Part 1.
RAILROAD COMMISSION OF TEXAS
Chapter 4.
ENVIRONMENTAL PROTECTION
Subchapter B. COMMERCIAL RECYCLING
16 TAC §§4.201 - 4.226
The Railroad Commission of Texas (Commission) proposes new §§4.201
- 4.226, relating to Purpose; Applicability and Exceptions; Responsibility
for Management of Waste to be Recycled; Definitions; General Permit Application
Requirements for Commercial Recycling Facilities; Minimum Engineering and
Geologic Information; Minimum Siting Information; Minimum Real Property Information;
Minimum Design and Construction Information; Minimum Operating Information;
Minimum Monitoring Information; Minimum Closure Information; Notice; Protests
and Hearings; Administrative Decision on Permit Application; Standards for
Permit Issuance; General Permit Provisions; Minimum Permit Provisions for
Siting; Minimum Permit Provisions for Design and Construction; Minimum Permit
Provisions for Operations; Minimum Permit Provisions for Monitoring; Minimum
Permit Provisions for Closure; Permit Renewal; Exceptions; Modification, Suspension,
and Termination; and Penalties, in 16 Texas Administrative Code, Chapter 4,
new Subchapter B to be entitled "Commercial Recycling." The Commission proposes
the new rules in response to a petition for rulemaking concerning commercial
recycling facilities, and based on its experience with permitting such facilities
over the past several years.
On November 14, 2005, the Commission received a petition for rulemaking
submitted by US Liquids of La., L.P. (petitioner), pertaining to permit applications,
general siting, construction, operation, and closure requirements for commercial
oil and gas waste recycling facilities. On January 10, 2006, the Commission
directed staff to initiate a limited rulemaking proceeding pursuant to Texas
Government Code, §2001.021, and 16 Texas Administrative Code §1.21
in response to the petition.
The petitioner recommended that the new language be added to the Commission's
rules in Chapter 4, relating to Environmental Protection.
It is the policy of the Commission to encourage such use or reuse of oil
and gas wastes for beneficial purposes, but as the agency solely responsible
for the prevention and abatement of surface and subsurface water pollution
attributable to oil and gas waste or other substances and materials generated
by activities the Commission regulates, it must ensure that the storage, handling,
treatment, and recycling of oil and gas wastes and recyclable product do not
threaten or impair the environment or public health and safety.
The petitioner included fairly detailed suggestions, generally based on
the Commission's current application and permitting practices for stationary
commercial recycling facilities, at which oil and gas waste is treated or
processed to create a recyclable product, such as road base. The Commission
proposes to incorporate into the proposed new rules the Commission's current
application and permitting practices for commercial oil and gas waste recycling
facilities, including general siting, construction, operation, and closure
requirements for such facilities.
To successfully recycle waste, there must be a market for the recyclable
product. In the absence of a legitimate market for the recyclable product,
there is an increased likelihood that the recyclable product will become valueless
and will, therefore, not be used. In this case, the recyclable product then
would become a waste that must be managed. Accordingly, the proposed new rules
require permits for commercial recycling facilities to contain provisions
to ensure that the recyclable product has characteristics consistent with
legitimate commercial products or ingredients, to control how much of the
recyclable product may accumulate through the record keeping and reporting
requirements, and to limit the storage of recyclable product. These conditions
are intended to ensure that the recyclable product can be and is used and
not abandoned or disposed of, and that the feedstock oil and gas waste, the
partially treated waste, and the recyclable product do not threaten or impair
the environment or public health and safety.
Proposed new §4.201, relating to Purpose, states that the purpose
of new Subchapter B is to establish minimum requirements for the recycling
of oil and gas wastes at a commercial recycling facility for the purpose of
protecting public health and safety and the environment within the scope of
the Commission's statutory authority. The new subchapter prohibits any person
conducting activities under the subchapter from causing or allowing pollution
of surface or subsurface waters of the state.
Proposed new §4.201(c) states that the provisions of the new subchapter
do not supercede other Commission regulations relating to oilfield fluids
or oil and gas wastes.
The Commission proposes new §4.202, relating to Applicability and
Exceptions, to state that new Subchapter B applies to mobile and stationary
commercial recycling facilities, but does not apply to recycling methods authorized
for certain wastes by other Commission rules, or to recycling facilities regulated
by entities other than the Commission, such as those regulated by the Texas
Commission on Environmental Quality.
Proposed new §4.203, relating to Responsibility for Management of
Waste to be Recycled, states that a Commission permit is required to operate
a commercial recycling facility and that hauling of oil and gas waste to a
commercial recycling facility requires an oil and gas waste hauler permit
pursuant to §3.8(f) of this title, relating to Water Protection. In addition,
a person who plans to use the services of a commercial recycling facility
has a duty to determine that the commercial recycling facility has all the
necessary Commission permits.
Proposed new §4.204, relating to Definitions, defines certain terms
used in the subchapter. This section also provides that, unless a word or
term is defined differently in this section, the definitions in §3.8
of this title, relating to Water Protection, apply in Subchapter B.
The Commission proposes to define "100-year flood plain" to mean an area
that is inundated by a 100-year flood, which is a flood that has a one percent
or greater chance of occurring in any given year.
The Commission proposes to define "adjoining" to identify tracts for which
the surface owners are entitled to notice of a permit application under this
subchapter.
The Commission proposes to define "commercial recycling facility" to mean
a mobile or stationary facility whose owner or operator receives compensation
from others for the storage, handling, treatment, and recycling of oil and
gas wastes and whose primary business purpose is to provide these services
for compensation, whether from the generator of the waste, anther receiver,
or the purchaser of the recyclable product produced at the recycling facility.
The Commission proposes to define "Commission" to mean the Railroad Commission
of Texas.
The Commission proposes to define "Director" as the director of the Commission's
Oil and Gas Division or the director's delegate.
The Commission proposes to define three analytical methods proposed for
use by a commercial recycling facility. These methods are "EPA Method 1312,
Synthetic Precipitation Leaching Procedure (SPLP)" and the "Louisiana Department
of Natural Resources Leachate Test Method," which are used to evaluate leaching
of constituents to subsurface water; and "TxDOT Method Tex-126-E," which is
a method for testing and evaluating base materials to be used for road base.
The Commission proposes to define "legitimate commercial use" to mean use
or reuse of a recyclable product as defined in a permit issued pursuant to
this subchapter as an effective substitute for a commercial product or as
an ingredient to make a product; as a replacement for a product or material
that otherwise would have been purchased; and in a manner that does not constitute
disposal.
The Commission proposes to define "mobile commercial recycling" to mean
commercial recycling that is restricted in the amount of time and/or volume
of waste that may be processed at any one location and that is performed using
equipment that moves from one location.
The Commission proposes to define "oil and gas waste" consistent with the
definition of oil and gas waste in Texas Natural Resources Code, §91.1011.
The Commission proposes to define "partially treated waste" to mean oil
and gas waste that has been treated or processed, but which has not been determined
to meet the environmental and engineering standards established in the permit
for the recyclable product.
The Commission proposes to define "recyclable product" to mean a reusable
material that has been created from the treatment and/or processing of oil
and gas waste as authorized by a Commission permit and that meets the environmental
and engineering standards established by the permit for the intended use as
a legitimate commercial product. A recyclable product is not a waste, but
may become a waste if it is abandoned or disposed of rather than recycled
as authorized by the permit.
The Commission proposes to define "recycle" to mean to store, handle, and/or
treat oil and gas wastes for use or reuse as, or for processing into, a product
for which there is a legitimate commercial use.
The Commission proposes to define "stationary commercial recycling facility"
as a commercial recycling facility in an immobile, fixed location.
The Commission declines the petitioner's recommendation that the Commission
define the term "treat" in the rule in such a way as to require that organic
liquids be separated out to an undiluted maximum concentration limit of five
(5) percent total petroleum hydrocarbons (TPH) in order for oil and gas waste
to be recycled as road base. The proposed new rules do not include this recommendation
because market forces will ensure that marketable crude oil will be removed
from any waste that would be taken to a recycling facility. Furthermore, the
hydrocarbon content of the oil and gas waste to be taken to these facilities
is oftentimes the characteristic that makes the waste suitable for the intended
use, particularly for the use of the recyclable product as road base.
The petitioner further suggested that the Commission define total petroleum
hydrocarbons, or TPH, to include hydrocarbon chains up through C40. The proposed
amendments do not include such a definition because the analytical method
used to determine TPH content defines total petroleum hydrocarbons. The Commission
proposes to require that a permittee use the Louisiana Department of Natural
Resources leachate test to determine whether or not a treated and/or processed
material meets the TPH criteria as a recyclable product for uses such as road
base. This test method and TPH limit is specific to treated and/or processed
materials destined for recycling as road base.
The proposed application requirements generally parallel the Commission's
current permit application practices for commercial recycling facilities.
The Commission proposes new §4.205, relating to General Permit Application
Requirements for Commercial Recycling Facilities, which would require that
an applicant for a commercial recycling facility permit file the application
with the Commission's headquarters office in Austin and send a copy to the
Commission district office for the county in which the facility is to be located;
that the application contain the operator name organizational report number,
physical, mailing, and facility addresses, telephone and fax numbers, and
the name of a contact person; and that the application contain an original
signature in ink, the date of signing, and a certification, which is set forth
in the rule text. This proposed rule also requires that an application must
be complete before it may be administratively processed or referred for hearing.
Proposed new §4.206, relating to Minimum Engineering and Geologic
Information, incorporates the current Commission practice of requesting any
engineering, geological, or other information which the director deems necessary
to show that issuance of the permit will not result in waste of oil, gas,
or geothermal resources, the pollution of surface or subsurface water, or
a threat to the public health and safety. The new section further would require
that all engineering and geologic work prepared by the applicant be sealed
by a registered engineer or geologist, respectively, as required by the Texas
Occupations Code, Chapters 1001 and 1002.
The Commission proposes new subsection new §4.207, relating to Minimum
Siting Information, which outlines the minimum siting information required
to be submitted with an application for a stationary commercial recycling
facility permit. This information includes a description of the proposed facility
site and the surrounding area; the name and physical address, and phone and
fax numbers of the owner or owners of the tract on which the proposed facility
is to be located; the depth to the shallowest fresh water and direction of
groundwater flow; the average annual precipitation and evaporation at the
proposed site; information concerning the soil and subsoil; a copy of a county
highway map showing the proposed facility location; and a topographic may
showing the outline of the proposed facility, any pipelines that underlay
the facility, and the location of the 100-year flood plain in the area.
Proposed new §4.208, relating to Real Property Information, would
require in any permit application for a commercial recycling facility a plat
showing the section and survey name and abstract number; the site coordinates;
a clear outline of the boundaries of the proposed facility; all tracts, and
the names of the owners of those tracts, that adjoin the tract upon which
the facility is proposed to be located; and the distance from the proposed
facility's outermost perimeter boundary to any water wells, residences, schools,
churches, or hospitals within 500 feet of the proposed site.
Proposed new §4.209, relating to Minimum Design and Construction Information,
outlines the minimum construction information required to be submitted with
an application for a commercial recycling facility permit, including the location
and information on the design and size of all receiving, processing, and storage
areas and all equipment, tanks, silos, monitor wells, dikes, and access roads.
Also to be required is a description of the types and thickness of liners
for all tanks, silos, and storage areas; a map view of the storage areas,
a plan for installation of the monitor wells, and a plan to control and manage
storm water runoff and to retain incoming wastes during wet weather.
Proposed new §4.210, relating to Minimum Operating Information, outlines
the operating information required to be submitted with an application for
a commercial recycling facility permit. This information includes estimated
volume of waste, partially treated waste, and recyclable product to be stored
at the facility; a detailed waste acceptance plan, including testing of the
waste to ensure acceptance of only authorized oil and gas waste; record keeping;
a general description of the recycling process and all equipment and chemicals
to be used in the process; and an estimate of the duration of the operation
of the proposed facility.
Proposed new §4.211, relating to Minimum Monitoring Information, outlines
the minimum monitoring information the applicant is required to submit to
the Commission, including a plan for sampling the partially treated waste
to ensure compliance with permit conditions; a plan for sampling any monitoring
wells; and a plan and schedule for conducting periodic inspections of the
facility and all elements of the facility.
Proposed new §4.212, relating to Minimum Closure Information, outlines
the minimum closure information the applicant is required to submit to the
Commission, including how the applicant proposes to remove waste, partially
treated waste, and/or recyclable product; close all storage areas; remove
dikes; sample and analyze soil and groundwater; plug monitor wells; and contour
and reseed disturbed areas.
The Commission proposes new §4.213, relating to Notice, to incorporate
the Commission's current requirements for providing published and personal
notice of an application for a commercial recycling facility. An applicant
is required to provide published notice of an application for a commercial
recycling facility in a newspaper of general circulation in the county in
which the proposed facility will be located at least once a week for two consecutive
weeks. An applicant also is required to give personal notice to the surface
owner of the tract upon which the facility will be located; surface owners
of tracts within a minimum of one-half mile of the outermost boundary of the
proposed facility; the city clerk, if the tract is within the corporate limits
of an incorporated city, town, or village; and any other person or class of
persons that the director determines should receive notice of a particular
application. The proposed new section outlines the contents of the published
and personal notice; instructs the applicant on delivery of the personal notice;
and requires submission to the Commission of proof that the applicant has
given the required notice.
Proposed new §4.214, relating to Administrative Decision on Permit
application, incorporates the Commission's current practice and requirements
relating to administrative approval or denial of a permit application for
a commercial recycling facility.
Proposed new §4.215, relating to Protests and Hearings, incorporates
the Commission's current requirements concerning filing and receipt of protests,
and notice and holding of hearings on a permit application for a commercial
recycling facility.
Proposed new §4.216, relating to Standards for Permit Issuance, incorporates
the Commission's current standards for determining whether to issue a permit
for a commercial recycling facility. The Commission may issue such a permit
only if the activity will not result in waste of oil, gas, or geothermal resources,
the pollution of surface or subsurface waters, or a threat to public health
and safety, and if the recyclable product is capable of performing in its
intended use.
Proposed new §4.217, relating to General Permit Provisions, incorporates
the Commission's current practice of issuing a permit for a commercial recycling
facility for a term of no more than five years; limiting the waste to be received,
stored, handled, treated or recycled to waste that is under the jurisdiction
of the Commission, that is not a hazardous waste as defined by the Environmental
Protection Agency and that is not oil and gas naturally occurring radioactive
material (NORM) waste; and requiring that a commercial recycling facility
comply with the financial security requirements of Texas Natural Resources
Code, §91.109, relating to Financial Security for Persons Involved in
Activities Other than Operation of Wells, as implemented by §3.78 of
this title, relating to Fees and Financial Security Requirements.
Proposed new §4.218, relating to Minimum Permit Provisions for Siting,
incorporates the Commission's standards for siting of a commercial facility.
The proposed new section restricts the location of a commercial recycling
facility in any area where there is an unreasonable risk of pollution or where
there is a threat to pubic health or safety. The Commission proposes to require
that a stationary commercial recycling facility be located at least 500 feet
from a water supply or domestic or irrigation water well, a coastal natural
resource area as defined in §3.8 of this title, relating to Water Protection,
and a sensitive area, as defined by §3.91 of this title, relating to
Cleanup of Soil Contaminated by a Crude Oil Spill. As defined in §3.91,
a sensitive area is defined by "the presence of factors, whether one or more,
that make an area vulnerable to pollution from crude oil spills. Factors that
are characteristic of sensitive areas include the presence of shallow groundwater
or pathways for communication with deeper groundwater; proximity to surface
water, including lakes, rivers, streams, dry or flowing creeks, irrigation
canals, stock tanks, and wetlands; proximity to natural wildlife refuges or
parks; or proximity to commercial or residential areas." Because it is probable
that location of a commercial recycling facility in a sensitive area would
present an unreasonable risk to the environment and/or public health and safety,
the Commission is not likely to issue a permit for such a facility. The Commission
further proposes to prohibit location of a stationary commercial recycling
facility within a 100-year flood plain. For the purpose of assessing risk,
the Commission also proposes to consider other factors such as the characteristics
of the oil and gas waste and other substances and materials being stored,
handled, treated and recycled at the facility; and the distance to the nearest
property line or public road. The Commission further proposes to include language
to clarify that the siting requirements for distance offsets for a stationary
commercial facility refer to conditions at the time the facility is constructed.
The petitioner recommended that the Commission include in the rule a specific
prohibition against siting a commercial recycling facility within 500 feet
of a water supply or domestic water well or within 1,000 feet of a church,
school or hospital. With respect to the recommended restrictions on the distances
between a commercial recycling facility and a church, school, or hospital,
the Commission currently requires in any application for a commercial recycling
facility, and proposes to incorporate such requirement into new Subchapter
B, information concerning the location of churches, schools and hospitals
within 500 feet of the proposed commercial recycling facility, but does not
currently impose a specific restriction on the distance. The Commission agrees
that there is value in knowing about the distance of commercial facilities
from such structures and/or wells; however, the Commission finds that including
a specific distance restriction in this rulemaking is not necessary because
the Commission will receive enough information in each application to make
an informed determination of the potential for unreasonable risk to human
health and safety and the environment on a case-by-case basis.
The Commission proposes new §4.219, relating to Minimum Permit Provisions
for Design and Construction, to incorporate the Commission's current performance
standard for the design and construction of a commercial recycling facility.
A commercial recycling facility must be designed and constructed such that
contact of oil and gas wastes, partially treated waste, and recyclable product
with the ground surface, surface water, and subsurface water is minimized.
The Commission proposes to include in any permit for a commercial recycling
facility conditions necessary to ensure that this performance standard is
met, including installation of monitor wells, and any necessary provisions
to guard against pollution from spills, leachate, and/or discharges from the
facility. The petitioner recommended that the Commission require that incoming
waste be stored in above-ground tanks, and that other storage at such facilities
be in lined or concrete cells. The Commission declines to add such a restrictive
requirement, preferring to determine on a case-by-case basis requirements
for ensuring that the performance standard is met.
The Commission proposes new §4.220, Minimum Permit Provisions for
Operations, to incorporate the Commission's current practices relating to
the operation of commercial recycling facilities. A permit for a commercial
recycling facility will include requirements that the Commission determines
are reasonably necessary to ensure that only authorized wastes and other materials
are received at the facility and to ensure that the processing operation and
the resulting recyclable product meet the environmental and engineering standards
established in the permit. The Commission also proposes to include a provision
that the permittee may have to perform a trial run prior to full operation
of the facility to ensure that the equipment and methods used by the permittee
will result in a recyclable product that meets the engineering and environmental
standards established in the permit by the Commission, consistent with the
Commission's current practice. In addition, the Commission proposes to include
in any permit issued under this section any conditions, including volume restrictions,
it determines to be reasonably necessary to ensure that speculative accumulation
of oil and gas waste, partially treated waste, and recyclable product does
not occur.
The petitioner recommended that the Commission place specific limitations
on the volumes of oil and gas wastes based on the volume of recyclable product
actually used. The Commission declines to include in the rule a specific volume
restriction, but intends to continue its current practice of including in
the permits for commercial recycling facilities volume limits that are determined
on a case-by-case basis.
The petitioner also recommended that the Commission place limits on the
amount of recyclable product that could be used on the property of the owner
of the surface estate of the tract on which the commercial recycling facility
is located. The Commission declines to include such a restriction because
the Commission anticipates that adherence to the provisions of permits issued
pursuant to this subchapter will result in the production of recyclable products
that perform as intended and do not pose an unreasonable risk to public health,
safety or the environment. In addition, the proposed definition of recycling
would require the "legitimate commercial use" of the recyclable product. Use
of the recyclable product in a manner that is not "legitimate commercial use"
would be disposal, which is not authorized by the recycling permit. Such disposal
without a permit would subject the permittee of the recycling facility to
Commission enforcement, which could include permit revocation or suspension,
as well as penalties.
Proposed new §4.221, relating to Minimum Permit Provisions for Monitoring,
incorporate the Commission's current requirements for ensuring that the recyclable
product meets the standards established by the Commission and included in
the permit, by requiring periodic sampling and analysis of "batches" of partially
treated waste by a third party laboratory. The Commission also proposes to
incorporate into this new section a statement that the Commission will establish
standards for recyclable product based on the type of waste received at a
particular commercial recycling facility and the intended use of the recyclable
product from that facility. In addition, the Commission proposes to incorporate
into new subsection §4.221(b) its current the standards for recyclable
product intended to be used as road base, as requested by the petitioner.
The Commission proposes new §4.222, relating to Standard Permit Provisions
for Closure, to incorporate the Commission's current requirements for closure
of a commercial recycling facility.
Proposed new §4.223, relating to Permit Renewal, sets forth the Commission's
current practices relating to renewal of a commercial recycling facility permit.
All applications to renew a commercial recycling facility permit issued pursuant
to either §3.8 of this title (relating to Water Protection) or this new
proposed subchapter, must be submitted to the Commission in writing at least
60 days before the permit is scheduled to expire and the renewal application
must comply with the requirements of §4.205 of this title, relating to
General Permit Application Requirements for Commercial Recycling Facilities,
and the notice requirements in proposed new §4.213, relating to Notice.
The applicant for permit renewal may be required to comply with the other
application requirements in the subchapter, if the permittee has made, or
plans to make, any changes that would impact the information currently on
file with the Commission regarding the construction, operation, monitoring,
and/or closure of the facility. In addition, the Commission will include in
any renewal permit for a commercial recycling facility any conditions necessary
to comply with the requirements in effect at the time of renewal, consistent
with the Commission's current practice. For example, any permit issued to
renew an earlier permit that does not currently require monitor wells would
include such a requirement.
The Commission proposes new §4.224, relating to Exceptions, to allow
an applicant or permittee to request an exception to provisions of the new
subchapter. Such request must be in writing, must be submitted to the Commission,
and must demonstrate that the requested exception is at least equivalent in
the protection of public health and safety and the environment as the provisions
of this subchapter to which the applicant or permittee is seeking an exception.
The Commission will review each written request on a case-by-case basis.
The Commission proposes new §4.225, relating to Modification, Suspension,
and Termination, consistent with current practices and existing §3.8,
relating to Water Protection.
The Commission proposes new §4.226, relating to Penalties, to advise
persons that violations of this subchapter may subject the person to penalties
and remedies specified in the Texas Natural Resources Code.
The petitioner recommended that the Commission include permit revocation
procedures for chronic violators. The Commission declines to include specific
language that would apply exclusively to owners and operators of commercial
recycling facilities who are chronic violators because the Commission's current
enforcement procedures pertain to all violators, including chronic violators
and violators of all Commission regulations.
The petitioner also recommended that the Commission include in the rules
a statement that generators of oil and gas wastes that are recycled in accordance
with these rules are released from liability from prosecution by the Commission.
The Commission declines to add language specific to oil and gas waste that
is recycled at a commercial recycling facility. Other Commission rules and
permits authorize recycling. For example, §3.8 authorizes the use of
used drilling fluid from one well to "spud" another well. The Commission historically
holds liable for remediation any entity determined to be responsible for any
contamination based on evidence as a result of any type of waste management,
including improper "recycling," that results in contamination. If a generator
of an oil and gas waste takes that waste to a commercial recycling facility
and "knows or should have known" that the oil and gas waste would be improperly
treated/processed and/or disposed of, rather than recycled, then the Commission
reserves the option of enforcing against all parties if the result were pollution.
In addition, the process established by this subchapter is intended to result
in oil and gas waste becoming a legitimate commercial product. So long as
generators, haulers, and recyclers adhere to the provisions of this subchapter,
generators should be confident that potential liability for waste taken to
a Commission recycling facility is, in fact, significantly minimized. Furthermore,
assuming compliance with the Commission's rules and the permit, when put to
"legitimate commercial use," the Commission considers the recyclable product
to no longer be a waste. The Commission specifically requests comment on release
of liability issues, including citation to legal authority.
Leslie Savage, Planning and Administration, Oil and Gas Division, has determined
that for each year of the first five years the proposed amendments will be
in effect, the fiscal implications as a result of enforcing or administering
new Subchapter B will be negligible because the Commission proposes to incorporate
into the rule current Commission requirements and standards.
There will be no fiscal implications for local governments.
Texas Government Code, §2006.002 requires a state agency considering
adoption of a rule that would have an adverse economic effect on small businesses
or micro-businesses to reduce the effect if doing so is legal and feasible
considering the purpose of the statutes under which the rule is to be adopted.
Before adopting a rule that would have an adverse economic effect on small
businesses, a state agency must prepare a statement of the effect of the rule
on small businesses, which must include an analysis of the cost of compliance
with the rule for small businesses and a comparison of that cost with the
cost of compliance for the largest businesses affected by the rule, using
cost for each employee, cost for each hour of labor, or cost for each $100
of sales.
Ms. Savage has determined that the proposed amendments would not affect
any small or micro-businesses so there would be no cost of compliance for
small businesses or micro-businesses. However, Commission staff has attempted
to calculate the anticipated average economic cost of upgrading facilities
to meet the proposed new Subchapter B. Currently, the Commission has issued
permits for three stationary commercial recycling facilities and one mobile
commercial recycling facility. These facilities and the permits issued for
the facilities, for the most part, already comply with the proposed amendments,
because the amendments--for the most part--reflect current Commission requirements.
Therefore, there will be no additional cost of complying with the new subchapter.
Ms. Savage has determined that for each year of the first five years that
the amendments will be in effect the primary public benefit will be an increase
in environmental protection and in the safety of persons living and working
in areas where commercial recycling facilities are located or could be located
in the future.
Texas Government Code, §2001.0225, requires a state agency to conduct
a regulatory impact analysis if is considering adoption of a "major environmental
rule" that (1) exceeds a standard set by federal law, unless the rule is specifically
required by state law; (2) exceeds an express requirement of state law, unless
the rule is specifically required by federal law; (3) exceeds 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)
adopts a rule solely under the general powers of the agency instead of under
a specific state law. Texas Government Code, §2001.0225(g)(3), defines
"major environmental rule" as 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 Commission has determined that proposed new Subchapter B does not require
a regulatory analysis of a major environmental rule because it is not a "major
environmental rule" as defined in Texas Government Code, §2001.0225(g)(3).
In particular, the Commission has determined that proposed new Subchapter
B will not 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. Further, the Commission
has determined that even if proposed new Subchapter B did qualify as a "major
environmental rule," it does not (1) exceed a standard set by federal law,
(2) exceed an express requirement of state law, or (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; and it
is not (4) adopted solely under the general powers of the agency.
Comments on the proposal may be submitted to Rules Coordinator, Office
of General Counsel, Railroad Commission of Texas, P.O. Box 12967, Austin,
Texas 78711-2967; online at www.rrc.state.tx.us/rules/commentform.html; or
by electronic mail to rulescoordinator@rrc.state.tx.us. The Commission specifically
requests comment on release of liability issues, including citation to legal
authority. The Commission will accept comments for 30 days after publication
in the
Texas Register
. Comments should refer
to Oil & Gas Docket No. O&G 20-0246942. The Commission encourages
all interested persons to submit comments no later than the deadline. The
Commission cannot guarantee that comments submitted after the deadline will
be considered. For further information, call Leslie Savage at (512) 463-7308.
The status of Commission rulemakings in progress is available at www.rrc.state.tx.us/rules/proposed.html.
The Commission proposes new Subchapter B under Texas Water Code, §26.131,
and Texas Natural Resources Code, §§91.101, 91.1011, and 91.109,
which provide that the Commission is solely responsible for the prevention
and abatement of water and subsurface water pollution attributable to activities
the Commission regulates, and that the Commission may adopt rules related
to the discharge, storage, handling, transportation, processing, or disposal
of oil and gas waste, or of any other substance or material associated with
operations or activities regulated by the Commission pursuant to Texas Natural
Resources Code, §91.101(a)(1), (2), and (3). In addition, Texas Natural
Resources Code, §91.109(a), provides that the Commission may require
a bond or other form of financial security from person applying for or acting
under a Commission permit to store, handle or treat oil and gas waste.
The partially treated waste and recyclable product resulting from processing
and/or treatment of oil and gas waste pursuant to a Commission permit constitutes
a "substance or material associated with any operation or activity regulated
by the by the Commission" under Texas Natural Resources Code, §91.101(a)(1),
(2), and (3). The recyclable product is associated with operation or activity
regulated by the Commission because it was created using oil and gas waste
over which the Commission has exclusive jurisdiction, and which the Commission
no longer considers to be an oil and gas waste if the recyclable product will
be used as intended pursuant to permit conditions.
Texas Water Code, §26.131, and Texas Natural Resources Code, §§91.101,
91.1011, and 91.109, are affected by the proposed rules.
Statutory authority: Texas Water Code, §26.131, and Texas
Natural Resources Code, §§91.101, 91.1011, and 91.109.
Cross-reference to statutes: Texas Water Code, §26.131, and Texas
Natural Resources Code, §§91.101, 91.1011, and 91.109.
Issued in Austin, Texas, on May 16, 2006.
§4.201.Purpose.
(a)
This subchapter establishes, for the purpose of protecting
public health, public safety, and the environment within the scope of the
Commission's statutory authority, the minimum permitting and operating standards
and requirements for mobile and stationary commercial facilities that recycle
oil and gas wastes under the jurisdiction of the Commission.
(b)
No person conducting activities subject to this subchapter
may cause or allow pollution of surface or subsurface water in the state.
(c)
The provisions of this subchapter do not supersede other
Commission regulations relating to oil field fluids or oil and gas waste.
§4.202.Applicability and Exceptions.
(a)
The provisions of this subchapter apply to mobile and stationary
commercial recycling facilities.
(b)
The provisions of this subchapter do not apply to recycling
methods authorized for certain wastes by §3.8 of this title, relating
to Water Protection; §3.57 of this title, relating to Reclaiming Tank
Bottoms, Other Hydrocarbon Wastes, and Other Waste Materials; or §3.98
of this title, relating to Standards for Management of Hazardous Oil and Gas
Waste.
(c)
The provisions of this subchapter do not apply to recycling
facilities regulated by the Texas Commission on Environmental Quality or its
predecessor or successor agencies, another state, or the federal government.
§4.203.Responsibility for Management of Waste to be Recycled.
(a)
Permit required. A person who operates a commercial recycling
facility shall obtain a permit from the Commission under this subchapter before
engaging in such operation.
(b)
Hauling of waste. A waste hauler transporting and delivering
oil and gas waste to a stationary commercial recycling facility permitted
pursuant to this subchapter shall be permitted by the Commission as an Oil
and Gas Waste Hauler pursuant to §3.8(f) of this title, relating to Water
Protection.
(c)
Responsibility of generator and carrier. No generator or
carrier may knowingly use the services of a commercial recycling facility
unless the facility has a permit issued under this subchapter. A person who
plans to use the services of a commercial recycling facility has a duty to
determine that the commercial recycling facility has all permits required
by statute or Commission rule.
§4.204.Definitions.
Unless a word or term is defined differently in this section, the definitions
in §3.8 of this title, relating to Water Protection, shall apply in this
subchapter. In addition, the following words and terms when used in this subchapter
shall have the following meanings, unless the context clearly indicates otherwise:
(1)
100-year flood plain--An area that is inundated by a 100-year
flood, which is a flood that has a one percent or greater chance of occurring
in any given year.
(2)
Adjoining--Every tract of property surrounding the tract
of property upon which the activity sought to be permitted will occur, including
those tracts that meet only at a corner point.
(3)
Commercial recycling facility--A mobile or stationary facility
whose owner or operator receives compensation from others for the storage,
handling, treatment, and recycling of oil and gas wastes and whose primary
business purpose is to provide these services for compensation, whether from
the generator of the waste, another receiver, or the purchaser of the recyclable
product produced at the facility.
(4)
Commission--The Railroad Commission of Texas.
(5)
Director--The director of the Commission's Oil and Gas
Division or the director's delegate.
(6)
EPA Method 1312, Synthetic Precipitation Leaching Procedure
(SPLP)--An analytical method used to evaluate the potential for leaching
of metals into surface and subsurface water.
(7)
Legitimate commercial use--Use or reuse of a recyclable
product as defined in a permit issued pursuant to this subchapter:
(A)
as effective substitute for a commercial product or as
an ingredient to make a product;
(B)
as a replacement for a product or material that otherwise
would have been purchased; and
(C)
in a manner that does not constitute disposal.
(8)
Louisiana Department of Natural Resources Leachate Test
Method--An analytical method designed to simulate water leach effects on treated
oil and gas wastes included in "Laboratory Manual for the Analysis of E&P
Waste," Louisiana Department of Natural Resources, May 2005.
(9)
Mobile commercial recycling--Commercial recycling that
is restricted in the amount of time and/or volume of waste that may be processed
at any one location and that is performed using equipment that moves from
one location to another.
(10)
Oil and gas wastes--For purposes of this subchapter, this
term means materials which have been generated in connection with activities
associated with the exploration, development, and production of oil or gas
or geothermal resources, as that term is defined in §3.8 of this title,
relating to Water Protection, and materials 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 §6901 et seq.).
(11)
Partially treated waste--Oil and gas waste that has been
treated or processed with the intent of being recycled, but which has not
been determined to meet the environmental and engineering standards established
in a permit by the Commission for a recyclable product.
(12)
Recyclable product--A reusable material that has been
created from the treatment and/or processing of oil and gas waste as authorized
by a Commission permit and that meets the environmental and engineering standards
established by the permit for the intended use, and is consistently used as
a legitimate commercial product. A recyclable product is not a waste, but
may become a waste if it is abandoned or disposed of rather than recycled
as authorized by the permit.
(13)
Recycle--To store, handle, and/or treat oil and gas wastes
for use or reuse as, or for processing into, a product for which there is
a legitimate commercial use.
(14)
Stationary commercial recycling facility--A commercial
recycling facility in an immobile, fixed location.
(15)
TxDOT Method Tex-126-E--A procedure for molding, testing,
and evaluating base materials to determine compressive strength, included
in the procedures and methods established by the Texas Department of Transportation
for testing and evaluating soils, aggregates, and flexible road base materials.
§4.205.General Permit Application Requirements for Commercial Recycling Facilities.
(a)
An application for a permit for a commercial recycling
facility shall be filed with the Commission's headquarters office in Austin.
The applicant shall mail or deliver a copy of the application to the Commission
District Office for the county in which the facility is to be located on the
same day the original application is mailed or delivered to the Commission's
headquarters office in Austin. A permit application shall be considered filed
with the Commission on the date it is received by the Commission's headquarters
office in Austin.
(b)
The permit application shall contain the applicant's name;
organizational report number; physical office and, if different, mailing address;
facility address; telephone number; and facsimile transmission (fax) number;
and the name of a contact person.
(c)
The permit application shall contain information addressing
each application requirement of this subchapter and all information necessary
to initiate the final review by the director. The director shall neither administratively
approve an application nor refer an application to hearing unless the director
has determined that the application is administratively complete. If the director
determines that an application is incomplete, the director shall notify the
applicant in writing and shall describe the specific information required
to complete the application. An applicant may make no more than two supplemental
filings to complete an application.
(d)
The permit application shall contain an original signature
in ink, the date of signing, and the following certification: "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."
§4.206.Minimum Engineering and Geologic Information.
(a)
The director may require a permit applicant to provide
the Commission with engineering, geological, or other information which the
director deems necessary to show that issuance of the permit will not result
in the waste of oil, gas, or geothermal resources, the pollution of surface
or subsurface water, or a threat to the public health or safety.
(b)
Engineering and geologic work products prepared by the
applicant shall be sealed by a registered engineer or geologist, respectively,
as required by the Texas Occupations Code, Chapters 1001 and 1002.
§4.207.Minimum Siting Information.
(a)
A permit application for a stationary commercial recycling
facility shall include:
(1)
a description of the proposed facility site and surrounding
area; and
(2)
the name, physical address and, if different, mailing address;
telephone number; and facsimile transmission (fax) number of every owner of
the tract on which the facility is to be located. If any owner is not an individual,
the applicant shall include the name of a contact person for that owner.
(b)
A permit application also shall include the following information:
(1)
the depth to the shallowest fresh water and the direction
of groundwater flow at the proposed site, and the source of this information;
(2)
the average annual precipitation and evaporation at the
proposed site and the source of this information;
(3)
the identification of the soil and subsoil by typical name
and description of the approximate proportion of grain sizes, texture, consistency,
moisture condition, and other pertinent characteristics, and the source of
this information;
(4)
a copy of a county highway map with a scale and north arrow
showing the location of the proposed facility; and
(5)
a complete, original 7 1/2 minute United States Geological
Survey topographic quadrangle map clearly indicating the outline of the proposed
facility; the location of any pipelines that underlay the facility but are
not included on the topographic map; and the location of the 100-year flood
plain and the source of the flood plain information.
§4.208.Minimum Real Property Information.
(a)
A permit application for a stationary commercial recycling
facility shall include a copy of the signed lease agreement between the applicant
and the owner of the tract upon which the facility is to be located.
(b)
A permit application for a stationary commercial recycling
facility shall identify the location of the facility by including a plat or
plats showing:
(1)
a scale and north arrow showing the tract size in square
feet or acres, the section/survey lines, and the survey name and abstract
number;
(2)
the site coordinates in degrees, minutes, and seconds of
longitude and latitude;
(3)
a clear outline of the proposed facility's boundaries;
(4)
all tracts adjoining the tract upon which the facility
is to be located;
(5)
the name of the surface owner or owners of such adjoining
tracts; and
(6)
the distance from the facility's outermost perimeter boundary
to water wells, residences, schools, churches, or hospitals that are within
500 feet of the boundary.
§4.209.Minimum Design and Construction Information.
(a)
A permit application for a commercial recycling facility
shall provide the layout and design of the facility by including a plat drawn
to scale with north arrow to top of map showing the location and information
on the design and size of all receiving, processing, and storage areas and
all equipment (e.g., pug mill), tanks, silos, monitor wells, dikes, and access
roads.
(b)
The application also shall include:
(1)
a description of the type and thickness of liners (e.g.,
fiberglass, steel concrete), if any, for all tanks, silos, and storage areas/cells;
(2)
for storage areas where tanks and/or liners are not used,
credible engineering and/or geologic information demonstrating that tanks
or liners are not necessary for the protection of surface and subsurface water;
(3)
a map view and two perpendicular cross-sectional views
of storage areas/cells to be constructed, showing the bottom, sides, and dikes,
showing the dimensions of each;
(4)
a plan for the installation of monitor wells at the facility;
and
(5)
a plan to control and manage storm water runoff and to
retain incoming wastes during wet weather, including the location and dimensions
of dikes and/or storage basins that would collect storm water from the facility
during a 25-year, 24-hour maximum rainfall event, and all calculations made
to determine the required capacity and design.
§4.210.Minimum Operating Information.
A permit application for a commercial recycling facility shall include
the following operating information:
(1)
the estimated maximum volume of untreated oil and gas waste
and partially treated oil and gas waste to be stored at the facility;
(2)
the estimated maximum volume and time that the recyclable
product will be stored at the facility;
(3)
a plan to control unauthorized access to the facility;
(4)
a detailed waste acceptance plan that:
(A)
identifies anticipated volumes and specific types of wastes
(e.g., oil-based drilling fluid and cuttings, crude oil-contaminated soils,
production tank bottoms, etc.) to be accepted at the facility for treatment
and recycling; and
(B)
provides for testing of incoming wastes to ensure that
only oil and gas waste authorized by this subchapter or the permit will be
received at the facility;
(5)
plans for keeping records of the source and volume of incoming
wastes, including maintenance of records of the source of waste received by
well number, API number, lease or facility name, lease number and/or gas identification
number, county, and Commission district;
(6)
a general description of the recycling process to be employed;
a flow diagram showing the process and identifying all equipment and chemicals
or additives (e.g., asphalt emulsion, quicklime, Portland cement, fly ash,
etc.) to be used in the process; and the Material Safety Data Sheets for any
chemical or additive;
(7)
a description of all inert material (e.g., brick, rock,
gravel, caliche) to be stored at the facility and used as aggregate in the
treatment process; and
(8)
an estimate of the duration of operation of the proposed
facility.
§4.211.Minimum Monitoring Information.
A permit application for a stationary commercial recycling facility
shall include:
(1)
a sampling plan for the partially treated waste to ensure
compliance with permit conditions;
(2)
a plan for sampling any monitoring wells required by the
permit and this subchapter; and
(3)
a plan and schedule for conducting periodic inspections
of the facility, equipment, processing, and storage areas.
§4.212.Minimum Closure Information.
A permit application for a stationary commercial recycling facility
shall include a detailed plan for closure of the facility when operations
terminate. The closure plan shall address how the applicant intends to:
(1)
remove waste, partially treated waste, and/or recyclable
product from the facility;
(2)
close all storage areas/cells;
(3)
remove dikes;
(4)
sample and analyze soil and groundwater throughout the
facility;
(5)
plug groundwater monitoring wells; and
(6)
contour and reseed disturbed areas.
§4.213.Notice.
(a)
A permit applicant for a stationary commercial recycling
facility shall publish notice and file proof of publication in accordance
with the following requirements.
(1)
A permit applicant shall publish notice of the application
in a newspaper of general circulation in the county in which the proposed
facility will be located at least once each week for two consecutive weeks
with the first publication occurring not earlier than the date the application
is filed with the Commission and not later than the 30th day after the date
on which the application is filed with the Commission.
(2)
The published notice shall:
(A)
be entitled, "Notice of Application for Commercial Oil
and Gas Waste Recycling Facility";
(B)
provide the date the applicant filed the application with
the Commission for the permit;
(C)
identify the name of the applicant;
(D)
state the physical address of the proposed facility and
its location in relation to the nearest municipality or community;
(E)
identify the owner or owners of the property upon which
the proposed facility will be located;
(F)
state that affected persons may protest the application
by filing a protest with the Railroad Commission within 15 days of the last
date of publication; and
(G)
provide the address to which protests may be mailed.
(3)
The applicant shall submit to the Commission proof that
the applicant published notice as required by this section. Proof of publication
of the notice shall consist of a sworn affidavit from the newspaper publisher
that states the dates on which the notice was published and the county or
counties in which the newspaper is of general circulation, and to which are
attached the tear sheets of the published notices.
(b)
A permit applicant for a stationary commercial recycling
facility shall give personal notice and file proof of such notice in accordance
with the following requirements.
(1)
The applicant shall mail or deliver notice to the following
persons on or after the date the application is filed with the Commission's
headquarters office in Austin:
(A)
the surface owner or owners of the tract upon which the
commercial recycling facility will be located;
(B)
the city clerk or other appropriate official, if the tract
upon which the facility will be located lies within the corporate limits of
an incorporated city, town, or village;
(C)
the surface owners of tracts with a boundary within a minimum
of one-half mile of the outermost boundary of the proposed facility; and
(D)
any affected person or class of persons that the director
determines should receive notice of a particular application.
(2)
Personal notice of the permit application shall consist
of:
(A)
a copy of the application;
(B)
a statement of the date the applicant filed the application
with the Commission;
(C)
a statement that a protest to the application should be
filed with the Commission within 15 days of the last date of published notice,
a statement identifying the publication in which published notice will appear,
and the procedure for making a protest of the application to the Commission;
(D)
a description of the location of the site for which the
application was made, including the county in which the site is to be located,
the name of the original survey and abstract number, and the direction and
distance from the nearest municipality;
(E)
the name of the owner or owners of the property on which
the facility is to be located;
(F)
the name of the applicant;
(G)
the type of fluid or waste to be handled at the facility;
and
(H)
the recycling method proposed and the proposed end-use
of the recycled material.
(3)
The applicant shall submit to the Commission proof that
personal notice has been given as required. Proof of notice shall consist
of a copy of each notification letter sent, along with a statement signed
by the applicant that includes the names and addresses of each person to whom
the notice was sent, and the date that each was notified of the application.
(c)
If the director has reason to believe that a person to
whom the applicant was required to give notice of an application has not received
such notice, then the director shall not take action on the application until
the applicant has made reasonable efforts to give such person notice of the
application and an opportunity to file a protest to the application with the
Commission.
§4.214.Administrative Decision on Permit Application.
(a)
If the Commission does not receive a protest to the application,
the director may administratively approve the application if the application
otherwise complies with the requirements of this subchapter.
(b)
The director may administratively deny the application
if does not meet the requirements of this subchapter or other laws, rules,
or orders of the Commission. The director shall provide the applicant written
notice of the basis for administrative denial.
(c)
The applicant may request a hearing upon receipt of notice
of administrative denial. A request for hearing shall be made to the director
within 30 days of the date on the notice. If the director receives a request
for a hearing, the director shall refer the matter to the Office of General
Counsel for assignment of a hearings examiner who shall conduct the hearing
in accordance with the Commission's rules of Practice and Procedure, 16 Texas
Administrative Code Chapter 1.
§4.215.Protests and Hearings.
(a)
If a person who receives notice or other affected person
files a proper protest with the Commission, the director shall give the applicant
written notice of the protest and of the applicant's right to either request
a hearing on the application or withdraw the application. The applicant shall
have 30 days from the date of the director's notice to respond, in writing,
by either requesting a hearing or withdrawing the application. In the absence
of a timely written response from the applicant, the director may consider
the application to have been withdrawn.
(b)
Even if there is no protest filed, the director may refer
an application to a hearing if the director determines that a hearing is in
the public interest. In determining whether a hearing is in the public interest,
the director will consider the characteristics and volume of oil and gas waste
to be stored, handled and treated at the facility; the potential risk posed
to surface and subsurface water; and any other factor identified in this subchapter
relating to siting, construction, and operation of the facility.
(c)
Before a hearing on a permit application for a commercial
recycling facility, the Commission shall provide notice of the hearing to
all affected persons, and other persons or governmental entities who express,
in writing, an interest in the application.
§4.216.Standards for Permit Issuance.
A permit issued pursuant to this subchapter may be issued only if the
director or the Commission determines that:
(1)
the storage, handling, treatment, and/or recycling of oil
and gas wastes and other substances and materials will not result in the waste
of oil, gas, or geothermal resources, the pollution of surface or subsurface
water, a threat to public health and safety; and
(2)
the recyclable product can meet engineering and environmental
standards the permit establishes for its intended use.
§4.217.General Permit Provisions.
(a)
A permit issued pursuant to this subchapter shall be issued
for a term of not more than five years, subject to renewal, and shall not
be transferable to another operator without the written approval of the director.
(b)
A permit issued pursuant to this subchapter shall provide
that the facility may only receive, store, handle, treat, or recycle waste:
(1)
under the jurisdiction of the Commission;
(2)
that is not a hazardous waste as defined by the administrator
of the Environmental Protection Agency pursuant to the federal Solid Waste
Disposal Act, as amended (42 United States Code, §6901, et seq.); and
(3)
that is not oil and gas naturally occurring radioactive
(NORM) waste as defined in §4.603 of this title, relating to Oil and
Gas Naturally Occurring Radioactive Waste.
(c)
A permit issued pursuant to this subchapter shall require
that, prior to operating, a stationary commercial recycling facility comply
with the financial security requirements of Texas Natural Resources Code, §91.109,
relating to Financial Security for Persons Involved in Activities Other than
Operation of Wells, as implemented by §3.78 of this title, relating to
Fees and Financial Security Requirements.
§4.218.Minimum Permit Provisions for Siting.
(a)
A permit for a commercial recycling facility may be issued
only if the director or the Commission determines that the facility is to
be located in an area where there is no unreasonable risk of pollution or
threat to public health or safety.
(b)
A stationary commercial recycling facility permitted pursuant
to this subchapter and after the effective date of this subchapter shall not
be located within 500 feet of the nearest:
(1)
water supply, or domestic or irrigation water well;
(2)
coastal natural resources area; or
(3)
a sensitive area as defined by §3.91 of this title,
relating to Cleanup of Soil Contaminated by a Crude Oil Spill.
(c)
A stationary commercial recycling facility permitted pursuant
to this subchapter and after the effective date of this subchapter shall not
be located within a 100-year flood plain.
(d)
Other factors that will be considered in assessing potential
risk include:
(1)
the volume and characteristics of the oil and gas waste,
partially treated waste and recyclable product to be stored, handled, treated
and recycled at the facility;
(2)
depth to and quality of the shallowest groundwater; and
(3)
distance to the nearest property line or public road.
(e)
All siting requirements in this section for distance offsets
for a stationary commercial recycling facility refer to conditions at the
time the facility is constructed.
§4.219.Minimum Permit Provisions for Design and Construction.
(a)
A permit issued pursuant to this subchapter for a commercial
recycling facility shall contain any requirement that the director or the
Commission determines to be reasonably necessary to ensure that:
(1)
the design and construction of storage areas, containment
dikes, and processing areas minimize contact of oil and gas waste and partially
recycled waste with the ground surface, and prevent pollution of surface and
subsurface water;
(2)
the pollution of surface and subsurface water from spills,
leachate, and/or discharges from the facility is prevented by:
(A)
prohibiting the unauthorized discharge of oil and gas waste
and other substances or materials, including contaminated storm water runoff,
from the facility to the land surface at and adjacent to the facility or to
surface and subsurface water;
(B)
requiring that the permittee control spills at the facility;
and
(C)
requiring that the permittee make regular inspections of
the facility; and
(3)
the design and construction of the facility allows for
monitoring for, and detection of, any migration of oil and gas waste or other
substance or material from the facility.
(b)
A permit issued for a stationary commercial recycling facility
pursuant to this subchapter shall require that the permittee:
(1)
install monitoring wells in accordance with 16 Texas Administrative
Code, Part 4, Chapter 76, relating to Water Well Drillers and Water Well Pump
Installers; and
(2)
submit to the Commission's office in Austin a soil boring
log and other information for each well.
(c)
The soil boring log and other information required in subsection
(b) of this section shall:
(1)
describe the soils using the Unified Soils Classification
System (equivalent to ASTM D 2487 and 2488);
(2)
identify the method of drilling, total depth, and the top
of the first encountered water or saturated soils;
(3)
include a well completion diagram for each monitoring well;
(4)
include a survey elevation for each wellhead reference
point; and
(5)
include a potentiometric map showing static water levels
and the direction of groundwater flow.
(d)
The Commission or the director may waive any or all of
the requirements in subsection (b) and (c) of this section if the permittee
demonstrates that an on-site boring to a minimum depth of 100 feet recovers
no water during a 24-hour test.
(e)
A stationary commercial recycling facility permit issued
pursuant to this subchapter shall require that the permittee notify the Commission
district office for the county in which the facility is located prior to commencement
of construction, including construction of any dikes, and again upon completion
of construction and that the permittee may commence operations under the permit
only after the facility has been inspected by the Commission to ensure that
construction of all elements of the facility is consistent with the representations
in the application and the requirements of the permit.
§4.220.Minimum Permit Provisions for Operations.
(a)
A permit issued pursuant to this subchapter shall contain
requirements the Commission determines to be reasonably necessary to ensure
that:
(1)
only wastes and other materials authorized by the permit
are received at the facility, including requirements that the permittee test
incoming oil and gas waste and keep records of amounts and sources of incoming
wastes; and
(2)
the processing operation and resulting recyclable product
meet the environmental and engineering standards established in the permit.
(b)
A permit issued under this subchapter may require the permittee
to perform a trial run in accordance with the following procedure.
(1)
The permittee shall notify the Commission district office
for the county in which the facility is located prior to commencement of the
trial run.
(2)
The permittee shall sample and analyze the partially treated
waste that results from the trial run, and submit to the director for review
a report of the results of the trial run prior to commencing operations.
(3)
The director shall approve the trial run if the report
demonstrates that the recyclable product meets or exceeds the environmental
and engineering standards established in the permit.
(4)
The permittee shall not use the recyclable product until
the director approves the trial run report.
(c)
A permit issued pursuant to this subchapter shall include
any requirements, including limits on the volumes of oil and gas waste, partially
treated waste, and recyclable product stored at the facility, that the Commission
determines to be reasonably necessary to ensure that the permittee does not
speculatively accumulate oil and gas waste, partially treated waste, and/or
recyclable material at the facility.
§4.221.Minimum Permit Provisions for Monitoring.
(a)
A permit issued pursuant to this subchapter shall include
requirements the director or Commission determines to be reasonably necessary
to ensure that the recyclable product meets the environmental and engineering
standards established by the director or the Commission and included in the
permit.
(b)
Consistent with the requirements of §4.216 of this
title, relating to Standards for Permit Issuance, the director or the Commission
shall establish and include in the permit the parameters for which the partially
treated waste is to be tested, and the limits of those parameters based on:
(1)
the type of oil and gas waste to be accepted at the commercial
recycling facility; and
(2)
the intended use for the recyclable product.
(c)
A permit may include a requirement that the permittee use
an independent third party laboratory to sample and analyze a minimum standard
volume of partially treated waste for parameters established by the director
or the Commission.
(d)
A permit issued pursuant to this subchapter from which
the recycled product will be used as road base or other similar uses shall
include a requirement that the samples of partially treated waste be analyzed
for the following minimum parameters and may not exceed the following limits:
§4.222.Standard Permit Provisions for Closure.
A permit issued pursuant to this subchapter shall include closure standards
and any requirement reasonably necessary to ensure that the permittee can
meet the standards. The Commission shall determine the closure standards for
a particular facility based on the type of materials stored, handled and treated
at the facility, and the design and construction of the facility. A permit
may include requirements for removal of all waste, partially treated waste,
and recyclable product; removal of dikes, storage, liners, and equipment;
recontouring of the land; collection and analyzing of soil and groundwater
samples from the facility property; and post-closure monitoring.
§4.223.Permit Renewal.
Before the expiration of a permit issued pursuant to this subchapter,
the permittee may submit an application to renew the permit. An application
for renewal of an existing permit issued pursuant to this subchapter or §3.8
of this title (relating to Water Protection) shall be submitted in writing
a minimum of 60 days before the expiration date of the permit and shall include
the permittee's permit number. The application shall comply with the requirements
of §4.205 of this title, relating to General Permit Application Requirements
for Commercial Recycling Facilities, and the notice requirements of §4.213
of this title, relating to Notice. The director may require the applicant
to comply with any of the requirements of §§4.206 - 4.212 of this
title, relating to Minimum Engineering and Geologic Information; Minimum Siting
Information; Minimum Real Property Information; Minimum Construction Information;
Minimum Operating Information; Minimum Monitoring Information; and Minimum
Closure Information, depending on any changes made or planned to the construction,
operation, monitoring, and/or closure of the facility.
§4.224.Exceptions.
An applicant or permittee may request an exception to the provisions
of this subchapter by submitting to the director a written request and demonstrating
that the requested alternative is at least equivalent in the protection of
public health and safety, and the environment as the provisions of this subchapter
to which the exception is requested. The director shall review each written
request on a case-by-case basis. If the director denies a request for an exception,
the applicant or permittee may request a hearing consistent with the hearing
provisions of this subchapter relating to hearings requests but may not use
the requested alternative until the Commission approves it.
§4.225.Modification, Suspension, and Termination.
A permit granted pursuant to this subchapter may be modified, suspended,
or terminated by the Commission for good cause after notice and opportunity
for hearing. A finding of any of the following facts shall constitute good
cause:
(1)
pollution of surface or subsurface water is occurring or
is likely to occur as a result of the permitted operations;
(2)
waste of oil, gas, or geothermal resources is occurring
or is likely to occur as a result of the permitted operations;
(3)
the permittee has violated the terms and conditions of
the permit or Commission rules;
(4)
the permittee misrepresented any material fact during the
permit issuance process;
(5)
a material change of conditions has occurred in the permitted
operations;
(6)
the information provided in the application has changed
materially; or
(7)
the permittee failed to give the notice required by the
Commission during the permit issuance or renewal process.
§4.226.Penalties.
Violations of this subchapter or a permit issued pursuant to this subchapter
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.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on May 16, 2006.
TRD-200602759
Mary Ross McDonald
Managing Director
Railroad Commission of Texas
Earliest possible date of adoption: July 2, 2006
For further information, please call: (512) 475-1295
Subchapter B. REQUIREMENTS FOR ALL PIPELINES
Chapter 8.
PIPELINE SAFETY REGULATIONS