“Intent to Sue” Formosa Plastics for Polluting Lavaca Bay

April 6, 2017, POINT COMFORT, Texas – Local residents – represented by Texas RioGrande Legal Aid (TRLA ) and the environmental law firm Frederick, Perales, Allmon and Rockwell – today announced their intent to sue Formosa Plastics for “significant, chronic, and ongoing” Clean Water Act violations that have polluted Lavaca Bay and other waterways. The suit will seek penalties for illegally dumping plastic pellets and PVC dust that could amount to over $45 million for violations in the last 14 months.

The plaintiffs – Diane Wilson, a former shrimper and author of “An Unreasonable Woman” and “Diary of an Eco-Outlaw,” and the group San Antonio Bay Estuarine Waterkeeper – have reported for years that Formosa’s 1800-acre Point Comfort facility has been illegally discharging the pellets into nearby waterways. But last January, in response to the lack of oversight of Formosa, Wilson, and another local resident, Ronnie Hamrick, a volunteer member of the Waterkeeper group, started collecting pellet samples from over 20 miles of shoreline along Cox Creek and Lavaca and Matagorda bays. Between then and today, Wilson and the San Antonio Bay Estuarine Waterkeeper have collected more than 1,064 samples, demonstrating that by dumping the pellets, the Point Comfort facility has violated the federal Clean Water Act every day for the last 14 months.

Ronnie Hamrick, a member of the San Antonio Bay Estuarine Waterkeepr, holding plastic debris that Formosa Plastics discharged into Lavaca Bay and nearby waterways.

Ronnie Hamrick, of the San Antonio Bay Estuarine Waterkeeper, holds plastic debris found on shoreline.

“Formosa’s pollution of Lavaca Bay and surrounding waterways endangers the wildlife, the fish, and the beauty of the environment that are the foundation of our community’s life here,” Wilson said. “Formosa has been discharging its plastics wastes since at least 2004, even though it’s completely against state and federal laws. It has to stop, and Formosa has to clean up the damage it has already caused. We are seeking significant dollar penalties, which are paid to the government, because this dumping has not been just some innocent, unavoidable thing.”

Plaintiffs sent a “notice of intent to sue” letter to Rick Crabtree, vice president/general manager of the Point Comfort-based Formosa Plastics Corporation, Texas, and to Jason Lee, chairman of the board. The suit will be filed in federal district court in 60 days unless Formosa makes “permanent changes” that prevent future pellet discharge and cleans up all plastic litter it has already left in Texas bays, waterways, wetlands, and on its beaches, the letter said. 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 habitat of the endangered Whooping Crane.

“The illegal discharges are chronic and continuing, as shown by the samples, photos and videos taken by residents,” said Erin Gaines, a TRLA attorney and lead counsel for the plaintiffs. “These are serious issues for people who love this area for its beauty, and for the industries – fishing and tourism – that depend on the natural habitat. Unfortunately, the agencies designated to protect this habitat have not put a stop to this harmful pollution, even after numerous citizen complaints, so citizens were left with no choice but to step up and enforce the laws themselves.”

Both the environmental damage created by plastic discharge into waterways 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 subsequent years, the EPA worked with industry to recommend specific measures that would reduce their discharge. “Even though many industries across the world have heeded the recommendations of EPA and the industry group Operation Clean Sweep, Formosa is not among them,” the letter of intent to sue states. “Formosa has been tone deaf to the damage it is causing and has continued to illegally discharge pellets.”

In 2004 and 2010, the EPA documented Formosa’s discharge of pellets and PVC dust 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. TCEQ’s then-executive director 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, the 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.

“After all of these years, it’s obvious that Formosa has no intention of becoming a responsible corporate citizen unless it’s forced,” said Bobby Lindsey, Waterkeeper for the San Antonio Bay Estuarine Waterkeeper. “They’ve left us with no option other than the one we’re taking. We will file suit to get our bays and wetlands cleaned up. Our homes are here. Our livelihoods depend on it.”