Despite the lack of public notice of any intent to consider House Bill 496, Chairman Jim Gooch of the House Natural Resources and Environment Committee added that bill to the agenda of a special meeting of that committee that had been advertised this morning to take up only HB 441, dealing with beaver populations.
On a 10-0 vote, the committee passed HB 496, a bill that hamstrings the Cabinet from taking effective enforcement action against the most savvy, knowing, willful and intentional violators of pollution laws. An action alert is attached.
House Rules Committee can stop this irresponsible bill from moving forward by recommitting it. The public deserves and expects prompt action in the face of environmental violations, not laws that require the Cabinet to sit idly by in the face of ongoing pollution problems.
Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone (502) 875-2845 fax
HB 496 - A FREE LUNCH FOR POLLUTERS
Today, the House Natural Resources & Environment Committee, at a special meeting for which HB 496 was not publicly-noticed for consideration, considered and passed House Bill 496.
The bill, crafted by and supported by lobbyists for big industries, mandates that the Natural Resources and Environmental Protection Cabinet issue a preliminary notice before it can issue a "formal written notice" of violation by the Cabinet on discovery of a violation of air, water or waste regulations or permits before issuance of a notice of violation.
Billed as a bill directed at helping "small business", the bill actually:
* Allows intentional, knowing, willful and repeated violations of environmental permits and laws by large industry polluters to go uncontrolled, and encourages pollution sources to do less to control pollution.
The most savvy major industrial pollution source, with attorneys and environmental engineers on staff, would be allowed to pollute unchecked, and in willfull, deliberate, knowing, and intentional violation of permits and regulations, and would still have to be given a "preliminary" notice and some time to stop the pollution before being subject to a notice of violation.1
* Delays effective action to correct violations by tying the Cabinet's hands in the face of serious, ongoing pollution problems.
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.
* Prevents penalties for ongoing intentional violators.
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 notice, the law could be read to prevent the imposition of penalties for the violations occurring before the issuance of the notice, even where the evidence is overwhelming.
* The bill is not needed to solve a real problem, but instead creates a "safe harbor" for willful, knowing, chronic violators.
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.
Most facilities do not have routine inspections, and problems are detected often in response to public complaints. 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."
The bill would allow blatant, intentional violations of laws, regulations and permit conditions with little consequence. Why spend money preventing pollution when you can't be penalized until after you are caught, warned, and then given time to stop before any violation can be written or penalty imposed. 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.
The bill now goes to the House Rules Committee. Please send a fax to 1-502-564-6543 addressed to Representatives Jody Richards, Rocky Adkins, Woody Allen, Adrian Arnold, John Arnold, Joe Barrows, Sheldon Baugh, Jim Callahan, Larry Clark, Bob DeWeese, Danny Ford, Charles Geveden, Jeff Hoover, Jimmie Lee, Ruth Ann Palumbo, Steven Riggs, John Will Stacy, Kathy Stein and Greg Stumbo; or call and leave a message on the toll-free message line for each of them, asking them to recommit House Bill 496.
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.