Coastal Bend residents don’t need to go to the Pacific Ocean garbage island to know there is a problem with plastic pollution in our water. They only need to walk the beaches or take a canoe out to run across pre-production plastic pollution, euphemistically called “nurdles” by some.
These “primary” plastics have yet to be melted down or molded into secondary plastics like grocery bags or water bottles. Nurdles show up in our waters not because of littering. They are discharged from petrochemical facilities nearby due to lack of controls or as a result of transportation-related spills. Nurdles have devastating effects on our environment; they’re linked to decreased fertility in oyster populations (which are already particularly vulnerable in Texas), they act as toxic sponges and spread hyper-concentrated pollutants to other organisms and in ambient water, and aquatic life often confuse them for food, causing the bioaccumulation of both plastics and these harmful pollutants up the food chain.
The Texas Commission on Environmental Quality (TCEQ), which is under Sunset Review by the Texas Legislature, could have begun addressing this problem last year, but it shirked its job. The agency made the excuse that it may not have the authority to regulate plastics as a “toxic substance”; even though they have the full and exclusive authority to implement surface water quality standards in Texas.
The federal Clean Water Act is very clear: once state agencies like the TCEQ have the authority to regulate their surface waters, that authority is broad. The Texas Water Code also gives clear, exclusive, sweeping authority to TCEQ to establish surface water quality standards. Under both federal and state law, it’s obvious that TCEQ could start a rulemaking process at any time to regulate pre-production plastics. When the Sunset Advisory Commission staff report called TCEQ a “reluctant regulator,” this is exactly what they were talking about.
The Texas Legislature could address this problem too by passing legislation explicitly prohibiting nurdle pollution. While we, and many Coastal Bend residents, would support that, the likelihood of it passing is slim. The plastic industry has extraordinary special interest power, and it likely used it to influence TCEQ’s weak decision. They’d most likely do the same at the Legislature. It would also reinforce the false excuse TCEQ gave when they claimed they couldn’t do it.
Another solution that has a better chance at passing is simply a bill to reinforce that TCEQ already possesses this authority by adding the phrase “pre-production plastics” to the section of the water code that details what TCEQ should consider during updates to the surface water quality standards. Then TCEQ would have no excuse not to act.
In 2021, during the last legislative session, Rep. Todd Hunter introduced a bill aiming to address nurdle pollution. As a long-time representative of the Coastal Bend, it’s clear that he understands that this issue affects coastal communities. Similarly, Sen. Judith Zaffirini filed the Senate companion bill last session, and is aware of the wide-range of harms that these “toxic sponges” can have on our state. Last session, both bills died in committees without hearings.
The 88th legislature offers a second chance to tackle this problem, especially with all eyes on TCEQ as it finishes its sunset process.
Given the stark political polarization occurring in our Texas Legislature and across the country, this is an opportunity for a rare moment of bipartisan agreement that would be more than just symbolic. Rep. Hunter and Sen. Zaffirini have the chance to demonstrate to their colleagues and every Texan that our legislature can still come together on something that protects our communities and environment.
Alex Ortiz is an attorney and the water resources specialist for the Sierra Club Lone Star Chapter. Before getting his law degree from Tulane, Alex spent much of his childhood on the water in Corpus Christi, Lago Vista, and Del Rio.
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