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.).
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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.
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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
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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
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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.
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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
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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
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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