Microplastics: Nurdle Law and Regulation Update

[co - author: Joshua Fine]

Seventy-nine percent of plastic waste ends up in landfills or the environment, much of which eventually ends up in our oceans. A March 8, 2023 study, estimated the average amount of small plastics in the ocean surface layer using available data on floating ocean plastics from 1979 through 2019 at 171 trillion plastic particles, mostly microplastics, weighing at about 2.5 million tons. Nurdles are “microplastic resin pellets” generally under five millimeters that absorb persistent organic pollutants from the environment, and may enter the environment during phases of the plastics industry’s supply chain. More specifically, a nurdle is a bead of pure plastic and basic building block of almost all plastic products. Each year, millions of nurdles are produced from natural gas and oil and shipped around the world, then melted and poured into molds to form water bottles, plastic pipes, and countless other items in commerce that involve plastic products that we utilize every day.

The effects of mammals’ exposure to microplastics are still being explored. A study by University of Rhode Island professors, published in the International Journal of Molecular Science, on August 1, 2023, indicated that mice exposed to water treated with microplastics on a short-term basis experienced changes in behavior and altered immunity in brain and liver tissues, which varied subject to age. The study’s authors concluded that additional research is necessary to identify the processes whereby microplastics may cause cognitive and physiological variations in mammals.

Microplastics pollution in waterbodies like the Mississippi and Ohio Rivers has been documented by citizen activists. Trade groups, like the American Chemistry Council and the Plastics Industry Association, assert that Operation Clean Sweep, a voluntary campaign, which began over 30 years ago, is a sufficient way to address the issue. Through Operation Clean Sweep, nurdle handling operations may commit voluntarily to specific practices to stop nurdle spills. But, anti-nurdle pollution advocates will point out that Operation Clean Sweep doesn’t include reporting requirements, an oversight mechanism, or consequences for lack of compliance.

In 2022, a study published by the Minderoo Foundation claimed that by 2030 plastic litigation against petrochemical companies in the United States may exceed $20 billion. It is true that litigation against petrochemical companies throughout the United States involving nurdle pollution to our public waterways has begun. However, most of the action being taken to prevent and cleanup nurdle pollution is not being conducted by the federal or state governments. Rather, to date, it has been private U.S. citizens and nongovernmental organizations that have been the strongest advocates against nurdle pollution in our waterways.

Nurdle Legislation at the Federal Level

In 2015, the Microbead-Free Water Act, which banned “the manufacture and introduction or delivery for introduction into interstate commerce of rinse-off cosmetics containing intentionally-added plastic microbeads,” became federal law. However, it only addresses one source of nurdles.

Since 2021, legislation to address nurdle pollution has been introduced in Congress that has yet to become law. As recently, as July 18, 2023, the Plastic Pellet Free Waters Act, was once again introduced in the U.S. Senate, which would require the EPA “to prohibit the discharge of plastic pellets and other pre-production plastic into waterways from facilities and sources that make, use, package, or transport pellets”.

EPA Non-Enforcement of Regulations under the federal Clean Water Act (“CWA”)

Anti-nurdle pollution advocates argue that the CWA already provides the means for the EPA to address nurdle production and nurdle pollution in United States waterways. However, as nurdles aren’t federally classified as pollutants or hazardous materials, no federal agency in the United States is responsible for nurdle spill prevention or cleanup in waterways. Non-governmental organizations are challenging EPA’s approach to addressing nurdle prevention and pollution.

On January 31, 2023, in a Federal Register notice, the Environmental Protection Agency published at 88 Fed. Reg. 6258, titled “Effluent Guidelines Program Plan 15”, in which it decided that that revision of the effluent limitations, effluent limitation guidelines, standards of performance for new sources, and promulgation of pretreatment standards for seven industrial point source categories, was not appropriate at this time. Two of the industrial point source categories are Organic Chemicals, Plastics, and Synthetic Fibers (“OCPSF”), 40 C.F.R. Part 414 (with the exception of per-and polyfluoroalkyl substances (“PFAS”) discharged from PFAS manufacturing facilities) and Plastics Molding and Forming, 40 C.F.R. Part 463 for which effluent limitations, effluent limitations guidelines and pretreatment standards have not been revised in over three decades.

On April 11, 2023, 12 non-governmental organizations (“Petitioners”), which work to protect waters of the United States, filed a petition in the United States Court of Appeals for the Ninth Circuit for review of the final actions by the EPA and EPA Administrator Michael Regan in Effluent Guidelines Program Plan 15. The Petitioners asserted that they have standing to seek judicial review of this decision as they and their members have been injured by EPA’s Plan 15 decisions, and those injuries can be redressed by a favorable decision by the Court. Under 33 U.S.C. §§ 1311, 1312, 1316, and 1317, the Petitioners asserted that EPA’s decisions in Plan 15 not to revise the effluent limitations, effluent limitation guidelines, standards of performance for new sources, and pretreatment standards for the seven industrial point source categories were “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law,” under the federal Administrative Procedure Act, 5 U.S.C. § 706(2)(A).

On May 2, 2023, the EPA published its Draft National Strategy to Prevent Plastic Pollution in the Federal Register for public comment. EPA’s Draft National Strategy to Prevent Plastic Pollution calls for a reduction of plastic waste in waterways and oceans through voluntary actions, including improving water management, and increasing research and public awareness of the impacts of microplastics in waterways and oceans, with a goal of eliminating plastic waste releases from land-based sources into the environment” throughout the United States by 2040. Various NGOs believe that a voluntary strategy is ineffective and that EPA needs to establish and implement enforceable regulations.

Nurdle Legislation and Regulation at the State Level

The only state that has a strong law that enables companies to be held accountable for nurdle pollution is California. In 2007, California Assembly Bill No. 258 became law and required the State Water Resources Control Board “to designate, as appropriate, stormwater discharges of preproduction plastic from plastic manufacturing, handling, and transportation facilities as contributors of pollutants pursuant to Section 1342(p)(2)(E) of Title 33 of the United States Code of the federal Clean Water Act.” This year, a Pennsylvania Department of Environmental Protection (“PADEP”) representative indicated that Pennsylvania’s Clean Streams Law and the Solid Waste Management Act, which were enacted over three decades ago, should enable the PADEP to hold nurdle polluters liable for cleaning up spills.

Other states have recently begun to consider legislation addressing nurdles. For example, in 2021, South Carolina’s Senate passed S0596, which would have prohibited companies from spilling nurdles into public waterways, but by February 2022 South Carolina’s House Environmental Subcommittee adjourned debate on the legislation. Similarly, the Texas Commission on Environmental Quality’s March 2022 proposed ban on microplastic pollution was abandoned by September 2022.

In 2023, state legislatures have considered bills requiring studying, testing and/or making public information about microplastics in drinking water, but none of the legislation would deem nurdles to be pollutants that may be regulated under the CWA, as California’s 2007 law did.

Citizen Suit Litigation brought by Non-Governmental Organizations

In the past few years, non-governmental organizations have had some success in citizen suits they have brought to address nurdle pollution.

A nurdle pollution lawsuit, styled San Antonio Bay Estuarine Waterkeeper and S. Diane Wilson v. Formosa Plastics Corp., Texas, and Formosa Plastics Corp., was filed in the United States District Court for the Southern District of Texas. Victoria Division in 2017. Through its collection of 2,500 samples and taking of 7,000 photos/videos, San Antonio Bay Estuarine Waterkeepers and Diane Wilson, a retired shrimp boat captain and fisherwoman, were able to affirmatively prove that that Formosa was discharging nurdle pollution from its Point Comfort Facility in Texas in violation of the CWA. In March 2019, U.S. District Court Judge Kenneth Hoyt found Formosa to be a “serial offender” that engaged in extensive violations of the CWA. In December 2019, he approved a $50 million settlement between Formosa Plastics Corp. and San Antonio Bay Estuarine Waterkeeper and Diane Wilson, which required Formosa to fund six key pollution mitigation projects near, and end all discharge of plastics from its Point Comfort Facility.

A similar case styled Charleston Waterkeeper and South Carolina Coastal Conservation League v. Frontier Logistics, L.P. was filed in the United States District Court for the District of South Carolina, Charleston Division, in March 2020. The lawsuit brought under the CWA and Resources Conservation and Recovery Act contended that Frontier Logistics, L.P. (“Frontier”), a plastic-pellet packager and shipper, was responsible for polluting the Cooper River, which flows into the Charleston Harbor, with nurdles from its former facility at Union Pier in Charleston. The Charleston Waterkeeper was able to show that the highest concentration of the 14,000 nurdles it collected were found closest to Frontier’s former facility. Ultimately, Frontier agreed to pay $1.2 million to settle the lawsuit, and agreed to follow recommendations made by an independent auditor and a nurdle-pollution expert to prevent nurdles from entering the environment from its new facility in North Charleston.

Conclusion

Likely due to the ubiquitous nature of nurdles and microplastics in the environment, and advocacy by the plastics industry within the United States, the development of federal and state laws and regulations is currently moving at a slow pace. For the time being, continued litigation by U.S. citizens and non-governmental organizations may be expected to expand throughout this decade.