DHEC has the peculiar job of protecting the environment and promoting industry.
When those interests collide, who wins?BY JEFF KOOB & BRETT BURSEY
In early 1978, Bill Stillwell was chief of the DHEC bureau that issued industrial waste permits. The feds were in the process of drafting stringent new hazardous waste regulations, and Stillwell saw a fortune to be made in getting dumps sited before the new laws went into effect.
In March, 1978, Stillwell applied to himself for a permit to take over operation of a kitty litter mine in Sumter County. Three days after he left the department, on April 7, Stillwell became president of what would become one of the country's largest hazardous waste dumps, Laidlaw of South Carolina.
Over the next 14 years, operating on nothing more than an "interim permit," the dump on the shores of Lake Marion took in a thousand tons of industrial waste each day.
Macalloy Corporation's North Charleston plant was listed in 1989 by the EPA as posing a "serious cancer rate" 100 times greater than what that agency finds "acceptable."
Over the next two years, the plant was cited by DHEC 11 times (but never fined) for violating pollution permits. During that time, the plant's owner made the state's largest campaign contributions totaling $60,000 to Gov. Carroll Campbell. Currie Spivey Jr. and Sam Applegate contributed $21,000 and $5,000, respectively, to Campbell before he appointed them to the board that regulated Macalloy.
When Diamont Boart moved its tool making company to Columbia in 1978, it filled out a DHEC form claiming the company didn't handle toxic materials and would not be releasing waste water. But over the next 14 years, the company dumped more than 12,000 gallons a day of contaminated water in the plant's back yard.
In January 1990, DHEC fined Diamont Boart $4,000 for illegally dumping an estimated 114 million gallons of untreated waste.
DHEC was never able to connect the 33 contaminated residential wells around the plant with the illegal discharges.
Like most big changes in South Carolina, it was a federal mandate that led the state Board of Health to merge with the Pollution Control Authority in 1973 to form the Department of Health and Environmental Control.
When Congress passed the federal Clean Water Act in 1972, the states were given two choices: let the Environmental Protection Agency monitor and regulate pollutants or create their own regulatory agencies to enforce compliance with minimum standards.
DHEC was created in 1973 to keep the feds happy, but the legislation that created the new agency ensured that South Carolina's industrial growth would proceed unhampered.
DHEC now employs 6,500 people, and is responsible for regulating everything from hot dog stands and restaurants to hospitals and some of the country's largest toxic waste dumps.
Twenty-three years and 774 federally recognized abandoned waste sites later, it seems clear that DHEC is unable to protect South Carolina's environment. The problem begins with DHEC's structure.
DHEC's earliest ancestor was the State Board of Health, established in 1878. Its board was a project of the South Carolina Medical Association, which selected board members from its own ranks for the next 95 years.
In 1950, the legislature created the Water Pollution Control Authority and charged it with ensuring "reasonable standards" of water purity and "the operation of existing industries, and the future industrial development of the state."
That agency was replaced in 1970 by the Pollution Control Authority, which carried broader environmental responsibilities. Legislation required it to consider "maximum employment" and "the industrial development of the state" as fundamental to its mission.
When DHEC took over the duties of environmental and health control, it retained its predecessor's mandate to protect "industrial development."
"Nowhere in South Carolina law does it say that you can't pollute the environment," said Columbia environmental attorney Bob Guild, who has spent much of the past 20 years representing people fighting polluters and, all too often, DHEC itself.
"There are no clean air and water acts, only a weak Pollution Control Act," he said. "The only thing the law requires is that if you pollute the environment you have to get a permit from DHEC. DHEC has argued time and again that they have no authority to deny permits if the applicant fills in the right blanks."
Unlike the highway department, DHEC has no power to consider an applicant's past record before granting a license. If a company says it will comply with minimal federal pollution standards, it gets the permit. Only after the company violates conditions of its permit does DHEC have the power to assert any authority.
Once violations are uncovered, DHEC's policy is to push for "compliance, not enforcement."
The Laidlaw toxic waste incinerator in Roebuck provides a case study of DHEC being all carrot and no stick. After Laidlaw racked up 1,044 violations of its water quality permit between 1987 and 1993, a local citizens' group disgusted with DHEC's refusal to take the company to court filed its own lawsuit.
Federal laws allow for fines that remove the financial benefit a company gains from polluting. Laidlaw was facing a $2.5 million fine when DHEC agreed to a company proposal to head off the lawsuit. Laidlaw literally wrote a complaint for DHEC, fining itself $100 thousand and absolving the company of all past environmental transgressions.
"We were looking at resolving the problems and getting the company into compliance," said DHEC Deputy Commissioner Bob King.
But Guild said that DHEC's repeated failure to remove the economic incentive to pollute by issuing tough fines is granting companies "a license to steal."
Two years later, when the incinerator was finally brought into compliance, DHEC rewarded the company by granting a request to increase the amount of its daily toxic releases.
This past July, DHEC admitted to residents who live near the incinerator that a preliminary study indicates that their cancer rates are five times higher than they should be.
While it is clear that DHEC has always had an inherent bias toward industry, under the leadership of Gov. David Beasley and the Republican-controlled House it has become fashionable to brag about South Carolina's pro-business climate.
In keeping with its policy of presenting itself as "user friendly" in its dealings with regulated industries thinking about doing business in South Carolina, DHEC touts "one-stop permitting," and advocated passage of the Environmental Audit Bill. Passage of this bill positions South Carolina at the vanguard of the Republican effort to roll back advances in environmental protection under the guise of "keeping government off the back of industry."
According to Guild, DHEC's backing of the Audit Bill was not a departure from past policy. "It just means that DHEC feels more comfortable than ever, in the current political climate, articulating a business-friendly, pro-economic development stance. The bill will potentially limit [DHEC's] own ability to enforce existing standards by limiting access to information. And it completely eliminates their ability to determine the economic benefit enjoyed by the polluters who violate emission control standards."
The EPA has said that adoption of the bill would "undermine DHEC's authority to operate a program by federal standards." In a letter sent to state legislators while the bill was under consideration, EPA Regional Administrator John Hankinson wrote that provisions of the bill "could be used to shield criminal misconduct" and that violations shielded by the bill could result in "significant economic benefits from noncompliance" with federal standards of air and water purity.
In DHEC's recent self-laudatory report, "The Quality of the Environment in South Carolina," Commissioner Douglas Bryant states that, "South Carolina has made progressive strides toward meeting its long-term goals of preserving our environment, protecting public health, and promoting strong economic development. We intend to continue documenting our progress in protecting the state's vital natural resources and the health of its people while assisting South Carolina's economy."
Rep. Joe Neal (D-Richland) said, "The current mantra in South Carolina government is 'economic development,' so I don't think the majority of the legislators have thought very deeply about any conflict of interest in DHEC's mandate. "
Neal, who has a record of voting in favor of stricter environmental protections, said the new Audit Bill will make it almost impossible for DHEC to enforce environmental laws.
"I think what we will see as a consequence of the bill's passage is some close monitoring by the feds." Neal said. "If they don't like what they see, the revocation of DHEC's authority to regulate polluting industries becomes a real possibility."
According to Sen. Phil Leventis (D-Sumter), "DHEC's actions often reflect a conflict of interest when it comes to balancing the welfare of big industry against the welfare of citizens and neighborhoods. In some cases, the agency has apparently seen its role as one of protecting industries from the people of South Carolina.
"Often, when you try to get information, [DHEC will tell] you it's confidential," Leventis said. "DHEC does some things pretty well, but it's under-funded, and there is a terrible schizophrenia within the agency. In some cases they really don't seem to know what it is they're supposed to be doing. The more you know about DHEC's pollution control operations, the more frightened you should become."
As a result of DHEC's open-arms policy to industry over the past 23 years, South Carolina has become the most dumped upon state in the country, taking in more toxic, hazardous and radioactive waste per capita than any other state.
DHEC Commissioner Bryant, Deputy Commissioner Lewis Shaw and DHEC Board Chairperson John Burriss declined to be interviewed for this story.
Through his spokesperson, Bryant acknowledged the inherent conflict of interest in DHEC's, mission to protect the environment while promoting industrial growth, saying, "The Department is well aware of what the language [requiring DHEC to promote industrial development] is, but we feel our role is to be protective of the environment. We are not a development agency. If we are going to err, we are going to err on the side of protecting the environment."
Spartanburg environmental lawyer Gary Poliakoff disagrees with that assessment. "The Board bends over backwards to rule in favor of industry" he said. "The DHEC Board could easily serve as the Department of Commerce."
Poliakoff represented a citizens' group fighting the doubling of a Waste Management (the nation's largest waste hauler and frequent campaign contributor) landfill in Spartanburg.
"After a year of hearings," he said, "the administrative judge ruled that the application process had to start over. At the next DHEC Board meeting, Commissioner Bryant successfully urged the Board to ignore its own staff and the judge's opinion, and they summarily issued a permit for expansion."
Bill Coby, the former director of the North Carolina Department of Environment, Health and Natural Resources (that state's equivalent to DHEC), said of that agency, "There used to be a dual mission, and it was moved to the Department of Commerce. It is not our responsibility to promote industry, but to fairly enforce the environmental laws."
"The fact is," Guild said, "that it is cheaper to pollute, and in the free market system companies will cut corners, with environmental consequences. The problem is that South Carolina has no independent, aggressive government watchdog to check that tendency."
Guild concedes that money and influence will always be a problem, but he argues, "We can have economic development and a firm but fair environmental policy at the same time. In fact, there is no rational alternative."
Suggestions for reforming DHEC include:
"It is the poor communities, the rural communities, and communities of color where the impact [of lax environmental laws] is being felt," Rep. Neal said. "It may take a catastrophe before the issue is given due consideration by the legislature."
"The more you know about DHEC's pollution control operations, the more frightened you should become."
Sen Phil Leventis (D-Sumter)