A group led by foam manufacturer Dart Container Corporation has sued New York City for banning expanded polystyrene products.
In a legal petition filed with the Supreme Court of the State of New York on April 28, the Restaurant Action Alliance NYC claims the city’s ban violates a “clear statutory mandate” that directed New York to develop a recycling system for EPS if doing so was economically and environmentally feasible.
If successful, the suit would nullify the ban and require the City to bring EPS into its recycling program. The group is represented by high-profile New York attorney Randy Mastro.
Under Local Law 142, the Department of Sanitation (DSNY) was required by City Council to determine whether foam could be recycled in its curbside program “in a manner that is environmentally effective, economically feasible, and safe for employees.” DSNY eventually concluded the products could not be recycled in a cost-effective manner, announcing on Jan. 8 the City would go ahead with a ban on the material effective July 1.
The ban was championed by Mayor Bill de Blasio and was recently singled out in the city’s OneNYC report as a “positive step” toward reducing disposal of all city waste by 2030.
While EPS is recyclable, few communities in the U.S. include it in curbside programs. According to an online database compiled by Dart Container Corporation, San Antonio, Texas is the only community outside California that allows residents to recycle the material curbside. A number of municipalities, including Portland, Ore., Washington D.C. and Seattle, also have bans in place.
According to the Restaurant Action Alliance NYC suit, however, a curbside recycling plan was engineered by Dart and secured Indianapolis-based Plastics Recycling, Inc. (PRI) as a buyer for all recovered polystyrene from New York for the next five years. The lawsuit claims such an infrastructure satisfied Law 142’s criteria for a “comprehensive recycling plan” and should have been accepted.
“The City Council set forth very specific criteria for the DSNY to evaluate, and we met or exceeded every one,” Michael Westerfield, Dart’s director of recycling, said in an press release announcing the lawsuit.
DSNY expressed concern over its readiness and its long-term viability, however.
In a letter to Mayor Bill de Blasio in December, DSNY stated EPS recycling would not begin until late 2016 or early 2017 under Dart’s proposal. It also warned if the arrangement was not renewed after five years, the city and its recycling processor, Sims Municipal Recycling, “would still have to manage the costs and complications of having designated EPS as recyclable.”
In response to those concerns, the alliance’s lawyer Randy Mastro told Plastics Recycling Update DSNY commissioner Kathryn Garcia “did not properly consider longevity and readiness.”
“Instead, she engrafted new conditions on the statutory standard that are nowhere to be found in the statute,” Mastro argued. “She imposed a requirement of having to ‘guarantee’ a market forever. That is not in the statutory standard. And she imposed a requirement that the recycling program had to be in place by January 1, 2015, which was an impossibility, since she would only be determining whether to recycle by that date.”
DSNY declined to comment on the current lawsuit.