City Wins Polystyrene Case

Department of Sanitation Commissioner Kathryn Garcia at the CityLaw Breakfast on October 5, 2018. Image credit: CityLaw.

Sanitation determined polystyrene foam products were unrecyclable. Sanitation Commissioner Kathryn Garcia’s decision that expanded polystyrene cannot be recycled has been upheld by the Appellate Division. The decision paves the way for the City to ban the use of expanded polystyrene single service articles.

Expanded polystyrene is a plastic resin manufactured into consumer products such as “foam” cups, containers, trays, plates, clamshell cases, and egg cartons. On January 2015, the de Blasio Administration announced that food service establishments, stores, and manufacturers were banned from possessing, selling, or offering for use single service expanded polystyrene foam articles and polystyrene loose fill packaging starting July 2015. Sanitation determined that expanded polystyrene foam could not be recycled and that there was no current market for a post-consumer collection of the expanded polystyrene foam. The determination was made after considering environmental effectiveness, economic feasibility, and safety for employees of Sanitation and the City’s recycling processor. The analysis was based on a strategy that would have included expanded polystyrene into the current metal, glass, plastic, and carton commingled collection program without creating a separate collection or sorting program.

The Restaurant Action Alliance, a representative of small business owners throughout the five boroughs, in 2015, commenced an Article 78 proceeding against the City seeking to overturn the determination to ban the use of expanded polystyrene for food service items. Restaurant Action Alliance alleged that polystyrene foam was safe for food service and that a foam recycling ban would hurt small businesses by increasing costs by over $51,000 a year for the use of foam alternatives.

On June 11, 2018, Supreme Court Judge Margaret A. Chan denied the petition to annul the determination and dismissed the proceedings.

Following the dismissal, the de Blasio Administration announced that the ban of expanded polystyrene for food service items would go into effect by January 1, 2019.

Restaurant Action Alliance appealed Judge Chan’s decision to the Appellate Division of the Supreme Court, First Department. A panel of five judges agreed that the City’s expanded polystyrene single service articles cannot be recycled in a manner that is environmentally effective and economically feasible. The panel also accepted the Sanitation Commissioner’s conclusion that even if Restaurant Action Alliance’s proposal to pay for infrastructure costs and subsidize the market for the purchase of the recycled materials for five years were to succeed, the plan would most likely result in significant landfilling of expanded polystyrene after the five-year period.

At a CityLaw Breakfast at New York Law School on October 5, 2018, Commissioner Garcia said, “[Polystyrene foam] products are ubiquitous in New York City life…these products may be acceptable if they were recyclable, a necessary evil in modern life. However, they definitely are not.”

Commissioner Garcia pointed out that Sanitation “conducted additional research, interviewed several other cities across New York and North America, [and] hired an economist, an expert on plastics recycling with decades of experience in the field. All of this research pointed to one thing, there is not and nor has there ever been a market for recycling food service foam. Other cities have tried, particularly in Canada, generally at the insistence of the industry with the promise that markets would come. Each has failed.”

Following the Appellate Division’s decision, Commissioner Garcia stated in a press release, “After careful study, we determined that foam cannot be recycled. This material is a major source of litter, clogs storm drains, contaminates our recycling stream, and can harm sea life and our waterways, among other problems. We are pleased with the Appellate Division’s ruling to uphold the court’s decision which will finally allow us to remove this problematic material from our waste stream for good. We look forward to continuing the educational and outreach portion of our work to ensure affected city businesses are aware of the final ruling, and are prepared for its upcoming implementation.”

Sanitation will proceed with the ban on expanded polystyrene single-use foam items. The ban begins on January 1, 2019, with a six-month grace period before fines can be imposed.

Restaurant Action Alliance NYC v. City of New York, No. 7372, 2018 WL 504673 (N.Y. App. Div., 1st Dep’t Oct. 18, 2018).

By: Dorichel Rodriguez (Dorichel is the Senior CityLaw Fellow and New York Law School Graduate, Class of 2017.)