Thursday, September 24, 2015 4:04 PM PT
Court Chucks Arbitrary
NYC Ban on Styrofoam

     MANHATTAN (CN) - Overturning New York City's ban on plastic foam containers on Tuesday, a judge criticized the city's leading sanitation official for claiming that recycling the containers was not realistic.
     New York City passed the ban in 2013 on expanded polystyrene (EPS) foam to-go cups and food trays among retailers. The measure stood under new Mayor Bill DeBlasio and took effect in July, but an alliance of restaurants and foam-container manufacturers have been fighting since April to overturn the ban, claiming the city was politically motivated in contending that EPS recycling was not possible. Other cities, including Portland, Ore., and San Francisco, have similar bans in place.
     Judge Margaret Chan noted Tuesday that banning EPS has support among "many environmentally conscious" New Yorkers, but that regulators failed to abide by their mandate.
     Findings by city's Department of Sanitation on the difficulty in recycling EPS were chief among the primary reasons for the ban, but Chan called the results inaccurate and said the ban itself was "arbitrary, capricious, irrational, and contrary to law and fact."
     Chan particularly criticized Department of Sanitation Commissioner Kathryn Garcia's findings that a market for EPS recycling was not economically or environmentally feasible.
     "The commissioner's concern is not justified given the abundant evidence showing a viable and growing market not just for clean EPS but post-consumer EPS material," Chan wrote.
     While some food-service companies like Dunkin' Donuts decided to comply with the ban and remove EPS containers from their shelves, others fought back and made suggestions, such as improving recycling efforts, to avoid the outright ban.
     Dart Corp., a litigant in the case that manufactures foam containers, had pledged $23 million over the next eight years to outfit New York City's recycling contractor with an optical sorting machine that can separate foam and rigid polystyrene.
     Dart estimated that its sorting machine would recover as much as 95 percent of EPS, and it offered to hire and train workers to use it.
     Garcia, the sanitation official, told Mayor DeBlasio in December, however, that Dart's proposals wouldn't work and that EPS recyclability altogether was environmentally and economically infeasible.
     Garcia's reasoning was that companies would not want to buy dirty food containers, thus putting more than half of EPS containers in landfills. Positing that recycled EPS containers would end up being heavier than soft-foam containers, Garcia also said they would have little value to consumers or retailers.
     Dart and the other challengers balked at this assertion, however, saying there was a "hungry market for dirty food containers," according to court documents.
     Tuesday's ruling questions why Garcia wanted to have an EPS recycling program in place by January 2015, the same deadline she faced to submit a determination to the city.
     "Nowhere in [the law] was there a condition that if an environmentally efficient and economically feasible EPS recycling program is not implemented on January 1, 2015, EPS cannot be designated recyclable," Chan wrote.
     Chan also took issue with Garcia's use of small sample sizes and a tiny demonstration project to formulate the position that EPS recycling was too difficult. "The commissioner's view of EPS recycling as limited and subsidized is as skewed as the report upon which she relied," Chan wrote.
     Randy Mastro, an attorney at Gibson Dunn who represented the law's opponents, said the restaurant alliance "look[s] forward to working with the city to implement a comprehensive recycling plan that will reduce the volume of our city's waste stream and generate revenue for the city."
     For Dart, "our offer to pay every dime of the start-up costs for recycling, and to ensure the city can sell its recycled product, stands," said Michael Westerfield, the company's director of recycling programs.
     A representative for the city has been quoted as saying the city may appeal Chan's decision.