DATE: Friday, June 27, 1997                 TAG: 9706270008

SECTION: LOCAL                   PAGE: B10  EDITION: FINAL 

TYPE: Opinion 

SOURCE: BY JOSEPH W. LUTER III 

                                            LENGTH:   86 lines

THE EPA UNJUSTLY TARGETED SMITHFIELD FOODS

The Virginian-Pilot's June 7 report and June 14 editorial about Smithfield Foods and the EPA call for clarification and a statement of the facts.

You suggest assiduous failure by Smithfield Foods to obey environmental laws and that consent orders entered into between Smithfield and Virginia's Department of Environmental Quality (DEQ) were developed secretly and provided Smithfield Foods with a ``sweet deal,'' according to a representative of the Chesapeake Bay Foundation (CBF). You conclude that the EPA is justified in inserting itself into the fray because the ``Allen administration exacerbated a recognized problem by making enforcement weaker'' (another quote from the same CBF representative).

The EPA lawsuit charges Smithfield Foods with violations of phosphorous and nitrogen permit limits, notwithstanding the fact that such phosphorous and nitrogen discharges were in accord with consent orders entered into between Smithfield Foods and the DEQ. This suit makes a mockery of environmental enforcement and places in jeopardy not just Smithfield Foods but all businesses and municipalities that negotiate with the DEQ to define effluent discharge responsibilities.

First, let's be clear about the facts regarding the phosphorous discharges.

No phosphorous limit existed until 1988, when the Baliles administration adopted a limit. This limit was a state (not a federal) limit and was to be implemented in the future.

Because the limit primarily impacted meat-processing operations (unlike, for example, paper mills, which have no phosphorous problems to deal with) and because no technology could consistently come with such a limit, Smithfield Foods filed suit challenging the limit's propriety.

Eventually, the Wilder administration negotiated the 1991 consent order, ending the litigation and requiring Smithfield Foods to achieve a zero-discharge goal by ceasing discharges into the Pagan River and hooking into the Hampton Roads Sanitation District (HRSD) system when it became available.

This consent order was not developed in secret. It was published to invite public comment - and it received comment, most notably from the same CBF that is now voicing castigation. At the time of the order, CBF, as the UPI reported in 1991. hailed the decision and recognized that it achieved solutions not only as to Smithfield Foods but also with regard to the town of Smithfield's overtaxed treatment plant.

Second, let's be clear about what the Allen administration has done.

The administration has enforced the consent order entered into in 1991 and has refused to agree to Smithfield Food's request for a delay in hooking into HRSD, a request Smithfield made because of its belief that HRSD could not properly treat the effluent discharges.

Why is enforcement of an existing consent order, which achieves a zero-discharge solution, lax enforcement?

Why is the consent order the basis for the EPA to intervene?

Why is the consent order today being castigated by the CBF that originally hailed it as protection for the environment?

Lastly, what did the EPA know and when did it know it?

The EPA knew about the consent order when it was entered in 1991; knew that DEQ was going to administer the consent order as an agreement taking precedence over the 1992 renewal permit issued to Smithfield Foods and effectively approved by EPA; knew about the zero-discharge goal in the HRSD hookup and funded 80 percent of the approximately $69 million required to extend the HRSD line into Isle of Wight County and upgrade the HRSD treatment system; and knew that Smithfield Foods was not upgrading its own treatment system but that, once it hooked into the HRSD system, the company would be paying annual user fees of approximately $1.5 million above the costs of operating its own system.

Had Smithfield Foods chosen to upgrade its system in 1993, it would have spent millions of dollars less than it will be paying hooked into the HRSD system. But Smithfield Foods would have no guarantee that such upgrading to reduce phosphorous discharges would have consistently achieved compliance with the state standard.

In 1975, the EPA and Virginia entered into a memorandum of understanding granting the DEQ primary enforcement of the Clean Water Act with EPA oversight. Smithfield Foods acted in good faith, believing that all regulated entities should be able to deal directly with Virginia and that the two sovereigns - Virginia and the federal government - would communicate and coordinate with each other.

Smithfield Foods neither could nor should have had to anticipate that one sovereign, the federal government, would stand silently by for five to 10 years and then severely criticize the Allen administration for implementing an agreement that was negotiated and agreed to between Smithfield Foods and the Wilder administration. MEMO: Mr. Luter is chairman and CEO of Smithfield Foods Inc. KEYWORDS: ANOTHER VIEW

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