Part 1.
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
Chapter 331.
UNDERGROUND INJECTION CONTROL
The Texas Natural Resource Conservation Commission (TNRCC or commission)
adopts amendments to §331.14, Prohibition of Class I Salt Cavern Solid
Waste Disposal Wells and Associated Caverns in Geologic Structures or Formations
Other Than Salt Stocks of Salt Domes and Prohibition of Disposal of Hazardous
Waste into Certain Geological Formations; §331.121, Class I Wells; §331.161,
Applicability; and §331.163, Well Construction Standards. Sections 331.14,
331.121, 331.161, and 331.163 are adopted
without
changes
to the proposed text as published in the February 1, 2002,
issue of the
Texas Register
(27 TexReg 725)
and will not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
The purpose of this rulemaking is three-fold: 1) to implement legislation
prohibiting the storage, processing, or disposal of hazardous waste in a solution-mined
salt dome cavern or a sulphur mine; 2) to amend and clarify the information
required to establish the geologic suitability of a proposed location for
a salt cavern disposal well; and 3) to reinstate technical requirements administratively
omitted in 1992.
House Bill (HB) 2912 (an act relating to the continuation and functions
of the Texas Natural Resource Conservation Commission; providing penalties), §9.02,
77th Legislature, 2001, amended Texas Health and Safety Code (THSC), §361.114,
Prohibition of Disposal of Hazardous Waste Into Certain Geological Formations.
The legislation mandates the commission to prohibit, by rule, the storage,
processing, or disposal of hazardous waste in a solution-mined salt dome cavern
or a sulphur mine.
The adoption also amends and clarifies the information required to establish
the geologic suitability of a proposed location for a salt cavern disposal
well. On June 5, 2000, Baker Botts, L.L.P. (Baker Botts), on behalf of Secured
Environmental Management, Inc., (SEM) filed a petition for rulemaking requesting
revision of 30 TAC §331.121(d)(1) to clarify and amend the requirements
for information necessary to establish the geologic suitability of a proposed
site for a salt cavern Class I injection well. The petitioner requested that
the requirement to submit three-dimensional (3-D) seismic survey data sufficient
to delineate the edge of the salt stock and image underneath all suspected
overhangs be deleted from the rule and that it be replaced with a requirement
to conduct a 3-D seismic survey over the cavern location. SEM, in its petition,
interpreted the current language as requiring a 3-D seismic survey of the
salt dome in its entirety. SEM argued that such a requirement would thwart
applicants from proposing Class I salt cavern injection wells in large salt
domes, and noted the difficulty in obtaining surface access to neighboring
properties to conduct the survey.
By order dated September 11, 2000, the commission directed the executive
director to examine the issues in the petition and initiate rulemaking if
deemed necessary. As a result of the examination, the executive director determined
that the current requirements for the 3-D seismic survey are ambiguous, and
amended rules were drafted. On February 21, 2001, proposed amended rules were
approved by the commission for publication in the
Texas Register
. The proposed rules were published on March 9, 2001,
followed by a 73-day comment period (including extensions) that concluded
on May 22, 2001. During the time executive director staff was preparing the
response to comments, the Texas Legislature passed HB 2912 which, in part,
directs the commission to prohibit by rule the storage, processing, or disposal
of hazardous waste in a solution-mined salt dome cavern or a sulphur mine.
Because it would have been inconsistent for the commission to adopt amended
rules pertaining to activities prohibited by new legislation, on July 11,
2001, the commission withdrew the proposal to adopt the amended rules based
on its decision to consider reproposal at the same time rules are proposed
implementing §9.02 of HB 2912. The commission followed through with that
plan in the proposal of this rulemaking which was published February 1, 2002,
in the
Texas Register
.
The commission adopts amendments to §331.14 implementing the statutory
prohibition of the storage, processing, or disposal of hazardous waste in
a solution-mined salt dome cavern or a sulphur mine, by adding new subsection
(b) to reflect this prohibition.
The commission adopts amendments and clarifications to §331.121(d)(1)(A),
concerning establishing geologic suitability of proposed salt cavern locations.
The commission also adopts reformatting changes to §331.121(d)(1)(A)
to improve readability. Adopted §331.121(d)(1)(B) requires an applicant
to submit a thorough characterization of the salt dome to establish the geologic
suitability of the location, including a surface-recorded 3-D seismic survey,
the lateral extent of which is to be determined by the executive director,
which must provide information as part of demonstrating that the location
is geologically suitable for the purpose of meeting the performance standard
in 30 TAC §331.162, relating to Performance Standard.
This rulemaking also reinstates technical requirements administratively
omitted in 1992, when the agency submitted the rules to the Office of the
Secretary of State.
SECTION BY SECTION DISCUSSION
The commission adopts amended §331.14 to implement legislation prohibiting
the storage, processing, or disposal of hazardous waste in a solution-mined
salt dome cavern or a sulphur mine. The adopted amendment implements this
legislation by creating new subsection (b) to reflect the prohibition in THSC, §361.114.
The previous language in §331.14 is retained within new subsection (a).
Also, the title of the section is amended to add the phrase "and Prohibition
of Disposal of Hazardous Waste into Certain Geological Formations" at the
end of the title.
References to hazardous waste disposal in salt cavern disposal wells occur
in 30 TAC §§331.2(81)(B), 331.142(b), 331.165(a)(10)(B), 335.1(63),
335.1(64), and 335.204. These references to hazardous waste disposal in salt
cavern disposal wells are not being amended, because adopted §331.14(b),
which states, "Notwithstanding any provision to the contrary in this chapter
or Chapter 335 of this title (relating to Industrial Solid Waste and Municipal
Hazardous Waste), or any other chapter of this title, the storage, processing,
or disposal of hazardous waste in a solution-mined salt dome cavern or a sulphur
mine is prohibited" globally removes the effectiveness of these references
to hazardous waste disposal in salt caverns without deleting each individual
occurrence of the term.
The commission adopts §331.121 to clarify information which must be
submitted as part of the technical report of the application to perform a
thorough characterization of the salt dome to establish the geologic suitability
of the location. This information is required as part of the demonstration
required by §331.162. In amended §331.121(d)(1)(A), data and interpretation
from all appropriate geophysical methods (such as well logs, seismic surveys,
and gravity surveys), subject to approval by the executive director, must
be provided. The information required for a thorough geologic characterization
of a salt dome is specified in §331.121(d)(1)(A)(i) - (viii). In adopted
new §331.121(d)(1)(B), a surface-recorded 3-D seismic survey is required,
subject to the following minimum requirements: 1) the lateral extent of the
survey must be determined by the executive director; and 2) the survey must
provide information as part of demonstrating that the location is geologically
suitable for the purpose of meeting the performance standard in §331.162.
Depending on the information submitted with the application and the geology
of the location, the executive director will determine the lateral extent
of the 3-D seismic survey necessary to support the demonstration of geologic
suitability. This provision incorporates flexibility in the use of the 3-D
seismic survey to serve the most geologically-relevant purpose at a given
site. The information must be provided before completion of technical review
and before a draft permit may be issued.
The commission adopts a correction in §331.121(d)(1)(C) by adding
the words "identification of" at the beginning of the paragraph for proper
grammatical formatting of the subparagraph.
The adopted amendments to §331.161 and §331.163 are revisions
which were inadvertently omitted, through an administrative error, when the
agency originally submitted these rules to the Office of the Secretary of
State in 1992. All of these changes were adopted at that time as a result
of comments during the 1992 public comment period. The amendments under §331.161
and §331.163 are the same as those originally adopted, except: 1) the
type of vertical seismic profile (VSP) is no longer specified; and 2) the
purpose and use of the VSP is no longer stated.
The commission adopts amended §331.161 to make clear that the rules
contained in Subchapter J, Standards for Class I Salt Cavern Solid Waste Disposal
Wells, apply only to salt caverns located in the salt stocks of salt domes.
The term "horizontally bedded salt formation" was not specifically defined
previously, and the prohibition on salt cavern disposal wells and associated
caverns was not specified for "geologic structures or formations other than
salt stocks of salt domes." The commission adopts this clarification to provide
consistency with the requirements in §331.14.
The commission adopts amended §331.163(b)(1) to add the words "and
waste" to the phrase "to prevent the movement of fluids" to clarify that all
Class I salt cavern disposal wells must be cased and the casings must be constructed
to prevent all fluids and waste from moving into underground sources of drinking
water or freshwater aquifers, and to prevent potential leaks of fluid and
waste from the well. The word "period" is also added to modify the term "post-closure
care."
The adopted amendment to §331.163(c) includes clarification of the
requirement that two concentric and removable injection tubings are to be
utilized for injection activities. Subsection (c)(1) is amended to replace
the term "corrosion inhibiting" with the word "non-corrosive." Subsection
(c)(2) is amended to replace the phrase "removable injection tubing" with
the phrase "the inner tubing."
The adopted amendment to §331.163(d)(2) includes the addition of the
words "and waste" to clarify that the requirements for a tubing and packer
system must consider both the fluid and the waste in stabilized form.
The adopted amendment to §331.163(e)(1)(F) adds the requirement for
a VSP that is slightly altered from the version originally adopted by the
commission, but inadvertently omitted from the Secretary of State's published
rules. The original rule required a three-component offset VSP, which would
be required after drilling the cavern pilot hole, to depict the 3-D nature
of the salt-sediment interface. In this adoption, a VSP is required without
specifying its objective and type (field geometry). This will give the flexibility
to select the appropriate VSP survey to provide the most relevant and needed
geologic information. The VSP would supplement or confirm information submitted
to demonstrate compliance with the performance standard under §331.162,
to gain approval of the well construction stage under §331.163(i), or
to gain approval of the completion of the cavern construction stage under §331.164(f)(2).
The adopted amendment to §331.163(e)(2)(A) concerns the modification
of the pressure testing requirements for the surface casing to specify a more
commonly accepted engineering practice. Previously existing §331.163(e)(3)(D),
which allowed the executive director to waive or modify future coring projects,
is deleted.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the rulemaking in light of the regulatory analysis
requirements of Texas Government Code, §2001.0225, and determined that
the rulemaking is not subject to that section because it does not meet the
definition of a "major environmental rule" as defined in the statute. A "major
environmental rule" is a rule the specific intent of which is to protect the
environment or reduce risks to human health from environmental exposure and
that may adversely affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, or the public health and
safety of the state or a sector of the state.
The primary purpose of this rulemaking is to clarify the information to
be submitted in the technical report under §331.121(d)(1); to remove
prescriptive language that may not be applicable to all proposed sites; to
emphasize the purpose and use of the data as they relate to the performance
standard of no release of hazardous constituents from the salt cavern and
to the geologic suitability of a proposed site; and to implement the statutory
prohibition on storage, processing, or disposal of hazardous waste in a solution-mined
salt dome cavern or a sulphur mine. There is, however, a potential new technical
requirement for persons granted permits for salt dome cavern waste disposal
wells. Adopted new §331.163(e)(1)(F) requires that permittees perform
a VSP.
The commission concludes that the amendments are as protective as those
which previously existed in the agency's rules. The goal under either set
of rules is to maximize protection of human health and the environment by
establishing the geologic suitability of a proposed site for a salt cavern
Class I injection well. By clarifying what information is required in the
application, and by tying the information to current construction and performance
standards, the commission has determined that the amendments provide appropriate
flexibility while maintaining the level and degree of protectiveness of the
permitting process.
The rulemaking is not a "major environmental rule" because it is not expected
to adversely affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, or the public health and
safety of the state. The amendments should not have a materially adverse effect
on any of the listed categories. The amendments are intended primarily to
clarify requirements which already previously existed in the commission's
regulations; eliminate prescriptive language relating to the requirement for
a 3-D seismic survey, and relate the demonstrations required in a permit application
to the geologic suitability of a specific site, in order to ensure there will
be no release of hazardous constituents from the proposed salt cavern injection
zone; and to implement the statutory prohibition on storage, processing, or
disposal of hazardous waste in a solution-mined salt dome cavern or a sulphur
mine. Because the rulemaking does not constitute a "major environmental rule,"
a full regulatory impact analysis under Texas Government Code, §2001.0225
is not required.
Furthermore, the rulemaking does not meet any of the four applicability
requirements listed in Texas Government Code, §2001.0225(a). Section
2001.0225 only applies to a major environmental rule, the result of which
is to: 1) exceed a standard set by federal law, unless the rule is specifically
required by state law; 2) exceed an express requirement of state law, unless
the rule is specifically required by federal law; 3) exceed a requirement
of a delegation agreement or contract between the state and an agency or representative
of the federal government to implement a state and federal program; or 4)
adopt a rule solely under the general powers of the agency instead of under
a specific state law. This rulemaking does not meet any of these four applicability
requirements.
TAKINGS IMPACT ASSESSMENT
The commission evaluated these adopted rules and performed an assessment
of whether these rules constitute a takings under Texas Government Code, Chapter
2007. The purposes of the rules are to remove prescriptive language relating
to which methodologies must be employed to make specific demonstrations of
geologic suitability; clarify the information to be submitted in the technical
report to support an application for a Class I salt cavern injection well;
add requirements inadvertently left out of the agency's transmission to the
Secretary of State in 1992; and implement the statutory prohibition on storage,
processing, or disposal of hazardous waste in a solution-mined salt dome cavern
or a sulphur mine. The commission has determined that the adopted amendments
will substantially advance these purposes by more specifically describing
which geologic features of a salt dome are to be analyzed, and authorizing
the executive director to specify the lateral extent of the 3-D seismic survey
as needed to ensure that a proposed cavern location and any subsequently constructed
caverns meet the performance standard "of no escape of hazardous constituents
from the salt cavern injection zone" in §331.162. The adopted rule prohibiting
the storage, processing, or disposal of hazardous waste in a solution-mined
salt dome cavern or a sulphur mine implements the statutory mandate to the
commission in THSC, §361.114, to prohibit this activity by rule. THSC, §361.002,
provides that it is the state's policy and purpose of the Solid Waste Disposal
Act to safeguard the health, welfare, and physical property of the people
and to protect the environment by controlling the management of solid waste.
Promulgation and enforcement of these adopted rules will be neither a statutory
nor a constitutional taking of private real property. Specifically, the subject
rules do not burden real property, nor restrict or limit the owner's right
to property and reduce its value by 25% or more beyond that which would otherwise
exist in the absence of the regulations. These rules mainly clarify the technical
requirements and submissions for applications for authorization of waste disposal
in a salt dome and implement the statutory prohibition of storage, processing,
or disposal of hazardous waste in a solution-mined salt dome or sulphur mine.
Although the rules affect the ability to use real property for hazardous waste
treatment, storage, and disposal in a solution-mined salt dome cavern or sulphur
mine, the commission has determined that there are off-setting benefits to
the value of real property because the possibility of property damage from
this type of waste management technique is reduced. The benefits to society
from the rulemaking are the protection of health, welfare, and the environment.
Because this rulemaking implements a statutory mandate to prohibit the storage,
processing, or disposal of hazardous waste in solution-mined salt dome caverns
or sulphur mines, there is no alternative action that could accomplish this
specific purpose.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed this rulemaking and found that the rule amendments
are neither identified in Coastal Coordination Act Implementation Rules, 31
TAC §505.11, Actions and Rules Subject to the Texas Coastal Management
Program (CMP), nor will they affect any action or authorization identified
in Coastal Coordination Act Implementation Rules, 31 TAC §505.11. Therefore,
the rules are not subject to the CMP.
HEARINGS AND COMMENTERS
Public hearings on the proposed rules were held in Wharton on February
19, 2002, and Mont Belvieu on February 26, 2002; and scheduled to be held
in Austin on February 28, 2002. Public comments were received at the Wharton
and Mont Belvieu hearings. No public comment was offered at the scheduled
Austin hearing, so the hearing was not held. Chambers County Judge Jimmy Sylvia
(Judge Sylvia); City of Mont Belvieu Mayor Lonnie Follis (Mayor Follis);
Wharton County Judge Lawrence Naiser (Judge Naiser); Wharton County Commissioner
Mickey Reynolds, speaking as the commissioner for Precinct 1 and as pastor
of Iago Federated Church, and speaking for the Wharton County Commissioners
in Precincts 1, 3, and 4 (Commissioner Reynolds); Bobby Burns, Boling Independent
School District Board President, representing the Board of Trustees (Bobby
Burns); Ronald Gertson, Coastal Bend Groundwater Conservation District; Harold
McVey, President, Concerned Citizens Against Pollution (CCAP); Dr. Frank Mann,
Wharton County Citizens for a Clean Environment; Merrell Barfield, Wharton
Chamber of Commerce; and 29 individuals presented oral comments. Sixteen commenters
submitted written comments during the comment period which closed at 5:00
p.m., March 4, 2002. Written comments were submitted by Judge Sylvia; Bobby
Burns; the Boling Independent School District (Boling ISD); Harold McVey,
President, CCAP; the Office of Public Interest Counsel of the TNRCC (OPIC);
Blackburn Carter, P.C. on behalf of CCAP (Blackburn Carter); the El Campo
Chamber of Commerce and Agriculture; the Wharton Chamber of Commerce and Agriculture;
and eight individuals.
RESPONSE TO COMMENTS
General--Support for Protective Standards
Judge Sylvia endorsed the requirement that an applicant conduct a thorough
characterization of a salt dome to establish geologic suitability of the location.
Judge Sylvia endorsed the most protective standards for salt dome disposal,
and commented that disposal of any type of waste in salt domes should be very
closely scrutinized, if not prohibited. An individual encouraged the commission
to develop the rules so that they will be as stringent as necessary for no
contamination to occur.
The commission agrees with these commenters. The commission has developed
rules for salt dome disposal of nonhazardous waste to require that an applicant
must demonstrate that the site is geologically suitable, that any proposed
salt cavern disposal well must meet stringent construction standards, and
that the design and operation of any project permitted by the commission must
preclude the escape of hazardous constituents from the salt cavern injection
zone. The commission has made no change to the proposed text in response to
these comments.
General--Opposition to Salt Dome Disposal
Bobby Burns commented that the Board of Trustees of the Boling ISD expresses
its strong and unanimous opposition to any waste disposal facility in the
Boling area, and that the use of the salt dome formation in the area of Boling
for a waste disposal well would be detrimental to the citizens of the Boling
ISD. Among other concerns, the commenter stated that there would be substantial
risk of fresh water pollution from seepage into groundwater, runoff, and spills;
and that the people of the Boling ISD would be subjected to significant personal
health risks from environmental pollution. This commenter opposed any facility
that would propose to dispose of waste in a salt dome formation, and stated
that the Wharton County Commissioners Court is adamantly opposed to a waste
disposal site in Wharton County. Many other commenters expressed opposition
to a particular facility that would propose to dispose of waste in a salt
dome formation. Judge Sylvia commented that, from a policy standpoint, Chambers
County is opposed to any disposal of waste in salt dome caverns or sulphur
mines. Mayor Follis and nine individuals commented that there should be no
disposal of any type of waste in salt domes. Still other commenters, including
the Boling ISD, provided comments concerning issues beyond the scope of this
rulemaking, such as the effects that increased traffic resulting from a permitted
facility may have on roads and surrounding communities.
The commission has made no changes to the proposed text in response to
these comments. The commission has developed rules for salt dome disposal
of nonhazardous waste to require that an applicant must demonstrate that the
site is geologically suitable, that any proposed salt cavern disposal well
must meet stringent construction standards, and that the design and operation
of any project permitted by the commission must preclude the escape of hazardous
constituents from the salt cavern injection zone. The commission notes that
it is responding to public comments relating to the proposed rules, and is
not responding to comments regarding whether or not a particular facility
should be permitted or allowed, nor is it responding to comments which go
beyond the scope of this rulemaking.
General--Opposition to Rule Amendments
An individual commented that no rule changes should be recommended or adopted.
The commission does not agree with this comment. First, the commission
is required by HB 2912, §9.02, 77th Legislature, 2001, to prohibit, by
rule, the storage, processing, or disposal of hazardous waste in a solution-mined
salt dome cavern or a sulphur mine. The adopted amendment to §331.14
implements this legislation by creating new §331.14(b) to reflect the
prohibition in THSC, §361.114. Other technical amendments to the rules
are needed, as discussed earlier in this preamble.
General--Opposition to Executive Director Decision-Making
Powers
Mayor Follis, Commissioner Reynolds, Dr. Frank Mann, Blackburn Carter,
and 17 individuals commented that the executive director should not be given
discretion under the rules to determine the adequacy of information which
must be submitted in the technical report of the application, including information
which must be submitted as part of demonstrating that the facility will meet
the performance standard in §331.162 and the well construction standards
under §331.163. These commenters objected to proposed provisions that
give the executive director authorization to make decisions at his sole discretion,
including the proposed provision which would allow the executive director
to determine the lateral extent of the required surface-recorded 3-D seismic
survey. Blackburn Carter commented that this judgment process involving the
discretion of the executive director removes the basic characterization of
the dome from the public eye, especially since the executive director has
been removed as a required party to the public hearing process. Blackburn
Carter also stated that demotion of the question of a 3-D seismic survey to
the discretion of the executive director is a fundamental error, eliminates
the degree of safety required, and thus will not be protective of public health,
welfare, physical property, and the environment. An individual commented that
the proposed rules essentially give the executive director full discretion
in determining permitting requirements of Class I injection wells, and objected
to several provisions in the proposal which give the executive director discretionary
or approval powers.
The commission does not agree with these comments and has made no changes
to the proposed text in response to these comments. Review of a permit application
by the executive director's staff is a crucial part of the permitting process.
Texas Water Code (TWC), §27.013 already requires an underground injection
control permit applicant to furnish "any information" the executive director
considers necessary to discharge his duties under TWC, Chapter 27 and rules
of the commission. Further, the authority to issue underground injection control
(UIC) permits is vested with the
commission
under TWC, §27.011 and §27.051. In non-contested matters, the commission
may delegate authority to the executive director to act on an application
under TWC, §5.122. In contested matters, the commission may act on a
permit application after consideration of information from the applicant,
protestants, OPIC, and the executive director, and in cases referred to the
State Office of Administrative Hearings, an administrative law judge. In a
permit application contested hearing, the permit applicant has the burden
of proof whether or not the executive director participates as a party in
the hearing, and information relating to characterization of the dome can
be explored in the hearing process.
General--Location Standard for Waste Injection
Wells
Eight individuals commented that the rules should prohibit any waste injection
well within five miles of a residential or commercial drinking water well.
One of these commenters stated that the Chapter 331 Underground Injection
Control rules provide no protection for the public in the event of an accidental
contamination of an underground source of drinking water by an injection well
permitted for the purpose of disposing of solidified commercial industrial
waste. CCAP commented that the rules should prohibit any injection well, permitted
for the purpose of disposing of solidified commercial industrial waste, within
a minimum three-mile lateral surface radius of a residential or commercial
drinking water well, and that a five-mile buffer zone is more appropriate.
CCAP also commented that, without an adequate buffer zone, lethal contaminants
could be accidentally introduced into the underground source of drinking water
and kill thousands before most citizens can be notified not to use water from
their water wells.
The commission has made no change to the proposed text in response to these
comments. The commission adopts these rules for salt dome disposal of nonhazardous
waste to require that an applicant must demonstrate that the site is geologically
suitable, that any proposed salt cavern disposal well must meet stringent
construction standards, and that the design and operation of any project permitted
by the commission must preclude the escape of hazardous constituents from
the salt cavern injection zone. Therefore, a three- or five-mile buffer zone
is not necessary to protect public health, safety, and the environment, nor
is it specifically required by statute.
General--Preamble
An individual commented that Wharton County will see a drastic reduction
of property value greater than 25%, and stated that if a waste injection site
is permitted in the Boling area, residents will not be able to give their
property away.
The commission does not agree with this comment. The commission has no
evidence that the adoption of the proposed rules will result in a reduction
of property value. These rules mainly clarify the technical requirements and
submissions for applications for authorization of waste disposal in a salt
dome and implement the statutory prohibition of storage, processing, or disposal
of hazardous waste in a solution-mined salt dome cavern or sulphur mine. Although
the proposed rules affect the ability of an applicant to use real property
for hazardous waste treatment, storage, and disposal in a solution-mined salt
dome cavern or sulphur mine, the commission asserts that there are offsetting
benefits to the value of real property because the possibility of property
damage from this type of waste management technique is reduced. The commission
has made no change to the proposed text in response to these comments.
Section 331.14--Prohibition of Class I Cavern
Solid Waste Disposal Wells and Associated Caverns in Geologic Structures or
Formations Other Than Salt Stocks of Salt Domes and Prohibition of Disposal
of Hazardous Waste into Certain Geological Formations
Judge Sylvia commented that Chambers County is very supportive of the proposed
amendment to §331.14(b), which implements the statutory prohibition on
the storage, processing, or disposal of hazardous waste in a solution-mined
salt dome cavern or sulphur mine. Mayor Follis expressed full support for
the rule prohibiting hazardous waste in salt domes. The Wharton Chamber of
Commerce and Agriculture strongly opposed changes to the rule, but commented
that it understood that HB 2912 prohibited hazardous waste in salt domes,
including the Boling salt dome. The El Campo Chamber of Commerce and Agriculture
stated that the Chamber Board of Directors and the county commissioners oppose
the changes to the rule, and commented that the commission should enforce
the code in accordance with the intent of the law passed by the Texas Legislature.
Six individuals also expressed support for the hazardous waste prohibition,
but opposed the other technical amendments to the rule as proposed.
The commission agrees with the comments supporting the rule implementing
the statutory prohibition under HB 2912. The commission does not agree that
other changes to the rule should not be made. The other rule amendments are
needed to clarify the information required to establish the geologic suitability
of a proposed location for a salt cavern disposal well. By order dated September
11, 2000, the commission directed the executive director to examine the issues
in a petition for rulemaking which had been filed requesting revision of §331.121(d)(1)
to clarify and amend the requirements for information necessary to establish
the geologic suitability of a proposed site for a salt cavern Class I injection
well, and to initiate rulemaking if deemed necessary. As a result of the examination,
the executive director determined that the current requirements for the 3-D
seismic survey were ambiguous, and amended rules were drafted.
The commission now adopts amendments and clarifications to §331.121(d)(1)(A),
concerning establishing geologic suitability of proposed salt cavern locations.
The commission also adopts reformatting changes to §331.121(d)(1)(A)
to improve readability. Adopted §331.121(d)(1)(B) requires an applicant
to submit a thorough characterization of the salt dome to establish the geologic
suitability of the location, including a surface-recorded 3-D seismic survey,
the lateral extent of which is to be determined by the executive director,
which must provide information as part of demonstrating that the location
is geologically suitable for the purpose of meeting the performance standard
in §331.162. Other rule amendments are also needed to reinstate technical
requirements administratively omitted in 1992, when the agency submitted the
adopted rules to the Office of the Secretary of State. The commission has
made no change to the proposed text in response to these comments.
Blackburn Carter commented that modifying and retaining hazardous waste
rules for salt dome caverns is an effort to prepare the way for a repeal of
the prohibition.
The commission has made no change to the proposed text in response to this
comment. The standards for establishing the geologic suitability of a proposed
location for salt cavern waste disposal were the same for both hazardous and
nonhazardous waste. The rules referencing hazardous waste disposal in salt
cavern disposal wells are primarily definitions of terminology or requirements
that apply to hazardous constituents, which could be contained within nonhazardous
waste, as well as hazardous waste. Deletion of these references to hazardous
waste disposal in salt cavern disposal wells is not necessary to implement
the intent of the legislation.
Blackburn Carter expressed support of the legislature's decision to prohibit
the disposal of hazardous waste in salt dome caverns and would end the rulemaking
with that prohibition language. This commenter also questioned that, if hazardous
waste disposal is now to be prohibited, why have any rules at all, other than
the prohibition? Blackburn Carter stated that it is clear that disposal of
nonhazardous waste in caverns is a separate issue requiring careful consideration,
not as an afterthought in a prohibition.
The commission has made no change to the proposed text in response to these
comments. Along with implementing the legislation, the commission is using
this rulemaking as an opportunity to reinstate technical requirements administratively
omitted in 1992, and was doing so prior to the prohibition. Other amendments
and clarifications are also needed as discussed previously in the preamble.
Regarding rules for disposal of nonhazardous waste, Chapter 331, Subchapter
J is titled "Standards for Class I Salt Cavern Solid Waste Disposal Wells,"
and these standards applied to both hazardous and nonhazardous waste disposal
prior to the legislative prohibition of storage, processing, or disposal of
hazardous waste in a solution-mined salt dome cavern or a sulphur mine. Because
storage, processing, or disposal of nonhazardous waste in solution-mined salt
dome caverns has not been prohibited, Subchapter J and other rules pertaining
to waste disposal in salt cavern disposal wells must be retained.
An individual commented that the United States Environmental Protection
Agency (EPA) adds new materials to its hazardous waste list, and noted that
nonhazardous wastes injected into a salt cavern injection well today, could
be on the EPA list of hazardous wastes next year.
The commission notes that this adoption implements the aforementioned statutory
requirement, prohibiting the activities of storage, processing, or disposal
of hazardous waste in a solution-mined salt dome cavern or a sulphur mine.
If a waste material is listed by EPA as a hazardous waste, then storage, processing,
or disposal of the hazardous waste in a solution-mined salt dome cavern or
a sulphur mine is not authorized. It is not possible to know which nonhazardous
wastes may be defined as hazardous wastes in the future. The commission does
not interpret the statutory prohibition to apply retroactively to nonhazardous
wastes that have already been disposed and subsequently listed as hazardous
wastes. Therefore, the commission has made no changes to the proposed text
in response to this comment.
Section 331.121--Class I Wells
OPIC commented that the proposed rule change to §331.121 is not protective
of human health and the environment, and recommended that the proposed rule
change be withdrawn. OPIC further commented in the alternative, that if the
proposed rule is adopted, certain changes to the language in §331.121(d)(1)(B)
be made to more specifically describe the type of 3-D seismic survey to be
required, and to remove the discretionary authority of the executive director
to determine the lateral extent of the survey. OPIC also expressed the belief
that a surface-recorded 3-D seismic grid survey sufficient to image underneath
all suspected overhangs and delineate the edge of the salt stock is necessary
in order to ensure compliance with the performance standard set forth in §331.162.
Blackburn Carter also commented that the 3-D seismic requirement covering
the cavern and the technically relevant edge should remain a part of the amended
rules. This commenter maintained that salt domes are complex 3-D geologic
structures that require a thorough 3-D characterization using state-of-the-art
seismic technology as a basic framework, before consideration of the ultimate
performance standard of no escape. Blackburn Carter noted that the realistic
underlying concern and purpose for the previously existing rule is that some
anomaly about the salt dome edge near the cavern area could threaten the integrity
of the caverns, that this edge then becomes the focus of the investigation,
and that to eliminate 3-D over the edge is folly. Blackburn Carter suggested
that, at the least, the rules should require a 3-D seismic swath sufficiently
wide to image the salt dome to the extent that the problems listed in the
previously existing regulations are thoroughly investigated. Blackburn Carter
also stated that the simplistic characterization suggested by the proposed
rules is unacceptable, and that the proposed rule and discussion supporting
it does not envision any 3-D seismic survey imaging the edge of a salt dome
ever again.
The commission has made no changes to the proposed text in response to
this comment, and does not agree that a surface-recorded 3-D seismic grid
survey sufficient to image underneath all suspected overhangs and delineate
the edge of the salt stock is necessary in every case to ensure compliance
with the performance standard set forth in §331.162. The commission notes
that the adopted rule requires a surface-recorded 3-D seismic survey which
must provide information as part of demonstrating that the location is geologically
suitable for the purpose of meeting the performance standard in §331.162,
and requires that the lateral extent of the survey be determined by the executive
director. The commission has determined that requiring in every situation
a 3-D seismic grid survey sufficient to image underneath all suspected overhangs
and delineate the edge of the salt stock is unnecessarily prescriptive. Such
a requirement may be appropriate in certain cases, and in these cases, the
commission anticipates that the executive director would require the appropriate,
technically relevant, imaging to be performed.
The commission has determined that confirming the geologic suitability
of a salt dome for the construction, operation, and closure of a solution-mined
cavern to dispose of solid waste is a site-specific and ongoing process. Each
salt dome is unique and will have its own individual shape, size, depth below
ground level, movement through geologic history, exploration and development
of natural resources, and a variety of other issues and concerns. The determination
of geologic suitability is performed using a variety of geological and geophysical
surveys such as gravity surveys, 2-D seismic, 3-D seismic, well logs, cores,
and VSP to mention the most common. Each survey gives a unique piece of information
that should be used in a collective manner to answer the overall question
of geologic suitability. Furthermore, the review of geologic suitability does
not end when a permit is issued. During the drilling of the pilot well-bore
and construction of the cavern, surveys are being taken (conventional cores,
geophysical logs, sonar surveys, etc.) and evaluated, providing additional
information. As provided in §331.163(i), the permittee must submit information
collected during construction of the well to obtain the executive director's
approval after completion of the well construction stage before cavern construction
can begin. Likewise, §331.164(f) requires the permittee to obtain the
executive director's approval after completion of the cavern construction
stage prior to waste emplacement. Further, during operation of the facility,
if information submitted to the executive director indicates loss of mechanical
integrity, the executive director could require the permittee to properly
plug and abandon the pilot well-bore and cavern (refer to §331.4). Last,
the commission notes that under existing §331.121(a)(5), the commission
shall consider any additional information required by the executive director
for the evaluation of the proposed injection well before issuing a Class I
injection well permit. This allows the executive director to require submittal
of any information necessary to establish geologic suitability.
Blackburn Carter commented that, under proposed §331.121(d)(1)(A)(ii),
an applicant must use some combination of measurements to "demonstrate the
existence of 500 feet between the boundaries of the proposed salt cavern injection
zone and the boundaries of the salt stock." This commenter expressed concern
that the 500-foot requirement will become a performance standard, stated that
this setback requirement is far too close for a general preliminary characterization
of the geology, and further stated that it is an arbitrary number that fails
to recognize the uniqueness of each salt dome. An individual commented that
the proposal requires the cavern to be 500 feet from the edge of the salt
dome, and stated that this distance should be at least 3,000 feet.
The commission has made no change to the proposed text in response to these
comments. Proposed §331.121(d)(1)(A)(ii) is a restatement of §331.164(b)(1),
relating to cavern construction standards, which requires an applicant to
demonstrate that there is a minimum distance of 500 feet between the salt
cavern injection zone and the boundaries of the salt stock in all directions
(i.e., top, bottom, and sides). The commission notes that agency staff has
studied the subject of the appropriate placement of salt caverns with regard
to the edge of the salt stock, and further notes that this industry is well
established, dating back to the 1940's in this country. The United States
has over 1,000 solution-mined salt caverns, most of which are located in Texas.
Past operational history and studies in salt rock mechanics indicate that
a value of 300 feet is a typical guideline for the separation between a cavern
wall and the nearest salt edge. The commission has increased the setback to
require a minimum distance of 500 feet between the salt cavern injection zone
and the boundaries of the salt stock. The salt cavern injection zone includes
the cavern, the disturbed salt zone surrounding the cavern, and a buffer zone
of undisturbed salt. Published work on the 300-foot setback can be found in
the literature involving the design of the Strategic Petroleum Reserve (SPR)
caverns. These SPR caverns are used to store the nation's oil reserves. Also,
permitted salt dome caverns in Louisiana typically require a minimum of 300
feet into the salt with the final casing string.
Blackburn Carter and 14 individuals commented that the rule concerning
the 3-D seismic survey requirement should not be changed. Five individuals
commented that the 3-D seismic survey should be conducted over the entire
salt dome.
The commission does not agree with these comments. The commission has determined
that the previously existing 3-D seismic survey requirement is flawed and
ambiguous. One possible interpretation of the previously existing requirement
could be to require the 3-D seismic survey to only image all suspected overhangs
and the edge of the salt stock. The previously existing rule does not mention
or include the top of the salt stock, which is the site for proposed caverns.
In essence, this interpretation would result in a 3-D seismic survey shaped
like a doughnut with the hole, for which there would be no data, being the
top of the salt dome and the cake, or the seismic image, being the salt edge,
including any overhangs. The commission cannot conclude it was the intention
of the original rule writers for the 3-D seismic survey to have these limitations.
Others may interpret the previously existing rule language to mean a 3-D
seismic survey must cover the entire dome (top and sides) and nothing less.
However, the commission has determined that the need for a 3-D seismic survey
over an entire dome should be determined on a case-by-case basis. Such a case
could involve salt domes limited in areal extent or where the number and placement
of proposed caverns in relation to the salt edge would make this prudent.
The commission does not agree that full 3-D seismic coverage over all targeted
salt domes for proposed waste disposal caverns be an absolute. For example,
some salt domes are very large in areal extent, and with proposed caverns
located in the middle of such domes, excluding any other geologic concerns,
a 3-D seismic survey over the entire dome may not be warranted, especially
if there is other data (logs, core, 2-D seismic, gravity surveys, etc.) to
support this decision.
Blackburn Carter supported the language of the previously existing 3-D
seismic requirement, quoting Dr. Bob Hardage, a geophysicist of the Texas
Bureau of Economic Geology (BEG), as follows, at that time (1992), "He recommended
that the regulations specify a surface recorded three-dimensional seismic
grid survey sufficient to image underneath all suspected overhangs...." Blackburn
Carter stated that the question of the specifics of a survey was considered
then, and the wisdom of the recommendation is not questioned now; that nothing
has changed; and that Dr. Hardage still advocates 3-D seismic for imaging
underneath suspected overhangs. Blackburn Carter referred to the commission's
order denying the Hunter Industrial Facilities, Inc. (HIFI) application and
stated that mapping the salt stock edge substituting a combination of 2-D
seismic, drill logs, and gravity survey coverage has already been considered
and rejected by the commission. Blackburn Carter commented that the commissioners
found that the imprecision offered by this combination was inexcusable in
light of the protection demanded by the rules.
The commission agrees with Blackburn Carter, Dr. Hardage, and the commission
order denying the HIFI applications if the purpose or objective of a 3-D seismic
survey is needed to image the salt dome edge and overhangs. The commission
acknowledges that a 3-D seismic survey would be an excellent choice for such
an undertaking, especially when existing data is limited. However, some salt
domes may not have overhangs. Therefore, a 3-D seismic requirement restricted
only to this purpose would greatly limit the usefulness of the 3-D seismic
survey. The commission has made no change to the proposed text in response
to these comments.
Although Blackburn Carter supported the previously existing seismic rule
language, they favor the interpretation or amended rule, "The 3-D seismic
requirement covering the caverns and technically relevant edge."
The commission has determined that for all proposed waste disposal cavern
locations, the 3-D seismic survey should cover the area of the cavern locations,
and the lateral extent, or how far and in what direction the survey reaches,
will be determined by the executive director. Factors involved in determining
the lateral extent of the 3-D seismic survey may include a number of geologic
concerns such as: the proximity of the salt edge, overhangs, faults, subsidence,
or the existence of a minimum distance of 500 feet between the cavern injection
zone and the edge of the salt stock.
By incorporating by reference their comments to the previously proposed
(March 2001) salt cavern rules, Blackburn Carter commented that the commission
should not lower its standards for establishing geologic suitability for the
benefit of one applicant.
The commission disagrees that the adoption represents a lowering of standards
for establishing geologic suitability. Furthermore, the amendments are being
adopted, as explained earlier in this preamble, in response to a petition
for rulemaking and the executive director's determination that amendment of
the rule is needed. The amendments are being made primarily to clarify requirements,
eliminate unnecessarily prescriptive language relating to the requirement
for a 3-D seismic survey, and relate the demonstrations required in a permit
application to the geologic suitability of a specific site, to ensure there
will be no release of hazardous constituents from any proposed salt cavern
injection zone. The commission adopts these amendments to make the rules more
reasonable and equally protective.
Blackburn Carter commented that it is clear that the immense value of a
comprehensive 3-D seismic survey is recognized by all stakeholders. This commenter
stated that the clause "...lateral extent of which is to be determined by
the executive director" means that the executive director may reduce the survey
to the point where the information envisioned by the logic of the rule is
obviated. Along with this comment, Blackburn Carter cited the preamble to
the previously existing salt dome cavern rules which were published in the
The commission has determined that the adopted rule supports the value
of 3-D seismic survey data by making it mandatory and by requiring it as part
of demonstrating that the location is geologically suitable for the purpose
of meeting the performance standard. A minimal survey (i.e., lateral extent
of zero as mentioned in Blackburn Carter's comments) 3-D seismic survey clearly
would not meet the requirements of adopted §331.121(d)(1)(B)(ii). The
executive director has the authority to require 3-D seismic survey data, to
whatever extent is necessary, to establish the geologic suitability of a proposed
site.
With reference to §331.121(d)(1)(A)(ii) which requires the applicant
to demonstrate the existence of a minimum distance of 500 feet between the
boundaries of the proposed salt cavern injection zone and the boundaries of
the salt stock, Blackburn Carter commented that this is another plan for executive
director discretion with the goal of only assuring an arbitrary 500-foot distance
necessary to meet the requirement. Blackburn Carter stated that this is no
longer described as the performance standard, but it will serve as the de
facto limit of what is to be required of the applicant. Blackburn Carter expressed
the belief that the setback requirement is far too close for a general preliminary
characterization of the geology. Blackburn Carter proposed, in the alternative,
that the 3-D seismic survey required over the technically relevant portion
of the dome must assure a setback of a reasonable distance into realistically
pure salt as a part of the application. This commenter also asserted that
the assurance of 500 feet of salt should be new information developed from
a specific survey at a borehole at each individual salt cavern.
The commission does not agree with these comments. Adopted §331.121(d)(1)(A)(ii)
quotes the cavern construction standard stated in §331.164(b)(1) to emphasize
that the ability of the proposed site to meet that standard must be demonstrated
as a part of establishing geologic suitability prior to permitting. The commission
considers it unnecessary to prescribe a specific method to achieve this demonstration.
The importance of demonstrating that the location is geologically suitable
for the purpose of meeting the performance standard in §331.162 is not
reduced by restating the cavern construction standard as one component of
the demonstration. Regarding Blackburn Carter's alternative proposal, a setback
of a reasonable distance into realistically pure salt would be part of demonstrating
the geologic suitability of a proposed site.
Section 331.163--Well Construction Standards
Blackburn Carter commented, regarding the requirement for a VSP, that a
three-component VSP survey at each cavern location performed to image the
three-dimensional salt sediment interface at the technically relevant salt
dome edge should be a required part of the permit process. Six individuals
commented that they did not agree with the proposed rule simply stating that
a VSP is required. One of the individuals commented that the proposed rule
would allow the permitee to decide what VSP is to be used. Blackburn Carter
also commented that the new VSP rule involves neither specifications nor a
performance standard objective and, as such, it becomes another means to avoid
doing the quality work necessary to meet the requirements of an ultimate performance
standard.
The commission has made no change to the proposed text in response to these
comments. The previously existing VSP requirement (adopted by the commission
in 1992, but inadvertently omitted from the official version of the rules),
a downhole three-component offset VSP to be analyzed to depict the 3-D nature
of the salt-sediment interface, was adopted from the recommendation of Dr.
Hardage, and the commission agrees with this language when the objective or
purpose of the VSP is to image the salt-sediment interface, if this is the
technically relevant concern. However, the commission has determined that,
like the 3-D seismic survey, the objective of a required VSP can be different
at individual salt domes and different for caverns within the same salt dome.
The commission asserts that flexibility is needed to determine what geologic
concern or concerns should be the focus of a VSP and to determine the type
or field geometry (e.g., zero offset, offset, and walk-away) of the VSP.
The commission notes that VSPs are performed for different objectives.
The most popular and traditional VSP is a zero-offset VSP to "tie" or correlate
logs, recorded in depth, with surface seismic data recorded in time. More
specifically, the VSP would correlate the electric logs and core taken at
the cavern location with the 3-D seismic survey recorded over the cavern area
location. Another situation may need an offset VSP to image an overhang, a
salt-sediment interface, or confirm continuous salt between the survey points.
Lastly, an extreme case could involve an offset walk-away survey to give several
planes of image instead of one plane as provided by zero-offset and offset
VSPs. The amended VSP requirement in §331.163(e)(1)(F) provides the flexibility,
subject to the executive director's approval, to determine the objective and
type of survey needed on a case-by-case basis. If needed at a given site,
the adopted rule does not preclude the executive director requiring a downhole
three-component offset VSP to be analyzed to depict the 3-D nature of the
salt-sediment interface as stated in the originally adopted (1992) version
of the rules.
Blackburn Carter pointed out that the present VSP rule is not found at
the Secretary of State's website, and is not found in the current printed
version of the rules and that the proposed rule does not contain the parenthetic
old rule that is to be replaced. Blackburn Carter further stated that an examination
of the VSP rule was included in the Order denying the HIFI application, and
that the commission found that VSP is an independent requirement to be accomplished
before a permit is granted, and thus should be considered as part of an administrative
hearing.
The commission has made no change to the proposed text in response to these
comments. As explained in the preamble for the proposed rule, the adopted
amendments to §331.161 and §331.163 are revisions which were inadvertently
omitted, through an administrative error, when the agency originally submitted
these rules to the Office of the Secretary of State in 1992. Thus, these amendments
are not part of the official, published rules existing prior to this adoption
under Texas Government Code, §2001.037. In reviewing the text in the
commission order referenced by Blackburn Carter, the commission notes that
the adopted rule is consistent with the commission's statements in the 1993
Order that the burden of proof is on the applicant to establish a thorough
geologic characterization of the salt dome, prior to permitting, as part of
demonstrating that it can achieve the no-escape performance standard under §331.162.
An individual commented, with regard to the surface-casing requirements,
that the commission could not guarantee that any such structure is going to
contain whatever is disposed for any certain number of years or period of
time, and asked how long a period of time is the life of the well and the
post-closure care period. Another individual commented that it is unclear
how long a period of time the life expectancy of the well and the post-closure
care period is. Another individual provided anecdotal comments about a brine
solution-mining well in which the casing failed, resulting in releases of
brine, and questioned how serious this failure would have been in the case
of a Class I injection well.
For each proposed salt cavern waste disposal well, the engineering design
of the well and cavern are evaluated to establish that the design, construction,
and operation of the facility will comply with existing Class I waste disposal
well and salt cavern disposal well construction standards to preclude the
escape of waste from the salt cavern injection zone. The life expectancy of
a well and the post-closure care period are established on a case-by-case
basis for each well or site. Prior to permitting, each proposed project must
demonstrate that it will comply with the standards in the existing rules for
all stages of the project, construction, operation, maintenance, monitoring,
closure, and post-closure care. As stated in the preamble to this rulemaking,
the adopted pressure testing requirement for surface casing was amended in
response to comments made in 1992 to specify a more commonly accepted engineering
practice. The commission has made no change to the proposed text in response
to these comments.
Subchapter A. GENERAL PROVISIONS
30 TAC §331.14
STATUTORY AUTHORITY
The amendment is adopted under Texas Water Code (TWC), §5.103, which
provides the commission authority to adopt any rules necessary to carry out
its powers and duties under this code and other laws of this state and to
adopt rules when adopting, repealing, or amending any agency statement of
general applicability that interprets or prescribes law or policy, or describes
the procedure or practice requirements of an agency; §5.105, which authorizes
the commission to establish and approve all general policy of the commission
by rule; §27.019, which requires the commission to adopt rules reasonably
required for the regulation of injection wells; and THSC, §336.114, which
requires the commission to prohibit by rule the storage, processing, or disposal
of hazardous waste in a solution-mined salt dome cavern or a sulphur mine.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 10, 2002.
TRD-200202912
Stephanie Bergeron
Director, Environmental Law Division
Texas Natural Resource Conservation Commission
Effective date: May 30, 2002
Proposal publication date: February 1, 2002
For further information, please call: (512) 239-0348
Subchapter G. CONSIDERATION PRIOR TO PERMIT ISSUANCE