(a)
(1)
The department may issue a notice of violation to, and impose an administrative civil penalty not to exceed fifty thousand dollars ($50,000) per day per violation on, any entity not in compliance with this chapter or any of the regulations the department adopts to implement this chapter, unless the entity meets the criteria of paragraph (5) of subdivision (a) of Section 42060, in which case the civil penalty shall not exceed twenty-five thousand dollars ($25,000) per day per violation.
(2)
A violation of Section 42050 by a producer or the PRO shall be determined based on the brand name, package or product line, package or product form, covered material category, and package or product size that the department deems is not in
compliance.
(3)
Penalties against a PRO or producer shall not begin accruing with respect to a violation until 30 calendar days following the notification of the violation.
(4)
The department shall deposit all penalties collected pursuant to this section into the Circular Economy Penalty Account, which is hereby created in the State Treasury. Moneys in the Circular Economy Penalty Account shall be available upon appropriation by the Legislature for purposes that further this chapter.
(b)
(1)
Before determining whether to assess a penalty, the department may allow a producer or a PRO to develop and submit a corrective action plan to the department detailing how and when the producer or a PRO will come into compliance with this chapter. Corrective action plans may include, but are not limited to,
actions such as shifting production to covered material categories that meet the recycling rates required pursuant to subdivision (c) of Section 42050, no longer offering the covered material for sale, reaching a minimum recycled content standard set by the department, or establishing a take-back system or deposit system for the covered material that would increase the recycling rate of the material. The department shall not assess a penalty and the producer shall not be listed as noncompliant pursuant to Section 42082 for material covered in a corrective action plan if the producer complies with the corrective action plan. A producer or PRO may request approval from the department to comply with a corrective action plan or elements of a corrective action plan in cooperation with other producers or PROs.
(2)
(A)
The duration of a corrective action plan shall not exceed 24 months. The department may extend a corrective
action plan up to an additional 12 months if the department sets forth steps and a timeline for the producer or PRO to comply with the corrective action plan and if the producer or PRO made a substantial effort to comply but was reasonably prevented from doing so due to extenuating circumstances.
(B)
For purposes of this paragraph, making a “substantial effort” means taking all practicable actions to comply with a corrective action plan. Substantial effort is not made in circumstances in which a producer or PRO has not taken reasonable steps to comply with a corrective action plan, including, but not limited to, providing staff resources and funding necessary for compliance.
(3)
The department’s authority under this article to impose penalties and to consider a corrective action plan do not affect the department’s authority to withdraw its approval of a PRO plan pursuant to
Section 42051.2 and the department may impose penalties and consider corrective action plans against the PRO or producers without revoking an approved plan.
(c)
The department, in determining the penalty amount and whether to assess a penalty under this section, shall consider, at a minimum, all of the following:
(1)
The nature, circumstances, extent, and gravity of the violation or a condition giving rise to the violation and the various remedies and penalties that are appropriate in the given circumstances, with primary emphasis on protecting the public health and safety and the environment.
(2)
Whether the violation or conditions giving rise to the violation have been corrected in a timely fashion or whether reasonable progress is being made to correct the violation or conditions giving rise to the violation.
(3)
Whether the violation or conditions giving rise to the violation demonstrate a pattern of noncompliance with this chapter or the regulations adopted pursuant to this chapter. If the violation is a first offense, and the nature and gravity of the violation is not considered egregious, the department shall consider assessing a penalty not to exceed twenty-five thousand dollars ($25,000) per day.
(4)
Whether the violation or conditions giving rise to the violation were intentional.
(5)
Whether the violation or conditions giving rise to the violation were voluntarily and promptly reported to the department before the commencement of an investigation or audit by the department.
(6)
Whether the violation or conditions giving rise to the violation were due to
circumstances beyond the reasonable control of the producer or PRO or were otherwise unavoidable under the circumstances, including, but not limited to, unforeseen changes in market conditions. This does not include circumstances in which curbside collection either was not available or not suitable for the collection and processing of the covered material and the PRO or producer failed to adequately invest in or develop other means to collect or process the covered material.
(7)
The size and economic condition of the producer or PRO.
(8)
The magnitude of the impact on the environment, human health, and disadvantaged or low-income communities or rural areas reasonably anticipated from the violation.
