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

DATE: FRIDAY, November 5, 1993                   TAG: 9311050133
SECTION: VIRGINIA                    PAGE: B-1   EDITION: NEW RIVER VALLEY 
SOURCE: CATHRYN McCUE STAFF WRITER
DATELINE:                                 LENGTH: Long

EPA IS ASKED TO HELP

In a petition filed with the EPA, the Chesapeake Bay Foundation and the Environmental Defense Fund claim that Virginia violates the federal Clean Water Act in public participation, permitting, monitoring and enforcement.

Virginia allows only water-pollution dischargers to challenge a permitting decision in court - a legal procedure called standing. Without access to judicial review, public participation is crippled, the two groups say.

Also, 14 percent of Virginia's major water pollution permits expired at least a year ago, they charge. Some permits are issued by default.

Further, the state is lax in pursuing enforcement penalties, fails to meet water quality monitoring requirements, and is behind in setting toxin standards, according to the petition.

"These are historic problems," said Roy Hoagland, lawyer for the bay foundation. "The issue is: The program needs to be fixed."

But the state's top two environmental regulators staunchly defended their work in protecting Virginia's water resources, and doubted whether the EPA could do any better.

"I cannot support EPA running our program. We have one of the best in the country," Secretary for Natural Resources Elizabeth Haskell said Thursday.

Both she and Department of Environmental Quality Director Richard Burton questioned the accuracy of facts and numbers used in the petition. The environmental groups cited Virginia agencies as the source for many of their allegations.

Specifically, the groups say that:

Virginia bans or advises against fishing for human consumption on more than 450 river miles.

Toxic residues in fish taken from 33 percent of Virginia's sampling stations exceed human health standards.

Sixty percent of Virginia's water basins contain water of poor quality.

Virginia recorded 96 fish kills caused by pollution, 977 surface-water oil spills, and 2,157 underground oil spills from mid-1989 to mid-1991.

During those years, only three of 40 other states had a worse record for fish kills, according to the petitioners.

The Department of Environmental Quality, having received an advance copy of the petition, was ready Thursday to combat the charges. According to Burton:

Virginia's rate of expired permits is between 2 percent and 5 percent. "I can assure you," he said, "it's because EPA is holding up these permits."

Only 2 percent of Virginia's permit holders fall below a federal standard called "significant noncompliance." The national average is 8 percent, Burton said.

Virginia ranks third for the number of stream miles monitored, and fifth for percentage of miles that meet water-quality standards. Burton said he got those statistics from the EPA.

On the issue of citizen standing, Burton said it is unclear whether Virginia's law violates federal law. But, he agreed, "It's a pretty strict standard, there's no doubt about that."

Haskell said she supports broadening the opportunity for citizens, localities and even other companies to challenge a permit. She said the Wilder administration sent legislation to that effect to the General Assembly this year but was turned down.

David Bailey, an attorney with the Environmental Defense Fund, said the imbalance of judicial access has biased agency discretion for too long. It's human nature to pay more attention to those who can sue you in court, he said, than to side with those who can't.

"The whole issue has become skewered toward the industry and getting that permit in the applicant's hand," Bailey said, noting a report released two weeks ago by the department that showed Virginia was among the speediest to issue permits compared with five neighboring states.

It's not the first time - nor the last - that the state will be taken to task for its policy on court standing. In August, nine groups also asked the EPA to take over the water program because of the policy.

And later this year, Bailey said, his group plans to ask the EPA to take over the state's air-pollution control program as well, charging that the state violates the 1990 amendments to the Clean Air Act on allowing citizens to challenge air permits.

Environmentalists have been working for months on the petition to be filed today, and had no political considerations in the timing of the action. Bailey said that Mary Sue Terry, who lost her bid for governor, did not pursue the standing issue when she was attorney general.

So, with the election of Republican George Allen as governor, "We probably won't be any worse off than we were before," in getting changes made, Bailey said. Ultimately, the environmental groups want Virginia to change its policies and procedures, Bailey said, because it would be better for the state to take care of its own water rather than an unwieldy, underfunded federal bureaucracy whose regional headquarters are in Philadelphia.

But today's petition is no idle threat, he said. "This is not a piece of paper to tweak the state.

"We are going to push in federal court and everywhere else" to get the changes the groups say are imperative to protect Virginia's waters.