A federal judge described Formosa as a “serial offender” when he ruled this week that the company had violated the Clean Water Act by discharging plastic pellets and PVC powder into Lavaca Bay and Cox Creek.
U.S. District Judge Kenneth M. Hoyt’s 21-page ruling comes after a trial was held over a week in Victoria in March.
Hoyt wrote that Formosa’s permit to discharge wastewater and stormwater from its 13 outfalls from its plant in Point Comfort into Lavaca Bay and Cox Creek has always included the prohibition of the “discharge of floating solids or visible foam in other than trace amounts.”
Formosa recently began arguing that “trace amounts” was ambiguous, and Formosa employees testified at the trial in March that the company attempted to quantify it based on its permitted mercury discharge limit. If Formosa quantified it that way, the company would be allowed to discharge a total of 28,060 pellets from three outfalls.
The judge, however, rejected that argument and instead turned to Webster’s Dictionary.
It defines trace as “a very small amount; barely discernible quantity of a constituent, especially when not quantitatively determined, because of minuteness.”
In March, the San Antonio Bay Estuarine Waterkeeper, a nonprofit that brought the suit against Formosa, called experts who testified that the systems Formosa put in place to catch the pellets before they were released and pick them up afterward were ineffective. The judge agreed and wrote Formosa hadn’t mounted much of a defense.
He also had stern words for the Texas Commission on Environmental Quality, which the Environmental Protection Agency has given the authority to issue and enforce Clean Water Act permits.
Even though Waterkeeper volunteers collected for this case evidence that Formosa had discharged pellets for more than 1,000 consecutive days, TCEQ only cited Formosa six times for similar behavior.
This, the judge wrote, “merely shows the difficulty or inability of TCEQ to bring Formosa into compliance ...”
He added the fact that Formosa has never reported to authorities a discharge of pellets is a separate violation of its permit and this has all harmed the public.
For former shrimper and Waterkeeper volunteer, Diane Wilson, the ruling was justice after about 30 years of protesting Formosa’s Clean Water Act permit, which it first obtained in 1994.
“I had begun to accept that that was the way it was, that you’re going to fight and scream and make things public, and you’re never going to get justice for it. That’s the way it is down here, and so to have it handed to you is such a rare thing. It’s hard to put into words,” she said.
She said she’s grown used to her reputation as a troublemaker, as have other volunteers who continue to collect pellets they find every day at Formosa’s outfalls and along the banks of the bay.
Wilson said what the judge said about TCEQ made it all worth it, especially because her effort to get one man to testify about how he’d found pellets in fishes’ bellies ended with him slamming the door in her face.
“He said that he wanted to leave it to the agencies to take care of, and it’s like, ‘Well, this is what happens. When you leave it to the agencies to take care of, it doesn’t get taken care of,’” Wilson said.
The case also has significance beyond Calhoun County or even Texas.
Formosa has proposed building a 1,600-acre, $9.4 billion facility along the banks of the Mississippi River in Louisiana. It will produce the same or similar products as the facility in Point Comfort: polyethylene, ethylene glycol, propylene and polypropylene, said Julie Teel Simmonds, an attorney at the Center for Biological Diversity. The facility will also be near a low-income, predominantly black community that has suffered severe health effects from decades of exposure to pollutants from other industrial facilities there.
On behalf of the Center and other advocacy groups, Teel Simmonds has asked regulators in Louisiana to reject Formosa’s permit applications, which is one step toward realizing building the facility. She said this ruling will help her show the regulators in Louisiana that they are no more equipped than the regulators in Texas who failed to make Formosa heel.
“There are so many permit applications across the Gulf Coast and across Appalachia for facilities just like the Formosa Point Comfort facility that are going to make plastic, and given the growth in that industry, the push by those companies to expand across the country and make so much more plastic, we have to be vigilant because this pollution problem could be exponentially worse if what is happening in Texas is replicated across those regions,” she said.
Attorneys for both sides are scheduled to talk with Hoyt by phone July 22.
Amy Johnson, an attorney representing Waterkeeper, said in a few months, the judge will preside over another trial in Victoria about what the remedy should be.
Formosa declined to comment until then.
“Formosa does not comment on pending litigation,” spokesman Steve Marwitz wrote in an email Friday afternoon. “We are carefully reviewing the court’s order and will react to it in the context of the remedy phase of this proceeding.”
TCEQ also had no comment on the judge’s ruling.
Waterkeeper will ask the judge to make Formosa pay a substantial penalty to the federal government as well as alter its systems to catch the pellets before they leave its property.
Johnson said to do that, Waterkeeper will present evidence to the judge that Formosa has known about the pellet discharge since 2000 and has profited $43.9 million by not doing anything about it.
The judge found Formosa had a total of 1,885 violations for discharges of pellets, and Johnson said the maximum penalty he could assess for those violations is about $101 million. She said if the judge makes Formosa pay for the additional violations of not reporting the pellet discharges to authorities, that could increase the maximum penalty to about $162 million. To date, Formosa has paid only a $121,185 penalty to the state for releasing pellets.
“I know there are lots of people who work for Formosa,” Johnson said Friday, “but Formosa can do this right and be a responsible corporate citizen. Point Comfort deserves to have its water be clean. That shouldn’t be a radical idea. That’s what everybody deserves.”