HomeMy WebLinkAboutStaff Report 3.G 11/18/2019Agenda Item #3.G
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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
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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.
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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
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