Ogeechee Riverkeeper Emily Markesteyn said she is "disappointed" in a Georgia judge's denial of a petition seeking a halt on a Screven County textiles industry from discharging wastewater into the Ogeechee River.
The Ogeechee Riverkeeper organization, which filed the petition, does not have standing and has other ways to seek relief under the federal Clean Water Act, Spalding County Superior Court Judge Christopher C. Edwards ruled last week.
"It is disappointing," Markesteyn said. "But, we still have a (pending) Clean Water Act federal lawsuit."
That suit is currently under review by a federal judge, who will consider a motion to dismiss filed by King America's attorneys.
"We are waiting on a ruling on that motion," Markesteyn said.
She said she has confidence in that case being successful in halting the textiles company from discharging waste without a permit.
Lee DeHihns, an attorney representing the textiles company, King America Finishing, issued a statement from the company praising last week's Georgia court ruling.
"King America Finishing is very pleased that the Spalding County Superior Court denied the legal action filed by the Ogeechee Riverkeeper seeking to forcibly shut down the plant," the statement says. "We are also pleased with Judge Edwards' ruling that the Georgia (Environmental Protection Division) 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."
The Ogeechee River has been the subject of much public discussion and litigation since more than 38,000 fish died in a 70-mile stretch -- all downstream, not upstream, of the textiles plant -- in May 2011. Dozens more fish died in 2012.
While an investigation by EPD ruled that the cause of the fish kill was columnaris, a bacterial disease caused by environmental stress, former Ogeechee Riverkeeper Dianna Wedincamp and others blamed the company's discharge for exacerbating the river's already drought-stressed condition.
The Riverkeeper filed the petition in November seeking a writ of mandamus that would have required Judson Turner, the director of EPD, to order King America Finishing to cease operation of its Screven County facility flame retardant lines.
At a hearing before Edwards on Feb. 26, Dr. Elizabeth Booth, with EPD, testified that when the agency first discovered the fire retardant lines, they were discharging unlawful levels of pollutants directly into the Ogeechee River.
She testified that the company has cooperated with EPD and that monitoring and test results showed "the company's discharge was neither toxic nor violating water quality standards," Edwards wrote in his opinion.
The Ogeechee Riverkeeper did not introduce any evidence at the hearing, Edwards wrote, noting that the organization's "request gives no indication as to whether or when the (EPD) Director should allow the company to recommence operation of those (fire retardant) lines."
In ruling that the Riverkeeper lacked standing, Edwards noted that for a writ of mandamus ordering a state officer to take an action, the official must be required by state law to take that action - in this case, ordering King America to stop operating its flame retardant lines. The Riverkeeper admitted that "there is no express provision in the law" requiring the EPD director to take that action, the judge ruled.
The organization asserted that a writ of mandamus can compel an official to perform an action that is required by law "expressly, or by necessary implication." Edwards ruled that, in this case, there is no "implied" mandatory duty under the Georgia Water Quality Control Act because its language is "plain and unequivocal," leaving no room for implication. In such a case, Edwards wrote, "judicial construction is not only unnecessary but is forbidden."
Edwards further concluded that the EPD director has met the requirements of state law, "undertaking lawful orders and executing his statutory duty."
"The legislature has settled a very heavy responsibility on the Director to act wisely in the public interest by affording the Director such broad discretion," the judge wrote. "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."
Such decisions, Edwards said, are "legislative and executive policy decisions, not judicial decisions."
Edwards added that although the EPD board has the authority to develop regulations regarding the termination of permits "‘for the leakage of any pollutant into the waters of the state,' no such rules or regulations ... exist."
That means the EPD director has "the broadest discretion" under state law, the judge ruled.
That discretion includes the decision by EPD to impose a $1 million civil penalty -- even though King America could have been subject to as much as $90 million in penalties -- and therefore means the director did not "grossly" abuse his discretion, but rather "acted reasonably under the circumstances and consistent with the provisions" of the state water quality law, Edwards wrote.
In the meantime, the river continues to be polluted, Markesteyn said.
"We've just got to keep plugging along until the pollution is stopped, or is properly permitted," she said. "They are discharging without a permit, and the EPD is allowing them to do that. They say the discharge is clean now, but it is hard to get testing to determine that and for the public to know it truly is clean.
"We don't agree (with the judge's ruling) and feel King America should stop discharging until they get a proper permit," she continued. "We want everyone to be a responsible player for a clean environment."
EPD Assistant Director Jim Ussery said the agency supports the decision.
"The Georgia Environmental Protection Division (EPD) is pleased with the judge's ruling, which confirms the EPD Director has broad discretion in addressing and correcting environmental problems," he said. "The current discharge is safe and is the most heavily monitored wastewater discharge in the state. Shutting down the fire retardant line permanently would have served no environmental or human health purpose and would have put many people out of work."
Holli Deal Bragg may be reached at (912) 489-9414.
Jason Wermers may be reached at (912) 489-9431.