BILL ANALYSIS Ó SB 568 SENATE COMMITTEE ON ENVIRONMENTAL QUALITY Senator S. Joseph Simitian, Chairman 2011-2012 Regular Session BILL NO: SB 568 AUTHOR: Lowenthal AMENDED: As Introduced FISCAL: No HEARING DATE: April 4, 2011 URGENCY: No CONSULTANT: Caroll Mortensen SUBJECT : POLYSTYRENE FOOD CONTAINERS SUMMARY : Existing law : 1) Under the federal Marine Plastic Pollution Research and Control Act of 1987, prohibits the at-sea disposal of plastic and other solid materials for all navigable waters within the United States. (Public Law 100-220, Title II). 2) Requires the US Environmental Protection Agency to develop a National Marine Debris Monitoring Program designed to assess the effectiveness of the current national marine debris legislation. Monitoring under this program takes place at designated beaches every 28 days. 3) Under the California Beverage Container Recycling and Litter Reduction Act of 1986, provides funding and education programs to reduce beverage container litter. (Public Resources Code §14500 et seq.). 4) Under the Integrated Waste Management Act of 1989 (IWMA), requires cities and counties to divert 50% of their solid waste by 2000. The IWMA provides various programs to reduce litter and educate consumers about the importance of recycling. (§40000 et seq.). SB 568 Page 2 5) Requires manufacturers of expanded polystyrene (EPS) loosefill packaging (packing peanuts) to achieve 100% recycling content by January 1, 2017. (§42390). 6) Prohibits a person from selling a plastic bag or a plastic food or beverage container that is labeled as "compostable" or "marine degradable" unless that plastic bag or container meets American Society for Testing and Materials (ASTM) standards or a standard adopted by the Department of Resources Recycling and Recovery. (§42357 and 42359.6). 7) Under the federal Clean Water Act requires the state to identify a list of impaired water-bodies and develop and implement Total Maximum Daily Loads (TMDLs) for impaired water bodies. (33 U.S.C. §1313(d)(1)). 8) Under the Porter Cologne Water Quality Control Act, regulates discharges of pollutants in storm water and urban runoff by regulating, through the National Pollution Discharge Elimination System (NPDES), industrial discharges and discharges through the municipal storm drain systems. (Water Code §13000 et seq.). This bill : 1) Prohibits, on and after January 1, 2013, a food vendor from dispensing prepared food to a customer in a polystyrene foam food container. 2) Defines "polystyrene foam food container" to mean a container made of thermoplastic petrochemical material utilizing the styrene monomer, that is used or intended to be used to hold prepared food, and meets all of the following conditions: a) Polystyrene is the sole resin used to produce the rigid plastic packaging container. SB 568 Page 3 b) The container is required to be labeled with a "6" pursuant to Public Resources Code §18015(a). c) Includes, but is not limited to, a cup, bowl, plate, tray, or clamshell container that is intended for single use. 3) Defines "food vendor" to mean a food facility, as defined in Health and Safety Code §113789, including, but not limited to, a restaurant or retail food and beverage vendor located or operating within the state. A food vendor also includes, but is not limited to, an itinerant restaurant, pushcart, vehicular food vendors, a caterer, a cafeteria, a store, a shop, a sales outlet, or other establishment, including a grocery store or a delicatessen. 4) Excludes from the definition of "food vendor" correctional facilities, including, but not limited to, a state prison, county jail, facility of the Division of Juvenile Justice, county- or city-operated juvenile facility, including juvenile halls, camps, or schools, or other state or local correctional institution. 5) Defines "prepared food" to mean food as defined in Health and Safety Code §109935, including a beverage that is served, packaged, cooked, chopped, sliced, mixed, brewed, frozen, squeezed, or otherwise prepared for consumption that may be eaten on or off the premises. Prepared food includes "ready-to-eat food," as defined in §113881. 6) Excludes from the definition of "prepared food" raw, butchered meats, fish, or poultry that is sold from a butcher case or a similar retail appliance. 7) Does not preempt the authority of a local jurisdiction to SB 568 Page 4 adopt and enforce additional single-use food packaging ordinances, regulations, or policies that are more restrictive than those in this bill. COMMENTS : 1) Purpose of Bill . According to the author, expanded polystyrene (EPS) poses significant problems in our waterways, storm drains and marine environment. It breaks down into small pieces, is lightweight and easily dispersible. It constitutes 15% of litter and is a problem in many areas. Forty-seven jurisdictions in California have banned EPS food containers. 2) Plastics Pollution . Almost 90 % of floating marine debris is plastic. Due to its durability, buoyancy, and ability to accumulate and concentrate toxins present in the ocean, plastic is especially harmful to marine life. EPS is a large portion of ocean and waterway debris for the same reason it is used as packaging; it is light weight, durable and water resistant. EPS, like other plastics, does not biodegrade, but will break into smaller pieces. 3) Water Quality/ Total Daily Maximum Load . Under §303(d) of the federal Clean Water Act, states, territories, and authorized tribes are required to develop lists of impaired waters. These are waters that are too polluted or otherwise degraded to meet the water quality standards set by states, territories, or authorized tribes. The law requires that these jurisdictions establish priority rankings for waters on the lists and develop Total Maximum Daily Loads (TMDLs) for these waters. This is the amount of a particular material that a waterbody can assimilate on a regular basis and still remain at levels that protect beneficial uses designated for that waterbody. A TMDL is approved by the Regional Water Quality Control Board, the State Water Resources Control Board and the US Environmental Protection Agency. Once approved, it establishes: a) an allowable amount of a pollutant to a waterbody; b) proportional responsibility for controlling the pollutant; c) numeric indicators of water quality; and SB 568 Page 5 d) implementation to achieve the allowable amount of pollutant loading. The process to derive a TMDL and prepare the report that documents this process and recommends implementation typically takes at least one year, and may take several years, to complete. 4) Los Angeles River and Ballona Creek Trash TMDLs . This current TMDL requires 10% reduction per year on the discharges of trash to the Los Angeles River and Ballona Creek. The adopted TMDL document requires the first 20% reduction to be achieved by September 30, 2006, and 100% trash reduction to be achieved by September 30, 2015. The City of Los Angeles (City) has started an aggressive effort to achieve trash reduction in accordance with the established timetable. Towards this effort the City evaluated different trash control BMPs, and examined how litter is distributed and is generated within the City, and developed an efficient trash control strategy. The City estimates that infrastructure costs to implement this TMDL will be approximately $85 million. 5) Packaging Container Options . If EPS is not an option for food containers, there are other containers made from other materials such as other plastics, paper, and new compostable/degradable materials that would be likely replacements. Forty-seven jurisdictions in California have already banned EPS food containers and vendors in those areas are obtaining alternatives. These materials, if improperly disposed, can still pose pollution issues. Also, they vary in price and availability and are often more expensive than EPS. 6) Other Approaches . Previous legislation has proposed to address food containers (see Previous Legislation below). One approach is establishing, performance criteria for problematic materials. These are often material neutral and can include such metrics as recovery and recyclability goals and life-cycle evaluation. 7) Recycling . EPS can be recycled. However, as with other material types as well, contamination from food is problematic and the municipalities that do accept EPS for recycling, often only take product protection EPS. SB 568 Page 6 8) Support and Opposition Arguments . Supporters generally contend that due to its ubiquitous nature and inherent properties, EPS poses a host of environmental and public health problems including marine pollution, human health impacts of styrene during production and lack of sustainable recovery and recycling opportunities. They also cite the high cost to local governments to meet the various trash TMDL's, of which many are currently required to implement with more likely to be imposed in the future. Many of the 47 jurisdictions who have implemented ESP food container bans are in the areas with existing trash TMDLs or those that may be facing one in the future. Groups in opposition generally content that banning EPS food containers will not reduce litter and that while EPS litter might decline, it could also be replaced with litter from the alternative packaging materials. They also contend the EPS is the best material for food packaging as it is light weight, manages heat/cold well and is inexpensive. They also point to the recyclability of EPS and the new products such building supplies (e.g. baseboards, moldings) that are using recycled EPS. 9) Previous Legislation . Previous legislation includes: a) AB 904 (Feuer) of 2008 would have prohibited a takeout food provider from distributing single-use food service packaging to a consumer after July 1, 2012, unless the single-use food service packaging is either compostable or recyclable packaging as defined. This bill died in the Senate Appropriations Committee. b) AB 1329 (Brownley) of 2009 would have prohibited the sale and distribution of rigid polyvinyl chlorine packaging containers. This bill was amended on the Senate Floor to address another policy matter. c) AB 1358 (Hill) of 2009 would have prohibited a food vendor from dispensing prepared food to a customer in a disposable polystyrene food container, a disposable nonrecyclable plastic food container, or a disposable nonrecycled content paper container. It would have SB 568 Page 7 allowed a food vendor to distribute prepared food in a compostable plastic container in a jurisdiction where organic waste is collected curbside for composting. This bill was amended on the Assembly Floor to address another policy matter. d) AB 2138 (Chesbro) of 2010 would have prohibited a food provider from distributing disposable food service packaging, including bags, to a consumer unless it is either compostable or recyclable, as defined. AB 2138 would have also prohibited a food provider from distributing disposable food service packaging, including bags, to a consumer, unless the Department of Resources Recycling and Recover determines the disposable food service packaging is recovered for composting or recycling at a rate of 25% or more. This bill died in the Assembly Appropriations Committee. 10)Pending Legislation . SB 567 (DeSaulnier) replaces existing definitions and provisions relating to plastic bags and containers and replaces those with definitions and provisions related to plastic products labeled as "compostable" or "marine degradable." The product cannot use those terms unless it meets those ASTM standard specifications or an adopted standards, or unless the plastic product is labeled with a qualified claim, and the plastic product meets that standard. The bill prohibits the sale of a plastic product that is labeled as "biodegradable," "degradable," "decomposable," or any form of those terms. This bill will be heard by the Environmental Quality Committee on April 4, 2011. SOURCE : Senator Lowenthal SUPPORT : Breast Cancer Fund California Resource Recovery Association Californians Against Waste Clean Water Action Defenders of Wildlife Endangered Habitats League Environment California Heal the Bay Institute for Local Self-Reliance SB 568 Page 8 Malibu Surfing Association Marin Sanitary Service City of Monterey Napa Recycling and Waste Services Orange County Interfaith Coalition for the Environment City of Richmond Sacramento Unified School District, Superintendent Santa Clara County Board of Supervisors City and County of San Francisco Save Our Shores Seventh Generation Advisors Sierra Club California Surfrider Foundation The Plastic Pollution Coalition The Watershed Project World Centric OPPOSITION : American Chemistry Council California Chamber of Commerce California Film Extruders and Converters Association California Manufacturers and Technology Association California Restaurant Association The Dardanelle Group Dart Container Corporation Industrial Environmental Association Pactiv Corporation Society of the Plastics Industry