Washington — There will be no ban on expanded polystyrene foam in New York City for the foreseeable future after a Dec. 3 decision from the New York State Supreme Court's Appellate Division.
The appellate court denied a motion from the city, effectively upholding New York Supreme Court Justice Margaret Chan's September decision to overturn the ban, which primarily targeted food service containers, on the grounds that it was “arbitrary and capricious” and that the city's sanitation officials ignored the fact that expanded PS foam is recyclable.
Sources said late Dec. 3 that New York City Sanitation Commissioner Kathryn Garcia is now required to reconsider the city's EPS policy in conformity with Justice Chan's decision and issue a new determination. If the new determination were to be challenged, the decision would go back to Chan's court. The New York City Council also has the option of taking up legislation once again.
“The Appellate Division's decision to deny the City's request further proves what we have been saying all along: foam products can and should be recycled in New York City,” said Michael Westerfield, corporate director of recycling programs at Dart Container Corp., in a press release from the primary opposition group Restaurant Action Alliance. “The evidence proves it — expanded polystyrene foam is 100 percent recyclable and can be recycled safely at no cost to tax payers. By allowing foam recycling to move forward, the City will save hundreds of jobs and bring in millions of dollars in savings, while doing what's best for the environment.”
The ban was originally set to begin July 1 and was pushed back to Jan. 1, 2016 due to litigation. The Restaurant Action Alliance backed the move to attempt to get the ban thrown out and continued to extend the industry offer of $23 million, 8-year investment in recycling equipment from Dart and a 5-year price guarantee of $160 per ton on all soft foam and rigid PS bales from Plastics Recycling Inc. out of Indianapolis — 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 for New York City.