Disappearing Act: The Incredible Shrinking Fines at the DOH
Time and again, newspaper headlines in Hawai’i scream out the apparently high fines the state Department of Health proposes for any and all who fail to toe the line when it comes to complying with federal and state laws designed to protect the environment. Readers could be forgiven for thinking the state was serious about clamping down on corporations and other institutions – including those of the state itself – whose actions place public health and environmental well-being at risk.
The reality is otherwise. As research by Environment Hawai’i reporter Teresa Dawson shows, those high fines would seem to be little more than window dressing, behind which lie months or years of back-room negotiations and legal wrangling. The net result?
o Fines that amount to little more than a slap on the wrist and have no deterrent value, either to the violating company or to other would-be violators;
o So-called supplemental environmental projects, which seem to reward violators (and punish their more compliant competitors) by allowing them, in lieu of payment of fines, to do what they should have been doing all along;
o Discouraged DOH inspectors and enforcement officers, who cannot help but regard the reduced penalties as a statement of the low esteem in which department administrators hold their work;
o Most serious of all, a heightened and very real risk of eventual harm to the public, the environment, or both engendered by the appearance of laxity in the scrupulous enforcement of state and federal laws by the Department of Health.
Whittling Away
Take, for example, the case of Eco-Feeds, extensively reported by Environment Hawai’i in our March 2002 issue. Fines totaling nearly $1 million were proposed by the Department of Health. By the time the lawyers and DOH administrators reached an agreement, the penalty had shriveled to just $40,000 – roughly a twenty-fifth of what had been proposed. In the context of the daily operating revenues of the plant (which at one point was taking in some 50 tons of waste food a day), the penalty is risible. To the residents of Nanakuli, inconvenienced (to say the least) by the odor of rotting waste and polluted water, the settlement is an out-and-out insult.
Or consider the settlement that the Department of Health reached with Maui Electric to resolve clean-air violations. The company could have faced millions of dollars in fines for violations going back nearly a decade (fines can accumulate at a rate of $25,000 for every day in which a plant is not in compliance). But the company paid no fine at all and was instead allowed to make a donation of $100,000 to the Hawai’i Nature Center – a non-profit on whose board sat two directors of the utility’s parent company, HEI, Inc. The donation was to support an exhibit on clean air and global warming that was erected inside the Kahului airport. Would the state have come out ahead had the donation been given to general funds? Probably. While it may be difficult to assign a dollar value to educational displays, the one at the Kahului airport was unexceptional and, on the occasions when this writer was in its vicinity, attracted the attention of not one of the hundreds of passers-by in the busy concourse.
Walking the Walk
Administrators at the Department of Health must know that risible fines make a mockery of the law. In commenting on the proposed fine of nearly $2 million for violations at the HC&S facility on Maui, Larry Lau, the deputy director for environment at the DOH (and former deputy attorney general with responsibility for DOH enforcement), said: “The penalty in this case reflects primarily the economic benefit that the company realized over the years it burned cheaper fuel in the biomass boiler.” But, he went on to add, “we considered the fact that HC&S brought the violation to our attention and promptly corrected the problem before we set the penalty.”
As Dawson’s reporting shows, though, it is a stretch to describe HC&S’ behavior as prompt in view of the three decades of non-compliance and three years of negotiations between HC&S and the DOH before the fine was proposed. And as to Lau’s statement that the $2 million fine “reflects … the economic benefit” to the company of using cheaper, high-sulfur (and more polluting) fuel, that amounts to a fine of about a mere $67,000 a year over 30 years. It is difficult to believe that the economic gain to the company of using the cheaper fuel was so small.
And even if the fine were calculated so as to wipe out every last penny that HC&S saved by using high-sulfur fuel, that does nothing to redress the damage to public health and the environment caused by the higher sulfur emissions. Are these damages not to be addressed at all? And make no mistake about it: they are real. Higher sulfur emissions lead to increased rates of asthma and other respiratory problems and have been linked to formation of acid rain, with devastating effects on vegetation. Are these consequences not to be factored into the penalty equation?
Meaningful Enforcement
The negotiating-down of proposed penalties is certainly nothing new at the Department of Health. Indeed, for decades, this seemed to be standard operating procedure not just at the DOH but for other regulatory agencies as well. Yet over the last decade, as other state agencies have tried to pursue more vigorous enforcement and more meaningful fines, the DOH seems mired in a system that not only delays justice, but also waters it down to the point its punitive value is altogether unrecognizable.
What will it take to put a little starch into the spine of the Department of Health? In the past, some environmental groups have considered urging the Environmental Protection Agency to revoke the regulatory powers delegated to the state – but under the Bush administration, it is not clear that this move from the frying pan would end up anywhere other than the fire. Increasing penalties legislatively would not necessarily have the desired effect, so long as the DOH still had discretion to negotiate fines downward.
Short of a revolution in the attitude of government officials, it would seem that the only way the public can call a halt to the problem of vanishing penalties is to look over the DOH’s shoulder at every step of the process. Every time a negotiated settlement is announced (in the state Office of Environmental Quality Control Environmental Notice and elsewhere), there follows a 30-day period for public review and comment.
Members of the public concerned about the rap-on-the-knuckles approach to enforcing laws intended to keep Hawai’i clean and healthy have this one avenue to make their views known. We would urge them to exploit it fully. If the Department of Health is going to continue to distribute get-out-of-jail-free cards, the public must express its strenuous objections.
— Patricia Tummons
Volume 14, Number 8 February 2004
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