BP BHEAD INT S [atlas:bill]

AN ACT Relating to the regulation of geologists; adding a new chapter to Title 18 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature finds it is in the public interest to regulate the practice of geology to safeguard life, health, and property and to promote the public welfare.

NEW SECTION. Sec. 2. (1) It is unlawful for any person to practice, or offer to practice, geology for others in this state, or to use in connection with his or her name or otherwise assume or advertise any title or description tending to convey the impression that he or she is a geologist unless the person has been licensed or exempted under the provisions of this chapter.

(2) A person shall be construed to practice or offer to practice geology, within the meaning and intent of this chapter, if the person:

(a) Practices any branch of the profession of geology;

(b) By verbal claim, sign, advertisement, letterhead, card, or in any other way represents himself or herself to be a geologist;

(c) Through the use of some other title implies that he or she is a geologist or that he or she is licensed under this chapter; or

(d) Holds himself or herself out as able to perform or does perform any geological services or work recognized by the board as the practice of geology.

NEW SECTION. Sec. 3. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Board" means the geologist licensing board.

(2) "Department" means the department of licensing.

(3) "Director" means the director of the department of licensing.

(4) "Geologist" means a person who, by reason of his or her knowledge of geology, mathematics, and the supporting physical and life sciences, acquired by education and practical experience, has met the qualifications established under this chapter, and has been issued a certificate of licensing as a geologist by the board.

(5) "Geology" means the science that includes: Treatment of the earth and its origin and history, in general; the investigation of the earth's constituent rocks, minerals, solids, fluids, including surface and underground waters, gases, and other materials; and the study of the natural agents, forces, and processes that cause changes in the earth.

(6) "Practice of geology" means performance of geological service or work including but not limited to consultation, investigation, evaluation, planning, geological mapping, and inspection of geological work, and the responsible supervision thereof, the performance of which is related to public welfare or the safeguarding of life, health, property, and the environment, except as otherwise specifically provided by this chapter.

(7) "Responsible charge" means the independent control and direction, by use of initiative, skill, and independent judgment, of geological work or the supervision of such work.

(8) "Subordinate" means any person who assists in the practice of geology by a licensed geologist or an exempt person, without assuming the responsible charge of the work.

(9) "Engineering geology" means a specialty of geology affecting (a) the planning, design, operation, and maintenance of engineering works; (b) the development, protection, and remediation of ground and surface water resources; and (c) other human activities where geological factors and conditions impact the public welfare or the safeguarding of life, health, property, and the environment.

(10) "Engineering geologist" means a geologist who, by reason of his or her knowledge of engineering geology, acquired by education and practical experience, is qualified to engage in the practice of engineering geology, has met the qualifications in engineering geology established under this chapter, and has been issued a license in engineering geology by the board.

(11) "Practice of engineering geology" means performance of geological service or work including but not limited to consultation, investigation, evaluation, planning, geological mapping, and inspection of geological work, and the responsible supervision thereof, the performance of which is related to public welfare or the safeguarding of life, health, property, and the environment, except as otherwise specifically provided by this chapter, and includes but is not limited to the commonly recognized geological practices of construction geology, hydrogeology, environmental geology, and urban geology. Nothing in this subsection shall be construed to permit the use of the title engineer nor the practice of engineering by a geologist, except when such practice is incidental to the practice of geology or engineering geology and does not include any design of an engineered structure.

(12) "Specialty" means a branch of geology that has been recognized under this chapter for the purposes of licensure. Engineering geology is considered to be a specialty of geology.

(13) "Licensed specialty geologist" means a licensed geologist who has met the qualifications in a specialty of geology established under this chapter and has been issued a license in that specialty by the board.

NEW SECTION. Sec. 4. The state geologist licensing board is created. The board consists of seven members, six of whom shall be appointed by the director, who shall advise the director concerning the administration of this chapter. Of the initial appointments to the board, five shall be actively engaged in the practice of geology for at least ten years, five of which shall have been immediately prior to their appointment to the board. Subsequent to the initial appointments, five members of the board must be geologists licensed under this chapter, two of whom shall be licensed in a specialty of geology recognized under this chapter. Insofar as possible, the composition of the appointed geologists serving on the board shall be generally representative of the occupational distribution of geologists licensed under this chapter. One member of the board must be a member of the general public with no family or business connection with the practice of geology. The supervisor of geology of the department of natural resources is an ex officio member of the board. Members of the board shall be appointed for terms of four years. Terms shall be staggered so that not more than two appointments are scheduled to be made in any calendar year. Members shall hold office until the expiration of the terms for which they were appointed and until their successors have been appointed and have qualified. A board member may be removed for just cause. The director may appoint a new member to fill a vacancy on the board for the remainder of the unexpired term.

Each board member shall be entitled to compensation for each day spent conducting official business and to reimbursement for travel expenses in accordance with RCW 43.03.240, 43.03.050, and 43.03.060.

NEW SECTION. Sec. 5. The director has the following authority in administering this chapter:

(1) To adopt, amend, and rescind rules approved by the board as deemed necessary to carry out this chapter;

(2) To adopt fees as provided in RCW 43.24.086;

(3) To administer licensing examinations approved by the board and to adopt or recognize examinations prepared by other organizations as approved by the board;

(4) To issue subpoenas and administer oaths in connection with an investigation, hearing, or proceeding held under this chapter;

(5) To take or cause depositions to be taken and use other discovery procedures as needed in an investigation, hearing, or proceeding held under this chapter;

(6) To compel attendance of witnesses at hearings;

(7) In the course of investigating a complaint or report of unprofessional conduct, to direct the board to conduct practice reviews and disciplinary hearings;

(8) To take emergency action ordering summary suspension of a license, or restrict or limit a licensee's practice pending further proceedings by the director;

(9) To use the board or, at the request of the board, the office of administrative hearings, as authorized in chapter 34.12 RCW, to conduct hearings. However, the director or the director's designee shall make the final decision as to disposition of the charges;

(10) To enter into contracts for professional services determined to be necessary for adequate enforcement of this chapter;

(11) To adopt standards of professional conduct and practice as approved by the board;

(12) In the event of a finding of unprofessional conduct by an applicant or license holder, to impose sanctions against a license applicant or license holder as provided by this chapter;

(13) To enter into an assurance of discontinuance in lieu of issuing a statement of charges or conducting a hearing. The assurance shall consist of a statement of the law in question and an agreement to not violate the stated provision. Violation of an assurance under this subsection is grounds for disciplinary action;

(14) To designate individuals authorized to sign subpoenas and statement of charges; and

(15) To employ investigative, administrative, and clerical staff as necessary for the enforcement of this chapter.

NEW SECTION. Sec. 6. The board has the following authority in administering this chapter:

(1) To establish rules, including board organization and assignment of terms, for adoption by the director;

(2) To establish the minimum qualifications for applicants for licensure as provided by this chapter;

(3) To approve the method of administration for examinations required by this chapter or by rule as established by the director. To approve the adoption or recognition of examinations prepared by other organizations for adoption by the director. To set the time and place of examinations with the approval of the director;

(4) To establish and review standards of professional conduct and practice for adoption by the director. Rules of professional conduct will be consistent with those outlined for engineers and land surveyors in chapter 196-27 WAC, and will be consistent with chapter 39.80 RCW;

(5) To conduct disciplinary hearings; and

(6) To conduct practice reviews.

NEW SECTION. Sec. 7. In order to become a licensed geologist, an applicant must meet the following requirements:

(1) The applicant shall be of good moral and ethical character as attested to by letters of reference submitted by the applicant or as otherwise determined by the board;

(2) The applicant shall have graduated from a course of study in geology satisfactory to the board or satisfy educational equivalents determined by the board;

(3) The applicant shall have a documented record of a minimum of four years of experience in geology or a specialty of geology, obtained subsequent to completion of the academic requirements specified in this section, in geological work of a character satisfactory to the board, demonstrating that the applicant is qualified to assume responsible charge of such work upon licensing as a geologist. The board may require that up to two years of the experience be gained under the supervision of a geologist licensed in this or any other state, or under the supervision of others who, in the opinion of the board, are qualified to have responsible charge of geological work;

(4) The applicant shall have passed an examination covering the fundamentals and practice of geology prescribed or accepted by the board;

(5) The applicant shall meet other general or individual requirements established by the board pursuant to its authority under this chapter;

(6) For licensing in any geological specialty recognized under this chapter, an applicant must first be a licensed geologist under this chapter, and then meet the following requirements:

(a) In addition to the educational requirements for licensing as a geologist defined in subsection (2) of this section, an applicant for licensing in any specialty of geology established by the board shall have successfully completed advanced study pertinent to their specialty, or equivalent seminars or on-the-job training acceptable to the board;

(b) The applicant's experience shall include a documented record of four years of experience, after completion of the academic requirements specified in this subsection, in geological work in the applicable specialty of a character satisfactory to the board, and demonstrating that the applicant is qualified to assume responsible charge of the specialty work upon licensing in that specialty of geology. The board may require that up to two years of the experience be gained under the supervision of a geologist licensed in the specialty in this or any other state, or under the supervision of others who, in the opinion of the board, are qualified to have responsible charge of geological work in the specialty; and

(7) The following standards are applicable to experience in the practice of geology or a specialty required under subsections (3) and (6) of this section:

(a) Each year of professional practice of a character acceptable to the board, carried out under the direct supervision of a geologist who (i) is licensed in this state or is licensed in another state with licensing standards substantially similar to those under this chapter; or (ii) meets the educational and experience requirements for licensing, but who is not required to be licensed under the limitations of this chapter, qualifies as one year of professional experience in geology;

(b) Each year of professional engineering geology practice of a character acceptable to the board, carried out under the direct supervision of (i) an engineering geologist who is licensed as such under this chapter, or who is licensed as an engineering geologist in another state that has licensing requirements that are substantially similar to this chapter; (ii) a professional engineer licensed in this or any other state; or (iii) an engineering geologist who meets the educational and experience requirements for licensing, but who is not required to be licensed under the limitations of this chapter, qualifies as one year of practice in engineering geology;

(c) Each year of professional specialty practice of a character acceptable to the board, carried out under the direct supervision of a (i) geologist who is licensed in a specialty under this chapter, or who is licensed as a specialty geologist in another state that has licensing requirements that are substantially similar to this chapter; or (ii) specialty geologist who meets the educational and experience requirements for licensing, but who is not required to be licensed under the limitations of this chapter, qualifies as one year of practice in the applicable specialty of geology; and

(d) Experience in professional practice, of a character acceptable to the board and acquired prior to one year after the effective date of this section, qualifies if the experience (i) was acquired under the direct supervision of a geologist who meets the educational and experience requirements for licensing under this chapter, or who is licensed in another state that has licensing requirements that are substantially similar to this chapter; or (ii) would constitute responsible charge of professional geological work, as determined by the board;

(8) Each year of full-time graduate study in the geological sciences or in a specialty of geology shall qualify as one year of professional experience in geology or the applicable specialty of geology, up to a maximum of two years. The board may accept geological research, teaching of geology, or a geological specialty at the college or university level as qualifying experience, provided that such research or teaching, in the judgment of the board, is comparable to experience obtained in the practice of geology or a specialty thereof;

(9) An applicant who applies for licensing within one year after this section becomes effective shall be considered to be qualified for licensing, without further written examination, if the applicant possesses the following qualifications:

(a)(i) A specific record of graduation with a bachelor of science or bachelor of arts or higher degree, with a major in geology granted by an approved institution of higher education acceptable to the board; or

(ii) Graduation from an approved institution of higher education in a four-year academic degree program other than geology, but with the required number of course hours as defined by the board to qualify as a geologist or engineering geologist; and

(b) Experience consisting of a minimum of four years of professional practice in geology or a specialty thereof, of a character acceptable to the board;

(10) An applicant who applies for licensing in a specialty within one year after recognition of the specialty under this chapter shall be considered qualified for licensing in that specialty, without further written examination, if the applicant:

(a) Is qualified for licensing as a geologist in this state; and

(b) Has experience consisting of a minimum four years of professional practice in the applicable specialty of geology, of a character acceptable to the board; and

(11) The geologists initially appointed to the board under section 4 of this act shall be qualified for licensing under subsections (7) and (8) of this section.

NEW SECTION. Sec. 1. An application for licensing shall be filed with the director on a form provided by the director and must contain statements made under oath demonstrating the applicant's education and practical experience. The director may require any information and documentation that reasonably relates to the need to determine whether the applicant meets the criteria for licensing. The application fee for initial licensing shall be determined by the director as provided in RCW 43.24.086. The application, together with the fee, must be submitted to the department prior to the application deadline established by the director. Fees for initial licensing shall include the examination and issuance of a certificate. If the director finds an applicant ineligible for licensing, the fee shall be retained as an application fee.

NEW SECTION. Sec. 2. Examinations of applicants for licensing, when required, shall be held at such times and places as determined by the board with the director's approval. The scope of the examination shall be directed to an applicant's ability to practice geology or any approved specialty of geology in a manner to ensure the safety of life, health, and property. A candidate failing an examination may apply for reexamination. Subsequent examinations will be granted upon payment of a fee to be determined by the director as provided in RCW 43.24.086.

NEW SECTION. Sec. 3. The director shall issue a certificate of licensing to any applicant who has satisfactorily met all of the requirements of this chapter for licensing as a geologist or an approved specialty geologist. The certificate shall show the full name of the license holder, shall have a certificate number, and shall be signed by the director and an officer of the board. The issuance by the director of a certificate of licensing to an individual shall be prima facie evidence that the person is entitled to all the rights and privileges of a licensed geologist or specialty geologist while the certificate remains unrevoked or unexpired.

Each license holder shall obtain a seal of the design authorized by the director, bearing the licensee's name, certificate number, and the legend "licensed geologist" together with any specialty in which the individual may be authorized. Geological reports, plans, and other technical documents prepared by or under the responsible charge of the license holder shall be signed, dated, and stamped with the seal or facsimile thereof. Each signature and stamping constitutes a certification by the license holder that the document was prepared by or under his or her responsible charge and that to his or her knowledge and belief the document was prepared in accordance with the requirements of this chapter.

NEW SECTION. Sec. 4. The director may, upon application and payment of a fee determined by the director as provided in RCW 43.24.086, issue a license and certificate without further examination as a geologist or specialty geologist to any person who holds a license or certificate of qualification issued by proper authority of any state, territory, or possession of the United States, District of Columbia, or any foreign country, if the applicant's qualifications, as evaluated by the board, meet the requirements of this chapter and the rules adopted by the director.

NEW SECTION. Sec. 5. Licenses issued in conformance with this chapter shall be renewed periodically on a date to be set by the director in conformance with RCW 43.24.140. A license holder who fails to pay the prescribed fee within ninety days following the date of expiration shall pay a renewal fee equal to the current fee plus an amount equal to one year's renewal fee. Any license that has been expired for five years or more may be reinstated in conformance with rules adopted by the director. Reinstatement conditions may include demonstration of continued practice or competency in the practice of geology or an approved specialty of geology.

NEW SECTION. Sec. 6. (1) All fees and fines collected under the provisions of this chapter shall be paid into the geologists' account, created in subsection (2) of this section.

(2) The geologists' account is created in the custody of the state treasurer. All receipts from fines and fees collected under this chapter must be deposited into the account. Expenditures from the account may be used only to carry out the duties required for the operation and enforcement of this chapter. Only the director of licensing or the director's designee may authorize expenditures from the account. The account is subject to allotment procedures under chapter 43.88 RCW, but an appropriation is not required for expenditures.

NEW SECTION. Sec. 7. The following acts are prohibited and constitute grounds for disciplinary action or denial, suspension, or revocation of any license under this chapter:

(1) Knowingly violating any of the provisions of this chapter or the rules adopted under this chapter;

(2) Knowingly making a material misstatement or omission in the application for or renewal of a license;

(3) Not meeting the qualifications for licensing set forth by this chapter;

(4) Incompetency, misconduct, fraud, gross negligence, or repeated incidents of negligence in or related to the practice of geology;

(5) Conviction of a gross misdemeanor or felony or the commission of any act involving moral turpitude, dishonesty, or corruption whether or not the act constitutes a crime. If the act constitutes a crime, conviction in a criminal proceeding is not a condition precedent to disciplinary action. Upon such conviction, however, the judgment and sentence is conclusive evidence at the ensuing disciplinary hearing of the guilt of the license holder or applicant of the crime described in the indictment or information, and of the person's violation of the statute on which it was based. For the purposes of this section, conviction includes all instances in which a plea of guilty or nolo contendere is the basis for the conviction and all proceedings in which the sentence has been deferred or suspended. Nothing in this section abrogates rights guaranteed under chapter 9.96A RCW;

(6) Advertising that is false, fraudulent, or misleading;

(7) Suspension, revocation, or restriction of the individual's license to practice the profession by competent authority in any state, federal, or foreign jurisdiction, a certified copy of the order, stipulation, or agreement being conclusive evidence of the revocation, suspension, or restriction;

(8) Aiding or abetting an unlicensed person to practice if a license is required;

(9) Failure to adequately supervise subordinates to the extent that the public health or safety is at risk;

(10) Failure to cooperate with the director by:

(a) Not furnishing any necessary papers or documents requested by the director for purposes of conducting an investigation for disciplinary action, denial, suspension, or revocation of a license under this chapter;

(b) Not furnishing in writing a full and complete explanation covering the matter contained in a complaint filed with the department; or

(c) Not responding to subpoenas issued by the director, whether or not the recipient of the subpoena is the accused in the proceeding;

(11) Failure to comply with an order issued by the director or an assurance of discontinuance entered into with the director;

(12) Interference with an investigation or disciplinary proceeding by willful misrepresentation of facts before the director or the director's authorized representative, or by use of threats or harassment against any client or witness to prevent them from providing evidence in a disciplinary proceeding or any other legal action; or

(13) Committing any other act, or failing to act, which act or failure are customarily regarded as being contrary to the accepted professional conduct or standard generally expected of those practicing geology.

NEW SECTION. Sec. 8. The procedures governing adjudicative proceedings before agencies under chapter 34.05 RCW govern all hearings before the director or his or her designee. Upon a finding that a license holder or applicant has committed unprofessional conduct, the director may issue an order providing for one or any combination of the following:

(1) Revocation of the license;

(2) Suspension of the license for a fixed or indefinite term;

(3) Restriction or limitation of the practice;

(4) Issuance of a civil fine not to exceed five thousand dollars for each violation;

(5) Requiring satisfactory completion of a specific program of remedial education or treatment;

(6) Monitoring of the practice by a peer approved by the director;

(7) Reprimand or censure;

(8) Compliance with conditions of probation for a designated period of time;

(9) Withholding of a license request;

(10) Refund of fees billed to and collected from the consumer; or

(11) Other corrective action.

Any of the actions under this section may be totally or partly stayed by the director. All costs associated with compliance with orders issued under this section are the obligation of the license holder or applicant.

NEW SECTION. Sec. 9. A person, including but not limited to consumers, licensees, corporations, organizations, and state and local governments or agencies, may submit a written complaint to the department charging a license holder or applicant with unprofessional conduct and specifying the grounds for the charge. If the director determines that the complaint merits investigation, or if the director has reason to believe, without a formal complaint, that a license holder or applicant may have engaged in unprofessional conduct, the director shall investigate to determine if there has been unprofessional conduct. A person who files a complaint under this section in good faith is immune from suit in any civil action related to the filing or contents of the complaint. The director, individuals acting on the director's behalf, and members of the board are immune from suit in any action, civil or criminal, based on disciplinary proceedings or other official acts performed in the course of their duties in the administration and enforcement of this chapter.

NEW SECTION. Sec. 10. The following acts are prohibited and any person committing any of the following acts is guilty of a gross misdemeanor:

(1) The practice or offer to practice geology or geological specialty without being licensed in accordance with the provisions of this chapter;

(2) Presenting or attempting to use as his or her own the certificate of licensing or seal of another;

(3) Giving any false or forged evidence of any kind to the director or his or her authorized representative in obtaining a license;

(4) Falsely impersonating any other licensee; or

(5) Attempting to use the expired or revoked certificate of licensing.

All fees, fines, forfeitures, and penalties collected or assessed by a court because of a violation of this section shall be remitted to the department to be deposited into the geologists' account created in section 13 of this act.

NEW SECTION. Sec. 11. The director is authorized to apply for relief by injunction without bond, to restrain a person from the commission of any act that is prohibited under this chapter. In such proceedings, it is not necessary to allege or prove either that an adequate remedy at law does not exist, or that substantial or irreparable damage would result from continued violation. The director, individuals acting on the director's behalf and members of the board are immune from suit in any action, civil or criminal, based on disciplinary proceedings or other official acts performed in the course of their duties in the administration and enforcement of this chapter.

NEW SECTION. Sec. 12. The following activities do not require a certificate of licensing under this chapter:

(1) Geological work performed by an employee or a subordinate of a geologist or specialty geologist licensed under this chapter, provided that the work does not include responsible charge of geological work as covered by this section, and is performed under the direct supervision of a geologist licensed under this chapter, who shall be and remains responsible for such work;

(2) Geological work performed by officers and employees of the United States practicing solely as such officers and employees;

(3) Geological work performed exclusively in the exploration for energy and mineral resources, insofar as such work has no substantial impact upon the public health, safety, and welfare as determined by regulations issued by the director;

(4) Geological research conducted through academic institutions, agencies of the federal or state governments, nonprofit research institutions, or for-profit organizations, including submission of reports of research to public agencies;

(5) Teaching geology or related physical or natural sciences;

(6) The practice of engineering or other licensed professions: (a) The acquisition of engineering data involving soil, rock, ground water, and other earth materials; evaluation of the physical and chemical properties of soil, rock, ground water, and other earth materials; and the utilization of these data in analysis, design, and construction by professional engineers appropriately registered or licensed in this state; and (b) similar work performed by persons or organizations licensed or registered in any other profession or occupation related to geology, provided that such work is permitted under the applicable licensing or registration law, and is incidental to the practice or the profession or occupation for which licensing or registration is required. Nothing in this section shall be construed to permit the practice of geology, except such incidental practice as outlined in this section, or use of the title geologist or engineering geologist by an engineer or other licensed professional except as licensed under this chapter;

(7) Work customarily performed by such physical or natural scientists as chemists, archaeologists, geographers, hydrologists, oceanographers, pedologists, and soil scientists, providing such work does not include the design and execution of geological investigations, being in responsible charge of geological or specialty geological work, or the drawing of geological conclusions and recommendations in a way that significantly affects the public health, safety, or welfare; or

(8) The giving of testimony, or preparation and presentation of exhibits or documents for the sole purpose of being placed in evidence before any administrative or judicial tribunal or hearing, providing such testimony, exhibits, or documents do not imply that the person is registered under the provisions of this chapter.

NEW SECTION. Sec. 13. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 14. Sections 1 through 20 of this act constitute a new chapter in Title 18 RCW.