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Reckoning with the U.S. Role in Global Ocean Plastic Waste (2022)

Chapter:Appendix C: Legal Framework

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Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2022. Reckoning with the U.S. Role in Global Ocean Plastic Waste. Washington, DC: The National Academies Press. doi: 10.17226/26132.
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C

Legal Framework
1

U.S. FEDERAL LAW: APPLICABILITY TO PLASTICS, PLASTIC POLLUTION, OCEAN PLASTIC WASTE, AND MARINE DEBRIS

Starting in the 1970s, the United States created several legal frameworks designed to control and prevent the release of harmful, toxic, or hazardous substances, as well as manage their transportation, treatment, and disposal. Federal law regulates waste disposal and pollution dispersed across political boundaries (by air and water and soil) with various levels of delegation to states and local authorities. A report issued in late 2020 described a U.S. strategy (2020 Strategy) that included legal authorities and roles of certain federal agencies. In 2021, the United States reported the federal legal framework for marine plastic debris as the Resource Conservation and Recovery Act (RCRA), the Clean Water Act (CWA), the Marine Debris Act as amended in 2018, the Save Our Seas 2.0 Act, the Microbead Free Waters Act of 2015, the Toxic Substances Control Act, and the Rivers and Harbors Appropriations Acts (G20 2021, Ministry of Environment, Japan 2020).

The Solid Waste Disposal Act and RCRA treat plastic waste as a subset of municipal solid waste for disposal in landfills or by incineration. CWA and the Clean Air Act address water and air pollution but do not specifically include plastic waste as a regulated pollutant. In 2006, the

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1 The prepublication of this report did not include all of the citations used in the preparation of the Appendix C table. The table has been edited to provide more accurate and complete citations.

Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2022. Reckoning with the U.S. Role in Global Ocean Plastic Waste. Washington, DC: The National Academies Press. doi: 10.17226/26132.
×

Marine Debris Research, Prevention, and Reduction Act (Marine Debris Act) was signed into law. The Coast Guard and Maritime Transportation Act of 2012 reauthorized the Marine Debris Act. Save Our Seas Act of 2018 amended and reauthorized the Marine Debris Act, and the Save Our Seas 2.0 Act amended it in 2020. The Marine Debris Act is the most comprehensive legislation in force relating to ocean plastic waste and other marine debris. These laws focus on cleanup, government coordination, outreach, grant making, and research but do not provide specific authority for any federal agency to regulate the production, transportation, or release of plastic waste.

The most specific legislative action around plastic pollution in aquatic and marine environments was the 2015 Microbead Free Waters Act, which prohibits the manufacturing, packaging, and distribution of rinse-off cosmetics and other products, such as toothpaste, containing plastic microbeads. Other federal laws such as the Ocean Dumping Act support global agreements restricting dumping and pollution from ships and vessels, not land-based sources. International law has been amended to control exports of plastic waste under the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, but the United States is not a signatory.

Legal cases testing whether microplastic or macroplastic waste are subject to federal, state, and other legal limits or liability, including under common law, are simultaneously working their way through the courts.

States and local governments also play an increasing role in responding to plastic waste. This work and the subsequent table has been adapted from legal background and information from Mary Ellen Ternes and Scott Fulton (Ternes and Fulton 2020). The following tables and information reflect federal authorities and a summary of state actions on plastic waste and related activities (e.g., research and development and monitoring as of October 2021). References are included at the end for additional details.

U.S. STATE AND LOCAL LEGISLATION

In the absence of federal legislation, state and local governments have taken action to address problems associated with plastic waste “leakage” and litter that is finding its way to the environment. These measures are largely related to single-use plastic items found in cleanups and in waterways. These measures include existing plastic bag laws, product bans, extended producer responsibility, container deposit schemes (bottle bills), and recycling. These local “legislative” laboratories are testing the efficacy of different methods, most focused on single-use plastic bags. As of 2019,

Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2022. Reckoning with the U.S. Role in Global Ocean Plastic Waste. Washington, DC: The National Academies Press. doi: 10.17226/26132.
×
U.S. Law and Key Agencies Intervention Stage Key Provisions Gaps, Roles, and Related Activities
Plastic-Related Authorities
Marine Debris Research, Prevention, and Reduction Act of 2006 (as amended in 2012, 2018, and 2020) 33 U.S.C. §§ 1951 et seq.

National Oceanic and Atmospheric Administration (NOAA) U.S. Environmental Protection Agency (U.S. EPA)
U.S. State Department National Institute of Standards and Technology (NIST) Interagency Marine Debris Coordinating Committee (IMDCC)
Stages 5–6, Waste Capture; Monitoring, Research and Development (R&D), Outreach The 2006 Marine Debris Act was amended in 2012 and further amended in 2018 and 2020 by the Save Our Seas Act (SOS) and Save Our Seas 2.0 Act (SOS 2.0).

Establishes a program at NOAA to “identify, determine sources of, assess, prevent, reduce, and remove marine debris and address the adverse impacts of marine debris on the economy of the United States, marine environment, and navigation safety.”

Defines “marine debris” to include “any persistent solid material that is manufactured or processed and directly or indirectly, intentionally or unintentionally, disposed of or abandoned into the marine environment or the Great Lakes.” (33 U.S.C. § 1956)

Amended in 2012 to require NOAA to address marine debris resulting from natural disasters and severe weather events.
Does not establish plastic waste limits or establish liability.

Authorizes federal and international coordination through U.S. Coast Guard (USCG), U.S. State Department, U.S. EPA, and IMDCC, the federal interagency coordinating body responsible for addressing marine debris and recommending priorities and strategies, both nationally and internationally.

2020 amendments (SOS 2.0)
  • Defines and promotes “circular economy.”
  • Established innovation prizes and Marine Debris Foundation to support circular economy goals.
  • Requires numerous scientific reports and studies focusing on microfibers, microplastics, plastic waste, circular polymers, and derelict fishing gear.
  • Increased international cooperation and engagement in international treaty discussions.
  • Authorized additional funding and grant programs for recycling and waste infrastructure.
Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2022. Reckoning with the U.S. Role in Global Ocean Plastic Waste. Washington, DC: The National Academies Press. doi: 10.17226/26132.
×
U.S. Law and Key Agencies Intervention Stage Key Provisions Gaps, Roles, and Related Activities
Plastic-Related Authorities
Amended in 2018 “to expand work across the US government, most notably with the US Department of State, to engage foreign governments, especially those of high marine debris source countries, to better address marine debris through strengthened solid waste management. The 2018 Act also mandated that the US government consider addressing marine debris in future trade agreements.”a
Amended in 2020 to require U.S. EPA to “develop a strategy to improve post-consumer materials management and infrastructure for the purpose of reducing plastic waste and other post-consumer materials in waterways and ocean.” (33 U.S.C. § 4281)
Amended in 2020 requiring IMDCC to develop standardized definitions for the term “microfiber” and U.S. EPA to develop a definition of “microplastics” and standard methodologies to assess and test for the prevalence of microfibers in the ocean and microplastics in drinking water.

Amendments of 2020 also require numerous studies, including this one, as well as a U.S. EPA study with IMDCC and NIST on “minimizing the creation of new plastic waste.”
NOAA Program Componentsb:
“(1) identify, determine sources of, assess, prevent, reduce, and remove marine debris;
(2) conduct regional coordination;
(3) reduce adverse impacts of lost and discarded fishing gear, through
  • R&D of alternatives and gear marking and recovery techniques; and
  • non-regulatory incentives to reduce gear in the environment.
(4) conduct outreach and education;
(5) develop interagency plans in response to ‘severe marine debris events,’
  • lead coordination with states, tribes, and other federal agencies;
  • assess debris composition, volume, and trajectory; and
  • estimate potential impacts.

(6) enter into cooperative agreements and contracts and provide financial assistance in the form of grants for projects that address the adverse impacts of marine debris;
(7) reactivate the Interagency Marine Debris Coordinating Committee (IMDCC); and
(8) develop a federal marine debris information clearinghouse.”

Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2022. Reckoning with the U.S. Role in Global Ocean Plastic Waste. Washington, DC: The National Academies Press. doi: 10.17226/26132.
×
Microbead Free Waters Act of 2015

U.S. Food and Drug Administration
(U.S. FDA)
Stages 1 and 3, Production, Waste Generation Amends the Federal Food, Drug, and Cosmetic Act to require the U.S. FDA to prohibit the manufacturing, packaging, and distribution of rinse-off cosmetics containing plastic microbeads.

Also applies to products that are both cosmetics and non-prescription (also called “over-the-counter” or “OTC”) drugs, such as toothpastes.

Defines the term “plastic microbead” as “any solid plastic particle that is—5 millimeters or less in size, and intended to be used to exfoliate or cleanse the body or any part of the body”c
Prohibits manufacture of cosmetics containing plastic microbeads but does not prohibit production of plastic microbeads.

Congressional and industry support for enactment came in reaction to the rise of multiple state laws banning products containing microbeads.
Solid Waste Disposal Act (SDWA), 42 U.S.C. § 6901 et seq.

Resource Conservation and Recovery Act (RCRA)
Stages 3–4, Waste Generation, Management; R&D RCRA charges U.S. EPAd to set national goals:
  • “Protecting human health and the environment from the potential hazards of waste disposal.
  • Conserving energy and natural resources.
  • Reducing the amount of waste generated.
  • Ensuring that wastes are managed in an environmentally-sound manner.”
Plastic waste, including pellets, currently not defined as a special waste category (e.g., e-waste), a hazardous waste, or meeting RCRA “endangerment” finding, though certain chemicals or additives in plastics may be regulated separately.
Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2022. Reckoning with the U.S. Role in Global Ocean Plastic Waste. Washington, DC: The National Academies Press. doi: 10.17226/26132.
×
U.S. Law and Key Agencies Intervention Stage Key Provisions Gaps, Roles, and Related Activities
Plastic-Related Authorities
U.S. EPA
U.S. Department of Commerce (International Trade Administration [ITA], NIST)
For non-hazardous solid waste, regulations are implemented by states and/or at the local level, with state or local governments given the option to establish more stringent standards. Facilities that do not meet these standards are considered open dumps that must close.
“U.S. EPA regulates
  • Disposal of nonhazardous solid waste implemented by state agencies.
  • Management of hazardous solid waste.

U.S. EPA manages ‘hazardous waste from cradle to grave’

  • Listed hazardous waste;
  • Characteristic hazardous waste (ignitability, reactivity, corrosivity, toxicity).”e

Civil liability: Section 7002(a)(1)(B) of RCRA: “any person may commence a civil action against: any person . . . including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment . . . .” 42 U.S.C. § 6972(a)(1)(B)

Nonhazardous solid waste “litter” (plastic waste “leakage” from municipal and other solid waste streams) becomes a municipal enforcement issue.
“Disposal” is “the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste . . . into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.” 42 U.S.C. § 6903(3).
“Solid waste” as “any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities . . . .” 42 U.S.C. § 6903(27) (U.S. EPA 2014).
Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2022. Reckoning with the U.S. Role in Global Ocean Plastic Waste. Washington, DC: The National Academies Press. doi: 10.17226/26132.
×
Authorizes U.S. EPA to implement RCRA’s conservation mandate through “sustainable materials management (SMM), a systemic approach to using and reusing materials more productively and effectively over their entire life cycles,” primarily implemented at the state and local levels.
  • “Requires the Secretary of Commerce to encourage greater commercialization of proven resource recovery technology by stimulating the development of markets for recyclables.” Implementation is currently through ITA (global markets) and NIST (standards and research).g
  • SMM Strategic Plan (2015) [SOS 2.0 requires an updated strategy by end of 2021].h
  • RCRA SMM Procurement Guidelines (guidelines for federal agencies to procure recyclable items).i
  • U.S. National Recycling Goal (2020) j: Increase national recycling rate to 50% by 2030 by reducing contamination, increasing efficiency, and strengthening recycling markets.
  • Draft National Recycling Strategy (2020).k
  • SOS 2.0 (2020) authorized $55 million/year from 2021 to 2025 for grants to states to implement post-consumer materials management programs (e.g., recycling).
Relevant Civil Case: Charleston Waterkeeper v Frontier Logistics (District Court of South Carolina)f: Complaint brought under SDWA/RCRA and the Clean Water Act (CWA) for plastic pellet releases into estuary. Defendant settled in 2021. Complaint: Asserted the company was responsible for “past or present handling, storage, treatment, transportation, or disposal of solid waste which may present an imminent and substantial endangerment to health or the environment in violation of RCRA (and discharging without a CWA NPDES permit).” Based “endangerment” claim on lethal and non-lethal effects on wildlife from ingesting plastic pellets (U.S. EPA 2014).
Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2022. Reckoning with the U.S. Role in Global Ocean Plastic Waste. Washington, DC: The National Academies Press. doi: 10.17226/26132.
×
U.S. Law and Key Agencies Intervention Stage Key Provisions Gaps, Roles, and Related Activities
Plastic-Related Authorities
Comprehensive Environmental Research, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq. (aka “Superfund”)

U.S. EPA NOAA (Trustee, Response)
Stage 4, Waste Management “CERCLA provides U.S. EPA “with the authority to compel responsible parties to respond to, and remediate, releases of ‘hazardous substances’ from facilities and vessels, and addresses ‘pollutants or contaminants’ posing ‘imminent and substantial endangerment.’”
  • Responsible parties are defined to include owners and operators of vessels or facilities; transporters; arrangers for disposal.
  • “Release” is defined to include “leaching,” a potential basis for CERCLA action.”e
Plastic waste is not currently defined as a pollutant, contaminant, or hazardous substance under CERCLA.
CERCLA can be used for cleanup of marine debris that contains hazardous substances (e.g., derelict vessels) and to assess threats from releases to human health and the environment.l
CWA (33 U.S.C. § 1251, et seq.) and Rivers and Harbors Appropriation Act of 1899 (33 U.S.C. Chapter 9, § 401 et seq.) Stage 4–5 Waste Management, Capture; R&D, Monitoring, Outreach CWA provides U.S. EPA with the authority to prohibit point source and indirect pollutant discharges to waters of the United States except under the Act (e.g., with a permit). “Pollutants” are defined broadly and include solid waste, garbage, sewage and sewage sludge, and municipal and agricultural waste (vessel discharges not included, but regulated under section 312). Prohibits discharging a pollutant from a “point source” except in compliance with the Act (e.g., obtaining a National Pollution Discharge Elimination System [NPDES] permit).
Plastics are not defined as a pollutant; if plastic discharges from a facility are addressed at all in NPDES permits, it has been through TSS limits (usually acceptable discharges of visible plastic)
Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2022. Reckoning with the U.S. Role in Global Ocean Plastic Waste. Washington, DC: The National Academies Press. doi: 10.17226/26132.
×
U.S. EPA NOAA (Trustee, Response)
USCG (Vessel, Response)
Sets water quality, technology, and environmental toxicity standards applicable to industrial and other facilities (e.g., publicly owned treatment works) for
  • “Conventional pollutants including biochemical oxygen demand (BOD), total suspended solids (TSS), fecal coliform, pH, and oil and grease;
  • Toxic pollutants including 65 pollutants and classes, with 126 specific substances designated as priority pollutants; and
  • Nonconventional pollutants.”m Requires states to establish water quality standards for every body of water in the state and specify maximum concentrations of pollutants according to water body use. Requires CWA permit for stormwater or nonpoint source runoff from certain industrial and municipal storm sewer discharges.
    Section 303(d) allows for state identification of impaired waters under CWA and Total Maximum Daily Loads (TMDLs) for point and nonpoint sourcesn—can include impairment by “trash.” Unless planned measures can be taken to address such impairments, states or U.S. EPA must develop TMDLs for those pollutants.
NPDES permits are also required for nonpoint source (runoff) from certain industrial and municipal systems (often operate under general permits).

CWA programs are delegated to states that meet federal standards; states authorized to set water quality standards for state waters.

TMDLs for trash-impaired waters exist in California, Hawaii, and Alaska.

U.S. EPA’s Trash Free Seas program issued new TMDL guidance in 2021: (1) Trash Free Waters (TFW) Stormwater Permit Compendiumo and (2) U.S. EPA’s Escaped Trash Assessment Protocol (ETAP).p

U.S. EPA Water Quality Monitoring and Reporting:
  • National Water Quality Monitoring Council and Data.q
  • Section 319 National Nonpoint Source Monitoring Program–U.S. EPA.t
  • National Coastal Condition Reports–U.S. EPA.u
Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2022. Reckoning with the U.S. Role in Global Ocean Plastic Waste. Washington, DC: The National Academies Press. doi: 10.17226/26132.
×
U.S. Law and Key Agencies Intervention Stage Key Provisions Gaps, Roles, and Related Activities
Plastic-Related Authorities
  • Municipal Separate Storm Sewer System (MS4) permit “requires permittees to develop and implement a comprehensive Storm Water Management Program (SWMP) that must include pollution prevention measures, treatment or removal techniques, monitoring, use of legal authority, and other appropriate measures to control the quality of storm water discharged to the storm drains and thence to waters of the United States.”r In addition, a small number of municipal governments have set TMDLs limits for trash.
    Trash Free Waters Programs is a voluntary program that provides NPS and other grants to state and local watersheds to address trash and other pollution.

The CWA also establishes U.S. EPA and USCG authority for pollution prevention, contingency planning, and response activities within U.S. waters for oil and hazardous substances.
Section 312 regulates sewage discharges from vessels; it was amended in 2006 to include the Vessel Incidental Discharge Act. Authorities are implemented by U.S. EPA and USCG (EEZ).

Section 312 Vessel Sewage Discharges: Statutes, Regulations, and Related Laws and Treaties–U.S. EPA.v

U.S. EPA Research:

  • U.S. EPA Office of Research and Development: currently conducting research on microplastics.
  • Region 9: Developing water quality monitoring methods and ASTM standards for sampling microplastics.

Related CWA Decisions and Petitions: Formosa Permit and Decisionw “Formosa’s 2016 Permit prohibits the ‘discharge of floating solids or visible foam in other than trace amounts’ . . . Moreover, TCEQ rules prohibit the discharge of ‘floating debris and suspended solids’ into surface waters. [. . .] The undisputed evidence shows that plastic pellets and PVC powder discharged by Formosa caused or contributed to the damages suffered by the recreational, aesthetic, and economic value of [surface water]. . . .”

Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2022. Reckoning with the U.S. Role in Global Ocean Plastic Waste. Washington, DC: The National Academies Press. doi: 10.17226/26132.
×
Authorizes a range of waste water infrastructure grants (wastewater treatment and nonpoint source)
  • Section 10 of the Rivers and Harbors Appropriation Act requires a permit to be issued by the U.S. Army Corps of Engineers for discharges of any dredged or fill material (including plastics) into the navigable waters of the United States.
June 2019 Petition Under 40 CFR Parts 414 and 419x: requested, inter alia, “prohibit the discharge of plastic pellets and other plastic materials in industrial stormwater and wastewater”

One case alleged plastic pellets are a “pollutant” under the CWA. Settled; not adjudicated. f
Clean Air Act (CAA), 42 U.S.C. § 7401 et seq.

U.S. EPA
Stage 4, Waste Management; Monitoring “CAA regulates ambient air quality by limiting sources of air pollutants from
  • Stationary sources of criteria pollutants to meet air quality and technology standards, as well as hazardous air pollutants:
    • Criteria pollutants include nitrogen and sulfur dioxides, carbon monoxide, lead, and ozone as volatile organic compounds, and particulate less than 2.5 micrometers;
    • Hazardous air pollutants—187 chemicals listed for carcinogenicity, toxicity, and other potential harms.
  • Mobile sources of criteria air pollutants from internal combustion engines.”e
“Microplastics air emissions from ground level sources are generally not covered—leaving no path to directly limit these microplastic emissions to ambient air. Plastic component of PM 2.5 appears to be difficult to completely capture and analyze due to limitations in sampling and analytical methods.”e

In 2021, U.S. EPA announced it is considering more stringent regulation of pyrolysis and gasification (sometimes used in plastic chemical recycling) under CAA § 129.y
Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2022. Reckoning with the U.S. Role in Global Ocean Plastic Waste. Washington, DC: The National Academies Press. doi: 10.17226/26132.
×
U.S. Law and Key Agencies Intervention Stage Key Provisions Gaps, Roles, and Related Activities
Plastic-Related Authorities
Safe Drinking Water Act (SDWA), 42 U.S.C. § 300f et seq

U.S. EPA
Stage 4 Waste Management; Stage 5, Waste Capture; Monitoring “SDWA regulates public water supply, imposing maximum contaminant limits for chemical contaminants including
  • Microorganisms and viruses, turbidity (cloudiness, suspended solids) up to 0.3 ntu [nephelometric turbidity unit], disinfectants, disinfection byproducts, inorganic chemicals, organic chemicals (not plastics), radionuclides.
  • Also, monitoring for unregulated contaminants (including perflurooctanoic acid [PFOA] and perflurooctane sulfonate [PFOS]). Consumer confidence reports and public notifications.”e

U.S. EPA provides grants to implement state drinking water programs and to help each state set up a special fund to assist public water systems in financing the costs of improvements (called the Drinking Water State Revolving Fund).z

“Microplastics are not included unless captured as Turbidity—allowed up to 0.3 Nephelometric Turbidity Units.”e

SOS 2.0 (33 U.S.C. § 4282—Grant programs) clarified that SDWA infrastructure grants can be used to “support improvements in reducing and removing plastic waste, including microplastics and microfibers, from drinking water.”
Toxic Substances Control Act (TSCA), 15 U.S.C. § 2601 et seq. (1976)

U.S. EPA
Stage 3 Waste Generation; Stage 4, Waste Management; R&D Provides U.S. EPA with “authority to require reporting, record-keeping and testing requirements, and restrictions relating to chemical substances and/or mixtures” (does not include food, drugs, cosmetics, and pesticides).
“TSCA can potentially be used for the purpose of addressing risks specific to chemical substances that may be in plastic waste.”aa
U.S. EPA has not used these authorities to regulate plastic waste.
“40 CFR 723.250(d) Polymer 40 CFR 723.250(d)—exempts from Premanufacture Notice requirements those polymers that are inert: (1) based on level of concern regarding functional groups, and (2) not excluded from the exemption.
Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2022. Reckoning with the U.S. Role in Global Ocean Plastic Waste. Washington, DC: The National Academies Press. doi: 10.17226/26132.
×
Still covering polymers that are cationic, degradable or unstable, water-absorbing, or vulnerable to reactants. The more inert the substance is, the less regulated it is.”e “Lautenberg Chemical Safety Act of 2016 amended TSCA to require EPA to evaluate existing chemicals with clear and enforceable deadlines; conduct risk-based chemical assessments; increase public transparency for chemical information.”bb In 2021, several chemicals used in plastic and rubber manufacturing were added to list of chemicals regulated under TSCA.cc
Ocean Dumping Act (Marine Protection Research and Sanctuaries Act of 1972), as amended by the Ocean Dumping Ban Act of 1988 and the Water Resources Development Act of 1992

NOAA
U.S. EPA
USCG
U.S. Army Corps of Engineers
Stage 6, Minimize at-Sea Disposal; Monitoring 1972 law, as amended, implemented by the USCG, U.S. EPA, and the U.S. Army Corps of Engineers—
  • “Prohibits the ocean dumping of municipal sewage sludge and industrial wastes, such as wastes from plastics and pharmaceutical manufacturing plants and from petrochemical refineries.”dd
  • Bans the ocean disposal of “medical waste”dd (1988).
  • “Ocean dumping permits, including for ocean disposal of dredged material, conform to long-term management plans to ensure that permitted activities are consistent with expected uses of designated ocean disposal sites”dd (1992).
Prohibitions align with the requirements of international law under the 1972 London Dumping Convention (Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter of 1972) and its successor, the 1996 London Protocol (in effect starting 2006). The United States has not ratified the Convention or Protocol but does participate in meetings (Secretariat at the International Maritime Organization). Any materials dumped in the ocean are “evaluated to ensure that they will not pose a danger to human health or the environment and that there are no better alternatives for their reuse or disposal.”dd
Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2022. Reckoning with the U.S. Role in Global Ocean Plastic Waste. Washington, DC: The National Academies Press. doi: 10.17226/26132.
×
U.S. Law and Key Agencies Intervention Stage Key Provisions Gaps, Roles, and Related Activities
Plastic-Related Authorities
Act to Prevent Pollution from Ships as amended by Marine Plastic Pollution Research and Control Act (MARPOL) 33 U.S.C. § 1901 et seq.

USCG
NOAA
Stage 6, Minimize at-Sea Disposal; Monitoring
  • “Implements the provisions of Annex V of the International Convention for the Prevention of Pollution from Ships (MARPOL) relating to garbage and plastics.”ee “Applies to all vessels, whether seagoing or not, regardless of flag, on the navigable waters of the U.S. and in the exclusive economic zone of the U.S. It applies to U.S. flag vessels wherever they are located.”ff
  • Prohibits the “discharge of plastics, including synthetic ropes, fishing nets, plastic bags, and biodegradable plastics, into the water.”ff
  • Prohibits “discharge of floating dunnage, lining, and packing materials in the navigable waters and in areas offshore less than 25 nautical miles from the nearest land.”ff
  • “Ships” includes fixed or floating platforms, which are subject to separate garbage discharge provisions. “For these platforms, and for any ship within 500 meters of these platforms, disposal of all types of garbage is prohibited.”ff
Other
  • “Food waste or paper, rags, glass, metal, bottles, crockery and similar refuse cannot be discharged in the navigable waters or in waters offshore inside 12 nautical miles from the nearest land.”gg
  • “Food waste, paper, rags, glass, and similar refuse cannot [be discharged] in the navigable waters or in waters offshore inside three nautical miles from the nearest land (some exceptions for emergencies).”gg
  • Requires “all manned, oceangoing U.S. flag vessels of 12.2 meters or more in length engaged in commerce, and all manned fixed or floating platforms subject to the jurisdiction of the U.S., to keep records of garbage discharges and disposals.”gg

See, e.g., Hagen (1990).

Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2022. Reckoning with the U.S. Role in Global Ocean Plastic Waste. Washington, DC: The National Academies Press. doi: 10.17226/26132.
×
Coastal Zone Management Act, 16 U.S.C. § 1451 et seq.
NOAA
Stage 4, Waste Management
  • Establishes National Coastal Zone Management Program, a unique federal–state partnership for management of the coastal zone (including Great Lakes) aimed at protecting, preserving, and enhancing resources of the coastal zone.
  • The Coastal Nonpoint Pollution Control Program (Section 6217 of the 1990 amendments) “requires states and territories with approved Coastal Zone Management Programs to develop Coastal Nonpoint Pollution Control Programs”hh that lay out management measures. Administered jointly with U.S. EPA.
States receive federal grants to support creation and implementation of coastal zone management plans. Plans approved by the Secretary of Commerce become the state’s governing rules for development of the coastal zone. Law provides states the assurance that federal activities (including federally permitted activities) in the coastal zone must be “consistent” with the state plan. Also incentivizes protection of natural resources such as wetlands, control of marine debris, addressing coastal hazards, ocean planning, and energy sitingii
Federal Trade Commission Act (15 U.S.C. §§ 41-58, as amended)

Federal Trade Commission (FTC)
Stage 2, Innovate Material and Product Design Section 5 of the Federal Trade Commission Act (15 U.S.C. §§ 45) “prohibits unfair or deceptive practices in or affecting commerce.”
  • FTC has Green Guides to help companies appropriately address environmental marketing
  • Can bring enforcement actions for claims that deviate from the Guides. “A representation, omission, or practice is deceptive if it is likely to mislead consumers acting reasonably under the circumstances and is material to consumers’ decisions.”jj
FTC’s Green Guides cover claims such as “recycling” “biodegradable.” Last update was 2012, next expected 2022; updates not required by law (see GAO 2020). See 16 C.F.R. pt. 260.

Examples of plastic labeling actions:

Biodegradable

Oxodegradable

Post-consumer recycled plastic content “FTC considers three factors when determining whether a practice is unfair: (1) whether it injures consumers, (2) whether it violates established public policy, and (3) whether it is unethical or unscrupulous.”

Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2022. Reckoning with the U.S. Role in Global Ocean Plastic Waste. Washington, DC: The National Academies Press. doi: 10.17226/26132.
×
U.S. Law and Key Agencies Intervention Stage Key Provisions Gaps, Roles, and Related Activities
Plastic-Related Authorities
National Energy Policy and Programs 42 U.S.C. 149 (§ 15801 et seq.)

U.S. Department of Energy (DOE)
R&D Authorities emphasize energy efficiency and innovative materials research. Plastics Innovation Challenge Draft Roadmap and Request for Information.kk

The REMADE Institute; 2020 Impact Report.ll

DOE Bio-optimized Technologies to keep Thermoplastics out of Landfills and the Environment (BOTTLE) Consortium.mm

DOE American Chemistry Council Memorandum of Understanding 2020 Innovative Plastics Recycling Technologies.nn
Integrated Coastal and Ocean Observation System Act of 2009, reauthorized in the Coordinated Ocean Observations and Research Act of 2020; related research authorities. 33 U.S.C. §§ 3601–3610 (Subtitle C)

NOAA, with 11 other federal agencies
R&D Authorizes a “national integrated System of ocean, coastal, and Great Lakes observing systems (federal and non-federal)” and includes “in situ, remote, and other coastal and ocean observation, technologies, and data management and communication systems, designed to address regional and national needs for ocean information”; authorizes basic and applied research.
NOAA also operates weather and climate observations systems (satellite, ground, and air) through related systems under the National Weather Service Organic Act.
Identifies NOAA as lead federal agency for the system and establishes two governance mechanisms: (1) federal coordination by a White House National Ocean Research and Leadership Council, (2) Office of Science and Technology Policy Interagency Ocean Observation Committee (consisting of 12 federal agencies, led by 4 co-chairs).
Agencies: NOAA, National Science Foundation (NSF), National Aeronautics and Space Administration (NASA), U.S. EPA, Bureau of Ocean Energy Management (BOEM), Marine Mammal Commission (MMC), Joint Chiefs, Office of Naval Research, U.S. Army Corps of Engineers, USCG, U.S. Geological
Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2022. Reckoning with the U.S. Role in Global Ocean Plastic Waste. Washington, DC: The National Academies Press. doi: 10.17226/26132.
×
Survey (USGS), U.S. Department of State. Affiliated with 11 U.S. Regional Observing Systems, and coordinates with the Global Ocean Observing System.
Connects with NOAA’s weather and climate observation systems.
U.S. Geological Survey Organic Act
43 U.S.C. Chapter 2 (§ 31 et seq.)

USGS
R&D Authorizes USGS to examine the geological structure, mineral resources, and products of the national domain, which provides scientific information to, among other things, understand Earth systems, manage water, and enhance and protect quality of life. Operates the USGS Stream Gauge Network, consisting of more than 11,000 gauges that collect data for a variety of uses, including by other agencies, including hazard and flood information as well as assessing water quality, regulating point source discharges, assessing if streams are safe for recreational activities.
Other Ocean R&D NSF (42 USC Chapter 16)
NASA Organic Act 42 U.S.C. § 2451 et seq.

Oceans and Human Health Act (NOAA), 33 U.S.C. Chapter 44, Sec. 3101 et seq.
R&D Provides authority for NSF to support scientific research and education. NASA is authorized to conduct scientific research, measurement, monitoring, and outreach related to aeronautical and space activities (e.g., remote sensing).

NOAA is authorized to conduct and support a range of atmospheric, ocean, and coastal research authorities, including research relevant to ocean and human health
NSF has provided funding for a number of ocean plastic and materials research projects under a range of grant programs. NASA operates satellite remote sensing and related research efforts relevant to ocean conditions and constituents. NOAA research relates to ocean health and ecosystem conditions, beyond the purview of the Marine Debris Act.
Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2022. Reckoning with the U.S. Role in Global Ocean Plastic Waste. Washington, DC: The National Academies Press. doi: 10.17226/26132.
×
U.S. Law and Key Agencies Intervention Stage Key Provisions Gaps, Roles, and Related Activities
Plastic-Related Authorities
Non-statutory: U.S. (federal and state) Common Law Legal claims require proof of “injury” to meet “standing” requirements Lujan v. Defenders of Wildlife - 504 U.S. 555, 112 S. Ct. 2130 (1992)oo
  • “Plaintiffs must have “standing”
    • “injury in fact, which means an invasion of a legally protected interest that is concrete and particularized, and actual or imminent, not conjectural or hypothetical;”
    • “a causal relationship between the injury and the challenged conduct, i.e., the injury can be fairly traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court;” and
    • “a likelihood that the injury will be redressed by a favorable decision, which means that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative.”
  • Claims must be ripe and not moot.
  • Necessary and indispensable parties.
  • Burden of proof in civil cases is “preponderance of the evidence.”
For example, “Earth Island v. Crystal Geyser, Clorox, Coca-Cola, Pepsico, Nestle, Mars, et al. (2020, Filed Sup Ct CA): Misleading claims of recyclability. Federal court remanded to state court 2021claims under
  • CA Consumers Legal Remedies Act
  • Public Nuisance
  • Breach of Express Warranty
  • Strict Liability-Failure to Warn
  • Negligence and Negligence–Failure to Warn”e

a See https://www.env.go.jp/press/files/en/872.pdf.

b See https://marinedebris.noaa.gov/sites/default/files/mdp_pea.pdf.

c See https://www.fda.gov/cosmetics/cosmetics-laws-regulations/microbead-free-waters-act-faqs.

d See https://www.epa.gov/history/epa-history-resource-conservation-and-recovery-act.

e See Ternes and Fulton (2020).

f See https://www.southernenvironment.org/wp-content/uploads/legacy/words_docs/FINAL_COMPLAINT.pdf.

g See https://www.gao.gov/assets/gao-21-87.pdf.

h See https://www.epa.gov/sites/production/files/2016-03/documents/smm_strategic_plan_october_2015.pdf.

Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2022. Reckoning with the U.S. Role in Global Ocean Plastic Waste. Washington, DC: The National Academies Press. doi: 10.17226/26132.
×

i See https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program#bio.

j See https://www.epa.gov/americarecycles/us-national-recycling-goal.

k See https://www.epa.gov/americarecycles/draft-national-recycling-strategy-and-executive-summary.

l See Kimrey and Helton (2014).

m See https://www.epa.gov/eg/learn-about-effluent-guidelines.

n See https://www.epa.gov/tmdl/overview-total-maximum-daily-loads-tmdls#2.

o See https://www.epa.gov/trash-free-waters/trash-stormwater-permit-compendium.

p See https://www.epa.gov/trash-free-waters/epas-escaped-trash-assessment-protocol-etap.

q See https://www.waterqualitydata.us/.

r See https://www.epa.gov/tx/municipal-separate-storm-sewer-system-ms4-storm-water-management-program-swmp.

s See https://www.epa.gov/trash-free-waters.

t See https://www.epa.gov/nps/national-nonpoint-source-monitoring-program.

u See https://www.epa.gov/national-aquatic-resource-surveys/national-coastal-condition-reports.

v See https://www.epa.gov/vessels-marinas-and-ports/vessel-sewage-discharges-statutes-regulations-and-related-laws-and.

w See San Antonio Bay Estuarine Waterkeeper v. Formosa Plastics Corp., civil action no. 6:17-CV-0047 (S.D. Tex. Jun. 27, 2019).

x See https://waterkeeper.org/wp-content/uploads/2019/07/CWA-Petro-Plastics-Petition-to-EPA-6-23-19.pdf.

y See https://www.govinfo.gov/content/pkg/FR-2021-09-08/pdf/2021-19390.pdf.

z See https://www.epa.gov/dwsrf.

aa See https://g20mpl.org/partners/unitedstates.

bb See https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/frank-r-lautenberg-chemical-safety-21st-century-act.

cc See https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/persistent-bioaccumulative-and-toxic-pbt-chemicals.

dd See https://www.epa.gov/ocean-dumping/learn-about-ocean-dumping.

ee See https://www.epa.gov/environmental-topics/water-topics#our-waters.

ff See NOAA (1998).

gg See https://coast.noaa.gov/data/docs/nerrs/Reserves_ACE_SiteProfile.pdf.

hh See Cody et al. (2012).

ii See https://coast.noaa.gov/czm/.

jj See U.S. GAO. 2020. Recycling: Building on Existing Federal Efforts Could Help Address Cross-Cutting Challenges. United States Government Accountability Office. https://www.gao.gov/products/gao-21-87.

kk See https://www.energy.gov/plastics-innovation-challenge/downloads/plastics-innovation-challenge-draft-roadmap-and-request.

ll See https://remadeinstitute.org/.

mm See https://www.bottle.org/index.html.

nn See https://www.energy.gov/articles/us-energy-department-and-american-chemistry-council-sign-memorandum-understanding.

oo See https://www.lexisnexis.com/community/casebrief/p/casebrief-lujan-v-defenders-of-wildlife, as presented in Ternes and Fulton (2020).

Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2022. Reckoning with the U.S. Role in Global Ocean Plastic Waste. Washington, DC: The National Academies Press. doi: 10.17226/26132.
×

“there were 331 local plastic bag ban ordinances across 24 states in the United States.”2 However, some municipalities have been challenged by state preemption laws and lawsuits around local ordinances.

Laws generally fall into the following categories:

  • Single-use bans and fees,
  • Extended producer responsibility,
  • Bottle bills,
  • Per-and polyfluoroalkyl substances (PFAS) in packaging, and

Task force and study commissions.3,4

REFERENCES

Cody, B., J. Schneider, M. Tiemann, and G. Relf. 2012. Selected Federal Water Activities: Agencies, Authorities, and Congressional Committees. Congressional Research Service. http://nationalaglawcenter.org/wp-content/uploads/assets/crs/R42653.pdf.

G20. 2021. “The United States: Actions and Progress on Marine Plastic Litter.” https://g20mpl.org/partners/unitedstates.

Hagen, P. 1990. “The international community confronts plastics pollution from ships: MARPOL Annex V and the problem that won’t go away.” Am Univ Int Law Rev 5 (2):425-496.

Kimrey, C. and D. Helton. 2014. “Abandoned vessel authorities and best practices guidance – A review of NRT work”. International Oil Spill Proceedings. 1:2053–2063. doi: 10.7901/2169-3358-2014.1.2053.

Ministry of Environment, Japan. 2020. G20 Report on Actions Against Marine Plastic Litter: Second Information Sharing Based on the G20 Implementation Framework. Tokyo, Ministry of Environment, Japan. https://www.env.go.jp/press/files/en/872.pdf.

NOAA (National Oceanic and Atmospheric Administration). Office of the Chief Scientist. 1998. Year of the Ocean discussion papers. Washington, D.C.: NOAA.

Ternes, M. E., and S. Fulton. 2020. Overview of United States Law Governing Solid and Water Waste Management. Presentation at an online meeting of the Committee on the U.S. Contributions to Global Ocean Plastic Waste, December 7.

U.S. EPA (U.S. Environmental Protection Agency). 2014. RCRA’s Critical Mission & the Path Forward. Washington D.C: U.S. EPA. https://www.epa.gov/rcra/resource-conservation-and-recovery-act-critical-mission-path-forward.

U.S. GAO. 2020. Recycling: Building on Existing Federal Efforts Could Help Address Cross-Cutting Challenges. United States Government Accountability Office.

___________________

2 See https://law.ucla.edu/news/federal-actions-address-marine-plastic-pollution.

3 See https://www.ncelenviro.org/issue/plastic-pollution/.

4 Other summaries of federal and state activities related to marine debris and plastic waste: https://law.ucla.edu/news/federal-actions-address-marine-plastic-pollution; https://www.epa.gov/environmental-topics/land-waste-and-cleanup-topics; and https://www.ncsl.org/research/environment-and-natural-resources/plastic-bag-legislation.aspx.

Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2022. Reckoning with the U.S. Role in Global Ocean Plastic Waste. Washington, DC: The National Academies Press. doi: 10.17226/26132.
×
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An estimated 8 million metric tons (MMT) of plastic waste enters the world's ocean each year - the equivalent of dumping a garbage truck of plastic waste into the ocean every minute. Plastic waste is now found in almost every marine habitat, from the ocean surface to deep sea sediments to the ocean's vast mid-water region, as well as the Great Lakes. This report responds to a request in the bipartisan Save Our Seas 2.0 Act for a scientific synthesis of the role of the United States both in contributing to and responding to global ocean plastic waste.

The United States is a major producer of plastics and in 2016, generated more plastic waste by weight and per capita than any other nation. Although the U.S. solid waste management system is advanced, it is not sufficient to deter leakage into the environment. Reckoning with the U.S. Role in Global Ocean Plastic Waste calls for a national strategy by the end of 2022 to reduce the nation's contribution to global ocean plastic waste at every step - from production to its entry into the environment - including by substantially reducing U.S. solid waste generation. This report also recommends a nationally-coordinated and expanded monitoring system to track plastic pollution in order to understand the scales and sources of U.S. plastic waste, set reduction and management priorities, and measure progress.

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