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