September 24, 2018

September 24, 2018

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NYC Polystyrene Ban to Become Effective in 2019

A ban on the use of expanded polystyrene (EPS) single-use food and beverage containers in New York City, required under Local Law 142, will become effective on January 1, 2019. The effective date was announced by Mayor Bill de Blasio on June 13, following the dismissal of a lawsuit that blocked implementation of the ban.

By way of background, in addition to the ban, Local Law 142 required the New York City Department of Sanitation (DSNY) Commissioner to conduct a study on the recyclability of EPS food-service products. If the study determined that these products could not be recycled in a cost-effective and environmentally effective manner then, effective July 1, 2015, food service establishments would be banned from offering single-serve polystyrene articles, such as cups, trays, and clamshells. An exemption was provided for EPS containers used for prepackaged food and to store raw meat, pork, fish, seafood, or poultry. Small businesses could apply for a hardship exemption.

When DSNY determined that single-serve foodservice EPS could not be recycled in an environmentally effective or economically feasible manner in 2015, the Restaurant Action Alliance and others filed a lawsuit challenging that determination. The New York State Supreme Court for New York County annulled and vacated the study as arbitrary and capricious but remanded the matter for DSNY Commission to reconsider. On May 12, 2017, and following a more extensive study, DSNY reached the same conclusion and the petitioners again submitted a petition to the court to vacate and annul that determination. The petition submitted in 2017 was denied (see Hon. Margaret A Chan, Restaurant Action Alliance, et. al. v. The City of New York, Garcia, Katheryn, Commissioner of the NYC Dept. of Sanitation. (Index No. 100734/2015)).

In announcing the effective date of the ban, Mayor de Blasio said that the City would work with businesses over the next six months to help them transition to replacement products.

© 2018 Keller and Heckman LLP

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