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 obtain 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 Pollution Control Board? 

"2. If a permit is required, then will the *o&fvities of the Water Pollution Control Board In enforcing 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 conceming 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 surface and underground waters to the Railroad Commission? 

“4. Would it be appropriate in view of this apE 

arent conflict of authority for the Kater Pollution 

ontrol Board to adopt a rule along the following 

lines I ‘In the event of any conflict between statutory provisions contained in Texas statutes or between 
. 

.* 

/.. . 

. 

. 

Boa, 0. 1. Bmallhorst, page 2 W-1465) 

i 

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 

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 betarben Section 5 of Article 762ia, V.c,S,, which 

re ufres 

u d 

‘Within twelve (12) months after the date 

n which this law becomes effective, every perem 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 discharge if it is his desira to so continue . , . ! 

end the examptlon of the Railroad Commission as 

oontalned in Bection 13, subsection c(4), of Article 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, prescribe 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 authority for water pollution control Is contained in paragraph 

(c)(b) of Section 10, which provides: 

m8Notwithstanding any provision of this Act, 

the Rellroad Cownieeion of Texas e 

hf 

11 and the 

Eorrd of Water Bngiaeere shell coat nue to exeroire 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), Vernon’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 

1955, codified as Article 

Re ular Session, 

60$9(a f.,f 

The obvious fact ascertainable from the above quotrd 

l xpresslon Is that the extant law of this State concerning the 

f 

rneral subject of water pollution and control consists of at 

east these three contemporaneous’statutes - Article 76216 relrtlng 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, 

ial to this opinion request. 

but these do not appear materArticle 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 prevent 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 irrigrtion 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 plugLmi . 

lng ;zitandoned wells in accordance with rules of the Railroad 

Section 2 of the statute Is an emergency clause and 

states that the fact that the functionsand operztlon? cf the Pailroad Commission are 80 closely related to the abatement and control 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 respect 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 authority or duty to grant licenses or permits to utilize any particular 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 authorized 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 digging, boring drilling, jetting driving or CAbOr-. 

wise and made for the purpose if injretfng transmit&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 combination 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 

village 9, communities, water districts and 

towns, 

o c her 

municipal corporations, which may cause or might reasonably 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 

Yerno~le 

The Legislature has provided In Section 6 of Article 10, 

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 

Secundum, page 

the rule slightly differently, 82 Corpus Jurls 

5 2 0, 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 general subject, as is the case here, the followin additional rule 

of construction stated in 82 Corpus Juris Secun 8 um, 

Section 366, shall be considered: 

page 801, 

“Statutes which relate to the same person or 

thing, or to the same class of persons or things, or 

which have a common purpose 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 constituting one law, and they should be harmonized, if possible . ” 
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 

fl 

public necessity that the Cocstitutional ule requfrfng bills to be read on three 

several days in each Douse be suspended, and this 

Rule Is hereby suspended.n 

The l*remedyll was the establishment of the Water Pollution Control Board in Article 7621d, together with the delegation 

of authority to the Railroad Commission and the Texas Water Commission 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 

the next step ie to ascertain whether the parts of the 3: 

of law, 

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 underground waters and lakes, heys, ponds, impounding 

reservoirs, springs, rivers, streams, creeks estuaries, 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, natural 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 

e 

laces, together with such ground water infiltraion and surface waters with which It may be commingled. The admixtube with sewage as above 

defined of 1ndustr1alwastes or other wastes, as 

herei&er doflnod, shall also be considered ‘sewage ( 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 deposit of waste into or adjacent to the waters of the 

State, or any act or omission in connection therewith, 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 injurious to public health, safety or welfare, or to 

terrestrial or aquatic life or the growth and 

4 

ropagation thereof, or to the use of such waters 

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 

P 

ermits to utilize any particular method of disposal of oil 

leld 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 injection wells utilized in the disposal of Industrial and municipal 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.:ssion and 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 

specifically includes: 

Pollution Control Act, which 

‘1. . c 011, tar, . a;:.<;-, chemlca;s, salt 

water’ and all other subsrscces not sewage or industrial 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 municlpal 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 defiaed by the Iagislrture In the’. XAter. :enabtid .MtM.d %21fl; Seetion 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 

3 

pOllution, the posesSiOn of such A permit would constitute a eiense 

pollution by A State agency. 

to a charge of 

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 pretion 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. 

By the same definition quoted Above the discbarge of 

, .~ WAAte Into or l d 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 Commlsslon 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 Pollution 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 

rtrtes 

stated in Attorney OenerAl Opinion No. WW-66, which 

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 AUthorlty 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 prevantlon. All three statutes ara found to be harmonious 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 exclurlve permit jurisdiction of the Texas Water Commission. Discharge Into or adjacect to the waters of 

the State of all industrial and ni;t.:clpal wastes, lneluding 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. 

?ltB:ms twb 

Yours very truly, 

WILL WIU3Ol4 

Attorney Generol of TeXAs 

. 
Hon. i),'F. ' Suallhorst, page 11 W-1465) 

APPROVED: 

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