Big permit backlog at DHEC raises questions, triggers lawsuit over coal ash
More than 500 polluters in South Carolina don't have up-to-date permits because of foot-dragging, budget cuts and other problems at the state Department of Health and Environmental Control.
Why permitting matters
The nation's clean air and water laws let industries pollute — as long as they get a government permit.
That's why the permitting process is so important. With input from the public and the industry, regulators are supposed to come up with a plan that balances everyone's interest.
Permits typically have expiration dates. This gives regulators and the public an opportunity to modify an industry's pollution practices.
If the government lets the permit sit, the public is shut out of the process.
Discovered by Catherine Templeton, DHEC's new commissioner, the backlog of expired permits is so bad that she recently ordered staff members to identify the most controversial and potentially serious permits and get them moving again.
Some permits expired in the 1990s, Templeton told The Post and Courier. The backlog involves entities ranging from a company that put waste sludge on land to utilities that generate mountainous volumes of arsenic-laced coal ash.
“I've asked the scientists to triage them and knock them out,” she said, adding that she was shocked by the sheer number of expired permits and the management culture that created the problem in the first place.
Meanwhile, the Southern Environmental Law Center on Tuesday sued DHEC after it learned the agency had been sitting for six years on an expired permit for Santee Cooper's aging Grainger coal plant.
The group said DHEC's “special treatment of Santee Cooper” allowed the state-owned utility to escape paying for new methods to reduce pollution from the power plant's coal ash pits. “DHEC is failing to carry out the law,” said Frank Holleman, an attorney for the group.
Federal pollution laws prohibit people and industries from dumping toxic chemicals into the air and water unless they have a permit. The permitting process is designed to help regulators monitor the effects of the pollution, and an important part of this process involves the public's opportunity to weigh in.
Templeton said that because the permits sat in DHEC's office for so long, the public lost its chance to comment. She said some expired because the agency lacked the staff to keep up. In other cases, managers made a conscious decision to let some permits slide.
“We still have a lack of resources. That hasn't changed,” she said. “What has changed is that I'm here, and I don't think it's appropriate to deprive the public from having their say by sitting on these permits.”
Environmental groups Tuesday said DHEC's treatment of Santee Cooper is a prime example of DHEC's mismanagement of the permit process.
Santee Cooper's Grainger coal-fired power plant sits on the banks of the Waccamaw River and has large ponds and pits of coal ash.
Ash contains arsenic, mercury and other toxic chemicals that over time can migrate into groundwater and eventually area waterways. Groundwater near the ash pits has arsenic concentrations 300 times the federal standard for safe drinking water.
According to documents cited by the lawsuit, DHEC issued Santee Cooper a permit in 2002 to discharge certain pollutants into the Waccamaw River and monitor the river for arsenic, copper and other contamination. The permit expired Sept. 30, 2006.
Two years later, DHEC drew up a new permit that would have required Santee Cooper to keep arsenic and mercury pollution below certain levels. This prompted Santee Cooper officials to complain that the requirements would cost more than $1 million in plant upgrades.
Santee Cooper officials wrote DHEC asking for a break on some of the requirements, an internal letter shows.
The permit remained in a regulatory limbo for years. At one point in 2010, DHEC asked Santee Cooper if it wanted the agency to reissue the permit. Internal Santee Cooper correspondence shows officials saying, “We don't want to push the permitting.”
Holleman, whose group is representing Waccamaw Riverkeeper and the Southern Alliance for Clean Energy, said he was pleased to hear that Templeton is addressing the backlog, but that the group needed to file a lawsuit to make sure the agency follows through.
“Good intentions are wonderful, but we're talking about more than a culture of delay. They made a conscious decision to put off a permit, and who knows when they'll get to (Santee Cooper's),” he said.
Mollie Gore, public relations director for Santee Cooper, said the agency filed the permit renewal application in a timely manner and hasn't asked DHEC to “stall the process.”
Still, Holleman said regulations are constantly being updated because of new research, and that the permit process is an important way of staying current with those changes.
Earl Hunter, Templeton's predecessor, said he was aware of a backlog but thought it typically hovered around 80 to 100 expired permits.
Hunter, who now works for S.C. Civil Justice Coalition, a group trying to make it more difficult to sue businesses, said budget cuts hit the agency hard and forced his staff to “make tough choices” about which permits to address and which ones to set aside.
“In 2001 we had about 5,400 people, and we had 3,450 when we left. But the demand for our services hadn't changed,” he said.
With that in mind, he said it made the most sense to focus on new permits instead of ones that were expiring and simply needed to be renewed. “I think the agency is going to take some time to recover from those cuts,” he said.
Even if the permits expire, the original conditions remain in effect, and an expired permit does not give an industry a blank check to pollute, he said.
Last January, DHEC's seven-person board selected Templeton to direct the agency after she spent a year running the S.C. Department of Labor, Licensing and Regulation. Gov. Nikki Haley and the state Senate signed off on that selection.
Templeton, an attorney from Mount Pleasant, said that when she took DHEC's reins, she began asking managers simple questions. “I asked, how long is it taking us to issue permits? Are we doing it with integrity? Send me a flow chart? Are we late?”
She said she learned about one expired permit from the mid-1990s that involved septic and well systems for a trailer park. That park is in the process of being closed.
Templeton said staff members knew about the situation and were concerned about taking away residents' ability to get well water. She said she was more comfortable with that explanation than with others. “It's the (expired permits) that no one's looked over that I'm worried about.”
Other permits are likely to generate intense public debate, she added, citing the case of C.E. Taylor, which has dumped septic tank sludge for years in an area with groundwater pollution problems.
She said her marching orders to address the backlog have irked some DHEC staff. “But I'm not here to win a popularity contest.”
Reach Tony Bartelme at 937-5554
Editor's note: Earlier versions of this story incorrectly described the process for Templeton's selection and approval as DHEC commissioner. The Post and Courier regrets the error.