The News Journal | by Maddy Lauria
For more than a decade, a portion of fines levied against Delaware’s worst polluters has been returned to impacted communities through a state grant program that funds projects like the Valley Community Garden in Wilmington’s West Center City.
But the fund that supports community gardens, parks, trails and other environmentally minded projects has been dwindling for years, leading to disappointing news for a handful of nonprofits aiming to improve neighborhoods that have been overburdened by pollution.
“The applications totaled almost $198,000 and I don’t think at any point anyone thought there was that much in there,” said Department of Natural Resources and Environmental Control Secretary Shawn Garvin. “So some subsets have been notified that there just wasn’t enough funding.”
A decade ago, the Community Environmental Project Fund had about $2.2 million on hand to reinvest in communities. Due to decreasing revenue from fines and a $100,000 accounting error, the fund is at $21,526.
“Mistakes happen, but we ended up with a whole lot less to be able to give back to the community,” said Bob Frederick, a volunteer member of the state’s Community Involvement Advisory Council that oversees the fund.
That shortfall has left the council with some difficult decisions. The council thought it had nearly $130,000 to distribute this year, but discovered last month that they would have to scrap funding for several proposed projects.
“We already spent considerable hours fleshing out the applications,” Frederick said. “I believe we had evaluated about 13 projects that we were at least going to try to partially fund. But that’s off the table.”
A DNREC spokesman declined to say how many grant applications will be approved with the remaining available funding and refused to provide the draft minutes from the council’s Feb. 13 meeting discussing the shortfall. Garvin said in a phone interview that three of the projects may receive partial funding.
The fund’s only revenue source is from environmental penalties and fines. By law, it is supposed to receive 25 percent of the total collected, which goes toward grants, administrative costs and pays for a portion of DNREC’s ombudsman’s salary.
Each year, the council reviews grant applications from nonprofits, which can receive up to $20,000 for each project contingent on a 25 percent match. Once the council approves those grants, the DNREC secretary must give final approval.
The council has no role in how or when DNREC pursues fines and penalties against polluters. Its role is to be a public body that serves as a liaison between the community and DNREC, but is separate from the regulatory agency, Frederick said.
“We have no control over how DNREC enforces environmental fines,” Frederick said. “We react to what’s in the kitty.”
Frederick, who has served on the council since the fund was created in 2004, said he is unsure why revenues from fines have slowed in recent years. The fund has not received more than $100,000 in any year since 2010, when its 25-percent cut amounted to more than $700,000. So far this fiscal year, fines collected have contributed just under $11,000.
“It’s always good news and bad news,” he said. “The good news is when you have money to give back to the communities from these situations. But when we have a lot of money, that means there are a lot of environmental challenges out there. I’ve always said it would be good news when we’re put out of business.”
Fewer fines or less pollution?
Frederick said that it is not realistic to think the various industries throughout the state that have historically violated state and federal environmental laws, such as manufacturers like DuPont, refineries, and chicken processing plants, will curb their polluting ways so much that there are no more fines to collect.
“We as a council have to depend on the enforcement division of DNREC to do their job,” he said.
Critics of the state’s environmental regulatory agency question how reliable – and consistent – those enforcement actions have been in recent years.
“DNREC is not doing its job, as far as I’m concerned,” said Milton resident Keith Steck, who attended the Feb. 13 meeting when the council discovered its financial shortfall. “The bigger issue is whether or not DNREC is taking action to fine polluters and collect the penalties.”
Steck, who has been questioning the use of state-issued loans for a partnership between Allen Harim’s chicken processing plant in Harbeson and Artesian Resources Corp. to discharge wastewater on hundreds of acres of farm fields, said he thinks DNREC needs to take a closer look at how it imposes and collects fines.
“For example, Allen Harim was notified of violations back in November of 2016,” he said. “That is still open. They haven’t resolved it. I don’t know how many other polluters out there have outstanding and open fines. And it begs the question why is this state so soft on polluters?”
Mark Martell, conservation chair of the Delaware Audubon Society, said it all comes down to economics.
“It is my view that Delaware’s governors have been very lenient on trying to punish businesses because they’re fearful of losing even more jobs in the state, especially high-paying jobs,” he said. “For example, the refinery had [more than 20] separate violations in emissions and [DNREC Secretary Shawn] Garvin has yet to even instill one penalty against them.”
Martell pointed to a recent settlement between the state and the Delaware City refinery owned by PBF Energy, reached after the company appealed a $150,000 fine related to bulk shipments. State officials confirmed a deal had been reached on Feb. 23, but have yet to release any details.
“You have a fearful governor – a series of governors – where they have been more lenient and more lenient and more lenient in collecting pollution fines and penalties,” he said. “In the absence of those, obviously programs like the Community Environmental Project Fund, their proceeds dry up.”
DNREC officials are adamant that fines have decreased because companies that were known to be historic polluters have either closed shop, like DuPont’s nylon plant in Seaford, or significantly reduced their emissions, like NRG Energy’s Indian River Power Plant.
“It could just be that people are doing less bad things, so we have less enforcement,” said Garvin, who declined to provide insight on the fund’s financial decline before his tenure, which began in March 2017.
“Clearly, we take the enforcements when they exist and we need to get to that step,” he said. “And you’re going to have ebbs and flows depending on what’s happening. Some things take longer to resolve.”
He said the $10,000 in fines contributed to the fund so far this year skew the numbers, but that he “can’t speak to the previous nine years.”
Garvin said in a phone interview before the state announced a $77,300 penalty against Perdue Foods’ Georgetown-area chicken plant, that this year’s funding gap was due to his decision to take “a little bit of a look at where we are in enforcement” that has caused a recent delay in enforcement actions.
Garvin also noted that lengthy environmental investigations – Perdue’s violations took place nearly three years ago – and legal appeals can slow the process.
“I think right now if I were going to give you a trend, I wouldn’t necessarily include where we are currently because there are some things in the pipeline that will be coming,” he said. Since that phone interview, DNREC has announced the undisclosed refinery settlement and the Perdue penalty.
Council Chairman William Pelham said the fund’s shortfall discovered in February “resulted from a misunderstanding or misinterpretation.”
He said contributions to the fund from fines have decreased in recent years, but attributed that to “more cooperative negotiation of penalties rather than the old adversarial approach to violators,” more accurate testing, reporting and treatment of pollutants at the source, and improved awareness and enforcement.
“The environment surrounding and within impacted communities should improve, whether there is a grant program or not, due to the diligence of DNREC and CIAC and their cooperation with all affected communities in Delaware.”
State Rep. John Kowalko, D-Newark, said he does not buy the explanation that fine revenues have shrunk because there are less people and companies polluting Delaware’s water, air, and land resources.
“They are putting such a small penalty in place that it becomes the cost of doing business,” he said. “It’s like the token for a free ride at Dave & Buster’s, and it certainly does not motivate them to correct the issues at hand.”
Sen. Greg Lavelle, R-Sharpley, who sponsored the 2004 legislation creating the council and the project fund, said he could not say whether the fund has declined in recent years because DNREC has issued smaller or fewer fines, or whether companies are simply emitting less pollution.
“My goal has always been – and that’s the idea behind the fines – don’t do it again,” he said. “I would prefer to have no fines, which means there’s been no pollution. That’s the ideal world.”
The fund in action
Since 2005, more than $3 million has been leveraged for more than 70 projects throughout the state, said James Brunswick, DNREC’s ombudsman who works closely with the communities that benefit from these grants.
In addition to some future fines, penalties and settlements in the pipeline, Garvin said he plans to find a way to systematically rebuild the funding to make sure communities get the investment they need when their communities are overburdened by contamination.
“My goal is to have these projects be really community-based, backyard kind of things,” he said. “The struggle always is how do we make sure there’s a recognition for impacted communities.”
On a tour of several parks in Wilmington, Brunswick said the “genius of the fund” is that by using money collected from fines, he and other officials can practice environmental justice in communities that are overburdened with pollution – places that also often are more racially diverse and are facing economic hardships as well.
He said the grants can help spur additional public and private funding, as has been seen in the investments in Wilmington’s West Side Grows Together parks initiative.
“At its best, the fund is a catalyst for revitalization,” Brunswick said.
On the corner of West 4th Street and North Rodney Street, a former drug distribution hotspot is now a place for parents to watch their children play after school.
“It was a wreck,” said Be Ready Church Minister Wayne DeShields, who recalled the small lot covered in drug baggies, rusty benches and broken tables. “It was kind of like a park you would see but you definitely wouldn’t want to stop there. It was totally neglected.”
DeShields said he was thrilled to hear the happy squeals of children playing on the park equipment almost as soon as it was finished last year. And because it was such an eyesore before, the small park has inspired neighbors to take pride in their community and keep an eye to make sure it is a safe place for children and families.
“It surprised us, but it shouldn’t have,” he said. “Once this came up, a whole new face came on.”
But without revenue collected from fines, that fund will be unable to support projects like the parks envisioned by the West End Neighborhood House or a massive pending project to create a living shoreline, walking and biking trail and docks along the Brandywine River.
“That is the frustration of this past cycle,” Frederick said. “The last thing you want to do with these folks that volunteer all their time is you don’t want to mislead them. We’re trying to give them a voice. It’s an important process, and an important fund that the public should be diligent about helping us put it back to the community and also hold DNREC’s feet to the fire for enforcement.”