Going Rogue: DHEC Fights Cabinet Status

May 6, 2010

Investigative Reports

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The NerveThe prospects for reform of the entrenched, embattled S.C. Department of Health and Environmental Control this legislative session have diminished from blossoming green to withering brown.

One of the largest state agencies, DHEC affects the lives of all South Carolinians – whether directly through specific regulatory functions the department performs, or indirectly through its larger duty to protect public health and the environment.

In recent years, however, the agency has faced growing public criticism and scrutiny over the way it carries out those missions.

To be sure, it has not been a good run for DHEC lately:

Most recently, The Nerve has recounted how hundreds of DHEC medical records with Social Security numbers and other personal identifying data, as well as highly sensitive health information, ended up in a public recycling bin.

The improper disposal of the records, at a recycling center behind DHEC headquarters in downtown Columbia, ran afoul of federal and state laws designed to protect people from identity theft. It also resulted in, among other fallout, an investigation by the State Law Enforcement Division.

In 2008, the Columbia alternative newsweekly Free Times chronicled a U.S. Department of Justice investigation that led to disturbing allegations of civil rights violations at a state-run nursing home in Columbia.

The Department of Health and Environmental Control is responsible for inspecting and licensing the facility, the C.M. Tucker Jr. Nursing Care Center.

Also in 2008, The State newspaper published a series – “DHEC Under Fire” – documenting shortcomings by the agency on a range of issues, from being unable to stem a tide of out-of-state garbage rolling into South Carolina to failing to curtail toxic air and water pollution.

That’s just a short list of the controversies surrounding DHEC in the recent past.

But as surely as the sun shines still on summer solstice, a few key forces have combined to maintain the status quo at the agency. In the General Assembly, a bill designed to make the department more transparent and accountable to the public has fallen by the wayside.

The bill, S. 384, has had bipartisan support in the Legislature, receptiveness from Gov. Mark Sanford and broad backing among conservation groups, business interests and other parties.

And early on in the session the chances of the legislation passing looked decent, if not reasonably good.

But now, says Sen. John Courson, R-Richland, “The bill is basically dead for the year.”

Still, that does not necessarily mean the issue of overhauling DHEC is going away.

In fact, a pending report by the watchdog arm of the General Assembly, the Legislative Audit Council, could bolster the arguments and support for retooling the agency, even as the Legislature moves closer to its scheduled adjournment for the year in early June.

Acting on a request from five Horry County-area lawmakers, the Audit Council is looking into how DHEC notifies the public and local governments about instances of corporate pollution.

The council has not set a date for the release of its report, according to Andrea Truitt, audit manager for the council.

The five legislators requested the inquiry in response to reports of groundwater contamination at an AVX Corp. site in the Myrtle Beach area.

“Basically they were concerned about how DHEC was notifying the public about issues of corporate pollution,” Truitt says.

The AVX situation is not the first time DHEC has taken heat for a lack of transparency in disclosing information about pollution.

The agency’s notification process also was criticized in the summer of 2008 when a small Alpine Utilities plant on the Saluda River in the Columbia area malfunctioned. The accident caused a huge volume of only partially treated wastewater to flow into a tributary of the waterway, fouling the lower Saluda to unhealthy levels.

Before that, critics blasted DHEC’s handling of details about tritium-tainted groundwater at a low-level nuclear waste dump in Barnwell County operated by Chem-Nuclear Systems.

That case prompted an inquiry by S.C. Attorney General Henry McMaster, and even motivated DHEC to conduct an internal review of its information-sharing protocols.

Courson, who has earned some green stripes from the state’s environmental community, is a chief sponsor of the DHEC restructuring legislation.

Leading the charge for the bill on the Democratic side of the aisle is Sen. Phil Leventis of Sumter.

‘Governance Nightmare’

On a recent Tuesday, late in the afternoon when the Senate had adjourned for the day, Courson talked about the legislation at his office on the grounds of the State House.

South Carolina, the senator said, is one of only two states in the country that operate their government’s health and environmental functions under one roof in the same agency.

Speaking to oversight of DHEC, Courson said, “I think it’s a governance nightmare the way it’s structured.”

A seven-member, part-time board oversees DHEC and the board selects the department’s chief administrator, a commissioner.

The governor appoints the members of the agency’s board with the consent of the Senate, but has no direct authority over them once they are seated. Beyond that, executive-level control of the Department of Health and Environmental Control is essentially nonexistent.

The Courson-Leventis bill calls for DHEC to be retooled into an agency of the governor’s Cabinet. The bill would disband the existing board, create a new one, also with seven members, and establish a Cabinet secretary to manage the agency’s day-to-day operations.

The governor would name the board members and the secretary with Senate approval.

The legislation also calls for dividing the new board, minus the chairman, in half to create two three-member review panels to handle permitting appeals and other matters. One of the panels would deal with health-related issues; the other would address environmental affairs.

Five other senators are co-sponsoring the bill: Republicans David Thomas of Greenville and Tom Davis of Beaufort; and Democrats Vincent Sheheen of Kershaw, Glenn Reese of Spartanburg and John Matthews of Orangeburg.

In all, seven of the Senate’s 46 members have put their names on the legislation in support of it.

So, what happened? Why did the political winds shift against the bill?

“The business community had always supported this in the past,” Courson says.

Said Sen. Danny Verdin, R-Laurens, in a Jan. 22 dispatch in The State, “The business community was, just a few short years ago, very favorable on this matter.”

Not anymore.

When the DHEC restructuring bill started to show some signs of mojo early in the legislative session, a coalition of influential business forces came out against it. Those opponents include power companies, hospitals, the South Carolina Farm Bureau, the state Chamber of Commerce and the South Carolina Manufacturers Alliance.

The foundering economy has not helped matters when it comes to the business community’s position on the issue.

Then there is Gov. Mark Sanford. His recent, well-documented personal and political troubles, and efforts he has made to reform state government by restoring a widely recognized need for balance between the executive and legislative branches, have made him persona non grata to the powers that be in the Legislature.

“It was not the political year to do it,” says Ann Timberlake, director of Conservation Voters of South Carolina.

And, although the Governor’s Office is widely understood to lack the authority necessary to effectively run all aspects of the executive branch, Courson says the governor’s role is critical in DHEC reform.

“I think for it to happen you’re going to need a chief executive who’s really willing to go to the mat and advocate for it,” the senator says.

The winds of legislative priorities also worked against the DHEC restructuring bill.

In terms of overhauling an agency, lawmakers were far more concerned with the S.C. Employment Security Commission, which mismanaged the state’s unemployment insurance system into deep-red debt to the federal government – nearly $900 million and counting.

That was enough to prompt the Legislature to scrap the Employment Security Commission, whose three-member governing board was elected by legislators, and create a new agency, the Department of Employment and Workforce, with a director appointed by the governor.

Sound familiar?

The state budget and sentencing reform have taken precedence over DHEC reform among legislators as well.

The priorities at the State House this session are reflected in the timing of the Legislative Audit Council report that’s in the works.

The Audit Council originally planned to release it as early as Feb. 10. But reports the council was working on about the Employment Security Commission and other issues pushed its work on DHEC to the back burner.

To what extent DHEC lobbying the Legislature played a role in the Cabinet bill stalling out is difficult to say.

Wanda Crotwell, a DHEC employee whose salary is about $106,000 – slightly more than the governor’s – is a registered lobbyist for the agency, which shelled out more than $75,000 in lobbying expenses in 2009, according to State Ethics Commission records.

The department has not reported how much it has spent on lobbying so far this year.

Behemoth Agency

With a budget exceeding $500 million, DHEC operates more than 150 programs and employs some 4,000 people.

By number of workers, it is the state’s fourth largest agency (not including colleges and universities) behind only the departments of Corrections, Transportation and Mental Health, respectively, S.C. Budget and Control Board data show.

Critics of DHEC’s current structure charge that it creates an accountability vacuum in which the buck stops nowhere. “Who is in charge?” Courson asks. “You can pass the buck all day long on something like this.”

Agreed, says Timberlake. “The buck needs to stop somewhere and it doesn’t stop anywhere right now,” she says.

Under a heading of “Change DHEC,” the Coastal Conservation League joins the chorus on the group’s website. “DHEC is responsible for implementing health and environment programs all over the state and every citizen has an active interest in having an agency that is well equipped to do its job,” the league’s site says.

It describes the DHEC restructuring legislation as a way to make the agency “operate more efficiently.”

Under the bill, the two review panels of the board would consist of three experts in relevant fields who would hear permitting appeals, according to the Coastal Conservation League. “These review bodies would ensure that the best science is used and that agency policy is consistently applied.”

Even S.C. Senate President Pro Tempore Glenn McConnell, anything but a champion of vesting more power in the governor, says DHEC needs work on that score.

“We’ve got to make some changes, in my opinion,” McConnell, R-Charleston, told The State two days after the Legislature convened this session. “I’m concerned about there being a uniform and consistent application of DHEC’s goals and standards, so that we don’t have inconsistent permits.”

Critics also contend that fragmentation hinders DHEC. With tasks ranging from inspecting nursing homes and restaurants to issuing environmental permits and monitoring air and water quality, the agency operates as an odd hybrid of the different branches of government.

In addition to its executive-level duties, DHEC also functions in a quasi-judicial capacity, as appeals of the agency’s permitting decisions initially go to the DHEC board.

The legislative branch plays a role in the agency, too, because the General Assembly must approve DHEC regulations before they can become law.

Legislators also appropriate the agency’s yearly state funding, a power that propels yet another denunciation of DHEC – that it is overly susceptible to influence and pressure from lawmakers.

For evidence of that, look no further than the department’s top administrator, Commissioner Earl Hunter, who enjoys a chummy relationship with legislators that’s not exactly a state secret.

In a Feb. 5 report, The State cited “Sanford’s general unpopularity with the Legislature – as well as DHEC Commissioner Earl Hunter’s popularity with lawmakers” – as factors in the Cabinet bill hitting a wall. The story described Hunter as “an ex-agency lobbyist who has been noticeably visible at the State House much of this session.”

Indeed, Hunter, whose salary exceeds $150,000, went so far as to argue against the Cabinet proposal in testifying to the Senate Medical Affairs Committee, where the Courson-Leventis proposal to put the governor in charge of DHEC ran into trouble.

“If you put our agency or the director of that agency under the Cabinet, in my opinion I believe you’re going to politically charge or emotionally charge decisions,” Hunter told the committee, according to The State.

In another sign of legislative pull with DHEC, The State followed its “Under Fire” series by reporting “dozens of examples of lawmakers contacting the department about environmental permits, enforcement actions or other matters involving constituents.”

Sanford’s spokesman, Ben Fox, declined to speak to the specifics of the Courson-Leventis bill because it has not passed.

But in an e-mail to The Nerve, Fox said, “We’ve generally supported and have proposed in the past consolidating and streamlining state government services that may in fact overlap, including for example water quality functions currently held by DHEC and DNR (the state Department of Natural Resources).”

Continuing, Fox wrote of Sanford’s position, “So, in general, we’d support a step toward making state government more accountable and efficient – and that oftentimes means incorporating agencies or increased functions in the executive Cabinet.”

For supporters of DHEC reform, at this point it comes down to a simple solace – there’s always next year.

“I think it’s probably going to be more prudent to begin again with a new (legislative) session,” Timberlake says, “and we will absolutely be looking at it next year.”

Reach Ward at (803) 779-5022, ext. 117, or eric@scpolicycouncil.com.