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Ordinance No. 2021-18-Relating to Single Use Food Ware-Approved 062221Page 1 of 10 ORDINANCE NO. 2021-18 AN ORDINANCE of the City of Bainbridge Island, Washington, amending Chapter 8.24 and adding new Sections 8.24.005, 8.24.015, 8.24.025, 8.24.035, 8.24.060, and 8.24.070 of the Bainbridge Island Municipal Code. WHEREAS, the impact of the world’s increasing waste stream is unsustainable and detrimental to the future of the world’s environment, economy, and the health and safety of its people; and WHEREAS, the City of Bainbridge Island has been a leader in developing responsible waste management policies including a ban on polystyrene food packaging in 1989 and a ban on single-use plastic bags in 2012; and WHEREAS, the City of Bainbridge Island currently regulates the use of nonbiodegradable packaging materials in Chapter 8.24 of the Bainbridge Island Municipal Code (“BIMC”); and WHEREAS, certain exemptions to prohibited materials and items exist in Chapter 8.24 BIMC; and WHEREAS, single-use plastic food service products contaminate Bainbridge Island’s recycling and compost systems, soiling other recyclables, such as paper, and jeopardizing the quality of the community’s recycling and compost; and WHEREAS, single-use plastic items such as utensils, straws, cups, lids, plates, and wrappers are frequently found as street and beach litter in Bainbridge Island and throughout Washington state; and WHEREAS, plastic is a pollutant that never fully degrades but rather breaks down into smaller nonbiodegradable pieces and particles such as microplastics that are commonly ingested by marine and terrestrial wildlife, with bioaccumulation up the food chain that contaminates soil and water, threatening the health of Bainbridge Island’s and the Puget Sound’s ecosystems, as well as the health of our own community; and WHEREAS, microplastics that enter the marine environment are consumed by fish, marine mammals, birds, and other organisms where they may pose a particular burden for endangered species such as salmon and southern resident orcas; and WHEREAS, among other hazards, plastic debris attract and concentrate ambient pollutants like heavy metals and persistent organic pollutants in seawater and fresh water, which can transfer to fish and other seafood, that is eventually caught and sold for human consumption; and WHEREAS, the annual worldwide production of plastics (both resins and fibers) increased from 2 million metric tons in 1950 to 380 metric tons in 2015, an annual growth rate of Page 2 of 10 8.4%, and the use of plastic has increased about two-and-a-half times faster than global gross domestic product annually; and WHEREAS, only 9% of the plastic produced to date in the United States has been recycled and annual recycling rates in the U.S. have remained at around 9% since 2012; and WHEREAS, commercial composting services that allow for the processing of “compostable” plastics and wood or fiber-based food service products are not currently available on Bainbridge Island or in Kitsap County; and WHEREAS, the greenhouse gas inventory recently completed for the City of Bainbridge Island calculated that there was an approximately eleven percent increase in community greenhouse gas emissions from solid waste between 2014 and 2018; and WHEREAS, that recent greenhouse gas inventory also indicated that four percent of current greenhouse gases are from solid waste generation; and WHEREAS, each county in the state is required by RCW 70.95.080 to prepare a Comprehensive Solid and Hazardous Waste Management Plan, and WHEREAS, incorporated cities in Kitsap County, including Bainbridge Island, are participants in the County’s solid waste management planning, and these jurisdictions work with the County to manage solid waste-related materials; and WHEREAS, one of the essential goals of Kitsap County’s Solid Waste Management Plan is to “Reduce the environmental impacts to climate, air, water, and land that are associated with waste generation, transportation, handling, recycling, and disposal”; and WHEREAS, one of the key priorities of the Washington State Solid and Hazardous Waste Plan is to “Mitigate climate change through waste reduction, reuse, and recycling”; and WHEREAS, the City of Bainbridge Island adopted a Climate Action Plan on November 20, 2020; and WHEREAS, the City’s Climate Action Plan includes as one of its 18 immediate actions for 2021 a recommendation that the City, “Adopt an ordinance to reduce the use of single-use plastic food service ware, including utensils and take-out containers, by all Island food service establishments” (See, Action 7.A.2.a.); and WHEREAS, significantly reducing single-use plastic food service ware from retail food establishments within the City of Bainbridge Island will reduce litter, contamination of recycling and composting systems, greenhouse gas emissions, and negative environmental impact by avoiding dead-end deposition in a landfill; and Page 3 of 10 WHEREAS, some single-use plastic products, including plastic straws, need to be available upon request as a reasonable accommodation to ensure equity, inclusivity, and sustainability for those who need them; and WHEREAS, some alternatives to single-use plastics are not adequate for some people’s personal access needs or financial circumstances, and these personal needs and circumstances should be accommodated in a manner that is not stigmatizing; and WHEREAS, Washington State waste reduction laws provide that it is the responsibility of county and city governments to assume primary responsibility for solid waste management and to develop and implement aggressive and effective waste reduction and source separation strategies; and WHEREAS, in light of the need to protect Bainbridge Island’s sensitive marine environments and mitigate climate change, and with a desire to lead a transition to more environmentally sustainable alternatives, it is the intent of the Bainbridge Island City Council to reduce the use of single-use plastic products, and to take other steps to reduce waste from single-use products; and WHEREAS, it is the City’s desire to phase out the use of single-use plastic food service products as well as single-use, throwaway items of all types and increase the use of more sustainable alternatives; and WHEREAS, to prevent solid waste generation, it is in the City’s interest to discourage the use of single-use beverage cups which can be accomplished through price signals; and WHEREAS, it is the City’s intent to provide education to consumers and businesses regarding the requirements of this ordinance, and on the need for and utility of single-use plastic reduction, and to encourage the use of alternatives, such as compostable and reusable food service products; and WHEREAS, it is the City’s intent to implement, with community partners, a significant education and outreach effort that is suitable for small business owners and diverse ethnic populations, including language-appropriate materials, targeted outreach, and distribution of culturally appropriate materials; and WHEREAS, it is the City’s intent to listen to and work with businesses to implement the provisions of this ordinance in a collaborative fashion; and WHEREAS, through a greater focus on waste minimization we can conserve resources; reduce greenhouse gas emissions, waste, terrestrial and marine litter, and other pollution; protect public health and welfare today and for future generations of Bainbridge Islanders; and avoid costly environmental damages; and WHEREAS, the City Council considered an initial draft of this Ordinance No. 2021- 18 on June 8, 2021, discussed that draft, and directed the City Attorney’s Office to revise the Page 4 of 10 draft to focus more narrowly on activities that may otherwise be preempted by state law, specifically E2SSB 5022, if the Council doesn’t enact such regulations by July 1, 2021 related to single-use food service products; and WHEREAS, this revised version of Ordinance No. 2021-18 is intended to reflect the City Council’s intent to adopt reasonable regulations on this topic prior to July 1, 2021 to ensure that these new regulations are not preempted by state law, including as relates to enacting “an ordinance to reduce pollution from single-use food service products by requiring affirmation that a customer wants single-use food service products from the customer of the food service business or other retail establishment,” as set forth in Section 11(5) of E2SSB 5022; and WHEREAS, the City Council considered and discussed this ordinance at its study session on June 15, 2021; and WHEREAS, the City Council further considered and discussed this ordinance at its regular business meeting on June 22, 2021; and WHEREAS, the City Council finds that a reduction in single-use plastic products is in the best interest of public health, safety, and welfare of the persons of Bainbridge Island, the terrestrial environment, and the Puget Sound. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BAINBRIDGE ISLAND, WASHINGTON, DOES ORDAIN AS FOLLOWS: Section 1. The title of Chapter 8.24 of the Bainbridge Island Municipal Code is hereby amended to read as follows: SINGLE USE FOODWARE AND WASTE REDUCTION Section 2. A new Section 8.24.005 of the Bainbridge Island Municipal Code is hereby added as follows: 8.24.005 Definitions. A. “Biodegradable materials” means those materials made of cellulose-based or other substances that are capable of being readily attacked, decomposed, assimilated, and otherwise completely oxidized or broken down by bacteria or other natural biological organisms into carbonaceous soil material or water and carbon dioxide within a reasonable period of time. B. “Food service product” means a product intended for one-time use and used for food or drink offered for sale or use. Food service products include, but are not limited to, containers, plates, bowls, cups, lids, beverage containers, meat trays, deli rounds, utensils, sachets, straws, condiment packaging, clamshells and other hinged or lidded containers, wrap, and portion cups. Page 5 of 10 C. “Nonbiodegradable materials” means those made in whole or in part of polystyrene plastic. D. “Packaging” means all food-related wrappings, boxes, containers, and disposable or non-reusable plates, cups, or drinking utensils. E. “Prepackaged food” means food service products that have been filled with food and sealed by a separate food service business or food manufacturer prior to receipt by the point-of- sale retail establishment. “Prepackaged food” includes a utensil, straw, or other item physically attached for purposes of retail sale to a food service product prior to receipt by the point-of-sale retail establishment. F. “Retail establishment” means any person, corporation, partnership, business, facility, vendor, organization, or individual that sells or provides merchandise, goods, or materials directly to a customer, including to a “retail food establishment.” Retail establishment includes, but is not limited to, retail food establishments, grocery stores, department stores, hardware stores, home or business delivery services, pharmacies, liquor stores, restaurants, catering trucks, convenience stores, or other retail stores or vendors, including temporary stores or vendors at farmers markets, street fairs, and festivals. For the purposes of this definition, “retail food establishment” means all sales outlets, stores, shops, or other places of business located within the city, which sell or convey foods directly to the ultimate consumer. Retail food establishment shall include, but not be limited to, any place where food is prepared, mixed, cooked, baked, smoked, preserved, bottled, packaged, handled, stored, manufactured, and sold or offered for sale, including, but not limited to, any fixed or mobile restaurant; drive-in; coffee shop; cafeteria; short-order cafe; delicatessen; luncheonette; grill; sandwich shop; soda fountain; tavern; bar; cocktail lounge; nightclub; roadside stand; take out prepared food establishment; industrial feeding establishment; catering kitchen; commissary; grocery store; public food market; food stand; or similar place in which food or drink is prepared for sale or for service on the premises or elsewhere; and any other establishment or operation, including homes, where food is processed, prepared, stored, served, or provided for the public for charge. G. “Reusable” means designed and manufactured to maintain its shape and structure, and to be materially durable for repeated (at least 1,000 times each) sanitizing in water at 171 degrees Fahrenheit for at least 30 continuous seconds, washing via commercial dishwashing machine, and reuse. H. “Single-use” means a product that is designed to be used once and discarded, and/or is not reusable as defined herein. I. “Utensil” means a product designed to be used by a consumer to facilitate the consumption of food or beverages, including knives, forks, spoons, cocktail picks, chopsticks, splash sticks, and stirrers. “Utensil” does not include plates, bowls, cups, bottles, and other products used to contain food or beverages. Page 6 of 10 Section 3. Chapter 8.24.010 of the Bainbridge Island Municipal Code is hereby amended to read as follows: 8.24.010 Definitions Restrictions on Food and Beverage Containers. A. “Biodegradable materials” means those made of cellulose-based or other substances that are capable of being readily attacked, decomposed, assimilated, and otherwise completely oxidized or broken down by bacteria or other natural biological organisms into carbonaceous soil material or water and carbon dioxide within a reasonable period of time. B. “Nonbiodegradable materials” means those made in whole or in part of polystyrene plastic. C. “Packaging” means all food-related wrappings, boxes, containers and disposable or nonreusable plates, cups, or drinking utensils. D. “Retail food establishment” means all sales outlets, stores, shops or other places of business located within the city, which sell or convey foods directly to the ultimate consumer. “Retail food establishment” shall include, but not be limited to, any place where food is prepared, mixed, cooked, baked, smoked, preserved, bottled, packaged, handled, stored, manufactured, and sold or offered for sale, including, but not limited to, any fixed or mobile restaurant; drive-in; coffee shop; cafeteria; short-order cafe; delicatessen; luncheonette; grill; sandwich shop; soda fountain; tavern; bar; cocktail lounge; nightclub; roadside stand; take out prepared food establishment; industrial feeding establishment; catering kitchen; commissary; grocery store; public food market; food stand; or similar place in which food or drink is prepared for sale or for service on the premises or elsewhere; and any other establishment or operation, including homes, where food is processed, prepared, stored, served or provided for the public for charge. A. No retail food establishment licensed to do business or required to be licensed within the city shall sell or convey food directly to ultimate consumers within the city unless such food is placed, wrapped, or packed in biodegradable packaging at the conclusion of a sales transaction for the purchase of such food. B. No retail food establishment licensed to do business or required to be licensed within the city shall sell, give, or provide food containers to any persons within the city if such food container is composed of nonbiodegradable materials. Section 4. A new Section 8.24.015 of the Bainbridge Island Municipal Code is hereby added as follows: 8.24.015 Exemptions. A. BIMC 8.24.010 shall not apply to the following items: 1. Any flexible transparent covering; Page 7 of 10 2. Any food packaging used at hospitals or nursing homes; 3. Any paper or other cellulose-based packaging that is coated with polyethylene plastic on only one side, or wax coated; 4. Any plastic covers, covering material, food containers, or lids that are biodegradable; 5. Any glass container or glass packaging which is recyclable; 6. Any plastic bags dispensed at the request of a customer at the check-out counter of a grocery store for the purpose of carrying groceries, provided that paper bags are customarily dispensed for that purpose; 7. Plastic eating utensils, such as forks, knives or spoons, straws, or beverage container covers; and 8. Any foods sold by a retail food establishment packaged by a wholesale distributor, manufacturer, processor, bakery, or similar wholesaler whose premises is located outside the city; provided that not more than 10 percent of the total volume of food sold at the retail food establishment is packaged in nonbiodegradable packaging. B. [Reserved.] Section 5. Chapter 8.24.020 of the Bainbridge Island Municipal Code is hereby amended to read as follows: Prohibition[Reserved.] A. No retail food establishment licensed to do business or required to be licensed within the city shall sell or convey food directly to ultimate consumers within the city unless such food is placed, wrapped, or packed in biodegradable packaging at the conclusion of a sales transaction for the purchase of such food. B. No retail food establishment licensed to do business or required to be licensed within the city shall sell, give, or provide food containers to any persons within the city if such food container is composed of nonbiodegradable materials. Section 6. A new Section 8.24.025 of the Bainbridge Island Municipal Code is hereby added as follows: 8.24.025 Single-use food service products upon customer’s affirmation. A. A retail food establishment may provide the following single-use food service products only upon customer’s affirmation for the below item or items: Page 8 of 10 1. Utensils; 2. Straws; 3. Condiment in packaging; 4. Beverage cups; and/or 5. Beverage cup lids. B. A retail food establishment may provide beverage cup lids without customer’s affirmation for: 1. Hot beverages; or 2. Beverages provided through delivery service, drive-through, or curbside pickup. C. The products listed in BIMC 8.24.025.A. may not be available to customers in cylinders, bins, dispensers, containers, or other means on a self-service basis for any reason. D. This chapter shall take effect as of January 1, 2022. Section 7. Chapter 8.24.030 Bainbridge Island Municipal Code is hereby amended to read as follows: 8.24.030 Exemptions[Reserved.] BIMC 8.24.020 shall not apply to the following items: A. Any flexible transparent covering; B. Any food packaging used at hospitals, nursing homes; C. Any paper or other cellulose-based packaging that is coated with polyethylene plastic on only one side, or wax coated; D. Any plastic covers, covering material, food containers, or lids that are biodegradable; E. Any glass container or glass packaging which is recyclable; F. Any plastic bags dispensed at the request of a customer at the check-out counter of a grocery store for the purpose of carrying groceries, provided that paper bags are customarily dispensed for that purpose; G. Plastic eating utensils, such as forks, knives or spoons, straws, or beverage container covers; and H. Any foods sold by a retail food establishment packaged by a wholesale distributor, manufacturer, processor, bakery or similar wholesaler whose premises is located outside the city; Page 9 of 10 provided, not more than 10 percent of the total volume of food sold at the retail food establishment is packaged in nonbiodegradable packaging. (Ord. 89-03 § 3, 1989) Section 8. A new Section 8.24.035 of the Bainbridge Island Municipal Code is hereby added as follows: 8.24.035 [Reserved.] Section 9. Chapter 8.24.050 of the Bainbridge Island Municipal Code is hereby amended to read as follows: 8.24.050 Penalties. A. Prior to imposing penalties or taking other enforcement action as set forth below in subsection B, the city shall attempt to provide written notice to any establishment in violation of this chapter. The notice shall include a description of the item sold or provided by the retail establishment in violation of the requirements of this chapter, the text of the specific code provision(s) that apply, and information on how to comply with the provision(s). The notice shall be provided to the retail establishment by personal service or certified mail, return receipt requested. Such notice is not a formal enforcement action, is not subject to appeal, and is a public record. B. Any person violating any of the provisions of this chapter shall be deemed guilty of a misdemeanor to have committed a civil infraction and, upon conviction thereof, such a finding, shall be fined in an amount not exceeding $500.00, or be imprisoned in the county jail for a period not exceeding six months, or be both so fined and imprisoned. shall be punishable by a fine not to exceed $250.00 per day for the first 20 days that the violation exists and $500.00 per day for each day thereafter. Each such violation committed or permitted to continue by the violator shall constitute a separate offense and shall be punishable as such under this section. Each day that an establishment violates any of the provisions of this chapter shall constitute a single, separate violation. Section 10. A new Section 8.24.060 of the Bainbridge Island Municipal Code is hereby added as follows: 8.24.060 Education. As necessary, the City Manager, or their designee, and pursuant to BIMC 8.24.040, shall provide, or contract for the provision of, education and outreach activities to inform retail establishments, consumers, and other interested individuals about the requirements of this chapter. Education and outreach will be designed to effectively convey the policies underlying this chapter, describe the actions necessary to gain compliance with its provisions, and minimize the need for formal enforcement action. The city will emphasize education and outreach rather than enforcement to achieve compliance with the requirements of this chapter. Page 10 of 10 Section 11. Severability. Should any section, paragraph, sentence, clause, or phrase of this ordinance, or its application to any person or circumstance, be declared unconstitutional or otherwise invalid for any reason, or should any portion of this ordinance be preempted by state or federal law or regulation, such decision or preemption shall not affect the validity of the remaining portions of this ordinance or its application to other persons or circumstances. Section 12. Implementation. A. No less than 60 days after final adoption, the city shall post, mail, or deliver a copy of the ordinance adopting this chapter to affected businesses within the city. B. The city shall use additional outreach and education measures to publicize this chapter and to assist affected persons and businesses with implementation. PASSED by the City Council this 22nd day of June, 2021. APPROVED by the Mayor this 22nd day of June, 2021. __________________________ Rasham Nassar, Mayor ATTEST/AUTHENTICATE: FILED WITH THE CITY CLERK: June 4, 2021 PASSED BY THE CITY COUNCIL: June 22, 2021 PUBLISHED: June 25, 2021 EFFECTIVE DATE: June 30, 2021 ORDINANCE NO. 2021-18