THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Tuesday, October 22, 1996 TAG: 9610220239
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY SCOTT HARPER, STAFF WRITER
LENGTH: 99 lines
The U.S. Department of Justice gave Smithfield Foods Inc. an ultimatum Monday: agree to an out-of-court penalty, which sources say could reach $12.5 million, for dumping hog wastes into the Pagan River, or face a federal lawsuit.
In a letter to Smithfield Foods, one of the largest pork processors on the East Coast, the Justice Department said it would wait until Nov. 1 before filing a civil lawsuit alleging years of water-pollution violations. Federal lawyers invited settlement negotiations in the meantime.
The $3 billion company with headquarters in Norfolk and local slaughterhouses in Isle of Wight County declined comment Monday.
``The letter's being studied by our attorneys,'' said Aaron Trub, general counsel for Smithfield Foods. ``We're looking at our options.''
The federal action comes as the state also is suing Smithfield Foods for past environmental violations. And it comes as the company, after decades of treating and dumping its wastes into the Pagan River, is beginning to pipe the nutrient-laden wastes to a public sewage plant in Suffolk.
When complete in spring 1997, the connection will mean no more hog wastes entering the Pagan River. A tributary of the James River, and ultimately the Chesapeake Bay, the Pagan has been closed to shellfish harvesting since 1970 due to high amounts of a bacteria, fecal coliform, associated with human and animal wastes.
Trub and a company attorney said last week in an interview that Smithfield Foods feels caught in a political tug-of-war: On one end are state Republicans, trying to polish their tarnished image on the environment with a lawsuit. On the other are federal Democrats, trying to cast the state's GOP administration in an unfavorable light by pursuing their own enforcement action.
T. March Bell, a Republican appointee as deputy director of the Virginia Department of Environmental Quality, reacted Monday with a similar interpretation of the federal action.
``This seems a little transparent in this political season,'' Bell said. ``Here they come 15 days before a national election, saying they're the only ones who can do the job.''
Attempts to reach the Justice Department and the U.S. Environmental Protection Agency for comment were unsuccessful. Spokesmen for both agencies have said that as a matter of policy they do not discuss ``executive order letters'' like the one sent to Smithfield Foods in advance of a lawsuit.
Roy A. Hoagland, assistant director of the Chesapeake Bay Foundation in Virginia, said the real issue is not politics or even Smithfield Foods. The issue, he said, is Virginia's lack of environmental enforcement.
``What the federal government is saying here is that the state is not enforcing the law,'' Hoagland said. ``This is an extraordinary step. And it confirms what we've been saying - that our enforcement program has gone from bad to worse.''
The issue of environmental enforcement was raised publicly to a new level recently when EPA's regional administrator, W. Michael McCabe, chastised Virginia for going soft on polluters.
McCabe noted in a Sept. 19 letter to the head of the Virginia Department of Environmental Quality that the number of enforcement cases that seek a financial penalty had dropped from 28 in 1993 to six in 1995. Fines also decreased during that time, from $318,802 in 1993 to $26,500 in 1995.
David Anderson, chief deputy attorney general in Virginia, said the federal case against Smithfield Foods is different from the state's.
Based on conversations with federal lawyers Monday, Anderson said the Justice Department wants to penalize Smithfield Foods for violations dating to 1991; the state is seeking penalties for more recent violations, from 1994 to the present.
In 1991, Virginia relaxed some restrictions on what Smithfield Foods could release into the Pagan River. In exchange, the company agreed to pipe its wastes, up to 3 million gallons a day, to a treatment plant in Suffolk. Run by the Hampton Roads Sanitation District, the plant started accepting about half of Smithfield's nitrogen- and phosphorus-rich wastes this summer. By March, the other half should come on line, said HRSD's general manager, James R. Borberg.
Anderson said the Justice Department is eyeing a case that would count as violations those discharges from Smithfield Foods that met relaxed state limits under the 1991 agreement. He noted the relaxed standards were approved by the previous, Democratic, administration.
Virginia Attorney General James S. Gilmore III, an all-but-declared Republican candidate for governor next year, filed the state's suit against Smithfield Foods in Isle of Wight Circuit Court days after learning that federal lawyers were working on their own case.
Environmentalists questioned whether Gilmore was trying to make political hay while shielding the $3 billion meat-packing giant from stronger, federal court action.
A federal case would likely seek stiffer penalties, and it would be heard in federal court, away from the friendlier confines of Isle of Wight County, where Smithfield Foods is the largest employer.
Under the national Clean Water Act, though, the federal government is barred from bringing legal action if a state is ``diligently pursuing'' enforcement of a suspected polluter. But Anderson said federal lawyers can initiate action now, given that the scope of their case is broader and includes different alleged violations. ILLUSTRATION: ASSOCIATED PRESS
Smithfield Foods, below the Pagan River in Isle of Wight County, has
begun piping its wastes to a public sewage plant in Suffolk.
KEYWORDS: POLLUTION ENVIRONMENT PENALTY by CNB