Microplastic Pollution: A Macro Problem

The problem of plastic pollution is more focused on by the public than microplastic pollution. Many think that both are one and the same, but inherently they are different. More efforts should be made to recognise this problem and to engage in it directly. 

I.             INTRODUCTION 
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Microplastics are scientifically defined as plastic fragments that are less than 5mm[1] or, in simpler terms, they are equivalent to tiny pieces of plastic that pollute the environment. Most do not know that microplastics can be further classified into two, which are primary and secondary microplastics.

Primary microplastics are commonly manufactured for industrial or domestic use. They include plastic pellets, scrubbing agents in toiletries, and exfoliants in facial wash. Although seldom heard of, primary microplastics also include microfibers that originate from the abrasion of synthetic textiles during washing. An average UK washing load of 6kg (13lb) of fabric can release 140,000 fibers from polyester-cotton blend; nearly half a million fibres from polyester; and more than 700,000 fibres from acrylic.[2] On the other hand, secondary microplastics constitute approximately 69-81% of microplastics in the marine environment. Secondary microplastics originate from the photodegradation of plastic due to prolonged exposure to ultraviolet (UV) rays.[3] More often than not, they are caused by the mismanagement of plastic wastes on both land and sea.

Over the years, microplastic have gradually shown its detrimental effects. Studies have shown that when microplastics are ingested by fish-eating birds, marine mammals, sea creatures, or even zooplankton, they will be passed up the ocean food chain and will eventually end up on our dinner plates.[4] Microfibers have also been found in tap water across the world with the United States recoding the highest contamination rate of 94%, followed by 76% in our neighbouring country, Indonesia.[5] This is alarming because microplastics harbour pathogens and toxic chemical additives, jeopardizing  human health.[6] In addition, microplastics are capable of endanering sensitive coastal habitats by increasing the risk of dispersal of aggressive invasive species.[7] Considering the lethal effects of microplastics, it is clear that microplastic pollution has become a prevalent global issue that warrants cooperation among nations. Therefore, this article seeks to examine the legal safeguards against microplastic pollution, both internationally and locally.
 
II.             INTERNATIONAL TREATIES 

As a means of tackling global environmental issues, states enter into international treaties that serve as guidelines for national laws. This section examines the international environmental conventions that address microplastic pollution, particularly those to which Malaysia is a signatory.

A.     United Nations Convention on the Law of the Sea 1982 (UNCLOS) 

Known as the Law of the Sea, UNCLOS was established to govern the use of the world’s oceans. Provisions relevant to microplastic pollution are enunciated under Part XII, which obliges states to take necessary measures to address marine pollution from any source.[8] Clearly, the scope of UNCLOS is not only limited to microplastic pollution arising from direct waste dumping at sea, but also extends to cover land-based discharges.[9] This is further evidenced by Articles 207 and 213, which specifically require states to adopt regulations for pollution caused by ‘land-based sources, including rivers, estuaries, pipelines and outfall structures’. Moreover, states are obliged to monitor primary microplastic production, given the ease in which plastics may move across marine boundaries.[10]

Although UNCLOS mandates states to regulate microplastics, its provisions nevertheless lack the requisite binding power to address microplastic pollution. Article 207 does not compel states to enact pollution prevention laws in compliance with international rules, but affords national discretion in general law-making.[11] Furthermore, while primary microplastics may come within state control, regulating secondary microplastics broken down from plastics already present in the ocean is difficult.[12]

B.     Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal 1989 (Basel Convention)

The Basel Convention[13] (“the Convention”) is an international treaty that aims to prevent illegal transboundary movement of hazardous or other wastes, where one state allows waste transfer across international boundaries into another state’s territory without notifying and obtaining consent from the latter.[14] To determine whether microplastic pollution falls within the ambit of the Convention, we have to first examine if microplastics qualify as ‘hazardous wastes’ or ‘other wastes’. Article1.1 of the Convention defines ‘hazardous wastes’ as wastes in any category under Annex I and possessing hazardous characteristics under Annex III, or hazardous as defined by the local legislation of states. However, Annex I excludes mixed plastic wastes that engender microplastics. Hence, microplastics are not considered as hazardous wastes.[15]On the other hand, Article 1.2 defines ‘other wastes’ as wastes belonging in any Annex II category, being either collected household wastes or residues from incineration of such wastes. While apparently encompassing all microplastics, the definition only applies to wastes that have been collected and not to those randomly disposed into the environment.[16] Nevertheless, with proper interpretation, Article 1.1(b) allows states to designate general plastic wastes as hazardous wastes within their respective domestic laws. The state may then take action against other states from where the microplastics originate. If it succeeds, the latter state has an obligation under Article 9.2 to take back or dispose of the said wastes.
 
III.            POSITION IN MALAYSIA
 
In this section, we will discuss laws that are applicable to prevent or control microplastic pollution in Malaysia.  Regrettably, Malaysia does not have laws that directly address the issues that may arise from microplastic pollution. Thus, other relevant legislation which may capture microplastics pollution are highlighted.

A.    Federal Constitution 

Despite the absence of specific provisions on environmental protection in the Federal Constitution (FC),  other provisions implicitly guarantee such right[17] and can be referred to in addressing microplastic pollution.

For example, the Ninth Schedule[18] allows the Federal Government to adopt international treaties aimed at combating plastic pollution into our local laws. Similarly, State Governments have the exclusive jurisdiction to pass laws to control usage of land, and pollution control via waste management.[19] The Federal and State Governments also share jurisdiction to pass laws in relevant areas.[20] Sadly, these specific jurisdictions have resulted in incompetent sectoral laws  in combating transboundary environmental pollution.

B.     International Conventions 

In the absence of laws directed at microplastics, members of a working group meeting of the Basel Convention considered viable options within the Convention to deal with the matter.[21] A milestone was thus achieved as world leaders formally recognised microplastics as a form of sea pollutant. UNCLOS was also given the capacity to address microplastic pollution.[22] Malaysia, a party to the Convention since October 1993, had committed herself in addressing the issue by passing several amendments including Part 4A in the Environmental Quality Act 1974.[23] The amendment was aimed at reducing the pollution impact due to waste management.[24]

C.     Local Legislations 

The Environmental Quality Act 1974 (EQA) is the primary law governing pollution[25]  by controlling the pollutant discharge level[26] via a licensing system.[27] The control on the level of pollutant is based on the effluent standard or acceptable conditions laid down under S.21 of the EQA. ‘Waste’ has been widely defined to cover both hazardous and non-hazardous plastic waste regardless of its source.[28] Unfortunately, unlicensed and improper waste disposal only becomes an offence if it is offensive or obnoxious to human beings, affects underground water, or detrimental to any beneficial use of soil.[29]

S.25 also makes it an offence to dump plastic wastes in any manner that would pollute inland water.[30] EQA is thus flawed since it can only address pollution when humans are affected. Although EQA does not deal with microplastic pollutants directly, pursuant to S.21, our Minister has the power to include acceptable conditions to discharge microplastics into river and soil. S.29 may be invoked to prohibit such discharge into Malaysian waters without a license. As a suggestion, levels of microplastic pollutants may be added as one of the specific parameters in the Water Quality Index which was established under the national water monitoring network to evaluate the status in the quality of river water. Nonetheless, it will be unsustainable in the long run as microplastics are hardly decomposable. A proper system to treat microplastics is still required.

S.121 of the Water Services Industry Act 2006[31] (“WSA”) prohibits contaminating the water supply system and endangering any person’s life while S.122(1) enlists several wrongful acts relevant to illegal plastic disposal. Despite the Act being silent on microplastics, the National Drinking Water Quality Surveillance Programme is a practical alternative to ensure a water supply free from microplastic pollutants. The Solid Waste and Public Cleansing Management Act 2007,[32] which aims to ensure law and policy uniformity in managing controlled solid waste and public cleansing, combats plastic pollution through imposition of proper management and control of solid waste generators via licenses under Part 4 and Part 8.[33] ‘Solid waste’ is widely defined to cover wastes excluded under EQA’s ‘scheduled waste’. [34]

The Street, Drainage and Building Act 1974[35] (“SDBA”) defines ‘sullage’ to include any household waste liquids discharged from any bath, shower, or basin.[36] One of the primary sources of microplastic pollutants are microbeads derived from personal care products, i.e. sullage. SDBA ensures treatment of sullage before being released into Malaysian waters. It is recommended that Regulation 7 of the Environmental Quality (Sewage) Regulations 2009[37] be amended to include concentration of microplastics acceptable within sewage discharge.

Despite the existence of aforementioned Acts, their effectiveness in countering microplastic pollution is subject to the capability of our sewage system in treating microplastic pollutants.
 
IV.            PRESENT EFFORTS AND EFFECTIVENESS 

This section will highlight on the most significant efforts taken in the local and international context to deal with microplastic pollution.

A.     Plastic Bag Levy in Selangor and Penang 

Selangor and Penang have imposed a 20-sen charge on any plastic bag usage. The program started in 2011 to reduce the use of plastic bags when shopping at retail stores. Results have shown that 52.3% consumers have replaced plastic bags with reusable grocery bags or other means to carry purchased goods while 47.7 % of consumers would rather pay than carrying their groceries. The low effectiveness of the program is due to the lack of public participation and ineffectiveness in promoting the culture of bringing your own bags to the supermarket. Subsequently, the government has introduced more campaigns throughout Malaysia to promote a plastic-free culture, such as the No Plastic Bag Day.

B.     Clean Coastal Index (CCI) by Maritime Institute of Malaysia (MIMA) 

In combating marine litter and microplastics, MIMA has established a CCI to evaluate our coastal areas’ actual cleanliness. Adopted recently for monitoring purposes in Selangor, plastic debris was discovered to be the major component of beach debris.[38] The higher the score of the index, the more polluted the beach is. Based on the established baseline CCI for sampled recreational sites, Pantai Cenang in Langkawi recorded the lowest index at 1.08 which indicated that the beach was free of plastic debris. Meanwhile, Pantai Desaru in Johor recorded the highest index at 7.11 which indicated serious plastic pollution. Such data allows us to monitor Malaysian coastal areas and take active measures to combat microplastic pollution. Additionally, publishing and updating the index monthly or quarterly creates transparency on actual coastal cleanliness in the country, especially of recreational beaches. This increases competitiveness amongst designated concessionaires in maintaining cleanliness of their jurisdictional areas. Annual readings are also taken by MIMA to reduce plastic pollution on coastal beaches.[39]

C.     Basel Convention 

According to its work programme for the biennium of 2018 and 2019, there will be an Open- ended Working Group (OEWG) to consider relevant options available under the Convention to further address marine plastic litter and microplastics. The Convention provides the guidelines for participating countries to develop efficient strategies in curbing microplastic pollution. These countries will also receive guidance from their respective regional coordinating centres which will initiate projects and meetings in light of their expertise.

Up until now, ongoing seminars and workshops have been held in the Mediterranean and Barcelona in November 2017 and April 2019 respectively to propose strategies for management of marine litter and microplastics. The encouragement has persuaded other regional centers in Slovakia and Brazil to organise activities on promotion of awareness, policy, technical assistance, and capacity building regarding microplastics. While hundreds of projects are ongoing throughout the world, the regional centre for South East Asia, located in Indonesia, still focuses on e-waste. No projects on microplastics have been initiated thus far.[40]
 
V.            CONCLUSION 

As compared to plastic pollution, further research is yet to be done on the impacts of microplastic pollution. While certain laws govern the prevention of waste pollution of the marine environment, its effectiveness remains uncertain. For instance, from the international perspective, there is no convention directly aimed at solving microplastic pollution. Although UNCLOS allows states to permit, regulate, and control dumping in consideration of other states which may be adversely affected due to their geographical situation. Microplastic pollution remains especially hard to control since the source of pollution cannot be determined accurately.

In the local context, most legislations merely complement the EQA instead of being independent in terms of handling microplastic pollution. Though microplastics are ‘wastes’ according to the EQA, it is incomprehensive as it disregards pollution affecting the environment as a whole, including the wildlife. The Minister’s discretion in deciding ‘acceptable conditions’ and providing leeway for discharge of pollutant without a license also remains ambiguous.

Despite evident plastic threats in our environment, present efforts remain inadequate to address their mitigation. Thus, the government should enact environmental laws dedicated to microplastics. In terms of reducing primary microplastic pollution, we suggest that the government enact specific laws banning the use of plastic microbeads in consumers’ products. As for microfibre in clothing, the government should improve our wastewater treatment plants to enhance better filtration of microplastics from entering waters. Emulating the imposition of levy on plastic bags, similar levies should be placed on plastic straws and cutleries. Single-use plastic items such as plastic cups or lids should also be gradually banned. The public should be encouraged to maintain a plastic-free lifestyle as far as possible by making metal, glass or wooden straws readily available in markets. Incentives and rewards should be given to those who handover their clothes made of synthetic fibres to retail stores.

As for secondary microplastics, it is common for the authorities to turn a blind eye to the severe littering in Malaysia. Thus, not only should penalties for littering be increased, but also better law enforcement on a larger scale. Big corporations discharging plastic wastes into waters should be subjected higher penalties, such as a certain percentage of total profits to deter them from irresponsible plastic disposals.
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Ultimately, laws will remain laws until humans alter their mindsets, especially when it comes to reducing and recycling plastics.

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Written by Shazwan Abazah, Donna Bong, Jean Lee and Ng May, final year law students of the Faculty of Law, University of Malaya. 

Edited by Illianie binti Mohd Taib. 

Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.

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Footnotes:

[1] Arthur, C., Baker, J., & Bamford, H., “Proceedings of the International Research Workshop on the Occurrence, Effects, and Fate of Microplastic Marine Debris”, 9-11 September 2008. (2009).

[2] Gill, V., “Dirty Laundry: Are Your Clothes Polluting the Ocean?”, BBC News, 6 July 2017, 15 April 2019 <https://www.bbc.com/news/science-environment-40498292>.

[3] Cole, M., Lindeque, P., Halsband, C., & Galloway, T. S. (2011). Microplastics as contaminants in the marine environment: a review. Marine pollution bulletin, 62(12), 2588-2597. https://doi.org/10.1016/j.marpolbul.2011.09.025

[4] GESAMP (2015). Sources, Fate and Effects of Microplastics in The Marine Environment: A Global Assessment. Kershaw, P. J. (Ed.). GESAMP Reports and Studies, No. 90, 46.

[5] Carrington, D., “Plastic Fibres Found in Tap Water around The World, Study Reveals”, The Guardian, 6 September 2017, 15 April 2019 <https://www.theguardian.com/environment/2017/sep/06/plastic-fibres-found-tap-water- around-world-study-reveals>.

[6] Channel News Asia, “Toxic Bacteria Found on Microplastics along Singapore’s Coastline”, 11 February 2019, 15 April 2019 <https://www.channelnewsasia.com/news/health/toxic-bacteria-micro-plastics-singapore-beach-nus- coral-reefs-11229924>.

[7] See footnote 4 above at 52.

[8] United Nation Convention on the Law of the Sea 1982, Articles 194(1) and 194(4).

[9] Graney, G., “Slipping through the Cracks: How Tiny Plastic Microbeads are Currently Escaping Water Treatment Plants and International Pollution Regulation”, (2016) 39 Fordham International Law Journal at 1023.

[10] United Nation Convention on the Law of the Sea 1982, Article 194(2).

[11] See footnote 9 above.

[12] See footnote 9 above.

[13] Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal 1989 (Basel Convention).

[14] Basel Convention, Articles 2 and 9.1.

[15] Tickell, O., “International Law and Marine Plastic Pollution: Holding Offenders Accountable”; Artists Project Earth, February 2018, 15 April 2019 <http://1oskh83h9azl38imjs88cq5u.wpengine.netdna-cdn.com/wp- content/uploads/2018/02/OPLI-online-final.pdf>.
 
[16] See footnote 15 above.

[17] Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 1 MLJ 261, at 289: “’life’ in Art 5 includes the
“…right to live in a reasonably healthy and pollution free environment”.

[18] Federal Constitution, Article 74.

[19] Federal Constitution, Schedule 9, List 2, State List, Item 2 and Item 4, excluding the Federal Territories of Kuala Lumpur, Putrajaya and Labuan.

[20] Federal Constitution, Schedule 9, List 3, Concurrent List, Item 5 (town and country planning), Item 7 (public health, sanitation and the prevention of diseases) and Item 8 (drainage and irrigation).

[21] United Nations. Open-ended Working Group of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Eleventh Meeting, Report on Possible Options Available under the Basel Convention to Further Address Marine Plastic Litter and Microplastics, 8 May 2018, at 2.

[22] See footnote 21 above at page 3.

[23] Environmental Quality Act 1974 (Act 127).

[24] Basel Convention, Article 4(2)(c).

[25] See footnote 23 above at S.1(1).

[26] See footnote 23 above at Part 4 on Prohibition and Control of Pollution.

[27] Environmental Quality Act 1974, S.10.

[28] Environmental Quality Act 1974, S.2.

[29] Environmental Quality Act 1974, S.24.

[30] Environmental Quality Act 1974, S.2. “Inland water” refers to any reservoir, pond, lake, river, stream, canal, drain, spring or well, or any part of the sea above the low water line along the coast, or any other body of natural or artificial surface or subsurface water

[31] Water Services Industry Act 2006 (Act 655).

[32] Solid Waste and Public Cleansing Management Act 2007 (Act 672).

[33] Maizatun, M. (2011). Environmental Law in Malaysia. The Netherlands: Aspen Publishers, Kluwer Law International.

[34] Solid Waste and Public Cleansing Management Act 2007, S.2.

[35] Street, Drainage and Building Act 1974 (Act 133),

[36] Street, Drainage and Building Act 1974, S.3.

[37] Environmental Quality (Sewage) Regulations 2009 (P.U. (A) 432).

[38] MIMA Webmaster, “Towards Effective Monitoring of Plastic Pollution: Application of The Clean Coast Index (CCI) for Coastal Cleanliness Monitoring and Assessment. Shah Alam, Selangor: Maritime Institute of Malaysia”, 14 December 2017, 15 April 2019 <http://www.mima.gov.my/my/senarai-berita/245-towards-effective-monitoring- of-plastic-pollution>.

[39] Cheryl Rita Kaur and Ainun Jaabi, “Marine Plastic Pollution and Fisheries : Making Sense of The Environmental Issue and Implications ( MIMA’s Online Commentary on Maritime Issues)”, SEA VIEWS, 15 December 2017, 15 April 2019 https://r.search.yahoo.com/_ylt=Awrxgupasp5dbScARAsPQgx.;_ylu=X3oDMTBycWJpM21vBGNvbG8Dc2czBHBvcwMxBHZ0aWQDBHNlYwNzcg--/RV=2/RE=1570710235/RO=10/RU=http%3a%2f%2fwww.mima.gov.my%2findex.php%2fresearch%2fcoastal-and-marine-environment%2fsea-views-cmer%3fdownload%3d330%3amarine-plastic-pollution-and-fisheries-making-sense-of-the-environmental-issue-and-implications/RK=2/RS=tsLrdMGKysEGpTWmLiYhHmJl8r4->.

[40] Jane Patton, “Open Ended Working Group of the Basel Convention”, Progress on Plastics Update Issue 6 (September 2018) 1-8, 6 September 2018, 15 April 2019 <https://www.ciel.org/wp- content/uploads/2018/06/Progress-on-Plastics-Update-Issue-6-Basel-OEWG-6-Sept-2018.pdf>.