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Volume 18/Number 6B/June 1987

Marine Pollution Bulletin, Vol. 18, No. 6B, pp. 357-360, 1987. Printed in Great Britain. 0025-326X/87 $3.00+0.00

© 1987 Pergamon Journals Ltd.

Legal Strategies for Reducing Persistent Plastics in the Marine Environment MICHAEL J. BEAN Environmental Defense Fund, 1616 P Street, N. W., Washington, D. C. 20036 USA

A variety of legal strategies could be employed to address aspects of the problem of persistent plastics in the marine environment. These include strategies based on international agreements, federal legislation, and state law.

At the international level, plastic pollution from vessels is addressed by the International Convention Relating to Pollution from Ships (MARPOL), though its operative provisions are not yet in force. Vessel­source pollution can also be addressed, with varying degrees of effectiveness, through pollution laws, fishery and wildlife conservation laws, and fishing gear com­pensation programmes. These authorities provide a diverse set of opportunities for addressing the entangle­ment problem, though realizing such opportunities is likely to require an expanded perception on the part of their administrators of the types of hazards addressed by the poHution laws.

Various state measures focus primarily on reducing or preventing the problem of generation of plastic pollu­tion from land-based sources. These include several laws that impose degradability standards for certain plastic products or attempt to encourage recycling of plastic waste. The experiences of various states that have enacted such laws are described and recommenda­tions are made with respect to needed measures for more effective implementation of such laws.

The Growing Plastics Market

An earlier paper examined a number of potential legal tools for addressing the problem of marine plastic pollution, with particular attention to the matter of entanglement of living marine organisms in lost or dis­carded fishing gear (Bean, 1984). The current paper looks more broadly at the general problem of plastics in the marine environment, of which the special problem of fishing gear is but one subset. The object here is to identify the principal existing legal authorities that might be utilized to address the general problem of marine plastic pollution and to recommend additional measures that would aid in that effort.

Each year, some 3-4 billion tons of solid waste are

produced in the United States, of which an estimated 9 million tons are dumped at sea (National Advisory Committee on Oceans and Atmosphere, 1981 ). The amount dumped may represent only about a tenth of the total pollution entering the oceans; the majority enters from land-based sources via rivers, estuaries and other avenues (Kindt, 1984).

What fractions of these various totals are represented by plastic materials is unknown, though they are likely to be significant and growing. In New York City, where the composition of the solid waste stream from the residential and commercial sectors has been studied, plastics represent 7.4% (by weight) of that stream (Environmental Defense Fund, 1985). Recent techno­logical breakthroughs make it almost certain that this percentage will rise dramatically, both in New York and elsewhere. Specifically, the recent development of barrier resins from ethylene vinyl alcohol (EVOH) is expected, because of their improved impermeability to oxygen, to enable plastic products to take over a major share of the food can, and soft drink and beer container markets, which currently account for over 100 billion containers annually (Oates, 1985). As evidence of that, Coca-Cola USA has, since last October, been test marketing its popular soft drink in 'plastic cans' (Thompson, 1986). Similarly, the Campbell Soup Com­pany, which produces some 6 billion cans annually, has begun marketing some of its soup in microwave-ready plastic bowls and is considering replacing its entire pro­duction of TV-dinner aluminium trays, some half billion annually, with new plastic trays (Oates, 1985).

The revolution in consumer product packaging is so striking that one cannot lightly dismiss the recent con­tention of a plastics industry official that "[al)most everything that's in other packaging now is apt to find itself into plastic eventually" (Oates, 1985). Much of that future plastic packaging is likely to find its way into the nation's waters and eventually the oceans.

Controlling Plastic Pollution from Vessels

At present, the legal authorities that apply or could be made to apply to the problem of plastic pollution in the marine environment appear inadequate to redress the problem comprehensively. The most specific

357

authorities pertain to vessel source pollution. The London Dumping Convention regulates the 'dumping' of wastes at sea. The International Convention Relating to Pollution from Ships, commonly known as the MARPOL convention, regulates, among other things, the disposal at sea of wastes "incidental to or derived from the normal operations of vessels". Because these treaties are analysed at length in the succeeding paper (Lentz, 1987), they will not be detailed here. It is suffi­cient to note that the London Dumping Convention prohibits the dumping at sea of persistent plastics that are not generated in the course of vessel operations, whereas optional Annex V of MARPOL, which is not yet in force and not yet ratified by the United States, prohibits the at-sea disposal of plastic materials that are so generated. Ratification by the United States of the optional MARPOL Annex V is currently under active consideration by the US State Department and the Coast Guard. US ratification and the coming into force of Annex V would be a major step toward more effec­tive control of deliberate disposal of plastic wastes by US vessels at sea. Enforcement of Annex V is likely to be difficult, however, because it applies literally to all vessels, without regard to size or type, and thus the sheer number of regulated vessels is likely to dwarf the Coast Guard's enforcement capability.

Neither the London Dumping Convention nor the MARPOL Convention appears to apply to the acci­dental loss at sea of fishing gear. The deliberate, or even careless, disposal of synthetic gear at sea would contra­vene the requirements of Annex V of MARPOL when those requirements become effective. For now, under the authority of the Fishery Conservation and Manage­ment Act, the United States prohibits by regulation the discarding of gear by foreign vessels fishing within the Exclusive Economic Zone (National Marine Fisheries Service, 1985). No similar prohibition applies to US fishermen, though it is clearly within the authority con­ferred by that Act to impose such a prohibition. How­ever, since only foreign boats typically carry US obser­vers to monitor compliance with the law, enforcement against US boats would likely be very difficult.

Under title I of the Marine Protection, Research, and Sanctuaries Act, commonly known as the Ocean Dumping Act, no US vessel may transport any material for the purpose of dumping it in the ocean, except under the authority of a permit issued by the Environ­mental Protection Agency (EPA). The wastes, including plastic wastes, that may be routinely discarded from fishing vessels, pleasure craft, cargo ships and other boats, while arguably within the scope of the Ocean Dumping Act (though it is dubious that they meet the statutory standard of being transported for the purpose of dumping), are in practice not regulated under that or any other authority outside the territorial sea of the United States. Within US territorial waters, section 301 of the Clean Water Act prohibits such discharges unless they are specifically authorized, though again in prac­tice non-enforcement is the norm. The reasons for non­enforcement include the obvious difficulty of detection as well as a longstanding disagreement between EPA and the US Army Corps of Engineers over which

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Marine Pollution Bulletin

agency has the authority to permit the disposal of solid waste in the nation's waters. A recent memorandum of agreement between the two agencies on that general subject provides virtually no clarification of this issue for the types of discharges typically associated with vessels (US Environmental Protection Agency et al., 1986).

A number of federal wildlife conservation laws, among them the Endangered Species Act, The Marine Mammal Protection Act, and the Migratory Bird Treaty Act, prohibit the 'taking' or killing of the species that are within their scope. It may appear that these laws could provide a means of punishing ( and thereby deterring) the discarding of nets and other plastic debris that may entangle protected animals. In practice, how­ever, it is typically almost impossible to link a particular deliberate or negligent act with the subsequent killing of a protected animal, and these laws present insurmount­able enforcement problems that render them of no real value against such threats. Even if fishing nets could be marked so as to identify their owners, as some have urged, the fact a net caused the death of a protected animal would not likely lead to prosecution of a net owner in the absence of any information that he had acted culpably.

Finally, two separate federal statutes, the Fisherman's Protective Act and the Outer Continental Shelf Lands Act, provide for compensation to fishermen for lost or damaged gear. The former erects a rebuttable presump­tion that any damage or loss of gear is attributable to another vessel and therefor compensable. Claims filed to date under this programme are likely to shed con­siderable light on the types and amount of netting being lost, where it is lost, and possibly the reasons for the loss. This source of information may be valuable in developing a strategy for addressing the net entangle­ment problem.

In addition to the above international and federal authorities, state laws may regulate the disposal of wastes from vessels in state waters. The inherent diffi­culties of enforcement against disposal activities at sea, however, argue strongly for alternative strategies that can be effectively enforced ashore or at dockside. These could include requirements that vessels of a certain size be equipped with compacters or other equipment for storing waste, prohibitions on the possession of par­ticular plastics products on vessels or public beaches, and possibly even restrictions on the sale of such pro­ducts in coastal areas. Measures of this sort are most appropriately the province of state and local govern­ments, rather than the federal government, though the latter might significantly influence state and local prac­tices through promulgation of solid waste management guidelines under the Resources Conservation and Recovery Act (US Congress, 1976).

Controlling Plastic Pollution from Land-based Sources

Land-based sources are believed to be a much more significant contributor of pollutants to the marine envi-

Volume 18/Number 6B/June 1987

ronment than are vessels. At least two basic types of plastic pollutants appear to be associated with land­based pollution of the marine environment. First, tiny beads or pellets of raw plastic and plastic precursors are among the most numerous plastic particles in the ocean and on beaches, and these are said to enter the oceans and inland waterways from outfalls of plastic manufacturing plants (Coleman & Wehle, 1984). If in fact these reports are correct, the discharge of such materials through outfalls or other point sources into coastal or inland waters is clearly subject to regulation by the Environmental Protection Agency under Section 402 of the Clean Water Act. Currently, however, though EPA has established effluent limitation guidelines for the plastic manufacturing industry, those guidelines control only the pH of the effluent and do not impose any limitation on the discharge of solid or suspended particles (US Environmental Protection Agency, 1985a). The revision of those guidelines to prohibit any discharge of solid plastic particles in the effluents from this industry would thus appear to be an important opportunity for reducing marine plastic pollution.

The second major source of land-based plastic pollu­tion that enters the oceans cannot be traced to a single industry, but is instead the diffuse solid waste generated by a myriad of consumers disposing of a myriad of plastic containers, wrappers, and other debris. With the exception of 'hazardous' waste, the control of the dis­posal of solid waste is primarily a state and local, rather than a federal, responsibility. Although plastic trash can clearly present a hazard to marine (and terrestrial) life, and is arguably within the literal definition of 'hazard­ous waste' in the federal Resource Conservation and Recovery Act ("a solid waste ... which because of its ... physical [or] chemical ... characteristics may ... pose a substantial present or potential hazard to .. the environment when improperly treated, stored, trans­ported, or disposed of'), EPA does not regulate it under that authority. The focus of EPA's program is on chemical toxicity and on 'generators' who produce waste in the course of manufacturing other products. Most plastic wastes are, at least initially, either them­selves the desired end product of a manufacturing pro­cess or the container or wrapping for such a product. They become waste only after use by the consumer who might, in some sense, be identified as the 'generator' of the waste. The EPA hazardous waste regulatory pro­gramme has an entirely different orientation, despite the literal language of the statute it implements.

As non-hazardous waste, plastic trash is, and will likely remain, principally a state and local responsibility. Thus, strategies aimed at reducing the amount of marine plastic pollution from such sources will neces­sarily have to be aimed at those levels of government. A potentially important state-level initiative has been the enactment of laws requiring the use of degradable carriers for beverage containers. Ten states now have such laws (Alaska, California, Connecticut, Delaware, Maine, Massachusetts, New Jersey, New York, Oregon, and Vermont), and all but two (California and New Jersey) were enacted as part of beverage container return deposit laws. About a dozen other states are

actively considering the enactment of such laws. Typi­cally, these laws prohibit the sale or offer for sale of beverage containers held together by plastic rings or similar plastic devices that are not degradable.

Technological Remedies: Degradable Plastics and Recycling

The definition of 'degradable' varies from state to state, with Alaska's being the most comprehensive. It limits the term to products that can be "broken down by biological, chemical, photochemical, or other physical processes within two years of exposure to natural elements, and to a particle size and chemical composi­tion that may be assimilated harmlessly and aesthetic­ally into the environment without producing a residue or by-product determined by the department to be hazardous" (State of Alaska, 1985). In Oregon, degradation must occur more quickly, with 120 days of disposal. Other states require only that degradation occur within "a reasonable period of time upon expo­sure to the elements" (e.g. Maine and Connecticut) or vest an agency with the power to determine that a parti­cular carrier type is in fact degradable without speci­fying any time period within which degradation is to occur.

In 1985, the Environmental Defense Fund surveyed six state agencies that were charged with implementing such laws to determine what their actual experience had been. All of the states relied primarily or exclusively upon data submitted by the manufacturers in deter­mining whether particular carriers met the state's degradability requirements; none performed extensive independent analysis. In some states as many as three different carrier companies have been approved under the state standards while in others only a single com­pany has yet been approved. Enforcement efforts to ensure that only approved carriers are being sold in the state have been very limited, though they have turned up very little evidence of noncompliance. The surveyed agencies are unaware of increased loss of product, impaired consumer safety, or significant economic dis­location as a result of the degradability requirements. On the other hand, no state can demonstrate empiric­ally any reduction in litter attributable specifically to the degradability requirement, though return deposit requirements have often been credited with causing significant overall reductions in litter. Industry opposi­tion to degradability requirements has not been intense (unlike its opposition to return deposit requirements) and has focused primarily on the claim of increased cost, which is about 10% higher than for non-degrad­able carriers.

Perhaps most significantly, none of the surveyed agencies was actively considering recommending expansion of the degradability requirement to encom­pass other types of products. The Vermont legislature has reportedly discussed other potential restrictions on plastic packaging, but has produced no new legislation. The state of Minnesota banned plastic milk containers in 1977, successfully defended the ban in the US Supreme Court, but then backed down from imple-

359

menting it because of intense industry opposition (Steinhart, 1986). These fledgling state efforts pale beside a decree reportedly issued by the Italian Minister of Industry in December 1984 requiring that all bags and plastic wrappings be made of biodegradable mate­rials by 1991. Whether that decree will ever be imple­mented remains to be seen, though if taken seriously it should serve to stimulate research to produce new pro­ducts capable of meeting its requirements.

Although restrictions on certain plastic products have been a state-level undertaking to date, there may be authority currently to impose similar restrictions on federal agency facilities. Section 1008 of the Resource Conservation and Recovery Act (RCRA) authorizes the EPA Administrator to promulgate "suggested guide­lines for solid waste management" and Section 600r makes compliance with the guidelines by federal execu­tive agencies mandatory. A "Beverage Container Guideline" promulgated under a comparable provision of a prior law required that all beverage containers sold at federal facilities be made "returnable" by the imposi­tion of a 5 cent deposit (US Environmental Protection Agency, 1985b ). This guideline was upheld against a challenge by a beverage industry trade association (US Court of Appeals, 1979). While not entirely free from doubt, EPA's authority would seem broad enough to authorize guidelines requiring that certain types of pro­ducts sold at federal facilities, or perhaps only at coastal federal facilities, be made only of degradable materials.

Without a major shift to degradable materials, the principal strategy for controlling marine plastic pollu­tion from land-based sources will of necessity be through solid waste disposal laws of general applic­ability and through increased recycling. While the Resource Conservation and Recovery Act assigned ultimate responsibility for managing non-hazardous solid wastes to state and local governments, it neverthe­less contemplated a vigorous federal role of technical and financial assistance in stimulating ways to help the states reduce wastes, promote recycling, and better manage waste generally. Federal financial assistance for such purposes, however, was an early casualty of Reagan Administration budget cuts.

To date, the optimism of a decade and more ago that recycling could alleviate a major share of the solid waste problem has not been borne out. In part, this has been because recycled materials have been expected to be competitive with virgin materials without public sub­sidies. In New Jersey, however, a law passed in 1986 imposes a special tax on manufacturers, wholesalers, and retailers of certain designated 'litter generating pro-

360

Marine Pollution Bulletin

ducts' and requires that proceeds from this new tax are to be used for grants to municipalities ( on the basis of the quantity of materials they annually recycle) for low interest loans and loan guarantees to recycling busi­nesses and industries, and for related purposes. The New Jersey law recognizes that public subsidies to make recycling efforts economical may well be justified because the alternative may be even larger public expense to build and operate incinerators and safe landfills. Recognition that the real choices are between these alternative forms of public expenditure is likely to give a needed boost to recycling efforts and indirectly reduce the volume of plastics and other debris entering the marine environment.

Bean, M. J. (1984). United States and International Authorities Applic­able to the Entanglement of Marine Mammals and Other Organisms in Lost or Discarded Fishing Gear and Other Debris, A Report to the Marine Mammal Commission. National Technical Information Service, PB85-1604 71, Springfield, Va.

Coleman, F. C. & Wehle, D. H. S. (1984). Plastic Pollution: A World­wide Oceanic Problem. Parks 9, 9-12.

Environmental Defense Fund. (1985). To Burn or Not to Burn: The Economic Advantage of Recycling Over Garbage Incineration for New York City. Environmental Defense Fund, New York.

Kindt, J. W. (1984). Solid Wastes and Marine Pollution, Cath. Univ. Law. Rev. 34, 37-100.

Lentz, S. A (1987). Plastics in the Marine Environment: A Legal Per­spective, Mar. Pollut. Bull. 18,

National Advisory Committee on Oceans and Atmosphere. (1981). The Role of the Ocean in a Waste Management Strategy. Wash­ington, D.C.

National Marine Fisheries Service. (1985). Regulations Governing Foreign Fishing in the U.S. Fishery Conservation Zone. Code of Federal Regulations, Title 50, Section 611.12(c), Washington, D.C., pp. 456-457.

Oates, S. (1985). Plastics Pushing Bottles, Cans Off Shelves. The Wash­ington Post, Aug. 25, p. Fl.

State of Alaska. (1984). Alaska Statutes, section 46.06.150(9). Steinhart, P. (1986). Down in the Dumps, Audubon 88, 103-108.

Thompson, K. (1986). New Plastic Coke Can Sparks Controversy. The Journal of Commerce, February 21.

US Congress. (1976). Resource Conservation and Recovery Act. Public Law 94-580, 90 Stat. 2795. Washington, D.C.

US Court of Appeals. (1979). United States Brewers Ass'n v. EPA In Federal Reporter 2d, 600, 974-984. West Publishing Co., St. Paul. Minnesota.

US Environmental Protection Agency. (1985a). Effluent Guidelines and Standards for the Plastics and Synthetics Point Source Category. Code of Federal Regulations, Title 40, Part 416, pp. 304-349. Wash­ington, D.C.

US Environmental Protection Agency. (1985b). Solid Waste Manage­ment Guidelines for Beverage Containers. Code of Federal Regula­tions, Title 40, Part 244, pp. 278-283.

US Environmental Protection Agency and US Department of Defense. (1986). Memorandum of Agreement between the Assistant Admin­istrators for External Affairs and Water, US Environmental Protec­tion Agency, and the Assistant Secretary for the Army for Civil Works concerning Regulation of Discharges of Solid Waste Under the Clean Water Act, Jan. 17.