08 Nov, 2018
By AIPG-TX News

UPDATE on SunSet Commission Activities

UPDATE (Details)

New Information (November 19, 2018) from TBPG on the Sunset decision: (here).

Based on information provided by Henry Wise, AIPG Texas Section President, who was present in Austin for the Sunset decision along with members representing the Texas Geoscience Council and the HGS, and others, the following are the details behind the Sunset Advisory Commission’s decision, which also contains 12 recommendations to the TBPG:

1) The first vote, which failed with 8 No to 4 Yes, was to abolish the Texas Board of Professional Geoscientists (TBPG) and transfer the regulation of geoscientists to the Texas Board of Professional Engineers (TBPE) by September 1, 2020. In the modified proposal that was voted on, geoscientists would have only had an advisory committee to the TBPE, not Board representation.

2) The second vote to continue the TBPG for another 6 years, until September 1, 2025, while implementing 12 recommendations passed by 10 Yes to 2 No.

Here are the recommendations that the TBPG must implement. They seem to be directed at reducing “government interference in business”.  They appear to be tolerable considering the alternatives to either abolish the TBPG, or fold geoscientists into the TBPE.

They are:

  1. Eliminate the statutory notarization requirement for individuals applying for the professional geoscientist license.
  2. Eliminate the letter of reference requirement for individuals applying for a professional geoscientist license.
  3. Direct the board to eliminate the letter of reference requirement for individuals applying to register as a geoscientist-in-training. (Management action – non-statutory)
  4. Direct the board to discontinue geoscience firm registration. (Management action – non-statutory)
  5. Direct the board to cease routinely opening unlicensed public practice complaints against expired licensees who failed to timely renew. (Management action – non-statutory)
  6. Direct the board to further develop policies guiding the administrative dismissal of complaints by staff, specifically to provide staff clear direction to handle continuing education complaints unless aggravating circumstances require board involvement. (Management action – non-statutory)
  7. Direct the board to publish its penalty matrix on its website. (Management action – non-statutory)
  8. Apply the Sunset across-the-board recommendation to provide that the governor designates the presiding officer of the board to provide a direct line of accountability between the board chair and the governor.
  9. Apply the Sunset across-the-board recommendation to require the agency to develop a training manual that each board member attests to receiving annually, and require existing board member training to include information about the scope of and limitations of the board’s rule-making authority, including potentially anticompetitive behavior.
  10. Apply the Sunset across-the-board recommendation regarding complaint processing for complaints against the board.
  11. Apply the Sunset across-the-board recommendation regarding alternative dispute resolution.
  12. Amend Texas Occupations Code, Section 1002.452 to increase the board’s maximum administrative penalty amount from $100 to $1,500 per day for each violation. The application of the maximum penalty should be limited to only the most serious offenses.

The Texas Geoscience Practice Act (Texas Occupations Code Chapter 1002), which authorized the establishment of the Texas Board of Professional Geoscientists and licensing of geoscientists must be reauthorized in the next legislative session, beginning January 8, 2019, ending May 27, 2019. If the Act is not reauthorized, the TBPG will by default be abolished. So the next hurdle is to inform all legislators about what geoscientists do and the importance of licensing to those geoscientists who work in areas that protect public health, safety, the environment and Texas natural resources, as we ask them to reauthorize the Act.. This will entail visits and contact with all State Legislators. The Texas Geoscience Council is preparing a booklet to leave with legislators, which will reinforce the message of our profession’s importance to the citizens of Texas.

New information (November 14, 2018) from Wes McCoy of the TBPG: “Sunset Advisory Commission just voted 10 – 2 to continue the TBPG “as is” for another 6 years.  Now we’ll be tracking the re-authorization process through the legislative session.”

New Information (November 12, 2018) from the Texas Geoscience Council on Sunset Advisory Commission Activities (here).

New Information (November 8,2018): Sunset Advisory Commission Website.

Sunset Review Information

On August 30, 2018, the Sunset Public Hearing was held. TBPG Board members and staff gave presentations at the Sunset Advisory Commission Hearing held at the state capitol on August 30, 2018. There was good public attendance and the support for licensing of Geoscientists in Texas was evident. The Sunset Advisory Commission will continue to accept public comments until it issues its final recommendation in November. The TBPG continues to provide information to the Sunset Advisory Commission, as requested.

November 14-15, 2018: Sunset Decision Hearing

The Sunset Decision Hearing will be held to determine, based on public input and response received, what the Sunset Advisory Commission will recommend regarding the future of the regulation of geoscience in Texas.

Here is a link to the Sunset Advisory Commission Website to read the report, view public comments submitted, or for further information about the review.

Frequently Asked Question regarding TBPG’s Sunset Review:

Should I renew my license?

Geoscience licensure regulation continues at least through August 31, 2019. If you plan to offer or perform non-exempt geoscience work for the public in Texas during this time period, YES, you should renew your license or registration.

SunSet Commission Claims The Texas Board of Professional Geologists (and all PGs) Do Not Protect State Health, Safety, and Welfare

Background

As some of you are aware… the Texas Sunset Advisory Commission (SAC) has submitted a recommendation that the Texas Board of Professional Geologists be abolished because they claim that our P.G. and Board have nothing to do with public health, safety, and welfare… so we have to defend the Texas Board Professional Geoscientists’ Objectives on their behalf, and we need your help and financial support to accomplish it. There is no choice.

AIPG National Office weighs in on SunSet Commission’s view (Here).

Texas P.G. Licensure Defense Action Items:

Act before it’s too late!

Three Action Items to Complete Now:

As most of you are aware, if the SunSet Commission view is not changed, that group will end Professional Geoscientist Licensure in Texas.

The Texas Section of the AIPG joins with the SEG, HGS, AGS, and the TAPG, and other groups on the position that the SAC recommendation is based on erroneous assumptions and will put the health, safety, and welfare of all Texans at risk while adding undue burden and expense to all levels of Texas government. Visit the SAC webpage.

As a member of AIPG and as many of you hold a P.G., this is what you can do to help make sure the SAC recommendation is not implemented by the Texas Legislature. There are three critical, short-term action items that will make a big contribution toward the Texas P.G. licensure battle:

  1. End-User Letters – It is very important for the SAC to hear from as many end-users of P.G. services as possible. End users may include a wide variety of government subdivisions, developers, engineering firms, financial institutions, members of the public, groundwater users, etc. Letters from end-users/clients are likely the single most important communication that can influence the outcome of this battle. All comments to be included in the SAC August 29-30 hearing packet must be submitted by August 16, 2018. Comments can still be submitted after this date but they will not be included in the SAC hearing packet. The pertinent addresses and a link to the comment form are included below along with bullet points to be considered when drafting comments/letters.
    Example Letters: /Collected_responses_to_Sunset_Commission.pdf
    More Examples: /Model_Response_Texas Sunset Advisory Commission.pdf
  2. P.G., G.I.T., and Student Letters – Please submit your personal comments as a geoscientist to the SAC. It is important for you to submit your own evaluation of the SAC recommendations. Potential talking points are provided below. All comments to be included in the SAC August 29-30 hearing packet must be submitted by August 16, 2018. Comments can still be submitted after this date but they will not be included in the SAC hearing packet. The pertinent addresses and a link to the comment form are included below along with bullet points to be considered when drafting comments or your letters.
  3. Donate Now – The AIPG Texas Chapter is working with a coalition of Texas geoscience organizations (AIPG, AGS, HGS, TAPG, Hydro Working Group) to hire a public affairs firm to help direct or efforts toward communicating with the SAC, the legislature, and the public. Click on the donation button below to contribute to the licensure fund (consult your tax professional to determine whether the donation is tax deductible). The public affairs firm and associated expenses could amount to more than $70,000.00 over the next ten months as the legislative cycle progresses. Please consider a generous monthly contribution of $100 or more. We can do this!  The group has come together to form the Texas Geoscience Council to provide oversight to the funding activities and of the lobbyist we engage to further the goals of the geological profession in Texas.

One final note… Please keep track of the number of hours you spend dealing with this issue as it moves forward. It may come in handy when trying to quantify the immediate economic impact of the SACs recommendation – especially on small businesses.

More to come. Please forward this post to every Texas P.G./G.I.T./Geology Student that you know. Let’s hope we can all come together on this matter.

Henry M. Wise, P.G.
President, Texas Section AIPG




Where to Submit Your Comments:

You can mail a hard copy of your comments to the SAC at:

Morgan Constantino
Sunset Advisory Commission
PO Box 13066
Austin, TX 78711
Email: sunset@sunset.texas.gov

or, submit your comments via the SAC comment form by clicking the link below and choosing “Texas Board of Professional Geoscientists (TBPG)” in the dropdown list:

The AEG, AIPG, HGS, AGS, and other groups support these General Suggestions for Comments (and Public Discussion):

  1. Keep it positive.
  2. Stick to the facts.
  3. Check your facts.
  4. Do not try to place blame on any individual or organization.
  5. Steer clear of conspiracy theories.
  6. Remember your audience. The folks on the SAC are not geologists.
  7. Cite concrete examples. Theoretical benefits do not carry as much weight.

Open the SAC Public Comment Form

Points Made in the SAC Recommendation with Notes:

These comments have been borrowed (cut and pasted) from many emails and white papers compiled by members of the AEG, AIPG, AGS, HGS, and other Texas geoscientists. Many unselfish geoscientists are working hard behind the scenes right now to ensure that the SAC recommendations are not implemented. This information should give you a few points to think about as you craft your comments and help clients/end users develop theirs. Note that these comments represent the opinions of their authors and not the position of the AEG or any other organization listed above.

  1. No complaints have been brought by the public, and history shows that there was no demand from the public to create the agency in the first place. – Get creative on this one. Did the public request the creation of the Texas Board of Architectural Examiners?
  2. There has been no measurable impact of Geoscientist licensing on public protection. – A) It is inherently difficult to point to measurable impacts in geoscience that occur on a rapid time scale. There are certainly areas where catastrophic events can occur with bad geoscience work (subsidence, sinkhole collapse, geotech, etc.) that some can point to. In the world of water availability, impacts can take decades to develop. Unlike a bridge or building collapse that one can clearly point to, geologic impacts are inherently slow-moving. The public is entitled to standards of practice of geoscientists that REQUIRE the public’s interests are evaluated and considered in geoscience work regardless of the time scale of impact. Remove the license and there is no vehicle to keep the public’s interests at the forefront of geoscience work, nor a mechanism to police or keep out bad actors. B) Geologists have been involved in nearly all areas of water-resource planning, management, and development for many years, especially since the passage of Senate Bill 1 in 1997. Geologists (hydrogeologists) have been developers of conceptual and numerical models of groundwater flow systems and groundwater availability, as required by the State for all of Texas’ water-planning regions. This work has been fundamental to the State’s development of strategies to ensure that groundwater will be a sustainable resource for all Texans over the next 50 years. ALL Texans are beneficiaries (direct and indirect) of this work by geologists. Furthermore, geologists assume leading roles in assessments of soil and groundwater contamination, remediation of contaminated sites, and in the assessment of sites for the disposal of municipal and hazardous wastes, including radioactive wastes. There is also the work of qualified geologists with respect to assessments of coastal subsidence and erosion, and the stability of substrates for construction of roads and large private and public-works projects.
  3. The Board was not established in the first place to protect the Public, but primarily “to legitimize the profession” and to protect Geoscientists from the engineers and from untrained competitors. – A) Even if this statement is true in some respects however, rather dissolve the agency and the standards of geoscience practice, the report should recommend ways to improve meaningful enforcement. For example, perhaps make the rules clearer about conflicts of interest and the public interest. Is the language of enforcement of standards ambiguous? B) This sounds more like an uninformed opinion than anything based on a reasonable grasp of factors that motivated geologists to seek licensure in Texas. It is difficult to respond to the above comment without reference to specific factors that Sunset Commission’s staff considered in its report to the Commission. In our negotiations with engineers in 2001, we noted that there is a clear need to partition “risk” on projects involving geological and engineering components. In a document produced in support |of the licensure effort, we cited many instances of geologically-induced failures of engineering projects… all of which have had great significance for public safety, health, and welfare. Licensing geologists would remove engineers from liability for failure traceable to geological factors for which engineers do not have the background/experience to render professional assessments. The objective was not to “protect geoscientists from engineers”… but to add the perspective of the geologist, along with the assumption of liability where that liability rightfully belongs. It is inherently difficult to point to measurable impacts in geoscience that occur on a rapid time scale. There are certainly areas where catastrophic events can occur with bad geoscience work (subsidence, sinkhole collapse, geotech, etc.) that some can point to. In the world of water availability, impacts can take decades to develop. Unlike a bridge or building collapse that one can clearly point to, geologic impacts are inherently slow-moving. The public is entitled to standards of practice of geoscientists that REQUIRE the public’s interests are evaluated and considered in geoscience work regardless of the time scale of impact. Remove the license and I there is no vehicle to keep the public’s interests at the forefront of geoscience work, nor a mechanism to police or keep out bad actors. With respect to protection from “untrained competitors”… that is what licensure in any area of professional services is intended to ensure.
  4. Almost no geologists deal directly with the public – our clients are mainly organizations. Therefore licensing is not necessary for public protection. – Geologists deal with a broad cross-section of clients in the public and private sectors. Both public-sector and private-sector clients seek services from qualified professional geologists, especially where such services involve reports submitted to local, county, and state agencies, or in matters involving assessments of investment for development of land and energy or mineral resources or the valuation of groundwater for development of public supply, or assessments of land for disposal of hazardous waste (commercial and municipal). The PG credential clearly identifies the individual who assumes responsible charge for such work and ensures that all such work is conducted in accordance with established professional standards.
  5. There are too many (50%) Texas geologists who are exempted from the requirement to get a license. – When we wrote what became the geoscientist licensure bill, we adopted the exemptions that were granted by all other states at that time. In all such cases, geologists whose work did not involve matters of public safety, health, and welfare were exempt from regulation. This included geologists employed in mining, in oil and gas exploration and development, and geologists employed by state or national agencies such as the US Geological Survey, the US EPA, the US Bureau of Land Management, etc. The number of geologists working in the oil and gas industry of Texas is not a factor that should bear any weight in the assessment of geoscientists’ licensure program because they are, by definition, not involved in matters of public safety, health, and welfare. Geologists who work in the private sector and who deal with the effects of oil and gas, mining, construction, etc. bear that liability.
  6. No meaningful enforcement action over the life of the Board. – (quoted discussion regarding the current license on probation) – I think it actually demonstrates a process that works, albeit imperfect. There was clearly a report of misconduct in this case, and the board considered the evidence and took an action. In your example, I don’t think there was a criminal conviction or indictment–as such, without the PG Board notice of probation, as indicated on the website, would anyone know of this infraction?  You and others may feel that probation was insufficient–and I might agree too, if I knew all the facts–but just because you don’t like that outcome doesn’t make the agency and its mission invalid. I disagree with the Supreme Court decisions all the time, but still see the need for it to exist. Instead, I would argue that the Sunset should make recommendations to improve it’s enforcement and standards. Let’s raise the bar rather than get rid of it.
  7. More direct oversight of geoscientists’ work is provided by other state agencies’ (Texas RRC, TCEQ), which renders ongoing state regulation of geoscientists unnecessary to protect the public. – The PG credential establishes a common (that is, across the board) basis for assessing the qualifications of geoscientists to assume LIABILITY for work conducted for clients in the private sector and in the public sector. This eliminates the necessity of defining fundamental credentials on an agency-by-agency basis. It does not eliminate the ability of an agency to require additional certification for specific objectives.
  8. 78% of CURRENT Texas PGs were Grandfathered, therefore did not take ASBOG, therefore there is no guarantee that they are, in fact, well-trained. – A) Grandfathering is a fact of life for any licensing program enacted by any state. This was a central factor in our discussions when we wrote the licensure bill in 2001. The standards for qualification as a grandfathered licensee or as a future applicant for licensure were based on the certification requirements established in 1963 by the American Institute of Professional Geologists (AIPG). In fact, all PG licensure programs established after 1963 are based on AIPG standards. Grandfathered geologists in Texas were typically practitioners who had accumulated years of experience well in excess of the AIPG standard in the public sector or in the private sector, and many held advanced degrees. B) This is a disingenuous comment that simply ignores the reality of implementing a license in 2001 on a profession and it’s practitioners. The act fully understood this was going to be the case initially, but would change over time. Those statistics will be flipped in the next 20 years as practicing grandfathered geologists retire. Also, note that in order to be grandfathered there was minimum standards of education, experience, and professional and personal references in addition to other standards that had to be satisfied. I would say there was vetting to be grandfathered… just maybe not “extreme vetting”).
  9. The licensee population is steadily declining, from 6,600 in 2003 to 4200 in 2017. – The decline in PGs from 6,600 to 4,200 between 2003 and 2017 is likely attributed to grand-fathered geoscientists dropping their license or retiring. From 2009 to 2018, the number of PG’s older than 65 has increased from 301 to 808 indicating greater than 20% of the current PGs are nearing retirement age. Approximately 1,400 geologists didn’t renew their license during 2007-2008 because they had been laid off and had to cut back on their expenses. Since they were exempt from the regulation, because they were in O&G field, they didn’t renew their license. As of 2018, 2,632 PGs are older than 55, which accounts for greater than 65% of the licensed geoscientists in Texas. New PGs are not currently replacing retiring geoscientists at a sustainable rate due to the significant downturn in the geoscience industry following the downturn in the oil and gas industry in 2014. This caused a decline in available job opportunities as well as a decline in applied geoscience enrollment in universities.
  10. Less restrictive means exist to ensure the safe practice of geoscience (i.e. certification by AIPG, AEG, AAPG, etc.). – None of the above-listed organizations has statutory authority to enforce continuing education requirements or disciplinary actions on geoscientists in Texas or in any other state. They exist to establish credentials for professional certification for members of different voluntary organizations, not to act as regulatory agents for the state.
  11. Only “Just over half of the states regulate the practice of geoscience or geology, while all states regulate engineers and architects.” The first state to regulate engineers was Wyoming in 1907. The last was Montana, in 1947. It took 40 years to get 100% participation. These things don’t happen overnight. As of 2018, 32 states and the protectorate of Puerto Rico regulate the practice of geoscience. This is 65 percent of the 50 states and Puerto Rico…, which is a bit more than “just over half”. States which have chosen not to regulate the practice of geology have done so for reasons unrelated to those of the 32 states and Puerto Rico (e.g., small numbers of geologists working in private practice related to public safety, health, and welfare) … reasons which are unrelated to factors that drove the Legislature of Texas to enact the geoscientist licensure bill in 2001. Texas is in charge of its own affairs and of its own destiny. It need not look to decisions elsewhere to decide how to regulate professions in Texas.

Upcoming – Important Dates

  • August 16, 2018 – Comments to be included in the hearing packet are due. See “Where to Submit Your Comments,” above.
  • August 29 or 30, 2018 -The SAC will present it’s recommendation at a public hearing and hear public testimony. Date and time will be announced prior to the meeting date.