[Congressional Record Volume 141, Number 177 (Thursday, November 9, 1995)]
[Senate]
[Pages S16914-S16916]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     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 

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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 

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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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