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Judge rules in favor of Ogeechee Riverkeeper

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POSTED: July 24, 2012 8:59 a.m.

An Atlanta judge previously ruled that the Ogeechee Riverkeeper organization had no right to sue the Georgia Environmental Protection Division in protest of a consent order against a textiles company accused of causing a fish kill, but Bulloch County Superior Court Judge John R. Turner disagrees.

Turner ruled Thursday that a consent order for textiles company King America Finishing, based in Screven County, was “invalid for lack of public hearing.”

“We are pleased Judge Turner realized the importance of Ogeechee Riverkeeper member testimony and how we as citizens have a right to bring suit against EPD for their poor decision in signing the consent order with KAF,” Ogeechee Riverkeeper Dianna Wedincamp said in a released statement Monday.

The Environmental Protection Division issued the $1 million consent order against King America in September after finding the plant was in violation of permits regarding wastewater discharge.

The investigation followed a massive fish kill in May 2011, which Wedincamp and others claim was caused by chemicals in the plant’s effluent.

In October, Wedincamp filed a suit in protest against the consent order, claiming it was insufficient punishment for the damage to the river as well as stating it was issued improperly because the public had no opportunity for input.

The civil action filed in Bulloch County Superior Court against EPD Director Judson H. Turner, the Department of Natural Resources, and King America Finishing challenged a finding by an administrative law judge earlier this year that upheld the EPD’s issuance of the consent order.

Administrative law judge Lois Oakley ruled that the public has no right to protest the EPD’s response to the May 2011 fish kill that left approximately 38,000 fish dead.

Oakley said there was no proof that King America was the cause of any harm to the Ogeechee.

Wedincamp said the origin of the fish kill was traced to a few yards downriver of the plant’s discharge pipe.

After Oakley’s ruling, the case was brought to the Bulloch County Superior Court on appeal. Turner heard the appeal July 9, and stated he would issue a ruling within 20 days. He filed his ruling Thursday, 10 days after the hearing, according to records from the Bulloch County Clerk of Courts office.

He reviewed laws governing the DNR and EPD, and found the “EPD must put out for public notice and comment any consent order which contains a compliance schedule of over a year.”

Wedincamp said the King America consent order, which required a Supplemental Environmental Project for at least $1 million, fit into that category. EPD officials disagreed, stating that the company came into compliance in a lesser amount of time.

“The consent order does not require (King America) to halt their operations, nor does it require the company to pay a fine, which under Clean Water Act violations could have totaled $91 million,” Wedincamp said. “Instead, the order asks for a corrective action plan to address smaller violations within the plant (such as lack of pH alarms) and a Supplemental Environmental Project (SEP), designed by King America and of undetermined specifics, totaling a mere $1 million.  In addition, King America must apply for a new discharge permit, since their former permit expired over six years ago.”

Turner said the court disagrees with Oakley’s and the EPD’s stance that the consent order was “not a compliance schedule, but a submission deadline.” He stated in court documents that the EPD listed in the consent order “a laundry list of violations” and admission  that they found the King America discharge “produced objectionable conditions.”

The consent order did not correct violations, he said.

“The (Ogeechee Riverkeeper organization) has established not only a record supporting a finding of injury caused by degraded water quality leading to a fish kill, but the (Ogeechee Riverkeeper organization) has also shown a continuing harm which is being caused to the waters of the Ogeechee River,” Turner stated in his ruling.

“It is the holding of this court that the consent order is invalid for lack of public hearing and that (the Ogeechee Riverkeeper organization) has standing to bring this action,” he said. “The case is remanded to (Oakley) for findings not consistent with this decision.”

“The case will now be heard on its merits by the Office of State Administrative Hearings in Atlanta,” Wedincamp said.

 

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