Honorable D. F. Smallhorst

Bxecutive Secretary

‘Tom8 Water Pollution Control Board llO0 West k9th Street Austin, Texas Opinion No.

### W-14-65 Re: WhetherArticle 76216, V.C.S., requires that 011 operators whodesire to dispose of oil field brines, etc., must obtain a permit from the Water Pollution Control Board, and related questions. Dear kfr. Smallhorst:

Weare in receipt 0:‘ your letter in which you request the opinion of this office concerning the followlng questions:

“1

. UnderArticle 7621d, V.C,S,,, is It required that oil operators wishing to dispose of oil field brines, etc, must obtain a Fermi.5from 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. Wouldit be permissible underArticle 76216, V.C.B., andthe exemption already m.&ioned conceming the FLailroadCommissionandllrtlcle 6029a, V.C.S., for the Weter Pollution Control Boardto assign and dale ate all responsibilities for the disposal of oil fir1 x brines In such a manneras to protect the surface andundergroundwaters to the Railroad Commission?
“4. Wouldit be appropriate in view 

### of this apE arent conflict of authority for the Kater Pollution ontrol Boardto 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 Boarddesigneting 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 betarbenSection 5 of Article 762ia, V.c,S,, which 

### re ufres ud ‘Within twelve (12) monthsafter the date nwhich this law becomes effective, every perem whouponsuch effective date is discharging oz pemittlng 

### to be diecIurged any waste into or adjacent to thevetere 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 Commissionas oontalned in Bection 13, subsection c(4), of Article 76216, V~COS., what Interpretation and policy doyou suggest0

” Thewater Plllutlon Control Boardwas 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:

_ “AnAct to establish a State Eater Poilution Control Board and to provide for the control, prevention aladabatement of pollution of the surface anduadergrouad waters of the State. ” a
. . Subsequent sections of the Act define terminology, prescribe the establishment of the Wat.erPollution Control Board, prohibit pollution, spscify the Bvard’s regulatory powers and enforcement procedures andestablish 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 ehf 11 and the Eorrd of Water

### Bngiaeere shell coat nue to 

### exeroire the authority granted to themIn 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 Reular Session, 60$9(af.,f Theobvious fact ascertainable from the above quotrd l xpresslon Is that the extant law of this State concerning the frneral subject of water pollution and control consists of at east these three contemporaneous’statutes - Article 76216relrtlng to the Watter Pollution Control Eoard Article 6029(a) rrlrting exclusively to the Railroad Commissionof Texas aad Article 7621b relating jointly to the Railroad Commissionand 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. Thefirst paragraph states

--

“The Railroad Commissionshall also makeand enforce rules regulations and orders in connection with the drlliing of exploratory wells andwells for oil or gas or any purpose in connection therewith; the production of oil or gas; and the operation, abandonmentandproper plugging of suchwells 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 whichwould Ormight 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 Commissionare 80 closely related to the abatement and control of surface andgroundwater pollution In this State, and the wed for enforcement power in suchmatters by the Commission, creates an emergency, etc. This clause emphasizes that which ,Xon. D.‘?O Smallhorst, page 4 W-1465)

seemsclear from the language of the statute; namely, that the Railroad Commission’s responsibility andauthority in this respect is to regulate the oil andgas industry so as to prevent anything which would or might result in pollution of surface or subsurface water.

TheRailroad Commissionapparently never has taken the view that this particular statute gave the Commissionthe authority or duty to grant licenses or permits to utilize any particular methodof disposal of oil field wastes or to permit pollution of anytype or degree.

Theprior administrative construction of Article 6029 (a) by the Railroad Corruzissionapparently wasrecognized and adopted by the 57th Legislature in Article 7621b, Vernon’s Civil Statutes. In this statute, the Couuuissionwas 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 andgas. (Art. 7621b, Sec. 2-c). Thesamestatute 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 7621’0defines an injection well, .asfollows:

‘I‘Injection well ’ is an artificial excavation or opening into the ground, madeby meansof digging, boring drilling, jetting driving or CAbOr-. wise andmadefor the purpose if injretfng transmit&g, or disposing of industrial andmuajcipal vastr into a subsurface stratum. AnInjection wrll shall also include wells Initially drilled for the purpcse of producing oil and gas whenused for the purpose of transmitting, fnjocting, or disposing of. Industrial andmunicipal waste into a subsurface stkatu6. -11 not include u

Thr term 3nduatrial andmun:cipal waste” is defined in Election l(e) of Article 7621b, as follows:

a‘Industrial andmunicipal wasteI 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~~ theHon. D. F. Smallhorst, page 5 W-1465)
disposal of sewageor other wastes of cities village 9, communities, water districts and towns, oher c municipal corporations, which maycause or might reasonably be expected to cause pollution of fresh water.” (Emphasis added). Both the extent andlimit of the Railroad Commission’s and the Texas ‘&ter Commlssion~sresponsibility and authority in this respect are demonstrated by these definitions. Andplainly Ytcepted from the permit jurisdiction of both agencies is “any marface pit, excavation or natural depression used to dispose of industrial andmunicipal waste,” which includes waste from the Oil end gas Industry.

Turning nowto the request for opinion wefind 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~leThe 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, 

### 82Corpus Jurls



### 50, 2 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.” Wherecontemporaneous statutes relate to the samegeneral subject, as is the case here, the followin additional rule of construction stated in 

### 82Corpus Juris Secun um, 8 Section 366, shall be considered: page 

### 801,

“Statutes which relate to the sameperson or thing, or to the sameclass 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 samesubject matter, VI observe that reference is madeto the “old law” andthe fieoile in Sectlon 

### 18of 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 someState 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 andan imerative

fl public necessity that the Cocstitutional ule requfrfng bills to be read on three several days in each Dousebe suspended, andthis 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 Commissionand the Texas WaterCommission la Article 7621bto Issue permits for Injection wrllr utlllaed in the dieposal of industrial andmunicipal wastes.

Considering each of the three contemporaneous statutes to be In pari materia andtogether 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, mayissue permits foot;he discharge of waste into or adjacent to the waters of the 0 Thepertinent 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 andlakes, heys, ponds, impounding reservoirs, springs, rivers, streams, creeks estuaries, marshes, irLlets, canals, t.heGulf 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) ‘WasteImeanssewage, industrial waste, andother wastes, or any of them, as hereinbelow defined.

‘l(d) ‘SewageImeansthe water-carried human or animal wastes from resldences,buildings, indusd trial establishments, cities, towns, or other

elaces, together with such groundwater infiltraion and surface waters with which It maybe commingled. Theadmixtubewith 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 anywater-borne liquid, gaseous, solid, or other waste substance or a combinetion thereof resulting ,fromany 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 maycause or tend to cause pollution of the waters of the State.

“(6) ‘Pollution’ meansany 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* Thefirst question propounded is es follows: YJnderArticle 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 Commissionto gant licenses or P ermits to utilize any particular methodof 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 011field brines, etc.) if such jurisdiction otherwise exists in the Act. Dythe 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 andmunicipal wastes in accordance with Article 7621bis committed to the jurisdiction of the Railroad Commissionandthe 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 andmunicipal waste,** disposal of wastes utilizing these methods is not within the per- ~~~~;~;iction of the Railroad Comm.:ssionand the Texas Water

r Onthe other hand, CL field brines, etc., mustsurely

, 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’ andall other subsrscces not sewage or industrial waste that mayOauseor tend to cause pollution of the waters of the Stat+ It In answer to your first, question, therefore, weare 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 andafter the effective date of the Water Pollution Control Act unless 7;hesameshall 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 andmuniclpal wastes, RSdefined in Article 7621~

Your second question rcquiras whether the activities of the V!aterPollution Control Board In enforclng the conditions of a parrnit issued for the disposal of oil field brines, etc., would Infringe uponthe authority of the Railroad Commissionunder the provisions of Article 6029(a). Aspreviously dl.scussed in this

~ opinion, Article 6029(a) authorizes the Commissionto makeand. . . ..

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, whichwould 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 Inthe’

.XAter.

### :enabtid .MtM.d %21fl; Seetion 9, ASfollwst

The Legfslature having thus defined the dischugo of wAste into wrters of the State pursuant to and In accordance with Athen-existing permit A* **not** aonstltutl **3** pOllution, the posesSiOnof such A permit would constitute a eiense pollution by AState agency. to a charge of Wedigress here sufficiently to nOtAthat the provision of Section 14 of Article 76216, which strtes that **%a** permlt Issued by the Water Pollution Control Eioardshall be Admissible in evidence against nor raise any pretion AgAinst the **AXOrcise**Ofthe powerandAuthority of water E&i&s la pollution control * Apparently was Intended to deny thU defense ASAgAlnst river khorltles rndwater 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 t0brtt not in Accordance with Apermit would constitute unl~viul pollution. Mers the pollution under either circumstance occurs as a result of the discovery andproduction of 011 and gas, both the enforcement power of the Flailroad Commlsslon pursuant to Article 6029(a) and the Water Pollution Control BoArdpursuant to Article 7621d could be utilized to Abate the pollution. Noreason Is perceived whythe 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 Boardcould assign Anddelegate all reS~nSlbllltiAS to the Ftailroad Commlsslonfor the disposal of 011 field brines In such AmannerAS to protect surface andundergroundwaters.

Weanswer 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. Suchduties Are In the aature of a public trust And

.

Yourfourth Andfifth questions are both predlcAted upon m.Apparent conflict between the responsiblllty AndAUthorlty of the Wllroad Commissionpursuant to Article 6029(~) Aadthe Water Pollution Control Board ;;ursuant to Article , 7621d. Havingfound no conflict between the twoStAtutes, there IA **no occasion**  or need to answer questlons four And flve.

Theprovisions of Art.icles 6029(a), 7621band 762ld of Vernon’s Clvll Statutes are **in** par1 materla end should be read together as cccstituting one body Oflaw relating to water po~lutior. cootrol Andprevantlon. All three statutes ara found to be harmonious whencorrectly construed. Disposal through Injection wells of wastes from the dlscovery and production of oil andgas Is under the exclusive permit jurisdiction of the Railroad (;oma!issfon; disposal through injection wells 

### of any other lndtistrlal andmunicipal waste is under the exclurlve permit jurisdiction of the TexasWater Commission. Discharge Into or adjacect to the waters of the State of all industrial andni;t.:clpal wastes, lneluding buz not limited to waste from the 011and gae industry, by any Peons Other than z?jectlon wells must be pursuant to end In ascordance wlth a permit lssued bythe Water PoUutfon Control Board.

?ltB:mstwb Yours very truly, WILLWIU3Ol4 Attorney Generol of TeXAs

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

APPROVED: OFmIoN corm+ U: V. Oeppert, ~haiman ??ormn 

### Suaret .I $lwcAr”,la.l&A’ Bin I;arrlson

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1 f RlWaWEDFC&3Rl34l'fCR~YGENEFfAL =I tO& hS#-PA

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