Regulation of Expanded Polystyrene Foam Food Service Container-Warewe MEETING DATE: 12/2/14
ITEM NO:
cos sASO COUNCIL AGENDA REPORT
DATE: NOVEMBER 18, 2014
TO: MAYOR AND TOWN COUNCIL
FROM: GREG LARSON, TOWN MANAGER
SUBJECT: REGULATION OF EXPANDED POLYSTYRENE FOAM (STYROFOAMI FOOD
SERVICE CONTAINER -WARE
A. ADOPT A RESOLUTION ADOPTING THE NEGATIVE DECLARATION
PREPARED BY THE CITY OF SAN JOSE FOR THE REGULATION OF THE
USE OF POLYSTYRENE FOAM FOOD SERVICE CONTAINER -WARE BY
FOOD PROVIDERS, BE FOUND ADEQUATE FOR THE TOWN OF LOS
GATOS ACTION IN ACCORDANCE WITH THE CALIFORNIA
ENVIRONMENTAL QUALITY ACT
B. INTRODUCE AN ORDINANCE OF THE TOWN OF LOS GATOS ADDING
ARTICLE III TO CHAPTER 10 TO THE TOWN OF LOS GATOS MUNICIPAL
CODE ENTITLED REGULATION OF EXPANDED POLYSTYRENE FOAM
(STYROFOAM) FOOD SERVICE CONTAINER -WARE
RECOMMENDATION:
1. Adopt a resolution adopting the expanded polystyrene foam (Styrofoam) food service
container -ware negative declaration. (Attachment 1)
2. Introduce an ordinance of the Town of Los Gatos adding Article III to Chapter 10 to the Town
of Los Gatos Municipal Code entitled Regulation of Expanded Polystyrene Foam (Styrofoam)
Food Service Container -ware. (Attachment 2)
After opening and closing the public hearing, the Town Council by motion and majority vote:
1. Introduce the first reading of the ordinance regulating expanded polystyrene foam food ware,
by title and summary only, and instruct the Clerk to publish a summary no more than five days
prior to the adoption.
Reviewed by:
CHRISTINA GILMOREW
Assistant te= theq- own=Manager-
Town Manager _own Attorney
N:Vv1GR41dminWorkFi1MV014 Comcil Reports\Dw S Staff Report 12.2.14.docx
PAGE
MAYOR AND TOWN COUNCIL
SUBJECT: REGULATION OF EXPANDED POLYSTYRENE FOAM (STYROFOAM) FOOD
SERVICE CONTAINER -WARE
NOVEMBER 18, 2014
ALTERNATIVES:
Instead of the action above, the Council may:
1. Not introduce the Regulation of Expanded Polystyrene Foam (Styrofoam) Food Service
Container -Ware; or
2. Introduce the proposed ordinance and prohibit the sale of Expanded Polystyrene Foam Food
Service Container -Ware and/or unencapsulated polystyrene foam ice chests /coolers in Los
Gatos (using language provided in Attachment 3); or
3. Introduce the proposed ordinance and direct staff to return in 6 to 12 months with an
amendment to prohibit the sale of foam food service container -ware and/or unencapsulated
polystyrene foam ice chests /coolers; or
4. Modify the Expanded Polystyrene Foam (Styrofoam) Food Service Container -Ware Ordinance
as desired by Council. Minor changes to the ordinance may not affect the CEQA findings or
the effort to achieve regional consistency. However, should the Council desire more
significant changes, staff will need to evaluate the need for supplemental CEQA analysis.
BACKGROUND:
Expanded polystyrene foam (EPS) is a form of plastic that has been identified as a distinctive litter
concern because it crumbles easily into small pieces which are hard to collect. These small pieces are
lightweight, and are easily windblown into streets and waterways that flow into the Bay and eventually
the ocean. The ban is expected to result in less foam litter and result in improved water quality as
required by the new Municipal Stormwater Permit.
During a May 6, 2013 study session, the Town Council discussed the ban of EPS foam food ware and
directed staff to bring forward an ordinance subsequent to the adoption and implementation of the
Single -Use Carry -out Bag ordinance. The Single -Use Carry-Out Bag ordinance was adopted by the
Town Council in September 2013 and went into effect in February 2014. The adoption of a
polystyrene regulation is also identified as a 2014 -2016 Strategic Goal under Community Character.
DISCUSSION:
Regional Effort
EPS foam is a major pollutant in creeks and waterways that flow to the Bay and beyond. Unlike other
items that litter the waterways, polystyrene easily breaks into tiny pieces that can be mistaken for food
and ingested by aquatic animals. EPS comprises 15% of storm drain litter, according to the California
Department of Transportation.
- -- -- - -- Los- Gates is- one-af- several- cities -in- Santa- C'tara-Caunty that- have chosen to parh`cipate in a regional
effort to reduce environmental impacts related to EPS foam food ware. The objective of the ordinance
is to prohibit food vendors from providing prepared food or beverages in disposable food service
container -ware made from EPS. This would significantly reduce foam food container -ware in urban
PAGE
MAYOR AND TOWN COUNCIL
SUBJECT: REGULATION OF EXPANDED POLYSTYRENE FOAM (STYROFOAM) FOOD
SERVICE CONTAINER -WARE
NOVEMBER 18, 2014
DISCUSSION (cont'd):
litter and the amount that would reach local water ways and ultimately, San Francisco Bay and the
Pacific Ocean.
In July 2013, the City of San Jose acting as the lead agency on behalf of 13 Santa Clara County cities,
including the Town of Los Gatos, conducted an environmental review of potential impacts from a
model ordinance to prohibit the use of polystyrene foam food service ware by providers in accordance
with the California Environmental Quality Act (CEQA).
In August 2013, the City of San Jose adopted a Negative Declaration finding that the project would
not have any significant effect on the environment and later filed a Notice of Determination.
The purpose of the regional approach is to ensure uniform, consistent regulations over a broader
geographical area. This strategy provides several benefits including consistency for consumers and
retailers and a level playing field for competing businesses in neighboring communities. Multiple
cities in Santa Clara County, the San Francisco Bay Area, the State of California, and throughout the
country are considering adoption or have adopted ordinances that ban or limit the use of EPS foam
food ware.
Environmental Review
The City of San Jose, as the lead agency, prepared a Program Initial Study that analyzed the
environmental effects of a polystyrene foam food service container -ware ordinance in the study area as
required by CEQA. The study area consisted of the following thirteen (13) incorporated cities and
towns in Santa Clara County: San Jose, Campbell, Cupertino, Gilroy, Los Altos, Los Gatos, Milpitas,
Monte Sereno, Morgan Hill, Mountain View, Santa Clara, Saratoga, and Sunnyvale. To date, already
nine local agencies have adopted ordinances (Cupert ino, Los Altos, Los Altos Hills, in View,
Morgan Hill, Palo Alto, San Jose, Sunnyvale, and Santa Clara County). Campbell is currently
considering the adoption of an ordinance.
The proposed project (the Polystyrene Foam Food Service Container -Ware Ordinance) was reviewed
to determine whether it could have a significant effect on the environment as a result of adoption. A
"significant effect on the environment" means a substantial, or potentially substantial, adverse change
in any of the physical conditions within the area affected by the project including land, air, water,
minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance. Based on the
findings in the Initial Study and Negative Declaration, the project would not have any significant
effects on the environment.
---- In= Juiy201 -3; CbeCityofSan-J(Y e— ublis et�t�ie o - - Study -Negative -
public review and comment in conformance with th�equirement f CEQA. Thep public comments
PAGE 4
MAYOR AND TOWN COUNCIL
SUBJECT: REGULATION OF EXPANDED POLYSTYRENE FOAM (STYROFOAM) FOOD
SERVICE CONTAINER -WARE
NOVEMBER 18, 2014
DISCUSSION (cont'd):
and the City of San Jose's responses were included as a part of the Final Negative Declaration and
Program Initial Study (Exhibit A of Attachment 1).
In September 2013, the City of San Jose adopted the Negative Declaration and the Polystyrene Foam
Disposable Ware Ordinance and filed a Notice of Determination. By participating in this regional
environmental review process, Los Gatos is now able to consider the ordinance developed by the City
of San Jose and rely on this Negative Declaration to comply with the CEQA requirements in the
adoption of its own foam food ware ordinance. Should the Council decide to make changes to the
proposed ordinance such changes could trigger the need for further CEQA review.
Proposed Ordinance for the Town of Los Gatos
The objectives of the proposed ordinance for the Town of Los Gatos are to:
• Reduce the amount of EPS foam food ware in urban litter;
• Reduce the amount of EPS foam material that reaches local water ways and ultimately, San
Francisco Bay and the Pacific Ocean.
• Reduce use of material that cannot be composted or recycled.
The ordinance would prohibit the use of disposable polystyrene foam food and beverage containers for
serving (dine -in) or transporting (take -out) prepared foods by food vendors within the Town of Los
Gatos. Currently, there are approximately 125 eating and drinking establishments within the Town of
Los Gatos who would be affected by this proposed ordinance.
Prepared food does not include uncooked eggs, fish, meat or poultry unless provided for consumption
without further food preparation (e.g., sushi). Disposable food service ware includes, but is not
limited to, plates, cups, bowls, trays, and hinged or lidded containers, also known as clamshells.
Pre - packaged food that arrives at the premises of the food vendor in a container or wrapper and is not
removed from the container or wrapper before its sale or provision is not covered by the ordinance
(e.g., ramen noodles in a EPS foam cup or pre - packaged dried fiuit or vegetables sold at a grocery
store). As noted above, EPS foam food ware used for raw eggs and raw, butchered meat, fish or
poultry is exempt and would not be prohibited.
The Initial Study included two additional options for prohibiting the sale of polystyrene foam food
ware that the Council may want to consider:
1. Prohibiting sales of polystyrene foam food service ware.
1 Prohibiting sales of polystyrene foam ice chests or coolers which are not wholly encapsulated
or encased within a more durable material.
PAGE 5
MAYOR AND TOWN COUNCIL
SUBJECT: REGULATION OF EXPANDED POLYSTYRENE FOAM (STYROFOAM) FOOD
SERVICE CONTAINER -WARE
NOVEMBER 18, 2014
DISCUSSION (cont'd):
The prohibitions of sale of (empty) polystyrene foam containers and service ware by vendors (e.g.,
stores or businesses that sell goods or merchandise) would apply to a variety of sales outlets, such as
grocery stores and drug stores, food service ware suppliers (e.g., restaurant supply, cash and carry, or
other retailers), hardware stores, and sporting goods stores (i.e., foam ice chests not encapsulated in
other materials).
A few cities in Santa Clara County adopted one or both of these additional prohibitions, including
Sunnyvale (polystyrene foam food service ware), Los Altos (polystyrene foam food service ware and
ice chests /coolers), and the County of Santa Clara (ice chests /coolers).
Should the Los Gatos Town Council desire to include one or both additional options, staff has
provided the necessary ordinance language additions in Attachment 3 and will extend outreach to
include additionally affected businesses such as hardware, sporting goods, drug, and party supply
stores selling polystyrene foam food ware and encapsulated ice chests /coolers.
Alternatives to EPS foam food service ware
There are many alternatives to EPS. Some alternative products are composed of paper or rigid plastic,
and others are made of organic materials such as corn, potato, or sugar cane fiber. Costs for
businesses to purchase alternative products will depend on where, what and the volume of their
purchase, with most alternative products competitively priced. In some cases, paper and rigid plastic
can be less expensive than EPS. Many restaurant supply stores and common retail stores including
Costco and Smart & Final carry alternative products. Additionally, restaurants can join cooperative
organizations in order to purchase in bulk which can decrease costs. The City of San Jose conducted a
cost study and created an EPS Alternative Pricing list for retailers that is currently available on the
Town website located at www.LosGatosCA.eov/EPS.
Public Outreach
The Town mailed notices to approximately 860 retail establishments potentially affected by the
proposed ordinance, which includes the approximately 125 eating and drinking establishments that
currently have a Conditional Use Permit with the Town. Additionally, Town staff conducted site
visits to provide additional educational outreach.
To engage the businesses community directly, food vendors and retail establishments were invited to a
Food Ware Vendor Open House held on August 25' in partnership with the City of Campbell at the
Orchard City Banquet Hall. The purpose of the Open House was to provide an opportunity for food
vendors- and-retail -establrslnnents -to see a variety of non - EPS— contamers and to interact with different
vendors. Notices and a proposed ordinance Frequently Asked Questions were also published on the
Town website at www.LosGatosCA.eov/EPS.
17.Tnx1
MAYOR AND TOWN COUNCIL
SUBJECT: REGULATION OF EXPANDED POLYSTYRENE FOAM (STYROFOAM) FOOD
SERVICE CONTAINER -WARE
NOVEMBER 18, 2014
Ordinance Implementation
Staff recommends designating June 1, 2015 as the effective date for the ordinance. A June effective
date would provide retailers sufficient time to use up their current inventory and purchase eligible
alternatives to polystyrene foam food service ware.
CONCLUSION:
Staff recommends that the Town Council consider the Initial Study and Negative Declaration prepared
by the Lead Agency, adopt the Negative Declaration, and introduce the proposed ordinance banning
the use of expanded polystyrene foam food service container -ware throughout the Town, effective
June 1, 2015.
ENVIRONMENTAL ASSESSMENT:
An Initial Study and Negative Declaration were prepared as discussed in this report.
FISCAL IMPACT:
There is minimal fiscal impact with the approval of the recommendations as described above. There
was no cost to the Town for the environmental analysis services provided by the City of San Jose as
part of the regional effort. Costs for business outreach and education efforts to implement the
proposed ordinance are estimated between $1,800 and $2,700.
Attachments:
1. Resolution (with Exhibit A)
2. Ordinance Adding a New Section 10.10.050 to the Los Gatos Municipal Code
3. Optional Ordinance Language
4. Public Comments received through 10:00 a.m. Tuesday, November 25, 2014