Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: FRIDAY, October 29, 1993 TAG: 9310290047
SECTION: VIRGINIA PAGE: B-1 EDITION: METRO
SOURCE: CATHRYN McCUE STAFF WRITER
DATELINE: LENGTH: Medium
But state officials and industry leaders say the doors of justice are open wide enough.
At stake is up to $400 million a year in federal highway money - about 40 percent of the state's construction budget.
The state has until Nov. 15 to tell the federal Environmental Protection Agency how it plans to implement the 1990 Clean Air Act amendments. Part of the act includes standards for allowing citizens the right to sue, called standing.
The issue affects homeowners, neighborhoods, local governments, hunters and anglers, even other factories - anyone who potentially could be harmed by air pollution coming from a particular source.
Under a state law passed this year, citizens must prove that air pollution poses an immediate threat and economic damage to get a hearing before a state judge.
But the EPA says that's too strict. More importantly, it violates the 1990 Clean Air Act amendments.
Federal rules open the judicial doors wider, allowing anyone who spoke at public hearings or otherwise participated in a permitting process the right to appeal.
A letter in August from a top EPA official to Richard Burton, director of the Virginia Department of Environmental Quality, stated that Virginia faces losing control over its air program and losing highway funds.
"Basically, on its face, as the letter indicates, we think there are some problems," said Marsha Spink, chief of air programs for EPA's Region III.
Virginia environmental officials, however, disagree.
"We do have a valid law on the books, unless somebody tells us otherwise," said Bernard Caton, a deputy director in the agency, noting that the EPA letter was not an official ruling.
David Bailey, an attorney with the Environmental Defense Fund, said that because of the judicial appeal issue, his group will challenge Virginia's air program as soon as it's submitted.
It will be the second challenge to Virginia's policy on citizen standing.
In August, nine environmental groups together petitioned the EPA to force the state to allow citizens, localities and companies to sue over water-pollution permits. Virginia is the only state that restricts judicial review of water permits to the permit holder.
As for the dispute over air permits, not much can be done to resolve it until the General Assembly meets next year.
"Our standing standard doesn't cut the mustard," acknowledged Del. W. Tayloe Murphy Jr., D-Warsaw. During this year's session, Murphy tried to increase access for citizens to challenge both air- and water-pollution permits.
But the legislature, under pressure from the Virginia Manufacturers Association and others, passed a weakened law pertaining only to air permits, and failed to open the door for challenges to water permits.
"That got a little lost in the shuffle," said Del. Clifton Woodrum, D-Roanoke, who also played a key role in the standing issue.
Neither delegate would say whether or not he plans to introduce legislation in 1994. Both are campaigning for re-election.
Manufacturers lobbied against increased access because "they felt like it would open up challenges on a, quote, drive-by, unquote, basis," Woodrum said. Although he didn't agree, he said, "They had the votes. We had to acquiesce."
Woodrum said that if the EPA rules against the state and proceeds to pull road money, the legislature will have to change the law.
He added that he still believes the state needs uniform standards for judicial review of both air and water permits.
by CNB