HomeMy WebLinkAboutCOM 1091.001 2014-2016 Margaret Wile Phone No. Hilo: (808)961-8027
...
Council Member :.P'�_" .'.
Phone No. Waimea'. (808)887-2043
District 9-North and South Kohala Fax No.: (808)887-2072
;' ' * •i E-Mail: mwilleCco.hawaii,hi,us
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HAWAII COUNTY COUNCIL
County of Hawaii
Hawai'1 County Building Ilolamtm Center West Ilawai'i Civic Center Bldg.A
25 Aupunt Street 64-1067 Mamalahoa Highway,Suite C-5 74-51144 Ane Keohokalole Hwy.
Hilo. Hawaii 96720 Waimea, Hawaii 96743 Kailua-Kona, Hawaii,96740
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TO: Dru Mamo Kanuha, Council Chair
and Members of the Hawai`i County Council
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FROM:// argaret Wille. Council Member _-i
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DATE: October 17,2016 •
•
SUBJECT: Proposed Amendments to Bill No. 248; An Ordinance Amending Chapter 20
of the Hawai`i County Code 1983 (2005 Edition, as amended) by Adding a
New Article Relating to Disposable Food Packaging and Food Service Ware
by Count Entities, County Food Vendors, and County Facility Users.
Please find attached proposed amendments to Bill No. 248. The proposed amendments are
illustrated below by Ramseyer format with respect to the contents of Bill No.248 (material to
be deleted is bracketed and stricken, material to be added is underscored). A draft copy of
Bill No. 248, Draft 2. is attached with the amendments incorporated therein.
I. Bill No. 248 is amended by amending the fourth paragraph in the Section titled "Findings
and purpose" to read as follows:
"Implementation of this Article will maximize diversion of compostables
from the waste stream to be available as compost to farmers, landscapers, and
residents, and thereby promote environmental wellbeing and food sustainability.
The use of compostable products by the county and county facility users will enable
the county to more easily divert food waste from its facilities to the compost
facility. Diversion of compostables will [not only] reduce the amount of methane
producing organics in the landfills thereby decreasing the global warming impact of
carbon dioxide emissions from landfilled organics. Accordingly, this article is
implemented in tandem with the county's full-scale compost program, both
scheduled to take effect ect on July 1. 2018."
Coram. No. 10"!/�
/.
Ref. To: PfEML
Ref. Date LINT 1 8 2018
Page 2 of 4
2. Bill No. 248 is amended by amending the Section titled "Exemptions" to read as follows:
"Section 20-_. Exemptions.
(a) Foods packaged outside the limits of the County of llawai`i are exempted
from the provisions of this article.
(b) Coolers and ice chests that are intended for reuse are exempted from the
provisions of this article.
[(d)](c) Undue hardship [exceptions] exemptions for county facility users or county
food vendors:
(I) In situations where compliance with ] - - -- . this
article by July 1,2018,would result in undue hardship, the director may
exempt a county facility user or county food vendor from the
requirements set forth in the article for a period of time not to exceed
one hundred eighty days.
(2) Undue hardship includes, but is not limited to, situations unique to the
county facility user or county food vendor, not generally applicable to
other entities or persons subject to this [Article,] article in similar
circumstances.
(3) County food vendors and county facility users seeking an exemption
from the requirements of this article shall provide all required
information on an application for exemption, including, but not limited
to, documentation supporting the applicant's claim that compliance with
this article will result in undue hardship.
(4) The director may approve an exemption request in whole or in part.
(5) All exemptions shall be promptly posted on the county website for the
department of environmental management as a notice of temporary
exemption.
(6) 'Ihe director may approve subsequent exemptions under this section
where the same or another undue hardship is documented by the county
entity, the county food vendor, or the county facility user.
I(e)Jtd� Emergency supplies or services procurement. County entities, county
facility users, and county 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."
3. Bill No. 248 is amended by amending the Section titled "Violations" to read as follows:
`Section 20-_. Violations.
(a) If the director determines that a violation of this article has occurred, the
director shall issue a written notice to the county entity, county facility user,
or county food vendor[;] that a violation has occurred. Subsequent violations
of this article shall be subject to the enforcement and penalties set forth below.
Page 3 of 4
(b) Each and every sale or transfer of disposable food packaging or food service
ware made from polystyrene foam or any other non-recyclable or non-
compostable product[,]shall constitute a separate violation of this article.
(c) Any violation of this article by a county facility user or county food vendor
that occurs after the issuance of a written warning [to a county entity, county
facility user, or county food vendor is] shall be 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 section 2-204
of this Code."
4. Rill No. 248 is amended by amending the Section titled "Fines" to read as follows:
"Section 20-_. Fines.
(a) A fine may be imposed upon findings made by the director that [any county
city,] a county facility user[]] or county food vendor[,]has used polystyrene-
based disposable food service ware or another non-recyclable or non-
compostable food packaging product or food service ware[;] in violation of
this article.
(b) Amount of fine. Upon findings made under this article, the [entity or person]
county facility user or county food vendor in violation shall be subject to an
administrative fine for each separate violation as follows:
(1) A fine of$10 for a first violation:
(2) A fine of S100 for each subsequent violation, except that in the case of a
commercial or non-commercial special event, a [county entity,] county
facility user[,] or county food vendor[,] who violates this article shall be
assessed fines for each special event as follows:
(A) A fine of$100 for an event of one to 50 persons;
(B) A fine of$200 for an event of 51 to 200 persons;
(C) A fine of$400 for an event of 201 to 400 persons;
(D) A fine of$600 for an event of 401 to 600 persons; and
(E) A fine of$1000 for an event of 600 or more persons.
[(d)](c) Fine procedures. Notice of the fine shall be served on the [county entity,]
county facility user[,] or county food vendor. The notice shall contain an
advisement of the right to request a hearing before the director contesting the
imposition of the fine. The grounds for the contest shall be that the county
facility user or county food vendor did not use polystyrene foam-based
disposable food service ware when providing prepared food. Said hearing
must be requested within thirty days of the date appearing on the notice of the
fine. The hearing shall be held within thirty days of receipt of the request for
the hearing. The decision of the director shall be based upon a finding that the
Page 4 of 4
above listed grounds for a contest have been met or not met and shall be a
final administrative order.
[(e)](d) Failure to pay fine. Fines not paid within thirty days from the date
appearing on the notice of the fine or of the notice of determination of the
director after the hearing[.] shall be referred to a collection agency."
M W/dh
Att.
AN ORDINANCE AMENDING CHAPTER 20 OF THE HAWAII COUNTY CODE 1983
(2005 EDITION, AS AMENDED), BY ADDING A NEW ARTICLE RELATING TO
DISPOSABLE FOOD PACKAGING AND FOOD SERVICE WARE BY COUNTY
ENTITIES, COUNTY FOOD VENDORS, AND COUNTY FACILITY USERS.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII:
SECTION 1. Chapter 20, Hawaii County Code 1983 (2005 Edition, as amended), is
amended by adding a new article to he appropriately designated and to read as follows:
"Article_. Requirements for Food Packaging and Food Service Ware
by County Entities, County Food Vendors, and County Facility
Users.
Division 1. General Provisions.
Section 20-_. Findings and 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 significant air space in existing landfills or ends up as litter, sometimes in our
marine environment. In contrast, compostable food container products can be
diverted with food waste to the county's compost facility that will begin operations
in 2018.
Polystyrene foam, sometimes incorrectly referred to as "Styrofoam," is neither
degradable nor recyclable. 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,
especially marine birds and fish. This is detrimental not only to wildlife, but
potentially to all other life forms up the food chain.
In view of the detrimental impacts of polystyrene foam, it is the purpose of
this article to require as of July 1, 2018 the use of either reusable or compostable
food packaging and food service ware, and prohibit the use of polystyrene foam
food packaging and food service ware by county entities, county food vendors, and
county facility users.
Implementation of this Article will maximize diversion of compostables from
the waste stream to be available as compost to farmers, landscapers, and residents,
and thereby promote environmental wellbeing and food sustainability. The use of
compostable products by the county and county facility users will enable the county
to more easily divert food waste from its facilities to the compost facility. Diversion
of compostables will reduce the amount of methane producing organics in the
1
landfills thereby decreasing the global warming impact of carbon dioxide emissions
from landfilled organics. Accordingly, this article is implemented in tandem with
the county's full-scale compost program, both scheduled to take effect on July I,
2018.
By concurrently implementing these programs, the county will help to educate
the public concerning the interrelationship between food sustainability and
diversion of compostable solid waste to be processed into compost to increase our
local food supply.
Through this measure it is the council's intent to advance environmental
quality on the island and in the neighboring marine environment, as well as local
food sustainability.
Reduction of the amount of non-degradable and non-recyclable waste that
enters the waste stream is consistent with and furthers the goals and policies
expressed in this County's general plan, integrated resource and solid waste
management plan, and its adopted zero waste policy as well as promotes the health,
safety, and welfare of the County and its residents.
This article is also consistent with the Hawaii State Constitution, Article
XI, Section 9, which provides:
"Each person has the right to a clean and healthful environment, as defined
by laws relating to environmental quality, including control of pollution and
conservation, protection and enhancement of natural resources. Any person
may enforce this right against any party, public or private,through
appropriate legal proceedings, subject to reasonable limitations and
regulation as provided by law."
This article is also consistent with the Hawaii State Constitution, Article XI,
Section I, which provides:
"For the benefit of present and future generations, the State and its
political subdivisions shall conserve and protect Hawaii's natural beauty
and all natural resources, including land, water, air, minerals and energy
sources, and shall promote the development and utilization of these
resources in a manner consistent with their conservation and in
furtherance of the self-sufficiency of the State. All public natural
resources are held in trust by the State for the benefit of the people."
This article is also consistent with the Hawaii County Charter, section 13-29
"Conservation of Natural and Cultural Resources," which provides:
"For the benefit of present and future generations, the county shall conserve
and protect Ilawai`i's natural beauty and all natural and cultural resources,
including but not limited to land, water, air, minerals, energy sources, wahi
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pana, surf spots, historic sites, and historic structures, and shall promote the
development and utilization of these resources in a manner consistent with
their conservation and in furtherance of the self-sufficiency of the county.
All public natural and cultural resources are held in trust by the county for
the benefit of the people."
Section 20-_. Administration.
The director of the department of environmental management shall administer
this article.
Section 20-_. Definitions.
As used in this article, unless otherwise specified:
"ASTM standard" means the standards of the American Society for Testing
and Materials International Standards D6400 or D6868 for biodegradable and
compostable plastics.
"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
reasonably 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.
"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, or such other products approved by the department of
environmental management, as compatible with the County's organic compost
facility operations.
"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 include concession contracts with the County, County managed
concessions, and County sponsored events and food services provided at County
expense.
"Customer" means a person obtaining prepared food from a food provider.
"Director" means the director of the department of environmental
management or the director's authorized representative.
"Disposable food packaging" means all food-related wrappings, bags, boxes,
containers, bowls, plates, trays, cartons, cups, lids, or drinking utensils, in which
food or beverage is placed or packaged on the retail food establishment's premises,
and which are not intended for reuse. Disposable food packaging does not include
forks, knives, straws. or single-service condiment packages.
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"Disposable food service ware" means disposable food containers that are
used, or are intended to be used, to serve or transport prepared, ready-to-consume
food or beverages that are 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 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 provider" means any vendor, business, organization, entity, group, or
individual operating in the County that 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 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.
"Food vendor" means any restaurant or retail food establishment.
"Polystyrene foam' means a thermoplastic petrochemical material utilizing
the styrene monomer, which may be marked with resin symbol 46, 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 "Styrofoam,"
a Dow Chemical Company trademarked form of polystyrene foam insulation. 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.
"Polystyrene foam" does not include solid hard polystyrene.
"Prepared food" means 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.
Section 20-_. Construction and preemption.
Any provision of this article 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 commerce. It shall be
construed with that intent.
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Division 2. Prohibitions and Requirements.
Section 20- . Prohibitions.
All county entities,county facility users, and county food vendors, are
prohibited,as of July 1, 2018, from providing prepared food to customers or
members of the public in disposable food service ware that is made from
polystyrene Ibam, other than as permitted in the exemptions set forth in Section 20-
Section 20-_. Requirements for disposable food packaging and food service
ware.
(a) As of July 1, 2018, all county entities, county food vendors, and county
facility users, using any disposable food packaging or food service ware shalt
use a suitable reusable or compostable product, other than as permitted in the
exemptions set forth in Section
(b) As of July 1, 2018, all county entities, county food vendors, and county
facility users shall use a suitable reusable or compostable product for
disposable food service ware.
Section 20-_. Exemptions.
(a) Foods packaged outside the limits of the County of Hawai`i are exempted
from the provisions of this article.
(b) Coolers and ice chests that are intended for reuse are exempted from the
provisions of this article.
(c) Undue hardship exemptions for county facility users or county food vendors:
(1) In situations where compliance with this article by July 1,2018, would
result in undue hardship, the director may exempt a county facility user
or county food vendor from the requirements set forth in the article for a
period of time not to exceed one hundred eighty days.
(2) Undue hardship includes, but is not limited to, situations unique to the
county facility user or county food vendor, not generally applicable to
other entities or persons subject to this article, in similar circumstances.
(3) County food vendors and county facility users seeking an exemption
from the requirements of this article shall provide all required
information on an application for exemption, including, but not limited
to, documentation supporting the applicant's claim that compliance with
this article will result in undue hardship.
(4) The director may approve an exemption request in whole or in part.
5
(5) All exemptions shall be promptly posted on the county website for the
department of environmental management as a notice of temporary
exemption.
(6) The director may approve subsequent exemptions under this section
where the same or another undue hardship is documented by the county
entity, the county food vendor, or the county facility user.
(d) Emergency supplies or services procurement. County entities, county facility
users, and county 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.
Division 3. Enforcement.
Section 20- . Violations.
(a) If the director determines that a violation of this article has occurred, the
director shall issue a written notice to the county entity, county facility user,
or county food vendor that a violation has occurred. Subsequent violations of
this article shall be subject to the enforcement and penalties set forth below.
(b) Each and every sale or transfer of disposable food packaging or food service
ware made from polystyrene foam or any other non-recyclable or non-
compostable product shall constitute a separate violation of this article.
(c) Any violation of this article by a county facility user or county food vendor
that occurs after the issuance of a written warning shall be 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 section 2-204
of this Code.
Section 20-_. Fines.
(a) A fine may he imposed upon findings made by the director that a county
facility user or county food vendor has used polystyrene-based disposable
food service ware or another non-recyclable or non-compostable food
packaging product or food service ware in violation of this article.
(b) Amount of fine. Upon findings made under this article, the county facility
user or county food vendor in violation shall be subject to an administrative
fine for each separate violation as follows:
(1) A fine of$10 for a first violation;
(2) A fine of$100 for each subsequent violation, except that in the case of a
commercial or non-commercial special event, a county facility user or
6
county food vendor who violates this article shall be assessed fines for
each special event as follows:
(A) A fine of$100 for an event of one to 50 persons;
(B) A fine of$200 for an event of 51 to 200 persons;
(C) A fine of$400 for an event of 201 to 400 persons;
(D) A fine of$600 for an event of 401 to 600 persons; and
(E) A fine of$1000 for an event of 600 or more persons.
(c) Fine procedures. Notice of the line shall be served on the county facility user
or county food vendor. The notice shall contain an advisement of the right to
request a hearing before the director contesting the imposition of the fine. The
grounds for the contest shall be that the county facility user or county food
vendor did not use polystyrene foam-based disposable food service ware when
providing prepared food. Said hearing must be requested within thirty days of
the date appearing on the notice of the fine. The hearing shall be held within
thirty days of receipt of the request for the hearing. The decision of the
director shall be based upon a finding that the above listed grounds for a
contest have been met or not met and shall be a final administrative order.
(d) Failure to pay fine. Fines not paid within thirty days from the date appearing
on the notice of the fine or of the notice of determination of the director after
the hearing shall be referred to a collection agency.
Section 20-_. Other relief.
(a) The County corporation counsel may seek legal, injunctive, or other equitable
relief to enforce this article.
(b) The remedies provided herein are cumulative and not exclusive.
(c) All fines and other enforcement actions may be appealed to the environmental
management commission, provided the appeal is filed within thirty days of
issuance of the notice of determination. All fines and other enforcement
actions imposed by director and upheld by the environmental management
commission may be appealed to the circuit court, provided the appeal is filed
within thirty days of issuance of the decision of the commission.
Section 20- . Education.
(a) On or before July 1,2017, the director shall establish an education program for
all county entities, current county facility users and applicants, and county
food vendors, on the provisions of this article and its planned implementation
on July 1, 2018, including designation of what products qualify as reusable or
compostable.
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(b) On or before July 1, 2017, the director shall also establish an education
program for businesses, nonprofit organizations, and the general public
regarding:
(I) The rationale for imposing this prohibition on the provision and sale of
polystyrene foam food containers, including the harm to marine birds and
ocean health generally;
(2) The rationale for promoting the use of compostable food packaging and
food service ware, including the importance of diversion of compostables
to make compost for local food sustainability;
(3) Information about the department's mulch and compost programs, and
(4) The availability of recyclable and compostable alternatives to polystyrene
foam disposable food packaging and food service ware."
SECTION 2. 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 3. this ordinance shall take effect upon approval.
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