And Then There Were Two: Splitting South Carolina’s Department of Health and Environmental Control
By
By
Arslan S. Valimohamed[1]*
In the fall of 2009, a panel of South Carolina state senators met to evaluate methods for the state to better administer health care services.[2] Among the approaches discussed, a medical affairs subcommittee was appointed to assess whether the South Carolina Department of Health and Environmental Control should be split into two separate agencies: one for public health and another for environmental control.[3] While the subcommittee was unable to reach a decision, the meeting represented the first serious movement considering an organizational shake-up to the department since its inception in 1973.[4]
The Department of Health and Environmental Control, or DHEC for short, is the state agency responsible for promoting and protecting the health of the public and the environment in South Carolina.[5] In fulfilling this duty, DHEC has oversight over matters ranging from infectious diseases and air quality to dam safety and tattoo parlor permits.[6] To keep up with its seemingly endless list of responsibilities, the department employs almost 4,000 people working out of over 100 locations within the state, making it one of South Carolina’s largest state agencies.[7] Despite the agency’s immense size and importance to the state’s citizens, the agency has largely remained outside the public consciousness for much of its existence.[8] However, with the emergence of the SARS-CoV-2 virus and resulting global COVID-19 pandemic, the agency has recently found itself under intense scrutiny from the public, the media, and state lawmakers alike.[9] While much of the focus has been on DHEC’s missteps in virus testing and its disorderly rollout of the vaccine, some legislators have seized the opportunity to revisit the decade-old debate over whether the agency has grown too large in size and scope.[10] Unlike previous attempts, the latest call to split DHEC is accompanied by a measure specifically outlining how such a division could be accomplished.[11] The measure, state Senate Bill No. S.2, calls for DHEC to be divided into two distinct agencies: the Department of Public and Behavioral Health and the Department of Environmental Services.[12] At the time of writing this Note, legislation calling for the dissolution of DHEC and creation of two different cabinet agencies responsible for the state’s health and environmental services is actively being considered in the 124th Session of the South Carolina General Assembly. An amended version of the bill, Senate Bill S.2, was unanimously passed by the South Carolina Senate on March 17, 2022 before being referred to the South Carolina House Ways and Means committee.[13]
This Student Note considers the significance of dissolving DHEC and argues that a division creating distinct, singularly focused health and environmental agencies could potentially benefit all South Carolinians, provided that proper legislative support is provided throughout the process. Part II of this Note discusses the history of public health and environmental control in South Carolina and delves into the confluence of factors which led to the creation of DHEC as one of only three state agencies in the country with combined public health and environmental control functions. This Part further discusses the current structure and responsibilities of DHEC as well as the impact that the global COVID-19 pandemic had on the agency. Part III of this Note considers the potential positive and negative impacts if the agency were to be divided in the likely event that Senate Bill S.2 is signed into law. In addition to this, Part III will also highlight the background, methodology, and findings from a recently commissioned task force assigned to determine whether an agency split would be in the best interest for South Carolinians. Finally, Part IV concludes by reiterating the advantages of having two distinct agencies for public health and environmental control and the conditions necessary for such a division to be successful.
Formally created in 1973 in an effort to combine the State Board of Health and the Pollution Control Authority (PCA), the South Carolina Department of Health and Environmental Control (DHEC) remains one of the state’s largest agencies and holds a central responsibility for matters pertaining to public health and the environment throughout the state.[14] Despite its comparatively short history as a cohesive agency, DHEC’s public health arm can trace its roots back to 1815 when residents of Charleston, South Carolina, created the Board of Health, regarded as the first semblance of a public health agency.[15]
Despite engaging in now widely practiced public health measures such as water filtration and purification infrastructure, the Board of Health’s efforts were still marred by poor public opinion and bad science.[16] Even as late as the 1910s the Board of Health faced criticism for its supporting role in the city of Charleston’s efforts to dig sewer lines.[17] This opposition rose out of a popular belief that agitation of the ground soil would create “march miasmas” or bad air that would spread virulent diseases such as yellow fever or malaria.[18] Even for the time, this publicly held belief was incongruous considering the miasma theory of disease had long been rendered obsolete in favor of the germ theory of disease by the end of the nineteenth century.[19]
Among other statewide efforts to modernize the South during the Reconstruction Era following the American Civil War, the South Carolina General Assembly created the State Board of Health in 1878.[20] This new agency represented one of the first examples of a statewide organization to address the public health concerns of South Carolinians.[21] Despite being underfunded and functioning with a staff of only four employees, the early days of the State Board of Health were filled with efforts that are remarkably similar to those facing the modern DHEC today, including vaccination distribution and encouragement (for smallpox rather than COVID-19), as well as school sanitation and ventilation.[22] However, despite some successful initiatives at its onset, that State Board of Health had a paltry record of success for much of the 20th Century.[23] Following the Great Depression of the late 1920s, federal funding was greatly diminished and key public health metrics including infant and maternal mortality rates and tuberculosis infection rates rose rapidly.[24] The lack of substantial federal funding and plainly inadequate state support resulted in South Carolina faring poorly by most public health indicators for much of the 1900s.[25] Such a failure to provide substantial public health initiatives was particularly impactful on the Black community in South Carolina, who suffered far worse health outcomes than White residents of the state.[26] This phenomenon was likely accelerated by the openly segregationist state health officer who led the State Board of Health for over thirty years until his resignation in 1944.[27] It was not until 1968 that the quality of public health in South Carolina improved under the leadership of a new state health officer who embraced a directive to consolidate the counties into thirteen statewide health districts, understanding that federal funds could be utilized more efficiently in the presence of a more consolidated agency.[28] Notwithstanding the improvements in public health since the late 1960s, South Carolina still compares poorly to other states in many public health indicators—a holdover from the state’s material history of neglecting health care needs of its citizens. [29]
Early environmental control measures in South Carolina arose largely out of a need for regulations to protect the financial interests of various industries.[30] One of the state’s earliest examples of environmental protection was a 1671 regulation that prohibited any discharge affecting shellfish fisheries, a standard that still has a place in South Carolina’s Code of Laws today.[31] However, it was not until the post-war industrial boom of the 1950s that state lawmakers were forced to establish official environmental control measures with a greater focus on protecting the public’s interest in land.[32] In response to citizen action and outrage following a series of fish-kill events and unchecked pollutant discharge into local waterways, state lawmakers established the Water Pollution Control Authority within the State Board of Health in 1949 to address these issues.[33] After air pollution was added as an environmental concern factor in 1965, the responsibilities of the state’s environmental control agency grew, leading to the agency being renamed the Pollution Control Authority.[34] Throughout a nearly twenty-year period spanning the early 1950s to late 1960s, the State Board of Health and Pollution Control Authority closely worked together in conjunction as one cohesive agency[35]—a clear precursor to DHEC’s current organization composition. However, South Carolina did not encounter its greatest change to environmental control until the 1970s, which proved to be a tumultuous decade that saw multiple reorganization efforts of its state agencies.[36]
Beginning in the late 1960s and spanning well into the 1970s, America was gripped by a widespread environmental movement that culminated in the most far-reaching environmental legislative actions the country had ever seen.[37] Many activists attribute this movement and the country’s newfound cognizance of ecology to Rachel Carson’s 1962 book Silent Spring, which documented the injurious environmental effects produced by indiscriminate pesticide use.[38]
Silent Spring awoke a public consciousness concentrated on preserving the environment by bringing public attention to the plight of plants, wildlife, and humans caused by pesticides such as DDT.[39] Unlike even some of the most prolific recent environmental exposés (Al Gore’s 2006 documentary An Inconvenient Truth comes to mind), Carson’s book captured the attention of influential lawmakers and politicians and helped bring about substantial legislative measures—something that very few environmental publications had accomplished before or since.[40] Among the politicians stirred by the movement was President Richard Nixon, who established the Environmental Protection Agency (EPA) and supported passage of the Clean Air Act (CAA) in 1970, followed by the Clean Water Act (CWA) in 1972.[41] The creation of the EPA, as a substantial standalone agency, supported a nationwide trend towards assigning environmental protection to separate agencies independent of the existing health programs under which those responsibilities previously fell.[42] As a result of this federal direction, the South Carolina Pollution Control Authority was established in 1970 as its own separate state agency detached from the State Board of Health.[43]
Almost immediately, the Pollution Control Authority struggled as an independent agency with many of the concerns stemming from the overlap of responsibilities with the State Board of Health.[44] Just a year after its formation, the South Carolina General Assembly passed amendments hoping to provide a clear distinction of responsibilities between the two agencies.[45] Under these amendments, the Pollution Control Authority was responsible for wastewater from industry, municipalities, and most public facilities as well as solid waste disposal from agriculture and industry.[46] In an apparent duplication of roles, the Board of Health was then assigned the responsibility of managing septic tanks, sewage systems, wastewater from schools and hospitals, and solid waste disposal from citizens outside of industry and non-industrial businesses.[47] The seemingly arbitrary delineation of responsibilities proved to be problematic with a rampant overlap of duties showcasing a lack of an adequate framework for environmental protection measures.[48] Seeking to repair the disarray, then-Governor John West proposed a plan to remerge the Pollution Control Authority and the State Board of Health into a new agency, thereby effectively undoing the separation effort that had occurred just a few years prior.[49] According to the preamble for the act codified in Section 44-160 of the 1976 South Carolina Code of Law,
[I]t has been found and declared by the State Reorganization Commission, after examination and investigation, . . . to be in the public interest of the State to combine and consolidate the State Board of Health, the Executive Committee of the State Board of Health, the State Department of Health, and the Pollution Control Authority of South Carolina into one agency, to be known as the South Carolina Department of Health and Environmental Control.[50]
As a result of this consolidation, the South Carolina Department of Health and Environmental Control was formed in 1973, creating a combined public health and environmental control agency that is still in existence today.[51]
The years following the establishment of DHEC saw major improvements in the state’s ability to regulate and control environmental activities.[52] Prior to the merger, the independent Pollution Control Authority issued eleven water pollution control orders and six air pollution control orders in 1970.[53] By 1973, the number of agency-issued cease and desist orders for water and air pollution had increased to forty and forty-three respectively.[54] However, while some attributed this newfound success in environmental control to DHEC consolidation of the state’s primary health and environmental agencies,[55] the unification likely played a very inconsequential role in these improvements. At the very same time that the efforts were underway to dissolve the Pollution Control Authority into DHEC, the recently formed EPA had begun to promulgate extensive and strict water and air pollution regulations at the federal level.[56] In many circumstances, these federal guidelines for pollution control far exceeded the state level regulations that the Pollution Control Authority had used in its short tenure as an independent agency.[57] Further, state environmental control agencies across the country began to overhaul their programs to comply with the EPA’s goal of holding polluters accountable for their violations in a bid to receive much needed federal funding.[58]
For South Carolina’s Pollution Control Authority, the effort to promote enforcement of agency regulations was particularly successful and helped garner greater financial support from both the federal government as well as state legislators.[59] Crucially, the increase in funding for pollution control measures occurred at the same time that the Pollution Control Authority devolved from its own separate agency into a division of the recently established Department of Health and Environmental Control (DHEC).[60] While the Pollution Control Authority had received a total of $1.37 million in state and federal funding in 1972, the amount allocated to the new Pollution Control Division within DHEC had ballooned to $2 million by 1974.[61] With newfound support from the state and a sizable increase in its resources, DHEC was able to address environmental concerns with a noticeably higher degree of efficacy than its predecessor.[62] At the time, proponents of the merger between South Carolina’s top health agency (Board of Health) and environmental control agency (Pollution Control Authority) attributed DHEC’s increased effectiveness in environmental control to the merger itself, citing the agency’s success as proof that the merger was the right course of action.[63] However, the progress that DHEC made in its early years as the state’s primary environmental control agency likely had little to do with the dissolution of the Pollution Control Authority. Rather, much of the improvements to the agency can be attributed to the increased support and resources from both the federal and state governments that happened to coincide with the merger. It is entirely possible that the Pollution Control Authority could have experienced similar improvements in its environmental control mission had the PCA received the same level of support later enjoyed by DHEC. Ultimately, it would be unreliable for contemporary lawmakers or officials to use DHEC’s early success in environmental control as evidence in favor of a combined environmental control and public health agency.
DHEC is overseen by the Board of Health and Environmental Control, an eight-member panel consisting of eight citizen members and one at-large Board chairman.[64] Each citizen member represents one of South Carolina’s congressional districts, while the Board chairman is appointed by the Governor with the advice and approval of the state Senate.[65] It is the responsibility of the Board of Health and Environmental Control to hire and supervise the department’s Director after consultation and approval by the Governor as well as advice and consent of the state Senate.[66] Removal of the Director by the Board is subject to approval of the Governor, who also maintains the unilateral capacity to remove his or her appointed chairman.[67] Conversely, the removal of any other members of the Board may only occur in the event of “malfeasance, incompetency, absenteeism, conflicts of interest, misconduct,” or other such dereliction of duty.[68] Through statutory authority, the Board is authorized to promulgate regulations, conduct public notice-and-comment hearings for regulations, permits, and orders, and may review decisions made by DHEC staff.[69] The decision of the Board is considered the “final agency decision” in instances where actions taken by DHEC are subjected to judicial review in the South Carolina Administrative Law Court.[70] In order to best address the various duties relegated to the agency, DHEC consists of nine key departments that ultimately answer to the director.[71] While the Environmental Affairs and Public Health divisions function somewhat independently, the two departments share many of the agency’s resources including its division of Legislative Affairs and General Counsel.[72]
Of the nine primary divisions within DHEC, the Director of Healthcare Quality and the Director of Public Health have the largest influence on the health and well-being of the state’s citizens because of their role in promulgating health-related regulations.[73] A key function of the Healthcare Quality division is the licensing and certification of healthcare facilities within the state to ensure that healthcare providers provide and maintain appropriate levels of quality and service.[74] Additionally, this part of DHEC plays a major role in health planning throughout the state through the role of the agency’s Certificate of Need (CON) process.[75] Like many other states, South Carolina requires healthcare providers to apply for a Certificate of Need before constructing a new healthcare facility—or making significant upgrades to an existing facility—in excess of $600,000.[76] In its evaluation of CON applications, DHEC considers whether the additions are in both the best interest of the citizens of the state as well as in compliance with the South Carolina Health Plan.[77] DHEC makes this determination in large part by weighing the community need for the medical service being proposed with the potential adverse effects that may result from the new construction or addition.[78] At the time of writing this Note in May of 2022, South Carolina legislators within the House Ways and Means Committee are considering whether the state should either revise or repeal its Certificate of Need laws through Senate Bill S.290.[79]
Arguably the agency’s most preeminent role, DHEC holds the authority for regulating and managing the state’s public health services including developing approaches for overall public health strategy and preparedness.[80] In normal times, fulfilling this duty includes administrating community health services and implementing prevention measures for chronic and communicable diseases alike.[81]
In addition to these significant public health responsibilities, DHEC is also in charge of protecting and managing the well-being of the state’s environment. Generally, state agencies tasked with implementing effective environmental control measures have two dominant obligations. First, the agency must provide strict regulations and have proper monitoring programs in place to ensure that the health of the state’s environment does not degrade as the state continues to grow in population and industrial capacity.[82] Second, the agency must possess and utilize its statutory authority as necessary to correct existing environmental problems such as excessive pollution discharge or other similar non-compliance.[83] In South Carolina, these crucial responsibilities fall upon DHEC’s Office of Environmental Affairs.[84] Within this office, the Bureau of Water is responsible for administration of permits pertaining to the collection, treatment, and discharge of wastewater from any source, as well as oversight of water quality standards for the state’s water utilities and natural waterways.[85] Similarly, the agency’s Bureau of Air Quality is responsible for issuing permits for and monitoring emissions of any discharge of ambient air that may affect air quality standards throughout the state.[86] DHEC’s Environmental Affairs office also exercises power over important radioactive waste transportation and disposal regulations.[87] This is a uniquely critical role for the agency due to South Carolina’s comparatively high utilization of nuclear power for energy production.[88] Seemingly serving as a link between environmental control and public health matters, the Office of Environmental Affairs is also responsible for the inspecting and permitting of many food services, including manufacturers and producers of common goods ranging from dairy to bottled water.[89] Recently however, DHEC’s role in the preventing and responding to public health emergencies was brought to the forefront of public attention with the onset of the global COVID-19 pandemic, an event that saw the agency struggle in the face of such an unprecedented public health calamity.[90]
In a fate shared by many other state, national, and even global health agencies, the emergence of a once-in-a-generation global pandemic exposed many of DHEC’s organizational and administrative flaws.[91] In the presence of the rapidly spreading novel disease COVID-19, many increasingly anxious South Carolinians turned towards the state health agency for guidance and reassurance that a proper health plan was in place.[92] However, in the early days of the pandemic there was little evidence that such a plan existed.[93]
Among the many strenuous responsibilities imposed on DHEC from the outset of the crisis was the burden of securing supplies used in individual testing for coronavirus, the vector that causes COVID-19, as well as personal protective equipment (PPE) for the healthcare workers on the front lines.[94] Because of the highly communicable nature of COVID-19, public health officials quickly determined that testing was one of the crucial tools that public health agencies had in their arsenal for combatting the virus.[95] In the early days of the pandemic, however, DHEC’s implementation of individual COVID-19 testing was marred by inadequate availability and sporadic processing time.[96] One of the key constraints contributing to these early testing issues was DHEC’s physical capacity to process tests.[97] Prior to the pandemic, DHEC’s in-house public health lab had been analyzing only 5,000 medical tests per year for diseases such as rabies and measles—a far-cry from the over 750,000 COVID-19 tests the lab would eventually process by the fall of 2021.[98] The lack of in-house capacity for testing necessitated the agency’s reliance on third-party, private-sector testing partners.[99] In this initial scramble to administer as many COVID-19 tests as possible, DHEC officials were unable to keep track of exactly how many tests had been sent out and where each individual test had been sent, causing turnaround for the test results to range anywhere from forty-eight hours to six days.[100] The race to find proper sources for gloves, gowns, and face masks was similarly contentious for the agency, with many hospital-equipment supplies running out of stock completely.[101] While DHEC had requested and received some of these supplies from the national strategic stockpile, the situation at times was so dire that DHEC suggested nurses and other healthcare providers begin reusing their masks or even rely on homemade masks made from bandanas or scarves as a last resort.[102]
As the pandemic progressed into late 2020, national and global supply chains ramped up to meet demand from medical services and hospitals fighting the virus.[103] However, DHEC soon faced a new challenge in its responsibility to distribute COVID-19 vaccines to eagerly awaiting South Carolinians.[104] In an effort to prioritize vulnerable populations, and in accordance with recommendations from the Centers for Disease Control and Prevention (CDC), DHEC drafted a phased vaccine rollout plan where people over seventy years-old and critical care workers such as doctors and nurses would be among the first in the state to receive the scarce vaccines.[105] Despite this seemingly well thought-out plan, DHEC faced intense criticism almost immediately due to concerns ranging from an overly convoluted sign-up system to mixed messaging regarding eligibility.[106] Some prominent state lawmakers went so far as to label the vaccine rollout “a disaster,” placing the blame directly on DHEC for the apparent misstep.[107] However, other lawmakers did not believe that the state health agency should have been tasked with the vaccine rollout at all, arguing that the governor’s office should have been charged with the responsibility instead.[108]
Regardless of where the blame for these missteps should fall, the COVID-19 pandemic and resulting health emergency have highlighted DHEC’s substantial and perennial faults as the state’s premier health agency. Incidentally, the agency’s shortcomings in responding to this latest health crisis have once again reignited calls for drastic structural and functional changes to the agency.[109]
Introduced by state Senate President Harvey Peeler in January of 2021, Senate Bill No. S.2 is the latest legislative effort to reorganize South Carolina’s health and environmental control agency.[110] The Bill, as initially proposed, included drastic functional and structural changes through the elimination of not only DHEC and the board that oversees it but also the South Carolina Department of Mental Health, the South Carolina Mental Health Commission, and the South Carolina Department of Alcohol and Other Drug Abuse Services (DAODAS).[111] Under the first iteration of the Bill, the two fundamental functions of DHEC would be split among a new state agency for public health while environmental control responsibilities would be distributed among existing agencies.[112] In addition to the myriad of public health responsibilities currently entrusted to DHEC under Title 44 of the South Carolina Code, the newly proposed Department of Behavioral and Public Health would also be tasked with services formerly under the purview of the Department of Mental Health and DAODAS.[113] Perhaps more remarkable would be the senate bill’s dissemination of DHEC’s environmental control responsibilities between two existing state agencies: the Department of Agriculture and the Department of Natural Resources (DNR).[114] The role of DHEC’s former Office of Coastal Resource Management would be taken over by DNR, while all other environmental control responsibilities—including restaurant inspections, radioactive waste management, food/milk production, and groundwater use—would be allocated to the Department of Agriculture.[115]
Critics of the Bill, among which include a former director of DHEC, were quick to label this dissolution scheme as impracticable, noting that an assignment of environmental responsibilities to the Department of Agriculture—an agency with only 137 employees—would be virtually impossible from an administrative standpoint.[116] Adding to the issue of outright feasibility of such a plan, there were substantial concerns of a conflict of interest apparent in the bill’s initial scheme.[117] As it stands, one of the primary functions for the Department of Agriculture is to oversee and promote agricultural development in the state.[118] Under the senate bill, this same department would now also be tasked with promulgating and enforcing environmental regulations that could potentially impair the speed at which South Carolina’s agricultural industry grows—essentially working against the department’s own interests. Entrusting an agency historically tasked with growing the agricultural industry to contend with new-found responsibilities of environment control has the possibility of significantly weakening environmental protections.
However, just two months after Senate Bill S.2 was first introduced, legislators in a Select Subcommittee met to draft an amendment to S.2.[119] In adopting the substitute amendment, the Subcommittee largely retained the original health department scheme, but penned significant changes to the delegation of environmental control duties, addressing many of the concerns arising out of the initial bill.[120] Instead of delegating DHEC’s former environmental control responsibilities to existing agencies, the amended bill calls for the creations of a new department entirely: the Department of Environmental Service (DES).[121] With the exception of the Division of Food and Lead Risk Assessment and the Milk and Dairy Lab, which are to be charged to the Department of Agriculture, all other former DHEC environmental control duties would fall under the new DES.[122] Additionally, DES is set to absorb the Water Resources Division, a group formerly under the purview of the Department of Natural Resources.[123] In offering this amendment, legislators appear resolved in their commitment to overhaul South Carolina’s health agency structure without sacrificing environmental protections throughout the state.[124]
In May of 2020, Rick Toomey, then Director of DHEC, resigned from his position citing a recent health scare and a desire to spend time with family as the reasons for his departure.[125] The resignation came at a particularly turbulent time as COVID-19 infections rates were hitting record highs in the midst of the pandemic’s strong grip on the state.[126] The resignation ended Toomey’s relatively short tenure as director, having been chosen for the position just two years prior following a lengthy seventeen-month search.[127] After a state senate confirmation hearing in February of 2021, Dr. Edward Simmer, a psychiatrist, became the first medical doctor to lead the state’s primary health and environmental control agency since the 1980s.[128] While some lauded the new hire with optimism, others viewed the hiring process as indicative of an inherent and critical flaw in the agency’s unique structure.[129] Unlike forty-seven other states, South Carolina’s premier health agency is not just a health agency, it is also the state’s primary environmental control authority.[130] As such, finding a qualified individual experienced and educated in the nuances of both pandemic management and coastal wetland conservation or other such health and ecological sciences is virtually impossible and certainly impracticable. As a result, DHEC directors are customarily experts in only one of these disciplines at the potential detriment of the other.[131] Typically, this detriment comes at the expense of environmental control evidenced by the fact that DHEC has only had one permanent director with a degree in an ecological science within the last twenty years.[132] The difficulty in managing such multi-faceted roles may explain DHEC’s history of short-termed directors, with the agency being led by eight different directors in the past decade alone.[133]
The dissolution of DHEC into distinct public health and environmental agencies would provide the significant advantage of having each head of an agency as an expert in their respective field. Dr. Skimmer’s experience as a psychiatrist would likely serve him well as the head of the Department of Behavioral and Public Health and could potentially ease the merger between DHEC’s traditional public health responsibilities and those of the currently separate Department of Mental Health as proposed by Senate Bill S.2.[134]
Like other state agencies in South Carolina, DHEC proposes yearly budget requests to the Ways and Means Committee of the state’s House of Representatives in preparation of the next fiscal year.[135] The twenty-five-member Committee is subdivided into six distinct Budget Subcommittees including those focused on Higher Education, Public Education, Transportation, Law Enforcement, Economic Development, and Healthcare.[136] As a result of this limited stratification of Subcommittees, DHEC currently makes its entire budget request within the Healthcare Subcommittee alone.[137] This poses a unique problem considering DHEC’s role as a regulatory and enforcement agency for both healthcare and environmental control matters alike. The resulting disconnect between DHEC’s sweeping responsibilities and the priority of the Subcommittee to fund healthcare has historically led to significant challenges in securing proper funding for crucial environmental control measures.[138] As one former DHEC executive explained: “[The agency] never could go over there and make an argument for hiring civil engineers, air quality (staff), geologists—people we needed to solve environmental problems when the health side is going for women and infant children.”[139] Herein lies another benefit of separate agencies for public health and environmental control. If DHEC were to be split according to the senate bill, the resulting introduction of a separate Ways and Means Subcommittee for environmental affairs would encourage a level playing field where the needs of health care and environmental control would no longer be in direct competition as they are now.
DHEC’s current budget is produced through three main sources: 23% of the agency budget comes from state allocation, 45% from federal funding, and 32% from other sources such as program fees and patient revenue.[140] The majority of the federal funds received for the agency’s budget are through 258 distinct grants.[141] The money in these grants is often conditioned on the state agency using the funds for strictly specified purposes.[142] As such, the agency relies on most of its flexible spending through state funds. In the midst of the Great Recession between 2008 and 2011, DHEC’s state funding was drastically reduced by 43%.[143] Since 2011 however, DHEC has seen its appropriation of state funds increase 2.25% annually, slowly regaining the budget it had lost during the recession.[144]
However, even with the recent increases, the agency has struggled with funding because of rising costs and the need for more competitive salaries to reduce employee attrition.[145] The budget deficiency is particularly detrimental on the state’s funding of environmental control measures.[146] South Carolina’s environmental fees contribute less to the overall fund than comparable states in the Southeast, resulting in the state relying more heavily on the already limited general DHEC fund to pay for environmental programs.[147]
To make matters even more complicated, DHEC is statutorily limited in its ability to raise these environmental fees, thereby preventing DHEC from reducing its reliance on the general fund.[148] Conversely, this restriction of fee increases is a unique problem faced by the Environmental Affairs division of DHEC because similar restrictions do not apply to healthcare fees.[149] DHEC is severely limited in its ability to increase environmental fees under state laws that prohibit the amount collected from environmental fees from exceeding 33.3 percent of total funds appropriated to the Office of Environmental Quality Control.[150] This statutory scheme to limit environmental fees has the consequence of creating a negative feedback loop where any reduction in federal grant money or state funding lowers the limit for collectable fees, thus exacerbating the fiscal shortfall. In this current structure, DHEC is not able to supplant the funding the agency receives from state and federal sources, hindering the agency’s ability to help itself.[151] This observation is further illustrated by the fact that increases in environmental fees, such as permits, have been few and far between over the past several decades.[152] While not addressed in S.2, the success of a new, separate state Department of Environmental Service relies on an overhaul of these statutory limitations on environmental fees. If the state legislature were to entrust the proposed new DES with a higher degree of autonomy than currently given to DHEC’s Division of Environmental Affairs, there is a likelihood that the agency could self-fund itself—at least in part—through the imposition of higher fees and thus reduce its dependence on other governmental funding sources.
Despite the potential advantages associated with an agency split, there are considerable challenges that must be addressed in order achieve a successful outcome. While the amended Senate Bill S.2 details how a separation of DHEC may be accomplished through organizational restructuring,[153] the Bill does little to explain how such an immense administrative undertaking would be carried out. A division of DHEC would involve significant changes to day-to-day operations: new offices would have to be assigned; new mission statements, purposes, and agency goals established; and new officials appointed to leadership positions of each respective division. However, even though an overhaul of the agency of this magnitude may be unprecedented, DHEC has been implementing serious changes to its internal structure over the course of the last few years.[154] Major program areas of the agency that were once divided into multiple bureaus have since been reformed into three key divisions: Environmental Affairs, Healthcare Quality, and Public Health.[155] Ironically, DHEC’s efforts to realign its services in the name of greater efficiency[156] may have had the unintended effect of making the proposed agency split far easier. While the Healthcare Quality and Public Health divisions would fall under the new Department of Behavioral and Public Health,[157] the division of Environmental Affairs would likely function as the basis of the new Department of Environmental Services, with the current DHEC Director of Environmental Affairs serving as a potential leader of the new agency.
In addition to the challenges posed by splitting DHEC, the scheme proposed by Senate Bill S.2 would also introduce complexities through the combination of other previously separate agencies as well. In the bill’s current form, the proposed Department of Public and Behavioral Health would incorporate not only DHEC’s two former health-oriented divisions, but also absorb the Department of Mental Health.[158] This is a substantial proposition as the Department of Mental Health itself is a massive agency with over 3,900 staff in its workforce.[159] With the addition of this staff to the already sizable number of employees currently working for the health division of DHEC and additional employees from the Department of Alcohol and Other Drug Abuse Services, the resulting Department of Public and Behavioral health would likely have over 6,000 salaried and hourly employees, an appreciable increase from DHEC’s current size.[160] As such, the Bill poses the risk of creating an even larger agency, a potential unrecognized consequence for proponents of the bill looking to create a leaner, more streamlined state health agency.[161]
Those in favor of keeping DHEC together as one agency, including current DHEC director Dr. Edward Simmer, have noted the confluence of shared purpose behind both the agency’s health and environmental affairs divisions: to improve the health and well-being of South Carolinians.[162] The ultimate goal of protecting the health of the state’s citizen for the combined agency was on full display in the response to the COVID-19 pandemic.[163] While some of DHEC’s shortcomings in the face of this health emergency fueled much of the effort to split the agency, the past eighteen months have also shown perhaps “the most coordination . . . between the agency’s wings” in its history.[164] When the need for contact tracing and testing infrastructure arose early in the pandemic, over 300 employees from DHEC’s Environmental Affairs division were mobilized in response.[165] Employees that had previously worked on environmental regulation and permitting were now fulfilling tasks such as data entry, virus testing, and medication transport in tandem with their counterparts from the agency’s health division.[166] The capability of DHEC to rely on all its employees in its response to COVID-19 offers a valuable level of flexibility that proved to be crucial in the face of an emergency.[167]
South Carolina DHEC’s shared responsibility over both public health and environmental control is a unique organizational structure shared by only two other states: Colorado and Kansas.[168] When asked how he might improve the agency while avoiding a potentially tumultuous division, Dr. Simmer, the latest Director of DHEC, expressed his intent study the processes of these other states, declaring: “I . . . want to work very closely with those two states, learn how they do it, see what’s working for them, what’s not, have our team do the same thing, so we can share lessons learned and identify how we can best maximize the connections between health and the environment.”[169] While Simmer’s plan to examine Colorado and Kansas’s successes with combined agencies appears to be sensible in theory, he fails to note the considerable geographic, economic, and demographical differences between those states and South Carolina that make implementation of identical programs exceedingly difficult.
One key difference between South Carolina and Colorado is the allocation of land within the state under federal ownership and control.[170] While Colorado is a physically larger state, roughly 36% of the acreage within the state is considered federal land compared to only 4.5% of land in South Carolina.[171] This is an important difference because federal land is managed by the Bureau of Land Management which enforces its own federal environmental regulations on the land, reducing the burden on Colorado’s own Department of Public Health & Environment.[172] In a similar vein, while South Carolina’s population is comparable to Colorado’s, it is roughly 75% greater than that of Kansas, indicating a greater load placed on DHEC to responsibly protect public health and the environment than its Midwestern counterparts.[173] Additionally, both Colorado and Kansas are landlocked states, attributing to a key geographical distinction from South Carolina.[174] Colorado and Kansas’s health and environmental authorities do not have the responsibility of managing ocean and coastal resources, a perennially complex undertaking for DHEC’s Department of Environmental Affairs.[175]
However, the most significant difference between these states is not a function of demographics or geography but rather one of economics. South Carolina is a relatively poor state when compared to either Colorado or Kansas.[176] While imperfect, GDP per capita can be a useful metric for gauging the prosperity of a state.[177] In 2017, Colorado and Kansas’s GDPs per capita of $57,654 and $50,970, respectively, are significantly higher than South Carolina’s per capita amount of $39,673.[178] Considerable inequality is also illustrated in the amount of state and local taxes collected per capita in each respective state.[179] While Colorado and Kansas collect roughly $5,200 in yearly tax revenue from each of their citizens, South Carolina’s local tax collection is the third lowest in the country at $3,705.[180] This metric is particularly concerning because a lower tax base results in reduced funding for critical state agencies in South Carolina, including DHEC.[181] While this does not suggest that a break-up of DHEC would solve this particular shortfall, the divergence between these two Midwestern states and South Carolina in key economic indicators implies that a direct comparison of combined public health and environmental agencies may not be as beneficial as previously suggested. Consequently, when looking at other Southeastern states with similar population, GDP, and tax collection rates (such as Louisiana or Kentucky), these comparable states have separate state agencies managing their respective public health and environmental control responsibilities.[182]
South Carolina’s own history regarding state public health and environmental control agencies more closely resembles that of Louisiana, a state that now has a separate agency for each respective function.[183] Similar to many other states—including South Carolina—Louisiana’s first efforts to address environmental control originated from within the state’s health agency.[184] Like it had in South Carolina, the passage of the National Environmental Protection Act in the late 1960s, and the subsequent formation of the EPA in 1970, prompted Louisiana’s state legislators to split their health and environmental control divisions into entirely separate agencies in 1972.[185] At this point, both South Carolina’s and Louisiana’s newly independent environmental control agencies faced problems that hampered the efficiency of the agencies.[186] However, while South Carolina’s solution to revise its struggling new Pollution Control Authority was to remerge the agency with the state health agency to form DHEC, Louisiana sought a different approach that allowed its health and environmental agencies to remain separated.[187] To follow federal agency alignment more closely, Louisiana lawmakers took legislative actions that later ensured the success of the Louisiana Department of Environmental Quality as an independent agency.[188]
However, the process for creating such an independent environmental control agency for Louisiana was tumultuous, undergoing multiple reorganizations before eventually creating the de-facto environmental agency in the Department of Environmental Quality.[189] When the state’s first attempt to create an independent environmental protection agency failed in 1972, Louisiana lawmakers instead formed the Governor’s Council on Environmental Quality (GCEQ), a four-person agency that began working on coordination of environmental protection efforts.[190] Shortly after, the GCEQ realized that over 100 different state agencies in Louisiana held responsibilities pertaining to environmental control and protection, with most of the burden falling to the Louisiana Department of Wildlife & Fisheries, the Department of Health, and the Department of Natural Resources.[191] Those three agencies alone possessed the divisions most critical to environmental protection including divisions tasked with regulating pollution associated with water, air, and radiation.[192] In 1978, upon the recommendation of the GCEQ (existing then as the Governor’s Office of Science, Technology, and Environmental Policy), the Louisiana Legislature created the Office of Environmental Affairs (OEA) within the Department of Natural Resources to consolidate many of the aforementioned pollution control and other such similar operations under one roof.[193]
For six years, much of Louisiana’s environmental regulation was managed by the OEA under the Department of Natural Resources until the passage of the Environmental Quality Act in 1983.[194] Under this Act, the Louisiana Department of Environmental Quality (DEQ) was first created and operated as its own independent agency, taking on many of the pollution control responsibilities previously assigned to the OEA, while leaving environmental management roles, such as wildlife & fishery management, to other agencies.[195] Since 1984, the Louisiana Department of Environmental Quality has operated as the state’s premier independent environmental control agency.[196] The DEQ maintains jurisdiction over air quality, water pollution, solid waste disposal, radiation control, and hazardous waste in the state of Louisiana.[197]
Through twelve years of substantial legislative effort and multiple complex agency reorganizations, Louisiana eventually managed to create a state environmental control agency with the clear delineation of roles and responsibilities necessary to maintain its structure as an independent agency. The eventual success of Louisiana’s agency split suggests that South Carolina likely could have made its own health and environmental control agency split work; however, state lawmakers at that time instead focused their attention on reconsolidation of the agencies instead.[198] It took over a decade for Louisiana to refine their agency structures to their current level of stability. If South Carolina were to undergo a similar agency split today, the complication of Louisiana’s efforts suggest that such a split would require many years of intense legislative commitment and amendments after the initial division. In the likely event that lawmakers in South Carolina follow through with Senate Bill S.2, they should be aware that continued legislative cooperation is necessary to achieve an arrangement where the resulting public health and environmental control agencies are firmly established and adequately differentiated in their respective roles and responsibilities.
While both South Carolina and Louisiana’s state legislature opted to split its health and environmental control agencies in the 1970s in the wake of increased national attention on environmental protections, Colorado and Kansas took a different approach and incorporated environmental protection divisions into their existing health agencies from the outset.[199] Therefore, it appears as though South Carolina is again differentiated from both Colorado and Kansas in that it is the only state in the nation where its combined health and environmental agency split and then remerged into one combined agency again.[200] Furthermore, South Carolina is the only one of the four states that is currently facing calls for agency reorganization, suggesting that some of the issues may be traced back to DHEC’s tumultuous founding and complicated history.[201]
Only four months after being confirmed as the newest Director of DHEC, Dr. Edward Simmer convened an independent task force in June of 2021 to identify consensus recommendation for addressing challenges facing the state’s delivery of health and environmental services.[202] The creation of the task force appeared to be in direct response to efforts to split DHEC by legislators through Senate Bill S.2,[203] indicating a respectable willingness for the new director to examine how changes to DHEC’s organization structure may impact South Carolinians. The fifty-one-member task force, officially named The Task Force to Strengthen the Health and Promote the Environment of South Carolina (SHaPE SC), included stakeholders such as DHEC and state officials as well as attorneys and private-representatives across the state.[204] The task force was divided into three subcommittees: Behavioral Health, Environmental Protection, and Public Health; each was charged with identifying recommendations on how delivery of health and environmental services could be improved.[205] In doing so, the task force evaluated how a complete organization restructuring of DHEC may achieve this goal, as well as alternative means including changes to the function or structure of existing agencies as they are currently aligned.[206] Of the agencies evaluated, nearly all were set to undergo significant structural changes under Senate Bill S.2 including DHEC, the Department of Mental Health, and the Department of Alcohol and Other Drug Abuse Services.[207] Before delivering its final report on November 10, 2021, the task force held seventeen public meetings, thirty hours of discussion, and received public comments from over 400 individuals and stakeholder groups.[208]
In a somewhat underwhelming conclusion to several months of extensive research and consideration, the task force was unable to reach a consensus recommendation for changes in organizational alignment among the relevant agencies.[209] The task force noted that a full evaluation of the possible short- and long- term impacts of any agency realignment or structural change would require making too many assumptions for a credible recommendation and would likely involve a time and resource-intensive fiscal impact analysis.[210] The task force was, however, able to identify particular challenges that would likely invoke considerable cost in the event of a DHEC split.[211] Among the largest contributors to this cost involved reassignment and distribution of over 400 federal grants, review or reissuing of over 2,500 purchase orders and 3,500 contractual agreements, and duplication of over thirty-five information technology enterprise-level systems.[212] However, despite the inability of the task force’s subcommittees to reach a final consensus, the task force’s report still offers several valuable recommendations for improving service and accessibility to health and environmental services.[213] Crucially, these recommendations are not contingent on the realignment of any agency evaluated by the task force and may be implemented independent from any organizational restructuring.[214]
A key recommendation corroborated by all three subcommittees of the task force concerns the need for better funding for agencies to address challenges facing behavioral health, environmental protection, and public health services in South Carolina.[215] While funding has historically been a problem for many state agencies across the board, DHEC and other related agencies are in particular need of more resources in light of an increasing number of federal mandates, many of which call for compulsory compliance without offering additional federal funds.[216] Similarly, each subcommittee noted that there is an overarching need for funding of competitive salaries in order to retain and recruit employees for critical positions within each agency.[217] To demonstrate the severity of this problem, the task force’s report highlights several specific instances where a failure to fund competitive salaries will likely adversely impact an agency’s ability to function effectively.[218] The report notes that South Carolina currently has the highest shortage of nurses of any state in the nation, a problem compounded by a rapidly aging workforce where the average age of a DHEC Registered Nurse is fifty-one years old.[219] An aging workforce is not only a problem for the nurses within DHEC and the Department of Mental Health but is also an issue shared by many governmental agencies.[220] Within DHEC, more than a third of the agency’s total workforce will be eligible for retirement in the next three to five years.[221] Adding to the DHEC health division’s recruiting troubles is the environmental affairs division’s problem with employee retention.[222] Simply put, DHEC cannot compete with the private sector or even some other governmental agencies regarding scientist salaries.[223] While a recent graduate of geology or hydrology could earn just below $40,000 a year with DHEC, that same graduate could be hired at $50,000 for a comparable position in the private sector.[224] Addressing the lack of competitive salaries for hiring and retaining qualified employees is critical for maintaining the ability of state health and environmental agencies to carry out their duty to improve the health and well-being of South Carolina’s citizens.
While these recommendations may be applicable to most, if not all, state agencies, the report also offers suggestions tailored for challenges facing each relevant agency.[225] Specifically, the report notes that DHEC could likely improve its efficiency and effectiveness as a combined health and environmental agency without undergoing any significant realignment by implementing a reformed budget request and review process that provides greater equity between its three core divisions: Environmental Affairs, Healthcare Quality, and Public Health.[226] The probability that environmental protection funding is being relegated in priority behind health-related funding is a concern that has been used to justify an agency split before.[227] A revision of the budgeting process can likely achieve the same result of ensuring that environmental protection has a fair chance of funding without the need of a complete agency overhaul.
Ultimately, while members of the task force were unable to reach a consensus regarding any proposed agency realignment, the task force did express the general sentiment that any changes to the agency structure of DHEC should be carefully and thoughtfully considered.[228] The report warns that any legislative action without a full evaluation (including a comprehensive cost-benefit analysis) could have the unintended consequence of severely impairing the agency’s ability to the health of both the public and the environment.[229]
The fundamental goal for DHEC as the state’s premier health and environmental control agency is to improve the quality of life for all South Carolinians by promoting and protecting the health of the public and the environment. However, deficiencies revealed by the agency’s response to the pandemic as well as the agency’s inconsistent leadership history have demonstrated the challenges that may arise if the department were to be split.
This Note has described several ascertainable benefits to a division of DHEC. Separation into distinct public health and environmental control agencies would provide a chance for each agency to be led by an expert in that respective field, rather than having one leader tasked with managing two divisions with each demanding a distinct area of expertise. While a split of DHEC would not guarantee equal funding for each resulting agency, it would mean that each agency could advocate on their own behalf and provide separate budget proposals for consideration by the state House of Representatives Means and Ways Committee. With separate agencies, South Carolina would achieve parity with the federal government and forty-seven other states that have already demonstrated the potential effectiveness of having distinct health and environmental control agencies. For these reasons, it appears that a division of DHEC and reorganization into an agency focused on public and behavioral health and another tasked with environmental control is likely be the correct path forward for South Carolina.
Nonetheless, such an unprecedented, massive agency reorganization for South Carolina introduces many points of failure. Consequently, it appears as though the success of any agency realignment is set to be determined by the intentions and actions of the legislators involved in the process. While maintaining the current combined agency structure of DHEC is certainly the most accessible and painless path forward, the limitations of a combined agency as identified in this Note suggest that separate health and environmental control agencies could potentially provide the level of organizational efficiency and competence that state legislators desire and that the South Carolina public deserves.
While the SHaPE task force was unable to reach an ultimate conclusion as to whether DHEC should be broken up, the task force’s final report did identify certain themes that would be crucial to the success of an agency split. There is undoubtedly potential for an agency realignment to be successful; however, there exists a simultaneous risk that such drastic restructuring leaves the condition of public health and environmental control protections even worse off than before. If Senate Bill S.2 is signed into law, it is critical that the elected officials consider the mistakes of the past and heed the recommendations identified by the task force if they intend to improve the quality of health and the environment for their constituents. South Carolina’s last attempt to split public health and environmental control into separate agencies in the 1970s failed due to a lack of adequate framework and proper delegation of responsibilities to each respective agency as well as an unsubstantial body of laws that hampered the agencies’ abilities to regulate effectively. At the very best, an agency administering the law can only be as good as the law itself. If the state legislature intends to promote the health of South Carolina’s citizens and protect its environment by splitting DHEC, the outcome of their efforts will likely rely on legitimate efforts by lawmakers to administer the legal authority and financial backing necessary for the resulting agencies to succeed.