A state court has denied a petition to overturn a New York City ban on the use of expanded polystyrene foam (EPS) containers, finding the city's determination “was a painstakingly studied decision and was in no way rendered arbitrarily or capriciously.” In re Application of Rest. Action All. v. City of New York, No. 100731/2015 (N.Y. Super. Ct., New York Cty., entered June 5, 2018). In 2015, the same court vacated and annulled findings by the city commissioner of sanitation in support of the ban because of “shortfalls” in the findings, remanding the matter for reconsideration. “This time,” the court said, “the Commissioner’s findings are based on reviews of petitioners’ evidence and on [the sanitation department’s] further studies and research.” Among the city’s findings, the court said, were (i) a 30-year history of “failure of subsidized markets of foam recyclers”; (ii) the lack of market for post-consumer recycled foam, particularly soiled…
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New York City is reportedly considering a bill that would require curbside recycling of expanded polystyrene foam (EPS) containers. The city’s Sanitation Department is currently under a court mandate to develop a plan to collect and clean EPS containers. New York City previously attempted to ban EPS containers in 2013, but a court invalidated the prohibition after a challenge by several food companies, supermarkets and foodservice businesses. Additional details on the decision and the city’s appeal appear in Issues 579 and 583 of this Update. See Huffington Post, May 4, 2017; New York Post, May 7, 2017. Issue 634
New York City has appealed a trial court decision overturning a determination that expanded polystyrene foam (EPS) cannot be recycled, which had resulted in a municipal ban on the material. In re Restaurant Action Alliance, NYC, No. 100734 (N.Y. App. Ct., filed October 26, 2015). The appeal argues that the commissioner of the Department of Sanitation of New York conducted an extensive review over six months before reaching the determination that EPS could not feasibly be recycled and, thus, should be banned from commercial use within the city. “City Council prudently left determination of predictive questions about the future feasibility and sustainability of recycling foam waste to the judgement of the Commissioner,” the appeal argues. “[The trial court] was wrong to second guess the Commissioner’s determination based primarily on a short-term recycling plan proposed by the world’s largest foam manufacturer.” Additional information about the lower court’s ruling appears in Issue…
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…
The New York City (NYC) Council has reportedly adopted legislation that would prohibit the use of foam food containers by 2015, if city sanitation officials determine that recycling the substance is not feasible. Favored by outgoing Mayor Michael Bloomberg, the legislation referred to as the Styrofoam ban—would include a six-month grace period, during which only warnings would be issued, as well as a hardship exemption for nonprofits and small businesses that could request a one-year renewable waiver. Bloomberg thanked the city council for approving the measure, saying “This legislation not only eliminates a product that cannot be recycled in New York City, it is a giant step forward in the City’s effort to recycle organic waste. Foam pollutes the waste stream, making it harder to recycle food waste as well as metal, glass and plastic.” See NYC Mayor Michael Bloomberg News Release and Law360, December 19, 2013. Issue 508
