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Environmentalists mull appeal after judge tosses sewage suit

September 13, 2020 GMT

ATLANTA (AP) — An environmental group says it believes a federal judge was wrong to dismiss its lawsuit over raw sewage released in suburban Atlanta and says it’s considering whether it will appeal.

U.S. District Judge Steven Grimberg on Aug. 31 dismissed a lawsuit brought by the South River Watershed Alliance claiming DeKalb County wasn’t doing enough to clean up sewage dumping problems under a consent decree with federal and state officials.

Grimberg said the alliance, which seeks to improve the health and recreational use of the river, didn’t have legal standing to sue under the federal Clean Water Act because it couldn’t prove that the U.S. Environmental Protection Agency and the Georgia Environmental Protection Division weren’t diligently prosecuting their 2010 case against DeKalb County.

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The agencies are currently negotiating possible changes to the consent decree. South River Watershed Alliance argued in its lawsuit that the governments aren’t doing enough. The alliance points to continued sewage releases by DeKalb County, a lack of a deadline to complete repairs and fines of $800,000 for more than 1,000 spills and inaccurate reporting, arguing it’s cheaper for the county to pay fines than fix the problem. The alliance also says the governments let DeKalb implement a different hydraulic model than the one specifically agreed to in the consent decree.

DeKalb County was supposed to complete repairs in a priority area covering about one-third of the county with the oldest and leakiest pipes by June 20, but missed the deadline.

“Plaintiffs’ argument regarding DeKalb’s alleged calculation to continue polluting and pay the lower fines misses the point,” Grimberg wrote. “The government has continually fined DeKalb for its noncompliance and plaintiffs have not alleged the bad faith needed to overcome the heavy presumption of diligence.”

Grimberg said the alliance should instead seek to have its voice heard by commenting on the proposed amended consent decree.

“That is the correct forum for plaintiffs’ concerns, not this independent citizen suit,” Grimberg wrote.

The proposed amended consent decree is expected to be filed by Oct. 23, the parties wrote Thursday in that case.

The alliance said that because most of the southern and eastern parts of the county aren’t covered by the consent decree, the South River, which drains much of that part of the county, is unprotected.

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“Our case against DeKalb County was critical to improving water quality and a healthier future for the river,” the alliance wrote Friday on its Facebook page. “Judge Grimberg’s ruling effectively removes the protections of 1972 Federal Clean Water Act from two-thirds of DeKalb County that is not covered under the consent decree and ALL of the South River. It is like turning back the environmental protection clock 50 years.”