July 8, 2009

Who really controls DHEC?

I want to preface Sammy Fretwell's article, "S.C. lawmakers not shy about contacting DHEC," with a timeline of Santee Cooper's involvement with the South Carolina Department of Health and Environmental Control (DHEC). Let's throw all the cards out on the table to get the best image possible. Here's the Santee Cooper's permit timeline thus far in 2009:
  • Department of Natural Resources sends letter to DHEC Board opposing the coal plant
  • Governor Sanford holds press conference announcing his opposition to the coal plant
  • DHEC Board reviews Santee Cooper air permit, votes 4-2 to uphold staff decision.
  • Majority of board members publicly state their opposition to the coal plant, but state they
    feel constrained by law to uphold permit
  • Ron Calcaterra, CEO of Central Electric Cooperative publishes proposal to avoid construction of the coal plant, highlighting: nuclear power, energy efficiency, and statewide resource planning.
  • Southern Environmental Law Center appeals DHEC air permit on behalf of League and four other organizations.
  • Coastal Conservation League releases An Assessment of Santee Cooper’s 2008 Resource Planning, a study done by Synapse Energy Economics. The study concludes: “Santee Cooper’s plan to build two large coal plants encompasses significant financial risks for ratepayers, emerges from a flawed planning process, and is not a necessary course of action.”
  • Santee Cooper issues $366,195,000 bond offering.
  • Santee Cooper announces rate hikes to meet revenue obligations stemming part from plans to build coal plant. Holds public hearings on new rates.
  • Santee Cooper Board meeting to consider public comments on rate increase.

The bullet points are some of this year's largest and most important decisions affecting the permits for Santee Cooper's coal plant. Certainly Santee Cooper has had its way with DHEC to an extent, for even evidence shows the permit DHEC issued in February, the air quality permit, essentially approves Santee Cooper's coal pollution, particularly mercury. On our 2009 summer stretch -- Santee Cooper has not made its Environmental Impact Statement, although the utility received an air quality permit, and the League's appeal of the air quality permit is now at the state Administrative Law Court.

In the following article, Sammy Fretwell conveys the pressures that our state's Representatives put upon DHEC. He does a job well done. The article includes both sides of the argument - one showing that legislators are in fact influencing DHEC's decisions and the other portraying the vice. So what do you think? The article, however, due to its length, has been cut to particular pieces. Please check out the article in full by clicking on the link at the bottom of this post.

The State
S.C. lawmakers not shy about contacting DHEC
Sammy Fretwell

July 6, 2009

[Some] think legislators are sure to influence DHEC decisions in a state where the General Assembly wields more power than legislatures in many other states.

"You get a powerful state senator ... and you are a bureaucrat at DHEC, you are going to be very reluctant to cross swords with that guy," said John Crangle, state director of the government watchdog group Common Cause. "He has a lot of ways he can make your life miserable and a lot of ways he can make your life easier."

Jimmy Chandler, an environmental attorney who has had a successful career challenging DHEC permit decisions, said the agency is particularly susceptible to political influence because it has been run by former agency lobbyists for two decades.

"When you are a lobbyist, you want to make legislators happy," Chandlersaid.

And, some say because of the size of DHEC, there is potentially a lot of constituent service for lawmakers to perform.

DHEC, South Carolina's fifth-largest agency, touches more lives than most other state agencies.

The department, with about 4,000 employees, is responsible for more than 150 health and environmental programs. That includes regulating tattoo parlors, issuing birth certificates, approving water and air pollution permits and overseeing hospital expansions.


When asked, lawmakers say they never pressure DHEC to issue permits or make other decisions.

More often than not, legislators say, they're getting information from DHEC to pass on to constituents or they're putting constituents in touch with the agency. It's no different than with other state agencies, they say.

"I sort of see that as our role, to be a liaison between our constituents and agencies," Sen. Brad Hutto, D-Orangeburg, said.

Legislative influence on DHEC surfaced last year in a series of stories by The State newspaper over missteps at the agency. Legislators, for instance, like Hunter so much that in the 2007-08 state budget they included a proviso making it harder for the DHEC governing board to oust him, the newspaper found.

A federal lawsuit filed in November also raised questions about lawmakers' influence on agency decisions. Former agency investigator Chris Phillips claimed a state elected official interfered in a criminal probe of illegal dumping. Sen. Jake Knotts, R Lexington, denied interfering, but said he contacted DHEC to complain about the investigator's conduct.

Despite Gov. Mark Sanford's recent personal troubles and unpopularity with lawmakers, environmentalist Dana Beach said putting DHEC in agovernor's Cabinet would make the agency more accountable and less susceptible to lawmakers' influence. The agency is overseen by a part-time, seven-member board the governor appoints but has no power to control.

Concerns about DHEC's effectiveness prompted Sens. Phil Leventis,D-Sumter, and John Courson, R-Richland, to introduce a bill putting the governor in charge. Hearings are expected to be held this fall.


State law generally does not bar a legislator from calling agency staffers or the board about a pending permit. There are restrictions, however, on an elected official who is acting as an individual's personal representative or an elected official who stands to gain himself.

In Ford's case, the meeting he tried to arrange between Hunter and developer Bobby Ginn never materialized because of scheduling conflicts. Ginn never built the project, slated for the site of an old landfill in downtown Charleston. The State newspaper's attempts to reach Ginn were unsuccessful.

Although Hunter said he rarely feels pressure from lawmakers, the Ford request for a dinner meeting made the commissioner uncomfortable.

"He would just prefer to meet them either in his office or some where else, rather than combining it with some kind of social event," agency spokesman Thom Berry said.

DHEC officials insist they base decisions on the facts in a case, but an e-mail last year shows political connections aren't ignored.


It would be wrong to think that legislators in other states or the federal level don't contact agencies about similar matters, legal experts say.

But agencies in South Carolina are prone to feel more pressure to please lawmakers because the state has a weak governor and strong legislature, Crangle, many environmentalists and some legal scholars say.

State law, for instance, allows the Legislature to block from becoming law regulations DHEC says are important to protect health and the environment. Only 16 other states have that same kind of authority.

Kim Diana Connolly, a professor at the University of South Carolina law school, said South Carolina's system isn't practical.

"What on paper looks like a good system ends up hampering the ability of experts," she said.

Environmentalist Dana Beach said Hunter shouldn't be fielding lawmakers' calls on specific cases. Those calls could be routed through an agency spokesman who's not involved in the decision-making process but who could pass concerns along to employees, Beach said.

Even in South Carolina, some agencies have more protection from legislative influence, some say.

Unlike DHEC, agencies such as the Department of Corrections are run by a Cabinet secretary the governor appoints. DHEC is controlled by a board the governor chooses, but has no direct authority over once members are seated.

Jon Ozmint, director at the state Department of Corrections, said legislators sometimes tell him to interview constituents for jobs. Being a Cabinet agency head makes him better able to withstand those legislative pressures, he said.

If he weren't a Cabinet agency head, Ozmint said, "I do believe the pressure would be much greater to go along and get along."

To read the full article, click here

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