October 2005

by
Timothy Sweeney & Larisa Washburn

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: Still Endangered?
V. DEC Performance
   Sidebar: Chronic Wasting Disease
VI. Rulemaking
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 in which 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.

In 2004, Environmental Advocates of New York undertook an investigation of the DEC to determine whether the decade-long trend of staff cuts and privatization were having a detrimental effect on New York's environment. We wanted to establish if DEC was able to fulfill its mandate to protect New York's environment and public health with a shrinking workforce and growing responsibilities. We released our findings in a report entitled Endangered Agency: How Staff Cuts and Privatization are Putting New York's Environment at Risk. Environmental Advocates found that the DEC has not been able to fulfill its mission in several program areas, including inspections of air and water pollution sources, permitting and review, stewardship of state lands and forests and the remediation of Superfund and brownfield sites.

In this second report we have chosen to look at areas of DEC that are largely unnoticed by the general public. We wanted to see if these lower profile offices were affected by staffing cuts in a similar way as the higher profile programs that tend to receive more public scrutiny and were examined in our original 2004 report.

Toward that end Environmental Advocates sought answers to the following questions:

• Is the DEC's Dam Safety and inspection program adequately staffed to safeguard downstream families and property?
• Is the state providing sufficient staff and funding for its Wildlife Pathology program to detect and protect against Chronic Wasting Disease, West Nile virus and Lyme disease?
• Is New York's Forest Ranger Service carrying out its intended mission, or are the traditional responsibilities of the Rangers being ignored?
• Is the State Pollutant Discharge Elimination System permitting program providing effective regulation of water pollution discharges?
• Is DEC promulgating environmental regulations in a timely fashion and what effect does the Governor's Office of Regulatory Reform have on the adoption of these regulations?

Additionally, this report provides an updated analysis of the DEC's compliance with reporting requirements established by the U.S. Environmental Protection Agency for air and water pollution permits. We wanted to determine if there had been a significant change in the DEC's performance as compared to our findings in Endangered Agency.

Time and again, in the documents we have reviewed and in the conversations we have had with current and past DEC employees, the lack of staff and limited funding are cited as the cause of the the agency’s inability to fulfill its mandate to protect New York's environment, public health and safety. By raising these issues we are not seeking to disparage the dedicated staff of the DEC. We are, however, committed to focusing public attention on the DEC's ability to fulfill its mission in light of reduced staff levels, keeping this issue at the center of any public discourse related to the DEC, and calling on Governor Pataki and the Legislature to commit the resources necessary to begin rebuilding the agency.

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

Environmental Advocates of New York is your government watchdog and your champion for the environment before the Legislature and state agencies. Over our 36 year history our efforts have been essential to passing some of the state’s most important environmental laws – the State Environmental Quality Review Act (SEQRA), the Environmental Protection Fund, the 1996 Clean Water Clean Air Bond Act, and the Brownfield Cleanup program. In addition to our role as a leader in promoting vital environmental legislation, Environmental Advocates also monitors state agencies’ ability to implement and enforce such laws and has full-time staff dedicated to the following program areas: Clean Air & Energy, Global Warming, Water Resources, Land Use & Sprawl, and Regulatory Watch.

The Regulatory Watch Program acts as a watchdog over the state agencies responsible for the protection of New York’s environment and public health. With state agencies becoming less transparent in their day-to-day decision making and less responsive to input from the public, our Regulatory Watch Program serves as the eyes and ears of the environmental community – advocating for adequate financial and human resources for the state’s environmental agencies, encouraging increased public participation in the regulatory process, exposing failures when they occur and offering creative solutions to problems that are discovered.

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 varied 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 ensuring those standards are attained in all of New York's waters;
• 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; and
• Management of the Adirondack and Catskill Forest Preserves.

IV. The DEC: Still Endangered?

In July of 2004 Environmental Advocates of New York reported that the DEC was operating with at least 700 fewer employees than it had when Governor Pataki took office in 1995. While the numbers we reported showed a disturbing downward trend in personnel strength at the DEC, in reality the situation was worse than we originally thought.

Soon after Governor Pataki took office in 1995, a hiring freeze was imposed on all the state's agencies. At DEC this hiring freeze has prevented the agency from filling hundreds of positions left vacant by the departure of scientists, engineers, enforcement officers, and other program staff. When these employees left the DEC they took with them decades of experience and institutional knowledge that was integral to the day-to-day operations of New York's environmental programs. In September 2004 DEC Commissioner Erin Crotty requested a hiring freeze waiver from Budget Director Carole Stone. In a memorandum, Commissioner Crotty stated that the DEC's fill level (number of full-time employees) was 3,218, 112 full-time employees below the recommended fill level of 3,330 contained in the state budget for fiscal year 2004-2005 – more than 800 below the 1994 fill level.

In addition to the hiring freeze, the problem of staff shortages has been compounded by retirement incentives that have prompted many DEC employees to leave the agency. A 2002 report issued by State Comptroller Alan Hevesi stated that 38 percent of the DEC's workforce – over 1,400 employees – were eligible for retirement by 2007. The Comptroller's report also stated that when asked, 27 percent – over 1,000 of those eligible – said they were likely to retire by 2007. Many of the employees that are eligible for retirement in the coming years have been with the DEC since its inception. It is these employees who have developed many of the DEC's programs and to whom junior employees look for guidance.

To his credit, in the 2005-2006 proposed budget, Governor Pataki attempted to start the rebuilding process at DEC, calling for new staff and new financial resources for the agency along the lines of recommendations made by Environmental Advocates in the first Endangered Agency report, the Governor proposed:

• Adding seven much- needed additional staff members for the state wetlands program;
• Creating new wetlands permit fees;
• Increasing the fee for Title V air pollution permits from $45.00 per ton to $58.00 per ton of the criteria pollutants and setting a minimum fee of $1,250 per facility.

The Title V permit fee increase would have raised an additional $3.6 million in revenue. Sadly, the Legislature did not see fit to agree with the Governor's proposal and removed these items from the state budget.

The Governor's proposed budget was a much-needed step in the right direction. As the graph below illustrates, staffing levels at the DEC have steadily declined for years.

In response to these staffing shortages and recognizing the DEC's enormous workload, the state is increasingly opting for outsourcing and privatization. The degree to which the DEC is relying on contract employees is unknown. In fact, when asked during her February 2005 budget testimony before the state Legislature how many contract employees the DEC had, acting Commissioner Denise Sheehan replied, "well let me just say that we don't keep a precise count of the number of people who work under contracts." Furthermore, according to the Public Employees Federation (PEF), although the DEC Division of Water staff was reduced by 35 employees between December 2002 and December 2004, during the same time period it added more than that as contractors. Contract employees now comprise an estimated 33 percent of the Division of Water's staff in DEC's central office. However, when asked if there were currently jobs being done by contract employees that were previously done by DEC staff, the acting Commissioner responded "we are not using contracts to fill DEC personnel positions."

According to the Fiscal Policy Institute, New York could save more than $400 million per year if it reduced its dependence on contract employees. Finding exactly how much the state is spending on outside workers is difficult because there is no breakdown of costs in the state budget or in agency files. In the PEF Go Public documentary, Attorney General Eliot Spitzer stated, “The first step towards accountability is knowing who’s doing what and why. When things are hidden, when they’re masked, when they’re removed, when there’s no opportunity to find out what’s going on, accountability disappears.”

V. DEC Performance

Have staff shortages affected the DEC’s performance? Environmental Advocates believes the answer is yes.

Last year we reported on the impacts to the environment created by staff shortages at the DEC, especially in the Divisions of Air and Water. In this report we have re-examined the state’s air and water pollution control programs and opened new areas of investigation in lower profile programs that the general public may not be aware of, but serve a vital function in New York nonetheless.

The new areas of investigation include the DEC’s Dam Safety and Inspection program, the state’s Wildlife Pathology Unit, and the Forest Ranger Service. We also expanded our evaluation of the DEC’s water pollution control efforts known as the State Pollutant Discharge Elimination System (SPDES) program.

Dam Safety

When a high hazard dam fails, the impact on lives, property and the environment can be catastrophic. New York State has 383 high hazard dams that are recognized for their potential to cause loss of human life, serious damage to homes, industrial or commercial buildings, important public utilities, main highways or railroads, and/or extensive economic loss if a failure occurred. New York State ranks among the top ten states in the number of so-called high hazard dams and has a total of 5,565 dams statewide, yet the DEC has just four employees to inspect all of these dams. Given the recent events along the coast of the Gulf of Mexico and recent dam breaches and failures here in New York, we now know the impact such occurrences can have.

Although the DEC’s Dam Safety Unit is responsible for the oversight of more than 5,500 dams, sources in the agency report that there are currently only two experienced full-time employees, one trainee and one contract employee to conduct all dam inspections. This equates to one DEC employee per 1,391 dams. By way of comparison, according to the Association of State Dam Safety Officials, the national average is one employee per 266 dams – New York State currently ranks 43rd in this regard. In contrast, North Carolina has 17 staff and nearly 1,000 fewer dams.

We need look no further than the catastrophic failure of the high hazard Hadlock Pond dam in Washington County, where almost a billion gallons of water inundated a wide swath of land destroying homes, cottages, highways, and property – incredibly there was no loss of life. Although the Hadlock dam was newly constructed, the dam’s breach and subsequent damage should be a wake-up call to the administration that more resources, both in staff and funding, are needed in the DEC’s Dam Safety Unit. When interviewed by the Albany Times Union following the failure of the Hadlock Dam, Assemblyman Thomas DiNapoli, Chair of the Assembly Committee on Environmental Conservation, pointed out that all state agencies have been affected by constrained state budgets, but he believes that DEC leaders are unwilling to accept that some environmental programs, like dam safety, are suffering. He went on to say, “Hopefully something like a dam collapse will get them to pay attention to some areas where they have staffing needs.”

With limited staff the DEC has only been able to inspect between 1.4 percent and 11.2 percent of New York's dams each year (see Graph 2), making events like the Hadlock dam failure increasingly likely to occur. As a matter of policy the DEC calls for the inspection of high hazard dams every two years and intermediate hazard dams every four years. To their credit, the DEC does appear to be keeping up with its inspection schedule for the high hazard dams,

In addition to not being inspected as to condition, intermediate hazard dams are also not being inspected to verify that they remain only an intermediate hazard. That is, in many instances downstream development may give rise to the need to reclassify a dam from intermediate to high hazard based on changed circumstances, namely the potential loss of life and property that could occur in the event of a dam failure.

According to the Association of State Dam Safety Officials there are 54 dams that have been deemed structurally deficient in New York State. Furthermore, because most of New York’s dams were constructed prior to 1960 (see Graph 3), they are reaching the limit of their 50-year life expectancy (National Oceanic and Atmospheric Administration). Recent articles in the Albany Times Union, the Schenectady Gazette, and the Saratogian newspapers have expressed concerns about the condition of New York's dams and the adequacy of the Dam Safety program at the DEC. Repeated attempts to get information regarding the location of the deficient dams have been met with resistance from the DEC. In response to a request for a list of the deficient dams under New York's Freedom of Information Law, we were informed, after a month, that the DEC did not have such a list.

In addition to the failure of the high hazard Hadlock Dam there have been other recent occurrences in New York State that call attention to the issue of dam safety. In May 2005 another high hazard dam, the Swinging Bridge Dam in Sullivan County, developed a sink-hole that resulted in closing much of the downstream area, including parts of the Delaware Water Gap National Recreation Area, to recreation and other activities just prior to the long Memorial Day weekend. While the Swinging Bridge Dam is federally regulated and had been inspected, it shows that the structural integrity of a dam can be threatened, even when routinely inspected. Similarly, the Marcy Dam, a state regulated dam in the Adirondacks that had not been inspected since 1996, developed a leak that called attention to the many dams in the Adirondacks, and elsewhere, that are in need of inspection and repair.

Wildlife Pathology Unit

DEC's Wildlife Pathology Unit is responsible for diagnosing, monitoring and controlling wildlife illnesses and diseases including rabies, West Nile virus, Chronic Wasting Disease, and Lyme disease. With the potential threat these diseases pose to the human population there is little doubt that the Wildlife Pathology Unit plays a vital role in fulfilling the DEC's mission to protect New York's environment and public health. However, the head of the state's Wildlife Pathology Unit, Ward Stone, a 37-year veteran of the DEC, said "there's not enough staff to begin to do what we have to do."

According to Stone, with only two biologists, one technician and one secretary, the Wildlife Pathology Unit ends up relying heavily on interns and volunteers to supplement its workforce. Because it is so severely under-funded, the scientists and technicians are often distracted from their responsibilities because they are focused on obtaining the laboratory supplies they need to perform critical tests.

To further illustrate, according an article in the PEF Communicator (a union magazine), in 2003 there were 1,500 backlogged cases involving pesticides and metals as the potential cause of death in wildlife. Because of the lack of funding for forensic pathology, DEC enforcement efforts are adversely impacted. With too few employees in the Wildlife Pathology Unit to perform the tests required to establish a diagnosis as to the cause of death or source of contamination, there is no way for the DEC to prove its case in some enforcement actions.

With the increased instances of dangerous diseases such as rabies, Lyme disease, West Nile virus and Chronic Wasting Disease, now is not the time for the administration to turn its back on the Wildlife Pathology Unit and the people of the State of New York.

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Chronic Wasting Disease (CWD) is a transmissible spongiform encephalopathy that affects the brain and central nervous system of deer, elk and moose. Always fatal, CWD is part of the same family of illnesses as mad cow disease, and is believed to be transmitted through animal-to-animal contact and feed or water sources contaminated with bodily secretions.

According to the NYS Department of Agriculture and Markets, in New York State there are 433 establishments raising 9,600 deer and elk in captivity. DEC estimates that there are one million wild deer statewide. Notwithstanding the fact that New York State has had two confirmed cases of CWD in wild deer and five cases in captive herds, DEC has only tested 3,700 deer since 2002. Compare this with the state of Minnesota where there have been two confirmed cases of CWD in captive elk, yet according to the Minnesota Department of Natural Resources (DNR), they have tested more than 27,000 samples in the same time period.

As reported by Minnesota Public Radio, this proactive response by Minnesota's DNR was based largely on the economic impact an outbreak of CWD would have on their multi-million dollar deer hunting industry. According to a May 2005 press release from U.S. Senator Charles Schumer, if the disease were to spread, with 684,000 hunters statewide, the annual impact on New York State's economy has been estimated at $107 million.

In New York the money generated from the sale of sporting licenses goes to the Conservation Fund to be used exclusively for the stewardship of our fish and wildlife. According to the 2003-2004 Conservation Fund Advisory Board's Annual Report to the Commissioner and Sportsmen and Sportswomen, the Fund is already facing significant fiscal challenges. CWD could add to those challenges, as was discovered in Wisconsin in 2002, when sales of hunting licenses declined 12 percent after the disease was detected in its deer herds (Poughkeepsie Journal, May 12, 2005). Facing budget cuts and reduction in staffing, it is hard to imagine how the Department of Environmental Conservation could bare the loss of revenue generated from the sale of these licenses if a similar decrease happened here.

The decrease in staffing also affects enforcement of stringent new regulations designed to control the spread of the disease. This task becomes more difficult without adequate field staff to monitor and enforce the rules. According to the state's Wildlife Pathologist, any further spread of the disease may necessitate taking action quickly, but without the proper staff and equipment, the disease may be able to spread.
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Forest Ranger Service

New York's Forest Ranger Service is not often contemplated by public policy makers, but it should be. Historically, Rangers have served many roles in taking care of four million acres of state land, and ensuring the safety of the people that make use of those lands. Rangers patrolled state lands, marked boundaries, and guarded against timber thieves. They provided people with information about nature and the unique ecosystems they cared for and provided guidance in forest management. And they were usually first responders when people who were exploring New York's three million acres of wilderness needed assistance or were missing. Today, the Ranger's role is increasingly that of law enforcement officer, but with lower pay.

Until 1996 the New York State Forest Ranger Service was under the direction of the DEC's Division of Lands and Forests, and Rangers served as the public face of the DEC in the backcountry. After 1996 the Rangers were moved to the newly created Office of Public Protection, which also includes DEC's Environmental Conservation Officers.

While it is admirable that the DEC increased the number of employees in the Office of Public Protection, it should not have been done at the expense of the program areas that are the responsibility of the state's Rangers. The concern is that with the changing role of the Forest Ranger comes a shift away from a focus on conservation and environmental stewardship. In the past, the primary focus of the Forest Ranger was the forest. Taking the Ranger away from their traditional roles has led to a general decrease in morale in the ranks of the Forest Ranger Service. In fact, in September of 2004 the Associated Press reported that "nearly 100 of the 108 Rangers and Lieutenants polled said they had no confidence in the Director of Forest Ranger Service…."

The changing role for the Forest Ranger Service has resulted in a decline in the stewardship activities in the state forest preserve. For example, Rangers were always responsible for the maintenance of state forest boundaries. Now, much of that work is not being done, and the boundary lines could soon be obliterated. This will result in the need for new land surveys to reestablish the boundaries which could cost the state a great deal of money. Also, the development of Unit Management Plans (UMP) for state land is proceeding at a painfully slow pace. The expertise available in the Forest Ranger Service should be utilized more effectively in UMP development.

Although the current number of Rangers does not reflect a dramatic decline, the changed focus of the Ranger has had dramatic impacts on the state's forests. The role of the Ranger should return to that of forestland steward and educator. Moreover, when the situation arises, the Ranger should have enough flexibility to make decisions as to the best course of action to take. This is particularly important in the area of search and rescue, where the ability to respond on a moments notice can mean the difference between life and death. As it currently stands, when Rangers are called upon to perform search and rescue they must first get permission from Albany to respond to the call.

Air and Water Pollution Reporting

Last year we used the DEC's own reporting to the EPA's Environmental Compliance History Online (ECHO) system to evaluate the agency's success in its air and water pollution programs. This year, based on data submitted by the DEC to EPA ECHO, we found that very little has changed, except for a slight improvement in the rate of compliance for air pollution permits. Whereas the water pollution sources listed as being "in violation" of their permit conditions decreased from 203 to 182, the sources listed as "significant non-compliance" increased from 30 to 41. In the air pollution permit program, sources listed as "high priority violators" and "in violation" decreased, and as a result the percentage of all non-compliant facilities dropped from 37.3 percent to 32.9 percent.

Water Pollution Control

Under the federal Clean Water Act, the New York DEC is required to issue permits to the thousands of industries, waste facilities, and sewage treatment plants that discharge pollution to the state's waters. Each of these water pollution permits, known as State Pollution Discharge Elimination System permits or SPDES (spee-dees) permits is good for no more than five years. Every five years federal law requires a thorough review of the permit to ensure the conditions are protective of water quality, fish and wildlife, and human uses of the waters that receive the pollution discharge.

But New York DEC scrutinizes less than 10 percent of all the expired water pollution permits in any given year. More than 90 percent of the water pollution permits in New York State are simply rubber-stamped under the state's water pollution permitting system, ironically known as the Environmental Benefit Permit Strategy (EBPS). According to EPA's December 2004 NPDES profile, EPA has questioned whether the DEC's approach is consistent with the requirements of the federal Clean Water Act. Because DEC is not reviewing more than 90 percent of the water pollution permits in the state, significant water quality problems could arise or be occurring. Data on the presence of toxic chemicals and the toxicity of effluent are not being scrutinized. Likewise, routine information on the performance of the facility or changing water quality conditions in the receiving waters are no longer reviewed by DEC officials prior to a permit being reissued. The result is that polluting facilities that may require more stringent effluent controls are not even given a rudimentary examination before their permit is reissued.

Beginning in 1994, in an effort to relieve a severe backlog of several hundred water pollution permits the DEC developed the EPBS as a method for prioritizing SPDES permits. Today there are more than 1,800 major and significant minor SPDES permits in the EBPS system that require review. Since the EBPS was implemented, the DEC has been touting its better than 90 percent renewal rate of water pollution permits, and the fact that the EBPS has resulted in a less than 0.1 percent backlog of renewals. These statistics are, however, misleading because the 90 percent renewal rate is based on permits that are administratively renewed; this occurs every five years. The administrative renewal is nothing more than checking an application form for accuracy and completeness. The administrative renewal requires no technical review or inspection of a permitted facility. The U.S Environmental Protection Agency (EPA) has questioned whether the DEC's short form renewal application even meets federal requirements. They have also expressed concern over the lack of opportunity for public participation when permits are administratively renewed.

According to the DEC the need to implement the EBPS arose due to increases in the number of permits the agency was reviewing, and increased permit complexity. In the DEC handout that describes the EBPS process, the agency also cites staffing levels relative to workload as a problem adding, "we simply did not have enough staff to grind out extensive technical reviews every year for all SPDES permits."

According to the DEC's Division of Water, the Environmental Benefit Permit Strategy (EBPS) was designed to achieve two crucial objectives:

1. establish a system that provides for timely renewal of SPDES permits and avoids a backlog of pending permit renewal applications; and
2. identify and prioritize permits which have the greatest potential for causing significant environmental harm.

Although the stated objective of the EBPS is to complete a review of all permits that have the highest priority ranking – the top ten percent – we found that the DEC has not come close to meeting this goal. In a cursory review looking back at the six years of published EBPS scores posted on the DEC's website, we found that 45 percent of the permits have been on the list each of those six years. DEC has been reviewing fewer than 10 percent of all the water pollution permits that are up for renewal in any given year. Facilities that have been on the EBPS priority list for multiple years include the Indian Point nuclear power plant, JFK Airport, Erie County sewer district, NYS Department of Corrections, Washington County facility, and the Albany Combined Sewer. According to a report from the Office of the State Comptroller, entitled Clean Water Permit Process 2001- S-18, "DEC officials told us that all the permits in the top 10 percent of the priority rankings cannot be reviewed each year because staff resources are limited." As a result, the performance and compliance of most industrial and municipal facilities is not adequately reviewed and the impact on the state's rivers and streams is unknown.

Moreover, despite the fact that the DEC publishes contact information for obtaining fact sheets for each of the 184 facilities on the EBPS list this year, it was only after several attempts to contact the DEC that we were told that the fact sheets are not on a database and are not easily assembled. After a great deal of effort Environmental Advocates was able to obtain only eight of 184 fact sheets that DEC's public notice said were freely available to the public upon request.

Further, the information that Environmental Advocates has been able to obtain shows that ten or more years can go by before polluting facilities in New York have their performance scrutinized. In seven out of eight cases a "long form" renewal application, required by the Clean Water Act, hadn't been submitted for more than ten years. There are also discrepancies in the DEC's prioritization scoring from year to year. For example, there are increases or decreases in the EBPS score with no reported changes on the fact sheets to account for the change in score.

Enforcement

With fewer field and office staff it follows that there would be questions about the DEC's ability to adequately enforce the state's environmental laws. In 1998, following a precipitous decline in staffing levels at the DEC, the Assembly Committee on Environmental Conservation held a special hearing on the status of environmental enforcement in New York State. In the report, the Committee noted that enforcement cases had dropped 45 percent when compared to 1992 levels. Despite the increased level of concern and the Committee findings, it does not appear that the situation has changed much, if at all. While the number of enforcement decisions issued by the DEC has risen somewhat in recent years, they are still not approaching early 1990s levels (see Graph 4). It also appears that the DEC is increasingly relying on Consent Orders as a means to settle enforcement actions. The result of this is that enforcement numbers are somewhat misleading because the DEC counts all Consent Orders as enforcement actions – including the short form Consent Order for minor infractions.

While there is nothing inherently wrong with Consent Orders, the DEC is failing, in many cases, to reach settlements that are in keeping with the violation. In 2004 New York State issued 2,598 Consent Orders, and collected $11.9 million in penalties averaging $4,580. This number shows an increase over past years, but is still well below the 2003 national average of $6,000 per order (Washington Post, June 6, 2003). For the Consent Order to be an effective enforcement tool the corresponding penalties must be significant enough to equal any economic gain the violator may have enjoyed through non-compliance and have an added factor to raise the penalty to a level that will serve as a deterrent to future bad behavior by the violator and similarly situated individuals.

The model for this type of penalty assessment, referred to as the BEN model, is currently used by the EPA. More information regarding the BEN model can be found on the EPA website at www.epa.gov.

VI. Rulemaking

Governor’s Office of Regulatory Reform

Immediately upon taking office in 1995, Governor Pataki issued Executive Order #2 implementing a 90-day moratorium on new state rules and regulations, and directed state agencies to evaluate the economic effect of all existing regulations. Within the year the Governor had established, by Executive Order #20, a Governor’s Office of Regulatory Reform (GORR). The intent behind the development of GORR was to lessen the regulatory burden on business. The effect of GORR is that many valuable and necessary regulations are being changed, or discarded completely by GORR in its effort to appease business interests. According to the Governor’s website, “since its inception GORR has eliminated or significantly reformed more than 2,800 unnecessary government regulations.”

Before a regulation can be proposed or revised by the DEC, or any state agency, it must be reviewed and approved by GORR, the Secretary to the Governor, the Counsel to the Governor, the Director of State Operations, and the Director of the Division of the Budget. The effect of all this review is that in many instances the release of draft regulations for public review and comment is delayed. According to a December 2003 correspondence between the DEC and the Nuclear Regulatory Commission, the review of pending state regulations by GORR adds several months to the regulation adoption process. Moreover, many of the regulations that are released are a shell of what they were before the GORR review process.

In addition to the delay caused by GORR in rule review and adoption, there is no transparency or public accountability once a rule is sent to GORR. Because rules sent to GORR have not yet been finalized, they are considered works in progress and are therefore not subject to the open government requirements of New York’s Freedom of Information Law. Further, because the GORR review process is not subject to public scrutiny, and because draft regulations are not available to the public prior to being sent to GORR, there is no way to determine to what extent GORR is altering, or eliminating entirely, regulatory provisions that should remain within the purview of agency experts.

A constitutional challenge against Executive Order #20 was brought in 1996 on the premise that GORR was usurping the authority of the Legislature. This challenge, however, was not successful, and the regulatory process remains hobbled by GORR.

DEC’s Rulemaking

In a review of environmental legislation dating back to 1997 we found that, on the whole, the DEC is complying with much of its rulemaking responsibilities despite staff shortages. However, timeliness remains an issue. It is often the case that the more complex the subject matter, the longer the delay in developing the regulations. It is important to note that statutory language in many cases does not require the adoption of regulations. Often, a phrase like “is authorized to adopt regulations,” or “may adopt regulations” is used, as opposed to using the word “shall” which would require the development of regulations.

In our review of the environmental legislation requiring the adoption of regulations that has been enacted since 1997, we found that the majority of the rulemaking has pertained to minor changes in existing regulations or technical changes in rules for hunting and/or fishing. The exception to this has been the new regulations required for legislation regarding mercury labeling and recycling, dental amalgam, acid rain and brownfield cleanup standards. For each of these the DEC has had a varying degree of success in proposing the rules in a timely fashion.

Additionally, once adopted the DEC’s regulations are supposed to be available on the agency’s website, however, this is not always the case. For example, only a portion of the regulations for the Division of Water are posted.

VII. Conclusion

The DEC remains an endangered agency. The hard-working professionals at the DEC are regularly called upon to do more work with fewer people while the administration continues to reject any suggestion that the DEC’s drastically reduced workforce is having a negative impact on the environment and human health. In our report last summer, Environmental Advocates estimated that there were 700 fewer employees at the DEC when compared to 1994 staff levels. New information shows that agency staffing is actually down by approximately 870 employees. This figure is expected to rise as hundreds of DEC employees become eligible for retirement over the next few years.

As this report highlights, the environmental impacts of staff cuts at the DEC are real and measurable: the agency is inspecting only a fraction of the dams in the state; the diagnosis and control of wildlife diseases is hampered by insufficient funding and too few technicians to perform laboratory tests; the role of the Forest Ranger Service is changing from that of highly specialized forest steward and DEC’s contact in the backcountry, to that of law enforcement officer; and, the DEC is failing to meet its requirements for compliance and permit review under both the Clean Water Act and the Clean Air Act.

Based on our investigations it is clear that New York’s environment is not being adequately protected. A year after the release of Endangered Agency, there are still 34 counties that do not meet health-based air quality standards set by the EPA. Forty percent of the state’s lakes and reservoirs are listed as impaired or threatened. Additionally, there are 533 Superfund toxic waste sites and thousands of brownfields in need of remediation.

The long-standing disinvestment in staff for the DEC continues to negatively impact agency performance. New York’s precious natural resources deserve better treatment from a state that prides itself on its environment. New York State has, from the days of Theodore Roosevelt, been a leader in land preservation and conservation, and to his credit Governor Pataki has done a commendable job in acquiring and preserving land. However, the only way to ensure a healthy environment is to adequately staff all programs within the DEC. If Governor Pataki wants his legacy to be that of an environmental governor he must immediately begin the process of rebuilding the DEC.

VIII. Recommendations

Although there have been some small improvements, it is far from the bold and sweeping changes that are necessary to rebuild the DEC to the strength adequate to fulfill it mission to protect New York’s environment and human health. A comprehensive plan that will take into account the DEC’s anticipated future losses of up to 1000 employees due to retirement needs to be put in place. The administration and the Legislature must also take steps to restore the DEC to the staff levels that are sufficient to protect our drinking water, forests, air quality and human health. These steps include, immediately lifting the hiring freeze at the DEC and legislative appropriations for additional staff. The Division of Budget must also be held accountable for the role it plays in not authorizing new DEC positions.

Recommendation 1: Governor Pataki should lift the hiring freeze at the DEC, and the agency staff should be restored to levels sufficient for DEC to carry out its mission. The administration should also undertake a review of its spending on contract services and privatization – estimated by the Fiscal Policy Institute to be in excess of $400 million annually. This money would go a long way toward hiring additional DEC staff.

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

• 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 issued).
• DEC should actively participate in the EPA’s Environmental Performance Partnership Agreement program. This program allows members of the public to have input on DEC and EPA’s priorities for environmental programs in the coming year, ensuring that the DEC is more transparent and responsive to the public.
• The DEC should update its internal data management practices to ensure that DEC records are accessible and retrievable for all DEC staff. This is important for both the day-to-day operations of the DEC and for responding to inquiries from the public. Additionally, the DEC should make its website more user-friendly and update the content to include all DEC regulations.
• The administration should dedicate enough staff to the Division of Water to ensure all SPDES permits are reviewed in a timely fashion and consistent with New York’s obligation under the federal Clean Water Act.

Recommendation 3: The following are recommendations by which revenue may be raised for the state to fund the additional staff at the DEC.

• Develop a polluter pays approach to establishing permit fees. Under the polluter pays model, a permit fee is a fee for the privilege of exploiting the state’s natural resources and is sufficient to cover the cost to the state for the administration of environmental programs.
• Take advantage of the revenue that could be raised by the harvest and sale of state owned timber – estimated potential income has been cited as $3 million.
• Devote 2 cents to the environment, by designating 2 cents of every dollar in the state budget for environmental programs.
• Increase the Title V air permit fee from $45.00 to $68.00 per ton of the criteria air pollutants. Also, establish a minimum fee of $1,250 per facility as Governor Pataki proposed in his fiscal year 2005-2006 budget. It is worth noting that when applying the statutory formula given to compute the fee for Title V permits the result is $68.00 per ton; this, however, is trumped by the statutorily imposed $45.00 per ton limit. Environmental Advocates recommends amending the statute and increasing the Title V permit fee to $68.00 per ton.
• Remove the exemption for air pollution emissions above 6,000 tons per pollutant. By eliminating the 6,000 ton cap the state would raise an additional $8.4 million at the current $45.00 per ton fee, $10.8 million at the Governor’s FY 2004-05 proposed $58.00 per ton, or $12.7 million at our proposed $68.00 per ton rate.
• Implement an across the board increase in the fees for SPDES water pollution permits. An increase of 20 percent would yield the state over $2 million. Also, the cost of a SPDES permit should be based on both the amount of effluent discharged as well as the potential toxicity of the effluent.
• Establish a new wetlands program and associated permit fees which, according to Governor Pataki’s fiscal year 2005-2006 budget, would bring in an estimated $1 million to be deposited in the Conservation Fund.
• Establish fees for activities undertaken in and around New York’s waters. These are activities that have heretofore required permits and DEC staff time to review, but no fee is paid. These permits include Wild Scenic and Recreational River permits, Tidal Wetlands permits, Fresh Water Wetland permits, Water Supply permits and Protection of Waters permits.