PITTSBURGH, PA.—At a press conference held on Oct. 3, National Environmental Law Center (NELC) attorneys announced the service of a formal notice of intent to sue Styropek USA, Inc., and its wholly owned subsidiary BVPV Styrenics LLC, alleging that the companies’ plastic-manufacturing facility in northwestern Pennsylvania is in chronic violation of the Clean Water Act (CWA).

Sent on behalf of Three Rivers Waterkeeper and PennEnvironment, the notice alleges that wastewater and stormwater discharged from the facility into Raccoon Creek, a tributary to the Ohio River, routinely contain quantities of the small plastic pellets (or “nurdles”) manufactured on site.

Located along a heavily industrialized stretch of the Ohio River approximately 20 miles outside Pittsburgh, the Styropek facility produces as much as 123,000 tons of expandable polystyrene nurdles each year. The nurdles Styropek manufactures are small, rigid spheres that measure up to 3 millimeters in diameter. The company’s customers eventually expand the nurdles into a moldable foam, colloquially referred to as “Styrofoam,” used for everything from coffee cups to coolers and packing materials.

Although small in size, nurdles discharged to waterways pose an outsize risk to the environment and human health. Lightweight nurdles frequently make their way into aquatic environments through drains and watercourses. Even purportedly non-toxic nurdles like those produced by Styropek can act as “toxic sponges,” attracting hydrophobic chemical toxins and bacteria and transporting them throughout aquatic environments. Studies establish that hundreds of fish species ingest such plastics, which then enter the food chain of humans and other animals.

The discharge of nurdles from the Styropek facility was first detected by Three Rivers Waterkeeper in September 2022, after the group began conducting monthly “nurdle patrols” of the Ohio River as part of its efforts to quantify plastic pollution in the region. When the patrols began, the group did not even know the Styropek facility existed. But staff soon noticed peculiar nurdles floating near the mouth of Raccoon Creek, and traced them to an underwater outfall they soon learned was from the Styropek facility. Three Rivers Waterkeeper staff quickly lodged complaints with the Pennsylvania Department of Environmental Protection and with Styropek itself. They described thousands of nurdles bubbling up from the company’s underwater outfall, floating along the surface, and covering aquatic vegetation. Both the agency and company investigated and soon acknowledged the issue, but the discharges continued. Then Three Rivers contacted PennEnvironment and NELC for help.

NELC’s notice letter alleges that Styropek violates the CWA in two ways. First, the facility operates pursuant to a permit issued under the CWA, and the permit identifies exactly which pollutants it can discharge. Because the permit does not authorize the discharge of nurdles, NELC’s notice alleges that the release of these substances into Raccoon Creek is an “unpermitted discharge of a pollutant,” a clear violation of the Act.

Second, Styropek’s permit forbids the facility from creating specific water quality problems. NELC attorneys allege the ongoing nurdle discharges violate prohibitions against (1) causing the accumulation of floating solids, and (2) discharging substances that are “inimical or harmful” to human, animal, plant, or aquatic life.

“Most Clean Water Act lawsuits use a company’s own publicly available monitoring reports to prove that it exceeded permitted limits on a pollutant,” explains NELC Attorney Matt Donohue, “but nurdles aren’t even mentioned in Styropek’s permit, so the violations seen here are easy for regulators and the company to overlook.”

“This case illustrates why plastic pollution can be so difficult to rein in,” he notes, “Without private citizens willing to invest their time and resources, this conduct probably goes unchallenged.”

Under the CWA, citizen plaintiffs may bring suit to enforce permit limits 60 days after providing formal notice to the violator and state and federal regulators. This gives the violator time to come into sustained compliance and allows the agencies to file their own suit if they choose.

If NELC attorneys bring suit against Styropek and BPVP, the suit will be filed in the U.S. District Court for the Western District of Pennsylvania, in Pittsburgh.