CHAPTER 14.
FOOD SERVICE WASTE REDUCTION

Sections:

6-14.01    Definitions

6-14.02    Prohibited Food Service Ware

6-14.03    Required Biodegradable/Compostable or Recyclable Disposable Food Service Ware

6-14.04    Exemptions

6-14.05    Enforcement; Notices of Violation; Penalties

6-14.06    Operative Date

6-14.01 Definitions.

As used in this chapter, certain words and phrases are defined as follows:

(a)    “ASTM standard” means meeting the standards of the American Society for Testing and Materials (ASTM) International Standards D6400 or D6868 for biodegradable and compostable plastics, as those standards may be amended.

(b)    “Compostable” means all materials in the product or package are capable of undergoing biological decomposition or otherwise becoming part of a usable compost (e.g., soil- conditioning material or mulch) in a safe and timely manner in an appropriate composting program or facility. Compostable disposable food service ware includes ASTM standard bioplastics or plastic-like products that are clearly labeled, such that any compost collector and processor can easily distinguish the ASTM standard compostable plastic from non-ASTM standard compostable plastic. For the purposes of this chapter, the term “biodegradable” shall have the same meaning as compostable. This chapter uses the terms biodegradable and compostable interchangeably, and in all cases whether the terms are used separately, in the disjunctive, or in the conjunctive, they shall always be interpreted and applied consistent with this definition of the term “compostable.”

(c)    “City” means the City of Emeryville.

(d)    “City facilities” means any building, structure or vehicles owned or operated by the City of Emeryville.

(e)    “Disposable food service ware” means all containers, bowls, plates, trays, cartons, cups, lids, straws, forks, spoons, knives and other items that are designed for one-time use; and on or in which any restaurant or retail food vendor directly places or packages prepared foods for consumption. This includes, but is not limited to, service ware for takeout foods and/or leftovers from partially consumed meals prepared at restaurants or retail food vendors.

(f)    “Food vendor” means any restaurant or retail food vendor located or operating within the City of Emeryville.

(g)    “Polystyrene foam” means and includes blown polystyrene and expanded and extruded foams (sometimes called Styrofoam®, a Dow Chemical Co. trademarked form of polystyrene foam insulation) which are thermoplastic petrochemical materials utilizing a styrene monomer and processed by any number of techniques including, but not limited to, fusion of polymer spheres (expandable bead polystyrene), injection molding, foam molding, and extrusion-blow molding (extruded foam polystyrene). Polystyrene foam is generally used to make cups, bowls, plates, trays, clamshell containers, meat trays and egg cartons.

(h)    “Prepared food” means food or beverages which are served, packaged, cooked, chopped, sliced, mixed, brewed, frozen, squeezed or otherwise prepared on the food vendor’s premises or within the City of Emeryville. For the purposes of this chapter, prepared food includes food which may be eaten on or off the premises, including takeout food. Prepared food does not include raw, butchered meats, fish, and/or poultry sold from a butcher case or similar retail appliance.

(i)    “Recyclable” means material that can be sorted, cleansed, and reconstituted using recycling services offered in the City for the purpose of using the altered form in the manufacture of a new product. Recycling does not include burning, incinerating, converting, or otherwise thermally destroying solid waste.

(j)    “Restaurant” means any establishment located within the City of Emeryville that sells prepared food for consumption on, near, or off its premises. For purposes of this chapter, the term includes a restaurant operating from a temporary facility, cart, vehicle, or mobile unit.

(k)    “Retail food vendor” means any store, shop, sales outlet, or other establishment, including a grocery store or a delicatessen, other than a restaurant, located within the City of Emeryville that sells prepared foods.

(Sec. 2 (part), Ord. 07-004, eff. May 3, 2007)

6-14.02 Prohibited Food Service Ware.

(a)    Food vendors are prohibited from providing prepared food in disposable food service ware that contains polystyrene foam or non-ASTM standard compostable plastic.

(b)    All City facilities are prohibited from using polystyrene foam or non-ASTM standard compostable plastic disposable food service ware. City departments are prohibited from purchasing or acquiring polystyrene foam or non-ASTM standard compostable plastic disposable food service ware for use at City facilities.

(c)    The use or distribution of polystyrene foam or non-ASTM standard compostable plastic disposable food service ware at special events sponsored or co-sponsored by the City shall be prohibited. This prohibition shall apply to the event organizers, agents of the event organizers, event food vendors and any other party, including nonprofit organizations, who enter into an agreement with one or more of the co-sponsors of the event to distribute prepared food at the event or otherwise provide an event-related service.

(d)    All food vendors doing business with the City shall be prohibited from using polystyrene foam or non-ASTM standard compostable plastic disposable food service ware on City facilities, City projects, or City events.

(Sec. 2 (part), Ord. 07-004, eff. May 3, 2007)

6-14.03 Required Biodegradable/Compostable or Recyclable Disposable Food Service Ware.

(a)    All food vendors using any disposable food service ware shall use biodegradable/compostable or recyclable disposable food service ware unless it can be shown that a biodegradable/compostable or recyclable product is not available for a specific application. Food vendors are strongly encouraged to use reusable food service ware in place of using disposable food service ware.

(b)    All City facilities using any disposable food service ware shall use biodegradable/compostable or recyclable disposable food service ware.

(c)    All food vendors doing business with the City and who use any disposable food service ware shall use biodegradable/compostable or recyclable disposable food service ware unless the food vendor can show a biodegradable/compostable or recyclable product is not available for a specific application.

(Sec. 2 (part), Ord. 07-004, eff. May 3, 2007)

6-14.04 Exemptions.

(a)    Prepared foods prepared or packaged outside the City are exempt from the provisions of this chapter. Purveyors of food prepared or packaged outside the City are encouraged to follow the provisions of this chapter.

(b)    Food vendors will be exempted from the provisions of this chapter for specific items or types of disposable food service ware if the City Manager or his/her designee finds that a suitable biodegradable/compostable or recyclable alternative does not exist.

(c)    Polystyrene foam coolers and ice chests that are intended for reuse are exempt from the provisions of this chapter.

(d)    Any person may seek an exemption from the requirements of this chapter by filing a request on a form specified by the City Manager. The City Manager, consistent with this chapter, may waive any specific requirement of this chapter for a period of not more than one year if the person seeking the exemption has demonstrated that strict application of the specific requirement would cause undue hardship. A person granted an exemption must re-apply prior to the end of the one (1) year exemption period and demonstrate continued undue hardship if the person wishes to have the exemption extended. The City Manager’s decision to grant or deny an exemption or to grant or deny extension of a previously issued exemption shall be in writing and shall be final. “Undue hardship” shall be construed to include, but not be limited to:

(1)    Situations where there are no acceptable alternatives to polystyrene foam packaging for reasons which are unique to the applicant;

(2)    Situations where compliance with the requirements of this chapter would deprive a person of a legally protected right.

(Sec. 2 (part), Ord. 07-004, eff. May 3, 2007)

6-14.05 Enforcement; Notices of Violation; Penalties.

(a)    The City Manager or his/her designee will have primary responsibility for enforcement of this chapter. The City Manager or his/her designee is authorized to promulgate regulations and to take any and all other actions reasonable and necessary to enforce this chapter, including, but not limited to: maintaining lists of biodegradable/compostable or recyclable food service ware and suppliers; maintaining lists of generally exempted food service ware items and products; and inspecting the premises of any food vendor to verify compliance.

(b)    If the City Manager or his/her designee determines that a person is in violation of this chapter, he/she shall issue a written notice warning of the violation. If, after issuance of such notice, the City Manager finds continued violations of the provisions of this chapter, the City Manager may apply for or impose the various sanctions provided in this section.

(c)    Anyone violating or failing to comply with any of the requirements of this chapter will be guilty of an infraction pursuant to Section 1-2.01(f).

(d)    The City Manager may issue an administrative civil liability citation anyone violating or failing to comply with any of the requirements of this chapter, in an amount not exceeding one hundred dollars ($100.00) for the first violation, two hundred dollars ($200.00) for the second violation in the same year, and four hundred dollars ($400.00) for each subsequent violation in the same year. In determining administrative civil penalties, the City Manager shall consider the extent of harm caused by the violation, the nature and persistence of the violation, the length of time over which the violation occurs, the frequency of past violations, and any action taken to mitigate the violation.

(e)    Any person to whom the City Manger issues a notice of violation or an administrative civil liability citation may request an administrative hearing to appeal such warning or determination of liability by filing a written request with the City Manager or his/her designee. The City Manager, or his/her designee, will promulgate standards and procedures for requesting and conducting an administrative hearing under this chapter before a hearing officer. Any determination from the administrative hearing officer shall be final.

(f)    The City Attorney may seek legal, injunctive, or other equitable relief to enforce this chapter.

(g)    The remedies and penalties provided in this section are cumulative and not exclusive of one another.

(Sec. 2 (part), Ord. 07-004, eff. May 3, 2007)

6-14.06 Operative Date.

This chapter shall become operative on January 1, 2008.

(Sec. 2 (part), Ord. 07-004, eff. May 3, 2007)