OFFICIAL OPINION No. 3

OFFICIAL OPINION No. 3 Department?! Em:i ·~·on111e11tal Resources-Se!l'age Treat111ent Plant and Watenrnrks Operators Certif1cat 1on Act (63 P.S. §1001 et seq.) - Professio11a/ Enqi11eers. 1. Professional engineers need not be certified by the State Board for Certification of Sewage Treatment Plant and Waterworks Operators in order to qualify to operate a sewage treatment plant. water treatment plant or distribution system. 2. A professional engineer who is competent to perform civil or sanitary engineering services 1s legally qualified. t_o operate trea.tment plants and distribution systems of any class without a certificate of any kind from the Board. 3. The el,igibility qf a professiqnal civil or sanitary engineer is not affected by the Boards regulatwns categorizing sewage treatment plants as to types. 4. The Board may _not m.ake its own determinatio.n .in the fi.rst instance whether a professional engineer 1s competent to perform civil or sanitary engi neering serv- ices; his competency in that regard comes under the supervision of the State Registration Board for Professional Engineers. OPINIONS OF THE ATTORNEY GENERAL 11 5. The Board has the right to disqualify a professional engineer who proves to be in- capable of operating a particular class or type of plant or who is shown to have w1llfully neglected his duties in the operation of any such plant or system, or to have disregarded or disobeyed the lawful orders, rules or regulations of the Penn- sylvania Department of Environmental Resources or the Environmental Quality Board. 6. A registered professional engineer who is competent to perform professional civil or sanitary engineering services is a "certified operator" within the meaning of the Act, as now amended. 7. Consequently, such professional engineers may be employed by an owner or purveyor and given direct responsibility for the operation of a treatment plant or distribution system in accordance with Section 13 of the Act, 63 P.S. §1013. Honorable Carl W. Fuehrer Chairman Harrisburg, Pa. January 16, 1974 State Board for Certification of Sewage Treatment Plants and Waterworks Operators Department of Environmental Resources Harrisburg, Pennsylvania Dear Mr. Fuehrer: We have received a request for an opinion concerning the inter- pretation of the Act of June 27, 1973 (Act No. 37). The Act has amended Section 7 of the Sewage Treatment Plant and Waterworks Operators' Certification Act, · 63 P.S. §1007, which, prior to the amendment, provided that any professional engineer who has been examined in civil or sanitary engineering or otherwise proves he is proficient, shall be granted a certificate, upon application to the Board, to operate a sewage treatment plant, water treatment plant or distribution system. We had occasion to interpret Section 7 of the Act prior to the amendment in an official Attorney General's Opinion, dated December 1, 1971. In that opinion we advised you that Section 7 re- quired only that a certificate shall ht: i.ssued to ~mch an.engineer, without reference to the classes of certificates delmeated m the Act, and we said that it is the duty of the Board to determine the class of the certificate based upon the applicant's demonstration of his knowledge and experience. It was to overcome the effect of that opinion that the Legislature enacted Act No. 37 which amends Section 7 by the addition of a Sub- paragraph (b ). The entire section, as now amended, reads as follows: 12 OPINIO NS OF THE ATTORNEY GENERAL "(a) Anyone registered under the 'Professional Engineers Registration Law', approved May 23? 1945 (P.~ . 91~). who has been examined in civil or sanitary engineering or otherwise proves he is proficient shall be granted a cer- tificate upon application to the board. (b) Subsection (a) of this section or any other. prov_ision of this act shall not be construed to req~ire cert1ficat10n and registration for operation of any <;lass of tr~atment p_lant or distribution system by a profess10nal engineer registered under the 'Professional Engineers Registration Law' who is competent to perform professional civil or sanitary engineering services." In view of the somewhat ambiguous language of the amendment, you have asked us to provide you with the answers to certain questions which are summarized as follows: 1. Must a professional engineer still apply to the Board and be certified before he can operate a sewage treatment plant? 2. May the Board classify the operators pursuant to Section 5 and Chapter 303.1 of the regulations adopted by the Board? The classes set forth in the statute are further broken down into three types in the regulations. 3. May the Board take it upon itself, by appropriate means, to determine if the professional engineer "is competent to perform professional civil or sanitary engineering services". which is the last phrase in the Act? If the Board is not authorized to determine if the professional engineer is competent in those fields, who is? 4. Section 2(2) of the Act indicates that a "certified operator" means any operator who holds a valid certificate in accordance with this Act. Other language in the statute requires that a "certified operator" shall have direct responsibility for the operation of the treatment plant (Section 13 (a)). If a professional engineer does not nee~ to be c,~rtifi_e~ pursuant t?, th~ ai:nendment, i? thefrofessional engineer a cert1f1ed operator within the meaning o this Act so that he may operate a treatment plant? 1. A professional engineer need not be certified by the Board in order to qualif~ to _ope~ate a sewage treatment plant, water treat- men~ plant or d1stn_buti?n system. Subsection (b) of Section 7 above proy1des . that nothmg 1_n the Ac~ shall require certification and reg1strat10n of a pro~ess!ona~ engmeer for operation of any class of treatment plant or_d1stnbut1~m system 1f the engineer is registered under the Profess10nal .E!1gmeer~ Registration Law and if he is competent to perfor~ c1v1l or ~anitary engineering services. This rr_ie~ns that. a profes?IOna_l engmt:er ~ho is competent to perform civil or sanitary engmet:rm~ se~v1ces 1s legally qualified to operate treatment plants and d1stnbut10n systems of any class without a OPINIONS OF THI:<: ATTORNEY GENERAL 13 certificate of any kind from the Board. 2. The eligibility of a professional civil or sanitary engineer is not affected by the Board's regulations categorizing sewage treatment plants as to types. While subsection (b) refers to classes and not types, it is evident that the Legislature intended professional civil or sanitary engineers to be able to operate all kinds of treatment plants and distribution systems. The amendment (subsection (b)) refers only to classes because the Act itself refers only to classes. The fact that the Board has by regulation further divided sewage treatment plants into three types does not make any difference. 3. With respect to a professional engineer's qualification as an operator, the Board may not make its own determination in the first instance whether he is competent to perform professional civil or sanitary engineering services. His competency in that regard comes under the supervision of the State Registration Board for Professional Engineers. This means that a professional engineer who is registered under the Professional Engineers Registration Law is entitled to operate a treatment plant or distribution system without a special showing of his competence in civil or sanitary engineering services; his registration carrying with it a presump- tion in that regard. Of course the Board would have the right to disqualify a professional engineer who proves to be incapable of operating a par- ticular class or type of plant, or who is shown to have willfully neglected his duties in the operation of any such plant or system, or to have disregarded or disobeyed the lawful orders, rules or regulations of the Pennsylvania Department of Environmental Resources or the Environmental Quality Board relative to sewage treatment plants, water treatment plants or distribution systems. 63 P.S. §1010. 4. A registered professional engineer who is competent to per- form professional civil or sanitary engineering services is a "cer- tified operator" within the meaning of the Act, as now amended. Consequently he may be employed by an owner or purveyor and given direct responsibility for the operation of a treatment plant or distribution system in accordance with Section 13 of the Act, 63 P.S. §1013. This is _because Section 7(b) ~~ove pro'.'ides that "Subsection (a) of this sect10n or any other provision of this act shall not be con- strued to require certification ... " of a professional civil or sanitary engineer. In summary, the effect of the 1973 Amendment to Section 7 of the Act is to enable professional engineers who have been examined in civil or sanitary engineering to operate sewage treatment plants, water treatment plants and distribution systems of any class or type and to have direct responsibility for their operation without acer- tificate, subject however to the Board's right to disqualify anyone 14 OPINION::; OF THE ATTORNEY GENERAL under the provisions of Section 10, 63 P.S. §1010. Very truly yours, W. William Anderson Deputy Attorney General