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.