The California Supreme Court announced it will hear oral arguments May 4 on the Save the Plastic Bag Coalition v. City of Manhattan Beach case. The question before the court is whether a local jurisdiction must perform an Environmental Impact Report (EIR) when regulating carry-out bags. This case is a game-changer since it will decide the speed and ease for passing local ordinances.

In the summer of 2008 Manhattan Beach passed an ordinance banning the use of plastic bags at checkout by all retailers. This effort followed the Oakland ordinance which was dismissed by a court due to lack of CEQA review. Manhattan Beach chose to perform a CEQA review using a Negative Declaration, which essentially states there is no significant environmental impact. Immediately upon passage plastic bag manufacturers under the name “Save the Plastic Bag Coalition” filed suit claiming a full EIR under CEQA must be performed.

The original decision was in favor of the Coalition and prevented enactment by Manhattan Beach until an EIR was performed. Manhattan Beach promptly appealed the decision and was again rejected on the determination that enough environmental impact could exist to warrant full study in the form of an EIR. Manhattan Beach was not satisfied and appealed to the State Supreme Court in early 2010.

EIR’s require extensive analysis of environmental impacts in 23 separate areas which highlight specific impacts of one bag type over another. Plastic manufacturers have claimed the impact of their product in comparison is environmentally preferred. Given this belief they want jurisdictions to perform an EIR to highlight these specific impacts and apply the findings to the policy decision. Los Angeles County and San Jose both performed an EIR and passed ordinances and they were not sued.

It is important to recognize performing an EIR is a long and expensive process. An EIR usually requires $100,000 and 4-6 months to perform at a minimum. In comparison a Negative Declaration adds little additional cost and can be completed in 45-days.

Requiring local governments to perform an EIR is seen by many as creating a financial disincentive to pass ordinances. For the grocery industry this decision will dramatically affect the volume and speed of future ordinance consideration. If an EIR is not required local jurisdictions could pass a bag ordinance in a matter of weeks with little, if any, upfront costs. If required to perform an EIR some local governments may not engage or choose to band together to perform a regional EIR to share costs.

Regardless of the outcome bag ordinances will continue to be pursued by local governments. The unknown is if grocers will experience a flood of ordinances or continue to see a slow trickle.

CGA has learned that supporters of a Los Angeles ordinance to create “incentives” for increased fresh food infrastructure have come up with a two-part scheme to penalize grocers, both of which would make it more difficult for grocers to expand in the city. The union-backed advocacy organization LAANE has long sought to create a regulatory structure in the city that encourages some companies while penalizing others.

This new proposal would force grocers to obtain a conditional use permit for new store development or major remodel. If passed, grocers would expend significant funds to meet the administrative demands and face whithering opposition at public hearings from advocacy groups if they did not fit the model supported by LAANE. Several recent reports on the food desert situation in Los Angeles note that the city needs to streamline the permitting process, not make the process more complicated.
Second, the proposal would create a “mitigation fee” for attempting to build a new store or remodel a store in an area that is not designated a food desert by the City’s Planning Department. Again, increasing costs will only stymie development in the City, not create better, newer fresh food infrastructure.
It is unclear how much support the current proposal has but CGA is assessing the potential damage such an ordinance would have on new store development in the City.

San Diego issued the following notice today:

There are restrictions on the sale of oysters from the Gulf of Mexico. Title 17 of the California Code of Regulations, Section 13675, establishes the requirements for the sale of raw oysters harvested from the states bordering the Gulf of Mexico (Alabama, Florida, Louisiana, Mississippi and Texas).

The following are the three major provisions of this section:

1. The sale of raw, untreated Gulf oysters harvested from April 1 to October 31 is restricted in California.

2. Gulf oysters that have been subjected to a validated treatment process are exempted from the restrictions. Treatment processes are required to be verified by the CA Department of Public Health (CDPH) to reduce Vibrio vulnificus to non-detectable levels.

3. Warning signs in English and Spanish shall be posted if untreated raw Gulf oysters are sold to consumers between November 1 and March 31.
Food facilities that serve or offer for sale treated Gulf Oysters must have on file a current copy of their shellfish supplier’s certificate of “Verification of Oyster Treatment Process” from the CDPH.

The following shellfish processing companies have current certificates of “Verification of Oyster Treatment Process”: Ameripure Oyster Company, Crystal Seas Seafood, Hillman Shrimp and Oyster Company, Joey Oyster Inc, Motivatit Seafood, Inc. A and B Webb’s Seafood, Inc.

Gulf oysters treated by these processes are exempt from the sales restrictions and warning sign requirements, as long as their Verification of Oyster Treatment Process remains current. Persons with certain chronic diseases, especially those associated with liver disease are at high-risk for Vibrio vulnificus infections. Fifty percent of high-risk individuals, who become ill, die. These regulations strive to improve public health protection for consumers of raw Gulf Oysters.

Additional information can be obtained by consulting the California Department of Public Health’s web site at http://www.cdph.ca.gov/programs/Pages/FDB.aspx.

For additional information, contact the Food and Housing Division’s Duty Specialist at (858) 505-6900.

Our partners at the Valley Industry & Commerce Association (VICA) have been working to coordinate a response to Los Angeles’ effort to further regulate signs in the City. The Planning Department recently shared a Draft Sign Ordinance that they plan to put before the Planning and Land Use Management Committee (PLUM) in mid-April. Working within that short time-frame, Planning has agreed to hold an outreach meeting with the business community to take input on the ordinance on Thursday, March 31 from 12-2pm at City Hall (room TBD).

While the business community is encouraged that the ordinance represents a good effort to tie-together existing law and update it (to be in conformance with recent court decisions), it does raise substantive issues that cause concern. For example:

14.4.27: Violations and Administrative Civil Penalties (p. 37-39): Proposed penalties are extreme/severe, with even the smallest signs incurring penalties of $2,000-$8,000 per day

2. Size of SUD (p. 3): SUDs must be at least 15 acres. This seems too large, particularly in a dense/downtown area where development tends to go “up” and not “out”. We need to have the ability to make smaller SUDs to provide flexibility in urban context

3. 14.4.29: Right of Private Action (p. 41): Allows the owner or occupant of real property, within 500 feet of a sign, to sue for damages.

If you would like to review the language of the proposed ordinance, attend the meeting or submit written comments, please let me know and I will help you make your voice heard.

In tragic and shocking news, Marin County Supervisor Charles McGlashan, 49, died late Sunday evening of an apparent heart attack after a ski weekend at Lake Tahoe. He had served as County Supervisor since 2005. He is survived by his wife, Carol Misseldine.
As CGA’s local government representative to Marin County I had numerous conversations on several subjects with Supervisor McGlashan over the years. As noted by others, his enthusiasm for Marin County and his passion for environmental causes was immense. While we rarely agreed on policy issues there was not a single conversation that did not end on a lighter note with a genuine resolve to keep working. His genuine leadership was a gift and he used it well.

It is important to recognize that both Supervisor McGlashan and his wife, Carol, tremendously influenced the single-use bag discussion. Supervisor McGlashan moved Marin County towards a single-use bag ordinance after several years of work from the neighborhood level all the way to the State Legislature. Carol is responsible for the Green Cities California MEA which served as the base for the Los Angeles County and San Jose ordinances. Marin County passed its bag ordinance earlier this year with Supervisor McGlashan as its primary author.

An article from the Marin Independent Journal is available here.

By now you have probably heard that several jurisdictions in Southern California have passed single-use bag ordinances that will impact stores you have in those areas. Unincorporated Los Angeles County and Calabasas stores are required to comply with those ordinances beginning on July 1, 2011. Santa Monica’s bag ordinance requires implementation by September 1, 2011.

In the coming days, CGA will begin passing along marketing materials and tips for how to streamline the changes you will need to comply with the ordinances’ provisions. For instance, you will need to consult with paper and reusable bag vendors to ensure that your bags comply with new labeling requirements and UPC codes. Cash registers will need to be re-programmed to record the sale of paper bags for new reporting requirements. Finally, you will need to train staff to understand the intricacies of the ordinances (e.g., WIC and SNAP customers may not be charged a 10 cent fee for paper bags while all other customers must be charged the fee). Non-compliance with the ordinances could result in fines and bad publicity.
As always, you can always give me a call at 818-841-8640 or email me at [email protected] if you have questions or would like CGA to discuss a specific issue with city or county staff on your behalf.

A group of plastic bag manufacturers know as Save the Plastic Bag Coalition has filed a lawsuit against Marin County claiming they should have performed an Environmental Impact Report before passing their bag ordinance. Marin County declared the ordinance did not rise to the level of a full EIR which is the same approach Manhattan Beach took. The same organization sued Manhattan Beach and that case is pending before the California Supreme Court. Los Angeles County and City of San Jose both performed an EIR and have not been sued.

The difference between the two jurisdictions is Marin County placed a mandatory charge on paper bags as well as banning plastic. Manhattan Beach simply banned the use of plastic bags and left paper untouched. Manhattan Beach was ordered to not implement their ordinance pending the outcome of the lawsuit and the same may be true for Marin County. Until such an order is made stores in unincorporated Marin County should still plan for the January 1, 2012 start. CGA will monitor the situation and provide compliance information as it becomes available.

It will be interesting to see if this lawsuit will have a chilling effect on other jurisdictions hoping to ban plastic and require a charge on paper bags without performing an EIR. Santa Cruz County is next in-line to take this path with the City of Santa Cruz right behind. In many ways the question boils down to pure economics for governments – a $150,000 EIR upfront or risk $1,000,000 in legal costs.
Marin Independent Journal news article available here.

The California Directors of Environmental Health (CCDEH), the Food and Drug Administration (FDA), and the California Department of Public Health (CDPH) are sponsoring two sessions of the 2011 Managing Food Safety Course. One of the three-day sessions is being offered in San Diego, on March 1-3, 2011. The second session will be offered at Berkeley, from June 28-30, 2011.

2011 Managing Food Safety Course

Sponsored by CCDEH, FDA & CDPH

Course Description: This course is designed to allow participants an opportunity to explore the various ways that risk based inspections can be applied in retail and food service establishments. Topics will include the process approach to HACCP, applications of HACCP principles in routine inspection work, and assessing active managerial control of risk factors by operators through a HACCP system or other established food safety system. While the process approach is new to many regulators, it is better designed for use in retail and food service settings than traditional HACCP approaches because it eliminates lengthy flow charting and hazard analysis for every type of food product.

The press is reporting that Santa Ana Mayor Miguel Pulido had a financial relationship with a company owned by wealthy entrepreneur R.J. Brandes when he voted in 2006 to force grocers to install expensive locking wheel systems on their shopping carts. Brandes also owns Gatekeeper Systems, Inc., a company that gained financially from the passage of the cart containment ordinance. It is unclear whether Mayor Pulido’s relationship constituted illegal conduct or was just unethical. CGA will continue following the issue closely. In 2010, I reported to our members that the city was fining some grocers thousands of dollars for carts found on public property and encouraged grocers to install locking wheel systems. I’m sure there will be more developments on Santa Ana but the issue also raises questions about why so many other cities have pursued aggressive cart containment policies in recent years, even in jurisdictions without a significant abandoned cart problem.

At a recent Valley Industry & Commerce Association mixer, Los Angeles Councilman Paul Krekorian, who represents a large swath of the San Fernando Valley, called for the elimination of the city’s gross receipts tax. He stated that it is important to promote the creation of jobs and the tax makes the city less competitive when it comes to attracting new businesses. It is refreshing to hear pro-business proposals coming from a Councilmember who represents a fairly liberal council district. However, it remains to be seen how much headway the Councilmember could make on the subject when the City deficit is growing and perhaps the majority of the Council takes less equitable approach to business issues.