I. The Prohibition
On October 21, 1976, Congress passed the Resource Conservation and Recovery Act to address what it described as the increasing problems the nation faced from its growing volume of municipal and industrial waste. The statute’s solid waste program, codified at 42 U.S.C. sections 6941 through 6949g, sets criteria for municipal solid waste landfills and other solid waste disposal facilities. And it does one thing without qualification: it prohibits the open dumping of solid waste.1
The prohibition is stated at 42 U.S.C. section 6945(a), which carries the unadorned heading “Closing or upgrading of existing open dumps”:
“Upon promulgation of criteria under section 6907(a)(3) of this title, any solid waste management practice or disposal of solid waste or hazardous waste which constitutes the open dumping of solid waste or hazardous waste is prohibited.”2
Three elements. Three questions. The statute asks what the waste is, what the practice is, and whether the practice is open dumping. It does not ask where the dump is located. It does not ask how deep the water is. It does not require the dump to have a gate, a sign, a scale house, or a posted set of tipping fees. It asks one question: is solid waste being dumped in the open?
Subsection (b) of the same provision is titled “Inventory.” It directs the Administrator to publish an inventory of all open dumps in the United States. The provision assumes that open dumps are countable and listable. It assumes a universe of dumps small enough to fit in a publication. The statute was written for dumps measured in acres. The Pacific was not consulted.
II. What the Statute Calls Waste
A prohibition on dumping solid waste is only as broad as the definition of solid waste. Congress made the definition broad. At 42 U.S.C. section 6903(27), “solid waste” means, in relevant part, “any garbage, refuse, sludge… and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities.”3
The operative phrase is “other discarded material.” The statute does not require the material to be useless, valueless, or unrecyclable. It does not require the material to have been formally consigned to a waste stream. It requires only that the material have been discarded. A plastic bottle floating in the Pacific has been discarded. A fishing net drifting in the North Pacific Subtropical Gyre has been discarded. A toilet seat, of which at least one has been documented in the accumulation zone, has been discarded with unusual thoroughness.4
The material need not be solid in the colloquial sense. The statute expressly includes liquids and semisolids. But the plastic in the Pacific qualifies under the plainest reading: it is solid, it is discarded, and it results from industrial, commercial, and community activities. Ninety-two percent of the mass in the ocean’s largest accumulation zone consists of objects larger than five millimeters: crates, bottles, buoys, and above all fishing nets.4
The Environmental Protection Agency’s own summary of the statute is unhedged: the solid waste program under Subtitle D “prohibits the open dumping of solid waste,” and RCRA, the agency states, “banned all open dumping of waste.”5
III. What a Lawful Landfill Requires
Open dumping is prohibited, but landfilling is not. Congress drew the line between the two, and the Environmental Protection Agency drew it in engineering specifications. A municipal solid waste landfill that wishes to operate lawfully must satisfy the criteria at 40 CFR Part 258. The requirements are not aspirational. They are measured in mils, centimeters, and years.
First, the liner. New landfill units must be constructed with a composite liner: an upper component of flexible membrane liner at least 30 mils thick (60 mils for high-density polyethylene), installed in direct and uniform contact with a lower component of at least two feet of compacted soil with a hydraulic conductivity of no more than 1 x 10-7 centimeters per second.6
Second, the leachate collection system. The unit must include a leachate collection system “designed and constructed to maintain less than a 30-cm depth of leachate over the liner.” Thirty centimeters. The regulation measures the permissible puddle on top of the liner to the centimeter, and the answer is less than one foot.6
Third, groundwater monitoring. Subpart E of the same part requires a monitoring program for the uppermost aquifer beneath the unit, with a point of compliance located no more than 150 meters from the waste management unit boundary, on land owned by the owner of the unit.7
Fourth, closure and post-closure care. Sections 258.60 and 258.61 require a written closure plan, a final cover, and thirty years of post-closure monitoring and maintenance after the last load of waste is received.8
These are the conditions under which solid waste may lawfully be placed in the ground in the United States: lined, drained, monitored, and watched for thirty years after closing. The conditions under which 80,000 metric tons of it currently sit in the Pacific are none of these.
IV. The Inventory
In March 2018, a team led by Laurent Lebreton of The Ocean Cleanup published the most comprehensive survey ever conducted of the Great Pacific Garbage Patch, the accumulation zone in the North Pacific Subtropical Gyre where the ocean’s rotating currents concentrate floating debris. The expedition crossed the debris field with thirty vessels simultaneously and scanned more than 300 square kilometers of ocean surface with a C-130 Hercules fitted with multispectral sensors. It collected 1.2 million plastic samples.9
The results, published in Scientific Reports: the patch, defined as the area with more than 10 kilograms of plastic per square kilometer, measures 1.6 million square kilometers, three times the size of France. Accumulated in this area are 1.8 trillion pieces of plastic weighing 80,000 metric tons, the equivalent of 500 jumbo jets. These figures were four to sixteen times higher than previous estimates. Ninety-two percent of the mass is represented by larger objects; only eight percent of the mass is contained in microplastics. Forty-six percent of the total mass consists of discarded fishing nets.910
By comparing microplastic concentrations with historical measurements, the team found that plastic pollution levels within the patch have been growing exponentially since measurements began in the 1970s. The accumulation rate inside the patch was greater than in the surrounding waters, which the authors noted “indicates that the inflow of plastic into the patch continues to exceed the outflow.” In the language of waste management, the facility is accepting waste faster than it can process it, and it has no processing capacity at all.9
For scale: 1.6 million square kilometers is approximately 395 million acres. A permitted municipal landfill typically occupies hundreds to a few thousand acres. The patch is not the largest unpermitted dump in its county. It is the largest unpermitted dump in the inventory the statute ordered, by a factor that the inventory’s authors did not anticipate because the inventory was published on paper.
V. The Receiving Rate
A landfill is defined in part by what it receives. In 2015, Jenna Jambeck of the University of Georgia and colleagues published in Science the first global quantification of plastic waste entering the ocean from land. The study estimated that in 2010, between 4.8 and 12.7 million metric tons of plastic waste entered the oceans from coastal populations, out of 275 million metric tons of plastic waste generated in 192 coastal countries.11
To convey the midpoint estimate of 8 million metric tons, co-author Roland Geyer of UC Santa Barbara noted that, at the average density of uncompacted plastic waste, it would cover an area 34 times the size of Manhattan ankle-deep in plastic, and that it equaled the entire global plastic production of 1961. Lead author Jambeck offered a second measure: five grocery bags full of plastic on every foot of coastline in the 192 countries studied. The study further forecast that the cumulative quantity of plastic waste available to enter the ocean from land would reach 155 million metric tons by 2025.11
The receiving-rate arithmetic is instructive. At 8 million metric tons per year, the ocean receives approximately 21,900 metric tons of discarded plastic per day. The measured mass of the Great Pacific Garbage Patch is 80,000 metric tons. The ocean therefore receives the patch’s entire surveyed mass every three and two-thirds days. The patch is not a static stockpile. It is the visible fraction of a flow roughly one hundred times its measured mass per year, most of which sinks, strands, or disperses beyond the survey boundary. The researchers noted that the floating mass found on the surface is one to three orders of magnitude smaller than the estimated input: the waste is going somewhere, and the somewhere is the water column, the seafloor, and the food web.11
The World Economic Forum and the Ellen MacArthur Foundation, in their 2016 New Plastics Economy report, added the projection that has since become the most quoted sentence in marine debris policy: at least 8 million tons of plastics leak into the ocean every year, equivalent to dumping the contents of one garbage truck into the ocean every minute, and if current trends continue, by 2050 the ocean will contain more plastic than fish by weight. Only 14 percent of plastic packaging is collected for recycling.12
One garbage truck per minute. Fifty years of RCRA. The statute bans all open dumping of waste. The ocean accepts a garbage truck of it every sixty seconds.
VI. The Supplier Base
Every waste facility has a waste shed, the geographic area from which it draws material. The Pacific’s waste shed is, in effect, the world, but one supplier dominates the manifest.
In 2020, Kara Lavender Law of the Sea Education Association and colleagues published in Science Advances a refined accounting of American plastic waste. Using 2016 data, they found that the United States generated 42.0 million metric tons of plastic waste that year, the largest mass of any country in the world, at 286 pounds per person, the highest per capita rate on Earth. Between 0.91 and 1.25 million metric tons were littered or illegally dumped domestically; combined with exported waste, the United States contributed up to 2.25 million metric tons of plastic to the environment, of which up to 1.5 million metric tons reached coastal environments within 50 kilometers of a shoreline, ranking the country as high as third globally in coastal plastic pollution.13
A 2021 report mandated by Congress under the Save Our Seas 2.0 Act and compiled by the National Academies reached the same conclusion in starker terms: the United States contributed around 42 million metric tons of plastic waste in 2016, more than twice as much as China and more than the countries of the European Union combined, at 130 kilograms per American per year. The report noted that almost any plastic on land has the potential to reach the oceans via rivers and streams.14
The jurisdiction question answers itself. The nation that generates the most plastic waste on Earth sits on the eastern rim of the ocean that stores it. The statute that bans open dumping is a federal statute. The facility is substantially stocked with American discards, delivered by American rivers, to an accumulation zone the currents maintain off the American coast. The manifest is domestic. The dump is not.
VII. The Liner
Return to the engineering specifications, because the statute’s requirements are specific and the ocean’s compliance is measurable against each one.
Requirement one: a composite liner consisting of a 30-mil flexible membrane in direct and uniform contact with two feet of compacted soil at 1 x 10-7 cm/sec hydraulic conductivity. The Pacific Ocean’s liner consists of water, in direct and non-uniform contact with more water, at effectively infinite hydraulic conductivity. The regulation’s theory is that waste must be separated from the environment by an engineered barrier. The ocean’s theory is that the waste is in the environment, which it considers a feature: the accumulation zone is maintained by the North Pacific Subtropical Gyre, a circulation system that gathers the waste and holds it in place without any liner at all. The gyre is, in waste-management terms, a natural cell with no bottom.
Requirement two: a leachate collection system maintaining less than 30 centimeters of leachate over the liner. Leachate is the liquid that percolates through waste, carrying dissolved contaminants. In the ocean’s accumulation zone, the waste sits in the leachate. Plastic additives, adsorbed persistent organic pollutants, and fragmenting microplastics migrate freely through the water column with no collection system, no sump, and no 30-centimeter limit. The depth of leachate over the ocean’s nonexistent liner is, at the Mariana Trench, approximately 10,935 meters.18 The regulation allows 30 centimeters.6
Requirement three: groundwater monitoring at the uppermost aquifer, with the point of compliance no more than 150 meters from the waste boundary. The ocean has installed no monitoring wells. This is, in fairness, because the ocean is the uppermost aquifer, the intermediate aquifer, and the lowermost aquifer, and the waste boundary is 1.6 million square kilometers of moving water. The regulation assumes a dump with an address and a fence line. The Pacific has neither. Every point on Earth is within 150 meters of some plastic, which makes the point of compliance, technically, everywhere.7
Requirement four: thirty years of post-closure care. The ocean has not closed. The inflow exceeds the outflow. The post-closure period cannot begin because there is no closure plan, no final cover, and no last load. The facility has been accepting waste since measurements began in the 1970s and, at one garbage truck per minute, shows no sign of reaching capacity. A landfill that never closes never triggers post-closure care. This is either a loophole or the entire business model.
VIII. The Permit
The ocean dumping regime has its own statute. The Marine Protection, Research, and Sanctuaries Act of 1972, commonly called the Ocean Dumping Act, makes it unlawful to transport material from the United States for the purpose of dumping it into ocean waters without a permit. The Environmental Protection Agency designates ocean dumping sites, issues the permits, and enforces the prohibitions. The statute is explicit that the ocean is not a free disposal option: dumping requires permission, at a designated site, of specified materials, in specified amounts.15
The penalties are specified. A violator is liable for a civil penalty of not more than $50,000 for each violation, and each day of a continuing violation constitutes a separate offense. Criminal penalties, including fines and up to five years in prison, apply to knowing violations, along with seizure of property used to commit the violation.15
The Pacific’s accumulation zone is not a designated dumping site. No permit has been issued for it. No application is on file. The material it receives, up to 12.7 million metric tons per year, is not dredged sediment evaluated for ocean disposal. It is discarded plastic, the very category of persistent material that more than 85 countries agreed to prohibit from ocean dumping under the 1972 London Convention on the Prevention of Marine Pollution by Dumping of Wastes.16
The penalty arithmetic is left as an exercise. At $50,000 per day of continuing violation, a facility that has been accumulating waste since the 1970s accrues $18.25 million per year in civil exposure, before counting a single piece of the 1.8 trillion. The statute provides for criminal penalties for knowing violations. The ocean’s violations are, if nothing else, well documented: 1.2 million samples, a C-130 with multispectral sensors, and a peer-reviewed paper. Knowledge will not be the hard element to prove.
IX. The Operating Record
Permitted landfills must maintain an operating record: inspection records, training procedures, monitoring data, and closure plans, furnished to the state director upon request. The Pacific’s operating record consists of the scientific literature, which is extensive and damning.
The record shows an inflow of 4.8 to 12.7 million metric tons per year against a surveyed surface accumulation of 80,000 metric tons, meaning the vast majority of received waste is unaccounted for in the surface inventory. The record shows exponential growth in the accumulation zone since the 1970s. The record shows that 46 percent of the accumulated mass is fishing nets, the ghost gear of an industry that discards its equipment at sea. The record shows, via the National Academies, that the single largest national supplier generates 42 million metric tons of plastic waste per year. The record shows a projection, endorsed by the World Economic Forum, that the receiving waters will contain more plastic than fish by weight within a quarter century.910111214
No operating record has ever been furnished to any state director, for the straightforward reason that the facility occupies no state. The statute’s state-plan framework requires each state to prohibit new open dumps and to close or upgrade existing ones on a timetable not to exceed five years. No state plan covers the Pacific. The five years have run. The dump remains open, accepting a garbage truck a minute, lined with nothing, monitored by no one, permitted by no agency, in continuous operation since before the statute’s inventory was published.
X. The Defense
The defense must be stated plainly, as this publication’s convention requires. It is, in fact, a strong defense.
The prohibition at 42 U.S.C. section 6945(a) is, by its own terms, “enforceable under section 6972 of this title against persons engaged in the act of open dumping.” The Pacific Ocean is not a person. It engages in no act. The dumping is performed by persons on land, in 192 coastal countries, whose discarded material travels by river, stream, wind, and current to the accumulation zone. The statute regulates the dumpers, not the dump. To call the ocean a “disposal facility or site” is to confuse the receiving water with the regulated actor, the way one might confuse a bathtub with a bather.2
There is also the matter of the ocean’s other regulator. The National Oceanic and Atmospheric Administration has cautioned that the name “Great Pacific Garbage Patch” misleads: the area is not a large and continuous patch of easily visible debris, not a literal island of trash, and not visible from space. The waste is diffuse, the concentrations vary, and much of it is microplastic suspended through the water column. A facility, in everyday speech, calls up the picture of a place with a boundary. The patch has a surveyed boundary defined by a 10-kilogram-per-square-kilometer threshold, but the waste does not respect it, and the ocean has not posted it.17
This publication has considered the defense and overruled it. The statute prohibits “any solid waste management practice or disposal of solid waste or hazardous waste which constitutes the open dumping of solid waste or hazardous waste.” It asks what the material is and whether the disposal is open. The material is discarded plastic: solid waste under the statute’s own definition. The disposal is open: there is no liner, no cover, no gate, and no permit. The statute does not ask who drove the truck. It does not require the dump to have an operator of record, a posted schedule, or a sign out front. It asks where the waste is, and the waste is in the Pacific, 80,000 metric tons of it in the surveyed cell alone, arriving at 21,900 metric tons per day. The inventory provision assumed dumps would be countable. The Pacific is countable. It has been counted: 1.8 trillion pieces.
The defense is that the ocean is not a person and performs no act of dumping. The statute asks what the material is and whether the disposal is open. The material is discarded plastic. The disposal could not be more open.
XI. The Compliance Timetable
The statute did not merely prohibit open dumping. It ordered the dumps closed. Section 6945(a) requires each state plan to establish, for every open dump, “a timetable or schedule for compliance… leading to compliance with the prohibition on open dumping of solid waste within a reasonable time (not to exceed 5 years from the date of publication of criteria under section 6907(a)(3) of this title).” The criteria have been published. The five years have run. They ran decades ago.2
The compliance options for an open dump are two: close it, or upgrade it to a sanitary landfill. Consider each in turn.
Closure would require removing the waste. The surveyed cell alone holds 80,000 metric tons across 1.6 million square kilometers, at concentrations that NOAA cautions are diffuse and largely invisible. The un-surveyed inventory, the waste below the surface, on the seafloor, and dispersed beyond the 10-kilogram threshold, is estimated at one to three orders of magnitude larger than the floating mass. Closure is not a project. It is a civilization-scale dredging operation with no disposal site at the end of it, because the waste would have to go somewhere, and the somewhere cannot be another open dump.
Upgrading would require a composite liner under 1.6 million square kilometers of ocean, a leachate collection system maintaining less than 30 centimeters of leachate over that liner, groundwater monitoring wells on land owned by the owner of the unit, and thirty years of post-closure care. The owner of the unit has not been identified. The land under the unit is, at the trench, nearly eleven kilometers of water column over basalt. The liner would need to be larger than France, times three.
The statute allows five years. The facility has had fifty. It has used them to grow exponentially.
XII. Conclusion
Section 4005(a) of the Resource Conservation and Recovery Act provides that any solid waste management practice constituting the open dumping of solid waste is prohibited. The statute defines solid waste to include all other discarded material. A lawful landfill requires a composite liner, a leachate collection system, groundwater monitoring, and thirty years of post-closure care. The Ocean Dumping Act requires a permit for the disposal of material in ocean waters and assesses $50,000 per violation per day.
The Pacific Ocean receives between 4.8 and 12.7 million metric tons of discarded plastic per year, a garbage truck every minute, from a world led in generation by the United States at 42 million metric tons annually. Its surveyed accumulation cell spans 1.6 million square kilometers and holds 1.8 trillion pieces weighing 80,000 metric tons, growing exponentially since the 1970s, with inflow exceeding outflow. It has no liner. It has no leachate collection system. It has no monitoring wells. It has no operating record on file with any state director. It has no permit under either statute. The five-year compliance timetable expired decades ago.
The waste is in the open. The dumping is open. The statute says what it says.
Ergo.