By
FRANK CARINI/ecoRI News staff
Let them do their jobs |
PROVIDENCE — In mid-January, at a Statehouse press conference, Rhode Island’s largest environmental advocacy group, along with an unlikely ally, the state’s builders association, called for better enforcement of environmental laws. The pleas sounded like an echo from 1991.
Twenty-five
years earlier, that same advocacy group, Save The Bay, had made basically the
same request. In a report titled “It Pays to Pollute: Environmental Law
Enforcement in Rhode Island,” the nonprofit painted a picture of lax
enforcement, paltry fines, a backlog of enforcement cases, little
follow-through and poor record keeping by the Rhode Island Department of
Environmental Management (DEM).
For
instance, the report noted that from 1988 through 1990 DEM’s Solid Waste
Division “collected only one-half of one percent of the fines it assessed,
leaving $136,250 in polluters’ pockets.” The report found that while penalties
issued by DEM increased between 1988 and 1990, fine collection dropped from 24
percent to 14 percent, forgiving some $2.1 million in penalties.
The 16-page report also used a few case studies to illustrate the agency’s alleged dysfunction. In October 1989, a North Providence jewelry-plating operation was issued a notice that contained six violations, including three drums of hazardous material being left in a parking lot, and about 25 unattended, open and unlabeled barrels containing metal-laden liquid sludge. The business was fined $9,200, but the fine was reduced to $4,800 without a formal hearing.
After
DEM cleared the company’s violations, in May 1990, the business began failing
to submit mandatory manifests of off-site shipment of hazardous waste. DEM
never looked into those infractions, according to the report.
Another
case study described how a Cumberland disposal company, run by a local
father-son duo, was illegally dumping household waste it had collected from the
town — material destined for the Central Landfill — on their property to avoid
paying tipping fees. The company also was charging out-of-town and out-of-state
haulers to dump waste illegally on the property.
The
father and son were charged with seven criminal counts of solid-waste
violations, with each violation carrying a maximum sentence of a $5,000 fine
and/or five years in prison. They were fined a combined total of $5,250, with
no jail time. The penalty for such serious offenses amounted to less than 3
percent of the profits made by the company during its six months of illegal
commercial dumping. The report estimated that the illegal operation generated
$182,500.
The
1991 Save The Bay report concluded that DEM had “seriously eroded the
credibility of environmental law in Rhode Island.” It also claimed that the
agency’s “forgive-and-forget enforcement approach is failing to protect the
environment and public health.”
ecoRI
News recently spoke with several former DEM employees — some on the record and
others off — and they admitted that, at that time of the report and before, the
agency was plagued by inconsistencies, mainly because of political influence
and lack of strong leadership. They also noted that the building boom of the
late 1980s and early ’90s drove many people to develop, often before getting
state approval, or never even bothering.
“It
was the construction era ... build, build, build,” said Catherine Hall, who
worked as a DEM attorney for 10 years. “Everyone in the country was making
money on their land. It was basically, ‘I can make money on my land, and you
can’t stop me.’”
Then,
of course, there were the notorious blue dots — coin-sized stickers affixed to
cases that suggested a higher power had a special interest, usually someone
from the governor’s office or from somewhere else within the marbled halls of
the Statehouse.
“This
meant we were to view this file from a different lens,” said Dean Albro, who,
after more than three decades at DEM, retired in 2008 as the agency’s Office of
Compliance & Inspection chief. “Senators, representatives, even judges
called individuals at the department to ask about specific cases. If they
didn’t get what they wanted, they’d be pissed.”
Bad business
Jump
ahead two-plus decades, and many of the same concerns about Rhode Island’s
environmental protections linger, and many of the state’s elected leaders
continue to brush off the idea that protecting the environment and investing in
healthy ecosystems has the dual benefit of protecting public health and
sustaining the economy.
The
one main difference now is that environmental groups aren’t the only ones
expressing concern. The state’s historic lack of adequate environmental
enforcement has long left complying businesses at an economic disadvantage, and
those business are beginning to speak up.
At
the Jan. 14 Save The Bay press conference, David Caldwell Jr., vice president
of the Rhode Island Builders Association, said weak
regulation enforcement hurts the environment and the businesses playing by the
rules.
“Unfortunately,
the urgent problems caused by people not doing the right thing can consume a
great deal of resources,” he said. “We’re all part of the same economic system,
and in order to succeed we have to work together. ”
Caldwell
said he would like to see improved efficiencies within DEM and the Coastal
Resources Management Council (CRMC), to speed up the processing of applications
and permits.
“There’s
stacks of paper waiting to be approved while some business are polluting the
bay,” Caldwell said. “I’d like to see a healthy economy and a better
environment. The better we dedicate resources to enforcement, the better we are
for it and the better the economy will grow.”
Save
The Bay executive director Jonathan Stone called on the governor to increase
DEM and CRMC funding, so the agencies might better enforce the laws that
protect Narragansett Bay and the rest of the state’s natural resources.
Stone
noted that CRMC has just two employees to enforce environmental laws along
Rhode Island’s nearly 400 miles of coastline. During the past decade DEM
staffing levels in the offices of Water, Compliance & Inspection and Legal
have been reduced by between 25 percent and 37 percent, he said.
Last
year, DEM full-time staffing was capped at 399. A little more than a decade
ago, the agency had 650 employees. DEM currently has a backlog of about 150
unresolved enforcement cases, according to Save The Bay.
“It
is not a request that people generally rally around,” Stone said. “Enforcement
is often viewed as anti-business. Nothing could be further from the truth.
Timely, fair and consistent enforcement is important, not only to protect our
natural resources, but also to support our economic growth.”
Save
The Bay also delivered a petition, signed by
1,174 residents representing all 39 Rhode Island cities and towns, to Gov. Gina
Raimondo. The petition read, in part: “Furthermore, as a taxpayer, I don’t want
to pay the price of cleaning up pollution by others — pollution that could have
been prevented with timely enforcement of environmental laws.”
“I
ask you to think about what kind of a state you want to live in,” Stone said.
“A state where polluters profit by violating the law, or a state where everyone
plays by the same rules?”
Efficient
enforcement
Louise
Durfee arrived at DEM the same year Save The Bay released its scathing 16-page
report chronicling the agency’s lackadaisical approach to enforcement.
From
1991 until then-Gov. Bruce Sundlun fired her in 1994, for her differing views
regarding the agency’s budgetary needs, the well-respected attorney had,
according to former DEM employees, eliminated the agency’s backlog of cases,
made the agency more transparent, and improved regulation enforcement and
agency efficiency.
“Those
were fantastic years,” said Albro, whose DEM career began in 1977. “The agency
was open and transparent, and regulations were being fairly enforced. We had
little legal resources up to then. There was only a short time when DEM was
truly enforcing environmental laws and that’s when Louise was the director.”
In
an interview with Durfee last year, she told ecoRI News that
during her tenure as DEM director she saw firsthand the impact budget cuts and
staffing reductions had on enforcement. She also noted she regularly received
calls from legislators politely asking why this or that project was being held
up — subtle nudges, minus the blue dots, to move a project along.
“I
always knew Louise had my back, and after she left, I never felt like that
again,” said Brian Wagner, a former DEM legal counsel whose 16-year career with
the agency began in mid-1991. “It was like finding someone sawing the branch
out from underneath you.”
When
Wagner began working at DEM, he was one of 10 full-time attorneys. The agency
also contracted with two others. Last year, the agency employed six attorneys.
“We
had all the work we could handle,” Wagner said of the early 1990s. “We brought
in money — the penalties and fines largely paid for the work we did. We only
sent out notices of violation that were iron clad.”
Hall,
a DEM attorney throughout the 1990s, said under Durfee’s fair-but-tough
leadership staff wasn’t permitted to waste agency and court time, or taxpayer
money.
“We
didn’t take bad cases to court,” she said. “We didn’t want to waste judicial
resources and get a reputation for bringing in bad cases. It was our obligation
to bring solid cases, to build credibility in the courts and with the public.”
Hall
said the agency and, in particular, its director face an “intense amount of
political pressure to look the other way, because everyone in this state always
knows someone.”
Two
years after Durfee was fired — by the same governor who once gathered all of
the DEM employees together to tell them they “were getting in the way of
business and economic growth” — a special commission was created to investigate
the agency.
Dumping ground
The Special Legislative Commission to Study the Department of
Environmental Management was created in 1996, by a resolution
introduced by representatives Brian Kennedy (still in office), Charles Knowles,
Scott Rabideau, Eileen Naughton (still in office) and Sandy Barone.
The
commission spent two years investigating the agency and questioning, some would
argue interrogating, its staff. Basically, this collection of a dozen or so
legislators, which would eventually come to be known as the “Kennedy
Commission,” after its Realtor chairman, gave businesses and property owners a
stage to air any and all grievances against the agency tasked with protecting
Rhode Island’s environment.
Former
DEM employees have called the ordeal a “witch hunt.”
“Throughout
the legislative hearings, the tone was very critical of DEM having a criminal
investigative office despite the fact that the Clean Air Act, Hazardous Waste
Act, Clean Water Act and Solid Waste Disposal Act all had clear criminal
violation components as did the federal laws and EPA,” Albro wrote in an e-mail
to ecoRI News last month.
Rep.
Eileen Naughton, D-Warwick, disagreed with that assessment, telling ecoRI News
recently that the commission was warranted and fair. She said there were many
outstanding issues with DEM at the time, including the agency handing out too
many notices of violation and “taking forever to issue permits.”
“DEM,
at that time, wasn’t following the system of justice,” said Naughton, who spoke
passionately about environmental protections during an hour-long conversation
with ecoRI News prior Gov. Gina Raimondo’s Feb. 2 State of the State address.
“The agency was inappropriately gathering information and cases were getting
knocked out of court.”
The Kennedy Commission,
according to various media reports from that time, was attempting to reorganize
the agency. The local chapter of the Sierra Club even filed a complaint with
the state attorney general, accusing the commission of violating Rhode Island’s
open-meetings law by secretly negotiating with then-Gov. Lincoln Almond’s staff
over its bill to restructure DEM.
Environmentalists,
such as local Sierra Club members and Paul Beaudette, president of the Environment Council of Rhode Island at
the time, saw the commission and the various legislation it sponsored as an
attempt by the General Assembly to take enforcement responsibilities away from
DEM and assign it to other agencies then controlled by the Legislature, such as
CRMC.
Beaudette
said the commission’s work was about consolidating DEM’s environmental programs
and gutting the agency’s ability to prosecute wetlands violators.
“It
was a power grab,” he told ecoRI News last month. “It didn’t happen just
because Kennedy wanted it to happen. That was a major commission. The General
Assembly gave it the green light.”
Four
months after the commission’s first meeting, on Oct. 9, 1996, Kennedy,
D-Hopkinton, filed a bill that would grant subpoena power to all commissions
and committees created by the General Assembly. Individuals who failed or
refused to comply with a commission subpoena could face a court hearing and, if
judged in contempt, committed to the ACI until such time that he or she abides
by the subpoena, according to Kennedy’s January 1997 bill.
Albro
said, in his humble opinion, he believed the message the commission was trying
to send was that DEM shouldn’t be investigating property owners — even if toxic
pesticides had disappeared from a farm; underground fuel storage tanks had
never been checked for leaks; ducks were swimming around a foundation illegally
poured too close to a wetland; a farmer had dumped 20,000 cubic yards of
rotting clams, as fertilizer, that had stunk up a neighborhood; an illegal road
was built through farmland to get to an industrial park to be built illegally
on wetlands; or someone had illegally buried nearly 35 tons of asphalt shingles
in a residential lot.
Rep.
Kennedy, the commission’s chairman, helped broker the sale of the
aforementioned illegal dump site, in October 1996. The elected representative,
the owner of Kennedy Realty Appraisal, sold the Hopkinton home of his brother
Kevin, a contractor, to a couple who didn’t know tons of asphalt singles were
buried in their new yard. In fact, they were assured there was no hazardous
material on the property.
Three
days before buying the Highview Avenue home, the couple said Brian Kennedy
presented them with a real-estate disclosure form and explained each step,
including the two lines that dealt with hazardous materials, according to an
April 11, 1998 story in The Providence Journal-Bulletin.
State
Police would eventually charge Kevin Kennedy with two felony counts of
illegally dumping solid waste.
Police said the 34.8 tons of shingles Kennedy buried in his yard came from roofing jobs done by a company owned by his father, who lived in the same Ashaway, a village in Hopkinton, home as Brian Kennedy.
Police said the 34.8 tons of shingles Kennedy buried in his yard came from roofing jobs done by a company owned by his father, who lived in the same Ashaway, a village in Hopkinton, home as Brian Kennedy.
On
the night of his brother’s arrest, in April 1998, Brian Kennedy told The
Providence Journal-Bulletin he would have no comment because the case didn’t
involve him or his two-year campaign to reorganize DEM.
A
year earlier, then-DEM director Timothy Keeney called The Providence
Journal-Bulletin to complain that Rep. Kennedy had tried to intimidate one of
the agency’s environmental scientists over the employee’s handling of two
unrelated solid-waste cases. Keeney claimed that Kennedy threatened to call the
employee before his commission.
Kennedy
didn’t respond to several messages, left via e-mail and voice mail, and through
the General Assembly publicist, to comment for this story.
Airing of grievances
For
those who were called to testify, under oath, before the Kennedy Commission, it
was often a long, grueling day that typically started around 2 or 3 p.m. and
could last well into the night. They were often accused by members of the
commission of being less than cooperative.
“We
had to be careful of what we said because some of the cases were in the
courts,” Hall said. “Legislators took that as being uncooperative. We were very
careful in not trying to come across as difficult, but we were dragged in to
testify about cases that were still in court.”
Both
Hall and Albro had to testify multiple times. They recalled that prior to some
commission hearings Statehouse hallways were lined with people waving flags.
Parked outside the Statehouse during these hearings were cars decorated with
red and yellow bumper stickers that proclaimed: “The DEM is Out of Control.”
Once
a hearing began, DEM staffers had to listen to hours of complaints from, among
others: business owners, many of the real-estate variety; neighbors of a North
Kingstown landfill; property owners, some of whom had previously been put on
notice by the agency; Kennedy constituents; neighbors of a junkyard in Warren;
farmers who had allegedly altered wetlands; and a frustrated recreational
fishermen from East Providence. Some had legitimate issues; others just took
advantage of the opportunity to grind an ax.
DEM
employees were called indifferent and agency rules stupid. The hours worked by
at least one DEM employee were scrutinized. Agency staff unable to testify at
scheduled commission hearings, because of prior commitments, were scolded.
“We
never knew what was going to come up ... the topics jumped around and issues
would come out of the blue,” Hall said. “The commission had no plan. There was
no purpose to it, except the General Assembly basically saying, ‘We are
watching you, and we don’t believe in enforcement.’”
Rep.
Naughton, a member of that long-ago commission, said its purpose was about
educating the public. “What we were trying to do was say basically help us
teach the public to be stewards of the environment,” she said. “A lot of it was
disagreements with farmers.”
The
conversation, however, likely would have been more constructive without the
name-calling.
On
several occasions during the commission’s two-year investigation, DEM and its
employees were compared to the Gestapo.
In a letter stamped Jan. 31, 1997 to Chairman Kennedy, Susan Arnold, legal counsel for the Rhode Island Association of REALTORS Inc., wrote: “Although we believe DEM’s actions have, for the most part, been motivated by legitimate environmental concern, DEM has functioned, at times, as an environmental gestapo.”
In a letter stamped Jan. 31, 1997 to Chairman Kennedy, Susan Arnold, legal counsel for the Rhode Island Association of REALTORS Inc., wrote: “Although we believe DEM’s actions have, for the most part, been motivated by legitimate environmental concern, DEM has functioned, at times, as an environmental gestapo.”
The
association, in various written testimony to the Kennedy Commission, noted
that: “DEM must respect property rights, not only development property rights,
but financial property rights” and “DEM must establish an institutional culture
that in the regulation of the environment, property owners have equal rights
with winged, four-footed and finned creatures.”
Kennedy
is a member of the Rhode Island Association of REALTORS, according to the
representative’s website. In a March 31,
1998 editorial, The Providence Journal-Bulletin said Kennedy “has become a
one-man demolition squad against efforts to protect the natural beauty of Rhode
Island.” The editorial was written in response to a bill that Kennedy had
recently co-sponsored that would have permitted off-road motorcycles on all
recognized state bridle and hiking trails.
In
a letter dated Jan. 29, 1997 to Chairman Kennedy, his real-estate colleagues
wrote: “We find that property owners are perceived by DEM permitting officials
to be second class citizens and their efforts to develop their property are
treated as contrary to the general welfare. This construct has been fostered by
DEM study commissions stacked with environmentalists and state and federal
environmental officials who oppose private property rights.’”
That
Jan. 29 letter from the Rhode Island Association of REALTORS, however, failed
to mention that Common Cause Rhode Island and the
Environment Council of Rhode Island had just begun to address the
conflict-of-interest problems created by Rhode Island legislators sitting on
dozens of state boards and commissions, such as CRMC.
This
separation-of-powers fight went all the way up to the Rhode Island Supreme Court and lasted for
more than a decade. Changes were eventually made to state boards and
commissions, including CRMC, despite the best efforts of many in the General
Assembly.
Legacy of nonsupport
Since
the release of Save The Bay’s 1991 report and its press conference last month,
little has changed in terms of financial support and agency empowerment granted
by legislators and governors to better protect Rhode Island's natural
resources.
The
two-year Kennedy inquisition, however, likely accomplished exactly what was
intended, even if those intentions were only discussed behind closed doors: put
Rhode Island’s environmental regulatory agency on the defensive, vilify state
employees and make the agency afraid to do its job.
The
General Assembly has never directly controlled DEM, but it does control the
agency’s budget.
The historic use of that weapon, along with political power plays, such as the Kennedy Commission, have essentially neutered the agency, according to many in the local environmental community.
The historic use of that weapon, along with political power plays, such as the Kennedy Commission, have essentially neutered the agency, according to many in the local environmental community.
“Politics
destroyed the credibility of a hard-working agency,” said former DEM attorney
Hall, speaking about the Kennedy Commission. “Blatant violation of
environmental law is OK. Just keep complaining and someone will eventually rule
in your favor.”
The
equitable enforcement of environmental protections requires staffing, funding
and political will. Rhode Island has lacked all three for quite some time.
DEM
staffing cuts became such a concern in the late 1990s that the Environmental
Protection Agency (EPA) took notice. In a five-page letter to Gov. Almond in
January 1997, an EPA regional administrator expressed his “grave concern
regarding the ability and capacity” of the agency “to effectively administer
federal environmental laws and regulations in Rhode Island.”
He
wrote that his concern is based on a “disturbing trend of budget cuts and staff
reductions at DEM which make it difficult, if not impossible, for DEM to
adequately administer environmental and public health protection programs.”
The
Statehouse's shortsighted tradition of playing puppet master with the state
agencies that protect the Ocean State’s environment and natural resources
ignores the importance of healthy ecosystems, to both the economy and public
health. It also burdens taxpayers when the time inevitably comes to clean up a
mess.
Perhaps
this is the year Rhode Island begins to turn away from this failing tradition.
Gov. Raimondo’s fiscal 2017 budget adds an environmental scientist and a lawyer
to DEM’s enforcement staff.
Her proposed budget includes issuing $35 million in bonds to preserve open space, extend bike paths, reduce water pollution and fund other work to protect the environment.
It also would allocate $100,000 to the University of Rhode Island for the creation of a center to advise municipalities on dealing with rising waters and other climate-change impacts.
Her proposed budget includes issuing $35 million in bonds to preserve open space, extend bike paths, reduce water pollution and fund other work to protect the environment.
It also would allocate $100,000 to the University of Rhode Island for the creation of a center to advise municipalities on dealing with rising waters and other climate-change impacts.
That
type of collaboration is what Rep. Naughton believes Rhode Island needs to
protect its natural resources. She said DEM and CRMC must work more closely
together, and that they both need to partner better with institutions such as
URI and Roger Williams University.
She
preached outreach over enforcement. She supports rain gardens, peer pressure,
incentives, and science and technology over notices of violation. She said
there's a lack of political will, and DEM creativity, when it comes to
environmental protections.
“Can
you get excited about a book full of regulations? But you can get excited about
being shown what you can do,” Naughton said. “Most people, I'd say 97 percent,
want to be stewards of the environment. Enforcement should be the last resort
for people who don’t want to learn.”
Like
proper enforcement, training and teaching property owners and businesses to be
more environmentally aware, and organizing and managing projects that protect
natural resources requires funding and staffing. That kind of work can't be
accomplished adequately by relying on environmentalists and the conscientious
to donate their time and talents. Homeowners and businesses shouldn't need
incentives to avoid contaminating shared waters.
Besides,
funding and staffing are just two-thirds of a judicious environmental
protection/enforcement formula. Political will is the remaining third, and
without it, the state is just wasting taxpayer money and people’s time.
For
instance, for the past five-plus years, the state has allowed a waterfront
metals recycler in Providence to contaminate the Providence River and upper
Narragansett Bay with polluted runoff and fuel from derelict vessels the
company has no business storing. The business opened in 2009 without many of
the required permits, including the one needed to conduct crushing operations.
Egregious
flouting of environmental law like that most assuredly has been influenced by
politics.
The
low price of scrap metal, not the state, is slowly shutting down the illegal
operation, which will then leave behind an ongoing pollution problem and
a huge clean-up bill that
could end up costing taxpayers millions. The property is a former Superfund
site taxpayers already helped clean up once.
The
current system is working just as the Statehouse long ago rigged it.
ecoRI
News staffer Tim Faulkner contributed to this report.