Bill 210

                    Current Status

Bill Number:               210
Ratification Number:       196
Act Number                 113
Introducing Body:          Senate
Subject:                   Occupational Health and Safety Board
                           established

(A113, R196, S210)

AN ACT TO AMEND CHAPTER 15 OF TITLE 41, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO OCCUPATIONAL HEALTH AND SAFETY, BY ADDING ARTICLE 6 SO AS TO ESTABLISH THE SOUTH CAROLINA OCCUPATIONAL HEALTH AND SAFETY REVIEW BOARD, TO PROVIDE FOR ITS MEMBERSHIP AND ITS POWERS, DUTIES, RESPONSIBILITIES, AND PROCEDURES, AND TO AMEND SECTION 41-15-310, RELATING TO THE REVIEW BY THE COMMISSIONER OF LABOR AND THE COURTS OF CERTAIN OCCUPATIONAL HEALTH AND SAFETY ACTS OR VIOLATIONS, SO AS TO PROVIDE THAT EFFECTIVE OCTOBER 1, 1983, OR SUCH LATER TIME AS THE SOUTH CAROLINA OCCUPATIONAL HEALTH AND SAFETY REVIEW BOARD IS DULY CONSTITUTED, THE BOARD RATHER THAN THE COMMISSIONER OF LABOR SHALL PROVIDE ADMINISTRATIVE REVIEW UNDER THE PROVISIONS OF THE SECTION.

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

Occupational Health and Safety Board established

SECTION 1. Chapter 15 of Title 41 of the 1976 Code is amended by adding:

"Article 6

South Carolina Occupational Health and Safety Review Board

Section 41-15-600. (a) There is created the South Carolina Occupational Health and Safety Review Board which shall consist of six members. Members of the board shall be selected from among those persons who by reason of training, education, experience, or knowledge of the law are qualified to carry out the functions of the board under this chapter. One member shall be elected from each congressional district of this State by the resident members of the General Assembly from that district. The senior senator from each congressional district within sixty days after the effective date of this article, within sixty days prior to the expiration of the term of the member from that district, and within sixty days after any vacancy has occurred in that district shall call a meeting of the resident members of the General Assembly from the district to elect a member of the board from the district.

(b) The terms of the members of the board are four years and until their successors are elected and qualify, except that the member first elected from the first congressional district shall serve for an initial term of one year, the members first elected from the second and third congressional districts shall serve for initial terms of two years each, the member first elected from the fourth congressional district shall serve for an initial term of three years, and the members first elected from the fifth and sixth congressional districts shall serve for initial terms of four years each. Vacancies shall be filled for the remainder of the unexpired term by election in the same manner of the original election.

(c) The members of the board shall annually elect a chairman and such other officers as they deem necessary. No officer shall serve for more than two consecutive years in that capacity.

(d) The board shall hear and determine all contested cases and shall approve all settlements of such cases which arise as a result of any citation issued by the Commissioner of Labor pursuant to his authority in this chapter, any penalty assessed thereunder, and any date set for the abatement of any violations.

(e) The chairman is responsible on behalf of the board for the administrative operations of the board.

(f) Compensation for members of the board, to the extend funds are appropriated therefor by the General Assembly, shall be set by regulation of the South Carolina Department of Labor. Service on the board shall not be creditable service for purposes of the South Carolina Retirement System.

Section 41-15-610. (a) The board shall promulgate regulations as may be necessary to establish a procedure for administrative review of (1) any citation issued by the Commissioner of Labor pursuant to his authority found in this chapter, (2) any penalty assessed thereunder, or (3) any period for abatement set by the Commissioner of Labor.

(b) Any employer, employee, or employee representative has the right to appear as a party in any review proceeding before any member of the board by giving written notice of protest to the board and to the Commissioner of Labor within twenty days of the receipt of any citation, notice of penalty, or notice of period of abatement issued by the Commissioner of Labor and affecting the employer, employee, or employee representative. The Commissioner of Labor must be a party to any proceeding brought pursuant to this article.

(c) Hearings may be conducted by any member of the board and must follow the rules of evidence as applied in civil cases in the court of common pleas.

(d) Any party aggrieved by any decision, order, or findings of any member of the board may petition the entire board for review within thirty days of the service of the decision, order, or findings. Review may be granted by concurrence of three members of the board not including the hearing member. Full board reviews shall be conducted by five members only with the original hearing member not sitting. Where all members are not available due to incapacity or a vacancy, decisions of the hearing member shall not be reversed except upon the vote of at least three other board members. The review must be upon the record made before the hearing member and no objection that has not been urged before the hearing member may be considered by the board.

(e) Any party aggrieved by any decision, order, or findings of the board may petition the court of common pleas in the county where the employer maintains his principal place of business or where the violation is alleged to have occurred for a review of the decision, order, or findings. The proceeding shall be instituted by proper service upon all other parties of the petition for review within thirty days after service of the decision, order, or findings of the board. The commencement of proceedings under this section shall not, unless ordered by the court of common pleas, operate as a stay of the order of the board. This review is subject to all provisions of the State Administrative Procedures Act.

(f) Any decision, order, or findings of the board or any member thereof becomes a final order of the board upon the thirtieth day after service thereof, except where petition for review has been properly made.

(g) The board shall promulgate regulations as may be necessary to provide for the preparation and reasonable preservation of a record of the hearings and other proceedings.

Section 41-15-620. (a) The South Carolina Department of Labor shall provide, to the extent of funds appropriated by the General Assembly, adequate support personnel, including court reporters and clerks, to fulfill the duties of the board.

(b) The South Carolina Department of Labor shall provide adequate facilities to maintain the records of the board.

Section 41-15-630. (a) The board or any member thereof may for the purposes of this article subpoena witnesses, administer or cause to be administered oaths, and examine or cause to be examined the books and records of the parties to proceedings before it as relate to questions in dispute.

(b) Any party desiring discovery by deposition, interrogatory, or entry upon designated land or other property in the possession or control of another party shall apply to the hearing member of the board for an order directing such discovery. In the event that the hearing member grants an application for the conduct of the discovery proceedings, the order must set forth appropriate time limits and such other limits as required by law.

Section 41-15-640. The court of common pleas shall, upon application by the board or any member thereof, or by any party to a proceeding before it, enforce by proper proceedings the attendance and testimony of witnesses and the production and examination of books, papers, and records and may punish as for contempt of court, by fine or imprisonment or both, the unexcused failure or refusal to attend and give testimony or produce books, papers, and records as may have been required in any subpoena issued by the board or any member thereof. The board or any member thereof may issue to the sheriff of the county in which any hearing is held a warrant requiring him to produce at the hearing any witness who has ignored or failed to comply with any subpoena issued by the board which has been duly served upon the witness. The warrant shall authorize the sheriff to arrest and produce at the hearing the witness and it is his duty to do so. The failure of a witness to appear in response to a subpoena may be excused on the same grounds as provided by law in the courts of this State as to the attendance of witnesses and jurors."

Regulations

SECTION 2. Section 41-15-310 of the 1976 Code is amended to read:

"Section 41-15-310. The Commissioner of Labor shall promulgate regulations as may be necessary to establish a procedure for administrative review before the Commissioner or his authorized representative or representatives for any employer or employee or employee's representative affected or aggrieved by (1) any act of the Commissioner, (2) any citation issued by the Commissioner, (3) any penalty assessed by the Commissioner, or (4) any period of abatement set by the Commissioner.

Any employer, employee or their representatives has the right to appear as a party in any review proceedings before the Commissioner or his authorized representative or representatives by giving written notice to the Commissioner of Labor within twenty days of the act or receipt of citation, or notice of the penalty or period of abatement.

Within a reasonable time, the Commissioner shall make and serve in writing, upon each party, his decision, which becomes final upon the thirtieth day after service thereof.

Any employer or employee or their representative or representatives aggrieved by any order or findings of the Commissioner may obtain a review of the order or findings by petitioning the court of common pleas in the county where the employer maintains his principal place of business or where the violation is alleged to have occurred for a review of the order or findings by proper service upon the Commissioner of Labor within thirty days after service upon the party of the decision of the Commissioner. The commencement of proceedings under this section shall not, unless ordered by the court, operate as a stay of the order of the Commissioner. No objection that has not been urged before the Commissioner shall be considered by the court.

Notwithstanding the above provisions of this section, on October 1, 1983, or such later time as the South Carolina Occupational Health and Safety Review Board is duly constituted, the Commissioner of Labor shall cease to provide administrative review pursuant to this section. All matters pending before the Commissioner of Labor pursuant to this section and the regulations hereunder shall be transferred to the South Carolina Occupational Safety and Health Review Board on October 1, 1983, or such later time as it is duly constituted."

Time effective

SECTION 3. This act shall take effect upon approval by the Governor.