OFFICE OF THE ATTORNEY GENERAL STATE OF TEX.4S

JOHN CORNYN

March 10. 1999

Mr. John R. Speed, P.E. Executive Director Texas Board of Professional Engineers P.O. Drawer 18329 Austin, Texas 787604329 Opinion No. JC-0020

Re: Whether Texas Natural Resource Conservation Commission has authority under chapter 366 of the Texas Health and Safety Code torequire certification of “site evaluators” (RQ-1090)

Dear Mr. Speed:

On behalf of the Texas Board of Professional Engineers (the “Board”), you ask several questions about the rule-making authority ofthe Texas Natural Resource Conservation Commission (the “TNRCC” or “Commission”) under chapter 366 of the Texas Health and Safety Code, which addresses the regulation ofon-site sewage disposal systems. Your specific questions are asfollows:

1. Does the TNRCC have the authority to license site evaluators or other persons to perform engineering as authorized by the Texas Engineering Practice Act?

2. Does an agency or political subdivision of the state have the authority to interfere with the authority of the TBPE [(“Texas Board of Professional Engineers”)] by imposing additional requirements upon licensed engineers to practice activities already authorized by their licenses?

3. Do such agencies or political subdivisions have the authority to prohibit or otherwise impede licensed engineers from performing activities already authorized under their engineering license?

Letter from John R. Speed, P.E., Executive Director, Texas Board of Professional Engineers, to Honorable Dan Morales, Texas Attorney General 6 (Feb. 11, 1998) (on tile with Opinion Committee) [hereinafter Speed letter of 2/l l/98].

Our analysis begins with the rules to which the Board most specifically objects - those pertaining to site evaluator training and certification. In addressing the rules on site evaluator training and certification, we do not raise any question about the Commission’s authority to require site evaluations to determine the suitability of a location for placing a particular on-site sewageMr. John R. Speed, P.E. - Page 2 (JC-0020)

disposal facility. See TEX. HEALTH& SAFETYCODEANN. $4 366.011(l) (Commission or authorized agents have general authority over location, design, construction, installation, andproper functioning of on-site sewage disposal systems); 366.012(a)(2) (adoption of rules that encourage alternative techniques andtechnologies that can beused in soils not suitable for conventional on-site sewage disposal); 366.012(b)(3) (adoption of rules requiring specific management practices or procedures if required by site conditions or other problems) (Vernon Supp. 1999).

You indicate that rules adopted by the Commission to regulate “site evaluators” are not authorized by chapter 366 ofthe Health and Safety Code and that some ofthem encroach upon the Board’s authority to regulate the practice of professional engineering. We conclude that the Commission does not have authority under chapter 366 ofthe Health and Safety Code torequire the certification of “site evaluators.” Because we believe such rules are invalid, we do not need to decide whether “site evaluators” perform engineering as regulated by the Texas Engineering Practice Act or whether the rules impede licensed engineers from performing activities already authorized under their engineering license. We could not in any case answer these questions definitively in an attorney general opinion. To determine whether or not a “site evaluator” engages in the practice ofengineering would require the investigation andresolution of fact questions, which cannot be done in the opinion process. See, e.g., Tex. Att’y Gen. Op. Nos. DM-383 (1996) at 2 (questions of fact are inappropriate for the opinion process); DM-98 (1992) at 3 (questions of fact cannot be resolved in the opinion process); H-56 (1973) at 3 (improper for Attorney General topass judgment on amatter that would be aquestion forjury determination); M-l 87 (1968) at 3(Attorney General cannot make factual findings).

The purpose ofchapter 366 ofthe Health and Safety Code isto “eliminate andprevent health hazards by regulating and properly planning the location, design, construction, installation, operation, and maintenance of on-site sewage disposal systems.” TEX.HEALTH & SAFETY

CODE ANN.5 366.001(l) (Vernon Supp. 1999). An “[o]n-site sewage disposal system” is defined as “one or more systems oftreatment devices and disposal facilities that: (A) produce not more than 5,000 gallons ofwaste each day; and (B) areused only for disposal of sewage produced on a site on which any part of the system is located.” Id. 5 366.002(7). Under chapter 366, before constructing, altering, repairing, extending or operating an on-site sewage disposal system, aperson must obtain
apermit from the TNRCC or the TNRCC’s “authorized agent,” a local government entity that the TNRCC has authorized to regulate on-site sewage disposal systems within itsjurisdiction. See id. $366.002( 1);Tex. Att’y Gen. Op.No. JM-1278 (1990) at2 (“[aluthorized agents” defined as“local governmental entities designated by the [TNRCC] to implement and enforce chapter 366 and the rules adopted [under this chapter]“).

The Commission’s rules concerning on-site sewage facilities (“OSSFs”) require applicants for an OSSF permit to submit “a positive site evaluation performed by a certified site evaluator.” 30 TEX.ADMIN.

CODE5 285.20(2) (1998). A “[slite evaluator. visits a site and conducts apreconstruction site evaluation which includes performing soil analysis, asite survey, and other criteria necessary to determine the suitability of a site for a specific OSSF.” Id. 5 285.2. See also id. 5285.30 (detailed description ofsite evaluation). Therules “set forth astatewide uniform procedureMr. JohnR. Speed, P.E. - Page 3 (JC-0020)

forthe training andregistration ofinstallers ofOSSFs andtraining andcertification ofsite evaluators and designated representatives.” Id 5285.50(a). They provide that “[n]o individual may represent himself or herself as an installer, site evaluator, or designated representative unless they possess a valid agency certificate for that profession.” Id. 5285.50(c).
Chapter 366 of the Health and Safety Code does not expressly authorize the TNFXC to require training and certification ofa“site evaluator” nor does iteven mention this term. In contrast, the Commission has express authority to certify a “designated representative,” defined as “aperson who isdesignated by the commission or authorized agent to make percolation tests, systems designs, and inspections subject to the commission’s approval.” TEX.HEALTH & SAFETY

CODEANN. 5s 366.002(3), 366.014 (Vernon Supp. 1999). It also has express authority toregister an “installer,” defined as “a person who is compensated by another to construct, install, alter, or repair an on-site sewage disposal system.” Id. §§ 366.002(4), 366.071.

The TNRCC argues that it has implied authority to require the training and certification of site evaluators because these requirements help implement various provisions of Health and Safety Code chapter 366. It states that such rules will implement the statutory purpose of eliminating and preventing health hazards. It also states that its rules implement the provisions regarding training and registration of installers. Letter from Gene Snelson, TNRCC, to Sarah Shirley, Office of the Texas Attorney General (Apr. 24,1998) (on file with Opinion Committee) [hereinafter Snelson letter of 4/24/98]. See TEX.HEALTH & SAFETY

CODE ANN.$5 366.013 (training of installers); 366.071 - ,078 (registration of installers) (Vernon Supp. 1999). The Commission argues that its authority to register an installer includes authority to register a “site evaluator” as akind ofinstaller, but it also states that itoffers aseparate certificate for asite evaluator to allow competent candidates toperform this function without having to obtain installer registration. Snelson letter of4/24/98, supra, at 6-7. To qualify as a site evaluator, an individual must, among other requirements, have two years of verifiable experience in the OSSF field and possess either an Installer II certificate, a designated representative certificate, aregistered sanitarian certificate, or aprofessional engineer registration. 30 TEX.ADMIN.

CODE5 285.54(k)(l) (1998).

In our opinion, the Commission’s authority to register an installer does not authorize the Commission to register a“site evaluator.” The factthat the Commission offers a separate certificate for a site evaluator who is not a registered installer is inconsistent with its argument that a site evaluator is a kind of installer and that its statutory authority over installers encompasses “site evaluators.”

The Commission cites section 366.012 ofthe Health and Safety Code as another source of its implied authority to regulate “site evaluators.” This provision requires the Commission to adopt rules governing the installation ofon-site sewage disposal systems andrules “that encourage the use ofeconomically feasible alternative techniques andtechnologies foron-site sewage disposal systems that can be used in soils not suitable for conventional on-site sewage disposal.” TEX.HEALTH & SAFETY CODEANN. 5 366.012(a)(2) (Vernon Supp. 1999). Subsection (b) of section 366.012Mr. John R. Speed, P.E. - Page 4 (JC-0020)

requires the Commission to adopt rules defining and describing good management practices and procedures for constructing on-site sewage disposal systems that:

(1)justify variation in field sizeorinother standard requirements;
(2) promote the use ofgood management practices orprocedures in the construction of on-site sewage disposal systems;
(3) require the use ofone ormore specific management practices
orprocedures as acondition ofapproval of astandard on-site sewage disposal system if, in the opinion of the commission or authorized agent, site conditions or other problems require the use of additional management practices or procedures to ensure the proper operation of an on-site sewage disposal system.

Id. 5 366.012(b).

These provisions relate to the techniques, technologies, and management practices and procedures necessary for the construction andproper operation ofon-site sewage disposal systems, particularly systems that can be used in soils not suitable for conventional on-site sewage disposal. They do not mention a site evaluator or refer to the regulation of persons who carry out the tasks necessary to ensure the proper operation of an on-site sewage disposal system.

The legislative intent is determined from ageneral view ofthe whole enactment in question. Citizens Bankv. First State Bank, 580 S.W.2d 344,348 (Tex. 1979). The interpretation of a statute by implication is permitted to supply an obvious intent not expressly stated, but not to add to what the statute provides expressly. Massachusetts v. United N. & S. Dev. Co., 168 S.W.2d 226, 229 (Tex. 1942). “‘[AIn agency can adopt only such rules as are authorized by and consistent with its statutory authority.“’ Railroad Comm’n v.Arco Oil & Gas, 876 S.W.2d 473, 481 (Tex. App.- Austin 1994, writ denied) (citations omitted). An agency may not, “‘on a theory of necessary implication from a specific power, function, or duty expressly delegated, erect and exercise what really amounts to anew and additional power or one that contradicts the statute, no matter that the
new power is viewed as being expedient for administrative purposes.“’ Public Util. Comm ‘nv. GTE-Southwest, Inc., 901 S.W.2d 401,407 (Tex. 1995) (quoting Sexton v.Mount Olivet Cemetery Ass’n, 720 S.W.2d 129, 137-38 (Tex. App.-Austin 1986, writ refd n.r.e.)). Nor may an agency rule “impose additional burdens, conditions, or restrictions in excess of or inconsistent with the relevant statutory provisions.” Railroad Comm’n, 876 S.W.2d at 481.

When we look atchapter 366 as awhole, we seethat the legislature has adopted specific and detailed provisions on the regulation ofinstallers and designated representatives. See TEX.HEALTH & SAFETYCODE.ANN. $5 366.001(4) (Commission may require registration of installer); 366. 002(4) (defining “installer”); 366.072 (Commission shall adopt a registration application for installers and rules and procedures for processing application); 366.073 (Commission shall requireMr. John R. Speed, P.E. - Page 5 (JC-0020)

the installer to complete a training program provided by the Commission); 366.074 (Commission shall establish and collect a registration fee to cover the cost of issuing registrations); 366.076 (Commission may require periodic renewal of registrations) (Vernon Supp. 1999). The Commission’s authority to adopt rules governing the installation ofon-site sewage disposal systems expressly refers to “rules concerning the registration of installers.” Id. 366.012(a)(l)(B).

The provisions relating to certification of a designated representative, like those relating to
an installer, are express and specific. Section 366.014(b) sets out five qualifications forbecoming
a designated representative: (1) demonstrating competency to make percolation tests, designs, and inspections foron-site sewage disposal systems; (2)completing the Commission’s training program; (3) passing an examination; (4) receiving written certification from the Commission; (5) paying a fee. Requirements (3) though (5) were added by a 1993 amendment to chapter 366.’ Thus, even though chapter 366 already provided for the position of designated representative, the legislature took action to authorize the certification of such persons, subject to passing an examination and paying a fee. Section 366.013 expressly requires the Commission to establish atraining program specifically developed forinstallers, authorized agents, anddesignated representatives andauthorizes the Commission to charge participants areasonable fee to cover the cost ofthe training.

Several opinions of this office have concluded that a state agency may not establish and regulate occupational orprofessional categories in the absence of express legislative authority to do
so. Attorney General Opinion H-870 determined that the Texas Commission onAlcoholism had no authority to certify persons as“alcoholism counselors” andregulate the use of suchtitle. Tex. Att’y Gen. Op. No. H-870 (1976) at 2. The opinion noted that the Commission had no express authority to certify such persons and found that it had no implied authority to do so. Id. For the latter conclusion, it relied on the Texas Supreme Court decision in State v. Cortez, 333 S.W.2d 839 (Tex. 1960), in which the court held that the Board’s authority to prescribe rules and regulations for the operation of all funeral establishments did not give the Board implied authority to require funeral establishments to be licensed. Id. (citing Cortez, 333 S.W.2d at 841). The statute atissue in Cortez expressly required alicense topractice embalming ortobe afuneral director and setthe fees for such licenses, but at the time of the lawsuit it did not expressly require funeral establishments to be licensed. Id.’ See also TEX. REV.Qv. STAT.

ANN.art.4582b, 54 (Vernon Supp. 1999) (current law requires funeral establishments to be licensed).
Attorney General Opinion MW-320 determined that the Commission on Fire Protection Personnel Standards and Education lacked authority to require certification of tire inspectors. The Commission had express authority to establish minimum certification requirements only forpeople seeking admission to employment as tire protection personnel. Tex. Att’y Gen. Op. No. MW-320 (1981). It therefore lacked authority to establish certification requirements for an additional specialty, such as tire inspector. Id. See also Tex. Att’y Gen. Op. No. JM-609 (1986) (Texas

‘Act of May 25, 1993,13rd Leg., RX, ch. 589, 5 4, 1993 Tex. Gen. Laws 2243-44.

‘See Act of May 14,1953,53d Leg., R.S., ch. 251,§ 4.1953 Tex. Gen. Laws 661,665.Mr. John R. Speed, P.E. - Page 6 (JC-0020)

Department ofHealth could not adopt arule requiring certain massage therapy instructors to comply with requirements for massage therapy school; such rule would be inconsistent with statutory distinction between “instructor” and “school”).
Attorney General Opinion MW-42 determined that the Board ofNurse Examiners could not issue rules regulating the practice ofadvanced nurse practitioners. The Board had neither statutory authority for a separate licensing category of advanced nurse practitioners, nor a broad grant of regulatory authority over the practice of nursing. Tex. An’y Gen. Op. No. MW-42 at 2 (1979). Accordingly, “[i]n the absence ofmore specific statutory authority, the board may not promulgate rules having the force oflaw limiting, or dictating methods ofpractice by advanced registered nurse practitioners.” Id.

In contrast to Attorney General Opinion MW-42 and similar opinions, Attorney General Opinion DM-292 determined that the Texas Board of Health could issue rules under the Medical Radiologic Technologist Certification Act, article 4512m,oftheRevised Civil Statutes, for granting speciality certificates that authorized the applicant to practice in one of the three disciplines comprising medical radiologic technology: diagnostic radiography, nuclear medicine, or radiation therapy. It would also offer a general certificate authorizing the holder to practice in all three disciplines. The Board had express authority to establish different classes ofcertificates, but it was concerned that this authority was curtailed by a provision defining a “limited certification” as authorizing the holder to perform radiologic procedures only to a specified part of the body. Attorney General Opinion DM-292 looked at the statute as a whole, concluding that the Board’s broad authority to establish classes of certificates was not curtailed by the provision on a “limited certification” and that the Board could implement the new licensing system. Thus, the language of theMedical Radiologic Technologist Certification Act, asharmonized by Attorney General Opinion DM-292, provided specific authority for the Board to establish new classes of certificates. Tex. Att’y Gen. Op. No. DM-292 (1994). See also Tex. Att’y Gen. LO-96-125 (Board of Health has authority under the Medical Radiologic Technologist Certification Act to grant certificate for students performing dangerous or hazardous procedures).

We finally note ajudicial decision that addressed the rule-making authority of the TNRCC under the Solid Waste Disposal Act, TEX.HEALTH & SAFETY

CODE ANN.$3 361.OOl-,754(Vernon 1992& Supp. 1999). McDaniel v. TexasNaturalResource Conservation Commission, 982 S.W.2d 650 (Tex. App.-Austin 1998, pet. filed), addressed the Commission’s implied authority with respect toprocedures for authorizing sewage sludge disposal. McDaniel, like thepresent request for
an attorney general opinion, deals with the rule-making authority of the TNRCC, but it addresses
a different statute, and, most important, does not concern the regulation of an occupational or professional category. For these reasons, McDaniel does not assist us in answering your question.

In the absence of any statutory authority toregulate site evaluators, the TNRCC has adopted rules that place burdens on persons who engage in site evaluation, by requiring them to take an examination, pay fees, and comply with other requirements for getting acertiticate. 30TEX.ADMIN. CODE$5 285.50, 285.54, 285.57 (1998). A person who violates a rule is subject to a suit forMr. John R. Speed, P.E. - Page 7 (JC-0020)

injunctive relief or a civil suit under section 366.092. In the context of Health and Safety Code chapter 366, which expressly defines and provides for the regulation oftwo occupations related to on-site sewage facilities, itisreasonable to expect the legislature to express its intention to authorize regulation of a third occupation related to on-site sewage facilities by a similarly express grant of authority. We conclude that the Commission lacks implied authority to regulate site evaluators. Accordingly, the Commission has no authority to issue rules regulating “site evaluators” and such rules are invalid.Mr. John R. Speed, P.E. - Page 8 (JC-0020)

SUMMARY
Chapter 366 of the Health and Safety Code, relating to the regulation of on-site sewage disposal systems, does not expressly or by necessary implication authorize the TexasNatural Resource Conservation Commission to regulate “site evaluators.” The Commission’s rules requiring the certification of site evaluators and otherwise regulating site evaluators are invalid.

Attorney General of Texas

ANDY TAYLOR First Assistant Attorney General

CLARK KENT ERVlN Deputy Attorney General - General Counsel

ELIZABETH ROBINSON Chair, Opinion Committee Prepared by Susan L. Garrison Assistant Attorney General