In Georgia, polluters cut private deals

Hidden danger: A state environmental agency is trashing due process by settling industrial pollution violations out of public view.

EDITORIAL
BYLINE: Bookman, Jay  Staff 
DATE: May 17, 1998
PUBLICATION: The Atlanta Journal and The Atlanta Constitution
EDITION: The Atlanta Journal Constitution
SECTION: Editorial
PAGE: G06

If you live near an industry or facility that repeatedly violates state environmental law, you probably live in blissful ignorance of the pollution problem next door. That's because, under Georgia law, the general public rarely learns when environmental laws have been broken.

Instead, the case is quietly investigated by state officials, who then privately negotiate a consent order with the violator, laying out the punishment and corrective action to be taken. Terms of the proposed settlement are kept secret until the deal has been closed and signed, and even then the public rarely learns about the violation except by accident.   Recently, the state Department of Natural Resources board was asked to open up the way pollution violations are handled. Environmental groups made two very reasonable and limited requests: They want public notification when pollution laws are violated, and they want a public hearing if 10 or more people from the local area request in writing the chance to speak about the violation.

That doesn't seem too much to ask, but apparently it was. The DNR board rejected the proposed change in the face of opposition from business groups and the state Environmental Protection Division. Instead, on May 20, the board is expected to approve policies that essentially reiterate the current closed system.

Among those opposing the change was the Georgia Textile Manufacturers Association, which likened the private negotiation of a consent order between a polluter and the EPD "to functions carried out by our judicial system in courts."

"Not many would be so brash as to suggest that they have a 'citizen's right' to crash through a police protective ribbon where the investigation of a crime is being carried out," the association told the board. "Not many would suggest that they should be able to sit in the deliberations of Supreme Court justices when they are deciding a case involving all of the citizens in that area."

Harold Reheis, the head of the state EPD, took a similar tack in opposing the change.

"EPD is processing violators of the law," Reheis wrote in a letter to the editor recently. "Other prosecuting entities (such as state patrol, local police, prosecuting attorneys, judges) could not function if they held public hearings on every case."

There's a fundamental and obvious flaw in those arguments. The entities that Reheis cites in his letter do hold public hearings. They're called trials. In the judicial system, defendants are arraigned and tried in public. Cases decided by the Supreme Court are argued first in public. Even in cases that are resolved by a plea bargain, which is similar to a consent order, the prosecutor and defendant cannot finalize a deal in secret. They have to present the deal in public to the presiding

The Georgia Pulp and Paper Association, which also opposed the change, condemned the proposal because it "would allow public participation and interference in proposed administrative consent orders."

Interference. What a telling word choice. How dare the public believe it has the right to know when its air, water and land are being polluted? How dare it want the right to voice an opinion about how those cases are resolved?

Public commitment to a clean environment runs deep; it's striking to note that even though it may cost the city of Atlanta more than $1 billion to clean up its sewage-treatment problem, city taxpayers have not complained at all about the expense. They've complained about a lot of things, including the competence and honesty of those running the system, but they are ready to pay the price for a clean environment. Citizen expects no more --- and no less --- of private industry than they expect of themselves.

Industry and EPD officials realize that if the voters knew what kind of deals were being cut, they would protest loudly. That's why they want to keep the public as ill-informed and as quiet as possible.

The potential impact of public awareness is reflected in a handwritten notation by an EPD employee in a report about a 1995 violation at a Hunt-Wesson food plant in Savannah.

"If the 12/5 incident had not attracted so much attention, we would not be imposing any penalty under normal office standards," the investigator wrote. "This is probably close to the minimal amount necessary to make the order look credible to the average citizen."

As the note makes clear, the Hunt-Wesson case was an exception to the rule. Because the case had become public knowledge, the fine was "close to the minimal amount necessary to make the order look credible." "Normal office standards," on the other hand, would have required no penalty whatsoever for breaking the law.

That's the system we've got. That's the system that the EPD and industry want to preserve.