Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: FRIDAY, October 8, 1993 TAG: 9310080060
SECTION: VIRGINIA PAGE: B-1 EDITION: METRO
SOURCE: MIKE HUDSON STAFF WRITER
DATELINE: FINCASTLE LENGTH: Medium
Circuit Judge George Honts ordered the state Air Pollution Control Board to reconsider the ordinance.
Honts said board members and their staff acted with "fundamental unfairness" by raising last-minute technical objections and then not giving the county a chance to respond.
Also, Honts said, the board overstepped its bounds by trying to usurp the policy-making power that belongs to the General Assembly.
County Attorney William "Buck" Heartwell argued Thursday that the air board rejected the ordinance because it doesn't like the idea of local governments writing their own pollution rules - even though state law allows it.
Mary Jo Leugers, an assistant state attorney general, contended that the air board did not exceed its authority. She said the board balked at the county's proposal because the ordinance was not as tough as the state's own air-pollution rules.
Under state law, cities and counties can pass local air-emissions ordinances as long as they are at least as tough as state standards. County officials contend their ordinance is actually tougher.
Honts' decision gives new life to an ordinance that the county Board of Supervisors crafted last year as an attempt to control a hazardous-waste incinerator that Roanoke Cement Co. had hoped to build.
Since then, Roanoke Cement has said it has no interest in building the incinerator. But county officials still want to go forward with the emissions ordinance - which would be the first of its kind for a local Virginia government.
At first, it appeared the local rule would be approved without a hitch.
The air board's regional staff sent the county's proposal to Richmond with a recommendation that the board approve it.
But on Dec. 2, county officials learned that the state headquarters staff of the air board was urging the board to reject the ordinance because it was not tough enough. By 5 p.m., the county faxed the air board a one-sentence addition. It said Botetourt would defer to the air board in any instances where the ordinance wasn't tough enough.
On Dec. 4, when county officials arrived in Richmond for a final hearing, they learned the air board would not consider their addition - and they would not even be given a chance to argue their case before the board.
The message, Heartwell said Thursday, was clear: "You sit there. . . . We don't care what you have to say. We're going to decide and you're going to have to like it."
It was unclear when the air-board might reconsider Botetourt's ordinance. The state could appeal Honts' ruling to a higher court. Leugers said no decision has been made on that.
by CNB