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San Antonio Bay Estuarine Waterkeeper v. Formosa Plastics Corp.

United States District Court, S.D. Texas, Victoria Division

June 27, 2019

SAN ANTONIO BAY ESTUARINE WATERKEEPER, et al, Plaintiffs,
v.
FORMOSA PLASTICS CORP, TEXAS, et al, Defendants.

          MEMORANDUM AND ORDER

          Kenneth M. Hoyt United States District Judge

         I. INTRODUCTION

         This 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: (a)[1] 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. (“Formosa”)[2].

         After 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.

         II. THE ACT AND AUTHORITY OF STATES

         The 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.

         The CWA 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).

         III. WATERKEEPER'S MISSION AND THE RELIEF SOUGHT

         Waterkeeper 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 its Permit.

         Waterkeeper 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 Act.

         A. Waterkeeper's Notice Timely

         Pursuant 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.

         B. Waterkeeper's Challenge to Permit Renewal

          In 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.

         IV. FORMOSA'S WASTEWATER AND STORMWATER DISCHARGES

         Formosa 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.

         Formosa 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.

         The 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 inadequate.

         A. Permit Restrictions

         Formosa's 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 71403-000242)].

         The 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.

         B. What Constitutes A “Trace Amounts”

         The 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, 36:10-16).

         V. TCEQ'S COMPLIANCE ROLE AND COMPLAINT INVESTIGATED

         In 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 amounts.

         On 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).

         Formosa's 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.

         Formosa 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 ...


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