Diane Wilson paddled her kayak up Cox's Creek, watching out for spiders and snakes as she ducked under a low iron bridge. She wasn't on an outing. She was on a mission. Every week or so, Wilson floated the creek in the town of Point Comfort along the Texas Gulf Coast, checking for microplastic debris from the massive Formosa Plastics plant.
Wilson, 72, was leader of a tenacious band of residents of the rural fishing community. Heading for a legal showdown with Formosa over plastic pollution, they monitored the shoreline and shallows near the plant, armed with swimming pool nets and Ziploc bags to collect plastic resin pellets. In the space of three years, they amassed nearly 2,500 samples: compelling evidence in their path-breaking federal lawsuit against the petrochemicals giant.
When the case went to trial in March, 2019, they loaded the samples on a trailer and towed them to the federal courthouse in Victoria, Texas. A few weeks later, a U.S. District judge issued a scathing ruling, branding Formosa "a serial offender" of the Clean Water Act. Formosa officials declined to be interviewed for this story.
The company agreed to spend $50 million on local environmental projects—the largest settlement ever in a citizen clean-water suit– and to be held to a zero-discharge standard for plastic pellets. It was an improbable but spectacular victory for a small group of aroused citizens, who succeeded where state and federal regulators had largely failed. Other homegrown activists, tired of lax government enforcement and ineffectual industry self-policing, have also stepped up to force change on their own.
The plastics industry has long styled itself as a constructive force in battling plastic pollution, while blaming the problem on messy consumers and weak trash disposal and recycling programs. Whatever the weight of that argument, it falls apart when it comes to plastic pellets. More insidious than visible eyesores like discarded bottles and takeout containers, the tiny pellets have escaped into waterways by the countless billions as a result of failures by industry, not consumers.
Unknown to most people, these tiny granules, about the size of lentils, and even smaller resin flakes and powders, are the building blocks of virtually all things plastic. Sometimes called nurdles, they are produced by petrochemical firms like Dow, ExxonMobil, Chevron Phillips and Formosa, then shipped to thousands of plastic processing plants that melt and mold them into everything from plastic bags, bottles, sheets and piping, to toys, furniture, appliances, utensils, medical instruments, and auto, boat and airplane parts.
Literally trillions
A 2016 report by Eunomia, a global consulting firm based in England, estimated that 230,000 tons of pellets—literally trillions — enter the marine environment each year.
Like other plastics, pellets take decades to break down. Research shows that hazardous chemicals in water build up on their surface. They are routinely ingested by sea turtles and other marine creatures, and especially by seabirds, which mistake them for fish eggs or other food. They can clog the birds' digestive systems, leading to malnourishment or even starvation.
A product, not a waste, pellets are not lost on purpose. But once spilled they easily scatter; if not recovered, gravity and precipitation take over, flushing them into storm drains and, from there, into rivers and the sea.
The risk of careless losses is immense, given the vast number of sites where pellets are produced, stored, transported and processed, and the many ways they can escape: when being loaded or unloaded from storage silos and tanks, ferried around plant sites on forklifts, packed into railcars, trucks or container ships, and delivered to processors that turn pellets into finished products. According to the federal Bureau of Labor Statistics, there are more than 11,200 of these processing plants in the U.S.
Catastrophic spills can occur, as when two vessels collided at the port of Durban, South Africa, in October, 2017, dumping 49 tons–or roughly 2 billion pellets–into the sea. Just last month, a cargo ship on the Mississippi River in New Orleans broke loose from its moorings, causing a major pellet spill. Far more often, pellets escape more or less routinely at industrial and transportation sites throughout the world. Considering that there are about 22,000 pellets in a single pound, according to court testimony, a 50-pound spill could put a million pellets on the ground.
Environmental regulators have done little about it. In 1990, when the Environmental Protection Agency adopted rules to curb pollution from stormwater runoff at industrial sites, it put pellets on a list of ''significant materials'' to be controlled.
But outside of California, enforcement has been minimal at best, FairWarning has found. A coalition of environmental and public health groups has petitioned the EPA to crack down on plastic pollution and called for a zero-discharge standard for pellets, like the ban agreed to by Formosa.
In the meantime, federal regulators have given the plastics industry a very long leash to solve the problem on its own. For nearly 30 years, a voluntary industry program, "Operation Clean Sweep", has called on companies to commit themselves to eliminating pellet losses But it's purely voluntary, with no monitoring, enforcement nor metrics to gauge its effectiveness.
In fact, one of the Operation Clean Sweep partners is Formosa Plastics.
Ominous reports
In recent years, a tsunami of ominous, even terrifying reports about plastic waste have flooded the public consciousness.
Photos and videos depict great gobs of floating trash, yet things are actually worse than they appear, according to Eunomia, which estimated that 94 percent of marine plastic winds up, out of sight, on the ocean floor. According to the World Economic Forum, by 2025 there will be a ton of plastic in the ocean for every three tons of fish and, at the rate things are going, more plastic than fish by 2050.
Despite such chilling numbers, petrochemical companies, fueled by a glut of cheap natural gas from fracking, are ramping up production capacity in a big way, according to figures from the American Chemistry Council, a leading trade group.
"The industry is actually working to grow demand for plastics at a time when the world has increasingly recognized that we need to be using less plastic,'' Carroll Muffett, president and CEO of the Washington, D.C.-based nonprofit Center for International Environmental Law, told FairWarning.
To blunt attacks on its expansion plans and be credited as part of the solution, industry leaders in January, 2019, launched the Alliance to End Plastic Waste, with a Who's Who of plastic producers and users committing $1.5 billion over five years to address the crisis of plastic waste. Saying that 10 major rivers in Asia and Africa contribute over 90 percent of the plastic reaching the ocean, the group's focus is educating consumers and improving waste collection and recycling in the developing world.
That approach snugly fits the theme that litterbugs and governments are to blame, critics note, without the industry acknowledging its failure to come up with an end game for its single-use products. "'It's all user error," complained Julie Teel Simmonds, a senior attorney for the nonprofit Center for Biological Diversity. "It's all about consumer education and strengthening waste management infrastructure, and there's no sense of corporate responsibility for the problem."
But there's no way to blame thoughtless consumers for pellet pollution, as the industry itself has acknowledged. "While consumers are responsible for the proper disposal of the products they use, the plastics industry must focus on proper containment of the products we use – plastic pellets, flakes and powder, the basic raw material of our industry," according to the Operation Clean Sweep website. "We must prevent the pellets, flakes and powder from getting into waterways that eventually lead to the sea."
Piling up
Evidence of pellet pollution has been piling up for decades. In 1971, researchers Edward J. Carpenter and Kenneth L. Smith collected pellets in an area of the North Atlantic called the Sargasso Sea by towing fine mesh nets through the water. Fifteen years later, R. Jude Wilber of the Woods Hole Oceanographic Institute returned to the area and found that pellet concentrationshad nearly doubled.
Water sampling by the EPA In the late 1980s and early '90s captured pellets in 13 of 14 harbors on the Atlantic, Pacific and Gulf coasts. Some 250,000 pellets were collected in one sample alone.
"Although plastic pellets are one of the least noticeable forms of plastic pollution, an agency report said, "they are ubiquitous in the oceans and on beaches." It stated:"One investigator went so far as to suggest that, if high numbers of pellets continue to be deposited on certain beaches, someday people may be sunbathing on plastic-sand beaches.''
That report also described an EPA visit to a manufacturing plant. In one area, pellets had spilled on the ground and in some spots "were piled as high as 1. ft…An employee said that this pellet overflow condition was typical during periods of heavy rainfall and during unusually busy periods."
Evidence of marine animals and seabirds consuming pellets also goes back decades. About one-quarter of all sea birds are known to ingest plastic debris, and most commonly pellets. In a 1980 study of seabirds in Alaska, Robert H. Day wrote that "it appears that ingestion of plastic by marine birds first occurred in the Pacific after the mid-1960s." Things would get worse, he said, because galloping growth of plastic production would flush more pellets into the sea.
Newly minted
In 1985, as a newly minted marine biologist just out of graduate school, Kathryn O'Hara took it upon herself to enlist the plastics industry in fighting plastic litter. In her new job at the Center for Marine Conservation (now called the Ocean Conservancy) in Washington, D.C., she set up a meeting with the Society for the Plastics Industry, a trade group. O'Hara gave a slide presentation that included a dead seabird with pellets lining its stomach. The society officials "genuinely seemed surprised," O'Hara recalled in a recent interview. ''They were not aware of the wildlife impacts.''
Soon after, society officials and O'Hara met up at the Padre Island National Seashore in Texas for a firsthand look at the plastic refuse floating in from the Gulf. Texas allows driving on the beach, and O'Hara and society vice presidents Lewis Freeman and Ron Bruner caravaned in rental cars. At one point, O'Hara stopped her car and walked the group up to the high tide line. She swept aside a clump of seaweed, revealing a cluster of plastic pellets.
Bruner and Freeman were suspicious, wondering if O'Hara had staged the find. After a while, they picked their own place to stop and check the high tide line. There were pellets there, too.
"I vividly recall my own surprise to find resin pellets so obvious on the beach. Everywhere!'' Freeman recalled recently. "I came back a believer." Bruner, who left the Society in 1998, was also convinced. After learning ''that birds were ingesting pellets, the industry took notice and took action to try to work on it,'' he said.
Step one was education, including posters and ads in industry publications with messages such as: "Please Don't Feed The Birds…A seabird could mistake this resin pellet for a fish egg. And die.''
Then in 1991, the society launched Operation Clean Sweep. It featured a how-to manual of best practices to prevent pellet loss—including commonsense steps such as packing pellets in puncture-resistant bags and boxes, and placing tarps or catch pans under hose connections and between loading docks and trailers. It even included a sample letterfor sales reps encountering sloppy conditions at a customer's plant ( "When I visited your plant recently, I noticed resin pellets on the ground….I'm bringing this to your attention for several reasons…'') Companies committing to the goal of zero pellet loss got a certificate affirming their status as Operation Clean Sweep partners.
The previous year, the EPA had issued its stormwater regulations that listed pellets among ''significant materials.'' But the rules and stormwater permits later issued for industrial sites did not mandate specific control methods and equipment, which officials say makes it harder to hold violators to account.
The new rules gave the EPA the power "to impose significant penalties" for pellet pollution, said an agency report. But citing Operation Clean Sweep, it suggested the agency would defer to industry as much as possible. "Ultimately, controlling pellet releases into the environment is the responsibility of the plastics industry," it said.
A few tweaks
Over nearly three decades, industry officials have tweaked Operation Clean Sweep a few times, and recently created a more demanding membership category called Operation Clean Sweep Blue. Industry groups in other countries have adopted versions of the program. "Through the tireless efforts of OCS' supporters and partners,'' boasted a 2016 press release, "the plastics industry has made significant strides towards zero plastic pellet, flake and powder loss.''
Officials with the co-sponsors—the American Chemistry Council and the Plastics Industry Association as the society is now called–declined to be interviewed, but responded to some written questions. "As we conduct our outreach to the various companies, we've received positive feedback on the effectiveness of the program,'' Elleni Almandrez of the Plastics Industry Association said in an email.
There are now more than 500 members, with many reporting that ''they had embedded OCS language into their employee handbooks, operation documents, and training materials,'' she wrote.
But that means that most companies that handle pellets are not members. And even for those that are, without site inspections or enforcement measures, companies can get the halo effect of taking the pledge whether they are diligent or not.
In launching Operation Clean Sweep, "Our motivation was really to do the right thing, as corny as that sounds,'' said Freeman, the former society vice president, who left the group in 2001. But as a trade association, "we were not in a position to require anybody to do anything … It had to be a voluntary program," he said.
Neither has there been public reporting on the impact of Operation Clean Sweep–a fact highlighted by As You Sow, a nonprofit corporate accountability group, which has pushed shareholder resolutions calling for top manufacturers to report pellet losses.
This February, more than three decades after her encouraging field trip with industry officials, Kathryn O'Hara returned to the Padre Island National Seashore but left feeling down. ''I found pellets everywhere," and they appeared very fresh, she told FairWarning. "It was very discouraging.''
Waterman
Growing up on Alamitos Bay in Long Beach, California, Charles Moore indulged his love of the water: swimming, diving, waterskiing and sailing with his father, an industrial chemist. He dropped out of college, took up woodworking and ran a furniture repair shop.
Captain Charles Moore on his research vessel, the Alguita (photo by Myron Levin)
Then in the mid-1990s, when in his 40s, Moore inherited money and–as he explained in Plastic Ocean, a book he co-authored–decided '"to put it where my mouth had been for thirty years."
Moore founded the Algalita Marine Research and Education foundation, with the goal of improving the health of coastal waters. He also bought and equipped a 50-foot catamaran, the Alguita, to serve as a research vessel.
In August, 1997, while sailing from Hawaii to Southern California, Moore and crew crossed the vast expanse of rotating currents known as the North Pacific Gyre, and discovered what would be called the Great Pacific Garbage Patch, but which Moore says was more like ''a thin plastic soup'' stretching about 1,000 nautical miles. "Something seemed very wrong about this plastic trash in the mid-Pacific,'' he wrote. "Of all the places on earth, this one should have been exempt."
A crew member, a former head lifeguard in Orange County in the 1970s, told Moore how lifeguard candidates waiting to audition their life-saving skills would sit on the beach, idly sifting pellet-laden sand through their fingers. Moore thinks the nickname ''nurdles'' was born on that Orange County beach.
But it was a litter study published in 2001 that really focused his attention on pellets. Surveying dozens of sites along Orange County beaches, researchers found that pellets were far more abundant than more visible items such as cigarette butts, water bottles and food wrappers.
Where had all those pellets come from? Had they washed up after spills at sea? Moore had heard that on cargo ships, crews sometimes scattered pellets on the deck as miniature ball bearings to slide heavy objects around. A closer land-based source seemed more likely: pellets from plastic processing plants being flushed into storm drains, reaching coastal waters and coming in with the tide.
Then suspicion hardened into certainty. By coincidence, the designer of the Alguita's solar refrigeration system mentioned that his 11-year old daughter, Taylor Simpkins, needed a science project for school, and did Moore have any ideas? Taylor began sampling debris near the mouth of the heavily industrialized Santa Ana River, which empties into the Pacific near Long Beach, both before and after rainstorms. She found that pellet counts were higher after it rained, evidence that they were carried there by runoff.
There were tangible results. Taylor won the local science fair and made it as far as the nationals. And a follow-up investigation led to passage of a new state law.
A team from Algalita and the California Coastal Commission first identified plastic processors in the watersheds of the Los Angeles and San Gabriel rivers. With a letter of introduction from the plastics society and a promise of anonymity, the team got into some of the plants, where they observed conditions and made recommendations. Gwen Lattin, an Algalita research biologist, said the team discovered that in some cases, following pellet spills or other mishaps, plant operators simply relocated, packing up and moving their equipment to a new site to avoid any fallout. Moore recalled that along some rail spurs leading to processing plants, pellets were so thick that ''it was like walking on sand dunes.''
Returning to the plants months later, the team reported that despite some improvements, pellets were still washing into storm drains after significant rains.
The investigation led to passage of a state law that took effect in 2009. A legislative summary noted that while Operation Clean Sweep had reduced pellet pollution ''where implemented," many plastic processors chose not to take part.
Unlike the EPA's vaguer stormwater rules, the California law imposed a specific set of controls on companies handling pellets, such as using capture devices during loading and unloading, having vacuum equipment to clean up spills and installing fine mesh screens to keep pellets from washing into storm drains.
First in the nation
Officials with the EPA's Pacific Southwest Region and the State Water Resources Control Board began targeting violators. In 2011, in what they called "a first-in-the-nation enforcement effort," they imposed penalties and cleanup orders on four San Francisco Bay Area companies—three plastic bag producers and an automobile bumper maker—that had discharged pellets into wetlands.
Altogether, over the last decade the EPA and the state's regional water boards have brought pellet cases against about 15 companies in California, according to information provided by the agencies.
It's not an overwhelming number. But compared to what's happened elsewhere, it amounts to a full-court press.
Outside California, FairWarning has been unable to identify a single EPA pellet case, although with no official tracking of pellet cases it's hard to be precise about numbers. A review of EPA press releases on enforcement actions dating back to 1994 did not turn up a single pellet case except in California, although press releases are not issued for every enforcement case. From interviews and records, the only pellet case FairWarning found outside California was not brought by the EPA, but by state regulators in Texas.
Repeatedly asked if the EPA had brought cases outside California, officials at Washington headquarters either did not know or wouldn't say. ''What we have provided you is what we have available,'' an email from a spokesperson said.
Charles Moore says pellet pollution remains an issue in California, too. He noted that Algalita staff had taken industry executives to a local beach, "where they were shocked to see the quantity of pellets in a small area.'' Moore said inadequate enforcement "has resulted in an upswing'' in pollution.
Out of her shell
Diane Wilson considered herself a shy person. Her family had settled in Calhoun County, Texas around 1890, and like members of three previous generations, she made a living from the Gulf. By age eight, she was helping out on her dad's shrimp boat. As an adult, she fished, shrimped, oystered, made and mended nets and at one point ran a dockside fish house that sold fishermen supplies.
Around age 40, Wilson came out of her shell in a big way. It was 1989, and a friend shared a news article she found absolutely shocking. It was about the EPA's Toxic Release Inventory, which ranked counties across the nation by volume of harmful industrial discharges to water, air and land. Calhoun County, with only about 20,000 souls, ranked near the top.
It was a fishing community, but like other areas of the Gulf Coast was also home to heavy industry, including an Alcoa plant that would be declared a Superfund site for discharging poisonous mercury into the bay.
At the time of Wilson's epiphany, Formosa Plastics, a unit of the giant Formosa Plastics Group of Taiwan, had embarked on a huge expansion of its local plant.
Wilson spoke out against the expansion, to no avail, and her efforts did not endear her. "People raised holy hell with me. They couldn't figure out why…I was doing it,'' Wilson recalled. Since she was merely a fisherman and a woman, Wilson said wryly, some thought a man must have put her up to it. Others suspected that "I was a spy for Louisiana," plotting to get Formosa booted out of Texas so Louisiana could snag it.
Over the years, however, Wilson gained prominence as a local gadfly, and as an intermediary for Formosa workers who feared reporting hazards themselves.
In 2008, an ex-Formosa worker named Dale Jurasek contacted Wilson seeking a meeting. Fearful of being seen with her, Jurasek set up a rendezvous more than 60 miles away–a beer joint called The Hideout. Eager to talk, he was also deeply paranoid. When Wilson arrived, Jurasek made her dump out the contents of her purse so he could check for a recording device.
Jurasek had worked for Formosa for about 20 years, leaving around 2001 and later settling a disability claim with the company. In the late 1990s, he had begun secretly providing information about alleged environmental violations to state and federal officials, including the FBI. Federal authorities ultimately declinedto bring criminal charges against Formosa, though it didn't skate completely. Eventually, the company agreed in a civil settlement to pay a $2.8 million penalty and spend more than $10 million to improve environmental controls at its plants in Point Comfort and in Baton Rouge, Louisiana–mainly to cut down on toxic air pollution.
After company officials got wind of Jurasek's whistleblowing activities, he was reassigned from wastewater plant operator to what he described in court as ''degrading jobs,'' like picking up trash and cleaning ditches.
Jurasek said he routinely saw resin pellets and powder on the plant grounds, but it took him a while to realize they were escaping into the bay. One day, Jurasek said, he took his children swimming, and was surprised to see pellets on the bottom of his skiff. They stuck to the kids' feet when they stepped on a sandbar. "It really freaked me out,'' he said.
Wilson said that after meeting with Jurasek, she lodged complaints about pellet pollution, but felt she was getting nowhere. Then in early 2016, Wilson, Jurasek and a few allies began the work that brought the issue to a head.
They collected pellets and powder near the Formosa plant and its outfalls, taking photos and videos and carefully noting locations, dates and times. In 2017, Wilson and a group she headed, the San Antonio Bay Estuarine Waterkeeper, sued Formosa under a provision of the Clean Water Act that allows citizen suits to enforce the law when it appears that regulators can't or won't.
The suit charged Formosa with breaking the law in two ways: by discharging pellets into waterways, and by failing to report the releases to state authorities.
Around the time of the lawsuit, the Texas Commission on Environmental Quality fined Formosa nearly $122,000 for pellet discharges, the first time it had ever brought such an action. Formosa sought to turn the penalty to its advantage, asking the judge to dismiss the Waterkeeper lawsuit on grounds that state officials had shown they were on top of the problem. The motion was rejected.
Even so, it seemed like a gross mismatch. Formosa was a colossus, with global sales of nearly $78.3 billion, according to its 2018 annual report. When the trial began in March, 2019, a Formosa lawyer was quick to remind Judge Kenneth M. Hoyt of the company's outsized place in the local economy, including employing 2,500 with another 4,000 contract workers "on any given day,'' and paying one-third of all county property taxes.
"Formosa's not just big, it's careful, Judge,'' attorney Steve Ravel said. "Formosa's proud of its corporate citizenship, and it works every day to be an exemplary steward of the environment.''
But the evidence–in the form of the 2,428 samples—proved overwhelming.
In trial testimony, several Waterkeeper members described why they got involved. The coastal waters are ''just deteriorating dramatically,'' said Myron A. Spree. "Another thing I got to thinking about: I go to church, and we're supposed to be stewards of the earth."
Jurasek testified that he was "fighting for our children's children, the future.'' He added: ''Everybody's got a mission in their life. Maybe this was mine.''
Jurasek and Ronnie Hamrick—an ex-Formosa shift supervisor who went out collecting samples as often as six or seven days a week —testified about mysterious acts of intimidation. One time, Jurasek said, someone loosened the lugnuts on the tires of his truck. Another time, he said, someone shot at his house. Hamrick said the windows of his truck were shot out. "I don't know who's doing it,'' he testified, but ''I've never had a problem with any of this until I started sampling."
In his ''serial offender'' ruling, Judge Hoyt declared that Formosa's "violations are enormous.'' Last December, he approved the settlement in which Formosa agreed to invest $50 million in environmental projects. Most significant was the company's pledge to meet a zero-discharge standard for pellets, or be hit with big fines.
The settlement shows "Formosa's commitment to manufacturing our products in a safe and environmentally friendly manner," according to a statement by Formosa Executive Vice President Ken Mounger. "We will continue to partner with local communities and stakeholders to ensure that FPC [Formosa Plastics Corp.] USA environmental programs are at the top of our industry."
There have been developments since. The Texas Commission on Environmental Quality has proposed a rule change to explicitly bar the discharge of pellets, similar to the law in California.
In South Carolina, two citizens groups filed a pellet case in March against Frontier Logistics, a major shipper of resin pellets and, like Formosa, an Operation Clean Sweep partner.
The suit blames Frontier for a big pellet spill into Charleston Harbor last July, along with smaller spills. Following the example of the Formosa activists, the plaintiffs collected thousands of pellets from waterways, beaches and adjacent to the Frontier shipping terminal, according to the complaint. As in the Formosa case, the groups said they were acting because federal and state authorities had failed to. Frontier has denied responsibility, and the case is pending. The company did not respond to requests for comment.
A coalition of 280 environmental, public health and community groups has petitioned the EPA to crack down on plastic pollution, including with a zero-discharge standard for pellets. An EPA spokesperson said the agency is reviewing the petition ''to determine any appropriate next steps."
The petition said tougher rules are needed because the petrochemical industry is planning to "drastically increase plastic production in this country and abroad." Pollution ''is expected to skyrocket in tandem, jeopardizing wildlife, aquatic ecosystems, and surrounding communities."
Given the government's passivity up to now, citizens groups may continue to take matters into their own hands. Diane Wilson says that like most people, she had assumed that government regulators would take action. ''It takes a while before that illusion really breaks in your head," she said, "when you finally realize you've got to do it.''
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