DHEC has uneven record as public watchdog, critics say

COLUMBIA -- Imagine a state agency that helps developers build in fragile areas close to the ocean at taxpayer expense.

Imagine an agency that oversees homes for the disabled in which at least three people have died from neglect in two years.

Imagine an agency posting one of the nation's worst records for cleaning up leaks from underground gasoline tanks in a state where more than a quarter of residents drink from wells.

Imagine an agency that regulates garbage landfills helping to turn the state into a trash mecca for the Southeast.

Stop imagining.

That agency exists.

Its name is DHEC -- the S.C. Department of Health and Environmental Control.

When it comes to decisions that stand to affect millions of people, DHEC has become known as an uneven watchdog for health and the environment.

It often sides with companies it regulates during disputes with residents. It often shares crucial information slowly or not at all. And it sometimes remains silent rather than alerting the public to dangers.

"DHEC doesn't need to promote business -- we have other state agencies that do that," said Rep. Joe Neal, D-Richland, who said he was shocked that DHEC failed to protect a Richland County community from a private utility's lead-laced drinking water for 20 years. "DHEC was just as culpable as that utility."

Such criticism does not apply to all of DHEC's 4,200 employees. It focuses on the agency's top management, whose major policy decisions have been challenged repeatedly in recent years by lawmakers, judges, environmentalists, doctors and residents.

Top DHEC officials say the agency does its best to protect South Carolina's people and land.

"I'm thoroughly convinced our staff is committed to try to do the best they possibly can," said DHEC Commissioner Earl Hunter. "Sometimes there are limitations ... to what we can do; sometimes the laws or regulations restrict us."

South Carolina's fifth-largest agency, with a $578 million annual budget, DHEC manages more than 150 programs.

DHEC regulates the use of land, air and water. Checks tattoo parlors and hog farms. Tracks rabies outbreaks. Oversees prescription drugs and dialysis centers. Promotes flu shots. Monitors shellfish beds. Helps test for HIV. Decides whether hospitals can expand. Runs health departments in each county. Records marriages, births and deaths.

DHEC's staff includes well-trained scientists, engineers, nurses, lab technicians and investigators. For legal affairs, the agency has 16 staff attorneys.

No other state agency affects so many lives in so many ways.

But missteps and frustrated residents are mounting.

Broad unease

Four recent incidents have brought DHEC greater scrutiny and stepped up questions of how well the agency does its job:

• Not until earlier this year did DHEC post signs at rivers to warn residents of the dangers of eating mercury-laced fish at hundreds of fishing spots across the state. DHEC knew the health threat had been expanding since the early 1990s and had put notices out to the media. But the signs, placed where they can be seen by river users, went up only after Charleston's Post and Courier newspaper reported on mercury found in residents' blood.

• For years, DHEC kept records secret that showed the magnitude of a radiation leak from a low-level nuclear waste dump in Barnwell County. DHEC had long acknowledged a leak. But at the landfill operator's request, it withheld details, not even telling lawmakers last year as they debated whether to close the facility to the nation. When The State obtained the documents using open records laws, the newspaper discovered levels of radioactive tritium in some places as high as those at the nearby Savannah River nuclear weapons complex. State Attorney General Henry McMaster scolded DHEC for failing to produce the records.

• DHEC failed to closely monitor a Columbia sewer plant it knew had malfunctioned. Later, the plant was found spilling partially sewage into the popular Saluda River. Swimmers and waders complained of nausea and ear, eye, nose and throat infections. Some kayakers and canoers say they fell ill. DHEC waited six days to take water samples and seven days to notify the public. The agency says it and federal officials are investigating. Columbia environmental lawyer Bob Guild said "the community is watching" DHEC to see how much it fines the utility and how it explains what he says is a slowness to act. The agency's water bureau chief David Wilson said last week DHEC could have been, if not faster, at least more thorough in notifying the public.

Those actions and others on shoreline development, gas tank leaks, the rise of large landfills and the safety of group homes have brought DHEC under scrutiny.

Cumulative effect

Taken separately, DHEC's actions seem unconnected.

Taken as a whole, they form a pattern: DHEC falls short in its role as the public's chief protector.

Even some business lobbyists say DHEC could be more aggressive.

Michael Fields, director of the S.C. Petroleum Marketers Association, said DHEC's lack of aggressive action to secure more funding to clean up old leaky underground gasoline tanks has jeopardized the environment and his members' profits.

"My members are going to be hurt and the environment is going to be hurt because DHEC can't find it in their regulatory heart to ask (lawmakers) for the money," Fields said.

DHEC says it has done all it could.

Meanwhile, the agency is grappling with several issues as important as any in recent memory. Two in particular will affect future generations:

• DHEC is deciding whether to issue a permit to Santee Cooper, the state's largest utility, to build a giant $2.2 billion coal-fired electricity plant in Florence County. Coal plants are among the nation's biggest air polluters. Airborne mercury, which falls back to earth and is ingested by fish, is of special concern. Eating mercury-laced fish can cause neurological problems, birth defects and damage children's brains. In many states, coal plants have been cut back or shelved.

• DHEC has granted permits for one of the biggest and potentially most-polluting projects Charleston will see for decades: a new cargo ship terminal at the city's port. Conservation groups have appealed DHEC's decision in state court. They note that ports are major sources of truck and ship pollution and that Charleston's air quality is increasingly compromised.

Too permissive?

A frequently heard criticism is that DHEC isn't tough enough upfront with industries that have the potential to pollute.

In Charleston, some environmentalists, doctors and residents are criticizing DHEC for approving the port expansion before receiving the results of three air quality studies.

Judges rebuke DHEC, too.

In August, for example, a judge revoked permission DHEC had given for a 3,500-hog swine farm to open in Dillon County. The judge ruled DHEC failed to make sure hog waste 33 tons a day wouldn't pollute the Little Pee Dee River.

"The law gives DHEC wide latitude to require more rigorous standards to protect water quality, but often it ends up choosing the most lax standard," said David Freedman, a Clemson University environmental engineer who has testified against DHEC in a half-dozen cases. He was an expert witness in the hog farm case.

For Sen. Phil Leventis, D-Sumter, long a DHEC critic, one issue is especially roiling. He disputes the agency's assertion that it can't check pollution histories of out-of-state companies that want to operate in South Carolina.

"There's something wrong here," said Leventis, who said current law gives DHEC the authority to examine pollution histories. "Past performance reflects on future behavior. That's not only common sense it's a responsibility the agency has."

Hunter said DHEC's attorneys say the agency does not have such power. If people want to challenge a company's pollution history they are welcome to do so in court, he said.

Critics say the Legislature, with its sensitivity to property rights and business interests, has a grip on DHEC.

Former DHEC supervisor Debra Hernandez, now a consultant, said that grip is so pervasive that DHEC's top management is hesitant to take risks. Public criticism and media scrutiny contribute to that, said Hernandez, who worked at the agency's coastal division for two decades.

"It's difficult to foster a culture of innovation and risk-taking if an agency does not reward and foster that," she said. "You end up with an agency that is mediocre."

Some of DHEC's problems are related to structure. Board members are appointed by the governor. But after they are confirmed by the Senate, the governor has no direct authority over them.

And, unlike in many states, environmental and health regulations need Legislative approval.

Tough or soft?

DHEC says it is tough on polluters. Last year, it took 418 actions resulting in $3 million-plus in fines an average of $7,200.

But being soft on serious violators is part of the agency's unspoken culture, said Jerry Paul, a former upper-level DHEC health licensing official, now retired.

Agency regulators are pushed to "work things out" with violators, Paul said. "The truth of the matter is that a lot of the people we sit down with are repeat offenders. But you ought to show people when they cross a certain line, there are consequences."