Do fines stop pesticide POISON misuse?
Subject: Do fines stop pesticide POISON misuse? Well...................
Date: Fri, 1 Feb 2002 15:52:55 -0500
From: Stephen Tvedten <steve@getipm.com>
Organization: Get Set Inc. (www.getipm.com)
To: Paul Helliker <phelliker@cdpr.ca.gov>
Director, State of
California, Department of Pesticide Regulation
cc: Christine Whitman whitman.christine@epa.gov
Many Ecology fines go uncollected
State agency lacks authority to shut down polluters just because they owe money
Wednesday, January 30, 2002
By LISA STIFFLER SEATTLE POST-INTELLIGENCER REPORTER
John and Cynthia Nagle aren't your typical industrial polluters. They're supposed to be in their golden years -- running a small winery near Mount Rainier and a "U-Fish" pond, teeming with coho salmon and rainbow trout.
But the couple's small-town hospitality belies the fact that they've been branded environmental scofflaws.
Three years ago, the state Department of Ecology fined the Nagles $120,000 for illegally running a fish farm, dumping untold gallons of waste water into Rainey Creek. Today, not a penny has been paid.
The Nagles, who insist they were operating legally, have shut down their fish farm and declared bankruptcy rather than yield to Ecology.
"Eventually, I'll probably lose the whole damn thing," said John Nagle, 68.
The case illustrates how difficult it can be for environmental regulators to get businesses to comply with pollution standards -- and pay up when they're caught breaking the rules.
Big-money fines grab headlines. What the public doesn't know is how often the penalties go uncollected.
Ecology has handed down nearly $7 million in fines over the past four years, but less than half that amount has been collected, an analysis of settled accounts by the Seattle Post-Intelligencer has found.
The penalties were reduced on appeal to a total of $5 million. Despite that discount, and the state's attempts to get some of the money through collection agencies and civil lawsuits, nearly $2 million hasn't been paid, records show.
Dozens of businesses that have been socked by Ecology -- with penalties ranging from a hundred dollars to nearly a half-million -- haven't paid up. And many are still operating.
Environmentalists say Ecology's failure to collect encourages Washington companies to play fast and loose with important safeguards. And writing off the debts, as the agency appears willing to do, forces taxpayers to bear more of the burden in repairing damage done to the land, air and water, the critics say.
"It allows the polluter to pollute at the public's expense," said Lea Mitchell, state director of Public Employees for Environmental Responsibility.
"The whole idea of a penalty is the polluter gives something back to the public, not only with a penalty but with compliance."
Ecology Director Tom Fitzsimmons defends his agency's track record, saying the fines caught the polluters' attention in most cases, persuading them to stop breaking the rules.
"If the outcome is a compliant ... industry or individual or business, then why is the money so important?" Fitzsimmons asked.
Ecology emphasizes working with businesses to help them learn the regulations and figure out how to follow them. The department holds workshops on reducing hazardous waste and maintains offices statewide to help companies navigate the permitting process.
Since 1995, the agency has been required by law to give warnings before imposing penalties. Companies that are fined can either pay up within 30 days, appeal to the agency for a lesser penalty or take their case to the independent Pollution Control Hearings Board.
In the most egregious cases, Ecology and the U.S. Environmental Protection Agency can seek criminal charges. In the last fiscal year, six defendants were convicted of crimes and ordered to pay more than a half-million dollars in penalties.
On its own, Ecology can turn unpaid fines over to collection agencies, but the department doesn't have the power to shut down a company or deny permits simply because of unpaid fines.
Efforts to crack down have fallen short. In December 1999, Ecology announced that it was getting tough by taking a corporate polluter that didn't pay to court.
"We hope this and other court actions send a message that polluters will pay the price for polluting Washington's waters," said Megan White, manager of Ecology's water-quality program.
At the time, 39 percent of fines issued for water-quality violations around the state weren't being paid. Two years later, that rate is virtually unchanged for the agency overall, records show.
Fitzsimmons is now backing off the tough talk. In many cases, he said, the cost of hiring attorneys to take scofflaws to court outweighs the money that's recovered.
That concerns EPA officials.
"There are going to be some outlaws," said Jack Boller, Washington state coordinator for the EPA's hazardous-waste program.
"It is important that (Ecology officials) follow through and figure out how to collect on the penalties."
Unlike its state counterpart, the EPA can shut down businesses deemed serious offenders. The federal agency also tends to impose bigger penalties.
"I know there is a perception out there that the federal government is more powerful than the state," Boller said.
In some cases, polluting businesses "just kind of blow the state off, and I come out there and say one word and they do it," he said.
But unlike the EPA, Ecology deals with the bulk of the state's small businesses. Most operate on slim profit margins, making a sizable fine a major blow.
Ecology is also under mounting pressure to be more business-friendly, as a panel appointed by Gov. Gary Locke recently recommended. There is also political heat: Lawmakers have been known to intervene on behalf of local companies facing pollution penalties.
John Nagle's saga started in 1995, when he took over Glenoma Farms and began preparing to raise fish. He thought the business, which had been in operation under a previous owner, was "grandfathered in" and therefore exempt from permits.
Ecology officials say they told Nagle that wasn't the case and later warned him in writing that "unauthorized discharge will be subject to legal actions and/or penalty."
Untreated water leaving fish farms is usually warmer and contains less oxygen and more ammonia and nutrients than fresh water. The contaminants are hazardous to fish and other aquatic organisms and can cause algal blooms.
Nagle applied for a permit to discharge water from his ponds, but when expensive tests were required, he withdrew the application. He opened the farm anyway, selling fish to restaurants.
Ecology got wind of the operation in 1998 and imposed the $120,000 fine.
"If we had been a pollution problem, I'd understand it," Nagle said in a recent interview. "We didn't dump or do anything."
He and his wife "raised healthy fish," shunning chemicals and medicated feed.
To Ecology, it was a blatant disregard for regulations. Investigator Greg Cloud said the impact downstream would have been "severe" if the farm had continued to expand, reaching its goal of producing 120,000 pounds of fish a year.
The fine has been turned over to a collection agency.
Nagle, who says he can't pay, called Ecology an enemy of small business.
"I don't think the fine system works at all," he said. "The big companies just pay it and write it off. It put us out of business."
Scofflaw's permits renewed
Many of the companies on the books for unpaid pollution fines continue to operate as usual.
Allied Aquatics, an Olympia pesticide company, owes $45,568 in fines dating back to 1989. The violations range from failing to notify residents before spraying lakes with herbicides to not waiting long enough between applications.
Owner Doug Dorling says his company was hammered for mostly minor transgressions, such as posting spraying notices on the wrong kind of paper. "We think it's extremely unfair," he said.
Ecology investigators say the company's violations were serious. Panicked residents called the agency when they realized their kids had been swimming in pesticide-treated water. They hadn't seen the poorly placed warning signs.
When the fines went unpaid, Ecology vowed to make an example of Allied Aquatics, filing a lawsuit in Thurston County Superior Court. In August, the court ordered Dorling to pay the penalty plus interest. Dorling still hasn't paid, but he but promises that he "definitely" intends to do so.
Allied Aquatics, meanwhile, is still spraying Northwest lakes. Since the company is now in compliance with environmental regulations, Ecology has renewed its permits.
Ecology and the state Attorney General's Office could have asked the Superior Court judge to find Dorling in contempt or seize his assets. Instead, the agencies took a softer route: Turning the matter over to a collection agency.
Big business pays up
The mysterious waste in the smoking Dumpster was so acidic that it melted a glass sampling rod.
When an employee at the Aberdeen waste facility examined the other contents, he found an assortment of hazardous materials, including paints and resins.
A label on a cardboard box led investigators to a Hoquiam yacht-building business.
Ecology investigators paid a visit and later slapped Sunchaser with a $17,000 fine for numerous environmental violations, including failing to identify and illegally disposing of hazardous waste.
The company argued that it had been open only a few months. Officials said that the acid waste wasn't theirs and that they were dealing with the dozens of drums of waste on the premises, saying it had been inherited in a company acquisition.
Since the citation, the company's owner died in a car accident. The business has closed, leaving the penalties unpaid.
Another company that has since folded owes the most in pollution fines -- nearly $500,000. CleanCare Corp. accepted hazardous waste from industry for recycling or disposal. Now its property is a federal cleanup site, and $4.3 million has been spent on restoration so far.
For the most part, large corporations pay their fines -- and pay them often. Weyerhaeuser Co., Kaiser Aluminum and Chemical Corp. and Longview Fibre Co. have each received more than a dozen fines since 1997, all of which appear to have been paid. Most were paid in full.
Environmentalists say it is cheaper for big businesses to keep breaking rules and paying fines than to make improvements, but company officials insist that's not true.
"We don't view it as a cost of doing business," Weyerhaeuser spokeswoman Kathy Budinick said. "We really do take our environmental performance extremely seriously."
When it come to making offenders pay, Fitzsimmons insists that "the system is working."
If violators ultimately comply with the regulations, that's more important than collecting fines, he said. It's not cost-effective to chase down all the unpaid penalties.
Critics aren't clamoring for the creation of new powers for Ecology, but Lea Miller of the Public Employees for Environmental Responsibility is urging the department to clarify enforcement policies, turn more cases over to collections and the courts and reinstate the position of statewide enforcement coordinator. Ecology should also beef up its criminal division, she said, and let the public know which companies aren't paying.
"If there's no bite to follow the bark, you're really limiting your effectiveness," Mitchell said.
P-I reporter Lisa Stiffler can be reached at 206-448-8042 or lisastiffler@seattlepi.com
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