Some Aspects of Ground water Pollution and
underground Injection Control
By: Jean Shotts
July 9, 1981
l>
•
Pollution of ground water is a problem which is
both ·very old and new at the same time.
The problem
is old in that there have for many years been cases
in which one man•s release of pollutants has caused
another·individual 0 s loss.
'rtle problem is also new
in that it is only in recent years that society as a
whole has realized that pollution effects everyone
directly or indirectly.
In the "good old days"
pollution of a water well was bad news, but it was
not the disaster it is today stmply because there was
always more land and water to be found.
only.recently
has American society realized the delicacy of our
'(
resources.
<
~und
water is a
ren~wable
resource,
however, once it has been polluted it is lost forever.
I
The regulation of ground water and the elements that
Pollute it has grown along with .......the realization that
the resource can be lost.
The growth has not been
fast or even steady, the old ideas die slow.
The common law recognized that one who brings
hazardous material upon the land has a duty to avoid
injury to others who have an interest in the land and
adjoining property owners.
This concept is basic in
~
cases which allow recovery for pollution of ground water
due to petroleum exploration.
( 2)
A representat~ve case is Pickens v. HarrisonlI which was
!
de~ided
-
-
by the Texas Supreme COurt in 1952.
Pickens
In
a water well was polluted by salt water which flowed
from a pit used to dispose of the water through water
bearing sand into the well.
The water from the well
was then used to irrigate a rice crop causing permanent
damage to the rice and to the land.
The case is
important because it gives a good indication of the
burden which is borne by the party who tries to recover
in an action in tort for the injury to real property.
The basic problem of proof is inherent in the type of
activity being carried on by the defendants.
The
plaintiff can prove negligence and still not recover
because he is unable to prove exactly where the pollution
came from.
~In
another situation he may be able to
show the soarce of pollution and still be able to prove
that it was the cause of his damage.
In
Pickens, the
plaintiff was aided by the facts of the case.
He was
able to point to a single scarce of pollution, a salt
water pit owned by the defendants.
The pit had several pipes
penetrating the bottom to facilitate absorption by
the porus sand
under~:the
surface.
By
taking core samples
in the area around the pit and his land the plaintiff
#
•
was able to trace the water bearing sand from the pit
to his well
0039G
( 3)
If Pickens v. Harrison is an example of how the facts
should be shown, Phillips Petroleum v. West2 is an example
of what can go wrong.
In Phillips the plaintiff won his
case in the district court only to have his judgment
overturned in the Court of Appeals. He was able to show
that the defendant negligently allowed salt water to
escape from their pit an flow into his field.
However,
he failed to take any samples of water to prove that
the amount of salt was sufficient to damage his rice.
The court decided that there were several possible
causes for the crop failure besides the salt and stated
the rule that
·~here
circumstances are equally consistent
with the existence and non existence of an ulttmate fact
sought to be established, such circumstances are
wanting in probative for as evidence tending to
•
establish the existence of the ultimate fact". 3
In this case the plaintiff was defeated by an
independent intervening cause which was never
identified by the appellate court.
Gulf Oil Ooreoration v. Alexander4 points out an
instance in which the plaintiff is aided by a factor
which creates virtually a burden of strict tort
liability apon the defendant.
(4)
In
this instance the plaintiff was unable to prove
that the actions of the defendant were negligent.
The plaintiff was able to prove, however, that the
activities of the defendant did violate a rule of
the Texas Railroad Commission.
11
Rule 8 states that,
Fresh water, whether above or below the ground
shall be protected from pollution whether in drilling,
plugging, producing, or disposing of salt water
already produced". 5 The defendants ih Gulf Oil had
been arguing that even though their salt water had
polluted the plaintiffs land their was no negligence
•
because they had been following the standards which
were used throughout the industry.
The court cited
TUrner v. Big Lake Oil and stated the rule that,
''In the absence of some positive law forbidding or
regulating the keeping or use of a thing, the fundamental
question is one of negligence vel !!Q!! u.
then went on to hold
6
The court
that "Irrespective of any
t.echhi:.C:al:. discussion of the principles of negligence,
it is ruled that the violation of rule 20, (new rule 8)
by appellant in polluting the fresh water supply of
appellee's irrigation well gave right to a cause of
ill
action on the part of the appellee for his damage
suffered by reason of such violation ... "'l
003!)3
(5)
Thus in Gulf Oil the court held that in the case of a
violation of a Railroad Commission the question was
not one of whether there was negligence but whether the
rule had been in fact violated.
Article 6023 grants broad powers to regulate the
oil and gas industry in Texas to the Texas Railroad
Commission.
The article further authorizes the Commission
to enact rules for the regulation of the oil and gas
industry, 8 Article 6029 is a more specific version
of Article 6023,it requires the commission to make rules
for several specific purposes one of which is ttto require
dry or abandoned wells to be plugged in such a way as
to c6nfine crude petroleum, natural gas and water in
the strata in which they are found and to prevent
them from escaping into other strata 51 • 9 'the final
statement of the authority of the commission to regulate
activities which can cause ground water pollution is
article 6029a.
It requires that the couauission
Shall make and enforce rules, regulations and
orders in connection with the drilling of
exploratory wells and wells for oil and gas ••• 1
· and the operation abandonment and proper
plugging of such wells to prevent the pollution
."of streams and public bodies of water of the
· state, and any sub-surface water strata that are
capabl~ of producing water suitable for domestic
or livestock use, which would or might result
from the escape or release of crude petroleum
oil, salt water or other mineralized water from
any such well or from operations in connection
therewith.lO
003!'8
(6)
As a result of the statutory authorization , rule
8 entitled Wat~r Protection was promulgated.ll
of rule eiqht was the old rule 20
Gulf Oil Corporation case, supra.
Part (A)
as cited in the
Part (C) was added
by a commission order effective January 1,1969.
It
stated thata
All operators conducting oil, gas, or geothermal
resources development and production are prohibited
from using salt water disposal pits for storage •
and evaporation of oil field brines, geothermal
resource water or other mineralized waters.l2
The new part (C)helped to eliminate what had been a
major problem as was shown in the Pickens and Phillips
Petroleum cases.
The rule further stated that
disposal of oil field brines by dumping them into
surface water courses was also prohibited •. Thus
an effort had been made to protect water resources
from pollution by forbidding a method of disposal
which had been a common practice ..... for many years •
The Commission also has the authority to issue
permit for underground injection wells.
The
for a permit are stated in rule 9 of the
OommiSsi6n~.
under the present rules a permit
may
r~qulrements
be issued without
a hearing ifa7 1 if the strata into which the salt
water is to injected does not contain oil or gas and
,.
the water already present is unfit for use. 2. If the
applicant has ascertained that the formation is
from fresh water formations by
0040·:}
fmpervi~us
~eparated
strata which
(7)
would give the fresh water strata adequate protection
and th applicant has
submitted a letter to the Texas
Department of Water Resources stating that the well
not endanger fresh water sources.
~11
The rules further
provide for notice to be sent to the surface owner and
to each offset operator on or before the application
~e o~ission
is submitted to the commission.
then
would grant a permit if th&re were no complaints made
to the eommission withen a ten day period
follo~ng
the
submission of the application.1 3The rules(;dor.not atate
and particlar regulations as to how the injection is
to be done nor are there any provisions for keeping
records of the well or for inspection.
-..·.·
Safe Drinking water Act
I
In 1974 the Congress
determ~ned
that the existing
......
statutory authorizations for regulations and programs
were inadequate to protect the public from an increasing
amount of unsafe drinking water, as a result the Congress
14
enacted the Safe Drinking water Act.
'the act was ~:
created to grant to the Enviornmental Protection Agency
the authority to promulgate regulations which would
-;...-
.
force the states to improve . . the .quality of public
water regulation.
0040~~
(8)
A major part-of the safe Drinking water Act was
intended to protect undergound sources of drinking
water.
Part (C) of the act was created to
~ncourage
the creation of state and federal regulations for the
control of the injection of materials into underground
sources of drinking water, both present and potential.
The act required the EPA to establish standards which
must be met by state regulations.
Failure of a state
to meet the standards would cause the responsibility
- for enforcement of the act to shift to the administrator
of the Environmental Protection Agency~
5
However, the
act contemplated that the states would have the
primary power to enforce the act with the EPA acting
mainly in a supervisory manner ready to intervene
~th
their own civil and criminal penalties only if the
states failed to enforce the act •
....._
The first step in the progression of events under
the act was for the Administrator of the EPA to
compile·:a list of statefhich were in need of
I
underground injection control programs.
In
fact
the congress contemplated that all fifty states would
be included in the list and that only the District of
Columbia and various territories and possessions:-:
•
0040~
-·
(9)
would be excluded. 16
In spite of the fact that all
fifty states were eventually included in the list, the
EPA
promugated criteria which it considered when
"selecting•• states:
A.
B.
c.
D.
E,
F.
G.
The state population relying on underground drinking
water sources including bOth public and private
systems.
The state's dependence on underground drinking
water sources which is the ratio of the state
ground water population to the total state
Population
The nunber of industrial and municipal waste·
disposal wells.
The volume of brine injected in association With
oil and gas extraction.
The number of solution mining sites.
The number of gas storage reservoirs and
The number of manufacturing and service
establishments.17
under the criteria for selection Texas was the state
with the greatest need for an underground injection -control program.
The act included provision for grants to be given
-
.. . • j~
to the states to aid in the cost of developing an underground
injection control program.
In
the application it is.
a necessity that the state show that it is in the process
of creating a control program as contemplated by the
minimum requirement regulations to be created by the
EPA.
The regulations
to be promulgated by the EPA
~
•
were to :
(1) prohibit unauthorized underground injection
effective three years after enactment of the billz
00103
.•
(10)
(2)rmreau9 ire aPPlicants for underqround injection
~
11: to ,near tne .buraen of prov1ng to tne state
that its injection will not endanger drinking water
sourcesr~ (3) refrain from adopting regulations
which either on their face or as applied would
authorize underground 1njeet1on ~ endangers
drinking water sources: ~4'):·:-adopt:-jtnspection,
monitoring, recordkeeping, and reporting
requirements for the purpose of this part:
and(S) apply their injection control programs
to underground injections by federal agencies
and by other persons whether or not occurring
on Federally~owned or leased property. 18
Congress stated further in the act that the regulations
were not intended to interfere with the underground
injection of brine or other fuids which are brought to
the surface in connection with oil or natural gas
production. 19
In
June of 1980 the
EPA
published the final
trdnirtumt·:~
regulations which must be either equaled or surpassed
by a state which wished to retain primary enforcement
responsibility as contemplated by the act.
The regulations
as written did not create any requirements for owners
or operators of injection wells but were simply
guidlines for the states to use in creating their own
programs.
The regulations as created covered not only
wells which injected material but also" any septic
tank or cesspool used by generators of hazardous waste or
by owners or operators of hazardous waste management
..
•
facilities, to dispose of fuids containing hazardous
waste•. 20
The regulations also included any septic tank
or cesspool or other well used by ~.lJ\Ul~iple
00101
...
(11)
dwelling community, or regional system for· the injection
of waste.21
The regulations divided injection wells·
into five classifications.which included wells for
disposal of salt water and other waste, wells used
for secondary and tertiary recovery of oil and gas,
and t-rells used for disposal of radio-:.;active waste.
Under the regulations a injection well for disposal
of salt water or for secondary recovery may not
be granted a permit if the injection results in
movement of fluid into underground sources of drinking
water. 22
All aquifers are included by the regulations
unless affirmatively designated by the state director
of injection control as having no potential to be
used as a source of drinking water.
Thus all wells
and all underground sources of water are included
by the regulations.
The complexity of the regulations which have
been created over the period of time since the passage
of the act and the difficulty in training individuals':.,:;
to regulate injection control has contributed greatly
to the delay in creating underground injection
control programs in·c.the states.
'rhis was one of·, the
ill
causes of the amendments to the Safe Drinking Water act
in'l977.
It is only recently that the states have
had the necessary regulations and guidance to
-... ..,.)
Oo ~o·,....
••
(12)
allow them to start revamping their programs.
On June 9, 1981 the Texas Railroad Oommssion
published amendments to rule
9.~--·These:··amendments
increased greatly the amount and quality of regulation
of injection wells.23 The basic permit program of
rule 9 was left virtually unchanged, however, the
;1;-:~r_-:.
amendments added many additional requirements intended
to regulate the
operation~:of
the wells.
The new
rules added provisions which would allow the Commission
to revoke a permit if aby:;·substantial change of
condition occurred.or if the operator made substantial
changes in the information originally given to
the Commission.
Some conditions which can cause
revocation of a permit are:
!f freshwater is or may be polluted as a result
of the continued operation of the well: there are
substantial violations of the terms and provisions
of the permit or the commissions rules: the
operator has misrepresented any material facts
during the permit issuance process7~or injected
fluids are escaping from the permitted disposal
zone. 24
The new rules also require the applicant to pay the
cost of determining that all wells withen l/4 mile
are plugged in such a manner as to prevent injected . 1
material from
. reaching fresh water zones.25
•
OO~OG
( 13)
The old rule 9 ·left the methods of preparing the
well for injection unregulated, however, the amendments
create new requirements for the type of casinq used
as well as for other specific types of equipnent.
The new regulations
require.--~~tliat:..the
operator keep
records for the purpose of monitoring the well and
reporting to the commission.
The operator is required
to monitor the injection pressure and injection rate
at least on a monthly basis.
The results
must···~be'~
reported to the commission annually and the operator
is required to retain the records for at least five years.
The commission will soon require that the well be
tested to insure that there will be no leakage when
the well begins operation.
Finally,the commission requires
that in the event of fluid entering a fresh water zone
the well must be shut down immediately and the
commission notified withen 24
ho~rs.
These new regulations bring Texas close to the
letter and the intent of the Safe Drinking Water act.
They indicate a new awareness of the problems involved
in the injection of waste.
has been a great
Thus even
amount<:;of:~:ael~y
tno~qh·:~there
and difficulty regulations
for the protection of ground water are being created •
•
00~07
..
(14)
End Notes
1.
151 Tex. 581, 252 S.W.2d 575, (1952).
2.
284 s.W.2d 196 (Tex.Civ. App.- Galveston 1955, writ
ref'd n.r.e.).
. . ··:
3.
-
4.
291 S.W.2d 792 (Tex. Civ. App.- Amarillo 1956, writ
Id at 198.
....:
ref'd n.r.e. ).
5.
Tex. R.R. Oomm'n, Rule 051.02.02.008 (1969).
6.
291 S.W.2d at 795.
7.
.xg.
8.
Tex. Rev. Civ. Stat. Ann. art 6023 "('Vernon .:·1962 ).
9.
Tex. Rev. Civ. stat.
art 6029 (Vernon 1962).
Ann~
10. Tex. Rev. Civ. Stat. Ann. art 6029a (Venon 1962).
11. Tex. R.R. Oomm'n, Rule 051.02.02.008 (1969).
12.
M·
'!3. Tex R.R, o:>mm'n, Rule 051.02.02.008 (1969) •
.......
14. Safe Drinking water Act of
1974,":~42
u.s.c.
§ 300-h
11974).
15. Id at B 300 h-2
-
16. H.R. Rep Np. 93-1185, 92nd.Oong.,
reprinted in (1974)
u.s.
~~q ~~~~:
Code· Conq & Ad News 6485.
17. 43 Fed Reg 43420 (1978).
18
(1974 ) .."u.s·. Code Cong
& Ad
News" 6491.
OV10J
End Notes (cont.)
u.s.c.
19. 42
20. 40 C.P.R.
.300-h-1.
-
B 122.32, (1980).
21. Id. .
-
22. 40 C.F.R. I 122.34, (1980).
23. ~l["J!.R~.
6
24.
eomm•n,
Rule 051.02;02!009,
Tex. Req. 2052, (1981).
19.
at 2053.
25. Id.
-
0010~