Zero Waste Commission

2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-mail: manager@CityofBerkeley.info Website: http://www.CityofBerkeley.info/Manager

ACTION CALENDAR July 24, 2012

To: Honorable Mayor and Members of the City Council

From: Zero Waste Commission

Submitted by: Nashua Kalil, Chair, Zero Waste Commission

Subject: Expanded Single-Use Bag Reduction Ordinance

RECOMMENDATION 1. Support and promote a 2-phase single-use bag reduction ordinance, in which:

Phase 1 is implementation of the Alameda County Waste Management Authority (Authority) single-use Bag Reduction Ordinance1 for “packaged food stores,” adopted by the Authority in January 2012 effective January 1, 2013; and

Phase 2 is expanding implementation to include all Berkeley retailers. The ZWC requests that Council direct the City Manager to prepare a plan of approach with the Public Works Director to implement Phase 2. This phase must include necessary environmental review, a defined outreach plan, and a clear administrative program that is provided with adequate funding and identified staff to support implementation with all Berkeley retailers. Implementation should also take into consideration staff resources dedicated to implementing Phase 1, as well as the massive undertaking to implement the Mandatory Recycling Ordinance (MRO) as of July 2012. With the need for funding and staff resources to be adequately met, the Commission anticipates Phase 2 could potentially be implemented in 2013 or 2014.

2. Immediately approve the issuance of a Request for Proposal (RFP) for a consultant to compile additional California Environmental Quality Act (CEQA) requirements, and select the consultant to expedite the supplemental Bag Reduction Ordinance process.

SUMMARY The ZWC supports a more comprehensive single-use bag reduction, supplementing the Alameda County Waste Management Authority’s ordinance with a Berkeley ordinance that extends the ban to all retail stores. The Commission’s recommended Phase 2 ordinance requires additional City staff and financial resources, and a plan submitted for review by the ZWC, with a projected implementation in 2013 or 2014.

1 See the Links list on last page of this report for full web addresses to documents.

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The Zero Waste Commission (ZWC) moved and approved this recommendation at its meeting on May 21, 2012 (M/S/C (Saborio/Halperin): Ayes: Kalil, Saborio, Halperin, Schultze-Allen; Noes: None; Abstain: None; Absent: Tam; Excused: Kirkpatrick, Bartlett).

FISCAL IMPACTS OF RECOMMENDATION Implementation of Phase 1 of the Countywide Bag Reduction Ordinance targeting packaged food retailers is provided by the Authority for outreach and enforcement, and City staff time will be needed for support, such as answering questions and bringing information to events. The Authority budgeted $273 per store in the first year and $105 per store the second year, including: outreach, in-store placards, and Authority staff time for implementation, program monitoring, and enforcement.2

Implementation of Phase 2 for City of Berkeley, the preliminary estimate, principally personnel expenditures, is $150,000 – $170,000 for outreach, support, and enforcement to the additional 619 retailers in the first year. This is based on the Authority’s estimate, and anticipating implementation of Phase 2 at the same standard as Phase 1. The cost estimate for the recommended Environmental Impact Report (EIR) consultant to prepare a notice of determination for additional CEQA requirements is $10,000.

The ZWC believes that the all-retail ordinance could be implemented to the Authority’s standard for less than the Authority’s estimate, but still requires additional funding and focused staff time that is not identified at this time.

CURRENT SITUATION AND ITS EFFECTS Each Alameda County jurisdiction has the option of adopting a supplemental bag ordinance affecting all retailers, so long as it’s “at least as stringent” as the Authority’s. The Authority has stated that any city adopting a bag ban with wider retail coverage, such as recommended in Phase 2, would be responsible for the expense of outreach, materials, and enforcement at the additional retail stores. In Berkeley, Phase 1 (the Authority’s ordinance) covers 90 packaged food stores; and the Phase 2 expanded all-retail bag ordinance covers a total of 709 stores, and excludes restaurants.

On January 31, 2012, Council referred a recommendation3 to “expedite single-use Plastic Bag Ban/Paper Bag fee ordinance” to the City Manager and ZWC, and the Commission reviewed the recommendation at its March 26, 2012 meeting. With the need for an additional environmental review, and to complete the process to coincide with the effective date of Phase 1, the Authority’s ordinance, on January 1, 2013, the ZWC initiated an analysis of how Phase 2 could be successfully accomplished. Public Works Solid Waste staff reviewed the legal process for adoption of an all-retail bag ordinance with the City Attorney, Planning Department, County Waste Authority, and original EIR authors (David J. Powers & Associates), with the conclusion that Berkeley

2 Information from Los Angeles, and Santa Monica: 1.5 FTE and $160,000 for print, media, mailing outreach, and $125,000 for enforcement to implement the ban at 1,900 stores. The City of San Jose budgeted $150,000 for outreach to 5,000 stores, unknown staff expense. 3 See the Links list on last page of this report for full web addresses to documents.

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can utilize the Authority’s EIR for an expanded ordinance. The next steps require preparing findings per CEQA guidelines, certifying the EIR for our specific project.

The Commission identifies lack of financial support and other competing demands on staff as the main barriers to advancing zero waste efforts, including Phase 2 of the Bag Reduction Ordinance. The Commission’s assessment is that it’s currently not possible for staff to complete requirements in time for Council to adopt the Phase 2 “all-retail bag ban” ordinance by January 2013. Despite constraints, the ZWC requests that Council direct the City Manager to prepare a plan of approach with the Public Works Director, clarifying a complete budget and how resources could be obtained and deployed, including: first identifying program needs, then staff resources, and finally, necessary funds; in addition to immediate approval for a RFP and selection of a consultant to complete the additional CEQA requirements. During the EIR preparation and approval, the ZWC would work with Economic Development staff to facilitate outreach to merchants and business associations in advance of Phase 2.

The ZWC reviewed the process issues and feels strongly that the program has the best chance of success if it is provided proper funding and staff support. If adequate funding and staff are not available, the ZWC recommends that Council wait for the Authority’s first year review before moving forward with Phase 2. Once a scope, schedule, and budget is defined by the City Manager and Public Works Director, we will together understand how to move forward with Phase 2 and whether the Authority can support those efforts. Meanwhile, partnership with the business community can be advanced so the entire effort is a success.

BACKGROUND Single-use plastic bags contribute to numerous environmental problems, and many cities have banned their distribution and placed a fee on paper bags in order to shift consumers to reusable bags. Berkeley prepared a similar draft bag reduction ordinance in 2009 using a Negative Declaration, but was threatened with a lawsuit if we proceeded without an EIR. The Authority agreed to pay for an EIR that would cover all Alameda County cities, successfully worked to achieve uniform adoption of its bag ordinance by all 16 jurisdictions, and has agreed to consider expanding the countywide ordinance to cover more retailers after the first year of implementation. Berkeley is the sole Alameda County jurisdiction proposing an all-retail supplementary ordinance at this time.

The 2009 draft ordinance was initiated by an April 2007 Council referral of a study item to the ZWC to analyze and advance a plastic bag ban ordinance in Berkeley. The Commission formed a subcommittee, studied legal issues, met with the business community, Economic Development staff, and other City commissions, and drafted an ordinance banning non-reusable plastic bags, with few exceptions, and placing a fee on paper bags to minimize their environmental impacts, exempting WIC clients. These efforts identified Berkeley’s desired policy framework, proposing a 2-phase approach, with large retailers affected in Phase 1, and a 6-month phase-in of all other retailers to

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follow as Phase 2; and advanced the draft ordinance for environmental review with a Negative Declaration process.

Subsequent to Berkeley’s 2009 public meeting for adoption of a Negative Declaration to advance the draft ordinance, and in light of numerous lawsuits brought against California cities advancing plastic bag bans at the municipal level, the Authority determined it was necessary to prepare a countywide EIR for an ordinance that, like Berkeley’s draft, bans the distribution of single-use plastic check-out bags and provides for a fee on paper bags distributed at retail stores to encourage the use of reusable bags. The Authority’s EIR was broadly developed to allow for coverage of all retail establishments in the County.

Upon review, the Authority determined the countywide ordinance would only target packaged food stores, defined as retailers that sell perishable foods or have refrigeration. These stores are believed to be the primary generators of single-use plastic bags and focusing on them was considered to be the most productive means to meet environmental goals. Each jurisdiction within Alameda County was provided an opportunity to opt out of the countywide bag ordinance by March 2, 2012. The ordinance passed unanimously. Berkeley joins the other Alameda County cities and unincorporated areas in the Bag Reduction ordinance that takes effect January 2013.

RATIONALE FOR RECOMMENDATION Berkeley is a leader in the effort to create an ordinance that eliminates plastic bags to reduce their detrimental effect on the environment. The City’s 2009 draft ordinance provides the blueprint for moving forward, the Authority’s ordinance provides for Phase 1 of implementation, and the ZWC supports moving forward with Phase 2 in a timely and efficient manner.

The Commission recognizes that implementation must take into consideration the constrained Refuse Fund budget and demands on Solid Waste staff to implement other programs, including the Mandatory Recycling Ordinance (MRO), which was adopted by the Authority concurrently with the Single-Use Bag Reduction Ordinance. Staff time, EIR consultant costs, additional outreach, necessary materials, and enforcement costs to implement an effective and fair all-retail bag reduction ordinance are desirable. Staff reductions in recent years, and preparation to implement both the MRO and Phase 1 Bag Reduction Ordinance greatly impact the ability to complete these additional tasks. In order to proceed, adequate resources must be identified by the City Manager and Public Works Director, with ZWC support and review.

ALTERNATIVE ACTIONS CONSIDERED The ZWC unanimously agrees that all plastic bags should be banned in Berkeley; the alternatives discussed involved time and resources for phasing-in those retailers not addressed and supported by the Authority’s ordinance and implementation budget. Alternatives considered were:

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Follow the Authority’s plan and review Phase 1 after a full year of implementation. The Authority has indicated it may support a countywide all-retail bag ordinance with resources necessary for implementation after that first year.

Encourage voluntary adoption by all other Berkeley retailers, with support by Economic Development, as a means to supporting the Climate Action Plan.

CITY MANAGER See companion City Manager Report

CONTACT PERSON Nashua Kalil, Chair, Zero Waste Commission Andy Schneider, Recycling Program Manager, Public Works, 510-981-6357

Attachments: 1. Reusable Bag Council Communication July 17, 2007 2. Bag Reduction Ordinance Information Report January 25, 2011

Links: Alameda County Waste Management Authority Single-Use Bag Reduction Ordinance: www.stopwaste.org/docs/ordinance_2012-2_single_use_bag_-_executed.pdf

January 31, 2012 Council referral to “expedite single-use Plastic Bag Ban/Paper Bag fee ordinance:” www.cityofberkeley.info/uploadedFiles/Clerk/Level_3_-_City_Council/2012/01Jan/Item%2025.pdf