HomeMy WebLinkAboutStaff Report 4.C 12/02/2013 Affe'vu,ia'Tte ni#4.0
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DATE: Dece'inber 2, 2013
TO: Honorable Mayor and Members of the City ncil
FROM: John C. Brown, City Manage
SUBJECT: Second-Amended_Agreement Between the Cities of Sonoma County and the
County of Sonoma County for a Joint Powers Agency to Deal with Waste
Management Issues.
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RECOMMENDATION
Ibis recommended that.the City'Council determine Council Policy with respect to:
1. A single-use carryout bag ordinance; and
2. the Proposed Second Amended Agreement for a Joint Powers Agency to Deal with Waste
Management Issues.
BACKGROUND
The Sonoma County Waste Management Agency (SCWMA,or, the Agency) was formed in
1992 as:a.Joint Powers Authority (JPA) to develop programs to handle household hazardous
waste, wood waste, and yard-waste generated in Sonoma,Countyand'to provide,for public
education pursuant to the requirements of AB 939, the Integrated Waste Management Act of
1989. The .TPA is comprised of the County of Sonoma and the nine incorporated cities in the
County. The Joint Powers Agreement (the Agreement) was•amended in1996 to establish the
Agency as a "Regional Agency'-'-pursuant to Public Resources Code, and added solid,waste
planning and reporting-to the list-ofSCWMA's functions. The.JPA expires in February 2017 if
it is not renewed or extended. Amendments to the Agreement must be approved unanimously by
member jurisdictions:.A Board of Directors, consisting of one representative from each
jurisdiction,,governs the Agency's activities. I am Petaluma's representative to the Board, the
Director of:Public`Works^and Utilities is our alternate. Mr. St. Jdhn has attended Board meetings
since mid-2012, and voted on Petaluma's behalf.
SCWMA developed an,ordinance that would ban-single-use carryout plastic.hags. Eliminating
single-use plastic bags has:other benefits, but the Agency's main objective;is to reduce the
impact of this material on the landfill. It is SCWMA's'position based on the experience of other
jurisdictions who have instituted bag bans, on case law, and on contact with area retailers subject
to;the'ban; that enforcing a ban will,not require a great deal of regulatory effort. SCWMA
estimates total enforcement costs will not exceed $1,000 annually, based on San Jose's
Agenda Review:
City Attorney Finance Director City Manager
experience enforeing,its,ordinance. Asdrafted,,the ordinance applies to retailers regardless of
size, but exempts restau`tants.
In 2011, Agency staff made presentations to all the:meniberjurisdictions to determine
preferences related to a bag ban. Agency staff.discussed options including a regional ordinance,
applicable to all jurisdictions, administered and enforced by Agency staff.(option 1), and a model
ordinance-that would be locally administered and enforced (option 2). Agencies can also
implement their own ordinances independent of what SCWMA or other local jurisdictions may
adopt, although the cost of developing, implementing, administering, and defending such an
ordinance would be borne by that agency, and not SCWMA. Option 1 provides for consistency
on a countywide basis, with administration and enforcement performed by Agency staff at the
Agency's cost. Option.2 could result,inrdifferences tailored to local needs and preferences; and
would draw on the resources of the-individual jurisdictions to administer their own ordinances -
or to contract with SCWMA to administer on the localjurisdiciion's behalf. SCWMA is
promoting the countywide approach for the consistency it.fosters. Consistency among the local
jurisdictions has been determined to be important to retailers.
In July 2011, the Petaluma City Council supported the concept of a single-use carryout bag ban,
with a ten cent ($.10) charge for paper bags. The Council preferred a countywide approach, paid
for by SCWMA. Based on the feedback received from its member jurisdictions, the Agency
developed an ordinance based ohthe'one adopted by the City of San Jose at the beginning of
2012. This could be used to implement a countywide program, or serve as a model for agencies
that wish to adopt their own ordinances. Agency staff conducted community stakeholder
meetings in the summer of 2012. SCWMA then conducted a second round of presentations to its
member jurisdictions to discuss the evolution of the ordinance and obtain additional feedback.
Petaluma's position remained unchanged from 2011; the Council favored participating in a
program administered and enforced bySCWMA. A-copy of the draft ordinance developed to
incorporate the preferences of SCWMA's various member-jurisdictions, and SCWMA's analysis
of that ordinance, are included.as'Attachments 2 and 3 to this report.
DISCUSSION
As discussion on this matterhasprogressed during the past several months; questions were
raised by city attorneys regarding the authority of the JPA to implement and.enforcea
countywide program: SCWMA's,legal advisor initially responded to those concerns with an
assessment of risk, indicating that objections or challenges to the program are not likely,and as
such, adopting a countywide ordinance poses little risk to the member agencies even,if SCWMA
is not empowered-to enactand enforce-one. SCWMA has not agreed that it lacks this
jurisdiction,but to further reduce risk to individual jurisdictions, it proposed to indemnify
members in the event of legal challenge. That response is practical, but does not address the
basic concern that the .IPA lacks-the-authority to implement a program of this type. Neither does
it address the policy question of whetherlocal jurisdictions should look to the Agency to
administer a bag ban when the Agency's future is uncertain beyond 2017. Our attorney
continues to express concerns about,your Council's prerogative to exercise its sovereignty over
matters of local importance.
To address the "juiiisdictioii"'question, the Agency drafted a:second amendment to the JPA,
which would,enable the Agency to,enact new "non-core" programs such as the bag ban, in which
member jurisdictions could elect to participate. This is also a practical response: but continues to
leave open to,question policy considerations regarding sovereignty. .It:also provides the Agency
opportunity to potentially expand its role by initiating other non-core programs, although the
future of any such programs would be tied to the'future of the Agency beyond February 2017.
At some point prior to February 2017, member agencies will be asked to vote on renewing,
extending, or modifying•the'JPA. How each Agency, including Petaluma, votes should take into
account what the JPA provides; at what cost, and whether it would continue to best meet our
recycling, composting, and AB939'education requirements or whether other delivery models
may be more desirable. Adding responsibilities to the Agency now will make that comparison
more complicated. In addition,=if the member agencies chose to do so, it will co-implicate
dismantling the JPA in 2017.
In October, the SCWMA Board voted to approve, in concept, the Second Amendment and
directed it to the member jurisdictions for their consideration=and approval. As of this writing,
Healdsburg, Sonoma,Sebastopol,Windsor, and Cotati have approved the proposed amendment.
Santa Rosa, Sonoma"County, Petaluma, Rohnert Park, and Cloverdale are scheduled to consider
the matter in December or January.
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At this time, your Council-is asked to consider two primary questions: does the Council still wish
to support the regional approach to implementing a bag ban (or choose a locally implemented
and enforced option), and does the Council wish to approve the Amendment to the JPA? In the
past the Council indicated it favors the regional approach, and a program administered by
SCWMA. Maintaining:that position requires approval of aJPA amendment: SCWMA has
requested that each member jurisdiction approve the Amendment language as drafted, and avoid
making any changes that would then need to be recirculated and voted oh again by all the
member jurisdictions:
The Council may wish to retain its sovereign rights, and implement its own bag ban. It appears
some other cities wish to exercise that option. A"yes" vote on the JPA amendment allows
Petaluma to take advantage,of countywide enforcement, but does not prevent Petaluma from
enacting its own ordinance and enforcing its own program. This is because the JPA amendment
as.currently"drafted defines;,the"bag:ban" as a "non-core" program of the JPA and allows any
memberagency tcy opt not to participate:in a "non-core" program: For those who do.favor the
Countywide approach,;however, a no vote on Petaluma's part would prevent others from
participating in.a regional program, as-a vote,to amend the JPA requires unanimous approval.
For that reason, it is recommended that the Council approve the WA Amendment. If that is the
Council's policy; a Resolution approving the JPA will be prepared for consideration at a future
meeting.
Other Considerations: Two bills,have been introduced: SB 405by.State Senator Padilla, and AB
158 by Assembly Member Levine. The bills are similar in many respects, and ban carry out bags
on a phased timeline, require the distribution of reusable carry out bags, establish standards for
reusable bags, and set penalties for non-compliance. Enforcement may be at the State. County,
or local level, with prosecution conducted by the Attorney General, a District Attorney, or a City
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Attorney. SB 405,.includespreemption,provisions;local agencies may only enforce local bag
ban ordinances if their;ordinances•were adopted by September 2013. No new local ordinances
may be adopted after-January 2014; the only changes that can be made to ordinances adopted by
September 2013 would be for charges imposed on single-use carry out paper bags. SB 405
enjoyed strong support, and failed to pass by only three votes in the.last:legislative session.
Assembly member Levine's Office has recently requested your support for AB 158, the decisions
you make on December 2" would determine whether that item is brought forward for
consideration at your January 6, 2014-meeting. SCWMA staff has asked its Board to oppose
both bills if preemption languageis•not removed.
FINANCIAL IMPACTS
If the City joins a-regional effort administered by SCWMA, the City would expect SCWMA to
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implement and enforce that program at no cost to the-City: Cost estimates have not been
developed fora City-implemented and enforced program. Such costs would be higher than
joining the regional effort, and are associated with tailoring an ordinance to Petaluma's specific
needs, any associated.environmental review, and defense costs associate with any challenges that
might potentially be brought. Enforcement costs would be expected to be similar to those quoted
by SCWMA, if Agency staff's assumptions are correct.
ATTACHMENTS
1. Proposed.JPAAmendment
2. Proposed Single•Use'Carry.Out Ordinance
3. SCWMA Analysis of Single Use Carry Out Ordinance
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ATTACHMENT 1
SECOND AMENDMENT TO
AGREEMENT BETWEEN THE CITIES OF SONOMA COUNTY AND SONOMA
COUNTY FOR A JOINT POWERS AGENCY TO DEAL WITH WASTE
MANAGEMENT ISSUES
THIS SECOND AMENDMENT ("AMENDMENT") to the Agreement-Between the
Cities of,Sonoma County and Sonoma County fora Joint Powers Agency to Deal with Waste
Management Issues, dated as of , 201 , is byand between the Cities and Town
of Sonoma County and the County of Sonoma.
RECITALS
WHEREAS, the Cities,and Town of Sonoma County and the County of Sonoma entered
into that certain Agreement Between the.Cities of Sonoma County Sonoma County for a
Joint Powers Agency to Deal with Waste Management Issues (Agreement"); and
WHEREAS, it has become necessary to clarify certain;provisions of the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties do agree as follows:
AGREEMENT
1. Section 2 of the Agreement (Purpose of Agreement) is hereby amended to read as
follows:
"Section 2. PUrpose of Agreement
The purpose of this Agreement is to create the Sonoma County Waste Management
Agency and to describe the`terms and provisions by which the Agency will handle the
four(4) initial programs: (1) household hazardous waste;(2) wood waste; (3) yard
waste that otherwise would go to a landfill;.and.(4) education about the Agency's
programs. Pursuant to the terms of this Agreement, the Participants may agree, in
writing, to additional duties„responsibilities, and programs, including any'program
enacted by ordinance. Each Participant executing_this Agreement mayelect to
participate in any"or all of the Agency's non-core programs, including any single.use
carryoufbag ordinance. Core programs are defined.to be household hazardous waste.
wood waste, yard'waste, education and required reporting. Should any Participant
elect tonot participate in a non-core program, including any single use carryout bag
ordinance, there will be no reduction in the Participant's fiscal participation.”
2. Section 14 of the Agreement (Joint Powers Agency Authority to Adopt Regulations) is
hereby amended to read as.follows:
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"Section 14. Joint Powers Agency Authority to Adopt Regulations
Participants agree thattthe primary purpose-of this Agreement is to create an Agency
to treat wood waste and yard waste, to collect, store, and dispose of household
hazardous waste, to educate the public regarding waste issues, and, pursuant to the
terms of this Agreement, including any Amendments, to adopt any future programs
the Board determines are needed or desirable. The Joint Powers Agency may, from
time to time, adopt uniform rules and regulations;;in any form, including orders,
resolutions and ordinances, to carry out these purposes."
3. Except to the extent the Agreement is specifically amended hereby, the Agreement,
together with exhibits and the,First Amendment is, and shall continue to be, in full force
and effect as originally executed, and nothing contained herein shall be construed to
modify, invalidate or otherwise affect any provision of the Agreement or any right of the
Agency arising thereunder.
4. This Amendmentshall be governed by and construed under the laws of the State of
California and.any action to enforce the terms of this Amendment or for the breach
thereof shall be brought and tried in the County of Sonoma.
IN WITNESS WHEREOF,the Participants have caused this.Amendment to be executed by their
respective governing officials duly-authorized by resolution of their respective legislative bodies.
CITY OF CLOVERDALE ATTESTED:
By:
Its: City Clerk
CITY OF COTATI ATTESTED:
By:
Its: City Clerk
CITY OF HEALDSBURG ATTESTED:
By:
Its: City Clerk
CITY OF PETALUMA ATTESTED:
By:
Its: City Clerk
CITY OF ROHNERT PARK ATTESTED:
By:
Its: City Clerk
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CITY OF SANTA.ROSA ATTESTED,:
By:
Its: _ CityClerk
CITY OF SEBASTOPOL ATTESTED:
By:
Its: _ City Clerk
CITY OF SONOMA ATTESTED:
By: -
Its: City Clerk
COUNTY OF SONOMA ATTESTED:
By
Its: City Clerk
TOWN OF WINDSOR ATTESTED:
By:
Its: City Clerk
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ATTACHMENT 2
DRAFT
SONOMA COUNTY WASTE MANAGEMENT AGENCY
ORDINANCE Nb. 2013- 1
AN ORDINANCE OF THE'BOARD OF DIRECTORS,OFTHE SONOMA COUNTY WASTE
MANAGEMENT.AGENCY ESTABLISHING A WASTE REDUCTION PROGRAM FOR
CARRYOUT BAGS
THE BOARD OF DIRECTORS,OF THE SONOMA COUNTY WASTE MANAGEMENT
AGENCY DOES ORDAIN AS FOLLOWS:
SECTION 1.
• "GENERAL PROVISIONS
Title.
This Ordinance is known and may be cited as the Waste Reduction Program for Carryout Bags.
Purpose and Intent.
It is the intent of the Sonoma County Waste Management Agency("Agency"), a ten member
joint powers agency established pursuant to California Government Code Section 6500, in
adopting,this Ordinance toexercise the members' common powers and pursuant to Section 14
of the Joint Powers Agreement, to:adopt regulations promoting a uniform program for reducing
waste by decreasing the use of single use carryout bags.
Defined Terms and Phrases.
For the purposes of this Ordinance, the words, terms and phrases as defined herein shall be
construed ias hereinafter set forth, unless it is apparent from the context that a different meaning
is intended:
A. "Customer`means any Person obtaining goods from a Retail, Establishment.
B. "Nonprofit Charitable,.Reuser" means a charitable organization, as defined in Section
501(c)(3)of the Internal Revenue Code, or a distinct operating unit or division of the
charitable organization, that reuses and recycles donated goods or materials and
receives more than fifty percent (50%) of its revenues from the handling and sale of
those.donated'goods or materials.
C. "Person" means any natural person, firm, corporation, partnership, or other organization
or group however organized.
D. "Prepared Food" means foods or beverages which are prepared on the premises by
cooking, chopping, slicing, mixing, freezing, or squeezing, and which require no further
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preparation to be consumed. Prepared Food does not include any raw or uncooked
meat product.
E. "Recycled,Paper Bag" means',a paper bag provided at the check stand, cash register,
point of sale, or otherpoint of departure for the purpose of transporting food or
merchandisesout of theestablishment thatcontainsno old growth fiber andta minimum
of forty percent 00%) Post-consumer Recycled Material; is one hundred percent (100%)
recyclable, and has,printed in a highly visible manner onthe outside of the bag the
words"Reusable' and "Recyclable," the name and:location of the manufacturer, and the
percentage of Post-consumer Recycled content.
F. "Post-consumer Recycled Material" means a material that Would otherwise be destined
for solid waste disposal, having completed its intended,end use and product life cycle.
Post-consumer Recycled Material does not include materials andrbyproducts;generated
from, and commonly reused within, an original manufacturing and fabrication process.
G. "Public Eating Establishment" means a restaurant, take-out food establishment, or any
other business that receives ninety percent (90%) or more of its revenue from the sale of
Prepared Food to beaten on or off'its premises.
H. "Retail Establishment" means any commercial establisnmentthat sells perishable or
nonperishable goods including, but not limited to clothing, food, and personal items
directly to the Customer, and is located within or doing business within the geographical
limits of the County of Sonoma, including the nine incorporated cities and town. Retail
Establishment does not include Public Eating Establishments or Nonprofit Charitable
Reusers.
"Reusable Bag" means either a bag made of cloth,or'other machine.washable fabric that
has,handles, or a durable, 'lastic bag with handles that is at least 2.25 mil thick and is
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specifically designed and manufactured for multiple reuse. A Reusable Bag provided by
a:Retail Establishmentshall be designed and manufactured to withstand repeated uses
over period of time; made from"a material that can be cleaned and disinfected; and
shall notcontain lead, cadmium, or any other heavy.metal in toxic amounts.
J. "Single-Use Carryout Bag" means a bag, other than a Reusable Bag, provided at the
check,stand, cash register, poiint of sale or other point of departure for the purpose of
transporting food or merchandise out of the establishment. Single-Use Carryout Bags do
not::include bags wdhout;,handles provided to the Customer (1) to transport produce, bulk
food 9r meatfrom a;produce bulk food or meat department within a store to'the point of
sale; (2) to hold prescription medication dispensed'from a,,pharmacy; or (3) to+segregate
food ormerchandise thaticould damage or contaminate other food or merchandise`when
placed'togetherina Reusable Bag or Recycled Paper Bag.
Single=Use CarryoUt Bags.
A. On and,after July 1, 2013, noRetail Establishment'shall provide a Single-Use Carryout
Bag to a Customer for the purpose of transporting food or merchandise out of the
establishment except as provided.in this Ordinance.
B. On and after July 1, 2013, a Retail Establishment may make available for sale to a
Customer a Recycled:Paper Bag-for a minimum charge of ten cents ($0.10).
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C. Notwithstanding this Section,,no Retail.Establishment may make available for sale a
Recycled Paper Bag,unlessthe amount of the sale of the Recycled Paper Bag is
separately itemized.on the sales receipt.
Recordkeeping and Inspection.
Every Retail Establishmentshall.keep a monthly report of the total number of Recycled Paper
Bags purchased and the total number sold, for a minimum period of three (3) years from the
date of purchase and sale, which record shall be available for inspection at no cost to the
Agency during regular business hours by any Agency employee or contractor authorized to
enforce this Ordinance. Unless an alternative location or method of review is mutually agreed
upon, the records or documents shall be available at the Retail Establishment address, The
provision of false information including incomplete records or documents to the Agency shall be
a violation of this Ordinance.
Enforcement.
The Executive Director of the Agency, or his or her designee, shall have primary responsibility
for enforcement of this Ordinance. The Executive Director is authorized to make all necessary
and reasonable.rules,and regulations with respect to the enforcement of this Ordinance. All
such rules and regulations'shall be consistent with the provisions of this Ordinance.
Anyone violating or failing:to comply with any provision of'this Ordinance shall be guilty of an
infraction. The Agency, may seek legal, injunctive, administrative or other equitable relief to
enforce this Ordinance. The remedies and penalties provided in this Section are cumulative and
not exclusive and nothing in this Section shall preclude,the.Agency from pursing any other
remedies provided by law. ln;addition to any relief available to the'Agency, the Agency shall be
entitled to recover reasonable attorneys' fees and costs incurred in the enforcement of this
Ordinance.
The authorized,representative of any Retail Establishment may appeal a citation as provided in
the Agency's Administrative Penalties Ordinance.
Violations'of`this Ordinance shall be.punishable as provided in the Agency's Administrative
Penalties Ordinance.
Each violation•of this Ordinance or each day a violation exists shall be considered a separate
offense.
Severance.
If any section,subsection,;sentence, clause or phrase'of this Ordinance is for any reason held
to be unconstitutional or in any Manner in conflict-with the laws of-the United States or the State
of California, such decision.shall not affect the validity of the remaining portions of'this
Ordinance. The Board.of.Direbtors of the Sonoma County Waste Management Agency hereby
declares that it,would have passed this Ordinance and each section, subsection, sentence;
clause and phrase'thereof, irrespective of the fact that any one or more,sections,,subsections,
sentences, clauses or phrases be declared unconstitutional or in any manner in conflict with the
laws of the United States or the State of California.
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SECTION 2. A summary ofthis Ordinance shall be printed and published twice in the Santa
Rosa Press Democrat, anewspaperof:general„circulation, printed and published in the City of
Santa Rosa, County (*Sonoma.
SECTION 3. This Ordinance shall be effective on July 1, 2013. A summary of this Ordinance
shall, within fifteen (15) days after passage, be published with the names of the Directors voting
for and against it.
INTRODUCED at a regular meeting of the Board of Directors of the Sonoma County Waste
Management Agency on the _day of , 2013, and
PASSED AND ADOPTED this of , 2013, by the following vote:
AYES: Directors: .
NOES: Directors:
ABSENT: Directors:
ABSTAIN: Directors:
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CHAIR
ATTEST:
AGENCY CLERK
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SON.OMA COUNTY
®' Management ATTACHMENT 3
Agency'
Analysis of Carryout Bag Ordinance: Type and
Provisions
Date: May 29, 2012
To: SCWMA Member Jurisdictions
From: Henry Mikus, SCWMA Executive Director
Purpose of Ordinance:.
A carryout bag reduction ordinance under consideration by the Sonoma.County Waste
Management Agency (SCWMA) is primarily concerned with reducing the amount of
waste associated with carryout bags through prohibition,of plastic carryout bags and the
imposition:of a $0.10-$0:25 minimum charge on recycled content paper bags. The
expected result is a switch;in consumer behavior to using reusable carryout bags and/or
declining to use any,carryout bag for the transport of goods from the point of sale to the
point of use.
There are a number of-potential ancillary benefits to such actions:including reduced
maintenance associated with landfill and recycling center equipment, reduced litter,
reduced environmental impact associated with the resource.extraction and manufacture
of carryout bags not designed for multiple reuse, and reduced harm to wildlife.
Current Project Progress:
All.ten SCWMA°memberjurisdictio_ns have indicated support, in varying degrees, for this
project: During this recent Spring,,a series of stakeholder meetings were held
throughout our membership area, where numerous options for inclusion in an ordinance
were presented,and;discussed. At these meetings public commentary was solicited and
received. Utilizing input from these meetings, plus examples of successful ordinances
in effect elsewhere, a draftordinance has been developed. The SCWMA Board has
asked staff to return.to our member.jurisdictions for commentary and input. Also under
evaluation,;is which;type;of ordinance, regional (applying to-Sonoma County's 9 cities
plus the unincorporated county:areas) or model, should be utilized, as there is some
divergentopinionamong our member jurisdictions as to which path is the preferred
method of implementation: Some members prefer the model ordinance because they
would retain some control, with concerns about the enforcement method a part of this
sentiment. However, other members favor the regional method because the reduced
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expense and risk°this method would provide for them. The grocery-industry has
indicated quite strongly thatthey prefer the regional approach.
Summary of'Draft:Oitdinance:
The SCWMA Board directed staff to prepare a preliminary draft.ordinance to-generate a
policy discussion on how inclusive or limited a;ban should be. This draft was created
using ordinancesfrom other jurisdictionsin the state thathavenotbeen challenged.
Following is a brief description of the preliminary draft ordinance.
Any retail establishment that1sold merchandise, clothing, food or personal items would
be prohibited from providing a single-use bag to the customer_"at the point of sale for the
purpose of transporting the merchandise out of the establishment. The retail
establishment, however, would be able to-provide a recydled paper bag for sale to the
customer at no less than 10 cents,per bag. This costwould increase to 25 cents per
bag a year after the ordinance initially took effect. A restaurant or other business that
receives 90% of its revenue from the sale of prepared food would be exempt from this
prohibition: Certain types of bags also would be exempt. These would include bags
used to transport produce, bulk food or meat from the department or area in a store to
the point of sale, bags to hold prescription medication dispensed from a pharmacy, and
bags used to segregate-food or merchandise that could damage or contaminate other
food or merchandise when placed together in a reusable bag or recycled paper bag.
Commentary on Ordinance Details:
The ordinance would.app'ly<atpoint of sale to carry-out single-use bags,at retail
establishments: Food service providers would not be included, and so-called "produce"
or "meat"bags would also not be in order to avoid any possible concern over
food contamination issues.
Implementing a ban on plastic,bags.while allowing the use of paper bags for a fee has
been the most successful.route for avoiding challenge on environmental grounds. The
fee on paper bagswould be retained by the merchants, and would not be income to
SCWMA or any:other local government. SCWMA has received some information from
merchants that the 10-cent fee,petbag nearly covers their expense. Also, the
commercial sector;whether, individual merchants or trade associations, has.been clear
that regional consistency is vital to their support.
Ordinance Type:
Regarding the potential type,of.local carryout bag waste_reduction ordinance, three
options were initially under consideration;
• A single, countywide ordinance enacted,by the SCWMA.
• A model ordinance adopted separately by each member jurisdiction, if they
desire
• An individual,member jurisdiction ordinance tailored to the individual jurisdiction,
if they desire.
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At this point in the projects progress,'either the regional or model ordinance types are
consideredviable.
The countywide, model, and individual ordinance approaches were examined in terms
of level of effort (staff time and/or direct costs) to the SCWMA, level of effort to the
member jurisdictions, consistency of ordinances'within Sonoma County, and amount of
risk via exposure to legal challenge.
Countywide SCWMA Ordinance
The SCWMA is composed of all nine incorporated cities and the unincorporated County
of Sonoma resulting in a jurisdictional boundary of the entirety of Sonoma County. As a
Joint Powers Agency, the SCWMA has the ability to exercise the powers common to its
members, all of which have'the"ability to adopt ordinances.
Adopting a countywide carryout bag waste reductiomordinance would have the greatest
level of effort required of the. SCWMA. The SCWMA would be responsible for entering
into an agreement with a consultant to prepare a California Environmental Quality Act
(CEQA) document analyzing the environmental impacts,on this project, use SCWMA
staff and legal counsel to prepare-the ordinance for adoption, defend the ordinance from
legal challenge, and to enforce the ordinance in the event of non-compliance.
On the subject of enforcement, the SCWMA would also need to adopt an administrative
citation ordinance in order to issue monetary administrative citations. In the alternative,
it is possible for each jurisdiction that wants to do their own enforcement to adopt the
Agency's adopted ordinancein order to use theirown enforcement mechanisms.
A countywide carryout bag ordinance requires the least level of effort, expense, and
risk, of the three options, for the member jurisdictions.
SCWMA Countywide Model Individual
Expenditure of Greatest Less Least
SCWMA-Funds
Expenditure of Least Greater Greatest
Member Funds
Likelihood of Greatest Equal —to'- Less Least
Consistency
Main'Impediments Unanimous vote on Unanimous vote on Cost to members,
consultant cost AND consultant cost, cost unlikely to bet adopted
adoption, concern to members, unlikely uniformly
about jurisdictional to be adopted
sovereignty uniformly
A countywide carryout bag ordinance would ensure the most consistency of the
ordinance's provisions through the entire county. This issue is of great importance to
businesses which have stores in multiple jurisdictions. The single most consistent
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commentreceived from'the,commercial sector on an ordinance has-been support for
regional consistency.
As a SCWMA ordinance, it is the SCWMA'sresponsibility to defend an ordinance from
legal challenge, and the SCWMA is prepared to vigorously defend.such,an.ordinance
without requesting monetary-or legal assistance from its member jurisdictions. A legal
challenge delivered to a member jurisdiction would not be valid under a SCWMA
regional ordinance.
SCWMA Model Ordinance
The second method would be fbrthe SCWMA to draft an ordinance which would be
uniformly adopted throughout Sonoma County via individual actions by SCWMA
member jurisdictions.
This approach would.involve,a lesser level of effort on the part;of SCWMA staff and
legal counsel, as the SCWMA would only be,responsible for creating a draft model
ordinance, hiring a consultant,to create a CEQA document for the project, certifying the
CEQA document; and defending the basic, common CEQA document from legal
challenge. The level of effort for ordinance implementation would be shifted to member
jurisdiction staff and legal counsel.
Member jurisdiction staff would be' responsible for reviewing the ordinance for adoption,
preparing any necessaryCEQA;documents, enforcing the ordinance, and defending
their ordinance:from legal challenge. Thus a model"ordinance shifts the risk of litigation
to the member jurisdictions. The SCWMA would continue fo defend any legal challenge
to the basic CEQA document prepared to examine the environmental impacts on a
countywide basis. However,the risk related to any subsequent CEQAdocument and
adoption of the ordinance by:a member'jurisdiction would be borne by the member
jurisdictions. There is Prebedent from the primary litigant these types of ordinances
to target jurisdictions which do nothave-the resources or staff to defend their ordinance
from a;legal challenge as.a,means to nullify an ordinance. It would not be the
SCWMA's responsibility to:reimburse or provide in-kind'services to the member
jurisdictions to complete those tasks.
The single biggest negative:to using a model ordinance approach exists because some
member jurisdictions have indicated they would not participate if this project required
use of member jurisdiction funds. Thus it is possible the model ordinance route would
result in ordinances to be jin,effect in some jurisdictions, but not in others.
If the modef'ordinance could be adopted uniformly by all member jurisdictions, there is a
,negligible impact,orr consistency. However, a member jurisdiction may chose,to slightly
alter the parameters of the-model ordinance or choose not to adopt the ordinance
altogether, which would haven negative effect on the ordinance's consistency.
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Individual MemberJurisdiction Ordinances
Some of our member jurisdidtionshave'•expressed an interest in proceeding with non-
uniform, individual single-use bag ordinances, but only'in the event no action occurs to
enact either a regional or model ordinance. Reasons cited have been the large
individual expense and effort, the high level of risk to legal challenge involved, and the
lack of consistency: However, if agreement between:all cannot be reached on either
the regional agency route, or use of a model ordinance,this may become the only
option for any jurisdiction that wishes to continue. This is a scenario to which multi-
jurisdictional businesses and business groups have expressed opposition, and it is likely
that other supporters of the countywide model would oppose'this approach.
Conclusions:
The countywide, SCWMA ordinance involves the leastcost overall and the least risk of
legal exposure to the member jurisdictions, and the greatest potential for countywide
consistency of the three options. However, there are some concerns from member
jurisdictions of the SCWMA encroaching on their territorial sovereignty, particularly
related to enforcement. Given this item requires unanimous'support of the SCWMA's
member jurisdictions, there is also concern that one vote of opposition at the time of
ordinance adoption could result in the unnecessary expenditure of SCWMA funds for
this project.
If there is no consensus on the countywide approach, the;next'logical approach would
be the model ordinance. There would be no,conflidt regarding:enforcement, as each
jurisdiction would be responsible for enforcing'their ordinance. However, given there
have been some jurisdictions expressing their reservations to expend any funds to
complete this project,'it is very likely the ordinancewould not be;adopted uniformly
throughout the county, resulting in diminished consistency. The only real benefit to this
approach over the individual ordinance approach would be that some, but not all of the
CEQA costs would be borne by the SCWMA.
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