ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Monday, September 9, 1996 TAG: 9609090152
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: SCOTT HARPER AND DAVID POOLE STAFF WRITERS
NOTE: Above
Virginia's million-dollar environmental lawsuit against Smithfield Foods Inc. was filed just days after state officials learned that federal lawyers were preparing their own case against the meat-packing giant.
The result, experts say, is that the U.S. Department of Justice probably will be blocked from bringing civil charges against Smithfield Foods for polluting the Pagan River with tons of treated hog wastes.
Under the national Clean Water Act, the federal government is barred from bringing legal action against a suspected water polluter if a state is ``diligently pursuing'' that polluter, said Carol Amend, regional chief of water enforcement for the U.S. Environmental Protection Agency.
Environmentalists question whether the state filed the lawsuit not to crack down on Smithfield, as the state said in press releases, but to shield the Fortune 500 company from federal action, which could have been more severe.
``Just like the fecal coliform that Smithfield is dumping, this doesn't smell good and someone should come clean,'' said Albert Pollard, lobbyist for the Sierra Club of Virginia.
Kay Slaughter, director of the Southern Environmental Law Center in Charlottesville, added: ``I would hope this is not a political pre-emption.''
Gov. George Allen's administration has eased some industrial standards and has cut the enforcement budget of the state Department of Environmental Quality.
The relationship between the Allen administration and Smithfield Foods has been criticized as too cozy, in part because Smithfield Chairman Joseph Luter contributed $125,000 to Allen's political committee shortly before state legislative elections last year.
Luter made those contributions while Smithfield Foods and state officials were negotiating to settle dozens of pollution violations racked up since 1994.
March Bell, deputy director of DEQ, said the state lawsuit was neither rushed to court nor intended to pre-empt any federal litigation.
He said the state considered enforcement of dozens of water-pollution violations by Smithfield Foods over the past two years as its duty, not that of the federal government.
He also said state lawyers had been working on a civil case for months and feared that waiting for federal prosecutors to complete their investigation of the huge pork processor in Isle of Wight County ``might take months, if not years.''
``We were ready to go; we wanted to do the right thing,'' Bell said Friday.
Virginia officials learned Aug. 23 that the Environmental Protection Agency had turned over its civil investigative legwork on Smithfield Foods to the Department of Justice, Bell said. Federal prosecutors then asked state regulators for their input, he said.
Instead, the state filed its own civil lawsuit one week later, on Aug. 30, on behalf of Attorney General Jim Gilmore in Isle of Wight Circuit Court, according to Bell and other officials.
Neither the EPA nor the Department of Justice was told of the move in advance, Bell said. ``We didn't know if they [Department of Justice] intended to file anything, and we weren't prepared to wait any longer.''
Justice Department lawyers, as a matter of policy, will not discuss their plans for a case, said the EPA's Amend.
The state lawsuit does not describe how many times or when Smithfield Foods allegedly violated its state permit to discharge a limited amount of waste into the Pagan River. The suit charges that the company did so ``from time to time.''
It also does not say what the state is seeking in penalties, only that each unspecified violation carries a maximum penalty of $25,000.
State records indicate Smithfield has violated its discharge permit at least 54 times since May 1994. If all such violations were proved in court, the company could face a fine of $1.35 million.
State officials estimated the suit would seek between $750,000 and $2 million.
Asked whether Virginia was concerned that it might have blocked the Justice Department from pursuing Smithfield with civil charges, Bell said the state was not. ``It's our duty,'' he said.
The state case will be handled in Isle of Wight Circuit Court; a federal lawsuit probably would be handled in U.S. District Court in Richmond. The company's headquarters is in Isle of Wight's county seat, Smithfield, a town renowned for the ham and pork products made at the company's plants.
James Ryan, a Richmond lawyer who represents Smithfield, declined to comment Friday.
Although state officials said they had been working for months on the Smithfield Foods case, they had twice delayed filing it.
The case was postponed once this year as a courtesy to federal investigators, said David Anderson, chief deputy attorney general. The feds were reviewing possible criminal links to a former sewage plant operator at Smithfield Foods and to missing pollution records under his care.
Then, in ``late winter or early spring,'' Anderson said, the Department of Justice gave the state the green light.
But the state delayed action again, other officials said - this time because the state and company executives were haggling over when Smithfield would connect its aging sewage plants to a public treatment system operated by the Hampton Roads Sanitation District.
Smithfield connected its first aging sewage plant in late June; the second plant is scheduled to go on line in early 1997. When complete, the hook-ups will end decades of the company's discharging nearly 3 million gallons of hog wastes a day into the Pagan River.
A tributary of the James River, and ultimately the Chesapeake Bay, the Pagan has been closed to shellfish harvesting since 1970 because of high amounts of fecal coliform, a bacteria associated with animal and human waste.
Bell said the state was none too happy to learn in late August that the EPA had, a month earlier, passed its investigative material to the Justice Department.
Under the Allen administration, Virginia has been adamant about keeping the federal government out of state environmental issues. And in this case, Bell and Anderson said, the state again thought it should be the lead enforcement agent.
``We weren't told of that referral for more than a month,'' Bell said. ``We have primacy of enforcement in these matters so they should have told us right away. They didn't respect that in this instance.''
LENGTH: Long : 115 linesby CNB