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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

House Bill 496  Posted: February 16, 2002
House Bill 496 prevents issuance of a notice of violation until after a preliminary warning is given to a polluter. Presented to the committee as being for innocent small businesses, the bill is in fact equally available to the most savvy large corporate polluter, who could intentionally, knowingly violate permit limits with no consequence until after being caught and warned.

Please make another round of calls, faxes or e-mails to the Committee members to stop this bill.

Kentucky Resources Council, Inc.

Post Office Box 1070

Frankfort, Kentucky 40602

(502) 875-2428 phone (502) 875-2845 fax

e-mail FitzKRC@aol.com

February 15, 2002

HOUSE BILL 496 REMAINS A THREAT TO ENVIRONMENTAL QUALITY

House Bill 496, which prohibits the Natural Resources Cabinet from issuing notices of violation unless an imminent danger exists, until after a preliminary warning is given, was heard in committee last Tuesday but was not approved.

Thanks to your help, the Committee did not vote to approve the bill; expressing concerns with the breadth of the bill's prohibition against timely action.

A committee substitute was offered by the Chairman, who sponsored the bill, which removed the 45-day time period but still requires a preliminary warning.

The Council still opposes the bill, and asks that you send another fax, e-mail or call to each Committee member asking that they oppose the House Bill even with committee substitute. An analysis, which has been sent to each committee member tonight, is attached.

The bill will be heard on Tuesday in the House Natural Resources and Environment Committee, whose members are James Gooch (the sponsor of the bill), Woody Allen, Phillip Childers, Keith Hall, Rocky Adkins, Ira Branham, Scott Brinkman, Hubert Collins, Howard Cornett, Don Pasley, Tanya Pullin, Marie Rader, Jim Stewart, Johnnie Turner, Robin Webb, Brent Yonts. Please send a fax to the LRC fax room, list each member on that fax, and ask them to oppose HB 496.

So How Do I Contact The Legislators?

Glad you asked. It has never been easier to contact legislators in order to make your voice heard. With a single fax to 502-564-6543, you can reach any legislators that you want to contact? You can send a letter, for example, to all Senators and Representatives or all the members of a committee by listing their individual names on a cover sheet and asking that each get a copy of your letter. The good folks at the LRC fax room will copy your fax and distribute it to all that you list (the recipients must be listed by name.) The LRC webpage has a list of all legislators and all committee members. The toll-free line is 1-800-372-7181, to leave a message for a legislator or a committee.

Kentucky Resources Council, Inc.

Post Office Box 1070

Frankfort, Kentucky 40602

(502) 875-2428 phone (502) 875-2845 fax

e-mail fitzKRC@aol.com

FIVE GOOD REASONS TO OPPOSE HB496cs

House Bill 496 with committee substitute requires issuance of a preliminary notice by the Cabinet on discovery of a violation of air, water or waste regulations or permits before issuance of a notice of violation. Among the most significant reasons that this bill should not be approved are:

1. The bill is not limited to innocent or unknowing violations by small businesses.

While the focus of committee testimony was the need to help small businesses, HB 496 gives a pollution "invitation" to large and small businesses alike. The most savvy major industrial pollution source, with attorneys and environmental engineers on staff, would be allowed to pollute unchecked, and in knowing, intentional violation of permits and regulations, and would still have to be given a "preliminary" notice before a notice of violation could be written.1

2. Removing the 45-day timeframe doesn't "fix" a bad bill.

Despite removal of the rigid 45-day timeframe, any reviewing court would construe the statute as requiring the Cabinet to give some time between the issuance of the preliminary notice, and issuance of a notice of violation. The effect is still to prevent the Cabinet from protecting the public interest through issuance of notices of violation on discovery of the violation.

3. The "preliminary" notice interferes with prosecution of intentional, willful and chronic violations.

Where there is an ongoing violation, depending on the severity of the violation, the Cabinet may elect to treat each day of violation as a separate violation. By requiring a "preliminary" warning, the law could be argued to prevent the imposition of penalties for the violations occurring before the issuance of the notice, when where the evidence is overwhelming.

4. The bill is not needed.

Testimony from industry trade representatives acknowledged that "most of the notices of violation are warranted" but later stated that the purpose is to "weed out unnecessary NOVs." The administrative appeal process is where government actions that are not "justified" is "weeded out" delaying agency action to require compliance with permit conditions and law in all cases is not a proper way to "weed out" those cases that industry acknowledges to be few.

Enforcement and compliance data tracked by the Environmental Quality Commission indicates that the number of water quality inspections actually conducted by the state in 1999 was the lowest in the 14 years since tracking began, and that of the 587 violations cited in 1999, 69 percent were industrial and city facilities. Notable also was the fact that 16 of the 125 major facility water permits were in significant noncompliance.

Air enforcement data likewise shows a downward trend. In 1999, only 96 air pollution sources were assessed penalties out of 964 violations written, down from 333 sources against whom penalties were assessed in 1995.

Solid waste enforcement numbers were up as a result of illegal dump initiatives; initiatives which this bill would interfere with by requiring that the cabinet preliminary warn a litterer or illegal dumper before a notice of violation could be assessed. Hazardous waste enforcement numbers were down, following a precipitous decline in hazardous waste inspection activity. The numbers do not support the myth that the Cabinet is "playing gotcha."

5. Proper funding of technical compliance assistance programs, not interference with enforcement of the laws, is the alternative.

The record in Kentucky does not support the need for the bill at all. If the Committee is interested in increasing small business assistance, increased funding for pollution prevention and technical assistance programs such as the Small Business Development Centers at the state universities, is the proper approach. You don't provide compliance assistance to small business by inviting large industries to pollute without consequence.

The bill would allow blatant, intentional violations of laws, regulations and permit conditions with little consequence. Only where a situation degraded to the point of imminent harm would the Cabinet be allowed to act immediately in the face of a violation. One unintended consequence of this could be to provoke more frequent use of imminent harm orders in order to address "gray area" cases, with more severe consequences to small businesses because the useful tool of a timely notice of violation has been eliminated.

1 It is important also to recognize that the definition of "small business" is not limited to one employing a handful of individuals. Depending on which government definition is used, a "small business" can have up to 100 - 500 employees. In this day and time, any business with that many employees can be assumed to have adequate grasp on environmental compliance requirements to know what the law and its permits require.

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