The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 5169

March 23, 1977

LICENSES AND PERMITS:

Seal of professional engineer.

PROFESSIONS AND OCCUPATIONS:

Requirement that pollution incident prevention plans bear the seal of a registered professional engineer.

PROFESSIONAL ENGINEER:

Requirement that pollution incident prevention plans bear the seal of a registered professional engineer.

WATER RESOURCES COMMISSION:

Requirement that pollution incident prevention plans bear the seal of a registered professional engineer.

The statutory requirement to the effect that persons shall not submit to a public official 'a plan, specification, report, or land survey which does not bear one or more seals of a registered architect, registered professional engineer, or registered land surveyor' refers only to those plans, specifications, reports or land surveys required to be prepared by a licensee.

The Water Resources Commission is not required to determine whether a particular pollution incident prevention plan must bear the seal of a registered professional engineer.

The Honorable Joseph S. Mack

The State Senate

State Capitol

Lansing, Michigan

Enclosing pertinent correspondence, you have inquired into the legality of the Water Resources Commission accepting Pollution Incident Prevention Plans (PIPPs) which do not bear the seal of a registered professional engineer.

Pursuant to 1929 PA 245; MCLA 323.1 et seq; MSA 3.521 et seq, the Water Resources Commission promulgated a series of administrative rules, 1954 Administrative Code, 1973 AACS, R 323.1151 to R 323.1169, concerning potential spillage of oil and other water polluting materials. 1973 AACS, R 323.1162 provides:

(1) The owner, operator or manager of an oil storage or on-land facility shall file with the commission within 180 days after the effective date of these rules, or 30 days before the date of first use in case of new construction, a pollution incident prevention plan setting forth:

'(a) The procedures by which such person proposes to prevent pollution of the waters of this state from storage and use areas, manufacturing processes, treatment systems and shipping of oil and materials.

'(b) The emergency clean-up procedures to be used in case of a spill, discharge, seepage, runoff or leakage of oil or polluting materials into the waters of this state.

'(c) The type of surveillance employed by such person.

'(d) The method by which inventories are made of oil and polluting materials from the time the oil or polluting material is received or manufactured until such time it is treated and discharged or shipped out by the oil storage or on-land facility.

'(2) If the commission determines that a pollution incident prevention plan prepared pursuant to subrule (1) is incomplete or inadequate, it may return such plan to the owner, operator or manager of an oil storage or on-land facility with its findings and recommendations and request modification thereof. The owner, operator or manager of the oil storage or on-land facility shall modify and resubmit the pollution incident prevention plan to the commission within 30 days following the commission's request.'

It has been contended that the registered professional engineering licensing act, 1937 PA 240; MCLA 338.5551 et seq; MSA 18.84(1) et seq, Sec. (4), requires that PIPPs bear the seal of a registered professional engineer based upon the following underlined provision contained in 1937 PA 240, supra, Sec. 22:

'(1) Any person who practices or offers to practice, the profession of architecture, the profession of engineering, or land surveying in this state without being duly registered or exempted in accordance with the provisions of this act, or any person using the term 'architect' 'professional engineer', or 'land surveyor' in connection with the person's name without being registered in accordance with this act, or any person presenting or attempting to use as the person's own the certificate of registration or the seal of another, or any person who shall give any false or forged evidence of any kind to the board or to any member thereof in obtaining a certificate of registration, or any person who falsely impersonates any other registrant of like or different name, or any person who attempts to use an expired, suspended, or revoked certificate of registration, or any person who violates any of the provisions of this act, is guilty of a misdemeanor, and shall be fined not less than $100.00, nor more than $500.00, or imprisoned not exceeding 90 days, or both.

'(2) A firm may not engage in the practice of or offer to practice architecture, professional engineering, or land surveying in this state, or use in connection with its name or otherwise assume, use, or advertise any title or description tending to convey the impression that it is engaged in the practice of the profession of architecture, professional engineering, or land surveying nor shall it advertise or offer to furnish an architectural, professional engineering, or land surveying service unless the firm has complied with this act. The word 'architecture', 'engineering', 'land surveying', or any of their derivatives shall not be used in a firm name without authorization by the board except as provided in this act. Any firm using the word 'engineering' or any of its derivatives in its name prior to the effective date of this subsection may continue to do so and may use the word in any new firm formed as a result of a reorganization of the firm if it does not practice or offer to practice architecture or professional engineering unless it complies with all other provisions of this act.

'(3) Law enforeing officers of this state shall enforce the provisions of this act. The several prosecuting attorneys and the attorney general of the state shall prosecute any person violating any of the provisions of this act.

'(4) A person shall not submit to any public official of this state or any political subdivision thereof for approval, a permit or for filing as a public record a plan, specification, report, or land survey which does not bear 1 or more seals of a registered architect, registered professional engineer, or registered land surveyor as required by this act, except for public works costing less than $5,000.00 or residential buildings containing not more than 3,500 square feet of calculated floor area.

'(5) Nothing in this act shall apply to a person who is duly licensed to practice architecture, professional engineering, or land sureveying in another state while temporarily in this state to present a proposal for professional services.

'(6) A person's agent, servant, or employee who is not registered pursuant to this act shall not offer or provide services.

'(7) The board may issue an order to a registrant or firm to stop any activity or practice which in violation of this act or the rules promulgated pursuant to this act. A registrant or firm may request a hearing on the order pursuant to Act No. 306 of the Public Acts of 1969, as amended, by giving notice to the board within 15 days after receiving the order. After a hearing the board may affirm, alter, amend, or revoke its order. If a hearing is not requested the order shall be considered final and binding on the registrant or firm.' (emphasis added)

Read in isolation, that underlined provision appears to require that a person filing any plan or report as a public record must first insure that the plan bears the seal of a registered architect, registered professional engineer or registered land surveyor. However, the provision must be read in context. Smith v City Comm of Grand Rapids, 281 Mich 235; 274 NW 776 (1937). But read in the context of the entire section, it will be noted that subparagraph (4) is legislatively intended to refer only to those plans, specifications, reports, or land surveys which are required to be prepared by a licensee. In other words, the frame of reference of this subparagraph leads to the conclusion that the legislature intended that the seal be required only when the plan, specification, report, or land survey is required to be prepared by a professional licensee.

Such a conclusion is compelled by the judicially noticed fact that numerous plans and reports not required to be prepared by a licensee may be filed and accepted as a public document by any number of state and local agencies.

Thus, with regard to professional engineering, the plans which must bear a seal are those encompassed within the statutory definition of the practice of professional engineering. 1937 PA 240, supra, Sec. 2(d), provides:

"Practice of professional engineering' includes professional service, such as consultation, investigation, evaluation, planning, design, or review of materials and completed phases of work in construction, alteration or repair in connection with any public or private utilities, structures, buildings, machines, equipment, processes, works or projects, when the professional service requires the application of engineering principles and data, except as hereinafter defined.'

Neither the statute nor the rule requires that such plans be prepared by a registered professional engineer; thus, the plans need not bear the seal of a registered professional engineer and whether a particular PIPP falls within the exclusive domain or registered professional engineers depends upon the facts and circumstances attendant to the plan.

It is also my opinion that the Water Resources Commission is not required to make a determination as to whether each PIPP is one which requires a seal pursuant to 1937 PA 240, Sec. (4), supra. The responsibility for compliance with that provision rests with the person who submits the plan. In that regard, it is to be noted that prior to its amendment by 1969 PA 141, 1937 PA 240, Sec. 22, supra, expressly placed an obligation on the public official receiving a plan by providing in pertinent part as set forth in 1967 PA 300:

'After this act becomes effective it shall be unlawful for any public official of this state or any political subdivision thereof to accept as a public record or for filing as public record a plan, specification, report or land survey which does not bear the seal of a registered architect, registered professional engineer or registered land surveyor as required by this act, except for public works costing less than $2,000.00 or residential buildings containing not more than 3,500 square feet of calculated floor area as defined herein.' (emphasis added)

The amendment of that language by 1969 PA 141 suggests a conscious legislative intent to shift the burden of assuring compliance from the receiving public official to the submitting person. 1937 PA 240, Sec. 22(4), supra, provides as follows:

'A person shall not submit to any public official of this state or any political subdivision thereof for approval, a permit or for filing as a public record a plan, specification, report, or land, survey which does not bear 1 or more seals of a registered architect, registered professional engineer, or registered land surveyor as required by this act, except for public works costing less than $5,000.00 or residential buildings containing not more than 3,500 square feet of calculated floor area.' (emphasis added)

No doubt the legislature found it unworkable to expect the numerous public officials to evaluate every plan and report for compliance with the sealing requirement.

In summary, it is my opinion that PIPPs filed pursuant to 1973 AACS, R 323.1162 need not bear a seal in accordance with 1937 PA 240, Sec. 22(4), supra. Moreover, it is my opinion that the Water Resources Commission is not obligated to evaluate each specific PIPP to determine whether its peculiar characteristics invoke the sealing requirement.

Frank J. Kelley

Attorney General