Judge overturns New York’s polystyrene ban

The New York State Supreme Court has overturned New York City's ban on foam foodservice items, clearing the way for a recycling program that would cover 100 percent of polystyrene (PS) products and generate new revenue for the city, according to Dart Container Corp, a Mason, Michigan-based company that also was a party to the legal case.

The ruling from Judge Margaret Chan overturns the ban completely, stating clearly that the “one undisputed short answer to whether EPS (expanded polystyrene) is recyclable is yes: single-serve EPS is recyclable.” The ruling refers the matter to the Department of Sanitation for further consideration consistent with the court order, allowing for recycling of the city’s EPS and No. 6 rigid PS to move forward.

A lawsuit brought against Mayor Bill de Blasio, Sanitation Commissioner Kathryn Garcia and the Department of Sanitation in July 2015 challenged the legality of the decision to ban EPS foam. At the time, the New York Restaurant Action Alliance (RAA) said more than 1,000 small business owners from New York City’s five boroughs had signed a petition demanding de Blasio reverse his foam foodservice products ban. Restaurants and bodegas say they consider the ban, which went into effect on July 1, 2015, but was not scheduled to be enforced until January 2016, a serious threat. Those who signed the petition say the mayor defied his own campaign promise to strengthen the city’s small business infrastructure by enforcing the ban.

According to the RAA, a recent decision by the court denied the Natural Resources Defense Council a stake in the lawsuit, stating the group had “neither a claim nor a defense” relevant to the question at hand: whether the city’s ban on foam was arbitrary and capricious in light of evidence that foam can be recycled instead.

“This decision is a victory for the environment and for New York City, which can now become a national leader in recycling by removing every piece of polystyrene from its waste stream—and making money in the process,” says former City Councilman Robert Jackson, who heads the RAA. “The judge has ended the debate about polystyrene recycling by making clear it can be recycled and there is a market for it. Now it’s time for the city to capitalize on this development.”

Michael Westerfield of Dart Container Corp. says, “Our offer to pay every dime of the startup costs for recycling, and to ensure the city can sell its recycled product, stands. The victory here is for the environment and for recycling. We are eager to work with the city to get recycling started as soon as possible.”

“We’re gratified by Judge Chan’s decision and look forward to working with the city to implement a comprehensive recycling plan that will reduce the volume of our city’s waste stream and generate revenue for the city,” says Randy Mastro, partner at the law firm Gibson Dunn.

In July, the RAA said the ban on foam takeout cups and containers would hit small restaurant owners disproportionately. Noting the high price of foam alternatives, some owners estimated their costs would more than double, forcing them to lay off employees, raise prices or close, the group said.

The RAA says other large U.S. cities, such as Denver, have established successful foam recycling programs. In mid-July 2015, Denver residents and commercial companies could include PS foam foodservice packaging, egg cartons, meat trays and protective packaging in their recycling bins. The expansion of the recycling program was funded by a $45,000 grant from the Foam Recycling Coalition, a program of the Foodservice Packaging Institute.