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Judge hears sides of Ogeechee dispute

Will decide on consent order appeal in 20 days

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POSTED: July 16, 2012 1:38 p.m.
Statesboro Herald/

Ogeechee Riverkeeper Dianna Wedincamp returns to her vehicle beneath the U.S. 301 North overpass between Bulloch and Screven Counties after taking pH readings in this May 2012 file photo.

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A judge heard all sides Monday in a dispute concerning discharges into the Ogeechee River by King America Finishing.

After the two-hour hearing was finished, Bulloch County Superior Court Judge John R. Turner said he will make a decision within 20 days on the Ogeechee Riverkeeper’s appeal of a consent order between the Screven County textile plant and the Georgia Environmental Protection Division.

The Riverkeeper filed an appeal after an October order by the EPD that King America Finishing spend $1 million to submit plans to fund Supplemental Environmental Projects as a penalty for permit and environmental violations. The appeal claimed, among other things, that the public had no input in the matter.

This followed an investigation by EPD after a May 2011 fish kill that left about 38,0000 fish rotting in the Ogeechee River, from about 50 yards downriver of the plant to 70 miles south. EPD found King America was in violation of permits to discharge; actually, the plant had discharged for years without a permit. However, there has been no proof that the plant caused the fish kill, according to EPD officials.

The appeal halted King America’s plans, which under the order were required to be announced within 90 days.

“Anytime an order is appealed, it is suspended until the matter can be resolved,” EPD spokesman Kevin Chambers said. “Because of the appeal of the King America consent order, there is no plan of action at this time.”

On Monday, people stood outside Turner’s courtroom in anticipation of the hearing. After the courtroom doors opened shortly after 2 p.m., there was standing room only inside.

Donald Stack, an attorney representing the Ogeechee Riverkeeper organization, told the court the EPD was wrong in “making deals behind closed doors” with King America, and said residents have a right to input in the matter.

He said the blackwater river has been turned from a tea-colored stream with a white sand bottom to a poisoned waterway. Chemicals from the plant “transformed a clean pristine river into an algae-infested, dead and dying stream.”

He said the EPD failed in its duties to discover the infractions by King America in unpermitted discharge of wastewater for seven years. He also said King America knew it was in violation.

“It was not an oversight – they knew they had to get a permit,” Stack said.

He added that the EPD “traced the (fish kill) problem to the obvious origins … but neither King America or the EPD will acknowledge King America’s direct connection to the fish kill.”

Columnaris has been determined as the cause of the fish kill. It is a bacteria caused by environmental stress, and Ogeechee Riverkeeper Dianna Wedincamp and others have said they feel chemicals discharged into the river by the textiles plant is the cause of the stress. Stack said mussels have been found dead en masse and pointed out that columnaris does not affect mussels.

Violations by the plant have been documented by EPD since 2006, and the agency should have taken action well before May 2011, he said.

Complaints about the river include high levels of formaldehyde, ammonia, and other chemicals. Also, residents have complained about colors – sometimes dark blue and more recently, pinkish red, Wedincamp has said. Besides the massive 2011 fish kill, dozens more fish turned up dead just two months ago.

King America could have been fined up to $91 million, and the $1 million consent order is not enough, she said.

Attorney John Hendley, representing the state Attorney General’s Office, argued that there is no legal requirement that third parties have input regarding enforcement penalties and said the Ogeechee Riverkeeper and its attorneys are trying to apply federal law to a state issue.

He said there are no human health-based standards regarding the chemicals in question, and that King America is not currently in violation of the consent order.

If the consent order were to be thrown out, it would not affect the plant’s current discharge. Another court order would be necessary to stop the discharge, he said.

When Turner asked him whether residents have a right to input concerning the river, Hendley said “yes — it is a political process and the (EPD) director can be removed” and residents can file a citizens’ suit in federal court.

Jonathan Wells, an attorney representing King America, told the court that the company is interested in public health because it manufactures flame-retardant clothing that protects workers in power plants, steel mills, electrical work and other fields. He said the plant has stopped discharging ammonia, implemented daily toxicity tests and monitors the stream to adjust discharge flow.

The fish kill is not the issue, and there were other reasons for the dying fish, he said. He argued that advisories against fishing and swimming in the river were lifted while King America was still discharging, and said the consent order “did not cause any of the injuries the Ogeechee Riverkeeper has complained of. … Invalidation of the consent order is not going to change the actions of King America.”

Stack responded by saying that residents have the right to tell state officials that “enough is enough” and that they should have been allowed input regarding the consent order.

The state could have shut down the plant and ceased the discharge instead of issuing a $1 million consent order, which many feel is inadequate, he said.

“I think it is very unfortunate they would treat the rights of the people as a political issue,” Stack said afterward. “Human health should come before politics. When you can’t use the river, when it’s your way of life, to say we can’t use this is emotional and mentally harmful.”

Outside the courtroom, people stood together and discussed river conditions.

“The attorney general can put it any way he wants it,” river property owner Al Driggers said. “There is still formaldehyde in the soil, and it will be there eight years from now.”

Wayne Carney, another man who owns property along the Ogeechee, said he can’t understand how the advisories were lifted after the May 2011 fish kill.

“The water at Steel Bridge (at the Bulloch/Effingham county line) smelled like rotting fish,” he said. “There were buzzards waiting for their next meal, and they said it was OK to fish and swim?”

 

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