September 01, 2019

Plague, pestilence, plastic? Maybe not.

Mary Ellen Ternes

As environmental practitioners, we know that there really is no such thing as throwing something “away.” We can change its form, separate it into elements, or otherwise manage it, but material does not magically “go away.” Except for loss of helium and other light elements to outer space, we essentially live in a closed system that continues to contain what we discard, whether or not we can see it. While carbon dioxide’s invisibility might be part of the reason climate change deniers maintain a foothold, plastic is mostly visible, so we can usually see it. But unlike other wastes that we are better at regulating, because they are plainly acutely toxic, reactive, ignitable or corrosive, the same properties of plastic that make it so useful for consumer products also cause us to become complacent about plastic hazards in the environment. Plastic is a synthetic substance not of our natural world with an almost perpetual life. It has no natural place in our environment. So, it ends up doing harm in the stomachs of whales, dolphins, and albatross chicks, as well as filter feeders like larvaceans that eat microplastics, which are then eaten by organisms from tuna to turtles, including us. See e.g., Maria Temming, Tiny Plastic Debris Is Accumulating Far Beneath the Ocean Surface, Science News (June 2019).

It appears that the world has finally had enough. Much like the scope of our U.S. Resource Conservation and Recovery Act (RCRA), the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, governs “hazardous and other wastes,” including presumptively hazardous listed wastes (Annex I) and those that that are characteristically explosive, flammable, reactive, toxic, infectious, or corrosive (see Annex III for more specifically defined characteristics). The United States has never ratified the Basel Convention and is not a Party, though the United States is a Member of the Organization for Economic Cooperation and Development (OECD), which imposes conditions on U.S. transboundary movement of hazardous wastes as defined by RCRA, see 40 C.F.R. 261.3 and Part 262, Subpart H. On May 10, 2019, at the 14th meeting of the Basel Convention Conference of the Parties, participating nations agreed to add “plastic waste” to the list of “other wastes,” effective January 1, 2021. Specifically, the draft Amendments include: Annex II, Y 48, listing “plastic wastes” as a category requiring special consideration, exempted only where they are “destined for recycling in an environmentally sound manner. . .”; Annex VIII, A3210, listing for the first time A3210, “plastic waste” as potentially hazardous; Annex IX, replacing B3010, defining exempt plastic waste, with B3011. With these Amendments, the Basel Convention Conference of the Parties recognizes that, while plastic has been manufactured for only the past 60 years, the world has produced more plastic in the past 10 years than during the last 100. Moreover, while plastic waste is only about 10 percent of the total waste generated, it comprises about 90 percent of the trash floating in the ocean. And due to the near impossibility of cleaning all the world’s oceans, plastic waste must be addressed at its source.

The addition of “plastic waste” to the Basel Convention means that the global trade in plastic waste will be regulated subject to the Convention’s protections requiring legitimate recycling, and a new Partnership in Plastic Waste will begin work on solutions. Even though the United States has never ratified the Basel Convention, the United States is directly impacted, as countries are now turning away U.S. shipments of plastic waste and sending them back. See, e.g., Rozanna Latiff, Malaysia to Send 3,000 Tonnes of Plastic Waste Back to Countries of Origin, Reuters (May 28, 2019).

So, while on July 3, 2019, the Environmental Protection Agency asked the OECD to not adopt these Basel Amendments, it does look like the United States may as a practical matter finally need to get serious about managing plastic waste, which raises many questions. First, why is there so much of it? Largely for the same reason plastic is so valuable: it’s cheap and easy to make, watertight, strong, yet light, and lasts “forever.” Plastic was first invented in 1869 by treating cellulose with camphor, as a substitute for ivory. With Bakelite in 1907, plastic became fully synthetic, and with World War II, its production in the United States increased by 300 percent in the United States alone, just in time for The Graduate. See Science History Institute, The History and Future of Plastics. Innovations in chemical manufacturing and plastic’s valuable characteristics have made it an easy option for ubiquitous single uses. At the same time, due to the absence of RCRA listing or characteristics, plastic is not regulated as “hazardous waste.” Yet while regulated as “solid waste,” plastic waste often does not find its way to a landfill or recycling facility.

Can’t we just use biodegradable plastic? Not really, because it won’t degrade before a whale eats it. Biodegradable plastic is supposed to degrade fully within three to six months, but has been found to be largely intact after three years. See, e.g., Brigit Katz, Do Biodegradable Plastic Bags Actually Degrade?, Smithsonian.com (May 1, 2019). And for however long it remains in the environment, plastic—consisting of long chain hydrocarbons—releases smaller molecules of hydrocarbons that are greenhouse gases. See University of Hawaii at Manoa, Degrading Plastics Revealed as Source of Greenhouse Gases (Aug. 1, 2018). And in case anyone wonders why marine animals eat plastic, it both looks and smells like food. Both plastic and dead things release methane and ethylene. (For plastic, see: Sarah-Jeanne Royer et al., Production of methane and ethylene from plastic in the environment (Aug. 1, 2018); for dead things, see: Daniel J. Repeta et al., Marine methane paradox explained by bacterial degradation of dissolved organic matter, Nature Geoscience (Nov. 14, 2016).) And when algae grow on plastic, it’s apparently irresistible. See Matthew S. Savoca et al., Odors from Marine Plastic Debris Induce Food Search Behaviors in a Forage Fish, Proceedings of the Royal Society B (Aug. 16, 2017) and, in layman’s terms, Bait and Switch: Anchovies Eat Plastic because It Smells Like Prey.

What about just recycling it? Theoretically we can, and do, to a degree. But capturing the entire recyclable market is unrealistic without a mandate or incentives that might drive sufficient market demand. In our historical plastic economy without post-use accountability, plastic is so cheap to manufacture that there is little incentive for purchasers of post-use plastic feedstock to pay any additional costs of collecting, sorting, cleaning, and recycling, leaving little market for potentially more expensive and possibly lower-quality recycled plastic. Even if we could overcome collection problems, we would still have to clean it and sort it all, because we can’t just melt it all together. Why? Well, the different symbols on our plastic containers mean they are made from different materials (you know this!): (1) “PET” is polyethylene terephthalate (clear, strong, and lightweight, used in water bottles and polyester fabric); (2) “HDPE” is high-density polyethylene (more durable with high strength to density ratio, used in plastic bottles, piping, and geomembranes); (3) “PVC” is polyvinyl chloride (a thermoplastic polymer, white and brittle before addition of plasticizers); (4) “LDPE” is low-density polyethylene (used in food packaging film and shopping bags); (5) “PP” is polypropylene (from a combination of propylene monomers; a thermoplastic polymer combined with other materials to make them more flexible and less brittle); (6) “PS” is polystyrene (a naturally transparent thermoplastic); and (7) “other” including synthetic polymer fabrics such as acrylic polymers (acrylic) and polyamides (nylon). See, e.g., Blogs by Tony Rogers, Creative Mechanisms.

These different chemical molecules were invented for their different material properties, which make them suitable for different uses. Thus, merely melting these different materials, to change their physical phase from solid to liquid, does not change them into different materials. Melting them all together just creates a layered mess of different materials that is unsuitable for any specific use.

In any case, we are terrible at sorting all these different plastics, or cleaning properly before we recycle it, so that it is ready for recycling. To be fair, unregulated manufacturing has resulted in an explosion of disparate items across the material and use spectrum, from single uses to more durable uses, making identification and separation of different types of plastic a real challenge. See, e.g., Wesley Stephenson, Why Plastic Recycling Is So Confusing, BBC Science & Environment (Dec. 18, 2018).

What will work? It looks like a cradle-to-cradle approach imposing post-use accountability is in our future. In 2018, the European Union (EU) adopted its “European Strategy for Plastics in a Circular Economy.” See EPEA Part of Drees & Sommer, European Strategy for Plastics in a Circular Economy: Cradle to Cradle as a Solution (Feb. 1, 2018). The EU’s approach is intended to ensure that plastic remains valuable by: changing production and design to make plastic easier to recycle, which could enable higher plastics recycling rates; expanding and improving collection, sorting, and recycling capacity; and bringing together the chemical and recycling industries to better integrate the plastics value chain and create viable markets for recycled and renewable plastics. On the heels of the EU action, the American Chemistry Council’s Plastics Division, representing 19 of the leading plastics resin producers, adopted their own circular plastics economy goals for plastic packaging. See American Chemistry Council, U.S. Plastics Resin Producers Set Circular Economy Goals to Recycle or Recover 100% of Plastic Packaging by 2040 (May 9, 2018). Many of the Plastics Division members are also participating in the Alliance to End Plastic Waste, announced January 2019, which has pledged $1.5 billion over the next five years to help end plastics waste in the environment. The Alliance, in turn, includes members that are also core partners of the Ellen McArthur Foundation’s New Plastics Economy Global Initiative, launched in October 2018, bringing together over 250 businesses, governments, and other entities to set 2025 targets for a circular plastics economy in which “plastics never become waste.”

Now with serious Basel Convention teeth arming these global efforts, the flow of new plastic into commerce will be affected, impacting manufacturers and consumers alike. Taking inventory of domestic consumer plastic use each day—from the milk container to the coffee pod, shampoo bottle, toothbrush handle, microbeads, alarm keypad, automobile parts, credit card, computer keys, shopping bags, pens and highlighters, file tabs, and on and on, it appears that more products contain plastic than do not. The global effort to adapt to a cradle-to-cradle plastic economy necessarily contemplates collective engagement by government, manufacturers, consumers and recyclers alike in order to fundamentally reform the global commerce of plastic, from historically contemplated abandonment to continuing use. And then, of course, we still will have 60 years of plastic waste inventory to address—plastic that is either in, or on its way to, the ocean.

Implications from this Basel listing reach far beyond the consumer plastic industry. For example, plastic is made of chemical reaction products derived from ethylene, industry’s basic building block, produced from ethane or other petroleum fractions from oil and natural gas production. Ethane and other petroleum feedstock availability has increased dramatically with fracking technology (though biomass can also be a good source), such that making ethylene, and thus plastic, cheaper than ever, allowing the plastic industry to become an important alternative hydrocarbon market when fuel demand decreases. See, e.g., Essential Chemical Industry.  However, as plastic demand declines, ethylene demand may also decline, impacting hydrocarbon markets and ultimately oil and gas production and investment. Practitioners here in the United States should be prepared for future plastic regulation at the international, state, and local levels, for the time being. Supply chain impacts may ripple through our economy, creating contract disputes in some markets, and asset management issues in others, where ethane, ethylene, and other hydrocarbon production may find less demand for their nonfuel products. Shareholders will likely emphasize plastic sustainability in their ongoing shareholder initiative issues. Stay tuned as this societal issue evolves.

Mary Ellen Ternes

Mary Ellen Ternes is a partner at Earth & Water Law, LLC, in its Oklahoma City location, practicing environmental law and litigation with significant focus on chemical risk management. She is a member of the Natural Resources & Environment (NR&E) editorial board and a regular contributor to NR&E Insights.