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By: Krusee H.B. No. 2651
A BILL TO BE ENTITLED
AN ACT
relating to the authority of the Texas Natural Resource
Conservation Commission to regulate a sub-surface area drip
dispersal system as a separate category of commercial, industrial,
and municipal non-hazardous liquid waste disposal.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Water Code, Title 2. Water Administration,
Subtitle D. Water Quality Control, Chapter 27. Injection Wells,
Subchapter A. General Provisions, Subsection 27.002, is amended to
read as follows:
§ 27.002. DEFINITIONS.
(11) "Injection well" means an artificial excavation
or opening in the ground made by digging, boring, drilling,
jetting, driving, or some other method, and used to inject,
transmit, or dispose of industrial and municipal waste or oil and
gas waste into a subsurface stratum; or a well initially drilled to
produce oil and gas which is used to transmit, inject, or dispose of
industrial and municipal waste or oil and gas waste into a
subsurface stratum; or a well used for the injection of any other
fluid; but the term does not include any surface pit, surface
excavation, or natural depression or sub-surface area drip
dispersal system used to dispose of industrial and municipal waste
or oil and gas waste.
SECTION 2. Water Code, Title 2. Water Administration,
Subtitle D. Water Quality Control is amended by adding Chapter 32
to read as follows:
CHAPTER 32. SUB-SURFACE AREA DRIP DISPERSAL SYSTEM
SUBCHAPTER A. GENERAL PROVISIONS
§ 32.001. SHORT TITLE. This chapter may be cited as the
Sub-Surface Area Drip Dispersal System Act.
§ 32.002. DEFINITIONS. In this chapter:
(1) "Commission" means the Texas Natural Resource
Conservation Commission.
(2) "Executive director" means the executive director
of the Texas Natural Resource Conservation Commission.
(3) "Sub-surface area drip dispersal system" means a
waste disposal system that injects processed commercial,
industrial, and municipal waste, but not excluded waste or
hazardous waste, into the ground at a depth of no more than 48
inches with such injection spread over an area such that the soil
hydrologic absorption rate and crop/plant root absorption rate is
not exceeded.
(4) "Processed" means the action of reducing liquid
waste to a state that will allow injection by sub-surface drip
dispersal into an area without creating pollution.
(5) "Pollution" means the alteration of the physical,
chemical, or biological quality of, or the contamination of, water
that makes it harmful, detrimental, or injurious to humans, animal
life, vegetation, or property or to public health, safety, or
welfare, or impairs the usefulness or the public enjoyment of the
water for any lawful or reasonable purpose.
(6) "Hazardous waste" has the meaning assigned to that
term by Section 361.003, Health and Safety Code.
(7) "Commercial, industrial and municipal waste means
any water-dominant liquid waste substance, which may cause or might
reasonably be expected to cause pollution of fresh water and which
might result from:
(a) processes of industry, manufacturing, trade,
or business;
(b) development or recovery of natural resources
other than oil, gas, sulfur, coal tars, or desalinization;
(c) disposal of sewage or other wastes of cities,
towns, villages, communities, water districts, other municipal
corporations, educational facilities, apartment complexes, and
other commercial facilities;
(8) "Excluded waste" means waste arising out of or
incidental to drilling for or producing of oil, gas, geothermal
resources, sulfur, tar sands, or brine from desalinization, waste
arising out of or incidental to the underground storage of
hydrocarbons other than storage in artificial tanks or containers,
or waste arising out of or incidental to the operation of gasoline
plants, natural gas processing plants, or pressure maintenance or
re-pressurizing plants. The term includes but is not limited to
salt water, brine, sludge, drilling mud, and other liquid or
semi-liquid waste material.
(9) "Fresh water" means water having bacteriological,
physical, and chemical properties which make it suitable and
feasible for beneficial use for any lawful purpose.
§ 32.003. POLICY AND PURPOSE. It is the policy of this
state and the purpose of this chapter to maintain the quality of
fresh water in the state to the extent consistent with the public
health and welfare and the operation of existing industries, to
promote the beneficial reuse of commercial, industrial, and
municipal waste for economic development of the state thereby
reducing the demand on the state's supply of fresh water, to prevent
underground injection that may pollute fresh water, and to require
the use of all reasonable methods to implement this policy.
SUBCHAPTER B. JURISDICTION OF COMMISSION
§ 32.011. PERMIT FROM COMMISSION. No person may operate a
sub-surface area drip dispersal system without first obtaining a
permit from the commission.
§ 32.012. APPLICATION FOR PERMIT. The commission shall
prescribe forms for application for a permit and shall make the make
the forms available on request without charge.
§ 32.013. INFORMATION REQUIRED OF APPLICANT. An applicant
shall furnish any information the executive director considers
necessary to discharge his duties under this chapter and the rules
of commission.
§32.014. APPLICATION FEE. With each application for a
sub-surface area drip disposal system permit, the commission shall
collect a fee in the amount provided by and under the terms of
Section 5.235.
§32.015. INSPECTION OF DISPERSION AREA. On receiving an
application for a permit, the executive director shall have an
inspection made of the location of the proposed dispersion area to
determine the local conditions and the probable effect of the drip
dispersion system.
§32.016. RECOMMENDATIONS FROM OTHER ENTITIES. The
executive director shall submit to the Texas Department of Health
and to other persons which the commission may designate copies of
every application received in proper form. These entities may make
recommendations to the commission concerning any aspect of the
application within 30 days.
§32.017. HEARING ON PERMIT APPLICATION.
(a) If it is considered necessary and in the public
interest, the commission may hold a public hearing on the permit
application. The commission shall hold a hearing on a permit
application for a sub-surface area drip dispersion system to
dispose of processed commercial, industrial, and municipal waste if
a hearing is requested by a local government located in the county
of the proposed disposal well site or by an affected person. In
this subsection, "local government" has the meaning provided for
that term by Chapter 26 of this code.
(b) The commission by rule shall provide for giving
notice of the opportunity to request a public hearing on a permit
application. The rules for notice shall include provisions for
giving notice to local governments and affected persons. The
commission shall define "affected person" by rule.
(c) Before the commission begins to hear the testimony
in a contested case as defined by Chapter 2001, Government Code,
evidence must be placed in the record to demonstrate that proper
notice regarding the hearing was given to affected persons. If
mailed notice to an affected person is required, the commission or
other party to the hearing shall place evidence in the record that
notice was mailed to the address of the affected person included in
the appropriate county tax rolls at the time of mailing. For the
purposes of this subsection, the affidavit of the commission
employee responsible for the mailing of the notice, attesting to
the fact that notice was mailed to the address included in the tax
rolls at the time of mailing, shall be prima facie evidence of
proper mailing. The commission may not proceed with receipt of
testimony in a contested case until there is compliance with this
subsection.
§32.018. RULES, ETC.
(a) The commission shall adopt rules and procedures
reasonably required for the performance of its powers, duties, and
functions under this chapter by July 31, 2006.
(b) Copies of any rules under this chapter proposed by
the commission shall, before their adoption, be sent to the Texas
Department of Health and any other persons the commission may
designate. Any agency or person to whom the copies of proposed
rules are sent may submit comments and recommendations to the
commission and shall have reasonable time to do so as the commission
may prescribe.
SUBCHAPTER C. ISSUANCE OF PERMITS: TERMS AND CONDITIONS
§ 32.051. ISSUANCE OF PERMIT.
(a) The commission may grant an application in whole
or part and may issue the permit if it finds:
(1) That the use or installation of the
sub-surface area drip dispersal system is in the public interest;
(2) That, with proper safeguards, both ground and
surface fresh water can be adequately protected from pollution;
(3) That the applicant has provided for the
proper operation of the proposed sub-surface area drip dispersal
system;
(b) In the permit, the commission shall impose terms
and conditions reasonably necessary to protect fresh water from
pollution.
(c) The commission, in determining if the use or
installation of a sub-surface area drip dispersal system is in the
public interest under Subsection (a)(1), shall consider, but shall
not be limited to the consideration of:
(1) compliance history of the applicant and
related entities under the method for evaluating compliance history
developed by the commission under Section 5.754 and in accordance
with the provisions of Subsection (d);
(2) whether there is a practical, economic, and
feasible alternative to a sub-surface are a drip dispersal system
reasonably available, and
(d) The commission shall establish a procedure for the
preparation of comprehensive summaries of the applicant's
compliance history, including the compliance history of any
corporation or business entity managed, owned, or otherwise closely
related to the applicant. The summaries shall be made available to
the applicant and any interested person after the commission has
completed its technical review of the permit application and prior
to the promulgation of the public notice relating to the issuance of
the permit. Evidence of compliance or noncompliance by an
applicant for a sub-surface area drip dispersal system permit with
environmental statutes and the rules adopted or orders or permits
issued by the commission may be offered by any party at a hearing on
the applicant's application and admitted into evidence subject to
applicable rules of evidence. Evidence of the compliance history
of an applicant for a sub-surface area drip dispersal system permit
may be offered by the executive director at a hearing on the
application and admitted into evidence subject to the rules of
evidence. All evidence admitted, including compliance history,
shall be considered by the commission in determining whether to
issue, amend, extend or renew a permit. If the commission concludes
that the applicant's compliance history is unacceptable, the
commission shall deny the permit.
§ 32.052. COPIES OF PERMIT FILING REQUIREMENTS.
(a) The commission shall furnish the Texas Department of
Health with a copy of each permit the commission issues.
(b) Before beginning injection operations, a person
receiving a permit for a sub-surface area drip dispersal system to
inject commercial, industrial, and municipal waste shall file a
copy of the permit with the health authorities of the county, city,
and town where the system is located.
SUBCHAPTER D. GENERAL POWERS
§ 32.071. POWER TO ENTER PROPERTY. Members of the
commission and employees of the commission may enter public or
private property to inspect and investigate conditions relating to
the sub-surface area drip dispersal system for activities within
the commission's jurisdictions or to monitor compliance with a
rule, permit, or other order of the commission. Members or
employees acting under the authority of this section who enter an
establishment on public or private property shall observe the
establishment's safety, internal security, and fire protection
rules.
§ 32.072. POWER TO EXAMINE RECORDS. Members of the
commission and employees of the commission may examine and copy
those records or memoranda of a business they are investigating as
provided by Section 32.071 of this code that relate to the operation
of a sub-surface area drip dispersal system, or any other records
required to be maintained by law.
SECTION 3. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2005.