HomeMy WebLinkAboutPresentation 07/02/2012 (2) Pre/se akto-w (Mck )
SONOMA COUNTY
Waste
Management
Agency
Summary:
Analysis of Carryout Bag Ordinance: Type and Provisions
Date: May 29, 2012
To: SCWMA Member Jurisdictions
From: Henry Mikus, SCWMA Executive Director
On behalf of its 10 member jurisdictions (the 9 cities plus the unincorporated areas of Sonoma
County) the Sonoma County Waste Management Agency (SCWMA) has been engaged in
studying and developing a single-use carryout bag ordinance. All 10 SCWMA members have
expressed support for the project's continued work. Most recently, SCWMA conducted
numerous "stakeholder meetings" to explain the project to our community and solicit public
comment. This input was then used to develop an initial draft ordinance, which is now being
distributed to our member jurisdictions for their comments.
The draft ordinance includes provisions for banning the point of sale distribution of single-use
plastic bags, and imposition of a $.10 fee for sale of paper bags. Any retail establishment that
sold merchandise, clothing, food or personal items would be included, while restaurants would
be exempt. Special types of bags, such as those used to segregate food or merchandise to
avoid contamination, would also not be affected by the ban.
The ordinance method, either done regionally by SCWMA, or as a model ordinance adopted by
the member jurisdictions individually, also has yet to be determined. The regional method
provides the greatest consistency across jurisdictional boundaries, and minimizes expense and
risk to the member jurisdictions, as the expense of the project including litigation would be
borne by SCWMA. A model ordinance would provide the adopting members with individual
control, but would require them to bear significant expense and exposure to risk.
Some member jurisdictions prefer the model route because they would not relinquish control.
However, other members prefer the regional approach because they are unwilling to expend
their own funds and because of their exposure to risk.
The enforcement mechanism also requires further discussion. Some jurisdictions are reluctant
to allowing enforcement action within their boundaries by others. However, steps can be taken,
by adoption of a separate SCWMA administrative enforcement ordinance that could in turn be
adopted by individual members, that would allow member jurisdictions to conduct their own
enforcement activities on a regional ban.
2300 County Center Drive,Suite B 100,Santa Rosa,California 95403 Phone:707.565.2231 Fax:707.565.3701 www.recvclenow.orq
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SONOMA COUNTY
Waste
Management
A;enc1
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 member jurisdictions 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 draft
ordinance 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 divergent opinion among 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 expense and risk this method would provide for them. The grocery industry has
indicated quite strongly that they prefer the regional approach.
Summary of Draft Ordinance:
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
ordinances from other jurisdictions in the state that have not been challenged. Following is a
brief description of the preliminary draft ordinance.
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Any retail establishment that sold 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 recycled paper bag for sale to the customer at no less than 10 cents
per bag. This cost would 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 apply at point 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 included, 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
bags would 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 per bag 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.
At this point in the project's progress, either the regional or model ordinance types are
considered viable.
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,
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1D
all of which have the ability to adopt ordinances.
Adopting a countywide carryout bag waste reduction ordinance 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 ordinance in order to use their own 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 SCWMA Greatest Less Least
Funds
Expenditure of Member Least Greater Greatest
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 to unlikely to be adopted
adoption, concern about members, unlikely to be uniformly
jurisdictional adopted uniformly
sovereignty
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 comment received from the
commercial sector on an ordinance has been support for regional consistency.
As a SCWMA ordinance, it is the SCWMA's responsibility 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 for the 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
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IT
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 necessary CEQA 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 to 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 CEQA document and adoption of the ordinance by
a member jurisdiction would be borne by the member jurisdictions. There is precedent from
the primary litigant for these types of ordinances to target jurisdictions which do not have 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 in effect in some jurisdictions, but not in others.
If the model ordinance could be adopted uniformly by all member jurisdictions, there is a
negligible impact on 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 have a negative effect on the ordinance's consistency.
Individual Member Jurisdiction Ordinances
Some of our member jurisdictions have 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 least cost 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 conflict regarding enforcement, as each jurisdiction
would be responsible for enforcing their ordinance. However, given there have been some
2300 County Center Drive,Suite B100 Santa Rosa,California 95403 Phone:707.565.2231 Fax:707.565.3701 www.recyclenow.oro
Printed on Recycled Paper @ 100%post-consumer content
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jurisdictions expressing their reservations to expend any funds to complete this project, it is
very likely the ordinance would 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.
2300 County Center Drive,Suite B100 Santa Rosa,California 95403 Phone:707.565.2231 Fax:707.565.3701 www.recyclenow.orq
Printed on Recycled Paper @ 100%post-consumer content
SONOMA COUNTY WASTE MANAGEMENT AGENCY
ORDINANCE NO. 2012- 1
AN ORDINANCE OF THE BOARD OF DIRECTORS OF THE 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 to exercise 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 as 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.
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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 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 other point of departure for the purpose of
transporting food or merchandise out of the establishment that contains no
old growth fiber and a minimum of forty percent (40%) Post-consumer
Recycled Material; is one hundred percent (100%) recyclable; and has
printed in a highly visible manner on the 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 and byproducts 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 be eaten on or off its
premises.
H. "Retail Establishment" means any commercial establishment that 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.
I. "Reusable Bag" means either a bag made of cloth or other machine
washable fabric that has handles, or a durable plastic bag with handles that
is at least 2.25 mil thick and is specifically designed and manufactured for
multiple reuse. A Reusable Bag provided by a Retail Establishment shall
be designed and manufactured to withstand repeated uses over a period of
time; made from a material that can be cleaned and disinfected; and shall
not contain 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, point 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 without
handles provided to the Customer (1) to transport produce, bulk food or
meat from 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 or merchandise that could damage or
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contaminate other food or merchandise when placed together in a
Reusable Bag or Recycled Paper Bag.
Single-Use Carryout Bags.
A. On and after July 1, 2013, no Retail Establishment shall provide a Single-
Use Carryout Bag to a Customer at the check stand, cash register, point
of sale or other point of departure 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).
C. On and after July 1, 2014, a Retail Establishment may make available for
sale to a Customer a Recycled Paper Bag for a minimum charge of
twenty-five cents ($0.25).
D. Notwithstanding this Section, no Retail Establishment may make available
for sale a Recycled Paper Bag unless the amount of the sale of the
Recycled Paper Bag is separately itemized on the sales receipt.
Recordkeeping and Inspection.
Every Retail Establishment shall keep complete and accurate record or
documents of the purchase and sale of any Recycled Paper Bag by the Retail
Establishment, 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
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law. In 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.
Penalties.
Violations of this Ordinance shall be punishable as follows:
First Violation: $100
Second Violation within one year of the First Violation: $200
Third and subsequent Violation(s) within one year of the First Violation: $500
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 Directors 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.
SECTION 2. A summary of this Ordinance shall be printed and published
twice in the Santa Rosa Press Democrat, a newspaper of general circulation,
printed and published in the City of Santa Rosa, County of 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 , 2012,
and
PASSED AND ADOPTED this day of , 2012, by the
following vote:
AYES: Directors:
NOES: Directors:
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ABSENT: Directors:
ABSTAIN: Directors:
CHAIR
ATTEST:
AGENCY CLERK
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