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Illegal Dumping Enforcement Texas 2014 Oil and Gas Waste Annex

John H. Ockels, Ph.D. Texas Illegal Dumping Resource Center


Copyright (c) 2013 John H. Ockels No Claim to Original Texas State Government Works All rights reserved. No part of this book may be reproduced in any way, except for the inclusion of brief quotations in a review, without permission in writing from the author.

First Printing Texas May 2013 Published by John H. Ockels Box 3022 Sherman, TX 75091 ockels@tidrc.com Companion website: www.tidrc.com

Orders for additional copies may be placed through the website or by contacting the publisher at the above address.

Discounts available for orders of over ten copies


Oil and Gas Annex

Illegal Dumping Enforcement Texas 2014 Edition Book Contents / Class Outline

1. Introduction [Page 3] Welcome [3] Ten Questions And Answers About Oil And Gas Waste Enforcement [4] Enforcement Summary Chart [14] Oil and Gas Waste: There Are Always Several Enforcement Approaches Available [17]

2. General Environmental Criminal Laws [19] A. Focusing On the Waste Dumped [19] Municipal Code Enforcement [19] Example: Town of Flower Mound Oil and Natural Gas Ordinance [20] Criminal Health Nuisance Laws [24] THSC Chapter 341 Minimum Standards of Sanitation … Measures [25] Twelve specific health nuisances included [25] Forcing an abatement of the nuisance [26] The four “shalls” of nuisance abatement [27] What normally happens isn’t what the state legislature mandated [27] Using Designated Representatives to Force Abatement [28] The peace officer’s friend: THSC Sec. 341.013(c) [29] No warning period required to use THSC Chapter 341 [30] Criminal penalty for violations [31] Civil penalty for violations [31] THSC Chapter 343 Abatement of Public Nuisances [32] Comparing THSC Chapter 341 and THSC Chapter 343 [32] B: Focusing on the Criminal Act [34] THSC Chapter 365 [34] Definitions used in this law [34] What are the crimes defined by THSC Chapter 365 ? [35] THSC Chapter 365 Litter Abatement Act penalties [36] TWC Chapter 7, Sub E: Water pollution and other specialized violations [37] Introduction to TWC Chapter 7 Enforcement [37] Resolving potential conflicts [38] What criminal violations are covered by TWC Chapter 7, Sub E? [39] Water pollution has long been a problem [40] Water pollution definitions [41] Water pollution statutes [43] Felony water pollution [44] Misdemeanor water pollution [45] Some other Chapter 7 criminal charges [46] Illegal outdoor burning [48] Six local government enforcement options [48] Felony illegal burning [49]

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TWC Sec. 7.182: Reckless emission + unintended endangerment [49] TWC Sec. 7.183: Intentional/knowing emission + knowing endangerment [52] Misdemeanor illegal burning [54] Beware air nuisance enforcement [56]

3. Oil and Gas Waste Criminal Laws [59] A. Introduction [59] Oil and gas waste specifically defined [59] Different forms of oil and gas waste typically occur at different times [62] Finding information on the Railroad Commission’s website [63] Memorandum of understanding between the RRC and the TCEQ [65] B. Criminal laws specifically for oil and gas waste [67] TWC Chapter 29 Oil and Gas Waste Haulers [67] TNRC Chapter 91. Provisions Generally Applicable [71] Criminal Law #1: Violating a Waste Handling Code, Rule, Order, or Permit [71] Criminal Law #2: Various Paperwork and Gauge Tampering [72] Criminal Law #3: Saltwater Storage and Evaporation Pits [74] Criminal Law #4: Violations Concerning Oil and Gas HAZARDOUS Waste [75] Violating Statewide Rule 8 = Administrative and Criminal Violation [76] What the various sections of Statewide Rule 8 cover [77] Selected parts of Statewide Rule 8 useful to local peace officers [78] C. The Waste Hauler’s Permit [86] What Could Be Wrong with a Waste Hauler’s Permit? [87] Certifications Made in WH-1 Application Process [89] WHP Face of WH-1: Copy On-Board Vehicle [90] Back of WH-1: Conditions and Expiration Date [91] WHP Attachment A: Permitted Vehicles [92] WHP Attachment B: Permitted Disposal Facilities [93]

4. Common Enforcement Policy Sequence [94]

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1.

INTRODUCTION

Welcome This material is part of a larger book called Illegal Dumping Enforcement, which is the 2014 edition of the series called Local Control of Illegal Dumping that has been published annually since 2000. What you hold in your hand is that part of the larger book that deals with the various ways that cities, countries, and some special districts can respond to illegal hauling, dumping, and spilling-and-abandoning oil and gas waste. For a number of reasons, not all cities and counties in Texas are using the full content of state criminal law to stop illegal dumping, water pollution, air pollution and related crimes that hurt citizens and our resources. Even fewer local governments are using state criminal laws to do their part to help stop these activities when they involve oil and gas waste. The purpose of this little book is to attempt to change this neglect of the law by providing accurate, easy to use resource material. In addition to books, we also provide in-person and online classes in these subjects. You can get more information on this at the TIDRC.com website. My name is John Ockels, and I’m the author of this book. I'm the director of the Texas Illegal Dumping Resource Center. I’ve been teaching the subject of illegal dumping enforcement for almost 20 years, and it application to oil and gas waste for the last two. If you spot any errors or unbelievable assertions, please direct them to me at my email: ockels@tidrc.com.

Local officers, prosecutors, elected officials, and state officers (administrative and criminal) take different approaches to general dumping enforcement in different parts of our state. That’s perfectly fine. The important thing is for local elected officials to be aware of their enforcement choices and make the policy decisions that are correct for the people in their part of Texas. The way the City of Houston responds to illegal dumping will necessarily be different from how a rural county in East Texas or the City of Odessa responds. Some counties are on the receiving end of a great deal of oil and gas waste mishandling and dumping; others simply don’t have this problem — or don’t yet realize that they have a problem. When dealing with oil and gas waste, local governments have to develop policies to deal with two important general situations: 1. In the early stages of development, frequently the big problems are drilling mud and hydraulic fracturing back flow water and chemicals. If these materials are not disposed of in the proper manner — as directed by the Railroad Commission of Texas — the resulting spilling and dumping can be very visible and create major local political issues. Some counties in the Eagle Ford area are examples of this; 2. When the oil or gas well moves into the production phase, the primary waste for the

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life of the well becomes produced saltwater. Most of this waste is properly deposited in permitted injection wells. However, when this saltwater and other substances are illegally disposed into water and water courses, the problem is much more destructive of resources and generally invisible to local government. Some counties in the Barnett Shale area are examples of this. Some oil and gas waste dumping is extremely visible, such as shown in the picture on the cover, and other dumping is not. Our purpose here is to show that local governments have real options they can use to deal with both of these situations. The really important thing is that local policy decisions not be made out of ignorance, but with clear understanding of the options available. Texas cities and counties are not yet at the point where dealing with dumped oil and gas waste as a routine criminal matter. There is still a very strong tendency to assign all responsibility for enforcement to the Railroad Commission, which is an impossibility. There is simply too much going on for a state administrative agency to be in effective control, when acting alone. And anyway, relying on the Railroad Commission to carry the enforcement load by itself is definitely not state policy, as set by the State Legislature. This policy is fairly easy to discern: What actions concerning oil and gas waste handling and disposal have the State Legislature designated to be “criminal”? The policy of the State Legislature is for commissioned peace officers — virtually all of whom work for local government — to enforce the criminal laws the legislature sets. Pretty simply, really. A serious question to be considered, then, is whether a particular city or county experiencing oil and gas waste dumping is enforcing the criminal laws provided by the State Legislature. Local governments partnering with the administrative staff at the RRC to produce an appropriate mix of administrative and criminal enforcement is simply good policy, both at the state and local level. This is what has happened with the TCEQ and local government to deal with general pollution, and it seems to us to be a good model to reproduce for controlling oil and gas waste. Throughout this book “TWC” will refer to the Texas Water Code; “THSC” will refer to the Texas Health and Safety Code; “NRC” will refer to the Texas Natural Resources Code; “TCEQ” will refer to the Texas Commission on Environmental Quality; “RRC” will refer to the Railroad Commission of Texas; “DSHS” will refer to the Department of State Health Services; and, “TPWD” will refer to the Texas Parks and Wildlife Department. Both the TCEQ and TPWD, but not the RRC, maintain extremely effective, but small, Environmental Crimes Units (“ECUs”). Ten Questions and Answers About Oil and Gas Waste Enforcement The ten questions following are those that seem to arise over and over in classes and discussions of how local governments can deal with oil and gas waste. They serve as a good orientation to the problem and can be the basis of beginning discussions.

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1. Isn’t it the Railroad Commission’s job to respond to oil and gas waste dumping and mishandling? Yes, but not by themselves alone. The State Legislature has given the Railroad Commission the job of regulating most things happening in the oil and gas industry, including regulating oil and gas waste. They do their job in regulating waste by issuing various kinds of waste hauling permits, and regulating the permit holders to be sure they are staying within the bounds of their permits. This is the world of administrative and civil enforcement. Given the size and growth of the regulated oil and gas exploration and production community (and the due processes required by administrative law) the Railroad Commission does a great job of responding to most violators. It should be noted that virtually all of the rule violations to which the RRC responds are discovered by the RRC investigators doing their job. For instance, the report to the State Legislature for FY 2012 showed the RRC performed 118,484 field inspections and discovered 55,960 violations through their efforts. During the same time the agency received 727 complaints from other sources and resolved 561 of them. By any standards, that’s impressive. There are three ways that any activity can be regulated: through administrative enforcement, through civil enforcement, and through criminal enforcement. The RRC uses the first two of these approaches, but, having no criminal enforcement unit, does not undertake the third. Criminal environmental enforcement in general is provided almost exclusively by police, constables, deputies, fire marshals, and other certified peace officers working for local governments. If a local community is to benefit from criminal enforcement of Texas criminal laws regulating oil and gas waste, it will most likely be through the efforts of its own officers. The state has extremely limited resources to use in policing general environmental crimes, and even fewer resources to police environmental crimes involving oil and gas waste. Moreover, most of the criminal statutes available are misdemeanors. Consequently, just about all government response to criminal violations involving oil and gas waste will come from cities and counties, just as the State Legislature anticipated. It is important, however, for local police to keep the RRC informed of cases involving oil and gas waste. The best approach is for local peace officers doing these cases to get to know the district RRC field investigators.

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2. Can local governments enforce criminal laws against persons with a Waste Hauler’s Permit issued by the RRC? Yes. Local governments have primary response authority within their jurisdictions for most criminal violations, regardless of whether a person holds a state permit or not. The enforcement and regulation system works best when everybody does their their thing — the Railroad Commission does administrative and civil enforcement of violations involving oil and gas waste; local peace officers respond do criminal cases, and local prosecutors resolve the criminal charges, either through agreements with the guilty party or local trials — and everybody keeps in touch. The criminal laws used to deal with oil and gas waste violations are just more criminal laws. Instead of being found in the Penal Code, they are found in the Water Code, the Health and Safety Code, and in the Natural Resources Code. 3. What are the easiest criminal laws for local governments to use to deal with oil and gas waste? Read details of these options in this book and in the material for the online classes at TIDRC.com. 1. THSC Chapter 341 for basic health nuisance criminal violations [Fine for individual: $10 - $200; Confinement: None]. Sometimes the provisions of THSC Chapter 343 can also be useful; Note that county employees serving as Designated Representatives of the TCEQ On-Site Sewage Facility program should not enforce THSC Chapter 366 where the sewage is oil and gas waste. Other county officers and employees can use this section of THSC Chapter 341 instead for good results. 2. THSC Chapter 365 for illegal dumping of just about everything EXCEPT oil and gas waste (i.e., “man-camp” waste dumping); This specific law cannot be used to deal with oil and gas waste dumping; use others instead. 3. TWC Chapter 7, Subchapter E for water pollution and several other criminal charges especially TWC Sec. 7.145 and TWC Sec. 7.147 [Large fines and confinement]; 4. TWC Chapter 29 for common misdemeanor violations by oil and gas waste haulers [Fine: $100 - $1,000; Confinement: To 10 days in county jail]:

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TWC Sec. 29.041. HAULING WITHOUT PERMIT. TWC Sec. 29.042. EXCEPTIONS. TWC Sec. 29.043. USING HAULERS WITHOUT PERMIT. TWC Sec. 29.044. DISPOSING OF OIL AND GAS WASTE. TWC Sec. 29.045. USE OF UNMARKED VEHICLES. TWC Sec. 29.046. PENALTY. 5. NRC Section 91.002 setting a criminal penalty for oil and gas waste handling that violates Section 91.101 or a rule, order, or permit issued by the RRC under that section, such as Statewide Rule 8 [Fine of up to $10,000 per day per offense]; Some of the provisions of Statewide Rule 8 can be easily applied by local governments, and others will require the assistance of RRC field investigators. 6. NRC Section 91.143 includes felony provisions for creating or using false documents such as forged or false waste hauling permits or for tampering with gauges [Fine to $10,000 and/or confinement from 2 to 5 years]; 7. NRC Section 91.458 (setting a criminal penalty for certain violations concerning unauthorized saltwater disposal pits) and NRC Section 91.604 (setting a criminal penalty for violations concerning oil and gas hazardous waste); 8. Penal Code Sec. 37.10, setting a penalty for tampering with a government record, such as an altered or forged waste hauling permit [third or second degree felony, depending on the situation]; 9. Statewide Rule 8, more formally known as Title 16 Texas Administrative Code Section 3.8, which is the rule developed by the RRC to issue waste hauling permits and control the disposal of oil and gas waste. However, violating this rule is also a criminal act under NRC Sec. 91.002; and, 10. TWC Sec. 7.351 Civil Suits by local governments where it makes sense to impose major financial civil penalties rather than apply criminal laws, primarily including violations of TWC Chapter 26, which regulates dumping any waste or pollutant (including saltwater) into water. This is complicated and not always applicable, so get outside help. 4. Does the Railroad Commission have to give it’s permission for local governments to act? No. The RRC does it’s thing on administrative and civil violations, and local government does its thing on criminal violations. This is just like any other state agency that might have administrative responsibility for some activity also subject to criminal law. For example, the TCEQ — even in the case of oil and gas waste — has administrative responsibility for illegal outdoor burning in Texas.

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Accordingly, this agency responds to many outdoor burning rule violations, including unpermitted commercial disposal fires. At the same time, local peace officers respond to felony illegal burning (i.e., unpermitted burning in which a third party is put in imminent danger of death or serious bodily injury by the air contaminants being emitted by the fire) and misdemeanor illegal burning (i.e., any violation of the Outdoor Burning Rule is also a criminal violation of TWC Sec. 7.177). However, even when the response to oil and gas waste dumping is handled as a criminal violation by local officers, it’s always good policy for local officers to know and work with RRC district field investigations. Local officers should always let the district RRC office know about cases that local government is working and resolving. 5. Why can’t local government use the same law it does to stop general illegal dumping? Because the State Legislature says it can’t. The most commonly used law to stop illegal dumping is the Texas Litter Abatement Act — Texas Health and Safety Code Chapter 365. This law sets fines and confinement for various illegal dumping acts (i.e., dumping, allowing dumping, receiving illegally dumped waste, hauling for dumping) based on the weight or volume of solid waste or litter involved. Since this law deals specifically with solid waste and litter, officers pay strict attention to what’s included — and not included — in those two definitions. 1. The State Legislature has provided language in the definition of solid waste used in THSC Chapter 365 that specifically removes oil and gas waste from that definition:

THSC Sec. 361.003(36)(A) The term (i.e. solid waste) does not include … (iii) waste materials that result from activities associated with the exploration, development, or production of oil or gas or geothermal resources and other substance or material regulated by the Railroad Commission of Texas under Section 91.101, Natural Resources Code. 2. Moreover, since oil and gas waste is also industrial waste — a category excluded from the definition of litter used in THSC Chapter 365 — you can’t consider oil and gas waste to be litter either. As it turns out, however, not being able to use the Litter Abatement Act is not a real problem; the State Legislature has provided several specific criminal laws to use in dealing with various sorts of waste and situations that will fill this gap.

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6. Can local government use other general anti-pollution laws to control oil and gas waste? Yes. Often times, it can. As long as they’re not using THSC Chapter 365 — the Texas Litter Abatement Act — they can use many of the general environmental criminal laws to respond to oil and gas waste issues. Local governments knowing and using the laws listed at Question 3 above should be all set. Also, note that sewage and general trash generated as a byproduct of the oil and gas exploration and production process at a well or other related location is considered to be oil and gas waste. Please help educate the general public — and elected officials — that these waste items generally under the jurisdiction of the TCEQ are NOT, if they are classified as oil and gas waste. However, trash and sewage improperly disposed at trailer camps, “man-camps,” and other places folks live off-site when they are not working are not considered to be exempt from any of the state criminal environmental laws and rules. Local government can use the standard environmental criminal laws to respond to violations in these places — including using THSC Chapter 365 to deal with illegal dumping. 7. Why isn’t the TCEQ acting to control oil and gas waste in our community? Because the State Legislature has specifically assigned that task to the Railroad Commission … and to local government. For a clarification of the overall decisions of the State Legislature concerning which agency is to handle various types of waste, read the Memorandum of Understanding between the Railroad Commission of Texas (RRC) and the Texas Commission on Environmental Quality (TCEQ) at Title 16 T.A.C. Sec. 3.30. The attorneys and managers from the two agencies have followed the direction of the State Legislature for decades in creating and maintaining this document that expresses their common understanding of state law as applied to the oil and gas exploration and production business. One useful section to help understand this reads:

16 T.A.C. Sec. 3.30(d)(1). Several types of waste materials can be generated during the drilling, operation, and plugging of these [oil, gas, or geothermal resource] wells.

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Oil and Gas Annex These waste materials include drilling fluids (including water-based and oil-based fluids), cuttings, produced water, produced sand, waste hydrocarbons (including used oil), fracturing fluids, spent acid, workover fluids, treating chemicals (including scale inhibitors, emulsion breakers, paraffin inhibitors, and surfactants), waste cement, filters (including used oil filters), domestic sewage (including waterborne human waste and waste from activities such as bathing and food preparation), and trash (including inert waste, barrels, dope cans, oily rags, mud sacks, and garbage). Generally, these wastes, whether disposed of by discharge, landfill, land farm, evaporation, or injection, are subject to the jurisdiction of the RRC. Wastes from oil, gas, and geothermal exploration activities subject to regulation by the RRC when those wastes are to be processed, treated, or disposed of at a solid waste management facility authorized by the TCEQ under 30 TAC Chapter 330 are, as defined in 30 TAC §330.3(148) (relating to Definitions), "special wastes." The Railroad Commission handles the enforcement of administrative violations concerning oil and gas waste, and local government handles the enforcement of criminal violations. The TCEQ may be able to answer questions for local government as part of their Small Business and Local Government Assistance program, but the State Legislature has placed responsibility for oil and gas waste administration with the RRC and local government. But in all honesty, the problem in controlling oil and gas waste is not at the state level. Most problems arise from local governments not using the criminal enforcement powers given by the State Legislatures, as is true when the issue is controlling general illegal dumping, water pollution, and other environmental violations. 8. We’re smart people here in our local government; why have we never heard of our enforcement powers? You mean, “Why don’t we know what we don’t know?” Environmental criminal laws are almost never covered in law enforcement academies, so the peace officers trained in these academies are generally unaware of the state criminal laws protecting our air, land, and water resources. The criminal laws provided to local governments to control oil and gas waste are even more unknown. The same situation exists in Texas law schools, where most of our criminal prosecutors are trained. If a law student wants to study environmental law, he or she may be limited to one class that covers federal law and the administrative enforcement thereof. Specific

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classes on Texas criminal environmental law — and on the criminal laws that can be used for oil and gas waste — are simply not available in Texas law schools. Moreover, when the city administrator decides to further his or her education an earns a Masters of Public Administration degree, it’s extremely likely that the entire program will have no mention at all of the criminal environmental laws that can be used to control waste, including oil and gas waste. This general lack of training can result in a situation where several local officials find themselves agreeing with each other (incorrectly) that “This is a state problem; there’s nothing we can do.” It’s really that simple. Local government is a very busy place these days, and nobody is loafing. But if police, prosecutors, city attorneys, and elected officials all agree that “There is nothing that we can do,” it can be difficult to break through that mental road block. In some situations, local officials may even be under the impression that citizens don’t expect them to respond to oil and gas waste violations. However, as citizens become wiser as to what to expect, so do local officials. All local officials have to do is to look around. Many cities and counties have developed outstanding programs of local environmental protection through enforcing state criminal laws. Now more and more counties and cities in the oil patch are learning that criminal laws exist to stop bad hauling and dumping of oil and gas waste, and that using these laws just takes a little learning and a decision: the decision to act.

A few tires: maybe easy to ignore

Drilling mud: politically impossible to ignore

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9. Doesn’t local criminal enforcement of laws against oil and gas waste make the industry mad? No. Just the opposite. If a law concerning oil and gas exploration and production is on the books in Texas, the oil and gas industry definitely supports it. Otherwise, it probably wouldn’t be on the books at all. Virtually all handling, hauling, and disposal of oil and gas waste is done by the industry in a very responsible and lawful manner: the companies doing things right certainly don’t want to be underpriced by outlaws. Moreover, when outlaws make a mess, it reflects on the entire oil and gas industry, not just on the bad actors. Since virtually all oil and gas operators want to be in a long, stable, friendly relationship with their neighbors, there is wide support for using state and local authorities to keep things clean. As local officers get to know the oil and gas operators in their community, they will find that virtually all of the industry supports enforcement against violators. 10. What if local government doesn’t want to act to control oil and gas waste dumping? Well, that would be pretty weird. They’ll probably have a needlessly messy, and dangerous, city or county. They’ll have very upset citizens too, when they discover that city or county government has turned its back on local enforcement. Local government has to get involved to solve this problem: it’s a matter of math. The RRC has a limited number of inspectors — around 150 oil and gas field inspectors statewide — and they are looking at the entire oil and gas exploration and production business. Their work is not limited to oil and gas waste violations. Moreover, Texans and others are drilling more and more wells every day. The well count for February 2013 shows almost 400,000 wells of all types (oil and gas, active, capped, monitoring, and injection/disposal) in Texas, of which about 290,000 are active oil and gas production wells. Every one of these wells produces some kind of waste throughout its active life. The American Petroleum Institute estimates that about 1.21 barrels of waste are generated per foot drilled, over the life of a well (see note below). In FY 2012, the RRC reported that its inspectors performed 118,484 inspections of these wells and other permitted facilities. That’s a lot of work for a small crew trying to cover about

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8.5% of the land mass of the “Lower 48” states. What’s the chance that a RRC field inspector will be immediately present when an event of outlaw hauling or oil and gas waste dumping happens? It’s not like these folks are sitting around their district offices waiting for someone to call: they are busy out working. Isn’t it much more likely that local police, deputies, constables, fire marshals, and other sworn officers already working to protect the city and county will be closer? The RRC investigators are doing all they can to respond to oil and gas waste problems throughout the state, but if local government watches problems happen without responding, there’s not much chance things will get better as fast as citizens want. Note: The estimate of 1.21 barrels (42-gallons) of waste per foot drilled was calculated in a 2000 paper from the American Petroleum Institute called “Overview of Exploration and Production Waste Volumes and Waste Management Practices in the United States.” The estimate was based on a 1985 API study, which the paper asserts was still a valid estimate in 1995. This is a widely used figure in the literature discussing oil and gas waste, both for and against various practices. This figure is used, for instance, (1) in a 2011 series of articles in the Denton Record Chronicle called “Practice lays waste to land” that reports on some negative effects of land farming; (2) in various presentations oil and gas well service companies; and, (3) in a government presentation called “Environmental Benefits of Advanced Oil and Gas Exploration and Production Technology” by the Department of Energy. When everybody — from all points of view — agrees on a particular figure, and that figure comes from one twenty-or-thirty-year old source, it’s reasonable to question it. Technology moves forward in most fields, including reducing the amount of oil and gas waste generated in the exploration and production process. What seems beyond debate is that (1) there is a lot of oil and gas waste generated, in spite of efforts to reduce the volume; (2) most of it is in the form of produced saltwater; (3) most of it winds-up in injection/disposal wells; (4) all waste handling methods — including land farming — are controversial; (5) the RRC doesn’t have enough field inspectors to be everywhere at once; (6) when the cat’s away the mice will play; and, (7) local governments are not doing all they can to control oil and gas wastes in their boundaries, simply because they don’t know they can.

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Enforcement Summary Chart

This chart shows the five approaches that state and local governments can use to solve environmental pollution problems. If this chart is a little too small to read — or if you want to retain a reference copy — just go to www.tidrc.com/resources.html . There’s a way to handle general illegal dumping under each of these five approaches, depending on the situation. For example, very small scale dumping inside a city might be best handled as a code violation if the violator owns or controls the property being used for disposal. If the property belongs to somebody else, very small amounts dumped might be best handled as a public health nuisance violation (THSC Sec. 341.013(c)) or as a “C” misdemeanor violation of THSC Chapter 365. Commercial dumping might be best handled as an “A” misdemeanor or state jail felony level violation of the same law, or as a specialized violation of TWC Chapter 7 (Subchapter E), if that is more appropriate to address the situation. When your city or county is being dumped on commercially by out-of-county entities with money, perhaps the best approach is to simply sue the company under the powers cities and counties have under TWC Sec. 7.351. That will result in immediately stopping the practice,

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generate an immediate “good-faith-this-was-all-just-a-big-misunderstanding” site clean-up, and move toward a negotiated payment of civil damages that may run as high as $25,000 perviolation, per-day-of-violation. Since these civil suits are handled as strict liability, the city or county doesn’t have to show it has been actually damaged, just that the plaintiff violated the statute, rule, permit, or TCEQ order involved. Half of any civil penalties paid go to the state and the other half stays with the local government bringing the successful suit. Most city and county attorneys are unaware of this option, which can be undertaken without the approval of the TCEQ or any other agency. Successful management of these civil suits can be tricky, so cities and counties considering this approach should retain expert outside legal assistance. So you can see how knowing all your enforcement options — as depicted on this chart — will help you consider most of your major alternatives to deal with illegal dumping. Oil and gas waste dumping is generally handled in the same manner. There are things to be done at each level, although the specific criminal laws change a little: (a) Chapter 365 — the Litter Abatement Act — cannot be used; and, (b) two additional criminal laws become available — TWC Chapter 29 and NRC Chapter 91. Readers having a good understanding of the laws available for general dumping will have no problem understanding the slight change in approach needed when dealing with oil and gas waste. On the other hand, some may be learning for the first time that the criminal laws for handling general dumping, water pollution, and air pollution exist. Note that the names of the five approaches are shown on the left side of the chart, written in rotated letters. Working from the bottom to the top: Admin refers to the enforcement of Texas Administrative Code by the administrative officers of the TCEQ or other agency, such as the RRC. This is the only type of enforcement shown here that cannot be done directly by local authorities. For the most part, the administrative enforcement of oil and gas waste statutes has been placed by the State Legislature with the Railroad Commission. Administrative violation of the Texas Clean Air Act remain the responsibility of the TCEQ. The TCEQ tends to enforce rules found in Title 30 of the Texas Administrative Code; the RRC tends to enforce those found in Title 16. Code refers to municipal code enforcement by officers in most Texas cities. This is the type of enforcement with which readers are often most familiar. Unfortunately, the usefulness of municipal codes in dealing with illegal dumping is, in my opinion, fairly limited. Codes against having “refuse on a lot” can be effective against an owner or possessor dumping waste on his own property or on nearby vacant lots. But codes against actually doing the dumping — on one’s own property or elsewhere — can be very difficult to enforce. With these violations, the line has been crossed into purely criminal activity, and using criminal laws may be both more effective and safer. This is especially true in situations where the dumper is unknown (to begin

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with), the dumping is being done for commercial reasons, or the dumping is of a large amount of waste. These are the times for criminal law enforcement to become involved. Many larger cities in the Barnett Shale area of North Texas have developed long and comprehensive municipal codes governing many aspects of exploration, development and production. Cities in the Eagle Ford and newer areas would benefit from reading some of the longer oil and gas well ordinances from places such as Ft. Worth, Burleson, Flower Mound, and Denton. These longer ordinances will help Eagle Ford communities identify the issues that they will likely face as field development continues. Health refers to the enforcement of health nuisance statutes by one of the 63 formally organized local health departments in the state or by a county employee trained by the local health authority. Note that police, deputies, constables, T.C.L.E.O.S.E.-certified fire marshals, and other law enforcement officers can also enforce these laws, with or without the presence of a formal health department in the jurisdiction. The major value added by local health authorities is their ability to order immediate abatement of health nuisances under THSC Sec. 341.012. Where local health department and authority officers fail to exercise their health nuisance abatement powers — as detailed in THSC Sec. 341.012 — that were granted by the State Legislature, the result will be that the nuisance persists longer than need be. County employees serving as Designated Representatives of the TCEQ should not attempt to enforce THSC Chapter 366 in cases where the sewage is oil and gas waste. Instead, local officers can use THSC Chapter 341. Chapter 2 (Part A) below discusses these health nuisance laws. Criminal refers to local peace officers enforcing various state criminal statutes designed by the state legislature to keep pollution under control. State-level peace officers — including the criminal investigators of the TCEQ’s Environmental Crimes Unit and the specialized game wardens in the Texas Parks and Wildlife Department’s Environmental Crimes Unit — can also enforce these laws. But most of the work falls on local peace officers, just because to the number and location of cases and officers. Chapters 2 (Part B) and 3 below addresses using Texas criminal laws to deal with the act of dumping itself, including dumping into or adjacent to water and dumping particular items, such as used motor oil, lead-acid batteries, hazardous waste, and medical waste. Note that the “favorite” law local officers use to deal with general jumping — THSC Chapter 365 — is simply not available to use directly against oil and gas waste. Chapter 3 below deals with local governments using Texas criminal laws specifically created by the State Legislature to respond to illegal oil and gas waste hauling and disposal. Civil refers to local county attorneys and city attorneys using their powers under TWC Sec. 7.351 to sue polluters to make them stop their activities and to pay civil damages (which can amount to $25,000 per day per violation). State law designates the RRC to instigate most civil suits involving the oil and gas industry. However, when the underlying violation involves water pollution or illegal outdoor burning — violations of TWC Chapter 26 and THSC Chapter 382 respectively — local governments can likely use their civil suit powers. This can be a complex

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undertaking, and governments desiring to explore this possibility should contact an expert in this field. We recommend (no commercial tie) getting in contact with Daniel Ray at Scott, Money & Ray, PLLC, in Greenville. This is the private firm that Hunt County, Greenville, Commerce, Ector County, Sulphur Springs and several other Texas cities and counties are using to handle TWC Sec. 7.351 suits. Dan’s number is 903/454-0044 and his email address is daniel@ScottMoneyRay.com. Texas local governments — cities, counties, and many special districts — can use all of these except administrative enforcement. That approach is reserved to the various state agencies. Every city can use all of the other four approaches; Texas counties can use three — Health, Criminal, and Civil — since counties have no municipal codes to enforce. Note that a city or county doesn’t have to apply these approaches in any sequence, and can often use multiple approaches simultaneously. The remainder of this class will be a closer look at these tools as they can be applied to the problems generated by oil and gas waste mishandling and dumping. Oil and Gas Waste: There Are Always Several Enforcement Approaches Available One of the interesting things about illegal dumping enforcement is that the city or county always has a choice of several approaches — civil or criminal enforcement — and a choice of criminal laws to use — including those for health nuisance violations, illegal dumping violations, possible water pollution, or possible dumping of special kinds of waste. Additionally, a city may have the choice of handling dumping as a municipal code violation. Or perhaps the city or county will decide that handling the problem through a civil suit makes more sense. These options raise the policy questions of “What’s the best approach to use?” and “Who gets to decide?” For instance, if a waste hauling company decides to save some money and disposes of 300 pounds of oil and gas waste — used drilling mud — by dumping it close to water, inside the city limit, without a permit to do so, local government might treat this act as: (1) A code violation, with a potential penalty of a fine of up to $500 or possibly $2,000; (2) A criminal health nuisance violation of THSC Sec. 341.013(c), with a penalty of a fine to $200, each day the waste is on the ground being a separate violation; (3) A waste disposal violation of TWC Chapter 29 Oil and Gas Waste Haulers [$100 to $1,000 and/or ten days in the county jail per violation]; (4) A violation of one or more provisions of Statewide Rule 8 (for example, section b, that prohibits water pollution, and other sections), which are each, in turn, a violation of NRC Sec. 91.002 ($10,000 per violation with venue in the county where the violation happened);

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(5) Felony water pollution under TWC Sec. 7.145, with a penalty a fine for a company or association ranging from $1,000 to $250,000 per event, per day the waste is on the ground (if the violator was an individual, the maximum potential penalty is confinement for up to 5 years and/or fine of as much as $100,000); (6) The city may decide to bring a major civil suit against the polluter to stop the dumping, force immediate clean-up, and set civil penalties (cities and counties can both do this under Texas Water Code Sec. 7.351 for a TWC Chapter 26 water pollution violation [for example, TWC Sec. 26.121(a) that prohibits such disposal without a permit], although few know of these powers); [civil penalties can amount to $25,000 per violation per day, divided with the state]. So the local government policy issues are (1) “Which, if any, of these approaches does it decide to use?”; and, (2) “Who makes the decision — the first officer on the scene, the city manager, the sheriff, or county judge, who?” Instead of “There’s nothing we can do,” the problem for local government becomes just the opposite. By the time you’ve finished this book, we hope that you have learned the options that your city or county has, and have also thought through a few of the policy decisions that have to be made before effective enforcement can take place when the violations involve oil and gas waste. We also hope you see that ignoring the problem — or referring all oil and gas waste dumping violations to the RRC — are simply not good approaches. If a local jurisdiction decides to ignore dumping or tries to pass the buck, the citizens will not tolerate it for long. Citizens are getting smarter and smarter about the laws available to keep their communities clean. If the current elected officials won’t do the job, the next batch will, or the one’s after those.

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2.

GENERAL ENVIRONMENTAL CRIMINAL LAWS

A. FOCUSING ON THE WASTE DUMPED State anti-pollution laws that can be used by local governments divide fairly naturally into two groups: (1) laws that mostly focus on the mess made by the dumping, dealing with the public nuisance or health nuisance created by waste being in the wrong place; and, (2) laws that focus on the criminal act of dumping itself that resulted in the waste being in the wrong place. Good enforcement policy involves using both of these approaches simultaneously: the mess has to be removed and the violator has to be educated, often through some form of punishment. This section deals with dealing with the waste itself and eliminating the health and public nuisances that dumping creates. The primary tools local governments use in this approach are municipal codes and the two main health nuisance laws — THSC Chapter 341 and 343, although we advocate using one section to handle most health nuisance violations: THSC Sec. 341.013(c). Municipal Code Enforcement Readers probably know a great deal about the use of municipal codes already, so we’ll just mention them at the start of this section. About 900 of Texas’ 1,210 cities and towns have some form of active code enforcement. In a couple of hundred cases, however, a smaller city may have municipal codes, but no municipal court or officers, which can make enforcement difficult. In some of these unique situations the city may have worked a deal with a county constable to enforce Texas health nuisance statutes when violations happen inside the city, filing cases in JP Court. Or perhaps the city has worked out some other approach, like hiring a local JP to work a day or two each month as a municipal judge to hear cases. In other situations, the city has entered into an Interlocal Agreement and is buying enforcement services from some other jurisdiction. Just because a smaller community can’t afford a full-time municipal judge is no reason to forego code enforcement — or using the code-like provisions of THSC Chapter 341. Good code enforcement alone, however, may not always get the job done. Most sets of municipal codes, for example, include violations for a person possessing or owning property having piles of disposed refuse on the property, as well as separate offenses for the act of disposing refuse on property anywhere. These ordinances may work well for property owners who dump waste on their own property, but be difficult or even dangerous to use to stop dumping by third parties. That’s where using criminal anti-dumping laws can be very useful. Of course, if your local police don’t know — or refuse to use — state criminal laws against dumping, city or county management will have to instruct law enforcement officers to get involved. Trying to control a mobile illegal dumper with municipal codes is simply using the wrong tool: criminal acts require criminal law enforcement. The Office of Court Administration maintains an enormous amount of locally reported data

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about municipal courts on their site. In 2010 the courts reported to the OCA — there’s a mandatory process in which municipal courts report cases filed, cases cleared, and dollars received — that almost 7,500,000 cases were filed in Texas municipal courts, of which almost 5% — 362,825 cases — were municipal code cases. The rest of the cases filed in municipal court that year were for parking violations, moving traffic violations, and “C” level criminal misdemeanors filed at the city level. Collectively, the municipal courts in Texas generated over $750,000,000 in revenue that year. You can go to the OCA web address [http://s.coop/tf85] and access data to see how you compared with state average case filings. Note that the reporting criteria changed as of September 2011, so don’t get confused. However, for municipal code cases, most are resolved long before they ever reach municipal court. So for each of the 362,825 municipal code cases actually filed, there were many more that were handled through voluntary compliance. Although we don’t keep track in Texas of that overall number, altogether there are probably a couple of million code violations handled each year in Texas. This kind of environmental enforcement is easily the biggest thing we do to assure a clean and healthy Texas. Consequently, if a city is unhappy about the effectivity of its municipal code enforcement program, this is the area to spend time, money, and effort. Criminal enforcement processes become secondary until code enforcement is working. Example: Town of Flower Mound Oil and Natural Gas Ordinance Texas municipalities can develop ordinances that can be used to help moderate the impact of oil and gas well drilling inside their limits. One of the most comprehensive ordinances is that developed by the Town of Flower Mound, a bedroom community in Denton and Tarrant Counties in the Barnett Shale area of North Texas. The estimated census data for 2011 showed the Town as having an estimated 67,019 residents living in 20,424 households. As a community, Flower Mound is very well off, having an annual household income of $118,143 vs. $50,920 for the state. Just 2.8% of the persons living there have incomes that classify them as being below poverty level, versus 17% state-wide. It is regularly voted as being among the “Top 10” places to live in any number of state and national rankings. Fifty-three percent (53.1%) of the population over 25 hold a bachelor’s degree or higher, compared to 25.8% of the entire state’s over-25 population. Flower Mound issues permits to drill oil and gas wells inside the city limit. In this town of 40 square miles, there are currently 18 active Town-issued permits for natural gas development, under which 58 individual wells have been drilled from a total of 82 authorized by the 18 permits.

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Town staff have reported several times that they greatly enjoy working there because of the great support and interest in their activities shown by the residents, including a great deal of interest in the way that local management of the oil and natural gas exploration and development process is conducted. Consequently, their current ordinance has addressed a very wide number of topics, and at 92-pages is the most comprehensive such ordinance we could locate. By comparison, other cities in the Barnett Shale area have “lightweight” ordinances: the City of Arlington’s Gas Drilling and Production is a brief 67 pages, the City of Fort Worth’s runs 66 pages, and the City of Burleson’s 50 pages. A common feature of Barnett Shale major cities it the high quality of information that are making available on gas production inside city limits to residents and other Internet users. It makes sense for cities of just about any size to become very good at the use of social media and in communicating with the public on what are often highly emotional issues. There’s a saying attributed to the World War I-era Republican U.S. Senator from California, Hiram Warren Johnson: “The first casualty when war comes is truth.” This often seems to apply to conflicts between well-meaning-but-information-poor citizens and the oil and gas industry too. Consequently, there is no more important job at the local government level than getting as much accurate information into the public discussion as possible. The goal should be to become “honest brokers of accurate information” so that unnecessary conflicts can be avoided whenever possible. Social media and the Internet, properly used, are the perfect tools for local governments needing to convey accurate and timely information to their citizens, as the efforts of Barnett Shale cities show. Communities considering developing or expanding their own ordinance would be wellserved by reading the Town of Flower Mound Oil and Natural Gas Ordinance, since it provides a good overview of the types of issues that towns will eventually address. Reading it will “not tell you what to think, but it will tell you what to think-about” in developing your own local ordinance. Following is a list of the sections and major topics addressed by this ordinance. Subcategories have been shown in two cases to give a better feel of the level of detail this ordinance addresses. You can read the entire document at http://tx-flowermound.civicplus.com/ DocumentCenter/View/900 . Town of Flower Mound Oil and Natural Gas Ordinance SECTION 1 Integra Well Site Impact Study Kleinfelder Ambient Air Quality Evaluations EPA Concerns about Hydraulic Fracturing and Drinking Water Resources Natural Gas Drilling and Soil Contamination Issues

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Natural Gas Drilling and Federal Government Infrastructure Insurance Issues Related to Natural Gas Drilling Purposes for Town’s SMARTGrowth Program and Congruency with Purposes for Oil and Natural Gas Drilling and Production Regulatory Framework

SECTION 2 Sec. 34-416. PURPOSE. Sec. 34-417. DEFINITIONS. Sec. 34-418. OIL AND GAS INSPECTOR. Sec. 34-419. OPERATOR’S AGENT. Sec. 34-420. OIL AND GAS WELL PERMIT REQUIRED. Sec. 34-421. OIL AND GAS WELL PERMIT APPLICATION AND FILING FEES. Sec. 34-422. OIL AND GAS WELL PERMIT. (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (l)

Generally. Application requirements. Permitting procedure Wells setbacks for oil and gas well permits. Erosion Control Plan. Vehicle routes for oil and gas well permits. Work hours for oil and gas well permits. Emissions requirements for oil and gas well permits; emissions compliance plan. Noise restrictions for oil and gas well permits. Tank specifications for oil and gas well permit. Building Permit Required. All other provisions outlined in this article shall be required.

Sec. 34-423. AMENDED OIL AND GAS WELL PERMITS. Sec. 34-423.1. TRANSFER OF OIL AND GAS WELL PERMITS. Sec. 34-424. SUSPENSION OR REVOCATION OF OIL AND GAS WELL PERMITS. Sec. 34-425. PERIODIC REPORTS. Sec. 34-425.1. PUBLIC INFORMATION. Sec. 34-426. BOND, LETTERS OF CREDIT, INDEMNITY, INSURANCE. Sec. 34-427. TECHNICAL REQUIREMENTS. (a) On-site requirements (1) Abandoned wells. (2) Annual meeting with town required. (3) Blowout prevention. (4) Chemical and materials storage. (5) Closed-loop drilling fluid systems. (6) Compliance. (7) Discharge. (8) Drilling Fluids. (9) Drilling fluid storage pit. (10) Drill stem testing. (11) Drip pans and other containment devices.

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(12) Dust, vibrations, odors. (13) Electric lines. (14) Electric motors. (15) Emergency response plan. (16) Equipment painted. (17) Explosive charges. (18) Fire prevention; sources of ignition. (19) Fresh water wells. (20) Gas emission or burning restrictions. (21) Gas well stimulation. (22) Grass, weeds, trash. (23) Green completions. (24) Hazardous materials plan. (25) Lights. (26) Lubricating oil purification units. (27) Muffling exhaust. (28) Organic solvents. (29) Pipe dope. (27) Muffling exhaust. (28) Organic solvents. (29) Pipe dope. (30) Pits. (31) Private roads and drill sites. (32) Salt water disposal (injection) wells. (33) Secondary containment systems. (34) Soil sampling pre- and post-drilling; periodic soil sampling. (35) Soil sampling parameters and sampling requirements for pits. (36) Signs. (37) Storage of equipment. (38) Storage tanks. (39) Tank battery facilities. (40) Surface casing. (41) Valves. (42) Waste disposal. (43) Watchperson. (b) Pursuant to section 34-432 of this article, the oil and gas board of appeals may issue variances to technical requirements (8), (19), (21), (25), (27), (28), (30), and (35) set out in subsection (a) of this section.

Sec. 34-428. SCREENING, FENCES, AND GATES Sec. 34-429. EMERGENCY CONTROL; CLEANUP AND MAINTENANCE. Sec. 34-430. PLUGGED AND ABANDONED WELLS. Sec. 34-431. TECHNICAL ADVISOR. Sec. 34-432. APPEALS. Sec. 34-433. PENALTY.

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If better regulation of oil and natural gas exploration and development is a goal for a municipality, it should consider the value that is to be found in a well-crafted municipal ordinance. It’s certainly true that there is a difference between what home rule and general law cities can do, drilling oil or gas wells inside the city limit will raise all of the above issues and more. Criminal Health Nuisance Laws Now turning to the primary subject of this section, Texas has two very useful health nuisance laws that can be used to deal with illegal dumping. These are Texas Health and Safety Code Chapters 341 and 343. Both of these laws can be enforced by local health departments and by local peace officers in many situations generated by oil and gas waste. So if you don’t have a health department, don’t worry about it. Your police or deputies can also enforce these statutes, once they learn to use them. And, again, don’t be too quick to say that your police or deputy sheriffs won’t enforce these laws. The truth is that police and deputies enforce the laws as they are directed by their management. So using these laws becomes a matter of local policy decision by the bosses. Together these two laws can provide a means of having what amounts to code-like enforcement in unincorporated areas by using state criminal statutes. Two Health Nuisance Laws Are Available. The first of these — THSC Chapter 341 "Minimum Standards of Sanitation and Health Protection Measures” — can be used inside cities and out in unincorporated areas alike; the other — THSC Chapter 343 “Abatement of Public Nuisances” — can only be used in unincorporated areas. Both of these laws, and the others discussed below, can be found on the TIDRC website at http://www.tidrc.com/laws.html. Inside Texas cities only THSC Chapter 341 is in force, and your police department can use it to reinforce and supplement municipal code enforcement. If a code violator doesn't get the point and won't comply, THSC Chapter 341 is a good way for the city to make its point more clearly by moving to criminal enforcement. Out in the unincorporated areas of the county the officers get to use both of these useful statues. ☆

INSIDE cities: Use municipal codes + THSC Chapter 341

OUTSIDE cities: Use THSC Chapter 341 + THSC Chapter 343

Both of these health nuisance laws are already in force right now in Texas, today. There's nothing your city council or commissioners court has to do to adopt them, nor is there anything the city council or commissioners court can do to prevent them being state law. The State

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Legislature has already taken care of that. These are the state laws that define basic health nuisances in the state; the only issue is whether your city or county will enforce them or not. Cities generally have nuisance abatement procedures that work for them, but counties don’t. However, there is, in Chapter 343, a set of procedures that a county can use to abate rural nuisances just like cities abate nuisances through their procedures. If a county wants this additional abatement power, they must first adopt these procedures in commissioners court. And, yes, a county wanting to abate a nuisance structure is bound by the provisions of City of Dallas v. Stewart just like cities are. But the criminal portions of Chapter 343 — and Chapter 341 — are in place, right now, in the unincorporated areas of all 254 Texas counties. The only thing a county would have to “adopt” is the optional abatement process. Now lets take a little closer look at how we can use THSC Chapter 341 and possibly Chapter 343. THSC Chapter 341 Minimum Standards of Sanitation and Health Protection Measures This law is commonly used by health departments to deal with a wide range of health nuisances, including restaurant inspections, but it can do a lot more. Structurally, Chapter 341 is a fairly long statute that deals with a number of issues, but the first few sections can be used to deal with general illegal dumping by addressing the health effects of waste being in the wrong place. This law can be used by police to supplement municipal code enforcement in their city. Police don’t enforce codes in most places, but they can certainly enforce this criminal law that deals with the same violations as many sets of municipal codes. Because the law focuses on the resulting situation caused by the waste, it doesn’t care what kind of waste is involved. Litter, solid waste, industrial waste, oil and gas waste, etc.: it makes no difference. The issue is the health consequences of the mess itself. One can easily foresee a situation in which the garbage and sewage generated by a well site during the drilling process would be handled in such a way as to become a “nuisance” as defined under this law. Twelve Specific Health Nuisances Included The initial section of interest is Sec. 341.011, which defines twelve common health nuisances that this law specifically covers. This section of the law is shown below; you can access the entire chapter at http://www.tidrc.com/laws.html. Notice, for instance, nuisance (3) in Sec. 341.011 below; this is the provision used by health departments as their statutory basis for inspecting restaurants. Some of these provisions are better to use to focus on the health impact of the waste

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dumped than others. Also, notice nuisance (12), which is the catch-all. You could cite this particular one to deal with the effects of dumped materials, but there’s an even easier way described below. The provisions that might be used to deal with the mess left after the dumping has taken place are shown in bold print.

THSC Sec. 341.011. NUISANCE. Each of the following is a public health nuisance: (1) a condition or place that is a breeding place for flies and that is in a populous area; (2) spoiled or diseased meats intended for human consumption; (3) a restaurant, food market, bakery, other place of business, or vehicle in which food is prepared, packed, stored, transported, sold, or served to the public and that is not constantly maintained in a sanitary condition; (4) a place, condition, or building controlled or operated by a state or local government agency that is not maintained in a sanitary condition; (5) sewage, human excreta, wastewater, garbage, or other organic wastes deposited, stored, discharged, or exposed in such a way as to be a potential instrument or medium in disease transmission to a person or between persons; (6) a vehicle or container that is used to transport garbage, human excreta, or other organic material and that is defective and allows leakage or spilling of contents; (7) a collection of water in which mosquitoes are breeding in the limits of a municipality or a collection of water that is a breeding area for Culex quinquefasciatus mosquitoes that can transmit diseases regardless of the collection's location other than a location or property where activities meeting the definition of Section 11.002(12)(A), Water Code, occur; (8) a condition that may be proven to injuriously affect the public health and that may directly or indirectly result from the operations of a bone boiling or fat rendering plant, tallow or soap works, or other similar establishment; (9) a place or condition harboring rats in a populous area; (10) the presence of ectoparasites, including bedbugs, lice, and mites, suspected to be disease carriers in a place in which sleeping accommodations are offered to the public; (11) the maintenance of an open surface privy or an overflowing septic tank so that the contents may be accessible to flies; and, (12) an object, place, or condition that is a possible and probable medium of disease transmission to or between humans. Forcing an Abatement of the Nuisance If a person possesses a property having a public health nuisance, he or she needs to

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abate that nuisance as soon as he or she becomes aware of its existence. This is the basic policy of the State of Texas. This is expressed in (a) of this section. The rest of Sec. 341.012 describes the steps for a health authority to force the property possessor to deal with the health nuisance in those cases where the possessor has not already acted.

Sec. 341.012. ABATEMENT OF NUISANCE. (a) A person shall abate a public health nuisance existing in or on a place the person possesses as soon as the person knows that the nuisance exists. (b) A local health authority who receives information and proof that a public health nuisance exists in the local health authority's jurisdiction shall issue a written notice ordering the abatement of the nuisance to any person responsible for the nuisance. The local health authority shall at the same time send a copy of the notice to the local municipal, county, or district attorney. (c) The notice must specify the nature of the public health nuisance and designate a reasonable time within which the nuisance must be abated. (d) If the public health nuisance is not abated within the time specified by the notice, the local health authority shall notify the prosecuting attorney who received the copy of the original notice. The prosecuting attorney: (1) shall immediately institute proceedings to abate the public health nuisance; or (2) request the attorney general to institute the proceedings or provide assistance in the prosecution of the proceedings, including participation as an assistant prosecutor when appointed by the prosecuting attorney. The Four “Shalls” of Nuisance Abatement Notice the mandatory order of the State Legislature for the following steps: (1) the local health authority shall notify the possessor of the property in writing of the existence of the health nuisance on the property and set a time period to abate the nuisance; (2) the local health authority shall at the same time send a copy of the notice to the jurisdiction’s prosecuting attorney; (3) if the health nuisance is not abated within the time period specified, the local health authority shall notify the prosecuting attorney who had received notice; and, (4) the prosecuting attorney shall take the offender to court and seek a court order forcing abatement. What Normally Happens Isn’t What the State Legislature Mandated This is a sound procedure, but I’ve never been able to find a health authority in Texas that follows it. What normally happens is that the health authority officer will notify the property possessor of the violation and set a time for the mess to be abated. But there will

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be no notice given to the prosecutor at all, even though that is a mandatory step. In the event that the time set by the officer passes and the nuisance hasn’t been abated, the officer will not notify the prosecuting attorney. Instead, the officer will give a Notice of Violation to the property possessor and drag the violator into JP court. There, once a hearing takes place, the JP will find the property possessor guilty of having the violation, but will not generally order an abatement (since the criminal enforcement powers of the judge set forth in Sec. 341.091 don’t include being able to order a clean-up). ☆

Guess what? If you only do 25% of a process, you won’t get the desired result.

The ONLY ways that an abatement can be ordered under this very widely-used law are (1) the health authority officer and local prosecutor actually follow the mandated (everybody follows all the “shall” words) procedure in Sec. 341.012; or, (2) the JP over-steps his or her bounds (either intentionally or in error) and orders an abatement of the nuisance. If local health authorities — generally formal health departments — would read, understand, and follow the mandated provisions of the abatement process designed by the State Legislature, local health nuisances could be more readily abated. Usually a meeting with the local prosecutor is required to make sure he or she understands the process and is willing to follow the law. The process defined by the State Legislature is sound, and if followed it will produce the fastest abatement possible in non-voluntary situations. However, by immediately abandoning the process described in Sec. 341.012 and issuing a Notice of Violation as soon as the property possessor puts up a little fight by not abating the nuisance within the time set by the officer, the health authority assures that the health nuisance will last longer than it has to. I’m not sure why every health authority I’ve spoken with in Texas — and, of course, I haven’t spoken to them all — ignores the process the State Legislature has established for forcing an abatement, but I suspect that part of the reason is fear of having to inform the local prosecuting attorney that he or she also faces mandatory action. But the State Legislature has this exactly right: when the property possessor won’t keep his or her property clean AND when he or she also ignores orders to clean the property issued by the local health authority, it’s time for local government to act swiftly to force abatement through the prosecutor and the courts. Using Designated Representatives to Force Abatement Under THSC Sec. 341.012 Designated Representatives — “DRs” — are county employees that have been designated by the TCEQ to enforce the on-site sewage facility (OSSF) provisions of THSC Sec. 366. These folks do a great job around the state making sure that sewage disposal happens correctly. However, since they are “Designated Representatives” of the TCEQ, it’s

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likely that any sewage issues at well sites are actually examples of mishandling oil and gas waste, which falls outside the scope of the TCEQ and, presumably, the DR’s. Consequently, using a DR to deal with on-site sewage issues at wells is probably not what the State Legislature intended with this program. However, the provisions of THSC Sec. 341 can certainly be used to deal with sewage issues at wells, even when that waste is itself designated as oil and gas waste. The issue is for the county to decide just who could be used for this enforcement. Several county employees could be used in this capacity: (1) a county health officer who routinely enforces other provisions of THSC Chapter 341; or, (2) where there is no formally organized health department, a trained representative of the local health authority could do this task [see THSC Sec. 121.003(c). This second option might involve an individual learning new duties. Whether or not a current DR could, part-time, also serve as the representative of the local health authority is a question for the county attorney. I’d think that if the contract for DR services between the county and the TCEQ envisioned a full-time representation of the agency, there might be a problem in using the same individual to even occasionally enforce THSC Chapter 341, including the abatement procedures detailed in THSC Sec. 341.012. But the forced abatement procedure at THSC Sec. 341.012 is attractive enough to put some thought into finding a county employee who could be trained for this task in situations where the county has no formally organized health department. Where health departments do exist, which routinely enforce other provisions of THSC Chapter 341, enquiry should be made as to why the abatement procedures mandated by the State Legislature at THSC Sec. 341.012 are not being routinely used. The Peace Officer’s Friend: THSC Sec. 341.013(c) Of course, with or without a health department or a functioning health authority, local police and deputies can enforce THSC Chapter 341; they just won’t be able to include forced abatement in the process. They will simply issue a citation for the criminal violation and send things through to the JP or Municipal Judge where the violation occurred. In fact, in many parts of Texas if law enforcement fails to enforce this law, the harmful effects of unabated health nuisances will be present. Not all criminals are big dudes stealing things and beating on women; some “criminals” are very, very small — bacteria — who will put far more people in the hospital that one big looser on drugs would in a lifetime. The “protect and serve” motto of local police includes protecting the citizens from the effects of these “littlest criminals.” There are two things blocking local law enforcement from using THSC Chapter 341 to protect the people: (1) the persistent wrong idea that local police don’t enforce the Health &

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Safety Code (of course they do: that’s where all the drug laws are located); and, (2) fear of getting things wrong. Health nuisance situations can become complex, and it is always good to have a trained health professional available to act on behalf of the health authority or to give advice to the peace officer. However, out in the county on a weekend, the officer himself or herself may be the only resource available. Thankfully, there is one section of THSC Chapter 341 that can be used to deal with just about any health nuisance. Officers can easily learn and apply this one section, designed to eliminate the hideouts of those “littlest criminals”:

THSC Sec. 341.013(c) Waste products, offal, polluting material, spent chemicals, liquors, brines, garbage, rubbish, refuse, used tires, or other waste of any kind may not be stored, deposited, or disposed of in a manner that may cause the pollution of the surrounding land, the contamination of groundwater or surface water, or the breeding of insects or rodents. This important section covers just about all actual and possible (notice the word “may”) health nuisances that might impact a community. Notice that this definition easily includes illegally dumped materials of just about any kind, since those items are almost always actually or potentially polluting air, land, or water resources or breeding insects or rodents. No Warning Period Required To Use THSC Chapter 341 Many criminal enforcement officers use THSC Sec. 341.013(c) to issue citations and notices to appear in JP court — it could as easily be a municipal court inside a city limit — to discuss the violation with a judge. Notice that no “warning” or “period to abate” is required in this section. ONLY the previous section — THSC Sec. 341.012 — allows an officer from the health authority to size-up the health nuisance and give the violator some time to abate the nuisance, if that makes sense. Deputies and police simply are not given the power under this law to authorize the violator time to clean-up the mess (although this often happens) nor can deputies and police order the violator to abate the nuisance (although this often happens too). What the police, sheriff deputies, constables and other law enforcement officers CAN do is cite the guy for having the violation described in THSC Sec. 341.013(c) and meet him in JP or Municipal Court for the hearing. And since the judge is not empowered under this law to order abatement either, what the judge can do is fine the guy and say, “I’ll see you tomorrow,” since each day of an ongoing violation is a separate offense (and the police or deputy would just keep on citing the guy until he finally cleaned the mess).

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On every THSC Sec. 341 health nuisance case where the local health authority has not acted to force abatement, the judge should be asking the local health authority why they are not following the mandatory abatement process the State Legislature provided in THSC Sec. 341.012. Where the health authority exercises its powers under THSC Sec. 341.012, there will be fewer court cases. So you can see that where the local health authority intentionally fails to act to force an abatement using the process given by the State Legislature at THSC Sec. 341.012, about all the police and judges can legally do is keep running a violator through the process until the violator gets tired and cleans the mess. Or until a judge imposes a punishment not allowed under the statute — or until a peace officer goes beyond his or her authority and threatens the guy — or until local policy changes and the health authority and prosecutors begin to follow state law. Criminal Penalty for Violations The punishments for these violations are at THSC Sec. 341.091 (criminal) and Sec. 341.092 (civil). The criminal penalty sets a fine of from $10 to $200 for the first offense, and a penalty for a subsequent conviction — as long as it happens within one year following the first conviction — of a fine of $10 to $1,000 and/or up to 30 days in the county jail. The first conviction can be in JP or municipal court, but a subsequent prosecution — if handled as a subsequent prosecution — must move up to the county court (since there is the possibility of jail time involved). Civil Penalty for Violations THSC Sec. 341.092 deals with civil enforcement of violations of Chapter 341, and mandates a civil penalty in these cases: (b) A person who violates this chapter or a rule adopted under this chapter shall be assessed a civil penalty. Not to worry, however, because I can’t find anywhere in Texas that there has ever been a civil penalty assessed in one of these cases! Again, notice the use of the word “shall” by the State Legislature in structuring punishment in these health nuisance cases, a directive ignored by local governments in this section as in the Sec. 341.012 abatement procedures. There is an interesting provision for the civil penalty in subsequent violations: it ranges from $10 to $1,000 with each day of an ongoing offense being a separate violation. While a subsequent criminal violation must be charged within one year of the first conviction, there is no “within one year” time period associated with a subsequent civil charge. So for jurisdictions using this law, one strategy might be to bring the first charge as a criminal violation under Sec. 341.091, and then bring any subsequent charge — as long as the violator is around — as a civil violation in the same court. This will increase the pressure on subsequent violators without getting lost with a small case in the county court system.

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So a good strategy for local governments using this law to stop illegal dumping would be to have local law enforcement officers file criminal charges for violations of Sec. 341.013(c), calling each day a separate initial violation, and handling subsequent violations as civil charges. This is a good law to use for small-scale illegal dumping violations, but things would be a whole lot better if local health authorities would actually use the abatement process established by the State Legislature in Sec. 341.012 (used inside a city or out in the county). THSC Chapter 343 Abatement of Public Nuisances This second possibly useful law applies only to the unincorporated, non-agriculture — per county tax appraisal rolls, according to Sec. 343.011(d) — areas of the county, and is is structurally a lot like THSC Chapter 341. This law also sets civil and criminal penalties for a list of twelve violations, but does not include any provisions for actions by local health authorities, as does THSC Sec. 341.012. This law mentions no role for local health authorities, as does THSC Chapter 341.

Chapter 343 applies mostly to private property in the unincorporated part of the county, with the exclusion of land carried as agricultural on tax appraisal rolls. You’ll have to use another law for those areas, such as THSC Sec. 341.013(c).

THSC Chapter 343 requires a local government to wait 30 days following giving notice to the potential-violator of the existence of the nuisance — no particular form of the notice is required. When the 30 days have passed and the problem is still present, then the actual violation has happened. So the sequence is (1) an officer sees a potential violation, (2) gives notice to whomever is doing the violation that he or she has 30 days to fix the problem, (3) returns in 31 days to see if the nuisance still exists, and, (4) if it does, give the violator a citation to appear in JP court. Comparing THSC Chapter 341 and THSC Chapter 343 From my view point, what Chapter 343 — used for enforcement mostly on private property in unincorporated, non-agricultural areas only — has going are (1) the statute directs the judge to order the abatement of the nuisance upon conviction; (2) there is a specific provision to deal with derelict structures; and, (3) Subchapter C details the process for counties wanting a resolution allowing county abatement of nuisances. The particular wording of the nuisance in THSC Sec. 343.011(c)(5) includes just about anything bad that can happen to a man-made structure. These all recommend using THSC Chapter 343 in some circumstances. Other than these features, however, it seems to me that an officer would do better by widely applying the provisions of THSC Sec. 341.013(c):

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(c) Waste products, offal, polluting material, spent chemicals, liquors, brines, garbage, rubbish, refuse, used tires, or other waste of any kind may not be stored, deposited, or disposed of in a manner that may cause the pollution of the surrounding land, the contamination of groundwater or surface water, or the breeding of insects or rodents. This definition of a nuisance from THSC Chapter 341 covers practically all situations; there is no 30-day waiting period before using it — the violation can be cited immediately; it can be used inside and outside cities; it also applies to land that might have an agricultural exemption. On the negative side, THSC Chapter 341 does not allow for the judge to order that a nuisance be abated, but it does contain provisions where a health department or an officer trained by a local health authority can do so.

It’s easy to get the notice requirements of these two laws mixed up: Chapter 341: NO notice period required before enforcement by officer; the local health authority MAY give a time for abatement under Sec. 341.012, but not the officer; judge cannot order an abatement; Chapter 343: no offense has happened until 30 days have past following county notice; no local health authority role is mentioned in the statute; judge “shall” order an abatement upon conviction.

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B. FOCUSING ON THE CRIMINAL ACT OF DUMPING THSC Chapter 365 This Is the Primary State Illegal Dumping Law. But you can’t use it for oil and gas waste. Sorry! But you can use if for dumping generated by oil and gas workers that is not oil and gas waste, so you don’t want to forget about its existence altogether. If you want to learn more about this law — which is commonly used to deal with general illegal dumping — you may access the free materials at TIDRC.com or read the larger book Illegal Dumping Enforcement. In the meantime, here are the definitions for litter and solid waste, the two kinds of waste covered, the basic violations, and the penalties. Definitions Used in This Law As with all Texas laws, the definitions used are extremely important. This law covers two types of waste: solid waste as defined in THSC Sec. 361.003(35) and litter as defined in THSC Chapter 365 itself. Both of these include some surprising items and exclude others. Litter The definition of litter is at Sec. 365.011(6) [there’s a copy of this law at http://s.coop/1oy2x]:

(A) decayable waste from a public or private establishment, residence, or restaurant, including animal and vegetable waste material from a market or storage facility handling or storing produce or other food products, or the handling, preparation, cooking, or consumption of food, but not including sewage, body wastes, or industrial by-products; or (B) nondecayable solid waste, except ashes, that consists of: (i) combustible waste material, including paper, rags, cartons, wood, excelsior, furniture, rubber, plastics, yard trimmings, leaves, or similar materials; (ii) noncombustible waste material, including glass, crockery, tin or aluminum cans, metal furniture, and similar materials that do not burn at ordinary incinerator temperatures of 1800 degrees Fahrenheit or less; and (iii) discarded or worn-out manufactured materials and machinery, including motor vehicles and parts of motor vehicles, tires, aircraft, farm implements, building or construction materials, appliances, and scrap metal. Solid Waste The definition the law uses for solid waste is found in THSC Chapter 361, also known as the Texas Solid Waste Act. THSC Chapter 365 references the following definition from THSC

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Chapter 361:

THSC Sec. 361.003(35) “solid waste" means garbage, rubbish, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility, and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, municipal, commercial, mining, and agricultural operations and from community and institutional activities. The term: (A) does not include: (i) solid or dissolved material in domestic sewage, or solid or dissolved material in irrigation return flows, or industrial discharges subject to regulation by permit issued under Chapter 26, Water Code; (ii) soil, dirt, rock, sand, and other natural or man-made inert solid materials used to fill land if the object of the fill is to make the land suitable for the construction of surface improvements; or (iii) waste materials that result from activities associated with the exploration, development, or production of oil or gas or geothermal resources and other substance or material regulated by the Railroad Commission of Texas under Section 91.101, Natural Resources Code; and, (B) does include hazardous substances, for the purposes of Sections 361.271 through 361.277, 361.280, and 361.343 through 361.345. What Are the Crimes Defined by THSC Chapter 365? For this discussion, please consult Sec. 365.012 of the law. This important section contains the violations, penalties, and major defenses to the violations. There are four sections defining violations: Sec. 365.012(a): disposing or allowing or permitting the disposal of litter or other solid waste at a place that is not an approved solid waste site. Sec. 365.012(b): receiving litter or other solid waste for disposal at a place that is not an approved solid waste site. Sec. 365.012(c): transporting litter or other solid waste to a place that is not an approved solid waste site for disposal. Sec. 365.012(j): unauthorized disposal of litter or other solid waste in a dumpster. Penalties (mostly based on weight or volume) are found in Sections 365.012(d) through 365.012(g), and are shown in this chart:

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THSC Chapter 365 Litter Abatement Act Penalties [Sections 365.012(d) through 365.012(g)] I. Dumping Not Done for Commercial Purpose (i.e., “The purpose of economic gain�) (a) 5 pounds or less; or, having a volume of 5 gallons or less

Class C Misdemeanor (fine to $500); (If done by corporation or association: Fine to $500 under Penal Code Sec. 12.51)

(b) Over 5 pounds but under 500 pounds; or, over 5 gallons but under 100 cubic feet

Class B Misdemeanor (fine to $2,000 and/or confinement to 180 days); (If done by corporation or association: Fine to $10,000 under Penal Code Sec. 12.51)

(c) 500 pounds but under 1,000 pounds; or, 100 cubic feet but under 200 c.f.

Class A Misdemeanor (fine to $4,000 and/or confinement to 1 year); (If done by corporation or association: Fine to $10,000 under Penal Code Sec. 12.51)

(d) 1,000 pounds or more; or, 200 c.f. or more

State Jail Felony (fine to $10,000 and/or confinement of 6 months to 2 years); (If done by corporation or association: Fine to $20,000 under Penal Code Sec. 12.51)

II. Dumping Done for Commercial Purpose (a) 5 pounds or less; or 5 gallons or less

Class C Misdemeanor (fine to $500); (If done by corporation or association: Fine to $500 under Penal Code Sec. 12.51)

(b) Over 5 pounds but under 200 pounds; or, over 5 gallons but under 200 c.f.

Class A Misdemeanor (fine to $4,000 and/or confinement to 1 year); (If done by corporation or association: Fine to $10,000 under Penal Code Sec. 12.51) State Jail Felony (fine to $10,000 and/or confinement of 6 months to 2 years); (If done by corporation or association: Fine to $20,000 under Penal Code Sec. 12.51)

(c) Over 200 pounds; or, 200 c.f. or more

III. Dumped for Any Reason (Commercial or Non-Commercial) (a) Any amount of waste in a closed drum or barrel

State Jail Felony (fine to $10,000 and/or confinement of 6 months to 2 years); (If done by corporation or association: Fine to $20,000 under Penal Code Sec. 12.51)

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TWC Chapter 7 (Subchapter E): Water Pollution and Other Specialized Violations Introduction to TWC Chapter 7 Enforcement Most local criminal illegal dumping enforcement is done using THSC Chapter 365, as discussed in the previous section. Additionally, code enforcement officers inside cities may use ordinances, and health department officers and police may use THSC Chapter 341 to stop smaller-scale illegal dumping. In the unincorporated areas, health department officers, deputy sheriffs, constables, and fire marshals may use both THSC Chapter 341 and THSC Chapter 343 for the same purpose. In addition to these three laws, there are also about 40 criminal laws that the State Legislature has provided local governments to deal with special dumping circumstances. All of these additional laws are located in one place: Texas Water Code Chapter 7, Subchapter E, which was created by the State Legislature in 1997.

Interesting water pollution at Lake Granbury by a oil and gas waste produced water hauler dumping some saltwater while eating lunch!

He ran a hose from his tanker into the lake, killing his own backyard in the process. (Felony violation of TWC Sec. 7.145)

The overall TWC Chapter 7 is an extremely useful law. Its title is “Enforcement,” and it contains the statutes governing the state’s approach to administrative and civil enforcement of environmental violations, in addition to the additional felonies. For example, Subchapter C details the process that the TCEQ has to follow when they undertake administrative enforcement against a violator. If a city has committed an administrative violation — perhaps for violating the waste water discharge permit covering its sewage treatment plant — the steps the state will take to resolve this issue are all found in this subchapter. Likewise, if a local government, or the state attorney general, has brought a civil suit against an individual or other person for an environmental violation, the potential civil penalties and the process to be followed are found in Subchapter D. The additional criminal statutes and penalties mentioned above, including some procedural issues that come into play when prosecuting criminal cases, are in Subchapter E. Some of the specific defenses to administrative, civil, and criminal enforcement by the TCEQ are found in Subchapter F, and so on. This is a very useful chapter for anyone

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needing to understand the overall TCEQ enforcement process. Resolving Potential Conflicts TWC Chapter 7 also serves as a “referee” in some situations when there may be a conflict between the state and local approaches being taken in response to an environmental violation. Note that these only apply to the TCEQ; the RRC has no similar provisions (at least, none I can find). TWC Sec. 7.068 FULL AND COMPLETE SATISFACTION covers potential conflicts between administrative enforcement by the TCEQ and criminal and civil enforcement from that agency or any outside source, including your city or county. The state policy decision provided by this section is that if an administrative enforcement action has been undertaken against a violator and if that action has resulted in the actual payment of an administrative penalty, a city or county cannot undertake additional civil action or criminal prosecution against this person for the same violation. Of course, if the TCEQ undertakes an administrative action against some violator and that action results in (1) no administrative financial penalty being assessed; or, (2) a financial penalty being set which has not been actually paid, then civil and/or criminal processes can move ahead. If the TCEQ is taking care of business administratively — including actually collecting a penalty — then that settles the issue. TWC Sec. 7.051 ADMINISTRATIVE PENALTY covers potential conflicts between civil suits against a violator and TCEQ administrative enforcement. The approach here is that if the attorney general or a local government (under their TWC Sec. 7.351 civil suit powers) is diligently prosecuting the suit, then the TCEQ cannot assess an administrative penalty for violations of the statutes, rules, and permits under the TCEQ’s jurisdiction. The agency can move ahead with the administrative enforcement process, but it cannot assess an administrative penalty. If the AG’s office or a local city or state is actively suing a party, the TCEQ cannot, in effect, stop the suit by assessing a financial penalty that, if paid, would trigger TWC Sec. 7.068. Note that the situation most likely to impact local government is not addressed by these two provisions. That would be the situation where a local criminal case is moving along (unknown to the TCEQ), and the agency opens an administrative action, assesses an administrative penalty, and the violator pays it. Would this then mean that the criminal action the city was pursuing was immediately void under TWC Sec. 7.068? There was an attempt to clarify this situation a few legislative sessions ago; the clarification didn’t pass into law, and its supporters have let the issue drop. This conflict simply doesn’t arise very often. The approach to take for local officers has been to develop a close working relationship with

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TCEQ administrative officers to assure that this conflict doesn’t happen. The best way to proceed is to get to know the TCEQ Environmental Crimes Unit officer assigned to your area, and use them as the means of communicating with the agency on major cases where such a conflict could be a potential problem. Where the RRC is concerned, there is very little likelihood that a case would be moving ahead with administrative settlement at such a pace it would prevent local criminal resolution. Moreover, there is no such provision as TWC Sec. 7.068 at this point. When local governments become more effective at criminal enforcement, it is entirely possible that such a provision affecting the RRC and local governments will emerge. I know of one such situation, however, where a local district attorney decided to let the RRC impose an administrative penalty against a company who had been caught by local government dumping produced saltwater into a creek. City police officers and other employees had spent a great deal of time developing a sound water pollution case against the company for the violation. The administrative penalty that was eventually paid was around $1,500; the potential felony fine against the company for conviction of the water pollution charge fell in a range from $1,000 to $250,000 and carried a felony criminal conviction against the company. The local prosecutor simply decided to drop the criminal case because the RRC was moving ahead with administrative enforcement. It’s hard to know everyone’s motives in this situation, but personally I’d like to have the company’s attorney on my side if I ever have a tussle with that particular district attorney. Sometimes good defense lawyering can coincide with a local prosecutor who is too busy doing other things to be bothered to use criminal laws to protect natural resources. The pity, of course, is that the peace officers in the city who spent so much time developing the criminal case now ask themselves, “Why bother? Just send everything to the RRC and let them take the heat if the penalty is so low the company keeps dumping.” This is what we call “bad policy.” ☆

Be sure your local prosecutors know about TWC Sections 7.068 and 7.051.

What criminal violations are covered by TWC Chapter 7, Sub E? Before Chapter 7 was created in 1997, criminal environmental laws were scattered through several areas of state law and couldn’t always be easily found. One of the valuable effects of creating Chapter 7, Subchapter E was to pull those scattered laws together in one place: TWC Chapter 7, Subchapter E. In some cases, the results of this consolidation seems contrary to common sense. For instance, the criminal statutes covering water pollution are found in Subchapter E, which makes sense, but the felony and misdemeanor illegal outdoor burning statutes are there too. The laws concerning the mishandling and dumping of medical waste and hazardous waste are also found there, as are the felonies against dumping used motor oil — dumping anywhere, and not just

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around water. The organizing principle for Subchapter E was “Let’s get all the criminal environmental laws on all subjects in one place for reference,” rather than “Let’s get all of the violations concerning water pollution in one place.” Once you can get past the notion that Subchapter E deals with things other that water, you’ll be happy with this arrangement. But, in fact, this mediaindependence is true for the whole of TWC Chapter 7, and is not limited to Subchapter E. The administrative process in Subchapter C and the civil suit process in Subchapter D also apply to pollutions of all three media: air, land, and water. Officers working illegal dumping cases under THSC Chapters 341and 343 or other statute need to understand the additional violations that the State Legislature has codified in TWC Chapter 7, Subchapter E. It can be easy to find oneself in Chapter 7. For example, dumping produced salt water near a creek without a permit may result in violations of TWC Chapter 29 (for the initial oil and gas waste hauler violation), THSC Sec. 341.013(c) (which created a health nuisance), and TWC Sec. 7.145 (and felony water pollution). Water Pollution Has Long Been a Problem Consider this story from the life of the prophet Elisha from the book of 2nd Kings 2:19-25. This took place while the prophet was in the town of Jericho. He had just become the primary prophet for Israel following Elijah’s ascension to heaven in a whirlwind. These are some of my favorite Bible verses: The men of the town said to Elisha, “Look, the town is a pleasant place to live in, as my lord can see; but the water is bad and the land causes bereavement.” He responded, “Bring me a new dish and put salt in it.” They brought it to him; he went to the spring and threw salt into it. And he said, “Thus said the LORD: I heal this water; no longer shall death and bereavement come from it!” The water has remained wholesome to this day, in accordance with the word spoken by Elisha. From there he went up to Bethel. As he was going up the road, some little boys came out of the town and jeered at him, saying, “Go away, baldhead! Go away, baldhead!” He turned around and looked at them and cursed them in the name of the LORD. Thereupon, two she-bears came out of the woods and mangled forty-two of the children. He went on from there to Mount Carmel, and from there he returned to Samaria.

Today we’re not able to do as the prophet Elisha did and heal polluted water through the Lord’s intervention and salt (and I’m not sure his very effective response to unruly teenagers is still allowed). Our tools are much more limited in dealing with both problems. As to cleaning polluted water, in fact, there are some bodies of water — such as underground aquifers — for which there is no known way to remove pollution: once these bodies of water become fouled, they will probably stay that way for a very long time. So we have to stop pollution before it

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happens. Generally, about the only tools that government has to protect water are (1) enforcement of laws and rules preventing and limiting pollution; and, (2) public education. When something is dumped directly into water — or close enough to it that it will run into the water when it rains — local governments can use the criminal laws provided by the State Legislature in TWC Sections 7.145 and 7.147, discussed below, in addition to the Litter Abatement Act and health nuisance laws. The first of these — TWC Sec. 7.145, the felony water pollution statute — is also commonly used by state criminal investigators and officers at the TCEQ and TPWD. The penalties for intentionally or knowingly polluting water in Texas are very severe. Water Pollution Definitions In the absence of a specific definition of “water in the state” in these two laws, note that the previous location of these criminal statutes was Chapter 26, Texas Water Code, where the definitions used remain:

TWC Sec 26.001(5) ”Water" or "water in the state" means groundwater, percolating or otherwise, lakes, bays, ponds, impounding reservoirs, springs, rivers, streams, creeks, estuaries, wetlands, marshes, inlets, canals, the Gulf of Mexico, inside the territorial limits of the state, and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, navigable or nonnavigable, and including the beds and banks of all watercourses and bodies of surface water, that are wholly or partially inside or bordering the state or inside the jurisdiction of the state. ☆

The definition of ”water” is extremely wide and includes dry beds and banks of watercourses and borrow ditches.

Dry creeks and beds and banks of other watercourses are included in the definition of water. Also note that this state definition includes “non-navigable” watercourses, which makes this definition more stringent than that used in the federal Clean Water Act. In the federal statute, the water in question must be "navigable" for that federal statute to apply. Because of the broader definition of water, Texas is much more protective of our water resources than is the federal government. When federal and state water laws have both been violated, the decision by federal criminal enforcement officers is often to cooperate with Texas officers to bring state charges instead of federal. The rest of the definitions found in Chapter 26.001 will be important in understanding these statutes, including the following:

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Oil and Gas Annex TWC Sec 26.001(19) "To discharge" includes to deposit, conduct, drain, emit, throw, run, allow to seep, or otherwise release or dispose of, or to allow, permit, or suffer any of these acts or omissions. TWC Sec 26.001 (13) "Pollutant" means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, filter backwash, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial, municipal, and agricultural waste discharged into any water in the state. The term: (A) includes: (i) tail water or runoff water from irrigation associated with an animal feeding operation or concentrated animal feeding operation that is located in a major sole source impairment zone as defined by Section 26.502; or (ii) rainwater runoff from the confinement area of an animal feeding operation or concentrated animal feeding operation that is located in a major sole source impairment zone, as defined by Section 26.502; and (B) does not include tail water or runoff water from irrigation or rainwater runoff from other cultivated or uncultivated rangeland, pastureland, and farmland or rainwater runoff from an area of land located in a major sole source impairment zone, as defined by Section 26.502, that is not owned or controlled by an operator of an animal feeding operation or concentrated animal feeding operation on which agricultural waste is applied. TWC Sec 26.001 (6) "Waste" means sewage, industrial waste, municipal waste, recreational waste, agricultural waste, or other waste, as defined in this section. TWC Sec 26.001 (8) "Municipal waste" means waterborne liquid, gaseous, or solid substances that result from any discharge from a publicly owned sewer system, treatment facility, or disposal system TWC Sec 26.001 (9) "Recreational waste" means waterborne liquid, gaseous, or solid substances that emanate from any public or private park, beach, or recreational area TWC Sec 26.001 (10) "Agricultural waste" means waterborne liquid, gaseous, or solid substances that arise from the agricultural industry and agricultural activities, including without limitation agricultural animal feeding pens and lots, structures for housing and feeding agricultural animals, and processing facilities for agricultural products. The term: (A) includes: (i) tail water or runoff water from irrigation associated with an animal feeding operation or concentrated animal feeding operation that is located in a major sole

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A meth cook discharging waste out a pipe from his trailer home into the borrow ditch is actually “discharging a waste or pollutant into water from a point source in violation of TWC Chapter 26,” which is a violation of TWC Sec.7.145 that carries a penalty of up to five (5) years confinement and/or a fine from $1,000 to $100,000.

Finally please note that if the dumping resulted in water pollution and a person was placed “in imminent danger of death or serious bodily injury,” additional charges may be brought under TWC Sections 7.152, 7.153, or 7.154 depending on the circumstances. Water Pollution Statutes When viewing illegally dumped oil and gas waste for possible THSC Chapter 341 violations, remember the wide definition of water and always ask yourself, “Is there any way this

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dumping was done in or adjacent to water?� If so, you may want to file additional water pollution charges to give the prosecutor more leverage in resolving the case. In fact, the sections of Subchapter E that officers are most likely to use for illegal dumping cases are those dealing with water pollution, especially Sec. 7.145 and Sec. 7.147, which cover felony and misdemeanor water pollution. Both of these provisions use terms that are closely defined, and are provided below. These two statutes are: Felony Water Pollution

Sec. 7.145. INTENTIONAL OR KNOWING UNAUTHORIZED DISCHARGE. (a) A person commits an offense if the person, acting intentionally or knowingly with respect to the person's conduct, discharges or allows the discharge of a waste or pollutant: (1) into or adjacent to water in the state that causes or threatens to cause water pollution unless the waste or pollutant is discharged in strict compliance with all required permits or with an order issued or a rule adopted by the appropriate regulatory agency; or (2) from a point source in violation of Chapter 26 or of a rule, permit, or order of the appropriate regulatory agency. (b) An offense under this section is punishable for an individual under Section 7.187(1) (C) [Fine of $1,000 to $100,000] or Section 7.187(2)(F) [Confinement to 5 years] or both. (c) An offense under this section is punishable for a person other than an individual under Section 7.187(1)(D) [Fine of $1,000 to $250,000] This is the felony water pollution statute and is becoming more widely used. Note that there are two separate violations here: (a) discharging a waste or pollutant into or adjacent to water that pollutes or threatens to pollute the water without a permit to make the discharge (which will require properly taking samples of the pollutant, having those samples properly analyzed and interpreted, and defending the procedures used under crossexamination by defense attorneys); and, (b) discharging a waste or pollutant from a point source in violation of TWC Chapter 26 (i.e., discharging without a permit in violation of TWC Sec. 26.121(a) being the most common violation). That section reads:

Texas Water Code Sec. 26.121. UNAUTHORIZED DISCHARGES PROHIBITED. (a) Except as authorized by the commission, no person may: (1) discharge sewage, municipal waste, recreational waste, agricultural waste, or industrial waste into or adjacent to any water in the state.

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As he or she understands these two ways of proceeding, your prosecutor will probably appreciate the opportunity to prosecute cases under (b) alone, which will mean that there will be no need to collect samples and prove that the water was actually polluted by the discharge. Where evidence of pollution has been gathered — and the discharge is from a point source in violation of TWC Chapter 26 — both (a) and (b) can be charged as violations of two separate parts of the statute. Note that "adjacent" is not a defined term in this law, but is being used in Texas in the widest sense to protect water. The jurisdictions most experienced in handling water pollution cases often interpret “adjacent to the water” to mean “uphill from the water.” Anywhere that waste is dumped, and from where it will migrate to water when it rains, is arguably “adjacent.” Where a violator has dumped into water, it is common for officers to file both illegal dumping (THSC Chapter 365) and water pollution (TWC Sec. 7.145) cases together. Misdemeanor Water Pollution

Sec. 7.147. UNAUTHORIZED DISCHARGE. (a) A person commits an offense if the person discharges or allows the discharge of any waste or pollutant into any water in the state that causes or threatens to cause water pollution unless the waste or pollutant: (1) is discharged in strict compliance with all required permits or with a valid and currently effective order issued or rule adopted by the appropriate regulatory agency; or (2) consists of used oil and the concentration of used oil in the waste stream resulting from the discharge as it enters water in the state is less than 15 parts per million following the discharge and the person is authorized to discharge storm water under a general permit issued under Section 26.040. (b) An offense under this section may be prosecuted without alleging or proving any culpable mental state. (c) An offense under this section is punishable for an individual under Section 7.187(1)(B) [Fine of $1,000 to $50,000] or Section 7.187(2)(D) [Confinement to one year] or both. (d) An offense under this section is punishable for a person other than an individual under Section 7.187(1)(C) [Fine of $1,000 to $100,000]. Discharging or allowing the discharge of a waste or pollutant that causes or threatens to cause water pollution (unless done in strict compliance with a permit, order or rule). This

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charge is similar to TWC Sec. 7.145 except that no culpable mental state must be proven, but the discharge must be into the water and not simply "adjacent." The act itself is sufficient. Note the threshold of 15 p.p.m. measured after the discharge of used oil, presumably restricted to storm water. There is no guidance as to where the water is to be tested, nor any guidance as to where to test if the watercourse is dry at the time of discharge. However, because it is a strict liability statute, this provision is becoming more widely used state-wide.

Sec. 7.186. SEPARATE OFFENSES. Each day a person engages in conduct proscribed by this subchapter constitutes a separate offense. [So each day the waste is laying there, polluting the water or threatening to pollute the water can be handled as a separate offense].

☆

Oil and gas waste are exempt from being under the control of the Litter Abatement Act since the definition of “solid waste� specifically excludes these substances. Oilfield waste that is dumped can be handled under specific laws (see Chapter 5) created to handle these activities. However, oilfield waste dumped into or adjacent to water is subject to TWC Sec. 7.145 and Sec. 7.147 water pollution statutes just like most other wastes.

Some Other Chapter 7 Criminal Charges There are around 40 additional criminal charges in TWC Chapter 7 (Subchapter E) that can be used to protect local air, water, and land resources. The very best way to understand these is to simply sit down and start reading. A few of the more commonly used charges, with their penalties, are: Water Pollution Sec. 7.145

Felony water pollution; [Individual: $1,000 to $100,000 and/or 5 years confinement] [Other than individual: $1,000 to $250,000]

Sec. 7.147

Misdemeanor water pollution; [Individual: $1,000 to $50,000 and/or 1 year confinement] [Other than individual: $1,000 to $100,000]

Sec. 7.154

Reckless unauthorized discharge into water and endangerment; [Individual: $1,000 to $100,000 and/or 1 year confinement] [Other than individual: $1,000 to $250,000] [Greater penalties if the endangered person dies]

Hazardous Waste Violations Sec. 7.162 Various mishandling, improper storage, and dumping violations; Sec. 7.162(a)(1) - Transportation violations [Individual: $1,000 to $50,000 and/or 10 years confinement]

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[Other than individual: $1,000 to $250,000] Sec. 7.162(a)(2) - Storage violations [Individual: $1,000 to $50,000 and/or 10 years confinement] [Other than individual: $1,000 to $250,000] Sec. 7.162(a)(4) - Paperwork violations [Individual: $1,000 to $50,000 and/or 2 years confinement] [Other than individual: $1,000 to $250,000] Sec. 7.162(a)(7) - Release into the environment [Individual: $1,000 to $100,000 and/or 1 year confinement] [Other than individual: $1,000 to $250,000] Sec. 7.163

The same sorts of violations, with added endangerment elements; [Penalties range from $1,000 to $500,000 or more and/or 15 years confinement] [Greater penalties if the endangered person dies]

Medical Waste Violations Sec. 7.164 Various violations by large quantity medical waste generators; [Individual: $1,000 to $50,000 and/or 10 years confinement] [Other than individual: $1,000 to $50,000] Sec. 7.165

Similar violations by small quantity generators; [Individual: not more than $1,000] [Other than individual: $1,000 to $50,000]

Sec. 7.166

Medical waste transportation violations; [Individual: $1,000 to $50,000 and/or 1 year confinement] [Other than individual: $2,000 to $500,000]

Sec. 7.171

Reckless release of medical waste into the environment with endangerment; [Individual: $1,000 to $250,000 and/or 1 year confinement] [Other than individual: $2,000 to $500,000]

Used Oil Violations Sec. 7.176 Improper discharging used motor oil; [Individuals: $1,000 to $50,000 and/or 5 years confinement] [Other than individual: $1,000 to $50,000] [Fines triple for subsequent conviction] Illegal Burning and Other Air Pollution Sec. 7.177(a)(5) Misdemeanor outdoor burning in violation of Outdoor Burning Rule; [Individual: $1,000 to $50,000 and/or 180 days confinement] [Other than individual: $1,000 to $100,000]

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Sec. 7.182

Felony outdoor burning (reckless emission with endangerment) [Individual: $1,000 to $250,000 and/or 5 years confinement] [Other than individual: $2,000 to $500,000]

Sec. 7.183

Felony outdoor burning (knowing emission with knowing endangerment); [Individual: $2,000 to $500,000 and/or 5 years confinement] [Other than individual: $5,000 to $1,000,000]

Lead-Acid Batteries Sec. 7.185 Knowing or intentional unauthorized disposal [Individual: Class A Misdemeanor] [Other than individual: Use Penal Code Sec.12.51 to fine to $10,000] Illegal Outdoor Burning Overall, there are seven ways we can control outdoor burning in Texas, and local governments can use six of these. The seventh is reserved for the Texas Natural Resources Conservation Commission, and consists in administrative enforcement of the Texas Outdoor Burning Rule [Title 30 T.A.C. Sec. 111 (Subchapter B)]. The Texas Outdoor Burning Rule is a rule issued under the Texas Clean Air Act. The TCEQ administrative staff in the regional offices and at their Austin headquarters also enforce other rules issued under the Texas Clean Air Act and other anti-pollution statutes. Their Environmental Crimes Unit also enforces a wide range of criminal laws that protect our air, water, and land, including the felony laws against unpermitted burning. Six Local Government Enforcement Options There are six ways that local government can deal with outdoor burning. Each of these will be discussed in the pages that follow. But for now, just notice their categories. Outdoor burning can be controlled or stopped, depending on the situation and violation, in these ways: 1. 2. 3. 4. 5. 6.

Municipal Codes for cities that have them (most do); County Burn Bans in droughts and other conditions under Local Government Code Sec. 352.081; Local Emergency Declarations under Government Code Sec. 418.004 and Sec. 418.108; Felony Illegal Burning under Texas Water Code Sec. 7.182 and Sec. 7.183; Misdemeanor Illegal Burning under Texas Water Code Sec. 7.177(5)(a) for violations of the Texas Outdoor Burning Rule; and, Major Civil Suits by cities and counties under Texas Water Code Sec. 7.351 for burning that violates laws, rules, permits, and TCEQ orders.

Illegal burning classes focus on these six ways in which local governments can stop or

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control outdoor burning. Here we want to look at two: felony illegal burning and misdemeanor illegal burning. Either of these might arise when workers decide to burn trash or other waste at a well site. Since this will most likely be a commercial disposal fire, it is not allowed under the Texas Outdoor Burning Rule without a TCEQ permit Felony Illegal Burning ☆

Burning without a permit + the emission hurts somebody (not first responder) = felony burning

Texas has two felony burning laws. They both have to do with emitting an air contaminant — which is a defined term that includes “smoke” — without a permit to do so PROVIDED that in the process a person is put in immanent danger of death or serious bodily injury by the air contaminant. Where these two laws differ concerns (1) the level of intention in emitting the air contaminant; and, (2) the level of intention concerning the injury itself: was it intended or not? The definition of air contaminant comes from THSC Chapter 382 — The Texas Clean Air Act: Sec. 382.003 (2) "Air contaminant" means particulate matter, radioactive material, dust, fumes, gas, mist, smoke, vapor, or odor, including any combination of those items, produced by processes other than natural. So the smoke coming from a burn barrel, a structure being burned, fumes coming from a paint booth, dust, and the odors from a shop across the street or some other of the listed material are all air contaminants, while the odor coming from the pig farm down the street is not. The two felony violations arise when someone is injured from an unauthorized emission of an air contaminant … injured not by the flames, but by the air contaminants being emitted. TWC Sec. 7.182: Reckless Emission + Unintended Endangerment Of the two felony provisions, this is the more general case, where the emission of the air contaminant was done recklessly, with respect to the conduct of releasing the air contaminant. Although someone was put in immanent danger of death or serious bodily injury by the smoke or fumes, this particular statute does not require any level of intent that such endangerment was an intended consequence of the emission. Although the release was done recklessly, the absence or presence of intent that the other person be injured is not a consideration. As with all of the violation any of the criminal laws in Subchapter E, ignorance of the law is no defense:

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TWC Sec. 7.201. DEFENSE EXCLUDED. It is not a defense to prosecution under this subchapter that the person did not know of or was not aware of a rule, order, or statute. Texas Water Code Sec. 7.182. RECKLESS EMISSION OF AIR CONTAMINANT AND ENDANGERMENT, presented as a list of elements in section (a) reads: (a) A person commits an offense - if the person - recklessly, with respect to the person's conduct, - emits - an air contaminant - that places another person - in imminent danger of death or serious bodily injury, - unless the emission is made in strict compliance with Chapter 382, Health and Safety Code, or a permit, variance, or order issued or a rule adopted by the commission. Comments Person is defined at THSC Sec. 382.003(10): ”Person” means an individual, corporation, organization, government or governmental subdivision or agency, business trust, partnership, association, or any other legal entity. Recklessly is limited to the person’s conduct in emitting the air contaminant. It is defined in Texas Penal Code Sec. 6.03. DEFINITIONS OF CULPABLE MENTAL STATES as: (c)  A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint. Emit is undefined in THSC Chapter 382. It’s common definition is to throw or give off or out (as light or heat) [Merriam-Webster]. Places another person does not include first responders or others excluded under TWC Sec. 7.252. Since firefighters and police freely consent to be placed in danger by responding to such burning and, in fact, the possibility of being harmed is a reasonably foreseeable associated hazard: Sec. 7.252. DEFENSES TO ENDANGERMENT OFFENSES. It is an affirmative defense to prosecution under Section 7.152, 7.153, 7.154, 7.163, 7.168, 7.169, 7.170, 7.171, 7.182, or 7.183 that: (1) the conduct charged was freely consented to by the person endangered and that the danger and conduct charged were reasonably foreseeable hazards of the

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person ’s occupation, business, or profession or a medical treatment or medical or scientific experimentation conducted by professionally approved methods and the person endangered had been made aware of the risks involved before giving consent; or (2) the person charged was an employee who was carrying out the person ’s normal activities and was acting under orders from the person ’s employer, unless the person charged engaged in knowing and wilful violations. Imminent is defined neither in TWC Chapter 7 with respect to air violations nor in THSC Chapter 382. It’s specific definition is undefined in THSC Chapter 382; its common definition is ready to take place; especially: hanging threateningly over one's head [Merriam-Webster]. Imminent danger of death or serious bodily injury is a determination that is often made in the Emergency Room of the local hospital when the person endangered is transported there from the crime scene. In one smaller county, the officer provided physicians’ affidavits to the DA in support of this element in two successive cases (in both cases the victim who was transported was reportedly a minor with a breathing problem). In the third case, which was smoke emitted from insulation being burned off of wire, nobody was transported to the hospital. However, there were children at the burn scene when the officer arrived. For this case the officer reports that he assembled technical information that the particular smoke being emitted from the burning insulation was carcinogenic and further reports that the district attorney accepted this evidence in support of this evidence. Unless, of course, the person emitting the air contaminant is strictly following a statute, rule, permit, order, or variance. If the person has been given state permission to pollute, he or she is not going to be subject to this particular law. This law is commonly used in situations where a person is burning something without state approval and someone else is affected by the smoke and winds-up going to the Emergency Room. The violator may be a wire-burner who inadvertently impacts his own family, which often happens, or somebody deciding to have a large unauthorized debris fire, only to have the smoke from that fire harm people in a nearby subdivision. Punishment for TWC Sec. 7.182 violation The punishment for an individual convicted of violating this statute, first offense, is a fine ranging from $1,000 to $250,000 and/or confinement for up to five (5) years. For a person other than an individual, the punishment for being convicted, first offense, is a fine ranging from $2,000 to $500,000. For a subsequent conviction, the potential fine and period of confinement are doubled, as provided for in TWC Sec. 7.188. This is an enormous potential penalty for a person who (1) recklessly emits an air

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contaminant (2) without state authorization; (3) thereby putting another person in imminent danger of death or serious bodily injury. However, the penalties for violations of TWC Sec, 7.183 are even bigger, as we’ll see in the next section.

Probably the best felony burning charge to use is usually TWC Sec. 7.182 Both felony charges carry a five year sentence and extremely high fines; the elements of TWC Sec. 7.182 are simpler to prove.

TWC Sec. 7.183: Intentional/Knowing Emission + Knowing Endangerment This is the second of the two felony statutes, and I am unaware of it having been used by any local government to this point. However, since we do not record or enumerate convictions for environmental crimes at any level in the state, my understanding may be inaccurate. The potential confinement time in this law — five years — is the same as Sec. 7.182, but the potential fine is double that found in TWC Sec. 7.182. However, the levels of culpability to be proven are much greater in Sec. 7.183, and consequently more difficult to prosecute. To meet the criminal elements of Sec. 7.813, not only does the violator have to emit the air contaminant intentionally or knowingly, with respect to his conduct (which shouldn’t be too difficult to show by itself), but he must also emit the air contaminant knowing that he was putting the other person in danger (which generally will be very difficult to prove) and the other person actually has to have been put in immanent danger of death or serious bodily injury. Texas Water Code Sec. 7.183. INTENTIONAL OR KNOWING EMISSION OF AIR CONTAMINANT AND KNOWING ENDANGERMENT, presented as a list of elements in section (a) reads: (a) A person commits an offense - if the person - intentionally or knowingly, with respect to the person's conduct, - emits - an air contaminant - with the knowledge - that the person is placing another person - in imminent danger of death or serious bodily injury, - unless the emission is made in strict compliance with Chapter 382, Health and Safety Code, or a permit, variance, or order issued or a rule adopted by the commission. Comments (see discussion for TWC Sec. 7.182 for additional remarks) Intentionally or knowingly is limited to the person’s conduct in emitting the air

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contaminant. It is defined in Texas Penal Code Sec. 6.03. DEFINITIONS OF CULPABLE MENTAL STATES as: (a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. (b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Another person: As is true in the endangerment offenses of Chapter 7 (Subchapter E) in generally, another person does not include first responders or others excluded under Texas Water Code Sec. 7.252. Since firefighters and police freely consent to be placed in danger by responding to such burning and, in fact, the possibility of being harmed is a reasonably foreseeable associated hazard: Sec. 7.252. DEFENSES TO ENDANGERMENT OFFENSES. It is an affirmative defense to prosecution under Section 7.152, 7.153, 7.154, 7.163, 7.168, 7.169, 7.170, 7.171, 7.182, or 7.183 that: (1) the conduct charged was freely consented to by the person endangered and that the danger and conduct charged were reasonably foreseeable hazards of the person ’s occupation, business, or profession or a medical treatment or medical or scientific experimentation conducted by professionally approved methods and the person endangered had been made aware of the risks involved before giving consent; or (2) the person charged was an employee who was carrying out the person ’s normal activities and was acting under orders from the person ’s employer, unless the person charged engaged in knowing and wilful violations. This law will probably be rarely used, since the additional burden of proving “knowledge” of the probable effect on the victim can be so difficult. Punishment for TWC Sec. 7.183 violation The punishment for an individual convicted of violating this statute, first offense, is a fine ranging from $2,000 to $500,000 and/or confinement for up to five (5) years. For a person other than an individual, the punishment for being convicted, first offense, is a fine ranging from $5,000 to $1,000,000. If an individual or a company (a) intentionally or knowingly emits an air contaminant (b) knowing that it could cause an imminent danger of death or serious bodily injury to a person, the penalty should be severe, as the State Legislature has acknowledged by the size of

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these penalties. However, since the injury must have resulted from the actor’s knowing that the injury would occur, this charge is very difficult to prove and seldom filed. The potential confinement in the case of this law and the previous one — five years — is the same, and the maximum fine is in both statutes beyond the reach of virtually all defendants. Consequently, the charge of RECKLESS EMISSION OF AIR CONTAMINANT AND ENDANGERMENT is the one generally used because of the lower culpability regarding the endangerment. It’s just easier to prove. Anytime there is a fire and a person (other than a first responder) is transported to the hospital because of smoke or fume inhalation or because of other respiratory problems, officers should follow-up with the attending physician to see if, in the physician’s opinion, the person had been placed in imminent danger of death or serious bodily injury from exposure to the air contaminant. If so — and if the fire was not authorized by TCEQ rules, permit, order, or other means — then the officer should be alert to the possibility of a TWC Sec. 7.182 violation by whomever was emitting the air contaminant.These two felony charges certainly can be enforced by local police and are, in fact, much easier to enforce than misdemeanor illegal burning, as the next section will show. Misdemeanor Illegal Burning This can be the most difficult area of environmental enforcement to understand and apply that local officers will face. But if you go through these violations step-by-step, things will fall into place easily. This section will address: 1. 2. 3.

The criminal statute itself: TWC Sec. 7.177(a)(5); Local response to alleged air nuisances under 30 T.A.C. Sec. 101.4 (a crime under the statute in 1); and, Local response to alleged violations of the Texas Outdoor Burning Rule (also a crime under the statute in 1).

Violating the Outdoor Burning Rule = Committing a Crime When the State Legislature created the Texas Clean Air Act, back in 1989, it included THSC Sec. 382.018, which allowed the TCEQ to draft rules to govern the "outdoor burning of waste and combustible material," as the section was titled. The agency was allowed to draft rules, but not mandated to do so by the legislature. But the TCEQ predecessor agencies did draft a set of rules, following the usual process which included widespread public comment, and the resulting rule, modified several times since originally created, is the current Texas Outdoor Burning Rule. Its formal name is 30 Texas Administrative Code Sec. 111,

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Subchapter B. It's important to note that this is not "TCEQ's rule," but is part of the overall Texas Administrative Code under which all Texans live, work, and play. This rule was adopted under Chapter 382 of the Texas Health and Safety Code, and governs all outdoor burning in the state. Occasionally a local peace officer or sheriff will say, "This is the TCEQ's rule and I’m not bound by it." Actually, that individual is incorrect on both accounts. It is not the TCEQ's rule at all; it belongs to the people of the state of Texas, and we have adopted it in an attempt to find a rational way to regulate outdoor burning. And of course, we are all bound by the Texas Administrative Code, just like we are bound by every other set of laws in Texas. Moreover, in the case of local law enforcement officers, governmental managers and elected officials there is always that oath of office that one takes in which he or she agrees to protect the Constitution and the laws of the United States and Texas. TWC Sec. 7.177: Misdemeanor Criminal Burning Statute This section of the Texas Water Code is used by local peace officers when bringing charges for misdemeanor violations of the Texas Clean Air Act. Usually, the situation officers face will be an apparent violation of the Texas Outdoor Burning Rule. Since that rule is “a rule adopted under Chapter 382, Health and Safety Code” (see the law immediately below), any violation of that rule is, in turn, a violation of TWC Sec. 7.177(a)(5). Sec. 7.177. VIOLATIONS OF CLEAN AIR ACT. (a) A person commits an offense if the person intentionally or knowingly, with respect to the person's conduct, violates: (1) Section 382.0518(a), Health and Safety Code; (2) Section 382.054, Health and Safety Code; (3) Section 382.056(a), Health and Safety Code; (4) Section 382.058(a), Health and Safety Code; or (5) an order, permit, or exemption issued or a rule adopted under Chapter 382, Health and Safety Code. (b) An offense under this section is punishable for an individual under Section 7.187(1) (B) or Section 7.187(2)(C) or both [Note: a fine ranging from $1,000 to $50,000 or confinement to 180 days] (c) An offense under this section is punishable for a person other than an individual under Section 7.187(1)(C). [Note: a fine ranging from $1,000 to $100,000] ☆

The Texas Outdoor Burning Rule was adopted as a rule under Chapter 382, Health and Safety Code, as published in the Texas Register on September 3, 1996 at page 8505.

The first four violations shown above — Section 382.0518(a), etc. — are various technical

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violations of different sections of the Texas Clean Air Act. The section mentioned, for instance, requires a person to obtain a permit from the state before building or modifying any facility that may emit an air contaminant. Failure to do that is a criminal violation of this statute (and the term “facility” is very wide — including an unpermitted paint booth). To my knowledge, charging a person emitting an air contaminant — smoke, fumes, etc. — with a criminal violation of this law because he failed to get a permit before the facility he used to burn (or whatever), has never been done in Texas. But it eventually will be used at the local level along with the rest of these laws. The primary use of TWC Sec. 7.177 at the local level by cities, counties, and special districts with police powers is in enforcing the Texas Outdoor Burning Rule. If a person violates a provision of the Texas Outdoor Burning Rule — which may result in TCEQ administrative officers responding — she has also violated TWC Sec. 7.177, specifically at subsection (a)(5). Misdemeanor illegal burning enforcement consists in filing criminal charges for a violation of TWC Sec. 7.177(a)(5) against individuals, companies, and associations who violate the detailed provisions of the Texas Outdoor Burning Rule. Beware Air Nuisance Enforcement The term “nuisance” has an exact meaning when discussing air quality issues and is defined at Title 30 of the Texas Administrative Code at Section 101.4: No person shall discharge from any source whatsoever one or more air contaminants or combinations thereof, in such concentration and of such duration as are or may tend to be injurious to or to adversely affect human health or welfare, animal life, vegetation, or property, or as to interfere with the normal use and enjoyment of animal life, vegetation, or property. Notice how restrictive this definition is, especially at the words that are printed in bold text, and ask yourself the question, “How would I prove each of these detailed requirements?” Many of these terms would be open to interpretation in most jurisdictions. Consequently our advise to virtually every local jurisdiction is to acknowledge that proving these elements of the definition is probably beyond your capacity, and get the state involved. If it is alleged that a particular emission constitutes a “nuisance” to local air quality, (1) take down the contact information of the person making the allegation, (2) tell the person that proving the existence of a nuisance under Texas rules is a complex operation, and (3) immediately notify the air program at your regional TCEQ office. That office will be in a position to undertake the professional, highly technical analysis to determine if the annoying odor actually rises to the level that it meets the definition of being a nuisance.

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If the TCEQ determines that the air emission does not meet the definition, inform the person making the complaint that the smell they reported, annoying though it was to them, did not meet the definition used in state rules. Since there is no violation of the rule, the TCEQ can not act; additionally, since there is no violation of the rule, local government cannot act to enforce any criminal law pertaining to the alleged air nuisance. No nuisance violation has occurred. However, there may well be some underlying general health nuisance generating the odor, and local government can certainly address that [using THSC Sec. 341.013(c), for instance]. If the TCEQ determines that the emission does meet the definition of an air nuisance under 30 T.A.C. 101.4, encourage the agency to complete the process and handle the case administratively. In some well-experience jurisdictions, such as City of Houston, Harris County, and a few others, the environmental criminal investigators and District Attorney’s Office routinely handle air nuisances. They do this by undertaking criminal enforcement under TWC Sec. 7.177(a)(5) once their analysis — or the analysis of regional TCEQ administrative officers — has determined that the definition of nuisance has been met. But in our estimate, most jurisdictions do not have the technical resources to make the determination correctly in the first place, and most county attorneys would have difficulty winning a case for an air nuisance violation under TWC Sec. 7.177(a)(5). ☆

On alleged air nuisance cases, your best bet is to get the TCEQ regional air program officers involved.

Comments on the Texas Outdoor Burning Rule The Texas Outdoor Burning Rule is the primary rule used by Texans to assure that outdoor burning is done within the boundaries of the Texas Clean Air Act, which is THSC Chapter 382. If a person — an individual, company, or association — violates any provision of this rule, the TCEQ administrative enforcement staff from the regional TCEQ air section may get involved (if they know about it). They will investigate the situation and decide if an administrative violation has occurred and what response is appropriate, given the circumstances. But violating any of these provisions is also a criminal violation of THSC Sec. 7.177(a)(5), because the rule is a rule that was “adopted under Chapter 382, Health and Safety Code,” to use the language of that section. Criminal violations are the business of local government.

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So, the better local peace officers understand the provisions of the Texas Outdoor Burning Rule, the better they will be at identifying rule violations, and thereby identifying criminal violations under TWC Sec. 7.177(a)(5). Becoming knowledgeable of the contents of the Texas Outdoor Burning Rule is not something that can happen in a few minutes or with one reading. If officers want be competent in understanding and applying the provisions of this rule, it will require study. The Outdoor Burning Rule — 30 T.A.C. 11(Subchapter B) — can be easily accessed online. Additionally, the TCEQ has developed an outstanding 20-page publication that explains the rule and provides good contact information for the agency. You can download or read a copy at http://s.coop/xid0 . Additional hard copies of this document can often be obtained from the TCEQ Small Business and Local Government Assistance representative in your region.

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3.

OIL AND GAS WASTE CRIMINAL LAWS

A. Introduction For local governments needing to control illicit hauling and disposal of oil and gas waste, several things are important to remember: (1) The Railroad Commission of Texas are their administrative enforcement partners in controlling mishandling and dumping of oil and gas waste, rather than the TCEQ; (2) There are several criminal laws that specifically deal with oil and gas waste for local governments to use, along with most of the provisions in the general environmental laws; (3) Local governments generally know even less about controlling oil and gas waste dumping than they do about controlling general solid waste and litter dumping; and, (4) Local governments (and the state, for that matter) cannot use THSC Chapter 365 — the Litter Abatement Act — to respond to oil and gas waste dumping. Oil and Gas Waste Specifically Defined Oil and gas waste is specifically defined at several places in the laws and rules (don’t worry — the definitions all agree). You don’t need to memorize this definition, but you do need to know where to find it. Statewide Rule 8, the rule under which the waste hauling permit — WHP — is issued defines oil and gas waste as:

16 T.A.C. Sec. 3.8 Water Protection Sec. (a)(26) Oil and gas wastes--Materials to be disposed of or reclaimed which have been generated in connection with activities associated with the exploration, development, and production of oil or gas or geothermal resources, as those activities are defined in paragraph (30) [paragraph printed below] of this subsection, and materials to be disposed of or reclaimed which have been generated in connection with activities associated with the solution mining of brine. The term "oil and gas wastes" includes, but is not limited to, saltwater, other mineralized water, sludge, spent drilling fluids, cuttings, waste oil, spent completion fluids, and other liquid, semiliquid, or solid waste material. The term "oil and gas wastes" includes waste generated in connection with activities associated with gasoline plants, natural gas or natural gas liquids processing plants, pressure maintenance plants, or repressurizing plants unless that waste is a hazardous waste as defined by the administrator of the United States Environmental Protection Agency pursuant to the federal Solid Waste Disposal Act, as amended (42 United States Code Sec. 6901 et seq.). 16 T.A.C. Sec. 3.8 Water Protection Sec. (a)(30) Activities associated with the exploration, development, and production of

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Oil and Gas Annex oil or gas or geothermal resources--Activities associated with: (A) the drilling of exploratory wells, oil wells, gas wells, or geothermal resource wells; (B) the production of oil or gas or geothermal resources, including: (i) activities associated with the drilling of injection water source wells that penetrate the base of usable quality water; (ii) activities associated with the drilling of cathodic protection holes associated with the cathodic protection of wells and pipelines subject to the jurisdiction of the commission to regulate the production of oil or gas or geothermal resources; (iii) activities associated with gasoline plants, natural gas or natural gas liquids processing plants, pressure maintenance plants, or repressurizing plants; (iv) activities associated with any underground natural gas storage facility, provided the terms "natural gas" and "storage facility" shall have the meanings set out in the Texas Natural Resources Code, Sec. 91.173; (v) activities associated with any underground hydrocarbon storage facility, provided the terms "hydrocarbons" and "underground hydrocarbon storage facility" shall have the meanings set out in the Texas Natural Resources Code, Sec. 91.201; and (vi) activities associated with the storage, handling, reclamation, gathering, transportation, or distribution of oil or gas 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; (C) the operation, abandonment, and proper plugging of wells subject to the jurisdiction of the commission to regulate the exploration, development, and production of oil or gas or geothermal resources; and (D) the discharge, storage, handling, transportation, reclamation, or disposal of waste or any other substance or material associated with any activity listed in subparagraphs (A)-(C) of this paragraph, except for waste generated in connection with activities associated with gasoline plants, natural gas or natural gas liquids processing plants, pressure maintenance plants, or repressurizing plants if that waste is a hazardous waste as defined by the administrator of the United States Environmental Protection Agency pursuant to the federal Solid Waste Disposal Act, as amended (42 United States Code Sec. 6901, et seq.).; The same definition is found in NRC Chapter 91:

Texas Natural Resources Code Chapter 91 Provisions Generally Applicable Sec. 91.1011. Oil and Gas Waste

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Oil and Gas Annex (a) In this subchapter, "oil and gas waste" means waste that arises out of or incidental to the drilling for or producing of oil or gas, including waste arising out of or incidental to: (1) activities associated with the drilling of injection water source wells which penetrate the base of useable quality water; (2) activities associated with the drilling of cathodic protection holes associated with the cathodic protection of wells and pipelines subject to the jurisdiction of the commission; (3) activities associated with gasoline plants, natural gas or natural gas liquids processing plants, pressure maintenance plants, or repressurizing plants; (4) activities associated with any underground natural gas storage facility, provided the terms "natural gas" and "storage facility" shall have the meanings set out in Section 91.173, Natural Resources Code; (5) activities associated with any underground hydrocarbon storage facility, provided the terms "hydrocarbons" and "underground hydrocarbon storage facility" shall have the meanings set out in Section 91.201, Natural Resources Code; and (6) activities associated with the storage, handling, reclamation, gathering, transportation, or distribution of oil or gas 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. (b) "Oil and gas waste" includes saltwater, brine, sludge, drilling mud, and other liquid, semiliquid, or solid waste material.

1. Oil and gas waste is waste that comes from oil and natural gas exploration and production activities. 2. It includes saltwater, brine, sludge, drilling mud, and other liquid, semiliquid, or solid waste material … and other waste generated from the processes too. 3. For instance, it also includes domestic sewage (including waterborne human waste and waste from activities such as bathing and food preparation), and trash (including inert waste, barrels, dope cans, oily rags, mud sacks, and garbage) generated at wells and other oil and gas exploration and production sites.

Most oil and gas waste is exempted from being handled as hazardous waste by federal law. This includes most waste from hydraulic fracturing and other well work-over waste. There is, however, a category of waste defined under federal law as “oil and gas hazardous waste,” but we won’t be dealing with that in this book. If you want to know more about oil and gas hazardous waste, start with a visit with your district RRC office after reading Statewide Rule 98 Standards for Management of Hazardous Oil and Gas Waste.

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Different Forms of Oil and Gas Waste Commonly Occur at Different Times 1. In order to know which criminal laws to use to respond to any waste violation, you must first be certain as to what type of waste is involved; oil and gas waste require the use of specific criminal laws; 2. Wells typically produce different kinds of waste at different times in their life, but it’s all probably included in the definition of oil and gas waste.

☆

Different types of oil and gas waste are often generated during different phases of the exploration and production process: 1.

During the drilling process itself, the most common waste is used drilling mud;

2.

During the well completion process, the most common wastes are waste fluids from hydraulic fracturing and other liquid wastes generated by the well completion process (note, however, that this process may take place several times in the life of a well);

3.

During the life of the well, various liquid wastes from various work-over process; hydraulic fracturing may take place more than once, producing oil and gas waste each time;

4.

During the life of the well, the most common waste is produced saltwater that comes with the oil and gas extracted. This produced saltwater is separated at the well site, and must be properly disposed, usually off-site into an injection/disposal well;

5.

Not all oil and gas waste is obvious. For example, discarded equipment and metal storage tanks used to extract, process, or temporarily store oil or gas 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 may also be classified as oil and gas waste. This sort of waste can be generated at any time; and,

6.

Such wastes as human sewage and common trash and rubbish may be generated by the persons engaged in the processes of drilling for or producing of oil or gas. This waste is also classified as oil and gas waste.

If you are having trouble deciding if a particular waste is oil and gas waste or not, talk it over with your district RRC office. They’re the experts on what is and is not oil and gas waste.

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Right Way to Dispose of Produced Salt Water Saltwater Disposal Well

Wrong Way to Dispose of Produced Saltwater Possible Felony Water Pollution

Thus, in the Eagle Ford Shale formation area, there is still a lot of used drilling mud being generated, along with completion fluids and produced saltwater as wells become productive. But in the Barnett Shale gas area in North Texas, where there is not a great deal of new drilling going on now, the most common waste is produced saltwater that is a byproduct of the oil and gas extraction process. In the two pictures above, the one on the left shows a proper produced saltwater disposal well. Permitted carriers use wells such as these — and many less elegant — to dispose of production saltwater hauled from oil and gas wells. The picture on the right shows a carrier who has picked up a load of produced saltwater, and rather than dispose of it in a proper injection well has decided to dump part of the load on the way, to reduce his disposal costs. Note that the truck is not properly marked with a Waste Hauler Permit number and company name. Not only is this driver or company violating several criminal provisions of TWC Chapter 29 and NRC Sec. 91.002 (for Statewide Rule 8 violations), but the driver may also be violating Texas’s felony water pollution statute, Texas Water Code Sec. 7.145. All of these types of oil and gas waste — from drilling mud to waste hydraulic fracturing fluids and other completion fluids to produced saltwater — have to go to state-authorized disposal sites as specified in Statewide Rule 8, and they have to be moved to those disposal sites in non-leaking vehicles that have been permitted as waste carriers by the RRC. Failure to comply with these strict rules for waste transporting and disposal can easily result in multiple crimes being committed, as well as various administrative rule violations. The RRC handles the administrative enforcement; local governments handle criminal enforcement. There is plenty of work for everybody. Finding Information on the Railroad Commission’s Website There is a great deal of information on the Railroad Commission web site to use in controlling oil and gas waste. Of all the websites I know and regularly work with — both in commercial and government areas — the Railroad Commission’s site is one of the best. In fact,

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if you are working in any way with the oil and gas industry, spending a couple of hours just looking around the site would be very beneficial. Get started at www.rrc.state.tx.us. Some of the places there that can be really useful to local enforcement are: Data & Statistics After you’ve familiarized yourself with the site layout, take a look at “Data & Statistics” at www.rrc.state.tx.us/data/index.php. This is a good gateway into the detailed information available on the site. You may want to bookmark this page for future use. Summary Page of Wells Monitored One of the most fascinating pages is called “Distribution of Wells Monitored by the Railroad Commission.” This is a one-page diagram of the various types and numbers of wells overseen by the Railroad Commission. You can find this at www.rrc.state.tx.us/data/ wells/welldistribution/wellsdistribution022813.pdf. This page, for instance, shows that as of February 28, 2013 there were 290,623 active oil and gas wells in the state, of which 155,700 were producing oil wells and the rest producing natural gas. Just under 76% of these oil wells (119,846) were producing less that 10 barrels of oil per day. All 290,623 wells were producing some kind of waste too. The same data display shows that, as of the same date, there were 33,143 injection/disposal wells active in the state. This page will help you get an overview of the size of the regulatory job the RRC faces — and that’s before you consider their responsibilities for pipelines. It’s updated every month, so the URL changes slightly. Public GIS Viewer Among the most impressive data available on the site is the “Public GIS Map Viewer for Oil, Gas, and Pipeline Data” at www.rrc.state.tx.us/data/online/gis/index.php# . This section of the site shows the location and essential information for all of those items, arranged on county maps. A good exercise would be to go look at the data for your own county on this viewer. At first, you won’t see any wells at all — then begin to use the navigation tool to zoom into a specific area. Very impressive. Permitted Waste Haulers and Commercial Disposal Wells and Surface Disposal Sites The information about permitted waste haulers is on a page called “Oil and Gas Exploration and Production Permitted Oil & Gas Haulers, Commercial Disposal Wells, and Commercial Surface Disposal Facilities.” This page can is accessed at www.rrc.state.tx.us/ environmental/environsupport/wastfac/index.php, and shows the permitted waste haulers by the RRC District in which they are permitted to operate. Additional contact information on these entities can be found in the “Oil & Gas Directory” at www.rrc.state.tx.us/data/ operators/ogdirectory/index.php. Officers can use this information when verifying that a particular WHP is in effect.

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The more time you spend looking in the Railroad Commission’s website, the more you’ll know about the industry itself, the state regulatory process, and how to locate the data that will support local enforcement activities. Memorandum of Understanding Between the RRC and the TCEQ The State Legislature has passed various laws that determine which agencies have administrative responsibility for controlling various types of waste. With reference to wastes associated with the oil and gas sector, managers and staff attorneys from the TCEQ and RRC have carefully worked through enforcement responsibilities assigned to each agency by the State Legislature and developed this clarifying rule. So the “understanding” that this document seeks to memorialize is the agreed understanding between the two commissions on what the orders of the State Legislature are regarding waste generated by the oil and gas exploration and production process. This is not a memorandum reflecting how the two agencies decided to allocate responsibility; it is a memorandum of agreement on what the State Legislature has directed.

Trash and Sewage at Drilling Sites 1. The TCEQ usually is responsible for administrative violations concerning trash and domestic sewage. 2. But if this waste comes from activities associated with oil and gas exploration and production, it becomes the RRC’s administrative responsibility. 3. The State Legislature has assigned air contaminants to be the administrative responsibility of the TCEQ. 4. But, no matter the source, dumped trash, domestic sewage dumping, and illegal outdoor burning are always subject to criminal law enforcement by cities and counties. 5. The missing element in enforcement is usually the absence of local government enforcing state criminal laws.

The resulting understanding of “who is responsible for what” can be read at 16 Texas Administrative Code Sec. 3.30, Memorandum of Understanding between the Railroad Commission of Texas (RRC) and the Texas Commission on Environmental Quality (TCEQ). Air contaminants are not included in the MoU language; the State Legislature has decided that administrative responsibility for air nuisances and other air issues remains that of the TCEQ. The most important thing to remember by local governments, is that this MoU is between the RRC and the TCEQ; local governments and other state agencies are not parties to it, and, consequently, are not directly subject to its provisions. The job of local governments in Texas is to apply the criminal laws provided by the State Legislature to handle all criminal violations involving the various types of waste we generate — including oil and gas waste.

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Here’s some of what the MoU says about common trash and sewage generated in oil and natural gas exploration and production activities. Local officers might find this language useful in deciding what sort of waste is involved in a particular situation:

16 T.A.C. Sec. 3.30 (d)(1) Several types of waste materials can be generated during the drilling, operation, and plugging of these [oil, gas, or geothermal resource] wells. These waste materials include drilling fluids (including water-based and oil-based fluids), cuttings, produced water, produced sand, waste hydrocarbons (including used oil), fracturing fluids, spent acid, workover fluids, treating chemicals (including scale inhibitors, emulsion breakers, paraffin inhibitors, and surfactants), waste cement, filters (including used oil filters), domestic sewage (including waterborne human waste and waste from activities such as bathing and food preparation), and trash (including inert waste, barrels, dope cans, oily rags, mud sacks, and garbage). Generally, these wastes, whether disposed of by discharge, landfill, land farm, evaporation, or injection, are subject to the jurisdiction of the RRC. Wastes from oil, gas, and geothermal exploration activities subject to regulation by the RRC when those wastes are to be processed, treated, or disposed of at a solid waste management facility authorized by the TCEQ under 30 TAC Chapter 330 are, as defined in 30 TAC §330.3(148) (relating to Definitions), "special wastes." One would perhaps assume that the trash being generated at wells is solid waste or litter (subject to the jurisdiction of the TCEQ), but since it is produced as a byproduct of the oil and gas exploration and production process, that assumption is incorrect. The material is actually oil and gas waste, and controlling this trash is the RRC’s responsibility. The same goes for domestic sewage generated by the workers at wells: this is the RRC’s responsibility too. In more than a few situations, this division of responsibility between the two agencies has no doubt resulted in TCEQ having to patiently explain to local officials why that agency is not responding to a particular pile of dumped trash that originated from wells: What a TCEQ employee would probably say: “Judge, I understand your concern. However, the State Legislature has classified that huge pile of trash on the courthouse lawn as oil and gas waste since it came from a well site. We literally can’t act, but I’m sure your Railroad Commission district office can help you. I’m very sorry this has happened to you, and, again, I understand your concern.” The real question to be asked of the official (although no state agency would phrase it this way): “The Railroad Commission has administrative responsibility, but why not deal with it yourselves, by using the criminal laws that the State Legislature has provided? You’ve got responsibilities here too.”

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It would greatly reduce confusion if everybody could continue to help clarify the basic point of “local enforcement responsibility” for local elected officials. B. Criminal Laws Specifically For Oil And Gas Waste When a person dumps oil and gas waste without a permit from the RRC — or violates the conditions of a WHP issued by the agency — he may well commit a basic pollution crime in addition to various administrative violations. In some circumstances, the basic environmental laws discussed earlier in this book can also be used to control the effects [THSC Sec. 341.013(c)] of certain oil and gas waste dumping or even the dumping itself [TWC Sec. 7.145 and Sec. 7.147 where the dumping involves water pollution]. This section discusses two Texas criminal laws that the State Legislature has provided local governments to use in dealing specifically with oil and gas waste that is dumped or sloppedand-abandoned on roads and otherwise mishandled. The first of these — TWC Chapter 29 — contains several violations that are very straightforward and easy to use. These provisions are beginning to be used by governments effectively, especially by cities and counties in the Eagle Ford Shale area. The second — Texas Natural Resources Code Chapter 91 — is much broader. It contains four criminal sections, but local government response will probably be limited to using just one of these provisions, at least until more experience is gained. In both cases, when a local government undertakes a criminal case involving oil and gas waste or against a person it knows to hold a Waste Hauler’s Permit, the local government should always let the RRC district office know about the situation. TWC Chapter 29 Oil and Gas Waste Haulers The criminal sections of this law are the ones most commonly used by local governments to deal with oil and gas waste. They allow the officer to focus on the problem vehicle and driver, to arrest the driver if appropriate, and to impound the vehicle as evidence until the matter is resolved, usually after having the permit holder come vacuum out the rest of the load for proper disposal. If the permit holder sends a second vehicle to clean the dumped oil and gas waste — or sends a second vehicle to off-load the waste from an impounded vehicle — make sure these second vehicles are operating under a proper WHP also. These sections deal with very commonly observed violations: unmarked vehicles

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transporting oil and gas waste; hauling oil and gas waste without a permit; dumping and spillingand-abandoning oil and gas waste on streets and in other unauthorized locations; and, using a hauler who does not hold a valid WHP. The same criminal penalty applies to each of these: a fine of $100 to $1,000 and/or confinement in the county jail for up to ten days. Multiple violations are often involved when one visible violation results in a stop and investigation. Moreover, the individual vehicle involved in the violation may not be the only such improper vehicle operated by the permit holder. That is, if this particular vehicle is unmarked or leaking, why would anyone expect the entire fleet of vehicles operated by the permit holder to be free of similar violations? Officers enforcing these laws are encouraged to maintain sufficient records concerning violators so that they can identify patterns. If you find yourself dealing with the same company for related problems on different vehicles, it may be time to focus on the company itself rather than individual vehicles. As criminal cases grow beyond responding to a single offending vehicle, effective enforcement to solve problems will require greater levels of cooperation and coordination with the RRC (not compromising any criminal investigation, of course). However, TWC Chapter 29 will probably not be useful in dealing with these “organized intentional offenders.” Faced with several improperly-operated vehicles from the same permit holder, the local government will need to look deeply into the overall behavior of the entity, comparing the entity’s activity against the detailed requirements of Statewide Rule 8. In doing this, the local government will need to take more time to develop the case, perhaps working with the Railroad Commission in examining overall permit-holder behavior, or perhaps proceeding more independently under a criminal search warrant. TEXAS WATER CODE CHAPTER 29 OIL AND GAS WASTE HAULERS TWC Sec. 29.041 HAULING WITHOUT PERMIT.

No hauler may haul or dispose of oil and gas waste off the lease, unit, or other oil or gas property where it is generated unless the hauler has a permit issued under this chapter. TWC Sec. 29.042. EXCEPTIONS.

(a) A person may haul oil and gas waste for use in connection with drilling or servicing an oil or gas well without obtaining a hauler's permit under this chapter. (b) The commission by rule may except from the permitting requirements of this chapter specific categories of oil and gas waste other than saltwater. TWC Sec. 29.043. USING HAULERS WITHOUT PERMIT.

No person may knowingly utilize the services of a hauler to haul or dispose of oil and gas waste off the lease, unit, or other oil or gas property where it is generated if the hauler

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Oil and Gas Annex does not have a permit as required under this chapter. This section establishes an offense simply to use an unpermitted hauler. Moreover, Statewide Rule 8 requires that the generator and receiver of the waste — the oil or gas production well and the waste injection well — actively determine that the waste hauler has a WHP permit (requirement shown below). However, I’ve yet to hear of a case where an unpermitted hauler was stopped and investigated by a police officer, and that investigation become the basis for eventually issuing a citation under TWC Sec. 29.043 against a generator or receiver. This will probably be a next step in local enforcement. After all, the documentation carried by the hauler shows the source of the material transported. As soon as haulers learn that they need to follow their permits — and as soon as waste generators and receivers understand that they are subject to enforcement for failure to use a permitted hauler — waste will be handled better. So why not create a “Welcome from the Sheriff” letter for everybody reminding them of their responsibility to use permitted haulers exclusively, and explaining the provisions of TWC Sec. 29.043? For Reference:

Statewide Rule 8 Sec. (d) Pollution Control. (5) Responsibility for disposal. (A) Permit required. No generator or receiver may knowingly utilize the services of a carrier to transport oil and gas wastes if the carrier is required by this rule to have a permit to transport such wastes but does not have such a permit. … Any person who plans to utilize the services of a carrier or receiver is under a duty to determine that the carrier or receiver has all permits required by the Oil and Gas Division to transport, store, handle, treat, reclaim, or dispose of oil and gas wastes. TWC Sec. 29.044. DISPOSING OF OIL AND GAS WASTE.

(a) No hauler may dispose of oil and gas waste on public roads or on the surface of public land or private property in this state in other than a railroad commission-approved disposal facility without written authority from the railroad commission. When oil and gas waste is spilled and then abandoned by the driver — or the waste is dumped on a street or on other public or private property other than a RRCapproved disposal facility — local officers commonly use this provision in response. Note that it is a violation of Statewide Rule 8 to transport oil and gas waste in a vehicle that leaks [see Sec. F(1)(c)(ix)]. If officers enforce NRC Sec. 91.002, the fact that the vehicle was operated in such a manner that it leaked can be the basis for additional criminal fines (maximum: $10,000). However, at this time officers seem to be using TWC Sec. 29.044 to deal with road spills.

(b) No hauler may dispose of oil and gas waste on property of another in other than a

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Oil and Gas Annex railroad commission-approved disposal facility without the written authority of the landowner. This violation would cover such situations as when used drilling mud was being land farmed, but, on investigation of a complaint, the land owner had not given his permission for this to take place. Such permission has to be in writing. Perhaps an employee of an absentee land owner was allowing land farming without the owner’s permission in order to make illicit money. TWC Sec. 29.045. USE OF UNMARKED VEHICLES.

No person who is required to have a permit under this chapter may haul oil and gas waste in a vehicle that does not bear the owner's name and the hauler's permit number. This information shall appear on both sides and the rear of the vehicle in characters not less than three inches high. If a vehicle is being used to haul oil and gas waste, it must be properly marked with both the permit holder’s name and the valid WHP number on the back and sides, in characters at least three inches high. A WHP number with no name — or a name with no WHP number — would both violate this provision, as would proper marking on fewer than the three locations specified. When the officer checks the WHP permit itself (see Section 4 below), he or she will want to verify that the name and WHP number on the back and sides of the vehicle matches the name and WHP number on the copy of the permit carried on the vehicle. Missing and incomplete vehicle markings are one of the primary causes for investigations by officers, and may lead to additional charges — hauling without a valid permit, for instance — or charges against the waste generator or receiver for using an unpermitted hauler. TWC Sec. 29.046. PENALTY.

A person who violates any provision of this chapter is guilty of a misdemeanor and upon conviction is punishable by a fine of not less than $100 nor more than $1,000 or by confinement in the county jail for not more than 10 days or by both. These sections are being effectively enforced in several Texas cities and counties now, and more are sure to follow. Here’s a recent (June 2012) email detailing results from a county environmental enforcement deputy in the Eagle Ford Shale area who aggressively uses TWC Chapter 29 to deal with oil and gas waste: “WE TOOK SOME PEOPLE TO COURT TODAY ON VIOLATIONS OF TEXAS WATER CODE, CHAPTER 29, OIL FIELD WASTE HAULERS.  HERE'S THE OUTCOME FOR THE DAY.   EIGHT (8) DEFENDANTS WAIVED ARRAIGNMENT AND WILL BE SET UP FOR

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Oil and Gas Annex TRIAL. FIFTEEN (15) DEFENDANTS PLEAD GUILTY AND WERE FINED $500.00 PLUS $299.00 COURT COSTS.   ONE (1) DEFENDANT PLEAD GUILTY AND WAS FINED $400.00 PLUS $299.00 COURT COSTS.   TWO (2) DEFENDANTS PLEAD GUILTY AND WERE FINED $250.00 PLUS $299.00 COURT COSTS.   THREE (3) DEFENDANTS PLEAD GUILTY AND WERE FINED $100.00 AND $299.00 COURT COSTS.   NINE (9) DEFENDANTS FAILED TO APPEAR AND WARRANTS WERE ISSUED FOR THEIR ARREST WITH A $2,000.00 BOND.   SOME OF THE DEFENDANTS WERE GIVEN A BREAK BY THE JUDGE AND FOUND GUILTY ON DISPOSING OF OILFIELD WASTE ON PUBLIC ROAD AND HAVING THE USE OF UNMARKED VEHICLE DISMISSED.   I WAS REAL HAPPY WITH JUDGE'S ACTIONS.  FOUND OUT SOME DRIVERS WERE FIRED AND SOME QUIT BECAUSE THEY REFUSED TO PULL THE TRAILERS THAT WERE NOT REPAIRED BY COMPANY.” Your county could get the same results with systematic enforcement of TWC Chapter 29. The State Legislature absolutely has provided local government with effective tools to fight criminal mishandling of oil and gas waste. TNRC Chapter 91. Provisions Generally Applicable This is the second group of criminal provisions created by the State Legislature addressing oil and gas waste. Of the four criminal violations, the first will eventually be used by many local officers. The second will probably not be used (officers will probably elect to use a more familiar Penal Code provision). The third and fourth mentioned here are even more technical in nature and probably won’t be applied locally except at the request of the RRC in specific situations. Criminal Law #1: Violating a Waste Handling Code, Rule, Order, or Permit This is the criminal section of NRC Chapter 91 most likely to be used by local law enforcement agencies. Very likely, officers will begin to use this section when (1) the provisions of TWC Chapter 29 don’t produce the desired results; (2) the target moves from being an individual violating vehicle to being a violating WHP holder as an entity; and, (3) when local authorities grow in sophistication and working with district RRC offices becomes more normal. Statewide Rule 8 — Title 16 T.A.C. Sec. 3.8 — is a rule issued under Section 91.101 of the Natural Resources Code [see Preface to the issuance of this rule in the Texas Register, Aug 27,

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2004]. NRC Sec. 91.101 is the rule making authority of the RRC when it is acting to prevent pollution. A violation of Statewide Rule 8 would be included in the violations possible under Sec. 91.002(a):

NRC Sec. 91.002. CRIMINAL PENALTY. (a) A person who wilfully or with criminal negligence violates Section 91.101 of this code or a rule, order, or permit of the commission issued under that section commits an offense. (b) An offense under Subsection (a) of this section is punishable by a fine of not more than $10,000 a day for each day a violation is committed. (c) Venue for prosecution of an alleged violation of this section is in a court of competent jurisdiction in the county in which the violation is alleged to have occurred. This section could be used, for example, to respond to a WHP-holding entity who is running multiple unpermitted, mis-marked, or leaking vehicles, and when direct action against individual problem vehicles is not changing behavior. Note especially the provisions in Statewide Rule 8 at section (f) Oil and gas waste haulers. Violating any of those specifically listed operational and record-keeping requirements would probably constitute a separate violation of NRC Sec. 91.002. Cities and counties contemplating a criminal action at this level should keep the RRC informed of their actions, and probably proceed under criminal search warrants rather than relying on any other entry process. Local officers should be guided by their county attorney in planning the use of this provision in a particular situation. I know of no city or county using this statute at this time, but I can certainly anticipate its being used when the problem moves beyond the “one vehicle” enforcement of TWC Chapter 29. Criminal Law #2: Various Paperwork Violations and Gauge Tampering This is the next criminal section of NRC Chapter 91 that local officers might use. Although most officers will be more familiar with using Penal Code Sec. 37.10 TAMPERING WITH GOVERNMENTAL RECORD where document crimes have taken place. NRC SEc. 91.143(a)(3) below might be used to deal with a forged or altered Waste Hauler’s Permit, or PC Sec. 37.10 applied. There’s also the possibility that vehicles that leak oil and gas waste in transit were included in the WH-2 vehicle list submitted to the RRC as part of the WHP application. The WH-2 list of vehicles was certified by the applicant as being designed to be leak-free. Given the number of haulers and the number of vehicles involved, RRC staff cannot possibly personally inspect each vehicle submitted in the application to make sure that the vehicle isn’t designed in such a way as to leak. Requiring a certification on the application to this effect is the best approach. Proving that such an application included a wrongly-certified vehicle would be time consuming to local officers. But it is a subject to be discussed with district RRC field

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inspectors and managers if the county finds itself dealing with multiple leaking vehicles from the same permit holder. The RRC may want to take the opportunity to do administrative enforcement in such a situation, or the circumstances may warrant local government moving ahead with a criminal investigation.

Sec. 91.143. FALSE APPLICATIONS, REPORTS, AND DOCUMENTS AND TAMPERING WITH GAUGES. (a) A person may not: (1) make or subscribe any application, report, or other document required or permitted to be filed with the commission by the provisions of Title 102, Revised Civil Statutes of Texas, 1925, as amended, including provisions of this code formerly included in that title, knowing that the application, report, or other document is false or untrue in a material fact; (2) aid or assist in, or procure, counsel, or advise the preparation or presentation of any of these applications, reports, or other documents that are fraudulent, false, or incorrect in any material matter, knowing them to be fraudulent, false, or incorrect in any material matter; (3) knowingly simulate or falsely or fraudulently execute or sign such an application, report, or other document; (4) knowingly procure these applications, reports, or other documents to be falsely or fraudulently executed, or advise, aid in, or connive at this execution; or (5) knowingly render inaccurate any monitoring device required to be maintained by a commission rule, order, or permit. (b) A person commits an offense if the person violates this section. An offense under this section is a felony punishable by: (1) imprisonment in the Texas Department of Criminal Justice for a term of not less than two years or more than five years; (2) a fine of not more than $10,000; or (3) both the imprisonment and the fine. (c) If other penalties prescribed in Title 102, Revised Civil Statutes of Texas, 1925, as amended, including provisions of this code formerly included in that title, overlap offenses that are also punishable under this section, the penalties prescribed in this section shall be in addition to other penalties. (d) No application, report, or other document required or permitted to be filed with the commission under Title 102, Revised Civil Statutes of Texas, 1925, as amended, including provisions of this code formerly included in that title, may be required to be under oath, verification, acknowledgment, or affirmation. (e) The commission may impose an administrative penalty in the manner provided by Sections 81.0531-81.0534 on a person who violates this section. The amount of the

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Oil and Gas Annex penalty may not exceed $1,000 for each violation. Faced with a forged WHP (such as a WHP that has been altered to change an expired expiration date; to add a new vehicle without the authorization of the RRC; to list another disposal site without RRC authorization; or to make some other material change) the local officer is more likely to use the more familiar Penal Code Sec. 37.10 in response. Local officers should bring these two alternative charges to the attention of their district attorney so that an informed choice can be made of the charges to be filed. It’s also interesting that section (a)(5) above can be used to respond to situations where a person has “knowingly rendered inaccurate any monitoring device required to be maintained by a commission rule, order, or permit.” The problem, of course, is that local authorities will probably never know of such a situation without being notified by the RRC. This and the following two criminal violations cover situations where not having its own criminal enforcement unit probably presents difficulties for the RRC. Not all of the thousands of entities in Texas operating under a RRC-issued permit of some kind are honest: some are criminals, and these need criminal rather than administrative response to their violations. Criminal Law #3: Saltwater Storage and Evaporation Pits This section sets a criminal sanction for using an unauthorized saltwater pit and for failing to remove such a pit when ordered to do so by the RRC. Given the technical nature of this violation, it is unlikely that local officers will ever use this provision unless requested to do so by the RRC.

NRC Sec. 91.458. CRIMINAL PENALTY. (a) A person who violates Section 91.452 of this code or an order of the commission under Subsection (a), Section 91.457, commits an offense. (b) An offense under this section is a Class A misdemeanor. For Reference:

Sec. 91.452. PROHIBITED ACTIVITY. Except as provided by this subchapter, a person conducting oil and gas development or production operations, geothermal operations, or underground hydrocarbon storage operations may not use a saltwater disposal pit for storage or evaporation of oil field brines. Sec. 91.457. REMOVAL OF UNAUTHORIZED PIT. (a) The commission may order a person who is operating a saltwater disposal pit in violation of this subchapter to close the pit in compliance with this subchapter and commission rules, standards, and specifications, at the pit operator's own expense. (b) If a person ordered to close a saltwater disposal pit under Subsection (a) fails or

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Oil and Gas Annex refuses to close the pit in compliance with the commission's order and rules, the commission may close the pit using money from the oil and gas regulation and cleanup fund and may direct the attorney general to file suits in any courts of competent jurisdiction in Travis County to recover applicable penalties and the costs incurred by the commission in closing the saltwater disposal pit. Criminal Law #4: Violations Concerning Oil and Gas HAZARDOUS Waste This is another law that local officers will probably not use, unless requested to do so by the RRC. However, it is something that local officers should basically understand. Most oil and gas waste is not “hazardous,” by definition under federal law: it’s just oil and gas waste. However, if certain oil and gas waste does meet the definitions provided under federal law, it is classified as “oil and gas hazardous waste” and becomes subject to other handling and disposal requirements. In order to know more about the federal rules that exempt most oil and gas waste from being classified as “hazardous,” there is an excellent presentation at http://www.epa.gov/osw/nonhaz/ industrial/special/oil/oil-gas.pdf. That document sets a simple “rule of thumb” to be used : (1) Has the waste come from down-hole, i.e., was it brought to the surface during oil and gas E&P operations? (2) Has the waste otherwise been generated by contact with the oil and gas production stream during the removal of produced water or other contaminants from the product? If the answer to either question is “yes,” then the waste is likely considered exempt from RCRA Subtitle C regulations (i.e., it is not classified as hazardous). As you can see, the oil and gas waste commonly encountered by local officers usually meets one or both of these criteria and would therefore not be classified as “hazardous.” However, as the EPA document makes clear, all oil and gas waste must be handled properly in order to minimize risks to persons and property. If you want to do additional reading on this subject beyond the EPA document cited above, we suggest you begin with Title 16 T.A.C. Sec 3.98 Standards for Management of Hazardous Oil and Gas Waste. This rule was drafted by the RRC, as directed by the State Legislature. Any violation of a provision of Statewide Rule 98 will be a serious matter: the State Legislature has established a major misdemeanor penalty (below) for such actions. Local officers who think they have encountered oil and gas hazardous waste should immediately bring the situation to the attention of their RRC district office.

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NRC Sec. 91.604. CRIMINAL PENALTY. (a) A person who knowingly violates a rule, order, or permit of the commission issued under this subchapter commits an offense. [The subchapter covered by this penalty is SUBCHAPTER N. OIL AND GAS HAZARDOUS WASTE.]

(b) An offense under this section is punishable by imprisonment for up to six months, by a fine of up to $10,000 for each day the violation is committed, or by both. (c) Venue for prosecution under this section is in the county in which the violation is alleged to have occurred. For Reference:

Sec. 91.601. DEFINITIONS. In this subchapter: (1) "Oil and gas hazardous waste" means oil and gas waste that is a hazardous waste as defined by the administrator of the United States Environmental Protection Agency under the federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.). (2) "Oil and gas waste" means oil and gas waste as defined in Section 91.1011 of this chapter. So of the four criminal sections available to local officers in Chapter 91 of the Natural Resources Code, the one that they are most likely to use is the first one discussed — NRC Sec. 91.002. As mentioned above, the most common violation involves one or more of the provisions of Statewide Rule 8, so let’s now briefly discuss that rule. Violating Statewide Rule 8 = Administrative and Criminal Violation This is a fairly short rule, and some of its provisions are more easily applied by local government than others (and some parts of this rule are more understandable to non-specialists than others). Remember that each violation of Statewide Rule 8 is an administrative violation for the RRC and a criminal violation of NRC Sec. 91.002 for local peace officers. There’s a similar enforcement situation elsewhere in Texas environmental law in the way misdemeanor outdoor burning violations arise in Texas. With reference to outdoor burning, any violation of the Texas Outdoor Burning Rule is both an administrative violation — to be handled by the TCEQ — and a misdemeanor criminal violation — to be handled by local law enforcement. This same concept applies with Statewide Rule 8 violations: they can give rise to both administrative and criminal enforcement.

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In this situation, effective enforcement requires some coordination between local government and the state agency. There may be situations where it is far better for the state to respond with administrative enforcement; at other times, it may make more sense for local governments to respond with criminal sanctions. I would suggest — and certainly not everybody agrees — that there are three ways of approaching this “dual responsibility” that should not be followed, even though both are easier than coordination: (1) Locals and the state should not both just do their thing without regard for the activities of the other. Now or eventually, coordination always pays off, so “do your thing” but stay in touch (without compromising the other’s case); (2) Locals and the state should not both fail to act, on the assumption that the other guys are taking care of business in a particular situation; and, (3) Local governments should not fail to act and then tell the citizens that “Enforcement is the responsibility of the Railroad Commission.” That’s simply dishonest. As an aid to local enforcement, the State Legislature “lifted out” several provisions of Statewide Rule 8 and codified them in TWC Chapter 29. These are the WHP violations most commonly seen by local law enforcement officers. But if applying these TWC Chapter 29 laws is not sufficient to respond to a particular situation, use of NRC Sec. 91.002 to respond to a more detailed rule violation may be necessary. 1. What the various sections of Statewide Rule 8 cover: (a) Definitions

(b) No pollution. No persons conducting activities subject to regulation by the commission may cause or allow the pollution of surface or subsurface water in the state. That’s the entire content of this section. Whatever else a WHP holder does, if he pollutes water in the process, he has violated Statewide Rule 8. Consider applying TWC Sec. 7.145 (see below) in these violations also.

(c) (d) (e) (f)

Exploratory wells Pollution control Pollution prevention Oil and gas waste haulers These details are useful for local officers, and include the recordkeeping requirements of haulers.

(g) Recordkeeping This details the recordkeeping requirements of oil and gas waste generators.

(h) Penalties Violations of this section may subject a person to penalties and remedies

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specified in the Texas Natural Resources Code, Title 3, which is the Title that includes Chapter 91.

(i) Coordination between RRC and TCEQ (MoU - Rule 3.30) (j) Consistency with the Texas Coastal Management Program 2. Selected parts of Statewide Rule 8 useful to local peace officers: Water pollution prohibited

(b) No pollution. No person conducting activities subject to regulation by the commission may cause or allow pollution of surface or subsurface water in the state. The point of Statewide Rule 8 is water protection. Therefore, the primary prohibited activity for permit holders is anything that pollutes water. The definition of “surface or subsurface water” used in this rule is identical to the definition of “water” used in the laws against water pollution in TWC Chapter 26 and TWC Chapter 7. So if a driver is dumping oil and gas waste into a creek — or legally disposing of drilling mud in an authorized land farming operation, but the waste is running off of the property into a creek and polluting (or threatening to pollute) the water — then they have probably committed (1) an administrative violation of this section; (2) which constitutes a related criminal violation of NRC Sec. 91.002; (3) possibly a felony or misdemeanor water pollution violations of TWC Sec. 7.145 or Sec. 7.147; and, (4) probable health nuisance violations of THSC Sec. 341.013(c). Deciding which of these criminal tools is appropriate for the situation is a matter of local policy. Who Must Have a Permit

(d) Pollution control (5) Responsibility for disposal. This section imposes responsibilities on the carriers themselves, as well as the generators of the waste and the receivers of the waste. Even though only the carrier receives the permit, the generators and receivers using any carrier are required to honor the permit process as well. Note also the last section of (A) below sets a positive responsibility for the generators and receivers to be sure they are doing business with permitted carriers. Not doing so is punishable by a fine of up to $10,000 per violation of NRC Sec. 91.002 in the local county. One would think that letters pointing out this possible criminal liability to waste generators and receivers would be welcomed — by everybody except a criminal, of course.

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(A) Permit required. Generators and receivers must use permitted carriers

No generator or receiver may knowingly utilize the services of a carrier to transport oil and gas wastes if the carrier is required by this rule to have a permit to transport such wastes but does not have such a permit. Carrier may use only permitted second carriers

No carrier may knowingly utilize the services of a second carrier to transport oil and gas wastes if the second carrier is required by this rule to have a permit to transport such wastes but does not have such a permit. Generators and carriers must use permitted receivers

No generator or carrier may knowingly utilize the services of a receiver to store, handle, treat, reclaim, or dispose of oil and gas wastes if the receiver is required by statute or commission rule to have a permit to store, handle, treat, reclaim, or dispose of such wastes but does not have such a permit. Receiver may use only permitted second receiver

No receiver may knowingly utilize the services of a second receiver to store, handle, treat, reclaim, or dispose of oil and gas wastes if the second receiver is required by statute or commission rule to have a permit to store, handle, treat, reclaim, or dispose of such wastes but does not have such a permit. User of carrier or receiver must assure party is permitted

Any person who plans to utilize the services of a carrier or receiver is under a duty to determine that the carrier or receiver has all permits required by the Oil and Gas Division to transport, store, handle, treat, reclaim, or dispose of oil and gas wastes. (f) Oil and gas waste haulers

Section (f) contains the most details of the violations peace officers are likely to encounter. So this would be a particularly good section to study, along with Section (b) which simply prohibits disposal practices that pollute water, and Section (d) which includes generators and receivers as the bad carrier’s “unofficial partners” in the violation. Local governments using NRC Sec. 91.002 should always be in communication with their district RRC office. Hauling oil and gas waste off the lease for disposal for hire requires permit

(1) A person who transports oil and gas waste for hire by any method other than by pipeline shall not haul or dispose of oil and gas waste off a lease, unit, or other oil or gas property where it is generated unless such transporter has qualified for and been

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Oil and Gas Annex issued an oil and gas waste hauler permit by the commission. Hauling of inert waste, asbestos-containing material regulated under the Clean Air Act (42 USC Secs. 7401 et seq), polychlorinated biphenyl (PCB) waste regulated under the Toxic Substances Control Act (15 USCA Sec. 2601 et seq), or hazardous oil and gas waste subject to regulation under Sec. 3.98 of this title (relating to Standards for Management of Hazardous Oil and Gas Waste), is excluded from this subsection. This subsection is not applicable to the non-commercial hauling of oil and gas wastes for non-commercial recycling. For purposes of this subsection, injection of salt water or other oil and gas waste into an oil and gas reservoir for purposes of enhanced recovery does not qualify as recycling. (A) Application for an oil and gas waste hauler permit will be made on the commission-prescribed form, and in accordance with the instructions thereon, and must be accompanied by: (i) the permit application fee required by Sec. 3.78 of this title (relating to Fees and Financial Security Requirements) (Statewide Rule 78); (ii) vehicle identification information to support commission issuance of an approved vehicle list; Application for a permit must include an affidavit from every proposed disposal system authorizing the applicant to use it.

(iii) an affidavit from the operator of each commission-permitted disposal system the hauler intends to use stating that the hauler has permission to use the system; and Applicant for permit must certify that trucks are designed in such a way as not to leak.

(iv) a certification by the hauler that the vehicles listed on the application are designed so that they will not leak during transportation. The certification shall include a statement that vehicles used to haul non-solid oil and gas waste shall be designed to transport non-solid oil and gas wastes, and shall be operated and maintained to prevent the escape of oil and gas waste. See (C)(ix) below also. Not only must the trucks be maintained and operated in such a way that they don’t leak, but the permit applicant must certify at the time of application that they are designed so they won’t leak in operation. But many times in the Eagle Ford Shale area one will see oil and gas waste being transported in open trucks,

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sometimes even dump trucks with a lining, which are guaranteed to leak. So why are these vehicles on the list of authorized trucks submitted to the RRC by the permit applicant, and why are they approved and added to the permit by the RRC in the first place? Apparently, some WHP applicants are simply lying on the certification they make that the vehicles being submitted for inclusion on the WHP are designed in such a way as not to leak. RRC staffing limits simply can’t physically inspect the vehicles before a permit is issued, nor should they do so; about all that the RRC can do is to rely on the applicant’s certification. I think that’s reasonable, but leaking trucks will continue to be permitted until local officers begin to respond to the results, including holding generators and receivers liable for using unpermitted haulers.

If a truck is leaking or spilling oil and gas waste, it may be damaged or very possibly was fraudulently permitted in the first place: there may have been a false certification filed with the permit application. You might want to discuss this with a RRC field investigator in your district. I can’t see any reason that a false certification on a WH-2 application form wouldn’t be a possible violation of NRC Sec. 91.143 or PC Sec. 37.10.

(B) An oil and gas waste hauler permit may be issued for a term not to exceed one year, subject to renewal by the filing of an application for permit renewal and the required application fee for the next permit period. The term of an oil and gas waste hauler permit will be established in accordance with a schedule prescribed by the director to allow for the orderly and timely renewal of oil and gas waste hauler permits on a staggered basis. The officer should be sure that the copy of the WHP required to be on each vehicle when it is hauling oil and gas waste is current, and also that the expiration date has not been altered by the permit holder. The RRC maintains a list of permitted waste haulers on their web site that local peace officers can easily use to identify date forgeries.

(C) Each oil and gas waste hauler shall operate in strict compliance with the instructions and conditions stated on the permit which provide: The physical copy of the permit required to be on each vehicle contains a list of basic required actions and prohibitions on the back of the approved WH-1 form. Everybody involved has good notice of the core requirements under

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their WHP; there is a copy of the back of a WHP shown below. Permit is good for one year

(i) This permit, unless suspended or revoked for cause shown, shall remain valid until the expiration date specified in this permit. Vehicles must be properly marked with WHP/Name

(ii) Each vehicle used by a permittee shall be marked on both sides and the rear with the permittee's name and permit number in characters not less than three inches high. (For the purposes of this permit, "vehicle" means any truck tank, trailer tank, tank car, vacuum truck, dump truck, garbage truck, or other container in which oil and gas waste will be hauled by the permittee.) Often a missing name — just a WHP number is showing — or missing side markings are the first clue a local peace officer has of a possible violation in process. Copy of permit with attachments must be on the vehicle

(iii) Each vehicle must carry a copy of the permit including those parts of the commission-issued attachments listing approved vehicles and commissionpermitted disposal systems that are relevant to that vehicle's activities. This permit authority is limited to those vehicles shown on the commission-issued list of approved vehicles. The permit on board must be for the vehicle stopped for investigation; the name and number on the permit must be the name and number on the back and sides of the vehicle; the vehicle must be operated in the RRC districts listed on the WH-1 face; and, the disposal sites must be near by. For instance, using a permit issued for waste hauling in a North Texas RRC district — and containing an Attachment B list of selected disposal wells in North Texas — to haul waste in the Eagle Ford area would be a violation. Using a vehicle with one WHP number, while carrying a permit for other vehicles, would also be a violation. Officers who get involved in these cases should take their time when inspecting the paperwork.

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Sometimes the permit holding company will offer to bring a copy of the permit to the spill scene when the required copy wasn’t on the vehicle. There’s no provision in law for this to excuse the requirement for a copy of the WHP to be onboard the vehicle. When a WHP document is finally produced, check it carefully and verify it against the RRC web site to see if it is actually valid and issued to the named party. Local agencies handle this “I left the WHP copy at the office” situation differently, some issuing citations and others issuing warnings, provided there is a valid WHP in force.

(iv) This permit is issued pursuant to the information furnished on the application form, and any change in conditions must be reported to the commission on an amended application form. The permit authority will be revised as required by the amended application. (v) This permit authority is limited to hauling, handling, and disposal of oil and gas waste. Carrier can only use disposal systems listed on permit

(vi) This permit authorizes the permittee to use commission permitted disposal systems for which the permittee has submitted affidavits from the disposal system operators stating that the permittee has permission to use the systems. These disposal systems are listed as an attachment to the permit. This permit also authorizes the permittee to use a disposal system operated under authority of a minor permit issued by the commission without submitting an affidavit from the disposal system operator. In addition, this permit authorizes the permittee to transport hazardous oil and gas waste to any facility in accordance with the provisions of Sec. 3.98 of this title (relating to Standards for the Management of Hazardous Oil and Gas Wastes), provided the shipment is accompanied by a manifest. Finally, this permit authorizes the transportation of oil and gas waste to a disposal facility permitted by another agency or another state provided the commission has granted separate authorization for the disposal. (vii) The permittee must file an application for a renewal permit, using the permittee's assigned permit number, before the expiration date specified in this permit. (viii) The permittee must compile and keep current a list of all persons by whom the permittee is hired to haul and dispose of oil and gas waste, and furnish such list to the commission upon request.

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Vehicles permitted to haul waste cannot leak (ix) Each vehicle must be operated and maintained in such a manner as to prevent spillage, leakage, or other escape of oil and gas waste during transportation. Vehicles used to haul non-solid oil and gas waste shall be designed to transport non-solid oil and gas wastes, and shall be operated and maintained to prevent the escape of oil and gas waste. Just because a vehicle has been certified at the time of the WHP application to have been designed in such a way as not to leak during operation, does not automatically authorize the vehicle’s use. This provision here goes even further; regardless of how the vehicle came to be listed on the permit, it still cannot be operated or maintained in such a way that leaking happens during transport.

(x) Each vehicle must be made available for inspection upon request by commission personnel. (2) A record shall be kept by each oil and gas waste hauler showing daily oil and gas waste hauling operations under the permitted authority. This section identifies the records to be maintained by the oil and gas waste hauler. When local peace officers decide to move beyond a particular offending vehicle into an examination of the permit holder, the investigation becomes a process of record examination. If you find yourself moving an investigation into this phase, you’ll most likely act under a criminal search warrant. Be sure to discuss this process with your county attorney before proceeding, and be sure the RRC district office is kept informed. (A) Such daily record shall be dated and signed by the vehicle driver and shall

show the following information: (i) identity of the property from which the oil and gas waste is hauled; (ii) identity of the disposal system to which the oil and gas waste is delivered; (iii) the type and volume of oil and gas waste received by the hauler at the property where it was generated; and (iv) the type and volume of oil and gas waste transported and delivered by the hauler to the disposal system. (B) Such record shall be kept open for the inspection of the commission or its representatives. (C) Such record shall be kept on file for a period of three years from the date of operation and recordation

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Oil and Gas Annex (g) Record keeping. (By the generator of oil and gas waste) (1) Oil and gas waste. When oil and gas waste is hauled by vehicle from the lease, unit, or other oil or gas property where it is generated to an off-lease disposal facility, the person generating the oil and gas waste shall keep, for a period of three years from the date of generation, the following records: (A) identity of the property from which the oil and gas waste is hauled; (B) identity of the disposal system to which the oil and gas waste is delivered; (C) name and address of the hauler, and permit number (WHP number) if applicable; and (D) type and volume of oil and gas waste transported each day to disposal. (2) Retention of run tickets. A person may comply with the requirements of paragraph (1) of this subsection by retaining run tickets or other billing information created by the oil and gas waste hauler, provided the run tickets or other billing information contain all the information required by paragraph (1) of this subsection. (3) Examination and reporting. The person keeping any records required by this subsection shall make the records available for examination and copying by members and employees of the commission during reasonable working hours. Upon request of the commission, the person keeping the records shall file such records with the commission. This section identifies the records to be maintained by the oil and gas waste generator. When generators use non-permitted waste haulers, they also commit a violation of this rule [see section d. Pollution control (5) Responsibility for disposal (A) Permit required]. When officers detect unpermitted hauling or dumping to be originating from some particular source, discuss acting against the source to stop the practice. In doing so, local prosecutors may decide to conduct a records search focusing on these items.

(h) Penalties. Violations of this section may subject a person to penalties and remedies specified in the Texas Natural Resources Code, Title 3, and any other statutes administered by the commission. The certificate of compliance for any oil, gas, or geothermal resource well may be revoked in the manner provided in Sec. 3.73 of this title (relating to Pipeline Connection; Cancellation of Certificate of Compliance; Severance) (Rule 73) or violation of this section. These sections will show how many of the provisions of Statewide Rule 8 are such that a local officer can identify the violation. Other parts of the rule are highly technical, and will probably require the assistance of the RRC to interpret. We recommend a thorough reading of

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Statewide Rule 8, and the resolution of any questions you have, before attempting to use it in conjunction with NRC Sec. 91.002.

C. The Waste Hauler’s Permit The RRC issues permits to waste haulers as specified in Statewide Rule 8. These permits are very exact and are good for one year only. The application process requires a formal filing with the RRC on their WH-1 form, which can be accessed at the RRC web site. The process also requires that the applicant submit a list of vehicles that he is requesting be included in the permit, as well as an affidavit from each RRC-regulated disposal facility he proposes to use. Once issued, a copy of this permit — which is the WH-1 approved application, the WH-2 list of authorized vehicles (appearing as “Permit Attachment A” on the issued permit), and the WH-3 list of authorized disposal facilities (appearing as “Permit Attachment B” on the issued permit) — must be carried on each vehicle hauling oil and gas waste off-site, for hire, for disposal. Moving this waste on-site and moving this material for re-use to another drilling site does not require a WHP be on board the vehicle. When any material being relocated for subsequent use is eventually depleted to the point where it is to be finally disposed, then hauling such waste off site, for hire, for disposal requires a WHP. So the WHP is: 1. Issued by the RRC under the provisions of Statewide Rule 8; 2. Required to be on each vehicle hauling oil and gas waste off-site, for hire, for disposal; 3. Is valid for up to a year, with the expiration date appearing on the back of the WH-1 approved application; 4. Has a required attachment — “Permit Attachment A” — that lists the vehicles the RRC has authorized; and, 5. Has another required attachment — “Permit Attachment B” — that lists the disposal sites authorized by the RRC for use under this permit. Many waste hauling processes in Texas — such as hauling waste tires, medical waste, and hazardous waste — require specific manifests, permits, or other authorizations to accompany the load. Stops to investigate these movements routinely include checking to make sure the paperwork is present and in order. In the case of hauling oil and gas waste, the document to be examined by officers is the WHP. Consequently, any local enforcement investigating possible criminal violations of TWC Chapter 29 OIL AND GAS WASTE HAULERS or other state laws should also examine the Waste Hauler’s Permit to detect apparent violations. Hence every criminal enforcement efforts

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would normally involve two steps: (1) responding to the underlying violation observed; and, (2) responding to any associated possible WHP paperwork violations. What Could Be Wrong with a Waste Hauler’s Permit? The WHP on a particular vehicle hauling oil and gas waste for disposal off-site being investigated may be: 1. Completely valid and permitting the activity being investigated — the paperwork is in good order so the officer can deal with the situation that generated the investigation. Most of the WHPs encountered in the field will be in this category. The example WHP shown on some of the following pages is in this category: it’s perfectly fine; or, 2. Missing from the vehicle, but valid and in-force for the activity being investigated (the hauler’s office has a valid WHP that he proposes to “hot shot” to the scene of the investigation); or, 3. Not valid for any number or reasons, including: A. No WHP is currently in force for the individual/company being investigated (perhaps the hauler has no WHP at all or there once was a valid WHP that has expired); B. The vehicle being used to transport the waste off-site for disposal simply is not listed on the Permit Attachment A; C. The driver is headed to some disposal location that is not listed on the Permit Attachment B (i.e., North Texas sites listed for a truck operating in the Eagle Ford Shale area or the destination site is local, but just not listed). The RRC districts in which the hauler is authorized to work are shown on the face of the WHP; D. The WHP is not “intact” (i.e., one or both attachments missing; one or both attachments are for some other WHP permit number than the approved application WH-1 page — this may be an office error by the person who was responsible for duplicating the WHPs for placement in each vehicle; or, something else may be going on); E. The WHP is valid and intact, but is for some other vehicle entirely (i.e., the WHP number on the vehicle back and sides differs from the WHP number on the permit carried by the hauler); and/or, 4. Physically altered without RRC authorization. In this case the WHP is not valid because it has been physically altered without RCC authorization (i.e., expiration date changed; vehicle added to Permit Attachment A; waste disposal site added to Permit Attachment B, etc.). In this case the officer and prosecutor may want to deal with the probable document crimes [NRC Sec. 91.143 and/or PC Sec. 37.10] as well as the waste hauling violations themselves. Vehicle stops that begin with (1) a missing WHP number and/or permit holder name from the sides and back of a vehicle or (2) abandoned-spilling and dumping of the waste in unauthorized places may progress into other violations when the WHP is itself investigated.

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If the WHP is simply missing from the vehicle, but exists back at the permit holder’s office and can be immediately made available by “hot-shot,” perhaps the city or county may want to dismiss the charges at the court appearance or even authorize the officer to issue a warning. At the other extreme is the situation where the WHP on-board the vehicle is an actual forgery (i.e., the WHP number on the vehicle and WHP document does not actually exist, or the expiration date of the WHP has been altered without the approval of the RRC, or a vehicle or disposal site has been added to the permit without state approval, etc.). For these forgeries, the prosecutor should consider enforcing the provisions of Penal Code Sec. 37.10 (Tampering with a Government Record) or the provisions of NRC Sec. 91.143 (False Applications, Reports, and Documents and Tampering with Gauges). In both cases, the violations are felonies, and the offender is virtually always the permit holder himself rather than the driver caught using the altered permit. Between these two extremes falls most of the situations that local officers will encounter, and most of the WHP document-related violations will probably reflect hauling under an expired permit, using a vehicle not listed, or hauling to an unauthorized location — in addition to the TWC Chapter 29 violation that generated the investigation in the first place (i.e., leaking vehicle, abandoned spills, and unmarked or partially-marked vehicle being the most common). A list (in RRC district order) of the companies, associations, and individuals holding valid WHPs is maintained on the RRC website at http://www.rrc.state.tx.us/environmental/ environsupport/wastfac/index.php. These sites provide immediate access to the RRC data base for each RRC District, where you can verify that a particular WHP being worked with is valid. Checking this list online will quickly verify if the WHP is in force or not and verify the name and address of the holder. The expiration date for the WHP (back of the WH-1 page in the section called “Permit Conditions”) should be the same as the date in the RRC online file. If these don’t match, the officer should call the RRC office listed on the face of the WHP to determine if (1) the WHP is valid, but the online system is in error for some reason (and small errors creep into all information systems); or, (2) the WHP the officer is considering is invalid. If the WHP carried on the vehicle is invalid, then the driver is possibly hauling oil and gas waste without a permit, a violation of TWC Sec. 29.041. At the bottom of the RRC WHP district listing on their web site, there is a link to all Commercial Surface Disposal Facilities currently authorized by the RRC to operate in the state. For most of these surface disposal facilities, there is a more detailed link to the actual permit issued by the RRC.

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Certifications Made in WH-1 Application Process The WHP application process involves making three certifications to the RRC: two from the applicant for the WHP, and one from each disposal system to be included in the permit. Should, upon investigation, any of these prove to be false, there may have been a violation of Penal Code Sec. 37.10 (Tampering with a Government Record) or the provisions of NRC Sec. 91.143 (False Applications, Reports, and Documents and Tampering with Gauges). 1. Certification by the applicant on the WH-1 APPLICATION FOR OIL AND GAS WASTE HAULER’S PERMIT: “I certify that I am authorized to make this application, that this application was prepared by me or under my supervision and direction, and that the data and facts stated herein are true, correct, and complete to the best of my knowledge. If the abovenamed hauler is a corporation, I further certify that it is either subject to and not delinquent on the State of Texas Franchise Tax or exempt from or not subject to the tax.” 2. Certification by the applicant on the WH-2 OIL AND GAS WASTE HAULER’S LIST OF VEHICLES “I certify that the vehicles listed on this form are designed so that they will not leak during transportation.” 3. Certification from each disposal system planned for use by the permit holder on individual WH-3 OIL AND GAS WASTE HAULER’S AUTHORITY TO USE APPROVED DISPOSAL/ INJECTION SYSTEM: “I certify that the waste hauler named above is authorized to dispose of oil and gas waste at the systems identified on this form; that I am authorized to make this report; that the report was prepared by me or under my supervision and direction; and that the data and facts contained herein are true, correct and complete to the best of my knowledge.”

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WHP Face of WH-1: Copy On-Board Vehicle

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Back of WH-1: Conditions and Expiration Date PERMIT CONDITIONS A.

This permit authority is limited to the hauling, handling and disposal of oil and gas waste off a lease, unit, or other oil and gas property.

B.

This permit authorizes the permitted hauler to dispose of oil and gas waste only at the following disposal/ injection systems: •

Commission-permitted disposal/injection systems for which a Form WH-3 has been submitted and which are listed on Permit Attachment B (Approved Disposal/Injection Systems).

disposal systems operated under authority of a minor permit issued by the Commission; and

disposal systems permitted by another state agency or another state provided the Commission has granted separate authorization for the disposal.

C. Each vehicle must be marked on both sides and in the rear with the permitted hauler’s name (exactly as shown on the P-5 Organization Report) and permit number in characters not less than three inches high. D. This permit authorizes the permitted hauler to use only those vehicles shown on the Commission-issued listing of approved vehicles, Permit Attachment A (Waste Hauler Vehicle Identification). E.

Each vehicle must carry a copy of this permit along with a copy of those parts of Permit Attachment A (Waste Hauler Vehicle Identification) and Permit Attachment B (Approved Disposal/Injection Systems) that are relevant to that vehicle’s activities.

F.

Each vehicle must be operated and maintained in such a manner as to prevent spillage, leakage, or other escape of oil and gas waste during transportation.

G. The permitted hauler must make each vehicle available for inspection upon request by Commission personnel. H. The permitted hauler must compile and keep current a list of all persons by whom the permitted hauler is hired to haul and dispose of oil and gas waste and furnish such list to the Commission upon request. I.

The permitted hauler must adequately train all drivers to ensure compliance with Commission rules, including record keeping requirements, and adherence to proper emergency response and notification procedures.

J.

The permitted hauler must keep a DAILY record of the oil and gas waste hauling operations of each approved vehicle. The daily record, signed and dated by the vehicle driver, must be kept open for Commission inspection and must contain the following information: 1. Identity of the property from which the oil and gas waste is hauled (operator name, lease name and number or other facility name or number, and county; and 2. Type and volume of oil and gas waste received by the hauler at the property where it was generated; 3. Identity of the disposal system to which the oil and gas waste is delivered (operator name, lease name and number or system name, well number or system permit number, and county); and 4. Type and volume of oil and gas waste transported and delivered to the disposal system.

K.

This permit is not transferable without the consent of the Commission.

L.

This permit expires on ____EXPIRATION DATE___________. This permit, unless suspended or revoked for cause shown, will remain valid until the expiration date.

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WHP Attachment A: Permitted Vehicles

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WHP Attachment B: Permitted Disposal Facilities

Be sure that these districts shown as the location of these facilities are among those shown on the face of the WH-1 in block 4: RRC Districts Where Activity Authorized and that the permit number on this attachment, the vehicle attachment, and the WH-1 all match.

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4.

Common Enforcement Policy Sequence

Cities and counties in different areas of the state seem to follow approximately the same development in adopting illegal dumping criminal enforcement, regardless of what type of waste is involved. Each of these steps has its own unique policy challenges. 1. Inside cities, make sure local municipal code enforcement is working correctly. Good municipal code enforcement is the beginning point in effective local illegal dumping enforcement; 2. In smaller cities where code enforcement cannot happen — often because there is no municipal court — have police, deputies, or constables use THSC Sec. 341.013(c) to deal with health nuisances. Where codes and code officers are available (but no judge) consider hiring a local JP to occasionally sit as the municipal judge; 3. Bring the local health authority — even where there is no health department — into the process of abating health nuisances under THSC Sec. 341.012. Fully developing this power will mean including the county attorney. Where there is no local health department, take advantage of the powers granted counties in THSC Sec. 121.003(c) to designate and train a county employee to order the abatement of nuisances under the direction of the local health authority; 4. Bring local police and deputies into the process by having the city or county adopt a policy of enforcing health nuisance (THSC Sec. 341.013(c)), felony and misdemeanor water pollution (TWC Secs. 7.145 and 7.147), and felony and misdemeanor illegal outdoor burning (TWC Secs. 7.177, 7.182, and 7.183); 5. File good criminal cases with local prosecutors. Where reluctance to prosecute is encountered, treat that as a major local policy problem. Include the mayor, city council members, sheriff and commissioners in policy meetings with the district and county attorneys to resolve the political problem the prosecutors are creating (i.e., “Mr prosecutor, we’re trying to clean-up our city/county, and we understand it’s the policy of your office not to help us”); 6. Involve the news media as good partners in stopping illegal oil and gas waste dumping. Take time to educate local reporters in these laws; and, 7. Form multi-city and multi-county informal illegal dumping task forces with officers from adjoining jurisdictions.

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