Section 3745.14. Certification of engineers to conduct compliance reviews

(A) As used in this section:

(1) "Compliance review" means the review of an application for a permit, renewal of a permit, or plan approval, or modification thereof, for an existing or proposed facility, source, or activity and the accompanying engineering plans, specifications, and materials and information that are submitted under Chapter 3704., 3734., 6109., or 6111. of the Revised Code and rules adopted under them for compliance with performance standards under the applicable chapter and rules adopted under it. "Compliance review" does not include the review of an application for a hazardous waste facility installation and operation permit or the renewal or modification of such a permit, a permit to establish or modify an infectious waste treatment facility, a permit to install a solid waste incineration facility that also would treat infectious wastes, or a permit to modify a solid waste incineration facility to also treat infectious wastes under Chapter 3734. of the Revised Code.

(2) "Engineer" includes both of the following:

(a) A professional engineer registered under Chapter 4733. of the Revised Code;

(b) A firm, partnership, association, or corporation providing engineering services in this state in compliance with Chapter 4733. of the Revised Code.

(B) The director of environmental protection, in accordance with Chapter 119. of the Revised Code, shall adopt, and may amend and rescind, rules establishing a program for the certification of engineers to conduct compliance reviews. The rules, at a minimum, shall do all of the following:

(1) Require that the program be administered by the director;

(2) Establish eligibility criteria for certification to conduct compliance reviews;

(3) Establish criteria for denying, suspending, and revoking certifications and renewals of certifications issued pursuant to rules adopted under division (B) of this section;

(4) Require the periodic renewal of certifications issued pursuant to rules adopted under division (B) of this section;

(5) Establish an application fee and fee for issuance for certifications under this section. The fees shall be established at a level calculated to defray the costs to the environmental protection agency for administering the certification program established by rules adopted under division (B) of this section. All such application and certification fees received by the director shall be deposited into the state treasury to the credit of the permit review fund created in division (E) of this section.

(C) The director shall maintain a current list of all engineers who are certified to conduct compliance reviews pursuant to rules adopted under this section. The list shall indicate the types of permits, permit renewals, and plan approvals that each engineer is certified to review and the types or categories of facilities, sources, or activities in connection with which the engineer is certified to conduct the reviews. Upon request, the director shall provide a copy of the list to anyone requesting it.

(D) An applicant for a permit, renewal of a permit, plan approval, or modification thereof, under Chapter 3704., 3734., 6109., or 6111. of the Revised Code and applicable rules adopted under them, other than a hazardous waste facility installation and operation permit or renewal or modification of such a permit, a permit to establish or modify an infectious waste treatment facility, a permit to install a solid waste incineration facility that also would treat infectious wastes, or a permit to modify a solid waste incineration facility to also treat infectious wastes under Chapter 3734. of the Revised Code, may submit a written request to the director to have the compliance review conducted by an engineer certified under this section. The request shall accompany the permit application, shall indicate the applicant's choice from among the certified engineers on the director's list who are qualified to conduct the compliance review, shall be accompanied by separate certifications by the applicant and the engineer indicating that the applicant does not have and has not had during the preceding two years a financial interest in the engineer and has not employed or retained the engineer to perform services for the applicant during the preceding two years, and may be accompanied by a draft proposal for conducting the compliance review that was developed by the applicant and the engineer. No such draft proposal is binding upon the director.

Within seven days after receiving a request under this division, the director shall do all of the following, as appropriate:

(1) In the director's discretion, approve or disapprove the applicant's request to have the compliance review of the application conducted by an engineer on the list of certified engineers prepared under this section;

(2) If the director approves the conducting of the compliance review by such a certified engineer, approve or disapprove, in the director's discretion, the applicant's choice of the engineer;

(3) Mail written notice of decisions made under divisions (D)(1) and (2) of this section to the applicant.

If the director fails to mail notice of the director's decisions on the request to the applicant within seven days after receiving the request, it is conclusively presumed that the director approved the applicant's request to have the compliance review conducted by a certified engineer and the applicant's choice of the engineer, and the director shall enter into a contract with the engineer chosen by the applicant. If the director disapproves the applicant's choice of an engineer and provides timely notice of the disapproval to the applicant, the director and applicant, by mutual agreement, shall select another engineer from the list prepared under this section to conduct the compliance review, and the director shall enter into a contract with that engineer.

(E) The director may enter into contracts for conducting performance reviews under division (D) of this section without advertising for bids. The commencement of any work under such a contract shall be contingent upon the director's receipt of payment from the applicant of an amount that is equal to one hundred ten per cent of the amount specified in the contract, excluding contingencies for any additional work that may be needed to properly complete the review and that was not anticipated when the contract was made. Moneys received by the director from an applicant shall be deposited into the permit review fund, which is hereby created in the state treasury. The director shall use moneys in the fund to pay the cost of compliance reviews conducted pursuant to contracts entered into under division (D) of this section and to administer the certification program established under division (B) of this section. The director may use any moneys in the fund not needed for those purposes to administer the environmental laws or programs of this state.

If, while conducting a compliance review, the engineer finds that work in addition to that upon which the cost under the contract was based, or any additional work previously authorized under this division, is needed to properly review the application and accompanying information for compliance with the applicable performance standards, the engineer shall notify the director of that fact and of the cost of the additional work, as determined pursuant to the terms of the contract. If the director finds that the additional work is needed and that the costs of performing the work have been determined in accordance with the terms of the contract, the director shall authorize the contractor to perform the work. Upon completion of the additional work, the contractor shall submit to the director an invoice for the cost of performing the additional work, and the director shall forward a copy of the invoice to the applicant. The applicant is liable to the state for an amount equal to one hundred ten per cent of the cost of performing the additional work and, within thirty days after receiving a copy of the invoice, shall pay to the director an amount equal to one hundred ten per cent of the amount indicated on the invoice. Upon receiving this payment, the director shall forward the moneys to the treasurer of state, who shall deposit them into the state treasury to the credit of the permit review fund.

Until the applicant pays to the director the amount due in connection with the additional work, the director shall not issue to the applicant any permit, renewal of a permit, or plan approval, or modification thereof, for which an application is pending before the director. The director also may certify the unpaid amount to the attorney general and request that the attorney general bring a civil action against the applicant to recover that amount. Any moneys so recovered shall be deposited into the state treasury to the credit of the permit review fund.

(F) Upon completing a compliance review conducted under this section, the engineer shall make a certification to the director as to whether the existing or proposed facility, source, activity, or modification will comply with the applicable performance standards. If the certification indicates that the existing or proposed facility, source, activity, or modification will not comply, the engineer shall include in the certification the engineer's findings as to the causes of the noncompliance.

(G) When a compliance review is conducted by an engineer certified under this section, the other activities in connection with the consideration, approval, and issuance of the permit, renewal of the permit, or plan approval, or modification thereof, shall be conducted by the director in accordance with the applicable provisions of Chapter 3704., 3734., 6109., or 6111. of the Revised Code and rules adopted under the applicable chapter.

(H) All expenses incurred by the attorney general in bringing a civil action under this section shall be reimbursed from the permit review fund in accordance with Chapter 109. of the Revised Code.

Effective Date: 09-26-2003