
                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: SATURDAY, March 31, 1990                   TAG: 9003310600
SECTION: VIRGINIA                    PAGE: A5   EDITION: METRO 
SOURCE: PAUL DELLINGER SOUTHWEST BUREAU
DATELINE: WYTHEVILLE                                LENGTH: Medium

PULASKI MALL SUIT CLOSED, JUDGE RULES

A judge refused to reopen a case Friday in which he had ruled that construction of Pulaski Mall has caused water to drain onto the land of the former Allied Chemical plant.

Runoff from that plant property has polluted Peak Creek with metals, according to a state agency.

The ruling by Circuit Judge Willis Woods requires the shopping center to stop the water from running off onto the former plant site, even if that means building a drainage system.

Woods Friday denied a motion by the mall's owner to reopen the suit. The suit had been filed against the shopping center by Downtown East, owners of the former chemical plant.

Woods had ruled on Dec. 18 in favor of Downtown East. The suit has dragged on for nearly a decade in the courts. "This case must be brought to a conclusion," Woods said.

The state Water Control Board has asked Downtown East to find a way to stop the runoff from the former Allied Chemical site or remove the waste chemical piles. But Downtown East had issued a statement that it was waiting for relief from the court in getting the runoff from the shopping center stopped.

In the suit against Pulaski Mall owner Roger Smith of Roanoke, Downtown East claimed that construction of the shopping center resulted in water drainage onto its land. The site owned by Downtown East was formerly the Allied Chemical plant, and runoff from the property has been identified by the state Water Control Board as a main source of pollution of Peak Creek.

The plant closed in 1976. It made sulfuric acid and ferric sulfide and left behind extensive waste chemical piles, according to a report from the state board when it investigated creek pollution sources.

Downtown East also owned the shopping center property originally, but sold it before the center was fully developed.

Smith's attorney, Claude M. Lauck, had asked for a rehearing on the basis of whether Smith would have had an implied right, or easement, for water to flow across the land in question based on continuous use by the previous owner.

"It's not surprising that the defendant does want another bite of the apple now," replied Sam Campbell, representing Downtown East. But Campbell said the issue of an implied right, or easement, had not been raised when the case was tried. In any case, when ownership changed, the shopping center had not been developed, he said, so there could have been no such easement.

Woods said he felt that his previous decision was justified. He denied the motion for a rehearing and said a ruling would be entered in accordance with his Dec. 18 decision.

Monitoring has shown that Peak Creek has one of the highest concentrations of heavy metals of any body of water in the state, from a variety of sources including the runoff from the former Allied Chemical property.

by CNB