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Riverkeeper files suit against state EPD

POSTED: October 24, 2011 6:27 p.m.

The Ogeechee Riverkeeper organization filed a lawsuit Friday against the Georgia Environmental Protection Division, claiming the state agency failed to protect citizens. The Riverkeeper also charges that the EPD did not honor the rights of citizens to have input on a recent consent order against a textiles plant blamed for a massive fish kill.

In May, approximately 38,000 fish died along a 70-mile stretch of river south of King America Finishing, a textiles plant in Dover, between Statesboro and Sylvania, in Screven County.

The public was warned to stay out of the water and to not consume fish caught in the river, but the warnings came days after the fish kill was initially reported. A private lawsuit filed by citizens against the plant claims damage to personal health from swimming in the river as well as damage to property and interference with use of property. An EPD investigation found what some citizens suspected all along; the plant’s discharge included formaldehyde, ammonia and other toxic pollutants that are harmful to the environment and were being discharged in violation of the plant’s permits.

EPD spokesman Kevin Chambers said Friday he could not comment on legal matters. King Finishing CEO Mike Beasley has said he will not comment on the river issues or lawsuits against the company or EPD.

King America Finishing had been discharging illegally since 2005, and continues dumping pollutions in violation of permits today, said Ogeechee Riverkeeper Dianna Wedincamp.

“EPD left us with no choice but to file this lawsuit,” she said. “Citizens throughout the basin are simply outraged that the state not only failed to prevent this catastrophe, but is excluding those most impacted by the catastrophe at every turn. King Finishing seems to be … priority, not the citizens who live, work and play along the Ogeechee River.”

The Ogeechee Riverkeeper organization is being represented by public interest law firm, GreenLaw, and the environmental law firm, Stack & Associates. Their suit challenges the September consent order the EPD filed with King America Finishing after their investigation found the fish kill started 50 yards downstream of the plant’s discharge pipe.

Wedincamp and DNR officials had noted that point when they responded immediately after the fish kill was first reported, she said.

The EPD investigation revealed the facility had started two unpermitted production lines which were discharging into the Ogeechee River, as well as reporting violations and chemical storage violations.

The order mandates King America Finishing to spend $1 million on an unspecified “supplemental environmental project,” but does not require the company to pay a penalty, nor does it require it cover the costs for the restocking of the fish in the river, Wedincamp said. The order specifically states the monies are not to be used for restocking the river. DNR staffers restocked the river earlier this month.

“Presumably, state taxpayers will be responsible for picking up that bill,” she said.

The consent order also allows the company to “continue the unpermitted discharge of pollutants from the manufacturing line, although both state and federal law prohibit discharging into waterways without a permit,” she said.

Another rub is that the public has not been given the opportunity for input, she said.

“The law is clear that any enforcement action must bring the facility into compliance with the law,” said GreenLaw water quality attorney Hutton Brown. “Instead of enforcing the law, EPD is using the consent order process to give the facility a free pass to continue violating the law.”

If EPD officials had allowed the public, especially  local citizens affected by the spill, to participate in the process before the order was issued, they might have avoided the suit, he said.

“This suit highlights the failure of EPD to take aggressive and protective measures to remedy King America Finishing’s blatant disregard for the citizens of Georgia,” said Don Stack, attorney for Stack & Associates. “Amazingly, EPD further enabled this disregard by allowing KAF to resume its illegal discharges, even now when there still has been neither a meaningful analysis of the operations nor a valid discharge permit issued authorizing the release of toxic chemicals including formaldehyde.”

The lawsuit, filed Friday with the Department of Natural Resources, will be heard by the Office of State Administrative Hearings.

The Ogeechee Riverkeeper has been receiving complaints about the facility going back as far as 2002, according to Wedincamp. In August, the organization filed a notice of intent to file a citizen suit against King America Finishing in federal court for violations at the facility.

“The Riverkeeper is currently preparing to pursue the citizen suit if the problems with the consent order and river restoration are not adequately addressed,” she said.

This is not the first time EPD has been taken to task with accusations of failing to protect the public by enforcing industries to comply with permits and laws. In 2010, the EPD was criticized for slow response to a portable toilet company spill that turned Trail Creek in Athens a bright, metallic blue, Wedincamp said.

Now, the various lawsuits and public scrutiny beg the question as to whether the EPD could have prevented the fish kill, since EPD officials  “conducted inspections of the King Finishing facility but had failed to notice the problems that led to the spill,” she said.

A copy of the Ogeechee Riverkeeper lawsuit against King America, as well as a copy of the challenged consent order, may be found at www.green-law.org/OgeecheeFishKill.

The suit claims citizens are “aggrieved and adversely affected” by the consent order, and that the plant’s continued dumping as it had before is still dangerous. For the EPD to file the consent order without public input was “arbitrary, capricious and not supported by law,” the suit reads. To allow continued release of the effluent is “abuse of discretion.”

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