San Bernardino County Municipal Code Ch. 15 Food Recovery

On September 19, 2016, Governor Brown signed into law Senate Bill No. 1383 (SB 1383), the Short-lived Climate Pollutant Reduction Act, which places requirements on multiple entities including the San Bernardino County, other jurisdictions, residential households, commercial businesses and business owners, commercial edible food generators, solid waste haulers, self-haulers, food recovery organizations, and food recovery services to support achievement of statewide organic waste disposal reduction targets, reduce greenhouse gas emissions generated from the production of methane from the landfilling of organics and also help reduce food insecurity by requiring commercial edible food generators arrange to have the maximum amount of their edible food, that would otherwise be disposed, be recovered for human consumption.

(Ord. 4434, passed - -2022)

Pursuant to Title 14, Division 7, Chapter 12, § 18791.2 of CCR, San Bernardino County has found that the public's interest in achieving the organic waste disposal targets set by the State will be best served by Department of Public Health, Division of Environmental Health Services ("DEHS"). The Director, each Inspector, other designated employees of DEHS and Enforcement Officers as defined in this Chapter are hereby authorized to enforce and administer all State law pertaining to environmental health and all provisions of this Environmental Health Code (E.H. Code) within this jurisdiction, the unincorporated areas of San Bernardino County and any contracted cities therein. This authority is granted to the Director, each Inspector, other designated employees of DEHS and Enforcement Officers as defined in this Chapter. DEHS may charge reasonable fees for their services, including fees as are prescribed by the San Bernardino County Code Schedule of Fees.

(Ord. 4434, passed - -2022)

For the purposes of this Chapter, the following terms have the following meanings. The word "shall" is mandatory and not merely directory or permissive.

CALIFORNIA CODE OF REGULATIONS or CCR. The State of California Code of Regulations. CCR references in this Chapter are preceded with a number that refers to the relevant Title of the CCR (e.g., "14 CCR" refers to Title 14 of CCR).

CALRECYCLE. California's Department of Resources Recycling and Recovery, which is the Department designated with responsibility for developing, implementing, and enforcing SB 1383 Regulations on Jurisdictions (and others).

COMMERCIAL EDIBLE FOOD GENERATOR. Includes a tier one or a tier two commercial edible food generator as defined in § 33.1503 or as otherwise defined in 14 CCR § 18982(a)(73) and (a)(74). For the purposes of this definition, food recovery organizations and food recovery services are not commercial edible food generators pursuant to 14 CCR § 18982(a)(7).

COMPOSTABLE PLASTICS. Plastic materials that meet the ASTM D6400 standard for compostability, or as otherwise described in 14 CCR § 18984.1(a)(1)(A) or § 18984.2(a)(1)(C).

EDIBLE FOOD. Food intended for human consumption and collected or received from a tier one or tier two commercial edible food generator. For the purposes of this Chapter or as otherwise defined in 14 CCR § 18982(a)(18), "edible food" is not solid waste if it is recovered and not discarded. Nothing in this Chapter or in 14 CCR, Division 7, Chapter 12 requires or authorizes the recovery of edible food that does not meet the food safety requirements of the California Retail Food Code.

EDIBLE FOOD RECOVERY. Actions to collect, receive, and/or redistribute edible food for human consumption from tier one and tier two commercial edible food generators that otherwise would be disposed.

ENFORCEMENT ACTION. An action of DEHS or its Enforcement Officer to address non-compliance with this Chapter including, but not limited to, issuing administrative citations, fines, penalties, or using other remedies.

ENFORCEMENT OFFICER. An entity that DEHS contracts with or otherwise arranges to carry out any of the DEHS's responsibilities of this Chapter as authorized in 14 CCR § 18981.2. An Enforcement Officer may be a government entity, a hauler, a private entity, or a combination of those entities, specifically:

(1) The Division Chief, each Code Enforcement Supervisor, and each Code Enforcement Officer or other designated employee of the Code Enforcement Division of the Land Use Services Department;

(2) The Building Official, each Regional Building and Safety Supervisor, each Building Inspector, and other designated employees of the Building and Safety Division of the Land Use Services Department;

(3) The Fire Chief/Fire Warden, Fire Marshal, and other designated employees of the San Bernardino County Fire Protection District;

(4) The Division Chief, each Animal Control Supervisor/Officer, and other designated employees of the Animal Care and Control Program of the Department of Public Health;

(5) The Sheriff-Coroner, each Deputy Sheriff (all ranks), and other designated employees of the Department of the Sheriff-Coroner;

(6) The Director and other designated employees of the Public Works Department; and

(7) Any other Director and other designated employees of a County Department or Special District as designated by DEHS Administrative Officer or the Board of Supervisors.

FOOD DISTRIBUTOR. A company that distributes food to entities including, but not limited to, Supermarkets and Grocery Stores.

FOOD FACILITY. Has the same meaning as in § 113789 of the Health and Safety Code.

FOOD RECOVERY. Actions to Collect and distribute food for human consumption that otherwise would be disposed, or as otherwise defined in 14 CCR § 18982(a)(24).

FOOD RECOVERY ORGANIZATION. An entity that engages in the collection or receipt of edible food from commercial edible food generators and distributes that edible food to the public for food recovery either directly or through other entities, including, but not limited to:

(1) A food bank as defined in § 113783 of the Health and Safety Code;

(2) A nonprofit charitable organization as defined in § 113841 of the Health and Safety code; and,

(3) A nonprofit charitable temporary food facility as defined in § 113842 of the Health and Safety Code.

A food recovery organization is not a commercial edible food generator for the purposes of this Chapter and implementation of 14 CCR, Division 7, Chapter 12 pursuant to 14 CCR § 18982(a)(7).

FOOD RECOVERY SERVICE. A person or entity that collects and transports edible food from a commercial edible food generator to a food recovery organization or other entities for food recovery. A food recovery service is not a commercial edible food generator for the purposes of this Chapter and implementation of 14 CCR, Division 7, Chapter 12 pursuant to 14 CCR § 18982(a)(7).

FOOD SCRAPS. Non-wholesome or inedible food such as, but not limited to, fruits, vegetables, meat, poultry, seafood, shellfish, bones, rice, beans, pasta, bread, cheese, and eggshells. Food scraps excludes fats, oils, and grease when such materials are source separated from other food scraps.

FOOD SERVICE PROVIDER. An entity primarily engaged in providing food services to institutional, governmental, commercial, or industrial locations of others based on contractual arrangements with these types of organizations.

FOOD-SOILED PAPER. Compostable paper material that has come in contact with food or liquid, such as, but not limited to, compostable paper plates, paper coffee cups, napkins, pizza boxes, and milk cartons.

FOOD WASTE. Food scraps, food-soiled paper, and compostable plastics.

GROCERY STORE. A store primarily engaged in the retail sale of canned food; dry goods; fresh fruits and vegetables; fresh meats, fish, and poultry; and any area that is not separately owned within the store where the food is prepared and served, including a bakery, deli, and meat and seafood departments.

HEALTH FACILITY. A health facility as defined in § 1250 of the Health and Safety Code.

HOTEL. A hotel as defined in § 17210 of the Business and Professions Code.

INSPECTION. For the purposes of edible food recovery, actions to review contracts and other records related to the recovery of edible food and may occur off-site via email and other forms of electronic communication, as well as the on-site review of an entity's records and collection, handling, and other procedures for the recovery of edible food to determine if the entity is complying with the requirements of this Chapter.

LARGE EVENT means an event, including, but not limited to, a sporting event or a flea market, that charges an admission price, or is operated by a local agency, and serves an average of more than 2,000 individuals per day of operation of the event, at a location that includes, but is not limited to, a public, nonprofit, or privately owned park, parking lot, golf course, street system, or other open space when being used for an event. If the definition in 14 CCR § 18982(a)(38) differs from this definition, the definition in 14 CCR § 18982(a)(38) shall apply to this Chapter.

LARGE VENUE. A permanent venue facility that annually seats or serves an average of more than 2,000 individuals within the grounds of the facility per day of operation of the venue facility. For purposes of this Chapter and implementation of 14 CCR, Division 7, Chapter 12, a venue facility includes, but is not limited to, a public, nonprofit, or privately owned or operated stadium, amphitheater, arena, hall, amusement park, conference or civic center, zoo, aquarium, airport, racetrack, horse track, performing arts center, fairground, museum, theater, or other public attraction facility. For purposes of this Chapter and implementation of 14 CCR, Division 7, Chapter 12, a site under common ownership or control that includes more than one large venue that is contiguous with other large venues in the site, is a single large venue. If the definition in 14 CCR § 18982(a)(39) differs from this definition, the definition in 14 CCR § 18982(a)(39) shall apply to this Chapter.

LOCAL EDUCATION AGENCY. A school district, charter school, or county office of education that is not subject to the control of city or county regulations related to solid waste, or as otherwise defined in 14 CCR § 18982(a)(40).

NOTICE OF VIOLATION (NOV). A notice that a violation has occurred that includes a compliance date to avoid an action to seek penalties, or as otherwise defined in 14 CCR § 18982(a)(45) or further explained in 14 CCR § 18995.4.

RESTAURANT. An establishment primarily engaged in the retail sale of food and drinks for on-premises or immediate consumption, or as otherwise defined in 14 CCR § 18982(a)(64).

SELF-HAULER. For the purposes of edible food recovery, a commercial edible food generator which holds a contract with and hauls edible food to a food recovery organization or other site for redistribution according to the requirements of this Chapter.

STATE AGENCY. State office, officer, department, division, bureau, board, and commission.

SUPERMARKET. A full-line, self-service retail store with gross annual sales of two million dollars ($2,000,000), or more, and which sells a line of dry grocery, canned goods, or nonfood items and some perishable items, or as otherwise defined in 14 CCR § 18982(a)(71).

TIER ONE COMMERCIAL EDIBLE FOOD GENERATOR. A commercial edible food generator that is one of the following:

(1) Supermarket.

(2) Grocery store with a total facility size equal to or greater than 10,000 square feet.

(3) Food service provider.

(4) Food distributor.

(5) Wholesale food vendor.

If the definition in 14 CCR § 18982(a)(73) of tier one commercial edible food generator differs from this definition, the definition in 14 CCR § 18982(a)(73) shall supersede and apply to this Chapter.

TIER TWO COMMERCIAL EDIBLE FOOD GENERATOR. A commercial edible food generator that is one of the following:

(1) Restaurant with 250 or more seats, or a total facility size equal to or greater than 5,000 square feet.

(2) Hotel with an on-site food facility and 200 or more rooms.

(3) Health facility with an on-site food facility and 100 or more beds.

(4) Large venue.

(5) Large event.

(6) A state agency with a cafeteria with 250 or more seats or total cafeteria facility size equal to or greater than 5,000 square feet.

(7) A local education agency facility with an on-site food facility.

If the definition in 14 CCR § 18982(a)(74) of tier two commercial edible food generator differs from this definition, the definition in 14 CCR § 18982(a)(74) shall supersede and apply to this Chapter.

WHOLESALE FOOD VENDOR. A business or establishment engaged in the merchant wholesale distribution of food, where food (including fruits and vegetables) is received, shipped, stored, prepared for distribution to a retailer, warehouse, distributor, or other destination, or as otherwise defined in 14 CCR § 189852(a)(76).

(Ord. 4434, passed - -2022)

(a) Tier one commercial edible food generators must comply with the requirements of this Section commencing January 1, 2022, and tier two commercial edible food generators must comply commencing January 1, 2024, pursuant to 14 CCR § 18991.3.

(b) Large venue or large event operators not providing food services, but allowing for food to be provided by others, shall require food facilities operating at the large venue or large event to comply with the requirements of this Section, commencing January 1, 2024.

(c) Tier one and tier two commercial edible food generators shall comply with the following requirements:

(1) Arrange to recover the maximum amount of edible food that would otherwise be disposed.

(2) Use the CalRecycle Model Food Recovery Agreement or the contractual elements contained in the requirements for food recovery organizations and food recovery services section of this Chapter to contract with, or otherwise enter into a written agreement with food recovery organizations or food recovery services for:

(A) The collection of edible food for edible food recovery from the tier one or tier two commercial edible food generator's premises; or

(B) The acceptance of edible food that the tier one or tier two commercial edible food generator self-hauls to the food recovery organization.

(3) Shall not intentionally spoil edible food that is capable of being recovered by a food recovery organization or a food recovery service.

(4) Allow DEHS or its Enforcement Officer to access the premises and review records related to edible food recovery and/or provide them electronically if requested by DEHS.

(5) Keep records that include the following information:

(A) A list of each food recovery organization or a food recovery service that collects or receives edible food from the tier one or tier two commercial edible food generator pursuant to a contract or written agreement as required by this Chapter.

(B) A copy of all contracts or written agreements established under the provisions of this Chapter.

(C) A record of the following information for each of those food recovery services or food recovery organizations:

(I) The name, address and contact information of the food recovery service or food recovery organization.

(II) The types of food that will be collected by or self-hauled to the food recovery service or food recovery organization.

(III) The established schedule or frequency that food will be collected or self-hauled.

(IV) The quantity of food, measured in pounds recovered per month, collected or Self-hauled to a food recovery service or food recovery organization for food recovery.

(6) Commencing no later than July 1, 2022 for tier one commercial edible food generators and July 1, 2024 for tier two commercial edible food generators, and July 1 each year therein after, they shall provide an annual edible food recovery report to County that includes, but is not limited to, the information collected in records per § 33.1504(c)(5) in addition to the following information: a list of all types of edible food categories they generate, such as "baked goods," that are not accepted by the food recovery organizations and food recovery services with whom they contract, and certification that all staff responsible for edible food recovery have obtained a valid and unexpired San Bernardino County food handler card. With the exception of the food safety and handling training certification, tier one and tier two commercial edible food generators may coordinate with their edible food recovery contractors to supply this information.

(7) Tier one and tier two commercial edible food generators who self-haul. Edible food shall require those transporting edible food for recovery to obtain a valid and unexpired San Bernardino County food handler card and follow the best practices and standards for proper temperature control, methods, and procedures for the safe handling and transport of food.

(8) Nothing in this Chapter shall be construed to limit or conflict with the protections provided by the California Good Samaritan Food Donation Act of 2017, the Federal Good Samaritan Act, or share table and school food donation guidance pursuant to Senate Bill 557 of 2017.

(Ord. 4434, passed - -2022)

(a) Food Recovery Services operating in the County and collecting or receiving Edible Food directly from Tier One and/or Tier Two Commercial Edible Food Generators via a contract or written agreement established under the requirements of this Chapter, shall maintain the following records:

(1) The name, address, and contact information for each Tier One and Tier Two Commercial Edible Food Generator from which the service Collects Edible Food.

(2) The quantity in pounds of Edible Food by type collected from each Tier One and Tier Two Commercial Edible Food Generator per month.

(3) The quantity in pounds of Edible Food by type transported to each Food Recovery Organization or redistribution site per month.

(4) The name, address, and contact information for each food recovery organization or redistribution site that the food recovery service transports edible food to for edible food recovery.

(b) Commencing no later than July 1, 2022, food recovery organizations and food recovery services operating in the county and collecting or receiving edible food from tier one and tier two commercial edible food generators or any other source shall report to County the following: a detailed Edible Food activity report of the information collected as required under this Chapter, including information collected in records per § 33.1505(a) in addition to a brief analysis of any necessary process improvements or additional infrastructure needed to support edible food recovery efforts, such as training, staffing, refrigeration, vehicles, etc., and an up to date list of tier one and tier two commercial edible food generators with whom they have contracts or agreements established as required under this Chapter. This edible food activity report shall be submitted quarterly, or at the discretion of DEHS or its Enforcement Officer, and shall cover the activity that occurred since the period of the last submission.

(c) In order to provide the required records to the State, the County, and tier one or tier two commercial edible food generators, contracts between food recovery organizations and food recovery services and tier one and tier two commercial edible food generators shall include the following elements:

(1) List/description of allowable foods the food recovery organization/food recovery service will receive.

(2) List/description of foods not accepted by the food recovery organization/food recovery service.

(3) Conditions for refusal of food.

(4) Food safety requirements, training, and protocols.

(5) Transportation and storage requirements and training.

(6) A protocol for informing the tier one or tier two commercial edible food generators of a missed or delayed pickup.

(7) Notice that donation dumping is prohibited.

(8) Provisions to collect sufficient information to meet the record-keeping requirements of this Chapter.

(9) Fees/financial contributions/acknowledgment of terms for the pickup and redistribution of edible food.

(10) Terms and conditions consistent with the CalRecycle Model Food Recovery Agreement.

(11) Information supplying the tier one or tier two commercial edible food generators with the annual amount of edible food recovered.

(12) Contact name, address, phone number, and email for both responsible parties, including the current on-site staff responsible for edible food recovery.

(13) Food recovery organizations accepting self-hauling of edible food from tier one and tier two commercial edible food generators must provide a schedule, including days of the week and acceptable times for drop-offs, and information about any limitation on the amount of food accepted, and/or the packaging requirements or other conditions of transport, such as, but not limited to, maintaining proper temperature control, and other requirements for the safe handling and transport of food, the self- hauler must follow for the edible food to be accepted.

(d) Food recovery organizations and food recovery services operating in the County shall use the appropriate temperature control equipment and methods and maintain the required temperatures for the safe handling of edible food recovered from tier one and tier two commercial edible food generators for the duration of the transportation of the edible food for redistribution, including edible food transported by private vehicles.

(e) In order to ensure recovered edible food is eaten and to prevent donation dumping, food recovery organizations and food recovery services operating in the County shall provide documentation that all redistribution sites which are not themselves food recovery organizations to which they deliver edible food have a feeding or redistribution program in place to distribute, within a reasonable time, all the edible food they receive. Such documentation may include a website address which explains the program or pamphlets/brochures prepared by the redistribution site.

(f) Food recovery organizations and food recovery services operating in the county shall visually inspect all edible food recovered or received from a tier one and tier two commercial edible food generator. If significant spoilage is found, or if the food is otherwise found to be unfit for redistribution for human consumption, food recovery organizations and food recovery services shall immediately notify the County using the process found on the San Bernardino County's DEHS website. The notice shall include:

(1) The type and amount, in pounds, of spoiled food or food unfit for redistribution for human consumption, or provide a photographic record of the food, or both.

(2) The date and time such food was identified.

(3) The name, address and contact information for the tier one or tier two commercial edible food generator which provided the food.

(4) The date and time the food was picked up or received.

(5) A brief explanation of why the food was rejected or refused.

(g) Contracts between tier one or tier two commercial edible food generators and food recovery organizations or food recovery services shall not include any language prohibiting tier one or tier two commercial edible food generators from contracting or holding agreements with multiple food recovery organizations or food recovery services.

(h) Allow DEHS or its Enforcement Officer for edible food recovery to access the premises and inspect procedures and review records related to edible food recovery and/or provide them electronically if requested by the County.

(Ord. 4434, passed - -2022)

In order to support edible food recovery capacity planning assessments or other such studies, food recovery services and food recovery organizations operating in the County shall provide information and consultation to the County upon request, regarding existing, or proposed new or expanded, edible food recovery capacity that could be accessed by the County and its tier one and tier two commercial edible food generators. A food recovery service or food recovery organization contacted by the County shall respond to such requests for information within 60 days.

(Ord. 4434, passed - -2022)

(a) DEHS or its Enforcement Officer are authorized to conduct inspections and investigations, at random or otherwise, to confirm compliance with this Chapter by tier one and tier two commercial edible food generators, food recovery services, and food recovery organizations, subject to applicable laws.

(b) Regulated entities shall provide or arrange for access during all inspections and shall cooperate with the County's representative during such inspections and investigations. Such inspections and investigations may include confirmation of proper placement of materials in containers, edible food recovery activities, records, or any other requirement of this Chapter described herein. Failure to provide or arrange for: (i) access to an entity's premises; (ii) access to records for any inspection or investigation is a violation of this Chapter and may result in penalties described.

(c) Any records obtained by the County during its inspections or other reviews shall be subject to the requirements and applicable disclosure exemptions of the Public Records Act as set forth in Government Code §§ 6250 et seq.

(d) DEHS or its Enforcement Officer are authorized to conduct any inspections, or other investigations as reasonably necessary to further the goals of this Chapter, subject to applicable laws.

(e) DEHS or its Enforcement Officer shall receive complaints from Persons regarding an entity that may be potentially non-compliant with this Chapter or SB 1383 Edible Food Recovery Regulations, including receipt of anonymous complaints.

(Ord. 4434, passed - -2022)

(a) Violation of any provision of this Chapter shall constitute grounds for issuance of a Notice of Violation and assessment of a fine by DEHS or its Enforcement Officer. DEHS may commence Enforcement Actions under this Chapter by issuing an administrative citation and assessing a fine. County's procedures on imposition of administrative fines are hereby incorporated in their entirety, as modified from time to time, and shall govern the imposition, enforcement, Collection, and review of administrative citations issued to enforce this Chapter and any rule or regulation adopted pursuant to this Chapter, except as otherwise indicated in this Chapter.

(b) Other remedies allowed by law may be used, including civil action or prosecution as an infraction. DEHS may pursue civil actions in the California courts to seek recovery of unpaid administrative citations. DEHS may elect to delay court action until such time as a sufficiently large number of violations, or cumulative size of violations exist such that court action is a reasonable use of County staff and resources.

(c) Responsible entity for enforcement.

(1) Enforcement pursuant to this Chapter may be undertaken by DEHS Enforcement Official or county manager or representative who will interpret the Ordinance; determine the applicability of waivers, if violation(s) have occurred; implement enforcement actions; and, determine if compliance standards are met.

(d) Process for enforcement.

(1) DEHS will monitor compliance with the Ordinance randomly and through investigation of complaints, and an inspection program.

(2) DEHS may issue an official notification to notify regulated entities of its obligations under the Ordinance.

(3) DEHS will issue a Notice of Violation to any tier one or tier two commercial edible food generator found to have edible food in any waste collection container, or to any food recovery organization or food recovery service found to have edible food recovered from a tier one or tier two edible food generator in a waste collection container which has not been documented by a notice of significant spoilage as required in this Chapter. Such notice will be provided by written communication immediately upon identification of the violation or within three calendar days after determining that a violation has occurred. If DEHS observes edible food in a tier one or tier two commercial edible food generator, or food recovery organization, or food recovery service waste container on more than two consecutive occasion(s), DEHS may assess an administrative citation and fine, pursuant to the edible food recovery penalties provisions contained in this Chapter, on the tier one or tier two commercial edible food generator, food recovery organization, or food recovery service.

(4) DEHS shall issue a Notice of Violation requiring compliance within 60 days of issuance of the notice.

(5) Absent compliance by the entity within the deadline set forth in the Notice of Violation, DEHS shall commence an action to impose penalties, via an administrative citation and fine, pursuant to the Edible Food Recovery penalties provisions contained in this Chapter.

(e) Penalty amounts for types of violations. The penalty levels are as follows:

(1) For a first violation, the amount of the base penalty shall be $100 per violation.

(2) For a second violation, the amount of the base penalty shall be $200 per violation.

(3) For a third or subsequent violation, the amount of the base penalty $500 per violation.

(f) Compliance deadline extension considerations. DEHS may extend the compliance deadlines set forth in a Notice of Violation issued when such failure or delay in compliance is caused by or results from causes beyond the reasonable control of the entity such as:

(1) Acts of God such as earthquakes, wildfires, flooding, and other emergencies or natural disasters;

(2) Delays in obtaining discretionary permits or other government agency approvals; or,

(3) Deficiencies in Organic Waste Recycling infrastructure or edible food recovery capacity and DEHS is under a corrective action plan with CalRecycle pursuant to 14 CCR § 18996.2 due to those deficiencies.

(g) Appeals process.

(1) Persons receiving an administrative citation containing a penalty for an uncorrected violation may request a hearing to appeal the citation. A hearing will be held only if it is requested within the time prescribed and consistent with County's procedures in DEHS's codes for appeals of administrative citations. Evidence may be presented at the hearing. DEHS will appoint a hearing officer who shall conduct the hearing and issue a final written order.

(h) Education period for non-compliance. Beginning January 1, 2022 and through December 31, 2023, DEHS will conduct inspections to determine compliance, and if DEHS determines that a tier one commercial edible food generator, food recovery organization, or food recovery service is not in compliance, it shall provide educational materials and training to the entity describing its obligations under this Chapter and a notice that compliance is required by January 1, 2022, and that violations may be subject to administrative civil penalties starting on January 1, 2024.

(i) Civil penalties for non-compliance. Beginning January 1, 2024, if DEHS determines that tier one or tier two commercial edible food generator, food recovery organization, or food recovery service is not in compliance with this Chapter, it shall document the noncompliance or violation, issue a Notice of Violation, and take enforcement action pursuant to this Chapter, as needed.

(Ord. 4434, passed - -2022)