Flint Riverkeeper lawsuit against TenCate moves forward

The lawsuit Flint Riverkeeper has pending against TenCate Protective Fabrics alleging that the company’s Molena plant is illegally sending pollutants into the Flint River has reached discovery after a motion to dismiss the litigation was rejected last week. (Staff Photo: Jennifer Parks)

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

The lawsuit alleges that TenCate has and continues to discharge pollutants into tributaries of the Flint River and onto properties from its fabric dyeing and finishing plant near Molena. Officials said the chemicals used at the plant are partially treated and then discharged to spray fields pursuant to a land application system (LAS) permit issued by the Georgia Environmental Protection Division.

TenCate is an international manufacturer of protective fabrics and synthetic turf and has multiple facilities in Georgia.

An 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, and a spray irrigation system is typically used to apply all or a portion of the treated wastewater to approved sites.

In the lawsuit filed on Sept. 30, 2016, Flint Riverkeeper and private property owners allege that the “overburdened and oversaturated” LAS at TenCate’s plant has been discharging industrial wastewater overland and directly into streams on private property and springs that feed to these streams that are tributaries of the Flint, including Cox Branch and Hardy Branch, in Upson County.

Riverkeeper officials said these discharges have included pollutants such as salts, nitrate, arsenic and chromium, and that there has been increased conductivity of stream water in several locations, including clear-water branches and formerly clear-water wetlands with high-quality gum and oak flats.

Additionally, officials said, noxious odors and overspray have been observed by citizens and confirmed by Flint Riverkeeper.

“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,” Flint Riverkeeper Gordon Rogers said. “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.

“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,” Rogers continued. “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.”

The suit seeks an injunction to stop the pollution and impose penalties for past and ongoing violations. In October, TenCate filed a motion to dismiss the lawsuit, arguing the alleged discharges are exempt from the act. Officials said Senior U.S. District Judge C. Ashley Royal rejected the textile company’s arguments and held that the Clean Water Act applies to the case.

The court held that the 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 such discharges from irrigation spray heads on the LAS, overland through ditches and seeps, and into the streams.

Finally, officials said the court held that permits issued to TenCate by the state of Georgia do not permit these discharges to be mixed with stormwater. The case will now move forward to discovery.

Flint Riverkeeper is represented by GreenLaw, a nonprofit environmental law firm in Atlanta.

“The Riverkeeper’s primary objections continue to be ceasing the discharge of chemicals into tributaries of the Flint River,” GreenLaw Executive Director David Paule said. “We still remain hopeful that this problem can be settled without a trial, but we are prepared, if necessary, to see this through.”

Flint Riverkeeper and 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.

“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,” Stack said. “In this way, the basin will be protected and our clients’ property damage problems will be addressed.”

Attempts to reach a spokesperson from TenCate were not successful on Tuesday.

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