Green Packaging Working Group — Portland, ME
Date: 2013-07-16

CITY OF PORTLAND, MAINE
 Agenda

 Green Packaging Working Group Task Force

DATE: 7/16/2013
TIME: 5:00 PM
LOCATION: Portland City Hall
 Room 24
 AGENDA
1. Approval of Minutes of May 6th and June 25th Meeting
2. Discussion of bag use fees
3. Discussion of further meeting dates
4. Adjourn
Green Packaging Working Group
May 6, 2013

In attendance: Troy Moon, Portland Public Services; Jennifer Thompson, Corporation
Counsel’s Office; Michele Brooks, Portland citizen; Alexandra Fields, Environment
Maine; Ron Adams, Portland Public Schools; Ed Suslovic, Chairperson; Ted Koffman,
Maine Audubon Society; Martin Fisher, Serlin Haley; Danny Bouzianis, Dunkin Donuts;
Richard Grotton, Maine Restaurant Association; Deb Hart, Retail Association of Maine;
Shelley Doak, Maine Grocers Association; Steve Rosario, American Chemistry Council;
John Morin, ecomaine; Cathy Ramsdell, Friends of Casco Bay; Matthew Faulkner,
Surfrider; Sally Trice, Portland citizen
17:08

 The meeting of the Green Packaging Working Group opened at 5:08 p.m. in
Room 24 of Portland City Hall on May 6, 2013.

1. Approval of Minutes

 Steve Rosario of the American Chemistry Council had several changes to the
minutes of April 8th. On page two, he clarified that he did not state that he said
“…polystyrene is not the only environmentally damaging substance….” instead he said
that “all substances in use in foodware have issues.” He also asked that the minutes
reflect that on page four John Morin of ecomaine stated that ecomaine does recycle paper
cups. Lastly, Mr. Rosario asked that the minutes reflect that he had issues that he had
wanted to raise during the previous meeting, but did not have an opportunity to do so at
the end of the meeting.

 Martin Fisher of Dart Packaging raised the issue of a list of exemptions he had
submitted, Chairman Suslovic said that his list and any other proposed amendments
would be considered during this evening’s deliberations.

 The minutes were approved as amended.

2. Review and Final Discussion of Draft Polystyrene Ordinance

 Jennifer Thompson of the City’s Corporation Counsel Office explained the
proposed polystyrene ordinance in detail, beginning with the findings and purposes
section. Mr. Rosario reiterated that it was his opinion, as one who had worked in the
industry for 22 years, that there were factual errors in the findings section. Ms. Thompson
continued the explanation, including the staff-added language regarding the definitions
and exemptions.

 Chairman Suslovic asked for any clarifying questions from the committee.
Hearing none, he asked for a motion. Ted Koffman of Maine Audubon moved to accept
the ordinance as written; Cathy Ramsdell of the Friends of Casco Bay seconded the
motion.

 1
Discussion:

 Mr. Fisher introduced the list of amendments he prepared, noting that all but one
had been taken from the materials that had been submitted to the task force. He asked that
the task force take up and move each amendment separately.

 Mr. Fisher moved an amendment, taken from Freeport’s ordinance, to make the
City’s ordinance null and void if an effective polystyrene recycling program was
implemented. Mr. Rosario seconded the motion.

 Chairman Suslovic asked about definition of recycling, if it was “bringing it to”
Riverside or single sort curbside. Mr. Fisher clarified that his definition gave the City the
flexibility to decide. Mr. Koffman asked who decided what an “effective recycling
program” was. Mr. Fisher responded the City was. Michele Brooks of Portland asked if
the full decision was unquestionably up to the city. Mr. Fisher answered that the City had
to give it its stamp of approval. Ms. Brooks made an amendment, agreed to by Mr.
Fisher, that language be added clarifying that any effective recycling program required
City approval. Mr. Rosario asked that no specific business be named as the administrator
of any recycling program. Matthew Faulkner of Surfrider asked that any recycling
program have a reuse component to it. Deb Hart of the Retail Association of Maine noted
that new technology emerges constantly, and further definition within the ordinance
could hamstring the city. Mr. Faulkner reiterated that any recycling program should have
a reuse component. The vote was taken, and the motion carried 11-3.

 Mr. Fisher moved that the City draw up a list of suitable, affordable
biodegradable alternatives for retail and restaurant establishments to use, to be drawn up
by the Environmental Services Manager of the City of Portland. Richard Grotton of the
Maine Restaurant Association seconded the motion.

 Mr. Koffman suggested the City could make such a list available without
codifying it in an ordinance. Mr. Fisher said the inclusion of a list was as an educational
tool and wasn’t meant to be restrictive. Chairman Suslovic noted that new technology
changes day by day, and that it wasn’t the role of the City to determine what technology
was best. Mr. Rosario said that the larger retail food vendors have the resources to do the
research for themselves, but smaller establishments may not. In that light, having a list of
resources would be very valuable. The vote was taken, and the motion failed 6-8.

 Mr. Fisher moved an amendment stating that if the Maine Legislature votes to ban
polystyrene statewide, Portland’s ordinance would be null and void. He explained that
this would prevent “quilt-patching” and the requirement that packaging companies keep
track of many different laws and ordinances within the state. Shelley Doak of the Maine
Grocers Association seconded the motion. Ms. Brooks asked if he was referencing
federal law, and made an amendment, accepted by Mr. Fisher, to change Massachusetts
to Maine. Chairman Suslovic noted Portland’s stringent smoking ban and asked what
would happen if Portland’s polystyrene ordinance exceeded state requirements. Ms.

 2
Brooks said she thought Portland’s ordinance would stand. Ms. Thompson asked what
would happen if the legislature passed a polystyrene ban, then repealed it some time later.
Mr. Fisher answered that he didn’t want a quilt patch and suggested adding “while a
substantially similar Maine law is in existence, the Portland law is superseded.” The vote
was taken, and the motion passed unanimously.

 Mr. Fisher moved to add an in-store recycling exemption, explaining that if a
store offers recycling options for polystyrene, it should be allowed to sell it. Ms. Doak
seconded the motion.

 Mr. Faulkner asked what the definition of recycling would be. Chairman Suslovic
answered that Portland partly owns ecomaine and can dictate what recycling is. Mr.
Faulkner expressed concern that there were several different recycling practices the city
doesn’t have control over. Mr. Fisher answered that he added this amendment in the
interest of education and personal responsibility. He noted that in-store recycling costs
the store and gives them an incentive to recycle. Chairman Suslovic reiterated that
recycling has to be convenient in order to be effective, as proved by recycling rates. He
said that, in general, customers use polystyrene containers for takeout as opposed to
eating on-premises, and it is unlikely customers will return their containers to the store
they bought them from. Sally Trice of Portland agreed with him and added that
polystyrene containers will still wind up in the trash bag or on the street. Ms. Brooks
agreed that the idea that someone is going to bring it back is not logical. She also noted
that a bin labeled “recycling” does not mean that the contents will in fact be recycled. Mr.
Fisher added an amendment that the in-store recycling program must be approved by the
city in order to be exempted from the ordinance. Mr. Rosario suggested other recyclers
should be allowed with the in-store program, as opposed to limiting establishments to
ecomaine. Chairman Suslovic said if the City finds an effective polystyrene recycling
program, the whole ordinance is moot anyway. Mr. Fisher added that this amendment has
the capacity to create a market for recycling. Ms. Brooks asked if there were examples of
this exemption in any other ordinance. Mr. Fisher answered that he had crafted this one
independently of other ordinances. The vote was taken; the motion failed 5-9 with one
abstention.

 There were no other amendments.

3. Vote on Final Draft Ordinance

 Mr. Fisher asked if there would be an opportunity for a minority report. Chairman
Suslovic said there would be.

 The vote was taken on the full draft ordinance. The motion passed as amended, 9-
6.

 Chairman Suslovic asked that those who had an interest in compiling a minority
report nominate one person to work with Troy Moon of Portland Public Services. Mr.
Fisher said he would, and asked how long the minority committee has to submit the

 3
report. Mr. Moon noted that it would probably be needed by May 31 to be submitted to
the Transportation, Sustainability and Energy Committee for placement on the earliest
agenda possible. Chairman Suslovic said he hoped the ordinance could be placed on the
TSE agenda for June 19th. Mr. Fisher asked when Ms. Thompson could get the final draft
of the proposed ordinance. Mr. Moon suggested we could distribute the ordinance
language on May 17th. Chairman Suslovic reminded everyone that all dates are tentative.

4. Plastic bags discussion

 Chairman Suslovic introduced the topic of plastic bags and what, if anything, the
task force can do about them. He called on Joshua Dow, a student at Casco Bay High
School, who had prepared a presentation on plastic bags and how to dispose of them. Mr.
Dow proposed a plastic bag return similar to the bottle return program, in which
participants would get a certain amount of change for each plastic bag. In addition to the
environmental benefits, such a system would give citizens in financial difficulties a
method of earning money. Mr. Dow noted that it took one thousand years for a plastic
bag to degrade, and added that plastic bag litter was a monumental worldwide problem.

 Mr. Koffman asked if Mr. Dow had looked into biodegradable bags. Mr. Dow
responded that there were vegetable oil-based plastic bags that were 92% decomposable.
He also mentioned the reusable/recyclable bags that Shaws and Hannaford offered to
their customers. Ms. Brooks asked if he had considered bans as a solution. Mr. Dow said
there had been attempts at bans, but the plastics industry had brought suits against
municipalities that had passed ordinances banning plastic bags. Chairman Suslovic
thanked Mr. Dow for opening his eyes to different ideas like the returnable idea as
opposed to an outright ban.

 Chairman Suslovic asked some questions to get the conversation going. He noted
that any tax a municipality enforces must be passed by the state legislature. He also noted
that the percentage of people who bring their own bags to the grocery has increased to
roughly 50%. Mr. Faulkner noted that any charge would be a fee as opposed to a tax
because it is levied only on people who choose to use plastic bags. He said he had spoken
with Missy Lavie at ecomaine, who told him that plastic bags are collected and sold to a
broker, who will not tell them what’s done with them. Mr. Morin corrected him and said
plastic bags were likely not burned or landfilled because of the cost the brokers paid. Mr.
Faulkner noted that San Diego does not take plastic bags, even though they take
everything else and added that it costs the City of San Francisco $4000/ton to recycle
bags that costs $32/ton on the free market.

 Ms. Brooks asked what happened to bags that are collected by the supermarkets.
Ms. Doak said they were shipped out of state to be recycled. Mr. Rosario said that plastic
bags are a valuable market. He noted that plastic bags were used to manufacture plastic
lumber, as well as other recycled content. He noted that many jobs were created in the
manufacturing of plastic bags as well as in the recycling and reuse of them. He added he
recycles all manner of plastic film when he goes to his local grocery store, not only the
plastic grocery bags. Mr. Grotton asked what the discrepancy was between one person

 4
saying it’s not worth anything, another person saying it’s worth quite a lot. Mr. Morin
replied that it depends on the density and cleanliness of the post-consumer plastic. Ron
Adams of Portland Public Schools noted the school doesn’t use as many plastic bags. He
added that even though there are recycling opportunities, there are still lots of bags
around.

 Ms. Trice asked if there was a definition of “plastic bag” that the task force was
targeting. Chairman Suslovic agreed that was one of the first challenges facing the task
force. He said that the litter issue was significant, and the task force was looking at post-
consumer litter, from appearance to stormwater catch basins.

 Mr. Koffman said he had talked with was talking with Irish TD and businessman
Ruairi Quinn, who initially opposed the plastic bag tax, but eventually got on board and
says it works great as far as reducing litter on land and in the sea. Mr. Koffman suggested
incentives in addition to the ones the grocery stores were using. Chairman Suslovic noted
that the last time he was in Russia he had to pay for a plastic bag at a store, and used that
plastic bag for a month, over and over. Ms. Brooks said she liked the newspaper articles
provided by staff, and said the time was right to impose a fee for plastic grocery bags, as
opposed to Portland Press Herald newspaper delivery bags. Deb Hart of the Retail
Association of Maine asked if Ms. Brooks would define a grocery bag as one you’d get at
a convenience store, and Ms. Brooks said she would. Chairman Suslovic suggested
“retail” bag as a more appropriate term.

 Steve said grocers in Massachusetts have entered into an agreement with the state
Department of Environmental Protection to reduce the use of plastic bags. He also noted
that Ireland’s plastic bag manufacturing industry underwent a drastic downturn after the
ban there was passed. He urged the task force to take into account the economics of the
issue.

 Chairman Suslovic noted that the issue before the task force was litter caused by
plastic bags and its cost to the city. He said he liked the recycling programs that the
grocery stores had implemented, but he was concerned that too many bags escape that
system. Mr. Faulkner noted that plastic grocery bags have handles, as opposed to the
plastic bags one puts meat or veggies in. He suggested that the task force consider a ban
on paper bags as well. He noted that there are many cottage industries creating beautiful
and useful reusable cloth bags that could be composted after one is done.

 Ms. Doak said in 2009 a bag tax bill was introduced to the Maine legislature, and
through the committee process the same memorandum of understanding that
Massachusetts grocers used was adopted. The “Got Your Bags Maine” campaign was
designed to reduce the use of plastic grocery bags by 33%. The coalition was also trying
to collect data from retail stores to measure the reduction of plastic bag use. She said that
the aim of the Maine legislature was to help consumers and the packaging industry
understand the recycling and reuse of bags. She noted that plastic and paper bags are
made in the United States, while many reusable bags are made elsewhere.



 5
 Chairman Suslovic commended the efforts of the retail and grocers committee to
increase their education efforts, but the problem of plastic bag litter has not lessened. Mr.
Rosario said a ban is a simplistic answer to a complex question, and suggested that this is
a personal accountability question. Chairman Suslovic asked for everyone to come to the
next meeting with suggestions for abating the problem.

 Public comment was then taken on the issue.

 Chris O’Neil of the Greater Portland Chamber of Commerce asked the task force
to define the problem, its causes and look at many possible solutions. The Chamber asked
that the Portland recycling program be examined as part of the problem, specifically the
issue of open blue bins that allow recycling to become litter. He said the Portland
Chamber of Commerce would consider supporting legislation in Augusta taxing or
banning plastic bags statewide before considering a program that would make Portland an
outlier. He praised Mr. Dow’s idea of bag deposits.

5. Meeting dates

 Chairman Suslovic asked Staff to come up with dates for summer meetings. Mr.
Moon asked the task force for examples of solutions to the problem from other
communities. Chairman Suslovic asked the task force to think about any and all ways to
get plastic bags away from where they don’t belong. Ms. Hart asked if we had done a
citywide program regarding bags. Ms. Doak added that Portland could become the poster
child for consumer bag awareness.

 The meeting was adjourned at 6:48 pm.




 6
 DRAFT

Green Packaging Working Group
June 25, 2013

In attendance: John Morin, ecomaine; Shelley Doak, Maine Grocers Association;
Curtis Picard, Retail Association of Maine; Tyler Kidder, University of Southern
Maine; Avery Day, American Chemistry Council; Ed Suslovic, Portland City Council;
Troy Moon, Portland Public Services; Mary Pereira, Portland Public Services; Sally
Trice, Portland citizen; Matthew Faulkner, Surfrider; Michele Brooks, Portland
citizen


 The meeting of the Green Packaging Working Group opened at 5:07 p.m. in
Room 24 of Portland City Hall on June 25, 2013 with introductions of the task force
members. Ed Suslovic, the Chairman of the meeting, gave an update regarding the reports
submitted to the Transportation, Sustainability and Energy Committee on the polystyrene
ordinance. Action will be taken on the majority and minority reports at the TSE meeting
in July.

1. Review and Refine Objectives regarding Single Use Plastic Bags

 Chairman Suslovic began the meeting by explaining that the task force’s goal is to
examine the issue of plastic bags and explore the different options the City could take. He
also noted that, as some of the task force members were interested primarily in the
polystyrene issue, suggestions were being taken for additional members to be proposed to
the City Council.

2. Review summary of approaches used by other communities to manage plastic
bags

 Chairman Suslovic said he believed there was a consensus on the task force that
plastic bag litter is an issue. He noted that components of the issue include the number of
bags used, the ability to recycle the bags, the rate of degradation of bags that escape the
recycling system, and the issues that bags create in the stormwater system. He also noted
the articles provided that gave information about how other communities are dealing with
the litter issue. He then asked “where do we go from here?”

3. Discussion of next steps

 Matthew Faulkner of Surfrider Maine proposed offering an ordinance mandating
a fee on any single use bag. He said a fee would encourage bring citizens to bring their
own bags, but also allowed single use bags if they were wanted or needed. Michele
Brooks of Portland agreed, citing the New York Times article about the Irish experience,
but she said she wasn’t sure about includng paper bags. She said any fee would have to
be significant enough to change behaviour. Tyler Kidder of University of Southern Maine
agreed with the significant fee issue, suggesting something more than the 5 cents bottle
fee. Ms. Brooks noted the fee was 35 cents in Ireland. Mr. Faulkner suggested instituting


 1
 DRAFT

a graduated fee structure that increased yearly for a set number of years. He also strongly
urged committee to ban all single use bags. He said that the fee was capitalism at its best
because only those who valued the bags would pay the fee. Ms. Kidder asked what the
fee would be used for. Mr. Faulkner answered that in Washington DC it cleaned up the
Anacosta river, in Ireland it goes back to the retailer. Ms. Brooks noted that because a lot
of money is required to clean the stormwater drains because of plastic bags, the fee could
benefit the City. Mr. Faulkner stressed that any monetary charge wasn’t a tax, it was a fee
for use.

 Chairman Suslovic explained that, according to state law, municipalities cannot
impose taxes that have not been passed by the state legislature. He thought that use fees
should be ok. Curtis Picard of the Retail Association of Maine said that the Windham
town lawyer had had a different opinion regarding the difference between use fees and
taxes. He asked that the Windham lawyer’s letter be presented to the committee.

 Chairman Suslovic asked the committee whether a use fee should include all bags
or only plastic. He asked how much the fee should be. He asked how the fee would be
distributed. Ms. Brooks suggested that the fee be shared between the retailers and a clean
water fund that could be implemented. She noted that some sort of incentive for the
retailer to participate was important. Mr. Picard said retailers measure plastic by pound,
not by bag, which is an issue the the task force should talk about. He also noted that
controlling bags in the self-checkout lanes would be very difficult.

 Sally Trice of Portland asked about how the task force was going to deal with
produce bags and newspaper bags, and whether the task force could rationalise keeping
those but not grocery bags. Mr. Faulkner mentioned a website that has laws and
ordinances from around the world, and said most of them exempt produce bags. Ms.
Brooks suggested that a ban on produce bags might be too aggressive.

 Chairman Suslovic asked the retail members of the task force how reuseable bags
are viewed by retailers. Mr. Picard said they’re definitely on the rise in grocery stores.
They are not used in other retail stores as much. He also noted the rise in shoplifting in
connection with consumer-provided bags. He said he was not in favor of a fee on plastic
bags, but supported a program of consumer education. Ms. Brooks said she thought the
recycling rate of plastic bags seems to have stagnated, and questioned effectiveness of
additional educational programs. Mr. Faulkner added that voluntary programs don’t do
much, but a small fee commands compliance. He said that recycling should be the last
thing the task force focuses on, reducing and reusing should be primary.

 Chairman Suslovic asked if anyone was in favor of an outright ban. Ms. Trice said
she was in favour of one. Ms. Kidder said USM had banned plastic bags, but a college
campus was small scale. She said the people who would welcome a ban are not the ones
who need single use bags. She noted that the homeless carry their things around in them.
Ms. Trice said most grocers sell their reuseable bags for 99 cents, and they can be
washed, cutting out the sanitary argument.




 2
 DRAFT

 Chairman Suslovic clarified that the task force was to consider the issue of plastic
bags. He said unless he was overruled, he’d set a ban aside and look at other solutions.
Ms. Brooks said a ban wasn’t her first choice. She said she was interested in more ideas
from the industry about the changes occuring.

 Chairman Suslovic asked the retail members about the challenges for
implementing a fee for single use grocery and retail bags. He also asked specifically what
bags the task force was considering. Mr. Faulkner suggested that a way to slowly institute
the fee would be to first apply it to grocery bags, then dry cleaning, then retail. Chairman
Suslovic said that imposing fees by degrees could be regarded as very unfair by retailers.
Ms. Brooks asked the retail component of the task force what they thought of a bag fee.

 Mr. Picard said he didn’t think recycling had become stagnant. As an example, he
said Walmart has cut plastic bag use by 37.5 percent from 2007 and 2011 using several
different methods, including an educational component. He said he thought the real
problem was the litterers. Chairman Suslovic noted that the bottle bill increased recycling
and reduced litter by leaps and bounds. Tyler Kidder of University of Southern Maine
added that the combination of curbside recycling and pay-per-bag fees provided a
financial incentive to people to recycle.

 Shelley Doak of the Maine Grocers Association asked for clarification on whether
the discussion was addressing the stormwater issue or the litter issue. Ms. Kidder noted
that the issue with plastic bags is the fact that so many escape the system, even if they’re
initially disposed of in the right place. Chairman Suslovic asked what the disadvantage of
the fee would be on all retail and grocery establishments.

 John Morin of ecomaine said their recycling equipment is not really equipped to
handle the plastic bags. He said that some retailers put one item per bag, and that’s part of
the issue. Mr. Faulkner noted that the less plastic that’s made, the better off the planet is.
Ms. Brooks said that she doesn’t find paper bags as much of a litter problem as plastic
bags.

 Chairman Suslovic said that if he forgets a plastic bag he asks for paper, and he
thought paper was more environmentally damaging. Mr. Picard said paper bags have a
larger carbon footprint. Ms. Doak said that she is opposed to a fee, in favor of better
education of consumers. She said the retailers view all bags as reuseable.

 Chairman Suslovic asked how long plastic bag reycling bins had been in use in
stores, Mr. Picard replied that they began appearing in the early 90s. Ms Kidder noted
that plastic bag recycling is still only at 15 percent. Chairman Suslovic said he thought
that system had gone as far as possible. Ms. Doak responded the task force had a great
opportunity to educate the public on recycling. She added that there were some
unintended consequences of bag fees on the less fortunate and the elderly, such as
carrying bags with heavier loads and purchasing bags on a limited budget. Chairman
Suslovic replied that cost of an item makes a person stop and think whether they really
need it. Ms. Trice thought a ban and an educational component didn’t cancel one another



 3
 DRAFT

out. She noted that Trader Joe’s and Whole Foods give a credit for consumer-supplied
bags, and there didn’t seem to be a difficulty.

 Chairman Suslovic asked the merchant associations to see how much it would
cost a retailer per bag in the case of a single use bag fee. Mr. Picard said some people
would see a fee as adding to a company’s profits, creating controvesy for the retailers. He
also said that the fee creates an issue when it comes to credit and debit cards, as 3 percent
of every purchase, regardless of what is being purchased, goes to MasterCard and Visa.

 Ms. Brooks pointed out that her elderly mother wouldn’t take plastic bags because
the handles hurt her hands. Ms. Trice said she’d like to see a representative from Trader
Joe’s or Whole Foods at the next meeting to discuss the possible bag fee impact on them.

 Chairman Suslovic said he’s never bought a reuseable bag, he just acquires them.

 Ms. Brooks cited the New York Times article, noting that the plastic bag issue
becaume a non-issue in Ireland.

 Chairman Suslovic asked Chris O’Neill of Greater Portland Chamber of
Commerce to comment on his organisation’s stance on the single use bag issue in light of
their general advice that “Portland’s doesn’t always have to be different,” noting that he
thought the state would follow the city’s lead. Mr. Faulkner said he believed that when a
city in Rhode Island was working through the single-use bag issue at the point Portland is
now, Shaws said they would provide plastic bags only when asked for them by a
consumer.

 Chairman Suslovic suggested the committee should focus on the pros and cons of
a user fee. Should it be on plastic bags only or all single use bags? If a fee is charged,
should it be profit for the store, go to City as part of a stormwater fund or be incorporated
into the general fund, or perhaps some sort of split between the retailer and the City? He
asked the committee to give thought to the definitional issue of “what is a plastic bag” to
give greater clarity to what the fee applies to. He asked the retailers about the
effects/opinions of a fee. Ms. Doak said that she would provide some clarification on
what retailers are currently doing and what is happening in the state for recycling
progress.

 Troy Moon of Public Services said the task force needs clarification from the
City’s Corporation Counsel’s office on whether the City can institue a fee. Avery Day of
the American Chemistry Council said he understood that the fee had to be tied to a
specific cost. Councilor Suslovic said once the task force has information about
instituting a fee, then it will get into the specifics and the practicalities of doing so. Mr.
Faulkner suggested another process might be to have retailers use the specific cost of
their bags to base the fee on. Ms. Trice noted that Save A Lot charges for bags.

 Mr. Day asked if bags would be covered under EBT if a bag needed to be
purchased.



 4
 DRAFT

 Chris O’Neill said he needs more information before he can convey a position of
the Chamber. He asked the task force to quantify the problem, such as the paper versus
plastic costs. Until he has that, he really can’t ask the Chamber membership what their
opinion is. He’d rather see the Chamber respond using facts rather than opinions.
Chairman Suslovic asked if the Chamber could bring in some retailers to discuss the issue
in Portland, and the position of Chambers in communities that a ban is already in place.

 Chairman Suslovic mentioned the next meeting on July 16, and asked the
committee to start thinking about who they’d like to hear from on the issue pending the
Corporation Counsel’s opinion on whether a fee is legal under Maine law, and also asked
the retailers what they think is working with the current system and what is not working.
He reminded members of the request for formal suggestions for additions to task force

 The meeting adjourned at 6:20 p.m.




 5
 ORDINANCE NO. 7870

 AN ORDINANCE ESTABLISHING A NEW CHAPTER 6-15,
 “DISPOSABLE BAG FEE,” B.R.C. 1981, AND SETTING
 FORTH RELATED DETAILS.



 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BOULDER,

COLORADO:

 Section 1. A new Chapter 6-15, “Disposable Bag Fee,” B.R.C. 1981 is added as follows:

 Title 6 Health, Safety and Sanitation

 Chapter 6-15 Disposable Bag Fee
6-15-1
(a) Purpose: It is the purpose of this chapter to protect the public health and safety and
 implement the city's Climate Action Plan, Zero Waste Master Plan and the Boulder
 Valley Comprehensive Plan.
(b) Findings: The City Council finds as follows:
 (1) The city, through its policies, programs, and laws, supports efforts to reduce the
 amount of waste that must be land-filled and pursue “zero waste” as a long term
 goal by emphasizing waste prevention efforts;
 (2) That the use of single-use disposable bags has severe impacts on the environment
 on a local and global scale, including greenhouse gas emissions, litter, harm to
 wildlife, atmospheric acidification, water consumption and solid waste
 generation;
 (3) Despite recycling and voluntary solutions to control pollution from disposable
 carryout bags, many disposable single-use bags ultimately are disposed of in
 landfills, litter the environment, block storm drains and endanger wildlife;
 (4) Boulder consumers use approximately 14.3 million disposable bags from food
 stores each year; and
 (5) The city’s taxpayers bear the costs associated with the effects of disposable bags
 on the solid waste stream, drainage, litter and wildlife.
(c) Intent: The disposable bag fee is necessary to address the environmental problems
 associated with disposable bags and to relieve city taxpayers of the costs imposed upon
 the city associated with the use of disposable bags. The City Council intends that the
 requirements of this chapter will assist in offsetting the costs associated with using
 disposable bags to pay for the mitigation, educational, replacement, and administrative
 efforts of the city.




Packet page number 45
6-15-2 Definitions.
The following terms used in this chapter have the following meanings unless the context clearly
indicates otherwise:

“Disposable Bag” means a bag that is not a Reusable Bag.

“Disposable Bag” does not include:

  (a) Bags used by consumers inside stores to:
 (1) Package bulk items, such as fruit, vegetables, nuts, grains, candy or small
 hardware items;
 (2) Contain or wrap frozen foods, meat, or fish;
 (3) Contain or wrap flowers, potted plants, or other items where dampness may be a
 problem;
 (4) Contain unwrapped prepared foods or bakery goods; or
 (5) A non-handled bag used to protect a purchased item from damaging or
 contaminating other purchased items when placed in a recyclable paper bag or
 reusable bag.
  (b) Bags provided by pharmacists to contain prescription drugs.

  (c) Newspaper bags, door-hanger bags, laundry-dry cleaning bags, or bags sold in packages
 containing multiple bags for uses such as food storage, garbage, pet waste, or yard waste
 bags.

“Food Store” means a retail establishment or business located within Boulder city limits in a
permanent building, operating year round, that is a full-line, self-service market and which sells a
line of staple foodstuffs, meats, produce or dairy products or other perishable items.

“Food Store” does not include:

  (a) Temporary vending establishment for fruits, vegetables, packaged meats and dairy;
  (b) Vendors at farmer’s markets or other temporary events;
  (c) Businesses at which foodstuffs are an incidental part of the business. Food sales will be
 considered to be “incidental” if such sales comprise no more than 2 percent of the
 business’s gross sales in the city as measured by the dollar value of food sales as a
 percentage of the dollar value of total sales at any single location.

“Recycled Paper Bag” means a paper bag that is 100 percent recyclable and contains at least 40
percent post-consumer recycled content.

“Reusable Bag” means a bag that is:

  (a) Designed and manufactured to withstand repeated uses over a period of time;


Packet page number 46
  (b) Is made from a material that can be cleaned and disinfected regularly;
  (c) That is at least 2.25 mil thick if made from plastic;
  (d) Has a minimum lifetime of 75 uses; and
  (e) Has the capability of carrying a minimum of 18 pounds.

“Disposable Bag Fee” means a city fee imposed and required to be paid by each consumer
making a purchase from a Food Store for each Disposable Bag used during the purchase assessed
for the purpose of mitigating the impacts of Disposable Bags.

6-15-3 Disposable Bag Fee Requirements.

(a) For each Disposable Bag provided to a customer, Food Stores shall collect from
 customers, and customers shall pay, at the time of purchase, a Disposable Bag Fee of
 $0.10.

(b) Food Stores shall record the number of Disposable Bags provided and the total amount of
 Disposable Bag Fees charged on the customer transaction receipt.

(c) A Food Store shall not refund to the customer any part of the Disposable Bag Fee, nor
 shall the Food Store advertise or state to customers that any part of the Disposable Bag
 Fee will be refunded to the customer.

(d) A Food Store shall not exempt any customer from any part of the Disposable Bag Fee for
 any reason except as stated in section 6-15-7, “Exemptions,” B.R.C. 1981.

6-15-4 Retention, Remittance, and Transfer of the Disposable Bag Fee.

(a) A Food Store may retain 40 percent of each Disposable Bag Fee collected, which is the
 “Retained Percent.”

(b) The Retained Percent may only be used by the Food Store to:

 (1) Provide educational information about the Disposable Bag Fee to customers;
 (2) Provide the signage required by section 6-15-5, “Required Signage for Food
 Stores,” B.R.C. 1981;
 (3) Train staff in the implementation and administration of the fee;
 (4) Improve or alter infrastructure to allow for the implementation, collection,
 administration of the fee;
 (5) Collect, account for and remit the fee to the city;
 (6) Develop and display informational signage to inform consumers about the fee,
 encourage the use of reusable bags or promote recycling of plastic bags; and
 (7) Improve infrastructure to increase plastic bag recycling.



Packet page number 47
(c) The Retained Percent shall not be classified as revenue for the purposes of calculating
 sales tax.

(d) The amount of the Disposable Bag Fee collected by a Food Store in excess of the
 Retained Percent shall be paid to the city and shall be used only as set forth in subsection
 (g) to mitigate the effects of Disposable Bags in Boulder.

(e) A Food Store shall pay and the city shall collect all Disposable Bag Fees. The city shall
 provide the necessary forms for Food Stores to file with the city, to demonstrate
 compliance with the provisions of this ordinance.

 (1) If payment of any amount to the city is not received on or before the applicable
 due date, penalty and interest charges shall be added to the amount due as
 described in section 6-15-8, “Audits and Violations,” B.R.C. 1981.

(f) The Disposable Bag Fee shall be administered by the city manager. The city manager is
 authorized to adopt interpretive rules pursuant to chapter 1-4, “Rulemaking,” B.R.C.
 1981, to implement this chapter, prescribe forms and provide methods of payment and
 collection and otherwise implement requirements of this chapter.

(g) Funds from the Disposable Bag Fee shall be used only for the expenditures that are
 intended to mitigate the effects of Disposable Bags, including without limitation the
 following:

 (1) Administrative costs associated with developing and implementing the Disposable
 Bag Fee.

 (2) Activities of the city to:

 (A) Provide reusable carryout bags to residents and visitors;
 (B) Educate residents, businesses, and visitors about the impact of Disposable
 Bags on the city’s environmental health, the importance of reducing the
 number of single-use carryout bags entering the waste stream, and the
 expenses associated with mitigating the affects of single-use bags on the
 city’s drainage system, transportation system, wildlife and environment;
 (C) Fund programs and infrastructure that allow the Boulder community to
 reduce waste associated with Disposable Bags;
 (D) Purchase and install equipment designed to minimize bag pollution,
 including, recycling containers, and waste receptacles associated with
 Disposable Bags;
 (E) Fund community cleanup events and other activities that reduce trash
 associated with Disposable Bags;
 (F) Mitigate the effects of Disposable Bags on the city’s drainage system,
 transportation system, wildlife and environment;



Packet page number 48
 (G) Maintain a public website that educates residents on the progress of waste
 reduction efforts associated with Disposable Bags; and
 (H) Fund the administration of the Disposable Bag Fee program.

(h) No Disposable Bag Fees collected in accordance with this ordinance shall be used only
 for general government purposes.

(i) Disposable Bag Fees collected in accordance with this chapter shall be continually
 available for the uses and purposes set forth in subsection (g) of this section without
 regard to fiscal year limitation. No Disposable Bag Fee funds shall be used for any
 purpose not authorized in this chapter.

6-15-5 Required Signage for Food Stores.

Every Food Store subject to the collection of the Disposable Bag Fee shall display a sign in a
location outside or inside of the business, viewable by customers, alerting customers to the city
of Boulder’s Disposable Bag Fee.

6-15-6 Requirement for Disposable Paper Bags.

No Food Store shall provide any paper bag that is not a Recycled Paper Bag.

6-15-7 Exemptions.

A Food Store may provide a Disposable Bag to a customer at no charge if the customer provides
evidence that he or she is a participant in a federal or state Food Assistance Program.

6-15-8 Audits and Violations.

(a) Each Food Store licensed pursuant to the provisions of this chapter shall maintain
 accurate and complete records of the Disposable Bag Fees collected, the number of
 Disposable Bags provided to customers, the form and recipients of any notice required
 pursuant to this chapter, and any underlying records, including any books, accounts,
 invoices, or other records necessary to verify the accuracy and completeness of such
 records. It shall be the duty of each Food Store to keep and preserve all such documents
 and records, including any electronic information, for a period of three years from the end
 of the calendar year of such records.

(b) If requested, each Food Store shall make its records available for audit by the city
 manager during regular business hours for the city to verify compliance with the
 provisions of this chapter. All such information shall be treated as confidential
 commercial documents.

(c) If any person fails, neglects, or refuses to collect the Disposable Bag Fee, or underpays
 the Disposable Bag Fee, the city manager shall make an estimate of the fees due, based
 on available information, and shall add thereto penalties, interest, and any additions to the


Packet page number 49
 fees. The manager shall serve upon the delinquent Food Store personally, by electronic
 mail or by first class mail directed to the last address of the Food Store on file with the
 city, written notice of such estimated fees, penalties, and interest, constituting a Notice of
 Final Determination, Assessment, and Demand for Payment, (also referred to as “Notice
 of Final Determination”) due and payable within 20 calendar days after the date of the
 notice. The Food Store may request a hearing on the assessment as provided in section 6-
 15-9, “Hearings,” B.R.C. 1981.

(d) If payment of any amount of the Disposable Bag Fee to the city is not received on or
 before the applicable due date, penalty and interest charges shall be added to the amount
 due in the amount of:

 (1) A penalty of ten percent of total due;
 (2) Interest charge of one percent of total penalty per month.

6-15-9 Hearings.
(a) A Food Store may request a hearing on any proposed fee imposed under this title after
 receiving a Notice of Final Determination, by filing a written request for hearing within
 20 calendar days of the date of mailing of the Notice of Final Determination. The request
 for hearing shall set forth the reasons for and amount of changes in the Notice of Final
 Determination that the Food Store seeks and such other information as the manager may
 prescribe.
(b) The city manager shall conduct the hearing under the procedures prescribed by chapter 1-
 3, "Quasi-Judicial Hearings," B.R.C. 1981, except that the manager shall notify the Food
 Store in writing of the time and place of the hearing at least ten days before it is
 scheduled, unless the Food Store agrees to a shorter time. The hearing shall be held
 within 60 days of the date of receipt of the request for a hearing, unless the Food Store
 agrees to a later date.

6-15-10 Criminal Sanctions.
(a) The city attorney, acting on behalf of the people of the city, may prosecute any violation
 of this title in municipal court in the same manner that other municipal offenses are
 prosecuted.
(b) The maximum penalty for a first or second conviction within two years, based on date of
 violation of this section, is a fine of $500.00. For a third and each subsequent conviction
 within two years, based upon the date of the first violation, the general penalty provisions
 of section 5-2-4, "General Penalties," B.R.C. 1981, shall apply.

 Section 3. The provisions of this ordinance relating to the collection of the Disposable

Bag Fee and required store signage shall become effective July 1, 2013. All other provisions

shall be effective 30 days from the date of passage. The city manager shall develop and




Packet page number 50
implement the administrative and financial processes for the collection of the fee between the

effective date of this ordinance and June 30, 2013.

 Section 4. If any section, subsection, sentence, clause or phrase of this chapter is for

any reason held invalid or unconstitutional by the decision of any court of competent

jurisdiction, such decision shall not affect the validity of the remaining portions of this chapter.


 Section 5. This ordinance is necessary to protect the public health, safety, and welfare of

the residents of the city, and covers matters of local concern.


 Section 6. The City Council deems it appropriate that this ordinance be published by title

only and orders that copies of this ordinance be made available in the office of the city clerk for

public inspection and acquisition.

 INTRODUCED, READ ON FIRST READING, AND ORDERED PUBLISHED BY

TITLE ONLY this 2nd day of October, 2012



 Mayor

Attest:



City Clerk




Packet page number 51
 READ ON SECOND READING, AMENDED, ADOPTED, AND ORDERED

PUBLISHED BY TITLE ONLY this 16th day of October, 2012.



 Mayor

Attest:



City Clerk



 READ ON THIRD READING, AMENDED, ADOPTED, AND ORDERED

PUBLISHED BY TITLE ONLY this 1st day of November, 2012.



 Mayor

Attest:



City Clerk


 READ ON FOURTH READING, PASSED, ADOPTED, AND ORDERED

PUBLISHED BY TITLE ONLY this 15th day of November, 2012.



 Mayor

Attest:



City Clerk




Packet page number 52
 ANAL YSIS

 This ordinance amends Title 12 - Environmental Protection of the Los Angeles

County Code, by adding a Chapter regulating the use of plastic carryout bags and

recyclable paper carryout bags and promoting the use of reusable bags within the

County unincorporated area.

 Pursuant to this new Chapter, plastic carryout bags, as defined, may no longer

be distributed by affected stores and a 1 a-cent ($0.10) charge for recyclable paper

carryout bags distributed by those stores will apply.

 ANDREA SHERIDAN GRDIN
 County C unsel



 TRUC L. M RE
 Deputy County Counsel
 Public Works Division

TLM:ia

09/23/10 (Requested)

11/16/10 (Revised)




HOA.741373.1
 ORDINANCE NO.

 An ordinance amending Title 12 - Environmental Protection of the Los Angeles

County Code, relating to regulating the use of plastic carryout bags and recyclable

paper carryout bags and promoting the use of reusable bags within the County

unincorporated area.

 The Board of Supervisors of the County of Los Angeles ordains as follows:

 SECTION 1. Chapter 12.85 is hereby added to read as follows:

 12.85.010 Definitions.
 The following definitions apply to this Chapter:

 A. "Customer" means any person purchasing goods from a store.
 B. "Operator" means the person in control of, or having the responsibility for,

the operation of a store, which may include, but is not limited to, the owner of the store.

 C. "Person" means any natural person, firm, corporation, partnership, or

other organization or group however organized.

 D. "Plastic carryout bag" means any bag made predominantly of plastic

derived from either petroleum or a biologically-based source, such as corn or other plant

sources, which is provided to a customer at the point of sale. "Plastic carryout bag"

includes compostable and biodegradable bags but does not include reusable bags,

produce bags, or product bags.

 E. "Postconsumer recycled material" means a material that would otherwise
be destined for solid waste disposal, having completed its intended end use and product

life cycle. "Postconsumer recycled material" does not include materials and by-products



HOA.741373.1 2
generated from, and commonly reused within, an original manufacturing and fabrication

process.

 F. "Produce bag" or "product bag" means any bag without handles used

exclusively to carry produce, meats, or other food items to the point of sale inside a

store or to prevent such food items from coming into direct contact with other purchased

items.

 G. "Recyclable" means material that can be sorted, cleansed, and
reconstituted using available recycling collection programs for the purpose of using the

altered form in the manufacture of a new product. "Recycling" does not include burning,

incinerating, converting, or otherwise thermaUy destroying solid waste.

 H. "Recyclable paper carryout bag" means a paper bag that meets all of the
following requirements: (1) contains no old growth fiber, (2) is one hundred percent

(100%) recyclable overall and contains a minimum of forty percent (40%) post-

consumer recycled material; (3) is capable of composting, consistent with the timeline

and specifications of the American Society of Testing and Materials (ASTM) Standard

D6400; (4) is accepted for recycling in curbside programs in the County; (5) has printed

on the bag the name of the manufacturer, the location (country) where the bag was

manufactured, and the percentage of postconsumer recycled material used; and

(6) displays the word "Recyclable" in a highly visible manner on the outside of the bag.

 i. "Reusable bag" means a bag with handles that is specifically designed
and manufactured for multiple reuse and meets all of the following requirements:

(1) has a minimum lifetime of 125 uses, which for purposes of this subsection, means



HOA.741373.1 3
the capability of carrying a minimum of 22 pounds 125 times over a distance of at least

175 feet; (2) has a minimum volume of 15 liters; (3) is machine washable or is made

from a material that can be cleaned or disinfected; (4) does not contain lead, cadmium,

or any other heavy metal in toxic amounts, as defined by applicable state and federal

standards and regulations for packaging or reusable bags; (5) has printed on the bag, or

on a tag that is permanently affixed to the bag, the name of the manufacturer, the

location (country) where the bag was manufactured, a statement that the bag does not

contain lead, cadmium, or any other heavy metal in toxic amounts, and the percentage

of postconsumer recycled material used, if any; and (6) if made of plastic, is a minimum

of at least 2.25 mils thick.

 J. "Store" means any of the following retail establishments located within the

unincorporated area of the County:

 (1) A full-line, self-service retail store with gross annual sales of two

million dollars ($2,000,000), or more, that sells a line of dry grocery, canned goods, or

nonfood items and some perishable items;

 (2) A store of at least 10,000 square feet of retail space that generates

sales or use tax pursuant to the Bradley-Burns Uniform Local Sales and Use Tax Law

(Part 1.5 (commencing with Section 7200) of Division 2 of the Revenue and Taxation

Code) and that has a pharmacy licensed pursuant to Chapter 9 (commencing with

Section 4000) of Division 2 of the Business and Professions Code; or

 (3) A drug store, pharmacy, supermarket, grocery store, convenience

food store, food mart, or other entity engaged in the retail sale of a limited line of goods



HOA.741373.1 4
that includes milk, bread, soda, and snack foods, including those stores with a Type 20

or 21 license issued by the Department of Alcoholic Beverage Control.

 12.85.020 Plastic carrvout bags prohibited.

 A. No store shall provide to any customer a plastic carryout bag.
 B. This prohibition applies to bags provided for the purpose of carrying away


goods from the point of sale and does not apply to produce bags or product bags.

 12.85.030 Permitted bags.
 All stores shall provide or make available to a customer only recyclable paper

carryout bags or reusable bags for the purpose of carrying away goods or other

materials from the point of sale, subject to the terms of this Chapter. Nothing in this

Chapter prohibits customers from using bags of any type that they bring to the store

themselves or from carrying away goods that are not placed in a bag, in lieu of using

bags provided by the store.

 12.85.040 Regulation of recyclable paper carrvout bags.

 A. Any store that provides a recyclable paper carryout bag to a customer
must charge the customer 1 a cents ($0.10) for each bag provided, except as otherwise

provided in this Chapter.

 B. No store shall rebate or otherwise reimburse a customer any portion of the
1 a-cent ($0.10) charge required in Subsection A, except as otherwise provided in this

Chapter.

 C. All stores must indicate on the customer receipt the number of recyclable

paper carryout bags provided and the total amount charged for the bags.



HOA.741373.1 5
 D. All monies collected by a store under this Chapter wil be retained by the

store and may be used only for any of the following purposes: (1) costs associated with

complying with the requirements of this Chapter, (2) actual costs of providing recyclable

paper carryout bags, or (3) costs associated with a store's educational materials or

education campaign encouraging the use of reusable bags, if any.

 E. All stores must report to the Director of Public Works, on a quarterly basis,


the total number of recyclable paper carryout bags provided, the total amount of monies

collected for providing recyclable paper carryout bags, and a summary of any efforts a

store has undertaken to promote the use of reusable bags by customers in the prior

quarter. Such reporting must be done on a form prescribed by the Director of Public

Works, and must be signed by a responsible agent or officer of the store confirming that

the information provided on the form is accurate and complete. For the periods from

January 1 through March 31, April 1 through June 30, July 1 through September 30,

and October 1 through December 31, all quarterly reporting must be submitted no later

than 30 days after the end of each quarter.

 F. If the reporting required in Subsection E is not timely submitted by a store,

such store shall be subject to the fines set forth in Section 12.85.080.

 12.85.050 Use of reusable bags.
 A. All stores must provide reusable bags to customers, either for sale or at no
charge.

 B. Each store is strongly encouraged to educate its staff to promote reusable
bags and to post signs encouraging customers to use reusable bags.



HOA.741373.1 6
 12.85.060 Exempt customers.

 All stores must provide at the point of sale, free of charge, either reusable bags

or recyclable paper carryout bags or both, at the store's option, to any customer

participating either in the California Special Supplemental Food Program for Women,

Infants, and Children pursuant to Article 2 (commencing with Section 123275) of

Chapter 1 of Part 2 of Division 106 of the Health and Safety Code or in the

Supplemental Food Program pursuant to Chapter 10 (commencing with Section 15500)

of Part 3 of Division 9 of the Welfare and Institutions Code.

 12.85.070 Operative date.
 This Chapter shall become operative on July 1, 2011, for stores defined in

Subsections J(1) and J(2) of Section 12.85.010. For stores defined in Subsection J(3)

of Section 12.85.010, this Chapter shall become operative on January 1, 2012.

 12.85.080 Enforcement and violation-penalty.

 A. The Director of Public Works has primary responsibility for enforcement of
 /

this Chapter. The Director of Public Works is authorized to promulgate regulations and

to take any and all other actions reasonable and necessary to enforce this Chapter,

including, but not limited to, investigating violations, issuing fines and entering the

premises of any store during business hours. The Director of the Department of

Agricultural Commissioner/Weights and Measures and the Director of Public Health

may assist with this enforcement responsibilty by entering the premises of a store as

part of their regular inspection functions and reporting any alleged violations to the

Director of Public Works.



HOA.741373.1 7
 B. If the Director of Public Works determines that a violation of this Chapter


has occurred, he/she will issue a written warning notice to the operator of a store that a

violation has occurred and the potential penalties that wil apply for future violations.

 C. Any store that violates or fails to comply with any of the requirements of

this Chapter after a written warning notice has been issued for that violation shall be

guilty of an infraction.

 D. If a store has subsequent violations of this Chapter that are similar in kind

to the violation addressed in a written warning notice, the following penalties will be

imposed and shall be payable by the operator of the store:

 (1) A fine not exceeding one hundred dollars ($100.00) for the first
violation after the written warning notice is given;

 (2) A fine not exceeding two hundred dollars ($200.00) for the second

violation after the written warning notice is given; or

 (3) A fine not exceeding five hundred dollars ($500.00) for the third and

any subsequent violations after the written warning notice is given.

 E. A fine shall be imposed for each day a violation occurs or is allowed to


continue.

 F. All fines collected pursuant to this Chapter shall be deposited in the Solid


Waste Management Fund of the Department of Public Works to assist the department

with its costs of implementing and enforcing the requirements of this Chapter.

 G. Any store operator who receives a written warning notice or fine may

request an administrative review of the accuracy of the determination or the propriety of



HOA.741373.1 8
any fine issued, by filing a written notice of appeal with the Director of Public Works no

later than 30 days after receipt of a written warning notice or fine, as applicable. The

notice of appeal must include all facts supporting the appeal and any statements and

evidence, including copies of all written documentation and a list of any witnesses, that

the appellant wishes to be considered in connection with the appeaL. The appeal will be

heard by a hearing officer designated by the Director of Public Works. The hearing

officer wil conduct a hearing concerning the appeal within 45 days from the date that

the notice of appeal is filed, or on a later date if agreed upon by the appellant and the

County, and wil give the appellant 1 a days prior written notice of the date of the

hearing. The hearing officer may sustain, rescind, or modify the written warning notice

or fine, as applicable, by written decision. The hearing officer will have the power to

waive any portion of the fine in a manner consistent with the decision. The decision of

the hearing officer is final and effective on the date of service of the written decision, is

not subject to further administrative review, and constitutes the final administrative

decision.

 12.85.090 Severabilty.
 If any section, subsection, sentence, clause, or phrase of this ordinance is for

any reason held to be invalid by a decision of any court of competent jurisdiction, that

decision will not affect the validity of the remaining portions of the ordinance. The Board

of Supervisors hereby declares that it would have passed this ordinance and each




HOA.741373.1 9
and every section, subsection, sentence, clause, or phrase not declared invalid or

unconstitutional without regard to whether any portion of this ordinance would be

subsequently declared invalid.

 12.85.10 No conflict with federal or state law.

 Nothing in this ordinance is intended to create any requirement, power or duty

that is in conflict with any federal or state law.

(1285TMCC)




HOA.741373.1 10
 MEMORANDUM



TO: Chairman Suslovic and
 Members of the Green Packaging Working Group

FROM: Jennifer L. Thompson, Associate Corporation Counsel

DATE: July 1, 2013
RE: Plastic Bag User Fee v. Tax

 This memo will address certain questions that have arisen in connection with the
Working Group’s consideration of a possible user fee associated with single-use/disposable
plastic bags.

1. What makes a charge a “user fee” rather than a tax?

 The distinction between “reasonable user fees” and taxes was articulated by the First
Circuit in San Juan Cellular Tel. Co. v. Public Serv. Comm'n, 967 F.2d 683 back in 1992.
According to the court in that case:

 [Courts] have sketched a spectrum with a paradigmatic tax at one end and a
 paradigmatic fee at the other. The classic "tax" is imposed by a legislature upon
 many, or all, citizens. It raises money, contributed to a general fund, and spent for
 the benefit of the entire community. The classic "regulatory fee" is imposed by an
 agency upon those subject to its regulation. It may serve regulatory purposes
 directly by, for example, deliberately discouraging particular conduct by making
 it more expensive. Or it may serve such purposes indirectly by, for example,
 raising money placed in a special fund to help defray the agency's regulation-
 related expenses.
Id.

 Using this distinction as a starting point, a number of courts have adopted the
following three-pronged test for distinguishing between a user fee and a tax:

 • who imposes the assessment?
 • who pays the assessment?
 • what the revenue is spent on?

 If the answer to each is broad (a legislative body vs. a regulatory body; the general public
vs. specific users; and general revenue vs. specific fund), then it qualifies as a tax. Typically,
when the primary purpose of an enactment is to raise revenue, the enactment will be considered a
tax, regardless of the name attached to the act.
See Discussion at http://www.banthebagspdx.com/?p=485


 1
 According to the First Circuit: “the most salient factor in the decisional mix concerns the
destination of the revenues raised by the impost[.]” Cumberland Farms v. Tax Assessor, State of
Maine, 116 F.3d 943 (1st Cir. 1997). Therefore, where the monies raised go into a general fund
and the stated purpose of the impost is to garner revenue, it will most likely be considered a tax.
Where, however, fees are retained by a retailer or deposited into a fund intended for a specific
service (preferably related to the particular use for which it is imposed) then it will most likely be
considered a user fee.

2. Is it possible to create a user fee for plastic grocery bags and, if so, what might that look
 like?

 The short answer to this is “yes, it is possible.” Although some states or municipalities
have either banned plastic bags all together or opted not to regulate their use at all, a number of
others have imposed a user fee on plastic bags. Given the distinction between taxes and user
fees, it makes sense that many of those states and municipalities that have opted to regulate
plastic bags by charging a “user fee” have created a structure by which the proceeds of the fee
are deposited into a special fund(s) aimed at litter clean up or abatement or used to help
encourage citizens to use re-usable bags instead of disposable plastic bags.

 One example is the ordinance recently adopted by Boulder, Colorado, attached.

 Also attached is an ordinance adopted in Los Angeles, California. Although Los
Angeles’s ordinance bans plastic bags, it permits the use of recyclable paper bags and charges a
user fee for those. I thought the mechanism by which that fee is charged and allocated might be
another helpful example.

3. Are re-usable bags eligible expenses for SNAP or GA benefits?

 According to the Maine Department of Health and Human Services Office of Family
Independence, SNAP benefits cannot be used to purchase any non-food item. Therefore,
although I have not found an express prohibition on purchasing reusable grocery bags with
SNAP benefits, it appears to me that they would not be a covered expense.

 It similarly appears to me that the cost of reusable grocery bags would not be an eligible
expense under the General Assistance program. That program pays only for “necessary
expenses,” the definition of which includes food but expressly excludes non-food items.

 Given the exclusion of non-food items, I do not have a sense that the exclusion of
reusable grocery bags from SNAP and General Assistance benefits would change if a fee were
imposed on the use of plastic bags. I have, however, posed that question to representatives of the
State of Maine, DHHS and will update the Working Group once I have received the answer.




 2