SULLIVAN /
The R.I. Department of Environmental Management is seeking passage of several pieces of legislation that would substantially increase the potential penalties for environmental, hazardous-waste and site-remediation violations.
One bill backed by the DEM would establish a new $50,000 civil penalty per violation per day under the state Industrial Property Remediation and Reuse Act, to address failures to comply with remedial actions the department has required.
Another measure would increase the maximum penalties for civil and criminal violations of the R.I. Hazardous Waste Management Act from $10,000 to $25,000 per violation per day, bringing them in line with the Massachusetts, Connecticut and federal maximums.
And a third measure would increase the maximum administrative penalty for environmental violations from $1,000 to $5,000.
But the goal, DEM Director W. Michael Sullivan said in an interview, is not to boost the penalties for all violators, but rather to put more pressure on the worst offenders.
“This doesn’t mean we’re forming a harder edge,” he said, because penalties are levied “on a matrix that looks at, was the violation willful and negligent, or was it an innocent yet illegal act?” For “egregious violations,” however, the fines would be more “meaningful.”
“So for those who are only motivated under the fear of fine, it will make it more relevant,” Sullivan said. “This allows us to fine the evil ones.”
Still, the proposed legislation has caused some unease in the business community.
David R. Carlin III, vice president of government affairs for the Northern Rhode Island Chamber of Commerce and lobbyist for the Rhode Island Chamber of Commerce Coalition, which represents 13 chambers statewide, said that although the coalition “will not oppose” the hazardous-waste legislation, the other two penalty hikes are unacceptable.
The site remediation program is already tough enough without a $50,000 fine, Carlin said.
“It gives the state the power to collect up to three times the amount of any costs the state incurs due to a violator, and it also gives the state the ability to sue civilly,” he said. “We think that under the current statute it is very specifically spelled out what the state’s rights are. The $50,000 seems to be number that is being added simply to have a flat fee.”
The coalition will oppose the increase on the environmental violation penalty limit because it doubts that it will be used only rarely, as the DEM says.
“Even though the department says they would use this only in extreme and limited cases, the penalty, nonetheless, would increase five times, and from our perspective there is nothing in this proposal that would limit the scope by which DEM can impose those fines,” Carlin said.
“DEM may say we will only fine $5,000 in the case of extreme abuses,” he added, “but that’s not written into the legislation.”
But, according to Sullivan and Robert Ballou, the chief of staff for DEM, both increases are long overdue.
The penalty for hazardous-waste violations hasn’t been updated since at least 1981, and the penalty for environmental violations has remained the same since it was created 20 years ago.
“It is a concerted effort to update our statutes,” Sullivan said. “These things haven’t been changed in 20 years, and 20 years ago, a $10,000 fine or a $1,000 fine was relevant, but 20 years of inflation has altered the efficacy of it.”
Carlin, however, said the increase in administrative penalties is “extreme.”
“Regardless of whether it has to do with budgeting or the fact that these penalties haven’t been changed in 20 years,” he said, “it’s still five times greater than is allowed today.”
Yet Curt Spalding, executive director of Save the Bay, said that with the lower fines, it is easy for violators to risk skirting DEM.
“The fact that they are increasing the fines seems appropriate based on the current values of these properties,” Spalding said. “The DEM doesn’t have many people out looking for violations, so if the fine is too low, the applicant may move forward, figuring he or she will settle things later, and the department has very little leverage.”
He added that he didn’t think it would affect the vast majority of business owners.
“I think this change is most important for people who don’t give a darn and who see this as a dollars and cents problem,” Spalding said. “For them, if the fine is too low, they will just go ahead. By having a higher fine, they may not try to do so, because there’s a financial disincentive to taking risks with natural resources.”
Sullivan also said individual business owners who have come to him with concern about the higher fines have not opposed the bills once he explained the intent. “Those who have talked to me understand the appropriateness of making the fines more current,” he said.
Spalding said he hopes that some of the money will go towards making the department more “user-friendly.”
“We need to understand this agency is under-funded, and I would hope some of this would be money generated to help people comply with community standards to protect the environment,” he said. “There are a lot of small business owners and property developers who find dealing with the department frustrating, and it has to be user-friendly.”
Ballou said that the funds from hazardous-waste and site-remediation fines would go into the DEM’s emergency response fund. The funds from environmental violations, which are most commonly from septic system violations, would go to DEM’s water and air protection account, which is used for programs and activities relating to water and air protection.
“The best outcome is that we don’t make a penny,” Ballou said. “The intent is to obtain better compliance and fewer violations.”
