July 18, 1997 in Nation/World

Polluter ‘Skated,’ Critics Say Erased Fine Sends Wrong Message, Say Advocates Of Community Health

By The Spokesman-Review
 

A judge’s decision to erase a $495,000 fine against a man who violated several environmental laws demoralized Panhandle Health District and sends the wrong message to polluters, state and federal officials say.

“It sounds a little disturbing to me,” said Richard McAllister, an enforcement attorney for the Environmental Protection Agency. “It may be letting one guy off and sending another message to a whole community.”

Wednesday, District Judge Craig Kosonen’s rescinded a fine he imposed against John A. Hern Jr. last November. Hern owns the only business Panhandle Health District has taken to court in at least a dozen years.

McAllister said businesses are more likely to take the risk of breaking the law when they know a fine will be low.

“What kind of inequities arise by one person thumbing his nose while the other good citizens comply?” McAllister asked.

EPA administers and resolves most fines through its administrative process and not through the courts. The agency was not involved in the Hern case. In 1996, EPA’s Seattle-based office fined 28 companies for water pollution.

The fines often were reduced, but an entire fine was waived in only one case. When there were significant reductions, the company in question usually had to spend some of the forgiven fine on environmental projects.

Hern’s attorney, John Magnuson, argued that the $495,000 fine was far above Hern’s ability to pay. That’s an important consideration, McAllister said.

“But some people go about their business in such a poor way they should be bankrupted … they shouldn’t be allowed to go on,” he said.

Hern could not be reached for comment.

Dennis Hamann, who has served on Panhandle Health’s board of directors for 20 years, said the public may interpret Kosonen’s decision to mean other businesses can skate on environmental violations. In reality, however, “I would be willing to bet if somebody else tries it, (Panhandle Health) isn’t going to turn their backs and walk away.”

Intervention by the Kootenai County commissioners on behalf of Hern, “proves Panhandle Health was the only one willing to stand up for the rules and regulations,” Hamann said.

Judge Kosonen’s decision ended a three-year battle between Panhandle Health and Hern. The agency said Hern refused to provide a list of hazardous materials stored and used on his 32-industrial park on Atlas Road. That industrial park includes Hern Ironworks, a metal coating company, a fertilizer company and a road oiling business.

Hern also refused to allow inspectors on his property, forcing Panhandle Health to get a court order and a law enforcement escort. During the inspection, Panhandle Health discovered some bathrooms draining directly to the ground above the aquifer, according health district records. Other bathrooms were piped into buried 55-gallon drums.

Panhandle Health sued to bring Hern into compliance. In the fall of 1995, the agency asked the court to decide at least part of the case. After considering the matter for a year, Kosonen levied the $495,000 fine - about 10 percent of the maximum possible penalty.

The Kootenai County commissioners were angered when they heard about the fine and threatened Panhandle Health’s funding. As a result, Panhandle Health agreed not to oppose Hern’s motion to have the fine reduced and agreed to drop its request for $9,000 in enforcement costs.

Wednesday, Kosonen erased the fine and ordered Hern to pay $19,975 in attorneys fees.

That decision will be demoralizing for the staff who have worked diligently to do the right thing, Hamann said. “To have everything pulled away and a slap on the wrist is very frustrating,” he said.

Panhandle Health is responsible for public health and environmental programs in the five counties of North Idaho. It answers to a seven-member board of directors appointed by the county commissioners from those five counties.

A representative from each commission votes to approve Panhandle Health’s budget and that is key in getting matching funds.

This influence clearly has had some affect on Panhandle Health’s enforcement, an attorney for the health district said. Panhandle Health’s attorney, Scott Reed, told the judge the agency “realizes they are dependent upon the counties.”

And Kootenai County Commissioner Ron Rankin made the unusual move of providing an affidavit supporting Hern’s request for a lower fine.

“When I see him, I want to personally thank Judge Kosonen,” Rankin said.

Health district director Larry Belmont says the judge’s decision sends the message to potential violators “that we are persistent.” In addition, “I think it proves it’s not worth the hassle” to fight the health district.

But he declined to comment about the commissioners’ influence in the matter.

, DataTimes


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