BILL ANALYSIS Ó ----------------------------------------------------------------------- |Hearing Date:July 6, 2011 |Bill No:AB | | |1210 | ----------------------------------------------------------------------- SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT Senator Curren D. Price, Jr., Chair Bill No: AB 1210Author:Garrick As Amended:June 20, 2011 Fiscal: Yes SUBJECT: Water quality: storm water discharge: civil engineering activities. SUMMARY: Clarifies that all civil engineering activities performed in the preparation of storm water pollution plans shall be performed by a licensed civil engineer; provides that a licensed civil engineer shall not be required to meet any additional experience, training, or certification requirements in order to perform activities in the preparation of storm water pollution prevention plans. Existing law: 1)Licenses and regulates professional engineers, land surveyors, geologists and geophysicists by the Board for Professional Engineers, Land Surveyors, and Geologists (BPELSG) within the Department of Consumer Affairs. 2)Specifies that civil engineering includes the preparation or submission of designs, plans, and specifications and engineering reports in connection with fixed works for irrigation, drainage, waterpower, water supply, flood control, foundations, grading, etc. (Business and Professions Code (BPC) § 6731) 3)Prohibits a person from practicing civil, electrical, or mechanical engineering without a license and makes it a misdemeanor (crime) to practice or offer to practice civil, electrical, or mechanical engineering in California without legal authorization. (BPC § 6787) 4)Provides that all civil engineering plans, calculations, specifications, and reports shall be prepared by, or under the AB 1210 Page 2 responsible charge of, a licensed civil engineer and shall include the licensee's name and license number. (BPC § 6735) 5)Defines "responsible charge of work" to mean the independent control and direction, by the use of initiative, skill, and independent judgment, of the investigation or design of professional engineering work or the direct engineering control of such projects. (BPC § 6703) 6)Prescribes waste discharge requirements for the discharge of storm water by municipalities and industries in accordance with the federal national pollutant discharge elimination system (NPDES) permit program under the regulatory authority of the State Water Resources Control Board (SWRCB) within the California Environmental Protection Agency (Cal-EPA) and the nine California regional water quality control boards. (California Water Code (WC)) This bill: 1)Requires all civil engineering activities performed in the preparation of storm water pollution prevention plans pursuant to the General Permit for Storm Water Discharges Associated with Construction and Land Disturbance Activities, as specified, to be performed under the responsible charge of a licensed civil engineer. 2)Provides that a licensed civil engineer shall not be required to meet any additional experience, training, or certification requirements in order to perform activities in the preparation of storm water pollution prevention plans. 3)States that nothing in the above provisions is intended to affect the practice rights of any person licensed by the state to practice or perform any functions or services pursuant to that license. FISCAL EFFECT: The Assembly Appropriations Committee analysis dated, May 18, 2011 indicates there are no significant costs associated with this legislation. COMMENTS: 1.Purpose. This bill is sponsored by American Council of Engineering Companies (Sponsor). According to the Author, "This bill reiterates the current B&P Code requiring that all civil engineering activities must be performed by or certified by a licensed civil engineer." AB 1210 Page 3 The Sponsor is concerned that recent regulations promulgated by the SWRCB related to Storm Water Pollution Prevention Plans (SWPPPs) allow the practice of civil engineering by non-licensed professionals. It is the Sponsor's contention that SWPPP documents contain calculations and work products that must be produced by civil engineers. SWPPP documents include water flow calculations, water load calculations, drainage and flow rate calculations, soils analysis and soil stability calculations, and other civil engineering work. Therefore, they should be done by or be created under the responsible charge of a licensed professional engineer, according to the Sponsor. 2. Background. The State Water Resources Control Board (SWRCB) was created by the Legislature in 1967. The mission of the SWRCB is to ensure the highest reasonable quality for waters of the State, while allocating those waters to achieve the optimum balance of beneficial uses. There are nine Regional Water Quality Control Boards (Regional Boards). The mission of the Regional Boards is to develop and enforce water quality objectives and implementation plans that will best protect the beneficial uses of the State's waters, recognizing local differences in climate, topography, geology and hydrology. The SWRCB adopted regulations effective July 1, 2010, requiring a Construction Activities Storm Water General Permit (CGP) for specified construction activities. The regulation further requires that the Qualified SWPPP Developer (QSD) and the Qualified SWPPP Practitioner (QSP) responsible for creating, revising, overseeing, and implementing the SWPPP must attend a State Water Board sponsored or approved QSP and/or QSP training course by September 2, 2011. A SWPPP establishes procedures for minimizing the potential for pollutants to be carried away in storm water discharges. These procedures emphasize the use of Best Management Practices (BMPs) to provide the flexibility to address varying sources of pollutants at different categories. As of July 1, 2010, the CGP allows for a certified QSD or QSP to be responsible for creating, revising, overseeing, and implementing a SWPPP. A QSD must be either a professional civil engineer; a professional geologist or engineering geologist; a landscape architect; a professional hydrologist registered through the American Institute of Hydrology; a certified professional in erosion and sediment control, or a certified professional in storm AB 1210 Page 4 water quality, a certified professional in erosion and sediment control. QSD/QSP certification is achieved after completing a two-day state-sponsored QSD and/or QSP training course and pass a state examination. 3.Arguments in Support. In sponsoring the bill, the American Council of Engineering Companies of California (ACEC) argues that civil engineers go through years of training to identify structural and non-structural controls that will be put in place to minimize negative impacts caused by offsite storm water discharges to the environment in a SWPPP, and that it is unnecessary for additional training or certification in order to prepare a SWPPP. ACEC further points out that the Construction General Permit (2009-0009-DWQ) correctly states that "All engineering work must be performed by a California licensed engineer," however, at the same time it creates the classification of Qualified SWPPP Developer (QSD) and Qualified SWPPP Practitioner (QSP), who can prepare all aspects of a SWPPP after attending a 2-day QSD and/or QSP training course. One does not have to be a civil engineer to be qualified to become a QSD or QSP. ACEC argues that despite acknowledging in the permit that civil engineering expertise is necessary to conduct SWPPPs, the SWRCB expressly authorizes non-licensed persons to practice within the scope of engineering. ACEC indicates that it made comments during the rulemaking process to establish the Construction General Permit (2009-0009-DWQ); however, their recommendations to protect the scope of practice of civil engineering, and the resulting effects on public safety, were ignored by the SWRCB. AB 1210 seeks to address this misalignment between the statement of intent and application by restating that civil engineering activities must be done by, or under the responsible charge of, a civil engineer, according to ACEC. The Board for Professional Engineers, Land Surveyors and Geologists (BPELSG) writes in support that the bill clarifies the definition of civil engineering, clearly stating that all civil engineering work performed with respect to storm water pollution prevention plans (SWPPP) must be done by a civil engineer. "It seems like this may be redundant language to Section 6731; however, there has been some confusion and misinterpretation of the practice of civil engineering by non-engineers with respect to SWPPP. This bill will alleviate any confusion and clearly state that civil engineering can only be performed under the responsible charge of a licensed civil engineer." AB 1210 Page 5 The American Society of Civil Engineers (ASCE) states, "It is important to point out that, despite some arguments to the contrary, AB 1210 does not prohibit other professional practitioners from performing work on a SWPPP, simply that civil engineering aspects of a SWPPP must be performed under the responsible charge of a civil engineer." ASCE believes that there has been erosion in the role of civil engineers and of the responsibilities of the BPELSG by various State regulatory agencies that have sought to impose new certification requirements on civil engineers to perform their functions. ASCE opposes the recent trend in California for other State agencies to create an overlapping regulatory environment over design professionals that requires them to obtain multiple certificates or licenses from a variety of different state agencies to practice their profession. 4.Arguments in Opposition. Southern California Contractors Association (SCCA) believes the bill is overkill, arguing that the bill supplants the qualifications of a QSD except on the registered civil engineer. SCCA contends that under the bill, no longer could a registered professional hydrologist be qualified as a QSD. SCCA further argues that the bill will cause confusion within the industry regarding who can and cannot do QSD work. The Engineering Contractors Association , California Fence Contractors Association , the California Chapter of the American Fence Association , the Marin Builders Association , and the Flasher Barricade Association argue that the bill is unfair to the construction industry, stating the SWRCB took years drafting the permit standards and gave the construction industry two years, until September 2011, to adequately train and test employees to conduct both QSD and QSP work, and that changing the rules now is akin to yanking the rug our from beneath the industry's feet and is unfair to those who have invested resources into ensuring compliance. The Engineering & Utility Contractors Association (EUCA) suggests that the proponents should seek changes to the existing requirements by petitioning the SWRCB instead of seeking proprietary changes through legislation. California Sections of the Association of Environmental and Engineering Geologists (AEGCS) opposes the bill, stating that although some elements fall within the Engineering Act, SWPPPs are not engineering documents and the bill creates confusion about who can create and sign them. AEGCS believes the bill would be misinterpreted by industry, agencies, lenders and other parties involved in a construction project to mean that SWPPPS must be prepared by or AB 1210 Page 6 under the direction of civil engineers only. The International Erosion Control Association , EnviroCert and CIESC, Inc . argue that the bill reiterates existing law and regulation and is not needed. The University of California (UC) states that the bill would require UC campuses to utilize licensed civil engineers to perform work on SWPPPs that is currently adequately performed by other professionals at a lower cost. These professionals are usually environmental engineers, geologists, or other professionals who possess appropriate qualifications, even if they are not licensed as civil engineers. UC states that SWPPPs for storm water discharges on construction projects over one acre on its campuses are usually prepared by contractors, while industrial storm water permits where the campus performs certain activities with runoff impacts (such as vehicle maintenance or landfill operation) may be done by the campus itself. In both cases, UC relies on QSDs and QSPs to prepare the SWPPPs, consistent with SWCRB policy. According to UC, if AB 1210 became law, the University would have to retain the services of licensed civil engineers at additional cost. "We can identify no benefit that would result from this additional expenditure, particularly during a period of great fiscal constraint for the University." 5.The State Water Resources Control Board (SWRCB) has not taken a position on this bill. The SWRCB has not taken a position on the bill, however SWRCB staff has indicated that they do not see any point behind the bill, and that the language in the bill does nothing new, and could cause confusion about the law. SWRCB states that regardless of the permit process, the Professional Engineering Act still applies. 6.Possible Author's Amendments. According to the Sponsor, the Author wishes to offer amendments to further clarify that the bill does not prohibit an unlicensed person from preparing a SWPPP, or change the scope of civil engineering. The amendments are as follows: 6730.4. (a) Notwithstanding any other law, all civil engineering activities performed in the preparation of storm water pollution prevention plans pursuant to the General Permit for Storm Water Discharges Associated with Construction and Land Disturbance Activities (Order No. 2009-0009-DWQ of the State Water Resources Control Board), and all amendments to that order, shall be performed under the responsible charge of a licensed civil AB 1210 Page 7 engineer. (b) A licensed civil engineer shall not be required to satisfy any additional experience, training, or certification requirements in order to perform activities in the preparation of storm water pollution prevention plans as described in subdivision (a). (c) Nothing in this section is intended to affect the practice rights of any person licensed by the state to practice or perform any functions or services pursuant to that license. (d) Nothing in this section prohibits a person who is not a licensed civil engineer or who is an employee of a licensed civil engineer, from preparing a storm water pollution prevention plan that requires the performance of civil engineering activities if the preparation is performed under the responsible charge of a licensed civil engineer. (e) Nothing in this section expands, contracts, or modifies activities that qualify as civil engineering activities under this article. SUPPORT AND OPPOSITION: Support: American Council of Engineering Companies (Sponsor) American Society of Civil Engineers (ASCE) Board for Professional Engineers, Land Surveyors and Geologists Opposition: California Chapter of the American Fence Association California Fence Contractors Association California Sections of the Association of Environmental and Engineering Geologists CIESC, Inc. Construction Industry Coalition on Water Quality Engineering & Utility Contractors Association Engineering Contractors Association EnviroCert Flasher Barricade Association International Erosion Control Association Marin Builders Association Southern California Contractors Association University of California AB 1210 Page 8 Consultant: G. V. Ayers