Friday, March 6, 2015

Learning DEM's Enforcement Process

by Tom Kutcher, Narragansett BayKeeper

When I came onboard at Save The Bay as Narragansett Baykeeper three years ago, I thought I had a pretty good understanding of environmental regulations and how they worked. Boy, was I wrong. Much of my ensuing education was gained directly through my dealings with the very first case handed to me: the ongoing non-compliance of Rhode Island Recycled Metals with the Clean Water Act. In a nutshell, the company was illegally polluting Narragansett Bay due to irresponsible management of its scrapping operations.

The solution seemed pretty easy to me: document non-compliance with the law, bring it to the regulatory and enforcement authorities and they would impose daily fines as authorized by the Clean Water Act to compel compliance. If they refuse to pay the fines, they get taken off to jail in handcuffs, right?  WRONG!

When you break environmental laws and pollute everyone else’s precious resources (like Narragansett Bay), the police don’t come to your business, read you your rights, and take you away. Now, of course, if you take a few too many undersized littlenecks, the guys in the brown suits will confiscate your gear and haul you away – that’s what happened to my twelve-year-old childhood friend, resulting in the loss of my best clam rake! So imagine my shock to learn that if you entirely disregard laws prohibiting discharge of toxic metals and oils into the Bay, the guys in the brown suits never come into play. Instead, the DEM sends you an informal Warning Letter. If you choose to ignore the warning, DEM sends you another cordial letter, called a Letter of Non-compliance, urging that you comply with the law or you could be fined. If you decide to ignore the Letter of Non-compliance entirely, for say, a year or more, you MIGHT be issued yet another cordial letter stating that DEM knows you have broken the law and REALLY might enforce this time (Notice of Intent to Enforce). If you STILL don’t comply in say, another year, DEM might even get really tough and send a Notice of Violation with fines imposed. However, if you decide to challenge the fines, DEM may have you sign a Consent Agreement, giving you a year or so more to comply (with all fines forgiven during this timeframe). Now, if you blatantly and completely IGNORE that court-ordered consent agreement, DEM may ask you to submit an Action Plan on how you intend to comply with the consent agreement. If you refuse to submit the action plan, DEM may FINALLY bring a lawsuit against you in superior court, asking (get this) that the court set a six-month timeline for you to comply with the regulations. Did I just go in a big circle here? And all of this will only happen if there is someone witnessing and reporting violations and hounding DEM every step of the way (that’s what I did on the RI Recycled Metals case at Save The Bay).

This is what I’ve learned. So, next time you hear someone spouting off on how the DEM’s enforcement of the Clean Water Act is putting people out of business, think of this: my friend Billy was hauled away with my clam rake at the age of twelve, while RI Recycled Metals continues (yes, even today after this lawsuit was filed) to rake in money at the expense of our beautiful Bay. Go figure.

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