Testimony at the Maine Legislature
by Jon Hinck, NRCM toxics project director
Senator Cowger. Representative Koffman. Members of the Natural Resources Committee. My name is Jon Hinck. I am Staff Attorney and Toxics Project Director for the Natural Resources Council of Maine. The Council opposes LD 682.
The ancient Roman poet and soldier Horace warned that laws without morals are useless (“leges sine moribus vanae.”) This is no doubt true today. We have learned something else in the intervening two thousand years that is also certainly true: laws without effective enforcement are also useless and accomplish nothing.
Although the intent of LD 682 may be merely to rein in perceived arbitrary or overly punitive environmental penalties, the bill goes well beyond that. It proposes to make two major changes to the current enforcement program. Passage of these measures would seriously setback efforts to achieve the purposes of Maine’s key environmental laws.
As I said, if enacted, this bill undermines two provisions of current law governing environmental enforcement. The first proposes a short statute of limitations that would bar enforcement actions after five years. The second provision would cap the total civil penalty for a violation at $10,000 and criminal penalty at $25,000 instead of the current caps of $10,000 and $25,000 per day respectively. These are not small changes.
1. A Five Year Statute of Limitations Would Impede Both Enforcement Actions and Negotiated Settlements. The first glaring problem with an arbitrary five year statute of limitations is that many serious environmental violations are not discovered or even discoverable within five years. Take the example of a waste generator that illegally buries drums of chlorinated solvents in the back forty. The State may only learn of the illegal acts after the drums are corroded through and the deadly waste has migrated underground for a mile or two before being detected by laboratory tests of community drinking water. Why would we tie the hands of the watchdogs in such a case?
Even when the Agency learns of a violation immediately, the practice in Maine has shown that an arbitrary statute of limitations would not serve the public interest. Each year, DEP records hundreds of large and small violations of statutes and regulations within its jurisdiction. Under current practice, the Agency works with the violator to reach agreement on a resolution of the problem. Negotiations and final resolution take time. Typically, only the most uncooperative of violators face an enforcement action, and often these will cover a number of violations over a long time period. Ten years is not uncommon. Inserting a short statute of limitations in this regulatory environment would force unfortunate choices. On one hand, a time bar will mean that some violations will simply escape enforcement entirely; on the other hand, a new deadline will force the State to abandon negotiation and take more matters to court. With more time before reaching a deadline to go to court, litigation is frequently avoided.
2. The Option of Levying Penalties For Every Day of Non-Compliance Must Remain Available to State Environmental and Law Enforcement Officials. The second provision of the bill would impose a cap on the total civil fine for an environmental violation at $10,000. Criminal penalties would be capped at $25,000. These one-time penalties would replace current limits of the same size but for each day of non-compliance. A simple change of language from “each day of the violation” to “each violation” takes a chain saw to the enforcement landscape. This would be like limiting parking enforcement to a single $10 ticket for an illegally parked car. If that was done statewide, summer residents and others would leave second cars, their camp and recreational vehicles, on downtown streets all over Maine. They would just pay a $10 fine for parking all winter. What may seem like big fines for a small company that violates environmental law, for some waste handlers and air or water dischargers it would be a small price to continue a cheap, sloppy but money saving practice.
If severe limits on potential fines, like those proposed here, had been in place a decade ago, the Maine environment would undoubtedly be a less safe and generally dirtier place. Take the example of the now notorious HoltraChem chlor-alkali plant in Orrington. Among other processes, the plant used elemental mercury in the production of chlorine and hydrochloric acid. Even after the historically dirty plant was purchased in 1994 by a new owner it continued to leak and illegally discharge mercury-contaminated waste. In December 1997, after some 35 recent violations of state hazardous waste laws at the site, the DEP entered a consent agreement and enforcement order with the owner, which included a fine of $700,000. The agreement called for implementation of corrective measure and monitoring systems. Just over two months later the facility suffered another major spill of 20,000 gallons of mercury-contaminated waste (22 times the threshold for what is defined as hazardous under state rules). Almost a third of this waste flowed directly into the Penobscot River. It was only because DEP and the A.G.’s office had some the of enforcement tools available, including the threat of fines for every day of a violation, that the State was eventually able to gain control over this dangerous facility.
Sometimes a business operating in Maine violates the law intentionally, sometimes negligently. These can be serious and damaging events. Maine DEP and the State Attorney General need effective enforcement tools. Setting an arbitrary statute of limitations or doing away with the State’s ability to bring fines for each day a violation exists would create for some a license to pollute. At a time when environmental law enforcement is suffering budget cutbacks, such new limitations would only impede legitimate enforcement of vital laws that protect the air, land and water of Maine. Please do not adopt LD 682. Thank you for hearing my testimony on this matter.