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Regulatory Reform Task Force -- October 2, 2008

Testimony by Jeffrey S. Kennedy, P.E.
Vice President of Legislative & Governmental Affairs, Ohio Society of Professional Engineers

Senator Faber and members of the Regulatory Reform Task Force, my name is Jeff Kennedy and I serve as Vice President of Legislative and Governmental Affairs for the Ohio Society of Professional Engineers (OSPE). I am also Treasurer and a Vice President of Shaffer, Johnston, Lichtenwalter & Associates, Inc., a consulting civil engineering and surveying firm right here in Mansfield. I speak to you today as a licensed professional engineer to discuss some regulatory challenges that our industry faces in Ohio.

First, an emerging trend of great concern to OSPE is the bypassing or overriding of state law and rulemaking through the creation of specifications in manuals by state agencies and commissions. These specifications obstruct the practice of engineering. An example of specifications interfering with a licensed engineer’s ability to execute their professional responsibilities is the Ohio Department of Transportation’s (ODOT) contracting requirement that any licensed professional engineer who does storm water management design must be a Certified Professional in Erosion and Sediment Control (CPESC). The Ohio Environmental Protection Agency (OEPA) recommended this regulation to ODOT.

The CPESC certification originates in North Carolina. This new agency requirement did not go through the Joint Committee on Agency Rule Review (JCARR). It also effectively forces licensed professional engineers to take unnecessary and costly training for an additional certification to do design work they already have the education and professional experience to perform.

Beyond requiring an additional unnecessary certification, CPESC together with newer OEPA-influenced ODOT requirements has elevated engineers’ design costs ten-fold. Before current regulations were implemented, a typical storm water pollution prevention plan for an ODOT highway project cost approximately $2500 to $3500 to prepare. However, since newer ODOT regulations including the CPESC were implemented, design costs have increased to $25,000 to $35,000.

Second, we face a similar issue from the Ohio School Facilities Commission (OSFC). A new provision in their design manual requiring the Registered Communications Distribution Designer (RCDD) Certification allows non-engineers to perform design work for electronic wiring systems in schools which was previously done by licensed professional engineers. Now, a licensed professional electrical engineer cannot submit wiring plans to OSFC without the RCDD certification. This non-JCARR-approved specification was not open to public review or debate.

A third point of concern: When the Ohio Department of Health (ODH) created statewide septic system rules, they removed the requirement that licensed professional engineers design sanitary systems for commercial properties, without discussion or public input. Eliminating the requirement that engineering design work be done by licensed professional engineers overrode state law with a state rule and jeopardized the health and public safety. Fortunately OSPE was able to eliminate this provision and we thank Senator Niehaus for spearheading legislation which provided us representation on the Sewage Advisory Committee. This allows the professional engineering community to contribute their expertise to sewage treatment discussions, which are ongoing.

Finally, OSPE is concerned with apparent arbitrariness and subjectivity of Ohio EPA regulators regarding wetland designation and remediation. We support common sense wetland regulation. However, rules must be clear and evenly applied and reviews must be conducted in an objective and timely manner. The superfluous financial burden and loss of time that result from regulatory delay are harmful to the business environment and obstruct economic development at a time when Ohio’s economy is in desperate need of growth.

For example, these regulations involve the way the Ohio EPA classifies wetlands by category, ranging from 1 to 3. Category 1 and 2 wetlands can be developed if they are replaced or "mitigated" either within the project area or someplace else. Category 3 wetlands cannot be developed at all. A local municipality has had challenges with wetlands within a large area sited for commercial or industrial park development being subjectively redesignated by an OEPA reviewer as Category 3 after an initial designation as Category 2. This redesignation of a wetland area caused thousands of dollars of unnecessary cost and many months of time wasted while the municipality awaited the reviewer’s re-evaluation ultimately back to Category 2.

Another egregious example of this process involved an ODOT state highway project in Lorain County. The improvement project involved adding a middle turn lane resulting in a three lane highway requiring the widening of the shoulders by six feet on each side. The existing drainage ditches on the sides of the road had not been maintained or cleaned for many years and cattails had grown up in them. The ODOT environmental site visit declared the man-made drainage ditches "wetlands." Compensatory wetland mitigation at a site in Erie County cost $30,000. ODOT told the consultant that per their regulations, if the County had cleaned the ditches just before the site visit, the ditches would not have been declared "wetlands."

I appreciate your taking the time to hear our concerns on the regulatory process in Ohio. We also appreciate the Governor’s recent efforts to require agencies to follow "common sense" regulation, and we look forward to continuing our dialogue with the Administration. The Ohio Society of Professional Engineers and the Ohio engineering community look forward to being involved in any discussion on regulatory reform in the future. We submit that "common sense" regulatory reform can help Ohio become a better state for economic growth and development. Please feel free to ask me any questions that you may have. Thank you.

 

OSPE files 'friend of court' brief supporting Ohio's 10-year statute of repose
by John Troy, P.E., F.NSPE, Vice President, OSPE Legislative & Government Affairs

OSPE has joined with NSPE in filing an amici curiae brief to the Supreme Court of Ohio on a case filed by Douglas Groch, et al. versus General Motors Corporation, et al.

Our particular interest in this case is that, as part of the filing, the petitioners are requesting that the court declare Ohio’s 10-year product liability statute of repose unconstitutional. This is again a rehash of an issue dating back many years in which OSPE and others in the State of Ohio have pushed and successfully gotten legislation establishing a statute of repose. In prior cases the Supreme Court had declared parts of the law unconstitutional.

Our most recent efforts ended up with a section of the Revised Code (2305.131) establishing a 10-year statute of repose for claims involving improvements to real property. While this is not directly at issue with the Groch-General Motors case, it would most likely be affected by a ruling on the 10-year product liability statute of repose.

OSPE and NSPE have joined a number of other interests – including the U.S. Chamber of Commerce, the National Association of Manufacturing and many others – in an amici curiae brief. The brief supports us and other respondents in asking that the court declare the statutes of repose constitutional.

It seems that this issue will be continuously revisited and we must remain ever vigilant to defend our position or open engineers to an unlimited time for persons to file liability claims against their works.

 

OSPE watches legislation for reinstating professional licenses
by John Troy, PE, F.NSPE, Vice President, OSPE Legislative & Government Affairs

In House Bill 171, Rep. Sandra Williams has introduced legislation affecting a broad range of professional licenses. The core issue in the bill is that it would establish standards by which professional boards can reinstate licensed professionals convicted of a crime.

While this bill affects many professions, it raises a significant issue in engineering. In current state law the approach is that an engineer convicted of a crime involving moral turpitude could be deprived of his or her license. This bill however seems to reserve the removal of a license to only those crimes that are directly related to the profession.

Because OSPE’s viewpoint of engineering practice in an ethical position requires engineers to perform at a higher standard, it raises considerable concern about maintaining both the public confidence and their reliance on engineers to perform in a very professional manner.

OSPE is entering into discussions with both the sponsor of the bill and the board of registration as to the nuances of this particular legislation.

Our first position would be simply to exempt engineers from this bill but since many allied professions are also affected we may need to take a more detailed approach.

 

OSPE follows three bills covering septic systems & household sewage systems; looks to add engineer to committee
by John Troy, PE, F.NSPE, Vice President, OSPE Legislative & Government Affairs

As reported in the bill summary, it is noteworthy that at least three bills having an effect on the engineering practice in Ohio cover the subjects of septic systems and household sewage systems. In the past two years significant changes were introduced to this area which negatively affected the practice of engineering.

These three bills – House Bill 110, Senate Bill 83 and Senate Bill 173 – all essentially rescind the rules related to sewage treatment systems and each in slightly different ways goes about establishing new rules. In each of these cases some type of advisory committee is being proposed.

Our efforts at this time are to ensure that a practicing engineer is included on whatever committee is established so that the engineering interests are appropriately represented.

The major issue in the past rules was to assign some type of design that we believe should remain with engineers, other levels of technologists or technicians. So even though this particular set of regulation rules (that is household sewage treatment) did alter or change the practice of engineering, OSPE will remain vigilant as the new proposals move forward.