| (a) Need for agreement. Several statutes cover persons
and activities where the respective jurisdictions of the RRC and the
TCEQ may intersect. This rule is a statement of how the agencies implement
the division of jurisdiction.
(1) Section 10 of House Bill 1407, 67th Legislature,
1981, which appeared as a footnote to the Texas Solid Waste Disposal
Act, Texas Civil Statutes, Article 4477-7, provides as follows: On
or before January 1, 1982, the Texas Department of Water Resources,
the Texas Department of Health, and the Railroad Commission of Texas
shall execute a memorandum of understanding that specifies in detail
these agencies' interpretation of the division of jurisdiction among
the agencies over waste materials that result from or are related
to activities associated with the exploration for and the development,
production, and refining of oil or gas. The agencies shall amend the
memorandum of understanding at any time that the agencies find it
to be necessary.
(2) Texas Health and Safety Code, §401.414, relating
to Memoranda of Understanding, requires the Railroad Commission of
Texas and the Texas Commission on Environmental Quality to adopt a
memorandum of understanding (MOU) defining the agencies' respective
duties under Texas Health and Safety Code, Chapter 401, relating to
radioactive materials and other sources of radiation. Texas Health
and Safety Code, §401.415, relating to oil and gas naturally
occurring radioactive material (NORM) waste, provides that the Railroad
Commission of Texas shall issue rules on the management of oil and
gas NORM waste, and in so doing shall consult with the Texas Natural
Resource Conservation Commission (now TCEQ) and the Department of
Health (now Department of State Health Services) regarding protection
of the public health and the environment.
(3) Texas Water Code, Chapters 26 and 27, provide that
the Railroad Commission and TCEQ collaborate on matters related to
discharges, surface water quality, groundwater protection, underground
injection control and geologic storage of carbon dioxide. Texas Water
Code, §27.049, relating to Memorandum of Understanding, requires
the RRC and TCEQ to adopt a new MOU or amend the existing MOU to reflect
the agencies' respective duties under Texas Water Code, Chapter 27,
Subchapter C-1 (relating to Geologic Storage and Associated Injection
of Anthropogenic Carbon Dioxide).
(4) The original MOU between the agencies adopted pursuant
to HB 1407 (67th Legislature, 1981) became effective January 1, 1982.
The MOU was revised effective December 1, 1987, May 31, 1998, August
30, 2010, and again on May 1, 2012, to reflect legislative clarification
of the Railroad Commission's jurisdiction over oil and gas wastes
and the Texas Natural Resource Conservation Commission's (the combination
of the Texas Water Commission, the Texas Air Control Board, and portions
of the Texas Department of Health) jurisdiction over industrial and
hazardous wastes.
(5) The agencies have determined that the revised MOU
that became effective on May 1, 2012, should again be revised to further
clarify jurisdictional boundaries and to reflect legislative changes
in agency responsibility.
(b) General agency jurisdictions.
(1) Texas Commission on Environmental Quality (TCEQ)
(the successor agency to the Texas Natural Resource Conservation Commission).
(A) Solid waste. Under Texas Health and Safety Code,
Chapter 361, §§361.001 - 361.754, the TCEQ has jurisdiction
over solid waste. The TCEQ's jurisdiction encompasses hazardous and
nonhazardous, industrial and municipal, solid wastes.
(B) Water quality.
(i) Discharges under Texas Water Code, Chapter 26.
Under the Texas Water Code, Chapter 26, the TCEQ has jurisdiction
over discharges into or adjacent to water in the state, except for
discharges regulated by the RRC. Upon delegation from the United States
Environmental Protection Agency to the TCEQ of authority to issue
permits for discharges into surface water in the state of produced
water, hydrostatic test water, and gas plant effluent resulting from
the activities described in Texas Water Code, §26.131(a), the
TCEQ has sole authority to issue permits for those discharges. For
the purposes of TCEQ's implementation of Texas Water Code, §26.131,
"produced water" is defined as all wastewater associated with oil
and gas exploration, development, and production activities, except
hydrostatic test water and gas plant effluent, that is discharged
into water in the state, including waste streams regulated by 40 CFR
Part 435.
(ii) Discharge permits existing on the effective date
of EPA's delegation to TCEQ of NPDES permit authority for discharges
of produced water, hydrostatic test water, and gas plant effluent.
RRC permits issued prior to TCEQ delegation of NPDES authority shall
remain effective until revoked or expired. Amendment or renewal of
such permits on or after the effective date of delegation shall be
pursuant to TCEQ's TPDES authority. The TPDES permit will supersede
and replace the RRC permit. For facilities that have both an RRC permit
and an EPA permit, TCEQ will issue the TPDES permit upon amendment
or renewal of the RRC or EPA permit, whichever occurs first.
(iii) Discharge applications pending on the effective
date of EPA's delegation to TCEQ of NPDES permit authority for discharges
of produced water, hydrostatic test water, and gas plant effluent.
TCEQ shall assume authority for discharge applications pending at
the time TCEQ receives delegation from EPA. The RRC will provide TCEQ
the permit application and any other relevant information necessary
to administratively and technically review and process the applications.
TCEQ will review and process these pending applications in accordance
with TPDES requirements.
(iv) Storm water. TCEQ has jurisdiction over stormwater
discharges that are required to be permitted pursuant to Title 40
Code of Federal Regulations (CFR) Part 122.26, except for discharges
regulated by the RRC. Discharge of storm water regulated by TCEQ may
be authorized by an individual Texas Pollutant Discharge Elimination
System (TPDES) permit or by a general TPDES permit. These storm water
permits may also include authorizations for certain minor types of
non-storm water discharges.
(I) Storm water associated with industrial activities.
The TCEQ regulates storm water discharges associated with certain
industrial activities under individual TPDES permits and under the
TPDES Multi-Sector General Permit, except for discharges associated
with industrial activities under the jurisdiction of the RRC.
(II) Storm water associated with construction activities.
The TCEQ regulates storm water discharges associated with construction
activities, except for discharges from construction activities under
the jurisdiction of the RRC.
(III) Municipal storm water discharges. The TCEQ has
jurisdiction over discharges from regulated municipal storm sewer
systems (MS4s).
(IV) Combined storm water. Except with regard to storage
of oil, when a portion of a site is regulated by the TCEQ, and a portion
of a site is regulated by the EPA and RRC, storm water authorization
must be obtained from the TCEQ for the portion(s) of the site regulated
by the TCEQ, and from the EPA and the RRC, as applicable, for the
RRC regulated portion(s) of the site. Discharge of storm water from
a facility that stores both refined products intended for off-site
use and crude oil in aboveground tanks is regulated by the TCEQ.
(v) State water quality certification. Under the Clean
Water Act (CWA) Section 401 (33 U.S.C. Section 1341), the TCEQ performs
state water quality certifications for activities that require a federal
license or permit and that may result in a discharge to waters of
the United States, except for those activities regulated by the RRC.
(vi) Commercial brine extraction and evaporation. Under
Texas Water Code, §26.132, the TCEQ has jurisdiction over evaporation
pits operated for the commercial production of brine water, minerals,
salts, or other substances that naturally occur in groundwater and
that are not regulated by the RRC.
(C) Injection wells. Under the Texas Water Code, Chapter
27, the TCEQ has jurisdiction to regulate and authorize the drilling,
construction, operation, and closure of injection wells unless the
activity is subject to the jurisdiction of the RRC. Injection wells
under TCEQ's jurisdiction are identified in §331.11 of this title
(relating to Classification of Injection Wells) and include:
(i) Class I injection wells for the disposal of hazardous,
radioactive, industrial or municipal waste that inject fluids below
the lower-most formation which within 1/4 mile of the wellbore contains
an underground source of drinking water;
(ii) Class III injection wells for the extraction of
minerals including solution mining of sodium sulfate, sulfur, potash,
phosphate, copper, uranium and the mining of sulfur by the Frasch
process;
(iii) Class IV injection wells for the disposal of
hazardous or radioactive waste which inject fluids into or above formations
that contain an underground source of drinking water; and
(iv) Class V injection wells that are not under the
jurisdiction of the RRC, such as aquifer remediation wells, aquifer
recharge wells, aquifer storage wells, large capacity septic systems,
storm water drainage wells, salt water intrusion barrier wells, and
closed loop geothermal wells.
(2) Railroad Commission of Texas (RRC).
(A) Oil and gas waste.
(i) Under Texas Natural Resources Code, Title 3, and
Texas Water Code, Chapter 26, wastes (both hazardous and nonhazardous)
resulting from activities associated with the exploration, development,
or production of oil or gas or geothermal resources, including storage,
handling, reclamation, gathering, transportation, or distribution
of crude oil or natural gas by pipeline, prior to the refining of
such oil or prior to the use of such gas in any manufacturing process
or as a residential or industrial fuel, are under the jurisdiction
of the RRC, except as noted in clause (ii) of this subparagraph. These
wastes are termed "oil and gas wastes." In compliance with Texas Health
and Safety Code, §361.025 (relating to exempt activities), a
list of activities that generate wastes that are subject to the jurisdiction
of the RRC is found at 16 TAC §3.8(a)(30) (relating to Water
Protection) and at §335.1 of this title (relating to Definitions),
which contains a definition of "activities associated with the exploration,
development, and production of oil or gas or geothermal resources."
Under Texas Health and Safety Code, §401.415, the RRC has jurisdiction
over the disposal of oil and gas naturally occurring radioactive material
(NORM) waste that constitutes, is contained in, or has contaminated
oil and gas waste.
(ii) Hazardous wastes arising out of or incidental
to activities associated with gasoline plants, natural gas or natural
gas liquids processing plants or reservoir pressure maintenance or
repressurizing plants are subject to the jurisdiction of the TCEQ
until the RRC is authorized by EPA to administer RCRA. When the RRC
is authorized by EPA to administer RCRA, jurisdiction over such hazardous
wastes will transfer from the TCEQ to the RRC.
(B) Water quality.
(i) Discharges. Under Texas Natural Resources Code,
Title 3, and Texas Water Code, Chapter 26, the RRC regulates discharges
from activities associated with the exploration, development, or production
of oil, gas, or geothermal resources, including transportation of
crude oil and natural gas by pipeline, and from solution brine mining
activities, except that on delegation to the TCEQ of NPDES authority
for discharges into surface water in the state of produced water,
hydrostatic test water, and gas plant effluent resulting from the
activities described in Texas Water Code, §26.131(a), the TCEQ
has sole authority to issue permits for those discharges. Discharges
regulated by the RRC into or adjacent to water in the state shall
not cause a violation of the water quality standards. While water
quality standards are established by the TCEQ, the RRC has the responsibility
for enforcing any violation of such standards resulting from activities
regulated by the RRC. Texas Water Code, Chapter 26, does not require
that discharges regulated by the RRC comply with regulations of the
TCEQ that are not water quality standards. The TCEQ and the RRC may
consult as necessary regarding application and interpretation of Texas
Surface Water Quality Standards.
(ii) Storm water. When required by federal law, authorization
for storm water discharges that are under the jurisdiction of the
RRC must be obtained through application for a National Pollutant
Discharge Elimination System (NPDES) permit with the EPA and authorization
from the RRC, as applicable.
(I) Storm water associated with industrial activities.
Where required by federal law, discharges of storm water associated
with facilities and activities under the RRC's jurisdiction must be
authorized by the EPA and the RRC, as applicable. Under 33 U.S.C.
§1342(l)(2) and §1362(24), EPA cannot require a permit for
discharges of storm water from "field activities or operations associated
with {oil and gas} exploration, production, processing, or treatment
operations, or transmission facilities" unless the discharge is contaminated
by contact with any overburden, raw material, intermediate product,
finished product, byproduct, or waste product located on the site
of the facility. Under 16 TAC §3.8 (relating to Water Protection),
the RRC prohibits operators from causing or allowing pollution of
surface or subsurface water. Operators are encouraged to implement
and maintain Best Management Practices (BMPs) to minimize discharges
of pollutants, including sediment, in storm water to help ensure protection
of surface water quality during storm events.
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