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HomeMy WebLinkAboutCOM 0107.163 2016-2018 JNtY OF p;' VALERIE T. POINDEXTER y . 44, Phone: (808)961-8828 Council Chairwoman and Presiding Officer ��s; ��: Fax: (808)961-8912 Council District 1 Email: vpoindexter@co.hawaii.hi.us nfi�M HAWAII COUNTY COUNCIL County of Hawai`i c:::) v [n Hawai`i County Building ate- 'Q 25 Aupuni Street, Suite 1402 Hilo, Hawai`i 96720 " `71 t`7 DATE: August 17, 2017 rra 4 -- TO: Members of the Hawai`i County Council FROM: Valerie T. Poindexter, Council Chairwoman RE: Comments and Recommendations of Referred Bill No. 13, Draft 3, Relating to the Reduction of Styrofoam Food Containers and Food Service Ware from the Department of Environmental Management and the Environmental Management Commission Please see attached comments and recommendations from the Department of Environmental Management relating to Bill No. 13, Draft 3, reduction of Styrofoam food containers and food service ware. First reading for this item will be heard at the September 7, 2017 Council meeting. Thank you. VP/sc Att. Comm. No. 107,1(9 3 Ref. ToM Ref, Dote AUG. 2 2 nil Hawai`i County is an Equal Opportunity Provider and Employer OJ�tY os p,' Richard Bennett James Fritz - * �• �•..�:�,:.�:*, Chair =-• • Vice Chair T f OP•N�'�• Count of Rainai`i c:), ENVIRONMENTAL MANAGEMENT COMMISSION --� 25 Aupuni Street • Hilo,Hawaii 96720 (808)961-8083 -Fax(808)961-8086 CZ+. Q-� TRANSMITTAL 3>ni Date: August.15, 2017 To: Valerie Poindexter, Council Chair and Members of the Hawai`i County Council Nk 6(3 From: James Fritz, Chair RE: Referral of Bill 13, Draft 3, an ordinance amending the Hawaii County Code 1983 (2005 Edition, as amended),by adding a new article relating to reduction of Styrofoam food containers and food service ware By unanimous vote of the members present at the July 26,2017 meeting,the Environmental Management Commission(EMC) is submitting its support of Bill 13, Draft 3. Thank you for the opportunity to provide input in support of this resolution. County of Hawaii is an Equal Opportunity Provider and Employer. JMtYOsp1lt,,. William A.Kucharski Harry Kim .16:-e41.1 Director Mayor Wilfred M.Okabe •o10, ?� Diane A.Noda Managing Director Deputy Director ..:C3. `v 0 GLUME of natuan DEPARTMENT OF ENVIRONMENTAL MANAGEMENT 0• co 345 Kekuanao`a Street,Suite 41 •Hilo,Hawaii 96720 -71CD (808)961-8083•Fax(808)961-8086 s i— cohdem@co.hawaii.hi.us '* .!'TM'! http://www.hawaiicounty.gov/environmental-management/ 04 -•-- TRANSMITTAL Date: August 16, 2017 To: Valerie Poindexter, Council Chair and Members of the Hawai`i County C s unc'1 1/2 I From: William A. Kucharski, Director 41...x/ Subject: Referral of Bill 13, Draft 3, an ordinance amending the Hawai`i County Code 1983 (2005 Edition, as amended), by adding a new article relating to reduction of Styrofoam food containers and food service ware Attached is a hard copy of Bill 13, Draft 3 with track changes reflecting comments from the Department of Environmental Management and our Deputy Corporation Counsel, Keyra Wong. Thank you for the opportunity to provide input regarding this Bill. WK:mt County of Hawaii is an Equal Opportunity Provider and Employer. • 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 AM)FOOD SERVICE WARE. BE IT ORDAINED BY [HE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1.Chapter 20,Hawaii County Code 1983(2016 Edition, asamended), 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 inHawai'i County, it is the purpose of this article to:reduce the use of polystyrene foam food containers and food service ware by supermarkets and other vendors: eliminate the use of polystyrene foam for packaging prepared and unprepared food; and thereby . promote the use of environmentally preferable alternatives. Although foods packaged outside of the limits of Hawaii 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 5 and thereby support the County's policy goal to eliminate the use of polystyrene foam disposable food service ware. Implementation of this ban will maximize diversion of compostables, including compostable foodware, from the waste stream to be available as compost to farmers, landscapers, and residents. Accordingly, this ordinance is being implemented in tandem with the County's full-scale compost program. Through these measures,it is the Council's intent to improve environmental quality on the island and in the neighboring marine environment. Reduction of the amount ofnondegradable 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. 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. Itis 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 d distinguish the ASTM-standard compostable plastic from non-ASTM standar compostable plastic. "County facility"means any building, structure, or vehicle owned and operated by the County, its agents, agenciesand departments and includes County buildings, structures,parks, recreation facilities, or property. 6 'County facility users"means all persons, societies, associations, organizations, or special event promoters who require a permit to reserve or rent a Commented WW1]:Campers at County Faculties require County facility or a permit or contract to use a sidewalk or roadway. County permits,so they are impacted by this Bill.Should this be facility users also include concession contracts with the County, County managed I explicitly added? 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 Commented[KW2]:o Keyra Wong(CC): or the director's authorized representative. oFor clarity,in the definition of disposable food service p ware,it may be appropriate for the second sentence to be rewritten as follows: "This includes,but is not limited to,service ware for takeout foods and/or 'Disposable food service ware"means disposable food containers that are leftovers from partially consumed meals prepared at a used, or are intended to be used,to serve or transport prepared, ready-to-consume food vendor(strikeout restaurants and retail food food or beverages that are commonly disposed of after a single use. This includes, vendors)." This is so because the definition of"food vendor"includes restaurants and retail food vendors. but is not limited to, service ware for takeout foods and/or leftovers from partially olt appears there is an inconsistency between the consumed meals prepared at restaurants or retail food vendors. 'Disposable food definition of disposable food service ware and the definition of food service ware. The definition of service ware" includes,but is not limited to,a cup,bowl,plate, tray,carton,hinged, disposable food service ware specifically excludes lidded, or clamshell container that is intended for single use. "Disposable food utensils;however,the definition of food service ware service ware"excludes straws,cup lids,utensils, and packaging for unprepared includes forks,spoons,and knives. In addition,the food. definition of disposable food service ware excludes cup lids and straws,but the definition for food service ware includes lids and straws. While cup lids are different "Food packaging" means all food-related wrappings, bags, boxes, containers, from lids in general,perhaps clarification is needed as bowls, plates,trays, cartons,cups,lids,or drinking utensils, in which food or to what types of lids are considered included under food beverage is placed or packaged on the retail food establishment's premises, and service ware. which are not intended for reuse. Food packaging does not include forks`spoons, Commented[KM]:Added spoons and stirrers to make knives,straws, stirrers or single-service condiment packages. language consistent with the definition of Food Service Ware.Alternatively,could substitute"utensils"(Disposable "Food provider" means any vendor, business, organization, entity, group,or food service ware)for forks,spoons,stirrers. individual operating in the County which provides prepared food for public (Commented[KW4]:Though not listed,a school cafeteria consumption on or off its premises and includes without limitation any store,shop, meets the definition of a food establishment(see quote sales outlet,restaurant, grocery store,supermarket, delicatessen, caterer, catering below).Question,ought"school cafeteria"be identified as a truck or vehicle; and any organization, group or individual which provides food in specific type of facility here? "or any other place in which food and drink is prepared conjunction with services. for sale or for service on the premises or elsewhere;and any other establishment or operation where food is "Food service ware"includes plates, bowls, cups, lids, straws, stirrers, forks, processed prepared,served or provided to or for spoons,knives,napkins, trays, and other items primarily designed for use in consumers for charge." consuming food. Commented(KW51:o oKeyra Wong(CC): 'Food vendor"means any re-static-colt-retail food establishment. oTo eliminate redundancy,the definition for food vendor can be rewritten as follows: "Food vendor means any retail food establishment." This is so 'Polystyrene foam"means a thermoplastic petrochemical material utilizing because the definition of retail food establishment the styrene monomer, which may be marked with resin symbol#6,processed by includes restaurants. any number of techniques including, but not limited to fusion of polymer spheres (expandable bead polystyrene), injection molding, form molding, and extrusion- Commented[KW6]:A restaurant is identified as a food blow molding (extruded foam polystyrene), sometimes referred to as"Styrofoam," establishment in that definition,therefore it is redundant in this definition "Retail food establishment"shall include... induding,but not limited to o:restaurant;drive-in;coffee shop;cafeteria;short-order cafe;... 7 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. - Commented[KW7]:oKeyra Wong(CC): °Perhaps clarification is needed for what"solid hard 'Prepared food"means food or beverages, which are served,packaged, polystyrene"means as solid hard polystyrene is cooked, chopped, sliced,mixed,brewed, frozen,squeezed, or otherwise prepared excluded from the definition. for consumption by a retail consumer on the premises of a retail food establishment, includin not to,beverages, ready to eat,and takeout food. food"does not include rraaw,butchered meats, fish and/or poultry unless providedd commented(KW8]:This exemption is not useful.Section for consumption without further food preparation. For example, sashimi and poke Required use of recyclable or compostable food service shall be considered to be prepared food. ware As of July 1,2019,all food vendors using any disposable 'Recyclables" means material that has reached the end of its current use and is food service ware shall use a suitable recyclable or processed into material utilized in the production of new products. For the purpose of this compostable product article,recyclable materials will include only those types of plastic being accepted in the Hard Polystyrehe products are not recyclable or compostable,therefore exempting hard polystyrene in this Hawai'i County Recycling program. definition seems irrelevant. 'Retail food establishment"means any sales outlet, store, shop,vehicle;or _-- Commented[1(1N9]:oKeyra Wong(CC): other place of business which sells or conveys foods or beverages to ultimate oThe first sentence reads,"Retail food establishment consumers,which foods or beverages are contained, wrapped, or held in or on food means any sales outlet,store,shop,vehicle,or other place of business which sells or conveys foods or packaging. 'Retail food establishment" shall include,but not be limited to, any beverages to ultimate consumers...." Clarification may place where food is prepared, mixed, cooked,baked, smoked,preserved, bottled, be needed to explain what an ultimate consumer is. packaged,handled, stored,manufactured, and sold or offered for sale,including, but not limited to a:restaurant; drive-in; coffee shop;cafeteria; short-order cafe; 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 I Commented[KW10]:This also fits the any other place in which food and drink is prepared for sale or for service on the i function/definition of a school cafeteria. 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 Requirements. Section 20-_.Prohibitions. Food vendors are prohibited, as of July 1,2019,from providing food to a customer in disposable food service ware that is made from polystyrene foam. Section 20-_. Required use of recyclable or compostable food service ware. Commented[KW11]:Definition of Polystyrene foam: (a) As of July 1,2019, all food vendors using any disposable food service ware "Polystyrene foam"does not include solid hard polystyrene. shall use a suitable recyclable or compostable product. Not forbidden by first sub section,is forbidden(not recyclable or compostable)by(a). Clarification is necessary. 8 Commented[KW12]:Note: This includes campers and regular visitors to County parks. (b) As of July 1,2019,all county facility users shall use a suitable recyclable or Containers cannot be polystyrene foam. compostable product for disposable food service ware. Commented[KW13]:Keyra Wong(CC): Under subsection(b),it is important to note that as this bill is Section 20-_. Exemptions. currently written,only food vendors and not county facility (a) Foods packaged outside the limits of the County of Hawai'i are exempted users can be fined for a violation of this proposed ordinance pursuant to the Division 3 enforcement section of this bill. from the provisions of this article. Commented[KW14]:•Keyra Wong(CC): (b) Coolers and ice chests that are intended for reuse are exempted from the •Under subsection(a),perhaps a sentence could be added that the"County of Hawai`i encourages purveyors of provisions of this article. prepared or packaged food outside the county limits to follow the provisions of this proposed ordinance." (c) Packaging for raw meat, fish and eggs that have not been further processed shall be exempt from the provisions of this article until such time that Commented[KW15] • compostable alternatives are developed and available. Keyra Wong(CC): •The part of the sentence stating"not been further (d) County facility users and food vendors. processed"is vague. If the intent under this section is to (1) In situations where compliance with the terms of this article would result not include foods such as sashimi and poke(because in undue hardship, the director may exempt a food vendor or County sashimi and poke are considered prepared food for which the ban applies to),then perhaps saying"Packaging for facility user from the requirements set forth in this article for a period of raw meat,fish,and eggs without further preparation for time not to exceed one hundred eighty days., sale shall be exempt from the provisions of this article...." (2) Undue hardship includes, but is not limited to, situations unique to the may be more appropriate so that it is clear this exemption does not include prepared food. food vendor or County facility user not generally applicable to other persons in similar circumstances. Commented[KW16]••Keyra Wong(CC): (3) Food vendors and County facility users seeking an exemption from the •under subsection(c),the part of the sentence saying requirements of this article shall provide all required information on an "until such time that compostable alternatives are application for exemption; including but not limited to,documentation developed and available"could be eliminated without affecting the rest of the sentence. By leaving that i...[1] supporting the applicant's claim that compliance with this article will result in undue hardship. (Commented[KW17]:Keyra Wong(CC): Under subsection(dx 1),clarification may be needed on (4) The'director may approve an exemption request in whole or in part. The ,whether a county facility user or a food vendor needs to director's decision shall be forwarded in writing to the environmental apply for a hardship exemption first,or if a county facility management commission, which shall concur or disagree with the user or food vendor may apply for a hardship even afie 2[ ] director's decision. Commented(KW18):Note:Exemptions are limited to (5) All exemptions shall be promptly posted on the County website for the 180 days.There is no prohibition however to multiple department of environmental management as a notice of temporary requests. exemption. Commented[KW19]:Note:DEM will be required to formulate this application.Input from EMC would be (e)Emergency supplies or services procurement. County facility users and food helpful. vendors shall be exempt from the provisions of this article in a situation deemed by the mayor to be an emergency for the immediatepreservation of thepublic peace,health, Commented[KW2O]:•Under subsection(d)(4),it is y g y unclear if the director's decision for exemption shall be and safety automatically forwarded in writing to the Environmental Management Commission,or if the food vendor or county Division 3. Enforcement. facility user must formally appeal the director's deci Section 20- .Violations. Commented[KW21]:Note:EMC will require rules and procedures for the review and process/standards for (a) If the director determines that a violation of this article has occurred, the approval/disapproval need to be formulated. director shall issue a written notice to the food vendor that a violation has Please note that this section is silent on what"disagre [4] occurred. Subsequent violations of this article by a food vendor shall be (Commented[KW22]:Keyra Wong(CC): subject to the enforcement and penalties set forth below. I Under subsection(e),perhaps a sentence can be added to state that"the exemption shall be in place only until the (b) Each and every sale or transfer of disposable food service ware made from emergency has ceased or the mayor has determined the exemption is no longer applicable to the situation polystyrene foam shall constitute a separate violation of this article. Commented[KW23]:•Keyra Wong(CC): •It is important to note that the Violations and Fines sections are only imposed upon food vendors. *Under subsection(b),it states that each and every sale or transfer constitutes a separate violation of the (._.[51 (c) Any violation of this article that occurs after the issuance of a written warning Commented(KW2a] Sub part(a)above states that the to a food vendor is subject to civil and administrative enforcement,punishable director shall issue a...."written notice to the food vendor by a civil fine established in this article. Any citation issued for a violation of that a violation has occurred..." this article shall give notice of the right to request an administrative hearing to Sub part(c)refers to a"written warning"having been given. challenge the validity of the citation and the time for requesting that hearing Clarification is required.Does(a)require a warning first? - as provided in section 2-ofthis Code. Commented[KW25]:Note:DEM must generate the violation notice containing these specific notices. Section 20" • Fines. Commented[KW26]:•Keyra Wong(CC): (a) A fine may be imposed upon findings made by the director that any food •Under subsection(c),it states that a challenge to the vendor has used polystyrene-based disposable food service ware in violation validity of a citation and time for requesting the hearing is provided in"section 2-204 of this Code." Because of this article. "Code"is capitalized and is a reference,a definition for "Code"(as Hawai`i County Code)may be appropriate. (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: I Commented[KW27]:Again,the status of"hard (1) A fine of$10 for a first violation; Polystyrene"must be addressed. (2) A fine of$50 for a second violation;and Commented[KW28]:Note:Dem will have to establish (3) A fine not exceeding$200 for the third and any subsequent violations. the standards to assess a variable fine."Up to..."requires standards. (c) Food vendors who violate this article in connection with commercial or non- Commented[KW29]:Special events has no definition. Does this mean a private party?A Holiday celebration?A commercial Special events Shall be assessed fines for each special event as Il Wedding? follows: - Commented[KW30]:•Keyra Wong(CC): (1) A fine of$10 for a first violation; *Under subsection(c),it states that food vendors who (2) A fine of$50 for a second violation;and violate this article in connection with commercial or non- (3) For athird and any subsequent violation: commercial special events shall be assessed fines for (A) A fine not to exceed$100 for an event of one to 200 persons; each special event. Clarification is necessary for what "special events"means. Does it mean a food vendor who (B) A fine not to exceed$200 for an event of 201 to 400 persons; must have applied for a special events permit issued by (C) A fine not to exceed$400 for an event of 401 to 600 persons;and the County? Perhaps a definition for"special events" (D) A fme not to exceed$600 for an event of 600 or more persons. would be helpful. (d) Fine procedures. Notice of the fine shall be served on the food vendor. The Commented[KW31]:• (CC): notice shall contain an advisement of the right to request a hearing before the Keys Wong ski subsection (d),it states that a hearing before the director contesting the imposition of the fine. The grounds for the contest director must be requested in thirty days of the date shall be that the food vendor did not use polystyrene foam-based disposable appearing on the notice of the fine. However,Hawaii food service ware when providing prepared food. Said hearing must be County code§2-204(c)states that"Any order issued under this chapter shall become final,unless not later requested within thirty days of the date appearing on the notice of the fine. than twenty days after the notice of order is served,the The hearing shall be held within thirty days of receipt of the request for the person or persons named therein request in writing a hearing.The decision of the director shall be based upon a finding that the hearing before the director." For consistency with Hawai`i County Code§2-204(c),it is recommended that above listed grounds for a contest have been met or not met and shall be a a person must request a hearing twenty(20)days of the final administrative order. date appearing on the notice of the fine. (e) Failure to pay fine. Fines not paid within thirty days from the date appearing Commented[KW32]:Examine EMC review-possible on the notice of the fme or of the notice of determination of the director after conflict.If the Directors determination is a"final Adthe hearing,shall be referred to a collection agency. play? strative order"where does a review by EMC come to play. (c)below: ...[6] Commented[KW33]:•Keyra Wong (CC): *Under subsection(e),perhaps for consistency with§2- 204,it would be easier to state that the fine procedures under this article shall be consistent with Hawai`i County Code§2-204(e),which reads,"If the amount of an(...[7] 10 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 Commented IKW341:Since the EMC decision power is within thirty days of issuance of the decision of the commission. not explicitly defined,does this mean that if the EMC disagrees with the Director's decision it goes away?What Section 20._.Education. vote is required for overturn of the director's decision? Simple majority?2/3?These rules need to be formulated. On or before January 1,2019,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." 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. Page 9:[1]Commented[KW16] Kucharski,William 8/16/2017 10:00:00 AM • Keyra Wong(CC): • under subsection(c),the part of the sentence saying"until such time that compostable alternatives are developed and available"could be eliminated without affecting the rest of the sentence. By leaving that language in subsection(c), it may be difficult for the county to regulate when an alternative is developed and how food vendors and county facility users are supposed to be aware that compostable alternatives are available. Page 9:[2]Commented [KW17] Kucharski, William 8/16/2017 10:04:00 AM Keyra Wong(CC): Under subsection(d)(1),clarification may be needed on whether a county facility user or a food vendor needs to apply for a hardship exemption first,or if a county facility user or food vendor may apply for a hardship even after receiving a notice for a violation. Page 9: [3] Commented [KW20] Kucharski,William 8/16/2017 10:06:00 AM • Under subsection(dX4), it is unclear if the director's decision for exemption shall be automatically forwarded in writing to the Environmental Management Commission,or if the food vendor or county facility user must formally appeal the director's decision as a final order of the director. In Hawai`i County Code §2-204,the Environmental Management Commission has the authority to review any of the director's decisions only when the order is final,and a person appeals the final order. The last sentence of(dX4)appears to give the EMC the authority to review(and potentially reverse/modify)an exemption decision of the director automatically. If that is the intent of the bill,additional clarification is needed, including: How long does the EMC have to determine its decision? How does the EMC evaluate the director's decision? What material does the EMC use in its evaluation? Does the EMC review only the applicant's documentation,or does the EMC review only the director's written decision and evaluate for error? In addition,an explanation is also needed for what happens when the EMC concurs or disagrees with the director's decision as is currently drafted in(d)(4). It may be that the intent is that if the EMC concurs with the director's decision, it affirms the decision. Or if the EMC disagrees with the director's decision,then it may reverse and modify or reverse and remand the director's decision. Page 9:[4]Commented[KW21] Kucharski,William 7/10/2017 10:26:00 AM Note:EMC will require rules and procedures for the review and process/standards for approval/disapproval need to be formulated. Please note that this section is silent on what"disagree" i.e., disapproval means.As written there is no direction as to whether a disagree vote means the exemption can or cannot be issued. Page 9:[5]Commented[KW23] Kucharski,William 8/16/2017 10:10:00 AM • Keyra Wong(CC): • It is important to note that the Violations and Fines sections are only imposed upon food vendors. • Under subsection(b),it states that each and every sale or transfer constitutes a separate violation of the proposed ordinance. This will be difficult to enforce for the county because it will be challenging to trace every sale or transfer of polystyrene foam. In addition,Hawaii County Code§2-205 states,"Any person who violates chapters 20 or 21 [of Hawai`i County Code] shall be fmed not more than $1,000 for each separate offense. Each day of each violation shall constitute a separate offense." Here,as the bill is currently drafted,there will be an inconsistency between the proposed ordinance and the Code regarding what constitutes a separate violation/offense. Subsection(b)under the Fines section also states"separate violation"as opposed to a"separate offense." Because this proposed ordinance amends Chapter 20 of the Hawaii County Code,consistency across Chapter 20 and Hawai`i County Code Article 40 is necessary. Page 10:[6]Commented [KW32] Kucharski,William 7/7/2017 1:04:00 PM Examine EMC review-possible conflict. If the Directors determination is a "final Administrative order" where does a review by EMC come to play? (c) below: 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. Page 10:[7] Commented [KW33] Kucharski,William 8/16/2017 10:48:00 AM J • Keyra Wong (CC): • Under subsection(e),perhaps for consistency with §2-204, it would be easier to state that the fine procedures under this article shall be consistent with Hawaii County Code §2-204(e), which reads,"If the amount of any penalty is not paid to the department within thirty days after it becomes due and payable,the director may institute a civil action in the name of the County to collect the administrative penalty which shall be a government realization...." A civil action must be initiated first and penalties cannot be automatically referred to a collection agency.