42053. (a) (1) As part of its producer responsibility plan pursuant to Section 42051.1, a PRO shall establish a fee for its participants sufficient to ensure the requirements of this chapter are met by the PRO and the plan is fully implemented. The fee shall be based on a fee schedule to be developed by the PRO pursuant to subdivision (c). Development of the fee schedule shall ensure that the PRO budget included in the plan is fully funded. The fee shall not be passed on to consumers as a separate item on a receipt or invoice.
(2) The PRO shall adjust any fee schedules at least every year or more frequently if needed in order to fully cover the expenses approved budget.
(3) A producer that is a participant of a PRO’s approved plan shall pay the fee required by this section and, upon request, provide the PRO with records or other information necessary for the PRO to meet the PRO’s requirements under this chapter.
(b) During the first two years of operation and during the preparation of the plan developed pursuant to Section 42051.1, the PRO shall determine the fee schedule for each producer based on estimated costs of implementing the plan, operating costs, the cost of completing the needs assessment, the costs to cover the environmental mitigation requirements of Section 42064, and the costs to reimburse the department. In the third year and each successive year of operation, each producer shall pay an annual fee as established in the PRO plan based on the factors described in subdivision (d).
(c) The fee schedule required pursuant to subdivision (a) shall include all of the following:
(1) Individual assessments imposed on a producer due to unique characteristics of their covered material, as described in subdivision (d).
(2) Any adjustments pursuant to subdivision (e).
(3) The California circular economy administrative fee.
(4) Reimbursing the department for costs to administer the advisory board.
(5) Any fees associated with environmental mitigation activities associated with Section 42064.
(6) The costs of the PRO, including, but not limited to, staff and the costs associated with the development and implementation of the producer responsibility plan.
(7) Any other costs described in subdivision (j) of Section 42051.1.
(d) A PRO shall structure the fee schedule required pursuant to subdivision (a), delineated by covered material category and based on the following factors:
(1) The costs to ensure each covered material category meets the requirements of this chapter. Covered material that is easier and less expensive to recycle or compost or that is designed to be recycled into a similar covered material or a material that is easier to be composted shall be subject to lower fees. The costs may include all of the following:
(A) Costs to develop and sustain viable responsible end markets for each covered material category.
(B) Costs to collect, sort, avoid or remove contamination, aggregate, and transport the covered material into defined streams to support the viable responsible end markets for the remanufacturing of the covered material either through curbside collection or other means.
(C) Costs incurred by local jurisdictions or recycling service providers to process and transport covered materials in a manner and quality sufficient for acceptance by viable responsible end markets. This includes costs incurred by local jurisdictions or recycling service providers to reduce or mitigate the rate of inbound contamination by noncertified compostable products at composting facilities. These costs may vary by local jurisdiction.
(D) Other costs necessary to implement the plan and achieve the source reduction, recyclability and compostability, recycling rate, and other requirements of this chapter, including, but not limited to, ensuring that plan implementation avoids and minimizes negative environmental or public health impacts on disadvantaged or low-income communities or rural areas.
(E) Costs incurred by local jurisdictions or recycling service providers for any waste stream sampling and reporting required by this chapter and for any costs incurred to educate ratepayers to improve the preparation and sorting, as needed, of covered material.
(2) If recycling or composting of the covered material is made more difficult by the incorporation of specific elements, including, but not limited to, inks, labels, and adhesives that may be detrimental to recycling or composting according to the Association of Plastic Recyclers design guide or other relevant industry association, or criteria established by the department, the fee for that covered material shall be sufficient to account for the increased cost to manage that covered material.
(3) The commodity value of the covered material based on an independent index or the reported commodity value of materials of equivalent quality of the covered material.
(4) Costs incurred by the PRO to assist producers to meet the source reduction requirements pursuant to Section 42057.
(e) The fee required pursuant to subdivision (a) shall be adjusted using malus fees or credits for participant producers, with those adjustments based on any of the following, as applicable:
(1) The percentage of postconsumer recycled content in the participant producer’s covered materials. The percentage of postconsumer recycled content shall be validated through an independent third party approved by the department to perform validation services to ensure that the percentage exceeds the minimum requirements for the covered material, as long as the recycled content does not disrupt the potential for future recycling.
(2) Source reduction related to right-sizing, optimization, and bulking of packaging, or concentrating the product packaged to reduce packaging.
(3) Standardization of packaging materials that simplifies the processing, marketing, sorting, and recycling or composting of covered materials.
(4) Presence of hazardous material as identified by the Office of Environmental Health Hazard Assessment, the Department of Toxic Substances Control, or the department.
(5) Actions taken by the producer, including clear and accurate disposal, recycling or composting, or reuse and refill labeling and instructions, that comply with Chapter 5.7 (commencing with Section 42335), including paragraph (6) of subdivision (d) of Section 42355.51, that improve consumer behavior related to sorting and proper disposal.
(6) Actions taken by the producer to accelerate source reduction and to invest in sustained and robust reuse and refill systems. The PRO may create a mechanism to allow producers to receive a credit for achieving source reduction beyond what producers of similar covered material are achieving. The revenue for that credit shall be paid for by charging producers not achieving source reduction for similar products a malus fee.
(7) Plastic covered materials derived from renewable materials shall be subject to a reduced fee relative to plastic covered material derived from a nonrenewable material.
(8) Certified compostable covered materials that do not contain toxic additives shall be subject to a reduced fee, as determined by the PRO.
(9) Covered material that contains toxic heavy metals, pathogens, or additives shall be subject to an increased fee.
(f) In addition to the annual schedule of fees approved in the plan, the PRO fee schedule may include a special assessment, charged to the participant producers of a particular covered material category, to be imposed on that particular category of covered material at the request of those producers if the nature of the covered material imposes unusual costs in collection or processing or requires special actions to address effective access to recycling, composting, or successful processing. The revenue from the special assessment shall be used to make system improvements for the specific covered materials or products on which the special assessment was applied.
(g) Fees paid to the PRO pursuant to subdivision (a) shall be used to implement the plan and fund the budget.
(Added by Stats. 2022, Ch. 75, Sec. 2. (SB 54) Effective January 1, 2023.)