The Honorable Hugh C. Yantie;               J:r.             Opinion No.   H-64
Executive   Director
Texas Water Quali,ty Board                                   Re:    Does the Texas Water
312 Wert 11th Street                                                Quality Board, through
Auatin,   Texam 78711                                               the Texan Water Quality
                                                                    Act have the power to
                                                                    require a feedlot owner
                                                                    to submit .evidence to
                                                                    ertablish that the feedlot
                                                                    operation or wastes from
                                                                    the feedlot operation do
              ‘.                                                    not c*uee pollution of
Dear    Mr.        Yantim:                                          ground or suiface waters?

        Your       requemting our opinion indicatcm a situation involving a cattle
                    letter
feedlot-penm      are ao situated that manuri laden cltorm water run-off maybe
expected to leave the property of the fredlot and .drain ac,roes a state highway
into a lake on neighboring property.      The fkedlot owner indicates that he has an
agreement    ith the owner of the neighboring property to uee the lake to retain
the mtorm water m&that     it hae ouffi:cient capacity ,to prevent any run-off into
my other, nurface waters.

        Your firmt question        in:

                             “Doer, thia agency, ~through the Teme Water
                    .Quality AAct. have the power to require the feeqlot
                     owner to submit ,evidence to ,establi,ah that the feed-
                     lot .operation or wartei. from the feedlot ,operation
                     do not caure pollution of ground or murface waterl? I’
                                                                             c 6,
        The Texaq Water          Quality   Act ie found’ao    Chapter   21, Wate,r Cod,e.   Vernon’*
Texan    CivilStatutes.,




                                           ‘p. 275
Honorable   Hugh C.         Yantia,   Jr.,   page 2 (H-64)




       The powers of the Texas Water Quality Board are found in subchapter
C commencing     with $21.061 which charges the Board, generally,~ with the
renponaibility  of adminietering  the provisions   of the Act and of establishing
the level of quality to be maintained in and to control the quality of the water
in the State am provided in the Chapter.      “The Board haa the powers and duties
mpecifically prescribed   by this Chapter and all other powers necessary       or
convenient to carry out its responaibilitiee.    ”

       Section     21.069    ie:

                    “The board shall make and enforce rules reason-
             ably required to effectuate the provisions of this chapter,
             including ‘rules governing procedure and practice before
             the board . . .~. ”

       Certrinly,  since the Board is. charged with the maintenance    of a certain
level of quality of the water in this State, its general investigatory  powers
would encompass     investigation to determine whether run-off from a feedlot
polluted ground or surface waters.      You have not asked us about the power,s
of the Board,to prevent such run-off if it were found to cause pollution and
we do not anrwer that question.

      Section 21. 252 providea civil penalties for violation of the provisions
of Chapter 21 or any rule or other order of the Board.      There is no provision
in Chapter 21 .for any criminal promecution;   However,     5 5.090 of the Water
Code, a part of subchapter A entitled General Provimionr of Chapter 5,, Having
To Do With Water Rightr,     is aa follows:

                    “(a) No person may depoeit in any canal, lateral
             reservoir,    or lake,, used for a purpose named in this
             chapter,   the carcass of any dead animal,    tincana,  dis-
                  ‘%
             carded buckets or pailr, garbage,      aahea. baling or
             barbed wire, earth, offal, or refuse of any character,
             or any other article which might pollute the water or
    .!..     obstruct the flow of a canal or similar rtructure.

                        “(b) A person who vio’later any pro;aion  of this
                 nection is guilty of a misdemeanor   and upon conviction,




                                             p. 276
Honorable    Hugh C.    Yantir,   Jr.,    page   3(H-64)




              is punishable  by a fine of not learn than $10.00
              nor more tban $100.00 or by confinement in a
              county jail for not more than rix monthlr or by
              both, ”

        Article 690~. Vernon’8 Texas Penal Code, (Act,m 1969, 61st Leg.,
p. 483, Ch. 154). likewise    makes it a miedemeanor   to diecharge   or permit
the dircharge   of waste into or adjacent to any water which~causes    the water
pollution unlesa it ie discharged   in compliance with a perinit issued by the
Texan Water Quality Board or otberm.

      The provirionr   of the Water Quality Control Act, to which we have
made reference,    would seem to authorise the Board to adopt reaeonable
rulea and regulationo   governlng,the ir:ouance of permits and other order,s.
The Board hre adopted ouch rulei , among them being Rule. 505.1 which is:

                     “The applicationa    or pleadings of every
              applicmt,    proteetmt   or pa&to     the hearing and
             ,the evidence,, tertimony and other admiarible
              matter offered in muppoyt thereof will be considered
              when preeented in conformity with Board ~rulem. ,A11
              testimony shall be preeented uhde,r oith.        Hearings
             will be conducted in the manner the pr&di.ng           officer
             deqmrr moat suitable to the particular        proceeding,    ,and
              technical rules of legal and court precadure        do not
              apply.    The purpose ie to obtain .a11the relevant in-
             ,formaSion and teqtimony pertaining        to a nutter PB
              conveniently.    inexpensively  end expeditiouely     as
              poaeible without prejudicing     the ,rights of rny.~prrties
              to the proceedingr..   ”

       It in our opinion that a person seeking any order or permit from the
Board may be required      by rule of the Board to eubmit..evidence to establish
that the feedlot ,operation or that the wastes from it, did not pollute theground
or eurf8ce waterr.

      Your   secohd    quertion   arke:




                                          p. 277
Honorable     Hugh C.   Yanti.e,   Jr.,   page 4 (H-64)




                      “If it is shown that no wastes are discharged
               into or adjacent the waters in the ,etate and that,
               therefore,    the Texas Water Quality Act does not
               apply, are wastes and waste disposal practices      of
               the feedlot subject to control by the Texas Water
               Quality Board through the Solid Waste Disposal Act? ”

        The Solid Waste Diepoaal Act (Acts 1971, 62nd Leg.,   p. 1757, Ch.
516), Article   4477-7,  provides in ! 8b that any person who violates any
provision   of the Act shall be guilty of a misdemeanor.

        It defines the word “Board”        to mean th,e Texas   Water   Quality   Board
and,   in $ 3(b), it provides:

                       “The board is hereby designated the State Solid
               Waste Agency with respect to collection,        handling,
               storage and disposal of industrial solid waet,e, .and
               shall be the coordinating    agency for all industrial    solid
               waste activities.   The board shall seek the accomplieh-
               ment of the purposes of this Act through the control of
               all aspects of industrial solid waste collection,      handling,
               etor,agc and disposal by all practical and economi,cally
               feasible methods consistent with the powers and duties
               given it under this Act and other existing legislation.
               The Board has the power and duties specifically         pre-
               ec,ribed in this Act and all other powers necessary         or
               convenient to’carry   out its reeponeibilitiee.      The board
               shall consult with the department (the Department         of
               Health) with respect to the ,public health aspects,       and
               with the Texa,e A,ir Control   Board with respect to the
               air pollution control and ambient air quality aspects of
               the matters placed und.er the jurisdiction      of the board by
         .Y    this Act, ”
      4’
     : We would therefore answer your, questions as .followe:  (I) The Texas
Water Quality Board does have the power to require a feedlot owner to submit
evidence to establish that the feedlot operation or waste& from the feedlot.




                                          p.   278
Honorable   Hugh C.   Yantie,   Jr.,    page g(H-64)




operation will not cause pollution of ground or surface          waters,   in con-
nection with any application by the feedlot owner for a          permit or other
order of the Board;(Z)  The Texas Water Quality Board            is designated as
the agency to regulate and control the disposal of solid          wastes.

                                   SUMMARY

                    The Texas Water Quality Board is given
             broad discretion   to issue rules and regulations
             governing proceedings     before it for permits and
             orders and may require,      as a condition to the
             issuance  of a permit,   that a feedlot owner submit
             evidence to establish that his operation will not
             cause wastes to pol:lute ground or surface waters.
             In any event, the Texas Water Quality Board is
             the agency designated by the Solid Waste Disposal
             Act to control disposition of solid wastes.

                                                  Very truly   yours,




                                                  JOHN L. HILL
                                                  Attorney General      of Texas

APPROVED:




Opinion   Committee




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