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~