Lately, the federal EPA has been taking a very strong stand against water polluters. Most of us have no problem with the EPA taking a strong stand on this issue. Water pollution has, after all, been a tremendous problem in this country. And in the last two decades, much progress has been made in addressing some of the Country's most polluted water bodies.

We remember, for example, that a river in Cleveland was once so polluted that it used to catch on fire. Now, as a result of government required cleanups, that river is fire-free. In fact, it is clean and supports river-front development. This is success of which we can all be proud. And the EPA should be praised.

Clearly, the EPA does not want to back track. So, penalties, and even jail sentences are now being imposed on individuals, companies and governments determined to have polluted the waters.

Certainly, serious penalties for water polluters make sense and intentional wrongdoers must be dealt with severely. Case in point: recently a Pennsylvania sewage treatment operator pleaded guilty to allowing untreated sewage to discharge into a creek. Supposedly, this conduct was intentional and the operator faces up to seven years in jail as well as a hefty penalty.

Another recent example of alleged intentional conduct involved a chemical manufacturer who allegedly intentionally poured a substantial volume of acid into a creek, killing 3,000 fish. He faces a hefty fine and some prison time. These kinds of sentences make sense for intentional conduct. And the EPA is chasing after these kinds of penalties.

However, might it be that the EPA is now going too far in its quest for penalties? For example, does it makes sense to punish government agencies for what appear to be little more than sloppy practices. And does it make sense to punish companies for actions which have been approved by the pertinent State environmental agencies?

Recently, a Virginia sewage authority was convicted of the improper operation and maintenance of a wastewater treatment facility which resulted in water contamination. That tax-payer supported government agency was fined one million dollars.

Just recently, the City of Baltimore settled a case brought by the EPA for another million dollar penalty. The Feds alleged that a Baltimore sewage treatment plant exceeded certain levels of pollutants. Baltimore will have to donate another few million to public service programs.

Does it make sense for the government to sue the government for monetary penalties? I have never believed that this makes any sense at all. One reason this is done is because regulators "look good" if they bring in penalty money. They can justify their jobs by showing how much revenue they produce.

Another reason this practice is fashionable is because it attracts press attention and it makes the EPA appear to be pro-active and productive. While prosecutors often resort to such media attention-getting tactics, the price here seems to be too high.

If in fact a government is misoperating a sewer plant so that it is polluting, the federal government's first reaction should be to bring the plant into compliance. If the plant falls into compliance and no one was trying to break the law, that should be the end of the story.

If there are intentional or repetitive law-breakers, they should be individually punished. In some rare cases, they should be sent to prison. More often than not, the operators should be either fined, disciplined, or have their operator permits lifted.

But fining the local government does nothing productive at all. When the government fines the government, who do you think really pays? The really innocent homeowners and business owners in the sewer district are made to pay. They did nothing wrong, but now they are being punished. Does this result promote a safer environment? Obviously not.

Private companies are being unfairly picked on as well. Recently, a federal appeals court upheld a $12.6 million penalty against a food processor for exceeding water pollution discharge permit levels. The company's defense was, objectively speaking, reasonable. The company admitted that it exceeded its permit levels, but pointed out that the State had entered into an agreement with the company which allowed it to discharge above permit levels. And then, some federal bureaucrat interfered with this legal deal and filed suit. How is this fair? The company did what the State said it could do --only to have the feds file suit and win.

Penalties against water polluters by the federal government make a lot of sense when they are fair and appropriate. But, where they are imposed to make headlines, without regard to the merits of the particular case at hand, is a bad practice. Penalties against government entities, and against companies that have already reached agreement with the States, are an abuse of the EPA's enforcement discretion.

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Published: November 18, 1999

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Editor's Note: This article reflects the opinions of Stuart Lieberman only and not necessarily the views of this or any other publication, organization or Website owner.

Stuart Lieberman, Esq. writes about environmental issues. He was a New Jersey Deputy Attorney General assigned to the State Department of Environmental Protection from 1986 to 1990. Currently he is a shareholder in the environmental law firm of Lieberman & Blecher, P.C., located in Princeton, New Jersey. Stuart can be reached at slieberman@liebermanblecher.com.