   OFFICE   OF THE    ATTORNEY   GENERAL   STATE   OF TEX.4S

   JOHN      CORNYN




                                                   March 10. 1999



Mr. John R. Speed, P.E.                                   Opinion No. JC-0020
Executive Director
Texas Board of Professional Engineers                     Re: Whether Texas Natural Resource Conservation
P.O. Drawer 18329                                         Commission has authority under chapter 366 of the
Austin, Texas 787604329                                   Texas Health and Safety Code to require 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 of the Texas Natural Resource Conservation Commission
(the “TNRCC” or “Commission”) under chapter 366 of the Texas Health and Safety Code, which
addresses the regulation of on-site sewage disposal systems. Your specific questions are as follows:

                     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 sewage
Mr. John R. Speed, P.E. - Page 2                  (JC-0020)




disposal facility. See TEX. HEALTH& SAFETYCODE ANN. $4 366.011(l) (Commission or
authorized agents have general authority over location, design, construction, installation, and proper
functioning of on-site sewage disposal systems); 366.012(a)(2) (adoption of rules that encourage
alternative techniques and technologies that can be used 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 of the Health and Safety Code and that some of them 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 of the Health and Safety Code to require 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 of engineering would require the investigation and resolution 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 to pass
judgment on a matter that would be a question for jury determination); M-l 87 (1968) at 3 (Attorney
General cannot make factual findings).

         The purpose ofchapter 366 ofthe Health and Safety Code is to “eliminate and prevent health
hazards by regulating and properly planning the location, design, construction, installation,
operation, and maintenance of on-site sewage disposal systems.” TEX. HEALTH& SAFETYCODE
ANN. 5 366.001(l) (Vernon Supp. 1999). An “[o]n-site sewage disposal system” is defined as “one
or more systems of treatment devices and disposal facilities that: (A) produce not more than 5,000
gallons of waste each day; and (B) are used 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, a person must obtain
a permit 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 its jurisdiction. See id.
$366.002( 1); Tex. Att’y Gen. Op. No. JM-1278 (1990) at 2 (“[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.CODE 5 285.20(2) (1998). A “[slite evaluator.          visits a site and conducts apre-
construction site evaluation which includes performing soil analysis, a site survey, and other criteria
necessary to determine the suitability of a site for a specific OSSF.” Id. 5 285.2. See also id.
5 285.30 (detailed description ofsite evaluation). Therules “set forth a statewide uniform procedure
Mr. JohnR. Speed, P.E. - Page 3                     (JC-0020)




for the training and registration ofinstallers of OSSFs and training and certification of site evaluators
and designated representatives.” Id 5 285.50(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. 5 285.50(c).

        Chapter 366 of the Health and Safety Code does not expressly authorize the TNFXC to
require training and certification of a “site evaluator” nor does it even mention this term. In contrast,
the Commission has express authority to certify a “designated representative,” defined as “a person
who is designated by the commission or authorized agent to make percolation tests, systems designs,
and inspections subject to the commission’s approval.” TEX. HEALTH& SAFETYCODE ANN.
5s 366.002(3), 366.014 (Vernon Supp. 1999). It also has express authority to register 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& SAFETYCODEANN. $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 a kind of installer, but it also
states that it offers a separate certificate for a site evaluator to allow competent candidates to perform
this function without having to obtain installer registration. Snelson letter of 4/24/98, 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, a registered sanitarian certificate, or a professional engineer registration.
30 TEX. ADMIN.CODE 5 285.54(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 fact that 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 of the 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 of on-site sewage disposal systems and rules “that encourage the use
ofeconomically feasible alternative techniques and technologies for on-site sewage disposal systems
that can be used in soils not suitable for conventional on-site sewage disposal.” TEX. HEALTH&
SAFETYCODE ANN. 5 366.012(a)(2) (Vernon Supp. 1999). Subsection (b) of section 366.012
Mr. 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 size or in other standard requirements;

                   (2) promote the use of good management practices or procedures
               in the construction of on-site sewage disposal systems;

                   (3) require the use of one or more specific management practices
               or procedures as a condition of approval of a standard 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 and proper operation of on-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 a general view of the 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 a new 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 ‘n v.
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 at chapter 366 as a whole, we see that the legislature has adopted specific and
detailed provisions on the regulation of installers and designated representatives. See TEX. HEALTH
& SAFETY CODE. 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 require
Mr. 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 of on-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 for becoming
a designated representative: (1) demonstrating competency to make percolation tests, designs, and
inspections for on-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 a training program
specifically developed for installers, authorized agents, and designated representatives and authorizes
the Commission to charge participants a reasonable fee to cover the cost of the training.

         Several opinions of this office have concluded that a state agency may not establish and
regulate occupational or professional categories in the absence of express legislative authority to do
so. Attorney General Opinion H-870 determined that the Texas Commission on Alcoholism had no
authority to certify persons as “alcoholism counselors” and regulate the use of such title. 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 at issue in Cortez
expressly required a license to practice embalming or to be a funeral director and set the 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, 5 4 (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 for people
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


        ‘Actof   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 a rule 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 of advanced 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 of more specific statutory authority, the board may not promulgate
rules having the force of law limiting, or dictating methods of practice 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 45 12m, 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 of certificates, 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
the Medical Radiologic Technologist Certification Act, as harmonized 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 a judicial decision that addressed the rule-making authority of the TNRCC
under the Solid Waste Disposal Act, TEX.HEALTH& SAFETYCODEANN. $3 361 .OOl-,754 (Vernon
1992 & Supp. 1999). McDaniel v. Texas NaturalResource Conservation Commission, 982 S.W.2d
650 (Tex. App.-Austin       1998, pet. filed), addressed the Commission’s implied authority with
respect to procedures for authorizing sewage sludge disposal. McDaniel, like the present 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 to regulate 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. 30 TEX.ADMIN.
CODE $5 285.50, 285.54, 285.57 (1998). A person who violates a rule is subject to a suit for
Mr. 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 of two occupations related to
on-site sewage facilities, it is reasonable 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 Texas Natural 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
