Department of Environmental Protection Enforcement Policies and Procedures (1998)

The Legislative Program Review and Investigations Committee authorized a study of the Department of Environmental Protection's (DEP) enforcement policies and practices in March 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 DEP 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 maintained the "user-friendly" posture was never intended to replace traditional enforcement, but to instill a greater degree of professionalism and courtesy among staff.

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 program review 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, 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.

The committee also found problems related 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 had 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, did not provide adequate guidance to staff to assure outcomes were 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 was insufficient;

· DEP had no systematic way of tracking compliance with enforcement actions, and there were inconsistent practices among the regulatory bureaus in closing out enforcement actions;

· an inadequate management information system existed, limiting the department's oversight of enforcement actions;

· enforcement actions were 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 table below summarizes the recommendations contained in the committee's report. It also lists legislative changes enacted as a result of the study and describes actions taken by the Department of Environmental Protection to comply with the recommendations.

This is the third year the committee has reported on DEP compliance with the study recommendations. In most areas, the department has made progress in addressing the committee's recommendations. It has taken a number of steps in revising necessary policies and procedures, and begun planning for several other longer-term management improvement projects. It adopted a revised civil penalty policy, effective February 2001. Moreover, the department has expressed its continuing commitment to improvement by continuing the Office of Enforcement Policy and Coordination (OEPC) to: systematically revise enforcement and penalty policies and procedures; provide oversight of enforcement activities across bureaus; and oversee other changes recommended by the programs review committee and the federal Environmental Protection Agency. However, more needs to be implemented to effectuate the changes recommended by the committee and required in legislation.

The department missed a number of deadlines required under Public Act 99-225 relating to: its intent to adopt regulations for administrative civil penalties; the development of a file management system; and reporting on the timeliness of enforcement actions and variances to department policy. In addition, DEP is awaiting development of an information management system to assist file management efforts.

The committee believes development of a comprehensive information management system is a key element in better managing the department's workload. It will, in all likelihood, take years for the system to be fully developed. However, certain changes need not wait that long. In its 2000 Annual Report on Environmental Compliance in Connecticut, the department has begun to report on timeliness by type of action.

The program review committee recognizes the progress made to date during the three years since the study was completed and the complexities inherent in implementing the recommendations.

     

Summary of Compliance with Committee Recommendations

Recommendation

Status

Comment

Issue an affirmative policy statement to all employees that retaliation will not be tolerated.

Partial

The commissioner of environmental protection reported in the first compliance response that he communicated orally to his managers and staff a policy against retaliation. A written statement has not been issued due to potential inconsistency with state law and labor/management agreements. He continues to hold a bi-monthly staff forum to allow staff to raise issues directly to the commissioner.

As a result of program review's recommendation, P.A. 99-225 states on or before December 1, 1999, DEP shall publish its intent to adopt regulations required under C.G.S. Sec. 22a-6b for administrative civil penalties (ACP) by March 1, 2000, or report why the regulations cannot or should not be adopted.

Partial

As noted in the first compliance response, the December 1999 deadline was not met, and the department has limited the scope of the regulations to three of the smallest programs as a pilot. While the department intended to publish "intent" by the end of February 2000, last year DEP reported work to finalize the civil penalty policy took precedent over the ACP regulations. In its February 2002 compliance response, DEP notes draft regulations are undergoing final agency review.

Revise and adopt a civil penalty policy that provides adequate and consistent guidance to staff, develop and implement a standardized penalty calculation worksheet to be used in every case, and provide training.

Full

A revised civil penalty policy became effective February 1, 2001. Staff training by OEPC was to start shortly thereafter. DEP reports in its February 2002 compliance response the penalty calculation/recalculation worksheets are final, but notes the "worksheets are recommended formats for documenting penalty calculations and that program specific formats containing, at minimum, the same information are also deemed acceptable."

As a result of program review's recommendation, P.A. 99-225 states on or before January 1, 2000, DEP shall:

· develop a comprehensive file management system that ensures case files contain any and all documents important to decision making and any documents required by policy;

· maintain files in a consistent manner and an accessible format; and

· perform periodic case reviews not less than once annually to monitor implementation.

Partial

A full-time project manager was designated to lead a cross-DEP team in February 2000 to work on an agencywide information management effort, and DEP reports in its 2001 compliance report that the enforcement and inspection processes are currently being reviewed. OEPC continued in 2000 to review case documentation as part of its post-case review. In its February 2002 compliance response, DEP noted, in regard to this recommendation and the committee's management information recommendation, that efforts related to these recommendations "are encompassed in the Department's broader efforts to develop a comprehensive environmental management system. It is also important to understand the costs involved and recognize that the legislature has chosen not to fund any of these activities." The department began work on an Information Strategy Plan, which is expected to be completed by March 2002.

Develop a case log activity sheet to document all activities related to a case.

Partial

DEP has limited the scope of the recommendation by using a Case Milestone Summary sheet to document only major activities in a case.

As a result of program review's recommendation, P.A.99-225 requires DEP to lease or purchase and install an information technology system that provides for a case file database to be shared among all bureaus.

Program review also recommended the system at a minimum include:

· critical case processing milestones;

· case assessment information;

· case outcome information;

· an ability to generate standard management reports;

· an ability to generate customized reports; and

· the tools necessary to enable staff to track compliance.

Partial

DEP continues to be in the planning stages of developing an information system that meets the needs of the department. As reported above, a full-time project manager for an agencywide information management system was put in place in February 2000. In its February 2002 compliance response, DEP noted, in regard to this recommendation and the committee's file management recommendation, efforts related to these recommendations "are encompassed in the Department's broader efforts to develop a comprehensive environmental management system. It is also important to understand the costs involved and recognize that the legislature has chosen not to fund any of these activities." The department began work on an Information Strategy Plan, which is expected to be completed by March 2002.

The department is still using the fragmented, individual data systems in each bureau and program to track enforcement actions and compliance, although DEP reported in 2001 further work on an enforcement module in its computerized Permit Application and Management System. After the Department of Information Technology selected FileNet as the vendor to provide document management software for state agencies, DEP purchased several FileNet products. In its February 2002 compliance response, DEP reported work on: document management; development of a common facility identifier; using a geographic Information system to access environmental conditions online; and an enforcement case management system.

P.A. 99-225 requires DEP to annually report on the timeliness of enforcement actions in the preceding year as compared to standards established by department policy.

Program review also recommended revision of Enforcement Response Policy (ERP) time frames for enforcement actions and a report on the average time for each type of action by program and bureau as well as the number of actions that exceed the time frame by program and bureau.

Partial

DEP has revised its enforcement policies, including time frames, and has begun some post-enforcement review of cases. The department reported on timeliness in the 2000 Annual Report on Environmental Compliance in Connecticut by type of action.

DEP notes in its February 2002 compliance response considerable progress has been made in reducing the timeframe averages from those cited in the 1998 PRI report

P.A. 99-225 requires DEP to annually report on any exceptions or variances to department policy related to enforcement actions in the preceding year.

Program review also recommended significant exceptions include:

· multiple Notice of Violation (NOVs) issued for the same violations;

· only an NOV issued for a High Priority Violation (HPV);

· when lower level enforcement actions are issued for violations of a previously issued enforcement action;

· multiple modifications to consent orders;

· consent or voluntary agreements issued for violations; and

· other actions at variance with stated policies.

None

The department reports it intends to comply in full with this recommendation, but is unable to do so at this time. In part, DEP is planning to use the information management system under development to assist in reporting variances. The Formal Action Consistency Case Review Table submitted to the program review committee identifies some variances. In its February 2002 compliance response, DEP reports that post-case reviews indicate that where variances from policy occurred, staff provided written justifications for those variances.

 

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