The Full Story

Conversation with the Commissioner

On Sept. 10 and Oct. 14th, DHEC Commissioner Earl Hunter met with Columbia State newspaper reporters John Monk and Sammy Fretwell as the two prepare a series of stories to run in The State newspaper on DHEC and its activities which may begin Oct. 19.

In the wide-ranging interviews that lasted several hours, Commissioner Hunter, Deputy Commissioner for Health Regulations Pam Dukes, Bureau of Air Quality Chief Myra Reece and Robbie Brown, director of the Bureau of Air Quality's Division of Air Planning, Development and Outreach discussed the proposed permit for Santee Cooper's planned coal-fired generating station in Florence County and other topics.

The following are the written questions submitted by The State and our responses in bold.

LANDFILLS - Since the Solid Waste law was passed in 1991, the state has attracted the nation's largest garbage and trash waste haulers, who now operate major landfills across the state. Two and maybe three more 1 million ton-plus garbage landfills are planned. We take in a lot of out-of-state garbage now. What are Earl's observations on this? Is this a situation that the General Assembly should be officially informed about, since this situation was apparently not contemplated in 1991? Should S.C. be a large and regular destination and burial ground for other states' trash and garbage?

  • Major waste haulers who also in some cases own and operate disposal facilities, are involved in handling large volumes of solid waste throughout the United States
  • This is a result in large part due to the changes in Federal and State law and regulation in the early 1990s that make solid waste disposal more protective of the environment but also make disposal more expensive and complex. It has been a nationwide trend to move towards larger, more expensive, and complex solid waste disposal systems that are more often constructed and operated by private entities.
  • When the Solid Waste Policy and Management Act was passed, SC had 79 unlined municipal solid waste (MSW) landfills, most of which had impacted groundwater to some degree. SC now has 18 MSW landfills. MSW landfills are now required to have liners and leachate collection systems. To date, groundwater monitoring around SC lined MSW landfills has detected no impacts to groundwater attributed to these lined facilities.
  • In addition to the 18 current MSW landfills we are aware of only one new proposed MSW location in Marlboro County. Other facilities may be planning to replace and increase their yearly intake.
  • 2007 - SC MSW disposal 6.38 million tons, 1.7 from out of state
  • SC - current permitted capacity 9.9 million tons,
  • The state is limited in its ability to control out of state waste due to interstate commerce laws. We do have planning and regulatory responsibilities and we are working on this issue. The DHEC Board has asked us to study the capacity issue to determine how to avoid excess capacity; a stakeholder group is being formed and will begin meeting in November.
  • Solid Waste issues including capacity have been discussed at the legislature on a number of occasions and will continue to be discussed in the coming year as we put forth the proposed Demonstration of Need (DON) revisions.
  • DHEC is concerned about excess capacity and is proposing a decrease of 13 million tons per year with the DON revision. Also, the Board has directed staff to go beyond this and look for a way to further align the capacity with need, which we will be doing through the revision of the State Solid Waste Plan.
  • DHEC's Office of Solid Waste Reduction and Recycling has an extensive award winning program to promote reuse and recycling over disposal.
  • We inform the members of the S.C. General Assembly of important issues, including this one, in our annual accountability report and other reports we send to the legislature, the public and provide on our Web site.

DHEC GOVERNING LAW - State laws concerning pollution and the coast require DHEC to give a priority to employment and the economy, as well as health and the environment. The law does not assign a priority. Should DHEC put the economy and jobs first? Should Earl ask the Board or the General Assembly for clarification on this? Should DHEC staff actively and systematically point out problem areas in health and environment for the board and the General Assembly to be aware of?

Our responsibility is the protection of the public’s health and the environment. In our opinion, the law is clear in what is required of our agency. Section 48-1-20 states: “It is declared to be the public policy of the State to maintain reasonable standards of purity of the air and water resources of the State, consistent with the public health, safety and welfare of its citizens, maximum employment, the industrial development of the State, the propagation and protection of terrestrial and marine flora and fauna, and the protection of physical property and other resources. It is further declared that to secure these purposes and the enforcement of the provisions of this chapter, the Department of Health and Environmental Control shall have authority to abate, control and prevent pollution.

  • The policy makers of the state are the only ones that could modify or clarify language in the law.
  • We must all be wise stewards of all our resources whether it is our people or our environment. It should be noted that none of our permit applications require economic benefit information be provided for consideration for a permit.
  • Every year, we provide many reports to the members of the S.C. General Assembly, the public and the media through our Web site and outreach activities.
  • Every month we provide updated information to our board members on DHEC activities, including areas of concern.

RIVERS IN COLUMBIA - Some people ask where was DHEC over the years when the Lower Saluda had intermittent pollution problems? Has DHEC done all it could with respect to Columbia's recent river problems this summer? Did DHEC have any responsibility at all in the recent pollution of the Lower Saluda? What has DHEC learned from this latest pollution event? What will it do in the future to avoid a situation like this? Some people say DHEC could require these local operators to have a 24/7 system that would notify DHEC right away of large spill events? Are you considering that?

  • We have long supported the concept of regional wastewater treatment plants rather than numerous small facilities, including the Saluda River.
  • We were instrumental in the planning, presentations and goal setting of the recent summit on the rivers in the Columbia area.
  • DHEC now requires the owners of wastewater facilities to immediately report not only to us but to the public of spills that happen within their system, whether it is a problem at the wastewater plant or in the collection system. This new public reporting component was added this year.

SANTEE COOPER'S PROPOSED COAL PLANT - Does DHEC have a problem regulating Santee Cooper - a fellow state agency - and overseeing its coal plant request? Or does DHEC treat Santee Cooper like any other corporation? Some say DHEC might feel pressure to approve a state agency project.

  • DHEC regulates many agencies of government at the state and local levels.
  • We treat an application from a government agency the same as from private industry. We base our decisions on the merits of an application as they relate to current laws on the books.

PORT OF CHARLESTON EXPANSION - Did Earl feel pressure for DHEC to issue the port permits? An Oct. 10, 2006 email from Carolyn Boltin to other staffers said "The commissioner is under lots of pressure to get this completely out of DHEC by the end of the week.'' The email later says it should be a high priority. Why did DHEC's coastal staff issue permits for the port before these studies were done? The air bureau says it had no authority to require an emissions inventory and air toxics study before permits were issued.

First,

  • Permit applications have reasonable timetables attached.
  • Every permit decision is well-thought out and researched and must stand up to judicial scrutiny as any permit can be appealed.
  • We do thorough research on permit decisions but will not do what, in our opinion, are unnecessary studies to slow down the process as some wish we would do, especially when already we have existing monitoring information available.

OCEANFRONT SETBACK LINES - Does Earl feel like the agency is able to handle beachfront management adequately, or does it need more authority to regulate beachfront development? Is Earl comfortable with allowing the baseline to be moved seaward after renourishment?

  • DHEC’s Office of Ocean and Coastal Zone Management’s programs are constantly reviewed by our federal partner agencies that provide funding for programs.
  • Setback lines are reviewed and moved based upon much research, review, discussion and what the law prescribes us to do.
  • We have established the Shoreline Change Advisory Committee to review, among other items, the current law regarding baseline settings and routinely give updates to the board.

EMPLOYEES - Does Earl believe the agency loses too many valuable people to the private side? How can the agency do better to keep them on board? Is DHEC at a disadvantage sometimes because those seeking permits have more experience than the agency's staff? Is DHEC a training ground for private industry? The Budget and Control board says DHEC's turnover rate since 2004 is about 12 percent. Do you think that is good or would you like to see it lower? Do you know how that compares between the health and environment sides of DHEC?

  • We have a strong and dedicated work force that is committed to the protection of the public’s health and the environment.
  • The DHEC staff believes in what we do in spite of criticism and second-guessing from some.
  • It is difficult to compete with private industry that can offer hiring bonuses, moving expenses and the like. While our rate of 12% is lower than the state average of 14%, we would certainly like to see less turnover and keep more of our experienced staff.
  • There has been a long-standing shortage of nurses nationwide which is reflected in many of our current vacant positions being nurses.

OPEN GOVERNMENT - Is it still DHEC's policy to lock away documents a company stamps proprietary, then only make a determination on whether to release when someone asks? How open do you think DHEC is? Is the staff informational forum process fair -- why not invite everyone in the public, rather than interested stakeholders?

  • We are now and have always been an open agency.
  • “Locked away” is a pretty harsh term as it implies secrecy that does not exist.
  • Every time we get a request for information that the applicant or permit holder labeled as “trade secret,” we will review that information and may release it as we did with The State newspaper’s request.
  • The staff informational forum is part of process we must follow under the state’s Administrative Procedures Act and yes, it is open to all. Anyone can be an interested stakeholder. These forums are published in the State Registry and, many times, announced in the media.

ENVIRONMENT - Is DHEC doing all it can to protect the environment? Just this year, Upstate Forever spent thousands of dollars on a consultant to research environmental questions at a mountain development. It said DHEC should have done this sort of research. Coastal Conservation League is spending $100,000-plus on a coal plant study to see if Santee Cooper really needs such a big plant. What are Earl's observations on DHEC not doing these sorts of fact-finding studies on environmental questions?

We are doing these sorts of studies. In fact, in both of these situations we have had a team of experts from DHEC and other agencies working together to address these permits.

In the case of the Cliffs Development, we have a collaborative process established that relies on close ties with experts from other state and federal agencies to assist us in evaluating the different aspects of the permit. Prior to issuing this permit, staff worked closely for more than a year with experts from such agencies as the SC Dept. of Natural Resources, the US Army Corps of Engineers, the US Fish and Wildlife Service, and the US Environmental Protection Agency. Numerous site visits were conducted, often in concert with these other agencies. Relevant reports and studies pertaining to the project were evaluated. Input from the public and other concerned organizations was received and evaluated in an open process that included at least three public meetings. The Department firmly believes that this was an exhaustive and resource intensive process that ultimately resulted in a certification that is protective of water quality in the North Saluda river.

In the case of the Santee Cooper proposed power plant, again, the Department has been studying the various aspects of this issue for years. We are currently engaged in several studies looking issues such as mercury in fish tissue and evaluating epidemiological and risk assessment studies. The Department is also meeting with other agencies as part of the NEPA scoping process for the development of the Environmental Impact Statement (EIS). Consultants have been hired to develop the EIS which will look at a broad slate of issues such as alternate sources of energy, energy consumption and demand, alternate site locations, and mercury deposition to name a few. Again, the Department is collaborating with experts from academia, and other state and federal agencies to determine the appropriate actions for these permits.

Groups such as the ones mentioned in the question are not bound by the laws and regulations or budget constraints under which we must operate.

Is DHEC taking too narrow a view of laws that establish its jurisdiction? Earlier this year, DHEC took that position that it needed a specific state law before it could regulate the amount of water withdrawn from a river or lake. Others say the law clearly gives DHEC that authority now. DHEC takes the position it cannot look into a company's pollution past for out-of-state violations. Others say existing law gives DHEC ample authority to do so.

  • We are governed by laws and regulations. We must follow those as we perform our work since we only have the authority that has been given to us by the General Assembly. We are constantly reviewed by federal agencies such as the U.S. Environmental Protection Agency and others to insure we are meeting these laws and regulations and the intent of the funding we receive.
  • Our actions must be defensible in court as our permits and enforcement actions can be appealed which in some cases, may take years and cost many thousands and hundreds of thousands of dollars of taxpayer’s funds.
  • Those who feel we have those authorities can certainly appeal any permit decision we make and argue those positions in court.

We were thinking over here that we might like to have a section where Earl highlights 5 things he would like to change, or do, with DHEC if he could. I'm sure there are at least five.

  1. Ensure programs that are fee-based actually cover the costs of the programs. At a minimum, tie our fee-based programs to the Consumer Price Index or some other index so that fees could be raised or lowered to meet that index.
  2. Have a centralized facility in Columbia (State Park). We are currently in more than twenty buildings in Columbia. A centralized campus would be better for the public and would help management and communications. Would be more energy efficient than our current buildings and could actually save the state money in the long run.
  3. Ease some of the state’s administrative regulations on procurement and purchasing. We continue to be wise stewards of our resources, including our fiscal resources. We need to be able to take advantage of favorable market conditions for goods and services.
  4. Have more competitive salaries for our professional staff.
  5. Have more consistent funding from all sources to address current and emerging issues.

How many licensing people in DHEC's whole health licensing side? How many are assigned only to Community Residential Care Facilities?

DHEC’s Division of Health Licensing has 45 positions; three are vacant. The division has 29 inspectors. The community care oversight program has 13 positions. An additional inspector position is proposed, but has not been hired. One administrative person from the division’s operation support program is assigned responsibilities of processing CRCF applications for licensure.

How many investigators in DHEC's whole health licensing side? How many are assigned only to CRCFs?

We have 30 investigator positions. Of these, 11 are specifically assigned to CRCF in the Community Care Oversight Program.

Does DHEC need more inspectors and investigators for the CRCF program? How many?

Currently, the DHEC’s Division of Health Licensing licenses 489 CRCF’s with a total of 16,637 beds. We are assessing the CRCF program to determine how best to achieve the goals and responsibilities of the program. We’ll be happy to share the results once the study is completed.

Does this program have annual reports? (DHEC's solid waste division, for example, produces annually a nice comprehensive report.)

No.

How many natural deaths occur each year in CRCFs?

We do not collect that information as it is not required to be reported to DHEC by the facilities. We are to be notified by the facility of a death where there is an unusual circumstance that involves an investigation by the coroner or local law enforcement. We would investigate to determine whether there would be any violations of DHEC regulations that occurred. The investigation into the cause of the death and any criminal charges brought in the matter would be left to the coroner and local law enforcement agencies under their authority.

How many deaths due to staff negligence or inadequate staffing occur each year in CRCFs? (This question includes residents like the wheelchair death of a Peachtree Manor man, who was a resident but he was being pushed down the road.)

We are to be notified by the facilities when there is a death that is investigated by the coroner or local law enforcement. Criminal charges that may be brought would be done by those local authorities.

How many injuries occur each year in CRCFs? What is the nature of the injuries?

The facilities are required to notify DHEC of serious injuries that require hospitalization due to incidents involving fractures, burns, lacerations, hematomas, etc. While that information is reported to DHEC, we do not have the specific numbers compiled.

How many complaints do you get each year about CRCFs? How many are justified? What are the categories of complaints?

For the fiscal year July 1, 2007 to June 30, 2008, we received 569 CRCF complaints alleging 2,592 various issues which resulted in 579 citations.

For the current fiscal year from July 1, 2008, we have received 186 complaints alleging 886 issues for which 14 citations have been cited. Some findings for this period are inconclusive at this time as most of the complaints are still open.

Often the citations noted were not associated with the original complaint. Many times we are unable to determine if the complaint was justified.

The complaints are typically taken under the following headings:

  • Abuse
  • Accessibility
  • Activities
  • Administrative
  • Animals
  • Background Checks
  • Care Plans
  • Charting/Records
  • Dietary/Food
  • Dirty Needles
  • Dumping
  • Finances
  • Fire Code
  • Housekeeping
  • Incident Reports
  • Level of Care
  • Maintenance
  • Misappropriations
  • Oxygen
  • Patient Rights
  • Pharmacology
  • Quality Program
  • Recreation Staff Unlicensed
  • Safety
  • Staff
  • Staff Training
  • TB Requirements

How many CRCFs has DHEC closed in recent years?

Within the most recent years DHEC has actively been involved in the forced closure of one facility; Peachtree Manor.

All other closures have been as a result of the voluntary surrender of the facility’s license or closure of the facility as a decision made by the licensee/owner. Our enforcement actions have contributed to many of the voluntary closures.

About how many CRCFs are like Still Hopes (a CRFC in West Columbia) where mostly upper income folks go.

We do not compile information whether a facility is strictly private or whether it accepts residents that receive the Optional State Supplement (OSS) or both. You can contact the S.C. Department of Health & Human Services to request information on those facilities residents who receive the OSS supplement.

The CRCF at Still Hopes is only one part of that overall facility. Still Hopes has apartments for independent living as well as a skilled-care nursing home.

Describe briefly DHEC's main concerns with its CRCF program.

Compliance with the requirements of Regulation 61-84, Standards for Licensing Community Residential Care Facilities. Pam Dukes and Commissioner Hunter can elaborate on this question at your meeting this afternoon.

Describe briefly how DHEC wants to address those concerns.

The Division of Health Licensing is reviewing Regulation 61-84 for possible revision. We are studying possible changes in the programs. We expect to have that process completed within the next 30 days.

Can I attend the 1 p.m. Oct. 22 CRCF meeting at the Heritage Building in Columbia mentioned in Ken Moore’s Sept. 26 memo?

This meeting is for our staff and invited directly affected stakeholders to review the CRCF program and potential regulatory changes. As such, the session is not considered a “public” meeting based on input from the agency’s legal staff as the group does not constitute a public body. Allowing media participation may significantly limit our ability to engage stakeholders in a completely open and frank dialogue. We do encourage you to attend future public CRCF meetings that will be held as we continue this process.

(Question 1 response) You write, “The Community Care Oversight Program has 13 positions.” Q. My questions: How many of these positions are filled with full-time on-duty people?

All 13 are full-time on-duty staff.

How many of these positions with full-time on-duty people are devoted EXCLUSIVELY to CRCFs? (The 489 facilities you regulate).

None of the 13 are devoted exclusively to CRCF.

Of the positions EXCLUSIVELY devoted by CRCFs and filled now by full-time on-duty FTEs, how many are investigators? Inspectors? (This entire question may be most easily addressed on the phone with someone. I just want to be sure we are describing your staffpower accurately. For example, we have a lot more positions in our newsroom than actual workers. We have lost many through buyouts, attrition, etc. Saying you have a position doesn't reveal much about actual staffing.)

The CRCF program staff that inspect facilities are inspectors. The program does not use the position title of investigator.

(Questions 2 response) Does the “Community Care Oversight Program” only concern the 489 CRCFs, or does it include other types of facilities?

The Community Care Oversight program includes 87 Intermediate Care Facilities for the Mentally Retarded (MR15 and MR16). There are a total of 1,864 ICFMR beds.

(Question 8 response) You say for FY 07-08 you received 569 CRCF complaints alleging 2,592 issues... etc. (my question: Does this include the complaints forwarded to you by the Ombudsman’s office and Gloria Prevost’s group, Protection and Advocacy, which does about 85 contract inspections of CRCF’s a year for Department of Mental Health and forwards complaints to DHEC?)

Yes, but not all information forwarded to the CRCF program from these groups requires a DHEC investigation. Often, either the findings provided from their complaint investigation or the complaint itself is not within our scope of authority.

(Question 9 response)... Any idea how many closures in the past 3-4 years have been attributable in part to DHEC enforcement actions besides Peachtree?

Approximately 16 since 2004

On a different but related note: How many patients in state nursing homes? How many nursing homes?

For clarification, are you asking how many nursing homes are owned by the State of South Carolina, and how many patients are served in those homes? Or, is your question more general?

The general answer is that in South Carolina, we license 195 nursing homes with 19,647 beds. Most nursing homes in the state operate at over 95 percent occupancy.

If you want to know how many are State of South Carolina owned and how many beds are in those homes, we will need a couple of days to get you that information.

Listen to the interview. Note: Part of the audio from the second interview was lost due to weakened batteries in the recorder.

For additional information, contact:  (803) 898-3432