            THEATTORNEYGENE~RAL
                               OFTEXAS




Honorable Joe Carter                Opinion       No.   C-176
Chairman
Texas Water Commission              Re:     Various    questions   concerning
P. 0. Box 2311                              the construction      of Article
Austin 11, Texas                            7621b, Vernon’s      Civil  Stat-
                                            utes (injection      wells  for
                                            industrial     and municipal
Dear Mr. Carter:                            waste).

      In response       to your request   regarding    the           above cited
matter,  we here       examine the following    questions             posed by you.

       1.  Does Article    7 21b, 8 l(e)      defining     “Industrial    and
Municipal   Waste, ” and i l(h)      defining     “Injection     Well,”   when
correctly   Interpreted,     include  all wells which are drilled            or
used for the purpose of Injecting,          transmitting,       or disposing
of oil field    brines   Into any subsurface        strata    or stratum,
regardless   of whether or not such strata           or stratum is produc-
tive of oil or gas?

       2.   Does Article    7621b, E 2-c,     when correctly     Interpreted,
l:rovide   that a determination     by the Texas Water Commission           to
the effect     that “the proposed    drilling    of such injection       well
and the Injection       of such salt water or other such waste into
such subsurface      stratum will endanger the fresh water strata
in that area and that the formation           or strata    to be used for
such salt water or other waste disposal           are fresh water sands,!’
is binding     on all State Agencies      and others    concerned    to the
contents,     scope and conclusions     contained    therein?

            If the replies     to 1 and 2 above are in the affirmative
(i.e.:*  that Article     7621b Includes    all such wells regardless
of the nature of the subsurface         stratum,   and that a determina-
tion by the Texas Water Commission          in accordance    with 8 2-C is
binding    on all State Agencies     and others    concerned),     are prior
permits    which have been granted under Article         762Ib,    $ 2-a wlth-
out a prior     dete mlnatlon    by the Texas Water Commission In
accordance     with !i 2-c void ab inltlo      or otherwise    made Invalid
or vJldable     by any party or State Agency and/or         judicial    body?

       4.   If   the   reply   to   3   above   is   In the     affirmative   (a)




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Honorable    Joe Carter,    page 2   (c-176)

what are the correct       legal procedures     available    to the Water
Commission by which it Mayo effect         review of the void and/or
voidable     Injection   operation   permits   concerned,    and In the
alternative,       (b) what other legal procedures        are available
to effect     review of the void and/or voidable          permits  if the
Texas Water Commission is not authorized            under the present
statutes     and law to effect     such review?

        In order’ to answer your first        question   we must look to
Article    602ga,Vernon’s    Civil    Statutes.      In Attorney General
Opinion No. ~~-1.465 Articles         602ga, and 7621b of Vernon’s
Civil    Statutes   were construed     to be in par1 materia and should
be read together      as constituting      one body of law.

     Examination      of Article   602ga and 7621b     shows that there
Is a distinction      Intended   by the legislature     as to when each
act shall   apply.

       Article   602ga was intended   to apply to drilling  and pro-
ducing operations,      the primary purpose of which Is the actual
recovery     of oil or gas.    This is seen from the language used
In the first     paragraph of this Act;

             “The Railroad     Commission shall also make and
        enforce    rules,  regulations    and orders in connection
        with the drilling      of exploratory    wells and wells     for
        oil or gas or any purpose connected          therewith;   the
        production     of oil or gas; and the operation,        abxon-
        ment and proper plugging       of such wells     D ~ .” (Emphasis
        added. )

       This would Include  not only operations     governing     primary
recovery,   but also secondary   or tertiary   operations     for re-
covery of oil or gas from an oil or ga.s stratum,         either    by
by gas Injection,    water flood  or liquified   hydrocarbon      sweeps.

      On the other hand, examination   of Article    762lb shows
that It was intended   to cover problems  of disposal    of salt
water or other waste produced along with the oil or gas.
This act was Intended   to establish  a means whereby an oil
operator  could obtain authorization   to drill   or convert   a
well for the sole purpose of injecting    the wastes produced
along with the oil and gas he recovered.

        This Is amply shown frcm th e caption  of the act        and In
every    applicable section of the act.    The applicable        part of
Honorable       Joe Carter,     page   3   (c-176   )


the   caption     reads:

               “Designating    the Railroad Commlsslon as the
          permit Issuing    agency for all wells    for the lnjec-
          tion of waste arising     out of the drilling    for or the
          production    of oil or gas.”

          Section  I (e) defining   waste corroborates           the concept   of
Article       7621b as covering   problems of disposal           only.

                “I Industrial and municipal     waste’ is any
          liquid,    gaseous, s‘olid or other waste substance
          or a combination    thereof   resulting    from any pro-
          cess of Industry,     manufacturing,    trade,   or bus-
          iness or from the development        or recovery   of ane
          natural    resource  . . .” (Emphasis added.)

     Likewise,     in Section  2-a govetig  the obtaining               of permits
from the Railroad     Commission under this act,  we find               the identi-
cal concept    expressed.

               “Before  any person shall     commence the drilling
          of an Injection     well,  or before   any person shall   convert
          any~ existing   well into an injection      well,  for the pur-
          pose of disposing     of salt water or other waste arising
          out of or incidental      to the drilling    or the producing
          of 011 or gas, a permit , . .‘I         (Emphasis added.)

          Section 2-c      covering the obtaining        of a letter    from the
Water      Commission      in no way controverts        this concept.

              “Any person applying    to the &?ailroag    Commission           for
          a permit to inject   salt water or other waste arising
          out of or incidental    to the drilling   or the producing
          of 011 or gas . . .”

      It therefore   becomes obvious    that where the purpose of
the injection    well is to increase    production   from an oil or
gas bearing   stratum Article     6C2ga applies,   and only where the
purpose   of the injection    well Is the disposal     of salt water
or other waste resulting      from 011 or gas operations      does Artic le
7621b apply.

       In answer to your first      question,    therefore,    we are of the
opinion   that Article    7621b, Section      1 (e) defining    “Industrial
and municipal    waste,” and Section       1 (h) defining    “injection
well,”   when correctly    Interpreted,     Include   only those wells
which are drilled      or used for the purpose of disposal           and do




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Honorable      Joe Carter,    page 4 (c-176    )


not Include   an injection       well where the purpose of such well
is to increase   production       from an 011 or gas bearing  stratum.

         We now turn    to y~our second question    regarding     the lnterpre-
tatlon     of Article    7621b, Section  2-c,   which states      as follows:

               “Any person applying      to the flallroag         Commission
         for a permit to inject       salt water or other waste arising
         out of or Incidental      to the drilling       for or the pro-
         ducing of oil or gas Into a subsurface              stratum shall
         submit with such application          a letter    from the Board flexas
         water Commlsslon      stating     that the drilling       of such ln-
         jection   well an d the Injection       of such salt water or other
         such waste Into such subsurface           stratum will not endanger
         the fresh water stratum . . .‘I

       In construing     this section,     we must construe      the statute
as a whole.     82 C. J.S. 691. It is obvious that the basic scheme
of the statute      Is to give the Railroad        Commission control      of
011 field    waste and the Water Commission control             of all other
industrial    and municipal     waste.     Sections    2b and 2c of Article
7621b provide     that each agency,      by letter,     furnish   the other
with certain     Information    in order that the permit issuing
agency will be In a better        position     to carry out its delegated
authority.     We do not believe       that the Legislature       Intended    to
give each agency a veto power over matters delegated                 to the
other.     The statute    merely contemplates       cooperation     between
the agencies     In exchange of Information.

        Historically,     the Railroad    Commission has relied     upon the
Water Commission to advise it as to the depth of fresh water
zones which should be protected.             Before giving  a permit to
Inject,     the Railroad     Commission for years has required        that
It be furnished       with a letter    from the Water Commission show-
ing the depth as to which fresh water should be protected.
It is quite proper to consider           this history   In construing     the
statute.       39 Tex. Jur. 229, Statutes,        Sec. 122.

       Reading the statute     in the light   of this background it
seems clear     that the legislature    intended   simply to codify     a
practice    that has been followed    with respect     to disposal   of
oil field    waste, and to provide    a parallel     system with re-
spect to disposal     of other industrial     wastes.

       It is evident  to us that the Water Commission Is ex-
pected   simply to advise   the Railroad  Commission that the drill-
ing of such Injection     well and the injection     of such salt water
or other such waste into such subsurface        stratum will not en-



                                       -865-
Honorable    Joe   Carter,   page   5 (c-176)

danger the fresh water strata  in that area and that the
formation or strata to be used for such salt water or other
such waste disposal are not fresh water sands.

       In accordance  with the above reasoning, it is our
opinion   that under Article  7621b, Section 2-c the determina-
tion by the Texas Water Commission is not binding     on the
Railroad   Commission but is merely advisory.

      The first   and second questions         being answered in        the
negative,   it becomes unnecessary     to      answer your third        and
fourth questions.

                                SUMMARY

             Article 7621b applies      only to those wells  which
        are drilled    or used for the purpose of disposal      and
        does not include    those wells the purpose of which is
        to increase production     from an oil or gas bearing
        stratum.     Under Section   2-c of Article   7621b the
        determination    of the Texas Water Commission is not
        binding   on the Railroad    Commission but merely ad-
        visory.

                                         Yours    very   truly,

                                          WAGGONER CARR
                                          Attorney General        of   Texas




JT:sc

APPROVED:

OPINION COMMITTEE
W. V. Geppert,   Chairman
Linward Shivers
Milton Richardson
Stanton Stone
F. R. Booth

APPROVEDFOR TRE ATTORNEYGENERAL
BY: Albert Jones



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