June 19-- Wednesday Chief Judge Lisa Godbey Wood of the U.S. District Court (Southern District of Georgia) ruled in favor of the Ogeechee Riverkeeper (ORK) in an attempt by King America Finishing to have the lawsuit against it brought by ORK dismissed in its entirety.
The lawsuit against King America Finishing, Inc. (KAF), owned by Chicago-based Westex, Inc. alleges that KAF has in the past and continues to this day to violate the federal Clean Water Act by continuing to discharge pollutants into the Ogeechee River. The suit filed by Stack & Associates and GreenLaw on behalf of ORK seeks to force KAF to cease such discharges and be held accountable for its contribution to the May 2011 fish kill that led to the death of nearly 38,00 fish of a dozen different species.
In her order, Judge Wood ruled that ORK properly alleged that KAF's discharges were not wholly past and that ORK further properly brought claims against KAF for its actions relating to the discharge, monitoring, or reporting requirements for formaldehyde, ammonia, color, and pH.
She further ruled that even though the State EPD had taken what KAF claimed was a comparable enforcement action which would preclude ORK's citizen's suit, the State regulatory scheme was not comparable inasmuch as it did not afford the general public the same rights to involvement that are provided by the federal Act.
Judge Wood did grant KAF's motion to the extent that it sought relief for claims at this time relating to some specified secondary pollutants. However, the Order does not prohibit ORK from bringing such claims following a 60- day notice of intent to do so should ORK determine such is necessary and appropriate.
The lawsuit alleges that King America knowningly violated the Clean Water Act for more than six years and that this illegal discharge caused one of the largest fish kills in Georgia history. Under the Clean Water Act, when the government does not adequately punish a polluter involved in an ongoing illegal discharge, private citizens and citizen groups can file a lawsuit seeking to have a court do what the State did not.
Ogeechee Riverkeeper's case also seeks to have a court fine King America Finishing for its pollution of the river and to issue an order stopping the illegal discharge.
"We are very pleased that the Court has recognized the legitimacy of ORK's efforts to protect the citizens of the State and has upheld the heart of our case- the fact that King America Finishing has been discharging without a permit," said Emily Markesteyn, Executive Director of Ogeechee Riverkeeper.
"In addition to addressing the continuing illegal discharges into the River from KAF, Judge Wood also ruled that the State's regulatory scheme for allowing citizens of this State who are most directly affected by such illegal discharges is not comparable to the minimum standards intended by the enactment of the Clean Water Act more than 40 years ago" said Don Stack of Stack & Associates, co-counsel in this case. "It is our hope that together with recent prior rulings issued by federal District Court judges in Macon and Atlanta on this same issue, the State will immediately begin to take steps to bring its practices in line with those required by the Clean Water Act," Stack expressed.
King America Finishing produces fabric for a number of purposes. Around 2006, the company added two flame retardant process lines to its wastewater discharge but failed to get a permit to discharge the pollution from these additional process lines into the Ogeechee River.
In May of 2011, one of the largest fish kills in Georgia history occurred below King America Finishing's discharge pipe, affecting nearly 70 miles of the river and killing over 38,000 fish. There were no dead fish found upstream of the King America facility, and attention quickly turned to the company's discharge site as the culprit. EPD belatedly concluded that the company's discharge was harmful to aquatic life. Testing revealed that excessive levels of ammonia, one of the unpermitted pollutants King America was discharging, was the primary contaminant.