Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: TUESDAY, March 6, 1990 TAG: 9003062283
SECTION: VIRGINIA PAGE: B1 EDITION: EVENING
SOURCE: MARY BISHOP STAFF WRITER
DATELINE: LENGTH: Medium
A spokesman for Virginia Attorney General Mary Sue Terry said Monday that U.S. District Judge Robert R. Merhige Jr. told attorneys for the state and for the Alleghany County landfill that he would file an opinion today to abstain from hearing the case.
Terry welcomed the judge's decision. "This is a state matter, and it is best resolved at the state level," she said.
Kim-Stan's lead attorney, Jack McClard, said today no decision had been made on whether Kim-Stan will pursue its lawsuit against the state for allegedly violating Kim-Stan's due-process rights in a two-week shutdown last summer. Once Merhige has dismissed the federal suit, which was to be tried in Richmond, it could be refiled in Alleghany County Circuit Court in Covington.
In another development in the long struggle by the state and citizens to stop pollution at Kim-Stan, the Virginia office of the Environmental Defense Fund served notice Monday that it plans to sue the private landfill in federal court over continued discharges into nearby streams.
David Bailey, attorney and director of the environmental group's state office in Richmond, said the state Water Control Board has failed to pursue a court case filed last June to force the landfill to stop its pollution.
"They've had to spend all their time defending themselves," Bailey said of the board, one of the state agencies sued by Kim-Stan last summer.
Terry said Monday that about 2,000 hours of her staff's time has been spent on the legal battle with Kim-Stan.
Richard Burton, director of the state Water Control Board, said today that the drain on his agency from defending itself against Kim-Stan's suit has been "quite substantial," but his staff has not yet had time to tabulate the labor and other costs.
He and other agency heads say Kim-Stan has taken time from their other duties. When fighting major litigation, Burton said, "Obviously, there are things that do not get done."
Cynthia Bailey, director of the state Department of Waste Management, said her staff has been under the same gun. "In preparation for the litigation, we've had five or six people who have spent about three-quarters of their day on it for the last month or so," she said.
More than a year ago, she said, her office set a list of priorities for bringing other landfills and solid waste facilities into compliance with state law. But largely because of all the time spent on Kim-Stan, her staff is behind on that agenda.
Under federal law, the Environmental Defense Fund can sue Kim-Stan if there is no action within 60 days on either of two accusations against the landfill or within 90 days on another charge. If the national environmental organization were successful in a federal case, the landfill could be fined $25,000 a day on each of the three charges, retroactive to two years ago.
Merhige's action may reactivate the state Department of Waste Management's attempt to revoke the private dump's state permit because of failure to halt pollution. A revocation hearing was postponed last month until the federal trial.
Terry's office also said the judge's decision could spur new action on the Water Control Board's suit filed last June. In that suit, the board sought an injunction and civil penalties to force Kim-Stan to stop discharging polluted waters off its site near Clifton Forge.
"I anticipate that we will go forward on both fronts as quickly as possible," Terry said Monday.
The state has been in a frustrating legal tangle with Kim-Stan since the dump was accused of causing a fish kill in a pond last June. Alleghany County citizens have been pressuring the state to close the old dump since new owners began taking out-of-state garbage in September 1988.
by CNB