The Nickel Report

I. Introduction

In the 1967 film The Graduate, Mr. Maguire says to Benjamin: “There is a great future in cleaning up microplastics.” That’s not exactly correct, but if the movie were remade today, it might be. [1]

The State of California and the United Nations certainly envision that future. Late last month, California adopted a first-in-the-nation strategy to address microplastics in the environment. Shortly thereafter, on March 2, 2022, the United Nations Environment Assembly adopted a resolution setting up a path to a global treaty to end plastic pollution. And, after adopting the world’s first regulatory definition of “microplastics in drinking water” in 2020, California anticipates additional action addressing microplastics in drinking water as early as this month.

With California often leading the way in environmental regulation, interested parties throughout the country (and the world) may want to follow these developments closely.

II. The Microplastics Problem

As defined by the Oxford English Dictionary, “microplastics” are “extremely small pieces of plastic debris in the environment resulting from the disposal and breakdown of consumer products and industrial waste.”

Microplastics fall into two general categories: primary microplastics manufactured at a small size (e.g., preproduction plastic pellets used in manufacturing or microbeads in personal care products) or secondary microplastics that result from the breakdown of larger plastics. California Ocean Protection Council. (February 2022). Statewide Microplastics Strategy (Strategy) at p. 4.

Worldwide, an estimated 11 million metric tons of plastic enter the ocean each year; under the status quo, this amount may triple by 2040. Id. (citing to 2020 studies).

Microplastics are not only a marine pollution problem. Microplastics have been found nearly everywhere scientists have looked, from pristine mountain streams to agricultural soil, and within human placenta, stool samples, and lung tissue.  Id. (citing to 2019 and 2021 studies).

III. Potential Solutions

a. California Ocean Protection Council

In 2018, the California governor signed into law two microplastics bills: Senate Bill (S.B.) 1263 and S.B. 1422. Pursuant to S.B. 1263, the California Ocean Protection Council (Council) approved the first comprehensive microplastics strategy in the nation: Statewide Microplastics Strategy: Understanding and Addressing Impacts to Protect Coastal and Ocean Health (Strategy). [2]

According to the Council:

The Strategy outlines a two-track approach to comprehensively manage microplastics in California. The first track … outlines immediate, “no regrets” actions and multi-benefit solutions to reduce and manage microplastic pollution, while the second track … outlines a comprehensive research strategy to enhance the scientific foundation for microplastic monitoring, source identification, risk assessment, and development of management solutions. [3]

Solutions identified in first track include:

• Pollution Prevention: Eliminate plastic waste at the source (products or materials from which microplastics originate).
• Pathway Interventions: Intervene within specific pathways (stormwater runoff, wastewater, aerial deposition) that mobilize microplastics into California waters.
• Outreach and Education: Engage and inform the public and industries of microplastic sources, impacts, and solutions.

The comprehensive research strategy outlined in the second track includes:

• Monitoring: Standardize a statewide monitoring approach. Understand and identify trends of microplastic pollution statewide.
• Risk Thresholds and Assessment: Improve understanding of impacts to aquatic life and human health.
• Sources and Pathways Prioritization: Identify and prioritize future management solutions based on local data.
• Evaluating New Solutions: Develop and implement future pollution prevention and pathway intervention solutions.

Notably, the Strategy is not regulatory; the state has not mandated action to reduce microplastics in the environment. However, it does call on California to pursue additional product and material prohibitions to further curb the generation of plastic waste. The Strategy also identifies specific sectors that should be investigated, including vehicle tires, textiles, single-use foodware and packaging, agriculture, and fisheries and aquaculture.

b. United Nations

Just one week after California adopted the Strategy, the United Nations Environment Assembly adopted a resolution to end plastic pollution and forge an international legally binding agreement by 2024. Representatives from 175 nations, including the United States, agreed to begin negotiating a broad treaty that would not only aim to improve recycling and clean up the world’s plastic waste, but also encompass curbs on plastics production itself. Among other things, the agreement must address the full life cycle of plastics, from production to disposal, recycling, and reuse.

A timetable for negotiating the treaty is to be discussed during the first half of 2022.

c. California State Water Resources Control Board

Meanwhile, the California State Water Resources Control Board (State Board) continues its work addressing microplastics in drinking water as required by S.B. 1422. [4] As discussed in our previous blog post, the State Board in 2020 became the first regulatory agency in the world to specifically define “Microplastics in Drinking Water.” Since then, it has been working on a standardized analytical method for microplastics in drinking water, evaluating the health effects of microplastics to inform consideration of issuing a health-based guidance level for microplastics in drinking water, and adopting requirements for four years of testing and reporting of microplastics in drinking water. [5]

As noted above, the State Board anticipates adopting resolutions or otherwise acting on these S.B. 1422 mandates as soon as this month.

IV. Conclusion

Mr. Maguire was right in 1967: there was a great future in plastics. It is everywhere, important to our lives in ways too numerous to count. But most would agree plastic waste – perhaps especially microplastics – presents challenges that society will need to address, and regulators aim to do so through new regulations. Time will tell whether, in a sequel, the future will be in cleaning up microplastics. California and the United Nations appear to think so.

[1] What he actually said in the Mike Nichols film starring Anne Bancroft and Dustin Hoffman as Benjamin was “Plastics. … There is a great future in plastics.”

[2] The National Academies of Sciences, Engineering, and Medicine released a consensus national report to Congress in December 2021. The report concludes plastic waste in the United States is ubiquitous and increasing, with the United States having generated more plastic waste as of 2016 than any other country, exceeding that of all European Union member states combined. The report could form the basis of a national microplastics strategy. See 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.

[3] S.B. 1263 requires that the Strategy include, but not be limited to: 1) a prioritized research plan; 2) standardized methods for sampling, detecting, characterizing, and monitoring microplastics; 3) an investigation of the sources, pathways, and impacts of microplastics on coastal and marine ecosystems; 4) a risk assessment framework based on the best available science on the exposure of microplastics to organisms; 5) research on pathway interventions; 6) an evaluation of source reduction and product stewardship techniques; and 7) policy recommendations.

[4] S.B. 1422 required the State Board, on or before July 1, 2020, to adopt a definition of microplastics in drinking water, and on or before July 1, 2021, to: (i) adopt a standard methodology to be used in the testing of drinking water for microplastics; (ii) adopt requirements for four years of testing and reporting of microplastics in drinking water, including public disclosure of those results; (iii) if appropriate, consider issuing a notification level or other guidance to aid consumer interpretations of the results of the required testing; and (iv) accredit qualified laboratories in California to analyze microplastics. The State Board met the first deadline, but not the second.

[5] It also released, in November 2021, a draft Microplastics In Drinking Water Policy Handbook.