King America Finishing Settlement with Ogeechee Riverkeeper

8/13/2019 King America Finishing Settlement with Ogeechee Riverkeeper

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EXHIBIT A


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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

STATESBORO DIVISION

OGEECHEE-CANOOCHEE

RIVERKEEPER, INC.,

Plaintiff,

v.

KING AMERICA FINISHING, INC.,

Defendants.

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Civil Action No. 6:12-CV-00058

CONSENT DECREE

WHEREAS, Plaintiff Ogeechee-Canoochee Riverkeeper, Inc. (Plaintiff) filed this

Complaint against Defendant King America Finishing, Inc. (King America or Defendant) on

July 23, 2012, alleging violations of the Clean Water Act, 33 U.S.C 1251 et seq.;

WHEREAS, King America has implemented upgrades and improvements to its waste

water treatment plant facility and operations thereof since Plaintiffs August 5, 2011 Notice of

Intent to Sue under the Clean Water Act, to wit:

a. King America upgraded the wastewater treatment plants equalization basin

mixing system from a five-aerator mixing system to a four aerator and six 7.5

horsepower mixer system;

b. King America installed additional aerators and replaced some existing aerators in

the wastewater treatment plants aeration basin to provide more oxygen supply

and mixing power in the aeration basin;


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c. King America made significant upgrades to its sulfuric acid addition system,

including a new storage tank, new pH probes and logging equipment, and new

pumps to supply the sulfuric acid at two control points;

d. King America implemented a pH alarm system to include a single audible alarm

to alert operators if its effluent falls outside of a specified range;

e. King America installed a cationic polymer addition system between the

wastewater treatment plants aeration basin and clarifiers to reduce total

suspended solids and color in its effluent;

f. King America has installed and upgraded manufacturing equipment that has

resulted in process water usage reductions of over 300,000 gallons of water per

day;

g. King America has conducted daily acute whole effluent toxicity (WET) testing

and weekly chronic WET testing of the facilitys treated wastewater using

Ceriodaphnia dubia since July 2011;

h. King America has conducted weekly WET testing using Ceriodaphnia dubia on

water samples collected from the Ogeechee River 25 feet downstream of the

facilitys National Pollutant Discharge Elimination System (NDPES) permitted

discharge point since July 2011; and

i. King America drafted, and King America personnel follow, a comprehensive

Operation and Maintenance Manual for the wastewater treatment plant that

contains practical information and data to enhance understanding of the operation

and control of the wastewater treatment plant.


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WHEREAS, King America has operated its waste water treatment plant facility and

discharged its treated effluent into the Ogeechee River pursuant to both NPDES Permit No.

GA0003280 issued September 29, 2000 (the Permit or NPDES Permit) and the discretionary

enforcement authority of the Director of the Georgia Department of Natural Resources,

Environmental Protection Division (EPD) since July 19, 2011;

WHEREAS, King America discharges treated wastewater from its facility pursuant to

NPDES Permit No. GA0003280;

WHEREAS, King America submitted an application to the EPD for a reissuance of its

NPDES Permit on August 12, 2011;

WHEREAS, EPD re-issued the Permit on August 10, 2012, and subsequently withdrew it

in October, 2012 in response to an administrative challenge filed by Plaintiff pursuant to Georgia

law;

WHEREAS, King America prepared, and EPD has approved, an Antidegradation

Analysis relating to the Permit, which contends that any potential water quality impacts from

King Americas discharge are justified on a socioeconomic basis and further provides that King

America plans to install an effluent media filtration system between the existing clarifiers and the

final discharge location to the Ogeechee River in order to further reduce total suspended solids

and biochemical oxygen demand and in order to meet the permit limitations contained in the

Permit that EPD issued in 2012;

WHEREAS, the planned effluent media filtration system is anticipated to cost

approximately two million five hundred thousand dollars ($2,500,000.00) to construct and

install;


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WHEREAS, EPD issued a Consent Order (Consent Order) between EPD and King

America (No. EPD-WQ-5419) on November 20, 2013 addressing certain of the violations

alleged by Plaintiff in its Complaint;

WHEREAS EPD provided public notice of a new draft NPDES Permit No. GA 0003280

for King America on March 20, 2013 and conducted a public hearing concerning the Permit on

May 7, 2013;

WHEREAS, by letter dated October 11, 2013, EPD approved of an ion chromatography

test methodology for analysis of tetrakis (hydromethyl) phosphonium chloride (THPC) in King

Americas effluent that was described in a Technical Memorandum dated June 28, 2013;

WHEREAS, EPD re-issued the Permit on November 20, 2013;

WHEREAS, since July 19, 2011, Respondent has conducted more than 1,000 satisfactory

toxicity tests on the Facilitys effluent and water collected from the Ogeechee River both

upstream and downstream from the Facilitys discharge;

WHEREAS, in June 2010, King America welded shut the discharge pipe from the sludge

holding ponds that was the previously-permitted NPDES discharge location into Jackson Branch

before the permitted discharge location was relocated to the Ogeechee River in 1996;

WHEREAS, King America has agreed to perform additional investigations into further

improving the performance and functioning of its wastewater treatment plant, including bench

scale testing to simulate post-aeration of its effluent and further bench scale testing of its planned

media filtration system upgrade;

WHEREAS, King America has agreed to perform additional testing of its effluent and

wastewater treatment plant sludge in addition to testing required under its NPDES Permit;


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WHEREAS, Plaintiff agrees that, based upon the conditions currently known by and

disclosed to the Plaintiff, and in reliance upon the veracity of King Americas representations of

its processes and treatment facilities, the terms of the Permit are adequately protective of the

environment and the health of the Ogeechee River;

WHEREAS, King America denies the Plaintiffs claims and denies liability for the

alleged violations, and by entering into this Consent Decree, King America does not waive or

limit any defense, on any grounds, related to any action which might be taken by any

governmental entity or any other citizen;

WHEREAS, by agreeing to entry of this Consent Decree, King America makes no

admission of law or fact with respect to the allegations in the Complaint, and denies violation of

any law or regulation identified therein. Solely for the purposes of avoiding further litigation

between the parties, however, King America agrees to the requirements of this Consent Decree;

and

WHEREAS, Plaintiff and King America recognize, and the Court by entering this

Consent Decree finds, that this Consent Decree has been negotiated by the Parties in good faith

and will avoid litigation among the Parties and that this Consent Decree is fair, reasonable, and

in the public interest;

NOW, THEREFORE, before the taking of any testimony, without the adjudication or

admission of issues of fact or law and with the consent of the Parties, IT IS HEREBY

ORDERED, ADJUDGED, AND DECREED as follows:

I. JURISDICTION AND VENUE

For purposes and enforcement of this Consent Decree only, the Parties to this Consent

Decree agree that this Court has jurisdiction over this matter, the parties to the Consent Decree,


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any disputes arising out of this Consent Decree, as well as any alleged violations of this Consent

Decree.

II. TERMS OF AGREEMENT

The terms of this Consent Decree have been divided into subsections as outlined below.

1. NPDES Permit Parameters

Plaintiff and Defendant have jointly submitted to EPD the following proposed monitoring

requirements and discharge limitations to be included in the NPDES Permit:

(i) Chemical Oxygen Demand (COD): mass based discharge limitations of 5,500

pounds (lbs.) per day daily average and 11,000 lbs. per day daily maximum.

(ii) Sulfide: concentration based discharge limitations of 1.5 milligrams (mg) per

liter daily average and 3.0 mg per liter daily maximum.

(iii) Total Ammonia: concentration based discharge limitations of 7 mg per liter daily

average and 13 mg per liter daily maximum.

(iv) Total Kjeldahl Nitrogen (as N) and Total Nitrogen (as N): report concentration

based daily maximum values.

(v) Formaldehyde: report concentration based daily average and daily maximum

values.

(vi) Color (ADMI color value): until such time as EPD takes action on the color study

described in Part III.B.7 of the NPDES Permit, the final effluent shall be limited

to a maximum difference of 80 ADMI color units between (1) a grab sample of

the Ogeechee River 25 feet upstream of discharge point; and (2) a grab sample of

the final effluent taken thereafter on the same day as and as contemporaneously as


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possible with the upstream Ogeechee River sample. King America will test the

color at these two points for comparison once weekly.

(vii) Fecal Coliform: concentration based discharge limitations of 200 colony-forming

units per 100 milliliter (mL) daily average and 400 colony-forming units per

100 mL daily maximum.

(viii) THPC: twice monthly monitoring and reporting pursuant to an EPD-approved test

method.

(ix) Flow: King America shall record stream flows measured at the U.S. Geologic

Survey gauge at Rocky Ford (02202040) at 8:00 am daily, and the total final

effluent flow volume discharged for the following 24 hour period shall not exceed

eight percent (8%) of the actual stream flow as measured at the Rocky Ford

gauge.

(x) Total Dissolved Solids (TDS): concentration based discharge limitations of 2,500

mg per liter daily average and 3,800 milligrams per liter daily maximum. King

America will test the final effluent for TDS five (5) days per week using a 24-

hour composite sample.

Plaintiff and Defendant agree that none of the promises or obligations agreed to by Plaintiff or

Defendant in this Consent Decree will be contingent upon EPDs adoption of any or all of the

above limitations in the NPDES Permit as issued to King America.

All terms in this section will be defined in accordance with the Draft Permit agreed to by

the Parties, attached hereto as Exhibit A.


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recording instrumentation for flow measurements, Defendant will calibrate the

equipment to within +5% of actual flow.

(viii) Within thirty (30) days of the date of this Agreement, Defendant shall

permanently render inoperable (via capping, welding, or severing as the case may

be) any pipe that has the ability to convey wastewater into Jackson Branch from

King Americas manufacturing operations, the wastewater treatment plant, or

sludge holding ponds.

(ix) Provided that the re-issued Permit does not contain permit limitations that are

more stringent than provided in Exhibit A, King America will cause to be

constructed and installed an Aqua-Aerobic Systems, Inc. cloth media filtration

system, and construction activities shall begin within sixty (60) days following re-

issuance of the Permit.

3. Monetary Payment

a. If, upon entry of this Consent Decree, the NPDES Permit has been issued by the

Director of EPD and thirty (30) days have passed since the issuance of the NPDES

Permit by the Director without a challenge being filed pursuant to O.C.G.A. 12-2-

2 and 12-5-43 (or any filed challenge has been withdrawn or dismissed prior to entry

of this Consent Decree), Defendant shall pay the total sum of TWO MILLION FIVE

HUNDRED THOUSAND DOLLARS ($2,500,000.00) to the Plaintiff by January 15,

2014 or within fifteen (15) days of entry of this Consent Decree, whichever occurs

later.

b. If, upon entry of this Consent Decree, the NPDES Permit has not been issued by the

Director of EPD, Defendant shall pay the total sum of TWO MILLION FIVE


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HUNDRED THOUSAND DOLLARS ($2,500,000.00) by January 15, 2014 or within

fifteen (15) days of entry of this Consent Decree, whichever occurs later, into an

escrow account held by BMO Harris Bank. If, following entry of this Consent

Decree, the Director of EPD subsequently issues the NPDES Permit, ONE MILLION

FIVE HUNDRED THOUSAND DOLLARS ($1,500,000.00) shall become due and

payable to the Plaintiff from the escrow account within thirty-one (31) days of the

Directors issuance of the NPDES Permit, provided that Plaintiff does not file a

challenge to the NPDES Permit. If, following entry of this Consent Decree, no

challenge to the NPDES Permit is filed within thirty (30) days of the Directors

issuance of the NPDES Permit, the entire sum plus any accrued interest in the escrow

account shall become due and payable to the Plaintiff.

c. If, upon entry of this Consent Decree, there is a pending challenge to the NPDES

Permit that has been filed with the Director of EPD, Defendant shall pay the sum of

ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000.00) to the

Plaintiff within fifteen days of entry of this Consent Decree or by January 15, 2014,

whichever occurs later, and Defendant shall pay the sum of ONE MILLION

DOLLARS ($1,000,000.00) by January 15, 2014 or within fifteen (15) days of entry

of this Consent Decree, whichever occurs later, into an escrow account held by BMO

Harris Bank.

d. During the pendency of any challenge to the NPDES Permit, the following sums from

the escrow account shall become due and payable to the Plaintiff from the escrow

account:


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1. FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) if the administrative

law judge upholds the Directors issuance of the NPDES Permit;

2. FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) if the Superior Court

upholds and affirms the decision of the administrative law judge; but

3. Notwithstanding Section II.3(e), the terms of the payments described in

subparagraphs 1 and 2 above may be modified by a subsequent written agreement

of the Parties.

e. If, at any time following the issuance of the NPDES Permit and following a

subsequent challenge to the NPDES Permit that has been filed with the Director of

EPD, all challenges to the NPDES Permit have been withdrawn or dismissed and are

no longer pending such that King America has a valid, final NPDES Permit with

terms substantially similar to those in Exhibit A, then the entire sum plus any accrued

interest in the escrow account shall become due and payable to the Plaintiff; provided

that Plaintiff does not challenge or otherwise support or encourage any other entitys

or persons challenge of the NPDES Permit and that Plaintiff satisfies the

requirements of Intervention detailed in Section II.4, as applicable.

f. The entire remaining sum including any accrued interest, in the escrow account shall

become due and payable to the Defendant if a challenge to the NPDES Permit is filed

with the Director of EPD and if Plaintiff challenges or otherwise supports or

encourages any other entitys or persons challenge of the NPDES Permit, or if

Plaintiff fails to satisfy the requirements of Intervention detailed in Section II.4, as

applicable.


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g. The entire sum plus any accrued interest in the escrow account shall become due and

payable to the Defendant if the NPDES Permit is remanded to the Director of EPD as

a result of any challenge filed pursuant to O.C.G.A. 12-2-2 and 12-5-43 or the

NPDES Permit is withdrawn by EPD in response to any such challenge, and (1) the

time by which any party may seek any further appellate review of such action or

decision has expired without filing of a further appeal, or (2) no further appeal of such

action or decision is allowed by law.

h. Notwithstanding the foregoing, Plaintiff and Defendant agree that the intent of this

Consent Decree is for paragraph (g) in this Section II.3 to be construed such that

Plaintiff shall be entitled to receive the sum returned to King America from the

escrow account pursuant to Section II.3.(g) if EPD subsequently issues an NPDES

Permit to King America, with terms substantially similar to those in Exhibit A and

satisfactory to King America, within eighteen months of entry of this Consent Decree,

and no challenge thereto is pending before any agency or court.

i. Notwithstanding any interpretation to the contrary, any and all funds paid to the

Plaintiff shall be considered final and irrevocable.

4. Agreement Not to Challenge Permit and Intervention in Permit Challenge

Plaintiff agrees not to file any challenge to the Permit or the Consent Order under

O.C.G.A. 12-2-2 and 12-5-43. Should any other person, persons, party, or parties challenge

the Permit under O.C.G.A. 12-2-2 and 12-5-43, Plaintiff agrees to seek to intervene in

opposition to the challenge and in support of the Permit by filing a Motion to Intervene in the

challenge before the Georgia Office of State Administrative Hearings. If Plaintiffs intervention

is granted, Plaintiff agrees to provide legal and technical support to EPD in defense of the


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Permit. Such support, regardless of whether intervention is granted, shall include, but is not

limited to, making its attorney(s) available to argue in favor of the validity of the Permit, making

one or more representative from the organization (such as the Executive Director and/or the

Chair of the Board of Directors) available to testify in support of the Permit, and making one or

more experts available to provide testimony at any hearing in the Georgia Office of State

Administrative Hearings before an administrative law judge that is consistent with Plaintiffs

testimony in support of the Permit. Plaintiff will continue to participate in support of the Permit

in any appeal of the decision of the administrative law judge to any Superior Court, in any appeal

of the decision of the Superior Court to the Georgia Court of Appeals, and in any appeal of the

decision of the Georgia Court of Appeals to the Supreme Court of Georgia. Throughout any and

all intervention activities, Plaintiff will be responsible for any payment of its own attorneys fees

and/ or its Executive Directors time, and Defendant will be responsible for payment of any and

all costs and expenses associated with Defendants or the EPDs utilization of Plaintiffs experts.

5. Access to Information

Defendant agrees to house and maintain a webpage for five (5) years through its current

domain (www.kingamericafinishing.com), or a suitable alternative domain, that is available to

Plaintiff and the public. Within forty-eight (48) hours of the monthly submission of the Permit-

required discharge monitoring report (DMR) to EPD, Defendant agrees to post the same to this

webpage. Defendant agrees to maintain the most recent sixty (60) DMRs on this webpage and

agrees that the webpage will be available within fifteen (15) days of entry of this Consent

Decree.

Defendant agrees to house and maintain a separate password-protected webpage for five

(5) years that is available to Plaintiff and Plaintiffs designated consultants. Defendant agrees


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that this webpage will be available within fifteen (15) days of entry of this Consent Decree and

data shall be made available on this webpage in accordance with the Webpage Protocol,

attached hereto as Exhibit H.

6. Meet and Confer

(a) Within forty-five (45) days of the entry of this Consent Decree, Plaintiff and

Defendant shall meet and confer on a mutually agreeable date at Defendants facility so that

Defendant can conduct an orientation of Defendants facility for Plaintiff and Plaintiffs

consultants. Annually for the next five (5) years following entry of this Consent Decree,

Plaintiff shall be allowed a site visit on a mutually agreeable date in order to discuss the

operations at Defendants facility. During any such site visit (including the initial orientation

visit), Plaintiff shall be limited to no more than seven (7) attendees. Any samples collected by

Plaintiff or Plaintiffs consultants shall be taken from Defendants permitted Outfall 001, shall be

split with Defendant, and must comply with the provisions of 40 C.F.R. 136 (including, but not

limited to, compliance with provisions concerning sampling techniques, sample preservation,

sample containers, and chain of custody). Plaintiff or Plaintiffs consultants must submit the

samples to an accredited laboratory for analysis. Plaintiff or Plaintiffs consultants shall not

provide sample results to any other party or parties besides Defendant or the EPD without the

prior consent of Defendant. Any photographs of the wastewater treatment facility taken by

Plaintiff or Plaintiffs consultants shall not disclose information that is proprietary to the

Defendant, and no photographs inside the manufacturing building will be allowed.

(b) Plaintiff and Defendant also agree to meet and confer every six (6) months after entry

of this Consent Decree to discuss the data in the DMRs and any other data provided to Plaintiff

by Defendant, the state of operations of King Americas wastewater treatment plant, and any


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other data collected by Plaintiff that has been provided to King America at least thirty (30) days

in advance of the meeting.

(c) Two (2) years after the effective date of the re-issued NPDES Permit, Plaintiff and

Defendant shall meet and confer to discuss whether any Permit parameters and/or any of the

additional actions related to King Americas wastewater treatment plant set out at II.2. herein can

or should be adjusted prior to the five-year expiration date of the Permit. Information that will

be considered by both Parties in advance of this meet and confer process shall include but shall

not be limited to King Americas DMRs, any data generated by any Supplemental

Environmental Project described in the Consent Order between EPD and King America (No.

EPD-WQ-5419), dated November 20, 2013, and any additional data generated by Plaintiff and

King America with respect to King Americas facility or the Ogeechee River. If the Parties

agree that a Permit modification is warranted, the Parties agree to request a joint meeting with

EPD to further discuss any such request for a Permit modification.

(d) Either Plaintiff or Defendant may also request to meet and confer with either Party at

any time in the five (5) years following entry of this Consent Decree for good cause shown. For

purposes of this Section, Plaintiff can show good cause by showing one or more of the

following: (1) Defendant has violated the same provisions of the NDPES Permit on more than

one occasion within the same year; and (2) Plaintiff identifies test results that represent a trend,

condition, or situation about which it reasonably should be concerned or that reveals

opportunities for meaningful improvements to King Americas wastewater treatment operations.

7. Statements to the Public and the Media

Defendant and Plaintiff will issue a joint press release upon entry of this Consent Decree,

attached hereto as Exhibit I. Plaintiff and Defendant both agree that any other public statements


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regarding the terms of the settlement, the Permit, the Consent Order between EPD and King

America (No. EPD-WQ-5348), the Consent Order between EPD and King America (No. EPD-

WQ-5419), or King Americas wastewater treatment plant facility for at least six months

following the entry of this Consent Decree must be consistent with, and in the spirit of, the

substance of Exhibit I. Further, except in administrative or court proceedings in connection with

a challenge to the NPDES Permit or the Consent Order, such communications on behalf of

Defendant shall be limited to its attorneys and President, and such communications on behalf of

the Plaintiff shall be limited to its attorneys and Executive Director.

III. CONFIDENTIALITY

The nature and terms of this Consent Decree are not confidential.

IV. DISMISSAL OF CLAIMS

Upon entry of the Consent Decree, all claims that were or could have been asserted in

this matter against Defendant will be dismissed with prejudice, although the Court will retain full

authority and jurisdiction to administer and enforce this Consent Decree.

V. DISPUTE RESOLUTION

In the event of a disagreement between the parties concerning any aspect of this Consent

Decree, the dissatisfied party shall provide the other party with written notice of the dispute and

a request for negotiations. If the parties cannot reach an agreed resolution within thirty (30) days

after receipt of the notice by the other party, then either party may petition this Court to resolve

the dispute.

VI. SEVERABILITY

The various terms, paragraphs, and sections contained herein shall be deemed separable

and severable. If any provision of this Consent Decree is deemed invalid and unenforceable, the

balance of the Consent Decree shall remain in full force and effect.


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VII. ENTIRE AGREEMENT

This Consent Decree constitutes the entire agreement between Plaintiff and Defendant in

this case. All prior conversations, meetings, discussions, drafts and writings of any kind between

Plaintiff and Defendant are specifically superseded by this Consent Decree.

VIII. MUTUAL DRAFTING

It is hereby expressly understood and agreed that this Consent Decree was jointly drafted

by Plaintiff and Defendant. Accordingly, the parties hereby agree that any and all rules of

construction to the effect that ambiguity is construed against the drafting party shall be

inapplicable in any dispute concerning the terms, meaning, or interpretation of this Consent

Decree.

IX. RELEASE BY PLAINTIFF

Upon entry of this Consent Decree by the Court, Defendant and their respective parents,

subsidiaries, and affiliated companies, employees, officers, directors, shareholders, members,

agents, attorneys, successors, and assigns, shall be released from any and all claims that Plaintiff

and its employees, officers, directors, agents, attorneys, successors and assigns made, or could

have made, in this litigation arising from the facts asserted in the Complaint or arising from facts

within the knowledge of Plaintiff at the time that this Consent Decree is executed. Upon payment

of the settlement amount by Defendant as set forth in Section II, the Plaintiff for itself, assigns,

representatives, and agents, and for any other person or persons, or any entities or entities acting

by, for or through the Plaintiff, herby fully and unconditionally surrenders, releases, acquits, and

forever discharges Defendant and its affiliates, subsidiaries, and predecessors, and its and their

directors, officers, employees, members, shareholders, and attorneys, agents, and all persons

acting by, through, under, or in concert with any of the foregoing, and each their representative


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successors and assigns from and against any and all manner of action or actions, causes of action,

debts, liabilities, losses, suits, damages, judgments, costs, expenses (including but not limited to

attorneys fees), sums of money, demands, obligations, or claims, whatsoever, in law or in

equity, direct or indirect, whether known or unknown, suspected or claimed, vested or

contingent, which exists as of the date of the execution of this Consent Decree. Plaintiff

acknowledges and admits that this general release and waiver in favor of Defendant is a material

inducement of Defendant to enter into this Consent Decree.

X. RELEASE BY DEFENDANT

Upon entry of this Consent Decree by the Court, Plaintiff and its related and affiliated

companies, employees, officers, directors, agents, attorneys, successors and assigns shall be

released from any alleged damages that were or may have been sustained by Defendant and its

respective parents, subsidiaries, and affiliated companies, employees, officers, directors,

shareholders, members, agents, attorneys, successors and assigns and that were made, or could

have been made, in this litigation arising from the facts asserted in the Complaint.

XI. RESERVATION OF RIGHTS

This Consent Decree does not waive or limit in any way Plaintiffs or Defendants rights

except as expressly provided in this Consent Decree.

XII. COMPLIANCE WITH OTHER LAWS

Nothing in this Consent Decree relieves Plaintiff or Defendants of the obligation to act in

a manner consistent with applicable Federal, State and local law.

XIII. APPLICABLE LAWS

This Consent Decree shall be construed under the laws of the United States and the State

of Georgia.


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THE FOREGOING Consent Decree among Plaintiff and Defendant is hereby

APPROVED and ENTERED, this _____ day of ___________________, 201__.

____________________________________LISA GODBEY WOOD, CHIEF JUDGEUNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF GEORGIA


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FOR THE PLAINTIFF

Date: _____________ ______________________________ Donald D.J. Stack

Jenny R. Culler

Stack & Assoc., P.C., Suite 1200260 Peachtree Street, N.W.

Atlanta, GA 30303

______________________________

Hutton Brown

GreenLaw104 Marietta Street, Suite 430

Atlanta, GA 30303

FOR THE DEFENDANT

Date: _____________ ______________________________

Susan W. CoxV. Sharon Edenfield

Edenfield, Cox, Bruce & Classens, P.C.

115 Savannah AvenuePost Office Box 1700

Statesboro, Georgia 30459

(912) 764-8600

______________________________Lee DeHihns

Jonathan Wells

Jody Rhodes

ALSTON & BIRD, LLPOne Atlantic Center

1201 W. Peachtree Street

Atlanta, Georgia 30309-3424


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EXHIBIT A

Redlined NPDES Permit


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EXHIBIT B

Bench Scale Testing for Pre-Release Aeration

King America will conduct bench-scale batch tests to simulate the effects of a pre-releaseaeration step on effluent samples from the existing clarifiers. This simulation will utilize KingAmericas existing batch reactors and will begin seven (7) days after entry of the ConsentDecree. The batch reactors will simulate an additional one and one-half (1.5) days of aeration ofthe clarifier effluent to measure the reduction of chemical oxygen demand (COD) and sulfideconcentrations, if any. The simulation will be run twice per week for four (4) weeks.

King America will collect grab samples from the clarifier effluent for batch testing. CODand sulfide concentrations will be measured on this sample prior to aeration in the batch reactorand again on a sample from the batch reactor at the end of each simulation. At the end of the 36-hour aeration period (and prior to collecting the effluent sample), deionized water will be addedto the batch reactor so that the level in the reactor is equal to the level at the start of the test. Thiswill account for any evaporation losses that occur during the aeration test that could impact theanalytical results.

Analytical methods, sample containers, sample preservation techniques, and sampleholding times will be consistent with the techniques and methods listed in 40 CFR Part 136. Ifthe result for a given sample analysis is such that a parameter is not detected at or above thespecified detection limit, a value of Not Detected will be reported for that sample and thedetection limit will also be reported.

Within sixty (60) days of entry of the Consent Decree, King America will prepare andsubmit a report to Plaintiff summarizing the results of the simulation. King America shallsimultaneously submit this report to the EPD.


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EXHIBIT C

Media Filtration System Protocol

King America will conduct additional bench-scale tests to simulate its planned clothmedia filtration system using a pilot filter unit from Aqua-Aerobic Systems, Inc., the anticipatedsupplier of the full-scale equipment. This unit is designed to approximate the performance of thefull scale equipment in an on-site laboratory setting. The device will be installed in KingAmericas wastewater treatment plant laboratory, and water to be filtered through the unit will becollected after exiting the clarifiers, which is where the full-scale system will be located whenanticipated installation occurs in 2014. This bench scale testing will commence within thirty(30) days after entry of the Consent Decree, and the testing will be conducted for three (3)weeks.

King America will collect grab samples from the clarifier effluent for batch testing.These samples will be analyzed prior to the start of the filtration batch test. Filtrate (or filtereffluent) from the batch tests will also be analyzed twice weekly. The initial influent samplesand biweekly filter effluent samples will be analyzed for the following parameters: TSS, VSS(volatile suspended solids), pH, alkalinity, TDS, conductivity, total nitrogen, total phosphorus,nitrate, nitrite, and ammonia. Analytical methods, sample containers, sample preservationtechniques, and sample holding times will be consistent with the techniques and methods listedin 40 CFR Part 136. If the result for a given sample analysis is such that a parameter is notdetected at or above the specified detection limit, a value of Not Detected will be reported forthat sample and the detection limit will also be reported.

Within seventy-five (75) days of entry of the Consent Decree, King America will prepareand submit a report to Plaintiff summarizing the results of this testing.

King America shall simultaneously submit this report to the EPD.


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EXHIBIT D

Benthic Invertebrate Assessment Protocol

I. Fish and Benthic Invertebrate Assessment

King America will complete annual biological monitoring at a total of four (4) stations inthe Ogeechee River, and the stations will be designated as follows:

Two (2) locations will be located up stream of the existing outfall to document backgroundconditions, and two (2) locations will be located downstream of the outfall to evaluatepotential impacts of King America operations.

Sampling stations will be located to include representative habitats in this reach of the riverwhile not overlapping sampling sites.

The stations below the outfall will be located to include an area directly downstream of thedischarge and a second station further downstream where the effluent is fully mixed with

the ambient river water.

Locations of any significant tributaries or other potential sources of additional runoff orpollutants will be identified within the sampling reach. Both benthic macroinvertebrate and fishcommunities will be sampled following the protocols established by the Georgia Department ofNatural Resources Environmental Protection Division (EPD) and Wildlife Resources Division:

1. Georgia Department of Natural Resources (GADNR). 2005. Standard OperatingProcedures for Conducting Biomonitoring on Fish Communities in Wadeable Streams ofGeorgia. Wildlife Resources Division, Fisheries Management Section.

2. Georgia Department of Natural Resources (GADNR). 2007. Standard OperatingProcedures- Macroinvertebrate Biological Assessment of Wadeable Streams in Georgia.Environmental Protection Division, Watershed Protection Branch.

II. Additional Benthic Invertebrate Sediment Assessment

To further evaluate potential effects on benthic invertebrate communities found below thesediment surface, King America will collect sediment samples upstream and downstream of theoutfall to identify macro (>500 microns) fauna and meio (> 300 microns but < 500 microns)fauna. King America will collect the samples as follows:

1. Five (5) stations will be located upstream of the existing outfall and nine (9) stations will

be located downstream of the downfall.2. The samples will be taken with a Petit Ponar grab sampler (or similar standard sampling

device).3. The downstream stations will be located in gradient downstream from the diffuser

beginning within the immediate mixing zone approximately fifty (50) feet below thediffuser and approximately equal distance downstream.

At each station, a total of three (3) grabs of sediment material will be composited and


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shipped to a laboratory for sorting and identification to the species level. Each sample will besieved with a 500 and then 300 micron sieve to distinguish between macro and meiofauna. Thecomposite samples will be sorted in the laboratory down to species level following theprocedures in the EPD protocols and results summarized using the multi-metric approachincluding species richness, composition, tolerant/intolerant, functional feeding group, and

habitat. Results from each station will be compared using standard statistical methods to comparesimilarity between locations.

III. General Matters

The biological monitoring will be conducted annually in the late summer or early fallmonths as recommended in the protocols. This sampling will be conducted annually for three (3)years to allow for a range of annual stream flow conditions. Upon completion of this protocol,King America and Plaintiff will meet and confer in good faith to evaluate whether it is necessaryand/or advisable to extend this sampling for an additional two (2) years.

King America will prepare a Sampling and Analysis Plan (SAP) that specificallyidentifies sampling stations and will provide the SAP to Plaintiff no later than July 1, 2014 forPlaintiffs review and comment. Following the assessments, King America will summarize theresults from both sampling procedures described above in an annual report to be provided toPlaintiff on or before the 1st of December annually, beginning on December 1, 2014.


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EXHIBIT E

RCRA Metals and Priority Pollutants Protocol (Effluent)

King America will test the facilitys effluent at the permitted outfall (Outfall 001) onceannually for three (3) years beginning in June 2014 for the following parameters:

1. All priority pollutants, as that term is defined in the federal Clean Water Act and itsimplementing regulations. A list of all priority pollutants can be found in AppendixA to 40 CFR Part 423; and

2. The following metals: arsenic, barium, cadmium, chromium, lead, mercury, selenium,and silver. These are more commonly known as the federal Resource Conservationand Recovery Act metals; and

3. The following parameters from the NPDES Permit: total phenols, total chromium,

formaldehyde, and sodium.Samples will be sent to a certified laboratory for analysis. King America will compile the

results of these tests into an annual report to be provided to Plaintiff on or before the 1st ofSeptember annually, beginning on September 1, 2014. King America shall simultaneouslysubmit this report to the EPD.


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EXHIBIT F

RCRA Metals and Priority Pollutants Protocol (Sludge)

King America will test the sludge in the facilitys waste water treatment plant holdingponds annually for three (3) years beginning in June 2014 for the following parameters:

1. All priority pollutants, as that term is defined in the federal Clean Water Act and itsimplementing regulations. A list of all priority pollutants can be found in AppendixA to 40 CFR Part 423; and

2. The following metals: arsenic, barium, cadmium, chromium, lead, mercury, selenium,and silver. These are more commonly known as the federal Resource Conservationand Recovery Act metals; and

3. The following parameters from the NPDES Permit: total phenols, total chromium,

formaldehyde, and sodium.The sampling will be conducted at four (4) discrete sampling points in each pond. At

each sampling point, sludge will be collected from three (3) different depths. The sludge fromthe three (3) different depths at each sampling point will be composited into a single sample,which will result in four (4) discrete samples one from each point that are submitted to acertified laboratory for analysis.

King America will compile the results of these tests into an annual report to be providedto Plaintiff on or before the 1st of September annually, beginning on September 1, 2014. KingAmerica shall simultaneously submit this report to the EPD.


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EXHIBIT G

WET Testing Protocol

Once per quarter (in March, June, September, and December) for three (3) yearsfollowing entry of the Consent Decree, King America will collect instream samples twenty-five(25) feet above and below the permitted outfall discharge into the Ogeechee River. Acute andchronic whole effluent toxicity (WET) testing of these samples by a certified laboratory will beconducted concurrently using both Ceriodaphnia dubia andDaphnia ambigua.

In performing the acute WET testing, the most current U.S. EPA acute aquatic testingmanual shall be followed. The reference document for this method is Methods for Measuringthe Acute Toxicity of Effluents and Receiving Waters to Freshwater and Marine Organisms, 5th

Edition, October 2002 or the most recently approved edition. In performing the chronic WETtesting, the most current U.S. EPA chronic aquatic testing manuals shall be followed. Thereference document for this method is: Short-Term Methods for Estimating the ChronicToxicity of Effluents and Receiving Water to Freshwater Organisms, 4th Edition, EPA-821-R-02-013, October 2002 or the most recently approved edition.

In addition to a reconstituted laboratory control test performed according to EPAprotocols using MHRW 2611 laboratory prepared water for the serial dilutions, a parallel set oftests using Ogeechee River water collected upstream will also be conducted using a serialdilution with Ogeechee River water as dilution water. The results of the tests using the dualcontrols will be analyzed according EPA Section 7.1.3.

King America will compile the results of these tests into a quarterly report to be providedto Plaintiff within thirty (30) days of the completion of each chronic WET test.


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EXHIBIT H

Webpage Protocol

For five (5) years following entry of the Consent Decree, King America will maintain apassword-protected webpage for the dissemination of technical information such as samplingresults to the Ogeechee Riverkeeper and its consultants. Ogeechee Riverkeeper will provideKing America with a list of up to seven (7) individuals who will be authorized users and will beissued login credentials and passwords and will be provided with the website address. In orderto receive such credentials and passwords, those individuals will need to provide an emailaddress and phone number to King America. Ogeechee Riverkeeper may substitute anauthorized user at any time by providing substitute information to King America and indicatingwhich previously-authorized user is no long authorized.

The password-protected webpage will include sampling results required to be collectedand maintained for purposes of King Americas submission of Discharge Monitoring Reports

(DMRs) to Georgia EPD and will include certain process control results maintained for KingAmericas operation of its wastewater treatment plant. In addition, PDF copies of the reportsprepared pursuant to Section II.2 of the Consent Decree will be maintained on the website.

For the following results that are collected, reported, and recorded by King Americapersonnel for DMR purposes, the results will be posted within forty-eight (48) hours ofcollection and recording of any analysis (to the extent applicable):

Flow

pH (daily grab and daily high and low from continuous monitoring)

Temperature (daily grab and daily high and low from continuous monitoring)

Dissolved Oxygen (daily grab and daily low from continuous monitoring) Peroxide

Color (effluent)

For the following results that are collected and analyzed by an accredited laboratory forDMR purposes, the results will be posted by 9 a.m. on the third (3rd) day following KingAmericas receipt of final (i.e., non-provisional) data:

BOD5

Chemical Oxygen Demand

Total Suspended Solids

Total Phenols Total Chromium

Total Ammonia

Formaldehyde

Sodium

Sulfide

Whole Effluent Toxicity testing (effluent and in-stream)


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In-stream sampling of the Ogeechee River (i.e., color, pH, temperature, conductivity,

ammonia, formaldehyde, sodium, sulfide, peroxide, and dissolved oxygen)

For the process control testing that King America maintains in the course of operating itswastewater treatment plant, the parties have agreed that to the extent King America continues

to utilize these parameters for process control and on the days that King America generates datafor a particular parameter the following parameters will be reported on the website:

pH of the aeration basin influent (taken during the A.M. operators shift)

Chemical Oxygen Demand of the aeration basin influent (taken during the A.M. operators

shift)

Dissolved Oxygen taken from Pier 4 within the aeration basin (taken during the A.M.

operators shift)

Mixed Liquor Suspended Solids within the aeration basin (daily grab sample)

Mixed Liquor Volatile Suspended Solids within the aeration basin (not a daily sample,

availability may vary)

pH of the aeration basin effluent (taken during the A.M. operators shift)

Return Suspended Solids from the clarifiers (not a daily sample, availability may vary)

Sludge Volume Index from the clarifiers (not a daily sample, availability may vary)

Ammonia within the clarifiers (daily grab sample)

Chemical Oxygen Demand within the clarifiers (daily grab sample)

Total Suspended Solids within the clarifiers (daily grab sample)

Nitrate and Nitrite within the clarifiers (daily grab sample)

That data will be input into a spreadsheet and uploaded to the website by King America on aweekly basis and no later than noon Monday for the previous weeks data (which shall run from

Sunday through Saturday). Any data which has not been quality-control verified by King

America in time for the noon Monday upload will be uploaded once it is verified.

No sooner than ninety (90) days following entry of the Consent Decree, the parties will discuss

the format of the presentation of the data on the webpage to determine whether modification of

the presentation of the data is necessary to facilitate Plaintiffs review of same.


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EXHIBIT I

Press Release


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November 20, 2013

FOR IMMEDIATE RELEASE

Jointly Issued by Ogeechee Riverkeeper & King America Finishing, Inc.

Contacts:

Don Stack, Stack & Associates, P.C. (co-counsel for Ogeechee Riverkeeper);

[email protected] / 404-525-9205

Hutton Brown, GreenLaw (co-counsel for Ogeechee Riverkeeper);


Christy Hull Eikhoff, Alston & Bird LLP (counsel for King America Finishing, Inc.)


Ogeechee Riverkeeper and King America Finishing Reach Accord, Settle Legal

Disputes

Ogeechee Riverkeeper (ORK) and King America Finishing have worked togetherto resolve a set of legal and regulatory battles that have been ongoing since a fish killoccurred in the Ogeechee River in May 2011. The settlement agreement puts in placecomprehensive and stringent environmental protections and establishes programs to aidin restoration efforts along the river. The new terms alleviate ORKs prior concerns overthe issuance of a new wastewater discharge permit for the Screven County textilemanufacturing plant. ORK had mounted several legal challenges to the proposed permit,but will drop those challenges under the terms of the settlement agreement, which arememorialized in a Consent Decree being filed in federal court in Savannah today. For themore than two years that the permitting battle has been ongoing, King America hasoperated under strict technical and testing requirements dictated by the GeorgiaEnvironmental Protection Division.

Under the proposed Consent Decree, King America will make a $2.5 millionmonetary contribution to ORK to fund the organizations continuing efforts to monitorand protect the ecosystem of the Ogeechee River. The manufacturing company has alsoalready invested approximately half a million dollars towards the installation of newequipment in its wastewater treatment processes. King America will also spend another$2.5 million on additional upgrades at its plant to ensure that the Ogeechee River is aclean and well-protected natural resource for all of Georgias citizens.

With the new measures set forth in our Consent Decree, along with the terms andconditions of the new permit, ORK is confident that King Americas discharge willcomply with the state and federal regulatory structure while protecting the vibrantbiological and ecological life that thrives in and along the Ogeechee River, saidRiverkeeper Emily Markesteyn. We believe that this new permit will protect the river,


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and this settlement provides ORK with the means to not only closely monitor the river onan ongoing basis, but also creates a process for discussing changes to the permit in theevent that any problems come to light. It is our belief that this is the first such provisionever implemented in Georgia. And with King Americas substantial contribution to ourorganization, we will be able to continue to monitor and improve river conditions for

years to come.

ORK intends to use the funds contributed by King America in this settlement tocollect more comprehensive data on the Ogeechee than ever before and continue to serveas a watchdog for the health of the watershed. ORK will closely monitor river conditionsupstream and downstream from King America and will expand its research and advocacyto eliminate harmful pollution from point and non-point sources along the Ogeechee.Through these and other programs, ORK will continue to serve as a regional and stateleader of clean water advocacy through research, education, and legislative initiatives.

Environmental lawyer and advocate Don Stack commended King America

Finishing for its efforts since the fish kill. King America has stepped up to the plate andagreed to the most comprehensive water testing regimen that Ive encountered in mynearly 30 years of advocating to protect the natural resources in the State of Georgia. Iam glad that the company and ORK worked cooperatively to develop these programs,and we expect that King America will live up to their commitment to operate in anenvironmentally responsible manner.

Hutton Brown, senior attorney with GreenLaw and co-counsel for ORK alongsideStack & Associates, P.C., noted that the size of King Americas monetary donationmakes it one of the largest settlement payments in Georgia history by a company forwater-based environmental claims.

King America also expressed satisfaction with the resolution. After a long andproductive dialogue with Ogeechee Riverkeeper, we are pleased that we have finallybeen able to make peace with one another, said Michael Beasley, President of KingAmerica. We look forward to continuing to work cooperatively with them in thecoming months and years.

After the May 2011 fish kill, it was discovered that King America had notupdated its wastewater discharge permit when it installed new flame retardant lines at itsplant in 2006. King America entered into a Consent Order with the State agreeing to paymore than $1.3 million to fund Supplemental Environmental Projects. Those projectsinclude third party monitoring of King Americas discharge and analysis of both thewastewater and the river conditions. ORK will use some of King Americas settlementcontribution to retain independent experts to conduct additional investigation,monitoring, and analysis.

King America Finishing is located in Screven County, Georgia, and employsalmost 500 workers from Screven, Bulloch, Jenkins and other surrounding counties.


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King America produces flame resistant fabrics used in clothing to protect workers in theelectric utility, petrochemical, and steel mill industries.

Through grassroots advocacy, public education and monitoring, ORK operateswith a mission to protect, preserve and improve the water quality of the Ogeechee River

basin. ORK has been instrumental in clean water advocacy in the state of Georgia formore than eight years.

For more information about the Ogeechee Riverkeeper, please visit:http://www.ogeecheeriverkeeper.org. For more information about King America, pleasevisit: http://www.kingamericafinishing.com/press.html.

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King America Finishing Settlement with Ogeechee Riverkeeper

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