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HomeMy WebLinkAboutStaff Report 3.G 11/18/2019Agenda Item #3.G r�5$ DATE: November 18, 2019 TO: Honorable Mayor and Members of the City Council through City Manager ` =' FROM: Ingrid Alverde, Director of Economic Development and Open Government Patrick Carter, Senior Management Analyst, City Manager's Office SUBJECT: Adoption (Second Reading) of an Ordinance Prohibiting Use and Sale of Specified Disposable Food Service Ware and Other Non -Reusable Products Containing Polystyrene Foam RECOMMENDATION It is recommended the Council Adopt (Second Reading) an Ordinance to Prohibit Use and Sale of Specified Disposable Food Service Ware and Other Non -Reusable Products Containing Polystyrene Foam. BACKGROUND An Ordinance to Prohibit Use and Sale of Specified Disposable Food Service Ware and Other Non -Reusable Products Containing Polystyrene Foam was introduced (First Reading) to the City Council at the October 21, 2019 City Council meeting. The Council unanimously voted to proceed with the ordinance. The proposed ordinance is related to the City's waste reduction efforts to reduce a voluminous and frequently littered waste product; is aligned with the Zero Waste Principles the City Council adopted pursuant to Resolution No. 2019-114 approved by the City Council on July 15, 2019; and meets the City Council Goal to "preserve and protect Petaluma's environment with smart and efficient use of resources." DISCUSSION The proposed ordinance is based upon a template of a model ordinance provided by the SCWMA. To date in Sonoma County, only the City of Sebastopol has adopted the SCWMA model ordinance, which it did at its May 21, 2019 City Council Meeting. Staff understands that the City of Healdsburg will be considering the SCWMA model ordinance before the end of the year, and several other Sonoma County cities will be considering the SCWMA model ordinance early next year. Staff altered the model ordinance to address issues related to enforcement and to limit the scope to only products made from polystyrene, and such changes were included in the First Reading of this ordinance. Staff was given direction to work through the Climate Action Commission and the City Attorney to develop a second ordinance about food service ware including cups, lids, utensils, plates, and bowls made from reusable, recyclable, or compostable materials. The second ordinance is on agenda for the November 14, 2019 Climate Action Commission meeting. The main elements of the attached ordinance include: 1. A prohibition against polystyrene foam food service ware distributed by food establishments and food providers within Petaluma 2. A prohibition against polystyrene foam products sold by retail vendors within Petaluma 3. Authorization for the City Manager or designee to grant exemptions on a case-by-case basis for up to one year if the food provider or retail vendor demonstrates an undue hardship resulting from the ordinance. Staff believe the proposed ordinance is exempt from environmental review under the California Environmental Quality Act ("CEQA") pursuant to Section 15061(b)(3) of Title 14 of the California Environmental Code of Regulations because it can be seen with certainty that there is no possibility that the ordinance will have a significant negative effect on the environment, and on the separate but related ground that the proposed ordinance is an action of the City to assure the maintenance, restoration, enhancement, or protection of the environment where the regulatory process involves procedures for protection of the environment in accordance with Section 15308 of the CEQA Guidelines. The restrictions on polystyrene products contained in the proposed ordinance constitute regulatory procedures for protection of the environment in accordance with Section 15308 because the ordinance provisions will reduce the negative environmental impacts of disposal and littering of polystyrene products. The draft ordinance and its expected environmental impact are analogous to those of plastic bag ban regulations which have been adopted in many local jurisdictions. Such ordinances were found to qualify for the Section 15308 exemption in Save the Plastic Bag Coalition v. Coarnty of Marin (2013) 218 CA4th 209 and Save the Plastic Bag Coalition v. City and County of San Francisco (2013) 222 CA4th 863. PUBLIC OUTREACH SCWMA Outreach: SCWMA staff conducted outreach to residents and businesses within Sonoma County to determine interest and the potential impacts on local businesses caused by adopting an ordinance regulating polystyrene products. SCWMA staff publicized an online survey, contacted Chambers of Commerce, trade organizations, and local businesses that generated approximately 3,000 responses. Respondents overwhelmingly supported the model ordinance as highlighted below: • 91 % supported a ban on polystyrene food containers at food establishments 0 89% supported a ban on the sale of polystyrene foam products at retail stores 0 87% supported straws being provided upon request, rather than automatically 0 69% supported food establishments charging a fee for compliant food containers Petaluma Outreach: City staff published information about the proposed ordinance in all Petaluma commercial utility bills, the Petaluma Chamber of Commerce newsletter, posted information on the City's Facebook and NextDoor sites, placed advertisements running in the I September 19 and 26 Petaluma Argus Courier editions, and had multiple discussions with Petaluma Argus Courier reporters, which resulted in articles published on June 30, 2019 and July 12, 2019, and September 26. Staff presented the proposed ordinance to the Chamber of Commerce Government Affairs subcommittee on September 6, 2019. Feedback from outreach fell into the following categories: support, concern regarding financial impacts to businesses and customers, desire for City resources to be directed elsewhere, and concern regarding how consumers would be able to handle to -go food. These comments were taken into consideration as reflected in City staff next steps above. FINANCIAL IMPACTS Financial impacts to the City are expected to be minimal as a result of adopting the proposed ordinance. Reduced sales tax collections from the prohibition of purchasing polystyrene service ware items are expected to be offset by the purchase of alternative service ware. There will be an undetermined, but minimal impact to budget for enforcement and education, if performed by City staff. Enforcement would focus on education first, would be complaint driven, and, based on the experiences in the Counties of Santa Clara and Santa Cruz, an initial spike in staff time needed to respond to complaints in the first months after the ordinance takes effect is expected, which should taper off afterwards. ATTACHMENTS 1. Ordinance Prohibiting Use and Sale of Specified Disposable Food Service Ware and Other Products Containing Polystyrene Foam EFFECTIVE DATE ORDINANCE NO. N.C.S. OF ORDINANCE Introduced by Seconded by ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PETALUMA ADDING CHAPTER 8.17 TO THE PETALUMA MUNICIPAL CODE PROHIBITING THE USE AND SALE OF SPECIFIED DISPOSABLE FOOD SERVICE WARE AND OTHER PRODUCTS CONTAINING POLYSTYRENE FOAM WHEREAS, the California Integrated Waste Management Board ("CIWMB") estimates that Californians use 165,000 tons of expanded polystyrene (foam and Styrofoam TM products) each year for packaging and food service purposes; and WHEREAS, a 2004 study by the CIWMB ranked polystyrene's environmental impacts second highest among materials in terms of both manufacturing and disposal, behind aluminum, in the categories of energy consumption, greenhouse gas emissions and total environmental effect; and WHEREAS, a 2014 waste characterization study performed on behalf of the California Department of Resources Recycling and Recovery ("Cal Recycle") estimated that 11,310 tons of remainder/composite plastic materials, including polystyrene food ware, were disposed in Sonoma County; and WHEREAS, according to the 2004 CIWMB study, as well as studies published in Materials Science and Technology, a trade journal, expanded polystyrene is not fully biodegradable, takes hundreds of years to deteriorate or breakdown in the environment or a landfill, and currently no effective or economically feasible means of recycling polystyrene is available in Sonoma County; and In WHEREAS, according to the 2004 CIWMB study, a 2009 United Nations Environment Programme Report on Marine Litter, and Environment California, a non-profit organization, polystyrene foam litter breaks down into smaller, non -biodegradable pieces that pose significant threats to marine and other wildlife from ingestion, and poses an environmental threat to creeks and waterways due to its potential for clogging estuaries; and WHEREAS, according to Cal Recycle, polystyrene foam litter contaminates the public drainage systems, requiring the expenditure of limited public infrastructure maintenance resources for removal and disposal, and; WHEREAS, over one hundred -twenty jurisdictions in California have adopted ordinances banning the use of polystyrene foam packaging, with local and national businesses successfully replacing polystyrene packaging with affordable, durable, recyclable and/or biodegradable alternatives; and WHEREAS, although clean polystyrene is recyclable, there are no curbside polystyrene recycling programs within Sonoma County due to its low density and high transportation cost; and WHEREAS, Petaluma is situated near the Sonoma Coast and near waterways which drain to the marine environment, and marine animals and birds often confuse polystyrene foam pieces with food and ingest them, which often leads to death, according to Environment America, a non-profit; and WHEREAS, it is the desire of the City of Petaluma to preserve natural resources, protect wildlife and natural habitat, reduce waste, litter and marine pollution and protect the public health, safety and welfare NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Petaluma as follows: Section 1. Recitals. The above recitals are hereby declared to be true and correct and hereby incorporated into this ordinance as findings of the City Council. Section 2. CEQA Compliance. The City Council finds this ordinance is exempt from environmental review under the California Environmental Quality Act ("CEQA") pursuant to Section 15061(b)(3) of Title 14 of the California Environmental Code of Regulations because it can be seen with certainty that there is no possibility that the ordinance will have a significant negative effect on the environment, and on the separate but related ground that the ordinance is an action of the City to assure the maintenance, restoration, enhancement, or protection of the environment where the regulatory process involves procedures for protection of the environment in accordance with Section 15308 of the CEQA Guidelines. The restrictions on polystyrene products contained in the proposed ordinance constitute regulatory procedures for protection of the environment in accordance with Section 15308 of th3 CEQA Guidelines because the ordinance provisions will reduce the negative environmental impacts of disposal of polystyrene products. Section 3. Authority. The City Council adopts this ordinance in reliance on the City's police power as a California municipal corporation and charter city pursuant to Article XI, Sections 5 and 7, of the California Constitution. Section 4. Chapter 8.17 Entitled "Sale and Use of Polystyrene Foam Products" is hereby added to the Petaluma Municipal Code to read as follows: 8.17.010 Purpose. The purpose of this chapter is to regulate the sale and use of specified disposable food service ware and other products containing polystyrene foam in the city to protect the environment and the public health, safety and welfare from the environmental impacts of such products. Large volumes of polystyrene foam products are disposed of in Sonoma County, and such products are not fully biodegradable, and currently have no locally available, economically feasible recycling program. Polystyrene foam products also pose a threat to marine and other wildlife as well as to creeks and waterways and contaminate the public drainage system. This chapter is intended to reduce the environmental and public health, safety and welfare threats from disposal of polystyrene foam products. 8.17.020 Definitions. For purposes of this Chapter, the following definitions shall apply: A. "City" means the City of Petaluma, California, a California municipal corporation and charter city, and the area within the territorial limits of the City. B. "Disposable food service ware" includes all containers, bowls, plates, trays, cartons, cups, lids, straws, stirrers, forks, spoons, knives, napkins and other food ware items designed for one-time use for prepared foods, including, without limitation, service ware for take-out foods and/or leftovers from partially consumed meals prepared by food providers. The term "disposable food service ware" does not include items composed entirely of aluminum. C. "Food provider" means any vendor, business, organization, entity, group or individual, and includes retail food establishments located or providing food within the city that offer food or beverages for sale or purchase to the public. D. "Person" means natural person, joint venture, joint stock company, partnership, association, club, company, corporation, business, trust, organization, or the manager, lessee, agent, servant, officer or employee of any of them. E. "Polystyrene foam" means blown polystyrene and expanded and extruded foams (sometimes called Styrofoam TNI) which are thermoplastic, petrochemical materials utilizing a styrene monomer processed by any number of techniques including, but not limited to, fusion of polymer spheres (expandable bead polystyrene), injection molding, foam molding, and extrusion -blown molding (extruded foam polystyrene). Polystyrene foam is generally used to make cups, bowls, plates, trays, clamshell containers, meat trays and egg cartons. Polystyrene products subject to this chapter are those imprinted with the number 6 resin identification code, as illustrated by the number six inside a triangle with three arrows (lam). F. "Prepared food" means food or beverages prepared for consumption within the city, using any cooking or food preparation technique. Prepared food includes food prepared for consumption off the food provider's premises, also known as "take-out" food. G. "Retail vendor" means any store or other business that sells retail goods or merchandise and that is located or operating within the city. 8.17.020 Prohibited polystyrene food service ware and products. Beginning on and after May 1, 2020, except as otherwise provided in this chapter, food providers shall not sell, hand out, give away, distribute or otherwise make available for public or customer use prepared food in disposable food service ware that contains polystyrene foam. 8.17.030 Prohibited polystyrene retail sales. Beginning on and after May 1, 2020, except as otherwise provided in this chapter, no retail vendor shall sell, rent or otherwise provide any disposable food service ware which is composed in whole or in part of polystyrene foam, and no retail vendor shall sell, rent or otherwise provide the any of following products that contain polystyrene foam: A. coolers, ice chests, or similar containers, unless they are wholly encapsulated or encased within a more durable material so as to be durable and reusable; B. pool or beach toys, not including personal floatation devices such as life jackets; and C. packing peanuts or other packaging materials. 8.17.040 Exemptions. A. The City Manager or the City Manager's designee may waive the applicability of this chapter to food providers and retail vendors for a one-year period upon the City Manager or City Manager's designee determining, in his or her sole discretion, that this chapter would create an undue hardship or practical difficulty not generally applicable to other persons. To be eligible for waiver, food providers and retail vendors must apply in writing to the City Manager's office documenting how this chapter would create an undue hardship. Determinations regarding waiver applications shall be in writing. Waivers may be granted in whole or in part, with or without conditions, and shall expire one year after issuance without further action of the city. To renew a waiver granted pursuant to this paragraph, food providers and retail vendors must reapply at least 30 days prior to expiration of the waiver. Renewal waiver applications are subject to the same requirements as new waiver applications. B. Foods prepared or packaged outside the city and sold inside the city are exempt from the provisions of this chapter. C. Polystyrene products, that such as insulation or personal flotation devices, that are completely encased in a more durable material are exempt from the provisions of this chapter. Examples of such exempted products include, but are not limited to, surfboards, boats, life preservers, construction materials, craft supplies, and coolers in which polystyrene materials are encased in more durable material. D. Packaging for raw, uncooked meat and fish is exempt from the provisions of this chapter. 8.17.050 Enforcement and penalties. A. Informal resolution. The city may in the city's sole discretion seek informal resolution of violations of this chapter. B. Violations a nuisance. Violations of this chapter are hereby declared to be public nuisances in accordance with Chapter 1.10 of this code, and subject to enforcement in accordance with Chapter 1. 10, Code Enforcement Generally, Chapter 1. 13, Violations Enforced by Civil Action, Chapter 1. 14, Administrative Enforcement, and Chapter 1. 16, Administrative Citations, of this code. C. Business license revocation. The city business licenses of persons in violation of this chapter are subject to suspension or revocation in accordance with Section 6.01.350 of this code. 8.17.060 No city duty created. This chapter does not create, and may not be construed so as to create, any city duty to implement or enforce the requirements of this chapter. 8.17.070 No cause of action against the City. To the maximum extent permitted by law, nothing in this chapter may be construed to create a cause of action against the city or a basis for seeking an award of attorneys' fees against the city pursuant to the private attorney general's statute in California Code of Civil Procedure Section 1021.5 or on any other basis arising from or related to alleged violations of the requirements of this chapter and/or based on or related to the city's prosecution or enforcement or alleged failure to prosecute or enforce such alleged violations, and/or based on or related to the city's implementation or alleged failure to implement the requirements of this chapter. Section 5. Severability. If any section, sentence, clause or phrase of this ordinance or the application thereof to any entity, person or circumstance is held for any reason to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of this ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are severable. The City Council hereby declares that it would have adopted this ordinance and each section, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. 7 Section 6. Effective Date. This ordinance shall become effective thirty (30) days after its adoption by the City Council. By their express terms, the prohibitions in Sections 8.17.020 and 8.17.030 will not become effective until May 1, 2020. Section 7. Publication. The City Clerk is hereby directed to post and/or publish this ordinance or a synopsis for the period and in the manner provided by the City Charter and any other applicable law. The City Clerk is also hereby directed to file a Notice of Exemption concerning this ordinance with the Office of the Sonoma County Clerk in accordance with Section 15062 of the CEQA Guidelines. INTRODUCED and ordered posted this 21 st day of October 2019. ADOPTED this _ day of , 2019 by the following vote: Ayes: Noes: None Abstain: None Absent: None Teresa Barrett, Mayor ATTEST: Claire Cooper, CMC, City Clerk Eric W. Danly, City Attorney 10