Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 25.
ENVIRONMENTAL TESTING LABORATORY ACCREDITATION AND CERTIFICATION
The Texas Commission on Environmental Quality (commission) adopts
amendments to §§25.2, 25.6, and 25.9
without
changes
to the proposed text as published in the February 25, 2005,
issue of the
Texas Register
(30 TexReg 1006)
and will not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
The purpose of the adopted rules is to conform existing rules with statutory
changes made by Senate Bill (SB) 934, 78th Legislature, 2003, and to refer
to more recent laboratory accreditation standards adopted by the National
Environmental Laboratory Accreditation Conference (NELAC).
SECTION BY SECTION DISCUSSION
Adopted §25.2, Definitions, adds new paragraph (20) to define same
site as all structures, other appurtenances, and improvements located on one
or more contiguous properties. The definition clarifies which on-site or in-house
environmental laboratories may provide data to the commission without obtaining
accreditation. Previously existing paragraph (20) is renumbered as paragraph
(21) to accommodate the new definition.
Adopted §25.6, Conditions Under Which the Commission May Accept Analytical
Data, amends paragraph (1) to revise subparagraph (B) concerning on-site and
in-house environmental laboratories located in other states and accredited
or periodically inspected by those states and adds subparagraph (C) concerning
on-site and in-house environmental laboratories performing work for companies
with units located at the same site or performing work without compensation
for governmental agencies or charitable organizations. These changes incorporate
statutory changes made by SB 934.
Adopted §25.9, Standards for Environmental Testing Laboratory Accreditation,
replaces the phrase "approved May 2001" with "Chapters 3, 4, and 5, adopted
July 2002, and Chapters 1, 2, and 6, adopted June 2003" to refer to the most
recent laboratory accreditation standards adopted by NELAC.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the adopted rulemaking in light of the regulatory
analysis requirements of Texas Government Code, Chapter 2001, §2001.0225,
and determined that the rulemaking is not subject to §2001.0225 because
it does not meet the definition of a major environmental rule. 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. This rulemaking has two major components.
First, it authorizes the commission to accept data from an on-site or in-house
environmental testing laboratory that: 1) is located in another state, provided
the laboratory is either accredited or inspected by the state; and 2) prepares
data for another company with a unit located on the same site, or prepares
the data without compensation for a governmental or charitable organization.
Second, the rulemaking changes a reference to laboratory accreditation standards
to reflect more recent standards adopted by the NELAC. These amendments do
not meet the definition of a "major environmental rule."
The adopted rules implement SB 934, 78th Legislature, 2003. These rules
are not a major environmental rule and do not meet any of the four applicability
requirements that apply to a major environmental rule. Under Texas Government
Code, Chapter 2001, §2001.0225, these adopted rules do not exceed a standard
set by federal law or 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. The United States Environmental
Protection Agency does not have a federal program for laboratory accreditation
nor does it establish requirements for states implementing their own laboratory
accreditation program. The adopted rules do not exceed a standard set by federal
law nor exceed the requirement of a delegation agreement because there is
no federal authority regarding laboratory accreditation.
These revisions do not adopt a rule solely under the general powers of
the commission and do not exceed an express requirement of state law. The
requirements implemented through these rules are expressly defined under Texas
Water Code (TWC), Chapter 5, Subchapter R, which requires the commission to
enact rules governing the accreditation of environmental laboratories.
TAKINGS IMPACT STATEMENT ASSESSMENT
The commission's assessment indicates that Texas Government Code, Chapter
2007, does not apply to these adopted amendments because the amendments are
not a taking as defined in Chapter 2007 or a constitutional taking of private
real property. The purpose of the adopted amendments is to implement SB 934,
78th Legislature, 2003, and update referenced NELAC standards.
Promulgation and enforcement of these adopted rules will not affect private
real property, which is the subject of the rules because the amendments will
neither restrict or limit the owner's right to the property, nor cause a reduction
of 25% or more in the market value of the property. The rules only apply to
environmental testing laboratories that submit data to the commission for
use in its decisions. Property values will not be decreased, because the amendments
will not limit the use of real property. Thus, these rules do not constitute
a taking under Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed this rulemaking and found that the adoption is
not a rulemaking subject to the Texas Coastal Management Program (CMP) because
the rulemaking is neither identified in 31 TAC §505.11, nor will it affect
any action or authorization identified in §505.11. Therefore, this rulemaking
is not subject to the CMP.
PUBLIC COMMENT
The comment period closed on March 28, 2005. The commission received no
comments.
Subchapter A. GENERAL PROVISIONS