1 STAFF REPORT
DATE: January 30, 2024
TO: Justin Hess, City Manager
FROM: Ken Berkman, Public Works Director
Via: John Molinar, Assistant Public Works Director , Streets & Waste Management
By: Amber Duran, Recycling Coordinator
SUBJECT: Introduction of an Ordinance A dding Article 4 to Chapter 2 of Title 4 to the Burbank Municipal Code, Regarding Waste Reduction Regulations
RECOMMENDATION
1. Introduce AN ORDINANCE OF THE COUNCIL OF THE CITY OF BURBANK ADDING ARTICLE 4 ( WASTE REDUCTION REGULATIONS) TO CHAPTER 2 (SOLID WASTE, WEEDS AND LITTER) OF TITLE 4 (HEALTH AND SANITATION)
OF THE BURBANK MUNICIPAL CODE RELATING TO WASTE REDUCTION (Attachment 1).
2. Find that the adoption of the ordinance is exempt from California Environmental Quality Act (CEQA) under 14 California Code of Regulations ( CCR) sections 15060(c)(2), 15061(b)(3), and 15308.
BACKGROUND
Polystyrene (commonly known as Styrofoam) products and s ingle-use foodware , including disposable utensils, straws, and takeout containers, pose significant environmental challenges. They contribute to pollution, require resources for production, and often end up in landfills. State Assembly Bill (AB) 1276 encourages the reduction of some single-use plastics by advocating for foodware accessories (e.g., straws, utensils, lids) to be provided only upon request; however, this bill does not address foodware used to contain food and beverages.
Polystyrene products and s ingle-use foodware items includ e coolers, packing peanuts, meat and produce trays , egg cartons , cups and cup lids, bowls, plates, containers, utensils, straws, napkins, and drink stirrers and plugs . These items contribute to street litter, ocean pollution, and lead to wildlife harm. The production and disposal of these foodware items creates significant environmental impacts, including contamination of the PUBLIC
WORKS
2 environment, depletion of natural resources, greenhouse gas emissions, increased clean- up, and end of life management costs. The City of Burbank (City) has a substantial interest in protecting its residents and the environment from the negative impacts of single-use foodware items.
AB 1276 went into effect in 2022 and prohibits food facilities and third-party food delivery platforms from providing any single-use foodware accessories or standard condiments to a customer unless requested. It also prohibits foodware accessories and condiments from being bundled or packaged in a way that prohibits the consumer from taking only the item desired. “Foodware accessories” include forks, knives, spoons, sporks, chopsticks, condiment cups and packets, straws, stirrers, splash sticks, and cocktail sticks. “Standard condiments” include relishes, spices, sauces, confections, or seasonings.
In March 2023, staff introduced a draft plastics ordinance to City Council (Council) and was given direction to return to the community to obtain more public input, from the restaurant industry in particular, as well as City business partnerships and the Sustainable Burbank Commission (SBC) and bring forward a revised ordinance by Fall of 2023.
Council further directed staff to obtain verification in writing from the Los Angeles County Department of Public Health (LACDPH) confirming that customers are allowed to bring their own reusable foodware to food facilities, as well as to ban the purchase of plastic water bottles for City operations and events in the revised ordinance.
Staff initially commenced the Council -requested enhanced stakeholder engagement by increasing the number of members in the SBC’s single-use plastics subcommittee (SBC subcommittee) from two to four at the April 17, 2023 SBC meeting. This created a more diverse subcommitt ee to provide input and assist with the outreach and ordinance development efforts. Subsequently, City staff, consultants, and the SBC subcommittee met with, presented elements of the proposed ordinance , and gathered feedback from the following stakeholder s through a series of special and regularly held in- person meetings in May and June of 2023:
• LA County Department of Public Health
• LA County Public Works
• Burbank Chamber of Commerce
• Downtown Property Based Improvement District (PBID)
• Magnolia Park District businesses
• Burbank Hospitality Association
• Burbank Downtown Center businesses
• Covid-19 Restaurant Task Force
• Burbank Food Service Businesses (450 Business Licenses with contact information)
To increase public participation, information on the public stakeholder meetings was available on the City's website, including the City Calendar and a landing page with a QR code.
3 Staff also implemented a campaign to solicit feedback from stakeholders in collaboration with the SBC subcommittee. Over the course of the 6- month period from February 2023 to July 2023, surveys were completed by 628 business owners and managers and 730 Burbank customers. The findings from the survey are available in Attachment 3.
In May, the City mailed letters to 538 food service businesses inviting their input on the policy. The letters directed the businesses to the City’s Single-use Plastics website page to learn about the current efforts and goals of the ordinance and to help them complete a survey. In addition, staff’s consultant team went door -to-door informing food service businesses of the outreach effor ts and upcoming stakeholder events. They also offered to assist the business managers or owners in completing the survey in English or Spanish.
In May and June, staff presented to the Downtown PBID, Burbank Hospitality Association, and Chamber of Commerce Board. At the advice of the SBC subcommittee, stakeholder engagement meetings were held at the Recycle Center coupled with a tour of the Material Recovery Facility. Staff was unable to set up a similar meeting with a Magnolia Park group despite considerable effort . However, input was provided by some of the food service businesses via the surveys and several Magnolia Park restaurant owners did attend other stakeholder meetings.
Members of the Chamber of Commerce hosted an event for all Burbank restaurant owners (regardless of Chamber of Commerce membership) on July 21, 2023, where staff presented elements of the proposed ordinance, solicited feedback , and conducted a question and answer ( Q&A) session during and after the meeting. This outreach event was the most well attended of the series with an estimated 30 attendees. There was also a final public meeting on September 28, 2023 hosted by the Burbank Chamber of Commerce, allowing a final chance for the public to comment on the draft ordinance prior to presentation to Council.
During the outreach meetings, stakeholders were briefed on the purpose and components of the original ordinance presented to Council in March 2023, which included:
• Ban on expanded and rigid polystyrene
• Reusables required for dine-in
• Disposable foodware standards - compostables and recyclables • A mandated $0.25 disposable cup fee
• The State policy of AB 1276 or “Upon Request”
The Recycling Coordinator also had many one-on-one discussions with stakeholders, including members of the SBC subcommittee and Burbank business community. As staff and consultants gathered the input , they considered ways to integrate it into the ordinance. The team proactively updated the presentation slides and messaging to show stakeholders how their feedback was being used to craft the revised ordinance.
A presentation of the proposed revised ordinance was provided to the SBC Subcommittee in early October 2023 and t he SBC reviewed the revised ordinance at their meeting on 4 October 16, 2023. The SBC did not support it as proposed, and the Chair sent an email to Council outlining their position in November 2023.
DISCUSSION
As a result of the feedback received during the outreach campaign, staff has made the following changes to the originally proposed ordinance:
1. Dining on Premises - Reusable dishes required for dine-in o Original – All Restaurants
o Proposed – Restaurants with 31 or more seats in the first phase; restaurants with 30 or fewer seats in the future
This revision allows City staff to use LACDPH’s Restaurant and Market Facility Inventory List (Attachment 2) to identify restaurants and categorize by the number of seats, with the smallest range being 0 to 30. Focusing on larger restaurants that will most likely have to comply with this ordinance due to their physical size and operations will provide the most benefit to the City, rather than spending time evaluating anticipated waivers for smaller establishments.
Requiring all businesses to comply without recognizing the differences in size, profit margins, financial capabilities, staffing levels and composition is potentially harmful to small Burbank businesses and challenging for Burbank Recycle Center (BRC) staff. The potential impact of small businesses relocating outside the City due to the financial burdens of the ordinance was a part of the feedback staff received to consider this modification and recommended direction.
2. Single-use Foodware Standards
o Original - Ban all single- use plastic foodware and require PFAS free compostable foodware
o Proposed - Ban single- use non- recyclable plastic foodware and require recyclable and/or compostable PFAS free foodware.
The world of waste management is ever-evolving and challenging; for example, it is feasible for previously non- recyclable foodware to quickly be replaced by a recyclable product. Since the ordinance was first proposed in March, the BRC has begun accepting plastic No. 1 (PET) foodware due to market demand brought on by recycled content requirements. The proposed change is recommended by staff because there are some foodware items that have no feasible compostable alternatives.
3. City Facility and City-Affiliated Events Requirements – single-use water bottles o Original – May not be used at City events and facilities o Proposed – Shall not be used at City events and facilities
The change from “may” to “shall” was requested by Council with the support of the SBC at the March 2023 Council meeting. The SBC would prefer a complete ban on the sale and distribution of single-use water bottles for all restaurants and retail establishments in the City . The City of Los Angeles (LA) is conducting a comprehensive Environmental Impact Report (EIR) in preparation of proposing a 5 single-use foodware ordinance; therefore, to avoid liability from unintended consequences, staff recommends this proposed approach until LA’s EIR is completed.
4. Incentivize customers to use reusable cups by charging a fee for disposables o Original – Mandatory charge of $0.25 per single-use cup o Proposed – Removed the fee requirement
City staff contacted LACDPH and determined that customers bringing reusables to restaurants was allowable, per the health code guidelines provided under Senate Bill (SB) 619. Feedback from stakeholders included concern that SB 619 allowed for criminal penalties if the restaurant even accidentally deviated from the rules making it too much of a liability for them to take on. The potential health and safety risks to customers who may not have brought their own cup was considered as well, in that some members of the public could potenti ally be financially prohibited from getting water.
5. Separate waste receptacle requirements
o Original - Covered food facilities must provide three separate waste receptacles for customers.
o Proposed - Removed this requirement as it is covered by SB 1383.
6. City staff with discretionary powers
o Original - Recycling Coordinator
o Proposed - Replaced with Public Works Director or their designee
Ordinance Implementation Timeline
Below is an outline of the compliance timeline for the requirements of the ordinance should it be approved by Council:
• One month from effective date: Comply with AB 1276 - single-use foodware accessories must only be provided upon request.
• Six months from the effective date: The City will not distribute or use City funds to purchase any water packaged in single- use plastic or single-use foodware that is not compostable or recyclable at City-affiliated events. • Six months from effective date: Regulated polystyrene products are banned. • One year from effective date : Ready-to-eat food served for consumption by a customer on the premises of food facilities with 31 or more seats shall only be distributed using reusable foodware.
• One year from effective date : No food facility may distribute to customers single- use foodware that is not compostable or recyclable.
• Three years from effective date: Ready-to-eat food served for consumption by a customer on the premises of food facilities with 30 or fewer seats shall only be distributed in reusable foodware.
Ordinance Education
The BRC will continue to provide education and facilitate extensive one-on-one meetings 6 with stakeholders, local businesses, and residents to build the behavior change this ordinance aims to create. Consultants managed by BRC staff will conduct in-person site visits to businesses to provide technical assistance and guidance. The BRC will also maintain an educational page on the City’s website designated for plastics reduction with a list of approved foodware and foodware accessories.
The proposed ordinance provides a waiver process as the requirements of this ordinance may not be practical in every situation. Exemptions will be issued to businesses that can prove undue hardship at the discretion of Public Work Director . Examples of undue hardship include, but are not limited to, inordinate financial burden or space constraints to install a mechanical dishwasher.
Ordinance Enforcement
Enforcement of the ordinance is phased to allow our businesses the time to successfully transition to new practices and al ternative products. The first form of enforcement will include a written notice of non- compliance and give businesses 60 days t o correct the issue prior to issuance of any administrative citations. The emphasis for BRC staff will be to educate and only use enforcement as a last resort. If administrative citations are necessary, the first offense is $100, the second $200, and the third and subsequent offenses are $500.
Sustainable Burbank Commission’s Final Position
The revised ordinance was provided to the SBC and agendized for the January 8, 2024, meeting. At the meeting, the SBC chose to neither recommend their support or opposition to the proposed ordinance, but rather to have the Chair speak to the Council about two specific issues they have with the proposed ordinance. These two items are discussed below, along with staff’s reasoning as to why that may or may not be feasible at this time.
1. “This draft ordinance does not ban all single-use plastics”
Although fiber-based compostables are the preferred option, s taff chose to allow some recyclable plastics. It is important to recognize that fiber -based foodware products may not work for every type of food. Hot soups (e.g., pho, ramen, curries) can potentially burn customers if the fiber-based product prematurely breaks down.
Enchiladas, lasagnas, and other hot entrees also do not work as well in fiber-based clamshells where lids do not stay on as tight. It is also important to note that fiber- based products typically have higher costs, which could result in financial challenges to the business that could be passed on to customers. Until the private foodware market catches up, these products will continue to be cost prohibitive.
The determination to not ban all single- use plastics was based on feedback from the business community as well as research into viable alternatives. Replacing one single-use item for another may not be the best choice in this case. From a global perspective, using fiber-based foodware may have the unintended consequences of removing habitat for animals such as the Giant Panda, as a great deal of the bamboo used for such items comes from China. As previously mentioned, LA is performing a full EIR ahead of their implementation of a plastics ordinance and the 7 results of that EIR will help staff determine if the City’s ordinance should and/or can be modified.
2. “Exemptions should only be for undue hardship and not include financial and spatial concerns”
The ordinance's waiver process covers undue hardship only for businesses challenged by space and financial issues. This is a fair and balanced approach and is common throughout local ordinances statewide.
COMMUNITY OUTREACH
A summary of the significant community outreach activities is provided in Attachment 4.
ENVIRONMENTAL REVIEW
Staff recommends that the Council find that adoption of this ordinance adding Article 4 to Chapter 2 of Title 4 to the Burbank Municipal Code, regarding waste reduction Regulations is not subject to CEQA pursuant the State CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, Sections: 15060(c)(2), because the proposed ordinance will not result in a direct or reasonably foreseeable indirect physical change in the environment; 15061(b)(3), because the proposed ordinance is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant negative effect on the environment; and 15308, because the proposed ordinance involves regulatory actions to assure protection of the environment. This ordinance adopts municipal code provisions, and after, involves activities that serve to further protect the environment by reducing plastic waste. As such, the adoption of this ordinance is exempt from CEQA and no further environmental review is necessary. A section has been added to the proposed ordinance should the Council make this finding as recommended by staff.
FISCAL IMPACT
There is no fiscal impact to the City’s General Fund by adopting the proposed ordinance.
There will be additional costs to the City for consultant services and materials needed to educate and enforce the ordinance, which will be provided for via the Refuse Enterprise Fund.
CONCLUSION
The proposed ordinance will provide the means for the City to further increase waste diversion from the City’s landfill, reduce impacts to the environment , and continue successful implementation of the City’s 2008 Sustainability Action Plan and Zero Waste Strategic Plan.
Staff respectfully recommends that Council introduce the proposed ordinance and find the ordinance exempt from CEQA.
ATTACHMENTS
Attachment 1 – Proposed Ordinance
Attachment 2 – LACDPH Restaurant and Market Facility Inventory Attachment 3 – Survey Results
Attachment 4 – Outreach Activities Log