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O 676 ORDINANCE NO. 676 AN ORDINANCE 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 ORDINANCE NO. 676 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 ORDINANCE NO. 676 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." ORDINANCE NO. 676 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. ORDINANCE NO. 676 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 ORDINANCE NO. 676 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 Barneich, seconded by Council Member Brown, and on the following roll call vote to wit: AYES: Council Members Barneich, Brown, Guthrie, and Mayor Hill NOES: Council Member Harmon ABSENT: None The foregoing Ordinance was adopted this 9th day of February, 2016. ORDINANCE NO. &A, PAGE 7 F \ JI y HILL, MAYOR ATTEST: / / , KELLY ET ORE, CITY CLERK APPROVED AS TO CONTENT: 9:6el/n./1-1 DIANNE THOMPSO ANAGER APPROVED AS TO FORM: HEATHER K. WHITHAM, CITY ATTORNEY r i • OFFICIAL CERTIFICATION I, KELLY WETMORE, City Clerk of the City of Arroyo Grande, County of San Luis Obispo, State of California, do hereby certify under penalty of perjury, that the attached Ordinance No. 676 which was introduced at a regular meeting of the City Council on January 26, 2016; was passed and adopted at a regular meeting of the City Council on the 9th day of February 2016; and was duly published in accordance with State law (G.C. 40806). WITNESS my hand and the Seal of the City of Arroyo Grande affixed this 11th day of February 2016. (kt(01-A-- . /�.' �. L/U�! KELLY • TM� 'E, CITY CLERK •