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Jan. 23, 2020 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.”


November 2018, Waterkeeper Ronnie Hamrick peering into Formosa outfall 08 at Cox Creek

Dec 3, 2019 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 represents 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 represents 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.”

April 2019, 2,428 samples collected as evidence for CWA lawsuit

 June 28, 2019 Federal Judge Rules that Formosa Plastics is Liable for Pollution of Texas’ Lavaca Bay 

Judge Rules that Formosa Violated Texas and Federal Environmental Law 


VICTORIA, Texas— A federal judge yesterday ruled in favor of citizen activists who sued Formosa Plastics Corp., Texas for polluting Lavaca Bay and nearby shores and waterways. U.S. District Judge Kenneth M. Hoyt ruled that Formosa had violated the Clean Water Act and Texas environmental law by illegally discharging plastics and powder into Lavaca Bay and nearby Cox Creek.
“It’s wonderful to see justice being done,” said Diane Wilson, who filed the suit against Formosa, along with co-plaintiffs from the San Antonio Bay Estuarine Waterkeeper. “We have fought for so long to protect the beauty and health of our natural environment. We’re one step closer to making it happen. Not only is this a win, it’s a big win.”
“This is a victory for the environment and for citizens using the Clean Water Act to protect their rivers, streams, and bays,” said Amy R. Johnson, a contract attorney for TRLA and the lead counsel in the suit. “The judge found our evidence to be very convincing.”
The trial now moves into the remedy and penalty phase. Formosa faces fines of as much as $162 million, which reflects the maximum federal fine for violating the Clean Water Act. 
In his opinion, U.S. District judge Kenneth M. Hoyt described Formosa as a “serial offender” with “extensive, historical and repetitive” releases of plastics that it failed to report. The judge ruled that Formosa had violated both the federal Clean Water Act and its permit issued by the Texas Commission on Environmental Quality.

Wilson sued after she and members of the San Antonio Bay Estuarine Waterkeeper extensively documented the discharge of plastic pellets into Lavaca Bay and Cox Creek. During the March trial, Wilson and her co-plaintiffs presented 30 containers containing 2,428 samples of plastics that they found in the waterways and on the shores as well as photos and video of the Formosa’s discharge. “These witnesses provided detailed, credible testimony regarding plastics discharged by Formosa…,” Judge Hoyt wrote.  
March 2019, a successful trial for the Sunshine Team

March 6, 2019 Formosa Faces March Trial for Dumping Plastic into Texas Bay

VICTORIA, Texas – A lawsuit filed by Texas residents against Formosa Plastics for dumping up to millions of pounds of plastic pellets into the state’s Lavaca Bay and nearby waterways will go to trial on March 25. The plaintiffs are seeking as much as $179 million in penalties – the maximum amount permitted under the federal Clean Water Act.
“Formosa has dumped billions and billions of plastic pellets into the water,” said Diane Wilson, a former shrimper who is represented in the suit by Texas RioGrande Legal Aid (TRLA). “This garbage threatens fish, birds, endangered species, and the people who rely on the natural environment here.”

Wilson and her co-plaintiffs, members of the San Antonio Bay Estuarine Waterkeepers, filed suit in July 2017 against Formosa Plastics, Texas, a subsidiary of Formosa Plastics Corporation USA, which operates the Point Comfort facility near Lavaca Bay. Since Jan. 31, 2016, Wilson and her co-plaintiffs – represented by Corpus Christi trial lawyer David Bright and Austin environmental attorney David Frederick – collected about 2,400 samples of the plastic pellets and powders that Formosa discharges into Lavaca Bay and the nearby Cox Creek. The samples, as well as photos and videos, document violations of Texas law and the Clean Water Act and will be used as evidence at the March trial in federal court in Victoria, Texas.

Jeremy Conkle, an assistant professor of environmental chemistry at Texas A&M University, has calculated the amount of plastic pellet discharge that Formosa has cleaned up through early February 2019 (see attached Addendum). Using cleanup estimates from Formosa’s contractor, Conkle estimates that since April 2017, crews have removed between 341,000 to 3.4 million pounds of plastic debris. These figures do not account for the massive amount of plastic still in the environment from ongoing illegal dumping or the amount discharged before 2017. In 2010, the EPA warned Formosa that its plastic discharge violated the Clean Water Act.

“When I first saw the extent of plastic pellets and powder in Lavaca Bay and Cox Creek, I was in disbelief,” Conkle said. “It has now been over a year and the cleanup efforts appear as if they haven’t made a dent in the number of pellets and powder I’ve recently seen in these systems.” The TCEQ in January fined Formosa $112,000 for six pollution events; under Formosa’s stormwater disharge permit, it is not supposed to discharge “floating solids” in anything other than “trace amounts.” The pollution events were brought to the TCEQ’s attention by Wilson and her co-plaintiffs.

Plaintiffs will argue in court that Formosa should be fined for all of its illegal discharge – not just six pollution events. They will ask for up to $179 million in fines, the maximum penalty under the Clean Water Act for 1,130 continuous days of discharges and for the company’s failure to report the violations to TCEQ, as required by law. “Because TCEQ’s investigation was so limited, it only fined Formosa for a handful of pollution events,” Wilson said. “Formosa won’t even notice that fine (Formosa USA reported $900 million in net income in 2017). She pointed out that in February, weeks after the January fine, she and other plaintiffs were still finding pellets and powder in and around Lavaca Bay and Cox Creek. “The company is still violating the law. It hasn’t made the changes it needs to make,” Wilson said.

Josh Kratka, a senior attorney at the National Environmental Law Center (NELC), which is not involved in the Formosa litigation, says that, in general, Clean Water Act penalties must be significant enough to compel compliance on the part of illegal polluters.

“One of the reasons citizen enforcement suits under the Clean Water Act rarely go all the way to trial is that, in cases like this one where the evidence of liability appears overwhelming, a defendant faces a substantial risk of being assessed a large civil penalty and a court order requiring significant changes to its pollution control systems,” said Kratka, a senior attorney at NELC, which recently obtained a court-ordered $20 million penalty against ExxonMobil Corp. after a trial in the Southern District of Texas to enforce the Clean Air Act.

“This lawsuit, and the citizens’ willingness to take it to trial, sends a powerful message to Formosa and to other companies who don’t take seriously their obligation to comply with the Clean Water Act,” Kratka said.

March 2019, 2,428 pieces of evidence are loaded onto trailer and ready for trial.