United States District Court, S.D. Texas, Victoria Division
MEMORANDUM AND ORDER
Kenneth M. Hoyt United States District Judge
case is brought pursuant to State of Texas laws and the Water
Pollution Control Act (“Act”), 33 U.S.C. §
1251 et. seq. Before the Court are the parties:
proposed findings of fact and conclusions of law; (b) the
testimonial evidence; (c) the arguments of counsel; and, (d)
the documentary evidence presented by both the plaintiff, San
Antonio Bay Estaurine Waterkeeper and S. Diane Wilson
(“Waterkeeper”) and the defendants, Formosa
Plastics Corp., Texas and Formosa Plastics Corp, U.S.A.
several day, non-jury trial, the case was taken under
advisement by the Court to consider only the question of
liability, if any, on the part of Formosa for alleged
violations of State and federal law. After a careful review
of the evidence, pleadings, arguments of counsel and the
applicable law, the Court determines that: (a) it has
jurisdiction over Waterkeeper's suit; and (b) Formosa has
historically and continues to violate its Texas Pollutant
Discharge Elimination System permit (“TPDES”) and
consequently the cwa.
THE ACT AND AUTHORITY OF STATES
Clean Water Act (“CWA”) makes unlawful the
discharge of any pollutant by any person that is not
discharged pursuant to a permit [33 U.S.C.A. § 1311(a)].
Therefore, discharges of pollutants are lawful if the
discharging person holds a National Pollutant Discharge
Elimination System (“NPDES”) Permit that meets
the requirements of the CWA. [33 U.S.C.A. § 1342].
Specifically, Section 1342 of the Act provides that upon the
approval of the Environmental Protection Agency
(“EPA”), states may create and administer a State
Pollutant Discharge Elimination System (“SPDES”)
permit program. Id. Texas has an SPDES Permit
Program administered by the Texas Commission on Environmental
Quality (“TCEQ”) with which the authority to
issue permits for the discharge of pollutants into the State
waters. See [Tex. Water Code § 26.027].
Therefore, Texas law prohibits the “discharge [of]
sewage, municipal waste, recreational waste, agricultural
waste, or industrial waste into or adjacent to any water in
the state” except as authorized by TCEQ. Id.
at § 26.121. Formosa is a permittee.
requires that program administrators establish reporting
mechanisms necessary for determining when permittees are in
violation of federal effluent standards. [33 U.S.C.A. §
1318(a)]. These reports are publicly available [33 U.S.C.A.
§ 1318(b)]. Also, Texas law requires as a condition of
all permits, that permittees report any non-compliance that
endangers human health or safety, or the environment. [30
Tex. Admin. Code §305.125(9)]. Initial reports of
non-compliances may be made orally within the first 24 hours;
however, a written report is required within five days.
Id. at §305.125(9)(A).
WATERKEEPER'S MISSION AND THE RELIEF SOUGHT
is a 501(c)(3), non-profit organization that has as its
mission the preservation of local wetlands and waterways in
Lavaca and Matagorda Bays and Cox Creek. In keeping with this
mission, Waterkeeper enlisted volunteers, marine biologists
and environmental advocates to monitor the water ways and
collect evidence that it contends supports its claim that
Formosa has and continues to violate the Act has failed to
report its conduct to state or federal agencies pursuit to
seeks a declaratory judgment that Formosa has violated, and
on an ongoing basis, continues to violate its TPDES Permit
under the Act, pursuant to 28 U.S.C. §§ 1311, 1342
and 40 C.F.R. § 122.41(a). Waterkeeper also seeks
monetary damages, attorney's fees and injunctive relief.
Jurisdiction over such disputes is conferred on this Court by
28 U.S.C. § 1311 and 33 U.S.C. § 1365(a) of the
Waterkeeper's Notice Timely
to 40 C.F.R. § 505(b)(1)(A), Waterkeeper notified
Formosa of its allegations and gave notice of its intent to
file suit. Notice was also provided to the EPA and the TCEQ.
The record shows that more than 60 days expired between the
notice given and the filing of this suit, which notice
satisfied the requirement of the Act. See 33 U.S.C.A
§ 1365(b)(1). At the time that Waterkeeper commenced
this suit, neither the EPA nor TCEQ had commenced a civil or
criminal action against Formosa to enforce compliance with
its TPDES Permit. The Court determines that the citizen's
notice requirement(s) are met.
Waterkeeper's Challenge to Permit Renewal
July of 2013, Waterkeeper challenged Formosa's
application for a renewal and amendment to its TPDES Permit
due to alleged past violations of its Permit and the CWA.
After hearings and some delay, Formosa's Permit was
renewed on June 10, 2016, as Permit # WQ0002436000. This
Permit is the subject of Waterkeeper's suit and
allegations that Formosa continues to violate it Permit,
State and federal law.
FORMOSA'S WASTEWATER AND STORMWATER DISCHARGES
was issued its original water discharge Permit in 1993. On
June 10, 2016, Formosa's TPDES Permit was renewed to
expire on January 1, 2020. The Permit allows Formosa to treat
and discharge wastewater and stormwater and discharge it into
Lavaca Bay and into Cox Creek, both waterways are
“navigable waters” of the United States.
has 13 permitted wastewater or stormwater Outfalls from the
plant (Outfalls 001-013). Outfall 001 discharges treated
wastewater and process (or contact) stormwater. Outfalls
002-013 discharges non-process (or non-contact) stormwater.
Two of these Outfalls (numbered 001 and 011) discharge to
conveyances that lead to Lavaca Bay. Six Outfalls (numbered
002, 003, 004, 005, 010 and 013) discharge to conveyances
that lead to Cox Creek, south of State Highway 35. The
remaining five wastewater Outfalls (numbered 006, 007, 008,
009, and 012) discharge to conveyances that lead to Cox Creek
north of State Highway 35.
primary function of the wastewater system that discharges
from Outfall 001 into Lavaca Bay is to remove or dissolve
organic waste. While it has some functions capable of
removing plastic pellets and PVC powder from the wastewater
prior to discharge, Formosa is aware that these functions
have proven inadequate based on the quantity of plastic
pellets and PVC powder that move through the system. Remedial
measures taken at the outfall recently have also proved to be
2016 Permit prohibits the “discharge of floating solids
or visible foam in other than trace amounts” from
Outfall 001. See (Ex 2 at 71403-000224). This
prohibition is not new but is the exact same Permit terms
found in Formosa's original TPDES Permit issued in 1993.
See (Ex 88 at FPC048636). The Permit also prohibits
the “discharge of floating solids or visible foam in
other than “trace amounts” from Outfalls 002,
003, 004, 005, 006, 007, 008, 009, 010, 011, and 012.
See (Ex 2 at 71403-000235-000236). Moreover, TCEQ
rules prohibit the discharge of “floating debris and
suspended solids” into surface waters. See [30
Texas Admin. Code 307.4(b)(2); see also (Ex 2 at
Permit also requires Formosa to report, in writing, within 24
hours, any floating solids violations. In determining whether
the Permit has been violated, the TCEQ conducts inspections
from time-to-time utilizing a “visual sightings”
method to determine compliance. The discharge of any floating
solids constitutes a violation of the Permit. See 30
Tex. Admin. Code § 307.4(b)(2-4). Formosa has not
disputed the visual sightings method for determining
compliance or interpretation of its Permit by which
compliance is determined.
What Constitutes A “Trace Amounts”
term trace “means “a very small amount; a barely
discernible quantity of a constituent, especially when not
quantitatively determined, because of minuteness.
See [Webster's New International Dictionary,
2nd Ed. (unabridged)(1957). This definition is
consistent with the definition found in Black's Law
Dictionary, science and scientific understanding and use in
laboratories. The Court's understanding is confirmed by
the testimony of Dr. Jeremy Conkle, an expert in the field.
He testified that “trace organic contaminants are not
easily identifiable in the environment.” He testified
further that it is “very difficult to detect”
these contaminants and often takes advanced instrumentation
to concentrate them for analysis. (Trial Tr. Vol. 2,
TCEQ'S COMPLIANCE ROLE AND COMPLAINT
determining whether floating solids have been discharged in
“other than trace amounts, ” TCEQ inspectors
conduct visual inspections of the water bodies that receive
Formosa's discharges. If upon visual inspection, floating
solids are readily apparent, the inspectors document their
finding, any may photograph any evidence of floating solids
as a record of a violation. TCEQ has recently done just that
- visually determined and photographed amount of plastic
pellets discharged that it holds constitute more than trace
March 10 and 14, 2016; September 7, 8 and 13, 2016; April
2018; June 2018; and January 2019, TCEQ determined that
Formosa had violated its Permit. The March 2016 and April
2018 photographs show plastics in Cox Creek show plastics in
Lavaca Bay. (Ex 74 at FPC002716-002718 and Ex 75 at
71403-008239). Likewise, in January 2019, photos show
plastics in Cox Creek and Lavaca Bay. (Ex 145).
Permit requires it to report prohibited discharges within 24
hours to TCEQ, i.e., any floating solids violations.
The Permit also requires Formosa to report any permit
non-compliance, that may endanger human health, safety, or
the environment as required by the State Administrative Code.
The TCEQ confirms that reportable discharges, that endanger
the human health, safety, or the environment, include the
discharge of plastic pellets and PVC powder.
agreed, during the 2016 permitting process, that it was
required to report any unlawful discharge of plastic pellets
and PVC powder to TCEQ. It also affirmed that it understood
the meaning of the effluent limitations contained in its
Permit and further confirmed that its understanding was the