It’s been two and a half years of black water, sweat and tears, but the Ogeechee Riverkeeper (ORK) has finally resolved its legal battle with textile manufacturer King America Finishing (KAF).
The two organizations issued a joint press release last week detailing the settlement that includes a $2.5 million contribution by KAF to ORK to monitor pollution levels in the Ogeechee River. The agreement also sets forth an unprecedented set of regulations required of KAF, contained in a revised wastewater permit issued by the Georgia Environmental Protection Division. Thirty-eight thousand dead fish were found floating downriver from the manufacturer’s discharge pipe in May 2011.
The settlement is one of the largest payouts by a company for water-based environmental claims in Georgia history. It also represents a significant chunk of change for the grassroots organization that has struggled to keep the issue in the courts and in the public eye.
“This settlement provides ORK with the means to not only closely monitor the river on an ongoing basis, but also creates a process for discussing changes to the permit in the event any problems come to light,” said Riverkeeper Emily Markesteyn.
Last week’s announcement ends what has been a contentious struggle between ORK’s environmental advocates and those representing KAF’s Screven County-based facility, which produces protective fabric used by workers in the petrochemical, steel and other hazardous industries. Since the fish kill, KAF has spent a half a million dollars on improving its wastewater treatment facilities and will invest another $2.5 million in upgrades. The consent order from the state also calls for third-party monitoring and a host of Supplemental Environmental Projects (SEPs). In exchange, the Riverkeeper will drop its Clean Water Act lawsuit against KAF and stop fighting against the terms of the permit.
It’s a deal that satisfies both sides.
“After a long and productive dialogue with Ogeechee Riverkeeper, we are pleased that we have finally been able to make peace with one another,” said King America president Michael Beasley.
Triangulating the controversy over the Ogeechee River is the EPD, which never charged KAF with the fish kill, citing bacterial overgrowth from low oxygen levels as its cause. During its investigation, the stage agency did find that the company had been discharging effluent from a particularly toxic line of fire retardant into the river without a permit since 2006. KAF had to shut down that line for several weeks in June 2011 but was allowed to resume operations under strict technical and testing requirements during the permit re-application process.
In September 2011, the EPD announced that the recourse for King America’s negligence would be a $1 million fine, an amount considered inadequate by Riverkeeper members and those who live along the river. Furious that the negotiations had been conducted out of the public eye with no opportunity for comment, ORK’s lawyers filed a lawsuit against the EPD a month later.
Bulloch County Superior Court Judge Turner revoked the EPD consent order in July 2012, forcing the EPD to draft another one with public hearings.
During the summer of 2012, the EPD also issued King America a new discharge permit, deemed unacceptable by ORK for its lack of direct monitoring and protective mechanisms for the river. Another lawsuit followed, and the permit was taken off the table. Buoyed by public support, the Riverkeeper pushed for more stringent guidelines and transparent test results in the new permit.
Some of the negotiations include a 30-35 percent decrease in the allowed limits of ammonia and a 20 percent decrease in the total amount of wastewater discharged into the river, down from 10 percent to 8 percent. For the first time, there are also caps on total waste solids and fecal coliform as well as limits on discharged sulfides and nitrogen. Changes in color and pH will be sounded by automatic alarm, and the presence of the fire retardant chemical tetrakis hydroxymethyl phosphonium chloride (THPC) will be specifically checked for twice a month instead of twice a year.
Though ORK leadership and legal counsel were closely involved with the crafting of the revised KAF permit issued on Nov. 20, there was no mention of the organization in a press release from EPD Director Judson Turner. ORK’s leaders found the lack of credit frustrating; from their standpoint, the EPD had to be forced into doing its job.
“We have ultimately ensured conditions in this permit that the State should have ensured to begin with,” fumed Don Stack, who dedicated hours of pro bono legal counsel to ORK, along with Hutton Brown of GreenLaw.
“It should not have taken a private non-profit company almost a year to make sure the state got a permit issued it should have gotten on its own.”
In the end, however, the Riverkeeper now has the means to test the river for itself, with the full cooperation of King America Finishing. While there are still residual arguments that the company should never have been reissued another operating permit at all, those concerns have become less dominant as KAF promises to adhere to the new permit and settles civil suits out of court.
“The reality is that no judge in the state is ever going to shut down a company,” said Stack.
“But we’re pleased that the Ogeechee River will now be the most monitored, regulated, analyzed body of water in the state.” cs