Table of Contents:

I. Introduction
II. The Regulatory Watch Program at Environmental Advocates of New York
III. Overview of the Department of Environmental Conservation
IV. The DEC: Endangered Agency
V. How Have Staff Reductions Affected the DEC’s Performance?
VI. The DEC’s Approach to Staff Shortages: Outsourcing and Privatization
VII. Conclusion
VIII. Recommendations

I. Introduction

New York’s Department of Environmental Conservation (DEC) is one of the state’s most important agencies. It is charged with protecting our air, water, and land — the natural resources on which all New Yorkers depend to provide a healthy and high quality environment to live, work, play, and visit. But in recent years, the DEC has suffered from dramatic staff cuts, losing many of its most experienced scientists and engineers.

This trend is potentially quite dangerous — and costly — for public health and the environment. Is the DEC still able to enforce the law and protect our natural resources? Have staff cuts forced the DEC to cut corners in protecting our air and water quality and managing forests and other public lands? By cutting back on financial resources to the DEC, is the state saving money or just borrowing on our future?

These questions are sorely in need of public discourse and debate. We do not have the complete answers to these important questions, but Endangered Agency is meant to stimulate this debate. We seek to highlight some recent developments and practices at the DEC, and to point out the environmental harm that may arise if these practices are allowed to continue.

II. The Regulatory Watch Program at Environmental Advocates of New York

For 35 years, Environmental Advocates of New York has been an effective and aggressive watchdog on virtually every major state environmental issue. Throughout its history Environmental Advocates has been the leading voice for some of the state’s most important environmental laws – the State Environmental Quality Review Act (SEQRA); the Wild, Scenic & Recreational River Systems Program; the Environmental Protection Fund; the Hudson River Estuary Management Act; the Lead Poisoning Prevention Act; and the 1996 Clean Water Clean Air Bond Act. While, Environmental Advocates’ efforts have long been associated with the New York State Legislature, advocating for the diverse laws necessary to protect our environment and public health, we also play a large role in watchdogging how state agencies enforce those laws.

In recent years, agencies are increasingly reluctant to share information with the public, and their day-to-day activities are much less transparent. In order to help shed more light on agency actions and encourage additional public input in their decisions, Environmental Advocates is developing its Regulatory Watch program. The purpose of this effort is to monitor state agencies, inform the public and grassroots groups of relevant activities, provide useful input for agencies, expose areas of concern, and most important, ensure that the state’s environmental laws are properly implemented and enforced.

III. Overview of the Department of Environmental Conservation

In 1970 the Department of Environmental Conservation was established as a central agency with the authority to enforce New York’s environmental laws. Prior to 1970 the responsibility for environmental protection, such as it was at that time, fell to a hodge-podge of agencies, boards, and commissions. Bringing these authorities under one centralized agency created a more efficient and effective state environmental management program.

Today the responsibilities of the DEC are significant and continue to grow. The agency’s duties include, among other things:

• Implementation of the Clean Water Act, including regulating water pollution discharges, monitoring water quality, establishing water quality standards, and planning how to reach those standards in all of New York’s water bodies;
• Implementation of the Clean Air Act, including regulating air pollution sources, monitoring air quality, and planning how to attain air quality standards;
• Regulation of solid waste management and disposal, including recycling programs;
• Regulation of the transportation, disposal and treatment of hazardous and toxic wastes;
• Enforcement of fish and wildlife regulations, establishment of fish and wildlife management programs;
• Listing and management of threatened and endangered species;
• Forestry and land management;
• Management of the Adirondack and Catskill forest preserves.
• Wetlands protection;
• Regulation of mining;
• Management of coastal resources;
• Implementation of Superfund/Brownfield program.

IV. The DEC: Endangered Agency

Since the mid 1990’s the DEC has been forced to maintain all of the important program areas listed above, and others, with steadily decreasing staff, significant budget cuts, and dwindling funds (including from the 1996 Clean Air/Clean Water Bond Act). The DEC is comprised of approximately 3,300 employees statewide divided among 14 divisions at the central office in Albany and nine regional offices. The Public Employees Federation labor union represents most of the agency’s employees, with the remainder being non-union management positions and political appointees.

Staffing reductions have resulted from several practices instituted by Governor Pataki since he took office in 1995, including:

• hiring freeze imposed on all state agencies since 1995;
• Early retirement incentives which encouraged the departure of some of the DEC’s most experienced personnel;
• Replacement of career professionals with short-term outside contractors. In many cases these contractors spend a significant amount of their contract period in training, only to leave at the end of the contract to be replaced by another contractor who requires training.

Although the exact figure is difficult to ascertain, by our best estimate the DEC is currently operating with approximately 700 fewer employees when compared to staffing levels in the early 1990’s. Overall, DEC spending for personal services, when adjusted for inflation, was dramatically cut from fiscal years 94-95 to 03-04: 55.2 percent for the Division of Solid Waste and Hazardous Materials; 13.6 percent for the Division of Fish, Wildlife and Marine Resources; and 7.3 percent for the Division of Air and Water Quality.

In fiscal year 2003-2004 alone, 234 full time positions were eliminated at the DEC, decreasing the staff from 3,535 to 3,301, a 6.6 percent drop. (Fiscal year 2003-2004, Budget Testimony before the New York State Legislature, DEC Commissioner, Erin Crotty, January 2003).

In an effort to keep up with its immense workload, the DEC is forced to juggle personnel within the department, from one program to another. This has resulted in some staff working outside their area of specialization, and in some cases, employees filling positions for which they are not qualified.

In an attempt to solve their staffing problems, the DEC is increasingly relying on contract personnel hired through outside agencies and non-governmental organizations. According to a document released by the Public Employees Federation, “the off budget hiring problem has become so pervasive in the last few years, that last year the Chief Fiscal and Personnel Officers of DEC could not answer questions as to how many of these contract employees work at and for DEC.” (PEF/Encon Staffing Alert Concerning the NYS DEC, June 2004)

Table 1. General Fund Staff Positions Eliminated From the DEC in Fiscal Year 2003-2004*
Program	General Fund Positions Eliminated
Air and Water Quality Management	45
Environmental Enforcement	35
Fish, Wildlife and Marine Resources	26
Forest and Land Resources	66
Solid and Hazardous Waste Management	26
*Data compiled from New York State Executive Budget, 2003-2004.

The DEC’s motivation for these questionable hiring practices is clear: the agency is severely short-staffed. Yet by hiring through outside organizations the DEC is skirting the long established civil service testing and competitive recruitment and hiring practices that are required of state agencies. In fact, little is known about the hiring practices of these outside organizations, or the qualifications of the personnel filling these positions.

The administration would like the public to believe that there has been no negative impact on the DEC’s effectiveness or New York’s environment as a result of reduced staffing levels. But evidence suggests otherwise.

V. How Have Staff Reductions Affected the DEC’s Performance?

The agency is short on staff. How has this changed the DEC’s effectiveness? This is a difficult question to answer in a comprehensive and quantifiable way. In some cases, the DEC’s performance may not be limited by internal factors, but by outside political influences or other agencies performance. For example, the DEC’s ability to issue new regulations in a timely manner is hindered by a painfully slow review process at the Governor’s Office of Regulatory Reform, often by individuals with little environmental law expertise. In many cases, the limited number of staff inevitably reduce the quantity and quality of the work completed by the DEC. Common sense indicates that an organization cannot complete more work with 700 fewer employees.

There is evidence of limited DEC performance due to an overworked and thinly stretched staff. This information is presented below in an attempt to stimulate discussion of the critical role of DEC employees, the important work that they do, and the risks associated with disinvestment in this agency.


Example: Not enough DEC staff to update expired water pollution permits

Under the federal Clean Water Act a polluter must receive permission from the Environmental Protection Agency (EPA) or a delegated state authority to discharge pollution to a state’s rivers, lakes, or coastal waters. In New York the DEC is delegated this authority and issues State Pollutant Discharge Elimination Systems Permits that authorize billions of gallons of sewage, industrial waste, stormwater, and other pollution to be discharged into New York’s surface water or groundwater.

These permits are a vital link between the DEC and the regulated community, providing the basis for review and monitoring of pollution discharges. Under this program, those who discharge water pollution are required to use the best technology available to control the pollution.

In recent years, however, the DEC staff responsible for issuing and overseeing water pollution permits have fallen victim to budget and staff reductions. A 2003 report released by New York State Comptroller Alan Hevesi, concluded, “neither low-risk permits nor high-risk permits are adequately monitored by DEC.” The low-risk and high-risk classification is based on the DEC’s Environmental Benefit Permit Strategy that prioritizes pollution discharges based on their potential to do harm to the environment. The facilities rated in the top 10 percent for their potential to cause harm receive the high-risk classification.

The Comptroller’s report also acknowledged that under state and federal law,

“all clean water permits must be reviewed by DEC at least once every five years. However, many low-risk permits go more than five years without any review, and many high-risk permits do not receive the annual review intended by DEC. In the absence of DEC reviews, some permits may not receive needed adjustments, and as a result, may no longer provide the level of protection intended by the DEC.” (Comptroller’s Report 2001-S-18, issued March 13, 2003)

DEC officials also told the Comptroller’s auditors that low-risk permits were being extended without review because the agency lacked the staff needed to process the volume of renewal applications. As a result, the last five years’ worth of water quality data would not be examined to determine if the discharge was contributing to a violation of water quality standards. Moreover a review would not be conducted to determine if more stringent pollution controls were needed at the facilities in question.

The report also points out that “only 74 of the 212 high-risk permits (35 percent) that were targeted in April 2001 had been reviewed by May 2002.” Once again, staffing resources were cited as the reason for lack of review. (Comptroller’s report, ibid.)

Furthermore, according to the EPA’s Enforcement & Compliance History Online (www.epa.gov/echo), of the 354 water permits that are currently in place (minor permits are not included in the total), only 78 are listed as being in compliance. Moreover, of the 354 facilities listed, 203 have been in violation of the permit requirements within the past two years, with 30 permits categorized as significant non-compliance.


Example: Air Quality Rules – Slow process results in legal challenge

The DEC does good, important work to protect and improve air quality. Yet much of New York fails to meet the health-based air quality standards set by the EPA for smog (ground level ozone) and soot (small airborne particles). So each DEC measure to improve air quality is a very critical component of an overall plan to eventually bring New York into attainment of these standards.

New York’s air quality is severely affected by old, inefficient power plants located within New York and in upwind states. These emissions contain high levels of sulfur dioxide (SO2) and nitrogen oxides (N0x), both of which cause acid rain. New York’s Adirondack region has been particularly hard-hit by acid rain, with many lakes too acidic to support the once thriving plant and aquatic life. Moreover, the public health problems associated with power plant emissions are considerable. For example, each year thousands of New Yorkers suffer asthma attacks attributable to the pollution spewed by power plants. According to Dirty Air, Dirty Power, a report published by the National Campaign Against Dirty Power, there are an estimated 28,665 asthma attacks related to power plant emissions each year in New York State.

In 1999, in an effort to protect New York State from the damage caused by acid rain, Governor George E. Pataki called on New York’s power producers to reduce their emissions of NOx and SO2. In his proposal the governor called for a 75% reduction of NOx and a 50% reduction in SO2, directing the DEC to implement regulations mandating such reductions.

Five years later, these rules are not in effect. First, the DEC took nearly four years to propose and finalize these regulations, in the process delaying the compliance dates originally announced by Governor Pataki. Most recently, in what can be characterized as a breakdown of communication within the understaffed Division of Air, the DEC was dealt a serious blow by the New York State Supreme Court. The DEC was found to be in violation of the State Administrative Procedure Act when it failed to meet the statutorily established timing requirements for adoption of the regulations. As a result of this timing mix-up, the state’s Acid Deposition Reduction Program’s proposed regulations were recently deemed invalid (State of New York Supreme Court, County of Albany, NRG v. Crotty, Index No. 5307-03, May 2004).

With New York’s claims of leadership in the air quality arena, the acid rain regulation debacle and the number of facilities not in full compliance with their air pollution permits (see Table 3) should be a wake-up call for the administration.

Table 3. Sources of Air Pollution in New York State*
Total Number of Permitted Sources	7,008
Sources that are fully in compliance with permit	4,396
Sources listed as “in violation”	1,831
Sources listed as “high priority violators”	83
Sources listed as “on compliance schedule”	75
Sources listed as “compliance status unknown”	695
Percent of Facilities in Non-Compliance	37.3 %
*Data compiled from the US EPA Enforcement & Compliance History Online, www.epa.gov/echo.

Example: The Division of Lands and Forests Falling Behind in Land Stewardship

The mission of the DEC’s Division of Lands and Forests is “to care for and enhance the lands, forests and natural resources in the state of New York for the benefit for all through the care, custody and control of stateowned lands, and promotion of the use and protection of all natural resources.”

In keeping with this mission, the Division is responsible for surveying newly acquired state forest property and establishing Unit Management Plans for such property. However, due to staffing shortages over the past several years the Division is no longer able to put enough people in the field to conduct land surveys or implement management plans. Unit Management Plans are required to assess the natural characteristics of the property and identify possible uses for an area. Due to staffing shortages only 23 of 62 Unit Management Plans have been developed for state properties within the forest preserve.

A startling example of the impact of staff reductions on the division is the lack of a Unit Management Plan for the William C. Whitney property in the Adirondacks. At the time of its acquisition in 1997, the Whitney the property was referred to as the crown jewel of forever-wild property in the state. Despite this however, the 15,000-acre property has been assigned only a custodial plan for its management.

Staffing shortages in the division have also been evident in the state timber sales program. Proceeds from state timber sales go into the Natural Resources Account. Money from this account is intended to fund salaries for DEC staffers in many program areas, but because there have been fewer sales of timber there is insufficient money going into the account. This is a vicious cycle, with staff shortages causing a reduction in timber sales, which in turn reduces the revenue necessary to fund staff. Moreover, the Natural Resources Account has been raided for general fund expenditures. According to sources within the agency the amount of money raided from the Natural Resources Account over the past few years could be as much as $4 million dollars.

VI. The DEC’s Approach to Staff Shortages: Outsourcing and Privatization

Privatization at the DEC is emerging as the agency’s preferred response to staffing and budget shortfalls. Through privatization the DEC is outsourcing work that has heretofore been the sole responsibility of the DEC staff, or alternatively hiring non-DEC employees to work within the department through a variety of funding schemes. This outsourcing of DEC jobs has had some unfortunate results for the environment, and it’s costing the state money. For example:

Water Pollution Permits Written by Non-State Employees

In the water pollution permit program, a significant number of non-DEC employees are doing work usually performed by DEC staff. While these employees are working under the supervision of DEC staff, it is unknown what experience and professional background they bring to their positions. Furthermore, it is unclear if these non-DEC employees are actually issuing state permits. If this is the case, the non-DEC status of these employees may leave the state vulnerable to legal challenges as to the validity of the issued permits.

Additionally, as many of the non-DEC employees are working on a short-term contract basis, they must spend the first several weeks or more of their contract period in training. While training is needed for all new employees, investing a significant amount training and retraining a changing cast of short-term contractors is not the best use of the DEC’s limited staff resources.

Outsourcing Timber Sales

There is reportedly a current a proposal to outsource timber marking for state timber sales to the timber industry itself – the same industry that would harvest and purchase the timber.

There is an obvious conflict of interest that arises when the regulated community takes over the responsibility for the regulated activity. It is unlikely that timber industry employees would make decisions regarding timber harvesting with the same eye toward maintaining a healthy, sustainable forest as DEC personnel.

Non-State Employees Monitoring Landfill

Due to its proposed use of non-DEC personnel as monitors for a western New York landfill, the department suffered another judicial setback. In a recent decision, the New York State Supreme Court determined that the DEC had overstepped its authority when it changed department policy to allow a private waste management company to hire its own monitors at the proposed Towpath landfill (Stop Polluting Orleans County, Inc. and Citizens Environmental Coalition, Inc. v. Crotty and Waste Management of New York, LLC., New York State Supreme Court, Albany County, Index No. 3498-03).

Previously applicants for a permit to operate a large landfill in New York were required to hire onsite landfill monitors who were employed by the DEC at the expense of the landfill applicant. The change in policy to allow the applicant to employ the onsite monitors was predicated on cost overruns to the DEC. To this the court simply said the DEC could have increased its charges to the landfill company. This case is a prime example of the DEC’s preference for outsourcing over retaining department staff, even when the costs for the position are paid by an outside source.

Aside from the fact the DEC didn’t manage the landfill monitor program efficiently enough to be within the budget it had charged the landfill applicant, there is a conflict of interest that arises when the DEC seeks to allow a facility owner to monitor its own operations.

VII. Conclusion

The DEC is an endangered agency.

Conserving New York’s environment is a crucial job, one on which the economy, public health, and future depend. The men and women at the DEC work hard to implement New York’s Environmental Conservation Law and all the legislation designed to protect our natural resources, including our people.

Recent dramatic disinvestment in the DEC has put this important work at risk. Since 1994, the staff has been reduced by roughly 700 employees an 18.3 percent decline. It is simply not possible to complete this critical work with 700 less scientists and engineers. In just the last two years, over 300 employees have retired or left, and most have not been replaced. Inadequate staffing at the DEC has resulted in the automatic extension of water pollution permits without the required review; overly slow progress in regulatory development in the air program, resulting in an unfortunate successful legal challenge; and tardiness in the development of critical land use management plans for valuable state property, just to name a few examples.

In response to these staff reductions, the DEC has turned to outsourcing and privatization, water permits are being written by non-DEC personnel, there is a proposal to allow the timber industry to orchestrate the state timber sale, and the DEC proposed to have a waste landfill be monitored by an employee of the landfill rather than an employee of the DEC. This last example also resulted in a successful legal challenge to the DEC’s action. Hiring through private entities has allowed the DEC to sidestep traditional civil service hiring practices and resulted in inefficient training investment and the hiring of less qualified, non-union staff.

The state’s environmental needs are clear. Thirty-four counties do not meet health based air quality standards set by the EPA. More than 200 waterbodies in New York fail to meet the state’s minimum water quality standards and must have cleanup plans developed. Additionally, 530 Superfund toxic waste sites and thousands of brownfield sites await cleanup.

While much of this report has focused on the performance of the DEC, it is not an indictment of the dedicated employees of the Department, but rather it’s a call to action for the administration – to recognize the challenges the DEC faces, and realize the importance of a fully funded, adequately staffed DEC.

VIII. Recommendations

While Endangered Agency identifies a number of areas where downsizing and outsourcing has resulted in environmental problems, it is not an exhaustive study of the resource problems at the DEC. In an era of budget cuts and reduced staff, the DEC and the environment in New York State face an uncertain future. This being the case, it is critical for the Department to function in a more transparent manner to ensure that the areas of greatest environmental concern are being properly addressed. Furthermore, a comprehensive audit of staffing issues at the DEC is in order.

Recommendation 1: New York should conduct an independent review of the current and past staffing levels at the DEC, including an accounting of recent outsourcing and privatization of DEC tasks and the costs of these practices to the agency.

Recommendation 2: In order to encourage transparency and accountability in the DEC’s operations, the agency should:

1. Publish an annual report that summarizes the DEC’s activities using environmental indicators (e.g. number of river miles not meeting water quality standards), compliance measurements (e.g. number of facilities not in full compliance with air pollution permit) and staff performance metrics (e.g. number of inspections, permits issues).
2. DEC should actively participate in the EPA’s Environmental Performance Partnership Program. This program allows members of the public to have input on the DEC’s and the EPA’s priorities for environmental programs in the coming year, ensuring that the DEC is more transparent and responsive to the public.
3. Improve the usability of the DEC’s website, provide better access to environmental information that would be easily accessible to community-members, and provide better access to information about the DEC activities.

Recommendation 3: In order to bring the DEC back to the condition it enjoyed in the early 1990’s, the state should:

1. Eliminate the hiring freeze at the DEC.
2. Increase enforcement personnel in the central office and at each of the DEC’s regional offices to mid-1990’s levels,
3. Hire adequate inspection staff to ensure adequate inspections are made of water pollution sources, air pollution emitters, and solid waste disposal facilities.
4. Also, adhere to civil service requirements of competitive examination and hiring.

Recommendation 4: Ensure adequate funding for New York’s DEC by exercising the “polluter pays” principle. In short, this means the polluter pays for the privelege of polluting public resources and pays for the costs of administering the regulatory programs necessary to maintain this privelege. Using the polluter pays principle additional revenue could be generated from the following sources:

• Increase the cost of water pollution permits (SPDES permits). Currently polluters’ fees are based only on the quantity of pollution they discharge. A discharger of 40,000,000 gallons per day would only pay $37,500 annually. Fees should not only be based on the quantity of pollution but on the potential toxicity as well.
• Increase the cost of storm water permits from a minimum of $375 for an individual permit and $50 for coverage under a general permit to a system of fees based on the amount of impervious area generating stormwater runoff.
• Increase the per-ton air pollution emissions charge on all Title V facilities and eliminate the 6,000-ton cap. The fee charged to Title V facilities is $45.00 per ton, this has not changed since 1999. Title V facilities are those that are considered major sources of air pollution emissions. The fee schedule for this fiscal year has not been updated due to the lack of a state budget.