In 2014, a City Council mandate required the Sanitation Department to determine if and how foam foodservice products could be recycled in an economically feasible and environmentally effective way or else foam would be banned. Earlier this year, the de Blasio administration announced that it would uphold the ban, despite extensive evidence that EPS foam can be recycled safely and affordably.

Chief Counsel Randy Mastro, former deputy mayor of NYC, spoke with PlasticsToday and called Mayor de Blasio's decision to ban foam foodservice items "crazy" and "nonsensical," given the fact that the industry has banded together and was prepared to recycle all polystyrene to provide the city a financial return and reduce its landfill costs.

"By every measure, both economically and environmentally, the decision to recycle foam was a win-win for the city," said Mastro. "That's why we've gone to court—to force the city to obey the law and to compel it to recycle."

The law required the commissioner to determine whether foam "can be recycled" after "consulting" with manufacturers, recyclers and other stakeholders. But what followed was a farce, stated the lawsuit's summary. Although the sanitation commissioner spent months gathering evidence confirming the recyclability of foam foodservice products and receiving commitments from market participants that they would process, buy and recycle all of New York City's polystyrene at a guaranteed rate of return for at least the next five years, "Mayor de Blasio had other ideas and campaign promises to keep," states the lawsuit. "He vowed to ban foam foodservice products during his campaign, even at the announcement of his sanitation commissioner's appointment."

After her top aide acknowledged that "the commissioner's research confirms foam can be recycled," the commissioner was summoned to City Hall in mid-December 2014 and directed to ban foam foodservice products to further the mayor's political agenda, regardless of the evidence." Then, to try to justify the irrational decision forced upon the Department of Sanitation, the commissioner resorted to imposing impossible conditions--such as a recycling readiness date of January 1, 2015, before any recycling determination would even be made, and "guarantees of the ultimate economic feasibility or environmental effectiveness" of recycling, which are nowhere to be found in the statute itself, further rendering this determination illegal and inconsistent with the statutory standard for recycling.

The plan to recycle foam would advance the city's long-standing statutory objective of increasing citywide residential recycling. It would also address the city's "dirty little secrets," said Mastro, "that although the city announced in 2013 that it would be collecting solid polystyrene used in shipping packaging and recycling it, the city has never recycled any of the thousands of tons of such waste its truck have collected, because the city never developed a plan to actually recycle it."

The sanitation commissioner's determination violated the New York City Council's clear statutory mandate requiring the recycling of foam foodservice products so long as it would be "economically feasible" and "environmentally effective" to do so, said the lawsuit. The commissioner's determination to the contrary was belied by an indisputable record confirming that foam foodservice products can be recycled to the city's economic and environmental benefit.

The coalition's industry representatives, which includes Dart Container Corp., a manufacturer of EPS foam foodservice products, committed to buy and recycle all of the city's polystyrene waste (not just foam foodservice products). Moreover, it would cost the city nothing to add polystyrene to the products the city already picks up for recycling, and the city would generate savings as a result from reduced landfill costs and even generate revenue. Thus, recycling all of the city's polystyrene foam, which would include EPS rigid foam shipping protectors for electronics, appliances and other fragile items, would reduce the amount of waste that the city sends to landfills.

"This constitutes a windfall for the city's coffers and is a win-win that makes this ban nonsensical," stated Mastro. "However the commissioner imposed a different standard on the industry by wanting a guarantee in perpetuity of the market for recycled foam, even though multiple sources confirmed there are robust markets for this product. The commissioner ignored all of this."

Mastro added that, based on the projected recycling rates for EPS foam foodservice and rigid packaging (75% ), the recycling program would actually result in less material going to the landfills than if the foam foodservice items are banned outright. As a result of this "irrational, arbitrary, and capricious determination," starting on July 1, 2015, restaurants throughout the city will no longer be able to use cost-effective, highly functional and preferred foam foodservice items, such as cups, trays and containers, when serving their customers.

"It's important to note that also joining the coalition in suing the city in addition to recyclers are many individual restaurants in the city as well as the Restaurant Action Alliance, who've come to depend on this lower cost foam material," Mastro stated. "They work on very thin margins and would have to purchase higher-cost foodservice items that are not recyclable such as coated-paper cups and plates, driving up their costs and thereby endangering their livelihoods."

The coalition seeks a court order overturning this ban on foam foodservice products and requiring the Department of Sanitation to recycle it instead. "The coalition looks forward to setting the record straight on foam foodservice products and compelling the de Blasio administration to live up to its statutory mandate to recycle," said the lawsuit.