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DEP: Business Friend or Foe?
Though some business owners dish dirt about selective enforcement, state's environmental watchdogs say they're just doing their job
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Business New Haven
8/10/98
By: Linda Mele
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Some are calling it the “new and improved” Department of Environmental Protection and praising the agency's efforts to work with businesses to ensure compliance with the regulations and not just fine them for the sake of generating revenue.
In his 14 years with Cytec Industries Inc. of Wallingford (founded in 1941 as the American Cyanamid Co.) Environmental Services Manager Charles Cappannari says he's seen “a maturing of environmental
programs” and an agency more willing to work closely with companies “in a spirit of cooperation” to help them comply.
“The threat and the reality of penalties and fines are still there,” Cappannari says, “but the attitude has changed.”
Cappannari points to Cytec's involvement in a pilot program aimed at air pollution prevention and the streamlining of compliance actions, especially in the area of paperwork and the permitting process.
“It worked out very well,” Cappannari says, “and achieved the environmental benefit they were looking for without being a cumbersome process for businesses. It became a national model.”
Environmental consultant Pamela Katz of Simsbury, who was a DEP engineer in the early 1970s, agrees things are changing.
Katz says she remembers when one former commissioner had a celebration when the department reached the $1 million mark in fines.
“Over the last five or 10 years, that attitude has changed,” Katz says, “and today they're more likely to say if you're willing to work with us, we're willing to work with you, although there is still a lot of room to improve communications between the different DEP departments.”
Michael Hopkins, president of Hopkins Environmental Management in Madison, says the DEP regulations are very complex and some companies get in trouble because they simply don't understand them.
“Sometimes, it's a matter of not understanding the language of the regulations,” Hopkins says. “For example, when the DEP says to 'close' an underground storage tank, they don't mean you just don't use it any more. They mean it must be removed or permanently filled in. If the business doesn't understand this, they are violating a DEP order.”
Hopkins says another problem he's seen in Connecticut is that the regulatory system here “seems to be driven by the numbers.”
He says, historically, enforcement has been predicated on whether a company is exceeding the statistical standards as opposed to whether exceeding the standards in a particular situation has actually adversely impacted the environment.
“Other states seem to take the environmental impact more into consideration when determining if an enforcement action is necessary when the numbers are out of line,” Hopkins says, “and, in some cases, the numbers are taken out of context.
“In addition,” adds Hopkins, “many business owners don't understand that a letter from the DEP ordering them to do something is an enforcement document. They think an enforcement document should look like a speeding ticket, an actual form that lists a violation, tells you exactly what to do to fix it, and lists the penalty to be assessed if you don't do it, so they ignore it and eventually get in trouble.”
Both Katz and Hopkins agree that a letter from the DEP should be viewed the same way a letter from the IRS: Neither should be ignored.
“I've had as many clients get in trouble for doing something they didn't realize was a violation or not doing something because they didn't realize they were being ordered to do it as I have those who have actually polluted something,” Hopkins says.
Because the DEP permit process includes record-keeping requirements that may extend over a period of years, quite a few companies find themselves in violation of the regulations simply because they haven't kept proper records.
“Paperwork violations are just as critical as actual pollution violations, but many companies don't view them as serious violations,” Katz says. “They forget the record-keeping requirement was a condition of the permit process.”
Certain businesses, however, don't see it the same way and decline even to be identified, fearing repercussions.
They claim the DEP cares more about punishing companies than it does about protecting the environment and it “levies fines that don't necessarily fit the crimes alleged” and “many of the fines are not for real damage to the environment,” says one CEO.
DEP Assistant Commissioner Jane Stahl says her agency is trying to address these concerns. Its new compliance-assurance policy, she says, includes a departmental reorganization geared toward better assisting businesses and individuals and getting information out and educating those who are affected by the department's regulations.
“Our goal is to make sure people understand what it is we're requiring of them,” Stahl says.
Stahl acknowledges the her agency has been criticized from both sides.
“Those who get fined think we're too strict, and those involved in groups that advocate protecting the environment think we're not doing enough,” Stahl says. “I guess if everyone is annoyed, we must be doing something right.”
Part of the new policy is to modify the language in the regulations and instructions to make it easier to understand which should improve communications between the DEP and businesses, Stahl says.
Another move has formalized a small-business assistance office to address air, waste and water pollution issues and help companies comply with the regulations through a pre-application meeting process.
Today, Stahl says several things go into the decision to initiate an enforcement action:
• How serious is the violation? Is there actual harm or threat of harm to the environment?
• Is it a knowing and willful violation?
• Is it sloppiness or an accident? or
• Did the business simply not know it was a violation?
“If we have to take an enforcement action, someone has gone out of their way to avoid compliance or we did not tell them clearly enough what they were required to do,” Stahl says.
“If it's the first, we will hold them to the strictest accounting available,” Stahl says. “But if it's the second, we must be able to provide some leniency because we haven't done our job.”
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