DATE: Thursday, July 17, 1997               TAG: 9707170514

SECTION: LOCAL                   PAGE: B1   EDITION: FINAL 

SOURCE: BY SCOTT HARPER, STAFF WRITER 

                                            LENGTH:   72 lines

STATE REFILES SUIT AGAINST SMITHFIELD FOODS INC. COMPANY'S LAWYER WILL COUNTER THAT VIRGINIA ISN'T ENTITLED TO A SECOND LAWSUIT.

Virginia refiled its environmental lawsuit against Smithfield Foods Inc. on Wednesday, a week after abruptly halting its case that charged the meatpacking giant with 22,500 violations of state pollution laws.

``These are serious violations of state law and we're serious about holding the company accountable,'' David Anderson, chief deputy attorney general, said in a statement.

Also Wednesday, the attorney general's office said it will ask the Virginia Supreme Court to overturn a key ruling in last week's aborted trial. Judge Kenneth E. Trabue determined that Smithfield Foods should be shielded from penalties for dumping excessive phosphorus into the Pagan River because of a deal it signed with the state in 1991.

Under that deal, Virginia relaxed limits on several pollutants that flowed from company slaughterhouses in Isle of Wight County into the Pagan - most notably phosphorus, a nutrient known to damage the Chesapeake Bay. In exchange, Smithfield Foods agreed to pipe its hog wastes to a public sewage system in Suffolk once space was available.

That connection should be completed later this summer, ending decades of discharging into the Pagan, a tributary of the James River and ultimately of the Chesapeake Bay.

The company's waste practices have been the subject of much-publicized lawsuits and sharp criticism from environmentalists that the East Coast's largest pork processor reached its stature in part by putting profits ahead of its public responsibilities.

Anthony Troy, lead attorney for Smithfield Foods, said he was not surprised by either state move Wednesday, and is prepared to fight both.

Troy said he will counter that Virginia is not entitled to a second lawsuit, arguing that it would violate state rules of legal procedure.

The state halted its case last week after an expert witness was barred from testifying about the company's waste treatment system. The expert had submitted his final report one working day before the trial began. Smithfield Foods' lawyers argued that they did not have time to review the report, and Judge Trabue agreed.

Without a key witness, the state asked for a ``nonsuit'' - essentially, a request to stop the proceedings so that the plaintiffs can come back to fight another day. That request also was granted.

The lawsuit refiled Wednesday is nearly identical to the first, said attorney general spokesman Don Harrison.

If allowed, a second state trial would not begin before the U.S. Environmental Protection Agency brings its own case against Smithfield Foods.

The EPA alleges that the company violated the national Clean Water Act more than 5,330 times since 1991. Most of those alleged violations are for excessive phosphorus emissions - discharges that the state allowed under its cleanup deal with Smithfield Foods in 1991.

Smithfield Foods faces a maximum penalty of $125 million in the federal lawsuit. The federal case is scheduled to go to trial in U.S. District Court in Norfolk on Monday.

However, company lawyers from the Richmond-based firm Mays & Valentine last week filed a motion to stop federal action before it starts. They argued that the key ruling by Trabue at the conclusion of the state case last week should be the law of the land. In short, that the phosphorus emissions were not technically violations since the state allowed them under the 1991 deal.

U.S. District Judge Rebecca Beach Smith, who will try the federal case, already has ruled that Smithfield Foods is liable for those phosphorus emissions. In short, Smith ruled, the state deal with the company was too lax and the Pagan River suffered because of it.

The river has been closed to shellfish harvesting since 1970 because of high levels of fecal coliform, bacteria found in animal and human excrement. The Pagan also is considered ``an impaired waterway'' by state officials, meaning that direct contact through swimming or water skiing can be a health risk. KEYWORDS: LAWSUIT WATER POLLUTION

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