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Ogeechee River Loses in Court Case
Tuesday, 19 March 2013

March 19--  The Savannah Morning News reports a judge in Spalding County has ruled against environmentalists trying to protect the Ogeechee River from pollution by a Screven County plant.

The Ogeechee Riverkeeper has lost an effort to force the shutdown of unpermitted pollution from a Screven County textile processor.

In a judgement issued last week, Spalding County Superior Court Judge Christopher C. Edwards found that the state’s top pollution regulator, Environmental Protection Division Director Judson Turner, “acted reasonably under the circumstances and consistent with the provisions of the Georgia Water Quality Control Act” in allowing the discharge to continue.

Click here to read Judge Edwards' 15-page order on the Ogeechee River case.

Georgia law affords the director enforcement discretion, saying he may order a violator’s activity to cease but not that he must do so, Edwards ruled.

“The legislature and the Director are both authorized by law to make these ‘guns or butter’ economic decisions, balancing the externalities of pollution — our innocent children will swim in an ocean we are allowing to contain some small quantity of formaldehyde and other pollutants — against the benefits of industry — the parents of these same innocent children have jobs and our workers including brave firefighters have fire retardant clothing,” the order states.

In reacting to the order, Riverkeeper attorney Don Stack rejected this reasoning, saying it was “ridiculous and sad that people continue to think that there must be a choice made between clean, healthy water and economic vitality.”

“Additionally, unfortunately, the belief that the illegal discharges result in some undefined acceptable levels of formaldehyde in the ocean, more than 70 miles downstream of the source, completely ignores the impacts those discharges have on the people who use the Ogeechee at and just below the plant,” Stack said. “Dilution is not the solution to pollution. Prevention of pollution should be the goal of all citizens of the State. Those efforts should be led by EPD. Instead the State hinders the efforts of those most affected. That is reprehensible.”

In May 2011, the Ogeechee was the site of a fish kill that left 38,000 fish dead; all were discovered below King America Finishing’s discharge pipe. EPD’s follow-up investigation revealed the company’s fire retardant processing line that had been operating for five years without a pollution permit.

The EPD issued a letter that July informing the company it could restart the fire retardant line under specified conditions while a permit was being developed.

That permit was issued more than a year later in August 2012 but withdrawn in October in response to a legal challenge.

A new permit is in the works that includes a previously omitted analysis of whether lowering water quality is necessary to accommodate economic development.

Attorneys for the nonprofit Ogeechee Riverkeeper filed its request for the judge to order the shutdown Nov. 13 in Superior Court of Screven County arguing a permit — not a letter — is required. The case was subsequently moved to Spalding County, where EPD Director Turner resides.

In a February hearing, the EPD’s Program Manager Elizabeth Booth testified that “the company was cooperating with EPD and that the monitoring and testing results showed that the company’s discharge was neither toxic nor violating water quality standards,” the order states.

 

Clean Water Act

Edwards’ order agreed with the EPD director that the Riverkeeper lacked standing and that a different course of action, namely a Clean Water Act suit in federal court, is the proper legal remedy in this case.

“The Director asserts that, because this legal remedy was specifically created for situations where the regulatory agency ‘cannot or will not command compliance,’ as in this case, it must be considered an adequate remedy at law.”

The Riverkeeper has already filed a Clean Water Act citizen suit in the southern district of Georgia, but Stack said he was astonished that state regulators sent its citizens to the federal government for relief.

“It’s like, OK you have some other alternative so don’t look to us to enforce the law,” Stack said. “Even though the state law is directly on point and we’re the waste regulators. And these are the same people who get upset with the feds interfering with governments within their boundaries.”

Assistant EPD director Jim Ussery said the judge made the right decision.

“The director does have broad discretion and exercised this in crafting the remedy,” he said.

EPD negotiated what it decided was a safe discharge, according to Ussery. Stopping the fire retardant line would have effectively shut the company down, Ussery said.

“It would have been a punitive action with no environmental or public health purpose,” he said.

King America Finishing issued a statement Friday saying, “King America Finishing is very pleased that the Spalding County Superior Court denied the legal action seeking to forcibly shut down the plant in Screven County. We are also pleased with Judge Edwards’ ruling that the Georgia EPD has acted reasonably in its actions both to protect the Ogeechee River and to protect the jobs of the hundreds of Georgians who work at the King America plant. We look forward to continuing to manufacture our life-saving products in full compliance with environmental laws and regulations.”

 

 

 
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