Legislative Program Review and Investigations Committee
Executive Summary
DEP Enforcement Policies and Practices
The Legislative Program Review and Investigations Committee authorized a study of the Department of Environmental Protection’s enforcement policies and practices in March of 1998. The study centered on two primary areas of concern. One area related to specific circumstances occurring at the department beginning when former Commissioner Sidney J. Holbrook took office in 1995. The other area of concern was the overall operation of the enforcement program and how it was implemented.
Former Commissioner Holbrook adopted "user-friendly" as the catchword for the overall approach to dealing with the regulated community. A key feature of this approach was to seek a consensual resolution to violations where possible. The committee found the administration was lax in providing the necessary guidance to staff in implementing this shift in policy, and was either inattentive or indifferent to staff confusion and concerns and the subsequent effects on enforcement. The department’s administration maintains the "user-friendly" posture was never intended to replace traditional enforcement, but to instill a greater degree of professionalism and courtesy among staff.
Complicating the picture is the national trend toward compliance assistance in environmental regulation. Compliance assistance is a structured approach that provides assistance to the regulated community in complying with environmental regulations and promotes a more flexible alternative to traditional enforcement, although not intended to replace it. However, it is unclear whether DEP’s "user-friendly" approach was meant, at the time, to refer to any compliance assistance initiatives occurring in Connecticut and nationally.
Further intensifying the concerns about the direction of environmental enforcement during the Holbrook years were the activities of the commissioner’s former executive assistant and charges of undue influence. The committee found while this executive assistant was more active in regulatory cases than had been officially described by the department, and was at times a disruptive influence in cases, he did not ultimately affect the outcome of enforcement cases.
In addition to the above findings, the committee focused on general enforcement matters and the overall operation of the enforcement program. The committee found there was some measure of animosity between certain employees at DEP, on the staff and management levels, which has had a negative effect on enforcement efforts at DEP beyond the people directly involved. Further, the committee found DEP management had not exerted sufficient leadership to address these issues effectively.
In its review of DEP, the committee also found problems relating to the department’s statutory and administrative civil penalty policies. The department is required by law to develop regulations to impose civil penalties through the use of unilateral orders. The committee found DEP has not developed the necessary regulations in the five years since the statute was enacted. Moreover, the committee found the department’s administrative civil penalty policy, used in developing penalty amounts for consent orders, does not provide adequate guidance to staff to assure outcomes are appropriate or consistent.
Finally, the program review committee found a number of shortcomings related to basic management tools and processes at the department. Specifically, the committee found:
enforcement case documentation is insufficient;
DEP has no systematic way of tracking compliance with enforcement actions and there are inconsistent practices among the regulatory bureaus in closing out enforcement actions;
an inadequate management information system limits the department’s oversight of enforcement actions;
enforcement actions are not completed in a timely manner; and
in a number of instances the actions of the department were at variance with the stated policies and usual practices of the department.
The recommendations in the report were aimed at strengthening DEP’s management mechanisms to ensure policies and procedures are implemented as envisioned and provide information that presents a clear and accurate picture about enforcement efforts. The committee adopted the following nine recommendations at its December 21, 1998 meeting.
RECOMMENDATIONS
DEP shall issue an affirmative policy statement to all its employees that retaliation against employees for statements of employee opinions related to environmental matters will not be tolerated. It shall reinforce that policy with all its managers.
The Department of Environmental Protection shall resolve the issue of imposing civil penalties through unilateral orders either by promulgating the regulations and thereby complying with state law or requesting the General Assembly repeal or revise the statutory mandate.
The Department of Environmental Protection shall:
revise and adopt a civil penalty policy that provides adequate and consistent guidance to staff in calculating penalties. The department shall periodically update
the civil penalty policy to ensure that penalties and classifications remain consistent with current environmental practices and concerns;
develop and implement a standardized penalty calculation worksheet to be used in every case that imposes a penalty. The worksheet should show the evolution of the final penalty calculation, including any adjustments to the penalty amount and rationale for those adjustments; and
provide training to all regulatory bureau enforcement staff and management responsible for calculating penalties.
DEP shall review its existing file management practices and develop a comprehensive file management system to ensure that case files contain the necessary documentation important to a case and those documents required by DEP policy. The files should be maintained in a reasonably consistent and readily accessible format for each of the bureaus. Periodic case review on the part of management, even if on a random sample basis, should be part of the file management system.
In order to assist in the reconstruction of a case, DEP shall develop a case log activity sheet for each case file. This sheet would document all activities related to a case. This would include dates of when significant actions occurred, such as the decision to pursue a particular strategy at agenda meetings and the mailing of a consent order, to not so significant events such as documenting each contact with a violator. The activity log would provide a chronology of a case and assist in explaining what and when actions occurred. This would be a necessary adjunct to the newly developed case conclusion summary to the Enforcement Action Summary (EAS), which should be an aid in explaining the why of what occurred.
DEP shall develop and implement a management information system that provides the tools necessary to enable DEP staff and management to track compliance with enforcement actions in a timely manner.
DEP shall design and implement a uniform, automated management information system for the regulatory bureaus that captures essential enforcement case information and results in the production of valid and reliable data. The system at a minimum shall include, but not be limited to, the following:
critical case processing milestones, such as inspection dates, report completion dates, date of enforcement actions, enforcement action deadlines, etc:
case assessment information, such as violator types, types of violations, penalty calculations, revisions to any case information indicating reasons for change, who authorized, and when, etc;
case outcome information, such as any environmental benefits that can be identified as the result of an enforcement action, payment of penalties, etc;
the ability to generate standard management reports on the timeliness and performance of individual personnel as well as divisions in completing inspections, in assessing inspection reports, and in issuing and monitoring enforcement actions; and
the ability to generate customized reports, compliance histories, and standardized enforcement documents.
DEP shall:
establish in the Enforcement Response Policy (ERP) time frames for the completion of significant steps in the informal and formal enforcement process; and
monitor and measure the time it takes for the completion of each step in the informal and formal enforcement process. The department shall report the average amount of time for each type of action by program and by bureau, and shall report the number of actions that exceed the timelines established in the proposed ERP by program and bureau. Finally, the department shall revise time frames or make process adjustments, as necessary, to ensure enforcement actions are executed in a timely manner.
Data on the timelines of enforcement actions are to be included in the annual report, Environmental Compliance in Connecticut, to the joint standing committee having cognizance of matters relating to the environment beginning with the February 2000 report.
In order that management and other decision makers, at all levels, be fully informed about the utility of their own policies in a more systematic way, a policy exception report shall be developed by DEP. This report shall include the number and a brief description of significant exceptions or variances to stated policies that the department pursues by each regulatory program. Significant exceptions would include, but not be limited to:
multiple Notice of Violation (NOV) issued for the same violations;
only a NOV issued for high priority violations. This would require all bureaus to complete an abbreviated Enforcement Action Summary for NOVs, so that all violations are classified;
when a lower level enforcement action is issued for violations of a previously issued enforcement action. For example, if a unilateral order is violated, the expected course of action is a referral to the attorney general. If a consent order is issued for that violation, that would be considered an exception. Also, violations of a consent order handled through the issuance of another consent order, would be considered an exception;
multiple modifications to consent orders;
consent or voluntary "agreements" issued for the resolution of violations;
Supplemental Environmental Project (SEP) policy exceptions, such as when a SEP totally displaces a monetary penalty; and
other actions at variance with stated policies that the department would deem significant.
The exception report is to be included for a five-year period in the annual report, Environmental Compliance in Connecticut, to the joint standing committee having cognizance of matters relating to the environment beginning with the February 2001 report. At the conclusion of the five-year period, the committee shall decide whether to continue, alter, or terminate the policy exception reporting.