Are corporations co-opting environmental oversight? A conversation with DEM’s Terry Gray

“Tidewater is an old site. This thing goes back to the 1800’s where it was a manufactured gas plant and there’s all kinds of construction remediation going on there. It’s being redeveloped as a soccer stadium,” said DEM’s interim Director Terry Gray. “There’s a lot of disturbance on the site, historical and current, and the bottom line is to not have those oil spills.”

Rhode Island News: Are corporations co-opting environmental oversight? A conversation with DEM’s Terry Gray

December 15, 2021, 11:33 am

By Steve Ahlquist

Terry Gray is the interim Director of Rhode Island’s Department of Environmental Management. The interview was conducted on December 13 and has been edited for clarity.

UpriseRI: So I wanted to thank you, first of all, for having this conversation with me. I’m a big advocate for open government and transparency, and a willingness to answer my questions is appreciated. Let me start by giving you a gist of where I’m coming from. Rhode Island’s Department of Environmental Management [DEM] was founded in 1970, the same year as the federal Environmental Protection Agency [EPA]. Corporate interests were never happy with the EPA or DEM, and have worked since them to diminish the influence of these agencies through their lobbying. I think we’ve seen this with the Coastal Resources Management Council [CRMC], which was formed in 1971 but over the years has been co-opted by pro-business interests. We can see that with the Attorney General’s recent actions regarding CRMC’s decision on Block Island and the ouster of CRMC’s Executive Director Jennifer Cervenka.

In 1987, the General Assembly passed legislation creating the Energy Facilities Siting Board [EFSB]. The intentions of those creating the EFSB are clear: They were taking away the power of DEM and local communities to prevent polluting industries from destroying neighborhoods and the environment. At a Senate hearing debating the bill, then DEM Director Robert Bendick Jr expressed concern that DEM’s role was being diminished, as did more than one Senator, but their opinions were disregarded.

So what I’m asking is, to what extent do you think DEM has been subverted by corporate interests? To what extent has the authority of the DEM been diminished? And what are your thoughts on the story that I’m telling? Does this story make sense?

Terry Gray: There’s a lot to unpack. First of all that was a long time ago, right? I started working at DEM in 1987, 35 years ago. And I don’t know the history of the EFSB like you put it, but I think if you look at it now there’s a couple of critical things that would show that it’s not an override of DEM. There’s two pieces that I’d like to highlight. One, I think the board is balanced by the inclusion of the Division of Statewide Planning.

[Note: The EFSB Board is made up of the Director of the Public Utilities Commission, the Director of DEM, and the second in command at the Department of Planning. A majority is needed to decide on an application.]

Terry Gray: I think you have a balance. Statewide Planning tends to have a bigger picture perspective on what’s going on. They’re not aligned, necessarily, with industry – they’re just looking at it as to the future of Rhode Island.

The other piece is that most of our key permitting programs are exempt from EFSB override. The critical ones are anything that’s federally delegated and that includes clean air permits, clean water permits, and hazardous waste permits – also the Wetlands Act is specifically singled out as not being overridden by by EFSB. So a lot of times environmental issues get two bites at the apple. You’ve got the consideration in terms of the giant project that’s in front of the board, but you also have the permitting process that they have to go through. And if either one is unsuccessful, the facility’s not going to be built. If a power plant is approved for siting by EFSB, but can’t get its air permit…

UpriseRI: Aren’t air permits a national thing, outside of DEM’s purview?

Terry Gray: No, we implement the Clean Air Act in Rhode Island. It’s a DEM decision process and elements of our clean air program in Rhode Island are more stringent than the feds, same thing with clean water. We can’t be less stringent than the feds but we can elect to be more stringent.

UpriseRI: Good to know. Following on that, I noticed that on their website DEM refers to people seeking permits as customers. I think that business-speak is part and parcel of the business co-option process I’m talking about here. Instead of referring to them as “clients” or “applicants” we call them customers. I remember Governor Raimondo, particularly, making the case that we need to be more receptive to business interests and make it easier for people to get what they want through the application process. So I wonder: When we use the term customers, what are we selling them?

Terry Gray: We use all the terminology. We use “customers,” we use “regulated entities,” we use “applicants,” that type of thing. It depends on the context of what’s going on. One of the things that you bring up, which makes a lot of sense, is that it was a big priority of [former DEM] Director Janet Coit to look at customer service in DEM. This is not about compromising decision making authority. This is about being respectful and responsive to people. No matter how much you might not be sympathetic to an application, you treat the applicant respectfully.

Same thing with anybody that comes to the door and wants to advocate for something – or somebody that comes in and is asking questions – the idea is to be respectful and responsible. That does have some overlap with industry, but it also has some overlap with how we want to behave as a government agency. You mentioned transparency earlier. Transparency is being responsible to people, so if you call and you want to meet with me, I’m going to respond.

That’s the ethic that we want from our people at DEM. There’s a big difference between being responsive and being co-opted, right? Being co-opted means that you’re giving them the answer that they want. Being responsive means you’re giving them an answer and that answer may be a denial. It may be an approval. It may be an approval with conditions that they might like or not like. That’s the game plan. I’ve told my people that that we’re not asking you to change your decision in any way, but to get to the point of a decision and communicate that decision clearly.

UpriseRI: To the other part of my question, if we’re talking about customers, what are we selling them? It seems to me, and this is my perception, we’re selling them the environment – small sections of the environment to despoil. And as I understand it, we don’t look at the cumulative impacts of such decisions.

Terry Gray: When we started this journey to look at customer service there was a lot of pushback, there was a lot of discussions about how this is a business thing. We don’t sell things, we’re a government agency. I think you’re right. They are customers, but they’re consuming the services that we offer. That could be a permitting service, that could be you know a park service, a farm service, that type of thing. From a government agency’s perspective, you have to look a little differently at the definition of what a customer is. And the other piece is that you’re not providing them with what they want – what we provide is an answer. Now they might be buying an answer that they don’t want, but that’s our obligation. It was an interesting discussion: Are the business entities that we do business with customers and how do we frame that?

UpriseRI: I’ve been in customer service and I know what customer service is. It’s making sure that customers feel validated and get pretty much what they want. When we use this term in government service, we’re talking about basically the same thing, I think.

Terry Gray: A lot of people may not want what we sell. For instance, they might not want to get a permit to do whatever they’re proposing to do. They may look at that as an unneeded, bureaucratic expense, the same way they might look at the Department of Motor Vehicles or the Department of Business Regulation or taxation. They don’t want what these guys are selling, but the law says you have to buy it. So in terms of our customer service approach, we want to deliver as consistently, transparently and responsively as we can. It’s kind of weird in a government context…

UpriseRI: The reason I bring it up is that it fits into the narrative of business co-option of government services of all kinds, not just DEM. The CRMC, I think, clearly crossed that line. And it feels that way here at DEM sometimes. For instance, I’ve had this conversation with your communications person Mike Healey and yourself about inspectors. In the most recent state budget I’ve seen, there was an increase in money for permitters, but not for inspectors.

That’s an increase in the amount of money going to customer service but not to holding people accountable. I think what most people think of when they think of DEM, is that it holds people accountable for the pollution they create in the interest of protecting the environment. The idea of a person on site with a clipboard and a hard hat looking at a development and saying, “Okay, you’re complying here, here, and here” as part of routine and regular inspections. But the reality is that for most of these projects, the company that’s building the project has their own inspectors that they hire, to do this work. And a hired, privately contracted inspector cannot be unbiased in the way DEM should be. The inspection process is being co-opted by business as the General Assembly refuses to budget inspectors.

Terry Gray: When we talk about permitting programs the first thing that comes to a lot of people’s mind is responsiveness. If you apply for a wetland permit or a septic system permit, if you’re building a new house and or rehabbing an old one – whatever you’re doing, you want an answer within a predictable timeline. So if that timeline’s 45 days, 60 days, 90 days, whatever it is, you want to be able to bank on that as you’re planning your project. A lot of times when we talk about our permitting programs, people are concerned that we’re not responding fast enough, that an applicant submitted paperwork and it takes us too long to get back to them. So there’s always an interest in improving that response time.

That means there’s always a discussion about what we would do if we had more capacity and more staff for the applications. We can’t control incoming applications, that’s a static number. What comes in the door comes in the door. More permitters means we could be more responsive. The other part is that when we are focused on responsiveness, a lot of times we’re not able to do the follow through you’re talking about, and like onsite inspections. Let’s say, for example, that we give you a permit for wetlands and septic systems to build the house that you are working on. Well, somebody should go out there and check to make sure you’re doing what we told you to do, right? We’ve spent time reviewing your applications and giving you a decision with conditions and directing you how to minimize the impacts on the environment. Somebody should go out there and check on that, but a lot of times we’re not able to do that because those resources are onto the next permit. So by putting capacity into the permitting program, you’re not only improving response time you’re also improving our ability to do follow ups because it’s all one set of resources.

UpriseRI: So permitters are inspectors?

Terry Gray: Yeah. Permitters are inspectors for things that are permitted. That goes on in our waste programs, our water programs and our air programs. Those are the core permitting programs. A lot of times people focus on our Office of Compliance and Inspection [OCI] and they ask how that office is doing with respect to staffing. They correlate that directly to our ability to inspect, but it’s not a direct correlation. What OCI does is two different things. Primarily they follow up on citizen complaints. If you call in and you have a concern about the way somebody is managing their chemicals or the way somebody is developing their site, OCI will respond to that. They also take referrals from the other offices. But they’re not solely responsible for all inspections.

UpriseRI: How often does a permitter get out of office and does inspections? Is that a weekly thing or…?

Terry Gray: I think it’s a common thing. It’s weekly. They get out of the office to do two things. A lot of times they go out and look at what’s being proposed. A lot of times, if you see something with your own eyes it’s different than just looking at plan, particularly for a land development permit. The other is after construction starts, though that hasn’t happened as much as we’d like – I want to do that more. We’ve put a lot of effort into our into our expedited citation system to cite people that don’t tell us when construction starts, because that’s like the starting flag that says the project is happening, and now is the time to go out and inspect and see if people are doing it right.

UpriseRI: Have you found that people are not reporting when construction starts?

Terry Gray: That we did. We did a lot of work with inspections, particularly in the stormwater program. The approach we took was if somebody notified us of the start of construction, we would send an inspector out and that inspector would start with a coaching and assistance model. If they went out and they saw a problem, they would tell the developer to fix it. That was followed by a compliance inspection. If the developer didn’t notify us about the start of construction, and we found out about it somehow, compliance assistance is off the table. At that point it’s a direct compliance inspection.

UpriseRI: Are there any fines associated with not notifying DEM as to the start date?

Terry Gray: There’s two tiers. There’s the expedited citation tier, which is like a ticket and that goes up to like $5,000, but if it’s a severe violation or the person doesn’t comply with the expedited citation, we can go up to a regular notice of violation. And those are pretty significant penalties.

UpriseRI: The most recent reason I came to DEM was the discharges from the National Grid remediation work at the Tidewater Project in Pawtucket. When the issue of oil on the water was reported, there were a bunch of dead fish. It got called into DEM, but by the time the DEM fish expert expert shows up, most of the fish were gone. They’ve already been preyed upon by opportunistic feeders, like rats, which is what I saw, and seagulls. That river is flowing to the ocean. A lot of that oil spillage is in the Atlantic right now. The evidence disappears fast, so if our response is within 48 hours, well, in 48 hours the sheen under water could be gone. We’re talking about faster permitting. What about faster inspecting?

Terry Gray: In that case, there’s a lot under evaluation right now. The first one is the reporting systems. Typically when an oil spills come in, they are transferred to our emergency response office. That’s a 24/7 direct response type model. They typically get out there within a couple of hours. That’s a pretty fast response. I don’t know why this call was not routed that way. We’re working on that, we’re looking at that. The the way it’s supposed to work is if somebody calls in to one of the other offices by mistake, the automated system is supposed to give them an environmental emergency number to call.

We probably get about 7-800 emergency responses a year. There’s a pretty good system in place there. I don’t know why this call didn’t get into that system. When the responders go out, they’re going to look at exactly what you said – the extent of the oil, where it’s going, what are the impacts. If there was a fish kill due to oil, they would see it first hand and bring in other experts, like the Marine fisheries program, to take a look and see if they can tease out the environmental costs. Now, in this case, I don’t know why that didn’t happen.

The other piece to unpack is, as you’ve probably seen, Tidewater is an old site. This thing goes back to the 1800’s where it was a manufactured gas plant and there’s all kinds of construction remediation going on there. It’s being redeveloped as a soccer stadium. There’s a lot of communication with the schools and parks in the area that’s gone on. There’s a lot of disturbance on the site, historical and current, and the bottom line is to not have those oil spills. What I mean is, you can respond to those spills, but the real objective, long term, is to stop them. What’s happening out there right now is that they’re transitioning from a temporary cap to a permanent cap. The temporary cap includes what they call a containment wall that is supposed to keep the contamination away from the river. From what we can tell that works, but the problem is that there’s a little piece of land that’s on the other side of the containment wall that when disturbed, oil comes out. The Land Revitalization Program, the Brown Fields Program, has been overseeing National Grid’s work to upgrade the cap to make it permanent. This is a tricky area to get to.

UpriseRI: I understand it’s tricky, but it’s also a problem that DEM was formed deal with.

Terry Gray: Exactly. In terms of the dead fish – we sent a biologist down there from the Marine program. She got what she could get and we’re looking into the rest…

UpriseRI: I was told the fish deaths were not a result of the oil, which is fine, but I’m also saying that because of the delayed response perhaps evidence isn’t there anymore.

Terry Gray: Well, the other thing to look at is that it was all the same kind of fish, menhaden. That indicates that there may be some other systematic effect that’s going on there that impacts that species. If it’s a toxin, then anything that’s in there should be floating. Even if the dead fish were preyed on by predators, they’re not going to be selective. I don’t think they’ll only eat the menhaden.

UpriseRI: I understand that aspect. I’m just thinking about the response time in general.

Terry Gray: Faster is always better in those situations because then you see exactly what you’re dealing with you better understand the the context of what’s happening.

UpriseRI: National Grid said that heavy rains led to the overflow on the night before December 17th, when it was reported. But photographer Alex Hornstein says that he noticed the oil spill a few days previous to the 17th, but didn’t call it in until the 17th. The 17th is also the day National Grid reported the oil spill, but only after, it seems, Alex contacted DEM and the Coast Guard. I’ve also talked to people who saw evidence of oil on the water going back to September and there may have been spills earlier than that. National Grid’s timing, it seems to me, is suspect, and it seems at least possible that Grid only reported the spill after they were aware that regulatory bodies were onto the issue.

Now, one of the first things DEM told me was that National Grid did nothing wrong, they “did exactly what it’s supposed to do.” That’s an exact quote. But how do we know that Grid did nothing wrong before there was an investigation, before people looked into this? And that goes back to what I was talking about – of DEM being co-opted. It seems to me that National Grid knew there was a complaint so they made a report after the fact so that they would look like they were in proper order, but in fact, there’s some of evidence that seems to show that Grid didn’t make their report until after complaints started to be made by the public.

Terry Gray: As I said earlier, we’re still investigating the whole communications thing. That includes the previous report. I’m trying to figure out what happened with that. It’s my understanding that there were some calls made around the 11th, which is Veteran’s Day. My people are trying to piece together exactly where that might have happened.

UpriseRI: But the timeline is off, right?

Terry Gray: The timeline is important. We’re going to do a pretty significant evaluation. I’m not going to say that National Grid did nothing wrong. I don’t know if they did or not, yet.

UpriseRI: That’s why I bring up the inspectors. I think the whole incident points to sloppy work being done by National Grid.

Terry Gray: It’s a construction site. There’s a lot going on down there. It’s not super accessible. It’s fast moving. It’s a tricky area to see something that would go wrong. This sort of brings in multiple jurisdictions too. Sometimes it’s the Coast Guard. The permitting is done by CRMC. There’s some DEM components to it. There’s a lot of agencies involved in this.

UpriseRI: When the public wants to know about the 7-800 emergencies per year, where does the public find that information?

Terry Gray: They will primarily put in an Access to Public Records Act [APRA] request.

UpriseRI: Why wouldn’t that just be posted online? I know that when I put in a records request it takes 10 days, which is really two weeks, or 30 days if the agency asks to extend it, and I’ve only had one example in 10 years of someone not asking to extend the request to the full 30 days.

Terry Gray: When we talk about this big umbrella of inspections, I put them in three boxes. One is emergency responses. That’s the smallest box, maybe 7-800 responses per year. The next box is investigations. People file something with our Office of Compliance Inspections and we follow up on it. There’s probably about 2000 of those a year. The third box is the compliance inspections. That’s what we do for our regulated entities, underground storage tanks, transfer stations, construction projects, air sources, water sources, all those things. That’s the biggest piece. When you add all those up, it’s about 5,000 inspections a year. That’s what we’re talking about.

Since I took over as acting director of DEM, everybody’s asking, “What are you going to do with DEM? What are your priorities?” Well, one of my priorities is modernizing environmental protection and we’ve started this. It’s not something new, but the idea is to get all of that stuff online so that you don’t have to come in here for a file review. If you want to see a file it’s delivered to you online and you can see it whenever you want. And if you want to dig further, you can come in and get at the other pieces, but the crux of the file, the important documents at least, will be delivered online. Same thing with emergency response, same thing with complaint investigations. I want to make it more transparent. So if you file a complaint, you can look online and figure out the status of the follow up. Or if you’re curious and you want to know what emergencies are happening or have happened in your neighborhood, you can see that geographically. Or you can look at what permits are filed, geographically, that type of thing.

UpriseRI: That sounds like a big project, but a worthy one.

Terry Gray: It’s happening. We just got the governor to approve $6 million for for database improvements at DEM. It’s started. There’s a lot of work that’s going on in septic systems tanks and some of the complaint response programs, but we need to pull it all together. It’s a portal that our customers, meaning public people not just commercial customers, can look at.

UpriseRI: At 5,000 overall complaints a year, we’re talking about 5,000 potentially devastating impacts to the environment a year. For a small state 5,000 small environmental degradation, even small ones, are quite significant.

Terry Gray: The big piece of your sentence sentence is potential. They don’t all play out to be significant, but you don’t know until you see it. When they come in it’s like the call that comes into the police department – the responding officer doesn’t really know what he’s dealing with until officers get there. Our folks feel the same way. They’re not really sure what they got into. It might be nothing. It may be something real serious. So we have to treat them all as if they’re potentially serious.

UpriseRI: I think in public’s mind, and in my mind before I started doing research, is that when there’s an environmental problem, a bunch of people show up in those X-Files space suits with special instruments doing soil tests in a van that doubles as a lab. And that’s not really what happens at all. It’s really one person wearing an orange vest going out there to pick up some dead fish.

Terry Gray: Sometimes that happens. Our people have those moon suits and they’re ready to go. There’s four response teams in the state that are capable of dealing with emergencies like that, not including ours.

UpriseRI: This has been great. Thank you so much. I really appreciate your time.