UPDATED, June 11, 2018: The Department of Sanitation's proposed ban on expanded polystyrene foam products is moving forward once again, after a New York Supreme Court ruling on June 8. Judge Margaret Chan backed DSNY's finding that "food service EPS cannot be recycled in an environmentally effective and economically feasible manner" and dismissed a challenge petition. 

The news, first reported by Politico and tweeted by Mayor Bill de Blasio, has been applauded by environmental groups such as the Natural Resources Defense Council and signifies a notable setback for companies such as the Dart Container Corp. that have argued the material can be viably recycled.

Aside from the introduction of a City Council bill to ban EPS in January, the discussion had been fairly quiet this year so far. As of late April, DSNY Commissioner Kathryn Garcia told Waste Dive she expected the policy would still be going into effect as planned barring the judge's decision. The city has since announced that implementation is scheduled for Jan. 2019. The Restaurant Action Alliance is said to be weighing its legal options.

Dive Brief:

• Plans to ban certain expanded polystyrene (EPS) foam products in New York are under fire once again, after the Restaurant Action Alliance of New York City, Dart Container Corporation, Reynolds Consumer Products and other co-plaintiffs filed a new lawsuit in the state's trial court earlier this week.
• The complaint takes aim at a May policy directive from the city's Department of Sanitation (DSNY) that would enact a ban on the sale or use of EPS food containers and packaging peanuts starting on November 17.  The full ban would be enforced starting in May 2018. The trade group said this will adversely affect small businesses, due to the cost of alternative products, and not achieve DSNY's environmental goals.
• Instead, the group is calling for the creation of a program that would recycle EPS foam and other polystyrene products. This concept was most recently presented in a City Council bill, Intro. 1480. The bill hasn't seen any movement since a committee hearing in May and is short of majority support with 16 co-sponsors.

Dive Insight:

This started with a 2013 law that gave the DSNY commissioner authority over regulating EPS foam. At the time, Dart Container Corporation pushed to establish a recycling program that would have involved sorting this material at the Sims Municipal Recycling MRF and shipping it to the Plastic Recycling, Inc. processing facility in Indiana. Despite Dart's promises of a five-year guarantee that would have also created a market for other polystyrene products, DSNY announced a ban in 2015. Following a lawsuit from Dart and the restaurant group, a judge blocked DSNY's move later that year. DSNY's May determination called for a ban once again, this time backed up by additional research, and has sparked a repeat of the same debate.

Each side maintains that their position will be more economically and environmentally beneficial. DSNY says that EPS foam, especially once it comes into contact with organic material, isn't viable to recycle. Dart claims that it is and questions the environmental effects of alternative packaging materials. They also highlight the benefit of having a home for the 80% of polystyrene products, such as egg cartons, that wouldn't be covered under DSNY's ban. DSNY questions the long-term viability of Dart's Indiana recycling strategy, raising concerns about changing recycling guidelines in the future if the project fell through. Dart points to the growth of EPS recycling options and a new curbside program in San Diego — and so the cycle continues.

In the grand scheme of New York's goal to achieve "zero waste" by 2030, it may seem counterintuitive to give this much attention to what the city's latest characterization study estimated to be 0.8% of the residential waste stream. Though for Dart and its co-plaintiffs, the threat of lost revenue or higher costs is apparently serious enough to motivate continued action. Dart has spent nearly $200,000 lobbying city staff and elected officials on the issue so far this year. With the November implementation date approaching, and the council's legislative session done at the end of the year, activity around this issue can be expected to ramp up this fall.