Vol. 51-2 Water Quality

Water Quality

Citizens Using the Courts to Enforce Zero Discharge Limits for Plastic Pellets

In the last decade, a surge of cheap shale gas has driven growth in the domestic plastics industry.[1] Shale gas is one of plastic’s key ingredients, and Texas produces 23% of the national total.[2] Texas, Louisiana, and Oklahoma have seen an influx of plastics manufacturers.[3] New plants are being built across an area deemed “Cancer Alley,” raising concerns about further pollutants.[4] Citizen suits concerning waterborne, plastic pellets have set a low bar for proving plastic contamination in effluent emissions. These decisions have effectively enforced a plastic-pellets zero-discharge limit under the Clean Water Act (CWA), and state agencies are following along.

In 2019, the District Court for Southern District of Texas issued a declaratory judgment finding that a Formosa Plastics facility violated a CWA permit issued by the Texas Commission on Environmental Quality (TCEQ).[5] TCEQ has the authority to issue Texas pollutant discharge permits, referred to as Texas Pollutant Discharge Elimination System (TPDES) permits.[6] In San Antonio Bay Estuarine Waterkeeper v. Formosa Plastics Corporation, the TPDES permit at issue prohibited the discharge of floating solids “in other than trace amounts.”[7] The plaintiffs, a group of citizens and an NGO, alleged that the permitted facility had been discharging plastic pellets and powder that exceeded that limit.[8]

The court looked to the Webster’s Dictionary definition of “trace,” essentially determining it meant “barely discernible.”[9] The court also referred to an expert witness’s “trace amount” interpretation as contaminants that are “‘not easily identifiable in the environment . . . very difficult to detect . . .  and often take[] advanced instrumentation to concentrate them for analysis.’”[10] The court’s trace amount interpretation essentially means that any plastic a person could see or collect was excessive and violated the permit. To meet this standard, the plaintiffs submitted “photographs, videos, and 30 containers containing 2,428 samples of plastics in gallon zip lock bags and plastic bottles of plastic pellets.”[11] The court relied on this to find that the plastic discharges were beyond trace amounts, violating the TPDES permit and damaging the affected area’s recreational, aesthetic, and economic value.[12] Formosa was required to pay $50 million to improve technologies for preventing plastics in wastewater and fund offsetting environmental projects.[13]

This case suggests an emerging zero-discharge standard for waterborne plastic. Under the “trace amounts” interpretation accepted by the court, any person can show a CWA violation by simply hauling bags of collected plastic into court. If the plastic is able to be collected with human hands and be seen with human eyes, then it is not “barely discernible.” It does not take as much volume for solid plastic to have these qualities as required for a liquid or particulate contaminant. While the Texas Administrative Code demands a scientific process for measuring a water body’s toxicity, radioactivity, temperature, PH, or bacterial health, measuring the water’s physical plastic amount seems to be a blunt tool. Plastic pellet manufacturers, formers, and transporters should be aware of the enforcement potential if a single pellet in the water can be seen or collected.

However, this does not mean that the court’s interpretation exceeds regulators’ current goals. As the court pointed out, the TCEQ conducts visual inspections of water to determine whether discharges exceed “trace amounts.”[14] The Texas Administrative Code’s Chapter 37 sets out aesthetic parameters for surface water, mandating that water be “essentially free of floating debris[,] . . . suspended solids[, and] . . . settleable solids.”[15] TCEQ gave a presentation at the Surface Water Quality Advisory Workgroup meeting on June 29, 2020, clarifying that none of the 155 TPDES permits for plastic pellet manufacturers authorized any amount of plastic pellets to be discharged into receiving waters.[16] The agency has proposed measures to clarify this prohibition including updating the Texas Administrative Code’s Chapter 37 to explicitly prohibit plastics’ discharge, update wastewater permits, and require a set of Best Management Practices for handling plastics.[17]

Decisions like Formosa are not themselves driving administrative change, but are a signal that citizen groups are using litigation to stop plastic pollution more quickly than administrative or legislative solutions are formalized. Eliminating waterborne plastics is a growing priority for citizen groups and legislators. The Save Our Seas 2.0 Act (SOS Act) was signed on December 18, 2020, and focuses on marine ecosystems’ contamination and plastic ingestion by marine fauna.[18] The Break Free From Plastic Pollution Act (BFPPA) was introduced on March 25, 2021, with the goal to “shift the burden of cleanup to the corporations that produced the plastic[] . . . .”[19] Whether these legislative efforts will bring about meaningful change remains to be seen, as the SOS Act has been criticized for its measured approach and the BFPPA has failed to garner bipartisan support.[20] Whatever their outcome, they will move slower than many activists prefer, making the courts the most expedient battleground to stop plastic pollution.

The Formosa ruling may have invited a surge in CWA citizen suits over plastic contamination. Citizen groups have recognized that standards such as “trace amounts” require less plastic-contamination scientific evidence than discharge limits on other contaminants. Individually-collected waterborne plastics may become the preferred method of proof against plastic manufacturers. A District of South Carolina pending case affirmed that the plaintiffs have standing partially based on a similar production of plastic pellet bags.[21] In 2020, Formosa Plastics faced a permit challenge where the plaintiff citizen group cited the individually collected plastic in San Antonio to evidence a misconduct pattern.[22]

Now, in 2021, Formosa is facing a public challenge by environmental justice groups to stop the construction of a $9.4 billion complex in Baton Rouge, Louisiana’s, “Cancer Alley.”[23] The case emboldening local activism was not accidental. Following the decision, the plaintiff activists drove the plastic pellets that had been used as evidence to Baton Rouge.[24] The activists placed the pellet boxes outside the homes of four chemical industry lobbyists with notes reading “we have delivered this package . . . as a reminder—Louisiana does not need any more pollution, plastics, or otherwise.”[25]

David Klein is a Principal of Lloyd Gosselink Rochelle & Townsend, P.C. and is the Chair of the Environmental and Natural Resources Law Section of the State Bar of Texas.  David represents public and private clients in water quality, water rights, water districts, and water utility service matters.

Graham H. Pough is a second-year student at The University of Texas School of Law and Senior Editor of the Texas Environmental Law Journal.

 

[1] Steven Mufson, Huge Plastics Plant Faces Calls for Environmental Justice, Stiff Economic Headwinds, The Wash. Post (Apr. 19, 2021), https://www.washingtonpost.com/climate-environment/2021/04/19/huge-plastics-plant-faces-calls-environmental-justice-stiff-economic-headwinds/.

[2] Frequently Asked Questions (FAQs) Which states consume and produce the most natural gas?, U.S. Energy Info. Admin., https://www.eia.gov/tools/faqs/faq.php?id=46&t=8 (last visited May 4, 2021).

[3] See Dan Glaun, The Plastic Industry is Growing During COVID. Recycling? Not So Much, Austin PBS (Feb. 17, 2021), https://www.pbs.org/wgbh/frontline/article/the-plastic-industry-is-growing-during-covid-recycling-not-so-much/; see also Jamie Smith Hopkins, Minuscule Pellets Keep Escaping Plastic Manufacturing Sites, Part of a Bigger Dilemma: How Can We Fix Plastic Waste Problems Amid a Production Boom?, The Ctr. for Pub. Integrity (June 13, 2019), https://publicintegrity.org/environment/pollution/pushing-plastic/as-the-world-grapples-with-plastic-the-u-s-makes-more-of-it-a-lot-more/.

[4] Mufson, supra note 1.

[5] San Antonio Bay Estuarine Waterkeeper v. Formosa Plastics Corp., 2019 WL 2716544, at *26 (S.D. Tex. June 27, 2019).

[6] Tex. Water Code § 26.027.

[7] Formosa, 2019 WL 2716544 at *3.

[8] Id.

[9] Id. at *7.

[10] Id. at *8 (quoting an expert witness).

[11] Id. at *11.

[12] Id. at *10.

[13] Port Wells & Ellen Gilmer, Formosa Settles Plastic Pellet Water Suit for $50 Million, Bloomberg Law (Oct. 15, 2019), https://news.bloomberglaw.com/environment-and-energy/formosa-settles-plastic-pellet-water-suit-for-50-million.

[14] Formosa, 2019 WL 2716544 at *3.

[15] 30 Tex. Admin. Code §307.4(b)(2)–(3).

[16] TCEQ Surface Water Quality Standards Advisory Work Group Meeting, Tex. Commission on Env’t Quality 10 (2020), https://www.tceq.texas.gov/assets/public/permitting/waterquality/standards/2021revision/ips-stakeholder-meeting-6-30-2020-2.pptx.

[17] Id.

[18] See generally Save Our Seas 2.0 Act, Pub. L. No. 116-224, 134 Stat. 1072 (2020) (“To improve efforts to combat marine debris, and for other purposes.”).

[19] Merkley, Lowenthal Lead Introduction of Congress’ most Comprehensive Plan to Protect Americans’ Health From Growing Plastic Pollution Crisis, Jeff Merkley U. S. Senator for Or. (Mar. 25, 2021), https://www.merkley.senate.gov/news/press-releases/merkley-lowenthal-lead-introduction-of-congress-most-comprehensive-plan-to-protect-americans-health-from-growing-plastic-pollution-crisis-2021.

[20] Greta Moran, The House Just Passed Another “Save Our Seas” Act. Here’s Why It Won’t., The Intercept (Oct. 7, 2020), https://theintercept.com/2020/10/07/save-our-seas-bill-plastics-pollution/.

[21] Charleston Waterkeeper v. Frontier Logistics, LP, 488 F.Supp.3d 240, 253 (D.S.C. Sept. 21, 2020).

[22] Plaintiffs’ Motion for Summary Judgment at 15, Center for Biological Diversity v. U.S. Army Corps of Engineers, WL 6041625 (D.D.C. 2020).

[23] Mufson, supra note 1.

[24] Id.

[25] Id.