The Texas Commission on Environmental Quality (commission) adopts amendments to §§335.1, 335.116, 335.123, 335.156, 335.172, 335.204, 335.348, and 335.553. Sections 335.1, 335.116, 335.123, 335.156, 335.172, 335.348, and 335.553 are adopted with changes to the proposed text as published in the May 30, 2003 issue of the Texas Register (28 TexReg 4266). Section 335.204 is adopted without change to the proposed text and will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

Senate Bill (SB) 405, 77th Legislature, established the Texas Board of Professional Geoscientists and the regulation of professional geoscientists. The Texas Geoscience Practice Act (the Act) requires that a person may not take responsible charge of a geoscientific report or a geoscientific portion of a report required by state agency rule unless the person is licensed through the Texas Board of Professional Geoscientists. The primary purpose of the adopted amendments is to establish regulations for the public practice of geoscience in conformance with the Act by requiring a person who prepares and submits geoscientific information to the commission to be a licensed professional geoscientist. The Act also allows certain specified engineers to publicly practice geoscience in conformance with the Act. According to the bill analysis prepared at the time of passage, the ultimate purpose of the Act was public safety through the public registration of the practice of geoscience.

SECTION BY SECTION DISCUSSION

Adopted §335.1, Definitions, amends the introductory paragraph by deleting the word "shall" and the phrase "unless the context clearly indicates otherwise." The definition of licensed professional geoscientist is adopted as new paragraph (85). The definition of person in paragraph (104) is deleted because it is defined in 30 TAC Chapter 3, Definitions. Existing paragraphs (85) - (103) are renumbered accordingly. In addition, an administrative change is made from proposal in paragraph (27) to correct "ground water" to "groundwater."

Adopted §335.116, Applicability of Groundwater Monitoring Requirements, replaces the term "qualified geologist" with "licensed professional geoscientist" regarding the demonstration of groundwater monitoring requirements. In addition, an administrative change is made from proposal in subsection (c)(1)(B) to correct "ground water" to "groundwater."

Adopted §335.123, Closure and Post-Closure (Land Treatment Facilities), replaces the term "independent qualified soil scientist" with "independent licensed professional geoscientist" regarding certification of closures.

Adopted §335.156, Applicability of Groundwater Monitoring and Response, replaces the term "qualified geologist" with "licensed professional geoscientist." At the January 8, 2003 commission agenda for the post-closure rules (Rule Log Number 2000-048-335-WS), the text of §335.156(a)(2) was inadvertently adopted as the text for §335.156(b)(2). Therefore, the correct text of §335.156(b)(2) has been properly added as originally proposed in the post-closure rules. In addition, an administrative change is made from proposal in subsection (b)(3) to correct a typographical error.

Adopted §335.172, Closure and Post-Closure Care (Land Treatment Units), replaces the term "independent qualified soil scientist" with "independent licensed professional geoscientist."

Adopted §335.204, Unsuitable Site Characteristics, replaces the term "qualified geologist" with "licensed professional geoscientist."

Adopted §335.348, General Requirements for Remedial Investigations, adds new subsection (n) requiring that all engineering and geoscientific information submitted to the agency shall be prepared by, or under the supervision of, a licensed professional engineer or licensed professional geoscientist, and shall be signed, sealed, and dated by qualified professionals as required by the Texas Engineering Practice Act and the Texas Geoscience Practice Act and the licensing and registration boards under these acts. In addition, an administrative change is made from proposal in subsection (d)(3) to correct "ground water" to "groundwater."

Adopted §335.553, Required Information, adds the requirement that all engineering and geoscientific information submitted to the agency shall be prepared by, or under the supervision of, a licensed professional engineer or licensed professional geoscientist, and shall be signed, sealed, and dated by qualified professionals as required by the Texas Engineering Practice Act and the Texas Geoscience Practice Act and the licensing and registration boards under these acts. In addition, administrative changes are made from proposal to correct "ground water" to "groundwater" and to correct cross-reference titles.

FINAL REGULATORY IMPACT ANALYSIS DETERMINATION

The commission reviewed the adopted rulemaking in light of the regulatory analysis requirements of Texas Government Code, §2001.0225, and determined that the rulemaking is not subject to §2001.0225 because it does not meet the criteria for a "major environmental rule" as defined in that statute. A "major environmental rule" means a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state.

The specific intent of the adopted rules is to establish regulations allowing for the public practice of geoscience in agency procedures in accordance with the Act. The Act requires that a person may not take responsible charge of a geoscientific report or a geoscientific portion of a report required by a state agency rule unless the person is licensed through the Texas Board of Professional Geoscientists. The Act also allows certain specified engineers to publicly practice geoscience in conformance with the Act. The adopted rules are not specifically intended to protect the environment or reduce risks to human health. The adopted rules are intended to establish procedures to require that specific reports and necessary data submitted to the commission be produced, signed, sealed, and dated by licensed professional geoscientists who have obtained their licenses through the Texas Board of Professional Geoscientists. Therefore, it is not anticipated that the adopted rules will adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The commission concludes that these adopted rules do not meet the definition of major environmental rule.

Furthermore, even if the adopted rules did meet the definition of a major environmental rule, the rules are not subject to Texas Government Code, §2001.0225, because they do not accomplish any of the four results specified in §2001.0225(a). Section 2001.0225(a) applies to a rule adopted by an agency, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law.

In this case, the adopted rules do not meet any of these requirements. First, there are no federal standards that these rules would exceed. Second, the adopted rules do not exceed an express requirement of state law. Third, there is no delegation agreement that would be exceeded by these adopted rules. Fourth, the commission adopts these rules to allow for the public practice of geoscience in agency procedures in accordance with the Act. Therefore, the commission does not adopt the rules solely under the commission's general powers.

TAKINGS IMPACT ASSESSMENT

The commission evaluated these adopted rules and performed an assessment of whether these rules constitute a takings under Texas Government Code, Chapter 2007. The specific intent of the rules is to establish regulations allowing for the public practice of geoscience in agency procedures in accordance with the Act. The adopted rules would substantially advance this stated purpose by requiring that specific reports and necessary data submitted to the commission be produced, signed, sealed, and dated by licensed professional geoscientists who have obtained their licenses through the Texas Board of Professional Geoscientists.

Promulgation and enforcement of these adopted rules would be neither a statutory nor a constitutional taking of private real property. Specifically, the rules do not affect a landowner's rights in private real property by burdening private real property, nor restricting or limiting a landowner's right to property, or reducing the value of property by 25% or more beyond that which would otherwise exist in the absence of the adopted rules. These rules simply require that specific portions of applications or necessary data submitted to the commission be produced, signed, sealed, and dated by a qualified professional individual who has demonstrated his or her qualifications by obtaining a license to engage in the public practice of geoscience from the Texas Board of Professional Geoscientists. The Act also allows certain specified engineers to publicly practice geoscience in conformance with the Act. These adopted rules do not affect any private real property.

There are no burdens imposed on private real property, and the benefits to society are better applications for environmental permits based upon reliable reports and data submitted by qualified licensed professional geoscientists.

CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM

The commission reviewed the adopted rulemaking and found that the adoption is a rulemaking identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2), relating to Actions and Rules Subject to the Texas Coastal Management Program (CMP), or will affect an action and/or authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). The commission prepared a consistency determination for the rules under 31 TAC §505.22 and found that the rulemaking is consistent with the applicable CMP goals and policies. The CMP goal applicable to the rulemaking is the goal to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas. CMP policies applicable to the adopted rules include the construction and operation of solid waste treatment, storage, and disposal facilities, and the discharge of municipal and industrial wastewater to coastal waters. Promulgation and enforcement of these rules will not violate (exceed) any standards identified in the applicable CMP goals and policies because the adopted rule changes do not modify or alter standards set forth in existing rules, and do not govern or authorize any actions subject to the CMP. The adopted rulemaking would require a person who prepares and submits geoscientific information to the agency to be a licensed professional geoscientist. The Act also allows certain specified engineers to publicly practice geoscience in conformance with the Act.

PUBLIC COMMENT

A public hearing was not held on this rulemaking and one comment was received from the Texas Board of Professional Geoscientists (TBPG) during the comment period, which closed June 30, 2003.

RESPONSE TO COMMENT

TBPG stated that the proposed rules add needed clarification to commission rules as the rules relate to the role of professional geoscientists. TBPG recommended that §335.123(e) be modified to remove the requirement that certification be performed by the owner or operator in some cases.

The commission disagrees with this comment. 40 Code of Federal Regulations (CFR) §265.115, referenced in 30 TAC §335.123(e), requires that the owner/operator submit certification that a hazardous waste management unit or facility has been closed in accordance with the approved closure plan. Moreover, the certification must be signed by both the owner/operator and an independent licensed professional engineer or an independent licensed professional geoscientist. No change has been made in response to this comment.

TBPG commented that §335.123(e) should be modified to provide that the certification in question can be performed by either an independent licensed professional geoscientist or an independent licensed professional engineer.

40 CFR §265.115 requires certifications by an independent registered professional engineer. Section 335.123(e) allows an independent licensed professional geoscientist to certify closures in lieu of an independent licensed professional engineer. No change has been made in response to this comment.

TBPG commented that §335.172(b) should be modified to require that certification be performed by an "independent" licensed professional geoscientist.

The commission agrees with this comment and has changed the rule language to add the word "independent" before "licensed professional geoscientist."

TBPG commented that the "in lieu of" language be replaced by "or" in §335.172(b).

The commission disagrees with this comment. Existing rule language supports the TBPG recommendation to allow certifications by both independent licensed professional engineers and geoscientists. The use of the words "in lieu of" in §335.123(e) correctly highlights the fact that state regulations provide certification by independent licensed professional geoscientists as an alternative to the professional engineers required by the federal regulations. No change has been made in response to this comment.

TBPG commented that the term "registered professional engineer" should be replaced with "licensed professional engineer."

The commission agrees with this comment, and has added the word "licensed" to §335.172(b), regarding closure and post-closure of permitted status hazardous waste management units, to mirror §335.123(e) concerning closure and post-closure of interim status hazardous waste management units.

Subchapter A. INDUSTRIAL SOLID WASTE AND MUNICIPAL HAZARDOUS WASTE IN GENERAL

Subchapter A. GENERAL INFORMATION