HomeMy WebLinkAboutCOM 0107.016 2016-2018 •
COUNTY CLERK
COUNTY OF HAWAI r I <vg,;, ,
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Time 2. S 1 By
Harry Kim DateNfAR 07 1017 �•'�°% '�' William A.Kucharski
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Mayor =- s Director
ti'4: '.°''1..` Diane A.Noda
Wilfred M.Okabe rF os'Nr�
Managing Director Deputy Director
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DEPARTMENT OF ENVIRONMENTAL MANAGEMENT
345 Kekuanao`a Street,Suite 41 • Hilo,Hawaii 96720
(808)961-8083 •Fax(808)961-8086
htto://www.hawaiicounty.govienvironmental-manauement/
TRANSMITTAL
Date: March 7, 2017
To: Valerie Poindexter, Chair
- Hawai'i County Council
From: William A. Kucharski, Director
Dept. of Environmental Management /
1
Re: Bill 13 (Draft 2), 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
My testimony regarding Bill 13 (Draft 2 ) is attached.
Thank you for the opportunity to provide input regarding this bill.
ecimmi No: 0 O 1• ' '
Ref. To: 11 I LOIN.
Oef. Date 21410121111r..
County of Hawaii is an Equal Opportunity Provider and Employer.
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Harry Kim !�'•l:,y �=.' William A.Kucharski
Mayor - " Director
•�' 0.�:- Diane A.Noda
Wilfred M.Okabe rE oF'N►`w.-
Managing Director Deputy Director
CUMIN of%Avar`r
DEPARTMENT OF ENVIRONMENTAL MANAGEMENT
345 Kekuanao`a Street,Suite 41 • Hilo,Hawaii 96720
(808)961-8083 •Fax(808)961-8086
httn://www.hawaiicountv.govienvironmental-management/
Summary of Testimony on
Bill 13 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
My name is William Kucharski and I am the Director of the Department of Environmental
Management (DEM)for the County of Hawai'i. I have been asked to prepare and deliver
testimony on`Bill 13 (Draft 2), hereafter"Bill 13" or the "Bill," dealing with the reduction of the
use of polystyrene foam in the County of Hawai'i for single food service use. DEM is
responsible for managing County owned and operated solid waste disposal facilities, including
East Hawaii Sanitary Landfill in Hilo and West Hawai'i Sanitary Landfill, Puuanahulu, in North
Kona. The goal of reducing the use of polystyrene foam products is driven by the impact of this
product on our environment. Before commencing DEM testimony, it must be stated that
without supplying the financial and personnel resources necessary to train personnel,
develop administrative rules and to adequately enforce the polystyrene foam ban in the
County of Hawai'i,a disservice to the Bill, DEM and the citizens of our County will occur.
Therefore,without adequate financial and personnel support,in spite of supporting its goals
and intent, DEM cannot support this Bill.
Bill 13 bans the specific use of polystyrene foam, a "recyclable" material, in one time use food
packaging. The Bill would impact retail grocery stores,food marts,food delivery services and
food packagers to name a few. The financial impacts to these institutions and the public are
outside of the DEM's area of responsibility and others can better address these impacts to the
Council. DEM's comments will be limited to the impact of the Bill on DEM operations and
waste stream volumes. Attached are specific comments on specific sections of the Bill and
unless otherwise instructed DEM will leave those comments to your perusal after this hearing.
The comments reflect the verbiage of the Bill as currently drafted, and does not contain
recommendation for changes. The testimony that follows does contain recommendations.
The first issue DEM considered is why the Bill only addresses the "recyclable" polystyrene foam
and does not address the use of materials in single use food packaging that are not
compostable or readily recyclable.
Whether Bill 13 bans only polystyrene foam or all recyclable but not compostable materials,
enforcement and management of Bill 13 by DEM will require additional personnel and funding
for education, enforcement,training, administrative hearings and rule making. While
County of Hawai`i is an Equal Opportunity Provider and Employer.
Summary of Testimony on Bill 13
March 7, 2017
Page 2 of 7
compliance can be-generally proved by examining packaging and utensils to determine that
they are stamped to show that they are either properly certified as recyclable/compostable or
not,the act of finding and verifying their use is daunting. There are also instances where
probable polystyrene foam containers are not marked in any way. The legal level required to
show compliance is straight forward and easy to verify if the materials are marked as recyclable
or compostable. However, in a case where a container/packaging is not marked, a chemical
analysis would be required to prove that the article is or is not polystyrene foam.-This adds an
additional layer of cost,time and complexity to an already difficult enforcement-scenario.
However, even if all containers are properly marked,this simple County-wide enforcement
activity requires additional budget and personnel. In addition,the Bill would require
Corporation Counsel to defend DEM's decision in civil court if a violation is appealed. Funding is
a significant issue and, as stated at the beginning of this testimony, without adequate funding
DEM is unable to support the Bill. DEM cannot, in good faith, support the additional burden of
creating and enforcing the requirements of Bill 13 without a guarantee of suitable funding. To
support any Bill, when enforcement is not viable, is unacceptable to both DEM and the public,
however much-we support the goal of reducing our waste stream and maximizing material
reuse.
Other issues: While Bill 13 allows DEM to fine a seller of food products for using polystyrene
foam, it holds no penalty for the use of other non-compostable or recyclable products.
Allowing a non-recyclable product that is just NOT POLYSTYRENE, will simply change the
composition of the waste in the environment, not help clean our environment. Since recyclable
materials require separation and very specific processing to be able to be recycled, changing
from polystyrene foam to just another"recyclable" waste does not solve the County's waste.
problem. However, replacing a recyclable product with one that is compostable, is a goal to
support.
The amount of material entering our landfills will probably not change appreciably as a result of
Bill 13. Single use food packaging is generally just placed in waste bins that can be transported
directly to a landfill. A specific and focused recycling program would be required to collect,
prepare and isolate used food packing materials,thereby separating those items from the
general waste stream. This might seem relatively easy at a farmer's market type environment,
but difficult for other venues such as a restaurant take out. If food packaging wastes have not
been isolated and properly prepared for recycle,from a landfill perspective, a change from
polystyrene foam to any other material makes no difference in the received volume of waste.
This is because non-separated compostable or non-compostable food packaging all would go to
a landfill.
Exemptions: DEM would be required to formulate a set of administrative rules to manage the
issuance of exemptions under Bill 13. It is contemplated that a single use issue rather than a
specific user, would be exempted. For example, raw meat or fish packaging could categorically
be exempted, rather than store A or vendor B. Categorical exemptions such as those
mentioned could be issued with a fair and easily understood set of rules. Such exemptions
could be reviewed annually(if the 180 day exemption limitation is changed),to take advantage
County of Hawaii is an Equal Opportunity Provider and Employer.
Summary of Testimony on Bill 13
March 7, 2017
Page 3 of 7
of new packaging progress during the period of the exemption, so that when acceptable
materials are available,the exemption could be voided. This would require a robust set of
administrative rules, continued review of market research and test results, all of which will
require additional budget and personnel.
Education: The mandatory education section of the Bill would require DEM to communicate to
the public both the nature of the new requirement, and also the need to dispose of
recyclable/compostable items appropriately. Compostable or not, a packaging ought not leave
a vehicle, park bench or beach blanket unless it is going into a proper waste receptacle. DEM is
very concerned with litter and will attempt to create a program that addresses the problem
across the County of Hawai'i. DEM has no empirical data available to support the belief that
most polystyrene and other food packaging wastes enter the environment from littering.That
being said,few other sources of the waste can be identified.This (littering compostable
packaging) is another issue where Bill 13 education is required.
As stated in previous sections, Bill 13 will require that additional budget and personnel be made
available to design and implement an appropriate education program.
I thank you for your kind attention.
The following pages contain specific comments on the text of Bill 13.
County of Hawaii is an Equal Opportunity Provider and Employer.
Summary of Testimony on Bill 13
March 7, 2017
Page4of7
Bill No. 13 (Draft 2)
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.
The Department of Environmental Management (DEM) has reviewed Bill 13 ("Bill 13" or"Bill")
and respectfully submits the following comments:
1) The intent of the Bill "...to eliminate the use of polystyrene foam for packaging unprepared
food, and thereby promote the use of environmentally preferable alternatives..." is a
supportable purpose and goal and DEM is in full agreement with the intent. Each of the
requirements to enforce a polystyrene foam ban in the County of Hawai'i requires
personnel and budget. DEM is an operating department with responsibilities that include
solid waste management and recycling. The additional tasks provided for in Bill 13 would
make DEM, Solid Waste Division responsible for regulatory compliance. To add this to
DEM's responsibilities without supplying the financial and personnel resources necessary
to train personnel and to adequately enforce the polystyrene foam ban in the County of
Hawai'i would do a disservice to the Bill, DEM and the citizens of our County. Therefore,
without adequate financial and personnel support, DEM cannot support this Bill,in spite
of supporting its goals and intent.
2) For clarification the following definitions are of importance:
a) "Food vendor" means any restaurant or retail food establishment.
b) "Food provider" means any vendor, business, organization... includes without limitation
...., grocery store, supermarket...which provides food in conjunction with services.
c) "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 packaging.
d) "Food packaging" means all food- related wrappings... which are not intended for reuse.
3) Section 20-_. Required use of recyclable or compostable food service ware.
a) As of July 1, 2018, all food vendors using any disposable food service ware shall use a
suitable recyclable or compostable product.
i) Comment:
(1) This section can pose problems for local supermarkets and retailers. Since
"Retail Food Establishments" are "Food establishments"they are subject to this
section. Mainland facilities who not forbidden the use of Non-recyclable
packaging can send items to Hawai'i, such as eggs, or prepackaged meats, in
polystyrene foam packaging. However, once a shipment is received in Hawai'i,
retailers would be required to re-package these foods in recyclable or
compostable containers before they could sell such items locally.This could
result in a significant cost impact to Hawai'i County residents. In addition, given
the stated situation, Hawai'i County could still have to dispose of the non-
County of Hawaii is an Equal Opportunity Provider and Employer. •
Summary of Testimony on Bill 13
March 7, 2017
Page 5 of 7
recyclable food packaging without the commensurate value of use. July 1, 2018
does not provide sufficient time for users to change product.
4) Section 20-_. Exemptions
a) A potential conflict can result from Section 20-_Exemptions which exempts foods
packaged outside of the County of Hawai'i from this article and Section 20-
_Prohibitions which states "Food vendors are prohibited...from providing prepared
food to a customer in disposable food service ware that is made from polystyrene
foam".The intent that the Exemption article supersedes the Prohibition part requires
clarification. -
b) Part(c) (4) The director may approve an 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.
i) Comment:
(1) This part of the Bill will authorize the Director to issue a 180 day"exemption"
from utilizing recyclable or compostable food packing products to vendors who
request one. Enactment of this section will require Administrative Rules to be
prepared and will increase the requirements for personnel in the department
without supplying any additional positions or budget. This would also impact
the environmental management commission.
(2). The 180 day exemption may be too short a time to find, purchase and begin
utilizing a compostable or recyclable replacement to polystyrene foam.
5) Section 20-_.Violations
a) (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....
i) Comment:
(1) How is the director to determine a violation? If every Polystyrene foam
packaging is uniquely stamped as such,then that ought to satisfy a legal court
determination of guilt. If,for some reason,food packaging is not stamped,
proof of what the material actually is, would be required. A chemical analysis
would have to be required, since one cannot prove that a material consists of
polystyrene foam visually. Given that any violation can be challenged in civil
court (Section 20-_Other Relief), a legally supportable proof of violation
standard would be required.
(2) Additional personnel would be required to police every vending truck, every
farmers market,fair or location where food is being served to determine
whether polystyrene foam is in use. Licenses for food vendors resides with the
State Department of Health and DEM would be required to identify all licensed
and unlicensed food vendors in the county. The personnel requirements will be
significant, at least until the ordnance is mature and stocks of polystyrene foam
food packages have been depleted or destroyed. This activity would require
additional staff and budget to enforce.
b) (a)...Subsequent violations of this article by a food vendor shall be subject to the
enforcement and penalties set forth below.
County of Hawaii is an Equal Opportunity Provider and Employer.
Summary of Testimony on Bill 13
March 7, 2017
Page 6 of 7
c) (b) Each and every sale or transfer of disposable food service ware made from
polystyrene foam shall constitute a separate violation of this article.
i) Comment:
(1) When can a "subsequent violation" occur? Immediately after receipt of a
notice? Or must/can a vendor appeal the notice before a subsequent violation
can occur? For example, DEM cites a vendor at a location, issues a warning.
The vendor then sells another plate lunch (example). This then becomes the
first"violation" ((c) above) and is subject to the fine. The vendor is then issued
a Notice of Violation, and meanwhile, he/she sells the third plate. This keeps
going since every sale is a separate violation.
d) (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.
i) Comment
(1) DEM has not been established with internal Administrative processes. The
requirement to hold an administrative hearing would require additional
personnel trained in Hearing/Administrative protocols and procedures.
Training, personnel and budget is required for the appropriate handling of this
section's requirements and as described in the "Fines" section of the Bill.
6) Section 20-_. Fines
a) (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.
i) Comment
(1) Identifying packaging made of polystyrene foam is done by examining the
required markings on the packaging. If a packaging material is NOT stamped,
costs and handling of evidence for laboratory analyses need to be determined.
Since any fine can be taken to civil court for appeal, DEM would be required to
have a separate, controlled evidence room to hold the products claimed to be
polystyrene foam. If a container has no marking for some reason,the obligation
to determine the composition belong to DEM. A chemical analysis will be
required in the case where the container is not clearly marked as being
polystyrene foam, since one cannot otherwise prove that a material consists of
polystyrene foam visually.
(2) Costs and handling of evidence for laboratory analyses need to be determined.
Establishing a chain of custody and obtaining appropriate analyses from
certified laboratories will require additional administrative rules, storage and
custody records a facilities would also be required, requiring additional
personnel and additional budget.
(3) While the Prohibitions section bans polystyrene foam, the following section,
Required use of recyclable or compostable food service ware simply requires
the use of"...a suitable recyclable or compostable product....". However,the
County of Hawaii is an Equal Opportunity Provider and Employer.
Summary of Testimony on Bill 13
March 7, 2017
Page 7 of 7
Fines section only allows fines for the use of polystyrene foam products, no
other disposable packaging is covered by the current wording of the Bill.
b) (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.
i) Comment
(1)The requirement for the director to hold the hearing imposes significant time
obligations on the department. Additionally, every decision can be appealed to
the Environmental Management Commission further requiring the time of the
director.
7) Section 20-_. Other relief
a) (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....
i) Comment
(1)There are no guidance in this Bill as to what constitutes "other enforcement
actions" since the Bill assigns DEM the power to fine venders only.
b) (c)...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.
i) Comment
(1) Any appeal can be assigned to a Circuit Court; this requires the creation of
internal rules to meet a legal standard for rules of evidence, chains of custody
and legal support that resides outside of DEM. Corporation Counsel would be
required to support any such court cases. Funding for this potential activity
would be required.
(2) The language that the environmental management commission (EMC) must
uphold a violation means that, as written, a rejection of the fine by EMC voids
the violation and DEM has no right to appeal that decision to the Circuit Court.
Is this the intent?
8) Section 20-_. Education
a) On or before January 1, 2018, the director shall establish an education program for
businesses, nonprofit organizations, and the general public regarding compostable
alternatives to polystyrene foam disposable food service ware."
i) Comment
(1)The education program will require additional personnel and budget
County of Hawaii is an Equal Opportunity Provider and Employer.
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