With Dart lawyers ‘ready to pounce,’ Avon softens stance on Styrofoam | VailDaily.com

With Dart lawyers ‘ready to pounce,’ Avon softens stance on Styrofoam

Town had considered a total ban, but is now looking for help from state lawmakers

Expanded polystyrene foam is used to make plates, coffee cups and food containers, among other things. The Avon Town Council has passed an ordinance to ban this material, contingent on statewide repeal of a law disallowing such action.
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Avon officials first discussed the idea to ban Styrofoam in 2017.

The town has been receiving questions from interest groups ever since, says Deputy Town Manager Preston Neill.

“Lobbyists from Dart Containers, the American Chemistry Council and the American Restaurant Association email me on a regular basis saying ‘When is the Avon Town Council going to review that ordinance again?'” Neill said Tuesday. “They are ready to pounce.”

In 2015, Dart Container Corporation joined a group in New York City in filing a lawsuit seeking to overturn the city’s ban on foam foodservice items. After a more than three year fight, the ban was upheld in 2018, and went into effect in January.

Since then, other cities and towns across the nation have began issuing bans of their own, but only in states that don’t have laws in place to prevent those bans.

Colorado’s ban on bans

Colorado has a law in place saying “no unit of local government shall require or prohibit the use or sale of specific types of plastic materials or products.” That law, coupled with the perception that Dart and others appear “ready to pounce” at a lawsuit, prompted the Avon council to take a step back from passing an ordinance banning expanded polystyrene, otherwise known as Styrofoam.

Instead, the council on Tuesday directed town staff to prepare an ordinance which will ban expanded polystyrene in Avon only if the Colorado legislature repeals the law which disallows bans on plastic products.

That ordinance is likely to be coupled with a something less symbolic — an actual ban of expanded polystyrene for purchasing and use on town property.

Through the passage of those efforts, the council is hoping to attract attention from lawmakers in Denver who can sponsor a bill to repeal the state statute that prevents bans on plastic products. Town Manager Eric Heil said now is a good time to pursue an effort to change the law.

“You’ve got a Democratic House, Democratic Senate, Democratic Governor’s office,” Heil said. “The stars don’t get in more alignment to consider this type of a bill.”

What about bags?

In Avon’s effort to see the state statutes revised, there’s a bit of civil disobedience, as well. Avon chose to ignore the state statute that disallows plastic bans when the town instituted its plastic bag ban in 2018.

In doing so, Avon was relying on the argument that it’s a home-rule municipality, therefore it doesn’t have to abide by the state statute in question. The reasoning for ignoring the state statute when it comes to plastic bags but not Styrofoam, as explained by town attorney Paul Wisor, is that those associated with expanded polystyrene containers stand more to lose than those associated with plastic bags.

“(Dart Container Corporation) is more organized, and more motivated about these containers than some amorphous organization that might care about the plastic bags,” Wisor said.

Avon’s next council meeting is scheduled for Oct. 10, which is a Thursday, as the normally scheduled Tuesday meeting will be delayed in observance of Yom Kippur.

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