BILL NUMBER: SB 254 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY SEPTEMBER 6, 2013
AMENDED IN ASSEMBLY SEPTEMBER 4, 2013
AMENDED IN ASSEMBLY AUGUST 26, 2013
AMENDED IN ASSEMBLY AUGUST 19, 2013
AMENDED IN ASSEMBLY AUGUST 6, 2013
AMENDED IN SENATE MAY 28, 2013
AMENDED IN SENATE APRIL 15, 2013
AMENDED IN SENATE APRIL 1, 2013
INTRODUCED BY Senators Hancock and Correa
(Principal coauthor: Senator Calderon)
(Coauthors: Senators Corbett and Leno)
(Coauthor: Assembly Member Garcia)
FEBRUARY 13, 2013
An act to add Chapter 21 (commencing with Section 42985) to Part 3
of Division 30 of the Public Resources Code, relating to solid
waste.
LEGISLATIVE COUNSEL'S DIGEST
SB 254, as amended, Hancock. Solid waste: used mattresses:
recycling and recovery.
Existing law requires a retailer of various specified products,
such as rechargeable batteries and cellular telephones, sold in the
state to have in place a system for the acceptance and collection of
those products for reuse, recycling, or proper disposal.
This bill would establish the Used Mattress Recovery and Recycling
Act. The bill would authorize a qualified industry association, as
defined, to establish a mattress recycling organization, as defined.
The bill would authorize the Department of Resources Recycling and
Recovery to certify that a mattress recycling organization has been
established. The bill would require the mattress recycling
organization to develop, implement, and administer a mattress
recycling program pursuant to the act. The bill would require
manufacturers and , retailers, and
renovators of mattresses to register with the mattress
recycling organization on or before January 1, 2015.
This bill would prohibit, on and after January 1, 2016, a
manufacturer, renovator, or retailer from, among other things,
selling in, or importing a mattress into, this state under
circumstances of noncompliance with the bill's requirements. The act
would require the retailer, by July 1, 2014, to give a consumer the
option to have a used mattress picked up, at no additional cost, at
the time a new mattress is delivered or be provided with an
opportunity for free dropoff of the used mattress.
This bill would require the mattress recycling organization, by
July 1, 2015, to develop a state plan for recycling used mattresses
in the state that includes specified goals and elements and to submit
the plan to the department, as specified. The plan would be required
to include, among other things, the provision of a mechanism to
local governments and certain solid waste facilities for the recovery
of illegally disposed mattresses that is funded, as specified. The
plan would also be required to ensure that it addresses the impact of
the requirement of the California Constitution that a local
government submit the imposition, extension, or increase in a general
or special tax, as defined, to the electorate for approval by a
majority or 2/3vote, respectively, with regard to local governments
participating in the program. The bill would require the
organization, by July 1, 2015, to annually prepare and approve a
proposed used mattress recycling program plan budget for the next
calendar year and to submit the budget to the department for
approval, as specified. The bill would require the department to
notify the organization of the department's costs that are directly
related to implementing and enforcing the act and the organization
would be required to reimburse the department for those direct costs.
The bill would require the department to deposit these amounts
submitted by the organization into the Used Mattress Recycling
Account Fund , which the bill would
establish in the Integrated Waste Management Fund
State Treasury . The bill would require the department to
expend the moneys in the account fund ,
upon appropriation by the Legislature, to administer and enforce the
act and to reimburse any outstanding loans made from other funds
used to finance the startup costs of the department, as provided.
This bill would require the organization to annually set the
amount of a state mattress recycling charge that would be added to
the purchase price of a mattress, and would require a manufacturer,
renovator, retailer, wholesaler, distributor, or other party that
sells a mattress to add the charge to the purchase price for the
mattress and remit the charge collected to the organization. The bill
would exempt mattresses manufactured by the Prison Industry
Authority and purchased by the state from collecting and remitting
the mattress recycling charge.
This bill would authorize the department to impose an
administrative civil penalty on a manufacturer, organization,
recycler, renovator, or retailer in violation of the act. The bill
would require the department to deposit these penalties into the
Mattress Recovery and Recycling Penalty Account, which the bill would
create in the Integrated Waste Management
Used Mattress Recycling Fund. The department would be
authorized to expend the moneys in that account, upon appropriation
by the Legislature, to implement the act.
The bill would authorize the department to adopt emergency
regulations in a specified manner with regard to establishing a
process for the submission of the used mattress recovery and
recycling plan to the department, and the approval of that plan, and
for the submission of the proposed used mattress recycling program
budget to the department, and the approval of the budget by the
department.
The bill would constitute a change in state statute that would
result in a taxpayer paying a higher tax within the meaning of
Section 3 of Article XIII A of the California Constitution, and thus
would require for passage the approval of 2/3 of the membership of
each house of the Legislature.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 21 (commencing with Section 42985) is added to
Part 3 of Division 30 of the Public Resources Code, to read:
CHAPTER 21. USED MATTRESS RECOVERY AND RECYCLING ACT
42985. (a) The Legislature finds and declares all
both of the following:
(1) In order to reduce illegal dumping, increase recycling, and
substantially reduce public agency costs for the end-of-life
management of used mattresses, the Used Mattress Recovery and
Recycling Act is hereby established by this chapter to require
manufacturers of mattresses sold in this state to develop, finance,
and implement a convenient and cost-effective program to recover and
recycle used mattresses generated in this state.
(2) The program developed and implemented by manufacturers of
mattresses sold in this state shall strive for the maximum feasible
level of recovery and recycling of used mattresses generated in
support of the statewide goal that at least 75 percent of all solid
waste be recycled by January 1, 2020.
(3) Used mattresses and their components are not hazardous
household materials, but they can impose financial and other costs on
society at the end of their useful lives.
(b) It is the intent of the Legislature in enacting this chapter
that consumers have the opportunity to drop off their used mattresses
free of charge and that this chapter will not undermine
existing used mattress recycling, resale, refurbishing, and reuse
operations that are in compliance with state and federal law .
42985.1. This chapter shall be known, and may be cited, as the
Used Mattress Recovery and Recycling Act.
Article 1. Definitions
42986. For purposes of this chapter, the following definitions
shall apply:
(a) (1) "Consumer" means an owner of a mattress, including a
person, business, corporation, limited partnership, nonprofit
organization, or governmental entity, and including the ultimate
purchaser, owner, or lessee of a mattress.
(2) "Consumer" does not include a government organization or other
party that obtains one or more used mattresses in the course of
collecting used mattresses for recycling for purposes of this
chapter, or through the ordinary collection and handling of municipal
solid waste.
(b) "Distributor" means a company that has a contractual
relationship with one or more manufacturers to market and sell
mattresses to retailers.
(c) "Foundation" means a ticking-covered structure used to support
a mattress or sleep surface. The structure may include constructed
frames, foam, box springs, or other materials, used alone or in
combination.
(d) "Good faith effort" means all reasonable and economically
practical efforts by a mattress recycling organization to implement
the components identified in its approved plan consistent with its
annual budget.
(e) "Importer" means a party 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 finished mattress sold in
the state that was manufactured or assembled by a company outside
the United States.
(f) (1) "Manufacturer" means any of the following:
(A) The person who manufactures a mattress and who sells, offers
for sale, or distributes a mattress in the state.
(B) If there is no person who is a manufacturer of a mattress for
purposes of subparagraph (A), the manufacturer is the person who
imports the mattress into the state for sale or distribution.
(2) Except as provided pursuant to paragraph (2) of subdivision
(b) of Section 42987, a retailer that brings a mattress into its
store locations from an out-of-state warehouse or distribution center
is not a manufacturer.
(g) (1) "Mattress" means a resilient material or combination of
materials that is enclosed by a ticking, is used alone or in
combination with other products, and is intended for or promoted for
sleeping upon.
(2) "Mattress" includes a foundation and a renovated mattress or
renovated foundation.
(3) "Mattress" does not include the following:
(A) An unattached mattress pad or unattached mattress topper,
including items with resilient filling, with or without ticking,
intended to be used with or on top of a mattress.
(B) A sleeping bag or pillow.
(C) A car bed, crib, or bassinet mattress.
(D) Juvenile products, including a carriage, basket, dressing
table, stroller, playpen, infant carrier, lounge pad, or crib bumper,
and the pads for those juvenile products.
(E) A product containing liquid- and gaseous-filled ticking,
including a water bed and air mattress that does not contain
upholstery material between the ticking and the mattress core.
(F) Upholstered furniture that does not otherwise contain a
detachable mattress or that is a fold out sofa bed or futon.
(h) "Mattress recycling organization" or "organization" means an
organization exempt from taxation under Section 501(c)(3) or Section
501(c)(6) of the Internal Revenue Code of 1986, that is established
by a qualified industry association, composed of manufacturers,
renovators, and retailers, and certified pursuant to Section 42987,
to develop, implement, and administer the mattress recycling program
established pursuant to this chapter.
(i) "Used mattress recovery and recycling plan" or "plan" means
the plan for recycling used mattresses that is developed by the
mattress recycling organization pursuant to this chapter.
(j) "Program" or "used mattress recycling program" means the
program implemented by the mattress recycling organization pursuant
to a plan approved by the department.
(k) "Qualified industry association" means the International Sleep
Products Association or a successor of that organization , or a
group of mattress manufacturers that collectively represent at least
35 percent of the volume of mattresses manufactured in the United
States .
(l) "Recycle" or "recycling" has the same meaning as defined in
Section 40180.
(m) "Recycler" means a person that engages in the manual or
mechanical separation of mattresses to substantially recover
components and commodities contained in mattresses for the purpose of
reuse or recycling.
(n) "Recycling charge" or "charge" means the charge imposed on the
sale of a new or renovated mattress at the point of sale and
collected by the organization to fund the recycling of used
mattresses pursuant to this chapter.
(o) (1) "Renovate" or "renovation" means altering a used mattress
for the purpose of resale and includes one or more of the following:
(A) Replacing the mattress, ticking, or filling.
(B) Adding additional filling.
(C) Rebuilding a used mattress.
(D) Replacing components with new or postconsumer materials unless
the material is a clean recycled material, consists of used
electronic parts or controls, or is a used mattress base that is not
covered by ticking.
(2) "Renovate" or "renovation" does not include any of the
following:
(A) Stripping a mattress of its ticking or filling without adding
new material.
(B) Sterilizing or sanitizing a mattress without otherwise
altering the mattress.
(C) Altering a mattress by a renovator when a person retains the
altered mattress for lease, rental, or personal use.
(D) Refurbishing that disqualifies a mattress for a yellow
wholesale renovator tag to be affixed to the mattress, in accordance
with the regulations adopted by the Department of Consumer Affairs.
(p) "Renovator" means a person who renovates used mattresses for
the purpose of sale, or offering for sale, in this state.
(q) "Retailer" means a person who sells mattresses in the state or
offers to a consumer a mattress in the state through any means,
including, but not limited to, by remote offering, including sales
outlets or catalogs, electronically through the Internet, by
telephone, or through the mail.
(r) "Sale" or "sell" means the transfer of title of a mattress for
consideration, including by a manufacturer, a distributor, or a
retailer for eventual consumption to a consumer in the state,
including remote sales conducted through sales outlets, catalogs, or
the Internet or any other similar electronic means. For purposes of
this chapter, a long-term lease of not less than 12 months is the
same as a sale.
(s) "Solid waste facility" means, for purposes of this chapter, a
solid waste facility that is permitted to, and
accepts under its normal operating conditions, used mattresses from
the public for collection, storing, and handling, whether for
recycling or disposal.
(t) (1) "Ticking" means the outermost layer of fabric or related
material of a mattress.
(2) "Ticking" does not include another layer of fabric or related
material that is quilted together with, or otherwise attached to, the
outermost layer of fabric or related material.
(u) "Used mattress" means a mattress that has been abandoned or
discarded by a consumer.
Article 2. Mattress Recycling Plan
42987. (a) (1) On or before July 1, 2014, a qualified industry
association or a successor organization may establish a mattress
recycling organization for purposes of this chapter, which shall be
composed of manufacturers, renovators, and retailers and be certified
pursuant to this section to develop, implement, and administer the
mattress recycling program established pursuant to this chapter.
(2) Within 60 days of receipt of a request for certification, the
department shall notify the requesting qualified industry association
of the department's decision whether or not to certify that a
mattress recycling organization has been established by the qualified
industry association or successor organization and is composed of
manufacturers, renovators, and retailers for purposes of establishing
the mattress recycling plan.
(3) Prior to certification by the department, the department's
director shall appoint an advisory committee to be part of the
mattress recycling organization.
(A) The advisory committee may be comprised of members of the
environmental community, solid waste industry, local government, and
public and private representatives involved in the collection,
processing and recycling of used mattresses, and other interested
parties.
(B) The mattress recycling organization shall consult the advisory
committee at least once during the development and implementation of
the plan required pursuant to Section 42987.1, and annually prior to
the submittal of both an annual report required pursuant to Section
42990.1 and an annual budget required pursuant to Section 42988.
(b) (1) On or before January 1, 2015, each manufacturer ,
retailer, and renovator shall register with the mattress
recycling organization.
(2) A retailer may register with the mattress recycling
organization as a manufacturer for a brand for which there is not a
registered manufacturer.
(c) On and after January 1, 2016, a retailer shall not sell,
distribute, or offer for sale a mattress in the state unless the
retailer is in compliance with this chapter and the manufacturer or
renovator of the mattress sold by the retailer is listed in
compliance with this chapter.
(d) On and after January 1, 2016, a manufacturer or renovator
shall not sell, offer for sale, or import a mattress in this state,
or sell or distribute a mattress to a distributor or retailer, unless
the manufacturer or renovator is in compliance with this chapter.
42987.1. On or before July 1, 2015, the mattress recycling
organization shall develop and submit to the department a plan for
recycling used mattresses in the state in an economically efficient
and practical manner that includes all of the following goals and
elements:
(a) Program objectives consistent with the state's solid waste
management hierarchy.
(b) The names of manufacturers, renovators, and brands covered
under the plan.
(c) A consultation process with affected stakeholders, including,
but not limited to, local government representatives, recyclers, and
solid waste industry representatives.
(d) Methods to increase the number of used mattresses diverted
from landfills, reduce the number of illegally dumped used
mattresses, and increase the quantity of used materials recovered
through this process and recycled for other uses.
(e) (1) The establishment and administration of a means for
funding the plan in a manner that distributes the mattress recycling
organization's costs uniformly over all mattresses sold in the state.
(2) The funding mechanism shall provide sufficient funding for the
mattress recycling organization to carry out the plan, including the
administrative, operational, and capital costs of the plan.
(f) The publishing of an annual report for each calendar year of
operation.
(g) Conducting research, as needed, related to improving used
mattress collection, dismantling, and recycling operations, including
pilot programs to test new processes, methods, or equipment on a
local, regional, or otherwise limited basis.
(h) A program performance measurement that shall collect program
data for the purpose of the annual report. The information shall
include:
(1) A methodology for estimating the amount of mattresses sold in
the state, used mattresses available for collection in the state, and
for quantifying the number of used mattresses collected and recycled
in the state.
(2) A methodology for determining mattresses sold in the state by
the manufacturers and renovators of the mattress recycling
organization.
(i) A description of methods used to coordinate activities with
existing used mattress collecting and recycling programs, including
existing nonprofit mattress recyclers, and with other relevant
parties as appropriate, with regard to the proper management or
recycling of discarded or abandoned mattresses, for purposes of
providing the efficient delivery of services and avoiding unnecessary
duplication of effort and expense.
(j) Entering into contracts or agreements, which may include
contracts and agreements with existing nonprofit or for-profit
recyclers, that are necessary and proper for the mattress recycling
organization to carry out these duties consistent with the terms of
this chapter.
(k) Establishment of a financial incentive to encourage parties to
collect for recycling used mattresses discarded or illegally dumped
in the state.
(l) Ensuring, to the maximum extent possible, that urban and
rural local governments and participating solid
waste facilities that are permitted to accept
mattresses are provided with a mechanism for the recovery of
illegally disposed used mattresses that is funded at no additional
cost to the local government or solid waste facility.
(m) Developing processes to collect used mattresses from
low-income communities for recycling in accordance with the poverty
line annually established by the Secretary of California Health and
Human Services pursuant to the federal Omnibus Budget Reconciliation
Act of 1981 (Public Law 97-35), as amended.
(n) Providing outreach efforts and education to consumers,
manufacturers, and retailers, for the purpose of promoting the
recycling of used mattresses and options available to consumers for
the free dropoff of used mattresses.
(o) A provision that allows an individual to drop off, at no
charge, a mattress at a mattress recycling center or
, permitted solid waste facility , or other
municipal facility that is permitted to
accept accepts mattresses, and that provides for
the payment to a municipal or solid waste facility that
is permitted to accept mattresses, accepts
mattresses a reasonable amount for accepting, collecting,
storing, transporting, and handling used mattresses.
(p) Ensuring that the impact of Article XIII C of the California
Constitution is addressed for local governments participating in the
program.
(q) A report from the advisory committee, established pursuant to
paragraph (3) of subdivision (a) of Section 42987, which includes a
summary of the consultative process between the advisory committee
and the mattress recycling organization during the development of the
plan, as well as any other information deemed pertinent by the
advisory committee to maximizing the recovery and recycling of used
mattresses in the state.
(r) Other information requested by the department that is
reasonably related to compliance with the recycling plan and that the
organization can reasonably compile.
42987.2. In preparing the plan pursuant to Section 42987.1, the
mattress recycling organization shall consult with interested
stakeholders, which shall include, but not be limited to, local
government representatives, recyclers, and solid waste industry
representatives.
42987.3. (a) The department shall review the plan for compliance
with this chapter and shall approve, disapprove, or conditionally
approve the plan within 90 days of receipt of the plan. If the
department fails to act within 90 days of the receipt of the plan,
the plan shall be deemed approved.
(b) If the department disapproves the plan pursuant to subdivision
(a), the department shall explain, in writing, how the plan does not
comply with this chapter, and the mattress recycling organization
shall resubmit a plan to the department. If the department finds that
the plan resubmitted by the organization does not comply with the
requirements of this chapter, the mattress recycling organization
shall not be deemed in compliance with this chapter until the
organization submits a plan that the department finds complies with
the requirements of this chapter.
(c) The approved plan shall be a public record, except that
financial, production, or sales data reported to the department by
the mattress recycling organization is not public record for purposes
of the California Public Records Act (Chapter 3.5 (commencing with
Section 6250) of Division 7 of Title 1 of the Government Code) and
shall not be open to public inspection. The department may release
financial, production, or sales data in summary form only so the
information cannot be attributable to a specific manufacturer or
retailer or to any other entity.
42987.4. Within 90 days after approval or conditional approval by
the department of the plan, the mattress recycling organization
shall implement the approved plan.
42987.5. (a) (1) On or before January 1, 2018, based on
methodology contained in the plan and information contained in the
first annual report, the department, in consultation with the
organization, and after taking into consideration relevant economic
and practical considerations and other information, shall establish
and make public the following:
(A) The state mattress recycling baseline amount.
(B) The state mattress recycling goals.
(2) When calculating the state mattress recycling goals, the
department shall include renovated mattresses.
(b) Beginning July 1, 2019, and annually thereafter, the annual
report required pursuant to Section 42990.1 shall demonstrate the
mattress recycling organization's good faith effort to comply with
the state mattress recycling goals established pursuant to this
section.
(c) On or before July 1, 2020, and every four years thereafter,
the department shall review, including reviewing for consistency with
Section 41780.01, and update as necessary, the baseline amount and
goals to ensure that the program advances the statewide recycling
goal.
Article 3. Budget
42988. On or before July 1, 2015, and on or before July 1
annually thereafter, the mattress recycling organization shall
prepare and submit to the department a proposed used mattress
recycling program budget for the following calendar year that
includes all of the following:
(a) Anticipated revenues and costs of implementing the program,
including related programs, projects, contracts, and administrative
expenses.
(b) A recommended funding level sufficient to cover the plan's
budgeted costs and to operate the mattress recycling program over a
multiyear period in a prudent and responsible manner.
(c) The amount of the mattress recycling charge and itemization of
costs that each charge covers.
42988.1. (a) On or before October 1, 2015, and annually
thereafter, the department shall approve or disapprove a final used
mattress recycling program budget. If the department fails to act or
does not disapprove a final used mattress recycling program budget,
the budget shall be deemed approved.
(b) (1) If the department disapproves the budget, the mattress
recycling organization shall resubmit a revised budget addressing the
department's written reasons for its decision within 30 days of the
disapproval.
(2) The department, within 30 days from the date the mattress
recycling organization resubmits a revised budget, shall approve or
disapprove a final used mattress recycling program budget. If the
department fails to act or does not disapprove a final program budget
within those 30 days, the budget shall be deemed approved.
42988.2. (a) The department shall notify the mattress recycling
organization of the department's costs that are directly related to
implementing and enforcing this chapter relating to the mattress
recycling organization's activities. This may include the direct
costs associated with regulatory development prior to submittal of
the plan required pursuant to Section 42987.1.
(b) On or before July 1, 2016, and once every three months
thereafter, and within the fiscal year ending June 30, the mattress
recycling organization shall reimburse the department for costs the
department incurs pursuant to subdivision (a). The reimbursement
shall not exceed the department's direct costs to implement and
enforce this chapter.
(c) The department shall deposit all moneys submitted for
reimbursement costs by the mattress recycling organization pursuant
to this section into the Used Mattress Recycling Account
Fund , which is hereby established in the
Integrated Waste Management Fund State
Treasury . Upon appropriation by the Legislature, moneys in the
account fund shall be expended by the
department to administer and enforce this chapter, as well as
reimburse any outstanding loans made from other funds used to finance
startup costs of the department's activities pursuant to this
chapter. The funds collected pursuant to this section shall not be
expended for any other purpose.
Article 4. Mattress Recycling Charge
42989. (a) The mattress recycling organization shall set the
amount of the mattress recycling charge that shall be added to the
purchase price of a mattress at the point of sale and include the
charge amount in the annual budget.
(b) (1) The amount of the state mattress recycling charge shall be
sufficient to fund the revenue requirements set forth in the
approved budget.
(2) The mattress recycling organization shall set the charge as a
flat rate and not as a percentage of the purchase price. The
organization shall not set more than two different charges to
accommodate mattress size differentials.
(c) (1) In the first 12 months during which the mattress recycling
charge is collected, the mattress recycling organization may change
the amount of the mattress recycling charge, in accordance with
subdivision (b), and shall provide no less than 90 days' notice to
the public before the change in the amount of the charge takes place.
(2) After one year from the date when the collection of the
mattress recycling charge commences, the mattress recycling
organization may change the amount of the charge in accordance with
subdivision (b), but the mattress recycling organization shall not
change the amount of the charge more frequently than annually, and
shall provide no less than 180 days' notice to the public before the
change in the amount of the charge takes effect.
(d) The charge shall be included in the annual program budget for
approval by the department.
42989.1. (a) Commencing 90 days after the date the department
approves or conditionally approves the plan pursuant to Section
42987.3, each manufacturer, renovator, retailer, or distributor that
sells a mattress to a consumer or to the ultimate end user of the
mattress in the state shall add the charge to the purchase price of
the mattress and shall remit the charge collected to the mattress
recycling organization.
(b) In each transaction described in subdivision (a), the charge
shall be clearly visible on the invoice, receipt, or functionally
equivalent billing document provided by the seller to the consumer as
a separate line item.
(c) The mattress recycling organization shall develop
reimbursement criteria to enable retailers to recover administrative
costs associated with collecting the charge.
(d) The mattress recycling organization shall determine the rules
and procedures that are necessary and proper to implement the
collection of the charge in a fair, efficient, and lawful manner.
42989.2. (a) The mattress recycling organization may conduct an
audit of the following:
(1) Those parties that are required to remit the charge to the
mattress recycling organization to verify that the charges paid are
proper and accurate and to ensure all parties required by this
chapter to pay or collect the charge are paying or collecting the
proper amount.
(2) Those parties that are exempt from remitting the charge.
(b) An audit conducted pursuant to this section shall be carried
out in accordance with generally accepted auditing practices and
shall be limited in scope to confirming whether the charge has been
properly collected on all sales of mattresses to consumers in the
state.
(c) For purposes of conducting audits pursuant to this section,
the mattress recycling organization shall hire independent
third-party auditors.
(d) If the mattress recycling organization conducts an audit
pursuant to this section, the organization shall provide a copy of
the audit to the department.
42989.2.1. (a) Mattresses manufactured by the Prison Industry
Authority and purchased by the state or its agencies are exempt from
collecting and remitting the mattress recycling charge and from any
end-of-life financial incentive established by the mattress recycling
organization for used mattresses pursuant to subdivision (k) of
Section 42987.1. Mattresses sold subject to this exemption shall be
permanently marked or labeled to clearly identify them as having been
manufactured by the Prison Industry Authority.
(b) The Prison Industry Authority shall, upon the request of the
department or mattress recycling organization, report how many
mattresses it manufactured and sold
in the previous fiscal year and the customers that
purchased those mattresses. To the extent reasonably possible, the
Prison Industry Authority, upon request by the department or the
mattress recycling organization, shall report how its customers are
disposing of their used mattresses and estimate what percentage are
being landfilled and recycled or renovated.
(c) The mattress recycling organization's obligation under this
chapter to recycle mattresses manufactured by the Prison Industry
Authority is limited to any services for which the authority has
specifically contracted with the mattress recycling organization for
that purpose. The mattress recycling organization may refuse to
recycle or pay financial incentives on any Prison Industry
Authority-manufactured mattress that is exempted from collecting and
remitting the mattress recycling fee.
(d) Mattresses exempt pursuant to subdivision (a) and all discards
of mattresses previously manufactured by the Prison Industry
Authority shall be excluded from the goal-setting analysis required
by Section 42987.5.
42989.3. (a) The mattress recycling organization shall deposit
the charges and other moneys collected by the mattress recycling
organization pursuant to this chapter in accounts that are maintained
and disbursed by the organization.
(b) The mattress recycling organization may enter into a joint
venture, agreements, or contracts with third parties, including, but
not limited to, corporations, partnerships, nonprofit entities, and
governmental agencies, to undertake activities on the mattress
recycling organization's behalf that are consistent with this
chapter.
Article 5. Records, Audits, and Annual Report
42990. (a) The mattress recycling organization shall keep
minutes, books, and records that clearly reflect the activities and
transactions of the mattress recycling organization.
(b) The accounting books of the mattress recycling organization
shall be audited at the organization's expense by an independent
certified public accountant retained by the organization at least
once each calendar year.
(c) The mattress recycling organization shall arrange for the
audit to be delivered to the department, along with the annual report
required pursuant to Section 42990.1. The department shall review
the audit for compliance with this chapter and consistency with the
plan created pursuant to this chapter. The department shall notify
the mattress recycling organization of any compliance issues or
inconsistencies. The mattress recycling organization may obtain
copies of the audit upon request. The department shall not disclose
any confidential proprietary information in the audit.
(d) The department may conduct its own audit if it determines that
an audit is necessary to enforce the requirements of this chapter
and that the audit conducted pursuant to subdivision (b) is not
adequate for this purpose.
42990.1. On or before April July 1,
2017, and each year thereafter, the mattress recycling organization
shall submit to the department and make publicly available on its
Internet Web site a report that includes, for the preceding calendar
year, all of the following:
(a) The mattress recycling organization's costs and revenues.
(b) The quantity of mattresses disposed of in solid waste
landfills.
(c) The quantity of discarded used mattresses collected for
recycling in the program.
(d) The quantity of used mattresses collected for recycling from
different categories of sources.
(e) The quantity of each category of materials recycled.
(f) The uses for the recycled materials.
(g) The quantity of otherwise disposed of materials.
(h) A description of methods used to collect, transport, and
process used mattresses in this state.
(i) Examples of educational materials that were provided to
consumers the first year and any changes to those materials in
subsequent years.
(j) The total volume, number, and weight of used mattresses
collected recycled, renovated, and reused in this state during the
preceding calendar year, including any conversion factor used to
determine the number of mattresses recovered.
(k) A report by the advisory committee, established pursuant to
paragraph (3) of subdivision (a) of Section 42987 that includes a
summary of the consultative process between the advisory committee
and the mattress recycling organization relating to the ongoing
implementation of the plan, as well as any other information deemed
pertinent by the advisory committee to maximizing the recovery and
recycling of used mattresses in the state.
(l) For reports submitted on and after April 1, 2020, a
demonstration of good faith effort with the state mattress recycling
goals established pursuant to Section 42987.5.
(m) (1 ) Any modifications or
revisions to the mattress recycling plan submitted
including those required pursuant to Section 42987.1,
necessary to achieve the statewide mattress recycling goals
established pursuant to Section 42987.5.
(2) Any proposed modifications or revisions to the mattress
recycling plan are subject to the department review process
prescribed in Section 42987.3.
(3) Within 90 days after approval or conditional approval by the
department, the mattress recycling organization shall implement the
revised plan.
(n) Other information relevant to compliance with the plan.
42990.2. No later than 60 days after the date the department
receives the annual report, the department shall notify the mattress
recycling organization of any deficiencies in the report. No later
than 60 days after receiving this notice from the department, the
mattress recycling organization shall provide additional information,
modification, or corrections in response to the department's
notification.
Article 6. Mattress Recycling and Renovating
42991. (a) On or before April 1, 2016
July 1, 2017 , and annually thereafter, a person that is
engaged in business as a recycler or renovator shall submit a report
to the department that includes the following:
(1) Quantitative information on the number of mattresses received
and recycled or renovated in the state during the preceding calendar
year.
(2) Other information deemed necessary by the department that is
reasonably related to compliance with this chapter and that can be
reasonably compiled.
(b) For purposes of determining the used mattress recycling rate,
on or before April 1, 2016 July 1, 2017
, and annually thereafter, the operator of a solid waste landfill
facility operator shall report to the department, if requested, in a
form and manner determined by the department, regarding the number of
used mattresses received by that facility that were recycled,
renovated, or disposed of within the state in the preceding calendar
year.
(c) The department shall make the information provided pursuant to
this section available to interested parties and to the public.
Article 7. Retailer Used Mattress Take-back
42992. (a) Except as provided in subdivision (d), on and after
July 1, 2014, a retailer shall offer a consumer the option to have a
used mattress picked up for recovery at the time of delivery, at no
additional cost to the consumer, if a new mattress is delivered to
the consumer.
(b) A retailer may contract out to a third party for the delivery
of a new mattress or pick up of a used mattress.
(c) A retailer is not prohibited from charging the consumer for
the cost of the delivery of a new mattress.
(d) A retailer or third-party contractor delivering a new mattress
may refuse to pick up a used mattress from a consumer if the
retailer or contractor determines the used mattress is contaminated
and poses a risk to personnel, new products, or equipment.
(e) A common carrier delivering a new mattress to a consumer as a
result of an online purchase is not required to pick up a used
mattress for recovery.
Article 8. Enforcement
42993. (a) On or before March 1, 2015, and annually thereafter,
the department shall post on its Internet Web site a list of
manufacturers and renovators that are in compliance with this
chapter.
(b) A manufacturer or renovator that is not listed on the
department's Internet Web site pursuant to this section, but
demonstrates compliance with this chapter before the next notice is
required to be posted pursuant to this section, may request a
certification letter from the department stating the manufacturer or
renovator is in compliance. The manufacturer or renovator that
receives the letter shall be deemed to be in compliance with this
chapter.
(c) A retailer that distributes or sells a mattress shall monitor
the department's Internet Web site to determine if a manufacturer or
renovator is in compliance with this chapter. A retailer otherwise in
compliance with this chapter shall be deemed in compliance with the
chapter if, on the date the retailer ordered or purchased a mattress,
or within 120 calendar days before or after that date, the
manufacturer or renovator was listed as compliant on the department's
Internet Web site.
(d) A retailer may sell or distribute the existing stock of its
inventory through sales to the public if the existing stock was
purchased when the manufacturer or renovator was in compliance with
the requirements of this chapter at the time when the retailer
initially purchased that stock.
(e) The sale, distribution, or offering for sale, of any existing
inventory in stock prior to the commencement of the collection of the
mattress recycling charge pursuant to this chapter shall be deemed
to be in compliance with this chapter.
(f) If the department determines a manufacturer or renovator is
not in compliance with this chapter, the department shall remove the
manufacturer or renovator from the department's Internet Web site
pursuant to this section and the manufacturer or renovator shall not
sell a mattress in the state until the department determines the
manufacturer or renovator is in compliance with this chapter.
42993.1. (a) The department may impose an administrative civil
penalty on any manufacturer, mattress recycling organization,
recycler, renovator, or retailer that is in violation of this
chapter. The amount of the administrative civil penalty shall not
exceed five hundred dollars ($500) per day, but, if the violation is
intentional, knowing, or reckless, the department may impose an
administrative civil penalty of not more than five thousand dollars
($5,000) per day.
(b) The department shall not impose a penalty on the mattress
recycling organization pursuant to this section for a failure to
comply with this chapter if the organization demonstrates it received
false or misleading information from a member of the organization or
other party that was the direct cause of its failure to comply.
(c) The department shall deposit all penalties collected pursuant
to this section into the Mattress Recovery and Recycling Penalty
Account, which is hereby created in the Integrated Waste
Management Fund Used Mattress Recycling Fund .
Upon appropriation by the Legislature, moneys deposited into the
Mattress Recovery and Recycling Penalty Account shall be expended by
the department to administer and enforce this chapter, including
offsetting the costs incurred by the department pursuant to Section
42988.2.
42993.2. Upon a written finding that a manufacturer, mattress
recycling organization, renovator, or retailer has not met a material
requirement of this chapter, in addition to any other penalties
authorized under this chapter, the department may take any of the
following actions, after affording the manufacturer, organization,
renovator, or retailer a reasonable opportunity to respond to, or
rebut, the finding, to ensure compliance with the requirements of
this chapter:
(a) Revoke the mattress recycling organization's plan approval or
require the mattress recycling organization to resubmit the plan.
(b) Remove the manufacturer or renovator from the department's
Internet Web site and list of compliant manufacturers and renovators,
as specified in Section 42993.
(c) Require additional reporting requirements relating to
compliance with the material requirement identified by the
department.
42993.3. (a) A manufacturer, renovator, retailer, and mattress
recycling organization shall do both of the following:
(1) Upon request, provide the department with reasonable and
timely access, as determined by the department and as authorized
pursuant to Title 13 (commencing with Section 1822.50) of Part 3 of
the Code of Civil Procedure, to its facilities and operations, as
necessary to determine compliance with this chapter.
(2) Upon request, provide the department with relevant records
necessary to determine compliance with this chapter.
(b) The records required by this chapter shall be maintained and
accessible for three years. All reports and records provided to the
department pursuant to this chapter shall be provided under penalty
of perjury.
(c) The department may take disciplinary action against a
manufacturer, renovator, retailer, or mattress recycling organization
if the manufacturer, renovator, retailer, or mattress recycling
organization fails to provide the department with the access required
pursuant to this section, including, but not limited to, imposing
penalties pursuant to Section 42993.1 and posting an immediate notice
on the department's Internet Web site pursuant to Section 42993 that
the manufacturer or renovator is no longer in compliance with this
chapter.
Article 9. Emergency Regulatory Authority
42993.4. (a) (1) The department may adopt emergency regulations
to implement this chapter with regard to establishing a process for
the submission of the used mattress recovery and recycling plan to
the department, and the approval of that plan, pursuant to Section
42987.3 and for the submission of the proposed used mattress
recycling program budget to the department, and the approval of the
budget by the department, pursuant to Sections 42988 and 42988.1.
(2) The department shall not adopt regulations pursuant to this
section with regard to any other provision of this chapter.
(3) This section does not limit the department's authority to
adopt regulations pursuant to Section 40502.
(b) The emergency regulations adopted pursuant to this section
shall be adopted in accordance with Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code, and for the purposes of that chapter, including Section 11349.6
of the Government Code, the adoption of these regulations is an
emergency and shall be considered by the Office of Administrative Law
as necessary for the immediate preservation of the public peace,
health, safety, and general welfare. Notwithstanding Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code, any emergency regulations adopted by the
department pursuant to this section shall be filed with the Office of
Administrative Law.
Article 9. 10. Antitrust
Immunity
42994. (a) Except as provided in subdivision (c), an action
specified in subdivision (b) that is taken by a mattress recycling
organization or its members that relates to any of the following is
not a violation of the Cartwright Act (Chapter 2 (commencing with
Section 16700) of Part 2 of Division 7 of the Business and
Professions Code), the Unfair Practices Act (Chapter 4 (commencing
with Section 17000) of Part 2 of Division 7 of the Business and
Professions Code), or the Unfair Competition Law (Chapter 5
(commencing with Section 17200) of Part 2 of Division 7 of the
Business and Professions Code).
(b) Subdivision (a) shall apply to all of the following actions
taken by the mattress recycling organization, manufacturer, or
renovator:
(1) The creation, implementation, or management of a plan approved
by the department pursuant to Article 2 (commencing with Section
42987) and the types or quantities of used mattresses recycled or
otherwise managed pursuant to a plan, as described in Article 2
(commencing with Section 42987).
(2) The cost and structure of an approved plan.
(3) The establishment, administration, collection, or disbursement
of the charges associated with funding the implementation of this
chapter.
(c) Subdivision (a) shall not apply to an agreement that does any
of the following:
(1) Fixes a price of or for mattresses, except for an agreement
related to costs or charges associated with participation in a plan
approved or conditionally approved by the department and otherwise in
accordance with this chapter.
(2) Fixes the output of production of mattresses.
(3) Restricts the geographic area in which, or customers to whom,
mattresses will be sold.