Honorable D. F. Smallhorst
Bxecutive Secretary
‘Tom8 Water Pollution Control Board
llO0 West k9th Street
Austin, Texas
Opinion No. W-14-65
Re: Whether Article 76216, V.C.S.,
requires that 011 operators
who desire to dispose of oil
field brines, etc., must ob-
tain a permit from the Water
Pollution Control Board, and
related questions.
Dear kfr. Smallhorst:
We are in receipt 0:‘ your letter in which you request
the opinion of this office concerning the f ollowlng questions:
“1 . Under Article 7621d, V.C,S,,, is It required
that oil operators wishing to dispose of oil field
brines, etc, must obtain a Fermi.5 from the Water Pol-
lution Control Board?
"2. If a permit is required, then will the *o&f-
vities of the Water Pollution Control Board In enforc-
ing the conditions of the permit issiled infringe upon
the authoricy of the Xaiiroad Coahission under the
provisions of Article 6029a, V.C.S,?
“3. Would it be permissible under Article 76216,
V.C.B., and the exemption already m.&ioned concem-
ing the FLailroad Commission and llrtlcle 6029a, V.C.S.,
for the Weter Pollution Control Board to assign and
dale ate all responsibilities for the disposal of oil
fir1 x brines In such a manner as to protect the sur-
face and underground waters to the Railroad Commission?
“4. Would it be appropriate in view of this ap-
arent conflict of authority for the Kater Pollution
Eontrol Board to adopt a rule along the following
lines I ‘In the event of any conflict between statu-
tory provisions contained in Texas statutes or between
/.. .
. .
.*
.
Boa, 0. 1. Bmallhorst, page 2 W-1465)
provisions of these rules, the Board reserves the
right to proceed under that provision of the law
or rules, es appropriate, which in the opinion of
the Board is for the best interest of the Steta of
Texas and the citizens thereof.! This statement
xi ht eerve as a basis for the Board designeting
fu!l. reeponsibllity for the disposal of 011 field
i wastes to the llrilrcad Cmefesion in accordance
with Article 6029a V.C,S., and not requiring a
w from the bier Pollution Board.
w5. Since there is an apparent conflict be-
tarben Section 5 of Article 762ia, V.c,S,, which
re ufres ‘Within twelve (12) months after the date
u d n which this law becomes effective, every per-
em who upon such effective date is discharging
oz pemittlng to be diecIurged any waste into or
adjacent to the vetere of this State shall apply
to the Board for a permit to continue such dis-
charge if it is his desira to so continue . , . !
end the examptlon of the Railroad Commission as
oontalned in Bection 13, subsection c(4), of Arti-
cle 76216, V~COS., what Interpretation and policy
do you suggest0”
The water Plllutlon Control Board was created by House
bili 24 of the 57th Legislatza, codlfled as Article 7621d of
Vernon’s Civil Statutes. The rather broad scope of this act is
reflected in its caption:
_
“An Act to establish a State Eater Poilution
Control Board and to provide for the control,
prevention alad abatement of pollution of the
surface and uadergrouad waters of the State.
a . .”
Subsequent sections of the Act define terminology, pre-
scribe the establishment of the Wat.er Pollution Control Board,
prohibit pollution, spscify the Bvard’s regulatory powers and
enforcement procedures and establish penalties for pollution, A
moteble exception to the EIoard’s general responsibility and au-
thority for water pollution control Is contained in paragraph
(c)(b) of Section 10, which provides:
m8Notwithstandingany provision of this Act,
the Rellroad Cownieeion of Texas e 11 and the
Eorrd of Water Bngiaeere shell coathf nue to exer-
oire the authority granted to them In Chaptar 82,
Ae~e of the PiSty-eeventh LSgfSlAtUre, Regular
. .
:’
.
Boa.0. F. Smallhorst, page 3 m-1465)
Besslon, 1961, codified as Article 7621(b), Ver-
non’s Annotated Civil Statutes; and the Railroad
Commission of Texas shall continue to exercise
the authority granted it in Chapter 406, Acts of
the Fifty-fourth Legislature Re ular Session,
1955,codified as Article 60$9(a f.,f
The obvious fact ascertainable from the above quotrd
lxpresslon Is that the extant law of this State concerning the
rneral subject of water pollution and control consists of at
f east these three contemporaneous’statutes - Article 76216 re-
lrtlng to the Watter Pollution Control Eoard Article 6029(a)
rrlrting exclusively to the Railroad Commission of Texas aad
Article 7621b relating jointly to the Railroad Commission and
the Texas Water Commission. There are other statutes concerned
with water pollution and control, but these do not appear mater-
ial to this opinion request.
Article 6029(a) Is tha earliest in point of time and
ba&cally Is a two-paragraph statute. The first paragraph states
--
“The Railroad Commission shall also make and
enforce rules regulations and orders in connection
with the drlliing of exploratory wells and wells for
oil or gas or any purpose in connection therewith;
the production of oil or gas; and the operation,
abandonment and proper plugging of such wells to pre-
vent the pollution of the streams and public bodies
of surface water of the State, and a;ly sub-surface
watdr strata that are capable of producing water
,
suitable for domestic or livestock use, or for irri-
grtion of crops or for industrial use which would
Or might result from the escape or reieass of crude
petroleum oil, salt water or othm minerallred waters
fg~;tyhsuch well, or from operations la connection
.n
The second paragraph relates entirely to execution of bonds by
oil industry operators under certain aituatlons to insure plug-
. lng ;zitandoned wells in accordance with rules of the Railroad
Lmi .
Section 2 of the statute Is an emergency clause and
states that the fact that the functionsand operztlon? cf the Pail-
road Commission are 80 closely related to the abatement and con-
trol of surface and ground water pollution In this State, and the
wed for enforcement power in such matters by the Commission,
creates an emergency, etc. This clause emphasizes that which
Xon. D. ‘?O Smallhorst, page 4 W-1465)
seems clear from the language of the statute; namely, that the
Railroad Commission’s responsibility and authority in this re-
spect is to regulate the oil and gas industry so as to prevent
anything which would or might result in pollution of surface or
subsurface water.
The Railroad Commission apparently never has taken the
view that this particular statute gave the Commission the au-
thority or duty to grant licenses or permits to utilize any par-
ticular method of disposal of oil field wastes or to permit
pollution of any type or degree.
The prior administrative construction of Article 6029
(a) by the Railroad Corruzission apparently was recognized and
adopted by the 57th Legislature in Article 7621b, Vernon’s Civil
Statutes. In this statute, the Couuuission was specifically au-
thorized to issue permits, under certain specified conditions,
for injection wells having the purpose of disposal of salt water
or other wastes arising out of or Incidental to the drilling
for or the production of oil and gas. (Art. 7621b, Sec. 2-c).
The same statute grants a similar authority to the Texas Water
Commission to permit injection v!ells for the disposal of other
industrial acd municipal wastes 1 (Art. 7621b, Sec. 2-b).
Section l(h) of Art’icle 7621’0 defines an injection
well, .as follows:
‘I ‘Injection well ’ is an artificial excavation
or opening into the ground, made by means of dig-
ging, boring drilling, jetting driving or CAbOr-.
wise and made for the purpose if injretfng trans-
mit&g, or disposing of industrial and muajcipal
vastr into a subsurface stratum. An Injection
wrll shall also include wells Initially drilled for
the purpcse of producing oil and gas when used for
the purpose of transmitting, fnjocting, or disposing
of. Industrial and municipal waste into a subsurface
stkatu6. -11 not include u
Thr term 3nduatrial and mun:cipal waste” is defined in
Election l(e) of Article 7621b, as follows:
a ‘Industrial and municipal waste I is any liquid,
gaarous, solid or other waste substance or a combina-
tion thereof resulting from any process of industry,
manufacturing, trace, or business Ugl..$&.!m
Or FeSUltiIlg fp~~ the
Hon. D. F. Smallhorst, page 5 W-1465)
disposal of sewage or other wastes of cities towns,
village 9, communities, water districts and o cher
municipal corporations, which may cause or might rea-
sonably be expected to cause pollution of fresh water.”
(Emphasis added).
Both the extent and limit of the Railroad Commission’s
and the Texas ‘&ter Commlssion~s responsibility and authority in
this respect are demonstrated by these definitions. And plainly
Ytcepted from the permit jurisdiction of both agencies is “any
marface pit, excavation or natural depression used to dispose of
industrial and municipal waste,” which includes waste from the
Oil end gas Industry.
Turning now to the request for opinion we find that
each question submitted presupposes that a confljct does or may
exist between the responsibility and authority granted by the
ihrr; contemporaneous statutes to the respective agencies of the
The Legislature has provided In Section 6 of Article 10,
Yerno~le Civil Statutes, that the following rule shall govern in
the construction of civil statutes:
“In all Interpretations, the court shell look
diligently for the intention of the Legislature,
keeping in view at all times the old law, the evil
and the remedy. It
Statin the rule slightly differently, 82 Corpus Jurls
Secundum, page 520, Section 321, provides1
“The fundamental rule of statutory construction
is to ascertain and, if possible, give effect to the
Intention or purpose of the legislature as expressed
In the statute.”
Where contemporaneous statutes relate to the same gen-
eral subject, as is the case here, the followin additional rule
of construction stated in 82 Corpus Juris Secun8 um, page 801,
Section 366, shall be considered:
“Statutes which relate to the same person or
thing, or to the same class of persons or things, or
which have a commonpurpose are in pari materla and
it is a general rule that in the construction o# a
particular statute, or in the interpretation of its
provisions, all other statutes In pari materla should
be read In connection with it, as together constitut-
ing one law, and they should be harmonized, if possi-
ble . ”
r . . .
Ron. 0. 8. Smallhorst, page 6 (WW-1465)
Adverting to these rules of statutory conrtructfon
and the three statutes concerned with the same subject matter,
VI observe that reference is made to the “old law” and the
fieoile in Sectlon 18 of Article 76216, There the Legislature
stated:
Vho fact that pollution of the surface and
underground waters of this State constitutes a
serious health and sanitation problem which should
be corrected without delay and the further fact
that there is an urgent need that some State agency
be given the authority to give a prospective new
Industry a definite answer in regard to what it can
do in disposing of its effluent create an emergency
and an im erative public necessity that the Cocsti-
tutional flule requfrfng bills to be read on three
several days in each Douse be suspended, and this
Rule Is hereby suspended.n
The l*remedyllwas the establishment of the Water Pollu-
tion Control Board in Article 7621d, together with the delegation
of authority to the Railroad Commission and the Texas Water Com-
mission la Article 7621b to Issue permits for Injection wrllr
utlllaed in the dieposal of industrial and municipal wastes.
Considering each of the three contemporaneous statutes
to be In pari materia and together constituting one bod of law,
the next step ie to ascertain whether the parts of the 3:ody of
law are harmonious. Section 4(a) of Arrzcle 76216, the Water
Pollution CoPkroi Act, states that the Water Pollution Control
Board ehall administer the Act and have the authority to abate and
prevent pollution of the waters of the State under the conditions
prercrlbed in the Act. Section k(b) states thet the Board, after
notice to affected parties, and public hearing, may issue permits
foot;he discharge of waste into or adjacent to the waters of the
0
The pertinent terms to which this authority Is directed
are defined in Section 2 of the Act, as follows:
o “(b) ‘WatersV shall be construed to be under-
ground waters and lakes, heys, ponds, impounding
reservoirs, springs, rivers, streams, creeks estu-
aries, marshes, irLlets, canals, t.he Gulf of Mexico
within the territorial limits of the State of Texas,
and all other public bodies of surface water, natu-
ral or artificial, inland or coastal, fresh or salt,
that are wholly or partially within or bordering
the Etatr or within Its jurisdiction.
. . . .
Eon. D. F. Smallhorst, page 7 (WW-1465)
“62) ‘Waste I means sewage, industrial waste,
and other wastes, or any of them, as hereinbelow
defined.
‘l(d) ‘Sewage I means the water-carried human
or animal wastes from resldences,buildings, indusd
trial establishments, cities, towns, or other
laces, together with such ground water infiltra-
e ion and surface waters with which It may be com-
mingled. The admixtube with sewage as above
defined of 1ndustr1alwastes or other wastes, as
herei&er doflnod, shall also be considered ‘sew-
age ( within the meaning of this Act.
‘t(e) ‘Industrial waste’ means any water-borne
liquid, gaseous, solid, or other waste substance
or a combinetion thereof resulting ,from any procers
of industry, menufacturing, trade, or business.
“(f) ‘Other wastes’ means garbage, refuse,
decayed wood, sawdust, shavings, bark, sand, lime,
cinders ashes, offal, oil, tar, dye stuffs, acids
chemlcais, salt water, and all other substances no?,
sewage or industrial waste that may cause or tend
to cause pollution of the waters of the State.
“(6) ‘Pollution’ means any discharge or depo-
sit of waste into or adjacent to the waters of the
State, or any act or omission in connection there-
with, that by itself, or in conjunction with any
other act or omission or acts or omissions, causes
or continues to cause or will cause such waters to
be unclean, noxious, odorous, impure, contaminated,
altered or otherwise affected to such an extent
that they are rendered harmful detrimental or in-
jurious to public health, safety or welfare, or to
terrestrial or aquatic life or the growth and
ropagation thereof, or to the use of such waters
4 or domestic, commercial, industrial, agricultural,
recreational or other lawful reasonable use. I*
The first question propounded is es follows:
YJnder Article 7621d, V.C.S., is It required ’
that oil operators wishing to dispose of oil field
brines etc. met obtain a permit from the Water
Pollution Control Board?*
.
1.’ Eon. D. F. Smallhorst, page 8 (W-1465)
As has been pointed out previously, Article 6029(a)
does not authorize the Railroad Commission to gant licenses or
ermits to utilize any particular method of disposal of oil
Pleld wastes. Consequently, the exclusion of the Commission’s
authority under this statute from the provisions of the Water
Pollution Control Act does not deny the permit jurisdiction of
the Water Pollution Control Board over the disposal of 011 field
brines, etc.) if such jurisdiction otherwise exists in the Act.
Dy the express language of the exception contained in paragraph
(c) (4) of Article 7621d, however, the issuance of permits for in-
jection wells utilized in the disposal of Industrial and munici-
pal wastes in accordance with Article 7621b is committed to the
jurisdiction of the Railroad Commission and the Texas Water
Commission. Since the statutory dafiritlon of an injection well
specifically excludes “any surface pit, excavation or natural
depression used to dispose of lndustrlal and municipal waste,**
disposal of wastes utilizing these methods is not within the per-
~~~~;~;iction of the Railroad Comm.:ssionand the Texas Water
r
On the other hand, CL field brines, etc., must surely
, be within the all inclusive deflniticn of “Other wastes” con-
.. tained in Section 2(f) of the Water Pollution Control Act, which
specifically includes:
‘1. . c 011, tar, . a;:.<;-, chemlca;s, salt
water’ and all other subsrscces not sewage or indus-
trial waste that may Oause or tend to cause pollution
of the waters of the Stat+ It
In answer to your first, question, therefore, we are of
the opinion that the discharge of oii flaid brines, etc., into
or adjacent to the waters of the State, as defined in Section 2
(b) of Article 7621d, that may :BGS~ jr tend to cause pollution,
as defined in Section 2(g) of Ar’icie 7621d, of the waters of
the State, shall be unlawful on and after the effective date of
the Water Pollution Control Act unless 7;he same shall be done
pursuant to and in accordan:? .:lth a :he:l-exissirg permit issued
by the Water Pollution Contra; Esard Excepted from this answer
and the jurisdiction of the Board 1s the issuance of permits for
injection wells utilized in the dlsppsal of industrial and muni-
clpal wastes, RS defined in Article 7621~
Your second question rcquiras whether the activities of
the V!ater Pollution Control Board In enforclng the conditions of
a parrnit issued for the disposal of oil field brines, etc., would
Infringe upon the authority of the Railroad Commission under the
provisions of Article 6029(a). As previously dl.scussed in this
~ opinion, Article 6029(a) authorizes the Commission to make and
. . . ..
Eoa. 0. F. Smallhorst, page 9 WU-1465)
enforce rules, regulations and orders In connection with the
discovery ard production of oil and 0~s so as to prevept the
pollution of surface end su3surface water, which would or might
result from the escape or release of crude petroleum 011, salt
UAtAr or other mineralized WAtArs. But pO~ution hrs been de-
fiaed by the Iagislrture In the’. XAter. :enabtid .MtM.d %21fl; See-
tion 9, AS follwst
The Legfslature having thus defined the dischugo of
wAste into wrters of the State pursuant to and In accordance with
A then-existing permit A* not aonstltutl pOllution, the poses-
SiOn of such A permit would constitute a3 eiense to a charge of
pollution by A State agency. We digress here sufficiently to
nOtA that the provision of Section 14 of Article 76216, which
strtes that %a permlt Issued by the Water Pollution Control
Eioard shall be Admissible in evidence against nor raise any pre-
tion AgAinst the AXOrcise Of the power and Authority of water
E&i&s la pollution control * Apparently was Intended to deny
thU defense AS AgAlnst river khorltles rnd water districts.
, .~WAAteIntoBy the same definition quoted Above the discbarge of
o r ld acent to the waters of the S&e without A per-
‘mit or pursurnt t 0 brtt not in Accordance with A permit would
constitute unl~viul pollution. Mers the pollution under either
circumstance occurs as a result of the discovery and production
of 011 and gas, both the enforcement power of the Flailroad Com-
mlsslon pursuant to Article 6029(a) and the Water Pollution
Control BoArd pursuant to Article 7621d could be utilized to
Abate the pollution. No reason Is perceived why the existence
of A dual enforctment power should conflict with or Infringe
up0a the responsibility and authority of either agency.
Your third question Inquires whether the Water Pollu-
tion Control Board could assign And delegate all reS~nSlbllltiAS
to the Ftailroad Commlsslon for the disposal of 011 field brines
In such A manner AS to protect surface and underground waters.
We answer this question In the negative for the shame
reason stated in Attorney OenerAl Opinion No. WW-66, which
rtrtes t
- . . .
. bn. 0. F. Bmallhorst, page 10 Nl~L1465)
“It 18 A general rule that public duties must
be performed and goverrunental powers exercised by
t&e public offlclAl or body designated by lew.
Such duties Are In the aature of a public trust And .
Your fourth And fifth questions are both predlcAted
upon m.Apparent conflict between the responsiblllty And AU-
thorlty of the Wllroad Commission pursuant to Article 6029(~)
Aad the Water Pollution Control Board ;;ursuant to Article ,
7621d. Having found no conflict between the two StAtutes, there
IA no occasion or need to answer questlons four And flve.
The provisions of Art.icles 6029(a), 7621b and
762ld of Vernon’s Clvll Statutes are in par1 materla
end should be read together as cccstituting one body
Of law relating to water po~lutior. cootrol And pre-
vantlon. All three statutes ara found to be harmon-
ious when correctly construed.
Disposal through Injection wells of wastes from
the dlscovery and production of oil and gas Is under
the exclusive permit jurisdiction of the Railroad
(;oma!issfon; disposal through injection wells of any
other lndtistrlal and municipal waste is under the ex-
clurlve permit jurisdiction of the Texas Water Com-
mission. Discharge Into or adjacect to the waters of
the State of all industrial and ni;t.:clpal wastes, ln-
eluding buz not limited to waste from the 011 and gae
industry, by any Peons Other than z?jectlon wells
must be pursuant to end In ascordance wlth a permit
lssued by the Water PoUutfon Control Board.
Yours very truly,
WILLWIU3Ol4
Attorney Generol of TeXAs
?ltB:ms twb
.
Hon. i),'F.
' Suallhorst, page 11 W-1465)
APPROVED:
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