Question 1: Under current law, would the Board of Water and Wastewater Operators Certification (the “Board”) violate Tenn. Code Ann. §§ 68-221-901, et seq. and its regulations, or any other law, if it contracts with a third-party testing service provider to use a standardized operator examination that does not contain any customized or state-specific regulatory questions, or that does not otherwise align with the classification system established in Tenn. Code Ann. § 68-221-907?

Opinion 1: Likely not. The Water and Wastewater Operator Certification Act and its regulations provide the Board with broad authority over operator examinations and do not specify what content must be covered by those examinations.

Question 2: Would a proposed amendment to Tenn. Code Ann. § 68-221-906 that prohibits the Board from entering into a contract, agreement, or other arrangement with a third-party regarding testing services for its operator certification program, including exam validation services performed by psychometricians, be constitutionally suspect under Contract Clause of the Tennessee Constitution, the Supremacy Clause of the United States Constitution, or other constitutional provisions?

Opinion 2: It depends. An amendment that operates prospectively likely would not raise constitutional concerns, but an amendment that operates retrospectively to abrogate existing contracts likely would raise constitutional concerns.

Question 3: Would such a state prohibition on third-party testing services pose a risk of violating the Safe Drinking Water Act and applicable regulations?

Opinion 3: Likely not.

Question 4: If the answer to Question 3 is yes, what is the likely effect of such a violation on funds allocated to the State from the Drinking Water State Revolving Fund Loan Program?

Opinion 4: In light of Opinion 3, this question is moot.