Contra Costa County Agrees to Ban Polystyrene Food, Beverage Containers

On Tuesday, the Contra Costa County Board of Supervisors unanimously agreed to ban Styrofoam food and drink containers in unincorporated parts of Contra Costa County.

According to the county, key provisions of the ordinance include:

• Prohibits use of polystyrene food and beverage containers
• Prohibits sale of polystyrene food and beverage containers
• Applies to restaurants, fast food services, retail stores
• Applies to county facilities
• Exempts ice chests, raw meet trays, prepackaged food items
• Provides a six-month grace period until May 1, 2020
• One-year exemption procedure

The board also opted against adding in compostable food ware products because not all parts of the unincorporated areas have waste collectors that provide food composting services weekly.

In total, the cost to enforce the ordinance is estimated at $25,000. The board will now bring it back at the Oct. 8 meeting before it goers into effect in May of 2020.

Supervisor Diane Burgis urged the county to include language that differentiates compostable that are preferred so that they are moving towards more environmentally friendly recyclables.

“This is really great, I am really happy this has come before us,” said Burgis. “I think reusable is definitely the best way to go, but I wonder some of these packaging that are reusable are environmentally friendly.  Going to the recyclables, I think it’s important for people to realize that because it has the little triangle symbol, doesn’t mean it’s always recyclable. Second, when it has contamination with food, it makes it less desirable for recycle and there are more international recyclable standards so even if they are packaged up, they often end up in the landfill or ocean.”

She further highlighted how pieces of polystyrene were problematic.

“It’s not always someone throwing something out of a window as we make that assumption, it’s the garbage cans that fly open on a windy day, it’s not always someone littering, but it does end up in a storm drain. It sits in the sun and it starts to break down so its not a whole cup,” explained Burgis. “It turns into a whole bunch of little pellets and those things go to the water and becomes trash in our oceans. They may be eaten by wildlife. We do need to find a solution to this and so I support this.”

According to the staff report, staff reached out to cities who do not have a polystyrene ordinance  (Antioch, Brentwood, Clayton, Danville, Moraga, Oakley, Orinda, Pleasant Hill, and San Ramon) and asked if they have plans to adopt an ordinance banning Styrofoam food and beverage containers. None of the cities that responded are planning to adopt an ordinance, some due to limited staff resources and some relying instead on a statewide ban.

In a couple of cities, staff is supportive of a ban, but the idea has not gained traction. Staff also contacted the Cities/Towns that currently have a polystyrene ordinance (Concord, El Cerrito, Hercules, Lafayette, Martinez, Pinole, Pittsburg, Richmond, San Pablo, and Walnut Creek) and asked how they enforce their ordinance. Enforcement is either through a complaint driven program where citizen complaints trigger an inspection, or an inspection program that systematically inspects businesses for compliance. A few City/Town enforcement programs are complaint driven, but most ordinances are enforced through a formal inspection program, and most businesses readily comply after the first warning. Some enforcement programs are being changed from inspection to complaint driven because the rate of compliance is very high.

The staff report also shared that the County and the Contra Costa County Flood Control and Water Conservation District spend approximately $750,000 annually to remove litter from waterways and sensitive environmental areas within the County. Polystyrene single-use food service ware constitutes a significant portion of that litter.

During public comments, Howdy Goudey, chair of the Contra Costa Sustainability Commission, said while he supports the ordinance, he believed the ordinance wasn’t forward looking enough.

“It’s addressing an important problem. But the current realities of recycling are very different than they were a few years ago,” stated Goudey. “To declare environmental food friendly food service ware as recyclable and not compostable is not really seeing where the whole market is going.”

Goudey also noted that state mandates were coming that would divert 50% of organics from the waste stream just next year.  He called the action not being reflective of things coming down immediately that need to be done.

“To say we can’t do it because we don’t have services yet, those services need to be established to meet these goals that you have,” stated Goudey.

Supervisor Candace Andersen responded saying they saw this ordinance as only a first step.

“As technology changes, our franchise agreements change, as we have the ability to expand our prohibition and types of polystyrene we are able to find there is an easy economic replacement for I think we are going to continue to look at this,” explained Andersen.

She recommended they pass the ordinance in its current form and to bring it back every six-months to a year for updating.

Supervisor John Gioia called it important to get regular updates and for the community to talk about the compostable issue. He called it a “matter of time” when franchise agreements (with garbage companies) are updated.

Gioia also asked the county to look at single-use plastics and where it was appropriate to ban it in the future.

Supervisor Karen Mitchoff stated with the ordinance going into effect in May of 2020, that she would like a comprehensive report back in December of 2020.

The item passed in a 5-0 vote

Editors Note – more information below via the Staff Report

On December 4, 2018, the Board of Supervisors considered a Transportation, Water and Infrastructure Committee (TWI Committee) recommendation to adopt an ordinance banning polystyrene food and beverage containers and the extent of the ban. The Board considered the recommendation and expanded the ban to include not only the use of, but also the sale of polystyrene food and beverage containers. The Board then directed staff to prepare an ordinance to implement that ban on polystyrene food service ware. The TWI Committee reviewed the ordinance at its August 12, 2019, meeting and recommended its adoption by the Board.

Ordinance No. 2019-25. Ordinance No. 2019-25 includes the following provisions:

• The ordinance prohibits food vendors (e.g., restaurants, fast food or take-out services, food trucks, and other businesses that sell food or beverages) in the unincorporated County from using polystyrene food and beverage containers beginning May 1, 2020.
• The ordinance requires food vendors in the unincorporated County to use environmentally friendly food and beverage containers.
• The ordinance prohibits the sale of polystyrene food and beverage containers in the unincorporated County beginning May 1, 2020.
• Prepackaged food items, raw meat trays, and reusable polystyrene ice chests and coolers are exempt.
• Leases and rental agreements for County-owned facilities may require the use of environmentally friendly food service ware. Contracts with County vendors and service providers may require the use of environmentally friendly food service ware in connection with services performed for the County.
• The ordinance includes a process for food vendors to request that the Public Works Director issue a one-year hardship exemption under limited circumstances.

Outreach. Before the TWI Committee meeting on August 12, 2019, staff expanded the outreach mailing list for this project to include over 450 businesses and impacted parties, including representative associations and other parties of interest, like the Restaurant Association, chambers of commerce, and recyclers or recovery businesses. On July 15, 2019, a letter was sent to all parties on the outreach mailing list informing them of the proposed polystyrene ban. The letter included a caption in both Spanish and Chinese that directed them to a website with more information. The website includes text of the letter in English with a button that takes the reader to a translated version of the text into either Spanish or Chinese. The ordinance is also on the website in English, Spanish, and Chinese. The letter requested comments on the ordinance and informed them of the opportunity to express their concerns in person at the TWI Committee meeting on August 12, 2019. There was no public comment at the TWI Committee meeting. A similar letter was subsequently sent to all parties on the outreach mailing list informing them of the Board meeting on September 24, 2019, and the opportunity to submit comments by mail, by e-mail, or by phone, or to comment in person at the Board meeting.  

Comments on the Draft Ordinance. Three comments were received after mailing the July 15, 2019, notice/letter. The first comment was from a restaurant in Port Costa that supports the County’s effort to ban polystyrene food and beverage containers. The restaurant currently uses only compostable to-go containers. The second set of comments was from the Sustainability Commission. They questioned whether polystyrene raw meat trays were exempt. This was the intent, but it was not clear in the ordinance, so the ordinance was modified to explicitly exempt raw meat trays. The Sustainability Commission’s other comments were the same as those expressed by the third and last set of comments, an e-mail from Howdy Goudey wherein he makes the following four points:

• Compostable Products. Mr. Goudey urges the Board to include compostable products in the definition of “environmentally-friendly food service ware.”
• Define Compostable. Mr. Goudey suggests including a definition for compostable products as those products accepted by the processors providing service to unincorporated County communities.
• County Facilities. Mr. Goudey suggests that County facilities “shall” use alternatives to polystyrene food and beverage containers rather than “may” use alternative materials. This is not the recommendation that was made by the TWI Committee. However, if the Board desires to revise the ordinance in response to this comment, Section 418-18.006 could be modified to provide that leases and rental agreements, and County services contracts, entered into on or after May 1, 2020, “shall” require lessees and contractors to use environmentally-friendly food service ware. If the Board wants to allow exceptions where the County determines a lessee or contractor would experience a hardship, Section 418-18.006 could be modified to allow for those exceptions.
• Reusable Products. Mr. Goudey suggests the ordinance emphasize the use of reusable products is preferred and recommended over single-use products.

The issue of compostable products is complicated and revolves around timing. This was discussed at the first TWI Committee meeting on November 8, 2018, and the excerpt of the staff report related to compostable materials is included here for additional background as follows:

Compostable Materials. Initially staff recommended the alternative materials allowed would not include compostable products. This was due to concerns expressed by County staff knowledgeable about the recycling industry and the services and facilities available locally to manage compostable materials. At their August 27, 2018, meeting, the Sustainability Commission advocated for including compostable materials as an alternative to polystyrene. They felt it would still be better to have compostable materials in the landfill than alternative plastic materials. In fact, it is worse to have compostable materials end up in the landfill, because compostable materials would generate more greenhouse gas emissions than landfilling recyclable plastic. Staff continues to recommend not including compostable materials as an alternative to polystyrene at this time, for several reasons:

– Only some of the incorporated and unincorporated areas of the County currently have separate collection service for food waste or food contaminated compostable materials, so it is premature to require businesses in unincorporated areas to package food in compostable “To Go” containers.

– The County only has authority over the Franchise Agreements that govern collection provided to approximately 53% of the population living in unincorporated areas, so the County cannot require consistent recycle and compostable collection services. For consistent service, the County will need cooperation from the Special Districts or Joint Powers Authority having authority over the collection franchises governing services provided to the remaining unincorporated areas (47%).

– New regulations are being developed in response to recent changes in State law that will impose substantial new requirements related to recovery and composting of organics in the waste stream. It is critical that the County not take an action mandating increased generation of compostable waste without first ensuring there is sufficient composting capacity to manage food waste and other compostable items already present in our waste stream.

– Some compostable products look very similar to plastic and cannot be distinguished by the public, making proper sorting at the customer level problematic. This same challenge is also problematic for composting facility operators, and when in doubt, the material will be disposed of and not composted. At a minimum, it makes the sorting process more complex and time-consuming. If sorting costs increase, recyclers are likely to either raise rates or refuse to accept compostable food waste materials. Refusal to accept compostable materials would result in an increase in the waste stream to and methane emissions from our landfills.

Our goal is to roll out an easy to understand and easy to implement program. Adding compostable materials at this time would create confusion and increase complexity. Senate Bill 1383 (2016) requires a 50% reduction in organic waste going to landfills by 2020 and a 75% reduction by 2025. The objective of these reduction targets is to reduce methane emissions from landfills. Including compostable products as an alternative material for food and beverage containers would increase the amount of organic waste generated, making it harder to achieve these reduction targets as some of this waste would likely end up in landfills.

Not all compostable products are the same. Plastic-based compostable products do not break down fast enough for commercial composting and can get confused with other non-compostable plastics that then contaminate the composting operation. Paper-based products are compatible with commercial composting operations. Compostable grade plastic and paper food-ware both go in green-waste containers as compostable products. Recyclable plastic food-ware goes into recycle containers.

The real challenge to recovering these materials is food remnants that contaminate food-ware materials. Wholesale buyers of recycled materials have been requiring a much higher quality product. This in turn means that food residue on recyclable plastic food-ware products must be washed off to be accepted at recycling facilities. Unwashed recyclable plastic food-ware is diverted to the landfill. Therefore, it is ultimately up to consumers to clean their food laden recyclable plastic food-ware if the County is to reach its goal of reducing landfill disposal.

Composting has numerous benefits, including water conservation, improved soil health, and carbon sequestration. Staff recommends the ordinance be amended in the future to include compostable materials, once the County and local cities have compostable material collection programs in place. It will also be important for the County to verify there is adequate composting facility capacity to manage the additional material and obtain confirmation from the operator that the alternative compostable materials that would be required will actually be composted locally.

Another potential option for the proposed ban of polystyrene food and beverage containers, not recommended by staff, is to include a compostable provision that only allows paper-based products. At a minimum, the County should consult with the composting facility operator to confirm the facility would in fact compost the paper-based products that would be required by the ordinance. If the TWI Committee chooses to include compostable products as an alternative material, then staff recommends the ordinance not specify the inclusion of compostable materials, but also not preclude the use of compostable materials. Instead, businesses will be informed of what alternative materials are acceptable by County staff during the implementation phase of the polystyrene ban project. Initially, compostable products will not be listed as an acceptable material. In the board order approving the ordinance, staff would suggest specific prerequisite actions/milestones that would trigger when to include compostable products as an acceptable material. Suggested prerequisite actions/milestones would include determination that introduction of compostables would not negatively impact the County’s compliance with SB 1383 regulations currently being developed by the State, assurance from local operators there is adequate capacity to handle the additional compostable materials, and there is uniform collection service throughout unincorporated communities accepting compostable food-ware materials (with food residue) in green-waste containers.

At the December 4, 2018, Board meeting, the TWI Committee report concluded the following recommendation for compostables:

Compostables. Do not include compostable products at this time.

• Conditional Adoption. If adding compostable products to the ordinance is considered, staff recommends the introduction of compostable products as an acceptable alternative material would occur after certain conditions are met, to be outlined in the board order adopting the ordinance:
  • Compatible with SB 1383 regulations
  • Adequate local compost operator capacity
  • Uniform compostable collection service

Ordinance Related Action Items. At the December 4, 2018, meeting, the Board directed staff to do the following:

• Letter to Cities and Towns. The Board asked staff to draft a letter to the cities and towns advising them of the County’s proposed ordinance and the County’s interest in having requirements throughout the County that are as consistent as possible. On January 10, 2019, two draft letters, one to Cities/Towns with an ordinance and one to Cities/Towns without an ordinance, were sent to each Board member for them to send to the Cities/Towns within their Supervisorial District. The letter indicated that County staff would be contacting the City/Town to discuss how they enforce their ordinance, if they have one, and if they have no ordinance asking if they had plans to adopt one.

• City/Town Report. The Board asked staff to find out if Cities/Towns without an ordinance had plans to adopt one, and for those Cities/Towns that have an ordinance, how they enforce their ordinance. Staff contacted the Cities/Towns that currently do not have a polystyrene ordinance (Antioch, Brentwood, Clayton, Danville, Moraga, Oakley, Orinda, Pleasant Hill, and San Ramon) and asked if they have plans to adopt an ordinance banning Styrofoam food and beverage containers. None of the cities that responded are planning to adopt an ordinance, some due to limited staff resources and some relying instead on a statewide ban. In a couple of cities, staff is supportive of a ban, but the idea has not gained traction. Staff also contacted the Cities/Towns that currently have a polystyrene ordinance (Concord, El Cerrito, Hercules, Lafayette, Martinez, Pinole, Pittsburg, Richmond, San Pablo, and Walnut Creek) and asked how they enforce their ordinance. Enforcement is either through a complaint driven program where citizen complaints trigger an inspection, or an inspection program that systematically inspects businesses for compliance. A few City/Town enforcement programs are complaint driven, but most ordinances are enforced through a formal inspection program, and most businesses readily comply after the first warning. Some enforcement programs are being changed from inspection to complaint driven because the rate of compliance is very high.

• Public Service Announcement. The Board asked staff to prepare a public service announcement explaining why the ban of polystyrene food and beverage containers is needed to protect wildlife and prevent pollution of our waterways. Staff worked with the Office of Communications and Media to develop a public service announcement, which will be shown at the Board of Supervisors meeting.

It should be noted that a specific exemption for raw meat trays was added to the ordinance after the TWI Committee meeting. The intent was always to exempt polystyrene raw meat trays. The Sustainability Commission, in their review, questioned whether the ordinance as written in fact exempted raw meat trays, so the ordinance was modified to include an explicit exemption.

Staff recommends introducing Ordinance 2019-25, waiving reading, and fixing October 8, 2019, for adoption. Staff also recommends that the Board consider any public comments on the ordinance that will be considered for approval at the October 8, 2019, Board meeting.

CONSEQUENCE OF NEGATIVE ACTION:

If Ordinance No. 2019-25 is not introduced, it cannot be considered for adoption by the Board of Supervisors.