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Don Stack and Lee DeHihns III on opposite sides of the Ogeechee River

Don Stack and Lee DeHihns III on opposite sides of the Ogeechee River

“You’ve got miles of healthy river, you’ve got the discharge pipe and then literally 50 yards downstream of the discharge pipe, you start seeing dead fish. You don’t need to have a bachelor’s degree in biology or a law degree to connect those dots.”

That’s Donald D.J. Stack, of Stack & Associates in Atlanta, on the Ogeechee river kill of May 2011 and May 2012. The latter left thousands of fingerlings dead. The former was the largest fish kill in Georgia’s history: an estimated 38,000 fish.

Stack represents Ogeechee Riverkeeper, an environmental nonprofit he helped form a dozen years ago , which alleges that pollutants discharged into the river from a King America Finishing Inc. textile plant played a large role in these fish kills.

Although a life scientist of the United States Environmental Protection Agency wrote in a memo, “It may be impossible to ever know for certain exactly what happened,” the Georgia Environmental Protection Division ordered King America Finishing to pay a minimum of $1 million in environmentally beneficial projects for the Ogeechee River watershed.

Ironically, the order was challenged not by King America Finishing but by the Ogeechee Riverkeeper, because: 1) the order would allow King America to continue discharging chemicals into the river; 2) the fine could have been as high as $91 million, according to the public interest legal group GreenLaw; and 3) the general public was excluded from having its say. In July 2012, Ogeechee Riverkeeper succeeded in having the order invalidated.

Meanwhile, Lee A. DeHihns III, of Alston & Bird in Atlanta, who represents King America Finishing, calls the allegations in the lawsuits unfounded.

“First of all, King America has never been proven, nor has King America admitted, that it caused the fish kill that occurred in the Ogeechee River in May of 2011,” says DeHihns. “All of the U.S. [Environmental Protection Agency], Georgia Environment Protection Division, the Georgia Wildlife Resources Division have all said the fish kill was caused by a bacteria called columnaris.”

Indeed, in a June 2011 EPA memo examining the potential stressors contributing to the fish kill, Life Scientist Sharon R. Thoms wrote, “According to the Georgia Department of Natural Resources, the fish ultimately were killed by disease, namely columnaris.” But Thoms added:

The chemical concentrations measured in the samples EPA collected on May 22 and 23 were not high enough to kill fish by themselves. Exposure to a mixture of chemicals in combination with unseasonably warm temperatures and low flows may have been sufficient to weaken the fish. These multiple factors may have weakened the fish enough to make them susceptible to disease.

“The company has at all times passed all of [those] environmental testing requirements the state imposed on us,” DeHihns adds.

Litigation continues as the Ogeechee Riverkeeper has filed a federal Clean Water Act lawsuit against King America Finishing.

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