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HomeMy WebLinkAboutCOM 0664.048 2014-2016 ";4•• BJ Leithead Todd William P.Kenoi �• �. ,: . Mayor - Director Randy Kurohara •bs;,�+�0•' John A.Medeiros Managing Director • Deputy Director (Iuixnf of .�tiunt`1 DEPARTMENT OF ENVIRONMENTAL MANAGEMENT 345 Kekuanlio`a Street,Suite 41 • Hilo,Hawai i 96720 (808)961-8083 •Fax(808)961-8086 http://www.hawaiicounty.gov/environmental-management/ April 1, 2016 Council Chair Dru Kanuha and Members of the Hawaii County Council •• 25 Aupuni Street _ Hilo, HI 96720 Re: Referral of Bill 140 for Review and Recommendation by the Director of the Department of Environmental Management Dear Chair Kanuha and Council Members, Bill 140 was sent to me to review and comment. While I support the intent of the bill, I cannot support the bill as drafted. Because my concerns covered a wide range of issues, rather than go over the existing draft, I have marked up proposed deletions and amendments for discussion purposes. I have been inclusive rather than exclusive in the proposed amendments in order to open up discussion about the intent of the bill and for further clarity on its impact and range. Enclosed is the draft bill with possible deletions and amendments/recommendations for discussion purposes. This is not intended as a final draft as the bill needs to have formatting and other technical changes made to it and needs to have Council staff do some research to ensure the language is accurate and consistent with state and federal law. Due to my work load and time constraints I did not have the time to fully research the issue. I have inserted a Fines and Hearing section into the Bill itself thereby eliminating the necessity to establish additional administrative rules. It will also provide the public with information on types and amounts of fines that will be levied for non-compliance. One section is intended to address large one-time events. I also made the following clarifications/recommendations: - Raw meats and poultry packaging are exempt from this ban. - Any products that are packaged outside of the County are exempt. This will take care of most of the concerns that supermarkets have over the trays they use for hamburger, pork, fish, eggs and poultry and the products they ship in from the mainland. Since the intent of the bill was to ban the use of polystyrene containers for"prepared food', I believe we should clarify what is not"prear 6 County of Hawai`i is an Equal Opportunity Provider and Employer. To: Y_ M ef. Dote APR 0 6 USN food". The other reason for this amendment is to clarify that we are not trying to regulate interstate commerce. - A waiver/exception provision for emergencies and undue hardship was inserted. The purpose of this proposed amendment is to provide flexibility to the bill, especially in the aftermath of a natural disaster. Although some of this could be addressed in emergency declarations, including it in the bill gives greater flexibility to the County. - Clarifies that the ban does not apply to single use straws, forks, spoons and utensils as they are not polystyrene foam although they are made from polystyrene. - We request that the effective date be moved from January 1, 2018 to July 1, 2018 to allow the county's composting facility to be in operation before the bill is implemented. A proposed amendment to require the use of compostable or recyclable food service ware is also included. This is partly due to the anticipated County composting facility currently under procurement. By encouraging the use of compostable products, the County will be able to divert more items to a local sustainable resource, compost. The difficulty with this amendment is that it is uncertain what would be its impact on the food service ware used by national fast food chains. This is an issue that needs to be looked into more thoroughly before this amendment is considered. Before passage, I recommend opening up discussion with food vendors that would be impacted by the bill. Some additional amendments and definitions were inserted to clarify purpose, intent, application and construction. Given the wide range of possible amendments, it might be better to table Bill 140 and introduce a new bill with a new title as some of the proposed amendments go further than the title of the bill and could run afoul of the provisions of the County Charter to not change the purpose of the bill and have it consistent with the title. Thank you for allowing me the opportunity to comment on Bill 140 and I look forward to continuing the discussion. ifSince - - (616 BJ eithead Todd DIRECTOR cc: Billy Kenoi, Mayor Randy Kurohara, Managing Director Belinda Hall, Deputy Corporation Counsel John Medeiros, DEM Deputy Director Greg Goodale, SWD Chief Linda Peters, Recycling Coordinator Environmental Management Commission Members Enclosure County of Hawai i is an Equal Opportunity Provider and Employer. COUNTY OF HAWAII •.:.,K--, .. �.-: STATE OF HAWAII BILL NO. ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 20, OF THE HAWAII COUNTY CODE 1983 (2005 EDITION,AS AMENDED), BY ADDING A NEW ARTICLE RELATING TO REDUCTION OF POLYSTYRENE FOAM "STYROFOAM" FOOD CONTAINERS AND FOOD SERVICE WARE. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Purpose. Solid Waste that is non-degradable or non-recyclable poses unique problems for an island in the middle of the Pacific Ocean. Disposal of such waste either takes up valuable air space in existing landfills or ends up as litter, sometimes in our marine environment. Reduction of the amount of non-degradable and non-recyclable waste that enters the waste stream is consistent with and further the goals of this County's Integrated Resource and Solid Waste Management Plan and its adopted Zero Waste Policy and promotes the health, safety and welfare of the County and its residents. Polystyrene foam sometimes incorrectly [commonly] known as"Styrofoam" is neither degradable nor compostable. It is made from non-renewable fossil fuels and synthetic chemicals that can leach out over time into the environment, especially after contact with hot, greasy or acidic foods. When discarded,polystyrene foam often breaks into tiny pieces, is mistaken for food and ingested by land and marine animals, birds, and fish. This is detrimental not only to wildlife but to other life forms in the food chain. In view of the detrimental impact of this substance in Hawai`i County, it is the purpose of this article to reduce the use of polystyrene foam food containers and food service ware and thereby encourage the use of environmentally preferable alternatives. This will improve environmental quality on the island and reduce solid waste, in accord with goals expressed in both the County's General Plan and its 2010 Zero Waste Plan. SECTION 2. Chapter 20, Hawai`i County Code 1983 (2005 Edition, as amended), is amended by adding a new article to be appropriately designated and to read as follows: "Article_. Polystyrene Foam Food Container and Food Service Ware Reduction. Section 20-_. Definitions. As used in this article, unless otherwise specified: "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. "Biodegrade/Biodegradable"means the entire product or package will completely break down and return to nature, i.e., decompose into elements found in nature within a reasonable short period of time after customary disposal. It is the ability of organic matter to break down from a complex to a more simple form. "County contractor"means any person or entity that has a contract with the County for work 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 County. "County facility"means any building, structure or vehicle owned and operated by the County, its agents, agencies, and departments and includes County buildings, structures,parks,recreation facilities or property. "County facility users"means all persons, societies, associations, organizations or special event promoters who require a permit to reserve or rent a County Facility or a permit or contract to use a sidewalk or roadway. County Facility users also includes concession contracts with the County, County managed concessions, County sponsored events and food services provided at County expense. "Compostable"means all materials in the product or package will break down, or otherwise become part of usable compost(e.g., soil-conditioning material, mulch) in an appropriate composting program or facility. Compostable disposable food service ware includes ASTM-standard bio plastics (plastic-like)products that are clearly labeled so that any compost collector and processor can easily distinguish the ASTM-Standard Compostable plastic from non-ASTM standard compostable plastic. "Customer" means a person obtaining prepared food from a food provider. "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. "Disposable Food Service [container] Ware" means [a] disposable [container] products that [is] are used, or [is] are intended to be used,to [held] serve or transport prepared,ready-to-consume food or beverages which is commonly disposed of after a single use. This includes, but is not limited to, service ware for takeout foods and/or leftovers from partially consumed meals prepared at restaurants or retail food vendors. "Disposable Food Service [container] ware" includes, but is not limited to, a cup, bowl, plate,tray, carton, hinged, lidded or clamshell container that is intended for single use. "Disposable Food Service Ware"excludes straws, cup lids,utensils, and packaging for Unprepared Food. "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 2 intended for refuse. Food packaging does not include forks,knives or single-service condiment packages. "Food provider" means any vendor,business, organization, entity, group, or individual operating in the County [.•: ... . . . . •- 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, caterer, catering truck or vehicle; and any organization, group or individual which regularly provides food in conjunction with services. [" . .. . . . " _ .- --• . - - _. - - '_. .. . . . . -- . . . . • .] "Food service ware" includes plates, bowls, cups, lids, straws, stirrers, forks, spoons,knives,napkins,trays, and other items primarily designed for use in consuming food. "Polystyrene foam" means [ a thermoplastic petrochemical material utilizing the styrene monomer, which may be marked with resin symbol#6, 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), sometimes referred to as[blown poly - .•, - - . - • •- . .•, -• :] Styrofoam, a Dow Chemical Company trademarked form of polystyrene foam insulation[ _ •, • _. . . . ' foam-polystyrene)]. In food service, Polystyrene Foam is generally used to make cups, bowls,plates,trays, clamshell containers, meat trays and egg cartons intended for a single use. , _ . . :, : • . . . . . :, . : :::.] "Prepared food" means [any foods:] food or beverages, which are served, packaged, cooked, chopped, sliced, mixed, brewed, frozen, squeezed, or otherwise prepared for consumption by a retail consumer on the premises of a retail food establishment, including, but not limited to, beverages,ready to eat, and takeout food. "Prepared Food"does not include raw, butchered meats, fish and/or poultry unless provided for consumption without further food preparation. It is apolicy goal of this County to encourage supermarkets and other vendors to eliminate the use of polystyrene foam for packaging unprepared food. "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 markets by any means other than landfilling or burning, whether as fuel or otherwise, so that they can be returned to use by society. It includes any material that is accepted through the County recycling program, including but not limited to paper, glass, aluminum, cardboard and plastic bottles,jars and tubs. Recyclable plastics include any plastic which is identified as recyclable by the County through its 3 municipal recycling program. For purposes of this Article,recyclable plastic does not include Polystyrene Foam labeled with resin symbol #6.. "Retail Food Establishment"means any sales outlet, store, shop,vehicle or other place of business which sells or conveys foods or beverages to ultimate consumers, which foods or beverages are contained, wrapped, or held in or one food packaging. "Retail Food Establishment" shall include, but not be limited to, any place where food is prepared,mixed, cooked, baked, smoked,preserved, bottled,packaged,handled, stored, manufactured, and sold or offered for sale, including, but not limited to restaurant; drive- in; coffee shop; cafeteria; short-order café; delicatessen; luncheonette; grill; sandwich shop; soda fountain; bed and breakfast; inn; tavern;bar; cocktail lounge; nightclub; roadside stand;take-out prepared food place; industrial feeding establishment; catering kitchen; mobile food preparation unit; commissary; grocery store;public food market; produce stand; food stand; or any other place in which food and drink or prepared for sale or for service on the premises or elsewhere; and any other establishment or operation where food is processed, prepared, served, or provided to or for consumers for charge; "Food Vendor" means any [ - . .. •• . - . = - _ .. -• - _ ., . -, ,_. . . . •, •- -- . .. ] restaurant or retail food establishment. "Special events promoter"means an applicant for any special events permit issued by the County or any County employee(s)responsible for a County-organized special event. "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. Section 20-, Administration and Fines. (a)The director of the department of environmental management shall administer this article. [ • ., .. . . •. . . : .. . . . . .. . . . . . . . . . - - s - - (b) If the director or his/her designee determines that a violation of this Article has occurred, he/she shall issue a written warning notice to the Food Vendor that a violation has occurred. Subsequent violations of this Article by a Food Vendor shall be subject to the enforcement and penalties set forth below. (c) Each and every sale or their transfer of Disposable Food Service Ware made from Polystyrene Foam shall constitute a separate violation of this Article. (d) Any violation of this Article that occurs after the issuance of a written warning to a Food Vendor is subject to civil and administrative enforcement,punishable by a civil fine established in this Article. Any citation issued for a violation of this Article shall give notice of the right to request an administrative hearing to challenge the validity of the citation and the time for requesting that hearing as provided in (e) A fine may be imposed upon findings made by the director of the environmental management department, or his/her designee,that any food vendor has used polystyrene-based disposable food service ware in violation of this Chapter 4 (f) Amount of Fine. Upon findings made under this Article,the food vendor shall be subject to an administrative fine as follows: (1) A fine not exceeding one hundred dollars ($100) for a first violation; (2) A fine not exceeding two hundred dollars ($200) for a second violation; (3) A fine not exceeding five hundred dollars ($500) for the third and subsequent violations. (4) Food vendors who violate this Article 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 $400.00 for an event of 201 to 400 persons. (C) A fine not to exceed $600.00 for an event of 401 to 600 persons. (D) A fine not to exceed $1,000 for an event of 600 or more persons. (g) Fine Procedures. Notice of the fine shall be served on the food vendor. The notice shall contain an advisement of the right to request a hearing before the director of environmental management or his/her designee contesting the imposition of the fine. The grounds for the contest shall be either that(1)the food vendor did not use polystyrene-based disposable food service ware when providing prepared food, or(2)the food vendor would have been granted an exemption/exclusion under this Article if the food vendor had applied for such exemption. Said hearing must be within thirty(30) days of the date appearing on the notice of the fine. The decision of the director of environmental management shall be based upon a finding that one of the above listed grounds for a contest have been met or not met and shall be a final administrative order,with no administrative right of appeal. (h) Failure to pay Fine. If said fine is not paid within thirty(30) days from the date appearing on the notice of the fine or of the notice of determination of the director or his/her designee after the hearing,the fine shall be referred to a collection agency. (i) The County Corporation Counsel may seek legal, injunctive or other equitable relief to enforce this Article. (j) The remedies provided herein are cumulative and not exclusive. Section 20-_. Prohibitions. (a) A food [provider] vendor [shall-net-dispense] is prohibited from providing prepared food to a customer in [a] disposable food service ware that uses polystyrene foam [ ] on or after [January] July 1, 2018. (b) Polystyrene foam food containers and polystyrene foam food service ware shall not be sold or provided by any food vendor in the County on or after [January}July 1, 2018." Section 20- . Required use of Recyclable or Compostable Food Service Ware. (a) All Food Vendors using any Disposable Food Service Ware shall use a suitable Recyclable or Compostable product. (b) All County facility users shall use a suitable Recyclable or Compostable product for Disposable Food Service Ware. Section 20- . Exceptions. 5 (a) Foods packaged outside the limits of the County of Hawai'i are excluded from the provisions of this article but the purveyors of foods prepackaged outside of the limits of Hawai'i County are encouraged to follow these provisions as it is the County's policy goal to eliminate the use of Polystyrene Foam Disposable Food Service Ware. (b) Coolers and ice chests that are intended for reuse are excluded from the provisions of this Article. (c) The director of the department of environmental management may except a Food Vendor or County Facility user from the requirements set forth in the Article for a period of time to be determined by the director on a case-by-case basis for undue hardship. Undue hardship includes,but is not limited to, situations unique to the Food Vendor or County Facility User not generally applicable to other persons in similar circumstances. WI Food Vendors and County Facility users seeking an exception from the requirements of this Article shall include all information on the application for exception to allow the director to make a decision, including but not limited to, documentation showing factual support for the claimed exception. The director shall confirm the decision to grant or deny each exception in writing and may approve an exception request in whole or in part. The decision of the director shall be final. (e) Emergency supplies or services procurement. County Facility users and Food Vendors shall be exempt from the provisions of this Article in a situation deemed by the Mayor to be an emergency for the immediate preservation of the public peace,health and safety. Section 20- . Construction and Preemption. This Article and any of its provisions shall be null and void upon the adoption of any state or federal law or regulation imposing the same, or essentially the same, limits on the use of prohibited products as set forth in this Article. This Article is intended to be a proper exercise of the County's police power,to operate only upon its own officers, agents, employees and facilities and other persons acting within its boundaries, and not to regulate inter-County or inter-State conunerce. It shall be construed with that intent. SECTION 3. Severability. If any provision of this ordinance or the application thereof to any person or circumstance, is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application, and to this end, the provisions of this ordinance are declared to be severable. SECTION 4. This ordinance codified in this Article shall take effect on a voluntary basis until July 1, 2018 to allow vendors to use up any remaining stock of prohibited products. Effective July 1, 2018,this Article shall be mandatory. INTRODUCED BY: 6 COUNCIL MEMBER, COUNTY OF HAWAII , Hawai`i Date of Introduction: Date of 1st Reading: Date of 2nd Reading: Effective Date: 7