A Case History of EPA Overkill
Wiener, Norman J., Olsen, Clifford B., Hodson, Jerry B., Environmental Law
In July 1993, Environmental Protection Agency (EPA) Chief Carol Browner announced that EPA, through the Department of Justice (DOJ), had filed twenty-four civil lawsuits throughout the United States, demanding millions of dollars in penalties for violations of federal environmental statutes and regulations. In her words, "We're not going to tolerate that kind of behavior. We continue to have companies that think environmental laws don't apply to them, and that is unacceptable."(1)
This is the case history of one of those twenty-four lawsuits.
It also is a story of environmental overkill, one that cries for a reduction in federal regulation of localized environmental problems.
Taylor Lumber and Treating, Inc. (Taylor), the government's ostensible target, is a small, closely held Oregon corporation (the only two stockholders are sisters) that owns and operates a sawmill and wood treating plant in Sheridan, Oregon. Sheridan is more than a wide stop on a rural road, but not much more. Optimistically, it has a population of 7500; the nearest city of any size is the state capital of Salem, some 30 miles to the east as the crow flies. Sheridan's main claims to fame are that the community hosts an annual Phil Sheridan festival and is the site of a major federal correctional institution.
Taylor began its sawmill operation in the late 1940s and its wood treating plant operation in the 1960s. Its labor force was and is small by national standards, ranging from 115 to 135, depending upon the time of year and the status of the market for its products.
Taylor had long been environmentally conscious, even before that attitude was influenced by such federal laws as NEPA,(2) RCRA,(3) CERCLA Superfund),(4) the Clean Air Act,(5) and the Clean Water Act.(6) It consistently and conscientiously followed the rules and regulations of the Oregon Department of Environmental Quality (DEQ) and for many years was regulated solely by that state agency. Under DEQ, Taylor had begun the process of environmental cleanup at its Sheridan facility, addressing surface contamination from its wood treating operation.
However, Taylor's progress halted when EPA became active in the early 1980s, and particularly in 1988 and 1989 when EPA began making threatening moves to place Taylor on its Superfund list. New EPA rules promulgated in 1990 under RCRA regulating the use of chemicals in wood treating plants further complicated Taylor's progress toward cleanup.(7) One complication was that the new EPA rules had no relationship whatsoever to EPA's Superfund process, which was established to clean up the nation's worst abandoned sites.(8) Taylor's facility was still operating, and Taylor's express goal was to clean up the site and comply with environmental regulations.
To add fuel to the coals kindled by EPA involvement, an incident occurred in 1990 that was to have far reaching effect on the regulatory process then under way.
In August 1990, DEQ received an anonymous report that some eight years earlier Taylor had buried a number of barrels containing toxic wastes in an abandoned, concrete-lined, water storage area (the "vault" at its treating plant. Investigation by the current plant manager disclosed that the report was partially correct. Taylor immediately employed an environmental cleanup firm to reopen the vault and remove and properly dispose of any toxic material. Numerous barrels containing waste (sludge) as well as wood and other debris from the treating plant yard were discovered and removed. After decontaminating the vault, Taylor's experts were satisfied that none of the toxic material in the vault had entered the environment.(9) In ordinary English--no harm, no damage.(10)
Taylor, however, did not stop at just cleaning the vault. To comply with the new EPA wood treating rules, Taylor spent over $1.2 million in 1991 to build a state-of-the-art "drip pad" at its treating plant. …