VICTORIA, Texas - Plaintiffs Diane Wilson and San Antonio Bay Estuarine Waterkeeper will ask a federal judge to fine Formosa Plastics Corp. $166 million for illegally discharging billions of plastic pellets into Texas's Lavaca Bay and Cox Creek. The plaintiffs – represented by Texas RioGrande Legal Aid (TRLA) and two private attorneys – will argue for the fine during the second, or "penalty phase," of the Formosa trial, which has been scheduled for Oct. 28 in Victoria, Texas.
"The fine has to be more than a slap on the wrist," said Amy Johnson, an attorney for TRLA who is representing Wilson. "Otherwise, Formosa will keep on polluting and other industry might consider skipping appropriate methods to discard waste. The fine must be an effective deterrent to Formosa and other industry who might consider destroying our great state."
The $166 million in fines would be paid to the U.S. government. In a major win for the plaintiffs, U.S. District Judge Kenneth M. Hoyt on June 27 found Formosa's Point Comfort facility liable under the Clean Water Act for illegally discharging plastic pellets into Lavaca Bay and Cox Creek. In his June ruling, following the first phase of the Formosa trial, Judge Hoyt found the company liable for 736 illegal discharges of plastic pellets into Lavaca Bay and 1,149 discharges into nearby Cox Creek. Judge Hoyt also found Formosa liable for failure to report the illegal discharges.
While the $166 million penalty that plaintiffs request reflects the maximum fine, it is a tiny fraction of what Formosa made during the years it has polluted Texas waterways. In 2017 alone, Formosa Plastics Corp., USA reported $900 million in profits.
Formosa Plastics of Taiwan reported to the Taiwanese stock exchange that Formosa Plastics Corp., Texas made $1 billion in pre-tax profits in 2018.
"When Judge Hoyt found Formosa liable for illegally dumping plastics into our waterways, justice was begun," Wilson said. "Now we want to see justice completed through a fine that ensures Formosa will clean up its act for good. The fine must be substantial enough to make sure Formosa and other industries along our coast know they cannot get away with polluting our natural environment. Polluting Texas should not be a cost of doing business."
Wilson and her co-plaintiffs will also ask Judge Hoyt to order Formosa to clean up the plastic pellets it continues to dump and make changes to its stormwater and wastewater systems so that it discharges pellets only in the trace amounts allowed under its permit with the Texas Commission on Environmental Quality (TCEQ).
Wilson and her co-plaintiffs, represented by David Frederick of Austin and David Bright of Corpus Christi, filed suit against Formosa Plastics Corp., Texas, and Formosa Plastics Corp., USA in July 2017. The plaintiffs had collected evidence of the plastic pellets and powder that Formosa discharges into the two waterways. At the liability phase of the trial in March, plaintiffs presented their evidence – 30 containers holding 2,428 samples of plastic pellets and debris.
"These witnesses provided detailed, credible testimony regarding plastics discharged by Formosa, as well as photographs, videos, and 30 containers containing 2,428 samples of plastics in gallon zip lock bags and plastic bottles of plastic pellets," Judge Hoyt wrote in his opinion.
In his ruling, Judge Hoyt described Formosa as a "serial offender" and wrote that the company's illegal discharges "are extensive, historical, and repetitive." He wrote that evidence at the trial demonstrates that Formosa "has been in violation" of its Texas permit and that "the violations are enormous." In the past few years, Formosa has both continued to discharge pellets and attempted to clean up what it has discharged.
Jeremy Conkle, an assistant professor in the Department of Physical and Environmental Sciences at Texas A&M University, used information about the removal of pellets as a way to calculate how much the company discharges.
Using removal estimates from Formosa's own contractor, Conkle calculated that from 2017 to February 2019, the company cleaned up anywhere from 341,000 to 3.4 million pounds of plastic debris, which equals 7.6 billion to 75 billion individual pellets (see Addendum).
"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." Even after Judge Hoyt's decision, Formosa continues to illegally discharge pellets.
Established in 1970, Texas RioGrande Legal Aid, Inc. (TRLA) is a nonprofit organization that provides free legal services to about 23,000 low-income Texans in 68 counties.
TRLA's mission is to promote dignity, self-sufficiency, safety and access to justice for low-income Texans by providing high-quality legal assistance and related educational services.
The information in this article was sent by Nancy Nusser, Press Officer for TRLA.
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