Scoppe: How should we deal with repeat offenders?

Associate EditorNovember 12, 2013 

Cindi Scoppe

— IN COLUMBIA, we’ve been fixated on high-profile crimes apparently committed by people with long rap sheets. Why weren’t they still serving time for their last conviction, or in jail awaiting trial for their most recent arrest? If they had been, we say, Kelly Hunnewell would still be alive. Martha Childress wouldn’t be paralyzed. Other tragedies never would have occurred.

It’s against that backdrop that I would ask you to imagine that repeat offenders could only get tougher punishments than first-time offenders if their second offense was identical to the first. And if it happened in the same neighborhood. And with the same accomplices.

Imagine that we made sure in meting out punishments that we didn’t do anything that would put a financial strain on the offenders.

That actually is our policy in South Carolina, but not for street thugs or other violent criminals. That treatment is reserved for white-collar crimes, and specifically for environmental repeat offenders. And the result is predictable: The polluters keep polluting.

As The State’s Sammy Fretwell reported last month, nearly a quarter of the 4,700 businesses and governments cited by the state Department of Health and Environmental Control since 1991 for violating environmental laws went on to commit subsequent violations. And nearly a quarter of those — about 200 businesses and governments — have broken the law at least five times. Companies owned by one, Carolina Water Service parent Utilities Inc., have racked up 55 separate violations. Yet not a single one of its subsidiaries has been shut down, and more than half the violations resulted in fines of $5,000 or less, with total fines coming to just $645,000.

Most environmental enforcement cases are handled administratively, with fines, but many also can be prosecuted. When they are, they almost never involve a penalty even approaching the human equivalent of a year in prison — much less life — even though some violations can kill just as surely as a bullet through the forehead.

DHEC Director Catherine Templeton and other regulators make the legitimate point that they don’t want to fine polluters so heavily that they put them out of business, because that means the state has to clean up the messes they made. So the agency takes into account a company’s ability to pay the fine, and whether it’s trying to follow the rules but having a hard time doing so.

And then there’s that policy that does let the agency increase penalties for repeat offenders, but only when the misdeeds are similar or relate to the violations in a previous case that involves the same company — as opposed to a different subsidiary of the same parent company — at the same site. And those limitations are just crazy.

Of course, as our criminal justice system demonstrates, some people are never going to stop breaking the law, no matter how severely they’re penalized. But that doesn’t mean we don’t try to deter them. We put them in jail. We hit them with fines that hurt. We don’t let people keep their driver’s licenses after repeat DUIs. We take away physicians’ medical licenses when they endanger their patients. Yet we keep licensing environmental offenders, thus inviting them to keep polluting.

Ms. Templeton suggests that her agency should be judged by how well it protects the environment rather than how much money she collects in fines, and she’s right. The goal of any law, after all, is to prevent bad behavior, not to punish it after the fact.

But while that approach has in some cases played out well — the agency sometimes pushes violators to modernize their plants rather than hitting them with heavy fines — those 1,100 repeat offenders suggest that many companies write off relatively small fines as the cost of doing business.

Environmentalist Ann Timberlake sent a blast email to her network with two sensible suggestions for handling repeat offenders. The first, which DHEC could do tomorrow if it wanted to, is based on shame: Once violations meet a certain threshold, they should be posted prominently on DHEC’s website. The second involves legislation that I can’t imagine a legitimate objection to: Require DHEC to increase the fine 10 percent for every repeat enforcement action.

Over the past 20 years, DHEC’s environmental fines have averaged less than $9,000 per violation. Now it’s true that averages can be misleading: Some, perhaps most, of those violations could have been for the environmental equivalent of failing to use a turn signal. But it’s also true that the federal Environmental Protection Agency allows fines of up to $25,000 per day on some of those violations.

Perhaps that explains why the city of Columbia pretty much ignored 20 years of DHEC enforcement actions — until the EPA got involved. Earlier this year, the city signed a consent order with the federal agency to repair its long-neglected water and sewer system, which it projects will cost $750 million on top of $1.5 million in penalties.

There’s no such happy ending so far for Utilities Inc., whose 55 violations of state environmental laws have included such serious breaches as providing its customers water with dangerously high radium levels, for decades. The company implies that its position as the largest private water provider in the state helps explain the high number of violations. It says it oversees 130 water and sewage systems, compared to a handful each overseen by municipal utilities, implying that this also helps explain why a company that serves about 24,000 “premises” has so many more violations than, say, the city of Columbia, with its 130,000 customers.

But that line of defense begs the question: Given the significant danger they can pose to public health if they aren’t managed properly, should we really have all these tiny little water and sewer systems? Particularly since customers have no choice about who serves them? If operating a bunch of tiny little plants increases the danger of pollution, shouldn’t we be trying to consolidate them?

It’s one thing to have them in out-of-the-way communities where few live; it’s another to allow private entities to operate such systems that are literally surrounded by larger, safer municipal water systems, as is the case with many of Utilities Inc.’s systems.

Ms. Scoppe can be reached at cscoppe@thestate.com or at (803) 771-8571. Follow her on Twitter @CindiScoppe.

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