CITY COUNCIL STAFF REPORT

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1 CITY COUNCIL STAFF REPORT TO: Honorable Mayor and City Council DATE: July 17, 2017 FROM: PREPARED BY: SUBJECT: Matthew Bronson, City Manager Matthew Bronson, City Manager Aleah Bergam, Management Intern Expanded Polystyrene Food Container and Product Regulations RECOMMENDATION Receive an informational report on expanded polystyrene food container and product regulations and policy options and provide direction to staff regarding a potential ordinance. BACKGROUND On October 5, 2015, the City Council directed staff to explore options for establishing regulations for expanded polystyrene (EPS) in response to public comments. The Council acknowledged staff workload constraints given other City initiatives and requested that such options be brought back to the Council for consideration in the following fiscal year On January 9, 2017, several speakers during public comment requested the City consider enacting such regulations and the Council asked staff to schedule this item for Council discussion. Staff subsequently scheduled this item for the July 17 th agenda given the timing of other policy issues before the Council such as commercial cannabis and the budget process. This informational report provides an overview of policies and community outreach done by peer agencies regarding EPS regulations as well as implementation and policy choices for the City Council to consider when providing direction to staff about development of a potential ordinance. Over 80 cities and counties in California (listed in Attachment 1) have enacted regulations focused on restricting the use of food and drink containers made from EPS, commonly referred to as Styrofoam or plastic foam (see Attachment 2 for further description). Some of those agencies have also prohibited the retail sale of most EPS products within their respective jurisdictions. In order to ensure a common understanding of key terms used in this report, common definitions are offered below. Food container means a container that is used to hold prepared food or drinks. Food container includes cups, bowls, plates, trays, cartons or clamshell containers that are intended for single use. Food provider generally means any vendor, business, organization, entity, group, or individual that offers food or beverages to the public for consumption on or off premises, regardless of whether there is a charge for the food. Food provider typically includes restaurants, retail food establishments, caterers, cafeterias, stores, shops, sales outlets, grocery stores, delicatessens, itinerant restaurants and mobile food vendors. Food service ware includes cup lids, straws, stirrers, forks, spoons, knives, napkins, trays, and other items primarily designed for use in consuming food. Agenda Item No. 10

2 Staff Report: Expanded Polystyrene Product Regulations July 17, 2017 Page 2 Expanded Polystyrene or EPS means a foam material made of blown polystyrene, and expanded and extruded foams (sometimes called Styrofoam ) which are thermoplastic petrochemical materials utilizing a styrene monomer which is often used to hold prepared food. EPS is not recycled in San Luis Obispo County. "Polystyrene" means a thermoplastic petrochemical material utilizing styrene monomers. Polystyrene includes the foam material as well as clear, rigid polystyrene also called "oriented polystyrene". Rigid polystyrene is recycled in San Luis Obispo County. Prepared food means any food, including beverages, which is served or prepared for consumption, including ready-to-eat and takeout food. The main justifications in support of EPS regulation pertain to environmental impacts, potential health effects and potential for recycling opportunities to divert trash from the landfill. EPS is made of non-renewable petroleum products and manufactured with a monomer called Styrene, which may have adverse effects on human health. EPS food and drink containers have been shown in studies to leach this potentially carcinogenic chemical into food and drinks when heated or when coming into contact with hot foods. Food and drink containers made from EPS are also uniquely problematic when they become litter as EPS is a durable material that is not biodegradable. Its foam structure allows it to break easily into small pieces, making it difficult and expensive to remove from the environment. Additionally, these pieces can be harmful to fish and wildlife as it is often mistaken as food and ingested. According to estimates from the California Department of Transportation, EPS comprises approximately 15% of storm drain litter though it can be difficult to approximate the exact amount of EPS in storm drains, waterways and oceans due to the small size of the material when broken down. A study published in 2011 found that 71% of all the plastic flowing through the Los Angeles and San Gabriel Rivers in Southern California is foam and a study conducted in Orange County indicated that EPS is the second most common form of beach debris. Also, several studies have indicated that plastic products, including polystyrene, make up 80-90% of floating marine debris. In addition to reducing the amount of harmful litter entering local waterways, cities also typically cite the improved potential for recycling opportunities and diverting trash from landfills as a basis for an EPS ordinance. The City s Climate Action Plan includes a solid waste measure to adopt a solid waste diversion goal of 75% and work with the San Luis Obispo County Integrated Waste Management Authority to increase recycling, waste diversion, and education and outreach to meet this goal. EPS products are challenging to recycle and are not currently recycled at the Cold Canyon landfill through the Integrated Waste Management Authority. There is also a clear, non-expanded form of polystyrene used in food service called oriented or rigid polystyrene. These rigid polystyrene containers are currently recycled in San Luis Obispo County even after having been in contact with food. Food service based businesses are often most impacted by EPS restrictions. Frequently cited concerns are the additional cost of alternatives and performance of alternative products (e.g., rigidity, insulating properties, etc.) along with the added cost of additional regulations. The cost of using alternative products can vary but added costs can be challenging particularly for small businesses and would likely be passed on to customers in the form of higher prices. Locally, the cities of Arroyo Grande, Morro Bay, Pismo Beach, and San Luis Obispo have adopted ordinances regulating the use of EPS (see Attachment 3 for a chart comparison). The ordinances in these four cities include the following provisions:

3 Staff Report: Expanded Polystyrene Product Regulations July 17, 2017 Page 3 Prohibits the use of EPS for prepared food; requires food providers to use biodegradable, compostable, or recyclable food containers. Prohibits vendors and event promoters from selling or otherwise providing EPS, which is not wholly encased within a more durable material. This specifically includes, but is not be limited to, cups, plates, bowls, trays, clamshells and other products intended primarily for food service use, as well as coolers, containers, ice chests, shipping boxes, packing peanuts, or other packaging materials. Exemptions to these regulations are allowed in certain instances, such as foods prepared outside the City, trays for raw meat, fish and other raw food, and products encapsulated or encased by more durable materials; or undue hardship exemptions. For the first violation by any food provider violating the code that would result in administrative fines, the violator is allowed to pay for allowable alternatives in lieu of paying the fine. Enforcement of the ordinance within each city is generally on a complaint basis. Members of the public can submit a complaint that a business is using EPS products and City staff will respond similar to code enforcement complaints to investigate and ensure compliance with the ordinance. Such an enforcement approach would minimize resources needed to carry out enforcement which would be particularly important for a small city like Grover Beach. EPS ordinances also generally include a grace period for businesses to use their existing supply of EPS products before requiring use of alternative products. In San Luis Obispo and Arroyo Grande, the ordinance took effect six months after final adoption and warnings occurred for an additional six months to allow businesses up to a year to make the transition to alternative products. The four local cities that have enacted EPS ordinances conducted various levels of community outreach prior to the adoption of an ordinance. All four cities discussed the proposed regulations with their respective Chambers of Commerce and San Luis Obispo, Pismo Beach, and Morro Bay conducted business surveys in conjunction with their respective Chambers. In addition, many cities sent summary fliers to affected businesses and posted information on the regulation of EPS on their respective City s website. In preparation for this Council agenda item, City staff has discussed a potential EPS ordinance with the Arroyo Grande/Grover Beach Chamber of Commerce and solicited the Chamber s assistance in sending out a survey to members who are Grover Beach businesses about switching to alternative EPS products. Given that the response to the survey was relatively low, Chamber staff spoke with 18 different businesses within the city that use to-go containers. Based on the input received, the Chamber Board of Directors has concerns about enacting such regulations at this time due to the impacts on small businesses from the increased costs of supplies. The Chamber Board believes that it would be better for the transition to alternative EPS products to be done either on a voluntary basis or carried out over a longer time period as business activity continues to improve in the city through further progress on key projects such as the lodge and street repairs. A Chamber representative will be at the meeting to speak further to their Board s position. At this time, staff is seeking Council s direction in proceeding with developing a potential ordinance for regulating EPS products and, if so, the key parameters of such an ordinance. Staff would seek to use local ordinances as examples in drafting such an ordinance in Grover Beach. Staff would be able to draft this ordinance in the next 2-3 months to bring to the Council for consideration this fall, if so directed. Staff would also conduct additional business outreach prior to consideration of an ordinance to inform the business community and seek additional input.

4 Staff Report: Expanded Polystyrene Product Regulations Page 4 July 17, 2017 FISCAL IMPACT There would be a small cost in conducting business outreach if Council provided direction to draft an EPS ordinance. Implementation and enforcement of such an ordinance would be provided through existing City resources assuming enforcement was on a complaint basis similar to code enforcement complaints. ALTERNATIVES 1. Receive an informational report on expanded polystyrene food container and product regulations and policy options and provide direction to staff regarding a potential ordinance; or 2. Provide alternative direction to staff. PUBLIC NOTIFICATION The agenda was posted in accordance with the Brown Act.. A copy of the meeting agenda and this staff report were sent to the Arroyo Grande/Grover Beach Chamber of Commerce, as well as representatives of the organizations SLO Foam Free and Californians Against Waste. ATTACHMENTS 1. California Cities and Counties with Polystyrene Ordinances 2. Polystyrene Fact Sheet 3. EPS Ordinance Comparison Chart

5 California Cities and Counties with Various Polystyrene Ordinances Attachment 1 Alameda (2008) Albany (2008) Aliso Viejo (2005) Arroyo Grande (2016) Belmont (2012) Berkeley (1988) Burlingame (2011) Calabasas (2008) Capitola (2012) Carmel (1989) Carpenteria (2008) Cupertino (2014) Dana Point (2012) Del Ray Oaks (2010) El Cerrito (2014) Emeryville (2008) Fairfax (1993) Foster City (2012) Fremont (2011) Half Moon Bay (2011) Hayward (2011) Hercules (2008) Hermosa Beach (2012) Huntington Beach (2005) Laguna Beach (2008) Laguna Hills (2008) Laguna Woods (2004) Livermore (2010) Los Altos (2014) Los Altos Hills (2012) Los Angeles City (2008) Los Angeles County (2008) Malibu (2005) Manhattan Beach (2013) Marin County (2010) Marina (2011) Mendocino County (effective 2015) Menlo Park (2012) Millbrae (2008) Mill Valley (2009) Monterey City (2009) Monterey County (2010) Morgan Hill (2014) Moro Bay (2016) Mountain View (2014) Newport Beach (2008) Novato (2013) Oakland (2007) Ojai (2014) Orange County (2006) Pacific Grove (2008) Pacifica (2010) Palo Alto (2010) Pittsburg (1993) Pismo Beach (2015) Portola Valley (2012) Redwood City (2013) Richmond (2014) Salinas (2011) San Bruno (2010) San Carlos (2012) San Clemente (2011) San Francisco (2007) San Jose (2014/2015) San Juan Capistrano (2004) San Leandro (2012) San Luis Obispo (2015) San Mateo City (2013) San Mateo County (2008/2011) San Rafael (2013) Santa Clara County (2013) Santa Cruz City (2012) Santa Cruz County (2012) Santa Monica (2007) Sausalito (2008) Scotts Valley (2009) Seaside (2010) Sonoma City (1989) Sonoma County (1989) South San Francisco (2008) Sunnyvale (2013) Ventura County (2004) Walnut Creek (2014) Watsonville (2009/2014) West Hollywood (1990) Yountville (1989)

6 Polystyrene Fact Sheet Attachment 2 "Polystyrene" means a thermoplastic petrochemical material utilizing styrene monomers. Expanded Polystyrene or EPS means a foam material made of blown polystyrene, and expanded and extruded foams (sometimes called Styrofoam ) which are thermoplastic petrochemical materials utilizing a styrene monomer which is often used to hold prepared food (pictured above). EPS is not recycled in San Luis Obispo County. Polystyrene also includes clear, rigid polystyrene also called "oriented polystyrene" (pictured below). Rigid polystyrene is recycled in San Luis Obispo County.

7 EPS Ordinance Comparison Chart Attachment 3 City and Ordinance San Luis Obispo, Regulating Expanded Polystyrene Food Containers and Products Adopted Key Provisions Exemptions Effective Date Enforcement 6/16/2015 Prohibits the use of EPS for prepared food; requires food providers to use biodegradable, compostable, or recyclable food containers Prohibits vendors and event promoters from selling or otherwise providing EPS, which is not wholly encased within a more durable material In lieu of fine, violator can purchase biodegradable, compostable or recyclable products in an amount equal to the amount of the citation For any event promoter violating the code that would result in a fine, varying rates imposed depending on the size of the event Foods prepared outside the City, trays for raw meat, fish and other raw food, and products encapsulated or encased by more durable materials. City Manager or designee, may exempt a Food Provider for a single, one-year period upon the Food Provider showing, in writing, that this would create an undue hardship or practical difficulty (15% threshold for undue economic hardship) as evidenced by no alternatives being available or such alternatives are not affordable. 6 months after adoption Warnings given through 7/1/2016 Complaint basis; no proactive inspection

8 EPS Ordinance Comparison Chart Attachment 3 City and Ordinance Arroyo Grande, Regulating Expanded Polystyrene Food Containers and Products Adopted Key Provisions Exemptions Effective Date Enforcement 2/9/2016 Prohibits the use of EPS for prepared food; requires food providers to use biodegradable, compostable, or recyclable food containers Prohibits vendors and event promoters from selling or otherwise providing EPS, which is not wholly encased within a more durable material In lieu of fine, violator can purchase biodegradable, compostable or recyclable products No specifics on fine amounts pertaining to violations with regard to special events Foods prepared outside the City, trays for raw meat, fish and other raw food, and products encapsulated or encased by more durable materials. City Manager or designee, may exempt a Food Provider for a one-year period upon the Food Provider showing, in writing, that the regulations would create an undue hardship or practical difficulty (15% threshold for undue economic hardship) as evidenced by no alternatives being available or such alternatives are not affordable. 6 months after adoption Complaint basis with a focus on education more than penalty

9 EPS Ordinance Comparison Chart Attachment 3 City and Ordinance Pismo Beach, Expanded Polystyrene Adopted Key Provisions Exemptions Effective Date Enforcement 12/15/2015 Prohibits the use of EPS for prepared food; requires food providers to use biodegradable, compostable, or recyclable food containers Foods prepared outside the City, trays for raw meat, fish and other raw food, and products encapsulated or encased by more durable materials. 30 days after adoption Complaint basis Prohibits vendors and event promoters from selling or otherwise providing EPS, which is not wholly encased within a more durable material In lieu of fine, violator can purchase biodegradable, compostable or recyclable products in an amount equal to the amount of the citation City Manager or designee, may exempt a vendor or Food Provider for a single, six-month period upon written application by the vendor or Food Provider showing that this chapter would create an undue financial hardship or practical difficulty (15% threshold for undue economic hardship).

10 EPS Ordinance Comparison Chart Attachment 3 City and Ordinance Morro Bay, To Regulate the use of Expanded Polystyrene Products within the City Adopted Key Provisions Exemptions Effective Date Enforcement 2/9/2016 Prohibits the use of EPS for prepared food; requires food providers to use biodegradable, compostable, or recyclable food containers Prohibits vendors and event promoters from selling or otherwise providing EPS, which is not wholly encased within a more durable material In lieu of fine, violator can purchase biodegradable, compostable or recyclable products in an amount equal to the amount of the citation Foods prepared outside the City, trays for raw meat, fish and other raw food, and products encapsulated or encased by more durable materials. Food Providers can apply for a one time, 6 month exemption upon written application to the City Manager showing this would cause an undue hardship or practical difficulty. 30 days after adoption, but not become operative until 5/1/2016 Complaint basis For any event promoter violating the code that would result in a fine, varying rates imposed depending on the size of the event