Repeated rule breaking doesn’t automatically bring higher fines

sfretwell@thestate.comOctober 26, 2013 

Local residents take a tour recently of the Pilgrim's Pride facility in Sumter County.

THE (SUMTER) ITEM — Corey Davis

Bacteria that washed into the Pocotaligo River from a chicken plant got the slaughterhouse in trouble five years ago, when state regulators penalized the Sumter company for pollution discharge violations and ordered plant managers to fix the problem.

Three years later, Pilgrim’s Pride again found itself in trouble for wastewater discharge violations. And earlier this year, state regulators fined the company a third time for violating wastewater laws.

But each time the state’s environmental department levied fines against Pilgrim’s Pride, the penalties got lighter. The state penalized the company $24,000 five years ago, $16,800 in 2011 and $11,200 this year.

While some argue that repeat offenders of environmental laws should get tougher penalties, state regulators say enforcement cases often involve other circumstances that influence the final amount of a fine.

If companies are trying to follow the rules but are having difficulty complying with a new regulation, it can have an impact on what penalties ultimately are levied. A company’s ability to pay also can determine how heavy the fine is, as can the degree of harm a violation causes to the environment, according to DHEC’s enforcement policy.

“You don’t want to fine them out of business, put them in receivership, and you have got an abandoned site you have to deal with,” DHEC director Catherine Templeton said. “You want to be corrective and cooperative. So there is a balance.’’

Gary Poliakoff, a Spartanburg lawyer who has battled DHEC for years in different court cases, sees things differently.

The agency has a reputation of going easy on polluters – and failing to increase penalties is a good example, he said. After learning the facts of the Pilgrim’s Pride case, Poliakoff said the violations appear serious enough to warrant stiffer penalties instead of a reduction in fines.

“The only message to that facility is that you can continue to violate and you will have less in the way of fines and penalties,’’ said Poliakoff, an outspoken critic of DHEC.

“Historically, DHEC has been notoriously lax in enforcement.’’

Templeton, however, said DHEC has to be careful, particularly with wastewater plants that aren’t complying with discharge rules. If the department is so tough it forces a plant to close, sewage bound for local rivers might not be treated, officials say.

In the case of Pilgrim’s Pride, the discharges go into streams that flow a short distance to the Pocotaligo, a sluggish river with an array of pollution problems. The Pocotaligo, which empties into the Black River, has so many water quality issues that state officials have developed a cleanup strategy. Among the pollutants affecting the river are mercury and fecal coliform, the same bacteria that caused discharge violations at the Sumter slaughterhouse.

DHEC cited its 1999 enforcement policy as part of the reason for not increasing fines against Pilgrim’s Pride. The policy says DHEC should consider a company’s history of repeat violations in deciding whether to get tougher on the next offense. But the misdeeds must be similar or relate to violations in a previous DHEC enforcement case that involves the same company at the same site.

When asked by an agency board member last spring about the multiple Pilgrim’s Pride violations, DHEC enforcement official Robin Stephens said the circumstances were different from one case to the next.

“The penalty would be much higher if they were all exactly the same,” she told DHEC board member Mark Lutz.

Because of questions about the policy, DHEC officials are reviewing the document to see if improvements are warranted.

“Staff has been working on recommendations for the board on how we might improve and update the enforcement policy,” the agency said in an Oct. 18 email to The State. “After those ideas are vetted, they will be presented to the board for approval.”

Templeton also said she has told department staff to let her know if a company or government is being “recalcitrant” and unwilling to work on problems. The agency will in many instances consider whether the company enjoyed an “economic benefit’’ by not following the law, which can be added to the fine, she said. If a company routinely and consciously violates the law, DHEC can launch a criminal investigation or refer the matter to the U.S. Environmental Protection Agency, she said.

Department records show that the 2008 order against Pilgrim’s Pride listed four different violations of discharge limits, including for fecal coliform bacteria. Such bacteria can indicate the presence of disease-carrying germs in wastewater that flows into rivers. The 2011 order listed three violations of permit limits.

The 2013 order listed one violation of permit limits for fecal coliform. But it also hit Pilgrim’s Pride for failing to follow a compliance schedule to address discharges of mercury, a toxin that has polluted fish throughout eastern South Carolina rivers. The 2013 order also cited Pilgrim’s Pride for changing chemical disinfection systems without getting DHEC permission.

Pilgrim’s Pride, a national corporation with headquarters in Colorado, said it is working to resolve problems at its Sumter slaughterhouse. The company says past discharge problems were tied to inaccurate measurements. The company plans to spend $400,000 to construct a new monitoring site that will give a more accurate accounting of its discharges, according to a company email last week.

“We take seriously our obligation to protect the environment and the natural resources critical both to the success of our business and the well-being of our neighbors in the community,” the company said.

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