After getting hit with a $121,000 fine for discharges of plastic pellets into waterways around its Point Comfort, Texas, resin plant, Formosa Plastics Corp. USA is asking a federal court to dismiss a lawsuit from local environmentalists seeking bigger penalties and more action against the company.
Formosa argues that a Jan. 16 fine and consent order from the Texas Commission on Environmental Quality settles the ongoing case, filed in 2017 in U.S. District Court.
But the environmentalists contend that the Texas state fines only cover a small fraction of the violations that they allege, and that fines could be as high as $173 million under the Clean Water Act.
Formosa said that since Texas regulators have accepted what the company has done to fix the problem, the court should dismiss the case ahead of its March 25 trial.
“TCEQ recognized the corrective actions taken by Formosa Texas in response to the enforcement action, assessed an administrative penalty against Formosa Texas, and order Formosa Texas to comply with certain technical requirements,” the company said.
“Plaintiffs wish for this court to second guess the agency, assess a larger penalty, and require Formosa to comply with additional technical requirements to be spelled out by the plaintiffs' expert witness,” Formosa said. “Plaintiffs' claims are now moot and should be dismissed.”
But in response the plaintiffs -- San Antonio Bay Estuarine Waterkeeper and local resident S. Diane Wilson -- say the TCEQ fine only covers a few months of violations and should go back to 2010, when they say the Environmental Protection Agency noted pellet discharge violations.
They argue that the TCEQ order only covers three of the 12 stormwater outfalls from the plant and does not address the company's violations of reporting requirements.
The complaint described a network of local residents who monitor discharges on their own, including setting up nets and kayaking to conduct measurements at remote locations.
“Over the last three years, plaintiffs and other local citizens have gathered extensive evidence of regularly occurring plastics discharges in more than trace amounts at and downstream of Formosa's outfalls, including over 2,360 samples and thousands of photos and videos from locations along Cox Creek, Lavaca Bay, and Matagorda Bay,” they said.
Formosa said TCEQ investigators began conducting multi-day investigations in March 2016, and told the company it was illegally discharging plastic pellets into local waterways in violation of federal law and its permit under the National Pollutant Discharge Elimination System.
Formosa said that March 2016 inspection was the first time TCEQ had ever alleged that the company discharged “more than a trace amount” of plastic pellets and solids into waters, in violation of its permit. The company said it's had that permit for more than 25 years.
In response to the TCEQ investigation, Formosa said it undertook extensive cleanup of Cox Creek and Lavaca Bay around the plant and during the negotiations, implemented a pellet recovery system in mid-2017.
The environmentalists say it was their complaints to TCEQ in March 2016 that first prompted the agency to take action, and they say the changes Formosa made as part of the TCEQ order have not adequately stopped pellet discharges and that the company should do more cleanup work.
