DATE: Saturday, June 7, 1997                TAG: 9706060003

SECTION: LOCAL                   PAGE: B6   EDITION: FINAL 

TYPE: Editorial 

                                            LENGTH:   66 lines

LANDMARK RULING ENVIRONMENT SLAPPED VIRGINIA'S DEALS WITH POLLUTERS DO NOT PROTECT POLLUTERS FROM FEDERAL PROSECUTION, SAYS FEDERAL JUDGE.

Four decades ago, many Southern states attempted to interpose themselves between the federal government and citizens in order to block federal court orders to desegregate schools. The attempts failed.

This week a Norfolk federal judge said, in effect, that Virginia cannot interpose itself between federal environmental regulators and polluters. In a decision that left environmentalists jubilant, U.S. District Judge Rebecca Beach Smith held that no deal struck between the state and a polluter protects the polluter from federal prosecution.

In Virginia, such deals, called consent orders, are common. They are reached in private between the state Department of Environmental Quality (DEQ) and polluters. Ironically, secret consent orders frequently lower the standards for discharge permits that were arrived at in public. In exchange for a relaxed standards, the polluter promises to fix a problem within a certain time.

The advantage of consent orders is that pollution problems may be resolved without lengthy and costly litigation. Problems may be fixed in a spirit of cooperation.

The disadvantages of consent orders in Virginia are that they are arrived at in secret and often give sweet deals to polluters. ``Virginia's system is a very closed system,'' said Roy A. Hoagland, chief attorney for the Chesapeake Bay Foundation in Virginia. ``The inevitable outcome is that it protects the polluter more than it protects the environment.''

In most states, Hoagland said, the public is involved in reaching consent orders, and state environmental regulators are stricter than Virginia's.

Smith's ruling Monday said the U.S. Environmental Protection Agency may pursue its case seeking as much as $125 million in fines from Smithfield Foods - despite the pork processor's 1991 consent order with the state.

That order relaxed standards for certain pollutants. In return Smithfield Foods agreed to stop discharging all its wastes into the Pagan River, a Chesapeake Bay tributary, as soon as a public sewage treatment plant in Suffolk could handle it.

Now, six years later, the plant now is ready, and Smithfield Foods is expected to hook up with it this summer.

It is highly unusual for the EPA to bring a case when there is a consent order, said Hoagland, ``but Virginia's history of enforcement is notoriously poor.'' In June 1991, for example, the director of environmental protection issues for the U.S. General Accounting Office testified before a Senate committee, ``. . . Virginia's enforcement program does not seek penalties appropriate to serious violations of federal law. EPA's oversight is `critical.' ''

Although poor enforcement predates Gov. George F. Allen, Hoagland said, ``Governor Allen's administration exacerabated a recognized problem by making enforcement weaker.''

A Smithfield Foods statement complained, ``The EPA's intervention undermines the DEQ's authority and confounds those who must work with the DEQ to achieve compliance with the Clean Water Act.''

But a federal official said the EPA steps in only when state enforcement fails to meet the standards of the Clean Water Act.

It seems certain that Judge Smith's ruling will be appealed. It should be upheld.

There is a huge difference between consent orders that lead to inexpensive compliance with environmental laws and secret sweetheart deals that let polluters keep on polluting for years.

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