A watchdog group that suffered a setback is hoping for another and better day in court.
The Ogeechee Riverkeeper is appealing Judge Lois Oakley’s ruling that the group has no standing to contest the state Environmental Protection Division’s consent order with Screven County textiles plant King America Finishing.
Judge Oakley, a state administrative law judge, heard the case because it involved a state agency.
The Ogeechee Riverkeeper has filed an appeal of Judge Oakley’s ruling in Bulloch County Superior Court, and the case has been assigned to Judge John Turner.
The Riverkeeper contends that the consent order was issued without public comment and review "in direct contravention of the rules," according to the appeal. As part of the consent order, the company was ordered to pay $1 million toward unspecified supplemental environmental projects but was not charged with any culpability in a May 2011 fish kill along the Ogeechee River.
"The order did nothing," said attorney Ed Hallman, who is representing property owners and others in a class action suit against King America Finishing. "The consent order says nothing and does nothing."
Ashton Bailey of GreenLaw, which is representing the Riverkeeper, said the consent orderallowed King America to continue discharging into the river.
"Rather than force the facility to stop the illegal discharge," the Riverkeeper’s appeal states, "the state Environmental Protection Division instead entered into a Consent Order which allowed the illegal discharge to continue and subjected the affected public to the risk of the fish kill recurring."
Judge Oakley ruled that only "those persons who are ‘aggrieved or adversely affected by any order or action’" by the EPD director have the standing to challenge the consent order.
"The petitioner has failed to establish that the consent order has caused or will cause itself or its members injury," Judge Oakley wrote.
"The injuries were there," Bailey said. "But we could not show they were the result of the consent order. We’re saying it’s an invalid order."
The EPD’s consent order, issued Sept. 21, 2011, does not waive the agency’s right to take further enforcement action against King America Finishing. But also is not a finding of guilt on the company.
Hallman’s firm, Hallman and Wingate, is representing Ben Anderson, Parker Freeman and Adam Bath in a suit against King America Finishing, along with any property owner along the river. The lawsuit originally was filed in Fulton County Superior Court, but King America Finishing lawyers moved to have the case sent to federal court.
Hallman is attempting to get the case moved back to the state’s court, where it would move through the system faster and for matters of substantive law.
Anderson and Freeman own property near the textile plant’s discharge pipe, and Bath was in the river prior to the EPD’s warning about its safety.
"In this case, the causation is so clear," Hallman said.
Ashton Bailey, an attorney with GreenLaw, said that if a person had littered on the highway every day for each day King America Finishing was allowed to dump into the river without a permit, that fine would be nearly $2 million.
The Riverkeeper also states the EPD’s decision to issue the consent order, "effectively giving (King America Finishing) an illegal after-the-fact permit for at least 4,718 days of violation, along with its authorization of KAF to continue discharging pollutants," is an abuse of discretion and also is arbitrary and capricious.
King America Finishing, which first received a discharge permit in 2000, filed for renewal of its permit in October 2005 and disclosed the presence of formaldehyde in trace amounts of chemicals and dyes. The plant’s permit was extended administratively in August 2005.
"That is a blatant violation," Hallman said.
Gordon Rogers of the Flint Riverkeeper said the Ogeechee River is tops on the Georgia Water Coalition’s "Dirty Dozen," its list of the worst offenses to Georgia waterways. The Georgia Water Coalition said the EPD could have fined King America Finishing up to $90 million.
"Where the legislature is doing nothing, you have to go to the courts to get something done," Hallman said.
Dr. Sue Ebanks, a visiting assistant professor at Savannah State University’s Marine Sciences Program, said the amounts of ammonia, hydrogen peroxide and formaldehyde were not enough to be fatal on an individual basis. But the chemicals combined, and also in a river that suffered from a low water flow and unusually high water temperatures, created "a perfect storm," she said.
The fish kill, which resulted in more than 38,000 fish turning up dead in the river, was found downstream from King America Finishing plant’s discharge pipe. No such fish kill was observed upstream of the outfall pipe.
The textiles plant was discovered to have started two production lines for which the company did not have EPD permits.
According to court documents, King America Finishing started production of its two new lines in April 2006 and discharging its wastewater without a permit.
Though the EPD has proclaimed the river as safe for swimming and fishing, property owners and residents along the river remain skeptical and say the damage to the river wasn’t limited to just last May’s fish kill.
"We have noticed a significant decrease of wildlife on the river, period," said John Mullino. "Every form of wildlife we used to see is now either nonexistent or is in very low numbers. We’re talking about an entire ecosystem that might be damaged."
"This company has dumped all kinds of chemical compounds into the Ogeechee River," said Dr. Kenneth Sajwan.
Sajwan said any heavy metals, such as mercury, are dangerous in a small amount.
"They thought you can dump anything into the river because it’s a big body of water," he said. "To them, ‘dilution is the solution to the pollution.’ But those compounds persist."
But Rogers said those who seek to limit the EPD’s ability to regulate the state’s waters "are not winning — they have won." He pointed out the EPD’s budget was nearly cut in half, even after the federal Clean Air and Clean Water acts were passed, and was slashed again almost in half.
"They do have the capacity to write a consent order," he said. "They do not have the capacity to write a good permit and monitor it."
Those gathered at Savannah State University on Tuesday night to discuss the fish kill and the resulting legal proceedings vowed to keep the pressure on the EPD and state leaders.
"The fish kill in the Ogeechee River needs attention and needs to be talked about," said attorney Cletus Bergen, president of the Citizens of Clean Air and Water.