Bill 3769

                    Current Status

Bill Number:               3769
Ratification Number:       726
Act Number                 621
Introducing Body:          House
Subject:                   Environmental systems operators

(A621, R726, H3769)

AN ACT TO AMEND CHAPTER 23, TITLE 40, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO ENVIRONMENTAL SYSTEMS OPERATORS, SO AS TO REDEFINE "OPERATOR", "CERTIFICATE OF REGISTRATION", AND "BOARD", TO DEFINE "PERCOLATION TEST TECHNICIAN" AND "LICENSEE", TO CHANGE THE NAME OF THE SOUTH CAROLINA BOARD OF CERTIFICATION FOR ENVIRONMENTAL SYSTEMS OPERATORS TO THE SOUTH CAROLINA ENVIRONMENTAL CERTIFICATION BOARD, TO INCREASE AND REVISE THE MEMBERSHIP OF THE BOARD, TO DELETE A PROVISION RELATING TO VACANCIES, TO ELIMINATE LANGUAGE NO LONGER APPLICABLE AND PROVISIONS RELATIVE TO PAYMENT OF EXPENSES AND TRANSFER OF FUNDS, TO DELETE REQUIREMENTS FOR SPECIFIC EDUCATIONAL PROGRAMS, TO PROVIDE FOR REGISTRATION OF PERCOLATION TEST TECHNICIANS AND WELL DRILLERS, TO CHANGE REFERENCES TO OPERATORS TO LICENSEES, AND TO ELIMINATE DUTIES OF THE SECRETARY OF THE BOARD.

Be it enacted by the General Assembly of the State of South Carolina:

Environmental systems operators

SECTION 1. Chapter 23, Title 40 of the 1976 Code is amended to read:

"CHAPTER 23

Environmental Systems Operators

Section 40-23-10. When used in this chapter:

( 1) 'Public water supply' means:

(a) any publicly or privately owned waterworks system which provides drinking water, whether bottled or piped, for human consumption, including the source of supply whether the source of supply is of surface or subsurface origin;

(b) all structures and appurtenances used for the collection, treatment, storage, or distribution of drinking water delivered to point of meter of consumer or owner's connection;

(c) any part or portion of the system, including any water treatment facility, which in any way alters the physical, chemical, radiological, or bacteriological characteristics of drinking water.

Public water supply does not include a drinking water system serving a single private residence or dwelling. A separately owned system with its source or supply from another waterworks system is a separate public water supply.

( 2) 'Water treatment facility' means any public water supply which alters the physical, chemical, or bacteriological characteristics of potable water furnished to the public for human consumption whether the source of supply is of surface or subterranean origin.

( 3) 'Public wastewater treatment plant' means that portion of a public, private, or corporate wastewater system which treats domestic, commercial, or industrial waste and which alters physical, chemical, or bacteriological characteristics before placing the waste into any receiving waters.

( 4) 'Operator' means all persons employed in a public water treatment facility or public wastewater treatment plant whose duties include alteration of the physical, chemical, or bacteriological characteristics of water or wastewater.

( 5) 'Board' means the South Carolina Environmental Certification Board.

( 6) 'Certificate of registration' or 'certificate' means a serially numbered document issued by the board, containing the name of the person registered and the date of registration and authenticated by a signature as determined by the board, certifying that the person named has been registered by the board as an operator of a public water treatment facility, public wastewater treatment plant, percolation test technician, or a well driller.

( 7) 'Well' means a bored, drilled, or driven shaft, or a dug hole whose depth is greater than the largest surface dimension, from which water is extracted or injected including, but not limited to, wells used for water supply for irrigation, industrial, and manufacturing processes, or drinking water, wells used for underground injection of waste for disposal, storage, or drainage disposal, wells used in mineral or geothermal recovery, and any other special process wells.

( 8) 'Well driller' means any person directly responsible for construction of wells at the well site.

( 9) 'Percolation test technician' means a person who performs measurements of the percolation of water in soil.

(10) 'Licensee' means a person who holds a current certificate of registration issued by the board.

Section 40-23-20. There is created the South Carolina Environmental Certification Board composed of fourteen members appointed by the Governor with advice from the following groups, agencies, or individuals:

(a) one recommended by the membership of the South Carolina Water Pollution Control Association, who must hold an 'A' wastewater certificate;

(b) one recommended by the membership of the South Carolina Section of the American Waterworks Association and who if certified as an operator must hold an 'A' certificate;

(c) one recommended by the Municipal Association of South Carolina;

(d) two recommended by the President of Clemson University who are members of the faculty of the university engaged in waterworks and wastewater instruction;

(e) one recommended by the South Carolina Land Resources Commission;

(f) one recommended by the executive director of the South Carolina Board for Technical and Comprehensive Education to represent the agency;

(g) two recommended by the Commissioner of the South Carolina Department of Health and Environmental Control, one to represent the Bureau of Water Pollution Control and the Bureau of Water Supply and Special Programs, and one to represent the Bureau of Solid and Hazardous Waste Management;

(h) one recommended by the South Carolina Well Drillers Association;

(i) one recommended by the executive director of the South Carolina Water Resources Commission to represent the agency;

(j) one to represent the environmental organizations of the State to be appointed by the Governor;

(k) one recommended by the South Carolina Association of Counties who represents the solid waste interests;

(l) one at large to be appointed by the Governor.

The terms of the members are for four years, not to exceed two terms, and until successors are appointed and qualify.

The Governor may reject any of the nominees found unacceptable. If the Governor declines to appoint any of the nominees, additional nominees must be submitted in the same manner. Vacancies must be filled in the manner as the original appointment for the unexpired portion of the term.

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.

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. The board shall elect a chairman and a vice-chairman from its membership annually. The board may promulgate regulations, pursuant to the Administrative Procedures Act it considers 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 a person designated by it may administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of 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 a 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 a person is violating or intends to violate a provision of this chapter, it may, in addition to all other remedies, order the person to desist immediately 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 an injunction or order contemplated by the provisions of this section.

Section 40-23-50. The board shall keep a record of its proceedings and a register of applications for certificates of registration showing the date of application, the name, qualification, place of business, and place of residence of each applicant, and whether the certificate of registration was granted or refused. This record is open to public inspection at all reasonable times.

Section 40-23-60. The members of the board shall receive no salaries, but each member is entitled to per diem, mileage, and subsistence as authorized by law for members of boards, commissions, and committees when engaged in the actual performance of their duties.

Section 40-23-70. The board may assist and advise agencies and institutions in the conduct of educational programs for licensees.

Section 40-23-80. (A) A person desiring to be registered as a public water treatment facility operator, public wastewater treatment plant operator, percolation test technician, or well driller shall make application on a form prescribed and furnished by the board.

(B) Annual renewal is required for a certificate to remain in effect.

(C) The board shall review the applications submitted to it and make determinations in each case it considers proper and has final disposition of all applications.

(D) In the event the registration is denied, an applicant may appeal to the board within sixty days of receipt of the denial for a review of his application.

(E) All assessments and licensing fees must be determined by the board, and all fee increases must be approved by the General Assembly pursuant to Chapter 23 of Title 1.

Section 40-23-90. To be eligible for registration by the board, each applicant shall complete successfully the requirements prescribed by the regulations of the board for the type of certificate applied for.

Section 40-23-110. The certificates of registration issued by the board are permanent unless revoked for cause, replaced by one of a higher grade, or invalidated.

Section 40-23-120. The board shall receive complaints by a person against a licensee and shall require a complaint to be submitted in written form. Upon receipt of the complaint, a person designated by the chairman 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 licensee with a violation of a provision of this chapter. The accusation must be signed by the chairman or vice-chairman. When the accusation is filed and the board has set a date and place for hearing on the accusation, the board shall notify the accused in writing not less than thirty days before 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 to 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 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 a 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.

Section 40-23-125. The board may revoke, suspend, or otherwise restrict the certificate of a licensee 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, a licensee reprimand, or other discipline of a licensee is satisfactory showing to the board that the holder of a certificate:

( 1) has used a false, fraudulent, or forged statement or document or a fraudulent, deceitful, or dishonest act has been practiced by him in connection with any of the certificate requirements;

( 2) practiced while under either the influence of alcohol or drugs to such a degree as to affect adversely his ability to practice;

( 3) uses alcohol or drugs to such a degree as to affect adversely his ability to practice;

( 4) has performed knowingly an act which in any way assists a person to practice illegally;

( 5) has sustained physical or mental impairment or disability which renders further practice by him dangerous to the public;

( 6) has violated the principles of ethics as adopted by the board and published in its regulations;

( 7) is guilty of obtaining fees or assisting in obtaining fees under deceptive, false, or fraudulent circumstances;

( 8) is guilty of the use of intentionally false or fraudulent statement in a document connected with his work;

( 9) has been found by the board to lack the professional competence of practice;

(10) has violated a provision of this chapter regulating operators, well drillers, or percolation test technicians or regulations issued pursuant to this chapter.

In addition to all other remedies and actions incorporated in this chapter, the certificate of a licensee adjudged mentally incompetent by a 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.

Section 40-23-127. If the board is satisfied that a licensee is guilty of an offense charged in the formal accusation provided for in this chapter, it shall revoke, suspend, reprimand, or otherwise take 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 be mailed by the board to the accused at his last known address as provided to the board by the accused.

Any final order of the board finding that a licensee is guilty of an 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 licensee 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 board within thirty days from the date of delivery of the board's decision to the licensee. The review is limited to the record established by the board's hearing.

Section 40-23-130. A person of good moral character licensed as an operator, well driller, or percolation test technician by another state or territory whose requirements are commensurate with the requirements of this State, upon the payment of a fee not to exceed fifty dollars, may be granted a certificate of registration by the board.

Section 40-23-140. (A) It is unlawful for any person to practice as a public water treatment facility operator except for those water supplies classified in Group I under Section 44-55-40(j), unless the person practicing has fully complied with the provisions of this chapter and holds a current certificate of registration issued by the board in a grade equal to or higher than that grade designated for the public water supply at which he is employed.

(B) It is unlawful for a person to practice as a public wastewater treatment plant operator unless the person practicing has fully complied with the provisions of this chapter and holds a current certificate of registration issued by the board in a grade equal to or higher than that grade designated for the public wastewater treatment plant at which he is employed.

(C) It is unlawful for a person to practice as a percolation test technician unless the person has fully complied with the provisions of this chapter and holds a current certificate of registration issued by the board.

(D) It is unlawful for any person to practice as a well driller unless the person so practicing has fully complied with the provisions of this chapter and holds a current certificate of registration issued by the board.

(E) The board shall permit, by regulation, on-the-job training for persons seeking certification under this chapter.

(F) The provisions of this chapter do not apply to persons licensed or authorized by other boards or agencies to perform percolation tests as an incident to the practice of their profession or to persons constructing, opening, or closing wells on their own property.

Section 40-23-150. The Environmental Certification Board shall establish, in its regulations, a grade of certification corresponding to those groups of public water treatment facilities and public wastewater treatment plants that are required by Section 48-1-110(c) and Section 44-55-40(k) to have an 'operator-in-charge'.

Section 40-23-170. A person convicted of violating the provisions of this chapter after notification in writing by the board that he is in violation of this chapter is guilty of a misdemeanor and must be fined not more than one hundred dollars or imprisoned for not more than thirty days. Each day of violation after the notice of violation constitutes a separate offense."

Environmental certification board

SECTION 2. The members of the South Carolina Board of Certification for Environmental Systems Operators with the members to be added are now the members of the South Carolina Environmental Certification Board and shall serve until the expiration of their terms. Their successors must be appointed as provided by Section 40-23-20.

Time effective

SECTION 3. This act takes effect upon approval by the Governor.