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For Release: Thursday, September 9, 2021

DEC Proposes Regulations to Implement Ban on Polystyrene Packaging and Fill, Reduce Waste

New Yorkers Encouraged to Review and Comment on State's Proposal to Implement the Prohibition on the Sale and Distribution of Expanded Polystyrene Foam Containers and 'Packing Peanuts'

Builds on Statewide Waste-Reduction and Litter-Prevention Measures

New York State Department of Environmental Conservation (DEC) Commissioner Basil Seggos announced the release of proposed regulations to implement a ban on expanded polystyrene foam containers and loose fill packaging, commonly referred to as 'packing peanuts,' that goes into effect Jan. 1, 2022. 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. New York is among the first states to ban polystyrene packaging and fill. DEC is accepting comments on the proposed regulations until Nov. 22, 2021.

"New York's proposed regulations to implement a ban on polystyrene foam containers and packing material will reduce the waste headed to landfills and combustors," Commissioner Seggos said. "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. I encourage New Yorkers to review the draft regulations and provide comments as we work to remove these single-use plastic products from our waste stream to protect the environment, both now and into the future."

Expanded polystyrene (EPS) foam is a major contributor to environmental litter, causing negative impacts to wildlife, waterways, and natural resources. EPS 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:

  • Food service establishments, caterers, temporary food service establishments, mobile food service establishments, and pushcarts as defined in the New York State Sanitary Code;
  • Retail food stores, as defined in Article 28 of the Agriculture and Markets Law, which include any establishment where food and food products are offered to the consumer and intended for off-premises consumption;
  • Delis, grocery stores, restaurants, cafeterias, and coffee shops;
  • Hospitals, adult care facilities, and 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 law does not apply in New York City because the city has a local polystyrene ban in place and meets the law's population threshold. Other local laws enacting a polystyrene ban are preempted by the state law, except any county law enacting a polystyrene ban providing environmental protection equal to or greater than the state law or regulations will not be preempted if the county files a written declaration with DEC of its intent to administer and enforce its local law.

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

DEC will hold a virtual public hearing on the proposed Part 353 regulations on Nov. 15, at 1 p.m. Details about the public hearing will be shared soon. The public is invited to submit written comments on the proposed regulations from Sept. 8 through Nov. 22. Written comments can be submitted by email to foamban@dec.ny.gov 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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