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Earth Night

Environmental Issues--Enforcement

Good morning Chairman Pacheco, Chairman Koczera, and Members of the Committee. My name is Pam DiBona, I am the Legislative Director for the Environmental League of Massachusetts.

The Environmental League has worked with Senator Walsh, Representative Atkins, Commissioner Liss and her staff at the Department of Environmental Protection, and members of the bar practicing environmental law to develop new language for Senate Bill 2242. The resulting bill is a reasonable set of amendments to existing statutes that will result in better use of state resources, fair application of penalties, and improved public access to information about how and whether our environmental laws are being enforced. We fully support Senate Bill 2242.

Action to improve Massachusetts' compliance and enforcement systems and practices are especially important given the Bush administration's move to reduce federal-level enforcement efforts, instead relying on states for enforcement.

ELM has long been interested and active in evaluating implementation and enforcement of existing environmental laws in Massachusetts. In 1996, we prepared a report on the status of enforcement in the Commonwealth, which led to a series of oversight hearings by this Committee. In that report, ELM documented that the number of "warning tickets" given to violators was going up, and strategies for gaining compliance with environmental laws were not apparent.

In revisiting DEP's compliance and enforcement practices over the past four years, we found several causes for concern:

• A permitted facility can expect an inspection once every 17 years. A facility inspected today was probably last inspected when Roger Clemens was a rookie and Manny Ramirez was playing little league.
• The agency has no coordinated means for following up on individual violations to find out if they have been remedied.
• DEP has no means for estimating what proportion of the regulated community is currently in compliance with environmental laws.
• Massachusetts has no comprehensive ambient monitoring programs to be able to evaluate whether the environment is improving, or even to identify "hot spots" and possible illegal discharges.
• Average penalty amounts have fallen over the past four years. We must be able to make pollution pay, to keep a level playing field for businesses that choose to follow the law. DEP and environmental lawyers tell stories of facility owners who gamble that they will not get caught, or choose to buy a new car rather than new pollution control technology.
• Notices of Noncompliance, or "warning tickets" comprise a high proportion of actions against violators. We do not have access to the data to determine whether they are being applied where higher level enforcement is called for. Some regulated entities have received multiple NONs for the same violation - rather than being fined and brought into compliance.
• We still see little evidence of coordinated, strategic planning among bureaus responsible for enforcement at DEP, or among regional offices.

We believe that the current legislation addresses many of our concerns with the current system.

• The bill directs DEP to supply information to the public about inspections, compliance, and enforcement efforts at regulated entities in their city or town. An online database will serve two purposes: it will require DEP to standardize reporting and compile the data in a central location, and it will provide the public with a means for determining whether the existing laws are being implemented properly. Many inspections are prompted by citizen complaints. If we are relying on citizens to be the eyes and ears of the agency, we should give them more tools.
• The bill also addresses severe inadequacies in applying penalties. The bill requires the Commissioner, to the extent allowable by existing law, to be sure that penalties fit the violation. The bill proposes only one direct change to the Administrative Penalty statute. It increases the maximum penalty for false reporting of data to the agency from $250 per day to $1000 per day. We think this is an important change given the trend toward "self-reporting" by regulated facilities, for example, under DEP's Environmental Results Program.
• The bill directs DEP to carry out annual strategic planning for targeted compliance and enforcement. In our conversations with enforcement experts from both the private and public sector, the parameters included in the bill - for example, assessing consistency among regions, information about compliance status of regulated entities, and statistics about repeat violations - came to the fore as most useful for evaluating past successes and generating new strategies. The existing Permit & Fees Advisory Committee established in Ch. 21A, §18, made up of industry, academic, and environmental representatives, is directed to help DEP develop the annual strategic plan. An important component of strategic planning will be to develop benchmarks for environmental improvements and measures of success, something any organization should be doing on an annual basis.
• DEP currently has authority under Ch. 21A, §18 to collect a compliance assurance fee when granting permits to regulated entities. The bill directs the Commission to tally up resources dedicated to compliance and enforcement, estimate resources needed to carry out the strategic plan, then compare this to the funds generated by the compliance fee. The bill does not increase the fees, only directs DEP to carry out the analysis. We all pay taxes to keep cops on the beat whether we violate the law or not, it is only right that the permit fees at least defray the costs of compliance.
• Finally, the bill amends the debarment statute, under which "bad actors" are barred from receiving state contracts and grants, by adding repeated or aggravated violation of environmental laws as cause for debarment. Just as those who violate labor laws are refused government-funded projects, persistent violators of environmental laws should not be rewarded with state funds.

The Massachusetts legislature has passed numerous important environmental laws. The current proposed legislation fine-tunes implementation of those laws, making sure that they meet the Commonwealth's original goals of environmental protection. We have an opportunity through this legislation to make real changes that will help to improve the efficiency and fairness of enforcement of existing environmental laws.

We hope that the Committee will issue a favorable report on Senate Bill 2242.