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AGENDA BILL Agenda Item No. 7(B) Date: August 20, 2013 To: El Cerrito City Council From: Garth Schultz, Operations + Environmental Services Manager Subject: Proposed Food Ware Ordinance ACTION REQUESTED Introduce by title, waive any further reading, and approve an ordinance amending the El Cerrito Municipal Code (ECMC) by adding Chapter 8.24 – El Cerrito Food Ware Ordinance. BACKGROUND Litter pollution on streets and in gutters, storm drains, creeks, and San Francisco Bay is a major environmental quality and compliance concern in El Cerrito and the entire Bay Area. Certain components of litter – including expanded (EPS) food ware – have been identified locally, regionally, and state-wide as being particularly problematic. EPS food ware is difficult to keep from becoming litter, is when littered, and can be challenging to remove from the environment once littered. In order to reduce EPS litter and promote environmental sustainability, over 72 cities and counties in California have adopted ordinances banning the use of EPS food ware by food service businesses. Current EPS food ware ordinances typically prohibit the distribution of EPS food ware by food service businesses. El Cerrito’s neighboring commercial districts in Albany and Richmond already enforce similar food ware ordinances, and the City of San Pablo is currently considering an ordinance for future adoption. Because of the nature of El Cerrito’s border with Richmond along San Pablo Avenue, customers already have limited access to EPS food ware along the Avenue. The El Cerrito Environmental Quality Committee (EQC) has expressed interest in banning EPS food ware for use by food service businesses since 2009. In partnership with staff, the EQC applied for grant funds to educate food service businesses about alternative food ware products, provide incentive funds to those that started using compostable food ware, and inform the food service community about the potential for an El Cerrito food ware ordinance. In 2011, EQC members drafted a model food ware ordinance and recommended that staff seek Council adoption of an ordinance that would include food service businesses and El Cerrito government operations. On July 9, 2013, the EQC passed a motion recommending that the City Council adopt the proposed Food Ware Ordinance. ---PAGE BREAK--- Agenda Item No. 7(B) Page 2 DISCUSSION Proposed Food Ware Ordinance El Cerrito City staff modified a draft ordinance written by members of the EQC. The proposed Food Ware Ordinance would: 1. Prohibit food providers and City facilities, Departments, franchisees, contractors, vendors and caterers (doing business with the City) from providing prepared food to customers in disposable food ware made from EPS. 2. Require any of the above using disposable food ware to use compostable, recyclable, or reusable food ware, with strong encouragement for reusable food ware; this includes all individuals, entities and organizations using City facilities. 3. Provide for a penalty levied against noncompliant business owners as infractions of the El Cerrito Municipal Code. 4. Provide for a number of exemptions from the provisions of the Ordinance, including an exemption for food providers who can demonstrate undue economic hardship or when suitable compostable, recyclable or reusable food ware alternatives do not exist. 5. Become effective January 1, 2014 and enforceable on July 1, 2014. Public Outreach and Comments The City of El Cerrito initiated outreach on a draft Food Ware Ordinance in May 2013. Public outreach included: • Letters to all potentially affected businesses in September 2011 and June 2012 announcing the City’s interest in a ban on EPS food ware, inviting them to public meetings, and announcing incentive funds for compostable food ware products. • EQC members canvassing all potentially affected food service businesses in El Cerrito, inviting them to the public meetings and announcing the incentive funds. • Public meetings in September 2011 and August 2012 for food service businesses, discussing City plans for a food ware ordinance, detailing alternative food ware products, and how to access $110 in incentive funds to switch to compostable products (a total of 5 incentive fund applications were received and funded). • Direct postcard mailing in three languages (same as referenced in Staff Report on Single-Use Bag Ordinance) to all potentially affected business locations and billing addresses announcing a public comment period from May 15, 2013 through July 15, 2013. ---PAGE BREAK--- Agenda Item No. 7(B) Page 3 • Four week published advertisement in the El Cerrito Journal soliciting public comment during the public comment period. • Public comment meetings and discussion with the Environmental Quality Committee on June 11 and July 9, and presentation and public comment with members of the El Cerrito Chamber of Commerce on June 18. • Posting the draft Ordinance online at www.el-cerrito.org/bagsandfoam as well as sending notifications to over 800 email subscribers, and posting on Twitter. The public outreach process yielded 25 public comments from individuals and organizations, with 4 comments expressing opposition to the Ordinance and 21 comments expressing support. The City received letters of opposition from the California Restaurant Association and the American Chemistry Council. Letters of support were received from Friends of Five Creeks, Citizens for East Shore Parks, the Golden Gate Audubon Society, the Sierra Club, and Clean Water Action. The main themes expressed by the public comments are discussed below: Alternatives Too Costly and Don’t Perform All of the comments in opposition to the proposed Ordinance stated EPS food ware is at least half as expensive as alternative food ware products. Additionally, they state that EPS products perform better as food ware than the alternatives. Per these comments, requiring food service businesses to use EPS alternatives would result in undue hardship for those businesses currently using EPS. Staff has confirmed that the claims about the relative costs of EPS vs. alternative products is correct, and recognizes that there may be cases where suitable alternatives don’t exist. As such, business that can demonstrate undue hardship due to the elimination of EPS foam, should apply to the City Manager for exemption from the requirements of the Ordinance. No Decrease in Litter The letters of opposition from industry representatives site studies claiming that, while EPS litter does decrease following a ban on EPS food ware, the total amount of litter does not decrease because paper and other food ware litter increases. Assuming this is the case, from a litter control perspective it is better to reduce the prevalence of problematic litter like EPS – which doesn’t biodegrade, but does break down into smaller pieces and which floats – than to allow its presence at current levels. Health Impacts of Styrene Overstated The letter of opposition received from the American Chemistry Council noted that the statements about the questionable human health impacts of styrene, which were included in the draft Ordinance that was circulated for public comment, were incorrect. Staff and members of the EQC had originally included these statements as a means of exhibiting precaution with respect to the any potential health impacts attributable to the styrene in EPS. However, since avoiding potential health impacts is not the primary intent of the proposed Ordinance, staff has removed all such references from the Ordinance. ---PAGE BREAK--- Agenda Item No. 7(B) Page 4 Next Steps if Adopted Prior to January 1, 2014, City staff plans to send a mailer to the approximately 250 potentially affected business owners, to host community meetings, and to provide signs to business owners to inform customers about the Ordinance. Staff will conduct another similar round of outreach prior to July 1, 2014, when enforcement activities are proposed to begin. Enforcement of the Ordinance is expected to be largely complaint based and will be conducted via administrative citation as per ECMC Sections 1.08 and 1.14. Per, the ECMC, the City Manager may designate enforcement officers to issue administrative citations. Penalties for non-compliance start at $100 for the first violation and can be up to $500 per violation. STRATEGIC PLAN CONSIDERATIONS Adoption of the proposed Food Ware Ordinance would help fulfill Goal F – Foster environmental sustainability citywide – as detailed in the City of El Cerrito Strategic Plan, adopted March 2013. Specifically, adoption of the proposed Ordinance would contribute to achieving the following strategies: • Implement policies to promote waste diversion ban on single-use bags and EPS food containers). Adoption of the proposed Ordinance would complete one example stated in this strategy. • Implement the City’s Climate Action Plan. Adoption of the proposed Ordinance would contribute to meeting Objective W-1.4 of the Climate Action Plan (Bans on problematic materials). ENVIRONMENTAL CONSIDERATIONS If adopted, the Food Ware Ordinance would reduce EPS litter on El Cerrito streets and public spaces, reduce the presence of EPS litter in storm drains and creeks (the City is required to eliminate trash in stormwater per the Municipal Regional Stormwater Permit), and reduce waste management inefficiencies attributed to EPS food ware. FINANCIAL CONSIDERATIONS Implementation of the Ordinance would require the use of limited budgeted funds and staffing for outreach, education, and enforcement activities in the Public Works Department, Operations + Environmental Services Division. No additional funding or staffing will be needed to implement and enforce the Ordinance. The City may avoid unknown future costs due to litter control and complying with the Municipal Regional Permit as a result of the Ordinance. LEGAL CONSIDERATIONS The City Attorney has reviewed the draft Ordinance and found that legal considerations have been addressed. ---PAGE BREAK--- Agenda Item No. 7(8) Scott Hanin, City Manager Attachments: 1. Draft Food Ware Ordinance Page 5 ---PAGE BREAK--- 1 ORDINANCE NO. 2013–YY AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF EL CERRITO PROHIBITING THE USE OF EXPANDED DISPOSABLE FOOD WARE AND ENCOURAGING THE USE OF COMPOSTABLE, RECYCLABLE AND REUSABLE FOOD WARE SECTION 1. Findings. WHEREAS, expanded (EPS) disposable food ware has been associated with considerable environmental impacts, including being a problematic component of litter, which is and costly to clean up; and WHEREAS, littering EPS food ware can result in blocked storm drains, fouled waterways, and increased marine debris; and WHEREAS, EPS food ware is commonly used by food providers in the City of El Cerrito, and has limited recycling potential; and WHEREAS, the City of El Cerrito has a substantial interest in protecting its waterways, environment, and taxpayers from the negative impacts of EPS food ware; and WHEREAS, restricting the use of EPS food ware products and replacing non- compostable, non-reusable, or non-recyclable food service ware with compostable, reusable, or recyclable food service ware products will further protect waterways and promote environmental sustainability; and WHEREAS, compostable food ware products such as cups, plates, bowls and hinged containers are available in local stores, are increasingly available in the food service market; and WHEREAS, many businesses in Bay Area cities engage in organics recycling and have demonstrated that the use of compostable food ware can reduce disposal costs when the products are taken to composting facilities as part of an organics recycling program rather than disposed in a landfill; and WHEREAS, this proposed Ordinance will preserve and enhance the environment within the City of El Cerrito and is exempt from the requirements of the California Environmental Quality Act (“CEQA”), as amended, pursuant to Section 15061(b)(3) or Section 15308 of the CEQA Guidelines. NOW THEREFORE, the City Council of the City of El Cerrito does hereby ordain as follows: SECTION 2. Amendment of Municipal Code. Title 8 of the El Cerrito Municipal Code is hereby amended to add a new Chapter 8.24 and shall read as follows: Agenda Item No. 7(B) Attachment 1 ---PAGE BREAK--- 2 8.24.010 - Title. This Ordinance shall be known as the El Cerrito Food Ware Ordinance. The City of El Cerrito hereinafter shall be called "City." This Ordinance shall be applicable in the incorporated territory of the City. 8.24.020 - Operative Date. This Ordinance shall become operative on January 1, 2014 and shall become enforceable on July 1, 2014. 8.24.030 - Purpose. It is the intent of the City of El Cerrito in enacting Chapter 8.24 to eliminate the use of expanded food ware and to encourage the use of reusable, recyclable or compostable food containers by food providers and customers in El Cerrito. 8.24.040 - Definitions. The following definitions apply to this Ordinance: A. “ASTM Standard” means meeting the standards of the American Society for Testing and Materials (ASTM) International standards D6400 or D6868 for compostable materials, as those standards may be amended. B. “Compostable” means the product is capable of composting and is labeled in accordance with California law, or is consistent with the timeline and specifications of ASTM D6400 and D6868, without regard to material type. C. “City Facilities” means any building, structure or vehicle owned or operated by the City of El Cerrito, its agents, agencies, departments or franchisees. D. “Customer” means any member of the public obtaining Prepared Food from a Food Provider. E. “Disposable Food Ware” means all containers, bowls, plates, trays, cartons, cups, forks, spoons, and knives and other items that are designed for one-time use for Prepared Foods, including service ware for take-out foods and/or leftovers from partially consumed meals prepared by Food Providers. This term does not include lids or straws. F. “Food Provider” means any vendor, business, organization, entity, group or individual, including any Restaurant or Retail Food Establishment, located or operating within the City of El Cerrito or providing food or beverage to the public, and any provider of Prepared Food at organized or special events occurring within the boundaries of the City of El Cerrito. ---PAGE BREAK--- 3 G. “Expanded or “EPS” means and includes blown and expanded and extruded foams (sometimes called Styrofoam, a Dow Chemical Co. trademarked form of Expanded insulation) which are thermoplastic petrochemical materials utilizing a styrene monomer and processed by any number of techniques including, but not limited to, fusion of polymer spheres (expandable bead injection molding, foam molding, and extrusion-blow molding (extruded foam Expanded is generally used to make cups, bowls, plates, trays, clamshell containers, meat trays and egg cartons. H. “Prepared Food” means food or beverages, which are served, packaged, cooked, chopped, sliced, mixed, brewed, frozen, squeezed or otherwise prepared on the Food Provider's premises. For the purposes of this ordinance, Prepared Food does not include raw, butchered meats, fish and/or poultry sold from a butcher case or similar retail appliance. Prepared Food may be eaten either on or off the premises, also known as "take-out food". I. “Restaurant” means a restaurant, take-out food establishment, or any other business that receives 90% or more of its revenue from the sale of Prepared Food to be eaten on or off its premises. J. “Retail Food Establishment” means any store, shop, sales outlet, or other establishment, other than a Restaurant, including but not limited to a grocery store, delicatessen, mobile food preparation and sale unit, drive-in, coffee shop, cafeteria, short-order cafe, luncheonette, grill, sandwich shop, hotel, motel, movie house, theatre, bed and breakfast inn, tavern, bar, cocktail lounge, roadside stand, take-out Prepared Food place, industrial feeding establishment, catering kitchen, commissary, special event, food market, produce stand, food stand, or similar place in which food or drink is prepared for sale, or for service, on the premises or elsewhere, and any other establishment or operation where food is processed, prepared, stored, served or provided to Customers. K. “Recyclable” means material that can be sorted, cleansed, and reconstituted using El Cerrito’s available recycling collection programs for the purpose of using the altered form in the manufacture of a new product. “Recycling” does not include burning, incinerating, converting, or otherwise thermally destroying solid waste. L. “Reusable” means all materials in the product or package will be used more than once in its same form by the customer, food vendor or other reuse programs. Reusable food ware includes: food or beverage containers, packages or trays, such as, but not limited to, soft drink bottles and milk containers that are designed to be returned to the distributor by the customer that is provided take-out containers. Reusable also includes durable ---PAGE BREAK--- 4 containers, packages or trays used on-premises or returnable containers brought back to the food vendor. M. “Reusable Food Ware” means all containers, bowls, plates, trays, cartons, cups, and other items that are designed for prolonged use, including but not limited to ceramic, glass, porcelain, and metal food ware. 8.24.040 – EPS Food Ware Prohibited. A. Except as provided in this Chapter, Food Providers are prohibited from providing Prepared Food to Customers in Disposable Food Ware made from Expanded B. Except as provided in this Chapter, all City Facilities are prohibited from using Expanded Disposable Food Ware and all City Departments and Agencies will not purchase or acquire Expanded Disposable Food Ware for use at City Facilities or events. C. Except as provided in this Chapter, all City franchisees, contractors, vendors and caterers doing business with the City shall be prohibited from using Expanded Disposable Food Ware in City Facilities, at City events or on City projects within the City of El Cerrito. 8.24.060 – Permitted Disposable Food Ware. A. All Food Providers using any Disposable Food Ware will use Compostable, Recyclable or Reusable Food Ware. All Food Providers are strongly encouraged to use Reusable Food Ware in place of using Disposable Food Ware for all food served on-premises. A Food Provider may price its products or services to customers in a manner to cover any cost differential. B. All City Facilities using any Disposable Food Ware will use Compostable, Recyclable or Reusable Food Ware. All City Facilities are strongly encouraged to use Reusable Food Ware in place of using Disposable Food Ware for all food served on-premises. C. All City franchisees, contractors, vendors and caterers, when doing business with the City, will use Compostable, Recyclable or Reusable Food Ware. All City Facilities are strongly encouraged to use Reusable Food Ware in place of using Disposable Food Ware for all food served on-premises. D. All individuals, entities or organizations using City Facilities for public or private events shall comply with the requirements in this Chapter. ---PAGE BREAK--- 5 8.24.080 – Exemptions. A. Prepared Foods that are prepared or packaged outside the City of El Cerrito as well as Prepared Foods prepared and packaged in the City of El Cerrito for use outside of the City of El Cerrito are exempt from the provisions of this Chapter. Purveyors of food prepared or packaged outside the City of El Cerrito are encouraged to follow the provisions of this Chapter. B. Food Providers may be exempted from the provisions of this Chapter for specific items or types of Disposable Food Ware if the City Manager or his/her designee finds that a suitable Compostable, Reusable or Recyclable alternative does not exist for a specific application and/or that imposing the requirements of this Chapter on that item or type of Disposable Food Ware would cause undue hardship. C. Any Food Provider or City Facility may seek an exemption from the requirements of this Chapter by filing a request in writing with the City Manager. The City Manager may waive any specific requirement of this Chapter for a period of not more than one year if the Food Provider or City Facility seeking the exemption has demonstrated that strict application of the specific requirement would cause undue hardship. D. A Food Provider or City Facility granted an exemption must re-apply prior to the end of the one year exemption period and demonstrate continued undue hardship if the Food Provider or City Facility wishes to have the exemption extended. The City Manager's decision to grant or deny an exemption or to grant or deny an extension of a previously issued exemption shall be in writing and shall be final. E. Expanded coolers and ice chests that are intended for reuse are exempt from the provisions of this Chapter. F. In a situation deemed by the City Manager or his/her designee to be an emergency, or in the event that a local emergency or disaster has been declared in effect, for the immediate preservation of the public peace, health or safety, City Facilities, Food Providers, City franchisees, contractors, vendors and caterers doing business with the City shall be exempt from the provisions of this Chapter. 8.24.140 – Enforcement and Violation – Penalty. A. Any violation of this ordinance is punishable as specified in Chapters 1.08 or 1.14 of the El Cerrito Municipal Code or by any other applicable law. B. The City Manager or his or her designee has primary responsibility for enforcement of this Ordinance. The City Manager is authorized to promulgate ---PAGE BREAK--- 6 regulations and to take any and all other actions reasonable and necessary to enforce this Ordinance, including, but not limited to, investigating violations, issuing fines and entering the premises of any Food Provider during business hours. Other City of El Cerrito staff may assist with this enforcement responsibility by entering the premises of a Food Provider as part of their regular inspection functions and reporting any alleged violations to the City Manager. SECTION 3. Compliance with the California Environmental Quality Act. Pursuant to Title 14 of the California Administrative Code, the City Council finds that this Ordinance is exempt from the requirements of the California Environmental Quality Act (CEQA) for the following reasons: under Section 15061 it is not a project which has the potential for causing a significant effect on the environment; under Section 15308, it is an authorized action by an agency with regulatory authority for the purpose of assuring the maintenance, restoration, enhancement, or protection of the environment. SECTION 4. Severability. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid by a decision of any court of competent jurisdiction, that decision will not affect the validity of the remaining portions of the Ordinance. The City Council of the City of El Cerrito hereby declares that it would have passed this Ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of this Ordinance would be subsequently declared invalid. SECTION 5. No Conflict with Federal or State Law. Nothing in this Ordinance is intended to create any requirement, power or duty that is in conflict with any federal or state law. SECTION 6. Effective Date. This Ordinance shall take effect on January 1, 2014 and be enforced on July 1, 2014; prior to the expiration of fifteen (15) days from the passage thereof, the Ordinance or a summary thereof shall be posted or published as may be required by law, and thereafter the same shall be in full force and effect. The foregoing Ordinance was introduced at a regular meeting of the City Council on August 20, 2013, and passed by the following vote: AYES: NOES: ABSENT: ---PAGE BREAK--- 7 Adopted and ordered published at a regular meeting of the City Council held on the Month, Day, 2013, and passed by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: APPROVED: Gregory B. Lyman, Mayor ATTEST: Cheryl Morse, City Clerk IN WITNESS of this action, I sign this document and affix the corporate seal of the City of El Cerrito on 2013. Cheryl Morse, City Clerk