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Reckoning with the U.S. Role in Global Ocean Plastic Waste (2021)

Chapter: Appendix C: Legal Framework

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Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2021. 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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Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2021. 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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Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2021. 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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Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2021. 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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Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2021. 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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Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2021. 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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Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2021. 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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Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2021. 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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Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2021. 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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Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2021. 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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Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2021. 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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Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2021. 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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Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2021. 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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Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2021. 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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Suggested Citation:"Appendix C: Legal Framework." National Academies of Sciences, Engineering, and Medicine. 2021. 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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Appendix C Legal Framework1 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, The 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. The 2006 Marine Debris Research, Prevention, and Reduction Act, amended in 2012, 2018, and 2020, 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, like 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 tables and information below 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. 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. Prepublication Copy 167

U.S. Law and Key Agencies Intervention Stage Key Provisions Gaps, Roles, and Related Activities 168 Plastic Related Authorities Marine Debris Research, Stages 5–6, Waste The 2006 Marine Debris Act was amended in 2012 Does not establish plastic waste limits or Prevention, and Reduction Capture; Monitoring, and further amended in 2018 and 2020 by the Save establish liability. Act of 2006 (as amended in Research and Our Seas Act (SOS) and Save Our Seas 2.0 Act 2012, 2018, and 2020) 33 Development (R&D), (SOS 2.0). Authorizes federal and international U.S.C. §§1951 et seq. Outreach coordination through U.S. Coast Guard (U.S. Establishes a program at NOAA to “identify, CG), U.S. State Department, U.S. EPA, and National Oceanic and determine sources of, assess, prevent, reduce, and IMDCC, the federal interagency coordinating Atmospheric Administration remove marine debris and address the adverse body responsible for addressing marine debris (NOAA) impacts of marine debris on the economy of the and recommending priorities and strategies, U.S. Environmental United States, marine environment, and navigation both nationally and internationally. Protection Agency (U.S. EPA) safety.” U.S. State Department 2020 amendments (SOS 2.0) National Institute of Defines “marine debris” to include “any persistent • Defines and promotes “circular economy.” Standards and Technology solid material that is manufactured or processed • Established innovation prizes and Marine (NIST) and directly or indirectly, intentionally or Debris Foundation to support circular Interagency Marine Debris unintentionally, disposed of or abandoned into the economy goals. Coordinating Committee marine environment or the Great Lakes.” (33 • Requires numerous scientific reports and (IMDCC) U.S.C. §1956) studies focusing on microfibers, microplastics, plastic waste, circular 2012 amended to require NOAA to address marine polymers, and derelict fishing gear. debris resulting from natural disasters and severe • Increased international cooperation and weather events. engagement in international treaty 2018 “amended to expand work across the US discussions. government, most notably with the US Department • Authorized additional funding and grant of State, to engage foreign governments, especially programs for recycling and waste those of high marine debris source countries, to infrastructure. better address marine debris through strengthened solid waste management. The 2018 Act also NOAA Program Components: b mandated that the US government consider “(1) identify, determine sources of, assess, Prepublication Copy addressing marine debris in future trade prevent, reduce, and remove marine debris; agreements.” a (2) conduct regional coordination; Amended in 2020 to require U.S. EPA to “develop (3) reduce adverse impacts of lost and discarded a strategy to improve post-consumer materials fishing gear, through management and infrastructure for the purpose of • R&D of alternatives and gear marking and reducing plastic waste and other post-consumer recovery techniques; and materials in waterways and ocean.” (33 U.S.C. § • non-regulatory incentives to reduce gear in 4281) the environment.

2020 amendments require IMDCC to develop (4) conduct outreach and education; Prepublication Copy standardized definitions for the term “microfiber” (5) develop interagency plans in response to and U.S. EPA to develop a definition of “severe marine debris events,” “microplastics” and standard methodologies to • lead coordination with states, tribes, and assess and test for the prevalence of microfibers in other federal agencies; the ocean and microplastics in drinking water. • assess debris composition, volume, and trajectory; and 2020 amendments also require numerous studies, • estimate potential impacts. including this one, as well as a U.S. EPA study (6) enter into cooperative agreements and with IMDCC and NIST on “minimizing the contracts and provide financial assistance in the creation of new plastic waste.” 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.” Microbead Free Waters Act Stages 1 and 3, Amends the Federal Food, Drug, and Cosmetic Act Prohibits manufacture of cosmetics containing of 2015 Production, Waste to require the U.S. FDA to prohibit the plastic microbeads but does not prohibit Generation manufacturing, packaging, and distribution of production of plastic microbeads. U.S. Food and Drug rinse-off cosmetics containing plastic microbeads. Administration (U.S. FDA) Congressional and industry support for Also applies to products that are both cosmetics enactment came in reaction to the rise of and non-prescription (also called “over-the- multiple state laws banning products containing counter” or “OTC”) drugs, such as toothpastes. microbeads. 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 Solid Waste Disposal Act Stages 3–4, Waste RCRA charges U.S. EPA to set national goals: d Plastic waste, including pellets, currently not (SDWA) 42 U.S.C. § 6901 et Generation, • “Protecting human health and the defined as a special waste category (e.g., e- seq. Management; R&D environment from the potential hazards of waste), a hazardous waste, or meeting RCRA waste disposal. “endangerment” finding, though certain Resource Conservation and • Conserving energy and natural resources. chemicals or additives in plastics may be Recovery Act • Reducing the amount of waste generated. regulated separately. (RCRA) • Ensuring that wastes are managed in an environmentally-sound manner.” 169

170 U.S. Law and Key Agencies Intervention Stage Key Provisions Gaps, Roles, and Related Activities Plastic Related Authorities U.S. EPA For non-hazardous solid waste, regulations are Nonhazardous solid waste “litter” (plastic waste U.S. Department of implemented by states and/or at the local level, “leakage” from municipal and other solid waste Commerce (International with state or local governments given the option to streams) becomes a municipal enforcement Trade Administration [ITA], establish more stringent standards. Facilities that issue. NIST) do not meet these standards are considered open “Disposal” is “the discharge, deposit, injection, dumps that must close. dumping, spilling, leaking, or placing of any “U.S. EPA regulates solid waste . . . into or on any land or water so ● Disposal of nonhazardous solid waste that such solid waste or hazardous waste or any implemented by state agencies; constituent thereof may enter the environment ● Management of hazardous solid waste. or be emitted into the air or discharged into any U.S. EPA manages “hazardous waste from cradle waters, including ground waters.” 42 U.S.C. § to grave;” 6903(3) ● Listed hazardous waste; “Solid waste” as “any garbage, refuse, sludge ● Characteristic hazardous waste (ignitability, from a waste treatment plant, water supply reactivity, corrosivity, toxicity).” e treatment plant, or air pollution control facility Civil liability: Section 7002(a)(1)(B) of RCRA: and other discarded material, including solid, “any person may commence a civil action against: liquid, semisolid, or contained gaseous material any person . . . including any past or present resulting from industrial, commercial, mining, generator, past or present transporter, or past or and agricultural operations, and from community present owner or operator of a treatment, storage, activities . . . .” 42 U.S.C. § 6903(27) (U.S. EPA or disposal facility, who has contributed or who is 2014). contributing to the past or present handling, Relevant Civil Case: Charleston Waterkeeper v storage, treatment, transportation, or disposal of Frontier Logistics (District Court of South any solid or hazardous waste which may present Carolina) f: Complaint brought under an imminent and substantial endangerment to SDWA/RCRA and the Clean Water Act (U.S. health or the environment . . . .” 42 U.S.C. § CWA) for plastic pellet releases into estuary. 6972(a)(1)(B) Defendant settled in 2021. Complaint: Asserted Authorizes U.S. EPA to implement RCRA’s the company was responsible for “past or conservation mandate through “sustainable present handling, storage, treatment, Prepublication Copy materials management (SMM), a systemic transportation, or disposal of solid waste which approach to using and reusing materials more may present an imminent and substantial productively and effectively over their entire life endangerment to health or the environment cycles,” primarily implemented at the state and in violation of RCRA (and discharging without local levels. a CWA NPDES permit).” Based “endangerment” claim on lethal and non-lethal • “Requires the Secretary of Commerce to effects on wildlife from ingesting plastic pellets encourage greater commercialization of (U.S. EPA 2014).

proven resource recovery technology by Prepublication Copy 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). Comprehensive Stage 4, Waste “U.S. CERCLA provides U.S. EPA “with the Plastic waste is not currently defined as a Environmental Research, Management authority to compel responsible parties to respond pollutant, contaminant, or hazardous substance Compensation, and Liability to, and remediate, releases of ‘hazardous under CERCLA. Act (U.S. CERCLA), 42 substances’ from facilities and vessels, and CERCLA can be used for cleanup of marine U.S.C. § 9601, et seq. (aka addresses ‘pollutants or contaminants’ posing debris that contains hazardous substances (e.g., “Superfund”) ‘imminent and substantial endangerment.’” derelict vessels) and to assess threats from • Responsible parties are defined to include releases to human health and the environment.l U.S. EPA owners and operators of vessels or facilities; NOAA (Trustee, Response) transporters; arrangers for disposal. • “Release” is defined to include “leaching,” a potential basis for CERCLA action.” e U.S. CWA (33 U.S.C. § 1251, Stage 4–5 Waste U.S. CWA provides U.S. EPA with the authority to Prohibits discharging a pollutant from a “point et seq.) and Rivers and Management, Capture; Prohibit point source and indirect pollutant source” except in compliance with the Act (e.g., Harbors Appropriation Act R&D, Monitoring, discharges to Waters of the United States except obtaining a National Pollution Discharge of 1899 (33 USC Chapter 9, Outreach under the Act (e.g., with a permit). “Pollutants” are Elimination System [NPDES] permit). Section 401 et seq.) defined broadly and include solid waste, garbage, Plastics are not defined as a pollutant; if plastic sewage and sewage sludge, and municipal and discharges from a facility are addressed at all in 171 agricultural waste (vessel discharges not included, NPDES permits it has been through TSS limits but regulated under section 312). (usually acceptable discharges of visible plastic)

U.S. Law and Key Agencies Intervention Stage Key Provisions Gaps, Roles, and Related Activities 172 Plastic Related Authorities U.S. EPA Sets water quality, technology, and environmental NPDES permits are also required for nonpoint NOAA (Trustee, Response) toxicity standards applicable to industrial and other source (runoff) from certain industrial and U.S. CG (Vessel, Response) facilities (e.g., publicly owned treatment works) for municipal systems (often operate under general • “Conventional pollutants including permits). biochemical oxygen demand (BOD), total suspended solids (TSS), fecal coliform, pH, U.S. CWA programs are delegated to states that and oil and grease; meet federal standards; states authorized to set • Toxic pollutants including 65 pollutants and water quality standards for state waters. classes, with 126 specific substances designated as priority pollutants; and TMDLs for trash impaired waters exist in • Nonconventional pollutants.”m California, Hawaii, and Alaska. Requires states to establish water quality standards for every body of water in the state U.S. EPA’s Trash Free Seas program issued and specify maximum concentrations of new TMDL guidance in 2021: (1) Trash Free pollutants according to water body use. Waters (TFW) Stormwater Permit Requires U.S. CWA permit for stormwater or Compendiumo and (2) U.S. EPA’s Escaped nonpoint source runoff from certain industrial Trash Assessment Protocol (ETAP).p and municipal storm sewer discharges. 303(d) allows for State identification of U.S. EPA Water Quality Monitoring and impaired waters under U.S. CWA and Total Reporting: Maximum Daily Loads (TMDLs) for point • National Water Quality Monitoring and nonpoint sourcesn—can include Council and Data.q impairment by “trash” (Trash). Unless planned • Section 319 National Nonpoint Source measures can be taken to address such Monitoring Program –U.S. EPA.t impairments, states or U.S. EPA must develop • National Coastal Condition Reports–U.S. TMDLs for those pollutants. EPA.u Municipal Separate Storm Sewer System (MS4) permits “requires permittees to develop Section 312 Vessel Sewage Discharges: and implement a comprehensive Storm Water Statutes, Regulations, and Related Laws and Prepublication Copy Management Program (SWMP) that must Treaties–U.S. EPA.v include pollution prevention measures, treatment or removal techniques, monitoring, U.S. EPA Research: use of legal authority, and other appropriate • U.S. EPA Office of Research and measures to control the quality of storm water Development: currently conducting discharged to the storm drains and thence to research on microplastics. waters of the United States.” r In addition, a

small number of municipal governments have • Region 9: Developing water quality Prepublication Copy set TMDLs limits for trash. monitoring methods and ASTM standards Trash Free Waters Programs is a voluntary for sampling microplastics. program that provides NPS and other grants to Related U.S. CWA Decisions and Petitions: state and local watersheds to address trash and Formosa Permit and Decisionw “Formosa’s other pollution. 2016 Permit prohibits the ‘discharge of floating The U.S. CWA also establishes U.S. EPA and U.S. solids or visible foam in other than trace CG authority for pollution prevention, contingency amounts’ ... Moreover, TCEQ rules prohibit the planning, and response activities within U.S. discharge of ‘floating debris and suspended waters for oil and hazardous substances. solids’ into surface waters. […] The undisputed Section 312 regulates sewage discharges from evidence shows that plastic pellets and PVC vessels; it was amended in 2006 to include the powder discharged by Formosa caused or Vessel Incidental Discharge Act. Authorities are contributed to the damages suffered by the implemented by U.S. EPA and U.S. CG (EEZ). recreational, aesthetic, and economic value of Authorizes a range of Waste Water Infrastructure [surface water]…” Grants (wastewater treatment and nonpoint source) June 2019 Petition Under 40 CFR Parts 414 • Section 10 of the Rivers and Harbors and 419x: requested, inter alia, “prohibit the Appropriation Act requires a permit to be discharge of plastic pellets and other plastic issued by the U.S. Army Corps of Engineers materials in industrial stormwater and for discharges of any dredged or fill material wastewater” (including plastics) into the navigable waters of the United States. One case alleged plastic pellets are a “pollutant” under the CWA. Settled; not adjudicated..f Clean Air Act Stage 4, Waste “U.S. CAA regulates ambient air quality by “Microplastics air emissions from ground level (U.S. CAA), 42 U.S.C. § 7401, Management; limiting sources of air pollutants from sources are generally not covered—leaving no et seq. Monitoring ● Stationary sources of criteria pollutants to path to directly limit these microplastic meet air quality and technology standards, as emissions to ambient air. U.S. EPA well as hazardous air pollutants: Plastic component of PM 2.5 appears to be o Criteria pollutants include nitrogen and difficult to completely capture and analyze due sulfur dioxides, carbon monoxide, lead, to limitations in sampling and analytical and ozone as volatile organic compounds, methods.” e and particulate less than 2.5 micrometers; o Hazardous air pollutants—187 chemicals In 2021, U.S. EPA announced it is considering listed for carcinogenicity, toxicity, and more stringent regulation of pyrolysis and other potential harms. gasification (sometimes used in plastic chemical ● Mobile sources of criteria air pollutants from recycling) under U.S. CAA Section 129..y internal combustion engines.” e 173

U.S. Law and Key Agencies Intervention Stage Key Provisions Gaps, Roles, and Related Activities 174 Plastic Related Authorities Safe Drinking Water Act Stage 4 Waste “U.S. SDWA regulates public water supply, “Microplastics are not included unless captured (U.S SDWA) 42 U.S.C. § 300f Management; Stage 5, imposing maximum contaminant limits for as Turbidity – allowed up to 0.3 Nephelometric et seq Waste Capture; chemical contaminants including Turbidity Units.” e Monitoring ● Microorganisms and viruses, turbidity U.S. EPA (cloudiness, suspended solids) up to 0.3 ntu, SOS 2.0 (33 U.S. Code § 4282 – Grant disinfectants, disinfection byproducts, programs) clarified that U.S. SDWA inorganic chemicals, organic chemicals (not infrastructure grants can be used to “support plastics), radionuclides. improvements in reducing and removing plastic ● Also, monitoring for unregulated waste, including microplastics and microfibers, contaminants (including perflurooctanoic from drinking water.” 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 Toxic Substances Control Stage 3 Waste Provides U.S. EPA with “authority to require U.S. EPA has not used these authorities to Act (U.S. TSCA), 15 U.S.C. Generation; Stage 4, reporting, record-keeping and testing requirements, regulate products that will become plastic §2601 et seq. (1976) Waste Management; and restrictions relating to chemical substances waste. R&D and/or mixtures” (does not include food, drugs, “40 CFR 723.250(b)—”Polymer” 40 CFR U.S. EPA cosmetics, and pesticides). 723.250(d)—exempts from Premanufacture Notice requirements those polymers that are “TSCA can potentially be used for the purpose of inert: (1) based on level of concern regarding addressing risks specific to chemical substances functional groups, and (2) not excluded from that may be in plastic waste.”aa the exemption. 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 Prepublication Copy “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

Prepublication Copy In 2021, several chemicals used in plastic and rubber manufacturing were added to list of chemicals regulated under U.S. TSCA.cc Ocean Dumping Act (Marine Stage 6, Minimize At- 1972 law, as amended, implemented by the U.S. Prohibitions align with the requirements of Protection Research and Sea Disposal; CG, U.S. EPA, and the U.S. Army Corps of international law under the 1972 London Sanctuaries Act of 1972), as Monitoring Engineers— Dumping Convention (Convention on the amended by the Ocean • “Prohibits the ocean dumping of municipal Prevention of Marine Pollution by Dumping of Dumping Ban Act of 1988 and sewage sludge and industrial wastes, such as Wastes and Other Matter of 1972) and its the Water Resources wastes from plastics and pharmaceutical successor, the 1996 London Protocol (in effect Development Act of 1992 manufacturing plants and from petrochemical starting 2006). The United States has not refineries.”dd ratified the Convention or Protocol but does NOAA • Bans the ocean disposal of “medical waste.” participate in meetings (Secretariat at the U.S. EPA dd (1988) International Maritime Organization). U.S. CG • “Ocean dumping permits, including for ocean Any materials dumped in the ocean are U.S. Army Corps of disposal of dredged material, conform to “evaluated to ensure that they will not pose a Engineers long-term management plans to ensure that danger to human health or the environment and permitted activities are consistent with that there are no better alternatives for their expected uses of designated ocean disposal reuse or disposal.”dd dd sites.” (1992) Act to Prevent Pollution from Stage 6, Minimize ● “Implements the provisions of Annex V of Other Ships as amended by Marine At-Sea Disposal; the International Convention for the ● “Food waste or paper, rags, glass, metal, Plastic Pollution Research and Monitoring Prevention of Pollution from Ships bottles, crockery and similar refuse cannot Control Act (MARPOL) (MARPOL) relating to garbage and be discharged in the navigable waters or in 33 U.S.C. § 1901 et seq. plastics.”ee “Applies to all vessels, whether waters offshore inside 12 nautical miles seagoing or not, regardless of flag, on the from the nearest land.”gg U.S.C.G. navigable waters of the U.S. and in the ● “Food waste, paper, rags, glass, and NOAA exclusive economic zone of the U.S. It similar refuse cannot [be discharged] in applies to U.S. flag vessels wherever they are the navigable waters or in waters offshore located.” ff inside three nautical miles from the nearest ● Prohibits the “discharge of plastics, including land (some exceptions for synthetic ropes, fishing nets, plastic bags, and emergencies).”gg ff biodegradable plastics, into the water.” ● Requires “all manned, oceangoing U.S. flag ● Prohibits “discharge of floating dunnage, vessels of 12.2 meters or more in length lining, and packing materials in the navigable engaged in commerce, and all manned waters and in areas offshore less than 25 fixed or floating platforms subject to the nautical miles from the nearest land.”ff jurisdiction of the U.S., to keep records of garbage discharges and disposals.”gg 175 See, e.g., Hagen (1990).

U.S. Law and Key Agencies Intervention Stage Key Provisions Gaps, Roles, and Related Activities Plastic Related Authorities 176 ● “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 Coastal Zone Management Stage 4, Waste ● Establishes National Coastal Zone States receive federal grants to support creation Act , 16 USC 1451 et seq. Management Management Program, a unique federal-state and implementation of coastal zone partnership for management of the coastal management plans. Plans approved by the NOAA zone (including Great Lakes) aimed at Secretary of Commerce become the state’s protecting, preserving, and enhancing governing rules for development of the coastal resources of the coastal zone. zone. Law provides states the assurance that ● The Coastal Nonpoint Pollution Control federal activities (including federally permitted Program (Section 6217 of the 1990 activities) in the coastal zone must be amendments) “requires states and territories “consistent” with the state plan. Also with approved Coastal Zone Management incentivizes protection of natural resources such Programs to develop Coastal Nonpoint as wetlands, control of marine debris, Pollution Control Programs”hh that lay out addressing coastal hazards, ocean planning, and management measures. Administered jointly energy siting.ii with U.S. EPA. Federal Trade Commission Stage 2, Innovate Section 5 of the Federal Trade Commission Act FTC’s Green Guides cover claims like Act (15 U.S.C. §§ 41-58, as Material and Product (15 USC §45) “prohibits unfair or deceptive “recycling” and “biodegradable.” Last update amended) Design practices in or affecting commerce.” was 2012, next expected 2022; updates not ● FTC has Green Guides to help companies required by law (see GAO 2020). See: 16 Federal Trade Commission appropriately address environmental C.F.R. pt. 260. (FTC) marketing ● Can bring enforcement actions for claims that Examples of plastic labeling actions: deviate from the Guides. “A representation, • Biodegradable omission, or practice is deceptive if it is • Oxodegradable likely to mislead consumers acting Prepublication Copy • Post-consumer recycled plastic content reasonably under the circumstances and is “FTC considers three factors when determining material to consumers’ decisions.”jj 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.”

Research, Development, and Monitoring Authorities Prepublication Copy National Energy Policy and Stage 2, Innovate Authorities emphasize energy efficiency and Plastics Innovation Challenge Draft Roadmap Programs 42 USC CHAPTER Design and Materials; innovative materials research. and Request for Information.kk 149 (sec. 15801 et seq.) R&D The REMADE Institute; 2020 Impact Report.ll U.S. Department of Energy DOE Bio-Optimized Technologies to keep (DOE) 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 R&D Authorizes a “national integrated System of ocean, Identifies NOAA as lead federal agency for the Ocean Observation System coastal, and Great Lakes observing systems system and establishes two governance Act of 2009; reauthorized in (federal and non-federal)” and includes “in situ, mechanisms: (1) federal coordination by a the Coordinated Ocean remote, and other coastal and ocean observation, White House National Ocean Research and Observations and Research Act technologies, and data management and Leadership Council, (2) Office of Science and of 2020; related research communication systems, designed to address Technology Policy Interagency Ocean authorities. regional and national needs for ocean Observation Committee (consisting of 12 33 U.S.C. §3601-3610 information”; authorizes basic and applied federal agencies, led by 4 co-chairs). (Subtitle C) research. Agencies: NOAA, National Science Foundation NOAA also operates weather and climate (NSF), National Aeronautics and Space NOAA, with 11 other federal observations systems (satellite, ground, and air) Administration (NASA), U.S. EPA, Bureau of agencies through related systems under the National Ocean Energy Management (BOEM), Marine Weather Service Organic Act. Mammal Commission (MMC), Joint Chiefs, Office of Naval Research, U.S. Army Corps of Engineers, U.S. CG, U.S. Geological 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 R&D Authorizes USGS to examine the geological Operates the USGS Stream Gauge Network, Organic Act structure, mineral resources, and products of the consisting of more than 11,000 gauges that 43 U.S.C. Chapter 2 (sec. 31 et national domain, which provides scientific collect data for a variety of uses, including by seq.) information to, among other things, understand other agencies, including hazard and flood earth systems, manage water, and enhance and information as well as assessing water quality, 177 USGS protect quality of life. regulating point source discharges, assessing if streams are safe for recreational activities.

178 U.S. Law and Key Agencies Intervention Stage Key Provisions Gaps, Roles, and Related Activities Research, Development, and Monitoring Authorities Other Ocean R&D R&D Provides authority for NSF to support scientific NSF has provided funding for a number of NSF (42 USC Chapter 16) research and education. ocean plastic and materials research projects NASA Organic Act 42 U.S.C. NASA is authorized to conduct scientific research, under a range of grant programs. § 2451 et seq. measurement, monitoring, and outreach related to NASA operates satellite remote sensing and aeronautical and space activities (e.g., remote related research efforts relevant to ocean Oceans and Human Health sensing). conditions and constituents. Act (NOAA), 33 U.S.C. NOAA research relates to ocean health and Chapter 44, Sec. 3101 et seq. NOAA is authorized to conduct and support a ecosystem conditions, beyond the purview of range of atmospheric, ocean, and coastal research the Marine Debris Act. authorities, including research relevant to ocean and human health Non-statutory: Lujan v. Defenders of Wildlife - 504 U.S. 555, 112 For example, “Earth Island v. Crystal Geyser, U.S. (federal and state) S. Ct. 2130 (1992)oo Clorox, Coca-Cola, Pepsico, Nestle, Mars, et al. Common Law • “Plaintiffs must have “standing” (2020, Filed Sup Ct CA): Misleading claims of Legal claims require proof of o “injury in fact, which means an invasion recyclability. Federal court remanded to state “injury” to meet “standing” of a legally protected interest that is court 2021claims under requirements concrete and particularized, and actual or • CA Consumers Legal Remedies Act imminent, not conjectural or • Public Nuisance hypothetical;” • Breach of Express Warranty o “a causal relationship between the injury • Strict Liability-Failure to Warn and the challenged conduct, i.e., the • Negligence and Negligence–Failure to injury can be fairly traced to the Warn”e challenged action of the defendant, and has not resulted from the independent action of some third party not before the court;” and o “a likelihood that the injury will be redressed by a favorable decision, which means that the prospect of obtaining Prepublication Copy 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.” 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. Prepublication Copy d See https://www.epa.gov/history/epa-history-resource-conservation-and-recovery-act. e See Ternes, M. E. and S. Fulton, S. 2020. Overview of United States Law Governing Solid andWater Waste Management. Presentation at an online meeting of the Committee on the U.S. Contributions to Global Ocean Plastic Waste, December 7. 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. 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, 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. 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 National Oceanic and Atmospheric Administration. Office of the Chief Scientist.1998. Year of the Ocean discussion papers. Washington, D.C., Office of the Chief Scientist, NOAA, U.S. Dept. of Commerce. gg See https://coast.noaa.gov/data/docs/nerrs/Reserves_ACE_SiteProfile.pdf. hh See 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. ii See https://coast.noaa.gov/czm/. jj See GAO. 2020. Recycling: Building on Existing Federal Efforts Could Help Address Cross-Cutting Challenges. United States Government Accountability 179 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/. 180 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). Prepublication Copy

Appendix C 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, “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 G20. 2021. “The United States: Actions and Progress on Marine Plastic Litter.” https://g20mpl.org/partners/unitedstates. GAO. 2020. Recycling: Building on Existing Federal Efforts Could Help Address Cross-Cutting Challenges. United States Government Accountability Office. Hagen, P. 1990. “The International Community Confronts Plastics Pollution from Ships: MARPOL Annex V and the Problem That Won’t Go Away.” American University International Law Review 5 (2):425-496. Ternes, M. E. and S. Fulton, S. 2020. Overview of United States Law Governing Solid andWater Waste Management. Presentation at an online meeting of the Committee on the U.S. Contributions to Global Ocean Plastic Waste, December 7. The Ministry of Environment Japan. 2020. G20 Report on Actions against Marine Plastic Litter: Second Information Sharing based on the G20 Implementation Framework. Tokyo, The Ministry of Environment Japan. https://www.env.go.jp/press/files/en/872.pdf. U.S. EPA (U.S. Environmental Protection Agency). 2014. RCRA’s Critical Mission & the Path Forward. Washington D.C, US EPA. https://www.epa.gov/rcra/resource-conservation- and-recovery-act-critical-mission-path-forward. 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. Prepublication Copy 181

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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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