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Democrats in Washington have put a provision mandating tougher regulations on pellet discharge from plastic factories in the $715 billion fast-track surface transportation spending plan that the U.S. House of Representatives approved July 1.

The measure, which now goes to the Senate, requires the Environmental Protection Agency to quickly write national rules to “prohibit” discharge of pellets from plastics facilities.

For plastics firms, it could become a standard part of permits, require expensive upgrades and elevate pellet containment issues during government inspections.

It was inserted into the must-pass transportation bill by California Rep. Alan Lowenthal, one of the authors of the Break Free From Plastic Pollution Act.

Supporters say it’s needed to close regulatory loopholes on a large source of plastics in the environment, and they hope it’s part of the Senate transit and water infrastructure plan.

They point to support from the second-ranking member of the Democratic caucus, Majority Whip and Illinois Sen. Dick Durbin.

But plastics business groups are opposing Lowenthal’s amendment in the House’s Invest in America Act and said they view the industry’s voluntary, 30-year-old Operation Clean Sweep program as an alternative.

“We are concerned that, as written, a provision within this legislation opens the door to regulatory overreach that could subject countless small plastics operations across America to heavy-handed federal enforcement,” said George O’Connor, spokesman for the Plastics Industry Association in Washington. “The plastics industry has made strides to address this very issue through Operation Clean Sweep and OCS Blue.”

The American Chemistry Council, which jointly administers OCS with the plastics association, said it wanted to see OCS as the basis of laws. It called Lowenthal’s plan “punitive.”

“Adopting Operation Clean Sweep practices federally would enable EPA to require protective action to mitigate discharge risks,” ACC said in a statement.

Critics of OCS, however, have argued that the voluntary program is inadequate for the scale of the problem and have urged mandatory efforts. They argue that with little public reporting over OCS’ history, it’s impossible to know if it’s been effective.

And they point to a recent shareholder vote at DuPont as a sign of rising public concern. At the company’s annual meeting in April, 81 percent of shareholders voted in favor of a pellet pollution plan pushed by environmental investors.

Zero discharge

The Lowenthal amendment would require EPA within 180 days to write new rules that “prohibit” the discharge of pellets, or nurdles, from plastics operations, which it defines broadly as factories that make, use, package or transport pellets.

The environmental group Surfrider Foundation, which has been urging its members to call Congress to support Lowenthal’s amendment, said it would tighten loopholes in wastewater, stormwater and other permits issued by EPA and state agencies under the Federal Water Pollution Control Act.

“In many instances, this issue is not addressed in water quality permits, so we think this would be a great step forward in the regulation of plastic pollution,” the San Clemente, Calif.-based group said in a statement. “This is especially important for any coastal ports or shipment through waters of the United States.”

The prohibition standard in the Lowenthal amendment is similar to the “zero discharge” standard nongovernmental organizations have advocated, said Angela Howe, Surfrider’s legal director and head of its plastics pollution initiative.

While the issue is picking up steam legislatively, private groups have brought federal lawsuits over pellet pollution in recent years.

Most prominent was a case against Formosa Plastics along the Gulf Coast in Texas that was settled in 2019 for $50 million, a record for a private lawsuit under the Clean Water Act.

As well, a similar but smaller lawsuit against Frontier Logistics LP in Charleston, S.C., was settled earlier this year for $1 million, following the discovery of pellet pollution in the harbor near a Frontier facility.

In South Carolina, that incident was influential in pellet legislation passing the state Senate this year to close a “loophole” and give regulators more authority, said Emily Cedzo, senior program director of land, water and wildlife at the Coastal Conservation League in Charleston.

“A major nurdle spill took place in the Charleston harbor in 2019 and our state’s Department of Health and Environmental Control did not believe it had explicit authority to regulate,” she said. “So no enforcement action was taken.”

Her group was part of the federal lawsuit against Frontier and said coastal monitoring “still finds nurdles fairly consistently along our shores.”

She said the state Senate bill had broad support — it passed in April on a 42-1 vote — but ran out of time before it could be considered in the state House, where it will come up in 2022.

“We anticipate it will have this sort of support on both sides in the House as it is fundamentally an environmental issue, not a partisan one,” Cedzo said. CCL says plans by the state’s port system to add more resin export terminals add to the urgency to pass the legislation.

Senate version

The political picture may be less clear in Washington, where the seven-paragraph plastics measure is buried in the 239-page House transportation and water infrastructure reauthorization bill.

In a statement, Lowenthal’s office said tougher EPA regulations can help reduce plastics in the environment and the food chain.

“Approximately 230,000 tons of plastic pellets end up in the oceans annually,” his office said. “These pellets are being consumed by fish and marine life — and in turn, humans — and creating additional damage to ecosystems.”

Advocates are hoping something could be added to the Senate’s transportation bill.

In a statement introducing his own pellet legislation in May in the Senate, Durbin pointed to the prevalence of the nurdles in the Great Lakes.

Durbin noted studies that have found “significant” levels of plastic pellets, about 19 pellets per square meter, on two-thirds of Great Lakes beaches.

Durbin’s Plastic Pellet Free Waters Act uses nearly identical language to Lowenthal’s in directing EPA to prohibit discharge of pellets, although his bill only gives the EPA 60 days to write new rules.

“Unfortunately, only 9 percent of all plastics end up being recycled, with some of the waste ending up in landfills or incinerated — and far too much of it finding its way into our rivers, lakes and oceans,” he said.

The Break Free Act, sponsored by Lowenthal and Sen. Jeff Merkley, D-Ore., also includes language toughening pellet regulations.

Focus on prevention

The plastics groups would prefer that Operation Clean Sweep serve as a model for legislation.

The plastics association said it wants “reasonable solutions” and ACC noted it had supported a bill in California making Operation Clean Sweep procedures part of state law there.

“The proposal authored by Congressman Lowenthal and included in the Invest in America Act seeks to implement punitive regulations to respond after a plastic resin discharge occurs,” ACC said. “We believe Congress and industry should focus on preventive practices and policies so discharges don’t occur in the first place.

“Establishing a 'best practices’ that companies can use to proactively manage and contain plastics is the best way to prevent spills,” ACC said. “Our members remain committed to preventing pellet discharges before they occur.”

The industry groups say OCS has made “significant strides toward zero pellet, flake and powder loss.”

But supporters of Lowenthal’s plan point to regulatory loopholes and the lawsuits as evidence more needs to be done. Surfrider said the pellet legislation is part of stepped-up attention in Washington.

“Overall, Surfrider is very pleased with this progress at the federal level,” said Howe, the group’s legal director. “As Congress and the executive branch, including the EPA, take note of plastic pollution, there are more efforts to address this crisis, including the current plastic pellet amendment.”