Residents Sue Formosa Plastics for Polluting Lavaca Bay

FOR IMMEDIATE RELEASE
July 31, 2017

Contact:
Erin Gaines (512) 374-2739; egaines@trla.org
Nancy Nusser, (410) 934 9588; (512) 374 2764; nnusser@trla.org
Photos and additional documents are available at: https://www.dropbox.com/sh/6n1rb43ukx11741/AABkVTG1spVh2IGuV5tIYOcEa?dl=0

Residents Sue Formosa Plastics for Polluting Lavaca Bay
Seeking $57 million in penalties for breaking environmental laws

Ronnie Hamrick, a member of the San Antonio Bay Estuarine Waterkeeper, with bags of plastic pellets and debris collected along the shores of Lavaca Bay and other nearby waterways.  Photo credit: San Antonio Bay Estuarine Waterkeeper

Ronnie Hamrick, a member of the San Antonio Bay Estuarine Waterkeeper, with bags of plastic pellets and debris collected along the shores of Lavaca Bay and other nearby waterways.
Photo credit: San Antonio Bay Estuarine Waterkeeper

POINT COMFORT, Texas – Local residents filed suit July 31 against Formosa Plastics for “significant, chronic, and ongoing” Clean Water Act violations that pollute Lavaca Bay and other waterways, litter shores, and harm fish and wildlife. The plaintiffs – represented by Texas RioGrande Legal Aid (TRLA), the environmental law firm Frederick, Perales, Allmon and Rockwell, and Corpus Christi trial lawyer David Bright, of Sico, Hoelscher, Harris & Braugh – are asking a federal judge to order Formosa to stop all future dumping, clean up pollution it has already generated, and pay as much as $57.45 million in fines.

Plaintiffs Diane Wilson, a former shrimper and an author, and the San Antonio Bay Estuarine Waterkeeper have reported for years that Formosa’s 2500-acre Point Comfort facility illegally discharges plastic pellets into nearby waterways. But in January 2016, in response to the lack of state and federal oversight of Formosa, Wilson and local resident Ronnie Hamrick, a Waterkeeper volunteer, started collecting pellet samples from more than 20 miles of shoreline along Lavaca Bay and Cox Creek. Plastic pellets and debris were found from Six Mile to Indianola and Port Connor. Wilson, Hamrick and other Waterkeeper volunteers have collected more than 1,600 samples since Jan. 31, 2016, demonstrating that Formosa has violated the federal Clean Water Act continuously for over 548 days. The $57.45 million in fines, which would go to the federal government, reflect a daily fine of $104,828 for the 548 days, amounts authorized as penalties under the Clean Water Act.

“Formosa has been illegally dumping pellets into Lavaca Bay for more than a decade,” Wilson said. “That threatens the fish and wildlife and erodes the natural beauty of this area — all of which are vital to our community. We’ve tried talking to Formosa and to the state and federal authorities responsible for protecting the environment and enforcing our laws. None of it has worked. So we’re filing suit. It’s our only option now.”

In April, the plaintiffs sent a “notice of intent to sue” to Formosa executives. The letter warned that the suit would be filed unless Formosa made “permanent changes” that prevent future pellet discharge and pledged to clean up all of the plastic litter it has already left in Texas bays, waterways, wetlands, and on beaches.

“Time’s up,” said Erin Gaines, a TRLA attorney. “Even after multiple complaints from citizens in the area, Formosa has refused to stop what’s been at least a decade of illegal chronic pollution. Meanwhile, the agencies designated to protect this habitat are allowing the company to violate state and federal pollution laws. The people in the area have no choice. They had to step up and enforce the laws.”

Two of the bodies of water polluted by Formosa’s illegal discharges – Cox Creek and Lavaca Bay – connect to many other bays, including Chocolate Bay, Cox Bay, Keller Bay, and the larger Matagorda Bay System, and pellets likely have infiltrated those water systems. These bays are near the habitats of the endangered Whooping Crane and Kemp’s Ridley sea turtles.

Both the environmental damage created by plastic discharge and Formosa’s violation of federal and state laws are firmly established. In 1992, the Environmental Protection Agency released a 130-page report entitled Plastic Pellets in the Aquatic Environment: Sources and Recommendations, which warned that the pellets, which stay in the environment for 10 years, “have become of particular concern.” The EPA recommended applying “significant penalties” when industries discharge plastic pellets into water.

In 2004 and 2010, the EPA documented Formosa’s problems with a settling pond spilling plastic pellets, and again in 2010, EPA found the same problem, as part of investigations of the Point Comfort facility. In the summer of 2013, Wilson, the San Antonio Bay Estuarine Waterkeeper, the Union of Commercial Oystermen and individual shrimpers, called for a contested case hearing on Formosa’s water permit under the Texas Pollutant Discharge Elimination System (TPDES), citing among their concerns Formosa’s illegal discharge of plastic pellets. The executive director of the Texas Commission on Environmental Quality (TCEQ) responded that any discharge of pellets clearly violates Formosa’s permit and urged members of the public to contact the TCEQ if they saw more pellets.

In 2016, Wilson and Hamrick again notified the TCEQ of the discharge of pellets into Cox Creek and Lavaca Bay. In response, TCEQ conducted investigations in March and September 2016, determining in both cases that Formosa had violated its water permit by illegally discharging pellets. Despite these investigations and findings of violations, the discharge of pellets has continued and the state agency has not fined Formosa or required any corrective action.

The complaint filed today stated that when determining penalties, the Court is required under the Clean Water Act to take a number of factors into consideration, including “Formosa’s history of repeated violations” and “the economic impact of the penalty on a company like Formosa USA with $1.36 billion in annual net income before taxes in 2016.”

“My view is that Texas state environmental regulators routinely underestimate the deterrent value of penalties,” said David Frederick, who represents the San Antonio Bay Waterkeeper. “If the violator, in this case Formosa, is penalized enough, it and others like it will alter their behavior.”

“Formosa is a huge and wealthy company,” he continued. “It’s part of an even larger Taiwanese business group. We believe a judge will understand that actors of this size need to be disciplined on a scale they cannot ignore.”

Bobby Lindsey, who monitors the bay for the Waterkeeper, said, “Our livelihoods depend on the health of the fish and wildlife, and on the beauty of the Lavaca Bay area. Yet Formosa refuses to act as a good, responsible corporate neighbor. They’ve left us without choices. With this suit we’re defending not only our environment but also our way of life.”

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Established in 1970, Texas RioGrande Legal Aid, Inc. (TRLA) is a nonprofit organization that provides free legal services to about 25,000 low-income Texans. TRLA’s mission is to promote the dignity, self-sufficiency, safety and access to justice for low-income Texans by providing legal assistance and related educational services.