Current Status
BillNumber: 2483
Ratification Number: 184
Act Number: 104
Introducing Body: House
Subject: Board of certification of environmental systems
operators
View additional legislative information at the LPITS web site.
(A104, R184, S2483)
AN ACT TO AMEND SECTION 40-23-40, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE SOUTH CAROLINA BOARD OF CERTIFICATION OF ENVIRONMENTAL SYSTEMS OPERATORS, SO AS TO PROVIDE THAT NO MEMBER OF THE BOARD OR ITS EMPLOYEES MAY BE HELD LIABLE WHILE PERFORMING OFFICIAL DUTIES EXCEPT WHERE THERE IS ACTUAL MALICE AND TO AUTHORIZE THE BOARD, RELEVANT TO INVESTIGATIONS, TO SUBPOENA WITNESSES, REQUIRE THE PRODUCTION OF EVIDENCE, ORDER PERSONS TO REFRAIN FROM VIOLATIONS OF THIS CHAPTER, AND APPLY TO THE COURT OF COMMON PLEAS TO ENFORCE ITS AUTHORITY AND FOR INJUNCTIONS; TO AMEND SECTION 40-23-120, RELATING TO THE BOARD OF CERTIFICATION OF ENVIRONMENTAL SYSTEMS OPERATORS, SO AS TO PROVIDE FOR NEW PROCEDURES TO BE USED IN HANDLING COMPLAINTS AGAINST CERTIFIED OPERATORS AND TO PRESERVE THE RESPONDENT'S CONSTITUTIONAL RIGHT OF DUE PROCESS; TO AMEND CHAPTER 23 OF TITLE 40, RELATING TO ENVIRONMENTAL SYSTEMS OPERATORS, BY ADDING SECTION 40-23-35, SO AS TO PROVIDE FOR REMOVAL BY THE GOVERNOR OF A BOARD MEMBER FOUND GUILTY OF NEGLECT OF HIS DUTIES, INCOMPETENCY, OR UNPROFESSIONALISM AND FOR A REPLACEMENT IF A BOARD MEMBER IS DISQUALIFIED; BY ADDING SECTION 40-23-125, SO AS TO PROVIDE FOR THE BOARD TO REVOKE OR RESTRICT THE CERTIFICATE OF AN OPERATOR OR TO DISCIPLINE AN OPERATOR AND TO DEFINE MISCONDUCT OF AN OPERATOR; BY ADDING SECTION 40-23-127, SO AS TO AUTHORIZE THE BOARD TO TAKE CERTAIN ACTION WHEN IT DECIDES AN OPERATOR IS GUILTY OF ANY OFFENSE CHARGED IN A FORMAL ACCUSATION, TO PROVIDE THAT ANY FINAL ORDER OF THE BOARD FINDING THAT AN OPERATOR IS GUILTY OF THE OFFENSE BECOMES PUBLIC KNOWLEDGE EXCEPT FOR A FINAL ORDER DISMISSING THE ACCUSATION OR DETERMINING THAT A PRIVATE REPRIMAND IS IN ORDER, AND TO PROVIDE FOR ANY DECISION BY THE BOARD TO BE REVIEWED BY THE COURT OF COMMON PLEAS; TO REAUTHORIZE THE EXISTENCE OF THE BOARD OF CERTIFICATION OF ENVIRONMENTAL SYSTEMS OPERATORS FOR SIX YEARS; TO AMEND SECTION 40-23-90, RELATING TO REQUIREMENTS FOR CERTIFICATION AS ENVIRONMENTAL SYSTEMS OPERATORS, SO AS TO DELETE THE REQUIREMENT OF GOOD MORAL CHARACTER; AND TO AMEND SECTION 40-23-20, AS AMENDED, RELATING TO THE BOARD OF CERTIFICATION OF ENVIRONMENTAL SYSTEMS OPERATORS, SO AS TO REVISE THE MEMBERSHIP OF THE BOARD, TO PROVIDE THAT THE TERMS ARE FOR FOUR YEARS, NOT TO EXCEED TWO TERMS, AND TO AUTHORIZE THE GOVERNOR TO REJECT ANY OR ALL OF THE NOMINEES FOUND UNACCEPTABLE.
Be it enacted by the General Assembly of the State of South Carolina:
Meeting, composition, etc., of board
SECTION 1. Section 40-23-40 of the 1976 Code is amended to read:
"Section 40-23-40. The Board shall meet at least once a year and at other times as its bylaws provide, at a place designated by the chairman. At its initial meeting, the Board shall elect from its membership a chairman and a vice-chairman to serve for a term of one year. The Board may promulgate regulations, pursuant to the Administrative Procedures Act, as it may consider necessary for the purposes of carrying out the provisions of this chapter.
No member of the Board or its committees, special examiners, agents, and employees may be held liable for acts performed in the course of official duties except where actual malice is shown. For the purpose of any investigation or proceeding under the provisions of this chapter, the Board or any person designated by it may administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of any documents or records which the Board considers relevant to the inquiry. In the case of contumacy by or refusal to obey a subpoena issued to any person, a court of common pleas upon application of the Board may issue an order requiring the person to appear before the Board or the person designated by it and produce documentary evidence and to give other evidence concerning the matter under inquiry.
Whenever the Board has reason to believe that any person is violating or intends to violate any provision of this chapter, it may, in addition to all other remedies, order the person to immediately desist and refrain from the conduct. The Board may apply to the court of common pleas for an injunction restraining the person from the conduct. The court may issue a temporary injunction ex parte not to exceed ten days and upon notice and full hearing may issue any other order in the matter it considers proper. No bond is required of the Board by the court as a condition to the issuance of any injunction or order contemplated by the provisions of this section."
Board to receive complaints
SECTION 2. Section 40-23-120 of the 1976 Code is amended to read:
"Section 40-23-120. The Board shall receive complaints by any person against a certified operator and shall require a complaint to be submitted in written form. Upon receipt of the complaint, the secretary or other person as the chairman may designate shall investigate the allegations in the complaint and make a report to the Board concerning his investigation. In instances where a board member makes the initial investigation or complaint, he may not sit with the Board at the hearing of the complaint. If the Board then desires to proceed further, it may, in its discretion, file a formal accusation charging the operator with a violation of a provision of this chapter. The accusation must be signed by the chairman or vice-chairman on behalf of the Board. When the accusation is filed and the Board has set a date and place for hearing on the accusation, the secretary of the Board shall notify the accused in writing not less than thirty days prior to the hearing, and a copy of the accusation must be attached to the notice. The notice must be served personally or sent to the accused by registered mail, return receipt requested, directed to his last mailing address furnished to the Board. The post-office registration receipt signed by the accused, his agent, or a responsible member of his household or office staff, or, if not accepted by the person whom addressed, the postal authority stamp showing the notice refused is prima facie evidence of service of the notice.
The accused may appear and show cause why his certificate should not be suspended or revoked or other disciplinary action taken. The accused has the right to be confronted with and to cross-examine the witnesses against him, and he has the right to counsel. For the purposes of the hearings, the Board may require by subpoena the attendance of witnesses, the production of documents, may administer oaths, and hear testimony, either oral or documentary, for and against the accused. All investigations and proceedings undertaken under the provisions of this chapter are confidential.
Every communication, whether oral or written, made by or on behalf of any complainant to the Board or its agents or any hearing panel or member of the panel, pursuant to this chapter, whether by way of complaint or testimony, is privileged. No action or proceeding, civil or criminal, may lie against any person by whom or on whose behalf the communication has been made, except upon proof that the communication was made with malice.
No part of this chapter may be construed as prohibiting the respondent or his legal counsel from exercising the respondent's constitutional right of due process under the law, nor to prohibit the respondent from normal access to the charges and evidence filed against him as a part of due process under the law."
Governor may remove any member
SECTION 3. Chapter 23 of Title 40 of the 1976 Code is amended by adding:
"Section 40-23-35. The Governor may remove any member of the Board who has been found guilty of continued neglect of his duties or who is found to be incompetent, unprofessional, or dishonorable. No member may be removed without first giving him an opportunity to refute the charges filed against him. He must be given a copy of the charges at the time they are filed.
If a board member is disqualified and his absence results in the lack of a quorum or an adequate number of members to perform official functions, the Governor may deputize an individual to replace him during the period of disqualification.. The deputized individual shall meet the same qualifications as the member he is replacing and shall take the same oath as required of other members of the Board."
Board may revoke, etc., certificate
SECTION 4. Chapter 23 of Title 40 of the 1976 Code is amended by adding:
"Section 40-23-125. The Board may revoke, suspend, or otherwise restrict the certificate of any operator or reprimand or otherwise discipline him when it is established that the certificate holder is guilty of misconduct as defined in this section. Misconduct, which constitutes grounds for revocation, suspension, or restriction of a certificate or limitation on an operator, reprimand, or other discipline of an operator is satisfactory showing to the Board that:
(1) Any false, fraudulent, or forged statement or document has been used or any fraudulent, deceitful, or dishonest act has been practiced by the holder of a certificate in connection with any of the certificate requirements.
(2) The holder of a certificate practiced while under either the influence of alcohol or drugs to such a degree as to adversely affect his ability to practice.
(3) The holder of a certificate uses alcohol or drugs to such a degree as to adversely affect his ability to practice.
(4) The holder of a certificate has knowingly performed any act which in any way assists a person to practice illegally.
(5) The holder of a certificate has sustained any physical or mental impairment or disability which renders further practice by him dangerous to the public.
(6) The holder of a certificate has violated the principles of ethics as adopted by the Board and published in its regulations.
(7) The holder of a certificate is guilty of obtaining fees or assisting in obtaining fees under deceptive, false, or fraudulent circumstances.
(8) The holder of a certificate is guilty of the use of any intentionally false or fraudulent statement in any document connected with his work.
(9) The holder of a certificate has been found by the Board to lack the professional competence of practice.
(10) The holder of a certificate has violated any provision of this chapter regulating environmental systems operators or regulations issued pursuant to this chapter.
In addition to all other remedies and actions incorporated in this chapter, the certificate of an operator adjudged mentally incompetent by any court of proper jurisdiction is automatically suspended by the Board until he is adjudged by a court of competent jurisdiction or in any manner provided by law as being restored to mental competency."
Further
SECTION 5. Chapter 23 of Title 40 of the 1976 Code is amended by adding:
"Section 40-23-127. If the Board is satisfied that the operator is guilty of any offense charged in the formal accusation provided for in this chapter, it shall revoke, suspend, reprimand, or otherwise take any other reasonable action short of revocation or suspension, such as requiring the operator to undertake additional professional training. In all cases where disciplinary action is taken by the Board, written notice of the action must then be mailed by the secretary of the Board to the accused at his last known address as provided by the Board.
Any final order of the Board finding that an operator is guilty of any offense charged in a formal accusation becomes public knowledge except for a final order dismissing the accusation or determining that a private reprimand is in order. All final orders which are made public must be mailed to local and state professional associations, all firms or facilities with which the respondent is associated, states where the operator has a license or certificate known to the Board, and to any other source that the Board wishes to furnish this information.
Any decision by the Board to revoke, suspend, or otherwise restrict the certificate must be by majority vote and is subject to review by the court of common pleas upon petition filed by the certificate holder with the court and a copy served upon the secretary of the Board within thirty days from the date of delivery of the Board's decision to the operator. The review is limited to the, record established by the Board's hearing."
Board reauthorized
SECTION 6. In accordance with the provisions of Section 7 of Act 608 of 1978, the existence of the South Carolina Board of Certification of Environmental Systems Operators is reauthorized for six years.
Applicant must complete requirements
SECTION 7. Section 40-23-90 of the 1976 Code is amended to read:
"Section 40-23-90. To be eligible for certification by the Board, each applicant must successfully complete the requirements prescribed by the rules and regulations of the Board for the type of certificate applied for."
Board created
SECTION 8. Section 40-23-20 of the 1976 Code, as last amended by Act 459 of 1982, is further amended to read:
"Section 40-23-20. There is created the South Carolina Board of Certification for Environmental Systems Operators composed of thirteen members, all of whom shall be appointed by the Governor with advice from the following groups, agencies, or individuals:
(a) Four shall be recommended by the South Carolina Water Pollution Control Association;
(b) One shall be recommended by the Municipal Association of South Carolina;
(c) Two shall be recommended by the President of Clemson University who shall be members of the faculty of the university engaged in waterworks and wastewater instruction;
(d) One shall be recommended by the South Carolina Land Resources Commission;
(e) One shall be recommended by the executive director of the South Carolina Board for Technical and Comprehensive Education to represent the agency;
(f) Two shall be recommended by the Commissioner of the South Carolina Department of Health and Environmental Control;
(g) One shall be recommended by the South Carolina Well Drillers Association;
(h) One shall be recommended by the executive director of the South Carolina Water Resources Commission to represent the agency.
The terms of the members shall be for four years, not to exceed two terms, and until successors are appointed and qualify.
The Governor may reject any or all of the nominees found unacceptable. If the Governor declines to appoint any of the nominees, additional nominees shall be submitted in the same manner. Vacancies shall be filled in the manner as the original appointment for the unexpired portion of the term."
Time effective
SECTION 9. This act shall take effect upon approval by the Governor.
Approved the 13th day of June, 1983.