Ongoing Disregard for Environment Began With Firing of Proactive DEM Director
Rhode Island's equitable enforcement of environmental laws was short-lived
February 24, 2023
The staff was a little scared of Louise Durfee, at least at the beginning. The law firm partner burst into the state Department of Environmental Management in the early 1990s stressing accountability and promising heads would roll if the agency’s backlog of cases wasn’t whittled down.
Their anxiety, however, quickly dissipated. DEM employees found their new director to be principled and spirited, and determined to enforce the agency’s regulations in a fair and balanced manner.
“I think certainly what you observe over a period of time is that enforcement somehow becomes a dirty word … we’ll try to persuade folks to come into compliance,” Durfee told ecoRI News during a mid-February interview at her Tiverton home. “That’s laudable, you know, people like that. But there’s an educational value of enforcement that I think people just miss. It keeps other people saying we don’t want to get involved with enforcement; we would rather do what we have to do.”
Three years after nominating Durfee to be DEM director, then-Gov. Bruce Sundlun fired her for their differing views regarding the agency’s budgetary needs. He asked for her resignation, but she refused.
In her first year on the job, the agency had a budget of $51.3 million. The fiscal 1994 DEM budget, her last, was $69.2 million. The agency featured 630 full-time employees, including nine attorneys, the year Durfee was fired, and that number remains the agency’s high-water mark during the past three decades. She inherited an agency with 510 full-time employees — about 100 more than DEM has now.
Rhode Island’s current disrespect for the natural world can be traced back to that day in 1994 when Sundlun asked for Durfee’s resignation.
Scott Millar, who worked at DEM for 23 years, from 1992 to 2015, noted the governor’s decision to fire Durfee “might have been the beginning of the end” of effective environmental enforcement in the Ocean State.
“First of all, I have tremendous respect for Louise Durfee; by far the best person I think I’ve ever had the privilege of working with,” said Millar, now the director of community assistance and conservation at Grow Smart Rhode Island. “She was so smart. I learned so much from her. She was by far the most respected DEM director during my tenure there. … She didn’t want to make the cuts that [Sundlun] was asking for and she probably knew what was going to happen by not complying.”
Durfee arrived at DEM in 1991 as a well-respected attorney, having served as the first general counsel to the Narragansett Bay Commission and as a partner, for 20 years, at the law firm Tillinghast, Collins & Graham in Providence. She had cemented her environmental bona fides two decades earlier, when she led the successful opposition to an oil refinery proposed along the Tiverton shoreline.
In 2011, when then-Gov. Lincoln Chafee appointed her chair of the Rhode Island Judicial Nominating Commission, he said, “Louise Durfee is among the most accomplished and experienced legal minds in Rhode Island.”
Under Durfee’s leadership from 1991-94, the staff eliminated DEM’s significant backlog of cases, made agency work more transparent, and improved regulation enforcement and efficiency.
Dean Albro, who began his DEM career in 1977 as a wetlands field biologist and retired in 2008 as the agency’s Office of Compliance and Inspection chief, has called the Durfee era “fantastic years” and noted it was a time when the agency “was truly enforcing environmental laws.”
He recently told ecoRI News that before Durfee arrived, DEM rarely went beyond issuing notices of violation (NOVs) because the agency had “limited legal resources.”
“There were no hearing officers. That part of the system was broken,” Albro said. “Louise had to address that by hiring more people and bringing in attorneys. You can issues NOVs all day long, but if you don’t have any attorneys they’re not getting anywhere. Lots of cases died in the administrative process. She got an effective enforcement system up and running.”
During her brief tenure as DEM director, the agency grappled with some of Rhode Island’s biggest polluters and environmental messes.
In the Rumford section of East Providence, along the Seekonk River and Omega Pond, Ocean State Steel Inc. operated a steel-manufacturing plant that was violating air pollution regulations. Beginning in 1989, DEM spent five years trying to get the facility to comply. Durfee eventually took the polluting business to court and had the operation shut down.
“The problem just went on and on and neighbors were calling daily asking us to do something,” Durfee said.
When the Ocean State Steel matter ended up in court, the state’s Economic Development Corporation — now called Rhode Island Commerce — showed up to argue against DEM’s case. Its representatives failed to give Durfee or the agency she directed the professional courtesy of a heads-up.
Ocean State Steel left behind a brownfield that laid dormant for years. The remediated property has since been redeveloped into housing.
Durfee visited what was dubbed the “Davis Tire Pile” on Tarkiln Road in Smithfield, where a reported 6 million or so tires were eventually dumped on some 14 acres. The property’s owner, William Davis, patrolled the rural grounds with a shotgun. No Trespassing signs were common.
By the late 1990s, the property was likely the largest scrap-tire dump in the Northeast and among the largest tire piles in the nation. In some places the piles of rubber were more than 25 feet high. Other piles sat atop discarded chemical waste. It took 3.5 years to clean up the mess.
“He had collected tires from all over the state and beyond. I can’t tell you now how many tires were there, but the concern was that if it ever caught on fire it would blanket enormous areas of the state with pollution,” said Durfee, who was struck by “the enormity as we traveled by truck through these rows of tires.”
Nature’s needs ignored
In the three decades since Durfee’s departure, at best apathetic governing and at worst corrupt, selective enforcement, a lack of support for DEM and the Coastal Resources Management Council (CRMC), limited funding, and the shelving of taxpayer-funded reports have allowed the ongoing degradation of the local environment, which adversely impacts public health and makes mitigating climate change nearly impossible.
The slicing and dicing of enforcement funding and support makes it increasingly difficult for both DEM and CRMC to stay on top of violators, whether their actions are deliberate or accidental. The work required of the agencies includes inspections, site visits, title searches, investigating complaints, visiting aquaculture operations, making sure public access to the ocean isn’t being cut off, writing warning letters and notices of violation, monitoring consent agreements, writing and filing administrative warrants, and testifying at hearings and in court.
Former DEM staffers ecoRI News has spoken with over the years have said there is too little value assigned to environmental protection and the free benefits the natural world provides. They say ecosystem services are undervalued and incrementally damaged by a lack of enforcement.
In this era of a rapidly changing climate and growing inequality, Rhode Island’s lackluster treatment of the natural world will have major ramifications on future generations. A corrupted mix of government inertia, a proverbial old-boy network, and politicians and bureaucrats that play favorites allow regulations to be toothless and policy to be ignored.
The laws — applauded in the Statehouse when they are passed — to protect the environment and us from pollution, sea-level rise, and the climate crisis are forgotten when it comes time to appease special interests.
For instance, DEM has never enforced state law that requires businesses to recycle, and the Statehouse continues to bend to the will of developers and their lobbyists when it comes to carving up more space to build.
Many of the state’s environmental regulations are enforced erratically, depending on whether you are a 72-year-old Charlestown man charged with the possession of striped bass during the closed season, a company or sector with political pull, a lawmaker with a business interest, or a chief of staff looking for a favor.
The solutions to this malpractice are pretty simple: enforce the law in a non-selective manner; follow policy; and implement at least some of the recommendations offered in reams of environmental reports and studies.
The firing of a DEM director who advocated for adequately staffing an agency so it could do its job of holding polluters accountable and making developers follow the rules opened the floodgates.
After Durfee was fired, Millar said the situation began hemorrhaging. Legislative interference was again en vogue.
“It was not a good time to work there; it was very depressing,” he said. “We knew that if anybody left on your staff, you probably weren’t going to be able to replace them.”
Two years after Durfee, the first woman to be appointed to the board of the Rhode Island Bar Examiners, was fired — by the same governor who once gathered DEM leadership 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 commission caused a lot of damage within the department and personally to employees who were pretty dedicated and who were just decimated by this attack on their work,” Durfee said.
The House Commission to Study the Department of Environmental Management spent two years investigating the agency and questioning its staff. 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 their grievances against the agency tasked with protecting Rhode Island’s environment.
Millar said morale at DEM was “extremely low” after Durfee was fired and during the Kennedy Commission years.
“Staff felt they were being unfairly and harshly criticized for enforcing environmental statutes,” he said. “It was alleged that DEM staff were needlessly delaying development projects. As I recall, an analysis was done to determine where the holdup actually was. It was determined that developers’ consultants were not accurately and completely complying with applicable permit requirements. Thus development projects were being delayed since DEM permit review staff didn’t have all the required information to make an informed decision. The developers’ consultants were blaming DEM for these delays, when in fact the problem was not providing all the required permit information in a timely manner.”
DEM eventually established an electronic permit tracking system so applicants can follow the status of their applications. DEM also established the Office of Customer Assistance to help coordinate complicated projects that need multiple permits.
Terrence Gray, DEM’s current director, has worked at the agency for the entirety of his 36-year professional career. He began his DEM employment in 1987 as a hazardous waste program engineer and rose through the agency’s ranks, becoming chief of the Division of Site Remediation in 1993, chief of the Office of Waste Management in 1996, assistant director for Air, Waste, and Compliance in 1999, associate director for environmental protection in 2012, and deputy director for environmental protection in 2018. He was named the agency acting director in June 2021, after Janet Coit left to work for former governor Gina Raimondo in the Biden administration. Gray was promoted to director a year later.
Gray noted that in the years leading up to Durfee’s hiring DEM “kind of exploded” into a “full-blown agency, especially on the regulatory side, both in terms of staffing but also in terms of authority.”
“There were a lot of new federal and state programs, and we were out there starting to develop regulations and implementing the regulations and taking enforcement actions,” the lifelong Rhode Islander recently told ecoRI News. “That was a whole new thing on the scene. So then you’ve got these conflicts that started to come up with people that had never really been regulated before. … But in that time frame, there were a lot of people that were way out of compliance, filling in wetlands and dumping hazardous waste. We were dealing with a group of tough characters.”
He admitted it “was a trying period” after Durfee departed. He said the Kennedy Commission was sparked when Timothy Keeney, the director who replaced Durfee, reorganized the agency without consulting the General Assembly. But he noted consulting with the Legislature at that time wasn’t a thing and DEM didn’t even have a legislative liaison at that point.
“That was tough. I testified in front of the Kennedy Commission,” Gray said. “Tim Keeney left kind of because you get sick of the whole scene … in terms of being grilled in front of the Legislature all the time.”
The commission, he said, ended up providing a platform “for a lot of people that found themselves to be out of compliance.”
The Kennedy Commission also helped create the false narrative that environmental enforcement and protection are anti-business forces that stymie economic growth and impinge upon personal freedom.
The same year Durfee arrived at DEM, Save The Bay released a scathing 16-page report chronicling the agency’s lackadaisical approach to enforcement. In the report, titled “It Pays to Pollute: Environmental Law Enforcement in Rhode Island,” the Providence-based nonprofit painted a picture of lax enforcement, paltry fines, a backlog of enforcement cases, little follow-through, and poor record keeping.
The report concluded DEM had “seriously eroded the credibility of environmental law in Rhode Island.” It also claimed the agency’s “forgive-and-forget enforcement approach is failing to protect the environment and public health.”
The building boom of the late 1980s and early ’90s drove many people to develop, often before getting local and/or state approval, or never even bothering. The agency was plagued by inconsistencies, mainly because of political influence and a lack of strong leadership, according to former DEM employees.
Notorious blue dots — coin-sized stickers — were affixed to files, suggesting 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.
Blue-dot files meant DEM staff was to view the case from a different lens, according to former agency employees. They said senators, representatives, and even judges would call individuals at the department to ask about a permit’s status.
Durfee’s DEM immediately ended the blue-sticker practice and began leveling the playing field between business interests and nature’s needs. She understood the impact budget cuts and staffing reductions have on fair and effective enforcement and worked to increase both.
The old-boy network took exception.
Catherine Hall, who worked as a DEM attorney for a decade, told ecoRI News in 2016 that 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.”
Political influence continues to meddle in the enforcement of Rhode Island’s environmental laws, creating a system that puts complying businesses at an economic disadvantage and rewards polluters. It also ignores the burden placed on taxpayers when the time inevitably comes to clean up a mess.
House swings wrecking ball
The House Commission to Study the Department of Environmental Management was created in 1996, by a resolution introduced by representatives Brian Patrick Kennedy (still in office), Charles Knowles, Scott Rabideau, Eileen Naughton, and Sandy Barone.
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 attorney general, accusing the commission of violating Rhode Island’s open meetings law by secretly negotiating with the governor’s staff over its bill to restructure DEM.
In a March 31, 1998, editorial, The Providence Journal-Bulletin wrote 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 co-sponsored that would have permitted off-road motorcycles on all recognized state bridle and hiking trails.
“Throughout the legislative hearings, the tone was very critical of DEM having a criminal investigative office,” Albro, the retired DEM employee, said.
Rick Enser spent 28 years working at DEM, from 1979 to 2007. Most of his time with the agency was spent as the coordinator of the Rhode Island Natural Heritage Program. (The program documented the state’s biodiversity and provided guidance for the preservation of rare, endangered, and threatened species, both plant and animal. In 2007, the program became a victim of budget cuts and a shift to making state-protected open space more recreation-friendly.)
“During my tenure at DEM, I was situated in the Division of Planning where I was fairly isolated from all the political drama,” Enser recently told ecoRI News. “But I certainly knew what was going on, the blue dots and all, and how it affected morale. … This period at DEM affected everyone because of the heavy influence of business, especially the real estate developers. DEM directors were constantly being sued.”
He got caught up in the Kennedy Commission when he made the mistake of writing a letter that said a Cumberland wetlands application “should be denied” because of the presence of rare marsh-nesting birds, including the marsh wren and American bittern. It ended with his boss, Bob Sutton, testifying before the commission.
“In fact, the first question they actually asked him was, ‘Where’s this Enser guy?’” the ecologist recalled. “Bob, you know, took the heat. And after that was over, I received a letter directly from one of the assistant directors at DEM that basically said don’t do that anymore.”
In 2016, Naughton, then a Democratic representative from Warwick, told ecoRI News 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.”
She said the “agency was inappropriately gathering information and cases were getting knocked out of court.” Commission supporters accused the agency of being arrogant.
Former DEM employees who worked at the agency during that time dispute those claims. Under Durfee’s “fair-but-tough leadership,” staff wasn’t permitted to waste agency and court time or taxpayer money, according to former DEM staffers. They said Durfee required the agency to be reasonable and fair.
“We didn’t take bad cases to court,” Hall told ecoRI News. “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.”
Four months after the Kennedy Commission’s first meeting, on Oct. 9, 1996, its namesake 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 subpoena could face a court hearing and, if judged in contempt, committed to the Adult Correctional Institutions until such time that he or she abides by the subpoena.
For those who were called to testify, under oath, before the Kennedy Commission, it was often a grueling day that typically began around 2 or 3 p.m. and could last well into the night. DEM employees were often accused by commission members of being less than cooperative.
Albro said the commission brought in people to testify who were unhappy with enforcement actions taken against them by DEM. “They thought their cases were going to be dropped because they testified,” he said.
“We had to be careful of what we said because some of the cases were in the courts,” Hall recalled. “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 bumper stickers that proclaimed: “The DEM is Out of Control.”
Once a commission hearing began, the DEM staffers called to testify had to first listen to hours of complaints from, among others: business owners, many from the real estate sector; property owners, some of whom had previously been put on notice by the agency; Kennedy constituents; and farmers who had allegedly altered wetlands. Some had legitimate issues; many just took advantage of the opportunity to grind an ax.
DEM employees were called indifferent and agency rules stupid. Agency staff unable to testify at scheduled commission hearings, because of prior commitments, were scolded.
On several occasions during the commission’s two-year investigation, DEM and its employees were compared to the Gestapo. In a letter dated Jan. 31, 1997, to 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. In a letter dated Jan. 29, 1997, to 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 January letter from 26 years ago, 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 legislators sitting on dozens of state boards and commissions, such as CRMC, and wielding their power to secure preferential treatment for themselves, family and friends, and/or campaign donors.
This separation-of-powers fight went all the way 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.
Message delivered: Enforcement bad
Former DEM staffers have said they believed the message the Kennedy Commission, its chair, and his allies were trying to send was that the agency 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; a half-acre of wetlands had been filled to build a garage; 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.
“The commission had no plan,” Hall said. “There was no purpose to it, except the General Assembly basically saying, ‘We are watching you, and we don’t believe in enforcement.’”
During the same month the House commission held its first meeting, Kennedy, its chair, helped broker the sale of the aforementioned asphalt shingles dump site. The elected representative, the owner of a realty appraisal company, sold the Hopkinton home of his brother Kevin, a contractor, to a couple who didn’t know tons of asphalt shingles were buried in the 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 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 eventually charged 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. (Albro noted that around the time the Kennedy Commission was created, DEM had taken enforcement action against the chair’s father for filling wetlands.)
On the night of his bother’s arrest, in April 1998, Rep. 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 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 Kennedy threatened to call the employee before his commission.
Kennedy didn’t respond to several messages, left via email and voice mail, and through the General Assembly publicist, to comment for the 2016 story.
For this story, ecoRI News reached out to Kennedy twice, to ask him why the commission was created, what it found out, what he thinks about the effort nearly three decades later, and to get his thoughts on how Rhode Island is currently balancing environmental enforcement/protection with the needs of the business community and individual property rights. He didn’t respond.
The state’s contempt for the natural world began to show itself in the mid-1970s, when the Rhode Island Department of Natural Resources changed its name to the Department of Environmental Management. New Hampshire — and its Department of Environmental Services — is the only other New England state without the words “protection” or “conservation” in the name of the agency charged with looking after the environment.
In the three decades since Durfee’s firing, progress has been plodding in terms of support and agency empowerment granted by legislators and governors to better protect the Ocean State’s natural resources and public health.
The two-year Kennedy inquisition likely accomplished exactly what it intended: put Rhode Island’s environmental regulatory agency on the defensive; vilify state employees; and make the agency afraid to do its job. (Similar to the tactics being used today to disparage educators and dismantle public education.)
DEM staffing cuts became such a concern in the late 1990s that the federal Environmental Protection Agency took notice. In a five-page letter to Gov. Lincoln 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.”
Albro said effective enforcement means “defending enforcement actions from the get-go.” That requires having trained staff and enough hearing officers and attorneys to keep the system working the right way, he added. He noted DEM’s Office of Compliance and Inspection is down about a dozen positions since he was chief.
Ed Szymanski, who worked for the agency for 25 years, from 1975 to 2000, recently told ecoRI News that DEM has long operated as a “mere skeleton of what it should be.”
“You need professionals in the field and legal counsel to back them up,” he said. “It’s difficult to do the job when you don’t have staff to follow up on issues.”
Eighteen years after EPA’s letter to Almond, the federal agency still couldn’t trust Rhode Island’s ability to enforce environmental regulations. The EPA had to take the Rhode Island Department of Transportation (RIDOT) to court because DEM failed to adequately enforce “several years of significant noncompliance” with the Clean Water Act and the terms and conditions of RIDOT’s national pollutant discharge elimination system permit.
Significant portions of the areas of Rhode Island polluted by RIDOT’s negligence and DEM’s lackadaisical enforcement were environmental justice areas, according to the 2015 settlement agreement.
The complaint alleged RIDOT failed to take appropriate steps to evaluate and address the impact of its systems on impaired waters; failed to detect and eliminate illicit connections and discharges of pollutants, including sewage; failed to inspect, clean, and repair its drainage systems, including catch basins; and failed to conduct adequate street sweeping to reduce the flow of contaminants into waterways.
“For nearly a decade, the Rhode Island Department of Transportation has ignored its obligation to the people of Rhode Island to protect the waterways of this state. Instead, through its neglect and indifference — through its failure to inspect and maintain its storm water run-off system — RIDOT has contributed to the pollution of those waters,” U.S. Attorney Peter Neronha said when the complaint was announced. Neronha is the now the Rhode Island attorney general.
Besides polluting Rhode Island waterbodies, RIDOT’s apathy and DEM’s inaction cost taxpayers $315,000, the civil penalty issued by the EPA.
Five years later, RIDOT and DEM would renew their Keystone Cops routine. The illegal dumping of contaminated fill at the Routes 6/10 Connector construction sites in Providence’s Olneyville neighborhood showed the state’s environmental investigative/enforcement resources remain inadequate.
Some six months after a union of heavy-equipment operators accused a Massachusetts-based construction company of using hazardous material as fill, the toxic piles were finally removed from the mostly non-white neighborhood. International Union of Operating Engineers Local 57 found the material contained two times the acceptable levels of carcinogenic aromatic hydrocarbons and four times the acceptable levels of benzo(a)pyrene, another carcinogen.
The illegal dumping of toxic material wasn’t made public by RIDOT, which is overseeing the project, nor the state agency responsible for environmental management. RIDOT’s director even downplayed the toxicity of the material being dumped near homes.
In January, nearly three years after the contaminated fill was dumped on an unsuspecting neighborhood, the attorney general’s office charged the out-of-state construction firm and a former employee with the illegal dumping of thousands of tons of contaminated fill at project sites during the construction of the 6/10 Connector.
Selective and timid enforcement affords businesses that pollute the environment and impair public health more rights than those who suffer the consequences.
The rules are also stacked against the powerless.
For instance, it’s criminal for anglers, some of whom are fishing to feed their families, to take too many striped bass and tautog from upper Narragansett Bay, but it’s only a civil offense to actually pollute those waters.
The anglers’ offenses are deemed illegal, DEM emails press releases after they are arrested, and posts the enforcement action on social media. Punishment is swift.
The Allens Avenue business that opened illegally and is caught dismantling, in the Providence River, vessels it doesn’t have the authority to be storing is issued toothless administrative violations. These warning letters and notices of violation are buried on DEM’s website and press releases are seldom issued.
In contrast, the Massachusetts Department of Environmental Protection issued press release on three consecutive days during the week of Feb. 6 noting the enforcement actions taken against polluting businesses — a Quincy-based contractor for violations observed during asbestos abatement activities at a Springfield YMCA; a Sutton company for violating its air pollution control and groundwater discharge permit regulations at its steel-building manufacturing facility; an auto salvage business in Northampton for failure to dispose of septage in accordance with wastewater regulations.
To understand how Rhode Island prioritizes enforcement, DEM’s Office of Compliance and Inspection, which enforces more complex and egregious environmental violations than, say, arresting a guy for possessing illegally caught striped bass, actually has fewer full-time employees (22) than the agency’s Division of Law Enforcement (35), which, among other things, busts individuals for catching too many premier game fish and important commercial species. The Office of Air Resources, which is responsible for the preservation, protection, and improvement of air quality in Rhode Island, has 25 full-time employees.
The number of full-time DEM employees is currently 401 — down 229 from Durfee’s last year as agency director. The number of DEM attorneys has remained at six since 2014. The last time DEM had double-digit attorneys was 1998 (10).
With only six attorneys and barely 400 employees, Albro doesn’t believe DEM has enough staff to conduct effective enforcement.
While the agency issues more warning letters (officially called notices of intent to enforce) than it did two decades ago, works with companies more to get them into compliance, and provides more outreach, the problem, Albro said, is that there isn’t enough staff to gather evidence, take samples, and to conduct warning-letter followups and site visits.
“You need to be prepared for the pushback and if you aren’t, there’s going to be more pushback,” Albro said. “And by then enforcement doesn’t work.”
Gray, DEM’s current director, noted that times are changing when it comes to the Statehouse’s appetite for effective enforcement.
“A lot more people understand what we’re trying to do at this point,” he said. “It’s a completely different world right now.”
Topher Hamblett, director of advocacy for Save The Bay, believes support for the work DEM does and needs to do is moving in the right direction. But he, like Priscilla De La Cruz, the Audubon Society of Rhode Island’s senior director of government affairs, testified at a recent Senate committee hearing that environmental enforcement remains an under-resourced area.
“This body and the assembly broadly has finally in the last couple of years reversed a long and troubling trend and that’s reinvesting in the agency that Terry leads,” Hamblett said during the Feb. 7 Senate Committee on Environment and Agriculture hearing regarding the reappointment of Gray as DEM director. “We appreciate what you have all done to begin to back the department with the resources it needs to do its work.”
But for a long time, as the Kennedy Commission showed, elected officials in leadership positions who oversee the state budget have often viewed enforcement as bad for business.
This limited view, however, neglects the fact that as the agency’s workload increases, because of less staff and resources, it slows down the permitting process. It also ignores the pricelessness of essential ecosystem services, and puts first responders in danger.
For example, correctly labeled drums and properly stored waste at a warehouse or chemical manufacturer matter, especially when firefighters respond to an emergency. Unlabeled barrels and improperly stored waste and chemicals can lead to more than a polluted waterbody.
Speaking with ecoRI News after he had officially been reappointed, Gray agreed with De La Cruz and Hamblett about DEM needing more enforcement resources.
“I think they’re right, but I’m gonna put it in a framework,” he said. “A lot of times people think of enforcement resources in the context of inspectors and people that write enforcement orders. What I’ve been trying to do is strengthen compliance monitoring in the permitting programs. So for instance, if you were to apply for a permit, you’re gonna go through a process and you’re gonna get a product and it’s going to tell you you can do what you asked to do but you have to do it in this way in order to comply with the rules. If we don’t follow up on that, it’s not worth the paper it’s printed on.
“We need to follow up on more of those things to make sure that stormwater controls are in place and wetland boundaries are being respected. That’s why when I talk about investing in permit programs, it’s also investing in compliance programs. It’s not just investing in permitting programs for the sake of being faster.”
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, has kept the agency passive, according to many in the local environmental community.
They believe politics purposely destroyed the agency’s credibility, signaling that ignoring environmental law is acceptable.
The governor’s office, the General Assembly, and DEM leadership have historically stressed the importance of being “business friendly.” They wrap statements about Rhode Island’s natural resources in an economic bubble, as if protecting the environment only matters because it supports the economy and creates jobs. This messaging has been relentless, especially under the administration of the previous governor, and is misguided.
At a Statehouse hearing in May 2015, critics of DEM’s enforcement efficiency said the agency was ineffective at stopping polluters.
Gray’s predecessor defended the agency by praising it for its business-friendly improvements, such as faster permitting and a new customer-service center.
“The governor [Raimondo] is very focused on keeping jobs in Rhode Island, growing jobs, and promoting jobs,” Coit said at the hearing. “And I want to emphasize how much the infrastructure and parks and facilities of DEM are part of our tourism sector as well as a growing agriculture sector.”
She also noted that during the past 10 years, the agency had reduced the number of attorneys from eight to six, compliance and inspection personnel from 39 to 23, and water resources staff from 86 to 69. She spoke as if that wasn’t a concern.
The natural world’s importance, however, goes far beyond attracting tourists, creating jobs, and making money. Environmental health is linked to human health. But decades of poor land-use management and impotent enforcement of environmental regulations have led to ecosystem degradation, forest fragmentation, shrinking wetlands, and biodiversity loss — all of which allow humans to survive and thrive.
Durfee said the agency she once led became enamored with “this drive for economic development.” The agency’s core regulatory functions have long taken a backseat to promoting tourism and selling hunting and fishing licenses, according to former DEM staffers.
Toward the end of the Feb. 7 Senate committee hearing regarding the reappointment of Gray as DEM director — the committee voted unanimously in favor of his reappointment; a week later he was confirmed by the full Senate — Sen. Joshua Miller, D-Cranston, spoke about the frustration of businesses in compliance with state environmental law operating next door to violators who continue to pollute.
“It’s a complicated issue. For some businesses they’ve been cited historically, almost throughout their existence,” Miller said. “I know we have a legal process that allows them to appeal, but there’s a limit to that process, or there should be a limit … so that somebody can’t keep that activity that is illegal going on just by exploiting the process.”
He said DEM and the Statehouse need to work together to put an end to the polluting ways of chronic violators. Among the state’s persistent violators are Rhode Island Recycled Metals in Providence and Hopkins Hill Sand & Stone, a West Greenwich quarry that abuts the Big River Management Area.
Gray responded to Millar’s concerns by saying the situation “is absolutely frustrating.”
“In some cases we’ve been to Rhode Island Superior Court over 60, 70 times on a single case,” he said. “It’s just frustrating that the pollution continues. I wish there was a faster resolution to get that done.”
Rhode Island Recycled Metals began polluting upper Narragansett Bay and the Allens Avenue area in 2009 when it began operating illegally. The state didn’t take legal action until 2015.
Hopkins Hill Sand & Stone has been operating without a Rhode Island pollutant discharge elimination system permit for nearly 20 years. While DEM attempts to get the Cardi Corp. subsidiary to stop polluting a nearby conservation area, RIDOT continues to hire Cardi Construction Industries to widen highways.
On its website, the Cardi Corp. brags it is “Rhode Island’s leading public works and site-work contractor.”
Despite the obvious need for a robust natural world to help mitigate the climate crisis, protect public health, and provide for future generations, many elected officials continue to work on the behalf of developers to push projects to the threshold of what is allowable, and if that fails to satisfy chambers of commerce, industry trade groups, and other business interests, laws are passed and regulations rewritten.
Protecting the environment and addressing climate change, however, would also attract tourists, create jobs, and make money. Workers would be needed to build affordable housing, stormwater systems, solar carports, modern energy infrastructure and non-car transit options, remediate old mills, and redevelop already-marred space.
It takes political will that won’t undermine or fire people for upsetting special interests. It means appointing forward-thinking people who stand up to politicians pushing favors.
“You pass the laws and expect them to be carried out, and you can only do that through the executive agencies with proper staff,” Durfee said. “It’s sort of simple.”
Note: For a year-by-year DEM budget breakdown from 1990 to 2022, click here (Excel document).