Plastics Firm to Pay $50M in Bay Pollution Settlement

Diane Wilson, a former shrimper and executive director of San Antonio Bay Estuarine Waterkeeper, handles her kayak. (Photo via Texas RioGrande Legal Aid)

VICTORIA, Texas (CN) – Nearly every day for four years, members of a Texas environmental group fanned out on their kayaks around a bay collecting plastic pellets that had washed ashore after being discharged from a factory. Their efforts paid off as the plant owner has agreed to pay a $50 million settlement to resolve Clean Water Act litigation.

The settlement Formosa Plastics Corp. agreed to pay in a consent decree Tuesday is the largest ever for a Clean Water Act lawsuit brought by private citizens, according to Texas RioGrande Legal Aid. The nonprofit law firm represented members of San Antonio Bay Estuarine Waterkeeper and its executive director, former shrimper Diane Wilson, in a federal lawsuit filed in July 2017.

The litigation centered on Waterkeeper’s challenge of a water discharge permit for Formosa’s 2,500-acre plant in Point Comfort on Lavaca Bay, 100 miles northeast of Corpus Christi, which the Texas Commission on Environmental Quality issued in June 2016.

The permit barred the discharge of floating solids other than trace amounts. Formosa argued in a March bench trial before U.S. District Judge Kenneth Hoyt that its permit does not define “trace amounts,” so the meaning is ambiguous.

Waterkeeper members provided Hoyt with plenty of evidence. They patrolled Lavaca Bay almost every day for four years, according to the group’s attorneys.

“In total, they collected 2,428 samples of pellets and plastic powders and stored them in zip-lock bags and bottles marked with dates, times, and locations. They also took thousands of photos and videos of plastic pellets in the water and along shores. Packing the samples into boxes, they took them to the courthouse in downtown Victoria,” Texas RioGrande Legal Aid said in a statement Tuesday.

The pellets were also regularly found in the bellies of fish caught in the bay, Wilson’s attorney Amy Johnson of Portland, Oregon, told Courthouse News.

Formosa used floating booms, mesh screens, nets and vacuum trucks to try to stop the pellets and PVC powder from entering drainage ditches around its plant. But Hoyt ruled in June that all those methods were inadequate.

Formosa’s use of fish netting for PVC powder was particularly futile, the judge found.

“PVC powder particles are too small to be captured by the fish netting and often attach to the banks of the channels where it is subject to migration during future runoff,” Hoyt wrote in his 21-page order.

Hoyt, a Ronald Reagan appointee, still has to approve the consent decree.

The $50 million settlement will go towards beach erosion control and restoration, research on the San Antonio and Matagorda Bay systems and their tributaries, and to support “nurdle patrol” volunteer groups that collect plastic pellets, also called nurdles, according to Texas RioGrande Legal Aid. Lavaca Bay is part of Matagorda Bay.

Nearly $20 million will be used to create an organization called the Matagorda Bay Fishing Cooperative, focused on reviving the bay’s once thriving fishing, shrimping and oystering industries, which Waterkeeper says in the consent decree have declined due to pollution.

Meanwhile, $10 million is set off to develop a park next to Green Lake, a natural tidal lake with no public access, which is 2 miles across and 13 miles around and separated from San Antonio Bay by coastal marshes.

Another $750,000 is earmarked for YMCA camps for children to learn how to take care of the bay systems and their marine life.

The plastics company also agreed to pay more than $3 million in fees and costs to the plaintiffs’ attorneys.

Formosa, a Taiwanese-owned company with a U.S. headquarters in New Jersey, employs nearly 2,900 people and says its annual revenues exceed $5 billion.

Pursuant to the consent decree, it will hire an engineer to design an improved pollution-collection system for its plant.

Waterkeeper members can continue to monitor around the plant and if they find any plastic pellets Formosa will have to pay more into the settlement– $10,000 per discharge in 2019, increasing annually to more than $54,000 per discharge, according to Texas RioGrande Legal Aid.

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