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Microplastic Pollution in the Great Lakes: State, Federal, and Common Law Solutions

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Microplastic Pollution in the Great Lakes: State, Federal, and Common Law Solutions ARTICLE Microplastic Pollution in the Great Lakes: State, Federal, and Common Law Solutions NICHOLAS J. SCHROECK* The world’s waterbodies have experienced the effects of plastic pollution for many years. Shorelines and beaches around the world have long been littered with plastic trash. In recent years, the development of large garbage patches in the world’s oceans, including the Eastern Pacific Ocean garbage patch, which has received extensive media coverage,1 and another somewhat smaller one in the Atlantic,2 have grabbed our collective attention. Scientists and researchers have recently shifted their focus to the Great Lakes to determine the extent of plastic pollution in the world’s largest source of fresh water. The first major scientific paper on Great Lakes plastic pollution was published in the Marine Pollution Bulletin, and the results are deeply troubling. The study, a collaborative effort between the 5 Gyres Institute and State University of New York Fredonia, revealed high concentrations of plastics, particularly microplastics, in the Great Lakes.3 Microplastics are those plastics that are less than one millimeter in diameter.4 Microplastics can be separated into two categories. The first category constitutes plastics that are less than five millimeters long and come from * © 2015, Nicholas J. Schroeck. Assistant Clinical Professor, Director of Transnational Environmental Law Clinic, Wayne State University Law School. Thank you to Justin Sterk, Wayne State University Law School (May 2016) for his excellent research assistance. And special thanks to the students at the University of Detroit Mercy Law Review for putting on a wonderful symposium on the Public Trust Doctrine and Great Lakes hazards. 1. Andrew Turgeon, Great Pacific Garbage Patch, NATIONAL GEOGRAPHIC, http://education.nationalgeographic.com/education/encyclopedia/great-pacific-garbage- patch/?ar_a=1. 2. Richard A. Lovett, Huge Garbage Patch Found In Atlantic Too, NATIONAL GEOGRAPHIC (Mar. 2, 2010), http://news.nationalgeographic.com/news/2010/03/100302- new-ocean-trash-garbage-patch/. 3. Marcus Eriksen et al., Microplastic pollution in the surface waters of the Laurentian Great Lakes, 77 Marine Pollution Bulletin 177, 1–2 (2013). 4. Id. 274 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 93:273 larger pieces of plastic that have broken down over time.5 The second category, and the subject of this paper, is manufactured microplastics, such as plastic pellets used as “micro-scrubbers” in face wash.6 These manufactured microplastics comprised 90% of the plastics found in the 5 Gyres Institute study, with an average 43,000 microplastic particles found per square kilometer and the largest concentration of such particles being 466,000 particles per square kilometer.7 While microplastics were found in all of the Great Lakes, particularly high concentrations were observed in Lake Erie.8 The microplastics identified in the 5 Gyres Institute study share many properties with the plastic microbeads found in common skin care products, particularly exfoliants, indicating that such products are a primary source of the pollution.9 Like the plastic exfoliating beads found in skin care products, many of the plastic beads found in Great Lakes waters are colored blue or green.10 Personal care products are designed to be washed down the drain, and the plastic microbeads are too small to be captured by the 1,400 American and Canadian wastewater treatment plants that discharge 4.8 billion gallons of effluent into the Great Lakes basin every day.11 Microplastic pollution is damaging to waterbodies for a number of reasons and is estimated to cause $13 billion each year in economic damages worldwide.12 Perhaps most significantly, once microplastics enter a waterbody, their small size makes it virtually impossible for them to be 5. Marine Debris Program, NAT’L OCEANIC AND ATMOSPHERIC ADMIN., http://marinedebris.noaa.gov/discover-issue/types-and-sources (last revised Dec. 31, 2015). 6. Id. 7. Eriksen, supra note 3. 8. Carol Bailey, Micro-Plastics in High Concentrations found in Lake Erie, UNCOVER MICHIGAN (Apr. 23, 2015, 1:04 P.M.), http://uncovermichigan.com/content/23959-micro-plastics-high-concentrations-found-lake- erie. 9. Ari Phillips, Tiny Plastic Microbeads Are Being Banned Across The Country For ‘Causing Mega-Problems’, THINK PROGRESS (May 19, 2015, 8:00 A.M.), http://thinkprogress.org/climate/2015/05/19/3659921/tinyplasticmicrobeadsgettingbannedin numerousstates/. 10. Id. 11. Brian Bienkowski, Only half of drugs, other newly emerging contaminants removed from sewage, ENVTL. HEALTH NEWS (Nov. 22, 2013), http://www.environmentalhealthnews.org/ehs/news/2013/november/emerging- contaminants-report. 12. Plastic Waste Causes Financial Damage of US$13 Billion to Marine Ecosystems Each Year as Concern Grows over Microplastics, UNITED NATIONS ENV’T. PROGRAMME (June 23, 2014), http://www.unep.org/newscentre/Default.aspx?DocumentID=2791&ArticleID=10903&l=en . Spring 2016] Microplastic Pollution in the Great Lakes 275 removed.13 Microplastics draw toxic chemicals such as PCBs from waterbodies and concentrate these compounds in potentially dangerous amounts.14 Microplastics are often eaten by birds, fish, and aquatic organisms, causing damage not only to the animals themselves but also potentially to humans who consume exposed animals.15 The scariest threat that microplastics may pose, however, is that many potential dangers are not yet known or are not yet quantifiable because plastics degrade so slowly, remaining in the water for many years.16 Further, if microplastics become concentrated in surface waters, they could potentially re-enter public drinking water supply and carry with them any chemicals the microplastics absorbed along the way.17 I. STATE RESPONSES TO THE MICROPLASTIC THREAT A. Introduction To date, nine states have enacted bans on the sale of products that contain plastic microbeads, while five other states, and the Canadian government, have proposed legislation to do the same. In June 2014, Illinois became the first state to ban cosmetics that contain microplastics.18 Products containing microplastics in Illinois have been removed from shelves, including several brands of exfoliating face wash.19 Other states that have since enacted bans are New Jersey, Colorado, Indiana, Maryland, Maine, Wisconsin, Connecticut, and California.20 Furthermore, many other states, and the Government of Canada, have proposed legislation that 13. John Flesher, Great Lakes teeming with tiny plastic fibres, CBC NEWS (Jan. 12, 2015), http://www.cbc.ca/news/canada/thunder-bay/great-lakes-teeming-with-tiny-plastic- fibres-1.2897780. 14. John Schwartz, Scientists Turn Their Gaze Toward Tiny Threats to Great Lakes, N.Y. TIMES, Dec. 14, 2013, at A24, http://www.nytimes.com/2013/12/15/us/scientists-turn- their-gaze-toward-tiny-threats-to-great-lakes.html?_r=1. 15. Charlotte Dormer, Microplastics endanger ocean health, PLANET EARTH ONLINE (May 17, 2012), http://planetearth.nerc.ac.uk/news/story.aspx?id=1229&cookieConsent=A. 16. Unseen Threat: How Microbeads Harm New York Waters, Wildlife, Health And Environment, OFFICE OF THE N.Y. STATE ATT’Y. GEN., https://ag.ny.gov/pdfs/Microbeads_Report_5_14_14.pdf. 17. Jeremy Carroll, Researcher alarmed about microplastics in Great Lakes, PLASTICS NEWS (Sept. 11, 2013), http://www.plasticsnews.com/article/20130911/NEWS/130919969/researcher-alarmed- about-microplastics-in-great-lakes. 18. Melissa Hellmann, Illinois Bans Cosmetics Containing Microbeads, TIME (June 24, 2014), http://time.com/2916132/microbeads-microplastic-cosmetics-illinois-ban/. 19. Id. 20. Assemb. B. 888, 2015-2016 Leg. Reg. Sess. (Cal. 2015); COLO. REV. STAT. ANN. § 25-5-1203(1) (West 2015); CONN. GEN. STAT. ANN. June Sp. Sess., P.A. 15-5, § 50 (2015); IND. CODE ANN. § 13-18-24-5 (West 2015); ME. REV. STAT. tit. 38, § 419-D (2015); MD. CODE ANN., ENVIR. § 9-2002 (West 2015); N.J. STAT. ANN. § 58:10A-70(a) (West 2015); WIS. STAT. ANN. § 299.50 (West 2015). 276 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 93:273 would ban sales of products containing microbeads.21 This section will examine each state ban and analyze their similarities and differences. B. Illinois On June 9, 2014, Governor Pat Quinn signed legislation that made Illinois the first state in the country to ban the manufacture and sale of personal care products containing microbeads.22 Codified at ILCS Act 5, Section 52.5, the Illinois General Assembly found that microbeads “pose a serious threat to the State’s environment”23 and “have been documented to collect harmful pollutants already present in the environment and harm fish and other aquatic organisms that form the base of the aquatic food chain.”24 The statute bans the manufacture-for-sale of a personal care product, except an over-the-counter drug, that contains synthetic plastic microbeads after December 31, 2017,25 and the acceptance for sale of the same after December 31, 2018.26 The exception for over-the-counter drugs ends for manufacturing-for-sale and acceptance-for-sale on December 31, 2017, and 2018, respectively.27 Illinois defines synthetic plastic microbeads as any intentionally added, non-biodegradable, solid plastic particle measured less than five millimeters in size and that is used to exfoliate or cleanse in a rinse-off product.28 Illinois provides for fines of up to $1,000 for a first violation and a fine of up to $2,500 for any further violations.29 C. New Jersey Effective March 23, 2015, New Jersey implemented its own plastic- microbead ban, which prohibits the production or manufacture of a personal care product containing synthetic plastic microbeads, except for an over-the-counter drug, by January 1, 2018.30 By January 1, 2019, the ban also applies to the sale, offer for sale, or offer for promotion of personal care products containing synthetic plastic microbeads, except for over-the-counter drugs, and the production or manufacture of over-the- counter drugs that contain synthetic plastic microbeads.31 Finally, by 21. See Doug Farquhar, States Continue Moves To Ban Microbeads, NCSL (Oct.
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