In addition to the cases listed below which have been resolved, the Firm currently has several cases pending under a variety of Federal Statutes including: the Clean Water Act; the Resource Conservation and Recovery Act; the Comprehensive Environmental Response Compensation and Liability Act; the Administrative Procedure Act; the National Environmental Policy Act; the Wilderness Act; the Federal Advisory Committee Act; the National Forest Management Act; and the National Historic Preservation Act; as well as pending cases dealing with the Georgia Water Quality Control Act; the Georgia Erosion and Sediment Act; Georgia Comprehensive Solid Waste Management Act; Georgia Hazardous Waste Management Act; and the Georgia Hazardous Site Response Act. However, it is Stack & Associates’ policy not to list cases at the trial level until they are fully resolved.
Atlanta, GA – GreenLaw and Stack and Associates, on behalf of Ogeechee Riverkeeper, filed an appeal of the Georgia Environmental Protection Division’s issuance of a water pollution permit for King America Finishing.
“For over 6 years, King America Finishing has illegally polluted the Ogeechee river. Tens of thousands of fish have died as a result of their illegal activity and the river downstream from them has been unsafe,” said Dianna Wedincamp, Ogeechee Riverkeeper. “The permit that the state issued allows this pollution to continue. We believe the state should require King America to remove the pipe from the Ogeechee and re-use their wastewater instead of subjecting people and wildlife to their toxic chemicals.”
The appeal, filed in the Office of State Administrative Hearings, alleges that the water pollution permit issued by the state Environmental Protection Division allows King America Finishing to continue to pollute the Ogeechee River. “The state has consistently and repeatedly refused to require King America to stop its pollution of the river,” said Hutton Brown, attorney at GreenLaw. “This permit violates state and federal law. It gives the industry the ability to add more pollution to the river and to continue to degrade the health of the river and put fish, wildlife and people at risk.”
Ogeechee Riverkeeper argues that the permit issued to King America Finishing should have much more stringent limits for ammonia and other chemicals that lower oxygen levels in the river. The appeal goes on to say that toxic chemicals, such as formaldehyde should not be allowed to be discharged into the river. It also noted that many other known pollutants in the industry’s waste stream are not required to be monitored or limited by the water pollution permit.
“The permit continues the pattern of coddling the industry at the expense of those who are most affected by the pollution,” said Don Stack, Stack and Associates. “The pollution permit issued to King America Finishing excuses the industry from the responsibility to clean up their waste before sending it out into the Ogeechee. By filing this appeal on behalf of Ogeechee Riverkeeper, we are asking the Office of State Administrative Hearings to find the permit invalid and send it back to the state agency.”
GreenLaw Wins Appeal of Ruling that Protected Ogeechee River Polluter
GreenLaw and Stack and Associates represented Ogeechee Riverkeeper on July 9 in Bulloch County Superior Court in an effort to stop pollution from King America Finishing into the Ogeechee River.
Pictured above (l-r): Ann Hartzell, Charles Lewis, Dianna Wedincamp, Emily Markestyn, and Gerry Cowart (Ogeechee Riverkeeper board and staff members), Hutton Brown (GreenLaw), and Don Stack (Stack and Associates)
On July 19, Bulloch County Superior Court Judge John Turner granted the Ogeechee Riverkeeper total victory in its challenge to a Consent Order entered into by the Georgia Environmental Protection Division (EPD) and King America Finishing, a Chicago-based textile manufacturer that discharges into the Ogeechee River.
Judge Turner ruled that the public should not have been excluded from such an important matter as the Consent Order and that “there is no dispute that [King America] was violating the terms of its… permit.” He further ruled that ORK has standing to challenge the Consent Order in court because ORK has “shown a continuing harm which is being caused to the waters of the Ogeechee River… and the Consent Order did nothing to abate the harm and therefore allowed the injury to continue…”
The Judge’s ruling invalidates the Consent Order and sends the case back to the administrative court for further proceedings.
Read more about our efforts to help save the Ogeechee River at www.greenlaw.org/ogeecheefishkill.
Ogeechee Riverkeeper Sues King America Finishing Over Violations of the Clean Water Act
Late Monday afternoon, Ogeechee Riverkeeper, represented by GreenLaw and Stack and Associates, filed a lawsuit in federal court against King America Finishing, Inc. for violations of the Clean Water Act. The lawsuit alleges that King America Finishing continues illegally to discharge pollution to the Ogeechee River.
The lawsuit alleges that King America knowingly violated the clean water laws for over 6 years and that this illegal discharge caused the largest fish kill in Georgia history. Under the Clean Water Act, when the government does not adequately punish a polluter involved in an ongoing illegal discharge, private citizens and citizen groups can file a lawsuit seeking to have a court do what the State did not. Ogeechee Riverkeeper’s case seeks to have a court fine King America Finishing for its pollution of the river and to issue an order stopping the illegal discharge.
“The government has repeatedly failed to stop the pollution from King America,” said Hutton Brown, Senior Attorney at GreenLaw. “By filing this Clean Water Act case, we seek to correct the damage that has been done to the river and right the government’s failure to protect us from pollution.”
JURY AWARDS RECORD $2.5 MILLION IN ENVIRONMENTAL LAWSUIT AGAINST PULTE HOME CORPORATION:
A Forsyth County Georgia jury awarded $2.5 million against Pulte Home Corporation last week. The lawsuit involved claims of common law nuisance, trespass and negligence in addition to allegations of Pulte”s repeated violations of the Georgia Erosion and Sedimentation Act and Georgia Water Quality Control Act. After a three week trial, the jury found in favor of the Plaintiffs who lived downstream of the Fieldstone and Notting Hill subdivisions. The jury concluded that Pulte specifically intended to harm the families living downstream of the Fieldstone and Notting Hill subdivisions located in Cumming, Georgia, and awarded punitive damages, attorney fees and costs of litigation. Because the jury found that the trespass and nuisance claims were continuing, the Court has scheduled a hearing for September 15, 2011 to address additional claims for injunctive relief.
The trial team led by Donald D.J. Stack, Esq. of Stack & Associates, P.C., Atlanta, Georgia, represented Plaintiffs Richard and Susan Trent; Martin A. Shelton, Esq. of Scoggins and Goodman, P.C., Atlanta, Georgia, represented prevailing Third Party Defendants, Sally and Dwayne Lawson, and Ruth Bennefield; and Michael P. Carvalho, Esq., of Carvalho & Associates, P.C., Marietta, Georgia, represented Timothy and Adele Simerly. Pulte Homes Corporation was represented by Bryan Cave, LLP, Atlanta, Georgia. Listed upstream to downstream, the family properties of Trent, Lawson and Simerly were all materially impacted by silt, sediment and excessive stormwater being discharged from Pulte”s subdivisions. The jury specifically rejected Pulte”s claims that the Lawson family was in anyway liable for the Simerly or Trent damages.
According to documents obtained from Pulte”s own third party environmental consultant, the company was notified over 13,000 times that it was not in compliance with environmental permit requirements and had violated Georgia law repeatedly failing to correct Best Management Practices during Pulte”s development activities. According to Forsyth County records, Pulte received hundreds of Notices to Comply, and dozens of Stop Work Orders for the same conduct. Ten days prior to trial Pulte”s engineers admitted that the company had illegally increased the peak rate of flow of stormwater onto the downstream property owners by 3.74 million gallons in just the 1-year storm. As Martin Shelton recounted, “Pulte Home Corporation was told thousands of times to correct problems on site. Who has to be told thousands of times something is wrong without ever changing how things are done?”
During the litigation the Court found that Pulte destroyed electronically stored evidence and Michael Carvalho explained, “The willful and intentional destruction of evidence during the course of litigation is outrageous, and those that would engage in such conduct undermine the fundamental guarantees of our judicial system.” Plaintiffs” counsel retained Neil Broom, President of Technical Resources Center, Inc., who determined that the hard drives of several Pulte executives and employees were destroyed or permanently altered after the Court issued its Order to Preserve Evidence.
Donald Stack summarized the litigation, “This case proves that defendants who believe that they can crush their opposition simply because of their unlimited financial resources are in for a rude awakening. They will be held accountable for their actions. They will be held responsible for their violations of their neighbors’ fundamental property rights. The judicial system still protects those rights.”
The jury award is the largest of its kind in Georgia history. The trial was presided over by Forsyth County Superior Court Judge Jeffery S. Bagley. Civil Action File No. 09-CV-0089.
Clean Water Act Cases:
Lake Hills Home Owners Association et al. v. Lullwater Apartments, L.L.C. et al, United States District Court, Northern District of Georgia, Newnan Division, Civil Action Number 3:00-CV-124-JTC (Clean Water Act case, Honorable Jack Camp)
Lakeland, Inc. et al. v. American Land Mart, Inc. et al, United States District Court, Northern District of Georgia, Civil Action Number 1:00-CV-1695 (Clean Water Act Case)
Altamaha Riverkeeper v. Amercord, Inc., Southern District of Georgia; Civil Action No. 300-042 (Clean Water Act case, Honorable Dudley H. Bowen, Jr.) 2003 WL 845247
Hicks v. New Creation Land Co., Inc. et al., United States District Court, Northern District of Georgia, Civil Action File No. 2:99-CV-0229-WCO
Florida Wildlife Federation et al. v. Browner et al., United States District Court, Northern District of Georgia, Civil Action Number 1:98-CV-1219-HTW; (Florida TMDL)
Sierra Club et al. v. Hankinson et al., United States District Court, Northern District of Georgia, Civil Action Number 1:97-CV-3683-MHS (Clean Water Act case involving Mississippi water quality standards, Honorable Marvin H. Shoob)
Sierra Club et al. v. Hankinson et al., United States District Court, Northern District of Georgia, (Clean Water Act case involving Georgia water quality standards, Honorable Marvin H. Shoob) 939 F. Supp. 872 (N.D.GA 1996)
Causey v. Barron Enterprises, Inc. et al., United States District, Northern District of Georgia, Civil Action Number 4:96-CV-0351-HLM (Clean Water Act case, Honorable Harold Murphy)
Driscoll v. Adams, 181 F.3d 1285 (11th Cir. 1999)
Driscoll v. Adams, United States District Court, Northern District of Georgia, Civil Action File Number 2:96-CV-0175-WCO (Clean Water Act case, Honorable William O’Kelley)
Flythe v. Lowndes County, et al., United States District Court, Middle District of Georgia, Civil Action File Number 7:96-CV-91 (Clean Water Act case, Honorable Hugh Lawson)
Michael J. Delaney et al. v. Forsyth County, Georgia et al., United States District Court, Northern District of Georgia, Civil Action File Number 2:94-CV-0060-WCO (Clean Water Act case, Honorable William O’Kelley)
Clean Air Act Cases:
Sierra Club v. Christine T. Whitman, District Court for the District of Columbia, Civil Action No. 01-CV-1991-ESH (Clean Air Act case regarding issuance of permits under Title V)
Jurgensen v. Louisiana Pacific Corporation, United States District Court, Northern District of Georgia, Civil Action Number 2:93-CV-00012 (Clean Air Act case, Honorable William O’Kelley)
Resource Conservation and Recovery Act Cases:
College Park Holdings, LLC v. RaceTrac Petroleum, Inc. v. Camden Oil Company, LLC; Petroleum Realty II, LLC; USRP(HOLLIS), LLC; and Trico V Petroleum, Inc., United States District Court, Northern District of Georgia, Atlanta Division, Civil Action Number 1:01-CV-1128-BBM (Counsel for Third-Party Defendant in gasoline contamination case, Honorable Beverly M. Martin)
Natural Resource Management Cases:
Sierra Club v. Elizabeth Estill, United States District Court, Northern District of Georgia, Civil Action File No. 1:00-CV-1755 (Natural Resources case)
Ralph Shaw v. George Martin, et al., United States District Court, Northern District of Georgia, Civil Action File No. 1:98-CV-3052 (Natural Resources case, Honorable Charles A. Moye, (Jr))
Rabun County Coalition et al. v. Martin et al., United States District Court, Northern District of Georgia, Civil Action Number 96-2696-TWT (Natural Resources case, Honorable Thomas Thrash)
Sierra Club, et al. v. George Martin, et al., 168 F.3d 1 (11th Cir. 1999) (National Forest Management Act case, Honorable Thomas Thrash)
Southern Appalachian Biodiversity Project v. U.S. Forest Service, 162 F.Supp.2.1365 (NOGA) (Natural Resources Case)
Environmental Cases Filed Under State Law:
Tyrone Citizens for Responsible Development, et al., v. Environmental Protection Division, State of Georgia, Office of State Administrative Hearings, Record File No. OSAH-DNR-WQ-99-002-056-JRA (challenge to proposed wastewater treatment facility in residential/agricultural area)
Susan L. Rein, et al. v. Harold Reheis, Office of State Administrative Hearings, Record File Nos. OSAH-DNR-ES-0000733-060-MMM & OSAH-DNR-ES-0000730-060-MMM (Challenge to stream buffer variance which resulted in revision of State regulations governing Stream Buffer Variances)
Rose Martin et al, v. The Kroger Co. et al. Superior Court of Douglas County, Civil Action File NO. 99-CV-3443 (nuisance and trespass arising from hydrology issues)
Karla Weiszer et al. v. Advanced Blasting, Inc., Superior Court of Douglas County, Civil Action File NO. 98-CV-721 (property damages arising from blasting)
Tyler v. Lincoln, 272 Ga. App. 850, 513 S.E.2d 6 (1999) and Tyler v. Lincoln, 272 Ga.118, 527 S.E.2d 180 (2000)(also 258 Ga. App. 374, S74 SE2d, 440 (2002) (Trespass, nuisance and hydrology)
Brewer v. B & C Construction, Inc. et al., Douglas County Superior Court; Civil Action No. 98-CV-1743 (Nuisance and trespass from erosion and sedimentation)
Metzler v. Woolard, et al., Superior Court of Dekalb County, Civil Action File No. 99–13577-6 and Daniel A. Metzler v. Steven Rowell, Rochelle Routman and the Wildwood Urban Forest Group, 248 Ga. App. 596 (2001) (Anti-SLAPP suit arising from environmental and zoning work)
Nellie Davis, et al., v. Equity Trading, Inc. and Camp Industrial Park Property Owner Association, Inc., Superior Court of Douglas County, Georgia, Civil Action Number 98-CV-02699 (Nuisance and trespass from erosion and sedimentation)
Maresca v. North Cobb Investors, Ltd., et al.; Gwinnett County Superior Court, Civil Action Number 97-A-1145-3 (Trespass and riparian rights, Honorable Dawson Jackson)
Eugene and Diane Hansard v. Grogan, et al; Superior Court of Forsyth County, Civil Action No. 98-CV-0768 (Nuisance and trespass from erosion and sedimentation)
Keith Gregory v. Geneva McClure, et al, Superior Court of Union County, Civil Action File No. 93-CV-359-HS (Nuisance and trespass, Honorable David Barrett) Stack
Eastman Chip Mill Litigation, Dodge County Superior Court; Case Number 97V-000001. Civil Action File Numbers 97V-4301, 97V-4303, 97V-4308, 97V-4309, 97V-4310, 97V4312, 97V-4313, 97V-4314, 97V-4324, 97V-4737, 97V-4738, 97V-4739, and 97V-4748 (Chip mill case, nuisance and trespass, Honorable Frederick Mullis)
Patricia Williams, et al. v. BFI Waste Systems of North America, Inc., United States District Court, Northern District of Georgia, Civil Action Number 1:98-CV-01883-RWS (nuisance and trespass, Honorable Richard W. Story)(Diversity Case)
Robinson, et al. v. Colonial Pipeline Co., et al., United States District Court for the District of South Carolina, Greenwood Division, Civil Action File No. 8-00-0058-13 (State law case involving the contamination of property by gasoline)(Diversity Case)
Other Representative Litigation
Representation of the Sandfly community near Savannah with respect to local zoning laws, as well as issues related to the proposed construction of a highway and interchange impacting historic resources.
Representation of the Wildwood Urban Forest Group in zoning and development issues and eventual establishment of new nature preserve/park in the Morningside neighborhood of Atlanta.
Representation of the Ardmore Park Association in the successful drive to expand City of Atlanta’s Ardmore Park to include adjacent land originally planned for development.
Prior Representation of Lloyds of London by Donald Stack. Mr. Stack represented Lloyds of London in innumerable environmental and occupational health cases stemming from railroad and airplane operations. Such cases included literally thousands of Noise-Induced Hearing Loss and asbestos cases filed by employees of various railroads, including Union Pacific Railroad, Missouri Pacific Railroad, Atchinson and Topeka and Santa Fe Railroad, Southern Pacific Railroad, and other railroads against their employers. Coverage and defense was provided by Lloyds and handled Lloyd, Bissell and Brook. Such matters included cases in areas as wide ranging as Hinkle, Oregon; San Diego, California; Centralia, Illinois; St. Louis, Missouri; Shreveport, Louisiana; Little Rock, Arkansas; and Buffalo, New York.
Mr. Stack also was a member of the litigation team representing Lloyds of London in various declaratory judgment actions filed by such insure in state and federal courts in Oregon, Illinois and California. He was also involved in litigation stemming from a class action filed in the United States District Court in Ohio for injuries caused by a train derailment occurring in Miamisburg, Ohio, as well as a comparable suit in Livingston, Louisiana.
Mr. Stack has also been involved in the defense of personal injury and FELA claims brought against various commuter railroads in the northeast, including Amtrak, Metro North, and others.