DEM Workload Grows, Staffing Declines

Jun 16, 2015

Over the years, the state has slashed budgets across all government agencies, including the Department of Environmental Management. This agency, tasked with protecting the environment, has seen a decline in staffing. Environmental advocates say these cuts have weakened and slowed enforcing environmental laws and regulations.   

Earlier this year, residents packed a small room at the Statehouse for a hearing about a zoning bill. They complained to lawmakers about industrial pollution from a quarry in Westerly. Residents blame the DEM for poor monitoring and enforcement.

“DEM is totally useless. Useless,” said Bradford resident Steve Dubois. “It is a source of revenue that you people should take and put it somewhere else, because in our five years of this—five years we’ve been battling this—and they’ve sat here and told you, they’ve done nothing.”

But at a hearing about the agency’s budget, Save the Bay director Jonathan Stone blamed budget cuts for weak enforcement. Staffing levels have dropped by more than a quarter since 2005, from 539 to 399.

Jonathan Stone, executive director of Save the Bay.
Credit RIPR File Photo

“Particularly, the enforcement capacity at the agency has been whittled away over three different administrations,” said Stone. “And it can't go on. It cannot go on.”

The agency has lost 140 full-time employees.  Even so, Stone applauds DEM for the good work that they do with limited resources. Despite budget cuts, DEM has made notable progress in cleaning up Narragansett Bay. Wastewater treatment plants, for example, have reduced how much nitrogen they’re releasing into the bay by 60 percent, exceeding the goal. That’s translated into fewer beach and shellfishing closures.

But in doing his own research, Stone has noticed as staffing has declined, so have the number of formal complaints filed against companies. He wonders whether DEM has enough resources to do its job. 

“If the agency doesn't have the resources to get out in the field and make the observations necessary to make a determination, then you are going to have people who are getting away with people who are violating the rules and are not being held accountable,” said Stone.

It took two years before DEM issued a formal complaint against a metal recycling facility on the Providence waterfront: Rhode Island Recycled Metals. That came after a series of inspections and warnings. Still, Save the Bay’s staff lawyer Kendra Beaver said DEM took too long.

“If you issue a warning letter, or a notice of intent to enforce, and they don’t comply that should be the end of the game, then there should be a notice of violations,” said Beaver. “It appears—and I certainly haven’t reviewed all the files but—repeatedly, you know, ‘we might fine you, we really could fine you, and now we are going to impose a penalty.’”

DEM issued numerous warnings over two years for alleged violations that included spilling oil onto the property and releasing polluted stormwater into the Providence River, according to court documents. 

“We all know that it's great to have a carrot, but you need to have a stick,” said Beaver. “And if there is no stick, those people who are less likely to comply aren't going to comply if they aren't going to get caught.”

Fast forward to 2015, DEM filed a lawsuit against Rhode Island Recycled Metals, alleging the company failed to meet a consent agreement it signed in back in 2013 to correct environmental violations. The property where the company operates has a protective cap of clean soil to keep toxic chemicals and heavy metals from being released into the air and water. That cap has been compromised over the course of the company’s operations, according to DEM officials.

“We think that with a modest increase in staffing resources at the agency, you can have a significant impact on the ability of the agency to inspect the sites of companies and entities that are believed to be violating state rules and you can pursue those cases that are significant,” said Stone.

Stone said the state budget is a statement of priorities. He said voters need to know that it’s worth equipping DEM with adequate resources to monitor and regulate activities that compromise public health and degrade the environment over time, not just those that pose an imminent threat. And he said weak enforcement has real consequences for the economy, because violators get an unfair advantage. 

A couple of business owners in the metal recycling industry didn’t want to be identified for fear of backlash for criticizing DEM. They agree it’s taken too long to take formal action against Rhode Island Recycled Metals. But they don’t think more money for the agency is the solution. They note: DEM was able to identify violations at the metal recycling facility with its current resources and staffing. So they wonder why it took five years to file a lawsuit. One of them said it’s frustrating to see a company get away with violating environmental protection laws.

“It’s frustrating for me,” said DEM's Director Janet Coit. “I can well imagine that it’s frustrating for other companies that are playing by the rules.”

DEM Director Janet Coit with former Gov. Lincoln Chafee.
Credit RIPR File Photo

Coit said DEM has spent significant time and resources trying to get this company to comply. 

“Despite the fact many years have gone by doesn't mean there has been a lack of action in that time,” she said. “There's been quite a tremendous amount of action to try to get them to address and unfortunately, every time we thought we were moving in a better direction, something—we would do an inspection and find things that weren't going well.”

Coit believes DEM will address problems at the site now that the case is in Superior Court. But questions remain about who is going to pay for the cleanup if the company doesn’t have the money to do it. 

Coit said this is an unusual case and doesn’t speak to DEM’s enforcement capacity as a whole. She said DEM employs a variety of strategies to get people to stop polluting. 

Almost every enforcement action, including appeals, goes through a special court for environmental matters called the Administrative Adjudication Division, or AAD. Coit said she’s made it a priority to reduce the backlog in the AAD. The backlog in AAD has been slashed by nearly 50 percent since she became the agency’s director, from 89 cases in 2011 to 46 to date.

Coits adds DEM's Office of Compliance and Inspection has seen an approximate 45 percent drop in recorded complaints about potential violators, from 2700 in 2004 to 1500 in 2014. That helps explain the decline in issued notices of violations.

“It's important to have a complete picture because the way we protect the environment aren't [sic] just through notices of violation that end up before the AAD or the Superior Court,” said Coit.

Coit defends her department and its record for enforcing environmental laws.

“I'm proud of the job that we are doing and I will never leave you with the impression that I wouldn't love to have more resources if I could,” she said.

And there’s no shortage of work. Fifty-three cases are pending in Superior Court. Coit said that’s only a fraction of DEM’s enforcement action. An additional 127 cases are eligible to be filed in Superior Court. Eligible cases include those where there is noncompliance with a consent agreement, or there is no request for a hearing and continued noncompliance. At the end of 2013, DEM had 33 cases pending in Superior Court and 120 eligible cases.

DEM has gotten high marks from the U.S. Environmental Protection Agency for enforcing federal laws that oversee air, water, solid waste, and hazardous material. Stephen Perkins, EPA’s senior advisor for its northeast regional office, said the federal agency’s most recent review of the DEM is positive when taken as a whole.

“I think it's EPA's belief that the Rhode Island Department of Environmental Management does a good job identifying the important cases to take,” said Perkins, “and they take them in what we feel is a timely manner and an appropriate manner.”

In some of the departments, EPA indicated vacancies or resource constraints present major obstacles for DEM to keep track of potential environmental pollution and make sure everyone is following the rules. But Perkins said that doesn’t reflect an underlying weakness in DEM’s enforcement capacity. 

“All the state enforcement agencies are looking at resource constraints and they are doing their best to take care of the most important work that they can,” said Perkins, adding that the EPA regional office is 15 percent smaller than it was 10 years ago. “I’m sure every one of them would welcome an additional inspector or another lawyer in the office or the attorney general’s office to move their cases more quickly but that's not the reality that government agencies are facing these days.” 

And that reality is shrinking budgets, along with an ever-growing list of mandates intended to protect our air, land, and water. 

The budget state lawmakers plan to vote on this week decreases DEM’s budget by more than $10 million from last year. Outside of money for capital projects, DEM’s operating budget is holding steady despite the cuts.

Do you have insight or expertise on this topic? Please email us, we’d like to hear from you: news@ripr.org