In his four-page decision, Judge John R. Turner wrote that “it is the finding of this Court that the Consent Order is invalid for a lack of public hearing and that the Ogeechee Riverkeeper has standing to bring this action.”
Turner remanded the case to the administrative law judge.
EPD spokesman Kevin Chambers declined to comment on the decision.
The EPD entered into a consent order with King America Finishing after investigations into the largest fish kill in Georgia history in May 2011 revealed that the company had been illegally discharging from a fire-retardant line for five years.
The September 2011 order requires the company to pay for $1 million worth of environmental projects on the river. Georgia law provides for penalties that could have totaled more than $90 million for the unpermitted pollution.
The Ogeechee Riverkeeper challenged the consent order, but in March Administrative Law Judge Lois Oakley ruled in favor of the EPD and King America Finishing, which intervened in the case. Oakley, who is based in Atlanta, reasoned that although members of the riverkeeper organization had been harmed by the fish kill they were not harmed by the EPD’s attempts to remedy the situation.
Turner, ruling from Statesboro, disagreed.
“(The Ogeechee Riverkeeper) has established not only a record supporting a finding of injury caused by degraded water quality leading to a fish kill, but has also shown a continuing harm which is being caused to the waters of the Ogeechee River,” he wrote. “As addressed above, the Consent Order did nothing to abate the harm and therefore allowed the injury to continue such that (the riverkeeper) has shown that its interests have been adversely affected by the issuance of the Consent Order.”
Oakley had also concluded that no public hearing was required for the consent order. EPD regulations call for a hearing if the time period to comply is longer than a year. King America Finishing was given 18 months to either implement the approved environmental projects or pay $1 million.
EPD argued that the consent order did not fit its definition of a compliance schedule because it did not move the violator from a state of noncompliance to one of compliance.
Turner again disagreed, calling for a plain reading of the rules and chiding EPD for its timidity in the face of clear evidence the company violated its permit.
“It is the a priori finding of this court that a harm once done, which is unaffected by an order of the EPD, continues to be a demonstrative harm,” he stated. “Although it appears that the EPD was attempting to remedy the alleged harm, its actions were done without the opportunity of public notice and comment. The perfunctory solution of the EPD to such a significant problem causes the Court to recall the words of a pop culture philosopher: ‘Do or do not. There is no try.’ ”
A footnote identifies the philosopher as Yoda.
Hutton Brown, an attorney for Greenlaw, which represents the Ogeechee Riverkeeper, said the case would likely go back to the same judge – Oakley – who initially ruled against the riverkeeper.
“I would hope we have a fair forum when we go back,” he said.
Greenlaw filed another lawsuit on behalf of the Ogeechee Riverkeeper late Monday. Filed in U.S. District Court in the Southern District of Georgia, it is a complaint against King America Finishing.
“The essence is that King America Finishing has been discharging for five years without a permit and should be sanctioned for that,” Brown said.