By Daniel J. Ballou
Attorney at Law
If you own a business in South Carolina, chances are you have had some encounter with what used to be called the South Carolina Department of Health and Environmental Control (SCDHEC). As of July 1, 2024, SCDHEC ceased to exist, and was replaced by two separate agencies, the South Carolina Department of Public Health (SCDPH) and the South Carolina Department of Environmental Services (SCDES). Although the division of SCDHEC into two agencies required enacting a major piece of legislation, the practical effect for most businesses is not expected to significantly change. In fact, if anything, SCDES appears to have become more assertive in enforcing environmental regulations than ever, whether in areas of air quality, land and waste management, or water quality.
If you are contacted by an investigator from SCDES, it is likely because a complaint of some kind has been lodged against you, and you should not underestimate the impact these matters can have on you and your business operations. Following an initial SCDES investigation, you may receive a report by certified mail detailing the findings. Like anything else sent by certified mail, do not ignore this. If you have not consulted with an attorney by that time, you should do so without delay. Sometimes, investigators do not find enough to justify any further action. However, even if that happens, the Department has a long memory, and a previous report can be used to justify penalties in any subsequent investigation.
If the Department believes that a violation of its regulations has occurred, you may receive a Notice of Alleged Violation and Notice of Enforcement Conference. If you see the word “enforcement” in any communication from SCDES, it means the matter has escalated and fines will be sought by the Department.
The importance of hiring an attorney for an SCDES investigation
You may feel you are fully capable of explaining your position to SCDES staff yourself, but if you are “invited” to attend an enforcement conference, you should not do so without legal representation. The result of an enforcement conference is most likely a proposed Consent Order making findings of fact and imposing fines that can exceed thousands of dollars. If you do not agree to the Consent Order, the Department will issue an Administrative Order, which could impose even greater fines for regulatory violations. Strict time limits exist for appealing Administrative Orders, so it is important to act quickly to seek relief through the South Carolina Administrative Law Court.
If you find your business facing an investigation by SCDES or other state regulatory agencies, all is not lost, but remember that the earlier you engage counsel to assist in these matters, the better off you will be. Contact me if you need assistance always are ready to assist.
Daniel J. Ballou is Partner with Morton & Gettys Law Firm in Rock Hill, SC. His practice includes litigation, including representing clients before councils, commissions, and agencies, as well as all aspects of corporate and administrative law. He can be reached at (803) 366-3457 or dan.ballou@mortongettys.com.
Information or interaction on this page should not be construed as establishing a client-attorney relationship or as legal advice. For advice about your specific situation, please consult one of our attorneys.
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