METTLER PAPER AND PL ASTIC PACKAGING - CalRecycle · 2019. 3. 18. · ADMINISTRATIVE CERTIFICATION...

METTLER PAPER AND PL ASTIC PACKAGING PACKAGING LLC

March 14, 2019

VIA EMAIL ([email protected])

Robert Contreras Materials Management and Local Assistance Division California Department of Resources Recycling and Recovery P.O. Box 4025 Sacramento, CA 958 12-4025

RE: COMMENTS REGARDING THE NOTICE OF CHANGES TO THE PROPOSED REGULATIONS FOR SB 270 REGARDING ADMINISTRATIVE CERTIFICATION FOR REUSABLE GROCERY BAGS

Dear Mr. Contreras:

This letter is in response to the Notice of Changes to the Proposed Regulations regarding Administrative Certification for Reusable Grocery Bags, published on January 11 , 2019 as well as on February 28, 2019.

We hereby submit the fo llowing further clarifying comments regarding the revised draft regulations:

1. Fabric Weight.

In the Definitions section 17988.2 of the proposed regulatory text, the term Fabric Weight is defined as "weight of the fabric used in the construction of a reusable grocery bag reported in units of grams per square meter. Fabric weight may be measured based on a single sample or based on an average of the weights of one sample taken from each of the fo llowing locations: the handles, reusable grocery bag opening, and body of the reusable grocery bag. Samples may include more than one layer offabric, based on the construction of the reusable grocery bag." In this respect, we deem taking the weight from the handles as not useful for accounting the Fabric Weight. The handles do not necessarily always consist of the same material as the body of the bags (e.g. single layer material) which, as a consequence, will lead to a misrepresentation regarding the average of the pertinent fabric weight. Handles should therefore be excluded from the list of locations the fabric weight should be measured.

2. Modification and Resubmission.

Section 17988.3( c )(2) of the fourth draft regulations provides that a proof of certification for a reusable grocery bag may be resubmitted, if no modifications have been made to a previously certified reusable grocery bag with the exception of aesthetic change(s).

Meuler Packaging LLC 90 New State I lighway, Suite # 11 0, Raynham, MA 02767

Phone: 508 - 783 - 220 I - Tol l Free Number: 855 - 638 - 2247 - Fax: 508 - 386 - 335 1 [email protected] - www.111clller-packagi11g.co111

www.111clller-packagi11g.co111mailto:[email protected]:[email protected]

Robert Contreras March 14,2019 Page 2

However, it does not become clear that a reusable grocery bag producer is entitled to submit the old proof of ce1iification. Further, from the wording it is also not clear if proof of certification shall necessarily be completed within three months of the date the proof of certification is resubmitted to the Department or if the reusable grocery bag producer may resubmit an older proof of certification.

In order to enable the reusable grocery bag producer to resubmit the correct document within the correct time, clarification from the Department would be helpful.

3. Total Quantity of postconsumer recycled material use.

Alternative one in section l 7988.5(a)(2)(A) states that "[t]he tiered quantity fee shall be determined based on [t]he total quantity of postconsumer recycled material used (in pounds) in the consecutive 24 months preceding the proof of certification date as reported, under penalty of perjury, in the proof of certification(s) to the department in compliance with section 42281.S(b) of the Public Resources Code[ ... ]".

We do not see the Department's benefit in finding out which total quantity of postconsumer recycled material has been used by a reusable grocery bag producer. Only the amount of material used for bags imported, sold or distributed in California is relevant here. Taking the total quantity of postconsumer recycled material a reusable grocery bag producer used in the consecutive 24 months preceding the proof of certification into account would also mean to take postconsumer recycled material into account which had not exclusively been used for the bags in question, i.e. bags imported, sold or distributed in California, but also for bags imported, sold or distributed anywhere else. It would be detrimental for a reusable grocery bag producer operating internationally if the total quantity ofpostconsumer recycled material was taken into account. In order to illustrate no higher fee than claimable, the tiered quantity fee should be based on the portion of postconsumer recycled material used for bags in California instead only.

The Department should therefore consider revising such section l 7988.5(a)(2)(A) by referring to the quantity of postconsumer recycled material used for the reusable grocery bags in California only.

4. Again: Clarification regarding the certification fee tables needed.

The certification fee tables according to section l 7988.5(a)(2) are still incomprehensive.

If the tables were supposed to be in line with the statute, Table I would provide a period of validity from July 2019 through January 2020 for reusable grocery bags made from plastic film with a minimum of 20 percent postconsumer recycled material and Table 2 would apply from January 2020 on, since from this time on, only reusable grocery bags made from plastic film with a minimum of 40 percent postconsumer recycled material can be on the market. Other tables are not required and are misleading from our perception.

Robert Contreras March 14, 2019 Page 3

The Department should therefore review the tables again.

Again, we appreciate having the opportunity to comment on the Proposed Regulations. We look forward to your amendments. Please contact us with any questions regarding the above.

Sincerely,

METTLER PACKAGING, LLC

~~-Florian Kuelme Co-Sales Director

1880 Century Park East Suite 1101 Los Angeles, CA 90067 Law Offices of

STEPHEN L. JOSEPH E-mail: [email protected] Phone: (310) 266-6662 Facsimile: (310) 694-9067

March 15, 2019

Robert Contreras VIA E-MAIL Materials Management and E-mail: [email protected] Local Assistance Division California Department of Resources Recycling and Recovery P.O.Box 4025 Sacramento, CA 95812-4025

SB 270: OBJECTIONS TO FOURTH DRAFT OF PROPOSED REGULATIONS

Dear Mr. Contreras:

I represent the Coalition To Enforce SB 270 (the “Coalition”). I submit these objections in response to CalRecycle’s Notice of Changes to the Proposed Regulations for Reusable Bags (fourth draft issued February 2019) as counsel for the Coalition and on my own behalf as an interested citizen and objector acting in the public interest.

FIRST OBJECTION (Certification entity)

ISO/IEC refers to standards and accreditation requirements established by the International Organization for Standardization (ISO) in Switzerland and the International Electrotechnical Commission (IEC) in Switzerland.

Testing laboratories are ISO/IEC-accredited under ISO/IEC 17025. An ISO/IEC 17025 testing laboratory weighs, measures, calibrates, and mechanically or scientifically tests products and materials. They are not accredited to audit processes, supply chains, chains of custody, or environmental management systems. See:

https://www.iso.org/obp/ui/#iso:std:iso-iec:17025:ed-3:v1:en https://www.iso.org/news/ref2250.html

Auditors are ISO/IEC-accredited under ISO/IEC 17065. They are accredited to audit and certify documents and processes (including for signs of fraud), supply chains, chains of custody, and environmental processes, including site inspections. See:

https://www.iso.org/obp/ui/#iso:std:iso-iec:17065:ed-1:v1:en https://www.iso.org/news/2012/10/Ref1657.html

https://www.iso.org/news/2012/10/Ref1657.htmlhttps://www.iso.org/obp/ui/#iso:std:iso-iec:17065:ed-1:v1:enhttps://www.iso.org/news/ref2250.htmlhttps://www.iso.org/obp/ui/#iso:std:iso-iec:17025:ed-3:v1:enmailto:[email protected]:[email protected]

SB 270: Objections to fourth draft regulations March 15, 2019 Page 2 of 18

An ISO/IEC 17025-accredited entity is a testing laboratory that weighs, measures, calibrates, and mechanically or scientifically tests products and materials. It uses testing, measuring, and calibration equipment. For example, it is ISO/IEC accredited to certify that a reusable grocery bag is capable of carrying 22 lbs over 175 feet for a minimum of 125 uses and is at least 2.25 mils thick.

An ISO/IEC 17065-accredited entity is an auditor that examines documents such as purchase orders and invoices (including for signs of fraud); verifies processes, supply chains, chains of custody, and environmental processes; and conducts site inspections. It does not use testing, measuring, and calibration equipment. It is ISO/IEC accredited to certify that reusable grocery bags contain the required percentage of qualified postconsumer material, but it is not ISO/IEC accredited to use equipment to test and certify the physical characteristics of a bag.

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Due to ISO copyright restrictions, copies of the 17025 and 17065 standards cannot be provided herewith, as they could be copied from our submission by anyone. See copyright restrictions at https://www.iso.org/terms-conditions-licence-agreement.html. They are incorporated herein as part of the administrative record by reference to the ISO website at the following links and other relevant pages on the ISO website.

https://www.iso.org/obp/ui/#iso:std:iso-iec:17025:ed-3:v1:en

https://www.iso.org/obp/ui/#iso:std:iso-iec:17065:ed-1:v1:en

The only reference to an ISO/IEC 17025 accredited laboratory in SB 270 is in SB 270 § 42282(c), which states as follows:

(c) A third-party certification entity shall be an independent, accredited (ISO/IEC 17025) laboratory. A third-party certification entity shall certify that the producer’s reusable grocery bags meet the requirements of Section 44281. (Emphasis added.)

(SB 270 § 42282(c) refers to § 44281, which does not exist. It is a typographical error that is obviously meant to refer to § 42281.)

The section of SB 270 that addresses proof of certification of postconsumer content, including the four categories of information and documentation that must be submitted as part of that proof, is § 42281.5, not § 42281. SB 270 § 42282(c) does not mention § 42281.5.

Proposed regulation § 17988.2(l) states as follows:

“Third-party certification entity” means an independent laboratory that is ISO/IEC 17025 accredited, and performs applicable testing and certifies that a reusable grocery bag meets the requirements of section 42281 and 42281.5 of the Public Resources Code. (Emphasis added.)

We object to CalRecycle adding the words “and 42281.5” in the regulations. Adding those words would mean that the subject of SB 270 § 42281.5, that is postconsumer content, would need to be certified by an ISO/IEC 17025-accredited laboratory, which is absurd, repugnant, inconsistent with and in conflict with the language of SB 270 and the legislative intent, and violates ISO/IEC standards and accreditations which the Legislature could not possibly have intended. That is why SB 270 § 42282(c) does not refer to § 42281.5. It is patently obvious that it refers to 42281 only, because it is not supposed to cover postconsumer content.

ISO/IEC 17025 accreditation covers physical testing by laboratories only. Indeed, proposed regulation § 17988.2(d) recognizes that an ISO/IEC 17025 accredited entities are “testing and calibration laboratories.” The presence and percentage of postconsumer content cannot be physically tested and measured by a laboratory. It is scientifically impossible. In order to verify and certify postconsumer content, auditing of the

https://www.iso.org/obp/ui/#iso:std:iso-iec:17065:ed-1:v1:enhttps://www.iso.org/obp/ui/#iso:std:iso-iec:17025:ed-3:v1:enhttps://www.iso.org/terms-conditions-licence-agreement.html


postconsumer content is required, which is indisputably outside the scope of ISO/IEC 17025 laboratory accreditation.

For example, AM Testing is an ISO/IEC-accredited laboratory that is accredited for “mechanical testing.” A true and correct copy of AM Testing’s certificate of accreditation and scope of accreditation is attached hereto as Exhibit A. This was obtained from the AM Testing website at https://portal.a2la.org/scopepdf/3180-01.pdf. None of the listed tests or test methods including auditing of recycled or postconsumer content, for the obvious reason that these items cannot be verified using mechanical testing. Nevertheless, the proposed regulation would allow AM Testing to audit postconsumer content.

AM Testing has certified postconsumer content of reusable bags under SB 270. It is impossible to mechanically test for the presence and percentage of postconsumer content in a plastic reusable bag. AM Testing is clearly exceeding the scope of its ISO/IEC accreditation. That is not what the Legislature intended.

ISO/IEC accreditation for auditing of supply chains and production processes is covered by ISO/IEC 17065. Only an ISO/IEC 17065-accredited auditor such as SCS Global may audit and certify postconsumer content including the source of postconsumer material. The ISO/IEC 17065-accredited auditor will:

• Verify the source and ongoing purchases of postconsumer material, including examining purchase orders, invoices, and possibly visiting the site of the source.

• Verify that the postconsumer material is “cleaned using appropriate washing equipment.” (SB 270 § 42281.5(d).)

• Verify that ongoing purchases of postconsumer material are sufficient to meet the 20% postconsumer content requirement (increasing to 40% in 2020), based on sales volumes. This may include examining books and records showing sales and distribution volumes.

• Verify incorporation of the postconsumer material into the bags. This may include spot checks at the production facility.

Clearly, the Legislature intended that certifications would be conducted by ISO/IEC accredited entities, acting within the scope of their ISO/IEC accreditation. A contrary interpretation would be absurd. Therefore, auditing and certification of postconsumer content must be performed by an ISO/IEC 17065 auditor such as SCS Global, not an ISO/IEC 17025 certified laboratory such as AM Testing.

Verification and certification of processes, supply chains, and chains of custody in other industries is always done by ISO/IEC 17065-accredited auditors, never by ISO/IEC 17025-accredited laboratories. For example, ISO/IEC 17065-accredited auditors certify:

https://portal.a2la.org/scopepdf/3180-01.pdf.None


• Organic food chains and processes • GMO-free food chains and processes • Environmental sustainability processes • Food safety processes

Statutory interpretation is ultimately controlled by legislative intent. The California Supreme Court has stated:

The words of a statute must be construed in context, keeping in mind the statutory purpose…. Where uncertainty exists, consideration should be given to the consequences that will flow from a particular interpretation.

(Dept. of Water & Power v. Energy Resources Conservation & Development Com., 2 Cal.App.4th 206, 221.) The California Court of Appeal has stated:

Even the literal language of a statute may be disregarded to avoid absurdities or to uphold the clear, contrary intent of the legislature…. Where as here the statutory language is utterly incapable of a sensible interpretation, there should not be judicially legislated into it a meaning which is neither justified nor reasonable. Section 12053 is simply a fiasco of inept draftsmanship.

(Disabled and Blind Action Committee of California v. Jenkins (1974) 44 Cal.App.3d 74, 81.)

Laboratories and auditors are as similar to each other as a gas station and a bank. Gas stations don’t do banking and banks don’t sell gas. Laboratories are not accredited to do audits and auditors are not accredited to do mechanical testing and calibration. The Legislature must be deemed to know the difference between a laboratory and an auditor.

The California Legislature simply does not have the power to change or expand the scope of ISO/IEC 17025 accreditation to encompass auditing. Only the International Organization for Standardization (ISO) in Switzerland and the International Electrotechnical Commission (IEC) in Switzerland have that power.

If a laboratory certifies outside the scope of its accreditation while holding itself out as accredited for that purpose, a complaint could be filed with the ISO. (See https://www.iso.org/complaints.html.) Further, the laboratory’s certification would constitute:

1. A violation of 16 C.F.R. 260.6, which would subject the laboratory to a complaint to the Federal Trade Commission (FTC).

2. An unfair, unlawful, and fraudulent business practice under Bus. & Prof. Code 17200 that would be subject to a prohibitory injunction; and

https://www.iso.org/complaints.htmlhttp:Cal.App.3d


3. False advertising which is a crime under Bus. & Prof Code § 17500.

Representing that a reusable grocery bag is certified as containing postconsumer content when the certification is issued by an ISO/IEC 17025-accredited laboratory is a deceptive practice and false certification in violation of federal law. (16 CFR §§ 260.6, 260.13.) 16 CFR § 260.6 states as follows:

(a) It is deceptive to misrepresent, directly or by implication, that a product, package, or service has been endorsed or certified by an independent third party.

(b) A marketer’s use of the name, logo, or seal of approval of a third-party certifier or organization may be an endorsement, which should meet the criteria for endorsements provided in the FTC's Endorsement Guides, 16 CFR part 255, including Definitions (§ 255.0), General Considerations (§ 255.1), Expert Endorsements (§ 255.3), Endorsements by Organizations (§ 255.4), and Disclosure of Material Connections (§ 255.5).

If a reusable bag producer makes a claim that postconsumer recycled content has been certified by an ISO/IEC 17025-accredted laboratory, it is making a deceptive claim that the product has been certified by a third party that is accredited for that purpose. The FTC may take action under the FTC Act if a producer makes such a claim. (See 16 C.F.R. §260.1(a). Compliance with state law “will not necessarily preclude FTC enforcement under the FTC Act.” (16 CFR § 260.1(b).) The Coalition plans to file a complaint with the FTC.

Govt. Code § 11342.2 states:

Whenever by the express or implied terms of any statute a state agency has authority to adopt regulations to implement, interpret, make specific or otherwise carry out the provisions of the statute, no regulation adopted is valid or effective unless consistent and not in conflict with the statute and reasonably necessary to effectuate the purpose of the statute.

Govt. Code § 11349 states in relevant part:

“Consistency” means being in harmony with, and not in conflict with or contradictory to, existing statutes, court decisions, or other provisions of law.

The California Court of Appeal has stated:

With respect to the consistency requirement, “the judiciary independently reviews the administrative regulation for consistency with controlling law. The question is whether the regulation alters or amends the governing statute or case law, or enlarges or impairs its


scope. In short, the question is whether the regulation is within the scope of the authority conferred; if it is not, it is void. This is a question particularly suited for the judiciary as the final arbiter of the law, and does not invade the technical expertise of the agency.”

(Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 108-109.)

We object to the incorrect position that auditing of postconsumer content must be conducted by an ISO/IEC 17025 accredited laboratory. We will challenge such an interpretation in court through judicial review, pursuant to Govt. Code § 11350. We will ask the court to declare the entire regulation or the relevant part of the regulation invalid and void in that it is unauthorized by SB 270, not in harmony with SB 270, not consistent with SB 270, inconsistent with 16 CFR § 260.13, arbitrary and capricious, and a transparent, blatant, and improper attempt to legislate and alter the wording of SB 270 through regulatory action by adding the words “and 42281.5”.

As the California government agency charged with promoting recycling, CalRecycle should adopt an interpretation of SB 270 that promotes recycling. If CalRecycle takes the position that certifications of postconsumer content must be by ISO/IEC 17025 accredited laboratories, the California marketplace could be overwhelmed by unscrupulous producers who will be delighted to have an unqualified physical testing laboratory certify that their bags contain the required percentage of postconsumer content.

Effective auditing of postconsumer content and washing equipment must be conducted by ISO/IEC 17065 accredited auditors, to prevent cheating by U.S. and foreign producers. Having such auditing performed by unqualified physical testing labs, instead of qualified ISO/IEC 17065 accredited supply chain auditors, would open the door to widespread cheating and mass penetration of the California marketplace by bags that contain no postconsumer content or unwashed postconsumer content.1

If the regulation does not provide that only an ISO/IEC 17065-accredited entity may certify postconsumer content, we will challenge it in court through judicial review, pursuant to Govt. Code § 11350. We will ask the court to declare the entire regulation or the relevant part of the regulation invalid and void in that it is unauthorized by SB 270, not in harmony with SB 270, not consistent with SB 270, inconsistent with and contrary to ISO and IEC accreditations, and arbitrary and capricious.

We propose that the regulation state as follows:

§ 17988.2(g):

“ISO/IEC 17025” means the International Organization for Standardization/International Electrotechnical Commission “General

1We have no direct or indirect connection with or interest in any ISO/IEC 17025 accredited laboratory or ISO/IEC 17065 accredited auditor.


requirements for the competence of testing and calibration laboratories.” “ISO/IEC 17065” means the International Organization for Standardization/International Electrotechnical Commission “Requirements for bodies certifying products, processes and services.”

§ 17988.2(l):

A “third-party certification entity” may only certify within the scope of its ISO/IEC accreditation. Therefore, compliance with the requirements of Section 42281, except postconsumer recycled material requirements, shall be certified by an independent accredited ISO/IEC 17025 laboratory. Auditing of postconsumer recycled material requirements, including auditing of the information and documentation described in Section 42281.5(a)-(d), is outside the scope of ISO/IEC 17025 accreditation and shall be certified by an independent accredited ISO/IEC 17065 laboratory.

§ 17988.3(a) second sentence:

The proof of certification shall have been completed by a third-party certification entity within three months prior to the date it is submitted to the department and it shall include an accreditation number confirming the third-party certification entity is an accredited ISO/IEC 17025 laboratory or ISO/IEC 17065 auditing entity, as applicable.

As a practical matter, an ISO/IEC-accredited laboratory could contract-out the auditing of post-consumer content to an ISO/IEC 17065-accredied auditor.

SECOND OBJECTION (Grandfathering of ISO/IEC 17065 certifications)

Without waiving the First Objection above, we object to the fact that the proposed regulations do not provide that CalRecycle will accept certifications of postconsumer content from ISO/IEC 17065 auditors that were obtained, or in the process or being obtained, prior to issuance of the final regulations.

The following major producers of plastic film reusable grocery bags have either obtained, or have advised us that they are in the process of obtaining, postconsumer content certification from ISO/IEC 17065-accredited auditor SCS Global:

Advance Polybag, Command Packaging, Crown Poly, Durabag, Impex, Metro Poly, Novolex, Roplast, Superbag, and others.

These companies include all of the major California producers of plastic film reusable grocery bags. We expect that all producers will obtain certification from SCS Global or another ISO/IEC 17065-accredited auditor.


CalRecycle’s refusal to accept existing or in-process certifications by ISO/IEC 17065-accredited auditors is unfair and disruptive. It would invalidate all of the certifications already obtained by the above companies, which were obtained in good faith from auditors who have the correct ISO/IEC accreditation. It would be a violation of due process, because they cannot be required to obtain certification from an ISO/IEC 17025 laboratory ac ting outside the scope of its accreditation.

Without waiving the First Objection above, ISO/IEC 17065 certifications must be grandfathered-in and accepted by CalRecycle. It is now 28 months since SB 270 took effect and CalRecycle has still not issued the final regulations. Producers still do not know when they will be issued. During that time, producers have been left floundering, not knowing how to comply with unknown future regulations. In good faith, they have used ISO/IEC 17065 auditors to certify postconsumer content during that 28-month period.

A producer that wants to certify postconsumer content for the geographical area covered by the 150 exempt ordinances, which include most of the coastal areas and major cities such as Los Angeles and San Francisco, so that it can demonstrate to its environmentally-conscientious retailers and consumers that it is incorporating postconsumer content, must use an ISO/IEC 17065-accredited auditor. (It is unlawful and outside the scope of its accreditation for an ISO/IEC 17025 laboratory to certify it.) However, CalRecycle is saying that in the rest of the state, the producer must use an ISO/IEC 17025-accredited laboratory for such certification. Two certificates by two organizations would be required -- an auditor and a laboratory. That is absurd. not in harmony with SB 270, not consistent with SB 270, and arbitrary and capricious.2

Also, ISO/IEC 17025-accredited laboratories should be authorized to accept existing or in-process certifications of postconsumer content by ISO/IEC 17065-accredited auditors and issue new certifications based entirely on those certifications. If these changes are not made in the final regulation, we object and will challenge it in court through judicial review, pursuant to Govt. Code § 11350. We will ask the court to declare the entire regulation or the relevant part of the regulation invalid and void in that it is unauthorized by SB 270, not in harmony with SB 270, not consistent with SB 270, inconsistent with and contrary to ISO and IEC accreditations, a violation of due process, and arbitrary and capricious.

2 In CalRecycle’s Report to the Legislature dated February 25, 2019 at pages 10-11, CalRecycle states as follows: “SB 270 includes a 20 percent recycled content requirement for reusable bags, and a 40 percent recycled content requirement beginning January 1, 2020. Stores that were subject to a local ordinance banning the distribution of single-use bags, prior to January 1, 2015, were exempted from the requirements of SB 270. Of the approximately 150 local ordinances exempted from SB 270, CalRecycle is not aware of any that include a minimum recycled content requirement for plastic film bags.” A map of showing the exempted areas is at page 20 of the report.

http:thosecertifications.Ifhttp:futureregulations.In


THIRD OBJECTION (Documents to be submitted regarding postconsumer material)

SB 270 § 42281.5 states as follows:

On and after July 1, 2015, a producer of reusable grocery bags made from plastic film shall not sell or distribute a reusable grocery bag in this state unless the producer is certified by a third-party certification entity pursuant to Section 42282. A producer shall provide proof of certification to the department demonstrating that the reusable grocery bags produced by the producer comply with the provisions of this article. The proof of certification shall include all of the following:

(a) Names, locations, and contact information of all sources of postconsumer recycled material and suppliers of postconsumer recycled material.

(b) Quantity and dates of postconsumer recycled material purchases by the reusable grocery bag producer.

(c) How the postconsumer recycled material is obtained.

(d) Information demonstrating that the postconsumer recycled material is cleaned using appropriate washing equipment.

Proposed regulation § 17988.3(b) states as follows:

A proof of certification completed by a third-party certification entity shall be printed in English and shall include documentation to verify that a reusable grocery bag meets each requirement specific to the reusable grocery bag material type, including but not limited to: …

(2) Compliance with the requirements of section 42281.5 of the Public Resources Code, including but not limited to:

(A) Invoices containing the supplier’s name, location, contact information, date(s), quantities, and type of postconsumer recycled material (e.g. low density polyethylene) purchased during the preceding 24 consecutive months.

(B) A table summarizing the names, locations, and total quantities (pounds) of postconsumer recycled material purchased from each supplier during the preceding 24 consecutive months. The table shall include a description for each supplier’s source (e.g. irrigation pipe, hoop housing, bags), location, and contact information of the postconsumer recycled material.


(C) Images and diagrams of the equipment and a description of the process of how the postconsumer recycled material is cleaned to remove physical and/or chemical contaminants using the appropriate washing equipment.

In our experience, some producers have asserted that it is sufficient that the third-party certifying entity has reviewed the documentation and information described in SB 270 § 42281.5 and that there is no requirement that they be submitted to CalRecycle. They contend only certificates are required to be submitted to CalRecycle.

We object to proposed regulation § 17988.3(b)(2) on the ground that it does not expressly state, in crystal clear terms, that all of the information and documentation specifically required by SB 270 § 42281.5 (a)-(d) must actually be submitted to CalRecycle in addition to certificates. As presented drafted, the proposed regulation is vague and ambiguous and violates the clarity requirement in Govt. Code § 11349(c). It is not clear from the regulation that producers must submit to CalRecycle the four sets of information and documents expressly identified in SB 270 § 42281.5(a)-(d) including the documents in proposed regulation § 17988.3(d).

It is critically important for potential objectors and the Superior Court to be able to review the documents and information specifically required by SB 270 § 42281.5 to ensure that producers are complying with the law.

If the regulation does not must make it crystal clear that the four sets of information and documents expressly identified in SB 270 § 42281.5(a)-(d) must be submitted along with the certification of compliance, we will challenge it in court through judicial review, pursuant to Govt. Code § 11350. We will ask the court to declare the entire regulation or the relevant part of the regulation invalid and void in that it is unauthorized by SB 270, not in harmony with SB 270, not consistent with SB 270, and arbitrary and capricious.

We propose that proposed regulation § 17988.3(b)(2) state as follows:

The proof of certification completed by a third-party certification entity shall be printed in English and submitted to the department. The submission to the to the Reusable Grocery Bag Reporting System shall include the certificate and copies of all of the following documentation sufficient to verify that a reusable grocery bag meets each requirement specific to the reusable grocery bag material type, including but not limited to: [list of documents]

FOURTH OBJECTION (Completeness and verification)

CalRecycle has been accepting clearly non-compliant documentation from producers and placing them on the CalRecycle list of certified reusable grocery bag producers. This must not be allowed to continue. CalRecycle is enabling and facilitating violation of SB 270. As the guardian and publisher of the list, CalRecycle must ensure that no producers are allowed on the list unless they have shown compliance with SB 270.


SB 270 does not state that it takes effect only after regulations are issued. SB 270 is self-executing and must be enforced by CalRecycle now.

Proposed regulation § 17988.4(a) provides:

The department shall review each proof of certification submitted or resubmitted to the Reusable Grocery Bag Reporting System to determine if the proof of certification is complete.

(1) For purposes of this review, “complete” means that all of documentation required by sections 42281 and 42281.5 of the Public Resources Code has been submitted.

(2) Within 30 days of receipt, the department shall notify a reusable grocery bag producer if the proof of certification is complete or incomplete.

(3) If the proof of certification is deemed complete, the department shall add the name of the reusable grocery bag producer and the name and type of bag to the Certified Reusable Grocery Bags and Producers List.

(4) If a proof of certification is deemed incomplete, the department shall notify the reusable grocery bag producer and describe the deficiencies in writing.

§ 17988.4 would be an important and welcome improvement over the present situation. However, despite the definition of “complete” in § 17988.4(a)(1), it is still not clear what “complete” means in the proposed regulation.

Suppose a reusable grocery bag producer with major sales and distribution of reusable grocery bags in California submits documentation showing the number of lbs and dates of postconsumer recycled material that it purchased, as required by SB 270 § 42281.5(b). Suppose that the quantity is miniscule, say 100 lbs, and indisputably far too small to provide at least 20% postconsumer content of bags sold and distributed in California (40% starting in 2020). The documentation would be “complete” in the sense that it would document the quantity and dates of postconsumer recycled material purchases by the reusable grocery bag producer, as required by SB 270 § 42281.5(b). However, it would not show compliance with the 20% (or 40%) requirement. Would CalRecycle reject the submission as incomplete with respect to § 42281.5(b), or would CalRecycle take the position that it is complete with respect to § 42281.5(b)? If it would accept it as complete, then CalRecycle would be enabling and facilitating the violation of SB 270 by the producer.

Determination of completeness must include at least some evaluation of the content of the documentation to verify that there is compliance with SB 270. This may be implied in the proposed regulation, but it needs to be clearly expressed. The proposed regulation as presently drafted is vague and ambiguous and violates the clarity requirement in Govt. Code § 11349(c). We object if the proposed regulation does not state that CalRecycle will


evaluate the content of the documentation provided to verify that the producer and its bags are in compliance with SB 270. We will ask the court to declare the entire regulation or the relevant part of the regulation invalid and void in that it is unauthorized by SB 270, not in harmony with SB 270, not consistent with SB 270, and arbitrary and capricious.

As a result of the lack of evaluation and enforcement by CalRecycle, the Coalition filed a Petition For Writ of Mandate in the Los Angeles Superior Court in December 2017. (Case No. BS 171972). That pending case is the only enforcement of SB 270 at this time. This is not a sustainable enforcement method. CalRecycle must enforce SB 270, which means that it must evaluate the documents it receives.

CalRecycle’s proposed regulation § 17988.2(h) states as follows:

A proof of certification shall demonstrate that a reusable grocery bag…is compliant with the provisions of this Article.

Proposed regulation § 17988.3(b)(2) states as follows:

The proof of certification completed by a third-party certification entity shall be printed in English and shall include documentation to verify that a reusable grocery bag meets each requirement specific to the reusable grocery bag material type, including but not limited to: [list of documents]

(1) Compliance with the requirements of section 42281 of the Public Resources Code….

(2) Compliance with the requirements of section 42281.5 of the Public Resources Code….

As the department is requiring that proof of certification shall demonstratecompliance and the supporting documentation must verify compliance, the department must determine whether the certificate and supporting documents demonstrate and verify compliance.

If the regulation does not provide that the department must ensure completeness and verify that the documentation demonstrates compliance with SB 270, we will challenge it in court through judicial review, pursuant to Govt. Code § 11350. We will ask the court to declare the entire regulation or the relevant part of the regulation invalid and void in that it is unauthorized by SB 270, not in harmony with SB 270, not consistent with SB 270, and arbitrary and capricious.


§ 17988.4

(a) The department shall review each proof of certification submitted or resubmitted to the Reusable Grocery Bag Reporting System,


including the documents described in section 42281.5(a)-(d) and 17988.3, to determine if the proof of certification, including the documents required by section 17988.3 to be submitted to the Reusable Grocery Bag Reporting System, is complete.

(1) For purposes of this review, “complete” means that all of the certificates and documentation required by sections 42281 and 42281.5 of the Public Resources Code, including the documents described in section Public Resources Code 42281.5(a)-(d) and 17988.3, have been submitted or resubmitted to the Reusable Grocery Bag Reporting System and the department has verified that the certificates and documentation demonstrate compliance with sections 42281 and 42281.5 of the Public Resources Code.

(2) “Verify compliance” means that the content of the documents submitted or resubmitted to the Reusable Grocery Bag Reporting System demonstrate that the reusable grocery bag meets each requirement of sections 42281 and 42281.5 of the Public Resources Code specific to the reusable grocery bag material type.

(3) Within 30 days of receipt, the department shall notify a reusable grocery bag producer if the proof of certification is complete or incomplete.

(4) If the proof of certification is deemed complete, the department shall add the name of the reusable grocery bag producer to the Certified Reusable Grocery Bags and Producers List.

(5) If a proof of certification is deemed incomplete, the department shall notify the reusable grocery bag producer and describe the deficiencies in writing.

FIFTH OBJECTION (Removal from list)

The proposed regulations do not explicitly state that producers that were on the online list of Certified Reusable Grocery Bags and Producers before the regulations are finally adopted will be subject to completeness reviews and removed from the list if CalRecycle determines that their submissions are not complete. We object to this omission. Non-compliant producers have no right to remain on the list, regardless of when they were placed on the list, and they should not be “grandfathered-in”.

Proposed regulation § 17988.4(a)(4) states that CalRecycle will notify producers if their submissions are incomplete, but it does not say what happens in that event. The regulation should state that such producers will be given a deadline to resolve the deficiencies or CalRecycle will remove them from the list. A ninety-day deadline would be appropriate.


If the regulation does not address the foregoing issues regarding removal, we will challenge the regulations in court through judicial review, pursuant to Govt. Code § 11350. We will ask the court to declare the entire regulation or the relevant part of the regulation invalid and void in that it is unauthorized by SB 270, not in harmony with SB 270, not consistent with SB 270, and arbitrary and capricious.

SIXTH OBJECTION (Confidentiality)

Proposed regulation § 17988.3(d) states as follows:

A reusable grocery bag producer shall label or identify any portions of its proof of certification it believes are confidential or proprietary that it wants the department to maintain as confidential pursuant to section 17988.7. Proofs of certification submitted to the department shall not contain redactions. Any portions of a proof of certification that are not labelled or identified as confidential shall be deemed a public document.

Proposed regulation § 17988.7 states as follows:

The Department shall maintain the confidentiality of information submitted to the department as required by the California Public Records Act (Chapter 3.5 (commencing with section 6250) of Division 7 of Title 1 of the Government Code), section 40062 of the Public Resources Code, and Title 14, California Code of Regulations, Division 7, Chapter 1, Article 4 (commencing with section 17041).

SB 270 § 42282(f)(1) states as follows:

A person may object to the certification of a reusable grocery bag producer pursuant to this section by filing an action for review of that certification in the superior court of a county that has jurisdiction over the reusable grocery bag producer. The court shall determine if the reusable grocery bag producer is in compliance with the requirements of this article.

On July 26, 2017, CalRecycle’s Chief Counsel wrote to me stating as follows:

[S]subdivision (f) of section 42282 specifically outlines a procedure for review of producers’ certifications to verify that they do indeed meet the requirements of SB 270. Pursuant to the process detailed in subdivisions (1) through (4) of section 42282(f), the only way to challenge a reusable bag producer’s certification is for a person to bring that challenge directly to the superior court. The superior court will then determine whether the producer’s certification meets the requirements of SB 270, and, if the court finds that the certification is deficient, the court must order CalRecycle to remove the producers


from the list of certified reusable grocery bag producers.

We object to proposed regulations § 17988.3(d) and § 17988.7 on the ground that objections, judicial review, and judicial determination under SB 270 § 42282(f) would be ineffective and impossible if potential objectors are barred from access to documents submitted by producers. That would violate the clear legislative intent of SB 270. The legislative intent of SB 270 was to override the statutory provisions cited in proposed regulation § 17988.6. A request for documents under SB 270 to determine whether an objection should be made is sui generis and not covered or limited by any other statutory provisions.

CalRecycle may not withhold from production any documents submitted to it by producers, regardless of claims of confidentiality, proprietary information, trade secrets, intellectual property, or other reason. If a producer wishes to distribute or sell reusable plastic bags in California pursuant to SB 270, it must accept that the public will have access to all documents and information that it submits to CalRecycle in support of its application to be listed on CalRecycle’s list of certified producers. If it is not prepared to make such disclosures, then it must refrain from distributing or selling its bags in California.

If the regulation does not must make it crystal clear that all information and documentation required by SB 270 § 42281.5 and other supporting documents submitted to CalRecycle are not confidential and may be disclosed to potential objectors, we will challenge it in court through judicial review, pursuant to Govt. Code § 11350. We will ask the court to declare the entire regulation or the relevant part of the regulation invalid and void in that it is unauthorized by SB 270, not in harmony with SB 270, not consistent with SB 270, and arbitrary and capricious.


§ 17988.3(d)

A reusable grocery bag producer shall label or identify any portions of its proof of certification it believes are confidential or proprietary that it wants the department to maintain as confidential pursuant to section 17988.6. Any portions of a proof of certification that are not labelled confidential shall be deemed a public document.

§ 17988.7

The Department shall maintain the confidentiality of information submitted to the department as required by the California Public Records Act (Chapter 3.5 (commencing with section 6250) of Division 7 of Title 1 of the Government Code), section 40062 of the Public Resources Code, and Title 14, California Code of Regulations, Division 7, Chapter 1, Article 4 (commencing with section 17041).

A proof of certification submitted or resubmitted to the Reusable Grocery Bag Reporting System, including the documents described


in section 42281.5(a)-(d), shall not be confidential if production and disclosure is requested by a person who states that it is required for the purpose of determining whether to file an action for review of the certification, pursuant to section 42282(f)(1) of the Public Resources Code. Such person shall not be required to maintain confidentiality.

SEVENTH OBJECTION (Administrative fee)

SB 270 § 42282.1(b) states that CalRecycle shall establish an “administrative” certification fee schedule that will generate fee revenues sufficient to “cover, but not exceed, the department’s reasonable costs to implement this article.”

In proposed regulation § 17988.5, CalRecycle has proposed an administrative certification fee schedule. We object to the schedule on the following grounds.

First, the “tiered quantity fee” penalizes high volume PCR purchasers in favor of low volume PCR purchasers. This violates the requirement that the fee cover costs. CalRecycle will not incur greater “costs to implement this article” for PCR purchasers in favor of low volume PCR purchasers. All other things being equal, CalRecycle’s administrative costs of accepting and reviewing submissions will be exactly the same high-volume PCR purchasers and low volume PCR purchasers. While we appreciate that CalRecycle may be trying to make it less costly for small producers to enter the marketplace, there is no such authority in SB 270. On the contrary, CalRecycle is expressly only authorized by SB 270 to base the fee on its administrative costs, which do not vary according to the amount of PCR purchased.

Large producers cannot be required to subsidize small producers. A producer paying a fee of $41,000 would be subsidizing a producer paying $28,000. There no authority for such “progressive” tiering. This is not the tax code.

Second, if a producer incorporates a higher percentage of postconsumer content than is statutorily required, then the fee is based on the total number of bags distributed. Again, this violates SB 270’s requirement that the fee cover costs to implement the article. CalRecycle’s costs will not be affected by the number of bags distributed by a producer.

Also, how would CalRecycle prevent double counting of bags? Manufacturers may distribute through a distributor. The same bags may be double counted at the manufacturer and distributor.

Third, CalRecycle has provided no explanation or projection about the reasonable dollar amount that it will cost to implement the article. CalRecycle has also not indicated whether the fee will be reviewed or be adjusted if CalRecycle collects too much or too little.

Based on the foregoing, we will challenge the proposed fee schedule in court through judicial review, pursuant to Govt. Code § 11350. We will ask the court to declare the entire regulation or the relevant part of the regulation invalid and void in that it is

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unauthorized by SB 270, not in harmony with SB 270, not consistent with SB 270, and arbitrary and capricious.

EIGHTH OBJECTION (SB 270 is self-executing)

SB 270 does not state that it takes effect only after regulations are issued. Indeed, there is no mention of regulations in SB 270. SB 270 is a self-executing statute. Why then is CalRecycle waiting for regulations to be issued before enforcing SB 270? We object to CalRecycle placing many producers on its published list of certified reusable grocery bags and producers based on clearly insufficient certifications and documentation, merely because regulations have not yet been issued. We object to CalRecycle’s refusal and failure to enforce SB 270 pending the issuance of regulations.

CONCLUSION

The Coalition recognizes and commends the hard work done by CalRecycle staff to grapple with the regulatory issues. However, there are still issues that have not been properly addressed, especially the 17025 versus 17065 issue. Regrettably, this means that we must challenge the regulations in court.

RESERVATION OF RIGHTS

All rights are reserved. No waivers or admissions are intended by any statement or omission herein.

Sincerely,

Stephen L. Joseph

Mettler Packaging LLC - 3-14-19Stephen Joseph Commets 3-15-19

METTLER PAPER AND PL ASTIC PACKAGING - CalRecycle · 2019. 3. 18. · ADMINISTRATIVE CERTIFICATION...

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