STATESBORO — Chief Judge Lisa Godbey Wood of the U.S. District Court (Southern District of Georgia) ruled in favor of the Ogeechee Riverkeeper on Wednesday following 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 alleges the company 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 King to cease such discharges and be held accountable for its contribution to the May 2011 fish kill that led to the death of nearly 38,000 fish of a dozen different species.
"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 her order, Wood ruled that ORK properly alleged that King’s discharges were not “wholly past” and that ORK further properly brought claims against King 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 Environmental Protection Division had taken what King claimed was a comparable enforcement action that would preclude ORK's citizen's suit, the Sstate 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.
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.
"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 the 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.”
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.
See more in the Saturday issue of the News.