Plastic Discharge Regulations - Key Considerations for Manufacturers

In both cases, environmental groups allege that the defendants have been releasing small plastic pellets, called nurdles, into waterways without a permit. In the Pennsylvania case, environmentalists accused Styropek USA, Inc., an expanded polystyrene manufacturer, of discharging nurdles into a tributary of the Ohio River. As part of a settlement with the plaintiffs and the Pennsylvania Department of Environmental Protection, Styropek agreed to install monitoring and control equipment and to pay $2.5 million for watershed restoration.

Soon after, environmentalists in South Carolina issued a citizen suit letter to two companies allegedly discharging nurdles into the Congaree River. The increased attention to nurdle releases raises the possibility of additional citizen suit activity in the near future.

South Carolina Citizen Suit Summary

In February, an environmental group, Congaree Riverkeepers, first began collecting nurdles near Columbia, South Carolina. The Riverkeepers assert that a polyester factory operated by Alpek Polyester USA, LLC and Eastman Chemical Company has been releasing nurdles, 1,4-dioxane, and organic matter into the Congaree River.

The CWA forbids the discharge of any pollutant without a permit. 33 U.S.C. § 1311(a). The Act defines a “pollutant” to include solid waste discharged into water, which can include solid plastic. 33 U.S.C. § 1362(6). The Riverkeepers allege that Alpek and Eastman have been discharging nurdles and 1,4-dioxane without a National Pollutant Discharge Elimination System (NPDES) permit.

The Riverkeepers also accuse Alpek and Eastman of violating the RCRA. The RCRA allows citizen suits against a defendant for the handling, storage, treatment, transportation, or disposal of any solid or hazardous waste that may present an imminent or substantial endangerment to health or the environment. 42 U.S.C. § 6972(a)(1)(B). It also forbids the disposal of solid or hazardous waste in an “open dump”—anywhere outside a proper landfill. 42 U.S.C. §§ 6945(a), 6903(14). The RCRA defines “solid waste” to include discarded material from industrial operations. 42 U.S.C. § 6903(14). The Riverkeepers contend that Alpek and Eastman’s nurdles harm fish in the river and the people who eat them. They also say that the plant’s wastewater treatment system is located within a floodplain and therefore results in open dumping.

Unless regulators act within 60 days, we expect litigation. The Riverkeepers’ case may be yet another model for environmental plaintiffs seeking to limit plastic pollution.

Pennsylvania Settlement Summary

In the Pennsylvania case, the plaintiffs alleged that Styropek released nurdles into a river without authority under Styropek’s NPDES permit. As part of the proposed settlement, Styropek agreed to install equipment to prevent and monitor future releases. Styropek also agreed to pay a $100,000 penalty, $2 million for plastic remediation, $500,000 for watershed restoration, and $375,000 in attorney’s fees. The environmental plaintiffs who brought the suit suggested the settlement could set a framework that could be copied across the country.

The Pennsylvania settlement is the third settlement related to plastic pollution in waterways. In 2019, Formosa Plastics Corp. agreed to retrofit its facility and pay $50 million after it allegedly discharged nurdles into Lavaca Bay in excess of its permit conditions. In 2021, Frontier Logistics agreed to pay $1.2 million to settle a lawsuit after nurdles washed into Charleston Harbor.

Key Considerations

Manufacturers of plastics and those who use plastic components in any part of their processes should consider the following.

• Whether any wastewater discharges may contain plastics.
• Request appropriate modifications to existing NPDES permits.
• Explore control and monitoring technologies.

Members of the firm’s Environmental group monitor administrative activity and court decisions affecting the regulated community.