CC 2020-02-11_11a Introduce Ordinance_Polystyrene
MEMORANDUM
TO: CITY COUNCIL
FROM: JAMES BERGMAN, CITY MANAGER
SUBJECT: CONSIDERATION OF INTRODUCTION OF AN ORDINANCE
REPEALING THE CITY’S EXPANDED POLYSTYRENE ORDINANCE
AND ADOPTING BY REFERENCE THE INTEGRATED WASTE
MANAGEMENT AUTHORITY’S ORDINANCE REGULATING
POLYSTYRENE AND EXPANDED POLYSTYRENE FOOD
CONTAINERS AND PRODUCTS AND SCHEDULE A PUBLIC HEARING
TO CONSIDER ITS ADOPTION
DATE: FEBRUARY 11, 2020
SUMMARY OF ACTION:
Introduction of an ordinance repealing the City’s polystyrene ordinance and adopting the
Integrated Waste Management Authority’s (IWMA) polystyrene ordinance by reference.
IMPACT ON FINANCIAL AND PERSONNEL RESOURCES:
The fiscal impacts associated with this agenda item include the cost to prepare the item
and ordinance. If the ordinance is adopted, there will be costs associated with
enforcement of the ordinance. These costs should be diminished, however, because the
City has already undertaken a robust educational community outreach and the City’s
polystyrene ordinance has been in effect since March of 2016.
RECOMMENDATION:
It is recommended that the Council introduce the ordinance repealing the City’s
polystyrene ordinance and adopting the IWMA’s polystyrene ordinance by reference and
schedule a Public Hearing for the February 25, 2020 City Council meeting to consider its
adoption.
BACKGROUND:
On February 9, 2016, the City Council adopted an ordinance regulating expanded
polystyrene food containers and products. Expanded polystyrene products are harmful to
the environment. They are made of non-renewable petroleum products. In addition, food
and drink containers made from expanded polystyrene are uniquely problematic when
they become litter as expanded polystyrene is a lightweight, durable material that is not
biodegradable. Its foam structure allows it to break easily into small pieces, making it
difficult and expensive to remove from the environment. Additionally, these pieces can be
harmful to fish and wildlife as it is often mistaken as food and ingested.
Item 11.a. - Page 1
CITY COUNCIL
CONSIDERATION OF INTRODUCTION OF AN ORDINANCE REPEALING THE
CITY’S EXPANDED POLYSTYRENE ORDINANCE AND ADOPTING BY REFERENCE
THE INTEGRATED WASTE MANAGEMENT AUTHORITY’S ORDINANCE
REGULATING POLYSTYRENE AND EXPANDED POLYSTYRENE FOOD
CONTAINERS AND PRODUCTS
FEBRUARY 11, 2020
PAGE 2
In addition, expanded polystyrene products are challenging to recycle. Expanded
polystyrene products are not currently recycled at the Cold Canyon landfill.
The adoption of regulations by reference is subject to the requirements of Government
Code Sections 50022.1, et seq. The adoption procedure is somewhat different than the
procedure that otherwise applies to the adoption of an ordinance. Pursuant to
Government Code Section 50022.3, after the introduction of the ordinance, a noticed
public hearing is to be scheduled and held prior to adoption. Accordingly, staff is
recommending that the Ordinance be introduced and a public hearing scheduled for
March 10, 2020 to consider its adoption.
ANALYSIS OF ISSUES:
On October 9, 2019, the IWMA Board adopted an ordinance regulating polystyrene and
expanded polystyrene food containers and products. The IWMA is a government entity
formed through a Joint Powers Authority governed by a thirteen (13) person board of
County elected officials from San Luis Obispo County and the Cities of Arroyo Grande,
Atascadero, Grover Beach, Morro Bay, Paso Robles, Pismo Beach, San Luis Obispo and
the community service districts. These jurisdictions formed the IWMA in 1994 to plan and
implement regional solid waste and hazardous waste programs. The IWMA Board
oversees the IWMA office and its mission to manage hazardous waste, universal waste,
solid waste, green/food waste and recycling for San Luis Obispo County.
The ordinance adopted by the IWMA supersedes the City’s expanded polystyrene
ordinance. As such, staff recommends that the City repeal the City’s ordinance and adopt
the IWMA ordinance by reference.
The IWMA ordinance is very similar to the City’s ordinance. The primary difference
between the City’s ordinance and the IWMA ordinance is that the IWMA ordinance is
more restrictive. The City exempts from its prohibition the sale of expanded polystyrene
products for foods prepared or packaged outside of the City, which are then sold within
the jurisdiction of the City. The City also exempts raw meat, fish and other raw food trays
that are made from expanded polystyrene. These same exemptions are not contained
within the IWMA ordinance.
It is staff’s understanding that these exemptions were originally included in the City’s
ordinance in order to allow grocery stores and other retailers of raw meat to continue to
sell items packaged in expanded polystyrene. As the City’s ordinance was adopted in
March of 2016, at a time when over eighty (80) cities and counties in California had
adopted regulations focused on restricting the use of food and drink containers made
Item 11.a. - Page 2
CITY COUNCIL
CONSIDERATION OF INTRODUCTION OF AN ORDINANCE REPEALING THE
CITY’S EXPANDED POLYSTYRENE ORDINANCE AND ADOPTING BY REFERENCE
THE INTEGRATED WASTE MANAGEMENT AUTHORITY’S ORDINANCE
REGULATING POLYSTYRENE AND EXPANDED POLYSTYRENE FOOD
CONTAINERS AND PRODUCTS
FEBRUARY 11, 2020
PAGE 3
from expanded polystyrene, it is anticipated that alternatives to products made of
expanded polystyrene are more readily available in the market place today.
ALTERNATIVES:
The following alternatives are provided for the Council’s consideration:
1. Introduce an ordinance repealing the City’s polystyrene ordinance and
adopting the IWMA polystyrene ordinance by reference and schedule a public
hearing to consider its adoption; or
2. Provide other direction to staff.
ADVANTAGES:
Repealing the City’s ordinance and adopting the IWMA ordinance by reference will reduce
confusion and standardize enforcement. The ordinance will also carry on the original
intent of the City to work toward a more sustainable future by reducing dependence upon
petroleum products, reducing the amount of expanded polystyrene liter in the community,
reducing the amount of expanded polystyrene entering local landfills, and protecting fish,
birds and wildlife from expanded polystyrene ingestion.
DISADVANTAGES:
Adoption of the proposed ordinance could have a financial impact on businesses that use
expanded polystyrene products; however, because the City has already had a similar
expanded polystyrene ordinance in effect for the last three plus years, the impact should
be minimal.
ENVIRONMENTAL REVIEW:
This ordinance is exempt from the California Environmental Quality Act (CEQA) pursuant
to CEQA Guidelines Section15061 (b)(3) which is the general rule that CEQA applies
only to projects which have the potential for causing a significant effect on the
environment and CEQA does not apply where it can be seen with certainty that there is
no possibility that the activity may have a significant effect on the environment. Further,
the ordinance is exempt from CEQA on the separate and independent ground that it is an
action of a regulatory agency for the protection of the environment because, among other
things, it will regulate the use and sale of polystyrene and expanded polystyrene and
reduce the amount of polystyrene and expanded polystyrene that enter local landfills and
waterways. Therefore, this ordinance is categorically exempt from the requirements of
CEQA under Section 15308 of Title 14 of the California Code of Regulations as an action
by a regulatory agency for the protection of the environment.
Item 11.a. - Page 3
CITY COUNCIL
CONSIDERATION OF INTRODUCTION OF AN ORDINANCE REPEALING THE
CITY’S EXPANDED POLYSTYRENE ORDINANCE AND ADOPTING BY REFERENCE
THE INTEGRATED WASTE MANAGEMENT AUTHORITY’S ORDINANCE
REGULATING POLYSTYRENE AND EXPANDED POLYSTYRENE FOOD
CONTAINERS AND PRODUCTS
FEBRUARY 11, 2020
PAGE 4
PUBLIC NOTIFICATION AND COMMENTS:
The Agenda was posted at City Hall and on the City’s website in accordance with
Government Code Section 54954.2.
ATTACHMENTS:
1. IWMA Ordinance No. 2019-1
Item 11.a. - Page 4
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ARROYO
GRANDE REPEALING AND REPLACING CHAPTER 8.34 OF THE
ARROYO GRANDE MUNICIPAL CODE RELATING TO EXPANDED
POLYSTYRENE AND ADOPTING BY REFERENCE ORDINANCE NO.
2019-1 OF THE SAN LUIS OBISPO COUNTY INTEGRATED WASTE
MANAGEMENT AUTHORITY REGULATING POLYSTYRENE AND
EXPANDED POLYSTYRENE (EPS) FOOD CONTAINERS AND
PRODUCTS
WHEREAS, the City of Arroyo Grande ("City") is a member of the San Luis Obispo County
Integrated Waste Management Authority (“IWMA”), a joint powers agency established
pursuant to Government Code Section 6500 et seq.; and
WHEREAS, the City has previously adopted Chapter 8.34 of the Arroyo Grande Municipal
Code (“AGMC”) relating to expanded polystyrene disposable food containers; and
WHEREAS, the IWMA has recently adopted Ordinance No. 2019-1, Regulating
Polystyrene and Expanded Polystyrene Food Containers and Products and the City
desires to assure that the provisions in the AGMC are in conformity with and not in conflict
with the provisions of IWMA Ordinance No. 2019-1 and therefore desires to adopt IWMA
Ordinance No. 2019-1 by reference.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF ARROYO GRANDE DOES
ORDAIN AS FOLLOWS:
SECTION 1. The above recitals and findings are true and correct and are incorporated
herein by this reference.
SECTION 2. Chapter 8.34 of the Arroyo Grande Municipal Code is hereby repealed in its
entirety and replaced with the following:
Chapter 8.34 – Expanded Polystyrene.
8.34.010 – Adoption of Integrated Waste Management Authority (IWMA) Ordinance
No. 2019-1 by Reference.
A. As used in this Code, “IWMA Ordinance No. 2019-1” means IWMA Ordinance No.
2019-1, Regulating Polystyrene and Expanded Polystyrene Food Containers and
Products, as the same may be amended from time to time.
B. IWMA Ordinance No. 2019-1 is adopted by reference as the City of Arroyo Grande
Polystyrene and Expanded Polystyrene Food Containers and Products Ordinance.
C. The City Clerk shall keep a true and correct copy of the current version of IWMA
Ordinance No. 2019-1 on file and available for use and examination by the public
during normal business hours.
Item 11.a. - Page 5
RESOLUTION NO.
PAGE 2
8.34.020 – Violations.
A. In addition to the provisions contained in Section 8 of IWMA Ordinance No. 2019-
1, 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. As required by Government Code Section 50022.4, the following are the penalty
provisions contained in Section 8 of IWMA Ordinance No. 2019-1:
SECTION 8. Violations and Enforcement.
A. The IWMA may enforce the provisions of this Ordinance through a civil action for
civil penalties in the amounts established herein, and any other civil remedy,
including prohibitory and mandatory injunction relief, filed in the Superior Court of
the County of San Luis Obispo to compel and enforce the provisions herein against
any Food and Beverage provider or Vendor within San Luis Obispo County in
violation of this Ordinance. In addition to any relief available to IWMA to enforce
this Ordinance, the IWMA shall also be entitled to recover reasonable attorneys'
fees and costs incurred in enforcing this Ordinance.
B. For any violation of this Ordinance, the IWMA may sue to recover civil penalties in
the amount of $1,000.00 per day for every day on which a violation exists. For
purposes of calculating the civil penalties to be established hereunder, each day
on which the Food and Beverage provider or Vendor fails to comply with the
requirements of this Ordinance, after having received a written notice of violation
issued by the IWMA, shall constitute a separate offense.
C. In lieu of the civil penalties identified in Section 8 (B), the Executive Director may,
in his/her discretion, take the following actions with regard to a Food and Beverage
Provider or Vendor not in compliance:
1. Issue a written warning in which the violating party has ninety (90) days to
comply.
2. Issue fines as follows:
i. A fine of one hundred dollars ($100.00) for the first violation after a written
ninety (90) day warning notice is given.
ii. A fine of two hundred dollars ($200.00) for the second violation.
iii. A fine not exceeding five hundred dollars ($500.00) for the third and any
future violations.
3. For the first violation, the IWMA or designee may allow the violating Food and
Beverage Provider or Vendor, in lieu of payment of the administrative fine, to
submit receipts demonstrating the purchase after the citation date of Reusable,
Item 11.a. - Page 6
RESOLUTION NO.
PAGE 3
Biodegradable, or Recyclable products in an amount equal to the amount of
the citation.
D. In addition to the civil relief available to the IWMA set forth above, any violation of
this Ordinance shall also constitute a misdemeanor punishable under the laws of
the State of California. The District Attorney, the County Counsel, or any City
Attorney shall be authorized to enforce the provisions of this Ordinance within their
respective jurisdictions. In the event of such criminal enforcement, the following
criminal penalties apply to violations of this Ordinance:
1. Violation of Misdemeanor. Violations of the provisions of this Ordinance or
failure to comply with any of its requirements shall constitute a misdemeanor.
2. The San Luis Obispo County Sheriff’s Department and/or any other police
department or law enforcement agencies located within the IWMA's jurisdiction
may issue a Notice to Appear Citation for any misdemeanor pursuant to
California Penal Code Section 853.6 for any violation of this Ordinance.
3. Penalty for Misdemeanor. Any Food and Beverage Provider or Vendor found
to be in violation of any provision of this Ordnance, or who fails to comply with
any of its requirements shall upon conviction thereof be punished by
imprisonment in the county jail for not more than six months, or be fined not
more than one thousand dollars ($1,000.00), or both. Each day such violation
continues shall be considered a separate offense.
E. To the extent any Member Jurisdictions have adopted code enforcement
Ordinances applicable to their jurisdictions, this Ordinance may be enforceable by
said governmental entities under said Ordinances as land-use or code-
enforcement violations consistent with said Ordinances.
F. The remedies provided by this section are cumulative and in addition to any other
remedies available at law or in equity.
SECTION 3. This Ordinance is exempt from CEQA pursuant to CEQA Guidelines
Section15061 (b)(3) which is the general rule that CEQA applies only to projects which
have the potential for causing a significant effect on the environment and CEQA does not
apply where it can be seen with certainty that there is no possibility that the activity may
have a significant effect on the environment. Further, the ordinance is exempt from CEQA
on the separate and independent ground that it is an action of a regulatory agency for the
protection of the environment because, among other things, it will regulate the use and
sale of Polystyrene and Expanded Polystyrene and reduce the amount of Polystyrene
and Expanded Polystyrene that enter local landfills and waterways. Therefore, this
ordinance is categorically exempt from the requirements of CEQA under Section 15308
of Title 14 of the California Code of Regulations as an action by a regulatory agency for
the protection of the environment.
Item 11.a. - Page 7
RESOLUTION NO.
PAGE 4
SECTION 4. 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 5. This Ordinance shall take effect and be in full force and effect upon the
effective date of IWMA Ordinance No. 2019-1, which is six (6) months from the date of its
passage.
SECTION 6. If any section, subsection, sentence, clause, or phrase of this Ordinance is
for any reason held to be invalid or unconstitutional by a decision of any court of
competent jurisdiction, such decision shall not affect the validity of the remaining portions
of this Ordinance. The City Council hereby declares that it would have passed this
Ordinance and each and every section, subsection, sentence, clause, or phrase not
declared invalid or unconstitutional without regard to whether any portion of the ordinance
would be subsequently declared invalid or unconstitutional.
On motion by Council Member ______, seconded by Council Member _______, and by
the following roll call vote to wit:
AYES:
NOES:
ABSENT:
the foregoing Ordinance was adopted this ____ day of _______, 2020.
Item 11.a. - Page 8
RESOLUTION NO.
PAGE 5
___________________________________
CAREN RAY RUSSOM, MAYOR
ATTEST:
___________________________________
KELLY WETMORE, CITY CLERK
APPROVED AS TO CONTENT:
______________________________
JAMES A. BERGMAN, CITY MANAGER
APPROVED AS TO FORM:
___________________________________
TIMOTHY J. CARMEL, CITY ATTORNEY
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