State trying to cope with backlog of pollution violation cases

Nearly 300 awaiting enforcement

  • Charles Long (left) and his friend Ronald Fluharty look at the tree clearing on Long's land.
Charles Long (left) and his friend Ronald Fluharty look at the… (Barbara Haddock Taylor,…)
November 29, 2011|By Timothy B. Wheeler, The Baltimore Sun

FEDERALSBURG — Charles S. Long was upset to discover that a bulldozer had cleared the land next to his, knocking down trees and uprooting day lilies on his property in the process.

A state inspector also found problems with the clearing project: It lacked a plan for controlling sediment pollution, and nothing had been done to keep mud from washing off the land into a nearby creek when it rains. What's more, the landowner, William L. Tarbutton, who lives in Preston, has run afoul of state regulations before — as a contractor, he worked on developments in Queen Anne's and Caroline counties that were cited in 2007 and 2008 for sediment control violations.

Until The Baltimore Sun inquired recently , those two earlier cases were still awaiting action by the state attorney general's office, along with nearly 300 other environmental enforcement cases, many of them years old and most involving water pollution violations.

"I really think the ball has been dropped," said Long, 63, who showed a reporter recently where his trees and flowers stood before the late August incident. The cleared land has since been planted, though around the perimeter there's still a swath of bare soil.

Long isn't the only one bothered by the backlog. Rena Steinzor, a University of Maryland law professor and president of a pro-regulation think tank called the Center for Progressive Reform, says the state is missing a chance to help clean up the Chesapeake Bay through stricter enforcement of environmental laws and rules.

"A backlog is a very bad sign," she said. "There've been problems for many years. Maryland has been insufficiently vigorous."

State officials say the backlog has resulted from a shortage of lawyers who can pursue violations, but Steinzor contends a lack of resources is no excuse — especially since Attorney General Douglas F. Gansler said he would make environmental issues a focus of his office.

"Gansler came into office promising a very aggressive profile," Steinzor said, "and it's discouraging that he and the governor haven't been able to get together on this. … It's a political problem, not only a resource problem."

The state Department of the Environment has struggled for years with a reduced staff to cope with an increasing number of sites to inspect and regulations to enforce. The department checked on just 17 percent of all construction sites last year, according to its most recent enforcement report. Even so, it's increased the number of enforcement actions initiated, levying 79 penalties and cleanup orders last year for storm-water and sediment violations.

Steven R. Johnson, an assistant attorney general who serves as MDE's principal counsel, said the backlog actually is a byproduct of more aggressive enforcement — but a shortage of lawyers to deal with it.

Until a few years ago, state regulators had tried a gentler approach, Johnson explained, negotiating with violators to fix problems without hitting them with fines. But O'Malley administration officials concluded that "compliance assistance," as it was known, wasn't working in many cases, so they decided to start referring all significant violations to the attorney general's office for legal action.

As a result of that policy shift, the attorney general's staff got 459 water pollution cases of all types referred for legal action in 2009 alone, Johnson said. According to MDE's most recent annual enforcement report, regulators asked for legal help on 816 cases that year — more than double the number sent over two years before.

"If you're going to do full, rigorous enforcement you need a whole lot more attorneys,'' Johnson said.

All but two or three of the 24 lawyers assigned to the Department of the Environment work on enforcement, he explained. Just five deal primarily with water cases, though, while the rest focus on air pollution, lead poisoning and other regulatory cases.

And with the state's budget crunch, MDE has been unable to get funds for more positions, so the attorney general's office could not hire more lawyers to handle the jump in cases, Johnson said.

The state may lack the inspectors to check as frequently as it should on all potential polluters, Steinzor said, but penalizing violators sends a message to others to tow the line. Failing to act promptly doesn't deter violations, she said.

"In an era where there are such chronic shortfalls in every area, enforcement brings the biggest bang for the buck," she said.

Johnson said his office has dealt with the backlog by prioritizing cases — tackling first those where people's health or the environment actually have been harmed, for instance.

Some water cases also have been assigned to other lawyers in the office, and the backlog has been whittled down from 348 a year ago to 282 recently. Now, Johnson said he's recently been able to hire three lawyers on contract, two of them to focus on water cases.

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