Untitled Texas Attorney General Opinion

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-
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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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