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Deputy Mayor for Operations Cas Holloway Testifies in Support of Restricting the Sale of Single-service Food Items Packaged in Polystyrene

November 25, 2013

The Following is Deputy Mayor Cas Holloway’s Testimony before the City Council Today:

“Good afternoon Chair James and members of the Committee on Sanitation and Solid Waste Management. I am Cas Holloway, New York City Deputy Mayor for Operations. Thank you for holding this hearing on Intro 1060 that, if enacted, would restrict the sale or provision of single-service food items in packaging that contains expanded polystyrene – known as EPS and commonly referred to as foam – in the City of New York. Passing this legislation would achieve at least 3 very significant objectives at minimal cost.

“First, it would eliminate from New York City a large volume of a wasteful and environmentally harmful product that does not biodegrade and cannot be recycled; Second, it would dramatically reduce the contamination of the metal, glass and plastics recyclables stream, increasing the value of NYC recyclables and thus the revenue that the City could collect through its existing recycling program; and third, it would eliminate a major hurdle to large-scale food waste and other organic recycling in NYC at the household and business level by eliminating a major contaminant from the food waste stream.

“My goal is to make three key points in my testimony this afternoon: explain why the prohibition of EPS foam in single-service throw-away food containers is in the City’s immediate and long term best interests; explain why -regardless of what you may have heard to this point or may hear following my testimony – EPS foam is not recyclable in New York City, nor has any producer of EPS foam – including Dart – made a realistic proposal or commitment to make it recyclable here; explain my personal efforts to ensure that Dart Container was given every opportunity to demonstrate the viability of EPS foam recycling in New York City and to make the financial and other commitments necessary to make it recyclable; and how those efforts fell far short of making even the minimum showing that the City – and I would suggest the City Council as well – would need to consider an alternative to the limited, common-sense prohibition of single-service foam food containers in Intro 1060.

“At the outset it is critical to understand what Intro 1060 is and what it is not. Intro 1060 does not ban all EPS foam products in New York City. It would simply prohibit the use of EPS foam in its most harmful and wasteful form – single service food uses like foam cups and foam clamshells. EPS foam could still be used in shipping electronics and other products, as well as many other applications. EPS foam is particularly harmful to the environment when used for the sale and provision of single-serving food items. While it may be convenient for the 10 to 20 minutes that it is used to carry a sandwich or a cup of coffee, the vast majority of EPS foam used for single-service food items ends up in a landfill, where it will sit for 500 years and longer. Not only that, but EPS foam is light, brittle, and breaks easily into very small pieces and is a major source of litter. When that happens, EPS foam pollutes and contaminates just about everything it touches: our streets and waterways, catch basins and neighborhood sidewalks, and even the waste stream itself.

“New Yorkers are currently required by law to recycle paper, metal, glass and plastics – including since this spring, all rigid plastics as part of the largest expansion of the City’s recycling program in 25 years. The City’s 6,000 dedicated sanitation workers collect recyclables through the curbside pick-up program, and by contract, the City is obligated to deliver the recyclables it collects to our recycling vendors, Sims for metal, glass and plastic and Pratt for paper. Anything delivered to Sims that is not recyclable is a contaminant, and EPS foam would be considered a major contaminant in the recycling stream. Currently, EPS foam is mostly found in our refuse stream and it costs the City more than $1.8 million annually to dispose of it in landfills. Sims has confirmed numerous times in writing that EPS foam from foodservice cannot be recycled and that if it shows up in the recycling stream, it will be considered a contaminant. Visy Paper, our paper recycling vendor, indicated that they were not willing to run a test as to whether EPS foam from food service can be recycled because it would contaminate the paper Visy receives. The City currently gets paid $16 per ton for its paper, which translates into millions of dollars of revenue annually. Eliminating EPS foam from the millions of single-service food delivery items that New Yorkers use will substantially reduce the risk of contamination in the paper, metal, glass, and plastic recycling streams.

“Perhaps most importantly, single-service EPS foam materials severely undermine both the City’s residential and commercial organics recycling programs. EPS foam plates, clamshells and other materials are a significant contaminant of the food waste stream that makes up 35 percent of the 11,000 tons of waste that New Yorkers produce every day. The City currently spends more than $85 million annually exporting organics to landfills. We expect that our organics program will be able to significantly reduce that cost, create local jobs and local renewable energy. Organic material contaminated by foam during the collection process becomes unmarketable for composting or anaerobic digestion – whether by the City or by the private carters that collect food waste from the City’s approximately 24,000 restaurants. Local Law 77 of 2013 provides that DSNY will expand its voluntary residential organic waste collection program to 100,000 City households, 70 high rise buildings, City agencies and at least 400 schools, by 2015; but it cannot be successful with foam in the system. A robust residential and organics program offers major financial and environmental opportunities for New York City. For example, the three cities in the U.S. that have the most robust organics collection programs and the highest recycling rates, Seattle, Portland and San Francisco, have all banned EPS foam from foodservice. In addition, all three cities have robust and growing restaurant industries. The limited EPS foam ban required by Intro 1060 would significantly increase the chances that the aggressive organic recycling programs that the City and the private sector have gotten under way will truly succeed.

“In the final analysis, the limited prohibition of EPS foam foodservice products will significantly reduce the environmental harms that these products cause, and will substantially increase the value of the metal, glass, plastic, and paper streams that the City collects every day. We project that in combination with the City’s increased recycling efforts, this legislation will result in nearly $50 million of annual savings.

“Objections to the limited EPS foam prohibition that Intro 1060 would impose come from two sources: the EPS foam industry and its lobbyists – particularly Dart Container – and a few voices in the foodservice industry who fear that costs could increase.

“We take seriously any regulation that could increase business costs, particularly of the restaurant industry, one of the City’s most powerful economic engines. Since becoming Deputy Mayor for Operations, Deputy Mayor for Economic Development Bob Steel and I have worked together to make it easier to open a restaurant in New York City and keep them open. Through initiatives like the New Business Acceleration team and making the renewal process digital we have decreased the time-to-open for new restaurants by more than two and a half months. We have conducted substantial research into the economic impacts of this legislation and have concluded that it will have no significant cost impacts on restaurants of any size. First, the fact is that most restaurants in New York City no longer use foam. This includes 84 percent of chain restaurants, representing more than 3,000 locations. In May, we met with the two largest generators of foam food service cups in New York City, Dunkin Donuts and McDonalds; both told us in writing that foam cannot be recycled and they have initiated plans to discontinue the use of foam cups.

“With the help of Councilmembers Chin and Reyna, we also met with small, local restaurants. Our research found that the average cost difference per product was $.02 – results that mirror a study done by the City of San Jose, CA prior to enacting similar legislation. Other cities with vibrant restaurant cultures have enacted polystyrene restrictions and found no impact to their food service industry. When San Francisco passed this legislation, they offered a financial hardship exemption to small businesses. To date, zero businesses have requested the exemption. The facts are that the vast majority of food service establishments in New York City don’t use EPS foam, and there are a variety of cost competitive alternatives available that most businesses are already using. Intro 1060 will simply accelerate finishing the job – and will likely make EPS foam alternatives even more cost competitive than they clearly already are. In a sense, prohibiting EPS foam for food service applications is analogous to when the City prohibited coal burning for heat, or the phase out of the dirtiest heating oils – #6 and #4 – that is almost complete in NYC. The presence of readily available, cost-effective alternatives in the market has already done most of the job; Intro 1060 will finish it.

“Some members of this committee have already heard, and at some point following my testimony you will likely hear that EPS foam is recyclable. It is not. That’s not my opinion, that’s a fact. To be recyclable – and claim that a product such as EPS foam can be recycled – two basic criteria must be met: the product must be capable of being re-used ‘in manufacturing or assembling another item’; and the material must capable of being ‘collected, separated, or otherwise recovered from the waste stream through an established recycling program.’ The Federal Trade Commission has established these criteria—re-usability and public access to recycling opportunities – so that producers of products like EPS foam cannot claim that it’s recyclable simply by stamping a plastics designation number on the bottom of it, in the case of EPS foam, #6.

“As Dart Container’s own Director of Recycling has acknowledged repeatedly and in multiple public sources, EPS foam used in foodservice products fails these criteria in all but a very few jurisdictions across the United States, including New York. That’s because the infrastructure doesn’t exist here to collect, sort, and re-process EPS foam. In fact, Dart itself has not established a single location in all of New York State where New Yorkers could take EPS foam products to recycle them, even if they wanted to. Dart readily acknowledges that most municipalities have not included EPS foam in their recycling programs, and their own materials are the best place to go if you want to understand why. According to Dart, the first problem is that EPS foam is not a significant portion of the waste stream – less than 1 percent of all products; second, recycling goals are measured by weight and volume, and EPS foam is extremely light and comparatively rare; and third, it takes substantially more effort to collect a pound or 1000 pounds, or 10,000 pounds of foam than 1 pound of glass or cardboard. In fact, special equipment is needed to collect and ‘densify’ EPS foam so that it can be transported economically for re-use.

“Can these problems be overcome? Are they worth overcoming? As Dart knows and has acknowledged, 73 percent of quick-service restaurants’ food leaves the restaurant, and most of it ends up at home or the office. Thus, for EPS foam recycling to be viable in New York City, a curbside collection program would have to be established. Because foam must be extremely clean to be recycled – free of even the oil and grease that is in virtually every sandwich or lunch platter carried in EPS foam – it cannot be mixed with other recyclables. We estimate that an EPS foam curbside program would require the addition of a minimum of 1000 additional truck routes at a cost of approximately $70 million per year. That is certainly an expensive and heavily polluting way to deal with an almost infinitesimal portion of the City’s waste stream that is already shrinking.

“You may have heard that Dart has offered to purchase a densifier for the City’s recycling vendor, Sims, or to pay Sims $160 for every ton of EPS foam it collects. The offer of a machine or two does not make a product recyclable. Dart’s offer is analogous to asking someone to start a newspaper and offering to pay only for the printing press. Without the reporters, editors, word processors, advertising and business staff, ink and paper, and distribution infrastructure to write, package, and deliver those newspapers, the printing press is probably more valuable to a recycler than to a would-be publisher. Moreover, Dart’s offer to Sims expressly provides that any foam it would take cannot contain any oil and grease – by-products of nearly every food.

“The fact is that investing in the infrastructure needed to make EPS foam truly recyclable in New York City makes no sense because it would cost far more to do than the value of what amounts to one half of one percent of the City’s waste stream. That’s why Dart has not invested in even a single recycling facility in New York City in the 25 years that we have had a recycling program, and why they have not made a realistic proposal to make EPS foam recyclable here now. Instead, they would like the public to pay the cost of a highly inefficient program to preserve a form of a product – EPS foam foodservice items – that most of NYC restaurants don’t even use and that can cheaply be replaced. That’s why the prohibition of EPS foam in single-serving food service products makes sense, and should be adopted.

“Finally, I would like to directly address claims you may hear from Dart Container and others about their efforts to show that EPS foam can be recycled in New York City. In March 2013, Dart Container and the American Chemistry Council requested a meeting with me and the Department of Sanitation. On March 7, 2013, I personally sat with Michael Westerfield of Dart, Ray Ehrlich of the American Chemistry Council, and their lobbyists to discuss EPS foam recycling. To ensure that Dart was given every effort to show that EPS foam recycling could be viable I instructed the Department of Sanitation to ask our recycling vendors to work with Dart and determine if their claims that EPS foam could be recycled were true.

“We understand that Dart sent a proposal to Sims and that Sims rejected their proposal. Sims can speak to the specifics but our understanding – as I described above – is that Dart simply offered to pay for equipment that it would not pay to operate or maintain, nor would it commit to invest in the infrastructure needed to collect EPS foam at the household level. Moreover, Dart expressly refused to take foam contaminated with oil and grease, precisely the food service byproducts that their products contain. When I asked Dart why they had not invested in a recycling program of any kind in New York City in the last 25 years, they said that they were “working on California.” The fact is, the only reason that Dart is here making the anemic proposals it is making is because the City is finally ready to do the sensible thing: end the use of this product for single-serving, throw-away food items.

“The EPS foam industry may point to purportedly successful foam recycling programs in other cities, particularly Los Angeles. LA does accept clean polystyrene foam for recycling, but Intro 1060 prohibits foodservice products made from EPS foam, which contain the oils and grease that Dart itself will not accept. Of the communities in LA County that have attempted curbside foam recycling pilots, eight have discontinued the program, 15 send the material directly to a landfill, and only seven send their material to a recycling facilities, which would not accept foam food containers, which ended up being sent to landfills. On June 25, Councilmember Fidler received a letter attached to my testimony from Los Angeles Councilmember Paul Koretz stating, ‘EPS food containers contaminated with food waste are not, in fact, recycled in any way by the City of Los Angeles.

’ The Councilmember continued, citing a Los Angeles Bureau of Public Works memo that stated, “MRFs, material recovery facilities, don’t recover food trays, meat trays, or other EPS contaminated with organics as the recycling manufacturers will not accept them.”

“More than 70 cities and counties nationwide have restricted foam from food service products. These municipalities include San Francisco, San Jose, Portland, Seattle, Suffolk County, and Orange County, and apply to over 10 million people nationwide. Just last week, Albany County passed a legislation restricting polystyrene foam. Finally, I note that the proposed legislation does not go into effect until July 1, 2015. Between now and then, the foam industry may prove that EPS foam foodservice products can be recycled in New York City; if that happens the bill contains a clause that would allow the Sanitation Commissioner to rescind the prohibition.

“Since Mayor Bloomberg announced this proposed legislation as part of his State of the City Address, the Administration has received widespread support for this legislation from environmental groups like the NRDC, Sierra Club, We Act For Environmental Justice, the Sustainable South Bronx and League of Conservation Voters; from local foundations, such as the Overbrook Foundation; from the waste and recycling industry, such as the Manhattan Solid Waste Advisory Board; and from business groups, including the Long Island City Partnership, packaging companies, municipalities across the country who have successfully restricted foam in food service products, and school parents anxious to ensure that their kids are no longer using polystyrene foam trays and packaging.

“Intro 1060 is a common sense way to address an environmentally harmful, expensive problem that the market has almost already eliminated on its own. I strongly encourage the Council to finish the job. Thank you for this opportunity to testify this afternoon; I’ll gladly answer any questions you may have.”

 

Contact:

Marc LaVorgna/Jake Goldman (212) 788-2958