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Judge allows Ogeechee suit to continue

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POSTED: June 24, 2013 10:30 p.m.

Ogeechee River supporters are cheering a judge’s ruling that a lawsuit against King America Finishing can go forward.
On Wednesday, Chief Judge Lisa Godbey Wood, of the U.S. District Court for the Southern District of Georgia, ruled in partial favor of the Ogeechee Riverkeeper organization on an attempt by the Screven County textiles plant to have the lawsuit dismissed.
The riverkeeper filed the suit last year, claiming that King America violated the federal Clean Water Act by discharging pollutants into the Ogeechee River that are believed to have contributed to one of the largest fish kills in state history.
The suit also states that King America continues operating without a permit and demands that the company take steps to rectify the matter and be accountable for the May 2011 fish kill, which left about 38,000 fish dead along 70 miles downstream of the textiles plant.
The suit against King America Finishing Inc., owned by Chicago-based Westex Inc., was filed by Stack & Associates and Greenlaw, representing the Ogeechee Riverkeeper organization. While Wood did dismiss some aspects of the suit, she upheld the riverkeeper’s allegation that King “has in the past and continues to this day to violate the federal Clean Water Act by continuing to discharge pollutants into the Ogeechee River,” Ogeechee Riverkeeper Executive Director Emily Markesteyn said.
Wood’s order ruled that the riverkeeper properly brought claims against King America for “actions relating to discharge, monitoring and reporting requirements for formaldehyde, ammonia, color and pH.”
“She further ruled that even though the (Georgia Environmental Protection Division)  had taken what KAF claimed was a comparable enforcement action, which would preclude ORK’s citizen’s suit, the state regulatory scheme was not comparable inasmuch as it did not afford the general public the same rights to involvement that are provided by the federal act,” Markesteyn said.
But King America’s motion to dismiss was “granted in part and denied in part,” according to the order.
Wood granted part of the company’s motion seeking relief for claims relating to some pollutants, including hydrogen peroxide, total phenols, total suspended solids and biochemical oxygen demand. She ruled that the Ogeechee Riverkeeper organization did not give enough notice to King America about these pollutants, according to the order.
However, the order won’t stop the riverkeeper from bringing such claims following a 60-day notice of intent to do so.
“It is our hope that together with recent prior rulings issued by federal district court judges in Macon and Atlanta on this same issue, the state will immediately begin to take steps to bring its practices in line with those required by the Clean Water Act,” said Don Stack of Stack & Associates, co-counsel in the case.
The lawsuit claims King America “knowingly violated the Clean Water Act for six years, and when a government does not adequately punish a polluter involved in an ongoing illegal discharge, private citizens and citizens groups can file a lawsuit seeking to have a court do what the state did not,” Markesteyn said.
Actions that sparked the suit included that around 2006, King installed two flame-retardant lines but failed to get a permit for these lines.
Ammonia was the major pollutant found in the river water. After the EPD determined King America was discharging without a permit, the plant was allowed to continue discharging with increased monitoring while hearings were held regarding issuance of a new permit.
Public protest caused an initial discharge-permit proposal to be rescinded. A second proposal is on the table and a decision has not yet been made. Public hearings on the second proposal also were met with vehement opposition as citizens publicly protested any discharge of pollutants into the river.
Markesteyn and other Ogeechee River enthusiasts have said they hope EPD will not issue a permit.
As for Wood’s ruling, Markesteyn said she and riverkeeper members are pleased.
“We’re just glad this case was not thrown out and will proceed,” she said. “It is the only way our river is going to have any protection or restoration for what has happened. The meat and heart of our case still stands and is going to go forward.”
Lee DeHihns, an attorney representing King America Finishing, did not immediately return phone calls seeking comment on Wood’s order.

 

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