THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Sunday, July 17, 1994 TAG: 9407150031
SECTION: COMMENTARY PAGE: J4 EDITION: FINAL
TYPE: Opinion
SOURCE: By KATHERINE E. SLAUGHTER
LENGTH: Medium: 61 lines
Regarding your editorial ``Another EPA Grenade'' (June 26): Virginia has the most restrictive law in the nation for people who wish to appeal wastewater and air-pollution permits. With its proposed disapproval of Virginia's air-operating-permits program, EPA is enforcing the federal Clean Air Act, which allows ``any person who participated in the public comment process'' to appeal a permit. By contrast, Virginia allows challenges only by those who can show an ``immediate pecuniary and substantial interest'' as defined under state law.
Your editorial also contains several incorrect statements. For example, you claim that under Virginia's law ``someone living near a chemical plant could bring a case.'' T'aint necessarily so.
In a case involving a wastewater permit, the Virginia Court of Appeals found that neither riparian landowners, a sand and gravel business nor a municipality could appeal an upstream wastewater permit. The court stated: ``None (of the parties) have shown an immediate, pecuniary, and substantial interest. . . . Instead, they challenge an anticipated public injury. .an insufficient ground to establish standing.''
Second, you stated that ``the Wilder administration chose a sensible course in putting reasonable restrictions on who may challenge emissions permit, meaning the current law.
Instead, the Wilder administration-sponsored bill, which was amended by the General Assembly, contained reasonable restrictions which allowed permit challenges as long as the party could meet the U.S. Constitutional standard, i.e., show that it would be injured; that the injury is connected to the permit; and that the injury could be prevented.
Industry convinced the majority of the Assembly to amend the original bill to make such challenges more restrictive by requiring that the persons show the ``immediate pecuniary and substantial interest'' Governor Wilder, understanding that this was more restrictive than the standard required under the U.S. Constitution and the Clean air Act, took out the restrictive words; in its 1993 veto session, the Assembly overrode his suggestion.
You also write that ``(Dunlop) is armed with a legal opinion on the subject from former Attorney General Mary Sue Terry.'' Attorney General Rosenthal's opinion, filed with EPA, stated simply that ``the inclusion of the word `pecuniary' in the amended Virginia law means the requirement for standing to obtain judicial review in Virginia may be more stringent than Article III (of the U.S. Constitution) standing requirement, as the EPA interprets them. . .
The proposed disapproval is not unexpected. As early as December 1991, the EPA, under the Bush administration, had advised Virginia that its standing law was too restrictive. Since that time, EPA had sent for other similar letters to state officials, including Governors Wilder and Allen. The General Assembly, at the urging of the Virginia Manufacturers Association, decided to challenge EPA. Governor Allen would better serve the interests of all the citizens by urging that the Assembly comply with the requirements of the law. MEMO: Ms. Slaughter is with Southern Environmental Law Center in
Charlottesville. by CNB