Regulatory meltdown

It's hard to imagine any other agency of state government could get caught in such a sweeping failure to do its job without producing a sharper reaction from lawmakers and the governor.

The tacit admissions in a consent judgment proposed by the Energy and Environment Cabinet and two coal companies are stunning and hugely embarrassing.

Yet we've heard not a peep from any elected official calling for an overhaul or beefed-up funding. Could it be because we're talking about coal?

In the settlement, the cabinet admits to hundreds of instances of the coal companies filing inaccurate water-monitoring reports. Regulators also allowed the mining companies, among the state's largest, to go for as long as three years without filing the quarterly water-monitoring reports required by law.

In short, Kentucky, which is responsible for enforcing the Clean Water Act, cannot say whether these mining operations and others have violated their water pollution permits because there has been such a vacuum of oversight.

Altogether, 2,765 violations by 103 mines are acknowledged in the settlement announced last week by the Beshear administration.

The thousands of violations were brought to light by environmental groups who examined pollution-monitoring records required of mining operations.

Saying the violations could net $75 million in penalties, the environmental groups filed a 60-day notice that they planned to sue the coal companies, ICG and Frasure Creek Mining, in federal court.

The notice triggered investigations and performance audits by the state that further documented the problems.

ICG and Frasure have agreed to pay $350,000 and $310,000 respectively in civil penalties in the settlement awaiting consideration by Franklin Circuit Judge Phillip Shepherd. The agreement also blocks the federal lawsuits against the coal companies from going forward.

In response to the revelations, Gov. Steve Beshear is calling for state certification of laboratories that test waste-water discharges by industry, a proposal the legislature has already rejected several times. The state audits revealed a laughable level of quality control by the labs employed by coal companies.

Energy and Environment Secretary Leonard Peters is promising better oversight. But the cabinet can't do much better without more money.

Only four states have more water-pollution permits to enforce under the Clean Water Act than Kentucky. But Kentucky ranks 49th in funding for the program responsible for overseeing the permits. Among 10 coal-producing states, Kentucky ranks last with $193 per permit to support enforcement. The next lowest among coal states is $357 per permit. The highest, Virginia, spends $2,800 per permit.

Until the environmental groups brought this travesty to light, Kentucky, the third-largest coal-producing state, had just one state employee devoted half-time to reviewing water monitoring by the coal industry.

The state has begun auditing the rest of the industry's water-monitoring record, which will mean shifting personnel, thus creating greater understaffing elsewhere in environmental enforcement.

The U.S. Environmental Protection Agency should rectify inequities in Clean Water Act funding that fall far short of Kentucky's needs.

And the legislature simply must raise fees on the coal industry to pay for oversight and enforcement. Lawmakers, ever beholden to coal, can console themselves that they're raising fees to protect the industry from future lawsuits, fines and public humiliation.