Statehouse has Long Kept DEM Tied to Puppet Strings
Political influence has eroded enforcement of Rhode Island’s environmental laws, creating a system that puts complying businesses at an economic disadvantage and rewards polluters. Enforcement alone, however, isn’t the solution to protecting the Ocean State’s priceless collection of natural resources.
February 5, 2016
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.”
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 businesses 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?”
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.
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 to 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, Rep. 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.
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 shingles 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.
On the night of his bother’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.”
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.
“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.
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.