Judge overturns NYC's EPS ban

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New York City’s ban on expanded polystyrene has been overturned by the state’s Supreme Court, reopening the city’s door for foam cups, clamshells, coolers and packing peanuts — and for recycling EPS products.

In her Sept. 22 decision, Manhattan Supreme Court Justice Margaret Chan called the ban, which is primarily aimed at take-out containers, “arbitrary and capricious” because, contrary to popular belief and the claims of the city’s sanitation commissioner, Kathryn Garcia, EPS is recyclable.

“The one undisputed short answer to whether EPS is recyclable is: Yes single-serve EPS is recyclable,” Chan wrote.

The decision also delves into the more difficult question of whether recycling EPS is “environmentally effective and economically feasible,” concluding that Garcia made an incorrect assessment based on extremely flawed data and inaccurate claims by Sims Municipal Recycling, the contractor that operates and manages the city-owned recycling facilities.

“The commissioner, of course, has discretion to choose the evidence upon which she relies. 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,” the decision states. “The commissioner’s concern is not justified given the abundant evidence showing a viable and growing market for not just clean EPS but post-consumer EPS material.”

New York Supreme Court cases still can be appealed to the New York Court of Appeals, the highest legal authority for the state.

New York City Mayor Bill de Blasio’s office was not pleased with Chan’s decision.

“We disagree with the ruling. These products cause real environmental harm, and we need to be able to prevent nearly 30,000 tons of expanded polystyrene waste from entering our landfills, streets, and waterways,” said spokeswoman Ishanee Parikh, via email. “We are reviewing our options to keep the ban in effect.”

Under then-Mayor Michael Bloomberg, New York City began collecting PS for recycling in 2013, and de Blasio continued the practice.

De Blasio announced the ban in January, and it would have taken effect on July 1, with a six-month grace period before the city would begin collecting fines.

In April, Dart Container Corp. and other companies filed a lawsuit to stop the ban. The suit alleged that the 25,000 tons of EPS that the city had collected over the years had all gone to landfill. Though the city is expanding its recycling programs, there are no current plans to include foam recycling, which can be costly to start. Finding a market for the material can also be difficult, opponents to foam recycling have argued, though the industry is ready to come to New York’s rescue on both counts.

“Our offer to pay every dime of the start-up costs for recycling, and to ensure the city can sell its recycled product, stands,” said Michael Westerfield, Dart’s director of recycling, in a news release. “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.”

Dart and Plastics Recycling Inc. (PRI) offered an agreement including Dart’s $23 million investment in the New York City Sanitation Department over eight years, covering the purchase and installation of an optical sorting machine with two conveyor belts (one to sort foam and rigid PS, and the other for discretionary use, according to the decision), four additional employees and training for all Sims Municipal Recycling employees.

For PRI’s part, the Indianapolis-based PS recycler offered to purchase all soft foam and rigid PS bales from Sims at$160 per ton with a five-year price guarantee — saving a projected $758,765 savings per year if all the PS were diverted from landfills and generating more than $2.8 million in revenue.

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