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SR-510-003-02 (3) a .- J City of Santa Monica'" City Council Report City Council Meeting: December 5, 2006 Agenda Item: .m.. To: Mayor and City Council From: Craig Perkins, Director - Environmental and Public Works Management Introduce Non-Recyclable Plastic Disposable Food Service Container Ordinance and Appropriate Funds upon Program Implementation Subject: Recommended Action Staff recommends that the City Council: 1) introduce for first reading an ordinance banning non-recyclable plastic disposable food services containers, and; 2) authorize the increase of 0.25 FTE (2-year) limited-term temporary Administrative Analyst position. 3) appropriate from the Wastewater Fund balance $15,715 to account number 31662.511500 (temporary employees) and $31,000 to account number 31662.522310 (office supplies). Executive Summary The attached ordinance bans all non-recyclable plastic disposable food service containers in Santa Monica. Due to recent legislation signed into law by the California Governor in September 2006, the City is prohibited from adopting, implementing or enforcing any ordinance that imposes a fee or tax on plastic carryout bags or requires a 1 store to collect, transport or recycle plastic carryout bags until January 1, 2013. Therefore, the ordinance does not include any Council action regarding plastic carry out bags at this time. The attached ordinance applies to all food providers, including but not limited to restaurants, delicatessens, grocery stores, non-profit and for-profit organizations, groups and individuals as well as all City facilities, City managed concessions, City sponsored events and City permitted events that serve food prepared in Santa Monica. The ordinance prohibits the dispensing of prepared food to customers in disposable food service containers made from non-recyclable plastic (those displaying recycling symbol #6), including expanded polystyrene. Budgetary impacts from the adoption of the draft ordinance could include additional costs to City operations to buy alternative food packaging, and wou Id include costs to prepare and distribute outreach materials to businesses, and staffing costs for implementation of an outreach campaign. Staff estimates the total annual budgetary impact in the Environmental Programs Division related to the implementation of a ban to be approximately $31,000 for supplies and materials and staff resources equivalent to approximately .25 FTE Administrative Analyst position on an as-needed basis at an anticipated annual cost of $15,715. Discussion On June 13, 2006, City Council directed staff to prepare an ordinance banning the use of non-recyclable plastic disposable food service containers in Santa Monica, including those made from expanded polystyrene. 2 The ordinance prohibits food providers from dispensing prepared food in disposable food service containers made from non-recyclable plastic, including expanded polystyrene and clear polystyrene (Note: these plastics are designated with the recycling symbol #6, however recycling of these products is not economically viable at the municipal level). Other plastic containers made from recyclable materials,' including those marked with the recycling symbols #1 through #5, are allowed by the ordinance. (Note: the City's Solid Waste Division currently collects and recycles plastic containers with the recycling symbols #1 to #5). Food service containers are defined as single use disposable products used in the restaurant and food service industry for serving or transporting prepared, ready-to-consumefood or beverages. This includes, but is not limited to, plates, bowls, cups, trays and hinged or lidded containers. This does not include single use disposable items such as straws, cup lids or utensils, nor does it include single use disposable packaging for unprepared foods. A food provider is defined in the ordinance as any establishment that provides prepared food for public consumption in Santa Monica and includes, but is not limited to, restaurants, grocery stores and supermarkets, delicatessens, catering trucks, for-profit and non-profit food providers, organizations, groups and individuals. The ordinance also applies to all City facilities, City managed concessions, City sponsored events, and City permitted events. The ordinance only applies to food prepared within Santa Monica. The ordinance allows for a one year renewable hardship exemption if it can be demonstrated that compliance with the ordinance would cause undue economic hardship to a food provider. An undue hardship would include any situation where no 3 reasonably feasible available alternatives exist to a specific and necessary non- recyclable plastic food service container. The decision to provide an exemption will be made by the Director of the Environmental a nd Public Works Management (EPWM) or his/her designee and will be based on review of an exemption application that includes documentation showing the factual support for the claimed exemption. The Director of EPWM will have primary responsibility for enforcement of the ordinance. It is anticipated that enforcement will be primarily conducted on a complaint basis and will be carried out by existing EPWM inspectors on an as-needed basis. Inspectors will have the power to issue notices of violations to food providers who fail to comply with any of the requirements of the ordinance. For the first violation, a written warning notice will be issued. The penalty for subsequent violations will be a daily fine in increasing amounts from $100 to $250, depending on the number of times the food provider has previously violated the ordinance. The requirements of the ordinance will come into effect one year after Council adoption for all food providers. Council directed staff to implement the proposed ban for City facilities, City managed concessions, City sponsored events and City permitted events beginning June 13, 2006. Environmental Programs Division staff will conduct workshops and other outreach activities during the interim to provide information and assistance to food providers in identifying alternatives to non-recyclable plastic disposable food service containers and locating suppliers of alternative products. The outreach program will strongly encourage the use of the most sustainable packaging 4 types from a resource use and marine debris perspective. The Santa Monica Chamber of Commerce has agreed to assist the City staff in providing outreach to its members. Plastic Carrvout Baqs On September 30, 2006, Governor Schwartzenegger signed into law AB 2449 which regulates plastic carryout bags statewide. The new law requires the operator of a store, as defined, to establish an in-store recycling program that provides an opportunity for a customer of the store to return clean plastic carryout bags to that store. The law requires a plastic carryout bag provided by a store to have specified information printed or displayed on the bag, and requires the placement of a plastic carryout bag collection bin in each store greater than 10,000 square feet that is visible and easily accessible to the consumer. These stores must send these collected bags for recycling. The law also requires the operator of a store to make reusable bags, as defined, available to customers for purchase. The law requires a manufacturer of plastic carryout bags to develop educational materials to encourage the reducing, reusing, and recycling of the bags and to make the materials available to stores. The law specifically prohibits a city, county, or other public agency from adopting, implementing, or enforcing an ordinance, resolution, regulation, or rule that requires a store to collect, transport, or recycle plastic carryout bags or conduct additional auditing or reporting, or imposing a plastic carryout bag fee upon a store. The law will take effect on July 1, 2007, and will remain in effect through January 1, 2013. Due to the 5 prohibition by this law on City regulation of plastic carryout bags, staff recommends that City Council take no action at this time to address plastic carryout bags. Alternatives In addition to the recommended action, the City Council could 1) modify the ordinance to better achieve the Council's intent; or 2) not adopt the ordinance. The impact of the first alternative would depend on the modifications that Council made and could either expand or reduce the scope of the ordinance provisions, penalties and who the ordinance applies to. Pursuing the second alternative would avoid additional costs to the City for outreach and implementation, and would avoid potential additional costs to some Santa Monica food providers, however, it would not support the Council's goal of reducing beach and marine pollution in Santa Monica. Environmental Analysis The City's action to adopt an ordinance that prohibits food providers from dispensing prepared food in non-recyclable plastic containers is exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines, Section 15061 (b)(3) [project is exempt when it can be determined with certainty that there is no potential for causing a significant effect on the environment] and Section 15308 (Class 8) [action is taken by regulatory agency to assure the maintenance, restoration, enhancement, or protection of the environment where regulatory process involves procedures for the protection of the environment]. The proposed ordinance specifically 6 prohibits the use of non-recyclable plastic, defined as expanded polystyrene (EPS) or rigid polystyrene (recycling symbol #6) by food providers in Santa Monica because these products currently cause significant adverse environmental impact to Santa Monica beaches, the marine environment, and wildlife. As more fully discussed in Attachment 2 to this report, the proposed ordinance will replace these environmentally harmful products with alternatives that minimize harm to the environment since these alternative materials are made from renewable resources and can be recycled and/or composted and processed through existing City facilities and infrastructure. BudqetlFinanciallmpact The budgetary impacts from adoption of the recommended ordinance include additional costs to City operations to buy alternative food packaging (estimated to be less than $1000 annually). Staff anticipates that additional staff and funding will be needed to conduct workshops and outreach activities during the interim period. The following budget changes are needed for program implementation: 1) Authorize the increase of 0.25 FTE (2-year) limited-term temporary Administrative Analyst position. 2) Appropriate from the Wastewater Fund balance $15,715 to account number 31662.511500 (temporary employees) and $31,000 to account number 31662.522310 (office supplies). 7 Since enforcement will be carried out by existing City inspectors on an as-needed basis, it is anticipated that enforcement can be completed without any additional budgetary impacts. Prepared by: Dean Kubani, Environmental Programs Manager Forwarded to Council: Craig Perkins Director - E vironmental and Public Works Management Department Attachments: Ordinance Response to Comments from the Polystyrene Packaging Council 8 f:\atty\muni\laws~l\plastics 11-14-06final City Council Meeting 12/05/06 Santa Monica, California ORDINANCE NUMBER (CCS) (City Council Series) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA BANNING NON-RECYCLABLE PLASTIC DISPOSABLE FOOD SERVICE CONTAINERS WHEREAS, there are currently approximately 300 individual restaurants and food service businesses in Santa Monica; and WHEREAS, many of these businesses use disposable food containers made from expanded polystyrene (EPS) and other non-recyclable plastics; and WHEREAS, EPS is not biodegradable and as a result persists in the environment for hundreds and possibly thousands of years; and WHEREAS, EPS material easily breaks down into smaller pieces and is so light that it floats in water and is easily carried by the wind, even when it has been disposed of properly; and 1 WHEREAS, numerous studies have documented the prevalence of EPS debris in the environment, including in storm drains and on beaches, causing Santa Monica's residents to pay thousands of dollars in clean-up costs; and WHEREAS, marine animals and birds often confuse EPS for a source of food and the ingestion of EPS often results in reduced appetite and nutrient absorption and possible death by starvation of birds and marine animals; and WHEREAS, recycling of EPS products is not currently economically viable; and WHEREAS, there are several alternatives to EPS disposable food service containers available in Santa Monica from existing food packaging suppliers; and WHEREAS, an important goal of the City's Sustainable City Plan is to procure and use sustainable products and services; and WHEREAS, it is the City's desire to reduce the amount of beach litter and marine pollution and to protect local wildlife, both of which increase the quality of life for Santa Monica's residents and visitors, NOW, THEREFORE, THE CITY COUNCil OF THE CITY OF SANTA MONICA DOES HEREBY ORDAIN AS FOllOWS: SECTION 1. Chapter 5.44 is hereby added to the Santa Monica Municipal Code as follows: 2 5.44.010 Definitions (a) "Biodegradable" refers to the ability of a material to decompose into elements normally found in nature within a reasonably short period of time after disposal. (b) "City Facilities" refers to buildings and structures owned or leased by the City of Santa Monica. (c) "Disposable Food Service Container" means single-use disposable products used in the restaurant and food service industry for serving or transporting prepared, ready-to-consume food or beverages. This includes but is not limited to plates, cups, bowls, trays and hinged or lidded containers. This does not include single-use disposable items such as straws, cup lids, or utensils, nor does it include single-use disposable packaging for unprepared foods. (d) "Expanded Polystyrene" (EPS) means polystyrene that has been expanded or "blown" uSing a gaseous blowing agent into a solid foam. (e) "Food Provider" means any establishment, located or providing food within the City of Santa Monica, which provides prepared food for public consumption on or off its premises and includes without limitation any store, 3 shop, sales outlet, restaurant, grocery store, super market, delicatessen, catering truck or vehicle, or any other person who provides prepared food; and any organization, group or individual which regularly provides food as a part of its services. (f) "Non-Recyclable Plastic" refers to any plastic which cannot be feasibly recycled by a municipal recycling program in the State of California, including polystyrene and expanded polystyrene. (g) "Polystyrene" means and includes expanded polystyrene which is a thermoplastic petrochemical material 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, form molding, and extrusion-blow molding (extruded foam polystyrene). The term "polystyrene" also includes clear or solid polystyrene which is known as "oriented polystyrene". (h) "Prepared Food" means any food or beverage prepared for consumption on the food provider's premises, using any cooking or food preparation technique. This does not include any raw uncooked meat, fish or eggs unless provided for consumption without further food preparation. 4 (i) "Recyclable Plastic" means any plastic which can be feasibly recycled by a municipal recycling program in the State of California. Recyclable plastics comprise those plastics with the recycling symbols #1 through #5 including polyethylene terephthalate (PET or PETE), high density polyethylene (HOPE), low density polyethylene (LOPE), and polypropylene (PP). 5.44.020 Prohibition on the Use of Non- Recyclable Plastic Disposable Food Service Containers A. Except as provided in Section 5.44.030, food providers are prohibited from dispensing prepared food to customers in disposable food service containers made from expanded polystyrene. B. Except as provided in Section 5.44.030, food providers are prohibited from dispensing prepared food to customers in disposable food service containers made from non-recyclable plastic. C. All City Facilities, City-managed concessions, City sponsored events, and City permitted events are prohibited from using disposable food service containers made from expanded polystyrene or non-recyclable plastic. 5 5.44.030 Exemptions (a) The Director of the Environmental and Public Works Management Department (EPWM), or his/her designee, may exempt a food provider from the requirements of this ordinance for a one year period, upon showing by the food provider that the conditions of this ordinance would cause undue hardship. An "undue hardship" shall be found in: 1. Situations unique to the food provider where there are no reasonable alternatives to expanded polystyrene or non-recyclable plastic disposable food service containers and compliance with this Chapter would cause significant economic hardship to that food provider; 2. Situations where no reasonably feasible available alternatives exist to a specific and necessary expanded polystyrene or non-recyclable plastic food container. A food provider granted an exemption by the City must re- apply prior to the end of the one year exemption period and demonstrate continued undue hardship, if it wishes to have the exemption extended. Extensions may only be granted for intervals not to exceed one year. 6 (b) An exemption application shall include all information necessary for the City to make its decision, including but not limited to documentation showing the factual support for the claimed exemption. The Director may require the applicant to provide additional information to permit the Director to determine facts regarding the exemption application. (c) The Director may approve the exemption application, in whole or in part, with or without conditions. (d) Exemption decisions are effective immediately and final and are not appealable. 5.44.040 Enforcement and Notice of Violations A. The Director of EPWM or his/her designee shall have primary responsibility for enforcement of this ordinance and the Director of EPWM or his/her designee shall have authority to issue citations for violation of this Chapter. The Director of EPWM or his/her designee is authorized to establish regulations or administrative procedures and to take any and all actions reasonable and necessary to further the purposes of this chapter or to obtain compliance with this chapter, including, but not limited to, 7 inspecting any vendor's premises to verify compliance In accordance with applicable law. B. Anyone violating or failing to comply with any of the requirements of this chapter or of any regulation or administrative procedure authorized by it shall be guilty of an infraction. C. The City Attorney may seek legal, injunctive, or any other relief to enforce this chapter and any regulation or administrative procedure authorized by it. D. The remedies and penalties provided in this chapter are cumulative and not exclusive of one another. 5.44.050 Penalties and Fines for Violations Violations of this ordinance shall be enforced as follows: A. For the first violation, the Director of EPWM or his/her designee, upon determination that a violation of this chapter has occurred, shall issue a written warning notice to the food provider which will specify the violation and the . appropriate penalties in the event of future violations. B. Thereafter, the following penalties shall apply: 8 1. A fine not exceeding one hundred dollars ($100.00) for the first violation following the issuance of a warning notice. 2. A fine not exceeding two hundred and fifty dollars ($250.00) for the second and any other violation that occurs following the issuance of a warning notice. C. Fines are cumulative and each day that a violation occurs shall constitute a separate violation. 5.44.60 Effective Dates A. No food provider shall distribute or utilize disposable food service containers containing expanded polystyrene or non-recyclable plastic on or after one year following the adoption of this ordinance by the City Council. B. No City facilities, City managed concessions, City sponsored events or City permitted events shall distribute or utilize disposable food service containers containing expanded polystyrene or non-recyclable plastic on or after the effective date of this ordinance SECTION 2. Any provision of the Santa Monica Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such 9 inconsistencies and no further, is hereby repealed or modified to that extent necessary to effect the provisions of this Ordinance. SECTION 3. If any section, subsection, sentence, clause, or phrase of this Ordinance 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 Ordinance. The City Council hereby declares that it would have passed this Ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional. SECTION 4. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within 15 days after its adoption. This Ordinance shall become effective 30 days from its adoption. APPROVED AS TO FORM: 10 Attachment 2 Staff Response to Comments from the Polystyrene Packaging Council (PSPC) on the Proposed Ordinance Banning Non-Recyclable Plastic Disposable Food Service Containers in Support of CEQA Exemptions PSPC's comments suggest that "significant adverse environmental impacts" will result from City Council's adoption of this ordinance. This conclusion is based on the erroneous assumption that implementation of the ordinance will result in a significant increase in the use of one material - biodegradable plastic - and a related increase in the amount of biodegradable plastics in the litter stream. This is addressed in the response to Comment 3 below and it makes all ofPSPC's other arguments irrelevant, since they are premised on this erroneous assumption. However, for the sake of completeness, staff has addressed all of the PSPC's comments. As detailed herein these arguments are demonstrably false with respect to Santa Monica, the local environment and this ordinance, or are too vague or misleading for any meaningful environmental assessment. The ordinance specifically prohibits the use of non-recyclable plastic by food providers in Santa Monica because those products currently cause significant adverse environmental impacts to Santa Monica beaches, the marine environment and wildlife. The ordinance will replace these environmentally harmful products with alternatives that minimize harm to the environment. All of the alternatives are currently available and utilized. Since the total amount of food service packaging will not be affected by this ordinance, replacing a non-recyclable product (EPS and rigid polystyrene) with products which can be recycled or composted will likely result in a reduction in the total amount of food packaging that ultimately reaches the beach, because it can be expected that a substantial percentage of these materials will be recycled or composted. PSPC's Comments 4 through 12 claim that increasing the amount of biodegradable plastic in the litter stream will have adverse environmental consequences. These comments are based on several flawed arguments which are discussed in detail below. Comments 1 and 2: Proposed Ordinance Is Subiect to CEQA and Trash TMDL For the reasons detailed in the staff report and herein the City has determined that this ordinance is exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to Sections 15061 (b)(3) and 15308 (Class 8) of the CEQA guidelines. It should be noted that the replacement of expanded polystyrene and non-recyclable plastic food packaging has been strongly advocated by the Santa Monica Task Force on the Environment and the non-profit environmental group Heal the Bay because of the environmental benefits it provides. Members of the Task Force on the Environment include experts in the areas of environmental science, toxicology, air quality, ocean water quality, and greenhouse gas emissions. Heal the Bay's staff include-s several scientists with significant expertise in environmental science, coastal ecosystems and ocean water quality. 1 Comment 3: Reasonably Foreseeable Increase in Use of Bio-Plastics The assumption expressed by the PSPC in this comment - that the use of biodegradable plastic will significantly increase in Santa Monica following adoption of the ordinance - is erroneous. The ordinance specifically prohibits the use of non-recyclable plastic, defined as expanded polystyrene (EPS) or rigid polystyrene (recycling symbol #6), by food providers in Santa Monica, because those products currently cause significant adverse environmental impacts to Santa Monica beaches, the marine environment and wildlife. The ordinance will replace these environmentally hannful products with alternatives that minimize hann to the environment. As the PSPC notes in their comment, the ordinance will not likely "affect the total amount of food service packaging used" in the City, and so will not likely lead to an increase in the amount of food service packaging in the litter stream. The ordinance does not specify what alternative product(s) a food provider must use. Under the requirements of the ordinance a food provider in Santa Monica may use food containers made from anything other than EPS and non-recyclable plastic, including paper, cardboard, recyclable plastics #1 through #5, biodegradable plastics, aluminum, and other biodegradable products including those made from plant-based starches and fibers, sugar cane, limestone, bamboo, and tapioca. Biodegradable plastics currently make up a very small share of the overall food container market and, as explained below, it is highly unlikely and a matter of pure speculation that the adoption of this ordinance in Santa Monica will alter their use in any significant way. Since biodegradable plastic containers are more expensive than other plastic and non- plastic alternatives it is likely that few, if any, vendors will switch to these products given the cost differential, particularly in light of the wide availability of other less expensive alternative products. The increased cost of biodegradable plastic products was the primary complaint expressed in written communication that the City received in April and May 2006 from the California Restaurant Association. This complaint was also voiced by various local restaurant owners at the City Council meeting on June 13,2006, and has been expressed to city staff by restaurant owners and representatives of grocery stores in many previous and subsequent meetings. Furthennore, in a letter sent to the City on April 19, 2006 from the PSPC, the American Chemical Council (ACC) and the Food Service and Packaging Institute (FSPI), these groups state that "Bio-based alternatives are perceived as being commonly available, but the experience of business owners who have been forced to switch materials has been contrary to this. In addition, because these products are degradable and prone to break down when exposed to heat and moisture, stockpiling large quantities for prolonged periods can result in inventory being ruined" This statement seems to directly contradict the assumption by the PSPC that the ban would increase the use of bio-plastics among food service providers. The other assumption expressed by PSPC in this comment - that "the ban can be expected to increase the amount of P LA and other bio-plastics in the litter stream, on beaches and the marine environment" - is also erroneous because 1) as noted above it is 2 not likely that the usage of these type of products will increase by a significant amount; and 2) due to the physical properties ofbio-plastics it is less likely that they will enter the litter stream or the environment. This is because a) biodegradable plastics can be com posted or recycled, so it is expected that a portion of the products that are used will be composted or recycledl and b) due to the higher weight of these products (compared to EPS) and their ability to biodegrade in the environment, it is less likely that those products that are disposed of, either properly or improperly, will be transmitted to the beach and marine environment by wind or water, as compared to EPS or other non- recyclable plastic. The percentage of solid waste diverted from the landfill through reuse, recycling or composting in Santa Monica currently stands at almost 70%, one of the highest diversion rates in the state of California. As this record makes clear, the city of Santa Monica and its residents are very committed to keeping waste out of landfills through recycling and compo sting. It can be expected in the future that any increase in the amount of recyclable and compostable products used in Santa Monica will result in a corresponding increase in the total amount of these products being recycled and composted. In short, based on the factors described above, the City anticipates a very minimal increase in the use ofPLA's and other bio-plastics. Moreover, to the extent that these products are used, given the City's substantial track record in recycling and composting, and the physical composition of these products, they will not find their way to beaches and the marine environment in any appreciable amount. PSPC's entire premise is faulty and is wholly divorced from the Santa Monica context. Comment 4: Air Quality Impacts The arguments presented in this comment are erroneous for a number of reasons, foremost of which is because they are predicated upon an increase in the use of biodegradable plastic products in Santa Monica as a result of the adoption of the ordinance, which was shown to be incorrect in the response to the comment above. Many of the arguments presented in this comment are also either factually incorrect or are directly contradicted by other statements made by PSPC. In this comment PSPC states that "Evidence suggests that bio-plastics such as PLA, when introduced into the litter stream in Santa Monica, would result in potentially significant adverse air quality impacts." However, they also include a quote from one of their referenced reports that states: "To summarize, all organic materials, including plastics, can be biodegraded to a greater or lesser extent, but the rate of degradation is controlled by many factors, and we do not have numerical models to allow predictions of the I In fact, there is an effective program in Santa Monica which demonstrates this. All of the bio-based plastic products used at the Zero Waste Fanners Market on Main Street, which requires all food vendors at the market to use recyclable or compostable food service items, including utensils are currently being composted or recycled. The program has been successfully implemented on a weekly basis since April 2006, achieving a near 100% diversion from the landfill of solid waste generated at the market. The compostable food service items are transported for composting along with food waste and other compostable material to an industrial composting facility. 3 environmental impact of biodegradation ( emphasis added)." PSPC's own report calls into question, and in fact directly contradicts PSPC's claims. PSPC's Comment 4 also alleges significant impacts from the degradation of biodegradable plastics in landfills. This directly contradicts statements made in the April 19,2006 letter from the PSPC, ACC and FSPI referenced above, which states "In most cases, food service packaging products thought to be or marketed as biodegradable only degrade under very limited and specific conditions found in industrial composting facilities. These are not the same conditions found in landfills (emphasis added) ". However, even if it were the case that biodegradable plastics were to increase in landfills by a significant amount as a result of this ordinance, and if they were able to degrade once in the landfills, this argument would still be incorrect because I) the majority of landfills in the Southern California region, including those that receive waste from Santa Monica, are covered and the methane generated by the decomposition of waste in the landfills is collected for reuse in electricity generation, which negates any environmental impact that the PSPC is claiming will occur; and, more importantly 2) biodegradable plastics are plant based materials made from corn starch. The greenhouse gas emissions given off by these products as they degrade are equivalent to the amount of emissions removed from the atmosphere by the corn plants as they grow, so the net balance in emissions is zero. For this reason alone it is not credible to claim that the degradation of biodegradable plastics used in Santa Monica as a result of this ordinance, either in landfills or in the environment, would result in any significant increase in greenhouse gas emISSIOns. In this comment the PSPC also notes that "life cycle analyses suggest that replacing polystyrene food packaging with bio-plastics will increase GHG and other pollutants required to produce an equivalent amount of bio-plastic food packaging". While this point is not relevant for the reasons expressed in the response to Comment 3, it must also be pointed out that life cycle assessments2 are far from conclusive on the overall environmental impacts of the manufacture and use of both bio-based plastics and non- recyclable plastics like polystyrene. The lack of conclusiveness of lifecycle assessments of packaging products is discussed in Use and Disposal of Polystyrene in California: A Report to the California Legislature, dated December 2004 by the California Integrated Waste Management Board. In addition, one of the references cited by the PSPC (Comstock et al. 2004) in support of their comments also notes this lack of conclusiveness. That report also includes a comparison of life cycle assessments from different sources in which petroleum based plastics (like polystyrene) are compared to bio-plastics on the basis of cost, non-renewable energy consumption, and greenhouse gas emissions. The report notes that "it can be seen in almost every case that bio-based plastics require less fossil fuel than the petrochemical polymers." Thus PSPC's own report directly contradicts PSPC's assertion. 2 A life cycle assessment is the evaluation of the environmental impacts associated with the manufacture, distribution, use and disposal of a product, process or activity. 4 Comment 5: Water Quality Impacts The claims in this comment are based on an anticipated increase in the use ofbio-plastics in Santa Monica as a result of the ordinance. As discussed in the response to Comment 3 this is not expected to occur. The use of biodegradable plastic containers will not have foreseeable negative environmental impacts on water quality or the marine environment in Santa Monica. Comment 6: Plant Life Impacts The claims in this comment are based on an anticipated increase in the use ofbio-plastics in Santa Monica as a result of the ordinance. As discussed in the response to Comment 3 this is not expected to occur. The use of biodegradable plastic containers will not have foreseeable negative environmental impacts on aquatic plant life in Santa Monica. Comment 7: Impacts to Fish and Wildlife from Bio-plastics The claims in this comment are based on an anticipated increase in the use of bio-plastics in Santa Monica as a result of the ordinance. As discussed in the response to Comment 3 this is not expected to occur. The use of biodegradable plastic containers will not have foreseeable negative environmental impacts on fish and wildlife in Santa Monica Bay. This comment also asserts that a "foreseeable adverse consequence to animal life stems from the risk that increasing the amount of bio-plastics in the local environment could lead certain species to adopt these bio-plastics as a food source." This is a curious statement because it is well documented that EPS and non-recyclable plastic (which would be banned by Santa Monica's ordinance) are already a food source and have been found in the digestive systems of nearly all tested ocean feeding bird species, marine mammals and fish, and are in fact a significant source of death in these species. If anything, a switch to bio-plastics would provide an environmental benefit because I) where marine mammals feed there would be less of this material available as food (because, as noted in the response to Comment 3, it would be less likely to reach the animals than EPS) and 2) because it is biodegradable it is potentially digestible, unlike EPS and other non-biodegradable plastics. Comment 8: Energy Impacts The claims in this comment are based on an anticipated increase in the use ofbio-plastics in Santa Monica as a result of the ordinance. As discussed in the response to Comment 3 this is not expected to occur. With regard to the comment about life cycle assessments please refer to the response to Comment 4, paragraph 5 on page 4 of this document. Comment 9: Impacts to Recycling Systems The claims in this comment are based on an anticipated increase in the use ofbio-plastics in Santa Monica as a result of the ordinance. As discussed in the response to Comment 3 this is not expected to occur. Comment 10: Impacts from Increased Composting The City of Santa Monica has an established food waste and green waste compo sting program. The compostable material collected by the City is regularly transported in 5 alternative fueled vehicles to industrial composting facilities. The adoption of this ordinance would in no way result in "increasedfuel consumption and air quality impacts from truck trips to these locations" because no additional trips would be generated as a result of the ordinance. Comment 11: Impacts to Composting Services The City has been compo sting bio-p1astics through its Zero Waste Farmers Market program since April 2006 and has not encountered any concern from industrial composting facilities with regard to "contamination' of the compost. Based on the references cited by PSPC, the argument made in this comment seems to stem from commercial conditions in Australia that are not relevant to Santa Monica. Comment 12: Impacts to I-luman Health The ordinance does not require food providers to conduct in-store collection and separation of food service containers, so this point has no relevance to the adoption of the ordinance. Comment 13: Impacts of Increased Litter As noted above, this ordinance will not lead to an increase in the use of bio-plastics in the community and therefore will not increase the amount of bio-plastics in the litter stream (See response to Comment 3, paragraph 5 on page 2-3 ofthis document). Also, with regard to the statement that "A significant potential impact of biodegradable plastics is simply the physical increase in litter, resultingfrom the behavior of the public which perceives biodegradables to be products that 'go away' quickly in the environment" the PSPC has not presented any scientific evidence that supports this opinion. Although the statement is drawn from an "expert" report prepared by a toxicologist (as opposed to a sociologist or other researcher who studies human behavior), it is entirely based on conjecture and speculation. Comment 14: Cumulative Impacts The draft ordinance applies to all food providers within Santa Monica but has no application outside the City's boundaries. The potential actions of other jurisdictions is speculative, beyond the control of the City, and too vague and imprecise for any meaningful environmental assessment. 6 Polystyrene Packaging Council PSPC 1300 Wilson Boulevard e.Arlington, VA 22209 703.741.5647 e Fax 703.741.5651 http://www.polystyrene.org November 13, 2006 Lamont Ewell, City Manager Craig Perkins, Director, Environmental and Public Works Management City of Santa Monica 1685 Main Street, Room 209 Santa Monica, CA 90401 Re: Comments from the Polystyrene Packaging Council (PSPC) on the Proposed Ordinance Banning Non-recyclable Plastic Disposable Food Service Containers Dear Mr. Ewell and Mr. Perkins: On behalf of the Polystyrene Packaging Council ("PSPC"), a business unit of the American Chemistry Council, I am writing to express our concerns regarding the failure of the Santa Monica City Council ("Council") to comply with the California Environmental Quality Act ("CEQA") in connection with the proposed ordinance banning non-recyclable plastic disposable food containers, Agenda Item 7-A for the November 14,2006 City Council meeting (the "Ordinance"). The PSPC is a trade association representing the nation's major resin suppliers of polystyrene and the fabricator and converter companies that use the resin to manufacture polystyrene products. Comment 1: The Proposed Ordinance Is Subiect to CEQA. The Staff Report for Agenda Item 7-A contains no mention of compliance with CEQA and we understand that the City Council has been advised that the Ordinance is not subject to CEQA. However, it is well-settled that a regulatory ordinance intended for environmental protection is a "project" subject to CEQA and that, where there is evidence that such an ordinance may have unintended adverse environmental impacts, those impacts must be analyzed and, if feasible, mitigated in accordance with CEQA before the ordinance may be adopted. Municipalities and agencies that have taken the position that CEQA review is unnecessary for their environmental protection ordinances and regulatory programs have consistently lost in the courts. See, e.g., Dunn Edwards Corp. v. Bay Area Air Quality Management District, 9 Cal. App. 4th 644 (1992); County Sanitation District v. County of Kern, 127 Cal. App. 4th 1544 (2005); City of Arcadia v. State Water Resources Control Board, 135 Cal. App. 4th 1392 (2006). In County Sanitation District, the court held that the county violated CEQA when adopting an ordinance to prohibit application of treated sewage sludge to land as fertilizer. The claimed environmental benefits of the sludge ban ordinance did not override ~he CEQA requirement to prepare an Environmental Impact Report ("EIR") addressing significant adverse environmental impacts, including increased disposal of sewage sludge in landfills; air quality and transportation impacts from trucking sludge to the landfills; increased energy use to process substitute products that were allowable under the ordinance; and adverse impacts from the use of increased amounts Lamont Ewell Craig Perkins November 13,2006 Page 2 of manure as a substitute fertilizer. As discussed below, analogous impacts must be addressed in the case of this proposed Ordinance. Given that adoption of environmental protection ordinances is subject to CEQA, the City could avoid proper CEQA compliance only if it is certain that this Ordinance could not cause reasonably foreseeable, potentially significant adverse environmental impacts. We assume that a belief that no such impacts exist must underlie the City's decision to forego CEQA review in this case. In other words, the City appears to believe the Ordinance to be exempt from CEQA, either because "it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment" (CEQA Guidelines section I 5061 (b)(3), the so- called "common sense" exemption) or under some other exemption.l To the contrary, as described below and in the attachments to this letter, there is in fact substantial evidence - that is, "facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts" (CEQA Guidelines section 15064(f)(5)) - of such potentially significant impacts. Therefore, Council can adopt the Ordinance only in compliance with the mandatory review process under CEQA. Comment 2: Trash TMDLs. A particularly pertinent case is the recent City of Arcadia decision, in which the court held that the Los Angeles Regional Water Quality Control Board ("Regional Board") had failed to comply with CEQA when adopting a Total Maximum Daily Load for trash discharges to the Los Angeles River watershed (the "LA River Trash TMDL"). In fact, after the court remanded the TMDL to the Regional Board to conduct the requisite CEQA compliance, some of the cities in the watershed that were subject to allocations under the LA River Trash TMDL proposed that the Regional Board should single out plastic packaging ban ordinances as a means of compliance with those allocations. In response to PSPC's comments objecting to these proposals on CEQA grounds, the Regional Board expressly stated that: "Should any [polystyrene] ban be proposed as a [TMDL] compliance measure or for other reasons, the municipality would be the lead agency for CEQA compliance and evaluation of environmental impacts, if necessary.,,2 Responsiveness Summary - CEQA Scoping Meeting for the Los Angeles River Trash TMDL held on June 28, 2006 (September 8, 2006), page 2 (emphasis added). Thus, while the Ordinance is not currently 1 The Staff Report for Agenda Item 7-A is silent as to the basis for any claim of exemption from CEQA. None of the statutory or categorical exemptions applies on its face; moreover, the categorical exemptions cannot be applied if there is a "reasonable possibility" that, due to "unusual circumstances," the Ordinance will have a significant effect on the environment. CEQA Guidelines section 15300.2( c). 2 The only reason that evaluation of environmental impacts might not be "necessary," as noted above, would be if "it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment" (CEQA Guidelines section 15061 (b )(3), emphasis added) or if a categorical exemption applies and there is no "reasonable possibility" of impacts (CEQA Guidelines section 15300.2(c)). Based upon the evidence discussed in the remainder of this letter, that is not the case. Lamont Ewell Craig Perkins November 13,2006 Page 3 proposed as a TMDL compliance measure, the Regional Board's reasoning explicitly applies to such an ordinance adopted "for other reasons" as well. Moreover, it is noteworthy that the City of Santa Monica will soon itself become subject to trash allocations under a TMDL for Pico Kenter Drain, an outfall which drains into Santa Monica's urban runoff filtering facility. The Regional Board recently commenced the CEQA scoping process for the Pico Kenter Drain TMDL and has announced that it intends to impose zero trash allocations on subject municipalities, just as it did in the LA River Trash TMDL. As it did with the latter TMDL, for this and future TMDLs the LA Regional Board is certain to continue its practice of imposing CEQA review obligations on the affected cities which may consider polystyrene ban ordinances. It is also worth noting that the Ordinance will not go into effect for a year for food providers (six months as applied to city events and city property). By that time, the LA Regional Board will have completed its TMDL development process and the Ordinance clearly will function as a means of TMDL compliance. Comment 3: Reasonably Foreseeable Increase in Use of Bio-plastics. Should the Council pass the proposed Ordinance and ban all polystyrene and non-recyclable plastic disposable food service containers in Santa Monica, including polystyrene food packaging, this action may be unlikely to affect the total amount of food service packaging used. However, of necessity, it will require the substitution of alternate food packaging materials. In fact, that is the intent of the Ordinance: to require food service providers to use recyclable or biodegradable food service packaging. A common alternative material for polystyrene food packaging is plastic made from biodegradable materials, such as corn-based polymers, poly lactic acid ("PLA") and polyhydroxyalkanoate ("PHA"). Since the Ordinance will change the mix of materials used by food service providers in Santa Monica and during City of Santa Monica permitted events, without also requiring any actions that can be relied on to effectively reduce the volume of litter, the ban can be expected to increase the amount of PLA and other "bio-plastics" in the litter stream, on beaches and in the marine environment. As described below in Comments 4 -12, there is a significant body of scientific evidence indicating that increasing the amount of biodegradable food packaging in the litter stream could have foreseeable adverse environmental consequences. This evidence must be evaluated and considered by the Council pursuant to the CEQA process before it acts to approve the Ordinance. Comment 4: Air Quality Impacts. Evidence suggests that bio-plastics such as PLA, when introduced into the litter stream in Santa Monica, would result in potentially significant adverse 3 See Notice of California Environmental Quality Act (CEQA) Scoping Meeting for Proposed Amendments to the Water Quality Control Plan for the Los Angeles Region (Basin Plan) to Establish Total Maximum Daily Loads (TMDLs) for Trash for Waterbodies in Los Angeles County (November 1, 2006); Addendum to Notice of California Environmental Quality Act (CEQA) Scoping Meeting for Proposed Amendments to the Water Quality Control Plan for the Los Angeles Region (Basin Plan) to Establish Total Maximum Daily Loads (TMDLs) for Trash for Waterbodies in Los Angeles County (November 7, 2006) [attached as Exhibit 1]. Lamont Ewell Craig Perkins November 13, 2006 Page 4 air quality impacts (Krause 2006 [Exhibit 2]; Institute for Environmental Research and Education 2006 [Exhibit 3]). Biodegradable material is defined as that which is "capable of undergoing decomposition into carbon dioxide, methane, water, inorganic compounds, or biomass in which the predominant mechanism is the enzymatic action of microorganisms that can be measured by standardized tests, in a specified period of time, reflecting available disposal conditions" (American Society of Testing Materials 1994). As the definition implies, the biodegradation of materials is primarily though the enzymatic action of microorganisms. Among the principal by-products of the microbial degradation of organic products, including biodegradable plastics, are the greenhouse gases ("GHG"), carbon dioxide and methane. While these are natural products of microbial degradation, the generation of significant quantities of GHG are expected from the loading of biodegradable plastics upon their degradation in landfills, waterways and as trash (Kurdikar et al. 2001 [Exhibit 4]; Nolan-ITU 2002 [Exhibit 5]; Patel et al. 200 I [Exhibit 6]). Estimates from these literature sources show that between 90 and 420 kilogram-equivalents of carbon dioxide are produced from each kilogram of material through the degradation process. This increase in carbon dioxide release can significantly affect the GHG production in sensitive areas such as southern California (Krause 2006). A report by the Institute for Environmental Research and Education ("IERE") (2006) indicates that a substantial portion of bio-plastic litter in freshwater and marine locations can be expected to undergo anaerobic degradation. Two of the key conditions for degradation of organic materials are heat and moisture, both of which are readily available in various parts of Santa Monica, including the beaches. Ifbio-plastic litter is exposed to heat and moisture in low oxygen conditions, anaerobic degradation of the materials will occur. According to IERE, anaerobic degradation of organic material, such as bio-plastics, generates carbon dioxide, methane, nitrous oxide, hydrogen sulfide and volatile organic compounds. IERE's report states: Under anaerobic conditions, the climate change impacts can be quite substantial, since methane is about 20 times more potent than C02 as a greenhouse gas, and Nitrous oxide is about 300 times as potent as C02. The ammonia released is free in the atmosphere and can migrate to cause eutrophication in marine ecosystems. Although it is unlikely to reach concentrations high enough to cause toxic effects, the H2S released has a most unpleasant rotten egg odor. Many of the VOCs are also odorants, with such evocative names as "putrescence." In addition to impacts from biodegradation itself, life cycle analyses suggest that replacing polystyrene food packaging with bio-plastics will increase the amount of GHG emissions and other pollutants required to produce an equivalent amount ofbio-plastic food packaging (Gerngross 1999 [Exhibit 7]; Gerngross and Slater 2000 [Exhibit 8]; Kurdikar et al. 2001; ExcelPlas Australia 2003 [Exhibit 9]; James and Grant 2005 [Exhibit 10]; Gonzalez 2006 [Exhibit 11]). For example, in the case ofPLA and PHA, more fossil fuels must be burned to fertilize and harvest the corn and then to convert it into bio-plastic than is required to make an equivalent amount of petroleum-based plastics such as polyethylene ("PE") and polyethylene terephthalate ("PET"). Accordingly, the production ofPLA results in greater greenhouse gas emissions. Further, corn farming and processing are generally powered by coal and natural gas, Lamont Ewell Craig Perkins November 13, 2006 Page 5 which tend to emit higher levels of sulfur oxides, a precursor to acid rain, than the fuel used to produce petroleum-based plastics (Gerngross and Slater 2000). As the !ERE (2006) report concludes: To summarize, all organic materials, including plastics, can be biodegraded to a greater or lesser extent, but the rate of degradation is controlled by many factors, and we do not have numerical models to allow predictions of the environmental impact of biodegradation. The key issue is whether degradation is aerobic or anaerobic, for this single parameter has great impact on the greenhouse gas emissions, the emissions causing eutrophication, and the emissions of unpleasant odors. Studies examining the environmental impacts of composting have provided wide ranges of emissions estimates and mixed conclusions as to the desirability of this waste management method. Qualitatively, biodegradation processes are well understood. Quantitatively,they are not. Nevertheless, our qualitative knowledge is sufficient to state that there are real environmental issues related to biodegradation, and that composting may not always be the preferred method for organic material disposal. Accordingly, these potential environmental impacts must be considered by the Council during its deliberations on the Ordinance. Comment 5: Water Quality Impacts. Evidence suggests that bio-plastics such as PLA, when introduced into the litter stream in Santa Monica, will result in adverse water quality impacts due to the release of nutrients and nitrogenous compounds (Nolan-ITU 2002; ExcelPlas Australia 2003; !ERE 2006; Stein 2006a [Exhibit 12]; Gonzalez, 2006). Because the breakdown of biodegradable plastics is through the action of microorganisms, a corresponding increase in the biological oxygen demand (BOD) would be observed during the breakdown process (Nolan-ITU 2002; ExcelPlas Australia 2003). When this process occurs in a water body such as a river, drainage canal, estuary or bay, large scale impacts to the aquatic resources such as fish are probable (Krause 2006). For example, as discussed in Comment 4 above, !ERE (2006) indicate that these adverse impacts could occur whether the bio-plastic litter undergoes aerobic or anaerobic degradation. Aerobic degradation would produce nitrate, whereas anaerobic degradation would produce ammonia. According to !ERE, the nitrate migrates easily in groundwater and surface water. Ammonia, however, is released to the atmosphere, but can still disperse into surface water. Both nitrate and ammonia can contribute to eutrophication of surface waters. In addition, bio-plastics contain manufacturing residues, such as dyes, inks, plasticizers, fillers and metallic catalysts added to help promote degradation could adversely impact water quality (Krause 2006). Available information suggests that these materials can pose potentially significant impacts to aquatic resources (Nolan-ITU 2002; ExcelPlas Australia 2003). For example, these residues tend to be released into the environment as small particles during degradation of bio-plastics, whereas they tend to remain inert in petroleum-based plastics. Lamont Ewell Craig Perkins November 13, 2006 Page 6 Aerobic or anaerobic degradation could cause these residues to migrate into groundwater and surface water, posing a potential impact to the beneficial uses of those water bodies (Nolan-ITU 2002). Life-cycle analysis also indicates that replacing polystyrene packaging with bio-plastics could increase the water quality impacts associated with producing an equivalent amount of food packaging (ExcelPlas Australia 2003; James and Grant 2005). For example, the production of corn for the raw material of PLA has substantial water quality impacts (Royte 2006 [Exhibit 13]). In particular, commercial corn agriculture requires the use of extremely high levels of nitrogen-based fertilizers, herbicides and insecticides. These chemicals enter surface waters during runoff. In addition, Royte (2006) notes that high levels of erosion are associated with commercial corn agriculture. Comment 6: Plant Life Impacts. Scientific evidence indicates that there are a number of foreseeable adverse consequences to aquatic plant life that could result from an increased use of bio-plastic food packaging. As discussed in Comment 5 above, IERE (2006) reports that nitrogenous compounds released during the aerobic and anaerobic degradation ofbio-plastics can cause eutrophication of surface waters. This can result in explosive increased growth of certain types of plants in the water body, typically algae, periphyton attached algae, and nuisance plants weeds. This increased plant growth, often called an "algal bloom," can crowd out other plant species and reduce their population. In addition, such an algal bloom will ultimately reduce the dissolved oxygen in the water as a result of an increase in the mass of decomposing dead plant material. The resulting oxygen depletion can further reduce the populations of aquatic plant species in the area. In addition, phototoxicity (i.e., toxicity to plants) due to the buildup of inorganic materials in the soil can lead to a reduction in soil productivity (Krause 2006, Nolan-ITU 2002). Similarly, soil organisms such as earthworms can be affected leading to a less productive soil environment. Comment 7: Impacts to Fish and Wildlife from Bio-plastics. Scientific evidence indicates that there are a number of foreseeable adverse consequences to fish and wildlife that could result from an increased use ofbio-plastic food packaging. First, as discussed in Comments 5 and 6 above, that nitrogenous compounds released during the aerobic and anaerobic degradation of bio-plastics can cause eutrophication of surface waters, leading to dangerous algal blooms. An algal bloom reduces dissolved oxygen in the water when dead plant material decomposes. Low dissolved oxygen content can kill fish (IERE 2006, Krause 2006). Another foreseeable adverse consequence to animal life stems from the risk that increasing the amount of bio-plastics in the local environment could lead certain species to adopt these bio- plastics as a food source. The direct exposure from partially degraded material to both aquatic and terrestrial organisms is significantly damaging. Organisms may experience trauma or death from ingesting the partially degraded materials. For example, aquatic predatory birds such as herons, egrets, and gulls may ingest material that would be found in waterways and estuaries (Krause 2006). In addition, populations of those species that use bio-plastics as a food source could increase. An increase in predatory species in turn can negatively impact the population levels of their prey species. Lamont Ewell Craig Perkins November 13,2006 Page 7 Comment 8: Energy Impacts. Life cycle analyses suggest that replacing the polystyrene food packaging with bio-plastics will increase the amount of energy required to produce an equivalent amount ofbio-plastic food packaging (Gerngross and Slater 2000; ExcelPlas Australia 2003; James and Grant 2005). For example, in the case ofPLA, more fossil fuels must be burned to fertilize and harvest the corn and then to convert it into bio-plastic than is required to make an equivalent amount of petroleum-based plastics. Comment 9: Impacts to Recycling Systems. It is also foreseeable that increasing the quantity of bio-plastics in the waste stream could impair the efficiency of existing recycling services. Royte (2006) notes that plastics recyclers consider PLA to be a contaminant that must be removed from recyclable plastics, at considerable cost. The mixing of biodegradable plastic into the plastic recycling stream could negatively impact the properties of the recycled plastic end product, potentially causing failure of the recycled plastic product, which is especially serious in the case of construction materials (ExcelPlas Australia 2003). If buyers of recycled plastic lose confidence in the quality of a particular source of recycled plastic, they will stop buying. A contraction in the market for recycled plastic would mean that less recyclable plastic would be purchased by recyclers. The unpurchased recyclable plastic would then have to be disposed of as solid waste. Aside from creating additional solid waste, the transport of the recyclable plastic to a disposal facility will also result in adverse air quality impacts as a result of increased fuel consumption. Therefore, unless end users of food service packaging are educated to ensure that PLA and other biodegradable plastics are not mixed with PET and other recyclable plastics, or unless the City intends to install very expensive sorting machinery to identify and separate PLA, the increased use ofbio-plastic food service packaging could result in reasonably foreseeable adverse environmental impacts. Comment 10: Impacts from Increased Composting. Another reasonably foreseeable consequence of increased use of bio-plastics is that cities would seek to compost as much bio- plastic food packaging as possible. In fact, the bio-based packaging industry recommends that its products be disposed of in a municipal or industrial compo sting facility in order to realize the packaging's maximum environmental efficiency (Royte 2006). While there may be adequate composting capacity available to receive biodegradable plastics collected by Santa Monica, the compositing facilities "are distant, such as the facilities in Kern County or San Bernardino County. The need to transport material to more distant composting facilities would result in increased fuel consumption and air quality impacts from truck trips to these locations. Comment 11: Impacts to Composting Services. The increased use of bio-plastic food service packaging could lead to contamination of "green" waste collected for compo sting in commercial and municipal composting facilities (Stevens 2002 [Exhibit 14]; ExcelPlas Australia 2003). As has been observed regarding the impact of plastic bags on commercial compo sting, "The quality of the end compost product is critical to market success, so any contamination with plastics is a potential problem." ExcelPlas Australia (2003). The same is true where the result is contamination of the compost end-product by non-biodegradable (although otherwise recyclable) plastics. This could cause batches of compost material to be unmarketable, and therefore, have to be disposed of as solid waste. Aside from creating additional solid waste, the transport of the Lamont Ewell Craig Perkins November 13,2006 Page 8 contaminated compost to a disposal facility will also result in adverse air quality impacts as a result of increased fuel consumption. Unless consumers properly segregate non-biodegradable plastics from the compost stream, the contamination of municipal and commercial composting processes is, therefore, a reasonably foreseeable adverse environmental impact. Comment 12: Impacts to Human Health. To the extent that the Ordinance leads food service providers to use recyclable food service packaging, this may result in increased health concerns and potential contamination (Foodservice & Packaging Institute 2003 [Exhibit 15]). Single-use foodservice packaging products are an important part of our nation's food safety and sanitation system. These products are a vital, yet often overlooked, way to prevent food-borne disease. Nearly half of the outbreaks of food-borne disease occur in restaurants, cafeterias, schools, delicatessens and other foodservice operations, according to the Centers for Disease Control and Prevention. For good reason, foodservice managers rank overall sanitation as their number one issue of concern. Contamination and health concerns associated with in-store separation of contaminated foodservice items is one of the primary reasons there is little recycling of any foodservice packaging regardless of the material type - coated bleached paperboard products, composite paper/plastic products, expanded polystyrene ("EPS"), or bio-based plastics. For the relatively small amount of post-consumer foodservice packaging that could be recycled, weighted against the risk of increase bacteria and unsanitary conditions in and around foodservice establishments to collect this relatively small amount of foodservice material, the risk of recycling does not often outweigh the sanitation and public health concerns for foodservice establishments. Comment 13: Impacts of Increased Litter. A significant potential impact of biodegradable plastics is simply the physical increase in litter, resulting from the behavior of the public which perceives biodegradables to be products that "go away" quickly in the environment (Krause 2006). On the contrary, life-cycle assessment studies have shown that biodegradable plastics may take weeks or months to degrade completely depending on the environmental conditions in which they are found (ExcelPlas Australia 2003; James and Grant 2005). It is foreseeable that the public response to a switch to bio-plastics or other biodegradable materials following a ban on polystyrene food packaging could lead to increased litter. Experts indicate that, without proper education, consumers have a tendency to think that there are no adverse environmental impacts from throwing trash items labeled "biodegradable" or "compostable" onto the ground (Lingle 1990 [Exhibit 16]; Comstock et al. 2004 [Exhibit 17]; Stein 2006b [Exhibit 18]). Consequently, the use of such materials would likely increase the amount of trash on streets, in storm drains, on beaches and in Santa Monica Bay. Not only would this be an adverse environmental impact in itself, but increased levels of bio-plastics and other biodegradable materials in the litter stream would exacerbate other impacts described in the comments above. Within the Santa Monica City limits, the Ordinance is unlikely to reduce litter. Since there is no evidence that the Ordinance will reduce the amount of prepared food sold and consumed within Santa Monica, a similar number of food packaging items-albeit made from recyclable or biodegradable plastic-will enter the waste stream. Unless measures directed at people's behavior towards littering is addressed concurrently with the implementation of the Ordinance, Lamont Ewell Craig Perkins November 13,2006 Page 9 the result will be that the same amount of litter exists, although it will be comprised of different materials. Polystyrene food packaging currently left on the beach by beachgoers will simply be replaced by recyclable or biodegradable food packaging. Further, the portion of the "new" litter stream that is made of biodegradable plastic will cause the potentially significant environmental impacts discussed in the comments above. Moreover, the Ordinance will not reduce the amount of trash on Santa Monica beaches. An analysis by Stein (2006b) demonstrates that most of the trash on Santa Monica's beaches does not originate in Santa Monica. Rather, the source of most of the trash is storm drains that carry trash that enters the watershed from municipalities upstream of Santa Monica. Further, polystyrene food service packaging left on the beach by beachgoers is a relatively small percentage of the total amount of trash found on the beach. Accordingly, the Ordinance will not have any litter reduction benefit and the potentially significant adverse environmental impacts discussed above would be incurred with no offsetting benefit in terms of litter reduction. Comment 14: Cumulative Impacts. Finally, we understand that Santa Monica staff intend for the Ordinance to serve as a model for other communities looking to establish sustainable packaging policies. In addition, the cities subject to the LA Trash TMDL and other forthcoming trash TMDLs, besides Santa Monica, will be seeking means of compliance with the Regional Board's zero trash allocations (see Exhibit 1). For these reasons, the Ordinance is not an action that can be viewed in isolation. Instead, it is likely to contribute to cumulative impacts in each of the impact areas discussed above, together with ordinances of other cities in southern California. Given the proximity of the cities in the same and adjacent watersheds, such impacts are likely to be cumulatively considerable and must be considered in accordance with CEQA. Thank you for considering these comments. If you have any questions, please do not hesitate to contact me. Sincerely yours, ~4 Mike Levy, Director Polystyrene Packaging Council (PSPC) cc: Mayor Robert Holbrook Mayor Pro Tempore Bobby Shriver Council Member Richard Bloom Council Member Ken Genser Council Member Herb Katz Council Member Kevin McKeown Council Member Pam O'Connor Marsha Jones Moutrie Lamont Ewell Craig Perkins November 13,2006 Page 10 References American Society of Testing Standards (1994). Standard D-5488-84d. Comstock, K. et al (2004). From hydrocarbons to carbohydrates: food packaging of the future. University of Washington, Graduate Student Research Paper, June 2004. ExcelPlas Australia et al. (2003). The impacts of degradable plastic bags in Australia. Final Report to the Department of the Environment and Heritage. Foodservices & Packaging Institute, Inc. (2003). Sensible for our health. www.fpi.org. Gerngross, T.U. and S.c. Slater (2000). How green are green plastics? Scientific American, Aug. 2000: pp. 37-41. Gerngross, T.U. (1999). Can biotechnology move us toward a sustainable society? Nature Biotechnology, Vol. 17, June 1999: pp. 541-544. Gonzalez, A., 2006. Letter from the President of the William C. Velasquez Institute to the Honorable Ed Reyes, Councilmember, Los Angeles City Council (dated Nov. 9,2006). Institute for Environmental Research and Education (2006). Memorandum from R. Schenck, Ph.D., Executive Director, to M. Levy, Executive Director, Polystyrene Packaging Council (dated Aug. 18, 2006). James, K. and T. Grant (2005). "LCA [Life-cycle assessment] of degradable plastic bags. Centre for Design at RMIT University, Australia. Krause, P.R. (2006). Memorandum from P.R. Krause, Ph.D., Senior Ecologist, Blasland, Bouck and Lee, Inc., to M. Levy, Executive Director, Polystyrene Packaging Council (dated Nov. 12, 2006). Kurdikar, D., et al. (2001). Greenhouse gas profile of a plastic material derived from a genetically modified plant. Journal oflndustrial Ecology, Vol. 4, No.3: pp. 107-122. Lingle, R. (1990). Degradable plastics: all sizzle and no steak? Prepared Foods, Jan. 1, 1990. Nolan-ITU (2002). Environment Australia: Biodegradable plastics - developments and environmental impacts. Victoria, Australia. Lamont Ewell Craig Perkins November 13, 2006 Page 11 Patel, M. et al. (2001). Environmental assessment ofbio-based polymers and natural fibres. Utrecht University, Department of Science, Technology and Society. Regional Water Quality Control Board, Los Angeles Region (2006). Notice of California Environmental Quality Act (CEQA) Scoping Meeting for Proposed Amendments to the Water Quality Control Plan for the Los Angeles Region (Basin Plan) to Establish Total Maximum Daily Loads (TMDLs) for Trash for Waterbodies in Los Angeles County (dated Nov. 1,2006) Regional Water Quality Control Board, Los Angeles Region (2006). Addendum to Notice of California Environmental Quality Act (CEQA) Scoping Meeting for Proposed Amendments to the Water Quality Control Plan for the Los Angeles Region (Basin Plan) to Establish Total Maximum Daily Loads (TMDLs) for Trash for Waterbodies in Los Angeles County (dated Nov. 7, 2006) Royte, E. (2006). Corn plastics to the rescue. Smithsonian Magazine, Aug. 2006. Stein, S. (2006a). Memorandum on biodegradable plastics. Senior Consultant, R. W. Beck, Inc. (dated Aug. 18, 2006). Stein, S. (2006b). Memorandum on Santa Monica & Malibu litter. Senior Consultant, R.W. Beck, Inc. (dated Nov. 9,2006). Stevens, E.S. (2002). Why do composters care? How green are green plastics. BioCycle, Dec. 2002: pp. 42-45.