THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Sunday, September 8, 1996 TAG: 9609080059
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY SCOTT HARPER AND DAVID M. POOLE, STAFF WRITERS
LENGTH: 138 lines
Virginia's million-dollar environmental lawsuit against Smithfield Foods Inc. was filed just days after state officials learned that federal prosecutors were preparing their own case against the meat-packing giant.
The result, experts said, 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 same polluter, said Carol Amend, regional chief of water enforcement for the U.S. Environmental Protection Agency.
Environmentalists are now questioning whether the state filed the lawsuit not to crack down on Smithfield, as the state said in subsequent 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'tsmell good and someone should come clean,'' said Albert Pollard, lobbyist for the Sierra Club of Virginia.
Added Kay Slaughter, director of the Southern Environmental Law Center in Charlottesville: ``I would hope this is not a political pre-emption.''
Their assertions come at a time when Attorney General James S. Gilmore III, who filed the Smithfield Foods lawsuit, is trying to position himself as environmentally moderate in preparation for an almost certain Republican bid for governor next year.
Gilmore has taken steps, such as filing pro-environment lawsuits, in recent months to distance himself from Gov. George F. Allen, who has sought to release business from what he considers stifling regulations. The Allen 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 W. Luter III 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.
T. March Bell, deputy director of the Department of Environmental Quality, said the state lawsuit was neither rushed to court nor intended to pre-empt any federal litigation.
Rather, Bell emphasized, the state felt that enforcement of dozens of water-pollution violations by Smithfield Foods over the past two years was its duty, not that of the federal government.
Further, he 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 late this summer, on 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.
The state did not respond. Instead, the state filed its own civil lawsuit one week later, on Aug. 30, on behalf of 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,'' Bell said. 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 instead 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.
According to state records separate from the lawsuit, Smithfield Foods 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 have estimated that 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 Foods 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, while 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-based 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 earlier 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 a green light to again pursue its civil enforcement.
But the state delayed action again, other officials said - this time because the state and company executives were haggling over when Smithfield Foods would connect its aging sewage plants to a public treatment system operated by the Hampton Roads Sanitation District.
Smithfield connected its first 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, each day, nearly 3 million gallons of hog wastes 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 both said, the state again felt 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.'' ILLUSTRATION: Graphic
THE SUIT AGAINST SMITHFIELD FOODS INC.
Attorney General James S. Gilmore III filed a lawsuit on Aug. 30
against Smithfield Foods Inc., claiming it polluted the Pagan River
with tons of treated hog wastes. The state sued days after learning
that federal prosecutors were preparing their own case. The state
says such action is its duty, not the federal government's.
RESPONSES TO THE ACTION
Environmentalists wonder whether the state's suit is a way to shield
the company from any federal penalties, which could be more severe.
They also question the motives of the state attorney general,
Gilmore, saying he could be trying to cast himself as an
environmental moderate before the elections for governor.
KEYWORDS: WATER POLLUTION SMITHFIELD FOODS
LAWSUIT by CNB