1. (a) If requested by an applicant for a production area authorization submitted after September 1, 2007, the executive director may use the recommendations from an independent third-party expert regarding the initial establishment of requirements pertaining to monitoring wells for any area covered by the application, provided:

   1. (1) the expert meets the qualifications in subsection (b) of this section;
   2. (2) the applicant for the production area authorization pays the cost of the work of the expert;
   3. (3) the applicant for the production area authorization is not involved in the selection of the expert or the direction of the work by the expert;
   4. (4) the recommendations of the independent third-party expert, in the opinion of the executive director, meet all applicable statutory and regulatory requirements for monitoring wells authorized under a production area authorization; and
   5. (5) the recommendations of the independent third-party expert, in the opinion of the executive director, are necessary for the protection of underground sources of drinking water or fresh water.

2. (b) In order to be considered for designation as an independent third-party expert, a person must be either a licensed professional engineer currently authorized to practice engineering in the State of Texas (unless exempted under the Texas Occupations Code, Chapter 1001, Subchapter B), or a licensed professional geoscientist currently authorized to practice geoscience in the State of Texas (unless exempted under Texas Occupations Code, §1002.252). In determining whether to designate a person as an independent third-party expert, the executive director also will consider the following:

   1. (1) the person's work experience in geology and hydrogeology, in particular the person's experience in the area of the proposed in situ mining operation;
   2. (2) the person's work experience related to in situ mining of uranium;
   3. (3) the person's current and previous work experience with the applicant;
   4. (4) the person's current and previous work experience with persons or entities that are in opposition to in situ uranium mining; and
   5. (5) any other factors that may be relevant to determine the person's objectivity regarding their function as an independent third-party expert.
3. (c) The executive director will not designate an independent third party expert for the purposes of subsection (a) of this section unless requested to do so in writing by the applicant.
4. (d) If the executive director determines that the recommendations from the designated independent third-party expert meet the requirements for the initial establishment of monitor wells in accordance with §331.103 of this title (relating to Production Area Monitor Wells), those recommendations will be incorporated into the production area authorization, and, in accordance with §55.201(i)(11)(B) of this title (relating to Requests for Reconsideration or Contested Case Hearing), in regards to the initial establishment of monitoring wells for the area covered by the requested authorization, no opportunity for a contested case hearing will exist.
5. (e) If the executive director determines that the recommendations from the designated independent third-party expert do not meet the requirements for the initial establishment of monitor wells in accordance §331.103 of this title, either in whole or in part, the application for a production area authorization will be subject to opportunity for contested case hearing, regardless of subsequent changes to the application.
6. (f) Any person may request to be considered an independent third-party expert under this section by submitting information to the executive director to demonstrate qualifications under this section.
7. (g) The use of an independent third-party expert qualified and approved under this section does not constitute the applicant's selection of the expert under subsection (a)(3) of this section.
8. (h) A person providing an independent third-party recommendation under this section shall not be an employee of the commission.

Source Note:The provisions of this §331.108 adopted to be effective March 12, 2009, 34 TexReg 1638.