Environmentalists Concerned About Enforcement Transparency
If DEM does flex its weakened enforcement muscle, political interference is often quick to materialize.
December 10, 2018
The state’s most recent environmental compliance report reads more like a pitch to invest in Rhode Island Department of Environmental Management stock than a document of enforcement actions. And both the report and the agency’s growing lack of transparency has environmentalists concerned.
For the three years immediately following Gov. Gina Raimondo’s election, the Department of Environmental Management (DEM) failed to publish its annual compliance and enforcement report, something the agency had done every year since 1999.
The document isn’t a legal requirement, and DEM has said it suspended the annual publication after the 2013 report was published to direct resources elsewhere. Terrence Gray, the agency’s associate director for environmental protection, recently told ecoRI News he wasn’t sure the reports were being widely read and that they didn’t generate much feedback.
Save The Bay criticized DEM’s decision to stop publishing the reports, saying it reduced transparency and made it more difficult to understand whether compliance and enforcement actions were being impacted by staffing reductions and budget cuts. The Providence-based nonprofit also noted that the annual reports had historically helped identify what natural resources were being degraded or put at risk.
When the annual enforcement report returned, in 2017, it was a shell of its former self, and it had a new name: “Summary of Compliance Assistance, Emergency Responses & Enforcement Activities.” The report shrank to 24 pages, from 66 in 2013 — the reports for 2010, 2011, and 2012 also were all more than 60 pages — and featured brochure-like photos and marketing copy not present in any of the previous 15 reports.
David Chopy, DEM’s Office of Compliance & Inspection chief, wrote the 2017 report’s first draft. DEM director Janet Coit, Gray, and the agency’s legal counsel “reviewed it, rewrote parts of it, and ultimately finalized it” for the governor’s office to review, according to Michael Healey, DEM’s chief public affairs officer. Prior to 2017, Chopy wrote the reports.
Gray said the report was reformatted “in a way that looks at compliance across the whole Bureau of Environmental Protection.” He called it a “broader report.”
“We’re trying to summarize the data and give people kind of a bigger-picture idea of the level of effort that goes on here, as opposed to targeting and calling out individual companies,” he said. “And some of our cases are against homeowners for septic systems and wetlands. We don’t necessarily want to be calling out individual people as well.”
For the revamped 2017 report, the level of detail in previous enforcement reports was replaced with jargon (“key performance indicator” and “business process improvement tools”), agency goals (“annual goal of conducting at least 5,000 inspections, investigations, or response actions”), and manufactured initiatives, such as the Lean Government Initiative, which notes that, “In order for Rhode Island’s economy to thrive, state government needs to operate at the speed of business.”
Genuine environmental protections and enforcement, however, can slow the speed of business — ultimately to the benefit of public health, the natural world, and taxpayers, who shoulder an unfair burden of paying for the clean up of Superfund sites, brownfields, and other messes created by others for profit.
Kendra Beaver, staff attorney for Save The Bay and a former DEM attorney, said the annual reports are important amid growing concerns about whether the state agency has the necessary resources and support to properly protect the environment and force polluters into compliance. She and other environmentalists have argued that budget cuts have undermined DEM’s ability to do its job.
ecoRI News recently spoke to Beaver and Save The Bay baykeeper Michael Jarbeau about the differences between previous DEM enforcement reports and the first agency report issued under the Raimondo administration.
“One of the major things we saw in the old enforcement report versus the new one and it goes back to that word ‘transparency’ is you used to have a list in the appendix of all the violators, what they violated. That’s all gone now. Why?” Jarbeau said. “Is it easier to just be a violator and hope you don’t get caught or pay a small fine versus go ahead of time to get the right permits, talk to the right people, go through the appropriate means? It used to be if you were caught doing something you were basically, for lack of a better term, publicly shamed. It was out there, you were a violator. Now we’ve got some numbers, but we don’t know who they are.”
Both Jarbeau and Beaver noted that the new format of the 2017 report doesn’t provide some of the critical details included in previous reports and unnecessarily complicates the information that is provided. They said the latest report is bogged down with background information about the agency’s auto salvage program and facility training. They said emergency response is a separate office from compliance and enforcement and, thus, emergency actions should be included in a different report. They noted that emergency actions weren’t included in past annual enforcement reports.
“DEM is not as willing to share their information,” Beaver said. “The fact that they changed that report was very disturbing. I can’t imagine why they can’t tell us how many complaints you were unable to inspect. It’s simple stuff.”
Leading business cheers
The first paragraph of the 2017 report reads: “The Rhode Island Department of Environmental Management Bureau of Environmental Protection is responsible for preventing and minimizing pollution to, monitoring the quality, and overseeing the restoration of, water, air, and land.”
A noble mission for sure, but for three years, from 2014 to 2016, DEM leadership decided that publishing a report that outlines agency compliance efforts and enforcement actions and puts offenders on public notice wasn’t worth the effort.
DEM’s increasing enforcement opaqueness coincides with the governor’s transformation of Rhode Island’s environmental agency into one that accommodates business interests. The governor’s office ignored ecoRI News’ requests to speak with the governor or someone in her office about environmental enforcement in Rhode Island and the kind of support she believes DEM and the Coastal Resources Management Council (CRMC) require.
Forget “Cooler & Warmer” or “Fun-Sized,” Rhode Island’s de facto slogan is “Business Friendly.” Legislation is repeatedly submitted to make sure DEM adheres to that motto. If the agency does flex its waning enforcement muscle, political interference is often quick to materialize.
While DEM’s mission certainly shouldn’t be the destruction of Rhode Island’s business environment, it also shouldn’t serve as an economic development cheerleader, according to those concerned about what they see as DEM’s lack of transparency when it comes to holding polluting businesses accountable.
“Part of the teeth in noncompliance is the public shaming,” Beaver said. “We don’t seem to do any of that anymore.”
DEM, though, does like to shame some violators. The agency routinely issues press releases that tout the arrest of, say, three fishermen for failure to fin clip striped bass caught in local waters or announce that a Warren man was cited for exceeding the striped bass catch limit. Good luck finding a DEM press release that admonishes a business for its environmental law-breaking.
Embarrass powerless individuals who can’t win politicians an election, but use social media to praise an East Providence business that has spilled some 4,500 gallons of ethanol, been fined by DEM for air pollution violations, and is well paid by the fossil-fuel industry “for helping to protect our environment & feed our innovation economy!”
The 2017 Summary of Compliance Assistance, Emergency Responses & Enforcement Activities report states, “Rhode Islanders count on the DEM to safeguard the air, land and water and to protect public health. Our Ocean State has many habitats and natural communities, including significant rivers, hundreds of lakes, productive coastal lagoons, fresh- and saltwater wetlands, rocky and sandy beaches, and estuarine environments. … The citizens of Rhode Island count on DEM to implement and enforce federal and state environmental laws.”
But for the resource-starved agency, critics claim environmental management appears less about fair but tough enforcement and more about applauding businesses for using the Ocean State’s natural wealth for private profit and political gain.
Every year from 1999 to 2013 DEM’s Office of Compliance & Inspection — one of six regulatory offices that make up the Bureau of Environmental Protection — issued a report that outlined regulatory compliance and enforcement for eight programs: air pollution; dam safety; freshwater wetlands; hazardous waste; onsite wastewater treatment systems; solid and medical waste; underground and leaking underground storage tanks; and water pollution.
The Office of Compliance & Inspection investigates complaints regarding alleged environmental violations and performs monitoring inspections to determine compliance with environmental statutes and DEM regulations. The office issues informal (warning letters) and formal (notices of violation) enforcement actions and is expected to track compliance until environmental violations are corrected.
In 2013, the office had a working staff of 23 “full-time equivalents.” That year the office received 1,483 complaints — an increase of 162 from 2012 — and conducted 826 inspections — a decrease of 374 from 2012. DEM noted that the decrease was mostly due to the loss of inspectors in the freshwater wetland program. One inspector left in October 2012 and wasn’t replaced until December 2013. A second inspector was on sick leave from July 2013 through the remainder of the year.
The decrease in complaint inspections in 2013, however, wasn’t an anomaly. From 2004 to 2013, the number of such inspections decreased for most of the seven programs — the damn safety program is overseen a bit differently.
During that 10-year window, for instance, the decrease in the number of inspections for freshwater wetland and onsite wastewater treatment system complaints was significant. Freshwater wetland complaint inspections fell from nearly 1,000 to less than 200; cesspool and septic system complaint inspections fell from 350 to 100.
Water pollution inspections fell from 250 to 100, while solid waste and air pollution, both with spikes in the years between, and hazardous waste inspections remained nearly the same from 2004 to 2013.
The number of full-time equivalents also fell in that time, from 36 to 23. The number of compliance monitoring inspections decreased from 559 to 303, and both the number of informal (344 to 306) and formal (116 to 69) enforcement actions decreased.
“Not all complaints could be investigated due to time delays from receipt of the complaint or other factors including lack of resources,” according to the 2013 report.
When the annual report returned in 2017, a new enforcement strategy to deal with the agency’s chronic lack of resources had emerged: let businesses police themselves and rely on public watchdogs.
“Typically, companies today are more aware of and committed to their compliance obligations than previously, and many have adopted environmental ethics as corporate policies,” according to last year’s report. “Also, public awareness has grown with time. The public reports perceived problems earlier and with clearer detail, which helps us address small issues before they become big problems.
“Our tools have evolved as well. Experience in the field has helped us develop responses to achieve compliance, or to put an alleged violator on a solid path to compliance, using our resources efficiently.”
DEM’s new vision for enforcing regulations fails miserably when the agency runs into a business that doesn’t care about being environmentally responsible or is being protected by friends in high places. Look no further than the Providence waterfront, not too far from DEM headquarters, to see what happens when the agency is essentially told to pound sand.
Public watchdogs, such as Save The Bay and concerned residents, have spent five years voicing concern over the environmental degradation being done by a metals recycler on the Providence River.
Rhode Island Recycled Metals sits atop a former Superfund and current brownfield site on Allens Avenue — polluted by polychlorinated biphenyls (PCBs) about 40 years ago and capped with 12 inches of fill that some state officials and environmentalists are concerned is eroding. The business began operating in 2009 and since then has polluted upper Narragansett Bay with illegally discharged runoff — the business has few if any stormwater controls in place — and contaminated the waterfront with oil and fuel from derelict vessels the business has kept tethered to the shoreline or sunk just offshore.
The business was ostensibly created to dismantle an old Russian submarine, which for about five years served as a floating museum before it sank in 2007. Nine years after Rhode Island Recycled Metals began operating, rusting remnants of the old sub stick out of the Providence River and remain submerged in the muck below.
The company was supposed to dismantle the submarine by Sept. 30, 2014 and restore the shoreline by the end of that year. That didn’t happen, and the business has since expanded its operation. A haphazardly placed blue tarp held down by old tires of various sizes covers a mound of sediment that the business illegally dredged when it envisioned pulling the sub to shore. That mound of dregs likely contains some toxic stuff, such as PCBs.
Other junk vessels belonging to Rhode Island Recycled Metals, such as a car ferry, lobster boat, and barge, are partially underwater, completely sunk, or grounded just offshore. A tug boat belonging to the business is sunk a little further offshore, in the Port of Providence channel.
DEM inspectors have found engines leaking oil, vessels being dismantled in the water, spilled oil and petroleum, and contaminated materials stored in uncovered piles and exposed to stormwater runoff.
DEM, along with CRMC, the Coast Guard, and the city of Providence, has failed to shut down a 6-acre scrap-metal yard operating without all of its required permits. In August 2016, a special master was appointed by Rhode Island Superior Court to oversee the development and implementation of a clean-up plan. At last count, DEM had made 45 court appearances for this case, according to Gray.
Chopy noted that the Rhode Island Recycled Metals case is an extreme example of what can happen.
“Most of the time, almost always, if we issue a notice of violation to some company for some problem they will get back into compliance,” he said. “This company for whatever reason has decided to fight every step of the way. If someone really wants to drag it out, you can drag it out. They have appeal rights.”
DEM’s monthly formal enforcement action summaries document plenty of instances when businesses or homeowners have dragged an enforcement action out.
In the case of Rhode Island Recycled Metals, DEM, the lead agency in the matter, issued a joint press release with the attorney general’s office critical of the illegal operation.
Little, however, has changed, as Rhode Island Recycled Metals continues to ignore notices of violation (NOVs) and remains in operation.
“If this submerged junk was in Newport Harbor or Bristol Harbor, it would have been pulled out in two days,” Save The Bay’s Jarbeau said. “The Providence River is treated differently, as it’s seen as dirty and nasty.”
The agency relied on to manage Rhode Island’s environment has tiptoed around an out-in-the open and obvious environmental problem that has chewed up DEM enforcement resources. Despite the 2017 report’s assurances about addressing “small issues before they become big problems” and putting an “alleged violator on a solid path to compliance,” Rhode Island Recycled Metals remains a big problem. DEM’s handling of the situation calls into question how less-visible problems are handled, especially when the agency has spent the past four years hiding what was once public information.
The 2013 report listed 181 businesses — some are different locations for chain retailers — that failed or passed a compliance inspection or were involved in an enforcement action. The 2017 report names four businesses, all of which are highlighted in the document’s “Spotlight: Settlement Of A Formal Enforcement Case.” The city of East Providence did much of that case’s enforcement work.
The 2017 report features colorful charts that show the number of NOVs issued for each program, number of expedited citation notices issued, and enforcement actions settled. The report notes 1,026 complaints were received, 791 investigations conducted, 3,875 inspections performed, 17 auto-salvage inspections done, 313 informal and 67 formal actions were taken, and 134 self-certification checklists (from 250 licensed facilities) and 53 return-to-compliance plans were received from “auto body facilities for evidence-based compliance assistance.”
The report even notes the number of complaints received, investigations performed, inspections done, and response actions taken in both 2015 and 2016 — two years for which there is no enforcement report available.
While the 2017 report goes out of its way to avoid mentioning businesses cited, warned, or complying to fix environmental problems, it does highlight water-pollution violations committed by two Rhode Island municipalities.
The 2013 report has all that information, plus tells taxpayers, who fund DEM’s work, what businesses are in compliance and which aren’t and what businesses are being forced to do something about their environmental law-breaking.
The most recent annual report states that, “In 2017, the DEM effectively used its resources to make headway toward each aspect of our mission.”
It’s difficult for the public to confirm that assertion when it has no idea what businesses were inspected, which ones failed to comply, and which ones required an enforcement action be taken.
Save The Bay filed a public records request with DEM in 2016 seeking the list of cases pending a hearing or enforcement in court. The request was denied. An appeal was filed with the attorney general. The appeal was denied.
Beaver said DEM’s chief legal counsel signed a affidavit that said the list of cases pending in Superior Court are privileged documents. Save The Bay then asked for just the number of cases pending, which used to be noted in the pre-2017 enforcement reports, but was told that information isn’t for public consumption.
“So we don’t know how many cases are backed up in Superior Court waiting for attorneys to bring them forward and again to have staff go out more recently,” she said. “You can’t say we issued a notice of violation four years ago. Staff has to go out. You gotta update everything if you’re going to bring it to court. We don’t know how many of those there are, let alone what they are. And again, it was public information before.”
Jarbeau said the contents of the 2017 report fall short of what is necessary to inform the public about the agency’s environmental enforcement activities. Beaver said the public deserves to have those questions answered, at least annually as was once done.
“DEM doesn’t share information anymore,” she said. “They’re hiding information and denying information requests. We know staff is down. We know notices of violation are down. We know we don’t know a lot because they’re not willing to share. What has a changed? They’re a public agency and we the public have the right to know if they are doing their job and if they have the resources to do their job. By preventing us from getting this information, all we can do is guess at what they’re not doing.”
At the beginning of 2013, DEM had a backlog of 152 cases that were pending court action. To further the effort that began in 2009 to address the backlog, the Office of Compliance & Inspection developed a top 10 list of the most egregious cases. This list is updated monthly, according to the 2013 report.
DEM attorneys filed 12 cases in 2013 and settled or resolved five others. DEM ended 2013 with 151 pending cases, according to that’s year’s compliance/enforcement report.
As part of the 69 formal enforcement actions issued in 2013, the Office of Compliance & Inspection proposed total penalties of $724,879 and collected $419,331.
Office of Compliance & Inspection agreed to settle seven enforcement cases by having the respondents conduct supplemental environmental projects, which are environmentally beneficial projects that a respondent proposes to undertake in settlement of an enforcement action. The seven projects had an estimated value of $247,806.
That type of detailed information is missing from the 2017 report. The 2018 Summary of Compliance Assistance, Emergency Responses & Enforcement Activities report is expected this March.
Editor’s note: This is the second story in a three-part series.