Op-Ed

Feedback: State weak on enforcing clean-water rules

At issue | Jan. 23 column by Leonard K. Peters, "Bureaucratic morass threatens environmental protection"

It's been nearly 39 years since Congress passed the Clean Water Act. Why is Energy and Environment Cabinet Secretary Len Peters surprised that there is a mandate to keep the public safe by preventing the toxic pollution of our water?

More importantly, why are Peters and Gov. Steve Beshear trashing that directive, filing lawsuits against the recommendations of good scientists, and fighting those who call his cabinet into account and want to help him meet his mandates?

In his commentary, Peters gave reasons he feels the cabinet is not meeting its obligations to enforce clean-water laws. He callously blames those whose bodies have been poisoned, property values decreased or recreational enjoyment lost because of illegally polluted water for interfering with the cabinet by demanding enforcement of the laws.

My own history of seeing my family and neighbors sickened when our wells were contaminated, and our beautiful mountain home spoiled when the creeks turned orange, gives me particular concern about the enforcement of clean-water laws.

I have followed the case against the International Coal Group (ICG) and Frasure Creek Mining with special interest because the duty to accurately monitor and self-report pollution discharges is the linchpin of the Clean Water Act's enforcement scheme.

Peters also blames federal regulators. ICG and Frasure Creek are not alleged to be in violation of any new federal law, regulation or mandate. The duty to self-report pollution discharges and the cabinet's duty to monitor those reports are as old as the Clean Water Act itself.

By shifting the blame, he is only trying to hide the failings of this administration.

Peters does not deny that ICG and Frasure Creek were inaccurately self-reporting pollution data for at least the past two and a half years. Nor does he deny that the cabinet was not even performing the cursory, but crucial, level of review that would have detected these obvious violations.

These thousands of violations were discovered by citizen groups, which were forced to initiate legal proceedings to secure some level of enforcement. Citizens as enforcers is a concept that Congress embraced when it passed the Clean Water Act. The act also requires states to safeguard public participation and citizen intervention in enforcing the law.

If this action "created further chaos," as Peters said, within the cabinet, then that is exactly what it needed to do.

Perhaps the citizen groups' proceedings were embarrassing to the cabinet, and that is why it initiated its own enforcement action. But the cabinet's proposed settlement with the companies is barely a slap on the wrist given the number and seriousness of the violations. The cabinet proposes to assess less than 1 percent of the allowable penalties.

That is why the groups that initiated the action have sought to intervene in this case. Yet our interest in seeing the law enforced and the public protected is opposed by the cabinet. Why would the beleaguered cabinet turn away (or obstruct) the assistance of the same citizens it is charged to protect?

If the cabinet were acting in the public interest, Peters could have used the credible threat of citizen enforcement to negotiate a meaningful settlement, one that would have deterred other polluters from even thinking about thumbing their noses at the law. Instead, Peters negotiated, and is eager to accept, an embarrassingly weak settlement.

Part of the truth is that these violations go unnoticed because enforcement agencies have been purposely crippled by the legislature and by the cabinet's own lack of commitment to its enforcement role.

Lawmakers often use the guise of "unavoidable" budget cuts to go after programs they don't like. It's no surprise that the environmental enforcement programs that corporate polluters hate have been decimated. Beshear was responsible for proposing, and the General Assembly approving, a 21 percent funding cut for cabinet programs. At the same time, however, they increased funding by 56 percent for permitting new sources of pollution.

Issuing permits that the cabinet cannot enforce endangers Kentuckians. If Peters is serious about protecting the public but lacks the resources to enforce these permits, just stop permitting. That will get the legislators' attention.

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