//

An environmental group sued the state, saying a key element of the rules -- a test that is supposed to ensure the barged trash containers are watertight -- was not tough enough to protect the river.

In a ruling made public yesterday, Judge Randall G. Johnson of Richmond Circuit Court sided with the group, the James River Association.

He said the test, which calls for filling a container with 2 feet of water and checking for leaks, did not comply with state law, which requires the containers to be watertight.

"The only thing the 24-inch [test] demonstrates is that the bottom 24 inches of the container does not leak," Johnson wrote in his ruling.

The test might protect the James during normal barging but not during an accident, Johnson wrote. The test "is fine if nothing bad happens."

Patti Jackson, former director of the James River Association, called the ruling "a huge victory. I think we won on the most important issue."

She added, "The only way to ensure we are protecting our rivers is to make sure those containers are watertight."

The group sued on three points. On two, Johnson sided with the state.

He said a secret 2002 agreement between state officials and BARGE Waste Management Inc., which plans to barge trash to Charles City County, did not render the final rules illegal.

In the agreement, which settled a lawsuit, the company agreed to pay a $1-a-ton state fee for barging the trash. Also in the agreement, state environmental officials agreed to push for the 24-inch water test.

In a comment period during the spring of 2003, many people called for a higher fee and a tougher test.

With the public unaware of the deal, the state Waste Management Board in July 2003 adopted the $1 fee and the water test.

In the suit, the James River Association said the deal made a "sham" out of the comment period.

But Johnson said the existence of the deal did not make the rule-making process illegal.

"The court is also at a loss to understand how public disclosure of the settlement would have changed the outcome," Johnson wrote.

On the third issue, Johnson ruled that the evidence shows the $1-a-ton fee is sufficient. The money will fund activities such as barge inspections.

Johnson's ruling on the barge test means the waste board must go back and adopt a test that complies with the state law requiring watertight containers.

That is a tough task. A test that is too tough, or too expensive, could be ruled unconstitutional. Courts have held that trash hauling is a constitutionally protected form of interstate commerce.

Jackson said the board must go through another rule-making process, including a comment period. She said the process could last about six months.

Tim Murtaugh, a spokesman for the attorney general's office, which defended the rules, said the state is considering "all options, including an appeal."

"The bottom line is that we are all interested in protecting Virginia's natural resources. . . . Our goal is to make sure that trash is . . . subjected to the toughest regulation possible under the Constitution."

Waste Management issued a statement saying the company was generally pleased with Johnson's ruling but disagreed with his finding on the container tests.

A spokeswoman said the company has not decided when to start barging the trash.

Johnson did not award legal fees to the James River Association "in light of the number of issues on which JRA was not successful."

The association was represented by the Southern Environmental Law Center, a nonprofit group.