New York City Ban on Polystyrene Invalidated
A New York state court has vacated a New York City prohibition on
expanded polystyrene foam (EPS) after a challenge by several food companies, supermarkets and food-service businesses that used EPS in
their food packaging. Dart Container Corp. v. De Blasio, No. 100734/15
(N.Y. Super. Ct., order entered September 21, 2015).
The court provides a history of the municipal ban—more specifically,
a statute dictating that EPS would be prohibited in favor of recyclable
materials unless the commissioner of the Department of Sanitation of
New York (DSNY) found it to be recyclable—which went into effect July 1,
2015, with penalties delayed until January 2016. Among the plaintiffs are
Dart Container Corp., the largest EPS manufacturer, and Plastics Recycling
Inc., an EPS recycler, which offered proposals that would designate
EPS as recyclable and thereby permit it under the city statute.
“The mandate to the Commissioner was to determine whether EPS
should be designated as recyclable,” the court noted. “The one undisputed
short answer to whether EPS is recyclable is yes: single serve EPS
is recyclable. The tougher question is whether dirty or post-consumer
single service EPS can be recycled in a manner that is environmentally
effective and economically feasible so to be designated as recyclable.”
The court then considered the feasibility of the recycling companies’
proposals and found that the DSNY commissioner failed to consider,
among other things, “Dart’s state-of-the-art optical sorting machine” that
can recycle between 75 to 95 percent of EPS materials.
“The Commissioner, of course, has discretion to choose the evidence
upon which she relies,” the court found. “However, in reaching the
conclusion that there is no sustainable market for post-consumer EPS in
both her environmentally efficient and economic feasibility analysis, the
Commissioner did not clearly state the basis of her conclusions when the
evidence contrary to her findings were clearly before her.” Accordingly,
the court vacated the commissioner’s determination that EPS was not
recyclable as arbitrary and capricious.
Issue 579
