Texas to fine Formosa Plastics for polluting tributary of Lavaca Bay

Sanctions prompted by Citizen's Plaintiffs

A Texas government order – prompted by San Antonio Bay Estuarine Waterkeeper and Texas RioGrande Legal Aid (TRLA) client Diane Wilson – will require Formosa Plastics, Texas, to pay $112,500 in fines for six pollution events and an additional $9,375 for a wastewater sampling error (total fine = $121,875).

The pollution events contaminated Cox Creek, a tributary of Lavaca Bay, with plastic pellets. The order from the Texas Commission on Environmental Quality (TCEQ), which is expected to be approved during the Commission’s Jan. 16 meeting, will require that Formosa’s Point Comfort facility undertake semi-annual cleanups and report on them. The order also acknowledges some changes to the facility made by Formosa to reduce plastic pellet pollution of the bay and nearby waterways.

(Formosa Plastics, Texas, is a wholly-owned subsidiary of Formosa Plastics, USA, and is home to 2,280 of the 2,900 employees claimed by Formosa Plastics, USA, in America. The parent company currently claims $5 billion in annual revenue and in 2017, the last year for which data are publicly available, claimed roughly $900 million net income.)

“We’re gratified that TCEQ has finally penalized Formosa and that the company has acknowledged its violations of state and federal environmental law,” said Diane Wilson, TRLA’s plaintiff in a lawsuit filed against Formosa in July 2017. “But this is just a just a start. Our lawsuit documents many more illegal discharges than TCEQ found in its limited investigation. Because the investigation was so limited, the number of charged pollution events was very small and, thus, the total fine is not one Formosa will even notice. And Formosa has not made the changes necessary to stop the discharges. Only when companies face serious penalties and are forced to comply with the law will they clean up their act.”

Texas to fine Formosa Plastics for polluting tributary of Lavaca Bay

Wilson and her co-plaintiffs in the suit, members of the San Antonio Bay Estuarine Waterkeeper, have been monitoring the waterways and shores around Lavaca Bay (a 20-mile area) since 2016, collecting evidence of Formosa’s discharges and filing complaints with the TCEQ. Their March 2016 complaint to the TCEQ prompted a subsequent investigation by the agency, which lead to the enforcement order.

However, Formosa’s discharge, which has been chronic since at least 2010 when the EPA cited the company for plastic pellet discharge, has done far more damage than the TCEQ’s order indicates.

In two years, Wilson and her co-plaintiffs have gathered 2,328 samples of illegally discharged plastic pellets and powders, a small fraction of what’s actually been discharged. In June 2016, Formosa began cleaning up its discharge.

In 2018, crews picked up nearly 37,000 bags of pellets and debris from Lavaca Bay and Cox Creek. That amounts to anywhere from 73.4 tons to 733 tons of plastic, depending on how many pounds were in each bag. That also totals 3.2 billion to 32 billions pellets discharged and cleaned up in 2018 alone. In 2017, crews picked up nearly 30,000 bags from Cox Creek. In 2017 and 2018, the private company cleaned up 6.59 billion to 65.9 billion of Formosa’s discharged pellets.

The private company still contracts for Formosa to clean up discharged pellets and plastic powder both on Cox Creek and Lavaca Bay four days a week. Plaintiffs continue to find pellets and plastic powder outside the cleanup booms and on the shores of the Creek and Bay.

Dr. Jeremy Conkle, a marine biologist from Texas A&M-Corpus Christi, who has been hired as an expert for the plaintiffs to discuss the extent and effects of the discharged plastics, has tested some of them and determined that they contain low levels of mercury.

“The Clean Water Act calls for fines of up to $53,484 per violation and the cleanup so far demonstrates that Formosa has racked up thousands and thousands of violations,” Wilson said. “The fine that TCEQ has ordered is a pittance and certainly not a deterrent. To date, Formosa hasn’t even stopped the discharge. We need much stiffer fines in order to make sure that Formosa takes environmental laws seriously in the future. That’s the only way we will be able to protect our waterways, our wildlife, our way of life.” Wilson is an environmental activist and former shrimper, and the sensitive natural environment around Lavaca Bay is vital to both tourism and fishing industries.

The July 2017 lawsuit, filed on behalf of Wilson and her co-plaintiffs by TRLA and private attorneys David Frederick (Austin), David Bright (Corpus Christi) and Amy Johnson (Portland, Oregon), requests that Formosa be fined the maximum amount allowed for each continuous illegal discharges into the Bay and Creek and for failing to report those discharges to TCEQ, which to date is $173 million, in accordance with the amount outlined in the Clean Water Act. Plaintiffs also ask the court to order Formosa to make specific engineering changes to the plant to stop future discharges of plastics and to continue daily cleanups until the engineering changes stop discharges. During the trial of the suit, which is expected in February or March of 2019, attorneys will argue that Formosa, by violating environmental law, has benefited economically compared to other companies that have complied.

Texas to fine Formosa Plastics for polluting tributary of Lavaca Bay