Clean Water Act Lawsuit against Formosa Plastic
In 2019, after 30 years of work, Diane Wilson and the San Antonio Estuarine Bay Waterkeepers successfully sued a multi-billion dollar plastic manufacturing company with an all volunteer – citizen run team.
This is their story, and how you can help from anywhere.
We started with a insider tip and looking for pollution by kayak.
We tried to talk to Formosa, but when that didn’t work we sued.
After winning this historic settlement, we continue to push for no discharge of pollution and celebrate the many benefits from the lawsuit.
Now we need your help to keep the pressure on Formosa and work toward eliminating plastic pollution across the state, country and world.
Step One: Gather Evidence
What is the issue?
In the case of Formosa, they were discharging billions of tiny plastic balls (nurdles) and other plastic residue into Lavaca Bay.
Who are you to take on such a big corporation?
Diane Wilson (DW): I’m a fourth-generation commercial fisherwoman and water is very special and immediate to me. Plastic pollution discharged from the factories into the waterways that flow into the Gulf of Mexico is a big problem in my county. – CEF
What are nurdles?
Globally, microplastics—bits of plastic smaller than five millimeters in diameter, including nurdles, microbeads, fragments, fibers, and foam—account for an estimated 85 percent of plastic pollution found on shorelines. And they tend to stick around. Jeremy Conkle, a Texas A&M University–Corpus Christi professor who studies plastics in the ocean, said that plastic can persist in the environment for “hundreds to thousands of years.” Every year, an estimated 250,000 tons of nurdles enter the ocean. According to Eunomia, a UK-based environmental consultancy, they are the second-largest direct source of marine microplastic pollution, after rubber tire dust. – TM
Who is Formosa?
Formosa Plastics, which is the biggest employer in this small, rural county with more than 2,500 acres and 3,000 workers. Formosa has two downstream plants that produce Formosa’s pellets and powder and I tracked plastic pollution from its 13 stormwater outfalls and one major industrial outfall. – CEF
We should be focusing on plastics manufacturing, even more than consumer recycling
Diane’s attention to nurdles is a rarity, for compared to consumer packaging plastics, nurdles have largely escaped public scrutiny. However, nurdles are too harmful and ubiquitous to be ignored as they are the second-largest source of microplastic pollution by weight. – Angela
Every year, approximately 230,000 metric tons of plastic nurdles enter the ocean, the weight of 2,200 blue whales. They flow into the environment throughout the production and distribution process from factories, trains, and container ships. Nurdle spills happen around the world, from 18 km off the west coast of Sri Lanka and a 165 tons nurdle spill in Hong Kong, to a 750 million pellet spill that turned the Mississippi River into “a Nurdle Apocalypse.” – CEF
How to collect evidence?
We got a tip from a former employee that they were discharging much more than was known.
So we starting collecting evidence in kayaks ourselves.
Where are they polluting?
Formosa Point Comfort is located in Calhoun County on the Texas Gulf Coast, just two hours southwest of the fourth largest city in the USA, Houston.
Formosa’s plant in Point Comfort has any outfalls which some are visible from the water, but others flow directly into the bottom of the bay.
Specifically, Formosa was discharging plastic pollution into Stormwater outfalls (2,3,4,5,6,7,8,9,10,12,14) into Cox Creek and industrial outfall 001 into Lavaca Bay
How did you find the outfalls?
We began by wandering the shores of Lavaca/Matagorda and found pellets and powder around 20 square miles. Then later I got a kayak and began exploring Cox Creek (which is behind Formosa Plastics, Point Comfort, Texas) That’s where I discovered the stormwater outfalls and all the pellets and powder.
Find out more about the outfalls
A few of us–me and 3 former Formosa workers– started collecting samples of pellets and powder and put in bags and noted time , date, and location on the bays. We also took pictures and videos. I had approximately 6,000 pictures and videos. We had 2500 bags of evidence. We were not trying to pick up all the plastic pollution. There was too much. This was just evidence for the trial.
Wherever we went out to the water ,we took a sample from the area. There were perhaps 17 areas? . We began in January 2016 and took samples everyday until the trial began in March 22, 2019.
DW: I have a kayak, so I went to every single Formosa Platic outfall and took pictures and samples as evidence. I gathered approximately 15,000 photos, some of which were used for the 2019 lawsuit.
Also, after San Antonio Bay Estuarine Waterkeepers and I obtained documents during the trial in the discovery phase, we exposed the fuller extent of the plastic pollution. For instance, we found out that 170,000 pounds of pellets (or called nurdles) flooded from outfall pipe six in one single release. There were 22,000 pellets per pound, which translated into 4.25 billion pieces of plastic nurdles dumped into the water in one release.
Our 2,500 samples were evidence that built up into a citizen lawsuit against Formosa for violating the Clean Water Act. Plastic as a floating solid is a violation of the plant’s wastewater permit, but the state and federal agencies had never acted or charged them with a violation, so we filed a citizen lawsuit. – CEF
We learned a lot in the process. Here are some of our lessoned learned in the field.
Be methodical. Document every date and chain of custody. For instance, who picks up the pellets/powder bags and where do you put them? Remember you are taking this to court and the opposition will want to poke holes in everything. If this is for a lawsuit or a complaint, it is helpful to return to the same place and show that the discharge is repeated. We went to the same places, every day, for 2 ½ years.
Take lots of photos and videos
Take lots of photos and videos. If you know how to use, try an app that has GPS coordinates stamped on the photos.
Save and store evidence
Keep it safe any keep all of it.
Fighting the Flood of Nurdles: Texas Fisherwoman takes on Taiwan Plastic Company – New Security Beat Sept 2022
Step Two : Escalate
Research & Engage
Ask them to stop
Texas Monthly - Wilson spent the next seven years contacting state regulators and filing Freedom of Information Act requests to see if Formosa had been disciplined for apparent violations of the Clean Water Act. She found citizen complaints and even photographs depicting nurdles but no record of enforcement. Her sleuthing eventually spurred the Texas Commission on Environmental Quality to reevaluate Formosa’s wastewater permit. During permit negotiations in 2015, Formosa conceded to the TCEQ that releasing nurdles into the environment would “indisputably be a permit violation” that must be reported within 24 hours. Yet the pellets kept coming, and the company never bothered to report the problem to the TCEQ. Wilson finally decided to take matters into her own hands.
Hoyt also condemned the TCEQ for its “difficulty or inability . . . to bring Formosa into compliance.” Despite numerous citizen complaints and documentation by TCEQ inspectors of nurdles escaping the facility, the agency had fined the company just $122,000. - ™
Research state and federal regulations
- Learn about existing federal and state regulations on plastic pollution. Check the facility's wastewater permit. Check their wastewater violations at the state environmental agency. Is the state agency fining them? Contest their wastewater permit when it comes up for renewal. How are the floating solids regulated? How are stormwater outfalls regulated
- Once you gain samples of possible violations, file a complaint with the state environmental agency. Be sure and file correctly.
Organize community support
Texas Monthly - Nearly every week since January 2016, she and a scrappy crew of citizens, including Jurasek, have hiked and kayaked along the banks of alligator-infested Cox Creek in search of nurdles. They are organized loosely as the San Antonio Bay Estuarine Waterkeeper, part of a global network of groups affiliated with the Waterkeeper Alliance, a New York nonprofit. Wilson and her Waterkeepers snap photos and use miniature nets from Walmart to scoop pellets into Ziploc bags, which they label with the date, time, and location of the sample. A former Formosa supervisor named Ronnie Hamrick, 65, goes out four or five days a week. (He likes a good rainstorm, because it tends to dislodge nurdles from the weeds.) “If we were trying to pick up everything we could find, there’s no way we’d ever finish, so we take a sample,” said Wilson, who’s 70. “It’s overwhelming sometimes.”
File a Lawsuit
If they are not stopping the pollution and they are violating the Clean Water Act then, you can and should sue them.
Find a lawyer
Find a lawyer to file a citizen clean water suit. If your group has no money, you can try to find a pro bono lawyer. I used Texas Rio Grande Legal Aid which helps folks if they have very little money and have a legal issue.
TRLA is a legal aid group which also addresses environmental problems.. It is pretty rare, but it can happen. I found TRLA by going to a meeting where they were talking and immediately asked for help. They helped me file for a contested case hearing on the company’s wastewater permit and then, after our small group collected 1,000 samples, TRLA filed a 60 day notice of Citizen Clean Water Suit against Formosa Plastics.
Our 2,500 samples were evidence that built up into a citizen lawsuit against Formosa for violating the Clean Water Act. Plastic as a floating solid is a violation of the plant’s wastewater permit, but the state and federal agencies had never acted or charged them with a violation, so we filed a citizen lawsuit.
File the lawsuit!
We won the lawsuit!
We won the lawsuit!
The judge’s ruling called Formosa a “serial offender” whose “violations are enormous.” Following the verdict, the company, part of Taiwan-based Formosa Plastics Group—the world’s sixth largest chemical maker—agreed to pay $50 million into a trust funding local conservation projects, scientific research, and a sustainable fishing co-operative. Formosa also committed to stopping the spills and cleaning up its mess. - NG
When we won the lawsuit, we had a settlement with Formosa and asked for zero discharge of plastics, $50 M in mitigation that was used for fisheries cooperative, funds for Greenlake Park, funding for kids camps, stop erosion of beaches, funding for scientific research on the bays of Calhoun County. We also got monitoring for zero discharge of plastics and enforcement for the violations that were then used for community environmental projects. Currently we have over 400 violations and $9.5 M in penalties. We also got cleanup of plastic in Cox Creek that costs around $ 40 M and clean up of Lavaca/Matagorda Bay that is to be determined. - DW
Win: $50 million in funding
Win: MBM Trust
TODO: Pull text from Consent Decree
Win: Zero Discharge
Win: Black Fishing Cooperative
Win: Nurdle Patrol
TODO: Pull text from Consent Decree
Funding scientific research is another focus of the trust. Tunnell’s Nurdle Patrol has more than 5,000 volunteers, who have done 11,000 pellet surveys. The metric they use is how many nurdles one person can gather by hand in 10 minutes; participants scoop as many as they can, count them afterwards, and report the results. - NG
CEF - DW: That would be Jace Tunnel from Nurdle Patrol, the director of the Mission-Aransas National Estuarine Research Reserve at the University of Texas. He started his research around Corpus Christi, collecting plastic pellets on the beaches. His work led to the creation of Nurdle Patrol in 2018, a nationwide community of citizen scientists collecting and monitoring nurdle and plastic pollution. The Nurdle Patrol group gathered 1,500 members to survey more than 1,000 sites spanning across the Gulf of Mexico.
Step Three: Enforcement
Even after the hard work of the lawsuit, you are not done yet!
Continue to monitor pollution
Track and publish violations
TODO: Then perhaps another article that highlights the legal/ political fight to get epa and state environmental agencies to enforce violations and to update the plastic regs.
How a dramatic win in plastic waste case may curb ocean pollution – National Geographic Feb 2022
Call to Action
Want to get involved?
Want to help stop plastic pollution?
Contact Formosa Executives
Or we could include phone numbers, addresses and emails of Formosa executives for people to call or write to, telling them to stop polluting.
Contact banks to divest from Formosa
Contact your Representatives
Or legislative bills or petitions or letters out there asking for banning of plastic or zero discharge of plastic or ranking PVC waste as hazardous.
Hold plastic polluters accountable in your backyard
Grassroots projects can also help environmental organizations bring polluters to court. Armed with samples and photos, plaintiffs like Wilson and the Waterkeepers have a better shot at winning lawsuits that often hinge on physical evidence. Kelly Haragan, the director of the environmental law clinic at the UT School of Law, believes that the future of environmental regulation is “people-powered.” Regulators, she noted, currently rely on companies to report their own violations. “We’re on the cusp of the public being able to hold industry much more accountable.”