DEC seeks comments on styrene ban that will preempt county law

— Photo from the NYSDEC

Hinged “clamshell” containers like these, made of expanded polystyrene, would be prohibited statewide under a DEC proposal.

ALBANY COUNTY — Albany County was ahead of the state in adopting a ban on polystyrene use by restaurants but, now that requirements proposed by the state’s Department of Environmental Conservation are broader and than the county’s, the county’s law will be preempted.

In 2018, Albany County passed a much-debated polystyrene ban titled “Food Service Waste Reduction Act,” requiring all disposable food-service ware be recyclable or compostable.

That law was an amendment to a 2013 law, with a ban that had applied only to chain restaurants.

Across the state, any county law enacting a polystyrene ban providing environmental protection equal to or greater than the state law or regulations would not be preempted if the county files a written declaration with the DEC of its intent to administer and enforce its local law. 

Albany County will not be filing a declaration to enforce its own law, according to Eugenia Condon, a lawyer with the Albany County Attorney’s Office.

“The state law and regulations are much broader and provide a more comprehensive ban on the use of polystyrene in the state. Stated differently, the County local laws are more narrowly focused on the use of polystyrene containers in the food service industry,” Condon wrote in an email, answering questions from  The Enterprise.

“By contrast, the State law and regulations prohibits the use of polystyrene more broadly to include not only food service providers but also to grocery stores, manufacturers and sellers of polystyrene products, hospitals, adult day care, social service providers, and educational institutions,” she went on. “Significantly the state law also covers packaging materials made from polystyrene. The local laws do not reach that broadly and therefore are not greater than or equal to the protections provided by the State law.”

The DEC requirements for a ban on expanded polystyrene foam containers and loose fill packaging, commonly referred to as “packing peanuts,” is slated to go into effect Jan. 1, 2022.

The DEC is accepting comments on the proposed regulations until Nov. 22.

The ban builds on New York’s environmental leadership in preventing litter and reducing waste through measures such as the ban on plastic carryout bags, the bottle bill, and food-scrap recycling and food-waste prevention efforts, according to a release from the department.

“The ban creates enormous long-term benefits for the environment by helping to reduce litter, clean up the recycling stream, prevent macro/microplastic pollution, and bolster the ongoing transition to more sustainable alternatives,” said Commissioner Basil Seggos in the release. “I encourage New Yorkers to review the draft regulations and provide comments ....”

Expanded polystyrene, known as EPS, foam is a major contributor to environmental litter, hurting wildlife, waterways, and natural resources, according to the DEC; the foam is lightweight, breaks apart easily, and does not readily biodegrade, rendering it persistent in the environment and susceptible to becoming microplastic pollution.

In addition, EPS foam containers and loose-fill packaging are not accepted by most recycling programs in New York State because the foam is difficult to recycle, easily contaminates the recycling stream, is often soiled, and has low value.

The law and proposed regulations prohibit any person engaged in the business of selling or distributing prepared food or beverages for on- or off-premises consumption from selling, offering for sale, or distributing disposable food-service containers that contain expanded polystyrene foam in New York. In addition, no manufacturer or store will be allowed to sell, offer for sale, or distribute polystyrene loose fill packaging in the state.

Examples of covered-food service providers required to comply with the ban include caterers, retail food stores, delis, grocery stores, restaurants, cafeterias, coffee shops, hospitals, adult care facilities,  nursing homes, and elementary and secondary schools, colleges, and universities.

Disposable food-service containers made of expanded polystyrene that will be banned under the law and proposed regulations include bowls, cartons, hinged “clamshell” containers, cups, lids, plates, trays, or any other product designed or used to temporarily store or transport prepared foods or beverages, including containers generally recognized as designed for single use.

Under the law, certain facilities and covered-food service providers may request a financial hardship waiver, which may apply to one or more disposable food-service containers. The proposed regulations detail the application process and approval criteria.

The law and proposed regulations include exemptions for raw meat, pork, seafood, poultry, or fish sold for the purpose of cooking or preparing off-site by the customer and prepackaged food filled or sealed prior to receipt at a covered food service provider.

The full text of the draft regulations, including express terms, hearing information, and related information pertaining to the proposed rulemaking, is available on DEC’s website

The DEC will hold a virtual public hearing on the proposed Part 353 regulations on Nov. 15, at 1 p.m. The public is invited to submit written comments on the proposed regulations from Sept. 8 through Nov. 22.

Written comments may be submitted by email to or by mail to: BWRR-Part 353, NYSDEC, Division of Materials Management, 625 Broadway, Albany, NY 12233-7253.  Please include “Comments on Proposed Part 353” in the subject line of the email.

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