Lack of enforcement

Plastic Soup Foundation research irrefutably shows that the internal, voluntary Operation Clean Sweep code that the plastics industry imposed on itself more than 25 years ago, has failed in all respects. We view the current Operation Clean Sweep as little more than greenwashing, akin to ‘the butcher who certifies his own meat’. The problems often start immediately outside the door and are visible to anyone that enters or exits the factory. 

There obviously seems to be little enforcement. The relevant government authorities have until recently largely ignored this type of pollution. As plastic is barely included in current regulations as a source of environmental pollution, it is not prioritised during environmental inspections and permit issuanceExisting environmental legislation is insufficient or not able to deal with and prevent the leakage of nurdles into the environment. 

It is unimaginable that a disaster such as the MSC Zoe happens thousand-fold every single day. Plastic Soup Foundation demands the plastics industry to comply with the law and is looking for ways to force the Government to adopt the enforcement role that it believes the Government has by law. 

Freedom of Information request

In November 2019, in line with the Freedom of Information Act, Plastic Soup Foundation submitted a request to DCMR, the joint environmental protection agency of the province of South Holland, and to 15 municipalities in the Rijnmond region. DCMR monitors 26,000 companies and checks companies for compliance. It is also commissioned by municipalities, the province and the central government to issue the necessary environmental permits.  

The purpose of the request was to get an insight into the environmental permit of the plastic manufacturer Ducor Petrochemicals in the Botlek industrial area of Rotterdam and into the degree of monitoring and enforcement by DCMR, the environmental protection agency. Plastic Soup Foundation requested various documents such as any correspondence between DCMR and Ducor, reports of on-site checks, and any decisions or warnings related to Ducor. 

The reason that Ducor was selected as the first company was related, firstly, to the thick carpet of nurdles on the embankment of Londenhaven dock, located close by, caused by years of pollution, and secondly, to its proximity to the North Sea. Many of the nurdles that flow from the factory into the harbour quickly end up in the North Sea and are never cleaned up. Our research showed enormous quantities of plastic granules at several places along the Caland Canal, the last leg of their journey to sea. 

Request for enforcement

In January 2020, environmental lawyers Rogier Hörchner and Faton Bajrami then submitted an enforcement request to DCMR. An enforcement request is an administrative legal tool that enables interested parties to request a competent authority to take action, if necessary with the intervention of a judge. 

In this case, it was a way to make DCMR aware of its responsibility and to force active monitoring. And ultimately of course, to force Ducor to clean and maintain the surroundings of the industrial area, and prevent, limit and address any environmental damage. As about half the manufactured plastics do not float in water and even floating nurdles can sink when covered in algae, for example, the enforcement request also covered checking the river sludge of the Port of Rotterdam for plastic pollution. 

This enforcement request is the first step in a series in which Plastic Soup Foundation directly urges the central Government, local authorities, large plastic producers and plastic recycling companies to take responsibility. 

A great success

Once it received the enforcement request, DCMR was quick to take action. When the regional environmental protection agency saw how polluted the Londenhaven and Brittanniëhaven docks and the Theemsweg were with nurdles, two months later Ducor was summoned to take measures to prevent any more manufactured granules from entering the factory grounds or the surrounding port area. Furthermore, the company was fined EUR 15,000 for each violation. 

Ducor Petrochemicals was the very first Dutch plastic manufacturer to be deemed responsible for structural plastic granule pollution. And it was also the very first time that sanctions such as those levied on Ducor were enforced in Europe. 

DCMR announced that it would also monitor other manufacturers, processors and users of plastic granules in the provinces of South Holland and Zeeland more stringently. The environmental protection agency called the dispersion of plastic in the environment a major societal problem and stated that it intends to work with Plastic Soup Foundation in the battle against plastic pollution. 

Joint research

DCMR also sent the enforcement request to the Omgevingsdienst Zuid-Holland Zuid (OZHZ, environmental service for south South Holland) and to Rijkswaterstaat (the executive arm of the Dutch Ministry of Infrastructure and the Environment) given their responsibilities over Natura 2000 areas and harbour beds respectively. Rijkswaterstaat rejected the request on the grounds that there was no evidence that there were plastic granules on the seabed.  

Plastic Soup Foundation still thinks it’s possible or even probable that polyethylene granules have sunk into the sludge at the bottom of the harbour and believes follow-up research is really needed. If it would turn out that there are indeed pellets at the bottom, Plastic Soup Foundation will knock again on Rijkswaterstaat’s door. 

OZHZ initially announced that no plastic granules were found in the Natura 2000 areas close by, but on 20 November 2020, the environmental agency proposed joint visit to the locations with Ducor and Plastic Soup Foundation where we had previously found nurdles, such as the beach at north Maasvlakte and the coastal strip at the Hook of Holland. It goes without saying that Plastic Soup Foundation quickly agreed. 

Deferment of fine

While Ducor recognises the problem and is serious about cleaning up and preventing nurdle pollution, it believes that DCMR was negligent in consulting it and carrying out an investigation. This prompted the company to approach the Council of State. In the case between Ducor and DCMRPlastic Soup Foundation was considered an interested entity. 

The Council of State, and thereafter the Provincial Executive in July 2020, judged that the involved entities should enter into dialogue. The fine imposed, to be paid should new nurdle leakage ensue, was temporarily suspended but is definitely still pending. The discussions have now started and Ducor has defined an action plan on which Plastic Soup Foundation commented. Whether the fine will be imposed depends on the measures that Ducor takes and if new trespasses will be committed. 

Similar court cases elsewhere

While the Ducor case was unique in Europe, environmental organisations and individuals in the USA have already gone down this route. And successfully too. In 2019, both a plastics manufacturer and a major distributor were accused of large scale plastic granule pollution. These were Formosa Plastics in Texas and Frontier Logistics in South Carolina.  

In Texas, Diane Wilson, a retired shrimp fisher, saw her surroundings become more and more polluted with plastic granules. She went to court and won the case at the end of 2019. As a ‘serial offender’, Formosa Plastics was fined USD 50 million for years of illegal dumping of billions of plastic granules in Lavaca Bay and other waterways. 

The company also issued a ‘zero discharge’ policy in which it promised that not even one nurdle will ever leak into the environment from the production process and that it will clean up any pollution it has caused. 

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