Expanded polystyrene foodservice packaging just took another legal hit in New York City as a state appeals court upheld the city's right to ban such products.
The move could clear the way for the city to finally take action.
The Appellate Division of the State Supreme Court has ruled that the city's latest attempt to ban the products was neither “arbitrary” or “capricious” and should stand as conceived.
This is just the latest ruling in what has become a years-long battle between the city on one side and Dart Container Corp. and a group called the Restaurant Action Alliance on the other.
Mayor Bill de Blasio and Sanitation Commissioner Kathryn Garcia have made EPS, sometimes mistakenly called by the trademarked name Styrofoam, a high-profile issue.
The administration has been targeting EPS since 2013 with a view that the products are unrecyclable.
An initial attempt at outlawing the material was struck down in by state Supreme Court in 2015. This caused the city go back and do a more thorough job in bolstering its argument in a subsequent ban that the court is now upholding.
“The commissioner properly considered the evidence submitted upon remand, as well as reconsidering the evidence in the original record, and, based on that record, rationally concluded that the city's expanded polystyrene single service articles cannot be recycled in a manner that is environmentally effective and economically feasible,” the court ruled.
Dart, which makes EPS foam packaging products, has been out front in its opposition to the ban. The company has even offered to establish an EPS recycling program for the city using an Indiana-based company to process the material.
But the court still sided with the city's view that a recycling program would not be sustainable after a five-year subsidy period and said it “would result in significant landfilling of expanded polystyrene” after that point.
The question is not whether EPS can be recycled, but whether the material can be recycled both economically and practically.
The density of the material — it's about 98 percent air — creates unique challenges for those who collect, handle and reprocess the material. Densifiers can help compact EPS to make shipping and handling more economical.
And Agilyx Corp. of Tigard, Ore., is trying to establish a viable business by using pyrolysis to create virgin-like styrene monomer from used EPS. That monomer is then sold off to create new products.
But most recycling programs refuse to collect and handle EPS because it's a money-losing proposition at this point for them.