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 Committee Report

Committee Report #3

ORDINANCE COMMITTEE MEMBERS

In City Council March 30, 2015

Vice Mayor Dennis Benzan, Co-Chair  
Councillor Dennis Carlone, Co-Chair  
Councillor Leland Cheung  
Councillor Craig Kelley  
Mayor David Maher  
Councillor Nadeem Mazen  
Councillor Marc McGovern  
Councillor Denise Simmons  
Councillor Timothy Toomey  

The Ordinance Committee held a public hearing on March 12, 2015 beginning at 5:47 P.M. in the Sullivan Chamber.

The purpose of the hearing was to discuss amendments and other related documents associated with the plastic bags ordinance.

Present at the hearing were Vice Mayor Dennis A. Benzan, Councillor Dennis J. Carlone, Co-Chairs of the Committee, Councillor Leland Cheung, Councillor Craig Kelley, Mayor David P. Maher, Councillor Marc C. McGovern, Councillor Timothy J. Toomey, Jr.,

Arthur Goldberg, Deputy City Solicitor, Owen O'Riordan, Commissioner of Public Works, Andrea Spears Jackson, License Commissioner, Sam Lipson, Director of Environmental Health, Cambridge Health Department and City Clerk Donna P. Lopez.

Also present were Judith Nathans, 511 Putnam Avenue, Clint Richmond, Sierra Club, Phil Sego, 221 Norfolk Street, Noel LaPierre, Surfrider, John Hawkinson, 84 Massachusetts Avenue, Mike Connolly, Aide to Councillor Carlone, Paul Tammaro, 4 Marion Street, Bob Rosa, 44 Sacramento Street, Rob Palange, 1400 Massachusetts Avenue, Laura Donohue, Bob Slate Stationer, 30 Brattle Street, Keren Schlomy, 175 Richdale Avenue, Carrissa Blackburn, 99 Bishop Allen Drive, Adam Hirsch, l JFK Street, Mekenna Kobed, 7-11, 750 Massachusetts Avenue, Mary Bane Campbell, 36 Linnaean Street, Alison Leary, 192 Chapel Street, Elena Saporta, 102 Ellery Street, Jan Devereux, Rachel Wyon, Shelley Rieman, 201 Franklin Street and Minka vanBeuzekom.

Councillor Carlone convened the hearing and explained the purpose.  The hearing was recorded with private audio devices.  He stated that the format of the meeting would be to hear from the petitioners, that being the City of Cambridge and City Staff, comments from the City Council and then the meeting would be opened to public comment.

Councillor Carlone requested Deputy City Solicitor Arthur Goldberg and Public Works Commissioner Owen O'Riordan to come forward.  Commissioner O'Riordan explained that there are two sets of documents on the matter.  One document dated January 26, 2015 and transmitted to the City Council on February 20, 2015 (ATTACHMENT A-1) which contained the original plastic bag ordinance, a redlined version of the ordinance with amendments, a list of thirteen amendments, proposed regulations promulgated by the Commissioner of Public Works if various amendments were approved and the standard specifications ASTMD6400 for plastic products that can be composted in response to Policy Order # 11 of December 15, 2014 (ATTACHMENT A-2).  The second document was dated March 9, 2015 (ATTACHMENT B).  He outlined that the second document contained information that a communication was received from a plastic bag industry group, the Progressive Plastic Bag Alliance, that there may be an issue mandating a charge for compostable or paper bags as it would violate the Massachusetts Constitution.  In light of this the City Solicitor has prepared two amendments and a revised set of documents which reflects two options relating to this issue.  The first option provides for the mandated charge as originally proposed and the second option would permit, but not require retail establishments to institute a charge for checkout bags.

Councillor Carlone asked the commit how they wish to proceed.  As a result Commissioner O'Riordan gave an overview of each amendment.

# 1 changed the name of the ordinance.

# 2 deleted 8.67.020 in its entirety and replaced the language.

#3 described the use of plastic bags for wrapping fish.

#4 take out bags would be allowed for restaurant take out.

#5 pertains to the thickness of plastic bags.

#6 defines compostable plastic bags.

#7 defines retail establishments and exempted bazaars operated by nonprofit organizations or religious institutions and farmers markets.

#8A provided authority to the Public Works Commissioner to charge for compostable or plastic bags and charge placed on retail receipt and retained by retail establishment.

#8B retail establishment could charge for a checkout bag and charge placed on retail receipt.

#9 renumbers items in 8.67.040.

#10 deals with the effective date.

#11 addresses exemptions associated with hardship.  An exemption is allowed for up to 2 years.  An exemption would be allowed for a stock pile of plastic bags to draw down the inventory.

#12 and #13 deals with exemptions and renaming items in 8.67.060.

Mr. Goldberg noted that in section 8.67.040 (A) in the redline version strike out the word "either" after the word If.

Councillor McGovern asked Councillor Carlone to move to public comment before the City Council made comments.

Councillor Cheung asked about ASTM standards.  Commissioner O'Riordan explained what is being proposed in ordinance for compostable bags is D6400.  He stated that no biodegradable bags complies with the two standards.  It is proposed that the ASTM D6400 for compostable be used.  The D7001 is specific to marine environment.  Councillor Cheung questioned whether there are any marine biodegradable bags used for compostable bags.  Commissioner O'Riordan responded in the negative.

At this time Councillor Carlone opened the meeting to public comment.

Judith Nathans, 511 Putnam Avenue, noted that the successful bans were places that did impose a fee.  She was encouraged with the January proposal to charge a fee.  She is disappointed that the Massachusetts Constitution does not support charging a fee.  Ireland and California did not have a problem charging a fee and the economic consequence is needed.  She stated that you can recycle plastic bags in Cambridge.

Phil Sego, 221 Norfolk Street, stated that he was a retired member of the Sierra Club.  He stated that plastic bags are great for retailers but now the problems are being learned.  Plastic bags blow into lakes and streams and have a lifelong life cycle.  They strangle birds, fish and other animals and break down and outnumber plantain.  The Los Angeles storm drains contain 25% plastic bags.  He stated that biodegradable bags and paper bags are better.  Better still is no bags.  There was a voluntary agreement with the state that retailers would reduce plastic bags by 33% which has not happened.  There are 35 million bags that have been used since the voluntary ban.

Clint Richmond, Sierra Club, Brooklyn by-law composer, commented on the proposed amendments.  He stated that the 2.25 mils bags have a charge.  He would be fine with a 3.0 mils.  He stated that regarding the takeout food today most restaurants use paper.  It is important that fast food be not eliminated from ban because some restaurants are still using plastic.  He stated that amendments 10-13 deal with implementation.  He discouraged delay in implementation.  He was opposed to waivers and exemptions.  He encouraged a shorter time table for the implementation.  He stated that the Star shopping bag is not recyclable.  Paper is fine. 

Noel LaPierre, Chair, Surfrider Foundation Massachusetts Chapter, stated that his foundation protects the waterways.  He spoke about the devastation to the marine ecosystem by plastic bags.  He supported a plastic bag ban.  He opposed takeout food, 2.25 mils and the exemption from 6 most to 2 years.  He supported the charge. 

Laura Donohue, Bob Slate Stationer, spoke as an owner of retail store.  She focused her remarks on three proposed amendments.  She supported 2.25 mils.  She stated there are low and high density bags.  She stated that a low density bag is more elastic and is reusable.  She requested leaving the thickness at 2.25 mils.  She suggested added poly non-woven bag at $1.25 which can be sold by retailers.  Compostable bags need to be stored in an area where they need special care.  She spoke about the need for a product that can carry something that stays dry and can hold a heavy amount.  She wanted an exemption for a longer period for products such as these.  Smaller retailers are being given a longer period of time and all retailers should be given the same amount of time.  She supports the transition time of one year.  She stated that she is a destination retailer and wants to remain so.

Carrissa Blackburn, Local First, had a list of questions and wanted them to be put into the educational information.  The questions centered on penalties, mandatory minimum charge subject to state sales tax, double bagging could retailer decline, exemption from inclement weather where product would be damaged, return merchandise where there was a charge for bag provided for fish could other product be included. 

Adam Hirsh supported a broader ban.  He suggested using Boston's ban.  What has been the economic impact of the San Francisco ordinance for small retailer been?   What is the 80/20 success rate? 

Mary Bane Campbell, 36 Linnaean Street, stated that she has lived in cities that have bans that have the same problem as Cambridge with the traffic and businesses and no one uses plastic bags and they were not popular when offered for use.  She suggested discussion with other communities who have bans. 

Allison Leary, Newton Board of Alderman, stated that Newton has passed a plastic ban.  She is a member of Sierra Club.  Newton has an exemption for smaller retailers.  She supported the 3 mils.  She stated 3 million bags will be eliminated from the waste.  No fee is charged in Newton.  We need to eliminate plastic now.  She stated that a state ban will help to ban communities together.  She wanted a state-wide ban to be as strong as local bans. 

Elaine Saporta, 102 Ellery Street, stated that waste goes to the Saugus incinerator.  This is highly toxic material that goes into the air and water.

Jan Devereux, 251 Lakeview Avenue, supported banning plastic bags.  She stated that she does not like the amendments because they water down the ordinance.  She stated that fear is overblown.  She urged the City Council to show leadership and ban plastic bags.

Public comment ended 6:47 PM.

Councillor McGovern stated that Cambridge was one of the first communities to discuss this and other communities have taken action.  It is time for Cambridge to take action on this.  He stated that change is difficult, but we will not remember when we had plastic bags.  People and business will get used to this and move forward. We need to do this now.  He spoke about plastic bags being one time use.  Takeout plastic bags are the ultimate one time use.  He was opposed to the elimination of takeout bags from the ordinance.   He stated that he could support the one year effective date, but could not support this if Amendments Eleven and Twelve are approved. Extensions are not needed.  He had concerns about the amendment on the plastic bag inventory.  He wanted the inventory managed. 

Councillor Cheung asked why there is an exemption for mils; what is the most mils allowed.  He stated that 4 mils was stated.  Commissioner O'Riordan stated that a certain mils would make the bags more likely to be reused.  Councillor Cheung stated the response about charging a fee is valid and that the City is not eliminated to charge.  Allegation from Plastic Bag Association is untrue.  He wanted plastic bags that are marine biodegradable and compostable as well; where can someone get these.  Commissioner O'Riordan stated that the City is providing compostable bags to residents in pilot program.  He stated that Trader Joes and Whole Foods sell the bags.  Councillor Cheung noted that the City provides free salt but residents still buy salt from stores and this may be the same for compostable bags.  Councillor Cheung stated that Washington, DC charges for bags and consumers do not notice the charge and he wanted the fee to be given to clean up waterways. 

Councillor Kelley stated that Cambridge does not have a square foot exemption such as 3500 square feet.  He stated that charging for the bags is the only way to make this work.  He stated his support for either a 2.25 or 3 mils.  He had confidence in the Public Works Commissioner to make judgment on exemption.  He did not support the food exemption.

Vice Mayor Benzan asked how amendment 8A would work.  Commissioner O'Riordan stated that retail establishment can charge and retain the fee.  If a retailer provided either a paper or compostable bag they could charge $.10 and have it on the sales receipt.  If the sale is not on the receipt it would be a violation of the ordinance.  Vice Mayor Benzan asked if the fee charged could go to Charles River Conservation group.   Deputy Solicitor Goldberg responded that the fee proposed is either no fee, but if there were a fee the retailer keeps the fee.  He stated that the Law Department should look at the issue because it could be a tax and whether the City has the right to do this legally.  Vice Mayor Benzan asked what the consequence is to charge or not to charge a fee.  Commissioner O'Riordan stated that the fee is to discourage the use of plastic bags.  In communities where a fee was charged plastic bag use was discouraged.  Vice Mayor Benzan stated that he favored a one year exemption and did not support exempting takeout food bags and charging for bags at the checkout counter.  Commissioner O'Riordan explained that a 2.25 mils is a reusable bag. 

Councillor Cheung spoke about the fee.  He stated that if a fee was institute without a ban it reduced plastic bag use.  He would like to see if the funds could be directed.  He favored the fee and down the road direct the funds to clean up waterways.  He stated that in California there are signs "bring your own bag."   He suggested changing the title of the ordinance. 

Councillor Carlone stated that in inclement weather books or delicate objects fall under a new criteria.  Mr. Lipson spoke about extending a leak proof bag to other items and the exposure of bacteria.  Small plastic bags was not added for cross contamination for meat. 

The committee proceeded to discuss the amendments.

Councillor Carlone read amendment Number One. 

Councillor Cheung made a motion to amend to delete "Checkout Bag" and insert in place thereof the words "Bring Your Own Bag".  The motion to amend carried on a voice vote of five members.

Amendment Number One as amended prevailed on a voice vote of five members.

Councillor Carlone read amendment Number Two.  Councillor Cheung made a motion to amend the second sentence by adding the word "burned" after the word "being." The motion to amend carried on a voice vote of five members.

Amendment Number Two as amended prevailed on a voice vote of five members.

Councillor Carlone read amendment Number Three.  Councillor Kelley made a motion to amend by adding a comma after the word "not."  The motion to amend carried on a voice vote of five members.

Amendment Number Three as amended prevailed on a voice vote of five members.

Councillor Carlone read amendment Number Four.  He explained that a vote in the affirmative would insert language about takeout food from restaurants; a negative vote would not insert this language.

Amendment Number Four did not prevail.  Vice Mayor Benzan voted in the affirmative; Councillors Carlone, Cheung, Kelley and McGovern voted in the negative.

Councillor Carlone read amendment Number Five.

Councillor Kelley commented that it is difficult to compare the mils because there is no square foot exemption.  He stated that he has no knowledge that a 3 mils plastic bag is more reusable.

Councillor Carlone explained that there is a movement in retail to 3 mils.  The economics would discourage plastic and it costs more for the 3 mils.

Vice Mayor Benzan wanted to be considerate of the retail stores.  He supported the 2.25 mils. 

Councillor Carlone stated that the goal of ordinance is to reduce plastic.  He explained that a vote in the affirmative would insert 2.25 mils and a negative vote would be for 3.0 mils

Amendment Number Five did not prevail.  Vice Mayor Benzan and Councillor Kelley voted in the affirmative and Councillors Carlone, Cheung and McGovern voted in the negative. 

Councillor Carlone read amendment Number Six.

Councillor Cheung asked how this would impact the curb side compost pilot program.  Commissioner O'Riordan stated that the compostable bags will be provided by the City to the residents for the pilot.  In the future if the whole city uses compostable bags there may be no cost.  Councillor Cheung stated that he hopes that when this goes city-wide that there is a marine biodegradable and compostable bags.  Commissioner O'Riordan stated that if in the future there are marine biodegradable compostable bags this could be revisited.  Deputy City Solicitor suggested that no change be made to the ordinance at this time.  Councillor Carlone noted that there is great interest to add marine biodegradable bags.

Amendment Number Six prevailed on a voice vote of five members.

Councillor Carlone read amendment Number Seven.

Councillor Cheung made a motion to amend to strike out the words "farmers markets."

Councillor Carlone noted that people who go to farmer markets are ecology minded.  He supported the amendment. 

Vice Mayor Benzan would not vote to strike farmers markets.

Councillor Cheung asked if there are health implications with farmers markets.  Mr. Lipson stated that if there is meat that is not cooked there maybe.  He also noted that salmonella is found in produce also. 

Commissioner O'Riordan stated that the plastic bag definition already excludes farmers markets. 

Councillor Kelley supported exempting farmer markets.

It was noted that the word "seasonable" should read "seasonal" and the clerical error was corrected.

The question now came on the amendment to strike "farmers markets" and the amendment carried on a voice vote of three members.  Vice Mayor Benzan and Councillor Kelley voted in the negative.

Amendment Number Seven as amended and corrected prevailed on a voice vote of five members.

Councillor Carlone read amendments Numbered 8A and 8B

Vice Mayor Benzan asked if the charge is subject to sales tax.  Commissioner O'Riordan responded in the affirmative.

Amendment Number Eight A prevailed on a voice vote of five members.

Councillor Carlone read amendment Number Nine.

Amendment Number Nine prevailed on a voice vote of five members.

Councillor Carlone read amendment Number Ten.

Councillor McGovern stated that he would support if the two year exemption was not allowed in amendment Number Eleven.

Amendment Number Ten prevailed on a voice vote of four.  Councillor Kelley was recorded in the negative.

Councillor Carlone read amendment Number Eleven.

Councillor McGovern stated that this waters down the ordinance.   He trusts the Commissioner of Public works.  He did not support amendment Number Eleven.

Councillor Cheung asked Commissioner O'Riordan about hardship circumstances.  Commissioner O'Riordan could not cite a particular hardship circumstance.  He stated that there may be a legally protected right. 

Councillor McGovern commented that if this were amended to one year that businesses may never make the transition.  Commissioner O'Riordan stated that the City Manager's letter of January 6th explained that there would be outreach to the community and if there is an undue hardship he would come back to the City Council and amend the ordinance.

Councillor Carlone stated that objects of art, books, lithograph, stationery or boards and inclement weather are different situations.  Clarification may be required to regulate this.  This may fall in the exemption.  Commissioner O'Riordan stated that a limited number of businesses are exempted.

Councillor McGovern stated that he would rather book stores or stationery stores be on an exempted list rather than be reviewed every two years.

Councillor Kelley stated that he does not read that any particular store is exempt; it is up to the Commissioner.

Vice Mayor Benzan stated that it is making it difficult for establishments to purchase bags.  This amendment give the Commissioner the authority to give the exemptions. 

Amendment Number Eleven prevailed on a voice vote of three members.  Councillors Carlone and McGovern were recorded in the negative.

Councillor Carlone read amendment Number Twelve.

Councillor Cheung questioned the workload. Commissioner O'Riordan stated that there is a workload associated with this amendment.  This allows establishments to use their existing inventory.

Councillor McGovern stated that he would vote in the negative on this.

Vice Mayor Benzan stated that businesses buy plastic bags in volume and it may take more than a year to drawn down the inventory.  He does not want to make it more difficult for retailers.

Councillor Cheung noted that awareness building requires time for the work to be done.  He stated that one year makes sense. 

Commissioner O'Riordan stated that organic plastic bags and compostable bags are being worked on and providing additional time in an appropriate way would be appreciated. 

Councillor McGovern stated that he supported the one year implementation but does not see the need for the draw down.

Amendment Number Twelve did not prevail on a voice vote of three members.  Vice Mayor Benzan and Councillor Kelley voted in the affirmative.

Councillor Carlone read amendment Number Thirteen.

Amendment Number Thirteen prevailed on a voice vote of five members.  (NOTE due to Amendment Number Twelve not prevailing the vote on this amendment was unnecessary)

Councillor McGovern made the following motion:

ORDERED:   That the City Manager be and hereby is requested to purchase 10,000 reusable bags for distribution at senior housing developments, senior centers, food pantries or anywhere seniors frequent to help seniors and low income residents who are unable to purchase reusable bags.

Councillor Kelley commented that he did not think that this was a good idea.

Vice Mayor Benzan amended the motion to include that students in public schools be requested to create a logo for the usable bags.

The amendment carried on a voice vote of five members.

The question now came on the motion as amended which reads as follows:

ORDERED:   That the City Manager be and hereby is requested to purchase 10,000 reusable bags for distribution at senior housing developments, senior centers, food pantries or anywhere seniors frequent to help seniors and low income residents who are unable to purchase reusable bags; and be it further

ORDERED:   That students in the public schools be requested to create a logo for the reusable bags.

The motion as amended carried on a voice vote of five members.

The following e-mails were received and made part of the report:

Communication from Susan Koechner, 83 Washington Avenue, in support of the plastic bag ban (ATTACHMENT C).

Communication from Diana Meservey and Thomas Dinwoodie, 57 Francis Avenue, in support of a plastic bag ban (ATTACHMENT D).

Communication from Marjorie Yates, 36 Upland Road, in support of banning environmentally damaging plastic bags (ATTACHMENT E).

Communication from Judy Bright, 283 Upland Road, urging the City Council to make the plastic bag ordinance strong and stringent (ATTACHMENT F).

Communication from Stephanie Haims, 6 Cutler Avenue, in support of the plastic bag ban (ATTACHMENT G).

Communication from Nicolai Cauchy, 387 Huron Avenue, commenting on regulations that enhance the proper use of existing bags rather than an outright ban.  (ATTACHMENT H).

Communication from Denise Ward in opposition to banning plastic bags but in support of a fee (ATTACHMENT I).

Communication from Lynne Meyer-Gay, 10 Bowdoin Street in support of the plastic bag ban and a strong and stringent ordinance (ATTACHMENT J).

Communication from George Emlen, 47 Walker Street, urging the passage of a strong ordinance to end the use of plastic bags (ATTACHMENT K).

Communication from Aryt Alasti in opposition to banning plastic bags (ATTACHMENT L).

Communication from Bob Childs, 120 Garden Street, in support of banning plastic bags (ATTACHMENT M).

Communication from Kristine Jelstrup, 120 Pleasant Street, urging a strong ban or reduction on single use plastic bags (ATTACHMENT O).

Communication from Deidre Purcell, 12 Hurray Hill Road, supporting the plastic bag ban (ATTACHMENT P).

Communication from Judith E. Smith, American Studies, UMass, Boston in support of banning plastic bags (ATTACHMENT Q).

Communication from Noel LaPierre, 65 Louise Road, Belmont, urging the City Council to adopt a strong ordinance that will benefit the environment by getting single use plastics bags out of circulation (ATTACHMENT R).

Communication from the Massachusetts Sierra Club, 10 Milk Street, Boston in support of the plastic bag ban and transmitting comments on the amendments (ATTACHMENT S).

Communication from Tobey Pearl, urging support of the plastic bag ban ordinance (ATTACHMENT T).

Communication from Charles J. Marquardt, 10 Rogers Street, in support of the ideals in the Checkout Bag Ordinance (ATTACHMENT U).

Communication from Molly O'Brien, 103 Pleasant Street, in support of the plastic bag ban (ATTACHMENT V).

Communication from Ginger Ryan, in support of the plastic check out bag ban (ATTACHMENT W).

Communication from Andrea Dulberger, 185 1/2 Elm Street, in support of the plastic bag ban (ATTACHMENT X).

The amendments as amended were referred to the City Council with a favorable recommendation on a voice vote of five members.  Attached is the action at the committee hearing and the redline version of the ordinance with the actions of the committee (ATTACHMENTS Y & Z).

Councillor Carlone thanked all those present for their attendance.         

The hearing adjourned at 8:25 PM.                                                      

For the Committee,

Vice Mayor Dennis A. Benzan, Co-Chair
Councillor Dennis J. Carlone, Co-Chair
Ordinance Committee

  
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