CC 2016-02-09_09c Adopt Ordinance_Expanded Polystyrene
MEMORANDUM
TO: CITY COUNCIL
FROM: TERESA MCCLISH, COMMUNITY DEVELOPMENT DIRECTOR
BY: MATTHEW DOWNING, ASSOCIATE PLANNER
SUBJECT: CONSIDERATION OF ADOPTION OF AN ORDINANCE REGULATING
EXPANDED POLYSTYRENE FOOD CONTAINERS AND PRODUCTS;
LOCATION – CITYWIDE; APPLICANT – CITY OF ARROYO GRANDE
DATE: FEBRUARY 9, 2016
RECOMMENDATION:
It is recommended the City Council adopt the Ordinance adding Chapter 8.34 to Title 8
of the Arroyo Grande Municipal Code regulating expanded polystyrene (EPS) food
containers and products.
IMPACTS ON FINANCIAL AND PERSONNEL RESOURCES:
The regulation of EPS will have little direct fiscal impact on the City, although it will
generate some costs for enforcement of the regulations. The majority of enforcement
costs are anticipated to peak during the first year of implementation until businesses
adapt to the regulations. This item is not identified in the Critical Needs Action Plan.
BACKGROUND:
On January 26, 2016, the City Council voted 4-1 to introduce an Ordinance adding
Chapter 8.34 to Title 8 of the Arroyo Grande Municipal Code prohibiting the use of EPS
food or drink containers and the retail sale of non-encased EPS products.
ANALYSIS OF ISSUES:
Language contained in the Ordinance provides that the regulations will take effect six
(6) months from the date of adoption in order to allow businesses in the City to utilize
any existing stock of EPS products. During the Council’s consideration of the Ordinance
on January 26, 2016, a question was raised regarding the Ordinance’s applicability to
public schools in the Lucia Mar Unified School District (the “District”). While the public
schools would not be required to comply with the Ordinance due to their sovereign
immunity of City regulations, the District has been using compostable products for over
a year at their schools.
Item 9.c. - Page 1
CITY COUNCIL
CONSIDERATION OF ADOPTION OF AN ORDINANCE REGULATING EXPANDED
POLYSTYRENE FOOD CONTAINERS AND PRODUCTS
FEBRUARY 9, 2016
PAGE 2
ALTERNATIVES:
The following alternatives are provided for the Council’s consideration:
1. Adopt the Ordinance as recommended;
2. Modify and reintroduce the Ordinance;
3. Do not adopt the Ordinance; or
4. Provide other direction to staff.
ADVANTAGES:
The proposed Ordinance is a step toward a more sustainable future by reducing the
amount of EPS litter in the community, reducing dependence upon petroleum products,
reducing the amount of EPS entering the local landfill, and protecting birds and wildlife
from EPS ingestion.
DISADVANTAGES:
Adoption of the proposed ordinance will have a financial impact on businesses in the
City that use EPS products. In some instances this will be a negative impact, requiring
the use of products that have slightly higher costs; however, several alternative
products have reduced costs over EPS products. Therefore, there is an opportunity for
cost savings or reduced financial impacts associated with the Ordinance.
ENVIRONMENTAL REVIEW:
Staff has reviewed the proposed Ordinance in accordance with the California
Environmental Quality Act (CEQA), the State CEQA Guidelines, and the Arroyo Grande
Procedures for the Implementation of CEQA and determined that the Ordinance is
categorically exempt per Section 15308 of the CEQA Guidelines regarding actions by a
regulatory agency for the protection of the environment.
PUBLIC NOTIFICATION:
A summary of the Ordinance was published in the Tribune on Tuesday, February 2,
2016 pursuant to State Law.
The Agenda was posted in front of City Hall on Thursday, February 4, 2016. The
Agenda and report were posted on the City’s website on Friday, February 5, 2016. No
comments have been received.
In order to inform businesses of the upcoming regulations, a draft information handout
has been developed. The handout will be sent to all applicable businesses (Attachment
1).
Attachment:
1. Expanded Polystyrene Information Handout
Item 9.c. - Page 2
ORDINANCE NO.
AN ORDINAN CE OF THE CITY COUNCIL OF THE CITY OF ARROYO
GRANDE ADDING CHAPTER 8.34 TO TITLE 8 OF THE ARROYO
GRANDE MUNICIPAL CODE REGULATING EXPANDED
POLYSTYRENE FOOD CONTAINERS AND PRODUCTS
WHEREAS, the City of Arroyo Grande (“City”) has the police power to protect the
health, safety and welfare of the community, including the ability to protect and enhance
the natural environment; and
WHEREAS, according to the California Department of Transportation, expanded
polystyrene products (“EPS”) comprises approximately 15% of storm drain litter and is
the second most common form of beach debris in California. Also, plastic products,
including expanded polystyrene, make up 80-90% of floating marine debris; and
WHEREAS, the City boundary includes numerous creeks and other waterways, which
are an important natural resource as exemplified in various policies of the City’s General
Plan. Expanded polystyrene products break apart into small pieces and ultimately flow
to the Pacific Ocean contributing to concerns related to water quality and habitat
protection both within the creek system as well as the marine environment; and
WHEREAS, items made from expanded polystyrene are not biodegradable,
compostable, or recyclable locally; and
WHEREAS, expanded polystyrene breaks into small pieces and because it is
lightweight, may be picked up by the wind even when it has been disposed of properly;
and
WHEREAS, expanded polystyrene as litter is highly durable and is present in many
public places, streets and roads, waterways and storm drains which may ultimately
float, or be blown, into the Pacific Ocean; and
WHEREAS, marine animals and birds often confuse expanded polystyrene with pieces
of food, and when ingested, it can impact their digestive tracts, often leading to death;
and
WHEREAS, expanded polystyrene is manufactured from petroleum, a non-renewable
resource; and
WHEREAS, take-out food packaging that is biodegradable, compostable, and
recyclable is the most responsible and sustainable choice for the City’s tourist economy,
its citizenry and its environment. When products are recycled, natural resources are
spared, less energy is used for the production of new products, and landfill space is
preserved; and
WHEREAS, regulating the use of expanded polystyrene products will maximize the
operating life of landfills; and
Item 9.c. - Page 3
ORDINANCE NO.
PAGE 2
WHEREAS, regulating the use of expanded polystyrene products within the City will
help protect the City’s natural environment from contamination and degradation.
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Arroyo
Grande as follows:
SECTION 1: The above recitals and findings are true and correct and incorporated
herein by this reference.
SECTION 2: Arroyo Grande Municipal Code Chapter 8.34 is hereby added to the
Arroyo Grande Municipal Code in its entirety as follows:
CHAPTER 8.34 – EXPANDED POLYSTYRENE
8.34.010 - Definitions.
The following words and phrases, whenever used in this chapter, shall have the
meanings defined in this section unless the context clearly requires otherwise:
A. “Affordable" means that a biodegradable, compostable or recyclable product may
cost up to 15 percent more than the purchase cost of comparable expanded
polystyrene alternatives.
B. “ASTM Standard” means meeting the standards of the American Society for
Testing and Materials (ASTM) International Standards D6400 or D6868 for
biodegradable and compostable plastics, as those standards may be amended.
C. “Biodegradable” means Compostable (separately defined) or the ability of
organic matter to break down from a complex to a more simple form through the
action of bacteria or to undergo this process.
D. “City Facility” means any building, structure or vehicle owned and operated by
the City of Arroyo Grande, its agents, agencies, and departments.
E. “City Contractor" means any person or entity that enters into an agreement with
the City to furnish products or services to or for the City.
F. “Compostable” means all the materials in the product or package will break
down, or otherwise become part of, usable compost (e.g. soil-conditioning
material, mulch). Compostable disposable food containers must meet ASTM
Standards for compostable materials.
G. “Disposable Food Container" is interchangeable with “to go” packaging and “food
packaging material” and means all containers that are used to hold Prepared
Food or drinks. Disposable Food Containers include clamshells, bowls, plates,
trays, cartons, and cups that are intended for single use, including without
Item 9.c. - Page 4
ORDINANCE NO.
PAGE 3
limitation, food containers for takeout foods and/or leftovers from partially
consumed meals prepared by Food Providers. This does not include single-use
disposable items such as straws, cup lids, or utensils, nor does it include single-
use disposable packaging for unprepared foods.
H. “Events Promoter” means an applicant for any event permit issued by the City or
any City employee(s) responsible for any City-organized event.
I. “Expanded Polystyrene” or EPS means blown expanded and extruded
polystyrene or other plastic foams which are processed by any number of
techniques including, but not limited to, fusion of monomer spheres (expanded
bead plastic), injection molding, foam molding, and extrusion-blown molding
(extruded foam plastic). Expanded polystyrene and other plastic foam is
generally used to make cups, bowls, plates, trays, clamshell containers, meat
trays, ice chests, shipping boxes and packing peanuts.
J. “Expanded Polystyrene Products” means any item such as coolers, ice chests,
cups, bowls, plates, clamshells containers, shipping boxes, or any other
merchandise made from expanded polystyrene that is not wholly encapsulated or
encased by a more durable material.
K. “Food Provider” Means any establishment located within the City, that is a retailer
of Prepared Food or beverages for public consumption including, but not limited
to any store, supermarket, delicatessen, restaurant, shop, caterer or mobile food
vendor.
L. “Person” means an individual, business, Event Promoter, trust, firm, joint stock
company, corporation, non-profit, including a government corporation,
partnership, or association.
M. “Prepared Food” means food or beverages, which are served, packaged,
cooked, chopped, sliced, mixed, brewed, frozen, squeezed or otherwise
prepared within the City. Prepared Food does not include raw, butchered meats,
fish and/or poultry sold from a butcher case or similar food establishment.
N. “Recyclable” means any material that is specified in the franchise agreement with
the City’s solid waste removal provider including, but not limited to aluminum, tin
and bi-metal cans, clear and colored glass containers, High Density Polyethylene
(HDPE), Polyethylene Terephthalate (PET), clear or rigid polystyrene, corrugated
cardboard and mixed paper.
O. “Vendor” means any store or business which sells or offers goods or
merchandise, located or operating within the City of Arroyo Grande, including
those referenced in and including “Food Provider.”
Item 9.c. - Page 5
ORDINANCE NO.
PAGE 4
8.34.020 – Expanded Polystyrene Disposable Food Containers Prohibited.
A. Food Providers within the City of Arroyo Grande may not provide Prepared Food
in or provide separately any Disposable Food Container made from Expanded
Polystyrene, except as exempted in Section 8.34.050.
B. Disposable Food Containers made from Expanded Polystyrene are prohibited
from use in all City Facilities.
C. City Contractors in the performance of City contracts and Events Promoters may
not provide Prepared Food in Disposable Food Containers made from Expanded
Polystyrene.
8.34.030 - Required Biodegradable, Compostable, or Recyclable Disposable Food
Containers.
A. All Food Providers within the City utilizing Disposable Food Containers shall use
Biodegradable, Compostable or Recyclable products.
B. All City Facilities utilizing Disposable Food Containers shall use Biodegradable,
Compostable or Recyclable products.
C. City Contractors and Events Promoters utilizing Disposable Food Containers
shall use Biodegradable, Compostable, or Recyclable products while performing
under a City contract or permit.
8.34.040 - Prohibited Sales.
No Vendor or Events Promoter in the City may sell or otherwise provide any Expanded
Polystyrene Product, which is not wholly encapsulated or encased within a more
durable material, except as exempted in Section 8.34.050. This specifically includes, but
is not limited to, cups, plates, bowls, trays, clamshells and other products intended
primarily for food service use, as well as coolers, containers, ice chests, shipping boxes,
packing peanuts, or other packaging materials.
8.34.050 – Exemptions.
A. The City Manager or designee, may exempt a Food Provider from the
requirements set forth in section 8.34.020(A) of this ordinance for a one-year
period upon the Food Provider showing, in writing, that this ordinance would
create an undue hardship or practical difficulty as evidenced by no alternatives
being available or such alternatives are not Affordable. The City Manager or
designee shall put the decision to grant or deny a one-year exemption in writing,
and the decision shall be final.
Item 9.c. - Page 6
ORDINANCE NO.
PAGE 5
B. Exemptions to allow for the sale or provision of Expanded Polystyrene Products
may be granted by the City Manager or designee, if the vendor can demonstrate
in writing a public health and safety requirement or medical necessity to use the
product. The City Manager or designee shall put the decision to grant or deny the
exemption in writing and the decision shall be final.
C. An exemption application shall include all information necessary for the City
Manager or designee to make a decision, including but not limited to
documentation showing factual support for the claimed exemption. The City
Manager or designee may require the applicant to provide additional information.
The City Manager or designee may approve the exemption application in whole
or in part, with or without conditions.
D. Foods prepared or packaged outside the City and sold inside the City are exempt
from the provisions of this chapter.
E. Raw meat, fish and other raw food trays are exempt from the provisions of this
chapter.
F. Products made from Expanded Polystyrene, which are wholly encapsulated or
encased by a more durable material are exempt from the provisions of this
chapter. Examples include surfboards, life preservers, and craft supplies, which
are wholly encapsulated or encased by a more durable material, and coolers
encased in hard plastic.
G. Construction products made from Expanded Polystyrene are exempted from this
ordinance if the products are used in compliance with Arroyo Grande Municipal
Code Title 15 Buildings and Construction and used in a manner preventing the
Expanded Polystyrene from being released into the environment.
H. In a situation deemed by the City Manager to be an emergency for the immediate
preservation of the public peace, health or safety, City Facilities, Food Providers,
City Contractors and Vendors doing business with the City shall be exempt from
the provisions of this chapter.
I. Expanded Polystyrene packaging products, which have been received from
sources outside the City, may be reused to be kept out of the waste stream.
8.34.060 Violations.
A. Any violation of the provisions of this chapter by any person is subject to the
penalty provisions as provided in Chapter 1.16 of this code.
B. For the first violation, the City Manager or designee may allow the violating Food
Provider, in lieu of the penalty provisions contained above, to submit receipts
Item 9.c. - Page 7
ORDINANCE NO.
PAGE 6
demonstrating the purchase after the citation date, of Biodegradable,
Compostable, or Recyclable products.
C. In addition to other remedies provided by this chapter or by other law, any
violation of this chapter may be remedied by a civil action brought by the city
attorney, including but not limited to administrative or judicial nuisance abatement
proceedings, civil or criminal code enforcement proceedings, and suits for
injunctive relief. The remedies provided by this chapter are cumulative and in
addition to any other remedies available at law or in equity.
SECTION 3: If any section, subsection, subdivision, paragraph, sentence, or clause of
this Ordinance or any part thereof is for any reason held to be unlawful, such decision
shall not affect the validity of the remaining portion of this Ordinance or any part thereof.
The City Council hereby declares that it would have passed each section, subsection,
subdivision, paragraph, sentence, or clause thereof, irrespective of the fact that any one
or more section, subsection, subdivision, paragraph, sentence, or clause be declared
unconstitutional.
SECTION 4: Upon adoption of this Ordinance, the City Clerk shall file a Notice of
Exemption pursuant to 14 CCR § 15307.
SECTION 5: A summary of this Ordinance shall be published in a newspaper published
and circulated in the City of Arroyo Grande at least five (5) days prior to the City Council
meeting at which the proposed Ordinance is to be adopted. A certified copy of the full
text of the proposed Ordinance shall be posted in the office of the City Clerk. Within
fifteen (15) days after adoption of the Ordinance, the summary with the names of those
City Council Members voting for and against the Ordinance shall be published again,
and the City Clerk shall post a certified copy of the full text of such adopted Ordinance.
SECTION 6: This Ordinance shall take effect six (6) months from the date of adoption.
On motion of Council Member ________, seconded by Council Member _______, and
on the following roll call vote to wit:
AYES:
NOES:
ABSENT:
The foregoing Ordinance was adopted this 9th day of February, 2016.
Item 9.c. - Page 8
ORDINANCE NO.
PAGE 7
___________________________________
JIM HILL, MAYOR
ATTEST:
___________________________________
KELLY WETMORE, CITY CLERK
APPROVED AS TO CONTENT:
___________________________________
DIANNE THOMPSON, CITY MANAGER
APPROVED AS TO FORM:
___________________________________
HEATHER K. WHITHAM, CITY ATTORNEY
Item 9.c. - Page 9
ATTACHMENT 1
About the Expanded Polystyrene (EPS) Ordinance
When?
This Ordinance will take effect on August 9, 2016.
What is being prohibited?
Expanded Polystyrene (#6) food service ware commonly known as StyrofoamTM, as well as
other Expanded Polystyrene products not encapsulated or encased in a more durable material.
Who is affected?
Supermarkets, Delicatessens, Restaurants, Retail, Food Vendors, Caterers that serve prepared
food to-go.
Why?
Expanded polystyrene is non-renewable, non-biodegradable, non-recyclable, and typically
ends up in landfills or as litter in waterways and is costly to remove.
Expanded polystyrene can break into pieces, which are often mistaken for food and
ingested by wildlife.
Exemptions?
Exemptions are provided for certain projects, including:
Foods prepared or packaged outside the City.
Foam trays for raw meat, fish, and other raw food.
Products made from Expanded Polystyrene but wholly encapsulated by a more durable
material, such as surfboards, craft supplies, and coolers encased in hard plastic.
What is the penalty for not complying?
Any violation of the provisions of the Ordinance is subject to the penalty provisions as provided
in Chapter 1.16 of the Arroyo Grande Municipal Code. Repeated violations may be charged as
a misdemeanor and/or enforced through civil action.
Where can I find the City Ordinance and additional information?
http://www.arroyogrande.org/AgendaCenter/ViewFile/Item/2989?fileID=7556
or call the Community Development Department at (805) 473-5400.
Item 9.c. - Page 10
Examples of compostable and recyclable food ware.
Additional Resources
City of San Jose – Alternatives to EPS Food Containers –
http://www.sanjoseca.gov/DocumentCenter/View/46910
Californians Against Waste – Polystyrene and Other Non-Recyclable Plastics –
http://www.cawrecycles.org/polystyrene-and-other-non-recyclable-plastics
Biodegradable Products Institute - http://www.bpiworld.org/
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