CITY COUNCIL: Ordinance Amending Municipal Code Regarding Chlorofluorocarbon & Similar Packaging Materials Restrictions

Meeting Date: June 3, 2008
Prepared by: Rich Guillen

City Council
Agenda Item Summary

Name: Consideration of an Ordinance of the City Council of Carmel-by-the-Sea amending Section 8.68 of the Municipal Code regarding Chlorofluorocarbon and Similar Packaging Material Restrictions

Description: On March 21, 2008, the Monterey Regional Waste Management District (MRWMD) Board of Directors unanimously approved a model ordinance directed at eliminating the use of polystyrene (Styrofoam) fast-food take-out packaging. The intent of the policy is to reduce the volume of polystyrene litter found on area roadways, waterways and beaches. The MRWMD has asked that all area cities adopt policies to address this problem.

The City of Carmel-by-the-Sea was much in the vanguard of the movement to reduce food packaging litter, becoming the second California city (after Berkeley) to adopt an ordinance aimed at reducing take-out waste materials, back in 1989.

Since then, the problem of food packaging waste litter has not improved, but there has been a new array of alternative, recyclable and compostable materials available to food service providers.

Although Section 8.68 of the Carmel-by-the-Sea Municipal Code is 19 years old, the basic premises remain solid. The suggested amendments to the original ordinance merely strengthen and modernize it by adding more information about polystyrene (Styrofoam) packaging and adding specific penalties for noncompliance.

Overall Cost:
City Funds: None
Grant Funds: None

Staff Recommendation: Staff recommends that City Council approve the amendments to
Chapter 8.68 of the Municipal Code.

Important Considerations: As written, there would be a six-month grace period after
adoption of the ordinance for food service providers to use up their stock of noncompliant materials.

Decision Record: Ord. 89-14, 1989

Reviewed by:

______________________________ _________________
Rich Guillen, City Administrator Date


ATTACHMENT “A”
LOCAL STYROFOAM-FREE LIST
Among the known local restaurants, lodging establishments, and businesses that have
adopted Styrofoam-free policies are:
Doubletree/Portola
Pebble Beach Company
Brew Bar
Sardine Factory
Billy Lee restaurants
Country Club Catering
Volcano Grill
Crazy Horse
Estaban
Casa Munras
Wills
Bernardus
Michaels' Catering
Laguna Seca
Poppy Hills
Wild Thyme
Passionfish
Hyatt
McDonald's (all)
Taco Bell (all)
Jack in the Box (all)
Enzo's Pizza
Baldemiro's Taco Shop
Cuppers Coffee House
Patch's Sandwich Shop
El Guadalajara Deli
Mom's Home Cooking
Hula's
Red House Cafe
Tarpy's
Rio Grill
Willy's BBQ
Montrio
Cibo
Bird on a Wire
Carmel Valley Coffee Roasting
East Village Coffee Lounge - Monterey
Acme Coffee Roasting
Chris' Classic Confections
Café Lumiere
Parker-Lusseau
The Works Coffee Shop
Marriott
Old Fisherman's Grotto
Fish Hopper
Café Fina
Randy's Fishing
Community Hospital-Monterey Peninsula
CSU-Monterey Bay
Defense Language Institute
Whole Foods
Monterey Bay Aquarium
Chartwell School
Carmel Mission Basilica
Monterey Institute of Intl. Studies
Monterey Regional Waste Management
Monterey Farmer's Market
PG Farmer's Market
York School
Big Brothers Big Sisters
KRXA Radio
Delaware North Parks and Resorts
Asilomar State Beach/Conference Grounds
Martella Printing
Forest Hill Auto
Pacific Motor Services
Hans Auto Repair
Light and Motion Office
Monterey Bay National Marine Sanctuary
Renovations


CITY OF CARMEL-BY-THE-SEA
CITY COUNCIL
ORDINANCE NO. 2008-
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA AMENDING SECTION 8.68 OF THE MUNICIPAL CODE REGARDING CHLOROFLUOROCARBON AND SIMILAR PACKAGING MATERIAL RESTRICTIONS
________________________________________________________________________
WHEREAS, the City has taken a leadership role among California cities in enacting
legislation to protect the environment from the deleterious effects of food and consumer packaging litter caused by harmful materials such as chlorofluorocarbons and polystyrene; and

WHEREAS, industrial technology has advanced to include an array of alternative,
recyclable, and compostable materials available to food service; and

WHEREAS, the City joins with other neighboring cities in further strengthening
environmental protection of area roadways, fields, waterways and beaches.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA DOES ORDAINS AS FOLLOWS:

Chapter 8.68
CHLOROFLUOROCARBON, POLYSTYRENE AND SIMILAR
PACKAGING MATERIAL RESTRICTIONS
Sections:
8.68.010 Findings and Purposes.
8.68.020 Definitions.
8.68.030 Prohibited Food Packaging.
8.68.040 Degradable and Recyclable Food Packaging.
8.68.050 Regulation of Suppliers and Food Vendors.
8.68.060 Inspection of Records – Proof of Compliance.
8.68.070 Exemptions.
8.68.080 Existing Contracts.
8.68.090 City Purchases Prohibited.
8.68.100 Separate Food Packaging Waste Receptacles.
8.68.110 City Administrator’s Power.
8.68.120 Liability and Enforcement.

8.68.010 Findings and Purposes.

A. Solid waste that is nondegradable or nonrecyclable poses an acute problem
for any environmentally and financially responsible solid waste management
program. Such waste covers the City’s streets, parks, public places and open
spaces and results in environmental damage and disruption of the ecological
balance.

B. Products which are degradable or recyclable offer environmentally sound
alternatives to nondegradable and nonrecyclable products currently used. By
decaying into their constituent substances, degradable products, compared to their
nondegradable equivalents, are less of a danger to the natural environment and
less of a permanent blight on the City’s landscape.

C. The release of chlorofluorocarbons (“CFCs”) into the environment may
endanger public health and welfare by causing or contributing to significant
depletion of the stratospheric ozone layer. CFCs are manufactured chemicals that
remain in the atmosphere for decades, slowing migrating upwards without
reacting with any other chemicals.

D. Stratospheric ozone shields the Earth’s surface from dangerous ultraviolet
radiation. When CFC molecules react with ultraviolet light in the atmosphere they
break down, freeing chlorine atoms which catalyze the destruction of ozone. A
national and international consensus has developed that unabated use of CFCs is
resulting in depletion of stratospheric ozone. The Environmental Protection
Agency has determined that as stratospheric ozone levels drop, penetration of
ultraviolet radiation will increase resulting in potential health and environmental
harm. Direct effects are likely to include increased incidence of skin cancer and
cataracts, suppression of the immune response system and damage to crops and
aquatic organisms.

E. In the troposphere (the lower atmosphere), CFCs, along with other
chemicals, absorb infrared radiation, warming the Earth. Scientists predict that
global warming may melt polar ice, raise sea levels and flood low-lying coasts. It
may also disrupt agriculture due to shifts in global temperature and rainfall
patterns.

F. CFCs are widely used in blowing agents in the manufacture of plastic food
packaging. Moreover, while other foam products store or bank much of the CFCs
within them, food service products emit most of the CFC used in their
manufacture during the manufacture, use and disposal of the products.

G. The widespread use of CFC-processed food packaging poses a threat by the
introduction of toxic by-products into the atmosphere and environment of the
City. Restricting the sale of CFC-processed food packaging in retail food
establishments in the City would contribute to slowing ozone loss and greenhouse
gas buildup, thereby protecting the public health.

H. In addition to emitting CFCs, plastic food service items take hundreds of years to decompose and cannot be recycled. However, these food packaging items can be and are made from other materials, such as recycled or virgin paper, and other biodegradable products which are not made using CFCs.

I. Polystyrene foam is a petroleum processing by-product. Oil is a nonrenewable resource obtained by increasingly hazardous methods including off-shore drilling, which poses significant dangers to the environment. Alternative products which are degradable or recyclable pose less overall hazards than continued and expanded reliance on oil-based products.

J. Evidence indicates that all blowing agents currently used or proposed in connection with the manufacture of polystyrene foam pose dangers to the environment. Beyond the acknowledged dangers of CFCs, other blowing agents also create dangers.

K. Take-out food packaging constitutes the single greatest source of litter in the
City and is a significant contributor to the total amount of waste entering the
City’s waste stream. Reducing the amount of litter will further the health, safety
and welfare of the City.

L. Reduction of the amount of nondegradable and nonrecyclable waste that enters the waste stream and encouraging the use of recyclable containers further this goal.

M. The City borders the Monterey Bay National Marine Sanctuary, a federal preserve that supports one of the most diverse and delicate ecosystems in the world. Eliminating the use of chlorofluorocarbons, polystyrene and other harmful materials from all establishments with the City will help protect this Sanctuary.

MN. This chapter is consistent with the California Solid Waste Management and Resource Recovery Act of 1972 (Government Code Section 66700 et seq.).
(Ord. 89-14, 1989).

8.68.020 Definitions.
Except as otherwise defined or where the context otherwise indicates, the following defined words shall have the following meaning:

A. “Affordable” means that a biodegradable, compostable or recyclable product may cost up to 15 percent more than the purchase cost of the nonbiodegradable, non-compostable or non-recyclable alternative(s).

B. “ASTM Standard” means meeting the standards of the American Society for Testing and Materials International Standards D6400 or D6868 for biodegradable and compostable plastics, as those standards may be amended.

C. “Biodegradable” means the ability of organic matter to break down from a complex to a more simple form.

A D. “CFC-processed food packaging” means food packaging which uses chlorofluorocarbons as blowing agents in its manufacture.

B. E.“Chlorofluorocarbons (CFC)” means the family of substances containing
carbon, fluorine and chlorine and having no hydrogen atoms and no double bonds.

F. “City Facility” means any building, structure or vehicle owned and operated
by the city, its agents, agencies, and departments.

G. “City Contractor” means any person or entity that has a contract with the
city for work or improvement to be performed, for a franchise, concession, for
grant monies, goods and services, or supplies to be donated or to be purchased at
the expense of the city.

H. “Compostable” means all the materials in the product or package will break
down, or otherwise become part of usable compost (e.g. soil-conditioning material, mulch) in a safe and timely manner. Compostable disposable food service must meet ASTM-Standards for compostability and any bio-plastic or plastic-like product must be clearly labeled, preferably with a color symbol, to allow proper identification such that the collector and processor can easily distinguish the ASTM standard compostable plastic from non-ASTM standard compostable plastic.

C. I. “Customer” means any person purchasing food from a restaurant or retail
food vendor.

D.J. “Degradable food packaging” means food packaging which substantially
reduces to its constituent substances through degradation processes initiated by
natural organisms whose end products are substantially, but not necessarily
entirely, carbon dioxide and water; and plastic items designed to degrade when
exposed to ultraviolet light. Degradable food packaging does not include
cellulose-based items which have a synthetic or plastic coating comprising more
than five percent of the total volume of the item.

K. “Disposable Food Service Ware” means single-use disposable productsused in the restaurant and food service industry for serving or transporting prepared ready-to-consume food or beverages. This includes but is not limited to plates, cups, bowls, trays and hinged and lidded containers. This does not include single-use disposable items such as plastic straws, cup lids or utensils.

E. L.“Food packaging” means all food-related wrappings, bags, boxes, containers, bowls, plates, trays, cartons, cups, lids, straws or drinking utensils, on which or in which food is placed or packaged on the retail food establishment’s premises, and which are not intended for refuse. Food packaging does not include forks, knives or single-service condiment packages.

M. Food Provider” means any vendor located or providing food within the city which provides prepared food for public consumption on or off its premises and includes without limitation any store, shop, sales outlet, restaurant, grocery store, supermarket, delicatessen, catering truck or vehicle, or any other person who
provides prepared food; and any organization, group or individual which regularly
provides food as part of its services.

F. N.“Person” means an individual, a group of individuals, or an association, firm, partnership, corporation or other entity, public or private.

G. O. “Polystyrene Foam” means any styrene or vinyl chlorine polymer which is blown into a foam-like material. and includes expanded polystyrene that is a thermoplastic petrochemical material utilizing a styrene monomer and processed by any number of techniques including, but not limited to, fusion of polymer spheres (expandable bead polystyrene), injection molding, form molding, and extrusion-blow molding (extruded foam polystyrene).

H. “Polystyrene foam food packaging” means any food packaging which contains any polystyrene foam.

I. P. “Prepared Food” means any article intended for use as food, beverage, confection or condiment, or any article which is used or integrated for use as a
component of food or otherwise affecting the component of the food. food or beverage prepared for consumption on the food preparer’s premises, using any cooking or food preparation technique. This does not include any raw uncooked meat, poultry, fish or eggs unless provided for consumption without further food preparation. It is a policy goal of this city to encourage supermarkets and other vendors to eliminate the use of polystyrene foam for packaging unprepared food.

J. Q “Recyclable food packaging” means any food packaging including glass, cans, cardboard, paper, mixed paper or other items which can be recycled, salvaged, composted, processed or marketed by any means other than landfilling or burning, whether as fuel or otherwise, so that they are returned to use by society. It includes any material that is accepted by the special district recycling program, including, but not limited to paper, glass, aluminum, cardboard and plastic bottles, jars and tubs. Recyclable plastics comprise those plastics coded with recycling symbols #1 through #5.

K. R. “Restaurant” means any establishment located within the City selling prepared food to be consumed on or about its premises by customers.

L. S. “Retail Food vendor” Establishment means any store, shop, sales outlet or other establishment, including a grocery store or a delicatessen, other than a restaurant, located within the City, which sells take-out food shall include but is
not limited to, any place where food is prepared to include any fixed or mobile
restaurant, drive-in, coffee shop, public food market, produce stand, or similar
place which food and drink is prepared for sale or for service on the premises or
elsewhere.

T. “Special Events Promoter” means an applicant for any special events permit issued by the City or any City employee(s) responsible for a City-organized special event.

M. U. “Supplier” means any person selling or otherwise supplying food packaging to a restaurant or retail food vendor.

N. V. “Take-out Food” means prepared foods or beverages requiring no further preparation to be consumed and which are generally purchased for consumption off the retail food vendor’s premises.

O. “Wholesaler” means any person who acts as a wholesale merchant, broker, jobber or agent, who sells for resale. (Ord. 89-14, 1989).

8.68.030 Prohibited Food Packaging.

A. Restaurants.

1. Except as provided on CMC 8.68.070 and 8.68.080, no restaurant shall provide prepared food to its customers in CFC-processed food packaging or polystyrene foam food packaging, nor shall any restaurant purchase, obtain, keep, sell, distribute, provide to customers or otherwise use in its business any CFC-processed food packaging or polystyrene foam food packaging.

2. As to any food packaging obtained after the effective date of the ordinance codified in this chapter, each restaurant shall obtain from each of its suppliers a written statement executed by the supplier, or by a responsible agent of the supplier, stating that the supplier will not supply any CFCprocessed food packaging or polystyrene foam food packaging to that restaurant, that the supplier will note on each invoice for food packaging supplied to that restaurant that the packaging covered by the invoice is not CFC-processed food packaging or polystyrene foam food packaging, and the identity of the packaging’s manufacturer.

3. All contracts between a restaurant and a supplier entered into after the
effective date of the ordinance codified in this chapter shall include provisions
that the supplier will not supply any CFC-processed food packaging or polystyrene foam food packaging to that restaurant, that the supplier will note on each invoice for food packaging supplied to that restaurant that the packaging covered by the invoice is not CFC-processed food packaging or polystyrene foam food packaging, the identity of the packaging’s manufacturer; and that failure to comply with such provisions shall constitute a material breach of the contract.

4. Restaurants shall retain each supplier’s written statement for 12 months from the date of receipt of any food packaging from that supplier.

B. Retail Food Vendors.

1. Except as provided in CMC 8.68.070 and 8.68.080, no retail food vendor shall sell take-out food in CFC-processed food packaging or polystyrene foam food packaging, nor shall any retail food vendor purchase, obtain, keep, sell, distribute or provide to customers or otherwise use in its business any CFCprocessed food packaging or polystyrene foam food packaging.

2. All retail food vendors shall segregate, in their warehouses or other storage areas located within the City, food packaging used in their take-out food operations from other food packaging. Take-out food packaging containers or boxes shall be labeled as such and shall indicate that they contain food packaging which is not CFC-processed food packaging or polystyrene foam food packaging.

3. As to take-out food packaging obtained or purchased after the effective date of the ordinance codified in this chapter, each retail food vendor shall comply with the requirements of subsection (A)(2) and (A)(4) of this section.

4. All contracts for the purchase of take-out food packaging entered into after the effective date of the ordinance codified in this chapter shall comply with the provisions of subsection (A)(3) of this section.

C. Wholesalers.

1. No wholesaler located and doing business within the City shall sell, distribute or provide to customers or keep within the City any CFC-processed food packaging or polystyrene foam food packaging, except as provided in CMC 8.68.070 and 8.68.080.

2. As to any food packaging sold, distributed or provided to customers after the effective date of the ordinance codified in this chapter, each wholesaler shall obtain from each of its suppliers a written statement executed by the supplier, or by a responsible agent of the supplier, stating that the supplier will not supply any CFC-processed food packaging or polystyrene foam food packaging to that wholesaler, that the supplier will note on each invoice for food packaging supplied to that wholesaler that the packaging covered by the invoice is not CFC-processed food packaging or polystyrene foam food packaging, and the identify of the packaging’s manufacturer.

3. As to food packaging obtained or purchased after the effective date of the ordinance codified in this chapter, each wholesaler shall comply with the requirements of subsections (A)(2) and (A)(4) of this section.

4. All contracts for the purchase of take-out food packaging entered into after the effective date of the ordinance codified in this chapter shall comply with provisions of subsection (A)(3) of this section. (Ord. 89-14, 1989).

8.68.040 Degradable and Recyclable Food Packaging.

A. Restaurants.

1. At least 50 percent by volume of each restaurant’s food packaging, in which prepared food is provided to customers, or which is kept, purchased or obtained for this purpose, shall be degradable and recyclable or reusable.

2. Each restaurant shall maintain written records evidencing its compliance with this section.

B. Retail Food Vendors.
1. At least 50 percent by volume of each retail food vendor’s packaging, in which take-out food is provided to customers, or which is kept, purchased or obtained for this purpose, shall be degradable, recyclable or reusable.

2. Each retail food vendor shall maintain written records evidencing its compliance with this section. (Ord. 89-14, 1989).

8.68.050 Regulation of Suppliers and Food Vendors.

A. It shall be unlawful for any supplier to make any misstatement of material fact to any food vendor or to the City Administrator, or her/his agents, regarding the degradable or recyclable nature of, or the use of or nonuse of, CFC-processed
food packaging or polystyrene foam food packaging supplied to any food vendor or to the City.

B. Food vendors shall state that they are in compliance with this chapter on their annual business license renewal forms. (Ord. 89-14, 1989).

8.68.060 Inspection of Records – Proof of Compliance.

All statements and documents required by this chapter shall be made available for inspection and copying by the City Administrator, or her/his designated representative. It shall be unlawful for any person having custody of such
documents to fail or refuse to produce such documents upon request by the City
Administrator, or her/his designated representative. (Ord. 89-14, 1989).

8.68.070 Exemptions.

The City Administrator, or her/his designated representative, may exempt an item or type of food packaging from the requirements of this chapter, upon a showing that the item or type has no acceptable non-CFC-processed food packaging or polystyrene foam equivalent and that imposing the requirements of this chapter on that item or type would cause undue hardship. No exceptions shall be approved for the use of polystyrene. Said documentation shall include a list of suppliers contacted to determine the nonavailability of such alternative packaging.
(Ord. 89-14, 1989).

8.68.080 Existing Contracts.

Food packaging required to be purchased under a contract entered into prior to December 31, 1989, is exempt from the provisions of this chapter. (Ord. 89-14,
1989).

8.68.090 City Purchases Prohibited.

The City shall not purchase any CFC-processed food packaging or polystyrene foam food packaging, nor shall any City-sponsored event utilize such packaging. At least 50 percent by volume of food packaging which the City, or any Citysponsored
event, utilizes shall be degradable or recyclable. (Ord. 89-14, 1989).

8.68.100 Separate Food Packaging Waste Receptacles.

Each food vendor shall establish separate waste receptacles for each type of
recyclable food packaging waste generated on-premises, including, but not
limited to, glass, cans, cardboard, newspapers and mixed paper. (Ord. 89-14,
1989).

8.68.110 City Administrator’s Power.

The City Administrator is authorized to promulgate regulations and to take any and all other actions reasonable and necessary to enforce this chapter, including, but not limited to, inspecting any food vendor’s premises to verify compliance
with this chapter and any regulations adopted thereunder. (Ord. 89-14, 1989).

8.68.120 Liability and Enforcement.

A. Any person violating or failing to comply with any of the requirements of this chapter shall be guilty of an infraction as set forth in CMC Title 17.

B. The City Attorney may seek legal, injunctive or other equitable relief to
enforce this section.

C. The remedies and penalties provided in this section are cumulative and not exclusive. (Ord. 89-14, 1989).

A. Violations of this Ordinance may be enforced with Chapter 8.68.120 of this Code.

B. The City officer shall be responsible for enforcing this Chapter and shall have authority to issue citations for violations.

C. Anyone violating or failing to comply with any of the requirements of this Chapter shall be guilty of an infraction.

D. The City Attorney may seek legal, injunctive, or other relief to enforce the provisions of this Chapter.

E. The remedies and penalties provided in this Chapter are cumulative and not exclusive of one another.

F. The City in accordance with applicable law, may inspect the vendor or
ood provider’s premises to verify compliance.

G. Food vendors shall state that they are in compliance with the ordinance on their annual business license renewal forms.

Violations of this ordinance shall be enforced as follows:

1. For the first violation, City Administrator or designee shall issue a written warning to the food provider specifying that a violation of this chapter has occurred and which further notified the food provider of the appropriate penalties to be assessed in the event of future violations. The food vendor will have 30 days to comply.

2. The following penalties will apply for subsequent violations of the ordinance:

a. A fine not exceeding $100 for the first violation 30 days after the first warning. The City Administrator or designee may allow the violator in lieu of a payment of a fine, to submit receipts demonstrating the purchase after the citation date, of at least $100 worth of biodegradable, compostable, or recyclable products
appropriate as an alternative disposable food service ware for the items which led to the violation.

b. A fine not exceeding $200 for the second violation 60 days after the first warning.

c. A fine not exceeding $500 for the third violation 90 days after the first warning and for each additional 30-day period in which the food provider in not in compliance.

3. Food providers who violate this ordinance in connection with commercial or non-commercial special events shall be assessed fines as follows:
a. A fine not to exceed $200 for an event of one to 200 persons.
b. A fine not to exceed $400 for an event of 201 to 400 persons.
c. A fine not to exceed $600 for an event of 401 to 600 persons.
d. A fine not to exceed $1,000 for an event of 600 or more persons.

Effective Date
This ordinance shall take effect with a six-month, voluntary period to allow vendors to use up any remaining stock of prohibited product. The first month following the sixmonth voluntary period this ordinance shall be mandatory.

PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA this 3rd day of June 2008 by the following roll call vote:

AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
SIGNED:

_____________________
Heidi Burch, City Clerk

ATTEST:

__________________________
SUE McCLOUD, MAYOR