CC 2016-01-26_12a PolystyreneItem 12.a.
Consideration of an ordinance regulating expanded Polystyrene food containers and products
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Background
October 13, 2015 -Council direction to develop an ordinance prohibiting the sale and use of expanded polystyrene foam products (EPS)
Over 80 and counties have adopted restrictions
Environmental
effects are the basis
Non-renewable petroleum products
Litter (lightweight and durable, not biodegradable, breaks easily making it difficult and expensive to remove and harmful to fish
and wildlife)
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Background, cont.
According to Ca. Dept. Transportation -15% stormdrain litter
Up to 71% of plastic debris in LA according to a 2011 study
Major portion of marine debrisdiverts from recycling opportunities
and trash diversion from landfills
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Proposed Regulations
The proposed Ordinance would prohibit any vendor within the City from selling or otherwise providing an EPS product that is not wholly encapsulated or encased with a more durable material.
This prohibition would include, but not be limited to, cups, plates, bowls, trays, clamshells and other products intended primarily for food service use. It additionally includes
coolers, containers, ice chests, shipping boxes, packing peanuts, or other packaging materials.
Exemptions to these regulations are allowed in certain instances, such as foods prepared
outside the City, trays for raw meat, fish and other raw food, and products encapsulated or encased by more durable materials.
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Proposed Regulations, cont.
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. “Affordab
le" means that a biodegradable, compostable or recyclable product may cost up to 15 percent more than the purchase cost of comparable EPS 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 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 “Food Provider.”
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.
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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.
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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.
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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.
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.
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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.
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8.34.060 Violations.
A. Any violation of the provisions of this chapter by any person is subject to administrative fines as provided in Chapter 1.16 of this code, which may be appealed
pursuant to the procedures in that Chapter 1.12.
B. For the first violation, the City Manager or designee may allow the violating Food Provider, in lieu of payment of the administrative
fine, to submit receipts demonstrating the purchase after the citation date, of Biodegradable, Compostable, or Recyclable products in an amount equal to the amount of the citation.
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.
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Implementation and Enforcement
The proposed Ordinance has been designed to take effect six (6) months after final adoption. This is intended to allow businesses time to make the transition to alternative products.
During this time, City staff can send additional notification to affected businesses. Enforcement of the EPS prohibition would occur on a complaint basis through the Community Development
Department, as well as Neighborhood Services.
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Potential Impacts to Businesses
As previously mentioned, the most frequently cited impact to businesses during jurisdictions’ outreach efforts is cost. Below is a comparison of the costs of EPS products to alternatives.
This comparison was developed by the City of San Jose in 2012 as part of a county-wide effort to regulate EPS.
Alternatives to EPS cups ranged from 26% less expensive to 50% more
expensive. The range for plates was 35% less expensive to 63% more expensive for EPS alternatives. Clamshells containers ranged from 59% to 73% more expensive.
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Recommendation
It is recommended the City Council introduce an Ordinance adding Chapter 8.34 to the Arroyo Grande Municipal Code prohibiting the use of expanded polystyrene food or drink containers
and the retail sale of non-encased expanded polystyrene products.
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