G. White – Legislative III Project – Environmental Law Class (Prof. Antolini) – UH Law School – Nov. 9, 2007
1451 South King Street phone 808.944.9105
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Honolulu, Hawaii 96814 e-mail:
Statement of
GEORGE WHITE
Legal Counsel
Hawaii Restaurant Association
before the
HOUSE COMMITTEE ON ENERGY & ENVIRONMENTAL PROTECTION
Friday, November 9, 2007
2:00 P.M.
Capitol Room 325
in consideration of
HOUSE BILL XX
RELATING TO SOLID WASTE DISPOSAL
Chair Morita, and Members of the Committee:
While the Hawaii Restaurant Association (HRA) supports the intent of this measure, it must at this time, express its reservations and reluctant opposition to banning the retail sale of disposable food-service ware containing polystyrene foam within the State of Hawaii.
The HRA is a non-profit trade association dedicated to serving the needs of the restaurant, food-service, hospitality and tourism industries in the State of Hawaii. HRA represents, educates and promotes an industry that is a cornerstone of the economy in Hawaii with over 3,500 members employing nearly 82,000 individuals. While the HRA is supportive of environmentally-conscious measures, the potential scope and impact of such a ban upon these entities and individuals needs to be given serious consideration.
The HRA has three fundamental concerns regarding the proposed legislation:
1) A sufficient and reasonable nexus must be established between the problem identified by the legislature, and the food-service industry, targeted by this legislation.
2) Responsibility to seek out, provide, and promote the use of “reasonable” alternatives to polystyrene foam rests with the State.
3) The Legislature must devise a mechanism able to provide subsidy and/or support to our members who are unable to bear the financial burden of the cost of compliance with this legislation.
While the HRA acknowledges the serious impact polystyrene foam has upon Hawaii’s environment, this legislation has failed to substantiate the extent to which the retail food industry is one of the primary contributors to the problem. Fundamental questions of fairness have arisen given that the legislation before you appears to be tailored to target the food-service industry,
while ignoring the contributions of other industries to the problem, such as freight and parcel delivery companies, and electronic and mail-order product companies.
HRA’s second concern relates to the availability of the “affordable” alternatives this legislation requires. Currently there are a limited number of distributors in Hawaii providing alternatives to polystyrene foam foodservice ware products. None of these alternatives are currently considered “affordable” as defined by this legislation. While enactment of this legislation will more than likely expand and encourage a market for these products, it is unclear the extent to which shipping costs will continue to impact the availability of actual affordable alternatives.
The HRA is supportive of Section 3 of this legislation asking for an evaluation of the possibility of establishing a biodegradable polystyrene product industry within the State. The HRA is aware that Hawaii Commercial & Sugar (a division of Alexander & Baldwin Hawaii, Inc. (“A&B”)), has informally discussed the possibility of producing biodegradable food-packaging products within the State, should this legislation be enacted.[1] At an estimated infrastructure cost between five (5) and ten (10) million dollars, (funded by A&B) the HRA believes this to be an option worth pursuing given its potential to provide the “affordable” alternatives this legislation requires.
The third and final concern of the HRA is that this legislation cannot burden our members to the extent that they are unable to remain fiscally or financially afloat. While the sentiment of “just pass it along to the consumer” is a plausible option, our members are understandably hesitant to upset their client base with higher prices, especially given the continually rising high-cost of living in Hawaii.
The HRA is supportive of the appropriation of monies to support those most affected by this legislation who will be struggling to make ends meet. The HRA views such an appropriation as an absolute necessity, however at this time, numerous questions remain unanswered, including the source, amount and administration of these monies. It is incumbent upon this committee to attempt to ascertain how much financial support will be necessary, where to get it, and how best to distribute it.
In conclusion, should a legitimate nexus be established between the contributions of Hawaii’s food-service industry to the problems posed by polystyrene foam, then the HRA is supportive of legislation enacted in an effort to rectify this situation. This support is contingent however, upon 1) the State’s ability to promote and provide affordable alternatives to polystyrene foam food service ware products; and 2) the State’s ability to provide financial support to businesses unable to bear the financial burden of the cost of compliance with this legislation
Thank you for the opportunity to provide this testimony.
Description:
Legislation to prohibit the use of polystyrene foam disposable food service ware and require the use of biodegradable or compostable disposable food service ware by restaurants, retail food vendors, government departments and contractors and lessees unless there is no affordable alternative.
a bill for an act
RELATING TO SOLID WASTE DISPOSAL
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
Section 1. The Legislature finds that the State of Hawaii has taken significant strides over the past several years towards a more aggressive and conscious stance in protecting and preserving Hawaii’s precious resources and its environment. Recent examples such as the Hi-5 Container Recycling Program and the work of the 2050 Sustainability Task Force have furthered efforts towards Hawaii becoming the premier renewable and environmentally conscious State in the United States.
The Legislature finds that use and disposal of polystyrene foam foodservice containers poses a significant threat not only to Hawaii’s ecosystems and environment but also to the general health and welfare of the citizens of this State.
While the Legislature recognizes the use of polystyrene foam containers as a sturdy, sanitary, economical and convenient product for Hawaii’s foodservice industries, the inherent unbiodegradable nature and chemical composition of this product raises serious concerns.
Polystyrene is a petroleum by-product, a non-renewable resource, composed of the chemicals styrene and benzene. Benzene is classified as a human carcinogen. Styrene is a neurotoxin and is also suspected to cause cancer. The EPA is currently conducting an Integrated Risk Information System review to establish whether to formally classify styrene as a carcinogen
Furthermore, the Legislature has concerns regarding the possible leeching of styrene into food and liquids consumed when heated in polystyrene foam foodservice ware products, posing a potential threat to human health.
Disposal of used polystyrene foam foodservice containers are either buried in landfills across the State or are disposed of through the Honolulu Program of Waste Energy Recovery, (“H-POWER”) the ash from which is then buried at the landfills.
The Legislature concludes that these disposal options are unacceptable given the present lack of landfill space available in the State, along with the detrimental and long-term impacts of polystyrene foam upon Hawaii’s environment and ecosystems.
The Legislature believes that disposed polystyrene foam takes up a substantial percentage of available landfill space in the State of Hawaii. Additionally, polystyrene foam is non-biodegradable, not easily recyclable, cannot be reused, and takes hundreds of years to decompose.
Similarly, there is concern that as polystyrene foam breaks down over time in the State’s landfills, dangerous chemicals are leaching into the seepage of the landfills. This seepage is pumped out of the landfill and inadequately processed and treated before being discharged into the ocean, threatening marine ecosystems around the island.
The Legislature finds that harmful chemicals are produced when burning polystyrene foam. Burning of polystyrene foam emits a dense, black, irritating smoke with acid gases, producing carbon monoxide, carbon dioxide, and styrene (a known neurotoxin and possible carcinogen). The National Bureau of Standards Center for Fire Research identified 57 chemical byproducts released during the combustion of polystyrene foam.
The Legislature further finds that failure to properly dispose of polystyrene foam foodservice ware products (“littering”), is not only an aesthetic concern but also raises significant health and welfare concerns.
Additionally, the breakdown and decomposition of polystyrene foam products poses a significant threat to Hawaii’s fragile ecosystems. When polystyrene foam is not properly disposed of, it repeatedly breaks down over time into smaller pieces. Various creatures including birds, marine mammals and fish mistake these smaller, broken down pieces of foam for food, causing them to either choke or have their digestive systems clogged.
Given the foregoing, the Legislature concludes that threats posed by polystyrene foam are significant, substantial and cannot be ignored. A more environmentally friendly alternative to polystyrene foam must be mandated.
Section 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
§ -1 Definitions. As used in this chapter, unless the context otherwise requires:
“Affordable” means purchasable by the Vendor/Provider at a maximum cost of fifteen (15) percent more than the purchase cost of the non-biodegradable, non-recyclable, non-PSF alternative (excluding import fees).
“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.
“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 in an appropriate composting program or facility, or in a home compost pile or device.
“Disposable food service ware” means all containers, bowls, plates, trays, carton, cups, lids, straws, forks, spoons, knives, napkins and other items that are designed for one-time use for Prepared Foods, including without limitation, serviceware for takeout foods and/or leftovers from partially consumed meals prepared.
“Polystyrene foam” means blown polystyrene and expanded and extruded foams (sometimes called Styrofoam) which are thermoplastic 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 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 on the food vendor’s premises or within the State of Hawaii. Prepared food may be eaten either on or off the premises, also known as “takeout food”.
§ -2 Prohibited. Polystyrene foam food service ware is prohibited to be used by the following:
(1) Restaurants, retail food vendors, non-profit and Government food providers, and packagers are prohibited from providing or selling prepared food in disposable food service ware that contains polystyrene foam.
(2) Government departments are prohibited from purchasing, acquiring or using disposable food service ware that contains polystyrene foam.
(3) Government contractors and lessees shall be prohibited from using disposable food service ware that contains polystyrene foam in state facilities while performing under a government contract or lease.
§ -3 Exemptions. Compliance with this regulation requires a biodegradable or compostable product is available for a specific application. Entities are exempt should no affordable alternative be available for a specific application.
§ -4 Enforcement, Powers of Municipalities. (a) All municipalities in the State of Hawaii shall promulgate and produce regulations, ordinance, guidelines, or laws to take any and all other reasonable actions necessary to implement and enforce this measure.
(b)The State Department of Health (“DOH”), prior to this measure’s enactment, will compile and make available a list of affordable alternative forms of biodegradable or compostable food service ware that does not contain polystyrene foam. The Department shall regularly update this list.
§ -5 Penalties. Violations of this statute will incur a fine not exceeding $250 for the first violation in a one (1) year period, and a fine not exceeding $500 for the second and each subsequent violation in a one (1) year period.
§ -6 Funding. An appropriation of XXX million dollars will be made available to assist in defraying any potential fiscal impacts this regulation may have upon small business and entities within the state affected by this measure.
Section 3. The State Department of Agriculture (“DOA”) in coordination with the State Department of Business, Economic Development & Taxation (“DBEDT”) will evaluate the feasibility and potential for production of biodegradable polystyrene products within the State and report back to the Legislature in January, 2009.
Section 4. No later than January 1, 2010, DOH, in consultation with the municipalities and with input from members of the public, shall submit a report to the Legislature recommending changes, if any, to this Chapter, including whether the ban imposed by this Chapter should be extended to other products, as supported by the report.
Section 5. This Act shall take effect on January 1, 2009
1
[1] Interview with Mike Elhoff & Krista Ruchaber, Founders, Styrophobia, in Honolulu, HI (Sept. 17, 2007)