HomeMy WebLinkAboutCOM 0107.014 2016-2018 County of Hawai`t • Ot•'os N�`i+,' Phone: (808)961-8564
Council District 9- " ���- (808) 887-2069
North and South Kohala •: � ��"% ���+ Email: tim.richards@hawaiicountv.gov
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COUNTY CLERK
HERBERT M. "TIM" RICHARDS, III COUNTY OF HAWAII I
RECEHAWAI`I COUNTY COUNCIL Time 9' i By
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District 9 Date .3i7//7
25 Aupuni Street, Ste. 1402, Hilo, Hawaii 96720
DATE: March 7, 2017
TO: V.lerie T. Poindexter, Council Chair
and embers of the Hawai`i County Council
FROM: erb:! M. "Tim"Richards, III, Council Member
RE: Proposed Amendments to Bill No. 13, Draft 2: A Bill for an Ordinance Amending
Chapter 20 of the Hawaii County Code 1983 (2016 Edition, as Amended), by
Adding a New Article Relating to Reduction of Polystyrene Foam"Styrofoam"
Food Containers and Food Service Ware.
Please see below proposed amendments to Bill No. 13, Draft 2. The proposed amendments are
shown in Ramseyer format with respect to the contents of Bill No. 13, Draft 2; material to be
deleted is bracketed and stricken and material to be added is underscored.
For illustrative purposes, a copy of the draft of the bill that would result if these proposed
amendments are adopted is attached with the amendments incorporated therein.
1. Bill No. 13, Draft 2, SECTION 1, Division 1 "General Provisions," Section 20-_"Findings
and purpose" is amended to read as follows:
"Section 20-_. Findings and purpose.
Solid waste that is nondegradable or nonrecyclable 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.
1®1. 1'
Comm. No.
Ref. T®: COV".
Ref. Date MAR 0 8 200
Hawaii County is an Equal Opportunity Provider and Employer
Polystyrene foam, sometimes incorrectly referred to 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, including birds and fish. This is detrimental not only to wildlife
but to other life forms in the food chain.
In view of the detrimental impacts of this substance in Hawai`i County, [it is]
the purpose of this article is to reduce the use of polystyrene foam food containers
and food service ware[rte] y supermarkets and other vendors Re] and eliminate
the use of polystyrene foam for packaging unprepared food[, and thereby promote
the use of environmentally preferable alternatives].
As it is the Council's intent that the County shall set an example by limiting
the use of polystyrene foam in its facilities, County facility users and County food
vendors may not be exempted from this article, except during a time of declared
emergency. Although foods packaged outside of the limits of Hawai`i County are
excluded from the provisions of this article, the purveyors of foods prepackaged
outside of the limits of Hawai`i County are encouraged to follow these provisions
and thereby support the County's [peliey] goal to eliminate the use of polystyrene
foam disposable food service ware.
[Implementation of this ban will maximize diversion of compostables,
compost to farmers, landscapers, and residents. Accordingly, this ordinance is
implemented in tandem with the County's full scale compost program, both
scheduled to take effect on July 1, 2018.]
[Through these] These measures[, it is the Council's intent to] will promote
the health, safety, and welfare of the County and its residents by [improve]
-improving environmental quality on the island and in the neighboring marine
environment.) ee'uctio ^f] Reducing the amount of nondegradable and
nonrecyclable 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].
The Council finds that it is imperative to afford the department of
environmental management sufficient time to plan and secure the funding and
staffing necessary to implement this new program. Consequently, the prohibition
contained in this ordinance shall take effect on July 1, 2019."
2
2. Bill No. 13, Draft 2, SECTION 1, Division 1 "General Provisions," Section 20-
"Definitions" is amended by amending the definition of"polystyrene foam"to read as
follows:
'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
"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."
3. Bill No. 13, Draft 2, SECTION 1, Division 1 "General Provisions," Section 20-
"Definitions" is amended by repealing the definitions of"ASTM standard" and
"Biodegradable".
[""• _ .. _., ." ---. -- ., .., . - _-and Materials International Standards D6100 or D6868 for biodegradable and
"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
4. Bill No. 13, Draft 2, SECTION 1, Division 2 "Prohibitions and Requirements,"
is amended to read as follows:
"Division 2. Prohibitions and [Requirements] Exemptions.
Section 20-_. Prohibitions.
Food vendors are prohibited, as of[July 1, 2018] July 1, 2019, from providing
prepared food to a customer in disposable food service ware that is made from
polystyrene foam.
[- • -! _ . . . • . • . , . . .... .
• - - • - -
shall use a suitable recyclable or compostable product.
(b) As of July 1, 2018, all county facility users shall use a suitable recyclable
[or compostable] product for disposable food service ware.]
3
Section 20-_. Exemptions.
(a) Uncooked agricultural commodity products that come from the raising
of crops or animals, including but not limited to, eggs, terrestrial meats,
fish, and produce are exempt from the provisions of this article.
(b) Foods packaged outside the limits of the County of Hawai'i are
[exempted] exempt from the provisions of this article.
[(b)](c) Coolers and ice chests that are intended for reuse are [exempted] exempt
from the provisions of this article.
[(e)](d) [County facility users and food] Food vendors[.-]-temporary exemptions.
(1) In situations where compliance with the terms of this article would
result in undue hardship, the director may exempt a food vendor,.
other than a [ef] 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. County facility users and County
food vendors are not eligible for this temporary exemption.
(2) 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.
(3) Food vendors [and County facility users] seeking [an] a temporary
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 or deny an application for a temporary
exemption [request] in whole or in part. [The director's decision
shall be forwarded in writing to the environmental management
commission, which shall concur or disagree with the director's
decision.] Applicants aggrieved by the director's decision with
respect to their application, may, within thirty days after the date of
the director's written decision, appeal the decision to the
environmental management commission.
(5) All temporary exemptions shall be promptly posted on the County
website for the department of environmental management [as a
notice of temporary exemption].
[(€1)](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.] During a time of
4
declared emergency the mayor may, by executive order, temporarily
exempt food vendors, including County facility users and County
vendors, from the provisions of this article, as deemed practicable and
necessary."
5. Bill No. 13, Draft 2, SECTION 1, Division 3 "Enforcement," Section 20- "Education"
is amended to read as follows:
"Section 20-_. Education.
On or before [January 1, 2017] January 1, 2019,the director, shall establish an
education program for businesses, nonprofit organizations, and the general public
regarding [sefFipestable] alternatives to polystyrene foam disposable food service
ware."
TR/dbk/lc
Att.
5
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AN ORDINANCE AMENDING CHAPTER 20, OF THE HAWAII COUNTY CODE 1983
(2016 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. Chapter 20, Hawai`i County Code 1983 (2016 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.
Division 1. General Provisions.
Section 20-_. Findings and purpose.
Solid waste that is nondegradable or nonrecyclable 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.
Polystyrene foam, sometimes incorrectly referred to 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, including birds and fish. This is detrimental not only to wildlife
but to other life forms in the food chain.
In view of the detrimental impacts of this substance in Hawaii County, the
purpose of this article is to reduce the use of polystyrene foam food containers
and food service ware by supermarkets and other vendors and eliminate the use of
polystyrene foam for packaging unprepared food.
As it is the Council's intent that the County shall set an example by limiting
the use of polystyrene foam in its facilities, County facility users and County food
vendors may not be exempted from this article, except during a time of declared
emergency. Although foods packaged outside of the limits of Hawai`i County are
excluded from the provisions of this article, the purveyors of foods prepackaged
outside of the limits of Hawaii County are encouraged to follow these provisions
and thereby support the County's goal to eliminate the use of polystyrene foam
disposable food service ware.
6
These measures will promote the health, safety, and welfare of the County and
its residents by improving environmental quality on the island and in the
neighboring marine environment. Reducing the amount of nondegradable and
nonrecyclable 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.
The Council finds that it is imperative to afford the department of
environmental management sufficient time to plan and secure the funding and
staffing necessary to implement this new program. Consequently, the prohibition
contained in this ordinance shall take effect on July 1, 2019."
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:
"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.
"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, 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 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,
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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 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. Food packaging does not include forks, knives,
straws, 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 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#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 "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. "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.
"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 on food
8
r
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 a: 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 is 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.
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.
Division 2. Prohibitions and Exemptions.
Section 20-_. Prohibitions.
Food vendors are prohibited, as of July 1, 2019, from providing prepared food
to a customer in disposable food service ware that is made from polystyrene foam.
Section 20-_. Exemptions.
(a) Uncooked agricultural commodity products that come from the raising of
crops or animals, including but not limited to, eggs, terrestrial meats, fish, and
produce are exempt from the provisions of this article.
(b) Foods packaged outside the limits of the County of Hawai'i are exempt from
the provisions of this article.
(c) Coolers and ice chests that are intended for reuse are exempt from the
provisions of this article.
(d) Food vendors -temporary exemptions.
(1) In situations where compliance with the terms of this article would result
in undue hardship, the director may exempt a food vendor, other than 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. County facility users and County food vendors are not eligible for
this temporary exemption.
9
(2) Undue hardship includes, but is not limited to, situations unique to the
food vendor not generally applicable to other persons in similar
circumstances.
(3) Food vendors seeking a temporary 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 or deny an application for a temporary
exemption in whole or in part. Applicants aggrieved by the director's
decision with respect to their application, may, within thirty days after
the date of the director's written decision, appeal the decision to the
environmental management commission.
(5) All temporary exemptions shall be promptly posted on the County
website for the department of environmental management.
(e) During a time of declared emergency the mayor may, by executive order,
temporarily exempt food vendors, including County facility users and County
vendors, from the provisions of this article, as deemed practicable and
necessary."
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 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.
(b) Each and every sale or transfer of disposable food service ware made from
polystyrene foam shall constitute a separate violation of this article.
(c) 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 section 2-204 of this Code.
Section 20-_. Fines.
(a) A fine may be imposed upon findings made by the director that any food
vendor has used polystyrene-based disposable food service ware in violation
of this article.
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(b) Amount of fine. Upon findings made under this article, the food vendor 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$50 for a second violation; and
(3) A fine not exceeding $200 for the third and any subsequent violations.
(c) Food vendors who violate this article in connection with commercial or non-
commercial special events shall be assessed fines for each special event as
follows:
(1) A fine of$10 for a first violation;
(2) A fine of$50 for a second violation; and
(3) For a third and any subsequent violation:
(A) A fine not to exceed$100 for an event of one to 200 persons;
(B) A fine not to exceed$200 for an event of 201 to 400 persons;
(C) A fine not to exceed$400 for an event of 401 to 600 persons; and
(D) A fine not to exceed$600 for an event of 600 or more persons.
(d) 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 contesting the imposition of the fine. The grounds for the contest
shall be that the 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.
(e) 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.
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Section 20-_. Education.
On or before January 1, 2019,the director shall establish an education program
for businesses, nonprofit organizations, and the general public regarding
alternatives to polystyrene foam disposable 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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