INVESTIGATION: DEM’s Lax Enforcement Costs State Millions
Wednesday, January 11, 2012
Rhode Island lawmakers have led the nation in passing environmentally friendly laws in recent years, but the agency charged with taking action against polluters has failed to collect even a quarter of the total fines it has proposed over the last five years, according to data obtained by GoLocalProv through a Freedom of Information Act request.
Records show that between November 2006 and November 2011, the Department of Environmental Management (DEM) has proposed $7,218,595.44 in fines against 466 businesses, individuals and agencies, but the violators have only been forced to pay back $1,785,255.22.
More than half of the cases are still labeled as “open” by the DEM even though some companies have reached agreements and made payments, but of the cases that are considered “closed,” the agency has received only slightly more than 50 cents on the dollar for proposed fines totaling $2,116,380.
GET THE LATEST BREAKING NEWS HERE -- SIGN UP FOR GOLOCAL FREE DAILY EBLASTThe inability to collect on the fines, environmental leaders say, is a challenge for agencies across the country, but severe cuts in funding have especially decimated the Rhode Island agency, leaving fewer lawyers on staff to work cases against polluters.
The end result is often a consent agreement that generally comes with significantly smaller payouts to the agency, according to Tricia K. Jedele, Vice President and Director of the Conservation Law Foundation. In fact, of the 211 consent agreements filed over the last five years, violators have paid less than 40 percent of the $4,039,420.88 in total fines proposed by the DEM.
"The state needs to fund the level of enforcement and environmental protection it expects," Jedele said. "It's not enough to wait for the crisis to happen at this facility or this contamination site and then hire outside contract lawyers to help the state deal with these issues. There should be an ongoing presence at DEM."
Small Payoffs on Large Fines
According to the data provided to GoLocalprov, the DEM has proposed 27 fines that exceed $50,000 over the past five years for a series of offenses ranging from Clean Air Act violations to Clean Water Act infractions. Many violators paid less than half and in some cases, less than five percent of the amount the DEM originally proposed:
Calise Bakery in Lincoln – The business was fined $562,736 in 2010 after the DEM found it had installed and operated three natural gas ovens without applying for or receiving a minor source. The company paid $275,000, less than half of the original fine.
Patriot Hauling Company in Johnston – After finding a host of infractions, this repeat violator was found to be filling land with waste and operating an unlicensed solid waste management site. The DEM proposed a $300,000 fine to the company in 2008. It paid just $50,000 after reaching a consent agreement.
Richard J. DiSano of Cranston – The owner of a property that was storing hazardous waste without a permit for over 90 days was fined $97,616 in May 2008. In 2010, he reached a consent agreement to pay $2,500.
Sprague Energy Corp in Providence – This petroleum product facility was fined $73,750 for the “discharge of total suspended solids and oil & grease in violation of the limits in the permit and the failure to properly operate and maintain the oil/water separator.” In 2011, the company paid $21,250.
American Plating Company in Cranston – The DEM proposed a fine of $27,234 after the company was found to have committed several violations, ranging from a failure to label hazardous waste materials to a variety of administrative infractions. In 2011, the company paid $484, records show.
Leaving Money on the Table
The DEM did not respond to a request for comment regarding the large gap between the fines proposed by the agency and what it actually collects. But Sheila Dormody, the Director of Sustainability in Providence, said cuts have been a problem at DEM for as long as she can remember. In 2002, for example, the office of compliance and inspection had 45 full-time staff members. By 2010, that number had been reduced to 25.
As staffing has been slashed, so has the amount in fines proposed. In 2007, the agency proposed $1,948,670 in fines against 126 alleged polluters. Last year, the agency proposed just $774,983 in fines against 109 violators.
"I would put it squarely on the people that fund the budget with diminished resources every single year," Dormody said. “We have some of the best environmental laws in the country but DEM is really not capable on enforcing them.”
According to Dormody, who formerly served as the executive director for Clean Water Action, the cuts have allowed companies to consider whether compliance is more expensive than simply skirting the law. She noted that there is little incentive for actually following the rules.
"They have systematically cut back and there are two problems with that," Dormody said. "You're leaving money on the table and sending the exact wrong message to anyone doing business in Rhode Island."
States Drop Ball
But a lack of staffing isn’t the only problem states are facing when it comes to environmental protection According to a December report issued by the Environmental Protection Agency, states have also dropped the ball when it comes to enforcing laws.
The report noted that Rhode Island was among the worst in the country for enforcement actions related to the Clean Water Act and right around the national average for actions taken related to the Clean Air Act and the Resource Conservation and Recovery Act.
"EPA does not administer a consistent national enforcement program. Despite efforts by the Office of Enforcement and Compliance Assurance (OECA) and the EPA regions to improve state enforcement performance, state enforcement programs frequently do not meet national goals and states do not always take necessary enforcement actions," the report said. "State enforcement programs are underperforming: EPA data indicate that noncompliance is high and the level of enforcement is low. EPA does not consistently hold states accountable for meeting enforcement standards, has not set clear and consistent national benchmarks, and does not act effectively to curtail weak and inconsistent enforcement by states."
For State Representative Mike Chippendale, who sits on the House Environment and Natural Resources committee, the situation is “tricky.” As the self-proclaimed most conservative member of the committee, Chippendale said he is against excessive fines because it is that level of regulation that has caused the state to gain a reputation as being bad for business.
At the same time, however, he said chronic violators deserve to be punished.
“If someone is fined and they're guilty of it, by all means they should pay their fines,” Chippendale said. “It’s important that if there are scofflaws, then that's something that needs to be looked at.”
They Don’t Have the Teeth
But for others, it all goes back to a lack of funding.
Abel Collins, a director at the Rhode Island Sierra Club, said too many years of cuts to the DEM has made enforcement difficult. And at a time when pensions and deficits are the top priorities on Smith Hill, he said he doesn’t believe much will change in the near future.
"I think people are right to claim we have strong environmental laws on the books and there are a lot of environmentally minded leaders in the state," Collins said. “But the lack of funding does prevent enforcement. They don't have the teeth to take action. Every year we talk about getting DEM more funding. But it's sort of a herculean task to get the General Assembly to talk increasing taxes for environmental actions.”
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