 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)


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