Volume 141, No. 177 covering the 1st Session of the 104th Congress (1995 - 1996) was published by the Congressional Record.
The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“EPA ENFORCEMENT NEEDS SCRUTINY” mentioning the Environmental Protection Agency was published in the Senate section on pages S16914-S16916 on Nov. 9, 1995.
The publication is reproduced in full below:
EPA ENFORCEMENT NEEDS SCRUTINY
Mr. DORGAN. Mr. President, I have supported policies to protect our country's environment, and I have backed the Environmental Protection Agency's efforts to enforce environmental laws. It is not a coincidence that we now use twice as much energy in America than we did 20 years ago and yet we have both cleaner air and cleaner water. That results from the determination by our country and the Congress to place limitations on those who are dumping pollutants into our rivers, streams, and lakes, and into our air.
This is a success story. We have made real progress in our fight to clean up our environment.
I am proud of my support for those efforts. But, Mr. President, I have come to the floor of the Senate today to discuss a couple of cases dealing with environmental protection that concern me. There are occasions, I am certain, where enforcement actions taken by those who are given police powers to make sure our environment is protected, become unfair, unreasonable and, in some cases, downright punitive.
Two such legal actions have been filed against two North Dakota manufacturing companies and I want to discuss them today. Because they involve an important matter of public policy, I want to offer my opinions on them.
Both of these examples are enforcement proceedings involving the EPA and now also entail filings in court. As a result, I am unable to pursue the matter further directly with the Agency. I regret that because I would like the opportunity to sit down in person and review in detail, with officials at EPA and with the officials in the two North Dakota companies, EPA's justifications for taking the kind of action it has taken against these firms.
So my alternative is to discuss these cases on the floor of the Senate and use information that is on public file in the two court actions and information that has been provided me by the companies as well as information that was provided to my staff from the Environmental Protection Agency prior to the final enforcement action being taken. I will use that information today to discuss the actions that have been taken against these two companies and ask whether this represents fair enforcement of our environmental protection regulations and whether it represents the routine kind of enforcement actions that the EPA has been taking against other companies around our country.
If these cases are judged by the EPA to be fair, and if these are representative of the enforcement actions taken around the country against other companies, then I understand much, much better the anger that exists in America against the bureaucracy because I think the action taken in these two cases is just plain unfair and punitive beyond reason.
Mr. President, let me describe the two EPA cases in North Dakota as I understand them. Once again, this description comes from the information filed in court actions against the two companies which is public information, information provided my office by the two companies, as well as information offered by the EPA during the process of its development of an enforcement action against the companies.
First, there is the Sheyenne Tooling and Manufacturing Co. which produces farm implements and steel parts in Cooperstown, ND. The second case is the Melroe Division of the Clark Equipment Co. which produces the Bobcat skidsteer utility loader in Gwinner, ND.
Both cases are remarkably similar. They began several years ago--in 1992 for Melroe and 1993 for Sheyenne Tooling--when EPA sent the two firms compliance orders instructing them to sample and test their wastewater. That testing has been a Clean Water Act requirement since 1986. When the sampling turns up excess contaminants, the wastewater must be pretreated before it is discharged into a sewer system. Unfortunately, neither firm was aware of those aspects of the law. There was an assumption that the treatment requirements were being handled by the city sewage plants into which the wastewater flowed.
The companies had received no communications from EPA on the requirements and no problems in that area had been pointed out during regular visits from the State Health Department. Though neither company was aware of the requirements, when they learned of them, they took steps to comply immediately.
Upon the notification by EPA that they had the responsibility to sample and test their wastewater, both companies immediately tested. When that testing determined that there were occasions when the wastewater did not meet EPA standards, both firms then acted quickly to take steps so that their discharges were brought within permissible limits. In every way, they worked cooperatively, promptly, and successfully to fix the problem.
Months later, however, EPA stunned them by demanding the payment of huge penalties--$1.9 million in the case of Melroe and $320,000 from Sheyenne Tooling. EPA said the fines were punishment for the companies' failure to sample, test, and treat their wastewater ever since the implementation deadline of 1986.
When the firms resisted fines of that amount, the Justice Department filed suit in Federal court to demand the money. Expensive and exhausting court actions now face both firms. The court action against Sheyenne Tooling only began in April, but in the action against Melroe, which has been going on for 18 months, the Justice Department has already secured 1,000 pages of depositions and required Melroe to turn over more than 5,000 documents.
In the case of Sheyenne Tooling, a small firm of just 60 employees, its problem was with an excess of zinc in its wastewater. Its zinc electroplating department is an insignificant part of the company, accounting for only 2 or 3 percent of its sales and an even smaller share of its profits.
As a result, it offered to eliminate its plating operation. However, EPA discouraged that and suggested ways to bring the operation into compliance. EPA did not tell the firm that for every day it continued out of compliance it could be fined $25,000. If Sheyenne Tooling had known that, it would have ended its zinc plating immediately. Instead, however, it spent $12,000 for equipment and took care of the problem.
Despite its forthright and good faith work to correct the situation, Sheyenne Tooling has ended up faced with this $320,000 penalty. The fine is of such a size that it will devastate the company, a major blow to the employees and to Cooperstown, a rural community of only 1,300 people.
In the situation at Melroe, the firm is said to have discharged excess amounts of lead, copper and, most significantly, zinc. A key part of the problem as it worked toward a solution was that it had trouble even identifying the source of the zinc. It suspected a paint, but the paint's ingredients label did not list that metal and, when the paint manufacturer was quizzed about the matter, it initially denied zinc was in the paint. Eventually, it was determined that the paint did indeed contain the metal and the supplier was required by Melroe to reformulate it to eliminate the zinc.
Melroe had several wastewater streams that flowed into the city sewer system. In one of the two key streams, the only problems were from the questionable paint. The other stream discharged just 17 gallons of wastewater a day. An important point to note is that manufacturers are allowed to combine their wastestreams before allowing them to flow into the public sewers.
If Melroe had done that, the combined volume of water would have been such that the metal contaminants would have been diluted enough so that Melroe would not have had any excessive discharges of pollutants except for the sporadic and unusual zinc paint phenomenon.
In addition to switching, as I have already noted, to a paint that was definitely zinc free, Melroe also installed almost $200,000 worth of equipment which completely eliminated all its problems. Despite that, EPA sought the $1.9 million fine. Melroe has offered to pay a
$200,000 penalty, but EPA remains determined to hold out for a substantially larger amount.
EPA believes that these punishing penalties are necessary to deter potential offenders and to recoup any possible savings the firms might have accrued by not performing the sampling and pretreatment in earlier years. It argues, in addition, that there was a risk of environmental harm, even though no harmful impacts have been documented.
In similar cases I am aware of in North Dakota, EPA sought penalties of $60,000, $40,000, $25,000 and $15,000 and generally settled for less. I am at a loss to understand why it now wants penalties of $1.9 million and $320,000 in the two cases I am discussing.
Mr. President, those are the facts about these two cases as I know them. As I indicated, because of the enforcement action initiated by the EPA and now the court action by the Justice Department to collect civil penalties against these two companies, I am constrained from intervention with EPA.
But I want the record to show that I think this represents terrible judgment, inappropriate sanctions, and an unreasonable punishment for these companies.
I have no sympathy for a rogue company that, knowing the rules, violates those rules and pollutes the air and the water. I have no sympathy for companies that refuse to cooperate with the EPA. I have no sympathy with repeat offenders whose record demonstrates a disregard for our environment. They should be punished.
But I have no fondness for a Government agency that goes to companies that have an excellent record and that willingly cooperate in every respect and who demonstrate a desire to do the right thing and then say to them: ``You're guilty of an oversight and you are going to pay dearly for it.'' That kind of heavy-handed, bureaucratic misjudgment is what is causing a relentless anger in the American people that is directed at their Federal Government.
I have spent most of my 15 years in Congress taking on the big economic interests. I have fought to shut down the S&L junk bond scandal, opposed the corporate raiders on Wall Street, fought the drug companies for pricing abuses, taken on foreign corporations for tax avoidance, and opposed tax subsidies for oil companies. So I find myself in an unaccustomed role today bringing to the floor a case of two corporations, one large and one small, who I think have been wronged by the EPA.
Originally, when I reviewed the complaint of these two companies, both of which have an excellent reputation, both of which the North Dakota Health Department considers cooperative and responsible firms, I concluded that they were treated unfairly.
But because my hands are tied in an enforcement matter such as this, there has not been much I could do beyond simply commiserating with them and telling them that I thought they were treated unfairly. But, if we legislators who created the EPA, and who wrote these environmental protection laws, are unwilling to stand up and ask the policy questions that we should be asking in circumstances like this, then we deserve all the ill will that is directed toward the Federal Government.
Unless we are prepared to point out the cases of bureaucratic excess and unfair consequences and then try to do something about them, we should not be surprised by a citizenry that is justifiably angry.
I hope those in the Federal Government who read these examples will understand that they hold the power to enforce the laws of this country in an appropriate, fair, even-handed manner, but they also have the responsibility to rein in those who would use that power in ways that are not fair and not even-handed. That is what we expect and that is what the American people demand.
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