From the pristine coastlines of San Diego to the vital waterways near San Jose, the issue of plastic pollution is a growing concern for communities and businesses across California. A significant part of this challenge involves microplastics—tiny plastic particles that can find their way into our soil and water systems.
As public and regulatory attention intensifies, manufacturers face new questions about their legal responsibilities for microplastic contamination. A San Diego environmental counsel lawyer can help businesses understand the current legal framework, which is critical for managing risk and maintaining compliance in an evolving environmental landscape.
Key Takeaways about Microplastic Contamination and the Legal Responsibilities for Manufacturers
- Federal and state laws, including the Clean Water Act, are increasingly being applied to cases of microplastic pollution.
- California has developed a Statewide Microplastics Strategy, signaling a proactive approach to regulating these contaminants.
- Manufacturers may face liability through direct regulation, enforcement actions, and common law claims like public nuisance or negligence.
- Proactive measures, such as auditing supply chains and improving filtration systems, can help businesses reduce their legal and financial risks.
- Common law theories, which do not require a specific microplastic statute, can be used to hold companies accountable for pollution.
The Evolving Legal Landscape of Microplastic Contamination
Historically, environmental regulations did not specifically name “microplastics.” However, the legal ground is shifting. Regulators and private parties are now using existing, broad environmental laws to address the release of these particles into the environment. This means that even without a law that says “you cannot discharge microplastics,” a company could still face legal action under statutes designed to protect water quality.
For California businesses, this is particularly relevant. The state is often at the forefront of environmental protection, and its actions can set a precedent for the rest of the country. As agencies gather more data on the presence of microplastics in everything from the Pacific Ocean off Los Angeles to local drinking water sources, the pressure on industrial sources to control their output is likely to increase.
Key Federal and California Regulations Impacting Manufacturers
A complex web of federal, state, and local rules can apply to microplastic pollution. Companies that manufacture, use, or transport plastics must be aware of several key legal areas that create potential liability.
The Clean Water Act (CWA)
The foundational federal law for water pollution in the U.S. is the Clean Water Act (CWA). Its main goal is to regulate the discharge of pollutants into the nation’s waters. While the CWA doesn’t explicitly mention microplastics, plastic particles can be classified as pollutants.
- Point Source Pollution: The CWA requires permits for any “point source”—a specific, identifiable source like a pipe or ditch—that discharges pollutants. A manufacturing facility’s wastewater pipe could be considered a point source for microplastic discharge.
- Stormwater Runoff: Industrial sites are also required to manage stormwater runoff to prevent pollutants from being washed into nearby rivers and streams. Plastic pellets, powders, and fragments can easily be carried away by rain.
- Citizen Suits: The CWA allows private citizens and groups to file lawsuits against companies for alleged violations, creating an additional layer of potential legal exposure.
Understanding your facility’s obligations under the CWA is a critical component of a sound environmental compliance strategy.
California’s Statewide Microplastics Strategy
California is taking a direct approach to this issue. In response to state legislation, the California Ocean Protection Council adopted a Statewide Microplastics Strategy. This comprehensive plan outlines a multi-year roadmap to research and ultimately reduce microplastic pollution. It calls for investigating sources of contamination and developing policies to stop microplastics from entering the environment.
For manufacturers, this strategy signals that future regulations are not a matter of “if,” but “when.”
Common Law Claims: Nuisance and Negligence
Beyond specific environmental statutes, businesses can face lawsuits based on long-standing legal principles known as common law. These claims don’t rely on a specific regulation but on broader concepts of responsibility.
- Public Nuisance: This type of claim argues that a company’s actions have unreasonably interfered with a right common to the general public, such as the right to clean water.
- Negligence: A negligence claim asserts that a company failed to use reasonable care to prevent foreseeable harm. For example, a manufacturer could be considered negligent if it did not take standard precautions to prevent plastic pellets from spilling and contaminating a nearby waterway.
These traditional legal tools are being adapted to address modern environmental problems, including microplastic contamination.
Proactive Steps for Managing Microplastic Contamination Risk
Rather than waiting for a regulatory inquiry or a lawsuit, businesses can take proactive steps to manage their potential liability. A forward-thinking approach can protect both the environment and the company’s bottom line.
Consider implementing the following measures:
- Supply Chain and Operations Audit: Review your entire process, from the raw materials you receive to the waste you generate, to identify potential sources of microplastic release.
- Process Improvements: Invest in updated equipment and best practices to minimize the creation and shedding of plastic particles during manufacturing.
- Advanced Filtration: Implement and maintain effective water filtration systems to capture microplastics before they are discharged in wastewater.
- Comprehensive Documentation: Keep detailed records of your environmental compliance efforts, monitoring data, and any steps taken to reduce plastic waste.
These actions demonstrate a commitment to responsible corporate citizenship and can be invaluable in the event of a regulatory inspection or legal dispute.
Responding to Regulatory Inquiries and Litigation
If your company is contacted by an environmental agency or receives notice of a lawsuit related to microplastic contamination, a thoughtful and organized response is essential. Rushing to respond without a clear plan can create additional problems.
The goal is to address the issue head-on while protecting your company’s legal rights. This often involves gathering internal records, understanding the specific allegations, and working with legal counsel to formulate a response that is both accurate and strategic.
Microplastic Contamination Legal Responsibilities FAQs
Here are answers to some common questions that businesses have about the legal aspects of microplastic contamination.
What types of industries are most at risk for microplastic liability?
Industries that manufacture plastic goods, use plastic pellets (nurdles) as raw materials, or have significant plastic components in their products are often at higher risk. This can include textile manufacturers using synthetic fibers, cosmetics companies that use microbeads, and packaging facilities.
Can a company be held liable if its product creates microplastics after it’s sold?
This is an emerging area of law known as product stewardship. Some legal theories argue that manufacturers have a responsibility for the entire life cycle of their product. While challenging, claims could arise if a product is shown to shed an unreasonable amount of microplastics during normal use.
What is a “nurdle” and why is it legally significant?
Nurdles are small plastic pellets, about the size of a lentil, that serve as the raw material for most plastic products. Because they are small and easily transported by wind and water, they are a common source of plastic pollution. Spills of nurdles during transport or at a facility can lead to direct enforcement action under laws like the Clean Water Act.
How do state and federal microplastic laws interact?
Federal laws like the Clean Water Act set a baseline standard for environmental protection. However, states like California are free to enact more stringent regulations. A business must comply with all applicable federal, state, and local laws, and the strictest standard usually applies.
Does a general liability insurance policy typically cover microplastic pollution claims?
Many commercial general liability policies contain pollution exclusions that may bar coverage for claims related to microplastic contamination. It is important to have your specific policy reviewed to understand the scope of your coverage and any potential gaps.
Protect Your Business with Experienced Environmental Counsel
Addressing the complexities of environmental regulations requires careful planning and informed legal guidance. If your business is facing challenges related to water quality, regulatory compliance, or potential litigation over microplastic contamination, having an experienced legal team on your side is crucial.
At Tropea McMillan LLP, our attorneys provide comprehensive environmental counsel and litigation services to businesses in San Diego, Los Angeles, San Jose, and throughout California. We can help you understand your obligations and defend your interests. Contact us today at (866) 977-8921 or through our online form to discuss your situation.