A New York state court has vacated a New York City prohibition on expanded polystyrene foam (EPS) after a challenge by several food companies, supermarkets and food-service businesses that used EPS in their food packaging. Dart Container Corp. v. De Blasio, No. 100734/15 (N.Y. Super. Ct., order entered September 21, 2015).

The court provides a history of the municipal ban—more specifically, a statute dictating that EPS would be prohibited in favor of recyclable materials unless the commissioner of the Department of Sanitation of New York (DSNY) found it to be recyclable—which went into effect July 1, 2015, with penalties delayed until January 2016. Among the plaintiffs are Dart Container Corp., the largest EPS manufacturer, and Plastics Recycling Inc., an EPS recycler, which offered proposals that would designate EPS as recyclable and thereby permit it under the city statute.

“The mandate to the Commissioner was to determine whether EPS should be designated as recyclable,” the court noted. “The one undisputed short answer to whether EPS is recyclable is yes: single serve EPS is recyclable. The tougher question is whether dirty or post-consumer single service EPS can be recycled in a manner that is environmentally effective and economically feasible so to be designated as recyclable.” The court then considered the feasibility of the recycling companies’ proposals and found that the DSNY commissioner failed to consider, among other things, “Dart’s state-of-the-art optical sorting machine” that can recycle between 75 to 95 percent of EPS materials.

“The Commissioner, of course, has discretion to choose the evidence upon which she relies,” the court found. “However, in reaching the conclusion that there is no sustainable market for post-consumer EPS in both her environmentally efficient and economic feasibility analysis, the Commissioner did not clearly state the basis of her conclusions when the evidence contrary to her findings were clearly before her.” Accordingly, the court vacated the commissioner’s determination that EPS was not recyclable as arbitrary and capricious.