Déjà Vu: Debate Over Foam Food Containers Returns To NYC Council

05/04/2017 11:59 pm ET Updated May 05, 2017
Tattered expanded polystyrene foam cup litter collected at a NYC waterfront park. EPS food service containers are seen as har
Jennie Romer
Tattered expanded polystyrene foam cup litter collected at a NYC waterfront park. EPS food service containers are seen as harmful to the environment in part because they’re lightweight and brittle, making them especially prone to becoming windblown litter and difficult to clean up.

The New York City Council is currently considering a bill to designate expanded polystyrene (EPS, commonly referred to as Styrofoam) as recyclable. The NYC foam food container debate may sound vaguely familiar. That’s because exactly the same debate took place at the NYC Council in 2013. This is a brief summary of what happened then and why the issue is has reemerged.

The 2013 NYC EPS Ban

The NYC Council adopted a ban on all food service EPS containers as well as EPS packing peanuts in December 2013. At that time, then-Mayor Bloomberg was eager to have the EPS ban be part of his environmental legacy, stating in his State of the City speech that EPS is “not just terrible for the environment but it’s another thing that’s terrible for the taxpayers ... [ Styrofoam] increases the cost of recycling by as much as $20 per ton because it has to be removed” (at 58:35).

However, as the 2013 City Council session came to a close the EPS ban bill appeared to be short on votes. The ban was the subject of massive opposition lobbying efforts by Dart Container Corporation (the world’s largest manufacturer of foam cups and containers) and The American Chemistry Council (a powerful industry trade association for American chemical companies). These two groups spent big to capture the attention of City Council. Dart donated $38,535 to the campaign accounts of fourteen NYC politicians and spent at least $188,161 in disclosed NYC Council lobbyist fees. The American Chemistry Council made three contributions totaling $824,500 during the 2013 election cycle to fund the newly formed “Restaurant Action Alliance NYC,” which opposed the ban and eventually became the lead plaintiff in a lawsuit against the City regarding the ban.

Dart Container Corporation focused on the argument that EPS is recyclable, lobbying to delay adoption of a ban by the City Council until after Dart had a chance to show that recycling could work and by offering to pay for an EPS recycling program for the NYC. Environmental advocates pointed out that similar food service EPS recycling efforts had failed elsewhere. City Council Members then proposed a compromise bill. Under the compromise bill, the ordinance would be adopted immediately, but a clause was added stating that Dart would have a year to demonstrate to the Department of Sanitation that such a recycling program would be effective.

At the end of that year, the Sanitation Commissioner would be required to make a Determination as to whether or not EPS food service and loose fill packaging could “be recycled at the designated recycling processing facility at the South Brooklyn Marine Terminal in a manner that is environmentally effective, economically feasible, and safe for employees.” Additionally, if the Commissioner were to find that the EPS at issue could be recycled in such a manner, the ban would not go into effect and the Commissioner would have to adopt rules designating EPS as a recyclable material and thus require source separation.

At the time of the adoption of the ban, environmental advocates were confident that the likelihood that Dart could show such a program was feasible was so infinitesimal as to not be a concern, because successful large-scale curbside recycling programs for food service EPS had never been established anywhere else. Dart could only point to their own incredibly labor-intensive sponsored demonstration programs for EPS recycling, which were much smaller in scale. The definition of the “economically feasible” prong required that the Commissioner “shall include consideration of markets for recycled material” and there was no real market for recycled polystyrene generally, much less dirty food service EPS. The compromise clause was seen by most environmental advocates as only a slight delay in implementation of the ban.

Polystyrene #6 resin code on the bottom of an EPS cup. Contrary to popular belief, the chasing arrows code does not mean that
Jennie Romer
Polystyrene #6 resin code on the bottom of an EPS cup. Contrary to popular belief, the chasing arrows code does not mean that the material is recyclable, it just identifies the resin type.

The Commissioner’s Determination & the Lawsuit That Followed

Sanitation Commissioner Kathryn Garcia released her Determination in late 2014, finding that:

“. . . DSNY concluded that there are currently no established markets to purchase and recycle the EPS that would be collected in the MGP program, which is considered too ‘dirty’ by current buyers. As such, a determination of recyclability fails on the basis of environmental effectiveness and economic feasibility. . .”

Thus, NYC’s EPS ban was scheduled to go into effect in July 2015, with enforceable fines to be implemented later in the year. Then, in April 2015, Restaurant Action Alliance NYC and several EPS manufacturers sued the City claiming that the Sanitation Commissioner’s Determination was arbitrary and capricious. (New York State Supreme Court Index No. 100734-2015.)

On September 21, 2015, a New York state court Justice Margaret A. Chan ruled that the Sanitation Commissioner’s Determination was arbitrary and capricious, and thus the ban could not go forward. Specifically, the court found that “the Commissioner did not clearly state the basis of her conclusions when the evidence contrary to her findings were clearly before her” The court’s ruling is primarily based on Dart’s assertion that it would pay for new recycling sorting machines for the City, pay for employees to man the machines, and purchase the EPS recovered by Sims (the City’s contractor) for five years at $160/ton — a program estimated to cost Dart $23M.

The Court acknowledged that by proposing this recycling pilot Dart would be acting in Dart’s own self-interest but the Court would not accept the Commissioner’s finding that dirty EPS has no viable recycling market. The ruling essentially asserted that the City must accept Dart Container Corporation’s pilot program in lieu of a ban unless the Commissioner stated more clearly why that shouldn’t happen:

“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; that EPS recycling and the post-consumer EPS market is beyond the pilot program stages or still paddling in untested waters; and that Dart’s financial investment of $23M dollars to DSNY benefits the City of New York, even if it is a bigger benefit to Dart’s self-interest.”

The Court ordered the Determination annulled and vacated as arbitrary and capricious, remanding to the Commissioner for reconsideration and determination consistent with the court’s decision.

Ongoing Lawsuit & New Bills Before City Council

The City appealed the lower court ruling, but the Court of Appeals declined to take up the case. This meant that the case was remanded to the Commissioner to draft a revised Determination, after further research and consideration, explaining in greater detail the reasoning behind the Determination so as to overcome the claim of being arbitrary and capricious. That lawsuit is still pending and the revised Determination has yet to be submitted. The court website shows a disposition deadline of July 29, 2017.

On March 1, 2017, NYC Council Member Fernando Cabrera introduced a bill that would designate EPS as recyclable. Designating EPS as recyclable would mean that residents would be required to put EPS in their curbside recycling bins and the City would be required collect and process it. During the over three years that passed between when the City Council passed its EPS ban and today no major municipality has successfully created a curbside residential EPS recycling program. In fact, the trend has been strongly in favor of bans, not recycling. To date, almost one hundred cities in the U.S., including Washington DC, have adopted EPS food container bans.

Just as they’d done in the previous round, Dart is again spending big to capture the attention of City Council. Between 2014 and early 2017, Dart spent over $500,000 in disclosed lobbyist fees including $40,000 in payments to former Council Member Robert Jackson in 2016. Also, according to the NYC Campaign Finance Board, Dart’s CEO’s wife — Ariane Dart — gave $2,750 to Council Member Fernando Cabrera in the 2017 election cycle. Ariane Dart also contributed to City Council Speaker Melissa-Mark Viverito ($4,950), Bronx Borough President Ruben Diaz, Jr ($1,000) and Council Member Rafael Espinal, Jr. ($500) so far during the 2017 cycle.

Dart appears to be gearing up for another expensive showdown at NYC Council to fight for an unregulated marketplace for its product.

Tattered expanded polystyrene foam cup litter collected at a NYC waterfront park. EPS food service containers are seen as har
Jennie Romer
Tattered expanded polystyrene foam cup litter collected at a NYC waterfront park. EPS food service containers are seen as harmful to the environment in part because they’re lightweight and brittle, making them especially prone to becoming windblown litter and difficult to clean up.

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