Ordinance 2977 and Staff ReportCITY OF ALAMEDA ORDINANCE NO. 2977
New Series
AMENDING THE ALAMEDA MUNICIPAL CODE BY ADDING
SECTION 4 -4 TO ARTICLE I (LITTERING AND
MAINTENANCE OF PROPERTY) OF CHAPTER IV
(OFFENSES AND PUBLIC SAFETY) TO PROHIBIT
POLYSTYRENE FOAM FOOD SERVICE WARE AND
AMENDING SECTION 1 -5.6 OF CHAPTER 1 (GENERAL)
TO AUTHORIZE ADDITIONAL CITY EMPLOYEES TO
SERVE AS CODE ENFORCEMENT OFFICERS
BE IT ORDAINED by the City Council of the City of Alameda that:
Section 1. The Alameda Municipal Code is amended by adding
Section 4 -4 (PROHIBITION OF POLYSTYRENE FOAM FOOD SERVICE WARE)
to Article I (LITTERING AND MAINTENANCE OF PROPERTY) of Chapter IV
(OFFENSES AND PUBLIC SAFETY), which shall read as follows:
4 -4 POLYSTYRENE FOAM FOOD SERVICE WARE
4-4.1 Title
This section shall be known as the Alameda Polystyrene Foam Food
Service Ware Reduction Law.
4 -4.2 Purpose and Findings
The City Council finds that polystyrene foam food service ware constitutes a
significant adverse environmental impact. Solid waste that is non - degradable or
non - recyclable poses an acute problem for any program of integrated waste
management. Such waste covers the City's streets, parks, public places, and
open spaces. It clogs storm drains, arch culverts, and catch basins thereby
significantly increasing time and expense to public works maintenance crews
during a storm event. It enters the marine and natural environment and is
damaging to the environment and marine wildlife.
Products which are degradable or recyclable offer environmentally sound
alternatives to non - degradable and non - recyclable products currently used. By
decaying into their constituent substances, degradable products, compared to their
non - degradable equivalents, are less of a danger to the natural environment, less
likely to be a permanent blight on the urban landscape, less likely to engender
storm drainage system maintenance expenses, and less likely to cause flooding
due to clogged storm drains, arch culverts, and catch basins. Recycling of
products reduces costly waste of natural resources and energy used in production
of new products as well as costly disposal of waste in landfills.
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4 -4.3 Definitions
"Affordable" means purchasable by the Food Vendor of a non - polystyrene
form container for the same or Tess purchase cost than the non - biodegradable,
non - compostable alternative.
"ASTM Standard" means meeting the standards of the American Society for
Testing and Materials (ASTM) International Standards D6400 or D6868 for
biodegradable and compostable plastics.
"Biodegradable" means the entire product or package will completely break
down and return to nature, i.e., decompose into elements found in nature within a
reasonably short period of time after customary disposal and is consistent with the
materials accepted at the composting facility used by the City's franchisee for
integrated waste management.
"Compostable" means all materials in the product or package will break
down into, or otherwise become part of, usable compost (e.g., soil- conditioning
material, mulch) in a safe and timely manner consistent with the composting facility
used by the City's franchisee for integrated waste management. Compostable
disposable food service ware must meet ASTM standards for compostability and
must be clearly labeled.
"City facilities" means any building, structure or vehicle owned or operated
by the City of Alameda, its agencies, departments and the integrated waste
franchisee that are located within the City of Alameda.
"Customer" means any person obtaining prepared food from a restaurant or
retail food vendor.
"Disposable food service ware" means all containers, bowls, plates, trays,
cartons, cups, lids, straws, forks, spoons, knives and other items that are designed
for one -time use and on, or in, which any restaurant or retail food vendor directly
places or packages prepared foods or which are used to consume foods. This
includes, but is not limited to, service ware for takeout foods and /or leftovers from
partially consumed meals prepared at restaurants or retail food vendors.
"Food vendor" means any restaurant or retail food vendor located or
operating within the City of Alameda.
"Polystyrene foam" means and includes blown polystyrene and expanded
and extruded foams (sometimes called Styrofoam, a Dow Chemical Company
trademarked form of polystyrene foam insulation) which are thermoplastic
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petrochemical materials utilizing a styrene monomer and processed by any
number of techniques including, but not limited to, fusion of polymer spheres
(expandable bead polystyrene), injection molding, foam molding, and extrusion -
blown molding (extruded foam polystyrene). Polystyrene foam is generally used to
make items such as cups, bowls, plates, trays, clamshell containers, meat trays,
and egg cartons.
"Prepared food" means food or beverages, which are served, packaged,
cooked, chopped, sliced, mixed, brewed, frozen, squeezed or otherwise prepared
for consumption. For the purposes of this ordinance, "prepared food" does not
include raw, butchered meats, fish and /or poultry sold from a butcher case or
similar retail appliance. Prepared food may be eaten either on or off the premises,
also known as "takeout food."
"Restaurant ", for the purposes of this Article, means any establishment
located within the City of Alameda that sells prepared food for consumption on,
near, or off its premises by customer. "Restaurant," for purposes of this Article,
includes itinerant restaurants, pushcarts and vehicular food vendors.
"Retail food vendor" means any store, shop, sales outlet, or other
establishment, including a grocery store or a delicatessen, other than a restaurant,
located within the City of Alameda that sells prepared food.
4-4.4 Prohibited food service ware
a. Food vendors are prohibited from providing prepared food to
customers in disposable food service ware that uses polystyrene foam.
b. All City facilities are prohibited from using polystyrene foam
disposable food service ware and all city departments and agencies will not
purchase or acquire polystyrene foam disposable food service ware for use at city
facilities.
c. Except as provided in Section 4 -4.6 of this Article, agents,
contractors and vendors doing business with the city shall be prohibited from using
polystyrene foam disposable food service ware in City facilities or on City projects
within the City of Alameda.
4 -4.5 Required biodegradable and compostable disposable food service
ware
a. All food vendors using any disposable food service ware will use
biodegradable or compostable disposable food service ware unless they can show
an affordable biodegradable or compostable product is not available for a specific
application. Food vendors are strongly encouraged to provide reusable food
service ware in place of disposable food service ware. In instances where food
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vendors decide to use a biodegradable or compostable disposable food service
ware product that is not affordable, a food vendor may charge a "take out fee" to
customers to cover the cost difference.
b. All City facilities will use biodegradable or compostable disposable
food service ware unless they can show an affordable biodegradable or
compostable product is not available for a specific application.
c. City contractors and vendors doing business with the City will use
biodegradable food service ware in City facilities or on City projects within the City
of Alameda, unless they can show an affordable biodegradable or compostable
product is not available for a specific application.
4 -4.6 Exemptions
a. Prepared foods packaged outside the City of Alameda are exempt
from the provisions of this Article. Purveyors of food prepared or packaged
outside the City of Alameda are encouraged to follow the provisions of this Article.
b. Food vendors that are currently existing or are established in the City
by July 1, 2008, will be exempted from the provisions of this Article prohibiting the
use of polystyrene foam food service ware if the City Manager or his /her designee
finds that an undue hardship exists. Exemptions may be granted for up to a one -
year period from the effective date of the Ordinance.
The phrase "undue hardship" shall be construed to include, but not be
limited to a food vendor demonstrating to the satisfaction of the City Manager or
his /her designee that there is significant difficulty or expense incurred by meeting
the prohibition which directly impacts the food vendor's ability to conduct business
or the food vendor has been deprived a legally protected right.
Significant difficulty will be established based on, but not necessarily limited
to, the food vendor documenting the list of suppliers contacted and explaining how
it has determined that no acceptable alternative is available at a commercially
reasonable price, for reasons which are uniquely burdensome to the food vendor
and its type of operation(s) or the food being served.
Significant cost will be established by, but not necessarily limited to,
demonstrating that the acceptable alternative food ware is not available at a
commercially reasonable price and the additional cost associated with providing
the acceptable alternative food ware is uniquely burdensome to the food vendor
based on the type of operation(s) affected, the overall size of the business, the
number, type and location of its facilities and the impact on the overall financial
resources of the food vendor. It shall also consider the ability to recover the
additional costs through existing expenses and resources, the availability of tax
credits and deductions, and /or outside funding.
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c. Polystyrene foam coolers and ice chests that are intended for reuse
are exempt from the provision of this Article.
d. Disposable food service ware composed entirely of aluminum is
exempt from the provisions of this Article.
e. Emergency supply and services procurement: In a situation deemed
by the City Manager to be an emergency for the immediate preservation of the
public peace, health or safety, City facilities, food vendors, agents, contractors,
and vendors doing business with the city shall be exempt from the provisions of
this Article.
4 -4.7 Liability and enforcement
a. The Public Works Director or his /her designee will have primary
responsibility for enforcement of this Article. The Public Works Director or his /her
designee is authorized to promulgate regulations and to take any and all other
actions reasonable and necessary to enforce this Article, including, but not limited
to, entering the premises of any food vendor during regular business hours to
verify compliance.
b. Anyone violating or failing to comply with any of the requirements of
this Article will be subject to an administrative citation pursuant to Section 1.7 et
seq. of the Alameda Municipal Code.
c. The City Attorney may seek legal, injunctive, or other equitable relief
to enforce this Article.
4 -4.8 Violations — Penalties
a. Enforcement of the provisions of this Article shall be pursuant to the
provisions adopted for the imposition of administrative citations and the hearing
procedures related to those citations adopted under Section 1 -7 et seq. of the
Alameda Municipal Code.
Section 2. Section 1 -5.6 (AUTHORIZATION OF CODE ENFORCEMENT
OFFICERS; LIMITATIONS) of Chapter 1 (GENERAL) of the Alameda Municipal
Code is amended to add new categories of employees empowered to issue
citations, which shall read as follows:
1 -5.6 Authorization of Code Enforcement Officers; Limitations
a. The following classification of City employees and agents shall have
the authority under Penal Code Section 836.5 to issue citations for violations of the
Alameda Municipal Code:
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1. Fire /Building Code Compliance Officer;
2. Planning and Building Director;
3. Public Works Director;
4. Public Works Maintenance Superintendent;
5. City Engineer;
6. Building Official;
7. Combination Building Inspector;
8. Supervising Building Inspector;
9. Environmental Services Manager;
10. Environmental Services Program Specialist I and II.
11. Any other position designated by the City Manager
Section 3. If any section, subsection, sentence, clause or phrase
of this ordinance is, for any reason, held invalid or unconstitutional, such decision
shall not affect the validity or constitutionality of the remaining portions of this
ordinance. The City Council of the City of Alameda hereby declares that it would
have passed this ordinance, and each section, subsection, sentence, clause or
phrase hereof, irrespective of the fact that any one or more sections, subsections,
sentences, clauses or phrases be declared unconstitutional.
Section 4. All former ordinances or parts thereof conflicting or
inconsistent with the provisions of this ordinance hereby adopted, to the extent of
such conflict only, are hereby repealed.
Section 5. The City hereby finds and determines that this
Ordinance is not subject to the requirements of the California Environmental
Quality Act (CEQA). Specifically, the basis for the exemptions include, without
limitation, the following (each providing a separate and independent basis and
when viewed collectively providing an overall basis for an exemption): (1) CEQA
Guidelines section 15061(b)(3); (2) CEQA Guidelines section 15378(a); (3) CEQA
Guidelines section15378(b)(2); (4) CEQA Guidelines section 15308; and (5) CEQA
Guidelines section 15307.
Section 6. The City Clerk of the City of Alameda is hereby directed
to cause this ordinance to be published in the Official Newspaper of the City of
Alameda.
Section 7. This ordinance and the rules, regulations, provisions,
requirements, orders and matters established and adopted hereby shall take effect
and be in full force and effect on July 1, 200
residing ic: the ouncil
6
Attest:
Lara Weisiger, City
City of Alameda
I, the undersigned, hereby certify that the foregoing Ordinance was duly and
regularly adopted and passed by the Council of the City of Alameda in a regular
meeting assembled on the 2nd day of January, 2008 by the following vote to wit:
AYES: Councilmembers deHaan, Gilmore, Matarrese, Tam and
Mayor Johnson — 5.
NOES: None.
ABSENT: None.
ABSTENTIONS: None.
IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of
said City this 3rd day of January, 2008.
a i
Lara Weisiger, City Cler
City of Alameda
CITY OF ALAMEDA
Memorandum
To: Honorable Mayor and
Members of the City Council
From: Debra Kurita
City Manager
Date: December 18, 2007
Re: Adopt an Ordinance Amending the Alameda Municipal Code by Adding
Section 4-4 to Article I (Littering and Maintenance of Property) of Chapter
IV (Offenses and Public Safety) to Prohibit Polystyrene Foam Food
Service Ware and Amending Section 1 -5.6 of Chapter 1 (General) to
Authorize Additional City Employees to Serve as Code Enforcement
Officers
BACKGROUND
Expanded Polystyrene (EPS) foam, commonly called StyrofoamTM, is an inexpensive,
lightweight, petroleum -based plastic material with good insulation properties that is used
by restaurants and other food providers to keep food hot or cold. The typical take -out
containers include clamshell products, plates, cups, and bowls either white or other
colored. While EPS is an effective food service ware product, it is not compostable,
biodegradable, recyclable, or reusable. Since it is lightweight, it is easily carried by the
wind, floats in water, and breaks into small pieces creating litter in streets, parks,
waterfront, waterways, and open spaces. Marine biologists have concluded that
degraded EPS in the marine environment mimics certain natural food sources and
therefore, increases the chance of ingestion by wildlife. Recent studies have found
plastics to be in the digestive systems of nearly all tested ocean - feeding bird species.
Ingestion of EPS by birds and marine animals often results in reduced appetite, reduced
nutrient absorption, and possible death by starvation. In addition, EPS collects in the
City's storm drainage system blocking catch basins and arch culverts, and increasing
the time and expense to the Public Works maintenance crews during storm events.
DISCUSSION
The City of Alameda is a Leader in Solid Waste Diversion and Recycling
In accordance with the California Integrated Waste Management Act of 1989, all
California jurisdictions are required to achieve and maintain a landfill diversion rate of
50% by the year 2000. In Alameda County, the voter - approved Measure D sets a 75%
waste diversion goal by 2010. To achieve this goal, the City implemented a food waste
collection program in October 2002 to divert food scraps from the solid waste stream to
the organics recycling stream. Since that time, the City of Alameda has been a leader
in the organics recycling program, offering the program to both residential and
City Council
Report Re:
Agenda Item #5 -B
12 -18 -07
Honorable Mayor and December 18, 2007
Members of the City Council Page 2 of 6
commercial customers and maintaining an average participation rate of 61.5 %. The
average participation rate for all jurisdictions in Alameda County with a food scrap
collection program is 36 %. In addition, the California Integrated Waste Management
Board's (CIWMB) most recent certified diversion rate for all solid waste in Alameda is
68 %. Since EPS represents approximately 25% to 30% of the waste stream, by
volume, removing EPS from Alameda's waste stream will ensure that additional solid
waste is diverted from landfills.
Polystyrene Foam Bans
To date, over 100 cities nationwide have banned EPS food service ware. In the Bay
Area, San Francisco, Oakland, Berkeley, Emeryville, and Millbrae have passed
ordinances banning EPS food service ware. Attachment 1 provides a comparison of the
regulations approved by these Bay Area cities. The proposed ordinance for the City of
Alameda is based on the Compostable Food Ware Model Ordinance endorsed by the
CIWMB, as well as the ordinance adopted by the City of Oakland. The ordinance bans
the use of polystyrene foam disposable food service ware, and requires that the
disposable food service ware be biodegradable or compostable as long as it is cost -
neutral, otherwise products such as clear plastic may be used. The ordinance is
proposed to become effective on July 1, 2008, and will implement the following
requirements:
1. POLYSTYRENE FOAM BAN
The proposed ordinance will prohibit the use of EPS food service ware by food service
vendors operating in the City of Alameda, including restaurants, itinerant restaurants,
and retail food vendors. The food service ware products affected by the ordinance
includes clamshell containers, bowls, plates, trays, cartons, cups, and other items
designed for one -time use both on and off the food vendors' premises. The ordinance
also applies to the City of Alameda and its facilities, departments, and integrated waste
franchisee.
Alternatives for Polystyrene Foam and Their Costs
Alternative products to polystyrene foam are widely available and used widely in other
cities with polystyrene foam bans. These alternative materials include:
• Uncoated Paper
• Coated paper
• Cardboard
• Aluminum
• Other plastics
• Bio- products typically made from corn starch, sugar cane, or a combination of
bamboo, tapioca, and water
Honorable Mayor and December 18, 2007
Members of the City Council Page 3 of 6
In general, alternatives to polystyrene foam cost a few cents more per item and vary in
price with the product type, weight, and durability. The actual cost to a food vendor to
switch to an alternative product will be largely dependent on the amount and types of
disposable food service ware that the food vendor currently uses. While polystyrene
foam is currently the least expensive food service ware available, the cost is expected
to rise due to increasing crude oil prices. In addition, the true cost of using EPS is not
fully quantifiable due to costs passed on to the public through litter, blight, increased
storm drainage maintenance, reduced quality of life, and associated environmental and
possible health impacts.
Exceptions
The proposed ordinance allows for the following exemptions from the polystyrene foam
ban:
• Food prepared or packaged outside the City of Alameda.
• Polystyrene foam coolers and ice chests intended for reuse.
• Disposable food service ware composed entirely of aluminum.
• Raw butchered meats, fish, or poultry from a butcher case or similar
establishment.
• Supplies and service procurement during a City- declared emergency.
In addition, food vendors may be exempt from the polystyrene foam prohibition for
specific items or types of disposable food service ware only if the City Manager or
his /her designee determines that the requirement would cause undue hardship or a
legally protected right has been violated. Undue hardship will be determined on a case -
by -case basis. A food vendor must establish that significant difficulty or expense would
be incurred by fully complying with the prohibition or that no alternative food service
ware is available for a specific application. Exemptions will be granted for one year and
may be extended if the food vendor can provide information that compliance continues
to cause significant economic hardship. The food vendor will be required to re -apply
prior to the end of the one -year exemption period.
2. USE OF BIODEGRADABLE OR COMPOSTABLE DISPOSABLE FOOD
SERVICE WARE
This ordinance would also require all food vendors to use biodegradable or
compostable disposable food service ware as long as it is cost - neutral. For the purpose
of this ordinance, biodegradable means the entire product or package will completely
deteriorate and retum to nature within a reasonably short period of time and is
consistent with materials accepted at the composting facility used by the City's
integrated waste management franchisee. Compostable means all materials in the
product or package will break down into, or otherwise become part of, usable compost
in a safe and timely manner in the composting facility used by the City's franchisee or in
a home compost pile or device.
Honorable Mayor and December 18, 2007
Members of the City Council Page 4 of 6
Alternatives and Their Costs
Biodegradable and compostable food service ware includes the following:
• Uncoated paper products
• Coated paper products
• Some bio- products
Depending on the product, biodegradable or compostable alternatives often cost the
same as their plastic counterparts. However, some specific compostable products,
which are new to the market, may cost up to twice as much as their counterparts. Since
some biodegradable or compostable food products already cost the same as or less
than their counterparts, food vendors should start to use these products now. For
example, compostable plastic cups for cold drinks, and clamshells containers for salads
are generally the same price as plastic cups and plastic clamshells, depending on the
distributor. Many restaurants and cafes already use paper cups and plates because
they are affordable and effective. As the demand for biodegradable and compostable
products increases, a larger variety of biodegradable and compostable products are
expected to become available, leading to lower prices for food vendors. In addition, the
ordinance allows food vendors to charge a "take out fee" to cover the cost difference
between the non - polystyrene foam product and a biodegradable /compostable product.
Exceptions
Food vendors may be exempt from specific items or types of disposable food service
ware if the City Manager or his /her designee determines that a cost - neutral alternative
is not available.
Effective Date
This ordinance will become effective on July 1, 2008, approximately six months after the
introduction of the ordinance. The six -month implementation period is designed to
provide sufficient time for food vendors to familiarize themselves with the new
requirements, deplete the existing food ware stock, work with Public Works staff to
identify suppliers of alternative food service ware containers, and purchase new stock.
Enforcement
Enforcement of the ordinance will be on a complaint basis only. The Public Works
Director and his /her staff will be authorized to enforce the ordinance and issue written
warnings and fines for violations if a citizen complaint is not remedied. The amount of
the fine will be consistent with the administrative citation procedure contained in Section
1 -7 of the Alameda Municipal Code (AMC): $250 for first violation, $500 for a second
violation, and $1 ,000 for all subsequent violations. To enable staff from the Public
Works Department to enforce this ordinance, Section 1 -5.6 of the AMC is being
amended as part of this ordinance.
Honorable Mayor and December 18, 2007
Members of the City Council Page 5 of 6
Public Outreach
On November 29, 2007, the Public Works Department held a public meeting in the City
Council Chambers to inform food vendors and the community about the proposed
ordinance and elicit feedback. Prior to the meeting, an informational postcard (see
Attachment 2) was mailed to 255 food - related businesses in Alameda informing them of
the meeting and providing some basic information on the proposed ordinance. In
addition, Public Works staff made presentations to the Chamber of Commerce, the Park
Street Business Association, the West Alameda Business Association, and the Climate
Protection Task Force. The combined attendance for all five meetings was
approximately 60 people, and attendees expressed unanimous support for the
prohibition of polystyrene foam food service ware. To date, Public Works staff has
received only one comment from a local business opposing the proposed ordinance
because of concerns with increased costs.
Next Steps
Public Works staff will continue its educational outreach to Alameda food vendors and
anticipates developing a Frequently Asked Questions handout, as well as a list of
vendors and products that are appropriate for use in Alameda. Staff will also work with
Alameda County Industries to determine the feasibility of including additional types of
food ware plastic and bio- plastic containers in the recycling and organics programs.
BUDGET ANALYSIS /FINANCIAL IMPACT
This action does not affect the City's General Fund. Import Mitigation Grant funds from
Fund 274 will be used to cover the costs for a polystyrene foam food service ware ban
outreach campaign to businesses and residents.
MUNICIPAL CODE /POLICY DOCUMENT CROSS REFERENCE
Upon adoption of this ordinance, the following sections of the AMC will be affected:
Section 4-4 will be added to Article I (Littering and Maintenance of Property) of Chapter
IV (Offenses and Public Safety) to prohibit polystyrene foam food service ware and
Section 1 -5.6 of Chapter 1 (General) will be amended to authorize additional code
enforcement officers.
ENVIRONMENTAL REVIEW
Pursuant to Title 14 of the California Administrative Code, 15061(b)(3) and 15378(a),
this Ordinance is exempt from the requirements of the California Environmental Quality
Act (CEQA) in that it is not a project that has the potential for causing a significant effect
on the environment. This action is further exempt from the definition of Project in
Honorable Mayor and December 18, 2007
Members of the City Council Page 6 of 6
15378(b)(2) in that it concerns general policy and procedure making. Furthermore, this
Ordinance is exempt under CEQA Guidelines sections 15307 (Actions by Regulatory
Agencies for Protection of Natural Resources) and section 15308 (Actions by
Regulatory Agencies for Protection of the Environment).
RECOMMENDATION
Adopt an ordinance amending the AMC by adding Section 4-4 to Article I (Littering and
Maintenance of Property) of Chapter IV (Offenses and Public Safety) to prohibit
polystyrene foam food service ware and amending Section 1 -5.6 of Chapter 1 (General)
to authorize additional City employees to serve as code enforcement officers.
Respectf Ily submitted,
Ma hew Naclerio
Public Works Director
By: Maria F. Di Meglio
Environmental Services Manager
MTN:MFD:gc
Attachments
1. Comparison of Polystyrene Regulations in Bay Area Cities
2. Informational Postcard
Comparison of Polystyrene Regulations in Bay Area Cities
Penalties
Initial written waming followed
by escalating fines.
Initial written waming followed
by escalating fines.
Initial written waming followed
by escalating fines.
Initial written waming followed
by escalating fines.
Initial written waming followed
by escalating fines.
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Undue hardship.
Food packaged outside the City,
undue hardship, impacts a
legally protected right.
Foods prepared or packaged
outside the City, undue
hardship.
Food packaged outside City; no
affordable biodegradable or
compostable alternative exists;
undue hardship; coolers /ice
chests intended for reuse; all -
aluminum service ware; and
emergency supplies.
If no suitable affordable
biodegradable/compostable or
recyclable product available as
determined by the City
Administrator.
Phased
Implementation
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Affected Parties
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Required Replacement
Product
Any non - polystyrene
foam material
Biodegradable,
compostable, or
recyclable based on
acceptable items in
City's curbside program.
'Biodegradable,
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recyclable based on
acceptable items in
City's curbside program
Biodegradable,
compostable preferred,
non - polystrene foam
allowed if no cost -
neutral altemative is
available
Biodegradable,
compostable or
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acceptable items in
City's curbside program
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Product
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