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Clean Water Act 60 Day Notice of Intent

Diane Wilson and San Antonio Bay Estuarine Waterkeeper (collectively “Complainants”) provide 60 days notice of our intent to sue Formosa Plastics Corporation in federal district court to halt significant, chronic, and ongoing violations of the Clean Water Act (CWA), 33 U.S.C. § 1251, et seq., from past and ongoing illegal discharges of plastic pellets and plastic residue dust from Formosa’s Point Comfort, Texas, facility. Despite numerous notifications of these violations, Formosa’s refusal to comply with the law has been so longstanding that local citizens have been compelled to undertake their own monitoring and have collected over 1,064 samples along over 20 miles of shoreline in Cox Creek, Lavaca Bay, and Matagorda Bay from January 31, 2016 to the present date to document Formosa’s illegal discharges.

nurdles floating
December 2018, illegal discharged pellets at Cox Creek, near Formosa Plastic outfall 06
Powder
Feb. 2019, powder and pellets at Cox Creek near Formosa Plastic outfall 06

Clean Water Act Lawsuit

San Antonio Bay Estuarine Waterkeeper (“Waterkeeper”) and S. Diane Wilson (collectively “Waterkeepers” or “Plaintiffs”) bring this enforcement suit under section 505(a)(1) of the Clean Water Act, 33 U.S.C. §1365(a)(1), against Formosa Plastics Corporation, Texas, Formosa Plastics Corporation, U.S.A., and Formosa Plastics Corporation, America (collectively “Formosa,” or “Formosa Plastics”) for illegally discharging plastic pellets and polyvinyl chloride (“PVC”), dispersion (specialty) polyvinyl chloride (“SPVC”), and other plastic powders (collectively “plastics”) through its stormwater and wastewater into Cox Creek and Lavaca Bay in violation of Formosa’s Texas Pollutant Discharge Elimination System (“TPDES”) permit.

March 2019, Waterkeeper Diane Wilson and allies load 2,428 samples in bins and haul to Victoria Division of United States District Court, Southern District of Texas

Findings of Facts

March 2019, Amy Johnson, lead lawyer for Texas Riogrande Legal Aid, speaks at press conference before beginning of Clean Water lawsuit in federal court in Victoria, Texas
March 2019, Texas Riogrande Legal Aid team, witnesses, and experts for Clean Water lawsuit against Formosa Plastics
March 2019, Texas Riogrande Legal Aid Team, plaintiff, and experts on Clean Water lawsuit in Victoria, Texas

Liability Ruling

The evidence demonstrates that Formosa has been in violation of its Permit concerning the discharge of floating solids at its various Outfall since January 31, 2016 and that the violations are enormous.… The Court concludes that the evidence shows violations for each of the 736 days of discharges into Lavaca Bay from Outfall 001

The Court concludes that Formosa is a serial offender, violating its Permit concerning discharge of floating solids, in other than trace amounts, from other Outfalls from January 31, 2016, to at least March 24, 2019. Some 1,149 days of violations are recorded through Outfalls 003, 004, 005, 006, 007, 008, 009, 012.

Formosa vs San Antonio Bay Water Keeper Final Consent Decree 2019

1. Plaintiffs San Antonio Bay Estuarine Waterkeeper and S. Diane Wilson (hereinafter “Waterkeeper” or “Plaintiffs”), brought this federal Clean Water Act lawsuit pursuant to 33 U.S.C. §1365(a)(1) against Formosa Plastics Corp., Texas, and Formosa Plastics, Corp., U.S.A., (hereinafter “Formosa”) alleging the illegal discharge of Plastics from Formosa’s Point Comfort, Texas, plastics facility. The lawsuit was filed July 31, 2017.

2. The case was tried to the Court on issues of liability from March 25-28, 2019. The Court heard testimony from numerous experts and witnesses regarding the discharged plastics. Hundreds of documents were admitted in evidence.

3. On June 27, 2019, the Court issued a Memorandum and Order, ruling on liability and determining that a declaratory judgment should issue pursuant to Waterkeeper’s claims for relief in the form of monetary and injunctive relief; attorneys’ fee should be awarded; and appropriate sanctions for past violations and to enforce future compliance were appropriate.

4. The Plaintiffs sought in their injunctive relief that the Court order a monitor to review changes at the facility that would stop the discharges, order that efforts to clean up the discharges continue and be protective of the environment, and that penalties continue to be paid until the discharges ceased.

Plastic pellets and powder floating in Cox Creek. No more nurdles!

PRESS RELEASE

Federal Judge Signs Off on Formosa’s Record-Setting Environmental Settlement

$50 Million Settlement Will Be Used to Revitalize Local Waterways and Beaches


VICTORIA, Texas (Dec. 3, 2019) – U.S. District Judge Kenneth M. Hoyt today approved a $50 million environmental settlement from Formosa Plastics Corp. that will fund six key pollution mitigation projects near its Point Comfort, Texas facility. The agreement is the largest ever settlement of a Clean Water Act suit filed by private individuals. The settlement also requires Formosa to meet a stringent standard known as “zero discharge,” in which the Point Comfort facility must stop all discharge of plastics into natural waterways.

“Having the $50 million settlement go to local environmental projects feels like justice,” said plaintiff and former shrimper Diane Wilson, who is represented by Texas RioGrande Legal Aid (TRLA). “Formosa polluted Lavaca Bay and nearby waterways for years. Now it will pay for strong community projects that will improve the health and welfare of our waterways and beaches.”

“That Formosa agreed to zero discharge is pivotol,” said Erin Gaines, TRLA attorney who is representing Wilson. “This is a standard that citizens all over the country are fighting to get enforced in their communities. Another key point is that Formosa must clean up illegally discharged plastics. This comprehensive settlement means that the natural resources in the Point Comfort area will not only be protected, they will also be revitalized.”

The $50 million settlement will be paid out over five years into a fund supporting projects that reverse the damage of water pollution in Calhoun County, where the Point Comfort facility is located. Some of those projects include:

  • $20 million for creating a cooperative that will revitalize depleted marine ecosystems and develop sustainable fishing, shrimping and oyster harvesting.
  • $10 million for environmental development of Green Lake park, the 2ndlargest natural lake in Texas, into an environmentally sound public park.
  • $2 million to control erosion and restore beaches at Magnolia Beach. 
  • $5 million for environmental research of San Antonio and Matagorda bay systems and river deltas that feed into them.
  • $1 million to support the “Nurdle Patrols” at the University of Texas’s Marine Science Institute, and to give scholarships to allow persons throughout the Gulf coast to attend Nurdle Patrol conferences. The Nurdle Patrols are volunteer groups that collect plastic pellets, also known as nurdles, in order to document and research plastic pollution of the Gulf and its shores. 
  • $750,000 to the YMCA for camps for children to study and learn how to be good stewards of the local marine environment.
  • $11.25 million for future projects in the areas and to pay the costs of the trust.


None of the $50 million settlement will be awarded to the plaintiffs.

“A settlement of this size and complexity sends a powerful message that polluters will suffer significant consequences for discharging  even the tiniest of plastics into our waterways,”  said Amy Johnson, attorney with TRLA who represented Wilson. “This is an especially important message for our current era – when plastic pollution of our oceans is hitting crisis levels.” TRLA attorney Jennifer Richards also represented Wilson. 

The financial settlement is by far the largest for a Clean Water Act suit filed by private individuals. It is five times the previous largest settlement for the same kind of case. (Public Interest Research Group of N.J. v. Witco Chemical Corp., Nos. 89-3146, C-359–83 (D.N.J. Jan. 15, 1993)). The largest Clean Air Act suit brought by private individuals awarded $19.95 million. (Environment Texas & Sierra Club v. ExxonMobil, No. CV H-10-4969, 2017 WL 2331679 (S.D. Tex. Apr. 26, 2017))

The settlement details how and when Formosa will make improvements to its plant to eliminate the discharge of plastic pellets. Plaintiffs will be allowed to review decisions and make objections throughout the process – from the hiring of an engineer to design the improvements, to the monitoring of Formosa to achieve zero discharge. If Formosa is found to be in violation again, it will pay for every documented discharge back into the settlement fund. Payments will start at $10,000 per discharge this year and increase in annual increments to over $54,000 per discharge. 

“There will be reporting requirements, an independent monitor, site visits, and other accountability requirements,” said Bob Lindsey, a plaintiff and member of the San Antonio Bay Estuarine Waterkeeper. “We will have the access and power to make sure that Formosa meets its requirements and fulfills its commitments.”

Wilson and her co-plaintiffs – members of the San Antonio Bay Waterkeepers who are represented by private co-counsels David Bright of Corpus Christi and David Frederick of Austin – spent years collecting samples of the plastic pellets and powders that Formosa discharges. During one four-year-period, they patrolled the waterways on a daily basis, collecting a total of 2,428 samples of pellets and powders, which they stored in zip-lock bags and quart-sized bottles marked with dates, times, and locations. They also took thousands of photos and videos of pellets and powders in the water and along shores.

When their suit went to trial in March 2019, they packed the 2,428 samples into boxes and drove them to the courthouse in downtown Victoria. Once there, they presented them as evidence during the liability phase of the trial. In his ruling for the plaintiffs, Judge Hoyt wrote, “these witnesses provided detailed, credible testimony….” He described Formosa as a “serial offender” and wrote that its violations of the Clean Water Act were “extensive, historical, and repetitive.”

““This case is a shining example of the crucial role that citizen enforcement suits play in seeing that our cornerstone environmental laws, like the Clean Water Act, actually fulfill their purpose of protecting our environment and public health,” said Josh Kratka, senior attorney at the National Environmental Law Center (which was not involved in the case). “The citizen plaintiffs have performed an extraordinary public service with this settlement, ensuring both that Formosa’s ongoing, illegal plastic pollution will be brought to an end and that Formosa — not taxpayers — will foot the bill for cleaning up the vast mess the company created in our public waters and shorelines.” “This is such an important signal to the plastics industry that they can’t pollute waterways and communities with impunity,” said Julie Teel Simmonds, an attorney with the Center for Biological Diversity. “The next step is to keep Formosa from treating Louisiana like this and to hold the industry as a whole to a zero plastic discharge requirement to protect other parts of the Gulf and Appalachia that are in the cross-hairs of the plastic production boom.”
Attached are photos of  plaintiffs collecting plastic debris that was used as evidence in the trial. 

March 2019, 2,428 samples of pellets and powder collected for evidence between January 31, 2016 and March 22, 2019

Press Release:

Precedent Setting Permit Request for Texas Facility:  Zero Discharge of Plastics

  POINT COMFORT, Texas (Jan. 23, 2020) – In December 2019, U.S. District Judge Kenneth M. Hoyt approved a $50 million environmental settlement between Formosa Plastics Corp. and plaintiffs, San Antonio Bay Estuarine Waterkeeper and Diane Wilson.  The agreement is the largest ever settlement of a Clean Water Act suit filed by private individuals. The settlement funded six key pollution mitigation projects near its Point Comfort, Texas facility and it also required Formosa to meet a stringent standard known as “zero discharge,” in which the Point Comfort facility must stop all discharge of plastics into natural waterways.   Currently, Formosa Plastics has an application to renew its permit WQ0002436-000 pending at Texas Commission on Environmental Quality (TCEQ).  That permit application allows Formosa to continue discharging “trace amounts” of solids into Cox Creek and Lavaca Bay.  The permit is called a Texas Pollutant Discharge Elimination System permit (TPDES) and is issued under the federal Clean Water Act by the State of Texas.  As required by the settlement agreement Formosa has asked TCEQ to change its new permit.  The permit changes make Formosa’s commitment NOT to discharge plastics become part of their TPDES permit.  That makes the zero discharge commitment enforceable under the Clean Water Act and also sets a precedent for other industries.     Amy Johnson, attorney with Texas Riogrande Legal Aid who represents plaintiffs, stated  “TCEQ has to modify Formosa’s permit for these terms to become effective, but normally, the agency will comply with requests from industry that improve water quality. “    The specific permit commitments are:    

  • Formosa commits to zero discharge of plastics into Cox Creek and Lavaca Bay, which means no discharge of visible pellets, powder or flakes.  This is from all their outfalls, including a new outfall they are building (outfall 014).

·       After new infrastructure is built, Formosa commits not to discharge any stormwater into Cox Creek unless there is a 5-year rainfall 24-hour ( 6.8 inches an hour average in 24 hours) event  or more.  Wilson stated, “This means that after the new infrastructure is built (the holding pond system), Formosa will likely only discharge into Cox Creek once every five years.”   “That Formosa agreed to zero discharge is pivotal,” said Erin Gaines, TRLA attorney who is also representing Wilson. “This is a standard that citizens all over the country are fighting to get enforced in their communities.  Another key point is that Formosa must clean up illegally discharged plastics. This comprehensive settlement means that the natural resources in the Point Comfort area will not only be protected, they will also be revitalized.”   The settlement details how and when Formosa will make improvements to its plant to eliminate the discharge of plastic pellets. Plaintiffs will be allowed to review decisions and make objections throughout the process – from the hiring of an engineer to design the improvements, to the monitoring of Formosa to achieve zero discharge. If Formosa is found to be in violation again, it will pay for every documented discharge back into the settlement fund. Payments will start at $15,000 per discharge this year in 2020 and increase in annual increments to over $54,000 per discharge.    “There will be reporting requirements, an independent monitor, site visits, and other accountability requirements,” said Bob Lindsey, a plaintiff and member of the San Antonio Bay Estuarine Waterkeeper. “We will have the access and power to make sure that Formosa meets its requirements and fulfills its commitments.”   Wilson and her co-plaintiffs – members of the San Antonio Bay Waterkeepers who are represented by private co-counsels David Bright of Corpus Christi and David Frederick of Austin, as well as Johnson – spent years collecting samples of the plastic pellets and powders that Formosa discharges. During one four-year-period, they patrolled the waterways on a daily basis, collecting a total of 2,428 samples of pellets and powders, which they stored in zip-lock bags and quart-sized bottles marked with dates, times, and locations. They also took thousands of photos and videos of pellets and powders in the water and along shores.   When their suit went to trial in March 2019, they packed the 2,428 samples into boxes and drove them to the courthouse in downtown Victoria. Once there, they presented them as evidence during the liability phase of the trial. In his ruling for the plaintiffs, Judge Hoyt wrote, “these witnesses provided detailed, credible testimony….” He described Formosa as a “serial offender” and wrote that its violations of the Clean Water Act were “extensive, historical, and repetitive.”   Wilson stated, “We believe this settlement sends a powerful message to the plastics industry that they can’t pollute waterways and communities with plastic.  The next step is to hold the industry as a whole to a zero plastic discharge requirement to protect other parts of the Gulf and Appalachia that are in the cross-hairs of the plastic production boom.”