.

47758.

 (a) After the time for judicial review under Section 11523 of the Government Code has expired, the department may apply to the small claims court or superior court, depending on the jurisdictional amount and any other remedy sought, in the county where the penalties, restitution, or other remedy was imposed by the department, for a judgment to collect any unpaid civil penalties or restitution or to enforce any other remedy provided by this chapter. The application, which shall include a certified copy of the final agency order or decision, shall constitute a sufficient showing to warrant the issuance of the judgment. The court clerk shall enter the judgment immediately in conformity with the application. The judgment so entered shall have the same force and effect as, and shall be subject to all the provisions of law relating to, a judgment in a civil action and may be enforced in the same manner as any other judgment of the court. The court shall make enforcement of the judgment a priority.

(b) If, in the judgment of the Director of Toxic Substances Control, a person has engaged in or is about to engage in an act, practice, or omission that constitutes, or will constitute, a violation of this chapter, the Attorney General may, at the request of the director, bring an action in the superior court for an order enjoining the act, practice, or omission. The order may require remedial measures and direct compliance with this chapter. Upon a showing by the director that the person has engaged in or is about to engage in that act, practice, or omission, the superior court may issue a permanent or temporary injunction, restraining order, or other order, as appropriate.

(c) An action brought by the Attorney General pursuant to this section shall have precedence in respect to the order of trial over all other civil actions not brought by or on behalf of the state, except actions regarding probate bonds.

47759.

 A producer shall not be subject to penalties pursuant to this article for noncompliance with subdivision (d) of Section 47730 until two years after the effective date of the regulations described in Section 47726.

Article  8. Antitrust Immunity

47760.

 (a) Except as provided in subdivision (b), an action that is taken by a producer or PRO 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) to the extent the producer or PRO is exercising authority pursuant to this chapter.

(b) Subdivision (a) applies to all of the following actions taken by a PRO:

(1) The creation, implementation, or management of a plan approved or conditionally approved by the department pursuant to Article 4 (commencing with Section 47740) and the determination of the types or quantities of covered products recycled or otherwise managed pursuant to a plan.

(2) The determination of the cost and structure of an approved plan.

(3) The establishment, administration, collection, or disbursement of a charge associated with funding the implementation of this chapter.

(c) Subdivision (a) does not apply to an agreement that does any of the following:

(1) Fixes a price of or for covered products.

(2) Fixes the output or production of covered products.

(3) Restricts the geographic area in which, or customers to whom, covered products will be sold.

SEC. 3.

 The Legislature finds and declares that Section 2 of this act, which adds Section 47740 to 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 ensure the effective solid waste management of, and viable markets for, products that contain household hazardous waste, it is necessary to protect the proprietary information of producers, retailers, wholesalers, and solid waste enterprises by keeping confidential the financial, production, and sales data reported by those entities under Section 2 of this act.

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.