Spending time with a pellet pollution brigade at the water's edge in Texas

Point Comfort, Texas — Just across the highway from a Formosa Plastics Corp. factory on the Gulf Coast of Texas, Diane Wilson pulls a kayak off her red pickup and gets ready to put it in the water.

Wilson, a former shrimp boat captain turned environmental activist, is there on a hot, early August day with three other volunteers to measure pollution from plastic pellets in the waters around Formosa's huge resin making operation at Point Comfort.

She and the others in a small brigade of local residents, called the San Antonio Bay Estuarine Waterkeeper, have been collecting and recording pellet and PVC powder runoff on an almost daily basis since early 2016.

It may sound like a bit of a David vs. Goliath campaign, but the group recently scored a big win when a federal judge ruled in its favor in a clean water lawsuit it brought against Formosa.

"So far, we've collected 2,500 samples [and] we have over 7,000 videos and photos of illegal discharges," Wilson, the lead plaintiff in the Waterkeeper suit, said. "We have been finding them daily. They're not hard to find."

On June 27, U.S. District Judge Kenneth Hoyt largely agreed with the Waterkeeper arguments, calling Formosa a "serial offender" of the Clean Water Act for discharging pellets and PVC powder into Lavaca Bay and nearby waters beyond what its Texas state permit allows.

"The undisputed evidence shows that plastic pellets and PVC powder discharged by Formosa caused or contributed to the damages suffered by the recreational, aesthetic, and economic value of Lava[ca] Bay and Cox's Creek," Hoyt wrote, adding that the "violations are enormous."

Down at the shoreline, before she puts her kayak in the water for the day's catch of plastic runoff, Wilson and the other volunteers direct a visitor's attention to white pellets of resin pooling in the water, like rice in a soupy bowl. A common sight, they say.

Then they pull up a clump of dirt from just offshore to show how the pellets can work their way down into the muddy soil.

Wilson said she hopes the attention from Hoyt's ruling will elevate concerns about waterborne pellet pollution both in Texas and nationally. She and her group are pushing for substantial fines in the next phase of the trial and see vindication in the court's actions thus far.

"This is the first time I've ever felt justice was delivered. For a judge to come out and make those statements, it blew my mind," Wilson said. "He actually listened to us. He actually looked at our evidence."

The Waterkeeper lawsuit has become the most prominent court case in the United States on pellet pollution.

For Taiwan-based Formosa, which generates more than $5 billion in U.S. sales annually, there's potentially a lot of money at stake.

Hoyt has scheduled several days of testimony at the federal courthouse in Victoria, Texas, in late October to hear evidence on what any potential fine and remedies should be.

Wilson and her allies say the Clean Water Act allows fines of more than $160 million, based on what Hoyt said were 1,800 separate violations since 2016.

Formosa, while not commenting on the case because it is pending litigation, in January accepted a $121,000 fine from the Texas Commission on Environmental Quality, covering six violations in April and May 2017.

The Waterkeeper group filed its federal pellet lawsuit in 2017, but for Wilson it continues several decades of work against local plastics and petrochemical factories around her home in Seadrift, Texas.

Sitting on the deck of her small, cabinlike house outside the small town, the 70-year-old grandmother of eight said she was something of a late bloomer to her causes.

A fourth-generation local resident who made her living in the commercial shrimping industry, she didn't get involved in environmental issues until she was about 40.

What drew her in, Wilson said, were news reports and Environmental Protection Agency data that said Seadrift and the rest of Calhoun County had, at that time, more chemical emissions than any other U.S. county.

It led her to a series of actions and legal battles against Formosa and other local factories, including hunger strikes and her decision to try to sink her own shrimp boat in protest — a plan interrupted by the Coast Guard — in waters outside Formosa's factory.

She wrote a 2005 book about her experiences, "An Unreasonable Woman: A True Story of Shrimpers, Politicos, Polluters and the Fight for Seadrift, Texas," garnering speaking engagements and an appearance on C-SPAN's Book TV program.

A short 2005 documentary, "Texas Gold," looked at her activism, and in 2002 Wilson helped start the women-led, national anti-war group CodePink.

Pellet pollution did not become a concern until more recently. Wilson started learning about it in 2009, after a Formosa worker contacted her.

"I became really focused on the pellets in 2009," she said. "I was talking to former workers and I was talking to workers inside the plant. ... There are ones that realize there's a problem, but they got a job and they don't want to lose it, so they will tell you things."

Today, several former Formosa employees are among the half-dozen people in the Waterkeeper brigade that regularly document pellet pollution. Some of them testified at the federal trial in March.

Still, it took years before the group started its waterside pellet monitoring.

At first, Wilson said members took their concerns to federal and state environmental regulators. She believes their efforts got the agencies to take some action, but she said that over time, the group felt that agencies either were not, or could not, be effective.

"I'm a regular citizen. I really believed, I really did, if you talk to the agencies, they are the ones who know and they will do something," she said. "I really believed it. That actually was one of the worst bubbles that broke for me is, 'No, they are not doing their job.'"

So in January 2016, the volunteers began their own pellet documentation effort, which eventually led to the lawsuit. The case is being funded by the Mercedes, Texas-based nonprofit Texas RioGrande Legal Aid Inc.

Wilson hopes the federal court action will put more pressure on Formosa. And she hopes that the final order could serve as a template for other companies.

She said the group wants stiffer fines and cleanup orders than the Texas CEQ decision in January.

"If it becomes serious enough, one, it will make them think twice before doing it again, and two, it will make other industries pay attention that now it's not like a free ride," she said.

Group members keep the evidence they've collected in a shed next to Wilson's home. There, bags and bottles of pellets and powders, labeled by when and where volunteers found them, sit in plastic boxes along the walls.

In March, they hauled the boxes to the federal courthouse in Victoria for the bench trial.

In his June ruling, Hoyt, who was nominated to the federal bench in 1987 by President Ronald Reagan, noted that the Waterkeeper evidence included more than 2,400 samples of plastics in ziplock bags, along with photos and videos.

He wrote that Wilson and five other Waterkeeper members "provided detailed, credible testimony regarding plastics discharged by Formosa" and said three outside experts the group brought in were "reasonable and credible."

Hoyt said that none of the experts provided by Formosa contradicted the lawsuit's central claim that the company's discharges were violating its permits, which allow only "trace" amounts of discharge.

"In rebuttal, Formosa offered the testimony of three plant employees and two independent experts," the judge wrote. "None rebutted evidence that Formosa was and had discharged substantial quantities of plastic pellets and PVC powder into Cox Creek and Lavaca Bay in violation of its permit."

Wilson says the pollution hurts local livelihoods. She draws a direct line from pellet and PVC powder runoff, and other petrochemical discharges she's protested, to steep declines in the area's commercial fishing industry.

There were more than 100 commercial shrimp boats in the 1990s but fewer than 10 today, she said.

"There has been a real severe crisis in the fisheries," Wilson said. "I think a significant part of it does relate to the petrochemical plants."

Part of Lavaca Bay was declared a Superfund site in 1994, contaminated by mercury discharged from an aluminum plant near the Formosa facility.

Wilson said group members tested plastic pellets for mercury and worry about plastics getting into human food chains, whether or not they're contaminated with mercury and other toxins. She said it's an emerging issue.

"You know the fish are eating it," she said. "We've had oystermen who say they've found the pellets when they shuck the oysters. It's a whole new knowledge that is awakening."

In his ruling, Hoyt said evidence established that discharges have damaged the local shrimp population and hurt Wilson's livelihood. Bobby Lindsey, another member of the group, said resin pollution hurts local businesses that depend on the natural environment.

"You have to understand Calhoun County, because of the horseshoe nature of the county, has the longest shoreline of any county in the state of Texas," he said. "The entire Calhoun economy outside the chemical plants is tourism and fishing. Nowadays mostly recreational fishing. Anything that impacts that impacts a huge number of other businesses."

Beyond potential fines, the case is now likely to turn on what additional steps Formosa should take.

In his ruling, Hoyt noted that the company has installed equipment including floating booms and mesh screens, that it's brought in vacuum trucks and hired more staff and contractors, all to try to catch pellets and powder.

But the judge said those efforts to date "fail to sufficiently or effectively prevent the release of plastic pellets and powders."

He said he found that "expert opinion offered by Waterkeeper are persuasive" that Formosa's stormwater management system is not good enough.

Formosa declined to comment because the court case is still pending, but a local newspaper, the Victoria Advocate, urged the company to "seize" the chance to improve its environmental management.

In an editorial, the newspaper said the company has taken "elaborate and expensive" actions to try to stop pellet and powder leaks and that company executives are "understandably frustrated" by the ruling.

As well, it called the company a cornerstone of the local economy, with 3,400 employees and contractors providing an annual payroll of $226 million. A recent $5 billion expansion has kept the local economy strong even as other businesses have cut back, it said.

But the newspaper's editorial board also said the judge's conclusions are logical, that it is correct to characterize the company as a "serial offender," and urged it to do more, including negotiate a settlement.

Wilson said the Waterkeeper group is pushing a "zero discharge" standard for pellet and powder emissions.

The group estimates it could cost the company millions of dollars to retrofit equipment but also argues the company has saved millions more since the plant opened by not having strong enough controls.

"There's going to have to be infrastructure inside that's going to have to change," Wilson said. "There are ways you can customize things to go to zero discharge."

Waterkeeper puts the Formosa case in a broader context.

The group joined with more than 270 other community and conservation organizations, including the Center for Biological Diversity and the Natural Resources Defense Council, in a July 24 petition to the EPA calling for tougher Clean Water Act regulations around pellet pollution from plastics factories. They cited Hoyt's ruling in their petition.

In the meantime, the group is turning to the remedy phase of the trial in October. Volunteer Lindsey says members are hopeful but not sure how it will turn out.

"I think the way the judge basically excoriated Formosa in his original findings, we have reason to be optimistic about him levying substantial fines," Lindsey said, before pausing. "We'll see how it goes."