FEDERAL LAW SUIT FILED AGAINST TENCATE

In an order issued last Friday, a federal judge in Macon rejected an effort by Southern Mills, Inc, doing business as TenCate Protective Fabrics, to dismiss the federal Clean Water Act lawsuit filed last September by two sets of local property owners and the Flint Riverkeeper.

The lawsuit alleges that TenCate has and continues to discharge pollutants into tributaries of the Flint River and onto the owners’ properties from its fabric dyeing and finishing plant near Molena, Georgia.

TenCate is an international manufacturer of protective fabrics, synthetic turf, and other products with its corporate headquarters and multiple facilities in Georgia. The chemicals used at the Molena plant are partially treated and then discharged to spray fields pursuant to a land application system (“LAS”) permit issued by Georgia Environmental Protection Division (“EPD”). A LAS (also called a “sprayfield”) is designed for pollutants to be removed by plants and soil before entering adjacent water bodies. A properly designed and operated LAS produces a percolate water of high quality that protects ground and surface water resources. A spray irrigation system is typically used to apply all or a portion of the treated wastewater to approved sites.

In the lawsuit filed last September, the Riverkeeper and private property owners, however, allege that the overburdened and oversaturated LAS at TenCate’s Molena Plant has discharged and continues to discharge still polluted industrial process wastewater overland and directly into streams on private property and springs that feed to these streams which are tributaries of the Flint River, including Cox Branch and Hardy Branch, in Upson County. These discharges have polluted the streams with salts, nitrate, arsenic, chromium, and other pollutants, and increased the conductivity of stream water in several locations, including clear-water branches and formerly clear-water wetlands with high-quality gum and oak flats. Additionally, noxious odors and overspray have been observed by local citizens and confirmed by the Riverkeeper on many occasions.

The suit seeks an injunction from the court to stop the illegal pollution and impose penalties for past and ongoing violations, among other remedies. In October 2016, TenCate filed a motion to dismiss the lawsuit, arguing that the alleged discharges of still polluted industrial process wastewater from its LAS are exempt from the Clean Water Act.

Last Friday, however, Senior U.S. District Judge C. Ashley Royal rejected the textile company’s arguments and held that the Clean Water Act applies to the alleged discharges and pollution. The Court held that the Clean Water Act applies to discharges of still polluted industrial process wastewater from the LAS to the streams on private property through groundwater that connects the LAS to the streams.

In addition, the Court held that the Act also prohibits discharges of still polluted industrial process wastewater from irrigation spray heads on the LAS, overland through ditches and seeps, and into the streams.

Finally, the Court held that permits issued to TenCate by the State of Georgia do not permit discharges of still polluted industrial process wastewater mixed with stormwater. The case will now move forward to discovery.

The federal Clean Water Act empowers citizens to file lawsuits when regulators are either unable to or refuse to step in to stop pollution. Despite efforts of the Riverkeeper and local citizens to address the ongoing problem at Ten Cate with the Georgia EPD, the facility continues to allow pollution from its spray field to run off and seep into protected streams. Said Flint Riverkeeper Gordon Rogers, “We are very heartened that the Court agreed that the Clean Water Act prohibits the discharges and pollution from the LAS, and we believe that we will be able to prove the discharges exist. We are pleased that the case has been allowed to move forward, but we remain profoundly disappointed that we had to file suit on this issue in the first place. We seek only to stop the pollution. TenCate could work with us at any point to do such.”

The Riverkeeper is represented by GreenLaw a non-profit environmental law firm in Atlanta. “The Riverkeeper’s primary objections continue to be ceasing the discharge of chemicals into tributaries of the Flint River,” said David Paule, Executive Director of GreenLaw. “We still remain hopeful that this problem can be settled without a trial, but we are prepared, if necessary, to see this through.” The Riverkeeper and local property owners are also represented by Donald D.J. Stack and Tyler J. Sniff of Stack & Associates, P.C., an environmental law firm in Atlanta. Said Don Stack, “We believe that the thing for the company to do is install a modern wastewater treatment system, returning clean water directly to the Flint system. In this way the basin will be protected and our clients’ property damage problems will be addressed.” “Polluted industrial process wastewater discharged directly to tributaries of the Flint River without a Clean Water Act permit is illegal. We seek to protect the health of the community, property values, and the River,” says Gordon Rogers, the Flint Riverkeeper. “We want TenCate to make the necessary investments, so that their important product for our safety and national security continues to be marketed, jobs are preserved, private property is cleaned up and protected, and our public waters have their quality and flow restored.”

Interested parties wanting to follow the issue may visit the Flint Riverkeeper website at www.flintriverkeeper.org, the GreenLaw website at www.greenlaw.org, and Stack & Associates, P.C. website at http://www.stackenvirolaw.com/.

ABOUT THE GROUPS Flint Riverkeeper – Founded in 2008, Flint Riverkeeper is the only organization which has the sole mission of restoring and protecting the waters of the Flint River, Georgia. The long term goal of Flint Riverkeeper is to insure enough clean water for all uses: fishing, swimming, drinking, agriculture, and industry, and all other reasonable uses. Supported by nearly 3,000 Georgia citizens, Flint Riverkeeper has amassed a steady record of meaningful policy and legal victories for the Flint and her citizens. GreenLaw - As a 501(c)(3) law firm, GreenLaw advocates to preserve Georgia’s unique natural places and enforces compliance with environmental law through the court system. GreenLaw was founded in 1992 by attorneys, law professors, and judges committed to providing community groups in Georgia with the legal and technical tools needed to protect their environment and public health. For more information, please visit www.greenlaw.org. Stack & Associates, P.C. - Founded in 1993 through the vision of Donald D.J. Stack, Esq. is a premier environmental law office serving citizens, municipalities and corporations throughout the entire Southeast region.