Consideration of an Ordinance Establishing Regulation of Single Use Carryout Bags

Transcription

1 STAFF REPORT City Council of the City of Sausalito AGENDA TITLE: Consideration of an Ordinance Establishing Regulation of Single Use Carryout Bags RECOMMENDATION: 1. Staff presentation and Council questions 2. Public comment 3. Adopt the Resolution Certifying the Final Environmental Impact Report 4. Adopt the Resolution Adopting the CEQA Findings of Fact 5. Introduce and read by title only an Ordinance of the City Council of the City of Sausalito Establishing Section of Chapter 11 of the Sausalito Municipal Code Regulating the Use of Single Use Carryout Bags SUMMARY The negative effects on the environment with regard to single use plastic bags are well documented, and include hazards to marine life and other wildlife that get entangled in, or ingest plastic bags in the environment. Due to the lightweight nature of plastic bags, and the fact that they are not biodegradable, they are easily released to the environment where they persist for many years. Other negative effects include clogging of storm drains and the adverse visual impacts associated with litter. The negative effects of paper bags include increased greenhouse gas emissions and other pollution resulting from the production and transportation of the bags -- these are worst for single-use bags. Marin County estimates that retailers in the City of Sausalito provide customers with nearly 3.8 million single use carryout plastic bags annually1. In 2006, the State of California passed AB 2449, which limited local government regulation of plastic bags. It required large grocery stores to have plastic bag recycling receptacles, but precluded cities from requiring a fee for distribution of plastic bags. Although CalRecycle has not been able to gather accurate data, it is estimated that less than 5% of plastic bags are currently being recycled. For the past several years, various bills that would have banned grocery stores, convenience stores and pharmacies from providing plastic bags have been introduced in the State legislature, but none have been adopted. However, sustained interest is expected to result in a compromise bill to be introduced in the legislature later this year. 1 Marin County Hazardous and Solid Waste Management JPA Single Use Carryout Bag Reduction Ordinance for Marin County Cities and Towns, Appendix C, "Existing and Proposed Bag Use" Page 1 of 8

2 Since the adoption of AB 2449, more than 90 California cities and counties have enacted some form of restrictions on the provision of single-use carryout bags (see Attachment 5 for examples). Since state legislation precluded local government from placing a fee on plastic bags, most ordinances have banned the distribution of plastic carryout bags and required that stores charge a minimum fee for recycled content paper bags to shift consumers from plastic bags to either recycled paper or reusable bags. In Marin County, Fairfax, Mill Valley and the unincorporated County have existing bans on distribution of plastic carryout bags. The County and Mill Valley ordinances establish a minimum fee of 5 cents ($0.05) for recycled content paper bags to give retailers the ability to offer a reasonably priced alternative bag. In 2010, the City of San Rafael applied for and received a grant from the Marin County Hazardous and Solid Waste Management Joint Powers Authority ("JPA") to fund development of a single use plastic bag ordinance and facilitate a process involving six Marin jurisdictions. From February to May 2011 a Single Use Plastics Advisory Committee ("SUPAC") process was convened to investigate options for enacting an ordinance in San Rafael that could be utilized by other jurisdictions as well. SUPAC included the cities of Novato, Mill Valley, San Anselmo, Tiburon and Sausalito, the County of Marin, local businesses, residents, the California Grocers and Restaurants associations and community members. Based on its findings, SUPAC recommended that the cities adopt an ordinance to reduce single use carryout bags similar to one that had been adopted by the County of Marin in January The City of Sausalito Sustainability Commission recommended establishment of a single use take out bag ordinance to the City Council in 2012 and The County of Marin passed a single use bag ban in January 2011 and was sued that February by the Save the Plastic Bag Coalition ("SPBC") on the basis that it failed to comply with CEQA requirements by not preparing a full EIR at the time it adopted its ordinance. In September 2011 the California Superior Court disagreed and upheld the County's ordinance. The SPBC then appealed the decision. In June 2013 the original ruling was affirmed in the Court of Appeal, thereby upholding Marin's ordinance. The SPBC filed a petition to review the decision in the state Supreme Court. But in October 2013 the state Supreme Court denied the petition putting the matter to rest. During this time the City of San Rafael asked the JPA to develop a "model ordinance" and administer the California Environmental Quality Act ("CEQA") environmental review process of assessing the model ordinance which all participating Marin jurisdictions could utilize in order to accelerate the adoption of a single use bag ordinance. The decision to request assistance from the JPA to purse a model alone with or without environmental review had significant staff time and financial cost implications. Additionally: The JPA's main goal is to promote Zero Waste and provide technical expertise and financial support to do so, Other waste collectives in California were starting to do similar work that had been successful and cost effective, Page 2 of 8

3 Preparing a unified environmental review such as this allowed the jurisdictions to address the "cumulative effect" argument brought about by the SPBC when multiple jurisdictions in a small geographic area implement a similar ordinance, A full environmental review provided the study necessary to apply the ordinance to all retailers within a year; including restaurants should the Council desire to do so. The JPA Board approved of and began an environmental impact report (EIR) process in spring 2013, and released a draft EIR in November for public comment. During its December 2013 meeting the Sausalito Sustainability Commission stated that it unanimously supports a ban on single use plastic bags. On January 16, 2014, the JPA Board certified the EIR, paving the way to bring forward an ordinance. On May 7, 2013 the Marin County Grand Jury issued its report "Holding the Bag" which encouraged, "The Marin Hazardous and Solid Waste Joint Powers Authority (JPA) prepare the Model Single-Use Bag Ordinance to implement the strictest rules possible and encourage all agencies to adopt the Ordinance with minimal changes. A ban on single-use plastic carry-out bags should be imposed in all grocery stores, convenience stores, pharmacies and restaurants within the County and apply to all establishments, no matter how large or small." A copy of the full report can be found at: BagREPORT.pdf ANALYSIS Environmental Review - Draft Environmental Impact Report. The adoption of a proposed ordinance regulating single use carryout bags is a discretionary action, which is subject to the environmental review requirements of the California Environmental Quality Act (CEQA; Public Resources Code, Section 2100, et seq.). As discussed above the JPA, representing a number of participating Marin jurisdictions was assigned the role of administering the environmental review process for assessing a "model ordinance". In June 2013, the JPA determined that an EIR should be prepared and preceded with the publication of a Notice of Preparation ("NOP"). An environmental consultant, Rincon Consultants, Inc. was hired to prepare the EIR. On November 1, 2013, the Single Use Carryout Bag Reduction Ordinance Draft Environmental Impact Report ("Draft EIR") was completed and published. Consistent with CEQA Guidelines, the JPA observed a 45-day review period for public comment. The Draft EIR concluded that: a) for each environmental issue area studied, impacts would either be less-than-significant or beneficial; and b) the "model ordinance" would not result in any significant, unavoidable impacts that require mitigation. Further, consistent with CEQA guidelines, the Draft EIR included an assessment of seven alternatives to the project which are variations to the model ordinance. Page 3 of 8

4 Final EIR. A Final EIR was prepared and published in January The Final EIR consists of the Draft EIR text and appendices with edits and changes made in response to the comments received on the Draft EIR. All Draft EIR comments and responses have been incorporated into Section 8.0 of the Final EIR. On January 16, 2014, the JPA certified the Final EIR (Resolution ). Please see Attachment 4. The City of Sausalito is a 'Co-Lead Agency" and therefore the Council is required to take action to certify the Final EIR prior to adoption of a single use carryout bag reduction ordinance for Sausalito. When approving a project for which an EIR has been prepared and certified the CEQA Guidelines require the lead agency to adopt "Findings of Fact" to support the action (in this case the adoption of the ordinance). A draft resolution has been prepared (Attachment No. 2) which sets forth the requisite findings. Staff recommends that the City Council adopt this resolution prior to taking action on the proposed ordinance. Following adoption of the ordinance, the City will need to file a Notice of Determination (NOD) per CEQA Guidelines (Section 15094). Model Ordinance The EIR analyzes the "model ordinance", along with seven "reasonable" alternatives. The proposed model ordinance would ban the distribution of plastic carryout bags by certain retailers and require that retailers who choose to make paper bags available to customers as an alternative charge at least five cents ($0.05) for each recyclable paper carryout bag provided. The ordinance would exempt plastic or paper product bags (bags without handles used for produce, meat or bulk food items) or bags for prescription drugs as allowed by state law. The minimum paper bag charge would not be applicable to customers who participate in the state's Supplemental Food Program. The charges accumulated by the sale of recycled paper carryout bags would be retained by the merchant to offset the increased costs of paper vs. plastic bags. The proposed model ordinance would only be applicable to three types of retailers: 1. Supermarkets with more than $2,000,000 in annual sales, 2. Pharmacies of more than 10,000 square feet in size, and 3. Convenience or liquor stores that include the sale of milk, bread, soda and snack foods. The proposed ordinance would also require that affected stores: Offer reusable bags for sale, Provide clear signage for the charges for paper and reusable bags, Place the charge for each recyclable paper or reusable bag on the customer receipt, and Encourage patrons to use reusable bags through signage and verbal communications. The EIR assumes that as a result of the model ordinance, approximately 95% of the single use plastic carryout bags currently used in the Study Area, including Sausalito, would be replaced by recyclable paper carryout bags (approximately 65%) and reusable carryout bags (approximately Page 4 of 8

5 30%). It is assumed that 5% of the existing single use plastic carryout bags used in the study area would remain in use. Alternative Ordinances The Final EIR also examined seven alternatives to the model ordinance to give member agencies a broader range of options in terms of preferred regulations: Alternative 1: Alternative 2: Alternative 3: Alternative 4: Alternative 5: Alternative 6: Alternative 7: No Project (i.e., no new regulations are adopted). Expand the range of retailers subject to the ordinance to include all retail establishments except restaurants, Expand the range of retailers subject to the ordinance to include all retail establishments including restaurants. Increase the minimum charge for recycled paper carryout bags to 10 cents, applicable only to supermarkets, pharmacies and convenience/liquor stores. Increase the minimum charge for recycled paper carryout bags to 25 cents applicable only to supermarkets, pharmacies and convenience/liquor stores. Expand the plastic bag ban to include product bags (bags without handles used for produce, meat or bulk food items) with a minimum fee of 5 cents for recycled paper carryout bags, Increase the minimum charge for recycled paper carryout bags to 25 cents applicable to all retailers. The EIR found that Alternative 5 (mandatory charge of at least $0.25 for a paper bag) to be the environmentally superior alternative as it resulted in the greatest shift from single use carryout bags (both plastic and recycled paper) to reusable bags. Proposed Ordinance for Sausalito Staff recommends that the Council consider adoption of Alternative 4, which would create an ordinance applicable only to supermarkets, pharmacies and convenience/liquor stores that sell milk, bread, soda and snack foods, with a minimum charge of 10 cents ($0.10) for a recycled paper carryout bag (Attachment 3). In addition, to give retailers an opportunity to utilize their stock of plastic carryout bags, it is recommended that the ordinance become effective six months from the date of adoption of the ordinance. There is consensus for consistent regulations among Marin's jurisdictions to reduce confusion among customers and retailers who have stores in multiple cities/towns. City of San Rafael adopted Alternative 4, including application to community events such as farmers markets, at their meeting of February 18, The City of Novato will have a hearing on February 25, 2014 where staff will recommend implementation of Alternative 4. Staff from the City of Mill Page 5 of 8

6 Valley and Marin County indicated that they would consider updating their ordinances to become consistent with regulations adopted by the majority of Marin agencies. The model ordinance predicts that for Sausalito approximately 95% of the single use plastic carryout bags currently used (approximately 3.8 million bags per year) would be replaced by recyclable paper carryout bags (approximately 65%, or 2.5 million recyclable paper bags would replace an equal number of plastic bags each year) and reusable carryout bags (approximately 30%, or 22 thousand reusable bags would replace approximately 1.1 million plastic bags each year). It also assumes that 5% of the existing single use plastic carryout bags being used (approximately 190 thousand plastic bags) would remain in use, as the model ordinance does not apply to some retailers who distribute single use plastic bags (restaurants and other nongrocery related retailers such as clothing or hardware stores. In Sausalito this works out to a total reduction of single use bags (plastic and recyclable) of approximately 1.1 million bags each year. Alternative 4, based on a mandatory charge of $0.10 for recyclable paper carryout bags, assumes that 30% of the replaced plastic bags would be replaced with paper bags (1.1 million plastic bags would be replaced by an equal number of paper bags each year) and that 65% of the replaced plastic bags would be replaced with reusable bags (2.4 million plastic bags replaced by 47 thousand reusable bags). This alternative also assumes that 5% of the existing single use plastic carryout bags would remain in use. In Sausalito this works out to a total reduction of single use bags (plastic and recyclable) of approximately 2.4 million bags each year. The objective of the single use carryout bag ordinance is to eliminate the use of plastic bags, and also to shift consumers from plastic bags to reusable bags which have far fewer environmental impacts than either plastic or paper bags. As discussed above the EIR demonstrates that the minimum fee set for recycled paper bags has a major effect on consumer behavior. Ordinance Implementation and Enforcement Initial outreach to affected stores would be from City staff and or the City of Sausalito's Sustainability Commission. Enforcement is not anticipated to be a significant issue in light of the considerable awareness of the issue in our community and the greater Bay Area. Following the effective date of the ordinance City staff and or volunteers will visit the affected stores to verify compliance. The ordinance contains a graduated level of fines for non-compliance. The County of Marin did extensive outreach to the 32 businesses covered under their ordinance, and reported that all are in compliance with minimal enforcement. Fiscal Impact Implementation of the proposed ordinance may result in some amount of staff time by the Code Enforcement Division for business outreach and enforcement, although high levels of voluntary compliance have been found in other Marin jurisdictions with similar regulations. Page 6 of 8

7 ALTERNATIVES The City Council has the following options to consider on this matter: 1. Adopt the ordinance as proposed, 2. Continue action for additional information and response to Council comments and concerns, 3. Direct staff to revise the ordnance, including consideration of other alternatives evaluated in the EIR (e.g. application to all retailers, a minimum charge of either $0.05 or $0.25 for a recycled paper carryout bag), 4. Choose to not adopt regulations on single use carryout bags. RECOMMENDED ACTION 1. Staff presentation and Council questions 2. Public comment 3. Adopt the Resolution Certifying the Final Environmental Impact Report, 4. Adopt the Resolution Adopting the CEQ.A Findings of Fact, 5. Introduce and read by title only an Ordinance of the City Council of Sausalito Establishing Section of Chapter 11 of the Sausalito Municipal Code Regulating the Use of Single Use Carryout Bags. ATTACHMENTS 1. Resolution Certifying the Final Environmental Impact Report, 2. Resolution Adopting CEQA Findings of Fact, 3. Proposed Ordinance. 4. Final EIR. 5. Examples of California Jurisdictions with Plastic Bag Ordinances Page 7 of 8

8 PREPARED BY: REVIEWED BY: Andrew Davidson Senior Engineer Director of Public Works, City Engineer and ADA Coordinator REVIEWED BY: REVIEWED BY: ^ Charles Frlners Administrative Services Director/Treasurer CX c. 1 -Jcx. c Mary Annfe Wagner, Esq. City Attorney SUBMITTED BY: Adam W. Politzer City Manager Page 8 of 8