5619615 Energy and Environment, Department of - Notice of Proposed Rulemaking - Expanded Polystyrene Prohibition
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DEPARTMENT OF ENERGY AND ENVIRONMENT
NOTICE OF PROPOSED RULEMAKING
Expanded Polystyrene Prohibition
The Director of the Department of Energy and Environment (DOEE or Department), in accordance with the authority set forth in the District Department of the Environment Establishment Act of 2005, effective February 15, 2006 (D.C. Law 16-51; D.C. Official Code §§ 8-151.01 et seq. (2013 Repl.)); the Sustainable D.C. Omnibus Amendment Act of 2014 (“Act”), effective December 11, 2014 (D.C. Law 20-385; D.C. Official Code §§ 8-1531 et seq. (2012 Repl.)); Mayor’s Order 2015-069, dated February 4, 2015; and Mayor’s Order 2015-191, dated July 23, 2015, hereby gives notice of the intent to amend Title 21 (Water and Sanitation) of the District of Columbia Municipal Regulations (DCMR) by adopting a new Chapter 23 (Expanded Polystyrene Prohibition) to establish the standards for prohibiting expanded polystyrene food service products in the District of Columbia.
The proposed regulations implement the District’s prohibition on expanded polystyrene food service products under the Act. The proposed rulemaking establishes procedures for enforcement, administrative appeals, and judicial review, and defines the term “business or institutional cafeteria.”
Title 21 DCMR, WATER AND SANITATION, is amended by adding a new Chapter 23 as follows:
CHAPTER 23 EXPANDED POLYSTYRENE PROHIBITION
2300 PURPOSE
2301 EXPANDED POLYSTYRENE PROHIBITION
2302 [RESERVED]
2303 ENFORCEMENT
2304 ADMINISTRATIVE APPEALS AND JUDICIAL REVIEW
2399 DEFINITIONS
2300 PURPOSE
2300.1 The purpose of this chapter is to implement Title IV, Subtitle A, of the Sustainable D.C. Omnibus Amendment Act of 2014, effective December 11, 2014 (D.C. Law 20-385; D.C. Official Code §§ 8-1531 et seq.) to reduce the amount of expanded polystyrene entering the District’s rivers and streams and the nation’s landfills.
2301 Expanded Polystyrene PROHIBITION
2301.1 By January 1, 2016, no food service business shall sell or provide food or beverages in expanded polystyrene food service products, regardless of where the food or beverage will be consumed.
2301.2 This section shall not apply to food or beverages that were filled and sealed in expanded polystyrene containers before a food service business received them or to materials used to package raw, uncooked, or butchered meat, fish, poultry, or seafood for off-premises consumption.
2302 [RESERVED]
2303 Enforcement
2303.1 Violation of any of the requirements of this chapter or Title IV, Subtitle A, of the Sustainable D.C. Omnibus Amendment Act of 2014, shall subject a food service business to the penalties set forth in this section.
2303.2 The Department may enforce a violation of this chapter by issuing one or more of the following:
(a) Notice of violation; or
(b) Notice of infraction.
2303.3 The Department may issue a notice of infraction without first issuing a notice of violation or threatened violation.
2303.4 Sanctions, including civil fines and penalties, may be imposed pursuant to the Department of Consumer and Regulatory Affairs Civil Infractions Act of 1985, effective October 5, 1985 (D.C. Law 6-42; D.C. Official Code §§ 2-1801 et seq.).
2303.5 The Department may also initiate a civil action in the Superior Court of the District of Columbia to secure a temporary restraining order, preliminary injunction, or other relief necessary for enforcement of this chapter.
2303.6 Each instance or day of a violation of each provision of this chapter shall be a separate violation.
2303.7 The Department may enter any food service business during normal business hours for the purpose of determining whether a food service business is selling or providing food or beverages in expanded polystyrene food service products.
2304 ADMINISTRATIVE APPEALS AND JUDICIAL REVIEW
2304.1 A person adversely affected by an enforcement action of the Department shall exhaust administrative remedies by timely filing an administrative appeal with, and requesting a hearing before, the Office of Administrative Hearings (OAH), established pursuant to the Office of Administrative Hearings Establishment Act of 2001, effective March 6, 2002 (D.C. Law 14-76; D.C. Official Code, §§ 2-1831.01 et seq.), or OAH’s successor.
2304.2 The appeal to OAH shall be filed in writing within fifteen (15) calendar days of service, or twenty (20) calendar days if service is made by United States mail.
2304.3 The Department may toll a period for filing an administrative appeal with OAH if it does so explicitly in writing before the period expires.
2304.4 OAH shall:
(a) Resolve a notice of infraction by:
(1) Affirming, modifying, or setting aside the Department’s action complained of, in whole or in part;
(2) Remanding for Department action or further proceedings, consistent with OAH’s order; or
(3) Providing such other relief as the governing statutes, regulations, and rules support;
(b) Act with the same jurisdiction, power, and authority as the Department may have for the matter currently before OAH; and
(c) Render a final decision that shall constitute a final agency action subject to judicial review.
2304.5 The filing of an administrative appeal shall not in itself stay enforcement of an action, except that a person may request a stay according to the rules of OAH.
2304.6 The burden of production in an appeal of an action of the Department shall be allocated to the person who appeals the action, except that it shall be allocated:
(a) To the party who asserts an affirmative defense; and
(b) To the party who asserts an exception to the requirements or prohibitions of a statute or rule.
2304.7 The final OAH decision on an administrative appeal shall thereafter constitute the final, reviewable action of the Department, and shall be subject to the applicable statutes and rules of judicial review for OAH final orders.
2304.8 Nothing in this chapter shall be interpreted to:
(a) Provide that a filing of a petition for judicial review stays enforcement of an action; or
(b) Prohibit a person from requesting a stay of the OAH proceedings according to the rules of the court.
2399 Definitions
2399.1 When used in this chapter, the following terms shall have the meanings ascribed:
Business or institutional cafeteria - A facility operated by a for-profit, non-profit, or government entity that has a dedicated space for food preparation and serves food on a recurring basis.
Department - The Department of Energy and Environment.
Expanded polystyrene - blown polystyrene and expanded and extruded foams that are thermoplastic petrochemical materials utilizing a styrene monomer and processed by a number of techniques, including fusion of polymer spheres (expandable bead polystyrene), injection molding, foam molding, and extrusion-blow molding (extruded foam polystyrene).
Expanded polystyrene food service products - food containers, plates, hot and cold beverage cups, meat and vegetable trays, egg cartons, and other products made of expanded polystyrene and used for selling or providing food.
Food service business - full service restaurants, limited-service restaurants, fast foods restaurants, cafes, delicatessens, coffee shops, supermarkets, grocery stores, vending trucks or carts, food trucks, business or institutional cafeterias, including those operated by or on behalf of District departments and agencies, and other businesses selling or providing food within the District for consumption on or off the premises.
All persons desiring to comment on the proposed regulations should file comments in writing no later than thirty (30) days after the publication of this notice in the D.C. Register. Comments should identify the commenter and be clearly marked “DOEE Foam Proposed Rule Comments.” Comments may be (1) mailed or hand-delivered to DOEE, 1200 First Street NE, 5th Floor, Washington, D.C. 20001, Attention: DOEE Foam Regulations, or (2) sent by e-mail to DOEE.FoamRegulations@dc.gov, with the subject indicated as “DOEE Foam Proposed Rule Comments.”
The proposed rules are available for viewing at: http://doee.dc.gov/foam. Additionally, a copy of these proposed rules will be on file for viewing at the Martin Luther King, Jr. Library, 901 G St., NW, Washington, D.C. 20001, during normal business hours.
