Indicates Matter Stricken

Indicates New Matter

 

Committee Report

March 30, 2023

H. 4124

Introduced by Reps. G. M. Smith, Bannister, Herbkersman, Yow, Mitchell, Murphy, Brewer, Robbins and Gatch

 

S. Printed 03/30/23--H.

Read the first time March 09, 2023

 

________

 

The committee on House Ways and Means

To who was referred a Bill (H. 4124) to amend the South Carolina Code of Laws by amending Section 44-1-20, relating to the Department of Health and Environmental Control, so as to provide for the creation, etc., respectfully

Report:

That they have duly and carefully considered the same, and recommend that the same do pass with amendment:

 

Amend the bill, as and if amended, SECTION 2, by striking subsections (A) and (B) and inserting:

SECTION 2.  (A) It is the intent of the General Assembly to restructure and transfer the programs, services, duties, and authority of the Department of Health and Environmental Control into the Department of Public Health or the Department of Environmental Services. Accordingly, the Department of Administration immediately shall commence the process of analyzing the circumstances and determining the best manner to efficiently and effectively restructure and transfer all programs, services, duties, and authority of the Department of Health and Environmental Control to the Department of Public Health or the Department of Environmental Services, consistent with the provisions of this act. The Department of Health and Environmental Control shall cooperate with the Department of Administration and assign such personnel as requested by the Executive Director of the Department of Administration to assist the department and  enable it to complete its duties under this SECTION.  To complete its duties under this SECTION the Department of Administration shall consult with the existing Director of the Department of Health and Environmental Control and the existing Director of Environmental Affairs of the Department of Health and Environmental Control.

    (B) The Department of Administration's analysis required by this SECTION must include the submission of a report to the General Assembly no later than December 31, 2023, with specific recommendations of statutory changes needed throughout the South Carolina Code of Laws to reflect the restructuring and transfer of the health-related programs, services, duties, and authority of the Department of Health and Environmental Control to the Department of Public Health and to reflect the restructuring and transfer of the environmental-related programs, services, duties, and authority of the Department of Health and Environmental Control to the Department of Environmental Services. The Department of Health and Environmental Control shall assign such legal, programmatic and administrative personnel as requested by the Executive Director of Department of Administration to assist the department in identifying statutory provisions requiring change and in suggesting appropriate language to effectuate required changes.  The Code Commissioner shall be available to consult with and assist the Department of Administration in making the recommendations required by this SECTION.

Amend the bill further, SECTION 4, by striking Section 48-6-30(D)(2) and inserting:

       (2) Within thirty calendar days after the receipt of a decision pursuant to item (1), an applicant, permittee, licensee, certificate holder, or affected person desiring to contest the department decision may request a contested case hearing before the Administrative Law Court, in accordance with the Administrative Procedures Act. Notwithstanding Section 1-23-600(H)(1), the entirety of Section 12-23-600(H) shall apply to timely requests for a contested hearing of decisions from the Department of Environmental Services.  The court shall give consideration to the provisions of Section 1-23-330 regarding the department's specialized knowledge.

Amend the bill further, by striking SECTION 9 and inserting:

SECTION 9. This act takes effect on July 1, 2024, except that the provisions of SECTION 2, relating to the Department of Administration's duties, take effectupon approval by the Governor.

Renumber sections to conform.

Amend title to conform.

 

BRUCE BANNISTER for Committee.

 

________

 

 

 

 

 

 

 

 

 

A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY AMENDING SECTION 44-1-20, RELATING TO THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, SO AS TO PROVIDE FOR THE CREATION OF A DEPARTMENT OF PUBLIC HEALTH to assume the health-related functions of the department of health and environmental control AND FOR OTHER PURPOSES; BY AMENDING SECTIONS 44-1-60, 44-1-140, AND 44-1-150, ALL RELATING TO THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, SO AS TO MAKE CONFORMING CHANGES; BY REPEALING SECTIONS 1-30-45 AND 44-1-65 RELATING TO THE department OF HEALTH AND ENVIRONMENTAL CONTROL AND THE PERMITTING OF CERTAIN ANIMAL FACILITIES; BY RENAMING CHAPTER 1 of TITLE 44, "DEPARTMENT OF PUBLIC HEALTH"; BY ADDING CHAPTER 6 TO TITLE 48 SO AS TO CREATE THE DEPARTMENT OF ENVIRONMENTAL SERVICES to assume THE ENVIRONMENTAL-RELATED FUNCTIONS OF THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, TO PROVIDE FOR THE APPOINTMENT Of a director BY THE GOVERNOR, AND FOR OTHER PURPOSES; BY AMENDING SECTION 1-30-10, RELATING TO DEPARTMENTS OF STATE GOVERNMENT, SO AS TO ADD THE DEPARTMENT OF PUBLIC HEALTH AND THE DEPARTMENT OF ENVIRONMENTAL SERVICES; and BY ADDING SECTIONs 1-30-135 and 1-30-140 SO AS TO MAKE CONFORMING CHANGES.

 

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

 

SECTION 1.  On July 1, 2024:

       (1) There is created the Department of Public Health which shall be administered under the supervision of the Board of Health and Environmental Control, which is hereby renamed the Board of Public Health. Board members shall be appointed pursuant to Section 44-1-20, and the Board of Public Health shall select a director pursuant to Section 44-1-40.  Every current member of the former Board of Health and Environmental Control shall continue to serve as a member of the renamed Board of Public Health until each member's term expires and a successor is appointed.  The Director of the Department of Health and Environmental Control shall serve as the Director of the Department of Public Health until the Board of Public Health selects an initial director of the Department of Public Health.

        (2) There is created the Department of Environmental Services to be headed by a director who is appointed by the Governor pursuant to Section 1-30-10 with the advice and consent of the Senate; provided, however, until the Governor appoints the initial Director after creation of the Department of Environmental Services, the Director of Environmental Affairs of the Department of Health and Environmental Control shall serve as the Director of the Department of Environmental Services.

       (3) The South Carolina Department of Health and Environmental Control is abolished.

 

SECTION 2.  (A) It is the intent of the General Assembly to restructure and transfer the programs, services, duties, and authority of the Department of Health and Environmental Control into the Department of Public Health or the Department of Environmental Services. Accordingly, the Department of Administration immediately shall commence the process of analyzing the circumstances and determining the best manner to efficiently and effectively restructure and transfer all programs, services, duties, and authority of the Department of Health and Environmental Control to the Department of Public Health or the Department of Environmental Services, consistent with the provisions of this act. The Department of Health and Environmental Control shall cooperate with the Department of Administration to enable the Department of Administration to complete its duties under this SECTION.

    (B) The Department of Administration's analysis required by this SECTION must include the submission of a report to the General Assembly no later than December 31, 2023, with specific recommendations of statutory changes needed throughout the South Carolina Code of Laws to reflect the restructuring and transfer of the health-related programs, services, duties, and authority of the Department of Health and Environmental Control to the Department of Public Health and to reflect the restructuring and transfer of the environmental-related programs, services, duties, and authority of the Department of Health and Environmental Control to the Department of Environmental Services.

    (C) The Department of Administration may procure such supplies, services, information technology, and experts, including attorneys, as are necessary to perform the requirements of this SECTION. Such procurements are exempt from the purchasing procedures of the South Carolina Consolidated Procurement Code but must be made with as much competition as is practicable. Additionally, if determined necessary, the State Fiscal Accountability Authority shall assign such personnel as requested by the Executive Director of Department of Administration to assist the department in any required procurements.  The Department of Health and Environmental Control shall pay the costs of any supplies, services, information technology, and experts, including attorneys, procured pursuant to this subsection.

 

SECTION 3.A.  Section 44-1-20 of the S.C. Code is amended to read:

 

    Section 44-1-20. There is created the South Carolina Department of Public Health and Environmental Control which shall be administered under the supervision of the South Carolina Board of Health and Environmental Control. The board shall consist of eight members, one from each congressional district, and one from the State at large to be appointed by the Governor, upon the advice and consent of the Senate. The member who is appointed at large shall serve as the chairman of the board. The Governor may remove the chairman of the board pursuant to Section 1-3-240(B); however, the Governor only may remove the other board members pursuant to Section 1-3-240(C). The terms of the members shall be for four years and until their successors are appointed and qualify. All vacancies shall be filled in the manner of the original appointment for the unexpired portion of the term only. In making these appointments, race, gender, and other demographic factors should be considered to ensure nondiscrimination, inclusion, and representation to the greatest extent possible of all segments of the population of the State; however, consideration of these factors in making an appointment in no way creates a cause of action or basis for an employee grievance for a person appointed or for a person who fails to be appointed.

 

B. Section 44-1-60(A) of the S.C. Code is amended to read:

 

    (A) All department decisions involving the issuance, denial, renewal, suspension, or revocation of permits, licenses, or other actions of the department which may give rise to a contested case, except a decision to establish a baseline or setback line, must be made using the procedures set forth in this section. A department decision referenced in this subsection relating to a poultry facility or another animal facility, except a swine facility, also must comply with the provisions of Section 44-1-65.

 

C. Section 44-1-140 of the S.C. Code is amended to read:

 

    Section 44-1-140.  (A) The Department of Public Health and Environmental Control may make, adopt, promulgate and enforce reasonable rules and regulations from time to time requiring and providing for:

    (1) For the thorough sanitation and disinfection of all passenger cars, sleeping cars, steamboats and other vehicles of transportation in this State and all convict camps, penitentiaries, jails, hotels, schools and other places used by or open to the public;

    (2) For the sanitation of hotels, restaurants, cafes, drugstores, hot dog and hamburger stands and all other places or establishments providing eating or drinking facilities and all other places known as private nursing homes or places of similar nature, operated for gain or profit;

    (3) For the production, storing, labeling, transportation and selling of milk and milk products, filled milk and filled milk products, imitation milk and imitation milk products, synthetic milk and synthetic milk products, milk derivatives and any other products made in semblance of milk or milk products;

    (4) For the sanitation and control of abattoirs, meat markets, whether the same be definitely provided for that purpose or used in connection with other business, and bottling plants;

    (5) For the classification of waters and for the safety and sanitation in the harvesting, storing, processing, handling and transportation of mollusks, fin fish and crustaceans;

    (6) For the control of disease-bearing insects, including the impounding of waters;

    (7) For the safety, safe operation and sanitation of public swimming pools and other public bathing places, construction, tourist and trailer camps, and fairs;

    (8) For the control of industrial plants, including the protection of workers from fumes, gases and dust, whether obnoxious or toxic;

    (9) For the use of water in air humidifiers;

    (10)(7) For the care, segregation and isolation of persons having or suspected of having any communicable, contagious or infectious disease; and

    (11) For the regulation of the methods of disposition of garbage or sewage and any like refuse matter in or near any village, town or city of the State, incorporated or unincorporated, and to abate obnoxious and offensive odors caused or produced by septic tank toilets by prosecution, injunction or otherwise;

    (12)(8) For the thorough investigation and study of the causes of all diseases, epidemic and otherwise, in this State, the means for the prevention of contagious disease and the publication and distribution of such information as may contribute to the preservation of the public health and the prevention of disease; and

    (13) For alteration of safety glazing material standards and the defining of additional structural locations as hazardous areas, and for notice and hearing procedures by which to effect these changes.

    (B) The Department may make separate orders and rules to meet any emergency not provided for by general rules and regulations, for the purpose of suppressing nuisances dangerous to the public health and communicable, contagious and infectious diseases and other danger to the public life and health.

 

D. Section 44-1-150 (A) and (E) of the S.C. Code is amended to read:

 

    (A) Except as provided in Section 44-1-151, a person who after notice violates, disobeys, or refuses, omits, or neglects to comply with a regulation of the Department of Public Health and Environmental Control, made by the department pursuant to Section 44-1-140, is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned for thirty days.

 

    (E) This section does not apply to fines levied under Section 44-1-140(8) or any other areas regulated by the South Carolina Occupational Health and Safety Act, Section 41-12-10 et seq.

 

E. Sections 1-30-45 and 44-1-65 of the S.C. Code are repealed.

 

F. Chapter 1, Title 44 of the S.C. Code is renamed "Department of Public Health".

 

SECTION 4.  Title 48 of the S.C. Code is amended by adding:

 

    CHAPTER 6

 

    Department of Environmental Services

 

    Section 48-6-10. (A) There is created the Department of Environmental Services which shall be headed by a director appointed by the Governor, upon the advice and consent of the Senate. The director is subject to removal by the Governor as provided for in Section 1-3-240.

    (B) As the governing authority of the department, the director is vested with all authorities and duties as provided for in Section 1-30-10.

 

    Section 48-6-20. (A) The Department of Environmental Services is vested with all the functions, powers, and duties of the environmental divisions, offices, and programs of the Department of Health and Environmental Control on the effective date of this act.

    (B) The department may promulgate regulations necessary to implement the provisions of this chapter.

    (C) The department may apply for and accept funds, grants, gifts, and services from the State, the United States government or any of its agencies, or any other public or private source and may use funds derived from these sources to defray clerical and administrative costs, as may be necessary for carrying out the department's duties.

 

    Section 48-6-30. (A) All decisions of the Department of Environmental Services involving the issuance, denial, renewal, suspension, or revocation of permits, licenses, certificates, or other actions of the department which may give rise to a contested case, except a decision to establish a baseline or setback line, must be made using the procedures set forth in this section.  A department decision referenced in this subsection relating to a poultry facility or another animal facility, except a swine facility, also must comply with the provisions of Section 48-6-40.

    (B) The department shall comply with all requirements for public notice, receipt of public comments, and public hearings before making a decision. To the maximum extent possible, the department shall use a uniform system of public notice of permit applications, opportunity for public comment, and public hearings.

    (C) In making a decision about a permit, license, certification, or other approval, the department shall take into consideration all material comments received in response to the public notice in determining whether to issue, deny, or condition a permit, license, certification, or other approval. At the time that a decision is made, the department shall issue a written decision and shall base its decision on the administrative record, which must consist of the application and supporting exhibits, all public comments and submissions, and other documents contained in the supporting file for the permit, license, certification, or other approval. The administrative record also may include material readily available at the department, or published materials which are generally available and need not be physically included in the same file as the rest of the record as long as those materials are referred to specifically in the department decision. The department is not required to issue a written decision for issuance of routine permits for which the department has not received adverse public comments.

    (D)(1) The department shall send notice of a decision by certified mail, return receipt requested to the applicant, permittee, licensee, certificate holder, and affected persons who have requested in writing to be notified. Affected persons may request in writing to be notified by regular mail or electronic mail in lieu of certified mail. Notice of decisions for which a department decision is not required pursuant to subsection (C) must be provided by mail, delivery, or other appropriate means to the applicant, permittee, licensee, certificate holder, and affected persons who have requested in writing to be notified.

       (2) Within thirty calendar days after the receipt of a decision pursuant to item (1), an applicant, permittee, licensee, certificate holder, or affected person desiring to contest the department decision may request a contested case hearing before the Administrative Law Court, in accordance with the Administrative Procedures Act. The court shall give consideration to the provisions of Section 1-23-330 regarding the department's specialized knowledge.

    (E) If a deadline provided for in this section falls on a Saturday, Sunday, or state holiday, the deadline must be extended until the next calendar day that is not a Saturday, Sunday, or state holiday.

 

    Section 48-6-40. (A) In making a decision on a permit, license, certification, or other approval of a poultry facility or another animal facility, except a swine facility, pursuant to Section 48-6-30(C), the department shall base its decision solely on whether the permit complies with the applicable department regulations governing the permitting of poultry and other animal facilities, other than swine facilities.

    (B) For purposes of permitting, licensing, certification, or other approval of a poultry facility or another animal facility, other than a swine facility:

       (1) only an applicant, permittee, licensee, or affected person may request a contested case hearing pursuant to Section 48-6-30(D)(2);

       (2) only an applicant, permittee, licensee, or affected person may become a party to a contested case hearing; and

       (3) only an applicant, permittee, licensee, or affected person is entitled as of right to be admitted as a party pursuant to Section 1-23-310(5) of the Administrative Procedures Act.

    (C)(1) In determining whether to issue a permit, license, certification, or other approval of a poultry facility or another animal facility, except a swine facility, the department only may take into consideration the existing development on and use of property owned or occupied by an affected person on the date the department receives the applicant's complete application package as prescribed by regulation. The department must not take into consideration any changes to the development or use of property after receipt of the application including, but not limited to, the construction of a residence.

       (2) If a property owner signs a setback waiver of the right to contest the issuance of a permit, license, certification, or other approval of a poultry facility or another animal facility, except a swine facility, including waiver of the right to notice and a public hearing on a permit, license, certification, or other approval and to file a contested case or other action, then the affected person has seventy-two hours to provide in writing a withdrawal or rescission of the waiver.

    (D)(1) An applicant, permittee, licensee, or affected person who is aggrieved by a decision to issue or deny a permit, license, certification, or other approval of a poultry facility or another animal facility, except a swine facility, may request a contested case hearing before the Administrative Law Court, in accordance with the Administrative Procedures Act.

       (2) Notwithstanding any other provision of law, a decision to issue a permit, license, certification, or other approval of a poultry facility or another animal facility, except a swine facility, may not be contested if the proposed building footprint is located eight hundred feet or more from the facility owner's property line or located one thousand feet or more from an adjacent property owner's residence.

    (E) For purposes of this section, "affected person" means a property owner with standing within a one mile radius of the proposed building footprint or permitted poultry facility or other animal facility, except a swine facility, who is challenging on his own behalf the permit, license, certificate, or other approval for the failure to comply with the specific grounds set forth in the applicable department regulations governing the permitting of poultry facilities and other animal facilities, other than swine facilities.

 

    Section 48-6-50. All rules and regulations promulgated by the department shall be null and void unless approved by a concurrent resolution of the General Assembly at the session of the General Assembly following their promulgation.

 

    Section 48-6-60. (A) The Department of Environmental Services may make, adopt, promulgate, and enforce reasonable rules and regulations from time to time requiring and providing for:

       (1) the classification of waters;

       (2) the control of disease-bearing insects, including the impounding of waters;

       (3) the control of industrial plants, including the protection of workers from fumes, gases, and dust, whether obnoxious or toxic;

       (4) the use of water in air humidifiers;

       (5) the regulation of the methods of disposition of garbage or sewage and any like refuse matter in or near any village, town, or city of the State, incorporated or unincorporated, and to abate obnoxious and offensive odors caused or produced by septic tank toilets by prosecution, injunction, or otherwise; and

       (6) the alteration of safety glazing material standards and the defining of additional structural locations as hazardous areas, and for notice and hearing procedures by which to effect these changes.

    (B) The department may make separate orders and rules to meet any emergency not provided for by general rules and regulations, for the purpose of suppressing nuisances dangerous to the environment.

 

    Section 48-6-70. (A) A person who after notice violates, disobeys, or refuses, omits, or neglects to comply with a regulation of the Department of Environmental Services, made by the department pursuant to Section 48-6-60, is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned for thirty days.

    (B) A person who after notice violates a rule, regulation, permit, permit condition, final determination, or order of the department issued pursuant to Section 48-6-60 is subject to a civil penalty not to exceed one thousand dollars a day for each violation.

    (C) Fines collected pursuant to subsection (B) must be remitted by the department to the State Treasurer for deposit in the state general fund.

    (D) The term "notice" as used in this section means either actual notice or constructive notice.

    (E) This section does not apply to fines levied pursuant to Section 48-6-60(3) or any other areas regulated by the South Carolina Occupational Health and Safety Act, Section 41-12-10, et seq.

 

    Section 48-6-80. Nothing contained in Section 48-6-60 in any way abridges or limits the right of a person to maintain or prosecute a civil or criminal proceeding against a person maintaining a nuisance.

 

SECTION 5.A.  Section 1-30-10(A)8. of the S.C. Code is amended to read:

 

       8. Department of Public Health and Environmental Control

 

B. Section 1-30-10(A) of the S.C. Code is amended by adding:

 

    25. Department of Environmental Services

 

SECTION 6.A.  Chapter 30, Title 1 of the S.C. Code is amended by adding:

 

    Section 1-30-135.  There is hereby created, within the executive branch of the state government, the Department of Public Health, headed by a director selected by the Board of Public Health pursuant to Section 44-1-40. The divisions, offices, and programs of the Department of Health and Environmental Control performing functions related to regulation and protection of the public health prior to the effective date of this act, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property, and all contractual rights and obligations associated with these divisions, offices, programs, and other related entities, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall be administered as part of the Department of Public Health.

 

B. Chapter 30, Title 1 of the S.C. Code is amended by adding:

 

    Section 1-30-140. There is hereby created, within the executive branch of the state government, the Department of Environmental Services, headed by a director appointed by the Governor pursuant to Section 48-6-10. The divisions, offices, and programs of the Department of Health and Environmental Control performing functions related to regulation and protection of the environment prior to the effective date of this act, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property and all contractual rights and obligations associated with these divisions, offices, programs, and other related entities, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall be administered as part of the Department of Environmental Services.

 

SECTION 7. (A) When the provisions of this act transfer particular state agencies, departments, boards, commissions, committees, or entities, or sections, divisions, or portions thereof (transferring departments), to another state agency, department, division, or entity or make them a part of another department or division (receiving departments), the employees, authorized appropriations, bonded indebtedness if applicable, real and personal property, assets, and liabilities of the transferring department also are transferred to and become part of the receiving department or division unless otherwise specifically provided. All classified or unclassified personnel of the affected agency, department, board, commission, committee, entity, section, division, or position employed by these transferring departments on the effective date of this act, either by contract or by employment at will, shall become employees of the receiving department or division, with the same compensation, classification, and grade level, as applicable. The Department of Administration shall cause all necessary actions to be taken to accomplish this transfer and shall in consultation with the agency head of the transferring and receiving agencies prescribe the manner in which the transfer provided for in this section shall be accomplished. The Department of Administration's action in facilitating the provisions of this section are ministerial in nature and shall not be construed as an approval process over any of the transfers.

    (B) When an agency, department, entity, or official is transferred to or consolidated with another agency, department, division, entity or official, regulations promulgated by that transferred agency, department, entity or official under the authority of former provisions of law pertaining to it are continued and are considered to be promulgated under the authority of present provisions of law pertaining to it.  When powers and duties of an agency, department, entity, or official are transferred to and devolved upon another department, agency, or subdivision thereof, the power and duty to promulgate regulations is also transferred to and devolved upon that department, agency, or subdivision thereof.

    (C) References to the names of agencies, departments, entities, or public officials changed by this act, to their duties or functions herein devolved upon other agencies, departments, entities, or officials, or to provisions of law consolidated with or transferred to other parts of the S.C. Code are considered to be and must be construed to mean appropriate references.

    (D) Unless otherwise provided herein or by law, all fines, fees, forfeitures, or revenues imposed or levied by agencies, personnel, or portions thereof, so transferred to other agencies or departments must continue to be used and expended for those purposes provided prior to the effective date of this act. If a portion of these fines, fees, forfeitures, or revenues were required to be used for the support, benefit, or expense of personnel transferred, these funds must continue to be used for these purposes.

 

SECTION 8. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide.  After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.

 

SECTION 9. This act takes effect upon approval by the Governor.

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