WEEK 23 May 28th to June 3rd 2001

   THE LAW CLEARLY NOT EQUAL…

   One more exposure, among thousands, proving that we're not at all equal under the law…

   More than one in four - 26 percent - of the United States' largest industrial, municipal and federal facilities were in "significant" violation of the Clean Water Act at least once during a recent 15 month period, a new report indicates.
   The report by the U.S. Public Interest Research Group (PIRG) describes shortcomings in the monitoring of water pollution and efforts to deter polluters. At the most basic level, the government, including both state agencies and the U.S. EPA, have failed to properly pursue and punish polluters.
   The annual report shows a drop in the number of significant polluters since last year, when U.S. PIRG documented that almost 30 percent of major facilities were in serious violation of the Clean Water Act. But this year, there is an important difference - the report, "Polluters' Playground: How the Government Permits Pollution," comes just weeks after the Bush Administration proposed slashing the U.S. Environmental Protection Agency's budget for environmental enforcement.
   "It is outrageous that the Bush administration is proposing to slash enforcement budgets when more than one in four polluting facilities are breaking the law," said U.S. PIRG environmental advocate Richard Caplan. "We need clean water now, and we have to start by requiring polluters to obey the law."
   When Congress passed the Clean Water Act in 1972, there was a visible water crisis that made a compelling case for action. Pollution in the Cuyahoga River caught on fire in 1969, and a spill off the coast of California left millions of gallons of oil along the coastline.
   The goals of the act were to return all waters to fishable and swimmable conditions by 1983 and to eliminate the discharge of all pollutants by 1985. Now, almost 30 years later, 40 percent of U.S. surface waters still do not meet the fishable and swimmable standard.
   There have been over 36,000 beach closings and advisories since 1988, and in 1999, 48 states issued fish consumption advisories because of high levels of dangerous chemicals.
   To learn the source of these continuing pollution problems, U.S. PIRG analyzed the behavior of major facilities nationwide by reviewing violations of the Clean Water Act between October of 1998 and December of 1999. The violations were recorded in the U.S. EPA's Permit Compliance System database, which is not a public record. U.S. PIRG obtained the data under the Freedom of Information Act (FOIA).
   The major findings of the report include:

•    More than 26 percent of the 1,730 major facilities examined were in Significant Non-Compliance with their Clean Water Act permits for at least one quarter during the 15 month period.

•    159 major facilities were in Significant Non-Compliance with their water pollution permits during the entire 15 month period.

•    Of the 42 industrial facilities in Significant Non-Compliance for the entire 15 month period, EPA records indicate only one received a fine over the past five years.

•    The 10 states with the greatest number of major facilities in Significant Non-Compliance were Texas, Ohio, New York, Alabama, Tennessee, Louisiana, Pennsylvania, Florida, Missouri and Indiana.

•    The 10 states with the highest percentage of major facilities in Significant Non-Compliance were Utah, Tennessee, Ohio, Vermont, Missouri, Oklahoma, Alabama, Rhode Island, Nebraska and Indiana.

   The continued dumping of hundreds of millions of pounds of toxic chemicals into waterways and the significant violation of the Clean Water Act by almost 1,700 large facilities stems from several specific policy failures, U.S. PIRG argues. Governments, both state and federal, don't pursue and punish polluters.
   Meanwhile, the courts have eroded citizens' ability to file suits in order to enforce the Clean Water Act. In addition, regulators have failed to progressively lower permitted amounts of pollution in order to move toward the zero discharge goal of the Clean Water Act.
   One out of every four facilities is operating on an expired permit.
   The Bush administration has attempted to justify proposed cuts to the EPA's enforcement budget by arguing that states are better suited to carry out enforcement activities. But as the U.S. PIRG report details, many states are already failing in this task.
   To bring about consistent compliance with permits and move toward the zero discharge goals of the Clean Water Act, U.S. PIRG recommended the following:

•    Set tougher penalties. Penalties should be set high enough to remove any economic incentive for polluters to break the law and to deter lawbreaking in the first place. This approach has proved successful in New Jersey, which passed a tough Clean Water Enforcement Act in 1990 that helped to reduce the state's ranking among states in terms of percentage of facilities in Significant Non-Compliance to 46th.

•    Allow citizens full access to the courts. Obstacles to citizen suits should be removed, including the current rules that bar citizens from suing federal facilities.

•    Expand the public's right to know. U.S. PIRG says the public should have greater access to information about enforcement, including the requirement of submissions of comprehensive data by facilities that discharge into waterways and easy accessible of that data through online Internet searches.

•    Strengthen whistleblower protections to extend the statue of limitations for protection of employees that report illegal activities by their employers.

   Last year, Representative Frank Pallone, a New Jersey Democrat, introduced legislation that would accomplish most of the recommendations made by U.S. PIRG, and he is expected to reintroduce the bill in the current Congress.
   "We urge Congress and the President to listen to the public's demands for clean water," said Caplan. "The Administration's proposed cuts to the EPA's enforcement budget take us in the wrong direction at the wrong time."

   The U.S. PIRG report is available at: http://www.pirg.org/