Maryland prosecution of environmental crimes at 20-year low

Maryland is prosecuting its fewest environmental crimes in at least two decades as Gov. Larry Hogan fulfills promises to ease regulatory burdens on businesses.

The work force dedicated to enforcing laws and regulations that protect air quality and the Chesapeake Bay has been shrinking since the second term of former Gov. Martin O'Malley, a Democrat. The trend prompted Democrats in the General Assembly to force the Republican administration to spend $400,000 to hire more environmental inspectors in the coming fiscal year.

"It doesn't do any good to pass a law if it's going to sit on the books and be ignored," said Del. Brooke Lierman, a Baltimore Democrat. "It doesn't make the bay any cleaner."

Business owners and their advocates call the trend of less prosecutions a positive one, saying the administration is removing barriers to economic growth without compromising air or water quality.

"In our society, it doesn't make sense to pollute — people know better," said Jay Steinmetz, CEO of Barcoding Inc. and an adviser to both Hogan and O'Malley on small business issues. "It's getting harder and harder to hide environmental issues."

The Chesapeake is in its best condition in decades, with recent reviews showing significant improvement in water quality and abundance of blue crabs and underwater grasses. Environmentalists argue that progress rests on the enforcement of the laws and regulations.

"Maryland legislators have passed a lot of important laws over the years restoring the bay," said Evan Isaacson, a policy analyst with the Center for Progressive Reform. "None of these laws are worth the paper they're printed on if they're not enforced."

The Democratic majority in the state legislature has pushed through a host of environmental measures in the past decade that Republicans and business advocates have derided as job-killing, such as the controversial stormwater fee often called the "rain tax," and stiffer regulations on septic systems. Hogan campaigned on a pledge to "get the government off our backs and out of our pockets" and has successfully fought back both of those policies.

In that vein, state environment Secretary Ben Grumbles said his department has put an emphasis on a cooperative approach to compliance, working with polluters to correct problems before prosecuting them.

The department sends inspectors to more than 70,000 sites — everything from power plants, factories, and scrap yards to rental housing units and doctor's offices — to ensure they comply with environmental laws and regulations.

Most of its enforcement activity comes in the form of civil actions, including civil court cases, administrative orders and notices of violation. The department took 14,800 such actions in fiscal year 2016, though 12,000 of them were related to a new effort to force landlords to register their properties as lead hazards. Otherwise, enforcement activity has remained largely flat since 2011.

The number of cases the agency referred to the attorney general's office for prosecution fell to nine in fiscal 2016 — half as many cases were prosecuted the previous year. The O'Malley administration filed charges in 43 cases in fiscal year 2012. The Republican administration of Gov. Robert L. Ehrlich prosecuted as many as 23 in one year.

The Hogan administration's fiscal 2016 caseload matched a low of nine prosecutions in fiscal year 2007, during the final months of Ehrlich's tenure and the start of the O'Malley administration.

State environmental officials of both parties have historically viewed prosecution as as a last recourse for the most "wanton" and "recalcitrant" of offenders, according to department reports going back 20 years.

Grumbles said his department is "proud" of its enforcement efforts, noting that they resulted in $3.7 million in penalties in fiscal 2016, up slightly from the previous year and consistent with some of the O'Malley years.

"We will go after polluters and impose penalties when needed," he said. "Results matter."

A report by the department on its enforcement activity, released last month, shows that while penalties against polluters are steady, a lack of resources is holding some efforts back. For example, the department said it only inspects 5 percent of asbestos removal projects, fewer than in the past because staff are stretched.

The department's unit dedicated to criminal prosecution meanwhile had a team of five at the end of the most recent fiscal year, "a significantly smaller staff than in the past" that has prevented it from proactively pursuing polluters, the report said.

Attorney General Brian Frosh, a Democrat, is among those who doubt the administration's strategy. He said without a threat of penalties or enough inspectors to reach all potential polluters more than once every few years, it's unlikely to be effective.

"I don't agree with the policy of so-called compliance assistance," Frosh said. "If folks are polluting, they ought to pay some price for it. Otherwise it puts honest businesses at a competitive disadvantage."

Concerned lawmakers included a budget requirement that both the Department of the Environment and the Department of Agriculture spend $200,000 of their taxpayer-funded budgets "only for the purpose of filling vacant compliance and enforcement positions." The annual spending bill became law without Hogan's signature.

Grumbles said the agency will follow the requirement, and expects his agency's share will pay for about four new positions. The department employed 152 inspectors in the fiscal year that ended last June, the fewest since fiscal year 2008 and down from a peak of 172 in fiscal 2010, according to the report.

He said the department will continue to focus on inspecting facilities with the greatest potential environmental impact.

"The sheer number of inspectors does not reflect the effectiveness of an enforcement program," he said. "We are actively working toward smarter enforcement."

A spokesman for the state Department of Agriculture said that agency employs 11 inspectors, and has one vacant inspector position. It inspected 19 percent of 5,340 Maryland farms for manure and nutrient management issues, just below a goal of inspecting 20 percent of farms.

"The Bay is at its healthiest in 25 years and our air quality continues to improve. The results speak for themselves," said Doug Mayer, a spokesman for Hogan.

Business advocates say the administration's approach has been noticeable and much appreciated. Mike O'Holleran, Maryland director of the National Federation of Independent Business, said most business owners "want to do the right thing," so a lighter approach to enforcement is warranted.

"The general sense from the small business community is they have a friend in this administration that understands what it's like to be a small business owner and the very many challenges that they face," he said.

Steinmetz suggested it's also possible that fewer polluters are being caught because because the decline of industry and manufacturing means there are fewer out there.

Environmentalists disagreed. Though water and air quality have improved, they remain impaired and often unhealthy — and the inspectors' interest is in the public health, Isaacson said.

"What they regulate can sicken or kill people," he said. "These staff are not what we should be cutting."

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