United States: More Litigation Concerning Plastic Pollution: Can Claims Be Both Novel And Traditional At The Same Time?

Last month, I advised plastics manufacturers to prepare for more litigation. Although I am generally loath to speculate, it already looks as though this prediction is coming true. Earlier this month, PennEnvironment and Three Rivers Waterkeeper filed suit against BVPV Styrenics and its parent company. BVPV manufactures expandable polystyrene at its facility in Monaca, Pennsylvania.

The complaint alleges a number of violations of the Clean Water Act, but all of them relate to allegations that BVPV discharged nurdles – an excellent neologism that will soon be part of common vocabulary. The legal claims assert both that BVPV failed to identify its discharge of nurdles in its permit application, resulting in unpermitted discharges, and that the discharge of nurdles violated specific permit conditions prohibiting discharges of floating solids and discharges of any substances in harmful amounts.

What's noteworthy about this case is not just that, according to Lexis/Nexis (subscription required), the plaintiffs are explicitly conveying that the point of the suit is to send a message; it's that the complaint seems actually to succeed in doing so. This isn't like the case brought by New York State, which tries to fit the round sale of plastic products into the square peg of public nuisance law.

Whatever the ultimate merits of the complaint, the plaintiffs here have done what appears to be a very solid job of preparing their case and fitting their claims into traditional Clean Water Act citizen suit jurisprudence. The only thing different about this case is that the discharges that are the subject of the suit are not traditional toxic or carcinogenic compounds. I'm not going to go into all the details alleged, but any lawyer who works in this area, whether for environmental groups or industrial dischargers, will understand how PennEnvironment and Three Rivers Waterkeeper put together their case.

And what this means is that plastics manufacturers really do have to prepare for more litigation. It may not be novel claims such as those brought by New York. It may be bread and butter CWA citizen suit claims. Still, that the claims fit squarely into existing CWA jurisprudence doesn't mean that they're not new and important.

There's no doubt that another front has been opened in the battle over alleged plastic pollution.