Citizen Suit Against Formosa Goes to Trial in March

TRLA client Diane Wilson, who for years has collected samples of the pellets that Formosa Plastics illegally dumps into Lavaca Bay, will get her chance to present evidence at trial this month. On March 25, a U.S. District Court judge in Victoria will hear the suit she filed with her co-plaintiffs – the San Antonio Bay Estuarine Waterkeeper – against Formosa’s Point Comfort facility for illegally discharging plastic pellets and debris into Lavaca Bay and nearby waterways.
The plaintiffs will argue that Formosa, a longtime polluter that continues its illegal discharges, should be fined far more than the roughly $112,000 that the Texas Commission on Environmental Quality (TCEQ) levied against the company in January. The TCEQ fine was for only six pollution events from April and May 2017. (Evidence is summed up in the Plaintiff’s Proposed Findings of Fact.)
    But Wilson and her co-plaintiffs -- represented by attorneys David Bright, David Frederick, and TRLA consulting attorney Amy Johnson as well as TRLA -- have gathered 2,400 samples of illegally discharged plastic pellets and powders during the past three years, and even that is a small fraction of what’s actually been discharged. Under Formosa’s wastewater permit, it is not supposed to discharge “floating solids” or “visible foam” in anything other than “trace amounts.” The company also had been warned  by the EPA about its problem with discharged pellets in 2010.
“Formosa is a wealthy multinational company that has dumped plastic into Lavaca Bay and the nearby bays for years,” Wilson said. “The fine needs to be high enough to act as a deterrent. That’s the only way Formosa will clean up its act.”
Wilson and her co-plaintiffs are seeking fines of as much as $179 million, which reflects the maximum penalty under the Clean Water Act for pollution events on 1,121 days and for failing to report those violations.
TRLA’s Erin Gaines describes the upcoming trial as a rarity. “It’s unusual for a citizens’ suit against a big polluter to go to trial, and it’s doubly unusual for the case to rely so heavily on citizen-collected evidence,” she said.
Under pressure from the suit and the TCEQ, Formosa has begun cleaning up its plastic discharge. So far, crews have picked up anywhere from 150  to 1,499 tons of pellets and debris, depending on how many pounds were in each bag. That totals 6.5 to 65.9 billion pellets discharged and cleaned up from April 2017 until February 2019.
“Because [TCEQ’s] investigation was so limited, it only fined Formosa for a handful of pollution events,” said Wilson, a former shrimper and longtime resident of Seadrift, Texas. “The amount is so small that Formosa won’t even notice. In fact, the company hasn’t made the changes it would need to make to stop the discharge. We’re still finding plastic pellets and powder on Lavaca Bay and Cox Creek.”
During the trial starting in March, Wilson and her co-plaintiffs will present photos of plastic-clogged water as well as samples of the discharge. Attorneys will argue that Formosa, by violating environmental law, has benefited economically compared to other companies that have complied. The case will be heard by the United States District Court for the Southern District of Texas Victoria Division.

nancy nusser