DATE: Saturday, April 19, 1997              TAG: 9704190378

SECTION: LOCAL                   PAGE: B2   EDITION: FINAL 

SOURCE: BY SCOTT HARPER, STAFF WRITER 

DATELINE: NORFOLK                           LENGTH:   78 lines

NORFOLK JUDGE DELAYS RULING ON A KEY ISSUE IN SMITHFIELD CASE FEDERAL PROSECUTORS SAY THE COMPANY IS RESPONSIBLE FOR 5,330 VIOLATIONS.

There will be TV cameras, reporters and much attention on the old federal courthouse here in August, when the trial against Smithfield Foods Inc. is scheduled to begin.

But this week, with little fanfare and no media around, the U.S. Justice Department asked a federal judge to rule on the most important point of its environmental lawsuit that seeks as much as $125 million in fines against the East Coast's largest pork processor.

The gist is this: Smithfield Foods, government lawyers argued Monday, should be held responsible for 5,330 water-pollution violations, racked up between 1991 and 1996, for dumping too much hog waste into the Pagan River.

They asked U.S. District Judge Rebecca Beach Smith to accept their argument as fact before the trial begins by issuing a partial summary judgement. Such pre-trial requests are routine.

Smith delayed an immediate ruling on the request, saying she needed more time to consider it.

Smithfield lawyers countered that many of these alleged violations are not violations at all - they were lawful discharges, allowed under an agreement between the company and the state of Virginia.

If the judge accepts the government's position that there were more than 5,000 violations in the case, it would essentially undercut Smithfield's entire defense.

As one legal expert said, ``If (Smithfield) loses on this one, they can start talking about an appeal.''

Anthony Troy, a former Virginia attorney general now representing Smithfield Foods, said the issue is indeed an important one. ``I can say that we certainly look forward to the judge's ruling,'' Troy said Friday.

How important is the ruling? The issue represents the heart of the federal case against Smithfield Foods. And it defines the central difference between the federal suit and a separate state lawsuit filed against the meatpacker and its slaughterhouses, on the banks of the Pagan River in the town of Smithfield.

Essentially, the federal government is challenging an agreement signed in 1991 by Smithfield Foods and state environmental officials. Back then, Virginia agreed to relax its standards on certain pollutants, most notably phosphorus, which can rob life-sustaining oxygen from water and cause algae blooms.

Excessive phosphorus is a prime culprit behind the demise of water quality in the Chesapeake Bay. Leaders across the mid-Atlantic have pledged to cut phosphorus levels in the Bay by 40 percent by the turn of the century.

As part of its deal with the state, Smithfield Foods agreed to stop discharging its phosphorus-rich wastes into the Pagan River, a Chesapeake Bay tributary, and instead pipe them to a sewage treatment plant run by the Hampton Roads Sanitation District.

One of its two slaughterhouses already is connected to the treatment plant in Suffolk, with the other expected to hook up later this spring.

But the federal government believes that the agreement unlawfully gave Smithfield Foods too much slack and that company discharges over the past five years still violate the Clean Water Act.

Hence, the government counts more than 5,000 pollution violations, many for phosphorus.

The state lawsuit, however, makes no mention of phosphorus. It instead focuses on chlorine pollution and charges Smithfield Foods with record-keeping violations and the hiring of untrained personnel.

The former sewage manager at Smithfield Foods, Terry L. Rettig, is serving a 30-month sentence in prison for falsifying and destroying records that state inspectors use to determine if pollution violations have occurred.

Judge Smith sentenced Rettig this winter and is expected to handle the larger federal case against Smithfield Foods scheduled for trial on Aug. 11.

Government lawyers declined to discuss the significance of their request for a partial summary judgment.

While Smith delayed her ruling on that matter, she denied another motion in the case this week from Smithfield Foods.

The company had asked that Virginia be included in the federal case, ``so state officials could explain firsthand what their reasoning was behind these agreements with Smithfield,'' Troy explained.

While Troy lost that argument, state officials still can be called as witnesses for Smithfield Foods when the federal trial gets underway.

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