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Styrofoam Ban - Edmonds (791064)1 Draft Ordinance (2).pdf ORDINANCE NO. __________ AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, ADOPTING A NEW CHAPTER 6.90 FOOD PACKAGING IN THE EDMONDS CITY CODE TO PROHIBIT CERTAIN USES OF POLYSTYRENE AND NON- RECYCLABLE MATERIALS FOR DISPOSABLE FOOD PACKAGING AND TO REQUIRE INSTEAD THE USE OF RECYCLABLE OR COMPOSTABLE FOOD PACKAGING; PROVIDING FOR ENFORCEMENT; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, the City of Edmonds (the “City”) has a duty to protect the natural environment, the economy and the health of its citizens; and WHEREAS, the Washington State Legislature in RCW 70.95.010(8)(a) established waste reduction as the first priority for the collection, handling, and management of solid waste; and WHEREAS, in addition to waste reduction, the Washington State Legislature in RCW 70.95.010(8) also identified the following as priorities: recycling, avoiding excessive and nonrecyclable packaging of products, education so that people are informed of the need to reduce, source separate, and recycle solid waste, and government entities setting an example by implementing aggressive waste reduction and recycling programs at their workplaces and by purchasing products that are made from recycled materials and are recyclable; and WHEREAS, the Washington State Legislature in RCW 70.95.010(4) found that it is "necessary to change manufacturing and purchasing practices and waste generation behaviors to reduce the amount of waste that becomes a governmental responsibility"; and WHEREAS, the Washington State Legislature in RCW 70.95.010(6)(c) found that it is the responsibility of city governments "to assume primary responsibility for solid waste management and to develop and implement aggressive and effective waste reduction and source - 1 - {BFP791064.DOC;1\\00006.900000\\ } separation strategies"; and WHEREAS, the Edmonds City Council has continuously identified sustainability as an important goal for the City; and WHEREAS, the use of polystyrene-based and non-recyclable or non-compostable food packaging and service ware serve a limited purpose that is disproportionately detrimental to the welfare of the environment; and WHEREAS, although polystyrene-based and non-recyclable or non-compostable food packaging and service ware are often used and disposed of in minutes or days, they take thousands of years to decompose, and lead to devastating effects such as pollution and harm to marine life, wildlife, and public health; and WHEREAS, there is no meaningful method of recycling polystyrene-based food packaging and service ware, however, there are alternative recyclable and compostable products that can serve the same purpose as polystyrene-based food packaging; and WHEREAS, polystyrene-based and non-recyclable or non-compostable food packaging and service ware represent an unnecessary use of a nonrenewable resource, especially when recyclable and compostable products represent a sustainable alternative; and WHEREAS, recyclable and compostable food packaging and service ware are considerably less damaging to the environment than polystyrene-based and non-recyclable or non-compostable food packaging and service ware; and WHEREAS, replacing the use of polystyrene-based and non-recyclable or non- compostable food packaging and service ware with those that are recyclable and compostable is recognized as a sustainable option to protect the environment and to conserve resources; and - 2 - {BFP791064.DOC;1\\00006.900000\\ } WHEREAS, recyclable and compostable food packaging and service ware are readily available for use by local businesses; and WHEREAS, the City recognizes the present economic difficulties faced by local businesses in making a transition to recyclable or compostable food packaging and service ware, and finds that an extended timeline for implementation of this Chapter is in the best interest of assisting with local efforts at financial recovery; and WHEREAS, it is the intent of the Edmonds City Council to reduce the negative impacts noted above through the implementation of this Ordinance; and WHEREAS, the Edmonds City Council finds that reduction in use of polystyrene-based and non-recyclable or non-compostable food packaging and service ware is in the best interest of public health, safety, and welfare, for the citizens of Edmonds and the environment; and WHEREAS, the Act below is in accordance with the following goals of the Edmonds Comprehensive Plan: Community Sustainability Element Climate Change Goal E, Community Health Goal E, and Environmental Quality Goal A; and the Utilities Element Goal; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1.A new Chapter 6.90 entitled Food Packaging is hereby added to the ECC to read as follows: Chapter 6.90 6.90.010 Definitions. 6.90.020 Prohibition on use of polystyrene, nonrecyclable, and noncompostable disposable food service packaging and disposable food service ware. - 3 - {BFP791064.DOC;1\\00006.900000\\ } 6.90.030Recyclable or compostable disposable food service packaging and disposable food service ware required. 6.90.040 Requirement to enroll in a commercial food waste recycling service or keep containers for recyclable or compostable food packaging on premises for consumer use. 6.90.050Enforcement and penalties. 6.90.060 Effective dates of this chapter. 6.90.070 Severability. 6.90.080 No conflict with federal or state law. 6.90.010 Definitions. A. “Mayor” means the Mayor of the City of Edmonds or designee. B. “City facility” means any building, structure, or vehicle owned or operated by the City of Edmonds. C. “Compostable” means made solely of organic substances where all the materials in the product or package will break down into, or otherwise become part of, usable compost (e.g., soil- conditioning material, mulch) in a safe and timely manner. D. “Disposable food service packaging” means all containers, “clamshells,” bowls, plates, trays, cartons, cups, lids, straws, utensils, napkins, and other items that are designed for use with food either on or off the food service business premises, including but not limited to packages for takeout foods and/or leftovers from food prepared by food service businesses. The term “disposable food service packaging” does not include items composed entirely of aluminum or polystyrene foam coolers and ice chests that are intended for reuse. E. “Disposable food service ware” means nonrecyclable or noncompostable: containers, plates, “clamshells,” trays, cups, and utensils that are made of plastic or plastic-coated paper and other nonrecyclable or noncompostable materials, and intended only for limited use (including so-called “biodegradable” products where any portion is not compostable). F. “Food” means food or beverages, which are served, packaged, cooked or uncooked, chopped, sliced, mixed, brewed, frozen, squeezed, or otherwise prepared within the City of Edmonds for any persons, such as customers or consumers. - 4 - {BFP791064.DOC;1\\00006.900000\\ } “Food service business” means any restaurant, retail food G. seller, coffee shop, grocery store, vending truck or cart, business or institutional cafeteria, sales outlet, or other business, entity, or person selling or providing food to a consumer, whether the food is consumed on or off the premises, that is located or operating within the City of Edmonds, whether on a permanent or temporary basis. “Food service business” also includes any person who is the owner, manager, president or director of such business. H. “Person” means any individual, trust, firm, joint stock company, corporation, partnership, business, or association, including a government entity. I. “Polystyrene” means blown polystyrene and expanded and/or extruded foams (sometimes referred to as “Styrofoam,” a Dow Chemical Co. trademarked form of polystyrene foam insulation) which are thermoplastic petrochemical materials utilizing a styrene monomer and processed by any number of techniques, including, but not limited to, fusion of polymer spheres (expandable bead polystyrene), injection molding, foam molding, and extrusion-blow molding (extruded foam polystyrene). J. “Recyclable” means made solely of materials that are capable of being separated from a waste stream by a food service business and made available for collection and delivery to a processor for reuse or remanufacture into the same or other products. 6.90.020 Prohibition on use of polystyrene, nonrecyclable, and noncompostable disposable food service packaging and disposable food service ware. A. Upon the effective date for mandatory compliance with this chapter set forth in ECC 6.90.060, food service businesses shall be prohibited from selling or providing, in connection with food service, polystyrene, nonrecyclable, or noncompostable food service packaging or disposable food service ware, except as hereinafter provided in subsections D and E of this section. B. Upon the effective date for mandatory compliance with this chapter set forth in ECC 6.90.060, City departments shall not purchase, acquire, or use polystyrene, nonrecyclable, or noncompostable disposable food service packaging or disposable food service ware in City facilities. - 5 - {BFP791064.DOC;1\\00006.900000\\ } C. Upon the effective date for mandatory compliance with this chapter set forth in ECC 6.90.060, any renter or lessee of a City- owned facility or City-owned property shall not use polystyrene, non-recyclable, or noncompostable disposable food service packaging or disposable food service ware on the premises of the rented or leased facility or property. D. While businesses are encouraged to refrain from the sale of polystyrene, nonrecyclable, or noncompostable disposable food service packaging or disposable food service ware, nothing in this chapter shall prohibit businesses or individuals from engaging in the direct sale, purchase, or possession of such items in prepackaged multiple quantities from a retail or wholesale merchant. E. Prepackaged soups and other foods that food service businesses sell or otherwise provide to their customers in polystyrene, nonrecyclable, or noncompostable disposable food service packaging or disposable food service ware that have been filled and sealed prior to receipt by the food service business shall be exempt from the requirements of this chapter. 6.90.030 Recyclable or compostable disposable food service packaging and disposable food service ware required. All food service businesses and City departments that are prohibited under this chapter from using or providing polystyrene, nonrecyclable or noncompostable food service packaging or disposable food service ware shall use a recyclable or compostable product. 6.90.040 Requirement to enroll in a commercial food waste recycling service or keep containers for recyclable or compostable food packaging on premises for consumer use. A. All food service businesses are required to utilize either a commercial food waste recycling service for compostable products and recyclable materials (such as the City’s solid waste management program) or, at a minimum, to provide at least 1 container for recycling or composting on site for consumers to dispose of food packaging that conforms to the requirements of this chapter. - 6 - {BFP791064.DOC;1\\00006.900000\\ } B. All food service businesses are prohibited from emptying or disposing of items in recycling or compost containers into trash bins, containers, or dumpsters not intended for recycling or compost. C. Existing food service businesses that do not have adequate storage space for compliance with either indoor or outdoor containers for recycling and/or composting may be exempt from the requirements of subsection A of this section if so determined by the Mayor or designee upon written request for an exemption. The Mayor or designee, in cases where space constraints are determined to exist, may require the evaluation of the feasibility of shared recycling or composting containers by contiguous businesses and/or structures. 6.90.050 Enforcement and penalties. A. Any person who violates the provisions of this chapter shall be cited and liable for a civil infraction; provided, however, that a written warning shall instead be issued to any person determined to be violating this chapter when such violation is the first instance of noncompliance known to the Mayor or designee. If, after issuing a written warning, the Mayor or designee becomes aware of subsequent noncompliance, he shall apply for or impose the sanctions described in this section. B. Any person who receives a citation for a violation of this chapter shall respond within 15 days from the date that notice of the infraction is signed and served upon the violator by the City Code Enforcement Officer. The issuance of an infraction by the City for a violation represents a determination that an infraction has been committed. A committed finding will be final if the violator does not respond as stated in this subsection. C. Any person who receives a citation for a violation of this chapter may respond either by paying the fine amount to the City as established by this section, or requesting a hearing with the Edmonds Municipal Court. D. If the infraction is found committed, either due to no response by the person cited, or a judicial determination that a violation has occurred by a preponderance of the evidence, then a person shall be punished with a fine of $150.00 for a first violation, and $300.00 for each subsequent violation committed within a calendar year. The existence of a prior written warning by the - 7 - {BFP791064.DOC;1\\00006.900000\\ } Mayor or designee shall not be considered a first violation for purposes of this section. 6.90.060Effective dates of this chapter. A. All provisions of this chapter, except for ECC 6.90.020 through ECC 6.90.050, shall be effective upon adoption of this chapter. B. The provisions of ECC 6.90.020 through ECC 6.90.050 will be effective March 1, 2011, except as hereinafter provided for in subsections C through E of this section. C. A food service business may request a waiver from any part or all of the requirements in this chapter by filing a written request with the Mayor or designee. The food service business seeking the waiver must show that the application of this chapter would create an undue hardship or practical difficulty based on the factors set forth in subsection E of this section. The Mayor or designee may waive any specific requirement of this chapter for a period of time extending no later than March 1, 2012. The Mayor or designee’s decision to grant or deny a waiver, in whole or in part, shall be mailed to the applicant in writing, with a statement of the permitted waiver length, and shall be a final nonappealable decision. D. Prior to March 1, 2012, only the following items are exempt from the requirements of ECC 6.90.020 through ECC 6.90.050: containers and lids specifically designed and used for hot liquid-based food and beverages, utensils (knives, forks and spoons), and the sale of raw meat or raw seafood in any container by any food service business. Prior to March 1, 2012, public educational institutions are also exempt from the requirements of ECC 6.90.020 through ECC 6.90.050. E. The following factors should be considered by the Mayor or designee in granting or denying a waiver, in whole or in part, from the requirements of this chapter, as described in subsection C of this section: (1) the food service business seeking a waiver lacks the financial or other means to be in compliance with this chapter within a reasonable period of time; (2) the food service business seeking the waiver demonstrates, through due diligence, that particular products conforming to the requirements of this chapter are unavailable, pose recognized safety hazards, or will result in substantial financial harm; (3) the food service business seeking the waiver has maintained a business in Edmonds for less than one year. The factors listed herein are significant, but not intended to - 8 - {BFP791064.DOC;1\\00006.900000\\ } be the only considerations for the grant or denial of a waiver. The Mayor or designee should make a decision concerning a request for waiver based on the preference of assisting a food service business to achieve compliance with this chapter while balancing the economic vitality of the business and striving to reduce any financially detrimental impacts on the applicant. F. On March 1, 2012, all waivers and exemptions from the requirements of this chapter will terminate and become invalid; and all provisions of this chapter will be subject to implementation and enforcement. 6.90.070 Severability. If any section, subsection, sentence, clause, or phrase of this chapter is for any reason held to be invalid, or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this chapter. 6.90.080 No conflict with federal or state law. Nothing in this chapter shall be interpreted or applied so as to create any requirement, power, or duty in conflict with any federal or state law. Section 2.This ordinance or a summary thereof consisting of the title shall be published in the official newspaper of the City, and shall take effect and be in full force five (5) days after publication. APPROVED: MAYOR GARY HAAKENSON ATTEST/AUTHENTICATED: CITY CLERK, SANDRA S. CHASE APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: - 9 - {BFP791064.DOC;1\\00006.900000\\ } BY W. SCOTT SNYDER FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE: ORDINANCE NO. - 10 - {BFP791064.DOC;1\\00006.900000\\ } SUMMARY OF ORDINANCE NO. __________ of the City of Edmonds, Washington On the ____ day of ___________, 2010, the City Council of the City of Edmonds, passed Ordinance No. _____________. A summary of the content of said ordinance, consisting of the title, provides as follows: AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, ADOPTING A NEW CHAPTER 6.90 FOOD PACKAGING IN THE EDMONDS CITY CODE TO PROHIBIT CERTAIN USES OF POLYSTYRENE AND NON- RECYCLABLE MATERIALS FOR DISPOSABLE FOOD PACKAGING AND TO REQUIRE INSTEAD THE USE OF RECYCLABLE OR COMPOSTABLE FOOD PACKAGING; PROVIDING FOR ENFORCEMENT; AND ESTABLISHING AN EFFECTIVE DATE. The full text of this Ordinance will be mailed upon request. DATED this _____ day of ________________,2010. CITY CLERK, SANDRA S. CHASE - 11 - {BFP791064.DOC;1\\00006.900000\\ }