Local

November 18, 2008

DHEC keeping secrets

Locked in a government storage room are files that tell the story of a leaking nuclear waste landfill near Barnwell. But when environmental lawyer Bob Guild asked to see the documents one day five years ago, state regulators only gave him a thin folder.

Locked in a government storage room are files that tell the story of a leaking nuclear waste landfill near Barnwell.

But when environmental lawyer Bob Guild asked to see the documents one day five years ago, state regulators only gave him a thin folder.

Landfill operator Chem-Nuclear had persuaded regulators to withhold many of the files, arguing the information included trade secrets. Without the records, Guild lost a court case that could have forced tougher disposal practices at the 37-year-old landfill.

“To say contamination records are trade secrets is just an outrage,” said Guild, who has appealed the court’s decision.

Guild’s troubles highlight a recurring complaint about the state Department of Health and Environmental Control: that it doesn’t inform the public well enough and, in some cases, deliberately withholds information that’s important to the public. It’s a complaint that spans the agency’s 35-year history.

DHEC officials say they are sometimes blamed unfairly by people who expect more information than the agency can provide. Commissioner Earl Hunter said he is committed to open government and is working to increase the flow of information to the public.

“We want people to know what we’re doing and certainly don’t want to hide anything from them,” Hunter said.

Still, complaints about secrecy are easy to find. State lawmakers and Attorney General Henry McMaster are among those critical of DHEC’s public information efforts in recent years.

In 2007, McMaster scolded the agency for failing to produce records related to the nuclear waste landfill. DHEC had withheld the documents not only from Guild, but from The State newspaper as well as from legislators during a public hearing.

The House agriculture committee eventually voted to close the landfill to the nation. DHEC had long acknowledged the leaks but had not provided key details about the extent of the contamination. DHEC officials say they provided plenty of data about the leaks to the committee.

Some lawmakers say that’s not good enough. The Barnwell incident continues to bother them.

“They had ample opportunity to come forward and make that information available, but we did not hear about it until after the committee had made the decision,” Democratic Rep. Paul Agnew, an agriculture committee member from Abbeville, told The State recently. “I was disappointed in DHEC.”

State Rep. Ted Vick, D-Chesterfield, said he doesn’t know that “anyone maliciously withheld that information, but it wasn’t freely given as it should have been. Committee members who had experiences with things being withheld from them are going to be somewhat suspicious the next time.”

LACK OF INFORMATION

Critics say, among other things, DHEC has:

 Failed to warn the public about pollution. People chastised DHEC for not telling them sooner about groundwater pollution in Myrtle Beach and a failed sewer plant that contaminated Columbia’s Saluda River. DHEC conceded last week the agency could have more fully informed the public in Columbia. Leaks from a Myrtle Beach industrial plant prompted area lawmakers to ask the state Legislative Audit Council to review DHEC’s public notice practices. The audit council agreed last month to investigate.

 Failed to reveal important pollution data on its Web site. In 2007, the federal Drug Enforcement Administration told The State that for years it has notified DHEC of numerous S.C. methamphetamine lab sites. Although the houses and motel rooms where meth is made can remain toxic for a long time, DHEC failed to pass the locations along to the public.

 Set fines in closed-door meetings with polluters, despite a lack of a public appeals process. Agencies across the country sometimes hold secret negotiating sessions with companies accused of pollution. But South Carolina doesn’t have a process for the public to challenge a privately negotiated fine. In contrast, the U.S. Environmental Protection Agency puts many fines out for public review before finalizing them. DHEC’s Hunter was cool to the idea of making proposed fines public and allowing appeals. “I guess you could do that, but what is that really accomplishing?” But others say DHEC’s process allows the agency to lower fines too easily because everything happens behind closed doors.

 Failed to respond to public records requests. In one recent case, it took a year for the agency to answer a neighborhood’s request for information about nearby industries, said Christie Savage, a leader in the Northwood Hills community in Columbia. State law says agencies have 15 days to respond. Nancy Whittle, DHEC’s community liaison, apologized to the neighborhood during a meeting last March.

Agency officials insist they want to keep the public informed and are taking steps to provide more information.

DHEC, for instance, is ramping up efforts to provide more data on its Web site, Hunter said. “We’re trying to get better and better at that,” he said.

The agency recently took the unusual step of posting questions and answers from interviews conducted by reporters for The State on its Web site. Spokesman Thom Berry said DHEC wanted “to be more proactive in getting information out to the public.”

But that same week, DHEC denied the newspaper’s request to attend a meeting about deaths at residential care homes the agency regulates.

Berry said in an e-mail the media’s presence might “significantly limit our ability to engage stakeholders in a completely open and frank dialogue.” A select group was invited to attend, including those who run the homes.

AUTOMATICALLY SEALED

South Carolina’s freedom of information law allows agencies to withhold information if documents contain trade secrets, but it’s not required.

In Guild’s case, he ran into an agency practice of automatically withholding records when companies say the documents contain trade secrets. Businesses say the information could put them at a competitive disadvantage.

Many state and federal agencies receive requests for trade secret exemptions — but not all of them are as trusting as DHEC.

The U.S. Nuclear Regulatory Commission, for instance, requires an affidavit from companies seeking a trade secrets exemption to open records laws.

At DHEC, the agency doesn’t conduct an initial review to see if a company’s request has merit.

Only if someone asks for a file that contains sealed documents will the agency decide whether to open the records.

Hunter said he doesn’t have enough staff to investigate companies’ requests as they make them; the Freedom of Information office receives 3,600 records requests annually.

Still, Guild said he didn’t learn about the magnitude of the landfill’s leaks until four years later — in 2007, after DHEC granted an appeal by The State newspaper to release some of the pollution records.

The documents showed high levels of radioactive tritium contamination at dozens of places beneath the site, indicating to Guild that the leaks were more serious than people realized.

“Our case would have been strengthened if we had had the information,” he said.

Reach Fretwell at (803) 771-8537. Reach Monk at (803) 771-8344.

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