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" Donít expect protection "
So say critics of Maine DEP, which finds itself accused of ignoring permit violations, getting in bed with corporate interests, and bending to political whim
BY ALEX IRVINE


Maine Commissioner of Environmental Protection Dawn Gallagher says that whenever sheís faced with a decision, she makes it based on one question: "Is Maine better off?"

A number of Maine citizen and environmental groups are asking the same question regarding the DEP under Gallagherís leadership. They suggest that since Governor Baldacci took office and appointed Gallagher in early 2003, the DEP has become more business-friendly, less transparent in its decision-making, and much more beholden to political whim; and quite a bit of anecdotal evidence exists to give their concerns credence.

There are some numbers, too.

The Environmental Protection Agencyís Environmental History and Compliance Online (ECHO) database, www.epa.gov/echo, lists 525 major permit holders in the state. Out of those 525 majors, 142 were in violation of their permits over the past two years; of those 142, 45 were in continuous violation over eight straight quarters. And, most notably, the ECHO Web site recorded only 19 enforcement actions against the 142 recent violators. If youíre keeping track, thatís 13.3 percent, or about one enforcement action for every seven violations. Of the chronic violators, those with a perfect 8-for-8 record over the past two years, only five have suffered any penalty. That has to be encouraging if youíre running a polluting facility; youíve got an 88 percent chance of being able to wantonly ignore environmental regulations for years on end while avoiding enforcement altogether.

These numbers donít tell the whole story, though. Maine DEP doesnít have jurisdiction over all of the violations, and ECHO doesnít record all of the enforcement actions that are in the early stages of negotiation. But on the other hand, as Gallagher and deputy commissioner David Littell acknowledged in an interview with the Phoenix, for every enforcement action that isnít in the ECHO database, thereís more than likely another as-yet-unrecorded violation, so the numbers offer a decent baseline to get a sense of where DEP stands.

And where they stand appears to be on the sidelines, at least when it comes to enforcement. Part of this poor record can be attributed to understaffing and underfunding at Maine DEP, as people on both sides of the debate are quick to point out; Naomi Schalit of Maine Rivers sympathetically notes that lack of resources forces the DEP in some cases to "triage" their enforcement duties. Fair enough. Beyond that consideration, though, Maine citizen and environmental groups unanimously contend that the state DEP is hamstrung by political considerations ó more specifically, by what they consider a short-sighted emphasis on economic development without regard to environmental consequence.

"I think in many cases the DEP feels that its role is to promote economic activity," Schalit says, "and they will bend over backwards to allow that to happen until they get called on it by people who care about the environment and say, ĎWait a minute, we have to re-balance this.í It is very clear to us that the governorís office has taken their political considerations, which are largely economic developments of a certain kind, and overlaid that with what the DEPís mission is. So we get some serious issues raised about whether the DEP is really doing its job."

Gallagher deflects much of the criticism that comes her way by connecting it to the actions of previous administrations, saying sheís addressing issues ó such as Androscoggin River standards and aquaculture practices ó left unresolved for years. "If people are saying weíre handling issues and thatís a criticism that weíre being political, I canít agree with that," she says.

Returning to her touchstone theme, Gallagher offers this insight into her decision-making process. "If the notion of ĎIs Maine better off?í comes into that question, thatís what we do."

MAKING OUR STATE BUSINESS-FRIENDLY

Gallagher is quick to point out the stateís recent environmental successes: the cruise-ship discharge law, the climate-change statute, new legislation requiring computer companies to take old machines back so they donít end up in landfills, the stateís fight to bring upwind power plants into Clean Air Act compliance. Environmentalists laud these initiatives but say the state tends to grandstand on environmental issues that donít actually have pocketbook effects here. Apple Computer isnít going to move a factory because Maine says they have to pay the shipping on old computers, and cruise ships wonít stop coming to Maine because they have to dump their greywater a little farther offshore.

Here in the state, DEPís enforcement record leaves them open to criticism. The ECHO-derived 13.3-percent rate of enforcement action for violations committed during the past two years puts Maine dead last in New England and in the lower tier of states nationwide. Granted, thatís just one set of numbers, from a source that provokes ambivalent reactions from DEP and green groups, but the impression squares with the experience of Josh Kratka of the National Environmental Law Center (NELC), who has worked on cases throughout New England. Maine DEP, he says, is "less likely to take actions to protect environmental interests than most of the other New England state environmental offices Iíve dealt with."

Heís not alone. "On paper Maine has some pretty stringent environmental laws," writes a current DEP field staffer who wished to remain anonymous. "In practice we are generally unwilling/unable to enforce those laws . . . consider that my department has [under statute] the Ďpowers of a constableí; DEP management has never allowed field staff to exercise those powers for fear of antagonizing Maine industry."

Instead, the state relies on consent decrees, which take forever to negotiate ó the Portland Water District has been going back and forth on theirs for at least six months now ó and typically end up proposing fines that donít come anywhere near recovering the amount of money the violating entity has made by ignoring the rules.

DEP enforcement director Jim Dusch points to the stateís collaborative approach as one reason why green groups see the department as compromised. In other states, Dusch notes, departments have the power to walk up to a violator and write a ticket; in Maine, by contrast, consent decrees have to go through the attorney generalís office, which means a third party is always involved in the resolution of a complaint.

DEP deputy commissioner David Littell agrees that the process of taking enforcement through the AG is "cumbersome," and he says the state sometimes abandons enforcement actions because they know the AGís office wonít follow up. "Iíve asked why weíre not going after certain violators, and the answer Iíve gotten back is that the AGís office in the past has not been interested in pursuing these. Itís certainly an issue."

Is DEP looking to get such authority from the legislature?

"Itís something weíre looking at," Littell says, but DEP leadership hasnít discussed it in any depth.

Dusch, perhaps surprisingly, isnít enthused about the prospect. "I think there was some noise about that [getting direct enforcement authority] some time ago," Dusch says, but officials decided there was no need for it. "Weíre very proud of our enforcement record."

Heís just about alone there.

"DEP tends to avoid enforcement action UNLESS it is politically expedient," the anonymous staffer writes. "For example, we recently hammered a construction/paving company (Ferraiolo) for oil discharge violations that were real but not overly traumatic . . . However, the violations were reported to us by an environmental group that was actively critical of DEP stewardship of the Kennebec river. DEP pursued Ferraiolo primarily to appease this environmental group."

This environmental group is Friends of Merrymeeting Bay (FOMB), which has indeed been critical of the DEP for a number of reasons. Ed Friedman of FOMB confirms the DEP stafferís account of the Ferraiolo action, saying DEP only went after the company when FOMB came to them with photographs of violations.

"And theyíd been inspected every year," Friedman says wonderingly.

Kratka characterizes the Maine DEP as existing in "foot-dragging mode," taking a "totally reactive approach to environmental issues" ó acting, in other words, only when citizen groups make it impossible for them not to.

 

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Issue Date: July 16 - 22, 2004
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