http://www.dailypress.com/news/opinion/dp-66494sy0mar17,0,5540585.story?coll=dp-opinion-editorials
Back at square one
March
17 2005
Score one for Virginia's waterways. A Richmond Circuit judge has
ruled that the state's new requirement for testing trash containers - the ones
that will carry thousands of tons of garbage along the James River and,
possibly, through Hampton Roads - is inadequate.
We've known for years
that giant hauler Waste Management Inc. plans to barge trash from other states
around Newport News and up the James to a landfill in Charles City County.
Indeed, it was Waste Management's plan that set in motion the events that ended
up in the Richmond courtroom. But Waste Management may not be alone on
Virginia's waters: The Southeastern Public Service Authority is negotiating with
a company that wants to barge trash from New York to Chesapeake or Portsmouth,
then truck it to a disposal facility in Hampton Roads or North
Carolina.
With the prospect of hundreds of containers of trash making
their way along our shores every day, Virginia's main concern is making sure
that every possible protection is in place so those containers don't leak
garbage into our waters.
On that count, we can all thank the Richmond
judge. He looked at the container standards that the state Waste Management
Board had adopted and saw what many other observers had seen: a travesty of
environmental protection. The board set out a method for testing trash
containers that doesn't even come close to determining whether the containers
meet the standard required in state law: that they be watertight "to prevent the
escape of wastes, liquids and odors and to prevent the loss or spillage of
wastes in the event of an accident."
The history of the testing
requirements is ugly. An early draft called for a more reasonable, more rigorous
method to check for leaks. Then former Gov. Jim Gilmore and other politicians
tried to use trash as a political football. They would have imposed regulations
discriminating against out-of-state trash, putting Virginia at cross purposes
with the constitutional principle that only Congress can regulate interstate
commerce. That failed end run around the Constitution left the state negotiating
a settlement with the trash hauler that sued over the discriminatory rules,
Waste Management Inc.
As part of that deal, the state agreed to try to
win adoption of a test requirement so puny it threatens the waters that trash
barges will travel along. All it required is that the bottom 24 inches of an
eight-foot-tall container not leak if filled with water for 15 minutes; that's
no help if a leak develops higher up or if a container falls over or into the
water.
The waste board, which regulates trash containers, was briefed on
the state's commitment to push for the lower standard. But as the board went
about developing container standards, the public wasn't told about that
agreement. All through the process that included a public hearing and gathering
of 2,500 comments about the proposed rules, the commitment to push for the
weaker standard was kept secret.
And, no surprise, the lesser standard
was adopted - and the regulation-setting process was turned into a sham that,
when exposed, undermined the credibility of state agencies and officials. It was
a case study in how to alienate citizens.
Enter the James River
Association, which challenged the deal in court.
Enter the judge's
ruling, which is clear in its condemnation of the state's regulations: "The only
thing the 24-inch standing water test demonstrates is that the bottom 24 inches
of the container does not leak. It demonstrates nothing about the rest of the
container."
Now the waste board, which is staffed by the Department of
Environmental Quality, has to go back and develop requirements that actually
meet the legal standard. The earlier, better ones it abandoned are sitting there
waiting to be reconsidered.
The judge issued another decision: that the
secret deal didn't make the rule-making process invalid, because the Waste
Management Board could have refused to go along with it.
Yes, technically
- but is it reasonable to expect the lay members of a board to defy a deal made
by the state's heavy hitters? That's asking a lot, and it this case, it was
asking too much.
Just because it's legal to negotiate a deal behind
closed doors doesn't mean it's right. The law may admit of secrecy, but good
government does not hide in its shadows.
Copyright © 2005, Daily Press
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