Proposed Rules Title 16 (2024)

PART 1. RAILROAD COMMISSION OF TEXAS

CHAPTER 3. OIL AND GAS DIVISION

16 TAC §§3.8, 3.14, 3.22, 3.30, 3.57, 3.91, 3.98

The Railroad Commission of Texas (Commission) proposes amendments to §§3.8, 3.14, 3.22, 3.30, 3.57, 3.91, and 3.98,relating to Water Protection; Plugging; Protection of Birds; Memorandumof Understanding between the Railroad Commission of Texas (RRC) andthe Texas Commission on Environmental Quality (TCEQ); Reclaiming TankBottoms, Other Hydrocarbon Wastes, and Other Waste Materials; Cleanupof Soil Contaminated by a Crude Oil Spill; and Standards for Managementof Hazardous Oil and Gas Waste.

The Commission proposes amendments to §3.8 and §3.57to remove all substantive language from the rules and replace withnotice that the requirements are relocated to Chapter 4 of this title(relating to Environmental Protection) which is proposed in a concurrentrulemaking. Other proposed amendments update cross-references to certainCommission rules in conjunction with the proposed new and amendedrules in Chapter 4.

To align with the proposed amendments and new rules in Chapter4, the Commission proposes that the proposed amendments in §3.8and §3.57 go into effect July 1, 2025, which is approximatelysix months after the anticipated default effective date. The Commissionnotes that if the rulemaking timeline changes, the rules may be adoptedat a later date. If that occurs, the proposed effective dates willbe updated upon adoption.

Paul Dubois, Assistant Director, Technical Permitting, Oil &Gas Division, has determined that for each year of the first fiveyears the amendments as proposed will be in effect, there will beno additional costs to state government as a result of enforcing oradministering the amendments. There will be no fiscal effect on local government.

Mr. Dubois has determined that for the first five years the proposedamendments are in effect, the primary public benefit will be consistencyof rule references within Commission rules.

Mr. Dubois has determined that for each year of the first fiveyears that the amendments will be in effect, there will be no economiccosts for persons required to comply as a result of adoption of theproposed amendments.

Texas Government Code, §2006.002, relating to Adoption ofRules with Adverse Economic Effect, directs that, as part of the rulemakingprocess, a state agency prepare an economic impact statement thatassesses the potential impact of a proposed rule on rural communities,small businesses, and micro-businesses, and a regulatory flexibilityanalysis that considers alternative methods of achieving the purposeof the rule if the proposed rule will have an adverse economic effecton rural communities, small businesses, or micro-businesses. The proposedamendments will not have an adverse economic effect on rural communities,small businesses, or micro-businesses. Therefore, the regulatory flexibilityanalysis is not required.

The Commission has also determined that the proposed amendmentswill not affect a local economy. Therefore, the Commission has notprepared a local employment impact statement pursuant to Texas GovernmentCode §2001.022.

The Commission has determined that the amendments do not meet thestatutory definition of a major environmental rule as set forth inTexas Government Code, §2001.0225(a); therefore, a regulatoryanalysis conducted pursuant to that section is not required.

During the first five years that the amendments would be in effect,the proposed amendments would not: create or eliminate a new governmentprogram; create or eliminate any employee positions; require an increaseor decrease in future legislative appropriations; increase fees paidto the agency; create a new regulation; increase or decrease the numberof individuals subject to the rule's applicability; expand, limit,or repeal an existing regulation; or affect the state's economy.

Comments on the proposed amendments may be submitted to Rules Coordinator,Office of General Counsel, Railroad Commission of Texas, P.O. Box12967, Austin, Texas 78711-2967; online at www.rrc.texas.gov/general-counsel/rules/comment-form-for-proposed-rulemakings;or by electronic mail to rulescoordinator@rrc.texas.gov. The Commissionwill accept comments until 5:00 pm on Monday, September 30, 2024.The Commission finds that this comment period is reasonable becausethe proposal and an online comment form will be available on the Commission'swebsite more than two weeks prior to Texas Register publication ofthe proposal, giving interested persons additional time to review,analyze, draft, and submit comments. The Commission cannot guaranteethat comments submitted after the deadline will be considered. Forfurther information, call Mr. Dubois at (512) 463-6778. The statusof Commission rulemakings in progress is available at www.rrc.texas.gov/general-counsel/rules/proposed-rules.

The Commission proposes the amendments to pursuant to Texas NaturalResources Code §81.051 and §81.052, which provide the Commissionwith jurisdiction over all persons owning or engaged in drilling oroperating oil or gas wells in Texas and the authority to adopt allnecessary rules for governing and regulating persons and their operationsunder the jurisdiction of the Commission.

Statutory authority: Texas Natural Resources Code §§81.051and 81.052.

Cross reference to statute: Texas Natural Resources Code Chapter 81.

§3.8.Water Protection.

Effective July 1, 2025, the requirements ofthis section are incorporated in Chapter 4 of this title (relatingto Environmental Protection), specifically Subchapter A (relatingto Oil and Gas Waste Management).

[(a) The following words and termswhen used in this section shall have the following meanings, unlessthe context clearly indicates otherwise.]

[(1) Basic sediment pit--Pit used in conjunction witha tank battery for storage of basic sediment removed from a productionvessel or from the bottom of an oil storage tank. Basic sediment pitswere formerly referred to as burn pits.]

[(2) Brine pit--Pit used for storage of brine whichis used to displace hydrocarbons from an underground hydrocarbon storage facility.]

[(3) Collecting pit--Pit used for storage of saltwateror other oil and gas wastes prior to disposal at a disposal well orfluid injection well. In some cases, one pit is both a collectingpit and a skimming pit.]

[(4) Completion/workover pit--Pit used for storageor disposal of spent completion fluids, workover fluids and drillingfluid, silt, debris, water, brine, oil scum, paraffin, or other materialswhich have been cleaned out of the wellbore of a well being completedor worked over.]

[(5) Drilling fluid disposal pit--Pit, other than areserve pit, used for disposal of spent drilling fluid.]

[(6) Drilling fluid storage pit--Pit used for storageof drilling fluid which is not currently being used but which willbe used in future drilling operations. Drilling fluid storage pitsare often centrally located among several leases.]

[(7) Emergency saltwater storage pit--Pit used forstorage of produced saltwater for limited period of time. Use of thepit is necessitated by a temporary shutdown of disposal well or fluidinjection well and/or associated equipment, by temporary overflowof saltwater storage tanks on a producing lease or by a producingwell loading up with formation fluids such that the well may die.Emergency saltwater storage pits may sometimes be referred to as emergencypits or blowdown pits.]

[(8) Flare pit--Pit which contains a flare and whichis used for temporary storage of liquid hydrocarbons which are sentto the flare during equipment malfunction but which are not burned.A flare pit is used in conjunction with a gasoline plant, naturalgas processing plant, pressure maintenance or repressurizing plant,tank battery, or a well.]

[(9) Fresh makeup water pit--Pit used in conjunctionwith a drilling rig for storage of fresh water used to make up drillingfluid or hydraulic fracturing fluid.]

[(10) Gas plant evaporation/retention pit--Pit usedfor storage or disposal of cooling tower blowdown, water condensedfrom natural gas, and other wastewater generated at gasoline plants,natural gas processing plants, or pressure maintenance or repressurizing plants.]

[(11) Mud circulation pit--Pit used in conjunctionwith drilling rig for storage of drilling fluid currently being usedin drilling operations.]

[(12) Reserve pit--Pit used in conjunction with drillingrig for collecting spent drilling fluids; cuttings, sands, and silts;and wash water used for cleaning drill pipe and other equipment atthe well site. Reserve pits are sometimes referred to as slush pitsor mud pits.]

[(13) Saltwater disposal pit--Pit used for disposalof produced saltwater.]

[(14) Skimming pit--Pit used for skimming oil off saltwaterprior to disposal of saltwater at a disposal well or fluid injection well.]

[(15) Washout pit--Pit located at a truck yard, tankyard, or disposal facility for storage or disposal of oil and gaswaste residue washed out of trucks, mobile tanks, or skid-mounted tanks.]

[(16) Water condensate pit--Pit used in conjunctionwith a gas pipeline drip or gas compressor station for storage ordisposal of fresh water condensed from natural gas.]

[(17) Generator--Person who generates oil and gas wastes.]

[(18) Carrier--Person who transports oil and gas wastesgenerated by a generator. A carrier of another person's oil and gaswastes may be a generator of his own oil and gas wastes.]

[(19) Receiver--Person who stores, handles, treats,reclaims, or disposes of oil and gas wastes generated by a generator.A receiver of another person's oil and gas wastes may be a generatorof his own oil and gas wastes.]

[(20) Director--Director of the Oil and Gas Divisionor his staff delegate designated in writing by the director of theOil and Gas Division or the commission.]

[(21) Person--Natural person, corporation, organization,government or governmental subdivision or agency, business trust,estate, trust, partnership, association, or any other legal entity.]

[(22) Affected person--Person who, as a result of theactivity sought to be permitted, has suffered or may suffer actualinjury or economic damage other than as a member of the general public.]

[(23) To dewater--To remove the free water.]

[(24) To dispose--To engage in any act of disposalsubject to regulation by the commission including, but not limitedto, conducting, draining, discharging, emitting, throwing, releasing,depositing, burying, landfarming, or allowing to seep, or to causeor allow any such act of disposal.]

[(25) Landfarming--A waste management practice in whichoil and gas wastes are mixed with or applied to the land surface insuch a manner that the waste will not migrate off the landfarmed area.]

[(26) Oil and gas wastes--Materials to be disposedof or reclaimed which have been generated in connection with activitiesassociated with the exploration, development, and production of oilor gas or geothermal resources, as those activities are defined inparagraph (30) of this subsection, and materials to be disposed ofor reclaimed which have been generated in connection with activitiesassociated with the solution mining of brine. The term "oil and gaswastes" includes, but is not limited to, saltwater, other mineralizedwater, sludge, spent drilling fluids, cuttings, waste oil, spent completionfluids, and other liquid, semiliquid, or solid waste material. Theterm "oil and gas wastes" includes waste generated in connection withactivities associated with gasoline plants, natural gas or naturalgas liquids processing plants, pressure maintenance plants, or repressurizingplants unless that waste is a hazardous waste as defined by the administratorof the United States Environmental Protection Agency pursuant to thefederal Solid Waste Disposal Act, as amended (42 United States Code§6901 et seq.).]

[(27) Oil field fluids--Fluids to be used or reusedin connection with activities associated with the exploration, development,and production of oil or gas or geothermal resources, fluids to beused or reused in connection with activities associated with the solutionmining of brine, and mined brine. The term "oil field fluids" includes,but is not limited to, drilling fluids, completion fluids, surfactants,and chemicals used to detoxify oil and gas wastes.]

[(28) Pollution of surface or subsurface water--Thealteration of the physical, thermal, chemical, or biological qualityof, or the contamination of, any surface or subsurface water in thestate that renders the water harmful, detrimental, or injurious tohumans, animal life, vegetation, or property, or to public health,safety, or welfare, or impairs the usefulness or the public enjoymentof the water for any lawful or reasonable purpose.]

[(29) Surface or subsurface water--Groundwater, percolatingor otherwise, and lakes, bays, ponds, impounding reservoirs, springs,rivers, streams, creeks, estuaries, marshes, inlets, canals, the Gulfof Mexico inside the territorial limits of the state, and all otherbodies of surface water, natural or artificial, inland or coastal,fresh or salt, navigable or nonnavigable, and including the beds andbanks of all watercourses and bodies of surface water, that are whollyor partially inside or bordering the state or inside the jurisdictionof the state.]

[(30) Activities associated with the exploration, development,and production of oil or gas or geothermal resources--Activities associated with:]

[(A) the drilling of exploratory wells, oil wells,gas wells, or geothermal resource wells;]

[(B) the production of oil or gas or geothermal resources, including:]

[(i) activities associated with the drilling of injectionwater source wells that penetrate the base of usable quality water;]

[(ii) activities associated with the drilling of cathodicprotection holes associated with the cathodic protection of wellsand pipelines subject to the jurisdiction of the commission to regulatethe production of oil or gas or geothermal resources;]

[(iii) activities associated with gasoline plants,natural gas or natural gas liquids processing plants, pressure maintenanceplants, or repressurizing plants;]

[(iv) activities associated with any underground naturalgas storage facility, provided the terms "natural gas" and "storagefacility" shall have the meanings set out in the Texas Natural ResourcesCode, §91.173;]

[(v) activities associated with any underground hydrocarbonstorage facility, provided the terms "hydrocarbons" and "undergroundhydrocarbon storage facility" shall have the meanings set out in theTexas Natural Resources Code, §91.201; and]

[(vi) activities associated with the storage, handling,reclamation, gathering, transportation, or distribution of oil orgas prior to the refining of such oil or prior to the use of suchgas in any manufacturing process or as a residential or industrial fuel;]

[(C) the operation, abandonment, and proper pluggingof wells subject to the jurisdiction of the commission to regulatethe exploration, development, and production of oil or gas or geothermalresources; and]

[(D) the discharge, storage, handling, transportation,reclamation, or disposal of waste or any other substance or materialassociated with any activity listed in subparagraphs (A) - (C) ofthis paragraph, except for waste generated in connection with activitiesassociated with gasoline plants, natural gas or natural gas liquidsprocessing plants, pressure maintenance plants, or repressurizingplants if that waste is a hazardous waste as defined by the administratorof the United States Environmental Protection Agency pursuant to thefederal Solid Waste Disposal Act, as amended (42 United States Code§6901, et seq.).]

[(31) Mined brine--Brine produced from a brine mininginjection well by solution of subsurface salt formations. The term"mined brine" does not include saltwater produced incidentally tothe exploration, development, and production of oil or gas or geothermal resources.]

[(32) Brine mining pit--Pit, other than a fresh miningwater pit, used in connection with activities associated with thesolution mining of brine. Most brine mining pits are used to storemined brine.]

[(33) Fresh mining water pit--Pit used in conjunctionwith a brine mining injection well for storage of water used for solutionmining of brine.]

[(34) Inert wastes--Nonreactive, nontoxic, and essentiallyinsoluble oil and gas wastes, including, but not limited to, concrete,glass, wood, metal, wire, plastic, fiberglass, and trash.]

[(35) Coastal zone--The area within the boundary establishedin Title 31, Texas Administrative Code, §503.1 (Coastal ManagementProgram Boundary).]

[(36) Coastal management program (CMP) rules--The enforceablerules of the Texas Coastal Management Program codified at Title 31,Texas Administrative Code, Chapters 501, 505, and 506.]

[(37) Coastal natural resource area (CNRA)--One ofthe following areas defined in Texas Natural Resources Code, §33.203:coastal barriers, coastal historic areas, coastal preserves, coastalshore areas, coastal wetlands, critical dune areas, critical erosionareas, gulf beaches, hard substrate reefs, oyster reefs, submergedland, special hazard areas, submerged aquatic vegetation, tidal sandor mud flats, water in the open Gulf of Mexico, and water under tidal influence.]

[(38) Coastal waters--Waters under tidal influenceand waters of the open Gulf of Mexico.]

[(39) Critical area--A coastal wetland, an oyster reef,a hard substrate reef, submerged aquatic vegetation, or a tidal sandor mud flat as defined in Texas Natural Resources Code, §33.203.]

[(40) Practicable--Available and capable of being doneafter taking into consideration existing technology, cost, and logisticsin light of the overall purpose of the activity.]

[(41) Non-commercial fluid recycling--The recyclingof fluid produced from an oil or gas well, including produced formationfluid, workover fluid, and completion fluid, including fluids producedfrom the hydraulic fracturing process on an existing commission-designatedlease or drilling unit associated with a commission-issued drillingpermit or upon land leased or owned by the operator for the purposesof operation of a non-commercial disposal well operated pursuant toa permit issued under §3.9 of this title (relating to DisposalWells) or a non-commercial injection well operated pursuant to a permitissued under §3.46 of this title (relating to Fluid Injectioninto Productive Reservoirs), where the operator of the lease, or drillingunit, or non-commercial disposal or injection well treats or contractswith a person for the treatment of the fluid, and may accept suchfluid from other leases and or operators.]

[(42) Non-commercial fluid recycling pit--Pit usedin conjunction with one or more oil or gas leases or units that isconstructed, maintained, and operated by the operator of record ofthe lease or unit and is located on an existing commission-designatedlease or drilling unit associated with a commission-issued drillingpermit, or upon land leased or owned by the operator for the purposesof operation of a non-commercial disposal well operated pursuant toa permit issued under §3.9 of this title or a non-commercialinjection well operated pursuant to a permit issued under §3.46of this title, for the storage of fluid for the purpose of non-commercialfluid recycling or for the storage of treated fluid.]

[(43) Recycle--To process and/or use or re-use oiland gas wastes as a product for which there is a legitimate commercialuse and the actual use of the recyclable product. 'Recycle,' as definedin this subsection, does not include injection pursuant to a permitissued under §3.46 of this title.]

[(44) Treated fluid-Fluid that has been treated usingwater treatment technologies to remove impurities such that the treatedfluid can be reused or recycled. Treated fluid is not a waste butmay become a waste if it is abandoned or disposed of rather than reusedor recycled.]

[(45) Recyclable product--A reusable material as definedin §4.204(12) of this title (relating to Definitions).]

[(46) 100-year flood plain--An area that is inundatedby a 100-year flood, which is a flood that has a one percent or greaterchance of occurring in any given year, as determined from maps orother data from the Federal Emergency Management Administration (FEMA),or, if not mapped by FEMA, from the United States Department of Agriculturesoil maps.]

[(47) Distilled water--Water that has been purifiedby being heated to a vapor form and then condensed into another containeras liquid water that is essentially free of all solutes.]

[(b) No pollution. No person conductingactivities subject to regulation by the commission may cause or allowpollution of surface or subsurface water in the state.]

[(c) Exploratory wells. Any oil, gas,or geothermal resource well or well drilled for exploratory purposesshall be governed by the provisions of statewide or field rules whichare applicable and pertain to the drilling, safety, casing, production,abandoning, and plugging of wells.]

[(d) Pollution control.]

[(1) Prohibited disposal methods. Except for thosedisposal methods authorized for certain wastes by paragraph (3) ofthis subsection, subsection (e) of this section, or §3.98 ofthis title (relating to Standards for Management of Hazardous Oiland Gas Waste), or disposal methods required to be permitted pursuantto §3.9 of this title (relating to Disposal Wells) (Rule 9) or§3.46 of this title (relating to Fluid Injection into ProductiveReservoirs) (Rule 46), no person may dispose of any oil and gas wastesby any method without obtaining a permit to dispose of such wastes.The disposal methods prohibited by this paragraph include, but arenot limited to, the unpermitted discharge of oil field brines, geothermalresource waters, or other mineralized waters, or drilling fluids intoany watercourse or drainageway, including any drainage ditch, drycreek, flowing creek, river, or any other body of surface water.]

[(2) Prohibited pits. No person may maintain or useany pit for storage of oil or oil products. Except as authorized bythis subsection, no person may maintain or use any pit for storageof oil field fluids, or for storage or disposal of oil and gas wastes,without obtaining a permit to maintain or use the pit. A person isnot required to have a permit to use a pit if a receiver has sucha permit, if the person complies with the terms of such permit whileusing the pit, and if the person has permission of the receiver touse the pit. The pits required by this paragraph to be permitted include,but are not limited to, the following types of pits: saltwater disposalpits; emergency saltwater storage pits; collecting pits; skimmingpits; brine pits; brine mining pits; drilling fluid storage pits (otherthan mud circulation pits); drilling fluid disposal pits (other thanreserve pits or slush pits); washout pits; and gas plant evaporation/retentionpits. If a person maintains or uses a pit for storage of oil fieldfluids, or for storage or disposal of oil and gas wastes, and theuse or maintenance of the pit is neither authorized by this subsectionnor permitted, then the person maintaining or using the pit shallbackfill and compact the pit in the time and manner required by thedirector. Prior to backfilling the pit, the person maintaining orusing the pit shall, in a permitted manner or in a manner authorizedby paragraph (3) of this subsection, dispose of all oil and gas wasteswhich are in the pit.]

[(3) Authorized disposal methods.]

[(A) Fresh water condensate. A person may, withouta permit, dispose of fresh water which has been condensed from naturalgas and collected at gas pipeline drips or gas compressor stations,provided the disposal is by a method other than disposal into surfacewater of the state.]

[(B) Inert wastes. A person may, without a permit,dispose of inert and essentially insoluble oil and gas wastes including,but not limited to, concrete, glass, wood, and wire, provided thedisposal is by a method other than disposal into surface water ofthe state.]

[(C) Low chloride drilling fluid. A person may, withouta permit, dispose of the following oil and gas wastes by landfarming,provided the wastes are disposed of on the same lease where they aregenerated, and provided the person has the written permission of thesurface owner of the tract where landfarming will occur: water basedrilling fluids with a chloride concentration of 3,000 milligramsper liter (mg/liter) or less; drill cuttings, sands, and silts obtainedwhile using water base drilling fluids with a chloride concentrationof 3,000 mg/liter or less; and wash water used for cleaning drillpipe and other equipment at the well site.]

[(D) Other drilling fluid. A person may, without apermit, dispose of the following oil and gas wastes by burial, providedthe wastes are disposed of at the same well site where they are generated:water base drilling fluid which had a chloride concentration in excessof 3,000 mg/liter but which have been dewatered; drill cuttings, sands,and silts obtained while using oil base drilling fluids or water basedrilling fluids with a chloride concentration in excess of 3,000 mg/liter;and those drilling fluids and wastes allowed to be landfarmed withouta permit.]

[(E) Completion/workover pit wastes. A person may,without a permit, dispose of the following oil and gas wastes by burialin a completion/workover pit, provided the wastes have been dewatered,and provided the wastes are disposed of at the same well site wherethey are generated: spent completion fluids, workover fluids, andthe materials cleaned out of the wellbore of a well being completedor worked over.]

[(F) Contents of non-commercial fluid recycling pit.A person may, without a permit, dispose of the solids from a non-commercialfluid recycling pit by burial in the pit, provided the pit has been dewatered.]

[(G) Effect on backfilling. A person's choice to disposeof a waste by methods authorized by this paragraph shall not extendthe time allowed for backfilling any reserve pit, mud circulationpit, or completion/workover pit whose use or maintenance is authorizedby paragraph (4) of this subsection.]

[(4) Authorized pits. A person may, without a permit,maintain or use reserve pits, mud circulation pits, completion/workoverpits, basic sediment pits, flare pits, fresh makeup water pits, freshmining water pits, non-commercial fluid recycling pits, and watercondensate pits on the following conditions.]

[(A) Reserve pits and mud circulation pits. A personshall not deposit or cause to be deposited into a reserve pit or mudcirculation pit any oil field fluids or oil and gas wastes, otherthan the following:]

[(i) drilling fluids, whether fresh water base, saltwaterbase, or oil base;]

[(ii) drill cuttings, sands, and silts separated fromthe circulating drilling fluids;]

[(iii) wash water used for cleaning drill pipe andother equipment at the well site;]

[(iv) drill stem test fluids; and]

[(v) blowout preventer test fluids.]

[(B) Completion/workover pits. A person shall not depositor cause to be deposited into a completion/workover pit any oil fieldfluids or oil and gas wastes other than spent completion fluids, workoverfluid, and the materials cleaned out of the wellbore of a well beingcompleted or worked over.]

[(C) Basic sediment pits. A person shall not depositor cause to be deposited into a basic sediment pit any oil field fluidsor oil and gas wastes other than basic sediment removed from a productionvessel or from the bottom of an oil storage tank. Although a personmay store basic sediment in a basic sediment pit, a person may notdeposit oil or free saltwater in the pit. The total capacity of abasic sediment pit shall not exceed a capacity of 50 barrels. Thearea covered by a basic sediment pit shall not exceed 250 square feet.]

[(D) Flare pits. A person shall not deposit or causeto be deposited into a flare pit any oil field fluids or oil and gaswastes other than the hydrocarbons designed to go to the flare duringupset conditions at the well, tank battery, or gas plant where thepit is located. A person shall not store liquid hydrocarbons in aflare pit for more than 48 hours at a time.]

[(E) Fresh makeup water pits and fresh mining waterpits. A person shall not deposit or cause to be deposited into a freshmakeup water pit any oil and gas wastes or any oil field fluids otherthan fresh water used to make up drilling fluid or hydraulic fracturingfluid. A person shall not deposit or cause to be deposited into afresh mining water pit any oil and gas wastes or any oil field fluidsother than water used for solution mining of brine.]

[(F) Water condensate pits. A person shall not depositor cause to be deposited into a water condensate pit any oil fieldfluids or oil and gas wastes other than fresh water condensed fromnatural gas and collected at gas pipeline drips or gas compressor stations.]

[(G) Non-commercial fluid recycling pits.]

[(i) A person shall not deposit or cause to be depositedinto a non-commercial fluid recycling pit any oil field fluids oroil and gas wastes other than those fluids described in subsection(a)(42) of this section.]

[(ii) All pits shall be sufficiently large to ensureadequate storage capacity and freeboard taking into account anticipated precipitation.]

[(iii) All pits shall be designed to prevent stormwaterrunoff from entering the pit. If a pit is constructed with a dikeor berm, the height, slope, and construction material of such dikeor berm shall be such that it is structurally sound and does not allow seepage.]

[(iv) A freeboard of at least two feet shall be maintainedat all times.]

[(v) All pits shall be lined. The liner shall be designed,constructed, and installed to prevent any migration of materials fromthe pit into adjacent subsurface soils, ground water, or surface waterat any time during the life of the pit. The liner shall be installedaccording to standard industry practices, shall be constructed ofmaterials that have sufficient chemical and physical properties, includingthickness, to prevent failure during the expected life of the pit.All liners shall have a hydraulic conductivity that is 1.0 x 10-7cm/sec or less. A liner may be constructed of either natural or synthetic materials.]

[(I) Procedures shall be in place to routinely monitorthe integrity of the liner of pit. If liner failure is discoveredat any time, the pit shall be emptied and the liner repaired priorto placing the pit back in service. Acceptable monitoring proceduresinclude an annual visual inspection of the pit liner or the installationof a double liner and leak detection system. Alternative monitoringprocedures may be approved by the director if the operator demonstratesthat the alternative is at least equivalent in the protection of surfaceand subsurface water as the provisions of this section.]

[(II) The liner of a pit with a single liner shallbe inspected annually to ensure that the liner has not failed. Thisinspection shall be completed by emptying the pit and visually inspectingthe liner.]

[(III) If the operator does not propose to empty thepit and inspect the pit liner on at least an annual basis, the operatorshall install a double liner and leak detection system. A leak detectionsystem shall be installed between a primary and secondary liner. Theleak detection system must be monitored on a monthly basis to determineif the primary liner has failed. The primary liner has failed if thevolume of water passing through the primary liner exceeds the actionleakage rate, as calculated using accepted procedures, or 1,000 gallonsper acre per day, whichever is larger.]

[(IV) The operator of the pit shall keep records todemonstrate compliance with the pit liner integrity requirements andshall make the records available to commission personnel upon request.]

[(vi) The operator of the pit shall provide writtennotification to the district director prior to construction of thepit, or prior to the use of an existing pit as a non-commercial fluidrecycling pit. Such notification shall include:]

[(I) the location of the pit including the lease nameand number or drilling permit number and the latitude and longitude;]

[(II) the dimensions and maximum capacity of the pit; and]

[(III) a signed statement that the operator has writtenpermission from the surface owner of the tract upon which the pitis located for construction and use of the pit for such purpose.]

[(vii) Equipment, machinery, waste, or other materialsthat could reasonably be expected to puncture, tear, or otherwisecompromise the integrity of the liner shall not be used or placedin lined pits.]

[(viii) The pit shall be inspected periodically bythe operator for compliance with the applicable provisions of this section.]

[(H) Backfill requirements.]

[(i) A person who maintains or uses a reserve pit,mud circulation pit, fresh makeup water pit, fresh mining water pit,completion/workover pit, basic sediment pit, flare pit, non-commercialfluid recycling pit, or water condensate pit shall dewater, backfill,and compact the pit according to the following schedule.]

[(I) Reserve pits and mud circulation pits which containfluids with a chloride concentration of 6,100 mg/liter or less andfresh makeup water pits shall be dewatered, backfilled, and compactedwithin one year of cessation of drilling operations.]

[(II) Reserve pits and mud circulation pits which containfluids with a chloride concentration in excess of 6,100 mg/liter shallbe dewatered within 30 days and backfilled and compacted within oneyear of cessation of drilling operations.]

[(III) All completion/workover pits used when completinga well shall be dewatered within 30 days and backfilled and compactedwithin 120 days of well completion. All completion/workover pits usedwhen working over a well shall be dewatered within 30 days and backfilledand compacted within 120 days of completion of workover operations.]

[(IV) Basic sediment pits, flare pits, fresh miningwater pits, non-commercial fluid recycling pits, and water condensatepits shall be dewatered, backfilled, and compacted within 120 daysof final cessation of use of the pits.]

[(V) If a person constructs a sectioned reserve pit,each section of the pit shall be considered a separate pit for determiningwhen a particular section should be dewatered.]

[(ii) A person who maintains or uses a reserve pit,mud circulation pit, fresh makeup water pit, non-commercial fluidrecycling pit, or completion/workover pit shall remain responsiblefor dewatering, backfilling, and compacting the pit within the timeprescribed by clause (i) of this subparagraph, even if the time allowedfor backfilling the pit extends beyond the expiration date or transferdate of the lease covering the land where the pit is located.]

[(iii) The director may require that a person who usesor maintains a reserve pit, mud circulation pit, fresh makeup waterpit, fresh mining water pit, completion/workover pit, basic sedimentpit, flare pit, non-commercial fluid recycling pit, or water condensatepit backfill the pit sooner than the time prescribed by clause (i)of this subparagraph if the director determines that oil and gas wastesor oil field fluids are likely to escape from the pit or that thepit is being used for improper storage or disposal of oil and gaswastes or oil field fluids.]

[(iv) Prior to backfilling any reserve pit, mud circulationpit, completion/workover pit, basic sediment pit, flare pit, non-commercialfluid recycling pit, or water condensate pit whose use or maintenanceis authorized by this paragraph, the person maintaining or using thepit shall, in a permitted manner or in a manner authorized by paragraph(3) of this subsection, dispose of all oil and gas wastes which arein the pit.]

[(I) Unless otherwise approved by the district directorafter a showing that the fluids will be confined in the pit at alltimes, all authorized pits shall be constructed, used, operated, andmaintained at all times outside of a 100-year flood plain as thatterm is defined in subsection (a) of this section. The operator mayrequest a hearing if the district director denies approval of therequest to construct a pit within a 100-year flood plain.]

[(II) In the event of an unauthorized discharge fromany pit authorized by this paragraph, the operator shall take anymeasures necessary to stop or control the discharge and report thedischarge to the district office as soon as possible.]

[(5) Responsibility for disposal.]

[(A) Permit required. No generator or receiver mayknowingly utilize the services of a carrier to transport oil and gaswastes if the carrier is required by this rule to have a permit totransport such wastes but does not have such a permit. No carriermay knowingly utilize the services of a second carrier to transportoil and gas wastes if the second carrier is required by this ruleto have a permit to transport such wastes but does not have such apermit. No generator or carrier may knowingly utilize the servicesof a receiver to store, handle, treat, reclaim, or dispose of oiland gas wastes if the receiver is required by statute or commissionrule to have a permit to store, handle, treat, reclaim, or disposeof such wastes but does not have such a permit. No receiver may knowinglyutilize the services of a second receiver to store, handle, treat,reclaim, or dispose of oil and gas wastes if the second receiver isrequired by statute or commission rule to have a permit to store,handle, treat, reclaim, or dispose of such wastes but does not havesuch a permit. Any person who plans to utilize the services of a carrieror receiver is under a duty to determine that the carrier or receiverhas all permits required by the Oil and Gas Division to transport,store, handle, treat, reclaim, or dispose of oil and gas wastes.]

[(B) Improper disposal prohibited. No generator, carrier,receiver, or any other person may improperly dispose of oil and gaswastes or cause or allow the improper disposal of oil and gas wastes.A generator causes or allows the improper disposal of oil and gaswastes if:]

[(i) the generator utilizes the services of a carrieror receiver who improperly disposes of the wastes; and]

[(ii) the generator knew or reasonably should haveknown that the carrier or receiver was likely to improperly disposeof the wastes and failed to take reasonable steps to prevent the improper disposal.]

[(6) Permits.]

[(A) Standards for permit issuance. A permit to maintainor use a pit for storage of oil field fluids or oil and gas wastesmay only be issued if the commission determines that the maintenanceor use of such pit will not result in the waste of oil, gas, or geothermalresources or the pollution of surface or subsurface waters. A permitto dispose of oil and gas wastes by any method, including disposalinto a pit, may only be issued if the commission determines that thedisposal will not result in the waste of oil, gas, or geothermal resourcesor the pollution of surface or subsurface water. A permit to maintainor use any unlined brine mining pit or any unlined pit, other thanan emergency saltwater storage pit, for storage or disposal of oilfield brines, geothermal resource waters, or other mineralized watersmay only be issued if the commission determines that the applicanthas conclusively shown that use of the pit cannot cause pollutionof surrounding productive agricultural land nor pollution of surfaceor subsurface water, either because there is no surface or subsurfacewater in the area of the pit, or because the surface or subsurfacewater in the area of the pit would be physically isolated by naturallyoccurring impervious barriers from any oil and gas wastes which mightescape or migrate from the pit. Permits issued pursuant to this paragraphwill contain conditions reasonably necessary to prevent the wasteof oil, gas, or geothermal resources and the pollution of surfaceand subsurface waters. A permit to maintain or use a pit will statethe conditions under which the pit may be operated, including theconditions under which the permittee shall be required to dewater,backfill, and compact the pit. Any permits issued pursuant to thisparagraph may contain requirements concerning the design and constructionof pits and disposal facilities, including requirements relating topit construction materials, dike design, liner material, liner thickness,procedures for installing liners, schedules for inspecting and/orreplacing liners, overflow warning devices, leak detection devices,and fences. However, a permit to maintain or use any lined brine miningpit or any lined pit for storage or disposal of oil field brines,geothermal resource waters, or other mineralized waters will containrequirements relating to liner material, liner thickness, proceduresfor installing liners, and schedules for inspecting and/or replacing liners.]

[(B) Application. An application for a permit to maintainor use a pit or to dispose of oil and gas wastes shall be filed withthe commission in Austin. The applicant shall mail or deliver a copyof the application to the appropriate district office on the sameday the original application is mailed or delivered to the commissionin Austin. A permit application shall be considered filed with thecommission on the date it is received by the commission in Austin.When a commission-prescribed application form exists, an applicantshall make application on the prescribed form according to the instructionson such form. The director may require the applicant to provide thecommission with engineering, geological, or other information whichthe director deems necessary to show that issuance of the permit willnot result in the waste of oil, gas, or geothermal resources or thepollution of surface or subsurface water.]

[(C) Notice. The applicant shall give notice of thepermit application to the surface owners of the tract upon which thepit will be located or upon which the disposal will take place. Whenthe tract upon which the pit will be located or upon which the disposalwill take place lies within the corporate limits of an incorporatedcity, town, or village, the applicant shall also give notice to thecity clerk or other appropriate official. Where disposal is to beby discharge into a watercourse other than the Gulf of Mexico or abay, the applicant shall also give notice to the surface owners ofeach waterfront tract between the discharge point and 1/2 mile downstreamof the discharge point except for those waterfront tracts within thecorporate limits of an incorporated city, town, or village. When oneor more waterfront tracts within 1/2 mile of the discharge point liewithin the corporate limits of an incorporated city, town, or village,the applicant shall give notice to the city clerk or other appropriateofficial. Notice of the permit application shall consist of a copyof the application together with a statement that any protest to theapplication should be filed with the commission within 15 days ofthe date the application is filed with the commission. The applicantshall mail or deliver the required notice to the surface owners andthe city clerk or other appropriate official on or before the datethe application is mailed or delivered to the commission in Austin.If, in connection with a particular application, the director determinesthat another class of persons, such as offset operators, adjacentsurface owners, or an appropriate river authority, should receivenotice of the application, the director may require the applicantto mail or deliver notice to members of that class. If the directordetermines that, after diligent efforts, the applicant has been unableto ascertain the name and address of one or more persons requiredby this subparagraph to be notified, then the director may authorizethe applicant to notify such persons by publishing notice of the application.The director shall determine the form of the notice to be published.The notice shall be published once each week for two consecutive weeksby the applicant in a newspaper of general circulation in the countywhere the pit will be located or the disposal will take place. Theapplicant shall file proof of publication with the commission in Austin.The director will consider the applicant to have made diligent effortsto ascertain the names and addresses of surface owners required bythis subparagraph to be notified if the applicant has examined thecurrent county tax rolls and investigated other reliable and readilyavailable sources of information.]

[(D) Protests and hearings. If a protest from an affectedperson is made to the commission within 15 days of the date the applicationis filed, then a hearing shall be held on the application after theapplicant requests a hearing. If the director has reason to believethat a person entitled to notice of an application has not receivedsuch notice within 15 days of the date an application is filed withthe commission, then the director shall not take action on the applicationuntil reasonable efforts have been made to give such person noticeof the application and an opportunity to file a protest to the application.If the director determines that a hearing is in the public interest,a hearing shall be held. A hearing on an application shall be heldafter the commission provides notice of hearing to all affected persons,or other persons or governmental entities who express an interestin the application in writing. If no protest from an affected personis received by the commission, the director may administratively approvethe application. If the director denies administrative approval, theapplicant shall have a right to a hearing upon request. After hearing,the hearings examiner shall recommend a final action by the commission.]

[(E) Modification, suspension, and termination. A permitgranted pursuant to this subsection, may be modified, suspended, orterminated by the commission for good cause after notice and opportunityfor hearing. A finding of any of the following facts shall constitutegood cause:]

[(i) pollution of surface or subsurface water is occurringor is likely to occur as a result of the permitted operations;]

[(ii) waste of oil, gas, or geothermal resources isoccurring or is likely to occur as a result of the permitted operations;]

[(iii) the permittee has violated the terms and conditionsof the permit or commission rules;]

[(iv) the permittee misrepresented any material factduring the permit issuance process;]

[(v) the permittee failed to give the notice requiredby the commission during the permit issuance process;]

[(vi) a material change of conditions has occurredin the permitted operations, or the information provided in the applicationhas changed materially.]

[(F) Emergency permits. If the director determinesthat expeditious issuance of the permit will prevent or is likelyto prevent the waste of oil, gas, or geothermal resources or the pollutionof surface or subsurface water, the director may issue an emergencypermit. An application for an emergency permit to use or maintaina pit or to dispose of oil and gas wastes shall be filed with thecommission in the appropriate district office. Notice of the applicationis not required. If warranted by the nature of the emergency, thedirector may issue an emergency permit based upon a verbal application,or the director may verbally authorize an activity before issuinga written permit authorizing that activity. An emergency permit isvalid for up to 30 days, but may be modified, suspended, or terminatedby the director at any time for good cause without notice and opportunityfor hearing. Except when the provisions of this subparagraph are tothe contrary, the issuance, denial, modification, suspension, or terminationof an emergency permit shall be governed by the provisions of subparagraphs(A) - (E) of this paragraph.]

[(G) Minor permits. If the director determines thatan application is for a permit to store only a minor amount of oilfield fluids or to store or dispose of only a minor amount of oiland gas waste, the director may issue a minor permit provided thepermit does not authorize an activity which results in waste of oil,gas, or geothermal resources or pollution of surface or subsurfacewater. An application for a minor permit shall be filed with the commissionin the appropriate district office. Notice of the application shallbe given as required by the director. The director may determine thatnotice of the application is not required. A minor permit is validfor 60 days, but a minor permit which is issued without notice ofthe application may be modified, suspended, or terminated by the directorat any time for good cause without notice and opportunity for hearing.Except when the provisions of this subparagraph are to the contrary,the issuance, denial, modification, suspension, or termination ofa minor permit shall be governed by the provisions of subparagraphs(A) - (E) of this paragraph.]

[(7) Recycling.]

[(A) Prohibited recycling. Except for those recyclingmethods authorized for certain wastes by subparagraph (B) of thisparagraph, no person may recycle any oil and gas wastes by any methodwithout obtaining a permit.]

[(B) Authorized recycling.]

[(i) No permit is required if treated fluid is recycledfor use as makeup water for a hydraulic fracturing fluid treatment(s),or as another type of oilfield fluid to be used in the wellbore ofan oil, gas, geothermal, or service well.]

[(ii) Treated fluid may be reused in any other manner,other than discharge to waters of the state, without a permit fromthe Commission, provided the reuse occurs pursuant to a permit issuedby another state or federal agency.]

[(iii) If treatment of the fluid results in distilledwater, no permit is required to use the resulting distilled waterin any manner other than discharge to waters of the state.]

[(iv) Fluid that meets the requirements of clause (i),(ii), or (iii) of this subparagraph is a recyclable product.]

[(C) Permitted recycling.]

[(i) Treated fluid may be reused in any manner, otherthan the manner authorized by subparagraph (B) of this paragraph,pursuant to a permit issued by the director on a case-by-case basis,taking into account the source of the fluids, the anticipated constituentsof concern, the volume of fluids, the location, and the proposed reuseof the treated fluids. Fluid that meets the requirements of a permitissued under this clause is a recyclable product.]

[(ii) All commercial recycling requires the commercialrecycler of the oil and gas waste to obtain a permit in accordancewith Chapter 4, Subchapter B of this title (relating to Commercial Recycling).]

[(8) Used oil. Used oil as defined in §3.98 ofthis title, shall be managed in accordance with the provisions of40 CFR, Part 279.]

[(e) Pollution prevention (referenceOrder Number 20-59,200, effective May 1, 1969).]

[(1) The operator shall not pollute the waters of theTexas offshore and adjacent estuarine zones (saltwater bearing bays,inlets, and estuaries) or damage the aquatic life therein.]

[(2) All oil, gas, and geothermal resource well drillingand producing operations shall be conducted in such a manner to precludethe pollution of the waters of the Texas offshore and adjacent estuarinezones. Particularly, the following procedures shall be utilized toprevent pollution.]

[(A) The disposal of liquid waste material into theTexas offshore and adjacent estuarine zones shall be limited to saltwaterand other materials which have been treated, when necessary, for theremoval of constituents which may be harmful to aquatic life or injuriousto life or property.]

[(B) No oil or other hydrocarbons in any form or combinationwith other materials or constituent shall be disposed of into theTexas offshore and adjacent estuarine zones.]

[(C) All deck areas on drilling platforms, barges,workover unit, and associated equipment both floating and stationarysubject to contamination shall be either curbed and connected by drainto a collecting tank, sump, or enclosed drilling slot in which thecontainment will be treated and disposed of without causing hazardor pollution; or else drip pans, or their equivalent, shall be placedunder any equipment which might reasonably be considered a sourcefrom which pollutants may escape into surrounding water. These drippans must be piped to collecting tanks, sumps, or enclosed drillingslots to prevent overflow or prevent pollution of the surrounding water.]

[(D) Solid combustible waste may be burned and theashes may be disposed of into Texas offshore and adjacent estuarinezones. Solid wastes such as cans, bottles, or any form of trash mustbe transported to shore in appropriate containers. Edible garbage,which may be consumed by aquatic life without harm, may be disposedof into Texas offshore and adjacent estuarine zones.]

[(E) Drilling muds which contain oil shall be transportedto shore or a designated area for disposal. Only oil-free cuttingand fluids from mud systems may be disposed of into Texas offshoreand adjacent estuarine zones at or near the surface.]

[(F) Fluids produced from offshore wells shall be mechanicallycontained in adequately pressure-controlled piping or vessels fromproducing well to disposition point. Oil and water separation facilitiesat offshore and onshore locations shall contain safeguards to preventemission of pollutants to the Texas offshore and adjacent estuarinezones prior to proper treatment.]

[(G) All deck areas on producing platforms subjectto contamination shall be either curbed and connected by drain toa collecting tank or sump in which the containment will be treatedand disposed of without causing hazard or pollution, or else drippans, or their equivalent, shall be placed under any equipment whichmight reasonably be considered a source from which pollutants mayescape into surrounding water. These drip pans must be piped to collectingtanks or sumps designed to accommodate all reasonably expected drainage.Satisfactory means must be provided to empty the sumps to prevent overflow.]

[(H) Any person observing water pollution shall reportsuch sighting, noting size, material, location, and current conditionsto the ranking operating personnel. Immediate action or notificationshall be made to eliminate further pollution. The operator shall thentransmit the report to the appropriate commission district office.]

[(I) Immediate corrective action shall be taken inall cases where pollution has occurred. An operator responsible forthe pollution shall remove immediately such oil, oil field waste,or other pollution materials from the waters and the shoreline whereit is found. Such removal operations will be at the expense of theresponsible operator.]

[(3) The commission may suspend producing and/or drillingoperations from any facility when it appears that the provisions ofthis rule are being violated.]

[(4) (Reference Order Number 20-60,214, effective October1, 1970.) The foregoing provisions of Rule 8(D) shall also be requiredand enforced as to all oil, gas, or geothermal resource operationsconducted on the inland and fresh waters of the State of Texas, suchas lakes, rivers, and streams.]

[(f) Oil and gas waste haulers.]

[(1) A person who transports oil and gas waste forhire by any method other than by pipeline shall not haul or disposeof oil and gas waste off a lease, unit, or other oil or gas propertywhere it is generated unless such transporter has qualified for andbeen issued an oil and gas waste hauler permit by the commission.Hauling of inert waste, asbestos-containing material regulated underthe Clean Air Act (42 USC §§7401 et seq), polychlorinatedbiphenyl (PCB) waste regulated under the Toxic Substances ControlAct (15 USCA §§2601 et seq), or hazardous oil and gas wastesubject to regulation under §3.98 of this title is excluded fromthis subsection. This subsection is not applicable to the non-commercialhauling of oil and gas wastes for non-commercial recycling. For purposesof this subsection, injection of salt water or other oil and gas wasteinto an oil and gas reservoir for purposes of enhanced recovery doesnot qualify as recycling.]

[(A) Application for an oil and gas waste hauler permitwill be made on the commission-prescribed form, and in accordancewith the instructions thereon, and must be accompanied by:]

[(i) the permit application fee required by §3.78of this title (relating to Fees and Financial Security Requirements)(Statewide Rule 78);]

[(ii) vehicle identification information to supportcommission issuance of an approved vehicle list;]

[(iii) an affidavit from the operator of each commission-permitteddisposal system the hauler intends to use stating that the haulerhas permission to use the system; and]

[(iv) a certification by the hauler that the vehicleslisted on the application are designed so that they will not leakduring transportation. The certification shall include a statementthat vehicles used to haul non-solid oil and gas waste shall be designedto transport non-solid oil and gas wastes, and shall be operated andmaintained to prevent the escape of oil and gas waste.]

[(B) An oil and gas waste hauler permit may be issuedfor a term not to exceed one year, subject to renewal by the filingof an application for permit renewal and the required applicationfee for the next permit period. The term of an oil and gas waste haulerpermit will be established in accordance with a schedule prescribedby the director to allow for the orderly and timely renewal of oiland gas waste hauler permits on a staggered basis.]

[(C) Each oil and gas waste hauler shall operate instrict compliance with the instructions and conditions stated on thepermit which provide:]

[(i) This permit, unless suspended or revoked for causeshown, shall remain valid until the expiration date specified in this permit.]

[(ii) Each vehicle used by a permittee shall be markedon both sides and the rear with the permittee's name and permit numberin characters not less than three inches high. (For the purposes ofthis permit, "vehicle" means any truck tank, trailer tank, tank car,vacuum truck, dump truck, garbage truck, or other container in whichoil and gas waste will be hauled by the permittee.)]

[(iii) Each vehicle must carry a copy of the permitincluding those parts of the commission-issued attachments listingapproved vehicles and commission-permitted disposal systems that arerelevant to that vehicle's activities. This permit authority is limitedto those vehicles shown on the commission-issued list of approved vehicles.]

[(iv) This permit is issued pursuant to the informationfurnished on the application form, and any change in conditions mustbe reported to the commission on an amended application form. Thepermit authority will be revised as required by the amended application.]

[(v) This permit authority is limited to hauling, handling,and disposal of oil and gas waste.]

[(vi) This permit authorizes the permittee to use commission-permitteddisposal systems for which the permittee has submitted affidavitsfrom the disposal system operators stating that the permittee haspermission to use the systems. These disposal systems are listed asan attachment to the permit. This permit also authorizes the permitteeto use a disposal system operated under authority of a minor permitissued by the commission without submitting an affidavit from thedisposal system operator. In addition, this permit authorizes thepermittee to transport hazardous oil and gas waste to any facilityin accordance with the provisions of §3.98 of this title, providedthe shipment is accompanied by a manifest. Finally, this permit authorizesthe transportation of oil and gas waste to a disposal facility permittedby another agency or another state provided the commission has grantedseparate authorization for the disposal.]

[(vii) The permittee must file an application for arenewal permit, using the permittee's assigned permit number, beforethe expiration date specified in this permit.]

[(viii) The permittee must compile and keep currenta list of all persons by whom the permittee is hired to haul and disposeof oil and gas waste, and furnish such list to the commission upon request.]

[(ix) Each vehicle must be operated and maintainedin such a manner as to prevent spillage, leakage, or other escapeof oil and gas waste during transportation. Vehicles used to haulnon-solid oil and gas waste shall be designed to transport non-solidoil and gas wastes, and shall be operated and maintained to preventthe escape of oil and gas waste.]

[(x) Each vehicle must be made available for inspectionupon request by commission personnel.]

[(2) A record shall be kept by each oil and gas wastehauler showing daily oil and gas waste hauling operations under thepermitted authority.]

[(A) Such daily record shall be dated and signed bythe vehicle driver and shall show the following information:]

[(i) identity of the property from which the oil andgas waste is hauled;]

[(ii) identity of the disposal system or commercialrecycling facility to which the oil and gas waste is delivered;]

[(iii) the type and volume of oil and gas waste receivedby the hauler at the property where it was generated; and]

[(iv) the type and volume of oil and gas waste transportedand delivered by the hauler to the disposal system or commercial recycling facility.]

[(B) Such record shall be kept open for the inspectionof the commission or its representatives.]

[(C) Such record shall be kept on file for a periodof three years from the date of operation and recordation.]

[(g) Recordkeeping.]

[(1) Oil and gas waste. When oil and gas waste is hauledby vehicle from the lease, unit, or other oil or gas property whereit is generated to an off-lease disposal or recycling facility, theperson generating the oil and gas waste shall keep, for a period ofthree years from the date of generation, the following records:]

[(A) identity of the property from which the oil andgas waste is hauled;]

[(B) identity of the disposal system or recycling facilityto which the oil and gas waste is delivered;]

[(C) name and address of the hauler, and permit number(WHP number) if applicable; and]

[(D) type and volume of oil and gas waste transportedeach day to disposal or recycling.]

[(2) Retention of run tickets. A person may complywith the requirements of paragraph (1) of this subsection by retainingrun tickets or other billing information created by the oil and gaswaste hauler, provided the run tickets or other billing informationcontain all the information required by paragraph (1) of this subsection.]

[(3) Examination and reporting. The person keepingany records required by this subsection shall make the records availablefor examination and copying by members and employees of the commissionduring reasonable working hours. Upon request of the commission, theperson keeping the records shall file such records with the commission.]

[(h) Penalties. Violations of thissection may subject a person to penalties and remedies specified inthe Texas Natural Resources Code, Title 3, and any other statutesadministered by the commission. The certificate of compliance forany oil, gas, or geothermal resource well may be revoked in the mannerprovided in §3.73 of this title (relating to Pipeline Connection;Cancellation of Certificate of Compliance; Severance) (Rule 73) orviolation of this section.]

[(i) Coordination between the RailroadCommission of Texas and the Texas Commission on Environmental Qualityor its successor agencies. The Railroad Commission and the Texas Commissionon Environmental Quality both have adopted by rule a memorandum ofunderstanding regarding the division of jurisdiction between the agenciesover wastes that result from, or are related to, activities associatedwith the exploration, development, and production of oil, gas, orgeothermal resources, and the refining of oil. The memorandum of understandingis adopted in §3.30 of this title (relating to Memorandum ofUnderstanding between the Railroad Commission of Texas (RRC) and theTexas Commission on Environmental Quality (TCEQ)).]

[(j) Consistency with the Texas CoastalManagement Program. The provisions of this subsection apply only toactivities that occur in the coastal zone and that are subject tothe CMP rules.]

[(1) Specific Policies.]

[(A) Disposal of Oil and Gas Waste in Pits. The followingprovisions apply to oil and gas waste disposal pits located in thecoastal zone:]

[(i) no commercial oil and gas waste disposal pit constructedafter the effective date of this subsection shall be located in any CNRA; and]

[(ii) all oil and gas waste disposal pits shall bedesigned to prevent releases of pollutants that adversely affect coastalwaters or critical areas.]

[(B) Discharge of Oil and Gas Waste to Surface Waters.The following provisions apply to discharges of oil and gas wastethat occur in the coastal zone:]

[(i) no discharge of oil and gas waste to surface watersmay cause a violation of the Texas Surface Water Quality Standardsadopted by the Texas Commission on Environmental Quality or its successoragencies and codified at Title 30, Texas Administrative Code, Chapter 307;]

[(ii) in determining whether any permit to dischargeoil and gas waste that is comprised, in whole or in part, of producedwater is consistent with the goals and policies of the CMP, the commissionshall consider the effects of salinity from the discharge;]

[(iii) to the greatest extent practicable, in the caseof any oil and gas exploration, production, or development operationfrom which an oil and gas waste discharge commences after the effectivedate this subsection, the outfall for the discharge shall not be locatedwhere the discharge will adversely affect any critical area;]

[(iv) in the case of any oil and gas exploration, production,or development operation with an oil and gas waste discharge permittedprior to the effective date of this subsection that adversely affectsany critical area, the outfall for the discharge shall either:]

[(I) be relocated within two years after the effectivedate of this subsection, so that, to the greatest extent practicable,the discharge does not adversely affect any critical area; or]

[(II) the discharge shall be discontinued; and]

[(v) the commission shall notify the Texas Commissionon Environmental Quality or its successor agencies and the Texas Parksand Wildlife Department upon receipt of an application for a permitto discharge oil and gas waste that is comprised, in whole or in part,of produced waters to waters under tidal influence.]

[(C) Development in Critical Areas. The provisionsof this subparagraph apply to issuance under §401 of the federalClean Water Act, United States Code, Title 33, §1341, of certificationsof compliance with applicable water quality requirements for federalpermits authorizing development affecting critical areas. Prior toissuing any such certification, the commission shall confirm thatthe requirements of Title 31, Texas Administrative Code, §501.14(h)(1)(A)- (G), have been satisfied. The commission shall coordinate its effortsunder this subparagraph with those of other appropriate state andfederal agencies.]

[(D) Dredging and Dredged Material Disposal and Placement.The provisions of this subparagraph apply to issuance under §401of the federal Clean Water Act, United States Code, Title 33, §1341,of certifications of compliance with applicable water quality requirementsfor federal permits authorizing dredging and dredged material disposaland placement in the coastal zone. Prior to issuing any such certification,the commission shall confirm that the requirements of Title 31, TexasAdministrative Code, §501.14(j), have been satisfied.]

[(2) Consistency Determinations. The provisions ofthis paragraph apply to issuance of determinations required underTitle 31, Texas Administrative Code, §505.30 (Agency ConsistencyDetermination), for the following actions listed in Title 31, TexasAdministrative Code, §505.11(a)(3): permits to dispose of oiland gas waste in a pit; permits to discharge oil and gas wastes tosurface waters; and certifications of compliance with applicable waterquality requirements for federal permits for development in criticalareas and dredging and dredged material disposal and placement inthe coastal area.]

[(A) The commission shall issue consistency determinationsunder this paragraph as an element of the permitting process for permitsto dispose of oil and gas waste in a pit and permits to dischargeoil and gas waste to surface waters.]

[(B) Prior to issuance of a permit or certificationcovered by this paragraph, the commission shall determine if the proposedactivity will have a direct and significant adverse effect on anyCNRA identified in the provisions of paragraph (1) of this subsectionthat are applicable to such activity.]

[(i) If the commission determines that issuance ofa permit or a certification covered by this paragraph would not resultin direct and significant adverse effects to any CNRA identified inthe provisions of paragraph (1) of this subsection that are applicableto the proposed activity, the commission shall issue a written determinationof no direct and significant adverse effect which shall read as follows:"The Railroad Commission has reviewed this proposed action for consistencywith the Coastal Management Program (CMP) goals and policies, andhas found that the proposed action will not have a direct and significantadverse affect on any coastal natural resource area (CNRA) identifiedin the applicable policies."]

[(ii) If the commission determines that issuance ofa permit or certification covered by this paragraph would result indirect and significant adverse affects to a CNRA identified in theprovisions of paragraph (1) of this subsection that are applicableto the proposed activity, the commission shall determine whether theproposed activity would meet the applicable requirements of paragraph(1) of this subsection.]

[(I) If the commission determines that the proposedactivity would meet the applicable requirements of paragraph (1) ofthis subsection, the commission shall issue a written consistencydetermination which shall read as follows: "The Railroad Commissionhas reviewed this proposed action for consistency with the Texas CoastalManagement Program (CMP) goals and policies, and has determined thatthe proposed action is consistent with the applicable CMP goals and policies."]

[(II) If the commission determines that the proposedactivity would not meet the applicable requirements of paragraph (1)of this subsection, the commission shall not issue the permit or certification.]

[(3) Thresholds for Referral. Any commission actionthat is not identified in this paragraph shall be deemed not to exceedthresholds for referral for purposes of the CMP rules. Pursuant toTitle 31, Texas Administrative Code, §505.32 (Requirements forReferral of an Individual Agency Action), the thresholds for referralof consistency determinations issued by the commission are as follows:]

[(A) for oil and gas waste disposal pits, any permitto construct a pit occupying five acres or more of any CNRA that hasbeen mapped or that may be readily determined by a survey of the site;]

[(B) for discharges, any permit to discharge oil andgas waste consisting, in whole or in part, of produced waters intotidally influenced waters at a rate equal to or greater than 100,000gallons per day;]

[(C) for certification of federal permits for developmentin critical areas:]

[(i) in the bays and estuaries between Pass Cavalloin Matagorda Bay and the border with the Republic of Mexico, any certificationof a federal permit authorizing disturbance of:]

[(I) ten acres or more of submerged aquatic vegetationor tidal sand or mud flats; or]

[(II) five acres or more of any other critical area; and]

[(ii) in all areas within the coastal zone other thanthe bays and estuaries between Pass Cavallo in Matagorda Bay and theborder with the Republic of Mexico, any certification of a federalpermit authorizing disturbance of five acres or more of any critical area;]

[(D) for certification of federal permits for dredgingand dredged material disposal or placement, certification of a permitauthorizing removal of more than 10,000 cubic yards of dredged materialfrom a critical area.]

§3.14.Plugging.

(a) - (c) (No change.)

(d) General plugging requirements.

(1) - (11) (No change.)

(12) The operator shall fill the rathole, mouse hole,and cellar, and shall empty all tanks, vessels, related piping andflowlines that will not be actively used in the continuing operationof the lease within 120 days after plugging work is completed. Withinthe same 120 day period, the operator shall remove all such tanks,vessels, and related piping, remove all loose junk and trash fromthe location, and contour the location to discourage pooling of surfacewater at or around the facility site. The operator shall close allpits in accordance with the provisions of Chapter 4 of this title(relating to Environmental Protection), specifically Subchapter A(relating to Oil and Gas Waste Management) [§3.8 ofthis title (relating to Water Protection (Statewide Rule 8))].The district director or the director's delegate may grant a reasonableextension of time of not more than an additional 120 days for theremoval of tanks, vessels and related piping.

(e) - (k) (No change.)

§3.22.Protection of Birds.

(a) (No change.)

(b) An operator must screen, net, cover, or otherwiserender harmless to birds the following categories of open-top tanksand pits associated with the exploration, development, and productionof oil and gas, including transportation of oil and gas by pipeline:

(1) open-top storage tanks that are eight feet or greaterin diameter and contain a continuous or frequent surface film or accumulationof oil; however, temporary, portable storage tanks that are used tohold fluids during drilling operations, workovers, or well tests are exempt; and

(2) skimming pits or collecting pits that areused as skimming pits that are permitted under Chapter 4 of this title(relating to Environmental Protection), Subchapter A (relating toOil and Gas Waste Management). [as defined in §3.8of this title (relating to Water Protection) (Statewide Rule 8); and]

[(3) collecting pits as defined in§3.8 of this title (relating to Water Protection) that are usedas skimming pits.]

(c) If the commission finds a surface film or accumulationof oil in any other pit regulated under Chapter 4 of this title(relating to Environmental Protection), specifically Subchapter A(relating to Oil and Gas Waste Management) [§3.8 ofthis title (relating to Water Protection)], the commission willinstruct the operator to remove the oil. If the operator fails toremove the oil from the pit in accordance with the commission's instructionsor if the commission finds a surface film or accumulation of oil inthe pit again within a 12-month period, the commission will requirethe operator to screen, net, cover, or otherwise render the pit harmlessto birds. Before complying with this requirement, the operator willhave a right to a hearing upon request. In addition to the enforcementactions specified by this subsection, the commission may take anyother appropriate enforcement actions within its authority.

§3.30.Memorandum of Understanding betweenthe Railroad Commission of Texas (RRC) and the Texas Commission onEnvironmental Quality (TCEQ).

(a) (No change.)

(b) General agency jurisdictions.

(1) (No change.)

(2) Railroad Commission of Texas (RRC).

(A) Oil and gas waste.

(i) Under Texas Natural Resources Code, Title 3, andTexas Water Code, Chapter 26, wastes (both hazardous and nonhazardous)resulting from activities associated with the exploration, development,or production of oil or gas or geothermal resources, including storage,handling, reclamation, gathering, transportation, or distributionof crude oil or natural gas by pipeline, prior to the refining ofsuch oil or prior to the use of such gas in any manufacturing processor as a residential or industrial fuel, are under the jurisdictionof the RRC, except as noted in clause (ii) of this subparagraph. Thesewastes are termed "oil and gas wastes." In compliance with Texas Healthand Safety Code, §361.025 (relating to exempt activities), alist of activities that generate wastes that are subject to the jurisdictionof the RRC is found in §4.110 of this title (relating toDefinitions) [at §3.8(a)(30) of this title (relatingto Water Protection)] and at 30 TAC §335.1 (relating toDefinitions), which contains a definition of "activities associatedwith the exploration, development, and production of oil or gas orgeothermal resources." Under Texas Health and Safety Code, §401.415,the RRC has jurisdiction over the disposal of oil and gas naturallyoccurring radioactive material (NORM) waste that constitutes, is containedin, or has contaminated oil and gas waste.

(ii) (No change.)

(B) Water quality.

(i) (No change.)

(ii) Storm water. When required by federal law, authorizationfor storm water discharges that are under the jurisdiction of theRRC must be obtained through application for a National PollutantDischarge Elimination System (NPDES) permit with the EPA and authorizationfrom the RRC, as applicable.

(I) Storm water associated with industrial activities.Where required by federal law, discharges of storm water associatedwith facilities and activities under the RRC's jurisdiction must beauthorized by the EPA and the RRC, as applicable. Under 33 U.S.C.§1342(l)(2) and §1362(24), EPA cannot require a permit fordischarges of storm water from "field activities or operations associatedwith {oil and gas} exploration, production, processing, or treatmentoperations, or transmission facilities" unless the discharge is contaminatedby contact with any overburden, raw material, intermediate product,finished product, byproduct, or waste product located on the siteof the facility. Under Chapter 4 of this title (relating to EnvironmentalProtection), specifically Subchapter A (relating to Oil and Gas WasteManagement) [§3.8 of this title (relating to WaterProtection)], the RRC prohibits operators from causing or allowingpollution of surface or subsurface water. Operators are encouragedto implement and maintain Best Management Practices (BMPs) to minimizedischarges of pollutants, including sediment, in storm water to helpensure protection of surface water quality during storm events.

(II) Storm water associated with construction activities.Where required by federal law, discharges of storm water associatedwith construction activities under the RRC's jurisdiction must beauthorized by the EPA and the RRC, as applicable. Activities underRRC jurisdiction include construction of a facility that, when completed,would be associated with the exploration, development, or productionof oil or gas or geothermal resources, such as a well site; treatmentor storage facility; underground hydrocarbon or natural gas storagefacility; reclamation plant; gas processing facility; compressor station;terminal facility where crude oil is stored prior to refining andat which refined products are stored solely for use at the facility;a carbon dioxide geologic storage facility under the jurisdictionof the RRC; and a gathering, transmission, or distribution pipelinethat will transport crude oil or natural gas, including natural gasliquids, prior to refining of such oil or the use of the natural gasin any manufacturing process or as a residential or industrial fuel.The RRC also has jurisdiction over storm water from land disturbanceassociated with a site survey that is conducted prior to constructionof a facility that would be regulated by the RRC. Under 33 U.S.C.§1342(l)(2) and §1362(24), EPA cannot require a permit fordischarges of storm water from "field activities or operations associatedwith {oil and gas} exploration, production, processing, or treatmentoperations, or transmission facilities, including activities necessaryto prepare a site for drilling and for the movement and placementof drilling equipment, whether or not such field activities or operationsmay be considered to be construction activities" unless the dischargeis contaminated by contact with any overburden, raw material, intermediateproduct, finished product, byproduct, or waste product located onthe site of the facility. Under Chapter 4 of this title (relatingto Environmental Protection), specifically Subchapter A (relatingto Oil and Gas Waste Management) [§3.8 of this title(relating to Water Protection)], the RRC prohibits operatorsfrom causing or allowing pollution of surface or subsurface water.Operators are encouraged to implement and maintain BMPs to minimizedischarges of pollutants, including sediment, in storm water duringconstruction activities to help ensure protection of surface waterquality during storm events.

(III) - (IV) (No change.)

(iii) (No change.)

(C) (No change.)

(c) (No change.)

(d) Jurisdiction over waste from specific activities.

(1) - (10) (No change.)

(11) Commercial service company facilities and training facilities.

(A) - (D) (No change.)

(E) The RRC also has jurisdiction over wastes suchas vacuum truck rinsate and tank rinsate generated at facilities operatedby oil and gas waste haulers permitted by the RRC pursuant to Chapter4 of this title (relating to Environmental Protection), specificallySubchapter A (relating to Oil and Gas Waste Management) [§3.8(f)of this title (relating to Water Protection)].

(12) (No change.)

(e) - (g) (No change.)

§3.57.Reclaiming Tank Bottoms, Other Hydrocarbon Wastes, and Other Waste Materials.

Effective July 1, 2025, the requirements ofthis section are incorporated in Chapter 4 of this title (relatingto Environmental Protection), specifically Subchapter A (relatingto Oil and Gas Waste Management).

[(a) Applicability. This section isapplicable to reclamation of tank bottoms and other hydrocarbon wastesgenerated through activities associated with the exploration, development,and production (including transportation) of crude oil and other wastematerials containing oil, as those activities are defined in §3.8(a)(30)of this title (relating to Water Protection). The provisions of thissection shall not apply where tank bottoms or other hydrocarbon-bearingmaterials are recycled or processed on-site by the owner/custodianand are returned to a tank or vessel at the same lease or facility.This section is not applicable to the practice of recycling or reusingdrilling mud, except as to those hydrocarbons recovered from suchmud recycling and sent to a permitted reclamation plant.]

[(b) Definitions. The following wordsand terms, when used in this section, shall have the following meanings,unless the context clearly indicates otherwise.]

[(1) Tank bottoms--A mixture of crude oil or leasecondensate, water, and other substances that is concentrated at thebottom of producing lease tanks and pipeline storage tanks (commonlyreferred to as basic sediment and water or BS&W).]

[(2) Other hydrocarbon wastes--Oily waste materials,other than tank bottoms, which have been generated in connection withactivities associated with the exploration, development, and productionof oil or gas or geothermal resources, as those activities are definedin §3.8(a)(30) of this title (relating to Water Protection).The term "other hydrocarbon wastes" includes, but is not limited to,pit hydrocarbons, skim oil, spillage, and leakage of crude oil orcondensate from producing lease or pipeline storage tanks, and crudeoil or condensate associated with pipeline ruptures and other spills.]

[(3) Authorized person--A tank bottoms cleaner or transporterthat is under contract for disposition of untreated tank bottoms orother hydrocarbon wastes to a person who has obtained a permit tooperate a reclamation plant.]

[(4) Affected person--A person who has suffered orwill suffer actual injury or economic damage other than as a memberof the general public and includes surface owners of property on whicha reclamation plant is located and surface owners of adjoining properties.]

[(5) Director--The director of the Oil and Gas Divisionor a staff delegate designated in writing by the director of the Oiland Gas Division or the commission.]

[(c) Permitting process.]

[(1) Removal of tank bottoms or other hydrocarbon wastesfrom any producing lease tank, pipeline storage tank, or other productionfacility, for reclaiming by any person, is prohibited unless suchperson has either obtained a permit to operate a reclamation plant,or is an authorized person. Applicants for a reclamation plant operatingpermit shall file the appropriate form with the commission in Austin.]

[(2) The applicant shall give notice by mailing ordelivering a copy of the application to the county clerk of the countywhere the reclamation plant is to be located, and to the city clerkor other appropriate city official of any city where the reclamationplant is located within the corporate limits of the city, on or beforethe date the application is mailed to or filed with the commission.]

[(3) In order to give notice to other local governmentsand interested or affected persons, notice of the application shallbe published once by the applicant in a newspaper of general circulationfor the county where the reclamation plant is to be located, in aform approved by the commission. Publication shall occur on or beforethe date the application is mailed to or filed with the commission.The applicant shall file with the commission in Austin proof of publicationprior to the hearing or administrative approval.]

[(4) If a protest from an affected person or localgovernment is made to the commission within 15 days of receipt ofthe application or of publication, or if the commission determinesthat a hearing is in the public interest, then a hearing will be heldon the application after the commission provides notice of hearingto all affected persons, local governments, or other persons who expressan interest in writing in the application.]

[(5) If no protest from an affected person or localgovernment is received by the commission within the allotted time,the director may administratively approve the application. If thedirector denies administrative approval, the applicant shall havea right to a hearing upon request. After hearing, the examiner shallrecommend a final action by the commission.]

[(6) Applicants must demonstrate they are familiarwith commission rules and have the proper facilities to comply withthe rules.]

[(7) Except as provided in subparagraphs (A) and (B)of this paragraph, a permit to operate a reclamation plant shall remainin effect until canceled at the request of the operator. Existingpermits subject to annual renewal may be renewed so as to remain ineffect until canceled. Such renewal shall be subject to the requirementsof paragraph (10) of this subsection. A reclamation plant permit maybe canceled by the commission after notice and opportunity for hearing, if:]

[(A) the permitted facility has been inactive for 12 months; or]

[(B) there has been a violation, or a violation isthreatened, of any provision of the permit, the conservation lawsof the state, or rules or orders of the commission.]

[(8) If the operator objects to the cancellation, theoperator must file, within 15 days of the date shown on the notice,a written objection and request for a hearing to determine whetherthe permit should be canceled. If such written request is timely filed,the cancellation will be suspended until a final order is issued pursuantto the hearing. If such request is not received within the requiredtime period, the permit will be canceled. In the event of an emergencywhich presents an imminent pollution, waste, or public safety threat,the commission may suspend the permit until an order is issued pursuantto the hearing.]

[(9) A permit to operate a reclamation plant is nottransferable. A new permit must be obtained by the new operator.]

[(10) Reclamation plants permitted under this sectionshall file financial security as required under §3.78(l) of thistitle (relating to Fees and Financial Security Requirements).]

[(d) Operation of a reclamation plant.]

[(1) The following provisions apply to any removalof tank bottoms or other hydrocarbon wastes from any oil producinglease tank, pipeline storage tank, or other production facility.]

[(A) Notwithstanding the provisions of §3.85(a)(8)of this title (relating to Manifest To Accompany Each Transport ofLiquid Hydrocarbons by Vehicle), an operator of a reclamation plantor an authorized person shall execute a manifest in accordance with§3.85 of this title (relating to Manifest To Accompany Each Transportof Liquid Hydrocarbons by Vehicle), upon each removal of tank bottomsor other hydrocarbon wastes from any oil producing lease tank, pipelinestorage tank, or other production facility. In addition to the informationrequired pursuant to §3.85 of this title (relating to ManifestTo Accompany Each Transport of Liquid Hydrocarbons by Vehicle), theoperator of the reclamation plant or other authorized person shallalso include on the manifest:]

[(i) the commission identification number of the leaseor facility from which the material is removed; and]

[(ii) the gross and net volume of the material as determinedby the required shakeout test.]

[(B) The operator of the reclamation plant or otherauthorized person shall fill out the manifest before leaving the leaseor facility from which the liquid hydrocarbons are removed, and shallretain a copy on file for two years.]

[(C) The operator of the reclamation plant or otherauthorized person shall leave a copy of the manifest in the vehicletransporting the material.]

[(2) The operator of a reclamation plant or other authorizedperson shall conduct a shakeout (centrifuge) test on all tank bottomsor other hydrocarbon wastes upon removal from any producing leasetank, pipeline storage tank, or other production facility, to determinethe crude oil content and lease condensate thereof.]

[(3) The shakeout test shall be conducted in accordancewith the most current American Petroleum Institute or American Societyfor Testing Materials method.]

[(e) Reporting of reclaimed crudeoil or lease condensate on commission required report.]

[(1) For wastes taken to a reclamation plant the followingprovisions shall apply.]

[(A) The net crude oil content or lease condensatefrom a producing lease's tank bottom as indicated by the shakeouttest shall be used to calculate the amount of oil to be reported asa disposition on the monthly production report. The net amount ofcrude oil or lease condensate from tank bottoms taken from a pipelinefacility shall be reported as a delivery on the monthly transporter report.]

[(B) For other hydrocarbon wastes, the net crude oilcontent or lease condensate of the wastes removed from a tank, treater,firewall, pit, or other container at an active facility, includinga pipeline facility, shall also be reported as a disposition or deliveryfrom the facility.]

[(2) The net crude oil content or lease condensateof any tank bottoms or other hydrocarbon wastes removed from an activefacility, including a pipeline facility, and disposed of on-site ordelivered to a site other than a reclamation plant shall also be reportedas a delivery or disposition from the facility. All such disposalshall be in accordance with §§3.8, 3.9, and 3.46 of thistitle (relating to Water Protection; Disposal Wells; and Fluid Injectioninto Productive Reservoirs). Operators may be required to obtain aminor permit for such disposal using procedures set out in §3.8(d)and (g) of this title (relating to Water Protection). Prior to approvalof the minor permit, the commission may require an analysis of thedisposable material to be performed.]

[(f) General provisions applicable to materials taken to a reclamation plant.]

[(1) The removal of tank bottoms or other hydrocarbon wastes from any facility for which monthly reports are not filed with the commission must be authorized in writing by the commission prior to such removal. A written request for such authorization must be sent to the commission office in Austin, and must detail the location, description, estimated volume, and specific origin of the material to be removed, as well as the name of the reclaimer and intended destination of the material. If the authorization is denied, the applicant may request a hearing.]

[(2) The receipt of any tank bottoms or other hydrocarbon wastes from outside the State of Texas must be authorized in writingby the commission prior to such receipt. However, written approvalis not required if another entity will indicate, in the appropriatemonthly report, a corresponding delivery of the same material. Ifthe request is denied, the applicant may request a hearing.]

[(3) The receipt of any waste materials other thantank bottoms or other hydrocarbon wastes must be authorized in writingby the commission prior to such receipt. The commission may requirethe reclamation plant operator to submit an analysis of such wastematerials prior to a determination of whether to authorize such receipt.If the request is denied, the applicant may request a hearing.]

[(4) The operator of a reclamation plant shall filea report on the appropriate commission form for each reclamation plantfacility by the 15th day of each calendar month, covering the facility'sactivities for the previous month. The operator of a reclamation plantshall file a copy of the monthly report in the district office ofany district in which the operator made receipts or deliveries forthe month covered by the report.]

[(5) All wastes generated by reclaiming operationsshall be disposed of in accordance with §§3.8, 3.9, and3.46 of this title (relating to Water Protection; Disposal Wells;and Fluid Injection into Productive Reservoirs). No person conductingactivities subject to regulation by the commission may cause or allowpollution of surface or subsurface water in the state.]

[(g) Commission review of administrativeactions. Administrative actions performed by the director or commissionstaff pursuant to this rule are subject to review by the commissioners.]

[(h) Policy. The provisions of thisrule shall be administered so as to prevent waste and protect correlative rights.]

§3.91.Cleanup of Soil Contaminated by a Crude Oil Spill.

(a) (No change.)

(b) Scope. These cleanup standards and procedures applyto the cleanup of soil in non-sensitive areas contaminated by crudeoil spills from activities associated with the exploration, development,and production, including transportation, of oil or gas or geothermalresources as defined in §4.110 of this title (relating toDefinitions) [§3.8(a)(30) of this title (relatingto Water Protection)]. For the purposes of this section, crudeoil does not include hydrocarbon condensate. These standards and proceduresdo not apply to hydrocarbon condensate spills, crude oil spills insensitive areas, or crude oil spills that occurred prior to the effectivedate of this section. Cleanup requirements for hydrocarbon condensatespills and crude oil spills in sensitive areas will be determinedon a case-by-case basis. Cleanup requirements for crude oil contaminationthat occurred wholly or partially prior to the effective date of thissection will also be determined on a case-by-case basis. Where cleanuprequirements are to be determined on a case-by-case basis, the operatormust consult with the appropriate district office on proper cleanupstandards and methods, reporting requirements, or other special procedures.

(c) - (f) (No change.)

§3.98.Standards for Management of Hazardous Oil and Gas Waste.

(a) - (l) (No change.)

(m) Disposition of Hazardous Oil and Gas Waste.

(1) (No change.)

(2) Transport to Authorized Facility.

(A) Except as otherwise specifically provided in thissection and subject to all other applicable requirements of stateor federal law, a generator of hazardous oil and gas waste must sendhis or her waste to one of the following categories of facilitiesfor treatment, storage, disposal, recycling, or reclamation:

(i) - (v) (No change.)

(vi) if the waste is generated by a CESQG, a centralizedwaste collection facility (CWCF) that meets the requirements of paragraph(3) of this subsection [(m)(3) of this section].

(B) - (C) (No change.)

(D) For purposes of Chapter 4 of this title (relatingto Environmental Protection), specifically Subchapter A (relatingto Oil and Gas Waste Management) [§3.8(f)(1)(C)(vi)of this title (relating to Water Protection)], the manifestfor shipment of hazardous oil and gas waste to a designated facility(a facility designated on the manifest by the generator pursuant tothe provisions of subsection (o)(1) of this section) shall be deemedcommission authorization for disposal at a facility permitted by anotheragency or another state.

(3) (No change.)

(n) - (bb) (No change.)

The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.

Filed with the Office of the Secretary of State on August 15, 2024.

TRD-202403738

Haley Cochran

Assistant General Counsel, Office of the General Counsel

Railroad Commission of Texas

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 475-1295

The Railroad Commission of Texas (Commission) proposesamendments to §3.70, relating to Pipeline Permits Required, TheCommission proposes the amendments in §3.70 to align with changesproposed concurrently in Chapter 8, relating to Pipeline Safety Regulations,which incorporate federal requirements. The proposed amendments to§3.70 also remove dates from the rule that no longer apply andincorporate a procedure related to the Form T-4B.

The Commission proposes amendments in §3.70(i)(1)(A) and (B)to incorporate federal categories of pipelines and to clarify reportingrequirements. In the Commission's proposal to amend §8.1 of thistitle (relating to General Applicability and Standards), which isproposed concurrently with these amendments to §3.70, the Commissionproposes to incorporate minimum safety standards from the Pipelineand Hazardous Materials Safety Administration (PHSMA). PHMSA's standardsextend reporting requirements to all gas gathering operators and applya set of minimum safety requirements to certain gas gathering pipelineswith large diameters and high operating pressures. The proposed amendmentsto §3.70(i) incorporate federal pipeline classifications andensure gas gathering lines are regulated consistent with PHMSA's requirements.

The proposed amendments in subsection (i)(2) and (3) and subsection(j) remove dates that were included in the rule when the fees werefirst adopted.

The Commission proposes amendments in subsection (o) to clarifythe procedure for filing Form T-4B when the transferee operator isunable to obtain the signature of the transferor operator. This situationis addressed in the oil and gas context in §3.58 of this title(relating to Certificate of Compliance and Transportation Authority;Operator Reports) and the related Single-Signature Form P-4 process.The Commission proposes a similar process in subsection (o) becausethis situation also occurs with pipeline transfers.

The Commission proposes new subsection (r) to require updates inthe permitting system related to gas gathering pipelines, indicatingthe federal categories as proposed in subsection (i). The proposedamendments state that, beginning December 9, 2024, operators shallamend gas permits to include all gas gathering pipelines defined asType A, Type B, Type C, or Type R in 49 CFR §192.8. The permitamendments shall be filed on the Commission's online permitting systemby March 31, 2025. The Commission notes that the proposed dates ofDecember 9, 2024, and March 31, 2025, are based on the expected rulemakingschedule and these dates may be adjusted upon adoption.

Ms. Stephanie Weidman, Pipeline Safety Director, Oversight andSafety Division, has determined that for each year of the first fiveyears that the amendments will be in effect, there will be no additionalcost to state government as a result of enforcing and administeringthe amendments as proposed. There is also no fiscal effect on localgovernment. The Commission anticipates additional revenue from annualfees due to the proposed amendments as described in more detail below.

Ms. Weidman has determined that for each year of the first fiveyears the proposed amendments are in effect the primary public benefitwill be compliance with applicable federal law.

Ms. Weidman has determined that for each year of the first fiveyears that the proposed amendments will be in effect, certain personsrequired to comply as a result of adoption of the proposed amendmentswill incur economic costs. For operators with Type C pipeline facilities,the annual fee per mile will change from $10 per mile to $20 per mile.For other operators, there will be no economic impact. Based on datagathered as of the end of calendar year 2023, the Commission estimatesthat approximately 39,500 miles of Type C gathering lines will beimpacted by the fee increase. Therefore, the Commission will receiveadditional fee revenue of approximately $395,000. The fee increasefor operators of Type C facilities is prompted by PHMSA's recent regulationsfor these facilities, which were formerly not regulated.

Texas Government Code, §2006.002, relating to Adoption ofRules with Adverse Economic Effect, directs that, as part of the rulemakingprocess, a state agency prepare an economic impact statement thatassesses the potential impact of a proposed rule on rural communities,small businesses, and micro-businesses, and a regulatory flexibilityanalysis that considers alternative methods of achieving the purposeof the rule if the proposed rule will have an adverse economic effecton rural communities, small businesses, or micro-businesses. The proposedamendments will not have an adverse economic effect on rural communities,small businesses, or micro-businesses. Therefore, the regulatory flexibilityanalysis is not required.

The Commission has also determined that the proposed amendmentswill not affect a local economy. Therefore, the Commission has notprepared a local employment impact statement pursuant to Texas GovernmentCode §2001.022.

The Commission has determined that the proposed amendments do notmeet the statutory definition of a major environmental rule as setforth in Texas Government Code, §2001.0225(a); therefore, a regulatoryanalysis conducted pursuant to that section is not required.

During the first five years that the amendments would be in effect,the proposed amendments would not: create or eliminate a new governmentprogram or create a new regulation. The proposed amendments expandthe Commission's existing regulations to certain types of pipelinefacilities, consistent with federal requirements. The proposed amendmentsdo not require an increase in future legislative appropriations anddo not increase or decrease fees required to be paid to the Commissionfor most operators. As noted above, the proposed amendments increasefees from $10 per mile to $20 per mile for operators of Type C pipelinefacilities. The proposed amendments do not require the creation ofemployee positions or the elimination of existing employee positions.Finally, the proposed amendments would not affect the state's economy.As discussed above, the proposed amendments incorporate federal pipelinecategories, remove dates that no longer apply, and clarify the procedurefor a single-signature T-4B.

Comments on the proposed amendments may be submitted to Rules Coordinator,Office of General Counsel, Railroad Commission of Texas, P.O. Box12967, Austin, Texas 78711-2967; online at www.rrc.texas.gov/general-counsel/rules/comment-form-for-proposed-rulemakings;or by electronic mail to rulescoordinator@rrc.texas.gov. The Commissionwill accept comments until 5:00 p.m. on Monday, September 30, 2024.The Commission finds that this comment period is reasonable becausethe proposal and an online comment form will be available on the Commission'swebsite more than two weeks prior to TexasRegister publication of the proposal, giving interested personsadditional time to review, analyze, draft, and submit comments. TheCommission cannot guarantee that comments submitted after the deadlinewill be considered. For further information, call Ms. Weidman at (512)463-2519. The status of Commission rulemakings in progress is availableat www.rrc.texas.gov/general-counsel/rules/proposed-rules. Once received,all comments are posted on the Commission's website at https://rrc.texas.gov/general-counsel/rules/proposed-rules/.If you submit a comment and do not see the comment posted at thislink within three business days of submittal, please call the Officeof General Counsel at (512) 463-7149. The Commission has safeguardsto prevent emailed comments from getting lost; however, your operatingsystem's or email server's settings may delay or prevent receipt.

Statutory Authority: The Commission proposes the amendmentspursuant to Texas Natural Resources Code, §81.071, which authorizesthe Commission to establish pipeline safety and regulatory fees tobe assessed for permits or registrations for pipelines under the jurisdictionof the Commission's pipeline safety and regulatory program. Additionally,the Commission proposes the amendments pursuant to Texas Natural ResourcesCode §81.051 and §81.052, which provide the Commission withjurisdiction over all persons owning or operating pipelines in Texasand the authority to adopt all necessary rules for governing and regulatingpersons and their operations under the jurisdiction of the Commission;Texas Natural Resources Code §86.041 and §86.042, whichallow the Commission broad discretion in adopting rules to preventwaste in the piping and distribution of gas, require records to bekept and reports made, and provide for the issuance of permits andother evidences of permission; Texas Natural Resources Code §111.131and §111.132, which authorize the Commission to promulgate rulesfor the government and control of common carriers and public utilities;and Texas Utilities Code §§121.201 - 121.210, which authorizethe Commission to adopt safety standards and practices applicableto the transportation of gas and associated pipeline facilities withinTexas to the maximum degree permissible under, and to take any otherrequisite action in accordance with, 49 United States Code Annotated,§§60101, et seq. Texas Natural Resources Code §§81.051,81.052, 86.041, 86.042, 111.131, and 111.132; Texas Utilities Code, §§121.201- 121.210; and 49 United States Code Annotated, §§60101,et seq.

Cross-reference to statute: Texas Natural Resources Code, Chapter81, Chapter 86, and Chapter 111, and Texas Utilities Code, Chapter121; and 49 United States Code Annotated, Chapter 601.

§3.70.Pipeline Permits Required.

(a) Each operator of a pipeline or gathering system,other than an operator excluded under §8.1(b)(4) of this title(relating to General Applicability and Standards), subject to thejurisdiction of the Commission, shall obtain a pipeline permit, tobe renewed annually, from the Commission as provided in this rule.Production or flow lines that are subject to §8.1(a)(1)(B)and (D) [§8.1(a)(1)(B) and (a)(1)(D)] of thistitle must comply with this section. All other production or flowlines as defined in this subsection are exempt from complying withthis section. A production or flow line is piping used for productionoperations that generally occur upstream of gathering or other pipelinefacilities. For the purposes of this subsection, piping used in "productionoperations" means piping used for production and preparation for transportationor delivery of hydrocarbon gas and/or liquids, and includes the following processes:

(1) extraction and recovery, lifting, stabilization,treatment, separation, production processing, storage, and measurement; and

(2) associated production compression, gas lift, gasinjection, or fuel gas supply.

(b) To obtain a new pipeline permit or to amend a permitbecause of a change of classification, an operator shall file an applicationfor a pipeline permit on the Commission's online permitting system.The operator shall include or attach the following documentation and information:

(1) the contact information for the individual whocan respond to any questions concerning the pipeline's construction,operation or maintenance;

(2) the requested classification and purpose of thepipeline or pipeline system as a common carrier, a gas utility ora private line;

(3) a sworn statement from the pipeline applicant providingthe operator's factual basis supporting the classification and purposebeing sought for the pipeline, including, if applicable, an attestationto the applicant's knowledge of the eminent domain provisions in TexasProperty Code, Chapter 21, and the Texas Landowner's Bill of Rightsas published by the Office of the Attorney General of Texas; [and]

(4) documentation to provide support for the classificationand purpose being sought for the pipeline, if applicable; and

(5) any other information requested by the Commission.

(c) To renew an existing permit, to amend an existingpermit for any reason other than a change in classification, or tocancel an existing permit, an operator shall file an application fora pipeline permit on the Commission's online filing system. The operatorshall include or attach:

(1) the contact information for the individual whocan respond to any questions concerning the pipeline's construction,operation, or maintenance; change in operator or ownership; or otherchange including operator cessation of pipeline operation;

(2) a statement from the pipeline operator confirmingthe current classification and purpose of the pipeline or pipelinesystem as a common carrier, a gas utility or a private line, if applicable; and

(3) any other information requested by the Commission.

(d) Upon receipt of a complete permit application,the Commission has 30 calendar days to issue, amend, or deny the pipelinepermit as filed. If the Commission determines that the applicationis incomplete, the Commission shall promptly notify the applicantof the deficiencies and specify the additional information necessaryto complete the application. Upon receipt of a revised application,the Commission has 30 calendar days to determine if the applicationis complete and issue, amend, or deny the pipeline permit as filed.

(e) If the Commission is satisfied from the applicationand the documentation and information provided in support thereof,and its own review, that the proposed line is[,] or willbe laid, equipped, managed and operated in accordance with the lawsof the state and the rules and regulations of the Commission, thepermit may be granted. The pipeline permit, if granted, shall classifythe pipeline as a common carrier, a gas utility, or a private pipelinebased upon the information and documentation submitted by the applicantand the Commission's review of the application.

(f) This rule applies to applications made for newpipeline permits and to amendments, renewals, and cancellations ofexisting pipeline permits. The classification of a pipeline underthis rule applies to extensions, replacements, and relocations ofthat pipeline.

(g) The Commission may delegate the authority to administrativelyissue pipeline permits.

(h) The pipeline permit, if granted, shall be revocableat any time after a hearing, held after 10 days' notice, if the Commissionfinds that the pipeline is not being operated in accordance with thelaws of the state and the rules and regulations of the Commissionincluding if the permit is not renewed annually as required in subsection(a) of this section.

(i) Each pipeline operator shall pay an annual feebased on the pipeline operator's permitted mileage of pipeline notlater than [by August 31, 2018, for the initial year thatthe requirement is in effect, and by] April 1 of [for] each [subsequent] year.

(1) For purposes of calculating the mileage fee, theCommission will categorize pipelines into two groups.

(A) Group A includes transmission and gathering pipelinesthat are required by Commission rules to have a valid T-4 permit tooperate and are subject to the regulations in 49 CFR Parts 192 and195, such as natural gas transmission and storage pipelines, naturalgas gathering pipelines defined as Type A, Type B, or Type Cin 49 CFR §192.8, hazardous liquids transmission and storagepipelines, regulated rural [and] hazardous liquidsgathering pipelines under 49 CFR §195.11, and hazardousliquid low-stress rural pipelines under 49 CFR §195.12.

(B) Group B includes pipelines that are required byCommission rules to have a valid T-4 permit to operate but are onlysubject to the reporting requirements [not subject to theregulations] in 49 CFR Parts 191 [192]and 195 such as Type R gathering pipelines as definedin 49 CFR §192.8, and reporting-regulated-only gathering linesas defined in 49 CFR §195.15. [Group B also includesgathering pipelines required to comply with §8.110 of this title(relating to Gathering Pipelines).]

(2) An operator of a Group A pipeline shall pay anannual fee of $20 per mile of pipeline based on the number of milespermitted to that operator as of [June 29, 2018, for the initialyear that the requirement is in effect and as of] December 31 of [for] each [subsequent] year.

(3) An operator of a Group B pipeline shall pay anannual fee of $10 per mile of pipeline based on the number of milespermitted to that operator as of [June 29, 2018, for the initialyear that the requirement is in effect and as of] December 31 of [for] each [subsequent] year.

(4) Any pipeline distance that is a fraction of a milewill be considered as one mile and will be assessed a $20 or $10 fee,as appropriate.

(5) Fees due to the Commission for mileage transferredfrom one operator to another operator pursuant to subsection (o) ofthis section will be captured in the next mileage fee to be calculatedon the following December 31 and paid by the new operator.

(j) Each [Beginning October 1, 2018,each] pipeline operator shall pay a $500 permit processing feefor each new permit application and permit renewal.

[(1) From October 1, 2018, to August31, 2020, the permit renewal date for a pipeline operator who hasan existing, valid permit in the Commission's online filing systemwill be the date shown in the online filing system on June 29, 2018,when the pipeline mileage is calculated for purposes of paying themileage fee. A permit renewal date will not be affected or changedby an operator requesting or receiving a permit amendment.]

[(2)] Each operator [BeginningSeptember 1, 2020, operators] shall file the [their] annual renewals as follows:

(1) [(A)] Companies with namesbeginning with letters A through C shall file in February;

(2) [(B)] Companies with namesbeginning with letters D through E shall file in March;

(3) [(C)] Companies with namesbeginning with letters F through L shall file in April;

(4) [(D)] Companies with namesbeginning with letters M through P shall file in May;

(5) [(E)] Companies with namesbeginning with letters Q through T shall file in June; and

(6) [(F)] Companies with namesbeginning with letters U through Z and companies with names beginningwith numerical values or other symbols shall file in July.

(k) Each operator [Beginning September1, 2020, operators] shall comply with the following:

(1) If a permit is transferred, in the Commission fiscalyear of the transfer the acquiring operator shall renew that permitin its designated month pursuant to subsection (j) [(j)(2)] of this section. If the acquiring operator receives a transferredpermit in a Commission fiscal year and its renewal month has alreadypassed, the acquiring operator shall pay the renewal fee upon transfer.

(2) If an operator adds a new permit and pays the newpermit fee, the operator is not required to pay the renewal fee forthat permit in the same Commission fiscal year.

(3) If an operator adds a new permit after its renewalmonth has passed, the new permit shall be renewed the following Commissionfiscal year in the operator's designated month pursuant to subsection (j) [(j)(2)] of this section.

(l) A pipeline operator who fails to renew a permiton or before the renewal deadline which is the last day of the operator'srequired filing month as specified in subsection (j) of this sectionshall pay a late-filing fee as follows:

(1) $250, if the renewal application is received within30 calendar days after the renewal deadline date;

(2) $500, if the renewal application is received morethan 30 calendar days and no more than 60 calendar days after therenewal deadline date; and

(3) $700, if the renewal application is received morethan 60 calendar days after the renewal deadline date.

(4) If the renewal application is not received within90 calendar days of the renewal deadline date, the Commission mayassess a penalty and/or revoke the operator's permit in accordancewith subsection (h) of this section.

(m) A pipeline operator with a total mileage of 50miles or less of pipeline who fails to pay the annual mileage feeas specified in subsection (i) of this section shall pay a late-filingfee as follows:

(1) $125, if the fee is received within 30 calendardays of April 1;

(2) $250, if the fee is received more than 30 calendardays and no more than 60 calendar days after April 1; and

(3) $350, if the fee is received more than 60 calendardays after April 1.

(4) If the fee is not received within 90 calendar daysof April 1, the Commission may assess a penalty and/or revoke theoperator's permit in accordance with subsection (h) of this section.

(n) A pipeline operator with a total mileage of morethan 50 miles of pipeline who fails to pay the annual mileage feeshall pay a late-filing fee as follows:

(1) $250, if the fee is received within 30 calendardays of August 31 for the initial year that the requirement is ineffect and April 1 for each subsequent year;

(2) $500, if the fee is received more than 30 calendardays and no more than 60 calendar days after August 31 for the initialyear that the requirement is in effect and April 1 for each subsequentyear; and

(3) $700, if the fee is received more than 60 calendardays after August 31 for the initial year that the requirement isin effect and April 1 for each subsequent year.

(4) If the fee is not received within 90 calendar daysof August 31 for the initial year that the requirement is in effector April 1 for each subsequent year, the Commission may assess a penaltyand/or revoke the operator's permit in accordance with subsection(h) of this section.

(o) A pipeline operator who has been issued a permitand is transferring the pipeline or a portion of the pipeline includedon the permit to another operator shall file a notification of transferwith the Commission within 30 days following the transfer. Thetransferee and transferor operators [An operator] shall [may] file a fully executed Form T-4B as a notificationof transfer. The Commission may use a fully executed Form T-4B toremove the pipeline that is the subject of the transfer from the transferoroperator and assign the mileage to the transferee operator for calculationof the annual mileage fee. The transferee operator [towhich the pipeline has been transferred] shall amend its permitto include the pipeline or portion of the pipeline within 30 daysfollowing the Commission's approval of the transfer orthe operator may be subject to a penalty for operating without a permitpursuant to subsection (p) of this section.

(1) A transferee operator may filea Form T-4B signed only by the transferee operator as a notificationof transfer with the Commission only upon presenting to the Commissionfor its review, concurrently with Form T-4B:

(A) evidence that the transferee operator made a goodfaith effort to procure the transferor operator's signature; and

(B) documentation establishing that the transfereeoperator has a legal right to operate the pipeline.

(2) Prior to approving a single-signatureForm T-4B filed pursuant to paragraph (1) of this subsection, theCommission shall issue notice to the transferor operator, providingthe operator 15 days to contest the transfer and request a hearing.Upon receipt of a timely response requesting a hearing, the mattershall be referred to the Hearings Division for adjudication as a contested case.

(p) A pipeline operator who operates a pipeline withouta permit, with an expired permit, or who otherwise fails to complywith this section, may be assessed a penalty as prescribed in §8.135of this title (relating to Penalty Guidelines for Pipeline Safety Violations).

(q) Interstate pipelines are exempt from the fee requirementsof this section.

(r) Beginning December 9, 2024, operatorsshall comply with the following.

(1) All gas permits shall be amended to include allgas gathering pipelines defined as Type A, Type B, Type C, or TypeR in 49 CFR §192.8. The permit amendments shall be filed on theCommission's online permitting system by March 31, 2025. The amendmentshapefile shall indicate each segment as Type A, Type B, Type C, orType R, and include any other information requested by the Commission.

(2) A gas permit will not be eligible for renewal ifthe permit has not been amended by March 31, 2025, in accordance withparagraph (1) of this subsection. If the gas permit does not haveany gas gathering pipelines to be amended or added, the operator shallinclude with its 2025 renewal submission a statement on the submittedcover letter attesting to that fact. The Commission may request additionalinformation as necessary to confirm the statement.

The agency certifies that legal counsel hasreviewed the proposal and found it to be within the state agency'slegal authority to adopt.

Filed with the Office of the Secretary of State on August 15, 2024.

TRD-202403733

Haley Cochran

Assistant General Counsel, Office of General Counsel

Railroad Commission of Texas

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 475-1295

The Railroad Commission of Texas (Commission) proposes inChapter 4, new Subchapter A, relating to Oil and Gas Waste Management,which includes the following proposed new rules: In Division 1, General,the Commission proposes §4.101 (relating to Prevention of Pollution);§4.102 (relating to Responsibility for Oil and Gas Wastes); §4.103(relating to Prohibited Waste Management Methods); §4.104 (relatingto Coordination Between the Commission and Other Regulatory Agencies);§4.106 (relating to Fees); §4.107 (relating to Penalties);§4.108 (relating to Electronic Filing Requirements); and §4.109(relating to Exceptions). In Division 2, Definitions, the Commissionproposes §4.110 (relating to Definitions). In Division 3, OperationsAuthorized by Rule, the Commission proposes §4.111 (relatingto Authorized Disposal Methods for Certain Wastes); §4.112 (relatingto Authorized Recycling); §4.113 (relating to Authorized Pits);§4.114 (relating to Schedule A Authorized Pits); and §4.115(relating to Schedule B Authorized Pits). In Division 4, Requirementsfor All Permitted Waste Management Operations, the Commission proposes§4.120 (relating to General Requirements for All Permitted Operations);§4.121 (relating to Permit Term); §4.122 (relating to PermitRenewals, Transfers, and Amendments); §4.123 (relating to PermitModification, Suspension and Termination); §4.124 (relating toRequirements Applicable to All Permit Applications and Reports); §4.125(relating to Notice and Opportunity to Protest); §4.126 (relatingto Location and Real Property Information); §4.127 (relatingto Engineering and Geologic Information); §4.128 (relating toDesign and Construction); §4.129 (relating to Operation); §4.130(relating to Reporting); §4.131 (relating to Monitoring); §4.132(relating to Closure); §4.134 (relating to Application Reviewand Administrative Decision); and §4.135 (relating to Hearings.In Division 5, Additional Requirements for Commercial Facilities,the Commission proposes §4.140 (relating to Additional Requirementsfor Commercial Facilities); §4.141 (relating to Additional NoticeRequirements for Commercial Facilities); §4.142 (relating toOperating Requirements Applicable to Commercial Facilities); and §4.143(relating to Design and Construction Requirements for Commercial Facilities).In Division 6, Additional Requirements for Permitted Pits, the Commissionproposes §4.150 (relating to Additional Requirements Applicableto Permitted Pits); §4.151 (relating to Design and Constructionof Permitted Pits); §4.152 (relating to Monitoring of PermittedPits); §4.153 (relating to Commercial Disposal Pits); and §4.154(relating to Closure of Permitted Pits). In Division 7, AdditionalRequirements for Landfarming and Landtreating, the Commission proposes§4.160 (relating to Additional Requirements for Landfarming andLandtreating Permits); §4.161 (relating to Design and ConstructionRequirements for Landfarming and Landtreating Permits); §4.162(relating to Operating Requirements for Landfarming and LandtreatingPermits); §4.163 (relating to Monitoring); and §4.164 (relatingto Closure). In Division 8, Additional Requirements for ReclamationPlants, the Commission proposes §4.170 (relating to AdditionalRequirements for Reclamation Plants); §4.171 (relating to StandardPermit Provisions); §4.172 (relating to Minimum Permit Provisionsfor Operations); and §4.173 (relating to Minimum Permit Provisionsfor Reporting). In Division 9, Miscellaneous Permits, the Commissionproposes §4.180 (relating to Activities Permitted as MiscellaneousPermits); §4.181 (relating to Emergency Permits); §4.182(relating to Minor Permits); §4.184 (relating to Permitted Recycling);and §4.185 (relating to Pilot Programs). In Division 10, Requirementsfor Oil and Gas Waste Transportation, the Commission proposes §4.190(relating to Oil and Gas Waste Characterization and Documentation);§4.191 (relating to Oil and Gas Waste Manifests); §4.192(relating to Special Waste Authorization); §4.193 (relating toOil and Gas Waste Haulers); §4.194 (relating to Recordkeeping);and §4.195 (relating to Waste Originating Outside of Texas).In Division 11, Requirements for Surface Water Protection, the Commissionproposes §4.196 (relating to Surface Water Pollution Prevention)and §4.197 (relating to Consistency with the Texas Coastal Management Program).

The new rules are proposed to incorporate and update the requirementsfrom §3.8 of this title, relating to Water Protection, whichis proposed to be amended concurrently with the new rules and amendmentsin Chapter 4. The new subchapter also ensures Commission rules adhereto statutory changes made in recent legislative sessions.

The Commission also proposes amendments and new rules in SubchapterB, relating to Commercial Recycling, to incorporate legislative requirementsand make updates consistent with the new rules proposed in SubchapterA. The Commission proposes to amend the following rules in SubchapterB, Division 1: §4.201 (relating to Purpose), §4.202 (relatingto Applicability and Exclusions), §4.203 (relating to Responsibilityfor Management of Waste to be Recycled), §4.204 (relating toDefinitions), §4.205 (relating to Exceptions), §4.206 (relatingto Administrative Decision on Permit Application), §4.207 (relatingto Protests and Hearings), §4.208 (relating to General Standardsfor Permit Issuance), §4.209 (relating to Permit Renewal), and§4.211 (relating to Penalties); in Division 2, §4.212 (relatingto General Permit Application Requirements for On-Lease CommercialSolid Oil and Gas Waste Recycling Facilities), §4.213 (relatingto Minimum Engineering and Geologic Information), §4.214 (relatingto Minimum Design and Construction Information), §4.218 (relatingto General Permit Provisions for On-Lease Commercial Solid Oil andGas Waste Recycling), §4.219 (relating to Minimum Siting Information),§4.220 (relating to Minimum Permit Provisions for Design andConstruction), §4.221 (relating to Minimum Permit Provisionsfor Operations), §4.222 (relating to Minimum Permit Provisionsfor Monitoring), §4.223 (relating to Minimum Permit Provisionsfor Closure), and §4.224 (relating to Permit Renewal); in Division3, §4.230 (relating to General Permit Application Requirementsfor Off-Lease or Centralized Commercial Solid Oil and Gas Waste Recycling),§4.231 (relating to Minimum Engineering and Geologic Information),§4.232 (relating to Minimum Siting Information), §4.234(relating to Minimum Design and Construction Information), §4.238(relating to Notice), §4.239 (relating to General Permit Provisions),§4.240 (relating to Minimum Permit Provisions for Siting), §4.241relating to Minimum Permit Provisions for Design and Construction),§4.242 (relating to Minimum Permit Provisions for Operations),§4.243 (relating to Minimum Permit Provisions for Monitoring),and §4.245 (relating to Permit Renewal); in Division 4, §4.246(relating to General Permit Application Requirements for a StationaryCommercial Solid Oil and Gas Waste Recycling Facility), §4.247(relating to Minimum Engineering and Geologic Information), §4.248(relating to Minimum Siting Information), §4.250 (relating toMinimum Design and Construction Information), §4.251 (relatingto Minimum Operating Information), §4.254 (relating to Notice), §4.255(relating to General Permit Provisions), §4.256 (relating toMinimum Permit Provisions for Siting), §4.257 (relating to MinimumPermit Provisions for Design and Construction), §4.258 (relatingto Minimum Permit Provisions for Operations), §4.259 (relatingto Minimum Permit Provisions for Monitoring), and §4.261 (relatingto Permit Renewal); in Division 5, §4.262 (relating to GeneralPermit Application Requirements for Off-Lease Commercial Recyclingof Fluid), §4.263 (relating to Minimum Engineering and GeologicInformation), §4.264 (relating to Minimum Siting Information),§4.266 (relating to Minimum Design and Construction Information),§4.267 (relating to Minimum Operating Information), §4.268(relating to Minimum Monitoring Information), §4.269 (relatingto Minimum Closure Information), §4.270 (relating to Notice),§4.271 (relating to General Permit Provisions), §4.272 (relatingto Minimum Permit Provisions for Siting), §4.273 (relating toMinimum Permit Provisions for Design and Construction), §4.274(relating to Minimum Permit Provisions for Operations), §4.275(relating to Minimum Permit Provisions for Monitoring), §4.276(relating to Minimum Permit Provisions for Closure), and §4.277(relating to Permit Renewal); in Division 6, §4.278 (relatingto General Permit Application Requirements for a Stationary CommercialFluid Recycling Facility), §4.279 (relating to Minimum Engineeringand Geologic Information), §4.280 (relating to Minimum SitingInformation), §4.282 (relating to Minimum Design and ConstructionInformation), §4.283 (relating to Minimum Operating Information),§4.284 (relating to Minimum Monitoring Information), §4.285(relating to Minimum Closure Information), §4.286 (relating toNotice), §4.287 (relating to General Permit Provisions), §4.288(relating to Minimum Permit Provisions for Siting), §4.289 (relatingto Minimum Permit Provisions for Design and Construction), §4.290(relating to Minimum Permit Provisions for Operations), §4.291(relating to Minimum Permit Provisions for Monitoring), §4.292(relating to Minimum Permit Provisions for Closure), and §4.293(relating to Permit Renewal).

The Commission also proposes new §4.301 (relating to ActivitiesRelated to the Treatment and Recycling for Beneficial Use of DrillCuttings), and §4.302 (relating to Additional Permit Requirementsfor Activities Related to the Treatment and Recycling for BeneficialUse of Drill Cuttings) in new Division 7, Beneficial Use of Drill Cuttings.

The Commission proposes new Subchapter A to relocate and updatethe requirements in §3.8. Section 3.8 or "Statewide Rule 8" hasexisted in its current form since 1984 with only minor modificationssince then. Expectations for environmental protection have evolvedconsiderably over the past 40 years, and routine industry practiceshave changed significantly since the onset of shale extraction inthe early 2000s. Within the last several years, additional industrygrowth, new technological advancements, and innovative solutions forresource development challenged the flexibility of these historicregulations. For example, there is a rapidly evolving need to encouragethe treatment and recycling of produced water for beneficial useswithin the oil and gas industry and for novel beneficial uses outsideof the industry. The Legislature has directed the Commission to encouragefluid oil and gas waste recycling (House Bill 3516, 87th Legislature,2021), and it has also created the Texas Produced Water Consortium(Senate Bill 601, 87th Legislature, 2021) to make recommendationsto the Legislature on issues related to this potential activity. Already,many exploration and production operators and water midstream serviceproviders are investing in infrastructure and pilot studies to assessthe economic, logistical, environmental, and practical possibilitiesof produced water recycling. The Commission's rules need to addressand support these developments.

In addition to House Bill 3516, House Bill 2201 (87th Legislature,2021) directed the Commission to adopt rules governing permissiblelocations for pits used by commercial oil and gas disposal facilitiesand Senate Bill 1541 (85th Legislature, 2017) required the Commissionto incorporate criteria for beneficial uses of recycled drill cuttings.The Commission proposes new requirements in Subchapter A to addressHouse Bill 2201 and proposes new rules in Subchapter B to addressthe requirements of Senate Bill 1541.

Many of the requirements from Section 3.8 are incorporated intoproposed new rules in Subchapter A of Chapter 4. In some sections,the Commission proposes that compliance be achieved by a future dateafter the new rules and amendments to Chapter 4 have become effective.The Commission proposes that the new rules and amendments go intoeffect July 1, 2025, which is approximately six months after the anticipateddefault effective date. Many provisions are proposed with a latereffective date of six months to one year from July 1, 2025, to provideadditional time for compliance. Effective dates are reflected in thefollowing sections: 4.109, 4.113, 4.115, 4.121, 4.122, 4.123, 4.140,4.170, 4.202, 4.266, 4.273, 4.282, and 4.289. The Commission notesthat if the rulemaking timeline changes, the rules may be adoptedat a later date. If that occurs, the proposed effective dates willbe updated upon adoption.

Proposed New Rules in Subchapter A

Proposed Division 1 of Subchapter A addresses general requirements.Proposed §4.101 communicates the subchapter's purposes - to preventpollution and protect the public health, public safety, and the environmentwithin the scope of the Commission's authority. Section 4.101 alsoclarifies that certain other wastes generated by activities underthe Commission's jurisdiction may be managed in accordance with SubchapterA as long as the wastes are nonhazardous and chemically and physicallysimilar to oil and gas wastes. The list of activities that may generatewaste under the Commission's jurisdiction includes activities suchas brine mining and injection wells and Class VI carbon sequestrationprogram wells.

The Commission proposes §4.102 to require generators of oiland gas waste to characterize the waste. Generally, process knowledgemay be used to categorize the waste material in accordance with thecategories listed in the definition of oil and gas waste in §4.110(relating to Definitions). However, laboratory analysis of waste maybe required for waste generated at a commercial facility or transferredfrom one commercial facility to another. Proposed subsections (b)through (e) prohibit persons from using waste management or transportservices if those services are not properly permitted or authorized.Any person who uses the services of a carrier or receiver has a dutyto determine whether the carrier or receiver has appropriate authorityto manage or transport oil and gas wastes. Proposed subsections (f)and (g) prohibit management or disposal of oil and gas wastes in amanner that violates Commission rules. Proposed subsection (h) requiresthat the Commission be notified if a person conducting activitiesunder the Commission's jurisdiction files for bankruptcy.

The Commission proposes §4.103 to specify waste managementmethods that are prohibited. Generally, a Commission authorizationor permit to manage waste is required except in three instances: (1)as authorized by §4.111 (relating to Authorized Disposal Methodsfor Certain Wastes); (2) as authorized by §3.98 of this title(relating to Standards for Management of Hazardous Oil and Gas Waste);or (3) by underground injection for disposal permitted pursuant to§3.9 of this title (relating to Disposal Wells) or §3.46of this title (relating to Fluid Injection into Productive Reservoirs).Recycling oil and gas wastes without a permit is prohibited unlessthe recycling is conducted pursuant to §4.112 (relating to Authorized Recycling).

Proposed §4.104 clarifies how the Commission will implementit* authority over activities for which other regulatory agencieshave related jurisdiction.

Proposed §4.106 notifies persons required to comply with SubchapterA that fees and corresponding surcharges may apply pursuant to §3.78(relating to Fees and Financial Security Requirements).

Proposed §4.107 contains the guidelines for assessing penaltiesfor violations of Subchapter A. The structure and content of proposed§4.107 is similar to the Commission's other penalty rules suchas §8.135 (relating to Penalty Guidelines for Pipeline SafetyViolations), §9.15 (Penalty Guidelines for LP-Gas Safety Violations),and §18.12 (relating to Penalty Guidelines). Importantly, proposed§4.107 is substantively similar to §3.107, which is therule the Commission utilized to recommend penalties for violationsof §3.8, the predecessor to proposed Subchapter A.

The Commission proposes §4.108 to ensure all required filingsare made electronically if the Commission has provided an electronicversion of a form or an electronic filing system. The section alsoclarifies that the standards for electronic filings are the same asthose for filings in other formats.

Proposed §4.109 allows applicants or permittees to requestexceptions to the requirements of Subchapter A if the applicant orpermittee can show that the requested alternative is at least equivalentin the protection of public health and safety and the environmentas the provision to which the exception is requested. Proposed subsection(a) clarifies that exceptions to financial security requirements,notice requirements, and certain sampling and analysis requirementswill not be considered.

Proposed §4.110 contains the proposed definitions for Chapter4, including Subchapters A and B. Several definitions are proposedconsistent with terms defined in the predecessor rule, §3.8.Other terms are added or modified. For example, the proposed terms"authorized" and "authorized pit" clarify that an authorized activityis one that is permitted by rule. Also, the proposed definitions ofthe terms "commercial facility" and "non-commercial facility" arealtered to reduce confusion regarding these types of facilities.

"Commercial facility" is proposed as a facility permitted underDivision 4, whose owner or operator receives compensation from othersfor the management of oil field fluids or oil and gas wastes and whoseprimary business purpose is to provide these services for compensation.Conversely, "non-commercial facility" is proposed as a facility authorizedor permitted under Subchapter A that is not a commercial facility.This new definition corresponds to proposed changes for produced waterrecycling pits, some of which were previously classified as non-commercialfluid recycling pits. "Produced water recycling" is proposed as therecycling of produced water and other aqueous fluid wastes producedfrom a wellbore during oil and gas exploration and production activities.The Commission also proposes corresponding definitions of "producedwater recycling facility" and "produced water recycling pit." Thesenew terms and definitions are proposed to replace "non-commercialfluid recycling" and "non-commercial fluid recycling pit." The term"drill cuttings" is proposed to be defined as the term is definedin Texas Natural Resources Code §123.001. "Public area" is proposedto be defined as a dwelling, place of business, church, school, hospital,school bus stop, government building, a public road, all or any portionof a park, city, town, village, or other similar area that can expectto be populated, which is the same definition that appears in §3.36(relating to Oil, Gas, or Geothermal Resource Operation in HydrogenSulfide Areas).

Proposed Division 3 of Subchapter A relates to Operations Authorizedby Rule. The rules proposed in this division allow operators to conductcertain waste management activities through a "permit by rule" system- the operator is not required to obtain a permit through a permitapplication and review process. Instead, the operator is authorizedto engage in the activity as long as the applicable rule requirementsare met.

Proposed §4.111 provides that certain wastes may be disposedof without first obtaining a permit from the Commission if the disposalcomplies with the requirements of the section. Proposed subsection(a) addresses water condensate, proposed subsection (b) addressesinert oil and gas wastes, proposed subsection (c) addresses low-chloridewater-based drilling fluid, and subsection (d) addresses other specificwastes generated during drilling, completion, and workover activities.

Similarly, proposed §4.112 allows recycling without a permitin certain instances. Produced water recycling is authorized if treatedfluid is recycled for use in drilling operations, completion operations,hydraulic fracturing operations, or as another type of oilfield fluidto be used in the wellbore of an oil, gas, geothermal, or servicewell; produced water recycling pits are operated in accordance with§4.113 and §4.115; and recycling is limited to oil and gas waste.

Proposed §4.113 specifies types of waste management pits thatmay be operated without a permit if they comply with the requirementsof §4.113. These pits include reserve pits, mud circulation pits,completion/workover pits, fresh makeup water pits, fresh mining waterpits, and water condensate pits. Proposed subsection (c) providesinstructions for pits authorized under the predecessor rule, §3.8.Most types of pits authorized by §3.8 and compliant with thatsection prior to July 1, 2025 may continue to operate unless theycause pollution. However, basic sediment pits, flare pits, and otherpits not listed as authorized pits in proposed §4.113 must obtaina permit or be closed in accordance with proposed new subchapter Aby July 1, 2026. Also, as discussed in the paragraphs below regardingproposed §4.114 and §4.115, proposed new Subchapter A altersterminology and requirements related to non-commercial fluid recycling.Proposed §4.113(c)(3) states that each non-commercial fluid recyclingpit shall be registered and supported by financial assurance by January1, 2026, or the pit must be closed.

Proposed §4.113(d) contains new requirements for registrationof all authorized pits. The Commission currently collects minimalinformation about authorized pits (i.e., pits "permitted by rule").The proposed new rules will enable the Commission to identify andinspect these facilities and collect data regarding their operations.The Commission notes that the proposed registration process will notrequire prior approval for pits authorized under proposed §4.113.Proposed subsection (d) contains timelines for when authorized pitsmust be registered. Proposed subsection (e) requires the operatorto submit five pieces of information prior to operating the pit: (1)the type of pit; (2) the location of the pit and its Commission-issuedidentifier; (3) the pit dimensions and capacity; (4) the expecteddepth to groundwater from the bottom of the pit; and (5) for producedwater recycling pits, the financial security required by §4.115.Once the registration is submitted, the operator may begin operations- the operator is not required to wait for Commission review or approvalof the submitted information. Produced water recycling pits have aslightly different process, as described in the paragraph on proposed §4.115.

The Commission proposes §4.114 to specify requirements forSchedule A authorized pits. The Commission proposes that authorizedpits (pits "permitted by rule") be divided into two categories: ScheduleA and Schedule B. Each category imposes different requirements. ScheduleA pits include reserve pits, mud circulation pits, completion/workoverpits, freshwater makeup pits, fresh mining water pits, and water condensatepits. Proposed §4.114(1) specifies the contents for each typeof Schedule A authorized pit. Proposed §4.114(2) contains constructionrequirements for Schedule A pits. Specifically, the Commission proposesliner requirements for reserve pits, mud circulation pits, and completion/workoverpits located in areas where groundwater is present within 50 feetof the bottom of the pit. Proposed §4.114(3) provides requirementsfor closure of pits authorized under the section.

The Commission proposes §4.115 to create new terminology andrequirements for produced water recycling pits, which are classifiedas Schedule B Authorized Pits. Under the current version of §3.8,some produced water recycling pits are classified as non-commercialfluid recycling pits and are considered authorized pits. However,the current definition of non-commercial includes several conditionsthat lead to confusion and create an overly complex regulatory scheme.The proposed changes classify as produced water recycling pits allpits used to manage produced water and other aqueous fluid wastesproduced from a wellbore during oil and gas exploration and productionactivities. The intent of the proposed changes is to eliminate confusionand treat pits with similar waste management activities and contentsthe same.

The Commission proposes additional requirements for Schedule Bauthorized pits because these pits are generally larger in size, managea larger volume of waste, and are operated for a longer time comparedto Schedule A authorized pits. First, proposed §4.115(b) requiresan operator of a produced water recycling facility to maintain a performancebond or other form of financial security conditioned that the permitteewill operate the pit in accordance with Commission rules. The amountof financial security an operator must file is dependent on the numberand total volume of the operator's pits. The financial assurance mustbe filed with the Commission when the produced water recycling pitsare registered with the Commission. Proposed subsection (c) providesadditional time for compliance for non-commercial fluid recyclingpits authorized prior to July 1, 2025. Under proposed new §4.115,these pits continue to be authorized, but must be registered and securedby a performance bond or other form of financial security as requiredby §4.115 by January 1, 2026. Proposed subsection (d) clarifieswhich types of fluids and wastes are authorized to be deposited intoa produced water recycling pit.

Second, Schedule B authorized pits are subject to siting requirements.These requirements are proposed in §4.115(e). No produced waterrecycling pit shall be located on a barrier island or a beach, within300 feet of surface water, within 500 feet of any public water systemwell or intake, within 300 feet of or any domestic water well or irrigationwater well (other than a well that supplies water for drilling orworkover operations for which the pit is authorized), within a 100-yearflood plain, or within 500 feet of a public area.

Third, proposed subsection (f) imposes general design and constructionrequirements for Schedule B authorized pits including that the pitis large enough to ensure adequate storage of the material to be managedand to maintain two feet of freeboard plus the capacity to containthe volume of precipitation from a 25-year, 24-hour rainfall event.Proposed subsection (f) also contains design and construction requirementsfor managing non-contact stormwater runoff. In proposed subsection(f)(5), the Commission proposes more stringent liner requirementsfor Schedule B authorized pits. All Schedule B authorized pits shallbe lined in accordance with proposed (f)(5).

Proposed subsection (g) contains general operating requirementsfor Schedule B pits, such as maintaining sufficient capacity, ensuringliner integrity, establishing a schedule of inspections to be conductedby the operator at least annually or installing a double liner andleak detection system, and maintaining required records.

Fourth, the Commission proposes additional closure requirementsfor Schedule B authorized pits in §4.115(h) through (j). Proposedsubsection (h) contains general closure requirements for all ScheduleB pits, regardless of whether the waste is removed for disposal orburied in place in accordance with proposed §4.111. Proposedsubsection (i) provides additional requirements for closure when allwaste from a produced water recycling pit is removed for disposalat an authorized or permitted waste facility. The proposed requirementsin subsection (i) include a requirement to collect a five-point compositesoil sample for each acre of pit surface area and analyze the samplefor the constituents identified in the Figure proposed in subsection(i). Alternatively, the operator may use background soil concentrationsat closure. However, to use background soil concentrations, the operatoris required to establish the background concentrations before or duringpit construction in accordance with proposed §4.115(i)(3)(B).Proposed subsection (j) provides closure requirements in additionto those proposed in subsection (h) when waste will be buried in placepursuant to §4.111. These requirements also address collectinga five-point composite sample and analyzing in accordance with theFigure or using background concentrations established prior to operations.

Finally, proposed subsection (k) specifies groundwater monitoringrequirements for Schedule B authorized pits. Proposed subsection (k)(1)requires the operator to review readily available public informationto evaluate whether groundwater is likely to be present within 100feet of the ground surface. If the evaluation determines that groundwateris likely to be present within 100 feet of the ground surface, thengroundwater monitoring is required unless the pit has a double syntheticliner with an operational leak detection system or the pit has a linerand an active life of less than one year. Groundwater monitoring standardsare proposed in subsection (k)(4)-(8).

Proposed Division 4 of Subchapter A contains the general requirementsfor all other waste management activities that are not authorizedunder Division 3. These waste management activities require a permitbefore the operator may conduct the activity. Many of the requirementsin Divisions 4 through 9 are similar to permit conditions in permitscurrently issued by the Commission. The Commission proposes that thesestandards be incorporated into Divisions 4 through 9, as applicable.The Commission also proposes additional standards for permitted facilitiesto ensure the rules address the complex needs and requirements ofcontemporary waste management and environmental protection practices.

Proposed §4.120 identifies the Commission's purpose in permitting- the Commission will not issue a permit if the Commission determinesthe proposed activity will result in: (1) the endangerment of humanhealth or the environment; (2) the waste of oil, gas, or geothermalresources; or (3) the pollution of surface or subsurface water. Proposed§4.120 also clarifies that all permitted waste management activitiesare subject to financial security requirements. Finally, §4.120(e)provides a list of waste management activities governed by SubchapterA and specifies which division applies to each activity. For example,permitted pits must comply with the requirements in Division 6 inaddition to the requirements of Division 4, which apply to all wastemanagement activities that must obtain a permit.

The Commission proposes §4.121 to incorporate a permit termfor all waste management permits, which shall be not more than fiveyears. Currently, some Commission permits do not expire. Permits issuedpursuant to §3.8 prior to the proposed effective date for newSubchapter A (July 1, 2025), are proposed to remain in effect untilthey expire on their own terms, are renewed pursuant to the proposednew requirements, or are modified, suspended or terminated by theCommission. Proposed §4.121 also clarifies that permits remainin effect while a timely-filed renewal application is under reviewby the Commission.

Proposed §4.122 outlines requirements for permit renewals,transfers, and amendments. Proposed subsection (a) addresses situationsin which a permit issued prior to the effective date of proposed newSubchapter A is renewed, transferred, or amended. The Commission willreview the permit conditions and may revise them to ensure compliancewith the rules in effect at the time of the renewal, transfer, oramendment. However, proposed subsection (a) states that for permitsissued under the predecessor rule §3.8, the Commission will notrequire an operator to relocate or retrofit existing waste managementunits to conform to new siting or construction standards. The Commissionmay require operators to add or improve groundwater monitoring atthose existing facilities or to combine all waste management unitsat a facility under one permit. Proposed §4.122(b) contains therequirements to renew permits, including the requirement to file arenewal application at least 60 days prior to the permit's expirationdate and the requirement to comply with notice in accordance with§4.125. Proposed §4.122 clarifies that permit renewals,transfers, and amendments will generally be issued for 5-year terms,though transfers will be issued through the current permitted expirationdate unless the transfer is combined with a permit renewal or amendment.Like renewals, proposed subsection (c) states that a transfer shallbe filed 60 days in advance of the transfer. Proposed subsection (d)requires that amendments be filed at least 90 days before the proposednew operations are scheduled to commence. Amendments are generallysubject to the notice requirements of §4.125, but the Directormay modify or waive those requirements if the proposed permit amendmentswill have a minimum impact as described in proposed §4.122(d)(2)(C).

Proposed §4.123 contains requirements for permit modification,suspension, or termination. A permit issued under proposed new SubchapterA or pursuant to §3.8 prior to July 1, 2025, may be modified,suspended, or terminated by the Commission for good cause after noticeand opportunity for a hearing. Proposed subsection (b) outlines thefactors that constitute good cause.

The Commission proposes §4.124 to specify permit applicationfiling requirements and contents. The Commission also proposes requirementsfor technical data required to be filed with the application, suchas requirements for submitting geographic coordinates, maps, plans,diagrams, chemical laboratory analyses, and NORM screening surveys.

Proposed §4.125 addresses notice requirements for all permittedfacilities. Generally, the proposed notice requirements are not dissimilarto Commission notice requirements in other areas. However, proposedsubsection (b) alters the traditional timing of notice to requirea permit applicant to provide notice after Commission staff determinesthat a permit application is complete under §1.201(b) (relatingto Time Period for Processing Applications and Issuing Permits Administratively).This change will ensure that notice recipients receive an accuratecopy of the permit application after Technical Permitting has completedthe initial review. It will also reduce the potential for re-notificationdue to changes made at the request of Technical Permitting after theoriginal permit application is filed. Proposed subsection (c) specifiesthe required notice recipients and proposed subsection (d) containsthe required method and contents of the notice. Importantly, the noticemust state that an affected person may protest the application byfiling a written protest with the Commission within 30 calendar daysof the date of the notice. Proposed subsection (d)(4) states thatthe Director may authorize notice by publication in accordance with§4.141 (relating to Additional Notice Requirements for CommercialFacilities) if the applicant, after diligent efforts, is unable todetermine the persons to be notified. Proposed subsection (e) requiresan applicant to provide proof of notice to the Commission, and proposedsubsection (f) outlines the process for filing a protest. A timelyprotest will prompt a hearing on the permit application.

The Commission proposes §4.126 to outline the location andreal property information required to be included in the permit application.This information includes the physical address, geographic coordinates,property description, a statement regarding the authority by whichthe operator has a right to permit and operate the proposed facility,and a general location map containing the components required by proposedsubsection (c).

Proposed §4.127 contains the requirements for engineeringand geologic information submitted in the permit application.

The Commission proposes §4.128, which contains requirementsrelated to the facility's design and construction. Proposed §4.128includes requirements for information to be included in the permitapplication as well as requirements for the constructing the facility.The permit application shall include a facility diagram that complieswith proposed subsection (a)(1), a description of any liners or engineering/geologicinformation demonstrating that liners are not necessary, a map viewand two perpendicular cross-sectional views of pits and storage areasto be constructed, and a plan to control and manage all stormwaterrunoff. Proposed subsection (b) contains requirements for designingand constructing the permitted facility.

Similar to §4.128, proposed §4.129 includes requirementsfor information to be included in the permit application relatingto the facility's operation, as well as requirements for operatingthe facility once permitted.

Proposed §4.130 specifies the requirements for retaining recordsand submitting periodic reports to the Commission.

The Commission proposes §4.131 to explain the factors theCommission will consider in determining whether groundwater monitoringis required when groundwater is present within 100 feet below theground surface. The factors include the volume and characteristicsof the oil and gas waste to be managed, the depth to and quality ofgroundwater, and the presence or absence of natural clay layers insubsurface soils. If groundwater monitoring is required, the operatorshall comply with the requirements of proposed subsection (b)(2) through (b)(4).

Proposed §4.132 contains requirements related to closure.The section includes requirements for a closure plan to be includedin the permit application and specifies the contents of the closureplan. The section also specifies how facilities shall be closed. Importantly,in addition to specifying requirements for closure, proposed subsection(b) requires that a permittee notify Technical Permitting and theDistrict Office in writing at least 45 days prior to commencementof closure operations. The permittee is then required to submit adetailed closure plan to Technical Permitting 30 days prior to commencingclosure operations. Proposed subsection (b)(2) lists the requiredcontents of the closure plan.

The Commission proposes §4.134, which states that TechnicalPermitting reviews applications filed under Subchapter A in accordancewith §1.201 (relating to Time Periods for Processing Applicationsand Issuing Permits Administratively).

Proposed §4.135 contains the process for a hearing when apermit application is denied, a timely protest to the applicationis received, or when the applicant disagrees with permit conditionsrequired by the Director.

Proposed Divisions 5 through 9 contain requirements for certainwaste management activities. Operators of facilities governed by thesedivisions must comply with the requirements set forth in the divisionin addition to the requirements set forth in Division 4. Facilitiesmay be governed by more than one division in addition to the generalrequirements of Division 4. For example, a commercial disposal pitwould be subject to the requirements of Division 4 and the requirementsof Division 5 (relating to Additional Requirements for CommercialFacilities) and the requirements of Division 6 (relating to AdditionalRequirements for Permitted Pits). This intent is clarified in §4.140,§4.150, and §4.160, which state that in addition to therequirements of the applicable division, the permittee shall complywith Division 4 and any other sections of Subchapter A applicableto the permittee's management of oil and gas wastes.

Proposed Division 5 contains the additional requirements for commercialfacilities. Proposed §4.140(b) recognizes that new definitionsand requirements proposed in Subchapter A may alter a facility's classificationsuch that a facility considered non-commercial prior to July 1, 2025may be considered commercial after that date (the estimated effectivedate of the new rules). Such facilities are required to comply withthe requirements of Division 5 or request an exception on or beforeJuly 1, 2026. Proposed subsections (c) through (g) contain financialsecurity requirements, including requirements for preparing a closure-costestimate (CCE) and obtaining Commission approval of the CCE priorto beginning operations at the subject facility. Proposed subsection(h) contains additional closure requirements for stationary commercialfluid recycling facilities.

In addition to the notice requirements outlined in §4.125,the Commission proposes that commercial facilities provide noticeby publication. The notice shall be published in a newspaper of generalcirculation in the county in which the proposed facility will be locatedat least once each week for two consecutive weeks, with the firstpublication occurring not earlier than the date staff determines thatan application is complete pursuant to §1.201(b) but before thefinal review is completed. Proposed subsection (c) contains the requirementsfor the notice form and contents. One required component of the noticeis a statement that an affected person may protest the applicationby filing a protest with the Commission within 30 calendar days ofthe last date of publication. Proposed subsection (d) requires theapplicant to submit proof of publication, which shall consist of anaffidavit from the newspaper publisher and the tear sheets for eachpublished notice.

Additional operating requirements for commercial facilities areproposed in §4.142. These requirements include a detailed wasteacceptance plan, a site-specific spill control plan, and a stormwatermanagement plan.

The Commission proposes §4.143 to require a permittee of acommercial facility to provide drawings documenting the as-built conditionof the facility prior to commencement of operations.

Division 6 is proposed to specify additional requirements for permittedpits. As mentioned above, proposed §4.150(a) clarifies that inaddition to the requirements of Division 6, the permittee shall complywith Division 4 and Division 5. Proposed subsection (b) states thatif at any time a pit no longer meets the requirements for authorizedpits under §4.113, the operator of the pit shall apply for apit permit pursuant to the requirements of Division 6. Proposed subsections(c) and (d) prohibit unauthorized use of a pit and specify the consequencesof unauthorized use. The Commission proposes subsection (f) to outlinerequired action by an operator in the event of an unauthorized releaseof pit substances. Proposed subsections (g) and (h) contain specificlocation requirements for pits. Subsection (g) states that a pit shallnot be located on a barrier island or a beach, within 300 feet ofsurface water including wetlands, within 500 feet of any public watersystem well or intake, within 300 feet of any domestic water wellor irrigation water well (other than a well that supplies water fordrilling or workover operations for which the pit is authorized),or within a 100-year flood plain. Proposed subsection (h) requiresa minimum 50-foot buffer zone be maintained between the boundariesof the property and the outer edge or toe of the pit walls or berms.

Proposed §4.151(a) contains information that must be includedin a pit permit application in addition to the information requiredby §4.128. Proposed §4.151(b) specifies additional operatingrequirements related to signage, freeboard, and liners. Pits permittedpursuant to Subchapter A are also subject to additional requirementsthat the Director determines are necessary to prevent pollution.

The Commission proposes §4.152 to require a permittee governedby Division 6 to implement a monitoring plan in which the permitteeroutinely monitors the integrity of the pit liner. The permittee mayimplement one of three methods: (1) emptying the pit and conductinga visual inspection on an annual basis; (2) installing a double linerand leak detection system between the primary and secondary linerthat is monitored on a daily or weekly basis; or (3) proposing analternative monitoring method by demonstrating the alternative methodis at least as protective of surface and subsurface waters as theother two methods. Proposed subsection (b) specifies how to determineif a primary liner in a double liner and leak detection system hasfailed. If a liner failure is discovered at any time, the permitteemust comply with the requirements in proposed subsection (b)(3).

In accordance with House Bill 2201 from the 87th Legislative Session,the Commission proposes §4.153 to incorporate siting requirementsfor commercial disposal pits. Under proposed subsection (a)(1), theapplication for a pit at a commercial disposal facility shall includedocumentation of a good faith investigation of the 10-year floodinghistory of the property to determine whether the facility is locatedin a flood-prone area. Proposed subsection (a)(2) contains the sitingrequirements for a commercial disposal pit. Such a pit shall not belocated in an area in which the disposal pit is not sufficiently isolatedto prevent pollution of surface or subsurface waters, a prohibitedlocation defined in Division 11 (relating to Requirements for SurfaceWater Protection), or any other location where there is an increasedrisk to surface or subsurface waters. The application shall containinformation to demonstrate that the pit will not be located in oneof the areas prohibited under proposed subsection (a)(2). Proposedsubsections (b) and (c) contain the requirements for design and constructionof the disposal pit and closure of the disposal pit. Specifically,for commercial disposal pits, a post-closure monitoring period ofno less than five years is required.

Closure requirements for all permitted pits are proposed in §4.154.

Proposed Division 7 applies to permits for landfarming and landtreating.Proposed §4.160 clarifies that the requirements in Division 4must be adhered to in addition to the requirements of Division 7.

The Commission proposes §4.161(a) to require additional informationin applications for landfarming and landtreating such as facilitydiagrams including two perpendicular, sectional views of all landfarmingcells to be constructed and depicting the locations and dimensionsof all areas where landfarming and landtreating will occur. The Commissionnotes that the proposed definition of landfarming cell in §4.110includes landtreating cells. Proposed subsection (a)(1)(B) restrictsthe areas where landfarming and landtreating will occur by requiringthat a minimum 50-foot buffer zone be maintained between the boundariesof the property and the treatment cells, measured from the toe ofthe constructed berm to the property boundary, and a minimum 300-footbuffer zone be maintained between the toe of the constructed bermsand any drainage features or surface waters. Proposed subsection (a)(2)requires an applicant for a landfarming or landtreating permit todemonstrate that the area has at least 20 inches of tillable soilsuitable for the application, treatment, and disposal of oil and gaswaste. Additional information is required in proposed subsection (a)(3)to enable the Director to determine whether the proposed facilitywill pose a threat of pollution or a threat to public health or safety.Berm construction requirements are proposed in subsection (b). Proposedsubsection (c) contains the reasons the Director may deny an applicationfor a landfarming or landtreating permit, which include that the facilityis proposed to be located in a sensitive area such as those listedin proposed subsection (c)(1) through (c)(6).

Proposed §4.162 requires additional information in a landfarmingor landtreating application such as the estimated chloride concentrationof the waste to be accepted at the facility, the procedure by whichwaste will be mixed into the soil, plans for monitoring and testingthe landfarming area, and the total cumulative height and volume ofthe waste to be landfarmed over the active life of the operation.Operating requirements specific to landfarming and landtreating permitsare proposed in §4.162(b).

The Commission proposes §4.163 to require monitoring of threesoil zones in each active cell. Subsection (a) contains required monitoringfrequencies for the surface treatment zone, the waste treatment zone,and the compliance monitoring zone. Proposed subsections (b) and (c)contain requirements for collecting and analyzing soil samples. Proposedsubsection (d) specifies the limitations for which the samples mustbe analyzed in a Figure proposed in the subsection, and outlines theprocess an operator must follow if the sample exceeds those limitations.Proposed subsection (e) requires that documentation of the samplingand analysis be filed with Technical Permitting and the District Officeas part of the quarterly report required by the permit.

Section 4.164 is proposed to contain closure requirements specificto landfarming and landtreating permits.

Division 8 is proposed to describe the requirements applicableto permitted reclamation plants and is substantively similar to current§3.57 (relating to Reclaiming Tank Bottoms, Other HydrocarbonWastes, and Other Waste Materials), which is proposed to be amendedconcurrently with the proposed new rules in Subchapter A. The Commissionproposes two notable changes to its regulatory requirements for reclamationplants. First, under current §3.57, reclamation plant permitsdo not expire. Proposed new §4.170 and §4.171 would limita reclamation plant permit to a five-year term. Second, §3.57prohibits reclamation plant permits from being transferred to anotheroperator. Proposed new §4.171(b) allows reclamation plant permitsto be transferred, renewed, or amended in accordance with §4.122.Proposed §4.170(a)(7) states that reclamation plant permits issuedunder §3.57 before July 1, 2025 expire five years from July 1,2025 but may be renewed pursuant to §4.122.

Division 9 is proposed to specify requirements for emergency permits(§4.181), minor permits (§4.182), and permitted recycling(§4.184) that are generally consistent with the requirementsfor these permits contained in current §3.8. However, the Commissionproposes new §4.185 to allow the approval of pilot projects forcertain activities, such as the recycling of treated produced water.Pilot programs may be proposed to assess: (1) whether a recycled productcan be reused in certain activities that are safe and protective ofhuman health and the environment; (2) the efficiency and effectivenessof the recycling project; or (3) the appropriate regulatory requirementsof a permitted recycling program. The pilot program may be authorizedfor a duration to be determined by the Commission if the Directorfinds that the proposed pilot program does not present a threat ofpollution and encourages recycling of oil and gas wastes. The durationof the pilot program shall be sufficient to evaluate the pilot programobjectives, which may include sufficient time to take an appropriatenon-food-based crop from seed through one complete growing cycle.If after the approved duration, the Commission determines that theproposed pilot program prevents pollution and promotes the beneficialreuse of oil and gas waste, the Commission may authorize the recyclingby permit pursuant to §4.184 of this title (relating to PermittedRecycling). Under proposed §4.185(c)(2), the Commission may alsoextend the pilot program in increments of no more than one year.

The Commission proposes Division 10 to incorporate requirementsfor transportation of oil and gas waste, including new regulationsrelating to oil and gas waste characterization and documentation.As specified in proposed §4.102, the generator of oil and gaswaste is responsible for characterizing the waste. Proposed §4.190(a)incorporates that requirement and also specifies that the generatormust document the waste characterization using a Waste Profile Formprior to transportation. Proposed subsection (b) states that an operatormay use the form provided by the Commission or the operator's ownform, provided the form includes the information listed in subsection(b)(1). To characterize waste, a generator may establish standardwaste profiles for common types of oil and gas waste as describedin proposed subsection (b)(2). Proposed §4.190(b)(3) requiresa generator that chooses to dispose of or recycle its waste to providethe Waste Profile Form to the waste hauler and receiver, and proposedsubsection (b)(4) requires the receiver to then include the wasteprofile information in the periodic reporting requirements specifiedin the facility permit conditions.

Proposed new §4.191 requires oil and gas waste that is transportedby vehicle from the location where it is generated to another facilityto either be accompanied by a paper manifest or be documented andtracked by an electronic manifest system. Proposed §4.191(b)specifies the required components of a manifest. Proposed subsection(c) requires that generator of the oil and gas waste, the waste hauler,and the receiver keep for a period of three years from the date ofshipment copies or electronic records of all manifests. Proposed subsection(d) excepts oil and gas waste moved by pipeline from the manifestrequirement but incorporates other requirements for operators of oiland gas waste pipeline systems.

Proposed §4.192 provides a process for obtaining approvalfor certain oil and gas waste to be managed at appropriate TCEQ-regulatedfacilities and for certain TCEQ-jurisdictional waste to be managedat appropriate RRC-regulated facilities. The process requires approvalfrom both agencies on a special waste authorization form made availableby the Commission.

Proposed §4.193 incorporates requirements for oil and gaswaste haulers. These regulations are mostly unchanged from the currentrequirements of §3.8. However, proposed new §4.193(c) requiresthat an application for a waste hauler permit be made using the Commission'selectronic system. In addition, proposed subsection (d) states thewaste hauler permittee may not apply to renew its permit using thepermittee's assigned permit number and by paying the fee requiredby §3.78 of this title until a minimum of 60 days before theexpiration date specified in the permit. A waste hauler permitteeis required to apply for a new permit number if the permittee submitsa renewal application more than six months after the expiration ofits permit. Proposed subsection (e) contains the permit conditionsfor oil and gas waste hauler permittees.

Proposed §4.194 requires all generators, waste haulers, andreceivers to retain waste profiles, manifests and other documentationfor at least three years and provide such records to the Commissionupon request.

The Commission proposes §4.195 to ensure oil and gas wastegenerated outside the State of Texas and transported into Texas formanagement is accompanied by documentation to identify and track the waste.

Proposed in Division 11 are new §4.196 and §4.197, whichare mostly unchanged from current §3.8(e) and §3.8(j). Thesesections are proposed to incorporate the requirements from §3.8into the new rules in Subchapter A.

Proposed Amendments to Subchapter B

The Commission also proposes conforming amendments to SubchapterB of Chapter 4. Many of the amendments are proposed to replace referencesto §3.8 with the applicable provision now proposed to be includedin new Subchapter A. Other amendments are proposed to ensure consistencybetween new Subchapter A and existing Subchapter B. For example, eachtime "appropriate district office" appears in Subchapter B, the term"appropriate" is proposed to be removed because "district office"is defined in Subchapter A to mean the district office where the wastemanagement, disposal, and/or recycling is located. Amendments arealso proposed in various sections to update Division and Departmentnames and ensure terms are used consistently throughout the Subchapter.In addition, amendments are proposed to incorporate legislative requirementsimposed by House Bill 3516 (87th Legislature, 2021) and Senate Bill1541 (85th Legislature, 2017).

The following sections are proposed to be amended to remove referencesto §3.8 or to make other non-substantive updates: §§4.203,4.207, 4.209, 4.218, 4.220, 4.222, 4.223, 4.239, 4.242, 4.243, 4.245,4.250, 4.251, 4.255, 4.258, 4.259, 4.261, 4.267, 4.277, 4.287, and 4.293.

The Commission proposes amendments in §4.201 to ensure consistencywith the purpose stated in proposed new §4.101.

Amendments proposed in §4.202 replace references to §3.8with references to new Subchapter A of Chapter 4. Other proposed changesbreak out requirements into a list to improve readability and clarifythat pits and waste management units at commercial facilities arerequired to be permitted. Proposed amendments in subsection (h) outlinerequirements for permits issued prior to the effective date of theproposed amendments, which is estimated to be July 1, 2025.

Amendments proposed in §4.204 clarify that the definitionsproposed in new §4.110 of Subchapter A, relating to Definitions,apply in Subchapter B as well. Terms that already appear in proposednew §4.110 are removed from §4.204 to reduce confusion.The terms proposed to be amended or added to §4.204 are termsunique to Subchapter B or terms for which the meaning is altered forpurposes of Subchapter B.

The Commission proposes amendments in §4.205(b) to clarifythat a fee and surcharge are required to be submitted with a requestfor an exception to Commission rules. Proposed amendments in subsection(c) allow approval of a requested exception to a rule in Divisions5 or 6 if the Director determines the request is substantially similarto previous exceptions approved by the Commission.

Amendments proposed in §4.208(c) require that all chemicallaboratory analyses be performed using the appropriate EnvironmentalProtection Agency (EPA) method or standard methods by an independentNational Environmental Laboratory Accreditation Program certified laboratory.

The Commission proposes to amend §4.211 to incorporate newpenalty guidelines and standard penalty amounts for violations ofrules in Subchapter B. The structure and content of proposed §4.211is similar to the Commission's other penalty rules such as §3.107(relating to Penalty Guidelines for Oil and Gas Violations), proposednew §4.107 in Subchapter A, §8.135 (relating to PenaltyGuidelines for Pipeline Safety Violations), §9.15 (Penalty Guidelinesfor LP-Gas Safety Violations), and §18.12 (relating to PenaltyGuidelines). The proposed figures also match the Commission's otherpenalty rules except that the figures proposed in §4.211 includereferences to rules in Subchapter B.

Proposed amendments in §4.212 update requirements for filingan application for on-lease solid oil and gas waste commercial recycling.The amendments proposed in subsection (a) ensure that an applicationis filed on a Commission prescribed form and that it is filed withTechnical Permitting in addition to the district office. Amendmentsproposed in subsections (a) and (c) clarify when an application isconsidered complete and provide that an application will be administrativelydenied if it is still incomplete after the second supplemental submission.An applicant may request a hearing if an application is administrativelydenied. Proposed subsection (e) clarifies that filings are requiredto be made electronically if an electronic version or electronic filingsystem is available.

Proposed amendments in §4.213 expand the scope of subsection(b) to contemplate geologic work products and allow such productsto be sealed by a professional engineer or geoscientist licensed inTexas. Similar amendments are proposed in §§4.231, 4.247,4.263, and 4.279.

The Commission proposes to amend §4.214 to update the section,correct an error, and ensure consistent terms are used throughoutChapter 4.

Proposed amendments in §4.219 remove outdated language thatis no longer applicable and update location requirements for on-leasecommercial solid oil and gas waste recycling to be consistent withCommission practices. Amendments are also proposed to ensure thatpits at an on-lease commercial solid oil and gas waste recycling facilityare not located where there has been observable groundwater within100 feet of the ground surface unless the pit design includes a geosyntheticclay liner (GCL); within a sensitive area as defined by §4.110of this title (relating to Definitions); within 300 feet of surfacewater, domestic supply wells, or irrigation water wells; within 500feet of any public water system wells or intakes; within 1,000 feetof a permanent residence, school, hospital, institution or churchin existence at the time of the initial permitting; within 500 feetof a wetland; or within a 100-year floodplain. Proposed amendmentsalso add required information to be included in a permit applicationfor on-lease commercial solid oil and gas waste recycling.

In addition to minor amendments proposed to ensure consistent useof terms, proposed amendments in §4.221 require additional informationto be included in the written report of the trail run such as a summaryof the trial run and description of the process, the type of wasteand description of the waste material, and copies of all chemicaland geotechnical laboratory reports and chain of custody sheets forrequired samples.

The Commission proposes amendments to §4.224 to require anoperator to include the facility identification number assigned byTechnical Permitting in the operator's application for a permit renewal.Facility identification numbers will assist Technical Permitting inidentifying facilities that may have several different types of permits.

Proposed amendments in §4.230 update requirements for filingan application for off-lease or centralized commercial solid oil andgas waste recycling. The amendments proposed in subsection (a) ensurethat an application is filed on a Commission prescribed form and thatit is filed with Technical Permitting in addition to the districtoffice. Amendments proposed in subsections (a) and (c) clarify whenan application is considered complete and provide that an applicationwill be administratively denied if it is still incomplete after thesecond supplemental submission. An applicant may request a hearingif an application is administratively denied. Proposed subsection(e) clarifies that filings are required to be made electronicallyif an electronic version or electronic filing system is available.

The Commission proposes §4.232 with amendments to requirea United States Geological Survey topographic map or an equivalenttopographic map to be included with the permit application. The mapshall show the items proposed in subsection (a)(7)(A) through (a)(7)(K).New subsection (b) is proposed consistent with §4.219 to ensurepits at off-lease or centralized commercial solid oil and gas wasterecycling are not located (1) where there has been observable groundwaterwithin 100 feet of the ground surface unless the pit design includesa geosynthetic clay liner (GCL); (2) within a sensitive area as definedby §4.110 of this title (relating to Definitions); (3) within300 feet of surface water, domestic supply wells, or irrigation waterwells; (4) within 500 feet of any public water system wells or intakes;(5) within 1,000 feet of a permanent residence, school, hospital,institution, or church in existence at the time of the initial permitting;(6) within 500 feet of a wetland; or (7) within a 100-year floodplain.New subsections (c) and (d) are proposed to include language from §4.219which specifies the factors the Commission will consider in assessingpotential risk from the proposed recycling activities and clarifiesthat the siting requirements apply to conditions at the time equipmentand tanks are placed. Similar siting requirements are proposed in§4.248 for stationary commercial solid oil and gas waste recycling,in §4.264 for off-lease commercial fluid recycling, and in §4.280for stationary commercial fluid recycling.

Amendments proposed in §4.234 allow the Technical PermittingSection to waive the requirement that a permit application includea plan for the installation of monitoring wells. Similarly, the Commissionproposes amendments in §4.241(b), §4.257(b), §4.273(b),and §4.289(b) to provide the Technical Permitting Section discretionto evaluate the facts of the specific permit application and determinewhether certain requirements are appropriate.

The Commission proposes amendments to §4.238 to ensure noticerequirements in Subchapter B are consistent with notice requirementsproposed in new Subchapter A. The same amendments are proposed in§§4.254, 4.270, and 4.286.

Amendments proposed in §4.239 correct an error and updatelanguage to ensure consistency.

Amendments proposed in §4.240 remove outdated language thatno longer applies and clarify certain factors the Commission willconsider in assessing potential risk associated with an off-leasecentralized commercial solid oil and gas waste recycling facility.Specifically, the Commission proposes to clarify that it will considerthe distance to any surface water body, whether wet or dry.

Proposed amendments in §4.246 update requirements for filingan application for a stationary commercial solid oil and gas wasterecycling facility. The amendments proposed in subsection (a) ensurethat an application is filed on a Commission prescribed form and thatit is filed with Technical Permitting in addition to the districtoffice. Amendments proposed in subsections (a) and (c) clarify whenan application is considered complete and provide that an applicationwill be administratively denied if it is still incomplete after thesecond supplemental submission. An applicant may request a hearingif an application is administratively denied. Proposed subsection(e) clarifies that filings are required to be made electronicallyif an electronic version or electronic filing system is available.

Proposed amendments in §4.254 ensure that notice recipientsreceive instructions for filing notice electronically if the Commissionimplements an electronic means for filing protests.

Proposed amendments in §4.256 remove outdated language thatis no longer applicable and update location requirements for a stationarycommercial solid oil and gas waste recycling facility. The proposedamendments prohibit such facilities within 300 feet of surface wateror public, domestic, or irrigation water wells.

Proposed amendments in §4.262 update requirements for filingan application for off-lease commercial recycling of fluid. The amendmentsproposed in subsection (a) ensure that an application is filed ona Commission prescribed form and that it is filed with Technical Permittingin addition to the district office. Amendments proposed in subsections(a) and (c) clarify when an application is considered complete. Proposedchanges in subsection (c) clarify that after the second supplementalsubmission, if the application is complete, the Director shall acton the application. The Director's action on the application shallbe to approve the application if it meets requirements and has notbeen protested, to refer the application to the Hearings Divisionif the application meets requirements and the application has beenprotested, or to deny the application if it does not meet the requirements.If after the second supplemental submission the application is stillincomplete, the Director shall administratively deny the application.Additional amendments are proposed in subsection (d) to implementHouse Bill 3516 (87th Legislature, 2021), which requires the Commissionto approve or deny a complete application that does not include arequest for an exception not later than the 90th day after the datethe complete application was received by the Commission, unless aprotest is filed. Further, if the Commission does not approve or denythe application before the 90th day, the permit application is consideredapproved, and the applicant may operate under the terms specifiedin the application for a period of one year. Proposed subsection (f)clarifies that filings are required to be made electronically if anelectronic version or electronic filing system is available.

The Commission proposes amendments in §4.263 to incorporateadditional requirements for engineering, geological, and other informationsubmitted in an application for an off-lease commercial fluid recyclingpermit. Information filed with the application shall be sufficientto describe the subsurface geology and hydrogeology underlying thefacility to a depth of at least 100 feet and evaluate the geology,hydrogeology, and proposed engineering design. Proposed subsections(b) and (c) specify how an operator may obtain information for engineeringand geological site characterization, and how an operator may establishbackground concentrations if the operator intends to rely on thoseconcentrations during operations or at closure.

Section 4.264 is proposed to be amended to include House Bill 3516'srequirement that the Commission establish minimum siting standardsfor fluid recycling pits. The proposed amendments ensure that pitsat off-lease commercial fluid recycling facilities are not located(1) where there has been observable groundwater within 100 feet ofthe ground surface unless the pit design includes a geosynthetic clayliner (GCL); (2) within a sensitive area as defined by §4.110of this title (relating to Definitions); (3) within 300 feet of surfacewater, domestic supply wells, or irrigation water wells; (4) within500 feet of any public water system wells or intakes; (5) within 1,000feet of a permanent residence, school, hospital, institution or churchin existence at the time of the initial permitting; (6) within 500feet of a wetland; or (7) within a 100-year floodplain. Proposed amendmentsin §4.264(b)(7) require a United States Geological Survey topographicmap or an equivalent topographic map to be included with the permitapplication. The map shall show the items proposed in subsection (b)(7)(A)through (b)(7)(K).

New language is proposed in §4.266 to incorporate requirementsfrom House Bill 3516. Proposed subsection (a) establishes design andconstruction standards for pits at off-lease commercial fluid recyclingfacilities. Proposed subsection (a)(5) contains new liner requirementsfor such pits permitted after July 1, 2025. Proposed subsection (a)(6)-(a)(10)outline requirements for installation of liners and requirements toensure liner integrity is maintained. Proposed subsection (a)(11)requires the pit to be designed to prevent run-on of any non-contactstormwater, precipitation, or surface water. Proposed subsection (a)(12)requires pits to be designed to operate with a minimum two feet offreeboard plus the capacity to contain the volume of precipitationfrom a 25-year, 24-hour rainfall event. Proposed subsection (b) requirestanks and treatment equipment to be located within a secondary containmentsystem. Subsections (c) and (d) are renumbered due to the new requirementsproposed in subsections (a) and (b). Minor updates are also proposedin subsection (c) and (d), including a new requirement that the permitapplication for off-lease commercial recycling of fluid include aplan for installing monitoring wells.

Amendments proposed in §4.268 add a requirement that the samplingplan submitted with the permit application ensures compliance withreuse requirements in the permit in addition to other permit conditions.Additionally, the application shall include a plan to verify thatfluid oil and gas wastes are confined to the facility pits, tanks,and processing areas. Proposed amendments in §4.268(3) clarifythat the required schedule for conducting periodic inspections shallinclude plans to inspect pits and liner systems, equipment, processing,and other waste storage areas.

Amendments are proposed in §4.269 to comply with House Bill3516's requirement that the Commission adopt rules establishing uniformstandards for estimating closure costs. The requirements for closurecost estimates (CCEs) in §4.269 are consistent with the CCE standardsproposed for commercial facilities permitted under Subchapter A. Theexisting language in §4.269 is proposed to be amended as subsection(b) and contains amendments to include additional information in thepermit application relating to closure, including information to addressthe requirements of §4.276 (relating to Minimum Permit Provisionsfor Closure), a plan to close all storage pits, treatment equipment,and associated piping and other storage or waste processing equipment,and information to show how the disturbed areas of the facility willbe contoured and reseeded with geographically appropriate vegetation.

Proposed amendments in §4.271 correct an error and updateterms to ensure consistency throughout the chapter.

The Commission proposes amendments in §4.272 to add a presumptionthat an applicant's proposed location for an off-lease commercialfluid recycling facility does not present an unreasonable risk ofpollution or threat to public health or safety if the permit applicationcomplies with §4.264(a). The proposed amendments also removeoutdated language that no longer applies, increase the required distancea facility may be located from surface water or certain water wells,and clarify certain factors the Commission will consider in assessingpotential risk associated with an off-lease commercial fluid recyclingfacility. Specifically, the Commission proposes to clarify that itwill consider the distance to any surface water body, whether wetor dry.

In addition to the minor updates described above, the Commissionproposes to amend §4.273 to add new subsections (f), (g), and(h). Proposed subsection (f) limits where an operator may locate materialexcavated during construction of an off-lease commercial fluid recyclingfacility. Proposed subsection (g) contains signage, fencing, and securityrequirements. Proposed subsection (h) requires that any pit associatedwith an off-lease commercial fluid recycling facility permitted afterJuly 1, 2025, shall comply with the requirements of §4.265(a).

The Commission proposes new requirements in §4.274(e) to prohibitaccumulation of oil on top of produced or treated water stored inthe tanks and pits. Any oil on top of the liquids shall be skimmedoff and handled in accordance with Commission rules. Any recoveredoil shall be recorded and filed with the Commission on the appropriateforms or through an electronic filing system.

New requirements for operating an off-lease commercial fluid recyclingfacility are proposed in §4.275(a) and (c). Existing languageis renumbered as subsection (b). Proposed new requirements relateto monitoring, such as weekly inspections, inspection logs, and weeklymonitoring of the leak detection system, and also contain standardsfor determining when the primary liner has failed and required stepsif the primary liner is compromised. Proposed subsection (a)(6) prohibitsthe facility from receiving waste until groundwater monitoring wellsare completed, developed, and sampled if groundwater monitoring wellsare required. The Commission also proposes a figure in subsection(a)(6), which contains the required parameters for sampling. Proposedsubsection (c) contains a quarterly reporting requirement.

New language is proposed in §4.276 to replace the minimumpermit provisions for closure. Proposed new subsection (a)(1) requiresan operator to notify the Commission within 60 days after cessationof operations. Proposed new subsection (a)(2) requires an operatorto notify the Commission 45 days before the commencement of closureactivities. Proposed subsection (b) requires that complete closureof a facility occur within one year from the date operations cease.An extension to the required one-year timeframe may be granted butshall not exceed one additional year. Proposed subsection (c) requiresthat the operator remove all fluids from treatment equipment and tankswithin 60 days of the date operations cease and dispose of the contentsin an authorized manner. All fluid from pits shall be removed withinsix months of the date operations cease. Proposed subsections (c)(3)through (c)(5) contain requirements for other wastes, liners, concreteareas and access roads, and visibly contaminated soils. Requirementsfor sampling and analysis of the area around and underneath each pit,processing area, and waste storage are proposed in subsection (d).The Commission also proposes a figure in subsection (d)(1), whichcontains the required parameters for sampling. Proposed subsection(e) requires that the facility be restored to a safe and stable conditionthat blends with the surrounding land, and the subsection includesrequirements for replacing and contouring topsoil and subsoils toachieve erosion control, long-term stability, and preservation ofsurface water flow patterns. The Commission also proposes to requirethe operator to re-vegetate the site as appropriate for the geographicregion and include a planned water source to establish the re-vegetatedareas. Proposed subsection (f) requires an operator to submit a closurereport within 60 days of closure completion and specifies the contentsof the report. Proposed subsection (g) states that the operator shallnotify the Commission when closure and re-vegetation are completeand proposed subsection (h) states that the Commission will inspectthe site to verify compliance with closure requirements. As statedin proposed subsection (g), financial security will not be releasedto the operator until all post-closure activities are approved bythe Commission, including Technical Permitting and Site Remediationas applicable.

Proposed amendments in §4.278 update requirements for filingan application for a stationary commercial fluid recycling facility.The amendments proposed in subsection (a) ensure that an applicationis filed on a Commission prescribed form and that it is filed withTechnical Permitting in addition to the district office. Amendmentsproposed in subsections (a) and (c) clarify when an application isconsidered complete. Proposed changes in subsection (c) clarify thatafter the second supplemental submission, if the application is complete,the Director shall act on the application. The Director's action onthe application shall be to approve the application if it meets requirementsand has not been protested, to refer the application to the HearingsDivision if the application meets requirements and the applicationhas been protested, or to deny the application if it does not meetthe requirements. If after the second supplemental submission theapplication is still incomplete, the Director shall administrativelydeny the application. Additional amendments are proposed in subsection(d) to implement the requirements of House Bill 3516 (87th Legislature,2021), which require the Commission to approve or deny a completeapplication that does not include a request for an exception not laterthan the 90th day after the date the complete application was receivedby the Commission, unless a protest is filed. Further, if the Commissiondoes not approve or deny the application before the 90th day, thepermit application is considered approved, and the applicant may operateunder the terms specified in the application for a period of one year.Proposed subsection (f) clarifies that filings are required to bemade electronically if an electronic version or electronic filingsystem is available.

The Commission proposes amendments in §4.279 to incorporateadditional requirements for engineering, geological, and other informationsubmitted in an application for a stationary commercial fluid recyclingpermit. Information filed with the application shall be sufficientto describe the subsurface geology and hydrogeology underlying thefacility to a depth of at least 100 feet and evaluate the geology,hydrogeology, and proposed engineering design. Proposed subsections(b) and (c) specify how an operator may obtain information for engineeringand geological site characterization, and how an operator may establishbackground concentrations if the operator intends to rely on thoseconcentrations during operations or at closure.

Section 4.280 is proposed to be amended to include House Bill 3516'srequirement that the Commission establish minimum siting standardsfor fluid recycling pits. The proposed amendments ensure that pitsat stationary commercial fluid recycling facilities are not located(1) where there has been observable groundwater within 100 feet ofthe ground surface unless the pit design includes a geosynthetic clayliner (GCL); (2) within a sensitive area as defined by §4.110of this title (relating to Definitions); (3) within 300 feet of surfacewater, domestic supply wells, or irrigation water wells; (4) within500 feet of any public water system wells or intakes; (5) within 1,000feet of a permanent residence, school, hospital, institution or churchin existence at the time of the initial permitting; (6) within 500feet of a wetland; or (7) within a 100-year floodplain. Proposed amendmentsin §4.280(b)(7) require a United States Geological Survey topographicmap or an equivalent topographic map to be included with the permitapplication. The map shall show the items proposed in subsection (b)(7)(A)through (b)(7)(K).

New language is proposed in §4.282 to incorporate requirementsfrom House Bill 3516. Proposed subsection (a) establishes design andconstruction standards for pits at stationary commercial fluid recyclingfacilities. Proposed subsection (a)(5) contains new liner requirementsfor such pits permitted after July 1, 2025. Proposed subsection (a)(6)-(a)(10)outline requirements for installation of liners and requirements toensure liner integrity is maintained. Proposed subsection (a)(11)requires the pit to be designed to prevent run-on of any non-contactstormwater, precipitation, or surface water. Proposed subsection (a)(12)requires pits to be designed to operate with a minimum two feet offreeboard plus the capacity to contain the volume of precipitationfrom a 25-year, 24-hour rainfall event. Proposed subsection (b) requirestanks and treatment equipment to be located within a secondary containmentsystem. Subsections (c) and (d) are renumbered due to the new requirementsproposed in subsections (a) and (b). Minor updates are also proposedin subsections (c) and (d).

Proposed amendments in §4.283 clarify that the required wasteacceptance plan shall identify specific types of oil and gas wastesand provides examples such as hydraulic fracturing flowback fluidand produced water.

Amendments proposed in §4.284 add a requirement that the samplingplan submitted with the permit application ensures compliance withreuse requirements in the permit in addition to other permit conditions.Additionally, the application shall include a plan for monitoringgroundwater based on the subsurface geology and hydrogeology, whichmay include the installation and sampling of monitoring wells, anda plan to verify that fluid oil and gas wastes are confined to thefacility pits, tanks, and processing areas. Proposed amendments in §4.284(3)clarify that the required schedule for conducting periodic inspectionsshall include plans to inspect pits and liner systems, equipment,processing, and other waste storage areas.

Amendments proposed in §4.285 conform to proposed §4.269and comply with House Bill 3516's requirement that the Commissionadopt rules establishing uniform standards for estimating closurecosts. The requirements for closure cost estimates (CCEs) are alsoconsistent with the CCE standards proposed for commercial facilitiespermitted under Subchapter A. The existing language in §4.285is proposed to be amended as subsection (b) and contains amendmentsto include additional information in the permit application relatingto closure, including information to address the requirements of §4.292(relating to Minimum Permit Provisions for Closure), a plan to closeall storage pits, treatment equipment, and associated piping and otherstorage or waste processing equipment, and information to show howthe disturbed areas of the facility will be contoured and reseededwith geographically appropriate vegetation.

The Commission proposes amendments in §4.288 to add a presumptionthat an applicant's proposed location for a stationary commercialfluid recycling facility does not present an unreasonable risk ofpollution or threat to public health or safety if the permit applicationcomplies with §4.280(a). The proposed amendments also clarifycertain factors the Commission will consider in assessing potentialrisk associated with a stationary commercial fluid recycling facility.Specifically, the Commission proposes to clarify that it will considerthe distance to any surface water body, whether wet or dry.

In addition to the minor updates described above, the Commissionproposes to amend §4.289 to add new subsections (f), (g), and(h). Proposed subsection (f) limits where an operator may locate materialexcavated during construction of a stationary commercial fluid recyclingfacility. Proposed subsection (g) contains signage, fencing, and securityrequirements. Proposed subsection (h) requires that any pit associatedwith a stationary commercial fluid recycling facility permitted afterJuly 1, 2025, shall comply with §4.282(a).

The Commission proposes new requirements in §4.290(e) to prohibitaccumulation of oil on top of produced or treated water stored inthe tanks and pits. Any oil on top of the liquids shall be skimmedoff and handled in accordance with Commission rules. Any recoveredoil shall be recorded and filed with the Commission on the appropriateforms or through an electronic filing system.

New requirements for operating a stationary commercial fluid recyclingfacility are proposed in §4.291(a) and (c). Existing languageis renumbered as subsection (b). Proposed new requirements relateto monitoring, such as weekly inspections, inspection logs, and weeklymonitoring of the leak detection system, and also contain standardsfor determining when the primary liner has failed and required stepsif the primary liner is compromised. Proposed subsection (a)(6) prohibitsthe facility from receiving waste until groundwater monitoring wellsare completed, developed, and sampled if groundwater monitoring wellsare required. The Commission also proposes a figure in subsection(a)(6), which contains the required parameters for sampling. Proposedsubsection (c) contains a quarterly reporting requirement.

New language is proposed in §4.292 to replace the minimumpermit provisions for closure. Proposed new subsection (a)(1) requiresan operator to notify the Commission within 60 days after cessationof operations. Proposed new subsection (a)(2) requires an operatorto notify the Commission 45 days before the commencement of closureactivities. Proposed subsection (b) requires that complete closureof a facility occur within one year from the date operations cease.An extension to the required one-year timeframe may be granted butshall not exceed one additional year. Proposed subsection (c) requiresthat the operator remove all fluids from treatment equipment and tankswithin 60 days of the date operations cease and dispose of the contentsin an authorized manner. All fluid from pits shall be removed withinsix months of the date operations cease. Proposed subsections (c)(3)through (c)(5) contain requirements for other wastes, liners, concreteareas and access roads, and visibly contaminated soils. Requirementsfor sampling and analysis of the area around and underneath each pit,processing area, and waste storage are proposed in subsection (d).The Commission also proposes a figure in subsection (d)(1), whichcontains the required parameters for sampling. Proposed subsection(e) requires that the facility be restored to a safe and stable conditionthat blends with the surrounding land, and the subsection includesrequirements for replacing and contouring topsoil and subsoils toachieve erosion control, long-term stability, and preservation ofsurface water flow patterns. The Commission also proposes to requirethe operator to re-vegetate the site as appropriate for the geographicregion and include a planned water source to establish the re-vegetatedareas. Proposed subsection (f) requires an operator to submit a closurereport within 60 days of closure completion and specifies the contentsof the report. Proposed subsection (g) states that the operator shallnotify the Commission when closure and re-vegetation are completeand proposed subsection (h) states that the Commission will inspectthe site to verify compliance with closure requirements. As statedin proposed subsection (g), financial security will not be releasedto the operator until all post-closure activities are approved bythe Commission, including Technical Permitting and Site Remediationas applicable.

Finally, the Commission proposes new rules in Subchapter B, Division7 (relating to Beneficial Use of Drill Cuttings) to satisfy requirementsof Senate Bill 1541 (85th Legislature, 2017). Senate Bill 1541 instructedthe Commission to adopt criteria for beneficial uses to ensure thata beneficial use of recycled drill cuttings is at least as protectiveof public health, public safety, and the environment as the use ofan equivalent product made without recycled drill cuttings. Proposed§4.301 includes requirements for treatment and recycling forbeneficial use of drill cuttings. The requirements in §4.301must be met in addition to the requirements of Divisions 3 and 4 ofSubchapter B, which relate to Requirements for Off-Lease or CentralizedCommercial Solid Oil and Gas Waste Recycling, and Requirements forStationary Commercial Solid Oil and Gas Waste Recycling Facilities, respectively.

Proposed §4.301(b) states that a permit for the treatmentand recycling for beneficial use of drill cuttings may be approvedif the drill cuttings are used (1) in a legitimate commercial productfor the construction of oil and gas lease pads or oil and gas leaseroads; (2) in a legitimate commercial product for the constructionof county roads; or (3) in a legitimate commercial product used asa concrete bulking agent, oil and gas waste disposal pit cover orcapping material, treated aggregate, closure or backfill material,berm material, or construction fill if the applicant can demonstratethe requirements proposed in subsection (b)(3)(A) and (B). Legitimatecommercial product is defined in §4.204 as a product of a typecustomarily sold to the general public for a specific use and forwhich there is a demonstrated commercial market. Proposed §4.302includes requirements for showing there is a demonstrated commercialmarket for the treated drill cuttings. Proposed subsection (b) of§4.302 contains a requirement for the applicant for a permitunder Division 7 to perform a trial run that complies with proposedsubsection (b)(1) through (b)(6). The Commission proposes §4.302(c)(1)to impose specific requirements for use of treated and recycled drillcuttings in a legitimate commercial product for the construction ofoil and gas lease pads, oil and gas lease roads, and county roads.The Commission proposes a figure in subsection (c)(1), which containsrequired parameters for sampling of the treated drill cuttings.

Section 4.302(c)(2) imposes specific requirements for use of treatedand recycled drill cuttings as a concrete bulking agent, oil and gaswaste disposal pit cover or capping material, treated aggregate, closureor backfill material, berm material, or other construction fill materialas specified in §4.301(b). A figure is also proposed in subsection(c)(2) to list required parameters for sampling of treated and recycleddrill cuttings used for those purposes. The Commission proposes §4.302(c)(2)(E)to require an additional application to be submitted to the TechnicalPermitting Section after the section approves the initial permit toproduce the treated drill cuttings. The separate application requestsa letter of authority authorizing the application of the product toeach specific project and location. Proposed §4.302(c)(2)(E)(i)through (v) list the requirements of the application requesting theletter of authority. Proposed §4.302(c)(3) allows the Commissiondiscretion to require additional criteria prior to approving use oftreated drill cuttings in other legitimate commercial products notlisted in §4.302(c)(1) and (c)(2).

Paul Dubois, Director, Technical Permitting, Oil and Gas Division,has determined that for each year of the first five years that theproposed new rules and amendments will be in effect, there will beno foreseeable implications relating to cost or revenues for localgovernments as a result of enforcing or administering the new rulesand amendments. There will, however, be a one-time cost of approximately$2 million for the Commission to create an online registration systemfor authorized pits. Other activities under the proposed rules, suchas permitting and enforcing waste management activities, will be performedby existing personnel and within current budget constraints, resultingin no additional costs to the agency.

Mr. Dubois has determined that for each year of the first fiveyears that the new rules and amendments will be in effect, there willbe additional economic costs for some required to comply with theproposed new rules and amendments. However, these proposed new rulesare generally consistent with current Commission practices, and theCommission finds that they are necessary to meet the existing "nopollution" standard incorporated into proposed new §4.101. Primarysources of new costs for operators include new siting restrictions,which may prohibit pits and disposal methods at certain locations,thereby requiring the use of above-ground tanks and, possibly, off-sitedisposal of certain wastes. In addition, new numerical criteria forthe waste/soil mixture after authorized landfarming and authorizeddisposal of wastes by burial may result in the need for additionalsoil analysis. Compliance with the new requirements to use linersin certain authorized and permitted pits will result in increasedcosts. Also, new financial security requirements for produced waterrecycling pits represent a significant change from current §3.8.

Mr. Dubois has calculated the following estimates concerning potentialchanges in cost for specific activities in the amendments. Severalof the proposed rules require new analytical requirements for soil,waste, or water media. For activities covered by proposed new §4.111,analytical costs for water condensate for benzene, toluene, ethylbenzeneand xylene are estimated to be $35 per sample. Total petroleum hydrocarbonsanalysis of soil in a landfarm cell is estimated to be $45 per sample.Closure of Schedule B authorized pits in §4.115 may require analyticalcosts for soil of about $208 per sample. Analysis of groundwater samplesfrom monitoring wells may cost about $198 per sample. The cost forsoils analysis at a permitted landfarming or landtreating facilityis estimated to be about $285 and $355 per sample, respectively. Althoughthese sampling requirements and corresponding costs are new in Commissionrules, they are currently required by Commission permits.

Groundwater monitoring wells are currently required by Commissionguidance and permits when groundwater is expected to be encounteredat depths of less than 100 feet below ground surface. This requirementis now proposed in §4.131 for all permitted pits, and in §4.115for produced water recycling pits that do not have double syntheticliners and leak detection systems. Because produced water recyclingpits are large, long-term infrastructure pits that may pose a riskto groundwater, the Commission understands the risks to groundwaterwarrant extra measures to monitor the potential for a release. Thecost to drill and complete a 100-foot-deep groundwater monitoringwell is estimated to be about $15,000 per well. However, most producedwater recycling pits are built with double liners and leak detectionsystems and, therefore, would not be required to install groundwatermonitoring wells.

Two types of pits that were authorized by §3.8 are no longerauthorized by proposed §4.113--flare pits and basic sedimentpits. An operator may choose to use these pits, but they must be permitted;the requirement to obtain a permit may introduce a cost to the operator.The Commission understands that flare pits are rarely used, and inmany cases portable containers are used in lieu of basic sedimentpits. In addition, §4.114 requires Schedule A authorized pitsto be lined if groundwater is likely to be encountered less than 50feet from the bottom of the pit. The liner must have a hydraulic conductivitythat is 1.0 x 10-7 cm/sec or less, and the liner can be of naturalor synthetic material. Synthetic liners cost from $0.50 per squarefoot. Many operators have informed the Commission that native soilsmeet the proposed hydraulic conductivity requirements in many instances,and operators install synthetic liners when needed as a current practice.It is not expected that this requirement will significantly affectoperators' costs.

Mr. Dubois has determined that the proposed financial securityrequirements for produced water recycling pits in §4.115, asauthorized by the Natural Resources Code §91.109(a), is a significantchange, as operators of non-commercial fluid recycling pits are notrequired to carry additional financial security for these pits underthe predecessor rule §3.8. Currently, Mr. Dubois estimates thereare 588 non-commercial fluid recycling pits in the three districtsthat comprise the Permian Basin that would qualify as produced waterrecycling pits. These pits are operated by 85 different operators;36 operators have one pit, and 18 operators have more than five pits.The average size of a non-commercial fluid recycling pit is about500,000 bbl. The proposed rule provides operators flexibility, allowingseveral options for filing the appropriate financial security forthe size and number of produced water recycling pits. An operatorof one average pit of 500,000 bbl could file financial security inthe amount of $1/bbl, or $500,000. Mr. Dubois estimates a bond of$500,000 would cost an operator about 3%, or $15,000, per year. Inanother scenario, an operator of 10 pits with a total capacity of7,000,000 bbl could choose to file a maximum bond of $5,000,000, which,at an estimated cost of 3% would be $150,000 per year.

The proposed rules will set a permit term for reclamation plantpermits. Currently, reclamation plant permits do not expire, but underthe proposed rules these permits will expire in five years. Therewill likely be costs associated with permit renewal for stand-alonereclamation plants. However, the proposed rules also allow reclamationplant permits to be transferred to another operator, which is somethingthat is not currently allowed in the governing rule, §3.57. Manyreclamation plants are located at stationary treatment facilitieswith permits that renew every five years. In these cases, renewingthe reclamation plant permit should not significantly affect the costof permit renewal for the entire facility.

Activities covered by proposed new §4.121 are not anticipatedto result in increased costs due to siting restrictions because theproposed construction, operation and closure provisions in the proposedrule are consistent with current Commission practice under §3.8and the Commission's guidance documents published online in the SurfaceWaste Management Manual (https://www.rrc.texas.gov/oil-and-gas/publications-and-notices/manuals/surface-waste-management-manual/).

Mr. Dubois anticipates that any increase in cost as a result ofthe proposed new rules will be offset, at least in part, by more specificpermit application requirements that should result in more completeand acceptable permit applications, which will reduce correspondence,time, and effort involved in completing and processing an application.

Mr. Dubois does not expect that changes to the rules in SubchapterB will result in significant cost changes. Instead, Mr. Dubois anticipatesthat the changes to §4.115 (relating to Schedule B AuthorizedPits) will encourage the recycling of fluid oil and gas waste andmay actually reduce industry's reliance upon, Subchapter B, Divisions5 and 6 (relating to Requirements for Off-Lease Commercial Recyclingof Fluid and Requirements for a Stationary Commercial Fluid RecyclingFacility, respectively).

Mr. Dubois has determined that for each year of the first fiveyears that the new rules and amendments will be in effect, the publicbenefit will be having more specific standards for waste managementand the prevention of pollution from waste associated with oil andgas exploration, production, and development. These standards willaid operators in eliminating or reducing potential sources of pollutionand are consistent with industry practices. In addition, the proposedrules will create more transparency in industry waste management operations,especially through the requirements to register authorized pits andthe additional requirements for waste manifest documentation. Further,the proposed rules for notice of permit applications (§§4.125,4.141, 4.238, 4.254, 4.270, and 4.286) increase from 15 to 30 daysthe period of time an affected person has to protest a permit application.Finally, the Commission finds that the costs of compliance are morethan offset by the public benefit of enhanced protection of surfaceand subsurface water arising from implementation of the proposed new rules.

Texas Government Code, §2006.002, relating to Adoption ofRules with Adverse Economic Effect, requires that, before adoptinga rule that may have an adverse economic effect on rural communities,small businesses, or micro-businesses, a state agency prepare an economicimpact statement and a regulatory flexibility analysis. The economicimpact statement must estimate the number of rural communities andsmall businesses subject to the proposed rule and project the economicimpact of the rule on those stakeholders. A regulatory flexibilityanalysis must include the agency's consideration of alternative methodsof achieving the purpose of the proposed rule. If consistent withthe health, safety, and environmental and economic welfare of thestate, the analysis must consider the use of regulatory methods thatwill accomplish the objectives of applicable rules while minimizingadverse impacts on small businesses. Government Code §2006.001(2)defines "small business" as a legal entity, including a corporation,partnership, or sole proprietorship, that is formed for the purposeof making a profit; is independently owned and operated; and has fewerthan 100 employees or less than $6 million in annual gross receipts.A "micro-business" is defined as a legal entity, including a corporation,partnership, or sole proprietorship, that is formed for the purposeof making a profit; is independently owned and operated; and has nomore than 20 employees. A "rural community" means a municipality witha population of less than 25,000. The Commission does not anticipateany impact on rural communities due to the proposed new rules and amendments.

Entities that perform activities under the jurisdiction of theCommission are not required to report to the Commission their numberof employees or their annual gross receipts, which are elements ofthe definitions of "micro-business" and "small business" in TexasGovernment Code, §2006.001; therefore, the Commission has nofactual bases for determining whether any persons who drill and completewells under the jurisdiction of the Railroad Commission will be classifiedas small businesses or micro-businesses, as those terms are defined.The North American Industrial Classification System (NAICS) sets forthcategories of business types. Operators of oil and gas wells fallwithin the category for crude petroleum and natural gas extraction.This category is listed on the Texas Comptroller of Public Accountswebsite page entitled "HB 3430 Reporting Requirements-DeterminingPotential Effects on Small Businesses" as business type 2111 (Oil& Gas Extraction), for which there are listed 2,784 companiesin Texas. This source further indicates that 2,582 companies (92.7%)are small businesses or micro-businesses as defined in Texas GovernmentCode, §2006.001.

Based on this information available to the Commission regardingoil and gas operators, the Commission has concluded that, of the businessesthat could be affected by the proposed amendments, some may be classifiedas small businesses or micro-businesses, as those terms are definedin Texas Government Code, §2006.001. In addition, during developmentof the proposed rules, the Commission received input from many operatorsthat consider themselves small businesses, at least compared to otherlarger oil and gas operators. These smaller operators strongly voicedconcerns about initial changes that the Commission was consideringregarding requirements for authorized pits at drilling and productionlocations. During October and November 2023, the Commission circulateda draft of these new rules and amendments for informal public comment.The draft proposed significant changes to its regulation of authorizedpits that included new requirements for liners, groundwater monitoring,and closure. These proposed requirements placed additional burdens,and costs, on operators of all sizes. The smaller operators statedthat the costs were disproportionate to the environmental and safetybenefits offered by the proposed changes. Several of the smaller operatorsargued that there was little to no evidence of harm from existingpractices. After due consideration, the Commission agreed that lesseningthe impact to smaller operators was warranted and the current proposednew rules and amendments incorporate changes for authorized pits toachieve that goal.

The Commission has also determined that the proposed amendmentswill not affect a local economy. Therefore, the Commission has notprepared a local employment impact statement pursuant to Texas GovernmentCode §2001.022.

The Commission has determined that the amendments do not meet thestatutory definition of a major environmental rule as set forth inTexas Government Code, §2001.0225(a); therefore, a regulatoryanalysis conducted pursuant to that section is not required.

The Commission reviewed the proposed amendments and found thatthey encompass certain individual actions identified in Coastal CoordinationAct implementation rules (e.g., 31 TAC §29.11). The proposednew rules are consistent with Coastal Management Program policiesbecause the proposed new rules merely relocate existing practicesand standards from §3.8 to proposed new §4.197 (relatingto Consistency with the Texas Coastal Management Program). The onlychanges proposed in §4.197 are updates to ensure correct citationof Coastal Management Program Rules. Comments on consistency of theproposed rules with the Coastal Management Program may be submittedin addition to any substantive comments on the proposed new rulesand amendments.

During the first five years that the rules would be in full effect,the proposed new rules and amendments would create new regulations- new rules are proposed which update the Commission's regulationof waste management. Though some of the requirements exist in current§3.8, the new rules also update and modify waste management requirements.The proposed new rules and amendments also increase responsibilityfor some persons under the Commission's jurisdiction. The proposednew rules and amendments would not increase or decrease the numberof individuals subject to the rules. The activities and persons regulatedunder the proposed new rules and amendments were already requiredto comply with Commission regulations in §3.8, §3.57, andSubchapter B of Chapter 4. The proposed new rules and amendments donot create an increase in fees paid to the Commission, but do requireadditional financial security to be provided in accordance with TexasNatural Resources Code Section 91.109. Finally, the proposed new rulesand amendments would not affect the state's economy and would notrequire a change in employee positions.

Comments on the proposed new rules and amendments may be submittedto Rules Coordinator, Office of General Counsel, Railroad Commissionof Texas, P.O. Box 12967, Austin, Texas 78711-2967; online at www.rrc.texas.gov/general-counsel/rules/comment-form-for-proposed-rulemakings;or by electronic mail to rulescoordinator@rrc.texas.gov. The Commissionwill accept comments until 5:00 p.m. on Monday, September 30, 2024.The Commission finds that this comment period is reasonable becausethe proposal and an online comment form will be available on the Commission'swebsite more than two weeks prior to Texas Register publication ofthe proposal, giving interested persons additional time to review,analyze, draft, and submit comments. The Commission cannot guaranteethat comments submitted after the deadline will be considered. Forfurther information, call Mr. Dubois at (512) 463-6778. The statusof Commission rulemakings in progress is available at www.rrc.texas.gov/general-counsel/rules/proposed-rules.Once received, all comments are posted on the Commission's websiteat https://rrc.texas.gov/general-counsel/rules/proposed-rules/. Ifyou submit a comment and do not see the comment posted at this linkwithin three business days of submittal, please call the Office ofGeneral Counsel at (512) 463-7149. The Commission has safeguards toprevent emailed comments from getting lost; however, your operatingsystem's or email server's settings may delay or prevent receipt.

The Commission proposes the new rules and the amendments pursuantto Texas Natural Resources Code, §§81.051 and 81.052, whichgive the Commission jurisdiction over all persons owning or engagedin drilling or operating oil or gas wells in Texas and the authorityto adopt all necessary rules for governing and regulating personsand their operations under the jurisdiction of the Commission; TexasNatural Resources Code §81.0531, which gives the Commission authorityto assess penalties for violations of provisions of Title 3, TexasNatural Resources Code, which pertain to safety or the preventionor control of pollution or the provisions of a rule, order, license,permit, or certificate which pertain to safety or the prevention orcontrol of pollution and are issued under that title; Texas NaturalResources Code §§85.042, 85.202, and 86.042, which requirethe Commission to adopt rules to prevent waste of oil and gas; TexasNatural Resources Code §91.101, which gives the Commission authorityto adopt and enforce rules and orders and issue permits to preventpollution of surface water or subsurface water in the state; TexasNatural Resources Code §91.1017 (added by House Bill 2201, 87thLegislature), which requires the Commission to establish standardsgoverning permissible locations for pits used by commercial oil andgas disposal facilities; Texas Natural Resources Code §122.004(amended by House Bill 3516, 87th Legislature), which requires theCommission to adopt rules to govern the treatment and beneficial useof oil and gas waste, which shall encourage fluid oil and gas wasterecycling for beneficial purposes and to establish standards for theissuance of permits for commercial recycling of oil and gas waste;and Texas Natural Resources Code §123.0015 (added by Senate Bill1541, 85th Legislature), which requires the Commission to define "legitimatecommercial product" and adopt criteria for beneficial uses of recycleddrill cuttings; and Texas Water Code Chapter 29, which gives the Commissionauthority to adopt rules, issue permits, and assess penalties relatedto transporters of oil and gas waste.

SUBCHAPTER A. OIL AND GAS WASTE MANAGEMENT

DIVISION 1. GENERAL

16 TAC §§4.101 - 4.104, 4.106 - 4.109

Statutory authority: Texas Natural Resources Code,§§81.051, 81.052, 81.0351, 85.042, 85.202, 86.042; TexasNatural Resources Code §91.101 and §91.1017; Texas NaturalResources Code §122.004; Texas Natural Resources Code §123.0015;and Texas Water Code Chapter 29.

Cross reference to statute: Texas Natural Resources Code, Chapters81, 85, 86, 91, 122, and 123; and Texas Water Code Chapter 29.

§4.101.Prevention of Pollution.

(a) No person conducting activities subject to regulationby the Railroad Commission of Texas may cause or allow pollution ofsurface or subsurface water in the state.

(b) This subchapter establishes, for the purpose ofprotecting public health, public safety, and the environment withinthe scope of the Commission's statutory authority, the minimum permitting,operating, monitoring, and closure standards and requirements forthe management of wastes associated with activities governed by theCommission including those governed under:

(1) Texas Natural Resources Code Title 3, Subtitle B;

(2) Texas Natural Resources Code Title 3, SubtitleD, Chapters 121-123;

(3) Texas Natural Resources Code Title 5;

(4) Texas Health and Safety Code Chapter 382, Subchapter K; and

(5) Texas Water Code Chapters 26, 27 and 29.

(c) Other wastes described in subsection (b) of thissection are included when this subchapter refers to oil and gas waste(s)and may be managed in accordance with the provisions of this subchapterat facilities authorized under this subchapter provided the wastesare nonhazardous and chemically and physically similar to oil andgas wastes.

(d) Used oil as defined in §3.98 of this title(relating to Standards for Management of Hazardous Oil and Gas Waste)shall be managed in accordance with the provisions of 40 Code of FederalRegulations (CFR), Part 279.

§4.102.Responsibility for Oil and Gas Wastes.

(a) The generator of oil and gas waste is responsiblefor characterizing the waste.

(1) The generator may use process knowledge to categorizethe waste material in accordance with the categories listed in thedefinition of oil and gas waste in §4.110 of this title (relatingto Definitions).

(2) Laboratory analysis of waste may be required forwaste generated at a commercial facility, as that term is definedin §4.110 of this title, or when waste is transferred from onecommercial facility to another.

(3) The generator of an oil and gas waste that is notexempt from regulation under Subtitle C of the federal Solid WasteDisposal Act, as amended by the Resource Conservation and RecoveryAct of 1976, as amended, 42 USC §6901, et seq. as described in40 CFR §261.4(b), shall determine if such waste is a hazardousoil and gas waste by applying process knowledge of the hazard characteristicsof the waste in light of the materials or processes used or by testingthe waste.

(b) No person, operator, generator, receiver, or carriermay utilize the services of a carrier to transport oil and gas wastesif the carrier is required to have a permit to transport such wastesbut does not have a valid permit.

(c) No person, operator, generator, or carrier mayutilize the services of a receiver to manage oil and gas wastes ifthe receiver is required to have a permit to manage such wastes butdoes not have such a permit.

(d) No receiver may utilize the services of a secondreceiver to manage oil and gas wastes if the second receiver is requiredto have a permit to manage such wastes but does not have a valid permit.

(e) Any person who utilizes the services of a carrieror receiver is under a duty to determine that the carrier or receiverholds the appropriate authority from the Commission to manage or transportoil and gas wastes.

(f) No generator, carrier, receiver, or any other personmay improperly dispose of oil and gas wastes or cause or allow theimproper disposal of oil and gas wastes. A generator causes or allowsthe improper disposal of oil and gas wastes if:

(1) the generator utilizes the services of a carrieror receiver who improperly disposes of the wastes; and

(2) the generator knew or reasonably should have knownthat the carrier or receiver was likely to improperly dispose of thewastes and failed to take reasonable steps to prevent the improper disposal.

(g) No person may manage oil and gas wastes in a mannerthat violates Commission rules.

(h) Pursuant to Texas Natural Resources Code §91.142(h),any person, operator, permittee, or entity conducting activities underthe jurisdiction of the Commission shall notify the Commission ifit files for bankruptcy.

§4.103.Prohibited Waste Management Methods.

(a) Unless authorized by this subchapter, no personmay manage oil and gas wastes without obtaining a permit to managesuch wastes, except for the following methods:

(1) as authorized by §4.111 of this title (relatingto Authorized Disposal Methods for Certain Wastes);

(2) as authorized by §3.98 of this title (relatingto Standards for Management of Hazardous Oil and Gas Waste); or

(3) by underground injection for disposal permittedpursuant to §3.9 of this title (relating to Disposal Wells) or§3.46 of this title (relating to Fluid Injection into Productive Reservoirs).

(b) The discharge of oil and gas waste into any surfacewater defined under §4.110 of this title (relating to Definitions)is prohibited unless such discharge is authorized by and conductedin accordance with a Texas Pollutant Discharge Elimination System(TPDES) permit or authority issued by the Texas Commission on EnvironmentalQuality (TCEQ) or another regulatory agency with jurisdiction overdischarge of oil and gas wastes.

(c) No person may maintain or use any pit for storageof oil, oil products, or oil by-products.

(d) Except as authorized by this subchapter, no personmay maintain or use any pit for storage of oil field fluids or forstorage or disposal of oil and gas wastes without obtaining a permitto maintain or use the pit.

(e) Except as expressly provided by §3.30 of thistitle (relating to Memorandum of Understanding between the RailroadCommission of Texas (RRC) and the Texas Commission on EnvironmentalQuality (TCEQ)), no person may dispose of oil and gas wastes at afacility not under the jurisdiction of the Commission unless the Directorexpressly authorizes such disposal in writing.

(f) Except for those recycling methods authorized forcertain wastes by §4.112 of this title (relating to AuthorizedRecycling), no person may recycle any oil and gas wastes by any methodwithout obtaining a permit.

§4.104.Coordination Between the Commission and Other Regulatory Agencies.

(a) The Commission and TCEQ have adopted by rule aMemorandum of Understanding stating how the agencies will implementthe division of jurisdiction over wastes. The MOU is adopted in §3.30of this title (relating to Memorandum of Understanding between theRailroad Commission of Texas (RRC) and the Texas Commission on EnvironmentalQuality (TCEQ)).

(b) Activities authorized or permitted by this subchaptermay be subject to rules and regulations promulgated by the UnitedStates Environmental Protection Agency under the federal Clean AirAct or the TCEQ under the Texas Clean Air Act. The applicant shallobtain any required authority from other regulatory agencies priorto the receipt of waste authorized under this subchapter.

§4.106.Fees.

Applications submitted under this subchapter may be subjectto a fee and surcharge pursuant to §3.78 of this title (relatingto Fees and Financial Security Requirements).

§4.107.Penalties.

(a) Policy. Improved safety and environmental protectionare the desired outcomes of any enforcement action. Encouraging operatorsto take appropriate voluntary corrective and future protective actionsonce a violation has occurred is an effective component of the enforcementprocess. Deterrence of violations through penalty assessments is alsoa necessary and effective component of the enforcement process. Arule-based enforcement penalty guideline to evaluate and rank oil-and natural gas-related violations is consistent with the centralgoal of the Commission's enforcement efforts to promote compliance.Penalty guidelines set forth in this section will provide a frameworkfor more uniform and equitable assessment of penalties throughoutthe state, while also enhancing the integrity of the Commission'senforcement program.

(b) Only guidelines. This section complies with therequirements of Texas Natural Resources Code §81.0531 and §91.101,which provide the Commission with the authority to adopt rules, enforcerules, and issue permits relating to the prevention of pollution.The penalty amounts shown in the tables in this section are providedsolely as guidelines to be considered by the Commission in determiningthe amount of administrative penalties for violations of provisionsof Texas Natural Resources Code, Title 3; Texas Water Code, Chapters26, 27, and 29, that are administered and enforced by the Commission;or the provisions of a rule adopted or order, license, permit, orcertificate issued under Texas Natural Resources Code, Title 3, orTexas Water Code, Chapters 26, 27, and 29. This rule does not contemplateautomatic enforcement without cause. Operators may correct violationsat a facility with approval of Commission staff before being referredto legal enforcement.

(c) Commission authority. The establishment of thesepenalty guidelines shall in no way limit the Commission's authorityand discretion to cite violations and assess administrative penalties.The guideline minimum penalties listed in this section are for themost common violations cited; however, this is neither an exclusivenor an exhaustive list of violations that the Commission may cite.The Commission retains full authority and discretion to cite violationsof Texas Natural Resources Code, Title 3; including Nat. Res. Code §91.101,which provides the Commission with the authority to adopt rules, enforcerules, and issue permits relating to the prevention of pollution;the provisions of Texas Water Code, Chapters 26, 27, and 29, thatare administered and enforced by the Commission; and the provisionsof a rule adopted or an order, license, permit, or certificate issuedunder Texas Natural Resources Code, Title 3, or Texas Water Code,Chapters 26, 27, and 29, and to assess administrative penalties inany amount up to the statutory maximum when warranted by the factsin any case, regardless of inclusion in or omission from this section.

(d) Factors considered. The amount of any penalty requested,recommended, or finally assessed in an enforcement action will bedetermined on an individual case-by-case basis for each violation,taking into consideration the following factors:

(1) the facility's history of previous violations;

(2) the operator's history of previous violations;

(3) the seriousness of the violation;

(4) any hazard to the health or safety of the public; and

(5) the demonstrated good faith of the operator charged.

(e) Typical penalties. Regardless of the method bywhich the guideline typical penalty amount is calculated, the totalpenalty amount will be within the statutory limit. A guideline oftypical penalties for violations of Texas Natural Resources Code,Title 3; the provisions of Texas Water Code, Chapters 26, 27, and29, that are administered and enforced by the Commission; and theprovisions of a rule adopted or an order, license, permit, or certificateissued under Texas Natural Resources Code, Title 3, or Texas WaterCode, Chapters 26, 27, and 29, are set forth in Table 1.

Figure: 16 TAC §4.107(e) (.pdf)

(f) Penalty enhancements for certain violations. Forviolations that involve threatened or actual pollution; result inthreatened or actual safety hazards; or result from the reckless orintentional conduct of the operator charged, the Commission may assessan enhancement of the guideline penalty amount. The enhancement maybe in any amount in the range shown for each type of violation asshown in Table 2.

Figure: 16 TAC §4.107(f) (.pdf)

(g) Penalty enhancements for certain violators. Forviolations in which the operator charged has a history of prior violationswithin seven years of the current enforcement action at any facilityregulated by the Commission, the Commission may assess an enhancementbased on either the number of prior violations or the total amountof previous administrative penalties, but not both. The actual amountof any penalty enhancement will be determined on an individual case-by-casebasis for each violation. The guidelines in Tables 3 and 4 are intendedto be used separately. Either guideline may be used where applicable,but not both.

Figure 1: 16 TAC §4.107(g) (.pdf)

Figure 2: 16 TAC §4.107(g) (.pdf)

(h) Penalty reduction for accelerated settlement beforehearing. The recommended monetary penalty for a violation may be reducedby up to 50% if the operator charged agrees to an accelerated settlementbefore the Commission conducts an administrative hearing to prosecutea violation. Once the hearing is convened, the opportunity for theoperator charged to reduce the basic monetary penalty is no longeravailable. The reduction applies to the basic penalty amount requestedand not to any requested enhancements.

(i) Demonstrated good faith. In determining the totalamount of any monetary penalty requested, recommended, or finallyassessed in an enforcement action, the Commission may consider, onan individual case-by-case basis for each violation, the demonstratedgood faith of the operator charged. Demonstrated good faith includes,but is not limited to, actions taken by the operator charged beforethe filing of an enforcement action to remedy, in whole or in part,a violation or to mitigate the consequences of a violation.

(j) Penalty calculation worksheet. The penalty calculationworksheet shown in Table 5 lists the guideline minimum penalty amountsfor certain violations; the circ*mstances justifying enhancementsof a penalty and the amount of the enhancement; and the circ*mstancesjustifying a reduction in a penalty and the amount of the reduction.

Figure: 16 TAC §4.107(j) (.pdf)

§4.108.Electronic Filing Requirements.

(a) A person shall file electronically any form orapplication for which the Commission has provided an electronic versionor an electronic filing system. The person shall comply with all requirements,including but not limited to fees and security procedures, for electronic filing.

(b) The Commission deems a person that files electronicallyor on whose behalf is filed electronically any form, or hard copyif the Commission has not approved a digital format, as of the timeof filing, to have knowledge of and to be responsible for the information filed.

(c) All electronic filings that a person submits orthat are submitted on behalf of a person shall be transmitted in themanner prescribed by the Commission that is compatible with its software,equipment, and facilities.

(d) The Commission may provide notice electronicallyto a person, and may provide a person the ability to confirm electronically,the Commission's receipt of a filing submitted electronically by oron behalf of that person.

(e) The Commission deems that the signature of a person'sauthorized representative appears on each filing submitted electronicallyby or on behalf of the person, as if this signature actually appears,as of the time the filing is submitted electronically to the Commission.

(f) The Commission holds each person responsible, underthe penalties prescribed in Texas Natural Resources Code, §91.143,for all forms, information, or data that a person files or that arefiled on the person's behalf. The Commission charges each person withthe obligation to review and correct, if necessary, all forms, information,or data that a person files or that are filed on the person's behalf.

§4.109.Exceptions.

(a) An applicant or permittee may request an exceptionto the provisions of this subchapter by submitting to the Directora written request and demonstrating that the requested alternativeis at least equivalent in the protection of public health and safety,and the environment, as the provision of this subchapter to whichthe exception is requested. The following provisions are ineligiblefor exceptions:

(1) the requirements related to financial securityfound in §§4.122, 4.140, 4.150, and 4.171 of this title(relating to Permit Renewals, Transfers, and Amendments; AdditionalRequirements for Commercial Facilities; Additional Requirements Applicableto Permitted Pits; and Standard Permit Provisions, respectively);

(2) the notice requirements found in §§4.122,4.123, 4.125 and 4.141 of this title (relating to Permit Renewals,Transfers, and Amendments; Permit Modification, Suspension, and Termination;Notice and Opportunity to Protest; and Additional Notice Requirementsfor Commercial Facilities, respectively); and

(3) the requirements related to sampling and analysisfound in §§4.124, 4.129, 4.131, 4.132, 4.163, and 4.164of this title (relating to Requirements Applicable to All Permit Applicationsand Reports; Operation; Monitoring; Closure; Monitoring; and Closure, respectively).

(b) Each application for an exception to a rule inthis subchapter shall be accompanied by the exception fee and surchargerequired by §3.78(b)(4) and (n) of this title (relating to Feesand Financial Security Requirements).

(c) Notwithstanding subsections (a) and (b) of thissection, until July 1, 2026 the director may grant special exceptionssolely for the purpose of issuing permits for waste management unitsthat were authorized pits pursuant to §3.8 of this title (relatingto Water Protection) prior to July 1, 2025 but that are no longerauthorized pursuant to this subchapter.

(d) The Director shall review each written requestfor an exception on a case-by-case basis.

(e) If the Director denies a request for an exception,the applicant or permittee may request a hearing consistent with thehearing provisions of this subchapter relating to hearings requestsbut shall not use the requested alternative until the alternativeis approved by the Commission.

The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.

Filed with the Office of the Secretary of State on August 16, 2024.

TRD-202403751

Haley Cochran

Assistant General Counsel, Office of General Counsel

Railroad Commission of Texas

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 475-1295

16 TAC §4.110

Statutory authority: Texas Natural Resources Code,§ §81.051, 81.052, 81.0351, 85.042, 85.202, 86.042; TexasNatural Resources Code §91.101 and §91.1017; Texas NaturalResources Code §122.004; Texas Natural Resources Code §123.0015;and Texas Water Code Chapter 29.

Cross reference to statute: Texas Natural Resources Code, Chapters81, 85, 86, 91, 122, and 123; and Texas Water Code Chapter 29.

§4.110. Definitions.

The following words and terms when used in this chapter shallhave the following meanings unless the context clearly indicates otherwise.

(1) 25-year, 24-hour rainfall event--The maximum 24-hourprecipitation event, in inches, with a probable recurrence intervalof once in 25 years, as defined by the National Weather Service andpublished by the National Oceanic and Atmospheric Administration forthe county in which the waste management activity is occurring.

(2) 100-year flood--A flood that has a 1.0% or greaterchance of occurring in any given year or a flood of a magnitude equaledor exceeded once in 100 years on the average over a significantlylong period.

(3) 100-year flood plain--The lowland and relativelyflat areas adjoining inland and coastal waters, including flood-proneareas of offshore islands, that are inundated by the 100-year flood,as determined from maps or other data from the U.S. Army Corps ofEngineers or the Federal Emergency Management Agency (FEMA).

(4) Action leakage rate--The calculated volume of wasteliquid that has bypassed the primary liner into the leak detectionlayer at a rate of gallons per acre per day that if exceeded indicatesfailure of the primary liner.

(5) Active cell--A waste management unit that has receivedoil and gas waste and has not completed closure.

(6) Active life--The period of time beginning whena waste management unit first receives waste and ending when closureof the waste management unit is complete.

(7) Activities associated with the exploration, development,and production of oil or gas or geothermal resources--Activities associated with:

(A) the drilling of exploratory wells, oil wells, gaswells, injection wells, disposal wells, or geothermal resource wells;

(B) the production of oil or gas or geothermal resources,including activities associated with:

(i) the drilling of injection water source wells thatpenetrate the base of usable quality water;

(ii) the drilling of cathodic protection holes associatedwith the cathodic protection of wells and pipelines subject to thejurisdiction of the Commission to regulate the production of oil orgas or geothermal resources;

(iii) the drilling of seismic holes and core holessubject to the jurisdiction of the Commission to regulate the exploration,development, and production of oil or gas or geothermal resources;

(iv) gasoline plants, natural gas or natural gas liquidsprocessing plants, pressure maintenance plants, or repressurizing plants;

(v) any underground natural gas storage facility, providedthe terms "natural gas" and "storage facility" shall have the meaningsset out in the Texas Natural Resources Code §91.173;

(vi) any underground hydrocarbon storage facility,provided the terms "hydrocarbons" and "underground hydrocarbon storagefacility" shall have the meanings set out in the Texas Natural ResourcesCode §91.201; and

(vii) the storage, handling, reclamation, gathering,transportation, or distribution of oil or gas prior to the refiningof such oil or prior to the use of such gas in any manufacturing processor as a residential or industrial fuel;

(C) the operation, abandonment, and proper pluggingof wells subject to the jurisdiction of the Commission to regulatethe exploration, development, and production of oil or gas or geothermal resources; and

(D) the management of oil and gas waste or any othersubstance or material associated with any activity listed in subparagraphs(A) - (C) of this paragraph, except for waste generated in connectionwith activities associated with gasoline plants, natural gas or naturalgas liquids processing plants, pressure maintenance plants, or repressurizingplants if that waste is a hazardous waste as defined by the administratorof the United States Environmental Protection Agency (EPA) pursuantto the federal Solid Waste Disposal Act, as amended (42 USC §6901,et seq.).

(8) Affected person--A person who, as a result of theactivity sought to be permitted, has suffered or may suffer actualinjury or economic damage other than as a member of the general publicor a competitor.

(9) Alluvium and Quaternary sand and gravel--Unconsolidatedsediments consisting of gravel, sand, and/or silt, which typicallyexhibit high porosity and high permeability.

(10) Aquifer--A geological formation, group of formations,or portion of a formation capable of yielding significant quantitiesof groundwater to wells or springs.

(11) ASTM--ASTM International (successor to the AmericanSociety for Testing and Materials).

(12) Authorized--An activity that is permitted or allowedby a rule.

(13) Authorized pit--A reserve pit, mud circulationpit, completion/workover pit, fresh makeup water pit, fresh miningwater pit, water condensate pit, or produced water recycling pit thatis permitted by rule and described and operated in accordance withDivision 3 of this subchapter (relating to Operations Authorized by Rule).

(14) Basic sediment--A mixture of crude oil or leasecondensate, water, sediment, and other substances or hydrocarbon-bearingmaterials that are concentrated at the bottom of tanks and pipelinestorage tanks (also referred to as "basic sediment and water" or "tank bottoms").

(15) Brine pit--A pit used for storage of brine inconnection with the solution mining of brine, the operation of anunderground hydrocarbon storage facility, or other activities associatedwith oil and gas exploration, development, storage or production thatinvolve the creation or use of a salt cavern.

(16) Buffer zone--The minimum distance allowed betweena waste management unit and another feature, such as a property boundary,surface water, or water well.

(17) Carrier--A person who is permitted to transportoil and gas wastes. A carrier of another person's oil and gas wastesmay be a generator of its own oil and gas wastes. A permitted wastehauler is a carrier.

(18) Coastal Management Program (CMP) rules--The enforceablerules of the Texas Coastal Management Program codified at 31 TexasAdministrative Code Chapters 26 through 29.

(19) Coastal Natural Resource Area (CNRA)--One of thefollowing areas defined in Texas Natural Resources Code §33.203:coastal barriers, coastal historic areas, coastal preserves, coastalshore areas, coastal wetlands, critical dune areas, critical erosionareas, gulf beaches, hard substrate reefs, oyster reefs, submergedland, special hazard areas, submerged aquatic vegetation, tidal sandor mud flats, water in the open Gulf of Mexico, and water under tidal influence.

(20) Coastal waters--Waters along the coast under thejurisdiction of the State of Texas, including tidal influence andwaters of the open Gulf of Mexico.

(21) Coastal zone--The area within the boundary establishedin 31 Texas Administrative Code §27.1 (relating to Coastal ManagementProgram Boundary).

(22) Commercial facility--A facility permitted underDivision 4 of this subchapter (relating to Requirements for All PermittedWaste Management Operations), whose owner or operator receives compensationfrom others for the management of oil field fluids or oil and gaswastes and whose primary business purpose is to provide these servicesfor compensation.

(23) Commission--The Railroad Commission of Texas.

(24) Completion/workover pit--A pit used for storageor disposal of spent completion fluids and solids, workover fluidsand solids, and drilling fluids and solids, silt, debris, water, brine,oil scum, paraffin, or other materials which have been cleaned outof the wellbore of a well being completed, worked over, or plugged.

(25) Contact stormwater--Stormwater that has come intocontact with any amount of oil and gas wastes or areas that are permittedto contain oil and gas wastes, regardless of whether oil and gas wasteis currently being contained in the area. See also "Non-contact stormwater"and "Stormwater."

(26) Container--A means of primary containment usedfor the management of oil and gas waste such as a pit, sump, tank,vessel, truck, barge, or other receptacle.

(27) Critical area--A coastal wetland, an oyster reef,a hard substrate reef, submerged aquatic vegetation, or a tidal sandor mud flat as defined in Texas Natural Resources Code §33.203.

(28) Dewater--To remove free liquids.

(29) Director--The Director of the Oil and Gas Divisionor the Director's delegate.

(30) Discharge--To allow a liquid, gas, or other substanceto flow out from where it has been confined.

(31) Disposal--The act of conducting, draining, discharging,emitting, throwing, releasing, depositing, burying, dumping, placing,abandoning, landfarming, allowing seepage, or causing or allowingany such act of disposal of any oil field fluid, oil and gas waste,or other substance or material subject to regulation by the Commission.

(32) Disposal pit--A pit used for the permanent storageof oil and gas waste.

(33) Distilled water--Water that has been purifiedby being heated to a vapor form and then condensed into another containeras liquid water that is essentially free of all solutes.

(34) District Director--The Director of the Commissiondistrict where the management, disposal, or recycling of oil and gaswastes is located or the District Director's delegate.

(35) District Office--The Commission District Officein the Commission district where the waste management, disposal, and/orrecycling is located.

(36) Drill cuttings--Bits of rock or soil cut froma subsurface formation by a drill bit during the process of drillingan oil or gas well and lifted to the surface by means of the circulationof drilling mud. The term includes any associated sand, silt, drillingfluid, spent completion fluid, workover fluid, debris, water, brine,oil scum, paraffin, or other material cleaned out of the wellbore.

(37) Electrical conductivity--A numerical expressionof the ability of a material to carry a current, normally expressedin millimhos/centimeter (the reciprocal of resistivity). It is frequentlyused to estimate salinity in terms of total dissolved solids. In soilanalysis, electrical conductivity may be used as one measure to evaluatea soil's ability to sustain plant growth.

(38) Environmental Protection Agency (EPA)--The UnitedStates Environmental Protection Agency.

(39) Facility--A site that shares a common area, commonaccess, and a common purpose where oil field fluids or oil and gaswastes are managed. It may include one or more waste management units,may include permitted or authorized activities, and may be designatedas either commercial or non-commercial.

(40) Freeboard--The vertical distance between the topof a pit or berm and the highest point of the contents of the pitor berm.

(41) Fresh makeup water pit--A pit used in conjunctionwith a drilling rig, completion operations, or a workover for storageof fresh water used to make up drilling fluid or completion fluid.

(42) Fresh water--The best quality of the surface orsubsurface water, at any individual operational location, availablefor domestic or agricultural use within a one-mile radius of the location,or 3,000 milligrams per liter of total dissolved solids, whicheveris less.

(43) Fresh mining water pit--A pit used in conjunctionwith a brine mining injection well for storage of fresh water usedfor solution mining of brine.

(44) Generator--A person that generates oil and gas wastes.

(45) Geomembrane--An effectively impermeable polymericsheet material that is impervious to liquid and gas if it maintainsits integrity and is used as an integral part of an engineered structuredesigned to limit the movement of liquid or gas in a system.

(46) Geotextile--A sheet material that is less imperviousto liquid than a geomembrane but more resistant to penetration damage,and is used as part of an engineered structure or system to serveas a filter to prevent the movement of soil fines into a drainagesystem, to provide planar flow for drainage, to serve as a cushionto protect geomembranes, or to provide structural support.

(47) Groundwater--Subsurface water in a zone of saturation.

(48) Hydrocarbon condensate--Hydrocarbon liquids thatcondense from a natural gas stream.

(49) Inert oil and gas waste--Nonreactive, nontoxic,and essentially insoluble oil and gas wastes, including, but not limitedto, concrete, glass, wood, metal, wire, plastic, synthetic liners,fiberglass, soil, dirt, clay, sand, gravel, brick, and trash. Theterm excludes asbestos or asbestos-containing waste, and oil and gasnaturally occurring radioactive material (NORM) waste.

(50) Karst terrain--An area where karst topography,with its characteristic surface and/or subterranean features, is developedprincipally as the result of dissolution of limestone, dolomite, orother soluble rock. Characteristic physiographic features presentin karst terrains include, but are not limited to, sinkholes, sinkingstreams, caves, large springs, and blind valleys.

(51) Land application--An authorized or permitted wastemanagement practice in which effluent that does not meet the standardsfound in the figure in §4.111(a) of this title (relating to AuthorizedDisposal Methods for Certain Wastes) and is a low-chloride producedwater may be applied to a controlled area of the ground surface viasprinkler or other irrigation systems without tilling or mixing withthe native soils.

(52) Landfarming--An authorized or permitted wastemanagement practice in which low chloride, water-based drilling fluids,or oil and gas wastes are mixed with, or tilled into, the native soilsin such a manner that the waste will not migrate from the authorizedor permitted landfarming cell.

(53) Landfarming cell--The bermed area into which oiland gas waste is applied to the land and includes landfarming andlandtreatment cells.

(54) Landtreating--An authorized or permitted wastemanagement practice in which oil-based drilling fluids, oil impactedsoils, and oil and gas wastes are mixed with or tilled into the nativesoil to degrade oil, grease, or other organic wastes in such a mannerthat the waste will not migrate from the authorized or permitted landtreatment cell.

(55) Leak detection system--A system used to detectleaks below the liner of pits.

(56) Liner--A continuous layer of impervious materials,synthetic or natural, beneath and on the sides of a pit that restrictsor prevents the downward or lateral release or migration of oilfieldfluids or oil and gas wastes.

(57) Manage or management of oil and gas waste--Thereceiving, handling, storage, treatment, processing, transportation,reclamation, recycling, and/or disposal of oil and gas wastes.

(58) Manifest--An electronic or paper document usedto track shipments of oil and gas waste that is authenticated by allparties (the generator, carrier, and receiver) in the transfer ofoil and gas waste, and contains information on the waste type, source,quantity, and instructions for handling.

(59) Mined brine--Brine produced from a brine mininginjection well by solution of subsurface salt formations. The termdoes not include saltwater produced incidentally to the exploration,development, and production of oil or gas or geothermal resources.

(60) Mud circulation pit--A pit used in conjunctionwith drilling rig for storage of drilling fluid currently being usedin drilling operations.

(61) Natural gas or natural gas liquids processingplant--A plant whose primary function is the extraction of naturalgas liquids from field gas, the fractionation of natural gas liquids,and the production of pipeline-quality gas for transportation by anatural gas transmission pipeline. The term does not include a separatelylocated natural gas treating plant for which the primary functionis the removal of carbon dioxide, hydrogen sulfide, or other impuritiesfrom the natural gas stream. A separator, dehydration unit, heatertreater, sweetening unit, compressor, or similar equipment shall beconsidered a component of a natural gas or natural gas liquids processingplant only if it is located at a plant the primary function of whichis the extraction of natural gas liquids from field gas or fractionationof natural gas liquids.

(62) Naturally occurring radioactive material (NORM)--Naturallyoccurring materials not regulated under the Atomic Energy Act whoseradionuclide concentrations have been increased by or as a resultof human practices. NORM does not include the natural radioactivityof rocks or soils, or background radiation, but instead refers tomaterials whose radioactivity is concentrated by controllable practices(or by past human practices). NORM does not include source, byproduct,or special nuclear material.

(63) Non-commercial facility--A facility authorizedor permitted under this chapter that is not a commercial facilityas defined in paragraph (22) of this section.

(64) Non-contact stormwater--Stormwater that, by designor direction, has not come into contact with any areas containingoil or gas wastes or any areas permitted to contain oil and gas wastes.See also "Contact stormwater" and "Stormwater."

(65) Oil and gas NORM waste--Any solid, liquid, orgaseous material or combination of materials (excluding source material,special nuclear material, and by-product material) that in its naturalphysical state spontaneously emits radiation, is discarded or unwanted,constitutes, is contained in, or has contaminated oil and gas waste,and prior to treatment or processing that reduces the radioactivityconcentration, exceeds exemption criteria specified in 25 Texas AdministrativeCode §289.259(d) (relating to Licensing of Naturally OccurringRadioactive Material (NORM)).

(66) Oil and gas wastes--As defined in Texas NaturalResources Code §91.1011, the term:

(A) means waste that arises out of or incidental tothe drilling for or producing of oil or gas, including waste arisingout of or incidental to:

(i) activities associated with the drilling of injectionwater source wells which penetrate the base of useable quality water;

(ii) activities associated with the drilling of cathodicprotection holes associated with the cathodic protection of wellsand pipelines subject to the jurisdiction of the Commission;

(iii) activities associated with gasoline plants, naturalgas or natural gas liquids processing plants, pressure maintenanceplants, or repressurizing plants;

(iv) activities associated with any underground naturalgas storage facility, provided the terms "natural gas" and "storagefacility" shall have the meanings set out in Texas Natural ResourcesCode §91.173;

(v) activities associated with any underground hydrocarbonstorage facility, provided the terms "hydrocarbons" and "undergroundhydrocarbon storage facility" shall have the meanings set out in TexasNatural Resources Code §91.201; and

(vi) activities associated with the storage, handling,reclamation, gathering, transportation, or distribution of oil orgas prior to the refining of such oil or prior to the use of suchgas in any manufacturing process or as a residential or industrial fuel;

(B) includes salt water, brine, sludge, drilling mud,and other liquid, semiliquid, or solid waste material; but

(C) does not include waste arising out of or incidentalto activities associated with gasoline plants, natural gas or naturalgas liquids processing plants, pressure maintenance plants, or repressurizingplants if that waste is a hazardous waste as defined by the administratorof the United States Environmental Protection Agency pursuant to thefederal Solid Waste Disposal Act, as amended by the Resource Conservationand Recovery Act, 42 U.S.C. 6901 et seq., as amended.

(67) Oil field fluids--Fluid used or reused in connectionwith activities associated with the exploration, development, andproduction of oil or gas or geothermal resources, fluids to be usedor reused in connection with activities associated with the solutionmining of brine, and mined brine. The term "oil field fluids" includes,but is not limited to, drilling fluids, completion fluids, surfactants,and other chemicals used in association with oil and gas activities,but does not include produced oil, condensate, gas, or water thatis not oil and gas waste. Oil field fluids no longer used or reusedin connection with activities associated with the exploration, development,and production of oil or gas or geothermal resources, and oil fieldfluids that have been abandoned, are considered an oil and gas waste.

(68) Operator--A person, acting for itself or as anagent for others, designated to the Railroad Commission of Texas asthe person with responsibility for complying with the Commission'srules and regulations in any acts subject to the Commission's jurisdictionincluding the permitting, physical operation, closure, and post-closureactivities of a facility regulated under this chapter, or such person'sauthorized representative.

(69) Partially treated waste--Oil and gas waste thathas been treated or processed with the intent of being recycled, butwhich has not been determined to meet the environmental and engineeringstandards for a recyclable product established by the Commission inthis subchapter or in a permit issued pursuant to this subchapter.

(70) Person--A natural person, corporation, organization,government or governmental subdivision or agency, business trust,estate, trust, partnership, association, or any other legal entity.

(71) Pit--A container for which earthen materials providestructure, shape, and foundation support. A container that includesa concrete floor or sidewall is a pit. A tank, as defined in paragraph(90) of this section, is not a pit.

(72) Pollution--The alteration of the physical, thermal,chemical, or biological quality of, or the contamination of, any surfaceor subsurface water that renders the water harmful, detrimental, orinjurious to humans, animal life, vegetation, or property, or to publichealth, safety, or welfare, or impairs the usefulness or the publicenjoyment of the water for any lawful or reasonable purpose.

(73) Primary containment--Measures put into place toconfine, control, and secure a material to a defined space. See also "Container."

(74) Produced water recycling--The recycling of producedwater and other aqueous fluid wastes produced from a wellbore duringoil and gas exploration and production activities.

(75) Produced water recycling facility--A facilityat which produced water recycling activities are conducted. The facilitymay include one or more produced water recycling pits and ancillaryequipment including tanks, piping, treatment systems, and other equipmentthat are used for produced water recycling.

(76) Produced water recycling pit--An authorized pitused to manage produced water and other aqueous fluid wastes producedfrom a wellbore during oil and gas exploration and production activitiesbeing recycled and treated fluids.

(77) Public area--A dwelling, place of business, church,school, hospital, school bus stop, government building, a public road,all or any portion of a park, city, town, village, or other similararea that can expect to be populated.

(78) Public water system--A source of potable waterfor the public's use that has at least 15 service connections or servesat least 25 individuals for at least 60 days out of the year. Thisincludes people that live in houses served by a system, but can alsoinclude employees, customers, or students.

(79) Pressure maintenance plant or repressurizing plant--Aplant for processing natural gas for reinjection for reservoir pressuremaintenance or repressurizing in a natural gas recycling project.These terms do not include a compressor station along a natural gaspipeline system or a pump station along a crude oil pipeline system.

(80) Receiver--A person who manages oil and gas wastethat is received from a generator or carrier. A receiver of anotheroperator's oil and gas wastes may be a generator of its own oil andgas wastes.

(81) Recyclable product--A reusable material that hasbeen created from the treatment and/or processing of oil and gas wasteas authorized or permitted by a Commission permit and that meets theenvironmental and engineering standards established by the permitor authorization for the intended use, and is used as a legitimatecommercial product. A recyclable product is not a waste but may becomea waste if it is abandoned or disposed of rather than recycled asauthorized by the permit or authorization.

(82) Recycle--To process and/or use or re-use oil andgas wastes as a product for which there is a legitimate commercialuse. This term also includes the actual use or re-use of oil and gaswastes. For the purpose of this chapter, the term "recycle" does notinclude injection pursuant to a permit issued under §3.46 ofthis title (relating to Fluid Injection into Productive Reservoirs).

(83) Reserve pit--A pit used in conjunction with drillingrig for collecting spent drilling fluids; cuttings, sands, and silts;and wash water used for cleaning drill pipe and other equipment atthe well site. Reserve pits are sometimes referred to as slush pitsor mud pits.

(84) Secondary containment--Measures put into placeto contain spills and prevent them from contaminating the surroundingarea, such as dikes, berms, or other barriers.

(85) Sensitive area--An area defined by the presenceof factors, whether one or more, that make it vulnerable to pollutionfrom oil and gas surface waste management activities. Factors thatare characteristic of sensitive areas include the presence of shallowgroundwater or pathways for communication with deeper groundwater;proximity to surface water, including lakes, rivers, streams, dryor flowing creeks, irrigation canals, water wells, stock tanks, andwetlands; proximity to natural wildlife refuges or parks; or proximityto commercial or residential areas.

(86) Solid oil and gas waste--Oil and gas waste thatis determined not to contain "free liquids" as defined by EPA Method9095B (Paint Filter Liquids Test), as described in "Test Methods forEvaluating Solid Wastes, Physical/Chemical Methods" (EPA PublicationNumber SW-846).

(87) Storage or storing--The keeping, holding, accumulating,or aggregating of oil and gas waste for a temporary or indeterminate period.

(88) Stormwater--Water that falls onto and flows overthe ground surface and does not infiltrate into the soil. See also"Contact stormwater" and "Non-contact stormwater."

(89) Surface and subsurface water--Groundwater, percolating,perched or otherwise, and lakes, bays, ponds, impounding reservoirs,springs, rivers, streams, creeks, estuaries, marshes, wetlands, inlets,canals, the Gulf of Mexico inside the territorial limits of the state,and all other bodies of surface water, natural or artificial, inlandor coastal, fresh, saline, or salt, navigable or non-navigable, andincluding the beds and banks of all watercourses and bodies of surfacewater, that are wholly or partially inside or bordering the stateor inside the jurisdiction of the state.

(90) Tank--A rigid, non-concrete, non-earthen containerthat provides its own structure and shape.

(91) TCEQ--The Texas Commission on Environmental Qualityor its successor agencies.

(92) Technical Permitting Section or Technical Permitting--TheTechnical Permitting Section within the Oil and Gas Division of theRailroad Commission of Texas, located in Austin, Texas.

(93) Treated fluid--Fluid oil and gas waste that hasbeen treated to remove impurities such that the fluid can be reusedor recycled. Treated fluid that is abandoned or disposed of is classifiedas an oil and gas waste. Once treated fluid is reused or recycled,it is not classified as an oil and gas waste.

(94) Unified Soil Classification System--The standardizedsystem devised by the United States Army Corps of Engineers for classifyingsoil types.

(95) Waste management unit--A container, structure,pad, cell, or area in or on which oil and gas wastes are managed.

(96) Water condensate pit--A pit used for storage ordisposal of water condensed from natural gas.

(97) Wetland--An area including a swamp, marsh, bog,prairie pothole, or similar area having a predominance of hydric soilsthat are inundated or saturated by surface or groundwater at a frequencyand duration sufficient to support and that under normal circ*mstancessupports the growth and regeneration of hydrophytic vegetation. Theterm "hydric soil" means soil that, in its undrained condition, issaturated, flooded, or ponded long enough during a growing seasonto develop an anaerobic condition that supports the growth and regenerationof hydrophytic vegetation. The term "hydrophytic vegetation" meansa plant growing in water or a substrate that is at least periodicallydeficient in oxygen during a growing season as a result of excessivewater content. The term "wetland" does not include irrigated acreageused as farmland; a man-made wetland of less than one acre; or a man-madewetland for which construction or creation commenced on or after August28, 1989, and which was not constructed with wetland creation as astated objective, including but not limited to an impoundment madefor the purpose of soil and water conservation which has been approvedor requested by soil and water conservation districts (Texas WaterCode §11.502.).

The agency certifies that legal counsel hasreviewed the proposal and found it to be within the state agency'slegal authority to adopt.

Filed with the Office of the Secretary of State on August 16, 2024.

TRD-202403752

Haley Cochran

Assistant General Counsel, Office of General Counsel

Railroad Commission of Texas

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 475-1295

16 TAC §§4.111 - 4.115

Statutory authority: Texas Natural Resources Code,§§81.051, 81.052, 81.0351, 85.042, 85.202, 86.042; TexasNatural Resources Code §91.101 and §91.1017; Texas NaturalResources Code §122.004; Texas Natural Resources Code §123.0015;and Texas Water Code Chapter 29.

Cross reference to statute: Texas Natural Resources Code, Chapters81, 85, 86, 91, 122, and 123; and Texas Water Code Chapter 29.

§4.111.Authorized Disposal Methods for Certain Wastes.

(a) Water condensate. A person may, without a permit,dispose of by land application water which has been condensed fromnatural gas and collected at gas pipeline drip stations or gas compressorstations. The disposal is authorized provided:

(1) the disposal is not a discharge to surface waterand the waste will not reach surface water;

(2) prior to each land application event, representativesamples are collected and analyzed for the list of parameters in thefigure in this subsection;

(3) analytical methods used are documented and allparameters are in mg/liter unless otherwise specified;

(4) analyte concentrations do not exceed the concentrationlimits listed in the figure in this subsection;

(5) the water condensate is applied to the ground surfacein such a manner that it will not leave the boundaries of the property; and

(6) the area where the water condensate will be landapplied is at least 500 feet from a public water system well or intake,and 300 feet from any surface water or residential or irrigation watersupply well.

Figure: 16 TAC §4.111(a)(6) (.pdf)

(b) Inert oil and gas wastes. A person may, withouta permit, dispose of inert oil and gas wastes on the property on whichthe waste was generated provided disposal is by a method other than:

(1) disposal into surface water; or

(2) a method that may present other health and safetyhazards such as burning.

(c) Low chloride water-based drilling fluid. A personmay, without a permit, dispose of the following oil and gas wastesby landfarming: water-based drilling fluids with a chloride concentrationof 3,000 mg/liter or less; drill cuttings, sands, and silts obtainedwhile using water-based drilling fluids with a chloride concentrationof 3,000 mg/liter or less; and wash water used for cleaning drillpipe and other equipment at the well site. The disposal is authorizedin accordance with the following:

(1) the waste is landfarmed on the same lease or unit,easem*nt, or right-of-way where it was generated;

(2) the person has obtained written permission to landfarmthe waste from the surface owner of the area to be landfarmed;

(3) the slope of the area to be landfarmed is threepercent or less, or any greater slope is approved in writing by theDistrict Director;

(4) the area where the waste will be landfarmed isat least 500 feet from a public water system well or intake, 300 feetfrom any surface water or other types of wells, and in an area withsubsurface water at depths of more than 100 feet below land surface;

(5) any accumulation of hydrocarbons on top of thewaste to be landfarmed is removed from the waste prior to spreading;

(6) the waste to be landfarmed has a pH of not lessthan six nor more than nine standard units;

(7) the waste is spread evenly and in a manner thatwill not result in a depth of greater than six inches of solids orsix inches of fluids (six inches over an acre = 5,172 barrels/acre);

(8) the waste is spread in a manner that will not resultin pooling, ponding, or runoff of the waste and the waste is thendisked into the soil as necessary to distribute the waste within the soil;

(9) immediately after landfarming the waste, the waste-soilmixture has an electrical conductivity that does not exceed the backgroundlevel for undisturbed soil established before landfarm activitiescommenced or four millimhos/centimeter, whichever is greater; and

(10) immediately after landfarming the waste, the waste-soilmixture has a total petroleum hydrocarbon content of one percent orless by weight when sampled using EPA SW-846 418.1 or equivalent.

(d) Other oil and gas wastes. A person may, withouta permit, dispose of the following oil and gas wastes by burial ina reserve pit or a completion/workover pit: solids from dewatereddrilling mud and fluids generated during well drilling, completion,and workover activities, including drill cuttings, sand, silt, paraffin,and debris. The disposal is authorized provided:

(1) the wastes are disposed of at the same well sitewhere they are generated;

(2) the wastes are dewatered;

(3) the burial complies with the closure requirementsfor authorized pits pursuant to §4.114 of this title (relatingto Schedule A Authorized Pits); and

(4) the operator maintains documentation demonstratingclosure requirements have been met. The operator shall maintain theserecords for at least three years from the date of closure and providecopies of these records to the Commission upon request.

§4.112.Authorized Recycling.

(a) Produced water recycling is authorized if:

(1) treated fluid is recycled for use in drilling operations,completion operations, hydraulic fracturing operations, or as anothertype of oilfield fluid to be used in the wellbore of an oil, gas,geothermal, or service well;

(2) produced water recycling pits are operated in accordancewith §4.113 and §4.115 of this title (relating to AuthorizedPits, and Schedule B Authorized Pits); and

(3) recycling is limited to oil and gas waste; comminglingof treated oil and gas waste with other treated fluid from sourcesoutside of the Commission's jurisdiction may only be authorized atthe Director's discretion.

(b) Treated fluid may be reused in any other mannerwithout a permit from the Commission provided the reuse occurs pursuantto a permit issued by another state or federal agency.

(c) Fluid that meets the requirements of subsection(a) or (b) of this section is a recyclable product.

§4.113.Authorized Pits.

(a) An operator may, without a permit, maintain oruse reserve pits, mud circulation pits, completion/workover pits,fresh makeup water pits, fresh mining water pits, and water condensatepits if the pit complies with this division.

(b) Unless otherwise approved by the District Directorafter a showing that the contents of the pit will be confined in thepit at all times, all authorized pits shall be constructed, used,operated, and maintained at all times outside of a 100-year floodplain as that term is defined in §4.110 of this title (relatingto Definitions). The operator may request a hearing if the DistrictDirector denies approval of the request to construct an authorizedpit within a 100-year flood plain.

(c) An authorized pit that was constructed pursuantto and compliant with §3.8 of this title (relating to Water Protection)as that rule existed prior to July 1, 2025, is authorized to continueto operate subject to the following:

(1) Authorized pits that cause pollution shall be broughtinto compliance with or closed according to this division.

(2) By July 1, 2026, basic sediment pits, flare pits,and other unpermitted pits not authorized by this section shall be:

(A) permitted according to this subchapter; or

(B) closed according to this division.

(3) By January 1, 2026, an operator of a non-commercialfluid recycling pit shall:

(A) register the pit as a produced water recyclingpit according to subsection (e) of this section and file the requiredfinancial security according to §4.115 of this tile (relatingto Schedule B Authorized Pits); or

(B) close the pit according to this division.

(4) At the time of closure, authorized pits shall beclosed according to this division.

(d) In the event of an unauthorized release of oiland gas waste, treated fluid, or other substances from any pit authorizedby this section, the operator shall take any measures necessary tostop or control the release and report the release to the DistrictOffice within 24 hours of discovery of the release.

(e) The operator shall register all authorized pitswith the Commission.

(1) The Director shall establish a registration systemfor authorized pits by July 1, 2025.

(A) New authorized pits constructed after July 1, 2025shall register by mailing or emailing to Technical Permitting theregistration form established by the Commission.

(B) By July 1, 2027, the Director will establish anonline system for operators to register and for the Commission tomaintain a record of authorized pits.

(C) The operator of an authorized pit shall registerthe pit using the online registration system once it is establishedby the Director.

(2) New pits shall be registered prior to operationof the pit.

(3) Authorized pits existing on July 1, 2025, shallbe registered or closed within one year.

(4) Authorized pit registration shall include:

(A) the type of pit;

(B) the location of the pit including the lease nameand number, drilling permit number or other Commission-issued identifier,and the latitude and longitude coordinates using the 1983 North AmericanDatum (NAD);

(C) the pit dimensions and capacity in barrels;

(D) the expected depth to groundwater from the bottomof the pit; and

(E) for produced water recycling pits, the financialsecurity required by §4.115 of this title.

(5) An authorized pit may be designated as more thanone type of pit provided it meets the requirements in this sectionfor each type of pit. An authorized pit of one type may be redesignatedas an authorized pit of another type (for example, a reserve pit maybe redesignated as a completion pit) provided the pit was constructedto meet the design and construction requirements of the pit type towhich it will be redesignated.

§4.114.Schedule A Authorized Pits.

Schedule A authorized pits include reserve pits, mud circulationpits, completion/workover pits, freshwater makeup pits, fresh miningwater pits, and water condensate pits.

(1) Schedule A pit contents.

(A) Reserve pits and mud circulation pits. A personshall not deposit or cause to be deposited into a reserve pit or mudcirculation pit any oil field fluids or oil and gas wastes other thanthe following:

(i) drilling fluids that are freshwater base, saltwaterbase, or oil base;

(ii) drill cuttings, sands, and silts separated fromthe circulating drilling fluids;

(iii) wash water used for cleaning drill pipe and otherequipment at the well site;

(iv) drill stem test fluids; and

(v) blowout preventer test fluids.

(B) Completion/workover pits. A person shall not depositor cause to be deposited into a completion/workover pit any oil fieldfluids or oil and gas wastes other than spent completion fluids, workoverfluid, and the materials cleaned out of the wellbore of a well beingcompleted or worked over.

(C) Fresh makeup water pits. A person shall not depositor cause to be deposited into a fresh makeup water pit any oil andgas wastes or any oil field fluids other than fresh water used tomake up drilling fluid or hydraulic fracturing fluid.

(D) Fresh mining water pits. A person shall not depositor cause to be deposited into a fresh mining water pit any oil andgas wastes or any oil field fluids other than water used for solutionmining of brine.

(E) Water condensate pits. A person shall not depositor cause to be deposited into a water condensate pit any oil fieldfluids or oil and gas wastes other than fresh water condensed fromnatural gas and collected at gas pipeline drips or gas compressor stations.

(2) Schedule A pit construction.

(A) All pits shall be designed, constructed, and maintainedto prevent any migration of materials from the pit into adjacent subsurfacesoils, groundwater, or surface water at any time during the life ofthe pit.

(B) Reserve pits, mud circulation pits, and completion/workoverpits located in areas where groundwater is present within 50 feetof the bottom of the pit shall be lined.

(i) All liners shall have a hydraulic conductivitythat is 1.0 x 10-7 cm/sec or less.

(ii) A liner may be constructed of either natural orsynthetic materials.

(3) Schedule A pit closure.

(A) A person who maintains or uses a reserve pit, mudcirculation pit, fresh makeup water pit, fresh mining water pit, completion/workoverpit, or water condensate pit shall dewater, backfill, and compactthe pit according to the following schedule.

(i) Reserve pits and mud circulation pits which containfluids with a chloride concentration of 6,100 mg/liter or less andfresh makeup water pits shall be dewatered, backfilled, and compactedwithin one year of cessation of drilling operations.

(ii) Reserve pits and mud circulation pits which containfluids with a chloride concentration in excess of 6,100 mg/liter shallbe dewatered within 30 days and backfilled and compacted within oneyear of cessation of drilling operations.

(iii) All completion/workover pits used when completinga well shall be dewatered within 30 days of well completion and backfilledand compacted within 120 days of well completion. All completion/workoverpits used when working over a well shall be dewatered within 30 daysof completion of workover operations and backfilled and compactedwithin 120 days of completion of workover operations.

(iv) Fresh mining water pits and water condensate pitsshall be dewatered, backfilled, and compacted within 120 days of finalcessation of use of the pit.

(v) If a person constructs a sectioned reserve pit,each section of the pit shall be considered a separate pit for determiningwhen a particular section shall be dewatered.

(B) A person who maintains or uses a reserve pit, mudcirculation pit, fresh makeup water pit, or completion/workover pitshall remain responsible for dewatering, backfilling, and compactingthe pit within the time prescribed by subparagraph (A) of this paragraph,even if the time allowed for backfilling the pit extends beyond theexpiration date or transfer date of the lease covering the land wherethe pit is located.

(C) The Director may require that a person who usesor maintains a reserve pit, mud circulation pit, fresh makeup waterpit, fresh mining water pit, completion/workover pit, or water condensatepit dewater and backfill the pit sooner than the time prescribed bysubparagraph (A) of this paragraph if the Director determines thatoil and gas wastes or oil field fluids are likely to escape from thepit or that the pit is being used for improper storage or disposalof oil and gas wastes or oil field fluids.

(D) Prior to backfilling any reserve pit, mud circulationpit, completion/workover pit, or water condensate pit authorized bythis paragraph, the person maintaining or using the pit shall, ina permitted manner or in a manner authorized by §4.111 of thistitle (relating to Authorized Disposal Methods for Certain Wastes),dispose of all oil and gas wastes which are in the pit.

§4.115.Schedule B Authorized Pits.

(a) Schedule B authorized pits. A produced water recyclingpit is a Schedule B authorized pit.

(b) Financial security requirements.

(1) Pursuant to Natural Resources Code §91.109(a),the operator of a produced water recycling pit shall maintain a performancebond or other form of financial security conditioned that the operatorwill operate and close the produced water recycling pit in accordancewith this subchapter.

(2) For each produced water recycling pit an operatorshall file financial security in one of the following forms:

(A) a blanket performance bond; or

(B) a letter of credit or cash deposit in the sameamount as required for a blanket performance bond.

(3) An operator required to file financial securityunder paragraph (1) of this subsection shall file one of the followingtypes and amounts of financial security.

(A) A person operating five or less pits may file aperformance bond, letter of credit, or cash deposit in an amount equalto $1.00 per barrel of total pit capacity.

(B) A person operating more than five pits may filea performance bond, letter of credit, or cash deposit in an amountequal to:

(i) the greater of $1.00 per barrel of water for tenpercent of an operator's total produced water recycling pit capacityor $1,000,000; or

(ii) $200,000 per pit, capped at $5,000,000.

(4) The operator shall submit required financial securityat the time the operator registers the produced water recycling pit.

(5) The operator shall submit bonds and letters ofcredit on forms prescribed by the Commission.

(c) Non-commercial fluid recycling pits authorizedprior to July 1, 2025. Non-commercial fluid recycling pits that wereauthorized pursuant to and compliant with §3.8 of this title(relating to Water Protection) as that rule existed prior to July1, 2025 are authorized as produced water recycling pits under thissection, provided the operator registers the pit and files the requiredfinancial assurance by January 1, 2026.

(d) Produced water recycling pit contents. A personshall not deposit or cause to be deposited into a produced water recyclingpit any oil field fluids or oil and gas wastes other than those fluidsdescribed in §4.110(76) of this title (relating to Definitions)and any fluids authorized by the Director pursuant to §4.112(a)(3)of this title (relating to Authorized Recycling).

(e) General location requirements for produced waterrecycling pits. No produced water recycling pit shall be located:

(1)on a barrier island or a beach;

(2) within 300 feet of surface water;

(3) within 500 feet of any public water system wellor intake;

(4) within 300 feet of any domestic water well or irrigationwater well, other than a well that supplies water for drilling orworkover operations for which the pit is authorized;

(5) within a 100-year flood plain; or

(6) within 500 feet of a public area.

(f) General design and construction requirements forproduced water recycling pits. All produced water recycling pits shallcomply with the following requirements.

(1) The operator shall design and construct a producedwater recycling pit to ensure the confinement of fluids to prevent releases.

(2) A produced water recycling pit shall be large enoughto ensure adequate storage capacity of the volume of material to bemanaged and to maintain two feet of freeboard plus the capacity tocontain the volume of precipitation from a 25-year, 24-hour rainfall event.

(3) A produced water recycling pit shall be designedand constructed to prevent non-contact stormwater runoff from enteringthe pit. A berm, ditch, proper sloping, or other diversion shall surrounda produced water recycling pit to prevent run-on of any surface watersincluding precipitation.

(4) A produced water recycling pit shall have a properlyconstructed foundation and interior slopes consisting of a firm, unyieldingbase, smooth and free of rocks, debris, sharp edges, or irregularitiesto prevent the liner's rupture or tear. The operator shall constructa produced water recycling pit so that the slopes are no steeper thanthree horizontal feet to one vertical foot (3H:1V). The District Directormay approve an alternative to the slope requirement if the operatordemonstrates that it can construct and operate the produced waterrecycling pit in a safe manner to prevent contamination of fresh waterand protect public health, public safety, and the environment.

(5) Produced water recycling pits shall be lined.

(A) The liner shall be constructed of materials thathave sufficient chemical and physical properties, including thickness,to prevent failure during the expected life of the produced waterrecycling pit due to pressure gradients (including static head andexternal hydrogeologic forces), physical contact with material inthe pit or other materials to which the liner may be expected to beexposed, climatic conditions, stress of installation, and use.

(B) All of the pit shall be lined, including the dikeor berm, and the liner shall be properly anchored or keyed into thenative substrate to prevent erosion or washout of the dike, berm,or liner.

(C) A liner may be constructed of either natural orsynthetic materials.

(D) A liner constructed of natural materials shallmeet the following requirements:

(i) A natural liner shall only be used for a producedwater recycling pit with an active life of less than one year.

(ii) A natural liner shall be constructed of a minimumof two feet of compacted fat clay, placed in continuous six-inch liftscompacted to a 95% standard proctor as defined in ASTM D698 and havinga hydraulic conductivity of 1.0 x 10 7 cm/sec or less. Where naturalliner materials are used, the operator shall perform appropriate testingto ensure compliance with these requirements and shall maintain copiesof the test results for the life of the pit.

(iii) A produced water recycling pit with a naturalliner shall not be used for waste disposal pursuant to §4.111of this title (relating to Authorized Disposal Methods for CertainWastes) unless the pit also has a synthetic liner.

(E) A synthetic liner shall meet the following requirements:

(i) A synthetic liner shall be placed upon a firm,unyielding foundation or base capable of providing support to theliner, smooth and free of rocks, debris, sharp edges, or irregularitiesto prevent the liner's rupture or tear.

(ii) A synthetic liner shall be underlain by a geotextilewhere needed to reduce localized stress, strain, or protuberancesthat may otherwise compromise the liner's integrity.

(iii) A synthetic liner shall be made of an impermeablegeomembrane capable of resisting pressure gradients above and belowthe liner to prevent failure of the liner.

(iv) A synthetic liner shall have a breaking strengthof 40 pounds per inch using test method ASTM D882.

(v) A synthetic liner shall have a puncture resistanceof at least 15 pounds force using test method ASTM D4833.

(vi) The length of synthetic liner seams shall be minimized,and the seams shall be oriented up and down, not across, a slope.The operator shall use factory welded seams where possible. Priorto field seaming, the operator shall overlap liners four to six inches.The operator shall minimize the number of field seams in corners andirregularly shaped areas. Qualified personnel shall field weld andtest liner seams. A synthetic liner shall have a seam strength, ifapplicable, of at least 15 pounds per inch using test method ASTMD751 or ASTM D6392.

(g) General operating requirements for produced waterrecycling pits. All produced water recycling pits shall be operatedin accordance with the following requirements.

(1) Freeboard of at least two feet plus capacity tocontain the volume of precipitation from a 25-year, 24-hour rainfallevent shall always be maintained in produced water recycling pits.

(2) Equipment, machinery, waste, or other materialsthat could reasonably be expected to puncture, tear, or otherwisecompromise the integrity of the liner shall not be used or placedin lined pits.

(3) Operators shall establish an inspection programto ensure compliance with the applicable provisions of this sectiontaking into consideration the nature of the pit and frequency of use.

(4) If the operator does not propose to empty the producedwater recycling pit and inspect the pit liner on at least an annualbasis, the operator shall install a double liner and leak detectionsystem. A leak detection system shall be installed between a primaryand secondary liner. The leak detection system shall be monitoreddaily to determine if the primary liner has failed. The primary linerhas failed if the volume of water passing through the primary linerexceeds the action leakage rate, as calculated using accepted procedures,or 1,000 gallons per acre per day, whichever is larger.

(5) The operator of a produced water recycling pitshall keep records to demonstrate compliance with the pit liner integrityrequirements and shall make the records available to the Commissionupon request.

(6) Free oil shall not be allowed to accumulate onor in a produced water recycling pit.

(h) General closure requirements for produced waterrecycling pits. All produced water recycling pits shall comply withthe following closure requirements.

(1) Prior to closure of the pit, the operator shalldewater the pit.

(2) Prior to closure of the pit, all waste shall beremoved from the pit unless the requirements of subsection (j) ofthis section are met.

(i) Closure requirements for produced water recyclingpits if all waste is removed for disposal.

(1) The contents of the pit, including synthetic liners,if applicable, shall be removed for disposal at an authorized or permittedwaste facility.

(2) The operator shall verify whether oil and gas wastehas migrated beyond the pit floor and sidewalls.

(3) The operator shall collect one five-point compositesoil sample for each acre of pit surface area. The five-point compositesample shall be collected from the native soil on the pit floor. Afraction of an acre of pit surface area will require a composite sample.

(A) The samples shall be analyzed for the constituentsand using the methods identified in the figure in this subsectionto determine whether the constituent concentrations exceed the limitin the figure or background concentrations.

(B) If the operator intends to use background soilconcentrations as a closure standard, then constituent concentrationsin background soil shall be determined before or during pit construction.To establish background concentrations, the operator shall:

(i) sample soil in the pit floor locations before orduring pit construction;

(ii) collect one five-point composite soil sample foreach acre of pit surface area. The five-point composite sample shallbe collected from the native soil on the pit floor. A fraction ofan acre of pit surface area will require a composite sample; and

(iii) analyze the soil samples for the constituentslisted in the figure in this subsection.

(C) If the concentration of the constituents exceedsthe limits in the figure in this subsection or the concentrationsdetermined from background sampling and analysis, the operator shallnotify the District Director within 24 hours of discovery of the constituent exceedance.

(i) The District Director may refer the matter to theSite Remediation Unit in Austin.

(ii) The operator shall follow instructions providedby the District Director or Site Remediation regarding further investigation,remediation, monitoring, closure, and reporting.

(D) If the concentration of the constituents does notexceed the limits in the figure in this subsection or background concentrations,the operator shall proceed with closure.

(i) The operator shall backfill the pit with non-wastecontaining, uncontaminated, earthen material.

(ii) The backfill shall be compacted in a manner thatminimizes future consolidation, desiccation, and subsidence.

(iii) The operator shall mound or slope the formerpit site to encourage runoff and discourage ponding.

(iv) The operator shall, where necessary to ensureground stability and prevent significant erosion, vegetate the formerpit site in a manner consistent with natural vegetation in undisturbedsoil in the vicinity of the pit.

(E) The operator shall notify the District Directora minimum of seven days prior to closure of the produced water recyclingpit and shall maintain documentation for a period of three years todemonstrate that the requirements of this section have been met.

Figure: 16 TAC §4.115(i)(3)(E) (.pdf)

(j) Closure requirements for produced water recyclingpits if waste will be buried in place pursuant to §4.111 of this title.

(1) The operator shall ensure that any oil and gaswaste, including synthetic liners, that will be disposed of in thepit as authorized by §4.111 of this title is buried in a mannersuch that the waste will remain below the natural ground surface andbe confined to the original dimensions of the pit.

(2) The operator shall determine the suitability ofthe waste material or mixture for disposal in the pit.

(A) The operator shall collect one five-point compositewaste material or mixture sample for each acre of pit surface area.A fraction of an acre of pit surface area will require a composite sample.

(B) The samples shall be analyzed for the constituentsand using the methods identified in the figure in this subsectionto determine whether the constituent concentrations are below thelimit in the figure or background concentrations.

(C) If the operator intends to use background soilconcentrations as a closure standard, then constituent concentrationsin background soil shall be determined before or during pit construction.To establish background concentrations, the operator shall:

(i) sample soil in the pit floor locations before orduring pit construction;

(ii) collect one five-point composite soil sample foreach acre of pit surface area. The five-point composite sample shallbe collected from the native soil on the pit floor. A fraction ofan acre of pit surface area will require a composite sample; and

(iii) analyze the soil samples for the constituentslisted in the figure in this subsection.

(3) Waste material that meets the constituent limitsin the figure in subsection (i) of this section or background concentrationsmay be buried in the pit without additional disposal considerations.

(4) Untreated waste material that does not meet theconstituent limits in the figure in subsection (i) of this sectionmay be buried by containment in a pit if:

(A) the pit has a double liner with a leak detectionsystem or has a single liner for which the operator demonstrates theliner is intact and maintains the liner intact;

(B) the waste material is covered with a geonet tosupport the overburden fill material; and

(C) the pit is backfilled, sufficiently compacted,and contoured to prevent water infiltration into the waste zone.

(5) Treated waste material that meets the constituentlimits in the figure in this subsection based on the distance fromthe bottom of the pit to the shallowest groundwater may be buriedin the pit. Liners in the pit may be removed from the pit or disposedof in the pit upon closure.

(6) The operator shall proceed with closure as follows:

(A) The operator shall backfill the pit with non-wastecontaining, uncontaminated, earthen material.

(B) The backfill shall be compacted in a manner thatminimizes future consolidation, desiccation, and subsidence.

(C) The operator shall mound or slope the burial pitsite to encourage runoff and discourage ponding.

(D) The operator shall, where necessary to ensure groundstability and prevent significant erosion, vegetate the former pitsite in a manner consistent with natural vegetation in undisturbedsoil in the vicinity of the pit.

(7) The operator shall notify the District Directora minimum of seven days prior to closure of the produced water recyclingpit and shall maintain documentation for a period of three years todemonstrate that the requirements of this section have been met.

(8) The Commission may require the operator to closea produced water recycling pit in a manner other than the manner describedin this section if it determines that oil and gas wastes or oil fieldfluids are likely to escape from the pit, that oil and gas wastesor oil field fluids may cause or are causing pollution, and/or thatthe pit is being used in a manner inconsistent with Commission rules.

Figure: 16 TAC §4.115(j)(8) (.pdf)

(k) Groundwater monitoring requirements for ScheduleB authorized pits.

(1) For all Schedule B authorized pits, the operatorshall evaluate whether groundwater is likely to be present within100 feet of the ground surface. The operator shall review readilyavailable public information to evaluate whether groundwater is likelyto be present within 100 feet of the ground surface. The presenceof a water well within a one-mile radius of the pit that producedor produces water from a depth of 100 feet or less indicates groundwateris likely to be present within 100 feet of the ground surface. Ifthe operator cannot determine whether groundwater is likely to bepresent within 100 feet of the ground surface based on a review ofreadily available public information, the operator shall obtain location-specificsubsurface information to establish the presence or absence of groundwaterwithin 100 feet of the ground surface.

(2) Operators of Schedule B authorized pits locatedin areas where groundwater is not likely to be present within 100feet of the ground surface are not required to perform groundwater monitoring.

(3) Operators of Schedule B authorized pits locatedin areas where groundwater is likely to be present within 100 feetof the ground surface are required to perform groundwater monitoringin accordance with paragraph (4) of this subsection unless:

(A) the pit has a double synthetic liner with an operationalleak detection system; or

(B) the pit has a liner and an active life of lessthan one year.

(4) When groundwater monitoring is required under thissubsection, the operator shall install at least three groundwatermonitoring wells, at least two of which are installed in a hydrologicdowngradient location relative to the pit and at least one of whichis installed in an upgradient location relative to the pit.

(5) The following is required for each soil boringor groundwater monitoring well drilled.

(A) The drilling method shall allow for periodic orcontinuous collection of soil samples for field screening and soilcharacterization in order to adequately characterize site stratigraphyand groundwater bearing zones.

(B) The groundwater monitoring wells shall be completedby a certified water well driller in accordance with 16 TAC Part 4,Chapter 76 (Water Well Drillers and Water Well Pump Installers).

(C) The groundwater monitoring wells shall be completedto penetrate the shallowest groundwater zone, and the completion shallisolate that zone from any deeper groundwater zone.

(D) The screened interval of the groundwater monitoringwells shall be designed to intercept at least five feet of groundwater.

(E) The groundwater monitoring well screen shall extendabove the static water level.

(F) The sand pack size shall be compatible with thewell screen slot size, as well as the local lithology.

(G) The groundwater monitoring well heads shall beprotected from damage by vehicles and heavy equipment.

(H) The groundwater monitoring wells shall be maintainedin good condition with a lockable watertight expansion cap.

(I) The groundwater monitoring wells shall be ableto provide a sample that is representative of the groundwater underlyingthe site for the duration of pit operations.

(J) The operator shall retain the following informationfor three years after the monitoring wells are plugged:

(i) a soil boring lithological log for the well, withthe soils described using the Unified Soil Classification System (USCS)(equivalent to ASTM D 2487 and ASTM D 2488); the method of drilling;well specifications; slotted screen type and slot size; riser andscreen length; bentonite and cement intervals; total depth; and thedepth of the first encountered groundwater or saturated soils;

(ii) a well installation diagram, detailing constructionspecifications for each well;

(iii) a survey elevation for each well head referencepoint to the top of the casing relative to a real or arbitrary on-sitebenchmark or relative to mean sea level;

(iv) a table with recorded depth to water, depth totop of casing, and adjusted depth to water data;

(v) an updated Site Plan and a potentiometric surfacemap showing static water levels, the calculated gradient, and theestimated direction of groundwater flow; and

(vi) the laboratory analytical reports and the correspondingchain of custody from each groundwater sampling event.

(6) The operator shall sample the wells after installationof the wells is complete and shall then sample the wells on a quarterly schedule.

(7) The wells shall be monitored and/or sampled forthe following parameters: the static water level, pH, and concentrationsof benzene, total petroleum hydrocarbons, total dissolved solids,soluble cations (calcium, magnesium, potassium, and sodium), and solubleanions (bromides, carbonates, chlorides, nitrates, and sulfates).

(8) If any of the parameters identified in paragraph(7) of this subsection indicate potential pollution:

(A) the operator shall notify the District Directorby phone or email within 24 hours of receiving the analytical results; and

(B) the District Director will determine whether additionalremediation, monitoring, or other actions are required.

The agency certifies that legal counselhas reviewed the proposal and found it to be within the state agency'slegal authority to adopt.

Filed with the Office of the Secretary of State on August 16, 2024.

TRD-202403753

Haley Cochran

Assistant General Counsel, Office of General Counsel

Railroad Commission of Texas

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 475-1295

16 TAC §§4.120 - 4.132, 4.134, 4.135

Statutory authority: Texas Natural Resources Code,§§81.051, 81.052, 81.0351, 85.042, 85.202, 86.042; TexasNatural Resources Code §91.101 and §91.1017; Texas NaturalResources Code §122.004; Texas Natural Resources Code §123.0015;and Texas Water Code Chapter 29.

Cross reference to statute: Texas Natural Resources Code, Chapters81, 85, 86, 91, 122, and 123; and Texas Water Code Chapter 29.

§4.120.General Requirements for All Permitted Operations.

(a) A waste management activity that is not authorizedby this subchapter shall require a permit.

(b) The Commission may issue a permit to manage oiland gas wastes only if the Commission determines that the activitywill not result in the endangerment of human health or the environment,the waste of oil, gas, or geothermal resources, or pollution of surfaceor subsurface water.

(c) This division establishes the permit requirementsapplicable to all permitted waste management operations. Any personengaged in waste management authorized by permit shall comply withthe requirements in this division.

(d) A person applying for or acting under a Commissionpermit to manage oil and gas waste may be required to maintain a performancebond or other form of financial security conditioned that the permitteewill operate and close the management facility in accordance withstate law, Commission rules, and the permit to operate the facility.

(e) In addition to the requirements in this division,any person engaged in the following waste management operations shallcomply with the requirements of the following, as applicable.

(1) Requirements applicable to commercial facilitiesare found in Division 5 of this subchapter (relating to AdditionalRequirements for Commercial Facilities).

(2) Requirements applicable to permitted pits are foundin Division 6 of this subchapter (relating to Additional Requirementsfor Permitted Pits).

(3) Requirements applicable to landfarming and landtreatingare found in Division 7 of this subchapter (relating to AdditionalRequirements for Landfarming and Landtreating).

(4) Requirements for reclamation operations are foundin Division 8 of this subchapter (relating to Additional Requirementsfor Reclamation Plants).

(5) Miscellaneous permit requirements applicable toemergency permits, minor permits, and all other activities not otherwiseauthorized or addressed in this subchapter are found in Division 9of this subchapter (relating to Miscellaneous Permits).

(6) Requirements applicable to oil and gas waste characterization,documentation, manifests, and transportation are found in Division10 of this subchapter (relating to Requirements for Oil and Gas Waste Transportation).

(f) With regard to permits issued pursuant to Divisions4 through 9 of this subchapter, the Director may impose additionalpermit conditions necessary to protect human health and the environment,to prevent the waste of oil, gas, or geothermal resources, or to preventpollution of surface or subsurface water.

§4.121.Permit Term.

(a) Unless otherwise provided, a permit issued pursuantto Divisions 4 through 9 of this subchapter shall be valid for a termof not more than five years.

(b) Any permit issued by the Commission under §3.8of this title (relating to Water Protection) prior to July 1, 2025shall remain in effect until it expires on its own terms, is renewedpursuant to the requirements of this subchapter, or is modified, suspended,or terminated by the Commission pursuant to §4.123 of this title(relating to Permit Modification, Suspension, and Termination).

(c) A permit shall remain in effect while a renewalapplication that was filed in a timely manner is pending review andevaluation by the Commission.

§4.122.Permit Renewals, Transfers, and Amendments.

(a) Compliance with rules in effect at the time ofpermit renewals, transfers, or amendments. To ensure compliance withthe rules in effect at the time of a request to renew, transfer, oramend a permit, the Commission may review and revise permit conditionswhen it receives the request. When transitioning permits that wereissued under §3.8 of this title (relating to Water Protection)prior to July 1, 2025 into permits that are issued under this subchapter,the Commission:

(1) will not require the operator to relocate existingpermitted waste management units to conform to new siting requirements;

(2) will not require the operator to retrofit existingwaste management units to conform to new standards if those wastemanagement units are constructed and operating in compliance withtheir current permits;

(3) may require the operator to add to or improve thegroundwater water monitoring systems at existing facilities; and

(4) may require the operator to combine all waste managementunits at a facility under one permit.

(b) Permit renewal. Permits issued pursuant to thissubchapter may be renewed in accordance with the following requirements.

(1) The permittee shall file an application for a renewalpermit at least 60 days before the expiration date specified in thepermit. Bundling permit renewals with transfers and/or amendmentsis encouraged.

(2) For any permit required to file financial securityin accordance with §3.78 of this title (relating to Fees andFinancial Security Requirements), the permittee shall file an updatedclosure cost estimate. The cost closure estimate shall include anestimate of the cost to conduct a NORM survey upon closure of thefacility, as well as the cost to remove and dispose of NORM contaminatedwaste and the decontamination of associated tanks and equipment pursuantto Subchapter F of this chapter (relating to Oil and Gas NORM). Thepermittee shall conduct a NORM survey before the renewal is approvedif a NORM survey has not been conducted within the last five years.

(3) Permit renewal applications are subject to thenotice requirements of §4.125 of this title (relating to Noticeand Opportunity to Protest).

(4) The Director may require additional informationspecific to the type of facility, facility location, and managementoperations occurring at the facility before approving the renewal.

(5) The permit shall not be renewed unless the facilityis compliant with Commission rules and permit conditions, as verifiedby a facility and records inspection.

(6) Permit renewals will be issued for a maximum offive years from the date of issuance.

(c) Permit transfer. Permits issued pursuant to thissubchapter may be transferred in accordance with the following requirements.

(1) A permittee may request to transfer a permit toa new operator by notifying the Director in writing at least 60 daysbefore the transfer takes place. Bundling permit transfers with renewalsand/or amendments is encouraged.

(2) For any permit required to file financial securityin accordance with §3.78 of this title, the transferee shallfile a new closure cost estimate. The cost closure estimate shallinclude an estimate of the cost to conduct a NORM survey upon closureof the facility, as well as the cost to remove and dispose of NORMcontaminated waste and the decontamination of associated tanks andequipment pursuant to Subchapter F of this chapter. The transfereeshall conduct a NORM survey before the transfer is approved if a NORMsurvey has not been conducted within the last five years. The transfereeshall file the required financial security in the approved amountwith the Commission before the permit is transferred.

(3) If the proposed transferee operator does not ownthe surface property, the transferee operator shall provide evidenceof the proposed transferee's authority to operate the facility inaccordance with §4.126(b) of this title (relating to Locationand Real Property Information).

(4) A request to transfer a commercial permit associatedwith a Form P-4 (Certificate of Compliance and Transportation Authority)shall be submitted on Form P-4. A request to transfer a commercialpermit not associated with a Form P-4 shall be submitted in writingto the Director.

(5) The Director may require additional informationspecific to the type of facility, facility location, and managementoperations occurring at the facility before approving the transfer.

(6) The permit shall not be transferred unless thefacility is compliant with Commission rules and permit conditions,as verified by a facility and records inspection.

(7) Permit transfers will be issued through the currentpermitted expiration date and may be issued for a maximum of fiveyears if combined with a permit amendment and/or permit renewal.

(d) Permit amendment. Permits issued pursuant to thissubchapter may be amended in accordance with the following requirements.

(1) A permit amendment is required before a permitteemay conduct any activities other than those activities specificallyauthorized by the permit.

(2) The permittee shall file an application for amendmentat least 90 days before the proposed new operations are scheduledto commence. Bundling permit amendments with transfers and/or renewalsis encouraged. The application shall include the following informationas applicable.

(A) For pit permit amendments that change the pit construction,dimensions, or capacity, the permittee shall submit appropriate diagrams,cross-sections, and other supporting information.

(B) For any permit required to file financial securityin accordance with §3.78 of this title, if the amendments tothe permit would increase the cost of closure, the permittee shallsubmit an updated closure cost estimate.

(C) Permit amendment applications are subject to thenotice requirements of §4.125 of this title (relating to Noticeand Opportunity to Protest). However, the Director may reduce or waivenotice requirements for amendments that reflect minimal impact tofacility operations, waste management volumes, closure cost estimates,or potential for pollution to surface or subsurface waters. The Directorshall establish criteria for a determination of minimal impact andthe criteria shall be published on the Commission's website and inappropriate guidance documents.

(D) The Director may request any additional informationreasonably necessary to prevent pollution.

(3) The Director may require additional informationspecific to the type of facility, facility location, and managementoperations occurring at the facility before approving the amendment.

(4) The permit amendment shall not be approved unlessthe facility is compliant with Commission rules and permit conditions,as verified by a facility and records inspection.

(5) Permit amendments will be issued through the currentpermitted expiration date and may be issued for a maximum of fiveyears if combined with a permit transfer and/or permit renewal.

§4.123.Permit Modification, Suspension, and Termination.

(a) A permit issued pursuant to this subchapter, ora permit issued pursuant to §3.8 of this title (relating to WaterProtection) before July 1, 2025, may be modified, suspended, or terminatedby the Commission for good cause after notice and opportunity for hearing.

(b) A finding of any of the following facts shall constitutegood cause:

(1) pollution of surface or subsurface water is occurringor is likely to occur as a result of the permitted operations;

(2) waste of oil, gas, or geothermal resources is occurringor is likely to occur as a result of the permitted operations;

(3) continued operation of the facility presents animminent danger to human health or property;

(4) the permittee has violated the terms and conditionsof the permit or Commission rules;

(5) the permittee misrepresented any material factduring the permit issuance process;

(6) a material change of conditions has occurred inthe permitted operations;

(7) the information provided in the application haschanged materially; or

(8) the permittee failed to give the notice requiredby the Commission during the permit issuance, amendment, or renewal process.

§4.124.Requirements Applicable to All Permit Applications and Reports.

(a) Unless otherwise specified by rule, a permit applicationshall be filed with the Technical Permitting Section. The applicationshall be filed by mail, hand delivery, or by an electronic processapproved by the Director. A permit application shall be consideredfiled with the Commission on the day it is date-stamped by the Commission'soffice in Austin.

(b) The permit application shall contain informationaddressing each applicable application requirement and all informationnecessary to initiate the final review by the Technical PermittingSection, including all information required by this division and theapplicable provisions of Divisions 5 through 9 of this subchapter,as described in §4.120 of this title (relating to General Requirementsfor All Permitted Operations).

(c) When a Commission prescribed application form exists,either in paper or electronic form, an applicant shall apply on theprescribed form according to the form instructions. When a Commissionprescribed application form does not exist, the permit applicationshall contain a signature, printed name, contact telephone numberor email address, the date of signing, and the following certification:"I certify that I am authorized to make this application, that thisapplication was prepared by me or under my supervision and direction,and that the data and facts stated herein are true, correct, and completeto the best of my knowledge."

(d) The permit application shall contain the followinginformation for the applicant:

(1) the applicant's organization name;

(2) the applicant's organization report (P-5) number;

(3) the applicant's physical address, and mailing addressif different;

(4) the name, telephone number, and email address ofa contact person for the application, which can be someone withinthe applicant's organization or an agent;

(5) the identifying name of the proposed facility; and

(6) a general narrative description of the proposedmanagement of oil and gas wastes at the facility.

(e) The technical data in the permit application shallcomply with the following requirements.

(1) All geographic coordinates submitted to the TechnicalPermitting Section shall use the North American Datum (NAD) 83, indecimal degrees to six decimal places of longitude and latitude.

(2) All maps, plans, and diagrams submitted to theTechnical Permitting Section shall be drawn to scale and include ascale, north arrow, title block, and legend. Maps shall be of materialsuitable for a permanent record and shall be on sheets 8-1/2 inchesby 11 inches or, alternatively, 8-1/2 inches by 14 inches or 11 inchesby 17 inches folded to standard letter size.

(3) All chemical laboratory analyses submitted to theTechnical Permitting Section are required to be performed in accordancewith the following.

(A) All chemical laboratory analyses shall be conductedusing appropriate EPA methods or standard methods by an independentNational Environmental Laboratory Accreditation Program certifiedlaboratory neither owned nor operated by the permittee. Any samplecollected for chemical laboratory analysis shall be collected andpreserved in a manner appropriate for that analytical method as specifiedin 40 Code of Federal Regulations (CFR) Part 136. All geotechnicaltesting shall be performed by a laboratory certified to conduct geotechnicaltesting according to the standards specified by ASTM and certifiedby a professional engineer licensed in Texas.

(B) All chemical laboratory analytical results shallinclude the full laboratory analytical report and the correspondingchain of custody.

(4) All NORM screening surveys submitted to the TechnicalPermitting Section shall be performed using a properly calibratedscintillation meter with a sodium iodide detector (or equivalent),with the results reported in microroentgens per hour. The manufacturer'sspecifications and relevant calibration records shall be submittedto the Technical Permitting Section for all devices used for NORMdetection. All equipment, including piping, pumps, and vessels shallbe surveyed. Readings shall be taken around the circumference of thepits and to the extent possible, over the pits. The ground surroundingthe equipment and pits shall be surveyed in a systematic grid pattern.At a minimum, the following information shall be reported:

(A) the date of the survey;

(B) the instrument used and the last calibration date;

(C) a background reading;

(D) a facility diagram showing where all readings,including the background, were taken;

(E) the readings (in microroentgens per hour); and

(F) the full name of the person conducting the survey.

(f) The application shall include a stormwater managementplan that contains plans and diagrams to segregate, manage, and disposeof all contact stormwater and non-contact stormwater at the facility.

§4.125.Notice and Opportunity to Protest.

(a) Purpose. Applicants are encouraged to engage withtheir communities early in the waste facility planning process toinform the community of the plan to construct a facility and allowthose who may be affected by the proposed activities to express theirconcerns. The purpose of the notice required by this section is toinform notice recipients:

(1) that an applicant has filed a permit applicationwith the Commission, seeking authorization to conduct an activityor operate a facility; and

(2) of the requirements for filing a protest if anaffected person seeks to protest the permit application.

(b) Timing of notice. The applicant shall provide noticeafter staff determines that an application is complete pursuant to§1.201(b) of this title (relating to Time Periods for ProcessingApplications and Issuing Permits Administratively). The date noticeis provided begins a 30-day period in which an affected person mayfile a protest of the application with the Commission.

(c) Notice recipients. The applicant shall providenotice to:

(1) the surface owners of the tract on which the facilitywill be located;

(2) the surface owners of tracts adjacent to the tracton which the facility will be located;

(3) the surface owners of tracts located within 500feet of the facility's fence line or boundary, even if the surfaceowner's tract is not adjacent to the tract on which the facility is located;

(4) the city clerk or other appropriate city officialif any part of the tract on which the facility will be located lieswithin the municipal boundaries of the city;

(5) the Commission's District Office; and

(6) any other person or class of persons that the Directordetermines should receive notice of an application.

(d) Method and contents of notice. Unless otherwisespecified in this subchapter, the applicant shall provide direct noticeto the persons specified in subsection (c) of this section as follows.

(1) The applicant shall provide notice by registeredor certified mail.

(2) The notice of the permit application shall consistof a complete copy of the application and any attachments. The copyshall be of the application and attachments after staff determinesthe application is complete pursuant to §1.201(b) of this titlebut before the final review is completed.

(3) The notice shall include a letter that contains:

(A) the name of the applicant;

(B) the date of the notice;

(C) the name of the surface owners of the tract onwhich the proposed facility will be located;

(D) the location of the tract on which the proposedfacility will be located including a legal description of the tract,latitude/longitude coordinates of the proposed facility, county, originalsurvey, abstract number, and the direction and distance from the nearestmunicipality or community;

(E) the types of fluid or waste to be managed at the facility;

(F) a statement that an affected person may protestthe application by filing a written protest with the Commission within30 calendar days of the date of the notice;

(G) a statement that a protest shall include the protestant'sname, mailing address, telephone number, and email address;

(H) the address to which protests may be mailed orthe location and instructions for electronic submittal of a protestif the Commission implements an electronic means for filing protests;

(I) the definition of "affected person" pursuant to§4.110 of this title (relating to Definitions); and

(J) the signature of the operator, or representativeof the operator, and the date the letter was signed.

(4) If the Director determines that the applicant,after diligent efforts, has been unable to ascertain the name andaddress of one or more persons required by this section to be notified,then the Director may authorize the applicant to notify such personsby publishing notice of the application in accordance with the procedureand contents required by §4.141 of this title (relating to AdditionalNotice Requirements for Commercial Facilities). The Director willconsider the applicant to have made diligent efforts to ascertainthe names and addresses of surface owners required to be notifiedif the applicant has examined the current county tax rolls and investigatedother reliable and readily available sources of information.

(e) Proof of notice.

(1) After the applicant provides the notice requiredby this section, the applicant shall submit to the Commission proofof delivery of notice which shall consist of:

(A) a copy of the signed and dated letters requiredby subsection (d)(3) of this section;

(B) the registered or certified mail receipts; and

(C) a map showing the property boundaries, surfaceowner names, and parcel numbers of all notified parties.

(2) If the Director authorizes notice by publicationin accordance with subsection (d)(4) of this section, the applicantshall provide the following as proof of notice:

(A) an affidavit from the newspaper publisher thatstates the dates on which the notice was published and the countyor counties in which the newspaper is of general circulation; and

(B) the tear sheets for each published notice.

(f) Protest process. Any statement of protest to anapplication must be filed with the Commission within 30 calendar daysfrom the date of notice or from the last date of publication if noticeby publication is authorized by the Director.

(1) The Technical Permitting Section shall notify theapplicant if the Commission receives an affected person's timely protest.A timely protest is a written protest date-stamped as received bythe Commission within 30 calendar days of the date notice is providedor within 30 calendar days of the last date of publication, whicheveris later.

(2) The applicant shall have 30 days from the dateof the Technical Permitting Section's notice of receipt of protestto respond, in writing, by either requesting a hearing or withdrawingthe application. If the applicant fails to timely file a written response,the Technical Permitting Section shall consider the application tohave been withdrawn.

(3) The Technical Permitting Section shall refer allprotested applications to the Hearings Division if a timely protestis received and the applicant requests a hearing.

(4) The Commission shall provide notice of any hearingconvened under this subsection to all affected persons and personswho have requested notice of the hearing.

(5) If the Director has reason to believe that a personentitled to notice of an application has not received notice as requiredby this section, then the Technical Permitting Section shall not takeaction on the application until notice is provided to such person.

(6) The Commission may issue a permit if no timelyprotests from affected persons are received.

§4.126.Location and Real Property Information.

(a) The permit application shall contain the followinginformation for the facility:

(1) the location of the proposed facility, includingthe physical address and geographic coordinates of the center of thefacility; and

(2) a description of the property on which the facilityis located, including:

(A) for each surface owner of the property, the applicationshall include the name, mailing address, and telephone number of eachsurface owner, or if any owner is not an individual, the name, mailingaddress, and telephone number of the contact person for that owner; and

(B) a legal description of the property, includingthe survey name, abstract number, and size in acres.

(b) A permit application shall include a statementregarding the authority by which the operator has the right to permitand operate the facility. Proper authority may include, but is notlimited to:

(1) ownership of the property where the proposed facilityis located;

(2) a leasehold interest in the oil and gas estate;

(3) written consent of the surface owner; or

(4) any other authority the Director determines is appropriate.

(c) The application shall include a general locationmap which shows the facility including the items listed in paragraphs(1)-(7) of this subsection and any other pertinent information regardingthe regulated facility and associated activities. Maps shall be ona scale of not less than one inch equals 2,000 feet unless the sizeof a smaller facility is not discernable at that scale. The map shallshow the following:

(1) a scale and north arrow showing the tract sizein square feet or acres, the section/survey lines, and the surveyname and abstract number;

(2) the location of each regulated feature in decimaldegrees to six decimal places of longitude and latitude;

(3) a clear outline of the proposed facility's boundaries;

(4) the distance to the nearest property line or public road;

(5) the tracts of land adjacent to the facility requiringnotice as prescribed by the Commission;

(6) the name of the surface owners of such adjacent tracts; and

(7) other information requested by the Director reasonablyrelated to the prevention of pollution.

§4.127.Engineering and Geologic Information.

(a) A permit application shall include descriptionsof the following elements and specify the sources of information:

(1) the identification of the soil and subsoil by typicalname and description of the approximate proportion of grain sizes,texture, consistency, moisture condition, permeability, and otherpertinent characteristics;

(2) the subsurface geology, including an assessmentof the presence and characteristics of permeable and impermeable strata;

(3) the subsurface hydrogeology, including the depthto the shallowest groundwater, an assessment of groundwater quality,the direction of groundwater flow, groundwater use in the area, andany major and minor aquifers (as defined by the Texas Water DevelopmentBoard) in the facility area; and

(4) any engineering, geological, or other informationwhich the Director deems necessary to show that issuance of the permitwill not result in the endangerment of human health and the environment,the waste of oil, gas, or geothermal resources, the pollution of surfaceor subsurface water, or a threat to the public health or safety.

(b) If information is not available to address subsection(a) of this section, a site investigation including soil boring, sampling,and analysis is required.

(c) If otherwise required under Texas Occupations Code,Chapter 1001, relating to Texas Engineering Practice Act, or Chapter1002, relating to Texas Geoscientists Practice Act, respectively,a professional engineer or geoscientist licensed in Texas shall conductthe geologic and hydrologic evaluations required under this sectionand shall affix the appropriate seal on the resulting reports of such evaluations.

§4.128.Design and Construction.

(a) Application. The following information shall besubmitted with each permit application:

(1) a facility diagram clearly showing the items listedin subparagraphs (A)-(G) of this paragraph and any other pertinentinformation regarding the facility and associated activities. Diagramsshall be on a scale that shows the entire facility and activitieswithin the Commission's jurisdiction on a single page. The diagramshall show the following:

(A) a clear outline of the proposed facility, areaswhere oil and gas waste will be managed, and property boundaries;

(B) all wells, pits, areas where oil and gas wastewill be managed, and any other activity under the jurisdiction ofthe Commission that may occur at the proposed facility;

(C) the location of all tanks and equipment;

(D) all berms, dikes, or secondary containment;

(E) all fences, roads, and paved areas;

(F) the shortest distance between the facility andwaste management unit boundary to the nearest property line or publicroad; and

(G) the location of any pipelines within the facility boundaries;

(2) a description of the type and thickness of liners(e.g., fiberglass, steel, concrete), if any, for all tanks, silos,pits, and storage areas or cells;

(3) for storage areas where tanks and/or liners arenot used, credible engineering and/or geologic information demonstratingthat tanks or liners are not necessary for the protection of surfaceand subsurface water;

(4) a map view and two perpendicular cross-sectionalviews of pits and/or storage areas or cells to be constructed, showingthe bottom, sides, and dikes and the dimensions of each; and

(5) a plan to control and manage all stormwater runoffand to retain wastes during wet weather, including the location anddimensions of dikes and/or storage basins that would collect stormwaterduring a 25-year, 24-hour rainfall event, and all calculations madeto determine the required capacity and design.

(b) Design and construction requirements. All permitteesshall comply with the following requirements.

(1) The permittee shall post signs at each entranceto the facility. The sign shall be readily visible and show the operator'sname, facility name, and permit number in letters and numerals atleast six inches in height.

(2) Dikes or containment structures shall be constructedaround all areas managing oil and gas wastes. All earthen dikes surroundingpits and constructed as perimeter berms shall be compacted or constructedof material that meets 95% Standard Proctor (ASTM D698) or 90-92%Modified Proctor (ASTM D1557) density and meets a permeability of1 x 10-7 cm/sec or less when compacted. During construction, successivelifts shall not exceed nine inches in thickness, and the surface betweenlifts shall be scarified to achieve a good seal. These structuresshall be used to divert non-contact stormwater around the waste managementunit and contain and isolate contact stormwater within the bermed area.

(3) Secondary containment shall be provided for allabove-ground storage tanks. Secondary containment for a minimum of120% total storage capacity is recommended. Secondary containmentthat will contain the largest tank's maximum capacity plus two feetof freeboard and capacity to contain the volume of precipitation froma 25-year, 24-hour rainfall event is acceptable.

(4) Contact stormwater shall be collected within 24hours of accessibility and disposed of in an authorized manner.

(5) The facility shall maintain security to preventunauthorized access. Access shall be secured by a 24-hour attendantor a six-foot-high security fence and locked gate when unattendedto prevent vehicle or livestock access. Fencing shall be requiredunless terrain or vegetation prevents vehicle or livestock accessexcept through entrances with lockable gates.

(6) All liner systems shall be installed and maintainedin a manner that will prevent pollution and/or the escape of the contentsof the pit.

§4.129.Operation.

(a) Application. All permit applications shall includethe following operating information:

(1) a description of the sources and types of wastesto be received;

(2) a description of plans for waste sampling and analysis;

(3) a description of all waste management operationsincluding receipt, handling, storage, treatment, recycling, reclamation,and disposal, and the location of each operation;

(4) a description of how wastes will be transferredbetween waste management units within the facility;

(5) a description of any operational limitations, includingthe maximum amount of oil field fluids or oil and gas wastes thatwill be stored in any area at one time less the volume required tomaintain the required two feet of freeboard and the volume of precipitationfrom a 25-year, 24-hour rainfall event;

(6) a description of plans to prevent, report, andcontrol unauthorized access;

(7) a list of all chemicals to be used and their associatedsafety data sheets;

(8) plans for routine inspections, maintenance, and monitoring;

(9) a description of plans to prevent, report, andcontrol spills and leaks;

(10) plans for controlling contact and non-contactstormwater runoff;

(11) plans for managing incoming wastes during wet weather;

(12) a description of plans for recordkeeping, includingrecords of waste receipts and dispositions; and

(13) safety data sheets for any chemical or componentproposed to be used in the treatment of waste at the facility.

(b) Operating requirements. Each facility shall beoperated in accordance with the following requirements.

(1) The permittee shall only accept waste it is permittedto receive. The permittee shall only accept waste transported anddelivered by a Commission-permitted waste hauler permitted pursuantto Division 10 of this subchapter (relating to Requirements for Oiland Gas Waste Transportation).

(2) No waste, treated or untreated, shall be placeddirectly on the ground.

(3) All storage tanks, equipment, and on-site containmentshall be maintained in a leak-free condition. If inspection of a tank,on-site containment, or storage vessel reveals deterioration or leaks,the tank, on-site containment, or storage vessels shall be repairedor replaced before resuming use.

(4) Any spill of waste, chemical, or any other materialshall be collected and containerized within 24 hours and processedthrough the treatment system or disposed of in an authorized manner.

(5) Any chemical used in the treatment process shallbe stored in vessels designed for the safe storage of the chemicaland these vessels shall be maintained in a leak-free condition.

(6) Any soil additives, stabilizers, bio-accelerators,or treatment chemicals shall be approved by the Director prior touse at the facility. Use of the chemical or component is contingentupon Director approval. All chemicals and components shall be storedaccording to the manufacturer's specifications.

§4.130.Reporting.

(a) The permittee shall maintain for a period of atleast three years records of each Waste Profile Form and Waste Manifestdescribed in §4.190 and §4.191 of this title (relating toOil and Gas Waste Characterization and Documentation, and Oil andGas Waste Manifests, respectively) that the permittee generated or received.

(b) The permittee shall make all records required bythis section available for review and/or copying upon request.

(c) If a permit requires submittal of monthly, quarterly,semi-annual, or annual reports, the report shall be submitted on aform prescribed by the Commission. If a Commission prescribed reportform does not exist, the report shall contain a signature, printedname, contact telephone number or email address, the date of signing,and the following certification: "I certify that I am authorized tomake this report, that this application was prepared by me or undermy supervision and direction, and that the data and facts stated hereinare true, correct, and complete to the best of my knowledge."

(d) If a permit requires submittal of monthly, quarterly,semi-annual, or annual reports, the report shall be submitted in accordancewith the following requirements.

(1) Reports shall be filed with the Commission electronicallyin a digital format acceptable to the Commission no later than oneyear after the date the Commission has the technological capabilityto receive the electronic filing.

(2) If a permit requires quarterly reports, the quarterlyreporting periods shall be January 1 through March 31, April 1 throughJune 30, July 1 through September 30, and October 1 through December31 of each year.

(3) If a permit requires quarterly, semi-annual, orannual reports, reports shall be made on a Commission-designated formor electronic filing system and submitted to the Technical PermittingSection and the Commission District Office no later than the 30thday of the month following each reporting period.

(4) If a permit requires monthly reports, the reportshall be made on a Commission-designated form or electronic filingsystem and submitted to Technical Permitting Section and the DistrictOffice no later than the 15th day of the month following each reporting period.

§4.131.Monitoring.

(a) Application. The following information shall besubmitted with each permit application:

(1) a plan and schedule for conducting periodic inspections,including plans to inspect pits, equipment, processing, and storageareas; and

(2) a potentiometric contour map showing static waterlevels and the estimated direction of groundwater flow and the calculated gradient.

(b) Groundwater monitoring requirements.

(1) If shallow groundwater is present within 100 feetbelow ground surface, groundwater monitoring wells may be requiredfor some facilities, including but not limited to: brine pits, disposalpits, reclamation plants, commercial waste separation facilities,commercial recycling facilities, and commercial landfarming or landtreatingfacilities. Factors that the Commission will consider in assessingwhether groundwater monitoring is required include:

(A) the volume and characteristics of the oil and gaswaste to be managed at the facility;

(B) depth to and quality of groundwater within 100feet below ground surface; and

(C) presence or absence of natural clay layers in subsurface soils.

(2) If the Director requires the operator to installgroundwater monitoring wells, the operator shall comply with the following.

(A) The operator shall submit a plan for the installation,sampling, and analysis of monitoring wells at the facility. The planshall include information on the monitor well drilling method. A mudrotary drilling method shall not be used unless the depth to waterhas been established.

(B) The monitor wells shall be able to provide representativesamples of groundwater underlying the site for the duration of facilityoperations. If a monitor well is not capable of providing a representativesample, the operator shall notify the Technical Permitting Section.

(C) If groundwater is not observed during drillingof the monitor wells, the soil boring shall be advanced to 100 feet.Borings shall be left open for a minimum of 24 hours to determineif groundwater is present.

(D) If shallow groundwater is present within 100 feetbelow ground surface at the site, a minimum of three groundwater monitoringwells shall be installed. Wells shall be spaced around the facilityor pit, close to the facility operational area, with at least twowells on the estimated down-gradient side of the operational area.Additional wells may be required for larger facilities.

(E) The monitor wells shall be completed by a certifiedwater well driller in accordance with 16 Texas Administrative Code,Part 4, Chapter 76 (relating to Water Well Drillers and Water WellPump Installers).

(F) The monitor wells shall be completed to penetratethe shallowest groundwater zone, and the completion shall isolatethat zone from any deeper groundwater zone.

(G) The screened interval of the groundwater monitoringwells shall be designed to intercept at least five feet of groundwater.

(H) The groundwater monitoring well screen shall extendabove the static water level.

(I) The sand pack size shall be compatible with thewell screen slot size, as well as the local lithology.

(J) The groundwater monitoring well heads shall beprotected from damage by vehicles and heavy equipment.

(K) The groundwater monitoring wells shall be maintainedin good condition with a lockable watertight expansion cap.

(L) After installation of the wells is complete, theapplicant shall submit the following information:

(i) a soil boring lithologic log for each well, withthe soils described using the Unified Soil Classification System (equivalentto ASTM D 2487 and 2488). The log shall also include the method ofdrilling, well specifications, slot size, riser and screen length,bentonite and cement intervals, total depth, and the top of the firstencountered water or saturated soils; and

(ii) a survey elevation for each well head referencepoint (top of casing) relative to a real or arbitrary on-site benchmarkand relative to mean sea level.

(3) The applicant shall submit any other informationnecessary to address each of the operating requirements detailed inparagraph (4) of this subsection.

(4) If the Director requires the permittee to installgroundwater monitoring wells, the permittee shall comply with thefollowing requirements.

(A) The facility shall not manage oil and gas wastesat the facility until the groundwater monitoring wells are installed,the permittee submits the initial sample results to Technical PermittingSection, and Technical Permitting Section informs the permittee, inwriting, that it may commence active operations.

(B) The permittee shall sample the wells after installationof the wells is complete and shall thereafter sample the wells inaccordance with the schedule approved by the Technical PermittingSection, or as otherwise required by the Director.

(C) The following measurements and analyses shall bereported to Technical Permitting Section after any sampling eventno later than 15 days after the permittee receives the laboratoryanalysis results: the static water level, pH, and concentrations ofbenzene, total petroleum hydrocarbons, total dissolved solids, solublecations (calcium, magnesium, potassium, and sodium), and soluble anions(bromides, carbonates, chlorides, nitrates, and sulfates).

(D) If any of the parameters identified in subparagraph(C) of this paragraph indicate pollution, or the potential failureof the liner system, the Commission may require additional monitoringevents and/or may require analysis of additional parameters.

§4.132.Closure.

(a) Application. A permit application shall includea detailed plan for closure when operations at the facility or pitterminate. The closure plan shall include a general plan to:

(1) remove all wastes;

(2) demolish and/or remove any liners;

(3) remove dikes;

(4) backfill any excavations and contour and reseeddisturbed areas;

(5) sample and analyze soil and, if applicable, groundwaterthroughout the facility;

(6) if applicable, plug groundwater monitoring wells; and

(7) have financial security released once post closureactivities are completed and approved by the Technical Permitting Section.

(b) Closure requirements. The permittee shall closethe facility or pit in accordance with the following requirements.

(1) The permittee shall notify the Technical PermittingSection and the District Office in writing at least 45 days priorto commencement of any closure operations.

(2) The permittee shall submit a detailed closure planto the Technical Permitting Section at least 30 days prior to commencementof any closure activity. The Technical Permitting Section must approvethe detailed closure plan before the permittee may initiate closureoperations. The permittee shall comply with the closure plan approvedby the Technical Permitting Section. The closure plan shall includethe following information:

(A) the processing and removal of all wastes, chemicals,and waste-related materials from the facility for authorized reuseor disposal in an authorized manner;

(B) the removal and salvage of all equipment, if possible,or disposal of all equipment in an authorized manner;

(C) unless otherwise authorized, the cleaning and demolishmentof all equipment and storage areas, including concrete pads, at thefacility; and the disposal in an authorized manner of all rubble,wash-water, and rinsate;

(D) the excavation, removal, and disposal of all contaminatedsoils from beneath the liners and concrete pads;

(E) a soil sampling plan; and

(F) if required by the Director, a post-closure monitoring plan.

(3) Once the permittee has removed all waste, equipment,concrete pads, contaminated soil, and any other material in accordancewith the closure plan, the permittee shall conduct soil sampling inaccordance with the approved soil sampling plan. Soil samples shallbe analyzed for the parameters in the permit and/or soil samplingplan and submitted to the Technical Permitting Section no later than30 days after the permittee receives the laboratory results. The TechnicalPermitting Section may require the permittee to conduct additionalclosure operations if the soil sample results exceed the authorizedlimits and/or the Technical Permitting Section determines that additionalremediation is required to prevent pollution caused or contributedto by operations at the facility.

(4) The permittee shall grade the pits, on site storagetanks, on site storage areas, and any other facility location to preventrainfall from collecting at these locations.

(5) If the Director required a post-closure plan, thepermittee shall conduct post-closure monitoring in accordance withthe post-closure monitoring plan approved by Technical Permitting Section.

§4.134.Application Review and Administrative Decision.

The Technical Permitting Section reviews applications submittedunder this subchapter in accordance with §1.201 of this title(relating to Time Periods for Processing Applications and IssuingPermits Administratively).

§4.135.Hearings.

(a) The applicant may request a hearing upon receipt of notice that:

(1) the application has been denied by the Director;

(2) the Director has determined the application to be administratively complete but a timely protest to the application has been received; or

(3) the Director has determined that additional permit conditions are required to prevent pollution and the applicant disagrees with the Director's determination.

(b) A request for hearing shall be made to the Technical Permitting Section within 30 days of the date of the notice of administrative denial or notice of a timely protest. If the Director receives a requestfor a hearing, the Director shall refer the matter to the HearingsDivision for assignment of a hearings examiner who shall conduct thehearing in accordance with Chapter 1 of this title (relating to Practiceand Procedure).

The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.

Filed with the Office of the Secretary of State on August 16, 2024.

TRD-202403754

Haley Cochran

Assistant General Counsel, Office of General Counsel

Railroad Commission of Texas

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 475-1295

16 TAC §§4.140 - 4.143

Statutory authority: Texas Natural Resources Code,§§81.051, 81.052, 81.0351, 85.042, 85.202, 86.042; TexasNatural Resources Code §91.101 and §91.1017; Texas NaturalResources Code §122.004; Texas Natural Resources Code §123.0015;and Texas Water Code Chapter 29.

Cross reference to statute: Texas Natural Resources Code, Chapters81, 85, 86, 91, 122, and 123; and Texas Water Code Chapter 29.

§4.140.Additional Requirements for Commercial Facilities.

(a) In addition to the requirements of this division,all applicants for commercial facilities and permittees of commercialfacility permits shall comply with Division 4 of this subchapter (relatingto Requirements for All Permitted Waste Management Operations) andany other sections of this subchapter applicable to the applicant'sor permittee's management of oil and gas wastes.

(b) A facility authorized or permitted as a non-commercialfacility prior to July 1, 2025 but that meets the definition of acommercial facility in §4.110 of this title (relating to Definitions)as of July 1, 2025 shall comply with the requirements of this divisionor request an exception on or before July 1, 2026.

(c) A facility that meets the definition of a commercialfacility in §4.110 of this title is considered a commercial facilityunder §3.78 of this title (relating to Fees and Financial SecurityRequirements), and therefore, an applicant for a commercial facilitypermit shall submit the financial security required by Texas NaturalResources Code §91.109 and §3.78 of this title for eachpermit renewal, amendment, and/or transfer.

(d) A commercial facility shall not manage oil andgas waste or otherwise begin active operation until the required financialsecurity is approved and accepted by the Commission.

(e) Pursuant to §3.78 of this title, the amountof the financial security shall be the maximum dollar amount necessaryto close the facility.

(f) The full financial security shall be maintained:

(1) until all post-closure activities are completedand approved by the Technical Permitting Section; and

(2) while the facility has been referred to and remedialactions are being overseen by the Site Remediation Unit in the Oiland Gas Division.

(g) To determine the maximum dollar amount necessaryto close the facility, a professional engineer licensed in Texas shallprepare or supervise the preparation of a closure-cost estimate (CCE).

(1) In addition to the assumptions and calculationsspecified in §3.78 of this title, the professional engineer shallmake the following assumptions when determining the dollar amountnecessary to close the facility.

(A) The facility is in compliance with permit conditions.

(B) The facility will be closed according to the permitor approved closure plan, including the sampling and analysis of soilsto confirm compliance.

(C) None of the operator's other equipment or facilities(e.g., disposal wells, pits, trucks, bulldozers, and employees) areavailable at the time of closure.

(D) The facility is at maximum capacity. All tanksand pits are full of waste. Disposal pits are fully constructed.

(E) Storage tanks and pits contain basic sediment andwater in normal operating proportions, with a minimum volume of atleast 10% basic sediment.

(2) The CCE shall not include a salvage or no costvalue for any material or equipment at the facility.

(3) The CCE shall include costs for sampling and analysisof soil for the areas around each waste management unit, includingtank batteries, pads, and former pits.

(4) The CCE shall show unit costs for all material,equipment, services, and labor needed to close the facility. Unitsand fees used shall be appropriate for the type of waste materialto be disposed of. For example, disposal units for saltwater shallbe reported in oil barrels rather than gallons. Solids held withinpermitted containments shall be reported in cubic yards. The CCE shallbe specific and shall state the source or basis for the specific unitcost, including the following:

(A) the permitted waste hauler to be used and the hauler'smileage rate;

(B) the distance that waste will be transported for disposal;

(C) the name of each facility where waste will be takenand the disposal costs for that facility;

(D) the source of any material being brought to thefacility, such as clean fill material;

(E) calculations for earth-moving equipment time andcost needed to move the fill dirt if fill dirt will be taken fromthe facility;

(F) the total labor costs, including the titles andbilling rates for personnel; and

(G) the quantity of each unit cost item and how thetotal quantity was determined (for example, cubic yards of materialdivided by size of load equals total number of loads).

(5) The CCE shall include maps and illustrations suchas facility plans and photographs that show the current conditionof the facility, and/or the condition of the facility upon reachingmaximum permit conditions.

(6) For facilities with groundwater monitoring wells,the CCE shall include costs to plug and abandon all monitoring wells.

(7) For facilities that will require post-closure monitoring,the CCE shall include costs for a minimum of five years of well maintenanceand monitoring. The length of monitoring shall be determined by the Director.

(8) The CCE shall show all calculations used to arriveat total maximum closure costs.

(9) For all estimates submitted for existing facilities,a NORM screening survey of the facility shall be submitted. NORM screeningsurveys shall be performed using a properly calibrated scintillationmeter with a sodium iodide detector (or equivalent), with the resultsreported in microroentgens per hour. Manufacturer's specificationsand relevant calibration records shall be submitted to Technical PermittingSection in Austin for all devices used for NORM detection. All equipment,including piping, pumps, and vessels shall be surveyed. Readings shallbe taken around the circumference of the pits and to the extent possible,over the pits. The ground surrounding the equipment and pits shallbe surveyed in a systematic grid pattern. At a minimum, the followinginformation shall be reported:

(A) the date of the survey;

(B) the instrument used and the last calibration date;

(C) a background reading;

(D) a facility diagram showing where all readings,including the background, were taken; and

(E) the readings (in microroentgens per hour).

(10) If fill dirt will be excavated from the propertyto achieve closure, a restrictive covenant shall be submitted withthe CCE. If the restrictive covenant requirements are not provided,the CCE shall assume that fill dirt is purchased from a commercialsupplier. For a restrictive covenant, the following requirements shallbe met whether the operator owns or leases the property:

(A) The operator shall provide a letter from the propertyowner specifically stating that the owner agrees that the material,which is described with specificity as to location, type and amountconsistent with what is in the closure plan, will be available forclosure whether the operator or the state performs closure, and agreeingto a restrictive covenant that reserves use of the material for closure.

(B) The operator shall submit an unsigned draft restrictivecovenant on the form provided by the Commission. Once the Commissionapproves the closure cost and closure plan, the operator will be notifiedto submit a signed original of the restrictive covenant. The Commissionwill sign its portion of the restrictive covenant and return it tothe operator for filing in the real property records of the countywhere the property is located. Once filed in the real property records,the operator shall provide the Commission with a certified copy.

(C) If the facility operator leases the property, theoperator shall provide to the Commission a copy of an amendment oraddendum to the lease between the operator and the surface owner witha clause that specifically reserves use of material and states thatthe reservation shall inure to the Commission (as third-party beneficiaryof this provision) if the Commission must initiate actions to closethe facility.

(D) The operator shall submit supporting documentationshowing that the dimensions of the restrictive covenant area can realisticallystore a stockpile in the amount needed. If soil will be excavatedfrom the restrictive covenant area rather than stockpiled, the depthof the excavation is limited to what can be graded to prevent stormwaterfrom ponding in the excavated area.

(11) After the CCE has been calculated, an additional10% of that amount shall be added to the total amount of the CCE tocover contingencies.

(h) A permit application for a stationary commercialfluid recycling facility shall include a detailed plan for closureof the facility when operations terminate and include the requiredelements of §4.132 of this title (relating to Closure). The closureplan shall address how the applicant intends to:

(1) remove waste, partially treated waste, and/or recyclableproduct from the facility;

(2) close all pits, treatment equipment, and associatedpiping and other storage or waste processing equipment;

(3) remove dikes and equipment;

(4) contour and reseed disturbed areas;

(5) sample and analyze soil and groundwater throughoutthe facility; and

(6) plug groundwater monitoring wells.

§4.141.Additional Notice Requirements for Commercial Facilities.

(a) In addition to the notice requirements detailedin §4.125 of this title (relating to Notice and Opportunity toProtest), an applicant for a commercial facility permit shall alsoprovide notice by publication.

(b) The permit applicant shall publish notice of theapplication in a newspaper of general circulation in the county inwhich the proposed facility will be located at least once each weekfor two consecutive weeks, with the first publication occurring notearlier than the date staff determines that an application is completepursuant to §1.201(b) of this title (relating to Time Periodsfor Processing Applications and Issuing Permits Administratively)but before the final review is completed.

(c) The published notice shall:

(1) be entitled "Notice of Application for CommercialOil and Gas Waste Facility" if the proposed facility is a commercial facility;

(2) provide the date the applicant filed the applicationwith the Commission;

(3) identify the name of the applicant;

(4) provide the location of the tract on which theproposed facility will be located including the legal descriptionof the property, latitude/longitude coordinates of the proposed facility,county, name of the original survey and abstract number, and locationand distance in relation to the nearest municipality or community;

(5) identify the owner or owners of the property onwhich the proposed facility will be located;

(6) identify the type of fluid or solid waste to bemanaged at the facility;

(7) identify the proposed disposal, treatment, or storage method;

(8) state that affected persons may protest the applicationby filing a protest with the Commission within 30 calendar days ofthe last date of publication;

(9) include the definition of "affected person" pursuantto §4.110 of this title (relating to Definitions); and

(10) provide the address to which protests shall bemailed. If the Commission implements an electronic means for filingprotests, then the location to instructions for electronic submittalshall be included.

(d) The applicant shall submit to the Commission proofthat notice was published as required by this section. Proof of publicationshall consist of:

(1) an affidavit from the newspaper publisher thatstates the dates on which the notice was published and the countyor counties in which the newspaper is of general circulation; and

(2) the tear sheets for each published notice.

§4.142.Operating Requirements Applicable to Commercial Facilities.

(a) An application for commercial facility shall includea detailed waste acceptance plan to ensure that the waste receivedat the facility has been fully and correctly documented by the generatorand carrier, and characterized by the generator, including supportinglaboratory analysis if necessary, and to ensure that prohibited oilfield fluids, prohibited oil and gas wastes, and/or non-jurisdictionalwastes are not received at the facility.

(b) The operator shall develop and maintain a site-specificspill control plan that details the processes in place to controland contain oil and gas waste in the event of a spill or release.The spill control plan shall be maintained on-site and made availableto the Commission upon request.

(c) The operator shall develop and maintain a stormwatermanagement plan to prevent stormwater from running onto the facility,the unauthorized discharge of stormwater, or deleterious impacts ofstormwater from the facility to adjoining properties. The stormwatermanagement plan shall be maintained on-site and made available tothe Commission upon request.

§4.143.Design and Construction Requirements for Commercial Facilities.

Prior to commencement of operations at a commercial facility,the permittee shall provide the Director with drawings documentingthe as-built condition of the facility, including all equipment andwaste management units.

The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.

Filed with the Office of the Secretary of State on August 16, 2024.

TRD-202403755

Haley Cochran

Assistant General Counsel, Office of General Counsel

Railroad Commission of Texas

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 475-1295

16 TAC §§4.150 - 4.154

Statutory authority: Texas Natural Resources Code,§§81.051, 81.052, 81.0351, 85.042, 85.202, 86.042; TexasNatural Resources Code §91.101 and §91.1017; Texas NaturalResources Code §122.004; Texas Natural Resources Code §123.0015;and Texas Water Code Chapter 29.

Cross reference to statute: Texas Natural Resources Code, Chapters81, 85, 86, 91, 122, and 123; and Texas Water Code Chapter 29.

§4.150.Additional Requirements Applicable to Permitted Pits.

(a) In addition to the requirements of this division,all permitted pits are required to comply with Division 4 of thissubchapter (relating to Requirements for All Permitted Waste ManagementOperations). Commercial pits are also required to comply with Division5 of this subchapter (relating to Additional Requirements for Commercial Facilities).

(b) If at any time a pit no longer meets the requirementsfor authorized pits under §4.113 of this title (relating to AuthorizedPits), the operator of the pit shall apply for a pit permit pursuantto the requirements of this division.

(c) No person may use a pit without the express permissionof the permittee. A person who uses a pit without the express permissionof the permittee may be subject to legal enforcement action regardlessof whether the person maintains an active Organization Report pursuantto §3.1 of this title (relating to Organization Report; Retentionof Records; Notice Requirements.)

(d) Any person using or maintaining a pit without therequired permit shall be immediately required to cease usage and closethe pit in accordance with §4.154 of this title (relating toClosure of Permitted Pits). Any person using or maintaining a pitwithout the required permit may be subject to enforcement action regardlessof whether the person maintains an active Organization Report pursuantto §3.1 of this title.

(e) Permitted pits are subject to containment requirementsto prevent pollution of surface or subsurface water and will be includedas permit conditions at the sole discretion of the Commission.

(f) In the event of an unauthorized release of oiland gas waste, treated fluid, or other substances from any pit permittedby this subchapter, the operator shall take any measures necessaryto stop or control the release and report the release to the DistrictOffice within 24 hours.

(g) Unless the Director approves a written requestfor an exception, no pit shall be located:

(1) on a barrier island or a beach;

(2) within 300 feet of surface water, including wetlands;

(3) within 500 feet of any public water system wellor intake;

(4) within 300 feet of any domestic water well or irrigationwater well, other than a well that supplies water for drilling orworkover operations for which the pit is authorized; or

(5) within a 100-year flood plain.

(h) A minimum 50-foot buffer zone shall be maintainedbetween the boundaries of the property and the outer edge or toe ofthe pit walls or berms.

§4.151.Design and Construction of Permitted Pits.

(a) Application.

(1) Unless otherwise provided by permit, all permittedpits shall comply with the general construction requirements applicableto authorized pits in Division 3 of this subchapter (relating to OperationsAuthorized by Rule).

(2) In addition to the information required by §4.128of this title (relating to Design and Construction), the facilitydiagram submitted with the application shall include the following information:

(A) the maximum length, width, and depth of the pitin feet;

(B) the maximum depth of the pit below grade in feet;

(C) the maximum and minimum height of walls or dikesabove grade in feet;

(D) the dimensions of the dikes including the widthat the base, height, and slope;

(E) the maximum volume of the pit in barrels and cubic yards;

(F) the maximum volume of the pit minus the volumeto maintain the required freeboard in barrels and cubic yards;

(G) the volume of the pit below natural grade in barrelsand cubic yards;

(H) information on the pit liner type and thickness,installation methods, and manufacturer's specification sheets;

(I) a plan view drawing of each pit, including alldimensions, and any trenches or structures used to separate and conveycontact and non-contact stormwater;

(J) two perpendicular, sectional views of each pitshowing the bottom, sides, dikes, and natural grade, including alldimensions; and

(K) the surface area and action leakage rate calculationfor any pit with a leakage detection system, that is prepared andsealed by a professional engineer licensed in Texas. The action leakagerate calculations shall include:

(i) all assumptions and dimensions used;

(ii) the size of the pump and pipes that will be usedin the leakage detection system; and

(iii) calculations demonstrating that the system isdesigned to sufficiently withdraw and manage the expected leakage rate.

(3) The permittee shall provide any other informationnecessary to address the operating requirements detailed in subsection(b) of this section.

(b) Operating requirements.

(1) Signage. The permittee shall post a sign at eachpermitted pit. The sign shall show the permit number in letters andnumerals at least three inches in height.

(2) Freeboard. Unless otherwise required by permitor rule, the permittee shall maintain all pits such that each pitmaintains a freeboard of at least two feet plus the capacity to containthe volume of precipitation from a 25-year, 24-hour rainfall event.

(3) Liners.

(A) Equipment, machinery, waste, or other materialsthat could reasonably be expected to puncture, tear, or otherwisecompromise the integrity of the liner shall not be used or placedin lined pits.

(B) Unless the permit specifically provides otherwise,the liner for any permitted pit required to be lined shall complywith the general requirements for lining in Division 3 of this subchapter(relating to Operations Authorized by Rule), except that the thicknessof a high-density polyethylene liner in a permitted pit shall be aminimum of 60 mil and, for any other type of synthetic liner, a minimumof 30 mil.

(C) A brine pit permitted under this subchapter shallbe constructed with a primary and secondary liner and a leakage detection system.

(4) Additional requirements as determined by Director.Any pit permits issued pursuant to this subchapter may contain additionalrequirements concerning design and construction including requirementsrelating to construction materials, dike or berm design, liner material,liner thickness, procedures for installing liners, overflow warningdevices, leak detection devices, monitor wells, and fences that theDirector determines are necessary to prevent pollution.

§4.152.Monitoring of Permitted Pits.

(a) A pit permit application shall include a monitoringplan that establishes a procedure for the permittee to routinely monitorthe integrity of the liner of a pit. The permittee shall comply withthis section by implementing one of the following monitoring methods.

(1) The permittee shall empty the pit and conduct avisual inspection on an annual basis. The permittee shall photographthe interior of the pit and otherwise record each inspection. Thepermittee shall maintain the photographs and records from each inspectionfor the life of the pit and supply these records to the Commissionupon request.

(2) The permittee shall install a double liner andleak detection system between the primary and secondary liner. Theleak detection system shall be monitored on a daily or weekly basisas specified in the permit to determine if the primary liner has failed.

(3) The permittee may implement an alternative monitoringprocedure if the permittee demonstrates that the alternative monitoringis at least as protective of surface and subsurface waters as theprocedures outlined in paragraphs (1) and (2) of this subsection andif the alternative monitoring procedure is approved by the Director.

(b) The permittee shall monitor all pits for linerfailure in accordance with the monitoring plan approved by the Commissionpursuant to subsection (a) of this section. The permittee shall considerthe following when implementing the monitoring plan.

(1) Failure of the primary liner in a double linerand leak detection system occurs if:

(A) a volume of fluid is withdrawn from the leak detectionsystem that is greater than the calculated action leakage rate, thestandard action leakage rate of 1,000 gallons per acre per day (GPAD)for pits that manage fluid waste, or 100 gallons per acre per day(GPAD) for pits that manage solid oil and gas wastes;

(B) any failure in the leak detection and return systemor any component of the system occurs; or

(C) any detected damage to or leakage from the secondaryliner occurs.

(2) The failure of a liner system may be indicatedthrough results of groundwater monitoring.

(3) If liner failure is discovered at any time, thepermittee shall:

(A) notify the Director and the District Director byphone or email within 24 hours of the failure; and

(B) empty the pit as soon as possible, ensuring thatall waste stored or contained in the pit is properly managed. Oncethe pit is emptied, the permittee shall repair the liner and notifythe District Director once the repair is complete. The District Directorshall inspect the repair before the permittee may place the pit backin active operation.

§4.153.Commercial Disposal Pits.

(a) Siting.

(1) An application for a pit at a commercial disposalfacility shall include documentation of a good faith investigationof the 10-year flooding history of the property to determine whetherthe facility is located in a flood-prone area.

(2) In addition to the requirements of §4.150of this title (relating to Additional Requirements Applicable to PermittedPits), a commercial disposal pit shall not be located in:

(A) an area in which the disposal pit is not sufficientlyisolated to prevent pollution of surface or subsurface waters;

(B) a prohibited location defined in Division 11 ofthis subchapter (relating to Requirements for Surface Water Protection); or

(C) any other location where there is an increasedrisk to surface or subsurface waters.

(3) An application for a commercial disposal pit shallinclude information to demonstrate that the pit will not be locatedin an area prohibited under paragraph (2) of this subsection.

(b) Design and construction. An application for a disposalpit permit shall include:

(1) the dimensions of all disposal pits;

(2) the locations and dimensions of all trenches usedto separate and convey contact stormwater and non-contact stormwater;

(3) the maximum waste elevations and final cover; and

(4) details of the final cover anchor trench and finalcover composition.

(c) Closure. Unless otherwise required by permit orif the Director determines that such post-closure monitoring is necessaryto prevent pollution, a post-closure monitoring period of no lessthan five years is required for any commercial disposal pit and anyfacility where a commercial disposal pit is located.

§4.154.Closure of Permitted Pits.

In addition to the requirements outlined in §4.132 ofthis title (relating to Closure), the permittee is required to complywith the following when operations at the pit terminate.

(1) Unless otherwise required by permit, all pits shallbe dewatered and emptied within 120 days of cessation of use.

(2) After the soil sampling analysis has been approvedby the Director, the pit shall be backfilled and compacted within120 days.

(3) Once backfilled, the pit shall be reseeded withvegetation natural to the geographic region to prevent erosion afterpit closure. Use of treated produced water to establish a naturalvegetative cover for the region requires prior approval from the Directorpursuant to §4.184 or §4.185 of this title (relating toPermitted Recycling, and Pilot Programs, respectively).

The agency certifies that legal counsel hasreviewed the proposal and found it to be within the state agency'slegal authority to adopt.

Filed with the Office of the Secretary of State on August 16, 2024.

TRD-202403756

Haley Cochran

Assistant General Counsel, Office of General Counsel

Railroad Commission of Texas

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 475-1295

16 TAC §§4.160 - 4.164

Statutory authority: Texas Natural Resources Code,§§81.051, 81.052, 81.0351, 85.042, 85.202, 86.042; TexasNatural Resources Code §91.101 and §91.1017; Texas NaturalResources Code §122.004; Texas Natural Resources Code §123.0015;and Texas Water Code Chapter 29.

Cross reference to statute: Texas Natural Resources Code, Chapters81, 85, 86, 91, 122, and 123; and Texas Water Code Chapter 29.

§4.160.Additional Requirements for Landfarming and Landtreating Permits.

In addition to the requirements of this division, all applicationsfor landfarming and landtreating permits and all permittees conductinglandfarming or landtreating shall comply with Division 4 of this subchapter(relating to Requirements for All Permitted Waste Management Operations).

§4.161.Design and Construction Requirements for Landfarming and Landtreating Permits.

(a) Application for landfarming and landtreating permits.

(1) The facility diagram submitted with the permitapplication shall include:

(A) two perpendicular, sectional views of all landfarmingcells to be constructed, showing the bottom, sides, and dikes or bermsof the cell with dimensions indicated; and

(B) the locations and dimensions of all areas wherelandfarming and landtreating will occur, dikes, well locations, fences,and access roads, taking into consideration the following restrictions:

(i) a minimum 50-foot buffer zone shall be maintainedbetween the boundaries of the property and the treatment cells, measuredfrom the toe of the constructed berm to the property boundary; and

(ii) a minimum 300-foot buffer zone shall be maintainedbetween the toe of the constructed berms and any drainage featuresor surface waters.

(2) The applicant shall submit information to demonstratethat the area has at least 20 inches of tillable soil that is suitablefor the application, treatment, and disposal of oil and gas waste.

(3) The applicant shall submit information sufficientfor the Director to determine whether the proposed facility will posea threat of pollution or a threat to public health or safety. TheDirector will consider the following factors when determining whetherthe proposed facility presents a threat of pollution or a threat topublic health or safety:

(A) the volume and characteristics of the oil and gaswaste to be managed at the landfarming facility;

(B) depth to and quality of the shallowest groundwater;

(C) distance to the nearest property line or public road;

(D) proximity to coastal natural resources, sensitiveareas as defined by §4.110 of this title (relating to Definitions),water supplies, and/or public, domestic, or irrigation water wells; and

(E) any other factors reasonably necessary to determinewhether issuance of the permit will pose a threat of pollution ora threat to public health or safety.

(b) Berm construction. All berms shall be constructedand maintained:

(1) to fully enclose each landfarming cell area;

(2) to a height of at least 36 inches above land surfacewith a slope no steeper than a one to three (vertical to horizontal)ratio on each side;

(3) so that at least two feet of freeboard plus capacityto contain the volume of precipitation from a 25-year, 24-hour rainfallevent is available; and

(4) as otherwise required by the permit.

(c) Reasons for denial. The Director shall deny anapplication for a landfarming or landtreating permit if the proposedfacility location is:

(1) within a 100-year flood plain;

(2) within 300 feet of surface water bodies;

(3) within 300 feet of domestic or irrigation water wells;

(4) within 500 feet of public water system wells or intakes;

(5) on unsuitable soils for depth or treatment of oiland gas waste;

(6) within any other sensitive area as defined by §4.110of this title; or

(7) non-compliant with Commission rules and permitconditions, as verified by a facility and records inspection.

§4.162.Operating Requirements for Landfarming and Landtreating Permits.

(a) Application. The applicant shall submit the followingoperating information with each application for landfarming permit:

(1) the estimated chloride concentration of the wasteto be accepted at the facility;

(2) the procedure by which waste will be mixed intothe soil;

(3) waste to soil application rates;

(4) the frequency of soil tilling;

(5) the maximum depth to which waste will be tilled;

(6) documentation on any soil amendments or microbesto be used;

(7) plans for monitoring and testing the landfarmingarea, and other appropriate procedures to ensure the treatment oforganic constituents and prevention of pollution;

(8) the estimated duration of landfarming activities;

(9) the total cumulative volume of waste, in barrels,to be landfarmed over the active life of the operation or active cells; and

(10) the total cumulative height of waste, in inches,to be landfarmed over the active life of the operation or active cells.

(b) Operating requirements. A landfarming or landtreatingpermittee shall comply with the following requirements.

(1) Prior to waste application, the permittee shallthoroughly disk the entire landfarming or landtreating area and shallotherwise prepare the area by adding fertilizer, lime, and/or otheragricultural chemicals, if needed.

(2) A landfarming or landtreating permittee shall complywith the following waste application requirements.

(A) The permittee shall apply the waste to each landfarmingcell to prevent the pooling or migration of the waste outside of theapproved landfarming cell and to prevent the waste from entering anywatercourses or drainageways, including any drainage ditch, dry creek,flowing creek, river, or any other surface water.

(B) The total cumulative volume of waste applied toany landfarming cell over its lifetime shall not exceed the permitted volume.

(C) The permittee shall maintain freeboard of at leasttwo feet plus capacity to contain the volume of precipitation froma 25-year, 24-hour rainfall event.

(D) The permittee shall ensure that the waste is uniformlydispersed across the landfarming or landtreating area and the wasteis fully and evenly incorporated into the top six inches of soil.The waste shall be mixed with the soil within 24 hours of waste application.Any active cell shall be disked once a month thereafter until thecell is closed in accordance with the permit.

(E) The permittee is prohibited from applying wasteto the cells during periods of rainfall.

(3) Any standing or pooled rainwater or other liquidin a landfarming cell or within the perimeter berm shall be removedwithin 72 hours and disposed of in an authorized manner. Contact stormwatermay be disked into a landfarming cell with prior written approvalfrom the Director.

(4) Land application of contact stormwater outsideof a permitted landfarming cell is prohibited.

(5) Any spills of waste or any other materials shallbe promptly containerized and disposed of in an authorized manner.

(6) Vehicle access into each cell shall be at a locationwhere the stormwater surface flow cannot enter the treatment cells.

§4.163.Monitoring.

(a) The operator shall monitor three soil zones ineach landfarming cell at the following frequency:

(1) the surface treatment zone from the ground surfaceto a depth of 12 inches below land surface shall be sampled and analyzed quarterly;

(2) the waste treatment zone from 12 to 24 inches belowland surface shall be sampled and analyzed quarterly; and

(3) the compliance monitoring zone from 24 to 36 inchesbelow land surface shall be sampled and analyzed annually.

(b) The operator shall collect samples from each activecell as follows:

(1) The District Office shall be notified by phoneor email at least 48 hours prior to any sampling event.

(2) Each active cell shall be divided into four-acreplots or other plot size as defined in the permit.

(3) The applicant shall take at least one compositesample for each treatment zone in each plot by subdividing each plotinto four equal-sized quadrants.

(A) One composite sample of the surface treatment zonein each plot shall be made from four individual grab samples collectedfrom the surface treatment zone of each quadrant.

(B) One composite sample of the waste treatment zonein each plot shall be made from four individual grab samples collectedfrom the waste treatment zone of each quadrant. (C) One compositesample of the compliance monitoring zone in each plot shall be madefrom four individual grab samples collected from the compliance monitoringzone of each quadrant.

(c) The operator shall analyze samples from each activecell according to the analysis requirements specified in the permit.

(d) If any composite sample exceeds any limitationsspecified by the permit or in the figure in this subsection, the operatorshall remediate the parcel where the sample was collected as follows.

(1) The plot shall be tilled.

(2) The operator shall collect a composite sample fromthe four quadrants of the plot and re-analyze the sample for the parameterfor which the limitations were exceeded.

(3) The operator shall re-till and resample the plotno less than once per month until the sample analyses indicate thatthe parameter limitations are not exceeded.

(4) If the parcel exceeds the limitation after sixmonths of sampling, that plot is not authorized to accept additionalwaste until a sample analysis does not exceed the particular limitation.

Figure: 16 TAC §4.163(d)(4) (.pdf)

(e) Documentation of the sampling and analysis shallbe filed with the Technical Permitting Section and the District Officeas part of the quarterly report required by the permit. A summaryof the soil sampling required by the permit shall include:

(1) a map drawn to scale with coordinates of the sampling locations;

(2) a table indicating the results of the parameters sampled;

(3) the date of sampling;

(4) the approximate depth of the sample below landsurface and corresponding zone; and

(5) copies of the laboratory analytical reports andthe corresponding chain of custody.

§4.164.Closure.

(a) The permittee shall notify the Technical PermittingSection and the District Office in writing at least 45 days priorto commencing closure of any landfarming cell.

(b) The permittee shall submit a detailed closure planto the Technical Permitting Section. The Technical Permitting Sectionmust approve the closure plan before the permittee may commence closureof any cell. The composite samples required by §4.163 of thistitle (relating to Monitoring) shall not exceed the limitations specifiedby permit before the Technical Permitting Section will approve closureof the cell.

(c) Once the Technical Permitting Section approvesclosure of a cell, the permittee shall level any berms and grade thearea in accordance with the following requirements.

(1) All landfarming cells shall be graded and contouredto prevent rain from collecting or pooling at the former cell locationsafter closure; and

(2) To the extent practicable, all landfarming cellsshall be contoured to original grade and reseeded and/or revegetatedwith ground cover appropriate for the geographic region.

The agency certifies that legal counsel hasreviewed the proposal and found it to be within the state agency'slegal authority to adopt.

Filed with the Office of the Secretary of State on August 16, 2024.

TRD-202403757

Haley Cochran

Assistant General Counsel, Office of General Counsel

Railroad Commission of Texas

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 475-1295

16 TAC §§4.170 - 4.173

Statutory authority: Texas Natural Resources Code,§§81.051, 81.052, 81.0351, 85.042, 85.202, 86.042; TexasNatural Resources Code §91.101 and §91.1017; Texas NaturalResources Code §122.004; Texas Natural Resources Code §123.0015;and Texas Water Code Chapter 29.

Cross reference to statute: Texas Natural Resources Code, Chapters81, 85, 86, 91, 122, and 123; and Texas Water Code Chapter 29.

§4.170.Additional Requirements for Reclamation Plants.

(a) Applicability.

(1) This section is applicable to reclamation of tankbottoms and other oil and gas wastes generated through activitiesassociated with the exploration, development, and production (includingtransportation) of crude oil and other waste materials containingoil, as those activities are defined in §4.110 of this title(relating to Definitions).

(2) Removal of tank bottoms or other oil and gas wastesfrom any producing lease tank, pipeline storage tank, or other productionfacility, for reclaiming by any person, is prohibited unless suchperson has either obtained a permit to operate a reclamation plantor is an authorized person. Applicants for a reclamation plant operatingpermit shall file the appropriate form with the Technical PermittingSection. For purposes of this division, an "authorized person" isa tank bottoms cleaner or transporter that is under contract for dispositionof untreated tank bottoms or other oil and gas wastes to a personwho has obtained a permit to operate a reclamation plant.

(3) The removal of tank bottoms or other oil and gaswastes from any facility for which monthly reports are not filed withthe Commission shall be authorized in writing by an Oil Movement Letterissued by the Director or District Director prior to such removal.A written request for such authorization shall be sent to the DistrictDirector, and shall detail the location, description, estimated volume,and specific origin of the material to be removed as well as the nameof the reclaimer and intended destination of the material. If theauthorization is denied, the applicant may request a hearing.

(4) No person shall remove basic sediment from anyproducing lease tank, pipeline storage tank, or other production facilityunless authorized to do so by a waste hauler permit pursuant to Division10 of this subchapter (relating to Requirements for Oil and Gas Waste Transportation).

(5) Unless expressly authorized by permit, no personshall reclaim basic sediment and waste without a reclamation plant permit.

(6) A reclamation plant is a commercial facility andis subject to Division 5 of this subchapter (relating to AdditionalRequirements for Commercial Facilities).

(7) Reclamation plant permits that were issued pursuantto §3.57 of this title (relating to Reclaiming Tank Bottoms,Other Hydrocarbon Wastes, and Other Waste Materials) before July 1,2025 shall expire five years from July 1, 2025. Permits may be renewedpursuant to §4.122 of this title (relating to Permit Renewals,Transfers, and Amendments).

(8) This section does not apply where basic sedimentis recycled or processed on-site by the operator and returned to atank or vessel at the same lease or facility.

(9) This section does not apply to the recycling ofdrilling mud. This section does apply to unrefined hydrocarbons recoveredfrom such mud that are sent to a permitted reclamation plant.

(10) All reclamation plants shall be permitted. Satellitereclamation facilities, including waste storage facilities, are strictly prohibited.

(b) Application.

(1) In addition to the requirements of this division,all applicants for reclamation plant permits and permittees operatingreclamation plants shall comply with the following:

(A) Division 4 of this subchapter (relating to Requirementsfor all Permitted Waste Management Operations);

(B) Division 5 of this subchapter (relating to AdditionalRequirements for Commercial Facilities); and

(C) Division 6 of this subchapter (relating to AdditionalRequirements for Permitted Pits).

(2) Each application for reclamation plant permit shall include:

(A) a list of the waste types to be received;

(B) a detailed description of the treatment process,equipment, and pits, storage, or on-site containment at the facility;

(C) a description of the reclamation process ratesand on-site storage capacity of waste and reclaimed material; and

(D) the spill control plan for the facility.

(3) Applicants for a reclamation plant permit shallfile the application on the Commission-prescribed form or electronic system.

§4.171.Standard Permit Provisions.

(a) Reclamation plant permits shall be issued for aterm of not more than five years.

(b) Reclamation plant permits may be renewed, transferred,or amended pursuant to §4.122 of this title (relating to PermitRenewals, Transfers, and Amendments). Reclamation plant permits aresubject to the financial security requirements in §4.140 of thistitle (relating to Additional Requirements for Commercial Facilities)and may be subject to fees in accordance with §4.106 of thistitle (relating to Fees).

(c) If the waste hauler transporting tank bottoms orother oil and gas wastes to the reclamation plant does not complywith Division 10 of this subchapter (relating to Requirements forOil and Gas Waste Transportation), the reclamation plant permitteeshall not accept the tank bottoms or other oil and gas wastes andshall report the violation to the District Office no later than 24hours after the violation occurs.

(d) The receipt of any tank bottoms or other oil andgas wastes from outside the state of Texas shall be submitted on monthlyreports to the Commission.

(e) The receipt of any waste materials other than tankbottoms or other oil and gas wastes shall be authorized in writingby the Commission prior to receipt. The Commission may require thereclamation plant operator to submit an analysis of the waste materialsprior to a determination of whether to authorize receipt. If the requestfor authorization is denied, the applicant may request a hearing.

(f) All wastes generated by reclaiming operations shallbe disposed of in accordance with this subchapter, §3.9 of thistitle (relating to Disposal Wells), or §3.46 of this title (relatingto Fluid Injection into Productive Reservoirs).

(g) All reclamation facilities shall have in-person24-hour security monitoring.

(h) Reclamation plant permits shall include enforceablelimits on the processing capacity of treatment equipment and the storagevolumes of waste and reclaimed oil.

§4.172.Minimum Permit Provisions for Operations.

(a) The following provisions apply to any removal oftank bottoms or other oil and gas wastes from any oil producing leasetank, pipeline storage tank, or other production facility.

(1) Tank bottoms and other oil and gas wastes shallbe reclaimed using the methods authorized in the permit.

(2) An authorized representative of the operator ofa reclamation plant shall execute a manifest in accordance with §3.85of this title (relating to Manifest To Accompany Each Transport ofLiquid Hydrocarbons by Vehicle) upon each removal of tank bottomsor other oil and gas wastes from any oil producing lease tank, pipelinestorage tank, or other production facility. In addition to the informationrequired pursuant to §3.85 of this title, the operator of thereclamation plant or other authorized person shall also include onthe manifest:

(A) the Commission identification number of the leaseor facility from which the material is removed; and

(B) the gross and net volume of the material as determinedby the required shakeout test.

(3) The operator of the reclamation plant or otherauthorized person shall complete the manifest before leaving the leaseor facility from which the liquid hydrocarbons are removed and shallretain a copy for three years.

(4) The operator of the reclamation plant or otherauthorized person shall keep a copy of the manifest in the vehicletransporting the material.

(b) The operator of a reclamation plant or other authorizedperson shall conduct a shakeout test on all tank bottoms or otheroil and gas wastes upon removal from any producing lease tank, pipelinestorage tank, or other production facility to determine the crudeoil and/or lease hydrocarbon condensate content. The shakeout testshall be conducted in accordance with the most current API or ASTM method.

(c) Pursuant to §4.190 of this title (relatingto Oil and Gas Waste Characterization and Documentation), waste characterizationand profiling shall be performed before the waste is accepted at thereclamation plant.

§4.173.Minimum Permit Provisions for Reporting.

(a) An operator of a reclamation plant shall file amonthly report documenting the volumetric throughput of waste andreclaimed hydrocarbons.

(b) The Commission may establish a form or electronicsystem for filing monthly reports for reclamation plants.

(c) For wastes taken to a reclamation plant the followingprovisions shall apply.

(1) The net crude oil content or lease condensate froma producing lease's tank bottom as indicated by the shakeout testshall be used to calculate the amount of oil to be reported as a dispositionon the monthly production report. The net amount of crude oil or leasecondensate from tank bottoms taken from a pipeline facility shallbe reported as a delivery on the monthly transporter report.

(2) For other oil and gas wastes, the net crude oilcontent or lease condensate of the wastes removed from a tank, treater,firewall, pit, or other container at an active facility, includinga pipeline facility, shall also be reported as a disposition or deliveryfrom the facility.

(d) The net crude oil content or lease condensate ofany tank bottoms or other oil and gas wastes removed from an activefacility, including a pipeline facility, and disposed of on site ordelivered to a site other than a reclamation plant shall also be reportedas a delivery or disposition from the facility. All such disposalshall be in accordance with this subchapter and §§3.9 and3.46 of this title (relating to Disposal Wells; and Fluid Injectioninto Productive Reservoirs, respectively). Operators may be requiredto obtain a minor permit for such disposal pursuant to §4.182of this title (relating to Minor Permits). Prior to approval of theminor permit, the Commission may require an analysis of the disposablematerial to be performed.

The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.

Filed with the Office of the Secretary of State on August 16, 2024.

TRD-202403758

Haley Cochran

Assistant General Counsel, Office of General Counsel

Railroad Commission of Texas

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 475-1295

16 TAC §§4.180 - 4.182, 4.184, 4.185

Statutory authority: Texas Natural Resources Code,§§81.051, 81.052, 81.0351, 85.042, 85.202, 86.042; TexasNatural Resources Code §91.101 and §91.1017; Texas NaturalResources Code §122.004; Texas Natural Resources Code §123.0015;and Texas Water Code Chapter 29.

Cross reference to statute: Texas Natural Resources Code, Chapters81, 85, 86, 91, 122, and 123; and Texas Water Code Chapter 29.

§4.180.Activities Permitted as Miscellaneous Permits.

This division contains permit requirements for some activities not otherwise addressed in this subchapter. Unless otherwise specified in this division or by the Director, the requirements of Divisions 4 through 8 of this subchapter do not apply to activities permitted under this division.

§4.181.Emergency Permits.

(a) If the District Director determines that expeditious issuance of the permit will prevent or is likely to prevent the waste of oil, gas, or geothermal resources or the pollution of surface or subsurface water, the District Director may issue an emergency permit.

(b) An application for an emergency permit to use ormaintain a pit or to dispose of oil and gas wastes shall be filedwith the District Office. Notice of the application is not required.

(c) If warranted by the nature of the emergency, theDistrict Director may issue an emergency permit based upon an oralapplication, or may orally authorize an activity before issuing awritten permit authorizing that activity.

(d) An emergency permit is valid for up to 30 days,but may be modified, suspended, or terminated by the District Directorat any time for good cause.

§4.182.Minor Permits.

(a) If the District Director determines that an applicationis for a permit to store only a minor amount of oil field fluids orto store or dispose of only a minor amount of oil and gas waste, theDistrict Director may issue a minor permit provided the permit doesnot authorize an activity which results in waste of oil, gas, or geothermalresources or pollution of surface or subsurface water.

(b) An application for a minor permit shall be filedwith the Commission in the District Office. Notice of the applicationshall be given as required by the District Director. The DistrictDirector may determine that notice of the application is not required.

(c) A minor permit is valid for 60 days, but a minorpermit which is issued without notice of the application may be modified,suspended, or terminated by the District Director at any time forgood cause.

§4.184.Permitted Recycling.

(a) For non-commercial recycling not otherwise authorizedby this subchapter, the Director may authorize such recycling by permit.In determining appropriate permit conditions, the Director shall reviewthe general permit requirements outlined in Division 4 of this subchapter(relating to Requirements for All Permitted Waste Management Operations)and determine which permit requirements, if any, are necessary toprevent pollution of surface and subsurface water. The Director shallconsider the source of the waste, the anticipated constituents ofconcern, the volume of waste, the location, and the proposed reuseof the treated waste.

(b) Commercial recycling shall be permitted in accordancewith Subchapter B of this title (relating to Commercial Recycling).

§4.185.Pilot Programs.

(a) For any recycling activities not otherwise authorizedby rule or permit in this subchapter, an operator may propose a pilot program.

(b) A pilot program is a program implemented to assess:

(1) whether the recycled product can be reused in certainactivities that are safe and protective of human health and the environment;

(2) the efficiency and effectiveness of the recyclingproject; or

(3) the appropriate regulatory requirements of a permittedrecycling program.

(c) If the Director finds that the proposed pilot programdoes not present a threat of pollution and encourages recycling ofoil and gas wastes, the Commission may authorize a pilot program.The duration of the pilot program shall be sufficient to evaluatethe pilot program objectives, which may include sufficient time totake an appropriate non-food based crop from seed through one completegrowing cycle.

(1) If the Commission determines that the proposedpilot program prevents pollution and promotes the beneficial reuseof oil and gas waste, the Commission may authorize the recycling bypermit pursuant to §4.184 of this title (relating to Permitted Recycling).

(2) If the Commission determines that more time isneeded to fulfill the objectives of the pilot program, the Commissionmay extend the pilot program in increments of no more than one year.

The agency certifies that legal counsel hasreviewed the proposal and found it to be within the state agency'slegal authority to adopt.

Filed with the Office of the Secretary of State on August 16, 2024.

TRD-202403759

Haley Cochran

Assistant General Counsel, Office of General Counsel

Railroad Commission of Texas

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 475-1295

16 TAC §§4.190 - 4.195

Statutory authority: Texas Natural Resources Code,§§81.051, 81.052, 81.0351, 85.042, 85.202, 86.042; TexasNatural Resources Code §91.101 and §91.1017; Texas NaturalResources Code §122.004; Texas Natural Resources Code §123.0015;and Texas Water Code Chapter 29.

Cross reference to statute: Texas Natural Resources Code, Chapters81, 85, 86, 91, 122, and 123; and Texas Water Code Chapter 29.

§4.190.Oil and Gas Waste Characterization and Documentation.

(a) The generator of oil and gas waste is responsible for characterizing and documenting the waste prior to transportation.

(b) A generator of any waste subject to Commission jurisdiction shall document the waste characterization by completing and retaining a Waste Profile Form that documents the characteristics of each waste stream generated.

(1) A Waste Profile Form shall be made available by the Commission or an operator may use its own form that includes at least the following information for each oil and gas waste stream:

(A) the generator name and P-5 operator number, includingthe contact information of the person preparing the waste profile;

(B) a generator-assigned identifier (name and/or number)specific to the generated waste;

(C) a description of the waste, including physicaland chemical characteristics and constituents;

(D) the estimated quantity of the waste;

(E) the basis for the characterization, which shallbe made in accordance with §4.102(a) of this title (relatingto Responsibility for Oil and Gas Wastes); and

(F) other information pertinent to characterization.

(2) A generator may establish standard waste profilesfor common types of oil and gas waste that are often found at oiland gas sites, such as spent water-based drilling mud, oil-based cuttings,oil-contaminated soil, domestic septage, and rubbish.

(3) A generator of waste that chooses to dispose ofor recycle such waste shall provide the Waste Profile Form to thewaste hauler and receiver.

(4) The receiver of the oil and gas waste shall includethe waste profile information in the periodic reporting requirementsas described in the facility permit conditions.

§4.191.Oil and Gas Waste Manifests.

(a) Oil and gas waste that is transported by vehiclefrom the lease, unit, or other oil or gas property or facility whereit is generated to an off-lease facility that manages oil and gaswaste shall:

(1) be accompanied by a paper manifest that meets therequirements of this section; or

(2) be documented and tracked by an electronic manifestsystem that meets the requirements of this section and is accessibleto the Commission and all parties involved in the management of the waste.

(b) The Commission shall establish a standard oil andgas waste manifest that may be used in Texas, or operators may usetheir own forms provided they include at least the following information:

(1) identity of the waste generator, including operatorname, Commission-issued operator number, and detailed contact information;

(2) identity of the property or facility where theoil and gas waste was generated, using Commission-issued identifiers including:

(A) operator name and Commission-assigned operatornumber of the generator;

(B) lease name and Commission-assigned lease number;

(C) facility name and Commission-assigned number, orthe latitude and longitude of the waste origin if a Commission-assignedidentifier is not available; and

(D) county name;

(3) the corresponding waste profile identifier preparedby the generator as required in §4.190 of this title (relatingto Oil and Gas Waste Characterization and Documentation);

(4) identity of the facility to which the oil and gaswaste is delivered including the identifier issued by the appropriateregulatory agency and detailed contact information for the facility;

(5) transporter name and waste hauler permit numberwith driver signature;

(6) type and volume of oil and gas waste transported;

(7) date of shipment;

(8) name and signature of generator; and

(9) date of acceptance with waste receiver signature.

(c) The generator of the oil and gas waste, the wastehauler, and the receiver shall keep for a period of three years fromthe date of shipment copies or electronic records of all manifests.

(d) Oil and gas waste that is moved by pipeline isnot required to be accompanied by a manifest but an operator of anoil and gas waste pipeline system is required to:

(1) meter the fluid flow for mass balance into andout of the system;

(2) maintain the metering records for three years; and

(3) provide the records to the Commission upon request.

§4.192.Special Waste Authorization.

(a) Section 3.30(e) of this title (relating to Memorandumof Understanding between the Railroad Commission of Texas (RRC) andthe Texas Commission on Environmental Quality (TCEQ)) provides a meansby which certain oil and gas waste may be managed at an appropriateTCEQ-regulated facility and by which certain TCEQ-jurisdictional wastemay be managed at an appropriate RRC-regulated facility.

(b) A Special Waste Authorization approved by bothagencies is required before oil and gas waste can be managed at aTCEQ-regulated facility or before TCEQ-jurisdictional waste can bereceived at an RRC-regulated facility.

(c) The Commission shall create a Special Waste AuthorizationForm suitable for these purposes.

§4.193.Oil and Gas Waste Haulers.

(a) Prohibitions. A person who transports oil and gaswaste for hire by any method other than by pipeline shall not haulor dispose of oil and gas waste off a lease, unit, or other oil orgas property where it is generated without a valid oil and gas wastehauler permit. A permittee under this division shall not gather oil,gas, or geothermal resources unless otherwise authorized by Commissionrules. An oil and gas waste hauler shall not transport oil, gas, orgeothermal resources in the same vehicle being used to transport oiland gas wastes other than incidental volumes of skim oil normallypresent in produced water or other oil and gas wastes.

(b) Exclusions.

(1) Hauling of inert waste, asbestos-containing materialregulated under the Clean Air Act (42 USC §§7401 et seq.),polychlorinated biphenyl (PCB) waste regulated under the Toxic SubstancesControl Act (15 USC §§2601 et seq), or hazardous oil andgas waste subject to regulation under §3.98 of this title (relatingto Standards for Management of Hazardous Oil and Gas Waste) is excludedfrom this section.

(2) Hauling of oil and gas NORM waste that is not exemptfrom Subchapter F of this title (relating to Oil and Gas NORM) andthat exceeds the exemption criteria specified in 25 Texas AdministrativeCode §289.259(d)(1), (2), and (3) (relating to Licensing of NaturallyOccurring Radioactive Material (NORM)), is excluded from this section.

(c) Application. An application for an oil and gaswaste hauler permit shall be made in an electronic system establishedby the Commission. The application shall include:

(1) the permit application fee required by §3.78of this title (relating to Fees and Financial Security Requirements);

(2) vehicle identification information to support Commissionissuance of an approved vehicle list;

(3) an affidavit from the operator of each commission-permittedwaste facility the hauler intends to use stating that the hauler haspermission to use the waste facility system;

(4) a certification by the hauler that the vehicleslisted on the application are designed so that they will not leakduring transportation. The certification shall include a statementthat vehicles used to haul oil and gas waste are designed to transportoil and gas wastes and shall be operated and maintained to preventthe escape of oil and gas waste; and

(5) any other information required by the Commission.

(d) Permit term.

(1) An oil and gas waste hauler permit may be issuedfor a term not to exceed one year.

(2) A waste hauler permittee may not apply to renewa permit using the permittee's assigned permit number and by payingthe fee required by §3.78 of this title until a minimum of 60days before the expiration date specified in the permit.

(3) A waste hauler permittee shall apply for a newwaste hauler permit number if the permittee submits a renewal applicationmore than six months after the expiration of its permit.

(e) Permit conditions. Each oil and gas waste haulershall operate in strict compliance with the instructions and conditionsstated on the permit, which are restated as follows.

(1) This permit, unless suspended or revoked for causeshown, shall remain valid until the expiration date specified in this permit.

(2) Each vehicle used by a permittee shall be markedon both sides and the rear with the permittee's name and permit numberin characters not less than three inches high. For the purposes ofthis permit, "vehicle" means any truck tank, trailer tank, tank car,vacuum truck, dump truck, garbage truck, or other container in whichoil and gas waste will be hauled by the permittee.

(3) Each vehicle shall carry a copy of the permit includingthose parts of the Commission-issued attachments listing approvedvehicles. This permit authority is limited to those vehicles shownon the Commission-issued list of approved vehicles.

(4) This permit is issued pursuant to the informationfurnished on the Commission-prescribed application form, and any changein conditions shall be reported to the Commission on an amended applicationform. The permit authority will be revised as required by the amended application.

(5) This permit authority is limited to hauling, handling,and disposal of oil and gas waste.

(6) This permit authorizes the permittee to use Commission-permittedwaste facilities provided the waste facilities are permitted to receivethe specific type of waste being hauled.

(7) This permit also authorizes the permittee to usea waste facility operated under authority of a minor permit issuedby the Commission.

(8) This permit authorizes the permittee to transporthazardous oil and gas waste to any facility in accordance with theprovisions of §3.98 of this title (relating to Standards forManagement of Hazardous Oil and Gas Waste) provided the shipment isaccompanied by a manifest that meets the requirements of §3.98(o)or (w) of this title as applicable.

(9) This permit authorizes the transportation of non-hazardousoil and gas waste to a disposal facility permitted by another stateagency, another state, or an agency of the federal government, providedthe shipment is accompanied by a manifest, run ticket, or shippingpaper and the person submits a copy of such manifest, run ticket,or shipping paper showing the information specified in §4.191of this title (relating to Oil and Gas Waste Manifests) to the appropriateCommission District Office within 30 days of shipment.

(10) Each vehicle shall be operated and maintainedin such a manner as to prevent spillage, leakage, or other escapeof oil and gas waste during transportation on or off any facilityregulated by the Commission. Vehicles used to haul oil and gas wasteshall be designed to transport oil and gas wastes and shall be operatedand maintained to prevent the escape of oil and gas waste.

(11) Each vehicle shall be made available for inspectionupon request by the Commission.

§4.194.Recordkeeping.

(a) Generators, waste haulers, and receivers shallkeep all waste profiles, manifests, and other documentation for aperiod of at least three years. The person keeping any records requiredby this section shall make the records available to the Commissionupon request.

(b) Upon discovering any significant discrepancy inwaste descriptions, volumes, place of origin, disposal locations ordestinations, or other information based on personal observation orinformation contained in the manifest or electronic system, the receivershall submit to the Commission, the generator, and the waste haulera letter describing the discrepancy and a copy of the manifest orelectronic system documentation.

§4.195.Waste Originating Outside of Texas.

Notwithstanding the provisions of §4.190 through §4.192of this title (relating to Oil and Gas Waste Characterization andDocumentation; Oil and Gas Waste Manifests; and Special Waste Authorization,respectively), oil and gas waste that is generated outside of Texasand transported into Texas for management shall be accompanied bydocumentation including the name of the generator, the location oforigin, and any operator and facility identifiers issued by the appropriateregulatory agency of that state to ensure the origin of the wasteis accurately identified and possession of the waste is tracked.

The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.

Filed with the Office of the Secretary of State on August 16, 2024.

TRD-202403760

Haley Cochran

Assistant General Counsel, Office of General Counsel

Railroad Commission of Texas

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 475-1295

16 TAC §4.196, §4.197

Statutory authority: Texas Natural Resources Code,§§81.051, 81.052, 81.0351, 85.042, 85.202, 86.042; TexasNatural Resources Code §91.101 and §91.1017; Texas NaturalResources Code §122.004; Texas Natural Resources Code §123.0015;and Texas Water Code Chapter 29.

Cross reference to statute: Texas Natural Resources Code, Chapters81, 85, 86, 91, 122, and 123; and Texas Water Code Chapter 29.

§4.196.Surface Water Pollution Prevention.

(a) An operator shall not pollute the waters of theTexas offshore and adjacent estuarine zones (saltwater bearing bays,inlets, and estuaries) or damage aquatic life therein.

(b) All oil, gas, and geothermal resource well drillingand producing operations shall be conducted in such a manner to precludethe pollution of the waters of the Texas offshore and adjacent estuarinezones. The following procedures shall be utilized to prevent pollution.

(1) No oil or other hydrocarbons in any form or combinationwith other materials or constituent shall be disposed of into theTexas offshore and adjacent estuarine zones.

(2) All deck areas on drilling platforms, barges, workoverunit, and associated equipment both floating and stationary subjectto contamination shall be either curbed and connected by drain toa collecting tank, sump, or enclosed drilling slot in which the containmentwill be treated and disposed of without causing hazard or pollution;or else drip pans, or their equivalent, shall be placed under anyequipment which might reasonably be considered a source from whichpollutants may escape into surrounding water. These drip pans shallbe piped to collecting tanks, sumps, or enclosed drilling slots toprevent overflow or prevent pollution of the surrounding water.

(3) Solid wastes such as cans, bottles, any form oftrash, or ashes of combustible waste shall be transported to shorein appropriate containers.

(4) Drilling muds which contain oil shall be transportedto shore or a designated area for disposal.

(5) Fluids produced from offshore wells shall be mechanicallycontained in adequately pressure-controlled piping or vessels fromproducing well to disposition point. Oil and water separation facilitiesat offshore and onshore locations shall contain safeguards to preventdischarge of pollutants to the Texas offshore and adjacent estuarine zones.

(6) Any person observing water pollution shall reportsuch sighting, noting size, material, location, and current conditionsto the ranking operating personnel. Immediate action shall be takenor notification made to eliminate further pollution. The operatorshall then transmit the report to the appropriate Commission District Office.

(7) Immediate corrective action shall be taken in allcases where pollution has occurred. An operator responsible for thepollution shall remove immediately such oil, oil field waste, or otherpollution materials from the waters and the shoreline where it isfound. Such removal operations will be at the expense of the responsible operator.

(c) The Commission may suspend producing and/or drillingoperations from any facility if the provisions of this rule are being violated.

(d) The requirements of this section shall also applyto all oil, gas, or geothermal resource operations conducted on theinland and fresh waters of the State of Texas, such as lakes, rivers,and streams.

§4.197.Consistency with the Texas Coastal Management Program.

(a) Applicability. The provisions of this section applyonly to activities that occur in the coastal zone and that are subjectto the Coastal Management Program (CMP) rules in 31 Texas AdministrativeCode Chapters 26 through 29.

(1) Disposal of oil and gas waste in pits. The followingprovisions apply to oil and gas waste disposal pits located in thecoastal zone.

(A) No commercial oil and gas waste disposal pit constructedafter October 25, 1995, shall be located in any coastal natural resourcesarea (CNRA).

(B) All oil and gas waste disposal pits shall be designedto prevent releases of pollutants that adversely affect coastal watersor critical areas.

(2) Development in critical areas. The provisions ofthis paragraph apply to issuance under §401 of the federal CleanWater Act, United States Code, Title 33, §1341, of certificationsof compliance with applicable water quality requirements for federalpermits authorizing development affecting critical areas. Prior toissuing any such certification, the Commission shall confirm thatthe requirements of 31 Texas Administrative Code §26.23(a)(1)- (7) (relating to Policies for Development in Critical Areas) havebeen satisfied. The Commission shall coordinate its efforts underthis section with those of other appropriate state and federal agencies.

(3) Dredging and dredged material disposal and placement.The provisions of this section apply to issuance under §401 ofthe federal Clean Water Act, United States Code, Title 33, §1341,of certifications of compliance with applicable water quality requirementsfor federal permits authorizing dredging and dredged material disposaland placement in the coastal zone. Prior to issuing any such certification,the Commission shall confirm that the requirements of 31 Texas AdministrativeCode §26.25 (relating to Policies for Dredging and Dredged Materialand Placement) have been satisfied.

(b) Consistency determinations. The provisions of thissubsection apply to issuance of determinations required under 31 TexasAdministrative Code §29.30 (relating to Agency Consistency Determination)for the following actions listed in 31 Texas Administrative Code §29.11(a)(3)(relating to Actions and Rules Subject to the Coastal Management Program):permits to dispose of oil and gas waste in a pit; and certificationsof compliance with applicable water quality requirements for federalpermits for development in critical areas and dredging and dredgedmaterial disposal and placement in the coastal area.

(1) The Commission shall issue consistency determinationsunder this subsection as an element of the permitting process forpermits to dispose of oil and gas waste in a pit.

(2) Prior to issuance of a permit or certificationcovered by this subsection, the Commission shall determine if theproposed activity will have a direct and significant adverse effecton any CNRA identified in the provisions of subsection (a) of thissection that are applicable to such activity.

(A) If the Commission determines that issuance of apermit or a certification covered by this subsection would not resultin direct and significant adverse effects to any coastal natural resourcearea (CNRA) identified in the provisions of subsection (a) of thissection that are applicable to the proposed activity, the Commissionshall issue a written determination of no direct and significant adverseeffect which shall read as follows: "The Railroad Commission has reviewedthis proposed action for consistency with the Coastal Management Program(CMP) goals and policies, and has found that the proposed action willnot have a direct and significant adverse effect on any coastal naturalresource area (CNRA) identified in the applicable policies."

(B) If the Commission determines that issuance of apermit or certification covered by this paragraph would result indirect and significant adverse effects to a CNRA identified in theprovisions of subsection (a) of this section that are applicable tothe proposed activity, the Commission shall determine whether theproposed activity would meet the applicable requirements of subsection(a) of this section.

(i) If the Commission determines that the proposedactivity would meet the applicable requirements of subsection (a)of this section, the Commission shall issue a written consistencydetermination which shall read as follows: "The Railroad Commissionhas reviewed this proposed action for consistency with the Texas CoastalManagement Program (CMP) goals and policies, and has determined thatthe proposed action is consistent with the applicable CMP goals and policies."

(ii) If the Commission determines that the proposedactivity would not meet the applicable requirements of subsection(a) of this section, the Commission shall not issue the permit or certification.

(c) Thresholds for referral. Any Commission actionthat is not identified in this subsection shall be deemed not to exceedthresholds for referral for purposes of the CMP rules. Pursuant to31 Texas Administrative Code §29.32 (relating to Requirementsfor Referral of a Proposed Agency Action), the thresholds for referralof consistency determinations issued by the Commission are as follows:

(1) for oil and gas waste disposal pits, any permitto construct a pit occupying five acres or more of any CNRA that hasbeen mapped or that may be readily determined by a survey of the site;

(2) for certification of federal permits for developmentin critical areas:

(A) in the bays and estuaries between Pass Cavalloin Matagorda Bay and the border with the Republic of Mexico, any certificationof a federal permit authorizing disturbance of:

(i) ten acres or more of submerged aquatic vegetationor tidal sand or mud flats; or

(ii) five acres or more of any other critical area; and

(B) in all areas within the coastal zone other thanthe bays and estuaries between Pass Cavallo in Matagorda Bay and theborder with the Republic of Mexico, any certification of a federalpermit authorizing disturbance of five acres or more of any criticalarea; and

(3) for certification of federal permits for dredgingand dredged material disposal or placement, certification of a permitauthorizing removal of more than 10,000 cubic yards of dredged materialfrom a critical area.

The agency certifies that legal counsel hasreviewed the proposal and found it to be within the state agency'slegal authority to adopt.

Filed with the Office of the Secretary of State on August 16, 2024.

TRD-202403761

Haley Cochran

Assistant General Counsel, Office of General Counsel

Railroad Commission of Texas

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 475-1295

DIVISION 1. GENERAL; DEFINITIONS

16 TAC §§4.201 - 4.209, 4.211

Statutory authority: Texas Natural Resources Code,§§81.051, 81.052, 81.0351, 85.042, 85.202, 86.042; TexasNatural Resources Code §91.101 and §91.1017; Texas NaturalResources Code §122.004; Texas Natural Resources Code §123.0015;and Texas Water Code Chapter 29.

Cross reference to statute: Texas Natural Resources Code, Chapters81, 85, 86, 91, 122, and 123; and Texas Water Code Chapter 29.

§4.201.Purpose.

(a) This subchapter establishes, for the purpose ofprotecting public health, public safety, and the environment withinthe scope of the Commission's statutory authority, the minimum permittingand operating standards and requirements for commercial recyclingof [oil and gas] wastes associated with activitiesgoverned by the Commission including those governed under: [the jurisdiction of the Commission.]

(1) Texas Natural Resources Code Title 3, Subtitle B;

(2) Texas Natural Resources Code Title3, Subtitle D, Chapters 121-123;

(3) Texas Natural Resources Code Title 5;

(4) Texas Health and Safety Code Chapter 382, Subchapter K; and

(5) Texas Water Code Chapters 26, 27 and 29.

(b) Other wastes described in subsection (a) of this section are included when this subchapter refers to oil and gas waste(s) and may be managed in accordance with the provisions of this subchapter at facilities authorized under this subchapter provided the wastes are nonhazardous and chemically and physically similar to oil and gas wastes.

(c) [(b)] No person conducting activities subject to this subchapter may cause or allow pollutionof surface or subsurface water in the state.

(d) [(c)] The provisions of thissubchapter do not supersede other Commission regulations relatingto oil field fluids or oil and gas waste.

§4.202.Applicability and Exclusions.

(a) The provisions of this subchapter apply to thefollowing categories of commercial recycling:

(1) on-lease commercial recycling of solid oil andgas waste;

(2) off-lease or centralized commercial solid oil andgas waste recycling;

(3) stationary commercial solid oil and gas waste recycling;

(4) off-lease commercial recycling of fluid; and

(5) stationary commercial recycling of fluid.

(b) The provisions of this subchapter do not applyto recycling methods authorized for certain wastes by SubchapterA of this chapter [§3.8 of this title (relating toWater Protection); §3.57 of this title (relating to ReclaimingTank Bottoms, Other Hydrocarbon Wastes, and Other Waste Materials);]or §3.98 of this title (relating to Standards for Managementof Hazardous Oil and Gas Waste).

[(c) The provisions of this subchapterdo not apply to non-commercial fluid recycling. Such recycling issubject to the requirements of §3.8 of this title].

(c) [(d)] The permitting provisionsof this subchapter do not apply to the recycling of fluid receivedat a commercial disposal well operated pursuant to permit issued under§3.9 of this title (relating to Disposal Wells) or §3.46of this title (relating to Fluid Injection into Productive Reservoirs).[,] Such recycling is authorized by this subchapter provided:

(1) the operator of the disposal well treats,or contracts with a person for the treatment of the fluid;

(2) the operator of the disposal well isresponsible for all activities, including the recycling, that occurson the lease;

(3) the operator has obtained theapplicable permits for pits or waste management units at the lease;

(4) the operator [and]has obtained financial security in accordance with §3.78 of thistitle (relating to Fees and Financial Security Requirements);

(5) the operator provides writtennotification to the District Office [appropriate districtoffice] seven days before recycling operations are expectedto begin and includes information on how fluids will be controlledand contained during recycling operations; and

(6) the operator provides writtennotification to the District Office [appropriate districtoffice] within seven days of concluding recycling operations.[Such recycling is authorized by this subchapter.]

(d) [(e)] The provisions of thissubchapter are in addition to the permitting requirements of SubchapterA of this chapter [§3.8 of this title], whichrequires a permit for any pit not specifically authorized in Division3 of Subchapter A of this chapter [the rule].

(e) [(f)] The provisions of thissubchapter do not authorize discharge of oil and gas waste.

(f) [(g)] The provisions of thissubchapter do not apply to recycling facilities regulated by the TexasCommission on Environmental Quality or its predecessor or successoragencies, another state, or the federal government.

(g) Permits issued pursuant to thissubchapter prior to July 1, 2025, shall remain in effect pursuantto the rules in existence at the time the permits were issued andthe requirements of the permits themselves, including the requirementsfor permit renewal. However, the Director may consider the operational,monitoring, and closure requirements on a case-by-case basis.

§4.203.Responsibility for Management of Waste to be Recycled.

(a) Permit required. A person who operates a commercialrecycling facility shall obtain a permit from the Commission underthis subchapter before engaging in such operation.

(b) Hauling of waste. A waste hauler transporting anddelivering oil and gas waste for commercial recycling permitted pursuantto this subchapter shall be permitted by the Commission as an Oiland Gas Waste Hauler pursuant to §4.193 [§3.8(f)] of this title (relating to Oil and Gas Waste Haulers [Water Protection]).

(c) Responsibility of generator and carrier. No generatoror carrier may knowingly use the services of a commercial recyclingfacility unless the facility has a permit issued under this subchapter.A person who plans to use the services of a commercial recycling facilityhas a duty to determine that the commercial recycling facility hasall permits required by statute or Commission rule.

§4.204.Definitions.

Unless a word or term is defined differently in this section,the definitions in Subchapter A of this chapter [§3.8of this title (relating to Water Protection)], §3.98 ofthis title (relating to Standards for Management of Hazardous Oiland Gas Waste), and §4.603 of this title (relating to Definitions),shall apply in this subchapter. In addition, the following words andterms when used in this subchapter shall have the following meanings,unless the context clearly indicates otherwise:

[(1) 100-year flood plain--An areathat is inundated by a 100-year flood, which is a flood that has aone percent or greater chance of occurring in any given year.]

(1) [(2)] Adjoining--Every tractof property surrounding the tract of property upon which the activitysought to be permitted will occur, including those tracts that meetonly at a corner point.

(2) Administratively complete--A completeapplication that the Director has determined meets all the administrativeand technical requirements of the subchapter such that a permit shallbe issued administratively or, if the application was protested, thatthe application will be referred to the Hearings Division.

(3) Berm (or dike)--A manmade barriersurrounding a pit, waste management unit, or facility, that is designed,constructed, and maintained to segregate materials, including wasteand stormwater runoff, inside and outside of a pit, waste managementunit, or facility.

(4) [(3)] Commercial recyclingfacility--A facility whose owner or operator receives compensationfrom others for the storage, handling, treatment, and recycling ofoil and gas wastes and the primary business purpose of the facilityis to provide these services for compensation, whether from the generatorof the waste, another receiver, or the purchaser of the recyclableproduct produced at the facility. The term includes [Includes] recycling of solid oil and gas wastes on or off lease. [Doesnot include non-commercial fluid recycling as defined in §3.8of this title.]

[(4) Commission--The Railroad Commission of Texas.]

(5) Complete application--An applicationthat contains information addressing each application requirementof the subchapter and all information necessary to initiate the finalreview by the Director.

[(5) Director--The director of theCommission's Oil and Gas Division or the director's delegate.]

(6) EPA Method 1312, Synthetic Precipitation LeachingProcedure (SPLP)--An analytical method used to evaluate the potentialfor leaching of metals and/or benzene into surface and subsurface water.

(7) Legitimate commercial product--Aproduct of a type customarily sold to the general public for a specificuse and for which there is a demonstrated commercial market.

(8) [(7)] Legitimate commercialuse--Use or reuse of a recyclable product as authorized or definedin a permit issued pursuant to this subchapter:

(A) as an effective substitute for a commercial productor as an ingredient to make a commercial product; or

(B) as a replacement for a product or material thatotherwise would have been purchased; and

(C) in a manner that does not constitute disposal.

(9) [(8)] Louisiana Departmentof Natural Resources Leachate Test Method--An analytical method designedto simulate water leach effects on treated oil and gas wastes includedin "Laboratory Manual for the Analysis of E&P Waste," LouisianaDepartment of Natural Resources, May 2005.

(10) Off-lease or centralized commercialsolid oil and gas waste recycling facility--A commercial recyclingfacility that is capable of being moved from one location to another,but which is generally in operation in one location for a period oftime longer than one year, but less than two years that shall recyclesolid oil and gas waste.

(11) Off-lease commercial fluid recyclingfacility--A commercial recycling facility that is capable of beingmoved from one location to another, but which is generally in operationin one location for a period of time longer than one year, but lessthan two years that shall recycle wellbore fluid produced from anoil or gas well, including produced formation fluid, workover fluid,and completion fluid, including fluids produced from the hydraulicfracturing process.

(12) [(9)] On-lease commercialsolid oil and gas waste recycling--Commercial recycling performedon an oil or gas lease or well site using equipment that moves fromone location to another, at which all materials and wastes are storedin authorized pits and/or tanks, and restricted in the:

(A) amount of time, generally less than one year, operationsoccur at any one location;

(B) volume and source of the waste that may be processedat any one location;

(C) the type and characteristics of the waste; and

(D) size of the area used for recycling.

[(10) Oil and gas wastes--For purposesof this subchapter, this term means materials which have been generatedin connection with activities associated with the exploration, development,and production of oil or gas or geothermal resources, as that termis defined in §3.8 of this title, and materials which have beengenerated in connection with activities associated with the solutionmining of brine. The term "oil and gas wastes" includes, but is notlimited to, saltwater, other mineralized water, sludge, spent drillingfluids, 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 associatedwith gasoline plants, natural gas or natural gas liquids processingplants, pressure maintenance plants, or repressurizing plants unlessthat waste is a hazardous waste as defined by the administrator ofthe United States Environmental Protection Agency pursuant to thefederal Solid Waste Disposal Act, as amended (42 United States Code §6901et seq.).]

[(11) Partially treated waste--Oiland gas waste that has been treated or processed with the intent ofbeing recycled, but which has not been determined to meet the environmentaland engineering standards for a recyclable product established bythe Commission in this subchapter or in a permit issued pursuant tothis subchapter.]

[(12) Recyclable product--A reusablematerial that has been created from the treatment and/or processingof oil and gas waste as authorized or permitted by a Commission permitand that meets the environmental and engineering standards establishedby the permit or authorization for the intended use, and is used asa legitimate commercial product. A recyclable product is not a waste,but may become a waste if it is abandoned or disposed of rather thanrecycled as authorized by the permit or authorization.]

[(13) Recycle--To process and/or useor re-use oil and gas wastes as a product for which there is a legitimatecommercial use and the actual use of the recyclable product for thepurposes authorized in this subchapter or a permit. 'Recycle,' asdefined in this subsection, does not include injection pursuant toa permit issued under §3.46 of this title (relating to FluidInjection into Productive Reservoirs).]

[(14) Off-lease or centralized commercial solid oil and gas waste recycling facility--A commercial recycling facility that is capable of being moved from one location to another, but which is generally in operation in one location for a period of time longer than one year, but less than two years that shall recycle solid oil and gas waste.]

[(15) Off-lease commercial fluid recycling facility--A commercial recycling facility that is capable of being moved from one location to another, but which is generally in operation in one location for a period of time longer than one year, but less than two years that shall recycle wellbore fluid produced from an oil or gas well, including produced formation fluid, workover fluid,and completion fluid, including fluids produced from the hydraulicfracturing process.]

[(16) Solid oil and gas waste--Oiland gas waste that is not typically capable of being injected intoa disposal well without the addition of fluids.]

(13) [(17)] Stationary commercialrecycling facility--A commercial recycling facility in an immobile,fixed location for a period of greater than two years that recyclessolid oil and gas waste or wellbore fluid produced from an oil orgas well, including produced formation fluid, workover fluid, andcompletion fluid, including fluids produced from the hydraulic fracturing process.

(14) Treatment--The process of reconditioning oil and gas waste to a reusable form.

(15) Treatment of drill cuttings--A manufacturing, mechanical, thermal, or chemical process other than sizing, shaping, diluting, or sorting.

§4.205.Exceptions.

(a) Except for the requirements related to financial security found in §§4.239(b), 4.255(b), 4.271(b), and 4.287(b) of this title; the notice requirements found in §§4.238, 4.254, 4.270, and 4.286 of this title; and the requirements related to sampling and analysis found in §§4.221, 4.222, 4.223, 4.242, 4.243, 4.258, 4.259, 4.274, 4.275, 4.290, and 4.291 of thistitle, an applicant or permittee may request an exception to the provisionsof this subchapter by submitting to the Director [director] a written request and demonstrating that the requested alternativeis at least equivalent in the protection of public health and safety,and the environment, as the provision of this subchapter to whichthe exception is requested.

(b) Each application for an exceptionto a rule in this subchapter shall be accompanied by the exceptionfee and surcharge required by §3.78(b)(4) and (n) of this title(relating to Fees and Financial Security Requirements).

(c) The Director [director]shall review each written request on a case-by-case basis.

(1) If the Director determines thata request for an exception to a rule in Divisions 5 or 6 of this subchapter(relating to Requirements for Off-Lease Commercial Recycling of Fluid,and Requirements for Stationary Commercial Recycling of Fluid, respectively)is substantially similar to previous exceptions approved by the Commission,the Director shall approve the requested exception.

(2) If the Director [director]denies a request for an exception, the applicant or permittee mayrequest a hearing consistent with the hearing provisions of this subchapterrelating to hearings requests but shall not [may not]use the requested alternative until the alternative is approved bythe Commission.

§4.206.Administrative Decision on Permit Application.

(a) If the Commission does not receive a protest toan application submitted under this subchapter, the Director [director] may administratively approve the application if theapplication otherwise complies with the requirements of this subchapter.

(b) The Director [director] mayadministratively deny the application if it does not meet the requirementsof this subchapter or other laws, rules, or orders of the Commission.The Director [director] shall provide the applicantwritten notice of the basis for administrative denial.

(c) The applicant may request a hearing upon receiptof notice of administrative denial. A request for hearing shall bemade to the Director [director] within 30 daysof the date on the notice of administrative denial. If the Director [director] receives a request for a hearing, the Director [director] shall refer the matter to the Docket ServicesSection of the Hearings Division [Office of General Counsel]for assignment of a hearings examiner who shall conduct the hearingin accordance with Chapter 1 of this title (relating to Practice and Procedure).

§4.207.Protests and Hearings.

(a) If a person who receives notice or other affectedperson files a proper protest with the Technical Permitting Section [Commission], the Director [director] shallgive the applicant written notice of the protest and of the applicant'sright to either request a hearing on the application or withdraw theapplication. The applicant shall have 30 days from the date of the Director's [director's] notice to respond, in writing, by eitherrequesting a hearing or withdrawing the application. In the absenceof a timely written response from the applicant, the Director [director] shall consider the application to have been withdrawn.

(b) Even if there is no protest filed, the Director [director] may refer an application to a hearing if the Director [director] determines that a hearing is in the publicinterest. In determining whether a hearing is in the public interest,the Director [director] will consider the characteristicsand volume of oil and gas waste to be managed [stored,handled and treated] at the facility; the potential risk posedto surface and subsurface water; and any other factor identified inthis subchapter relating to siting, construction, and operation ofthe facility.

(c) Before a hearing on a permit application for acommercial recycling facility, the Commission shall provide noticeof the hearing to all affected persons, and other persons or governmentalentities who express, in writing, an interest in the application.

§4.208.General Standards for Permit Issuance.

(a) A permit for a commercial recycling facility issuedpursuant to this subchapter shall provide that the facility shallonly receive, store, handle, treat, or recycle waste:

(1) under the jurisdiction of the Commission;

(2) that is not a hazardous waste as defined by theadministrator of the Environmental Protection Agency pursuant to thefederal 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 Definitions).

(b) A permit issued pursuant to this subchapter maybe issued only if the Director [director] orthe Commission determines that:

(1) the storage, handling, treatment, and/or recyclingof oil and gas wastes and other substances and materials will notresult in the waste of oil, gas, or geothermal resources, the pollutionof surface or subsurface water, a threat to public health and safety; and

(2) the recyclable product can meet engineering andenvironmental standards the Commission establishes in the permit orin this subchapter for its intended use.

(c) All chemical laboratory analysesshall be performed using appropriate Environmental Protection Agencymethods or standard methods by an independent National EnvironmentalLaboratory Accreditation Program certified laboratory neither ownednor operated by the permittee. Any sample collected for chemical laboratoryanalysis shall be collected and preserved in a manner appropriatefor that analytical method as specified in 40 Code of Federal Regulations(CFR) Part 136. All geotechnical testing shall be performed by a laboratorycertified to conduct geotechnical testing according to the standardsspecified by the ASTM International (ASTM) and certified by a professionalengineer licensed in Texas.

§4.209.Permit Renewal.

Permits issued pursuant to this subchapter may be renewed,but are not transferable to another operator without the written approvalof the Director [director].

§4.211.Penalties.

(a) Policy. Improved safety and environmentalprotection are the desired outcomes of any enforcement action. Encouragingoperators to take appropriate voluntary corrective and future protectiveactions once a violation has occurred is an effective component ofthe enforcement process. Deterrence of violations through penaltyassessments is also a necessary and effective component of the enforcementprocess. A rule-based enforcement penalty guideline to evaluate andrank oil- and natural gas-related violations is consistent with thecentral goal of the Commission's enforcement efforts to promote compliance.Penalty guidelines set forth in this section will provide a frameworkfor more uniform and equitable assessment of penalties throughoutthe state, while also enhancing the integrity of the Commission'senforcement program.

(b) Only guidelines. This sectioncomplies with the requirements of Texas Natural Resources Code §81.0531and §91.101, which provide the Commission with the authorityto adopt rules, enforce rules, and issue permits relating to the preventionof pollution. The penalty amounts shown in the tables in this sectionare provided solely as guidelines to be considered by the Commissionin determining the amount of administrative penalties for violationsof provisions of Texas Natural Resources Code, Title 3; Texas WaterCode, Chapters 26, 27, and 29, that are administered and enforcedby the Commission; or the provisions of a rule adopted or order, license,permit, or certificate issued under Texas Natural Resources Code,Title 3, or Texas Water Code, Chapters 26, 27, and 29. This rule doesnot contemplate automatic enforcement without cause. Operators maycorrect violations at a facility with approval of Commission staffbefore being referred to legal enforcement.

(c) Commission authority. The establishmentof these penalty guidelines shall in no way limit the Commission'sauthority and discretion to cite violations and assess administrativepenalties. The guideline minimum penalties listed in this sectionare for the most common violations cited; however, this is neitheran exclusive nor an exhaustive list of violations that the Commissionmay cite. The Commission retains full authority and discretion tocite violations of Texas Natural Resources Code, Title 3; includingNat. Res. Code §91.101, which provides the Commission with theauthority to adopt rules, enforce rules, and issue permits relatingto the prevention of pollution; the provisions of Texas Water Code,Chapters 26, 27, and 29, that are administered and enforced by theCommission; and the provisions of a rule adopted or an order, license,permit, or certificate issued under Texas Natural Resources Code,Title 3, or Texas Water Code, Chapters 26, 27, and 29, and to assessadministrative penalties in any amount up to the statutory maximumwhen warranted by the facts in any case, regardless of inclusion inor omission from this section.

(d) Factors considered. The amountof any penalty requested, recommended, or finally assessed in an enforcementaction will be determined on an individual case-by-case basis foreach violation, taking into consideration the following factors:

(1) the facility's history of previous violations;

(2) the operator's history of previous violations;

(3) the seriousness of the violation;

(4) any hazard to the health or safety of the public; and

(5) the demonstrated good faith of the operator charged.

(e) Typical penalties. Regardlessof the method by which the guideline typical penalty amount is calculated,the total penalty amount will be within the statutory limit. A guidelineof typical penalties for violations of Texas Natural Resources Code,Title 3; the provisions of Texas Water Code, Chapters 26, 27, and29, that are administered and enforced by the Commission; and theprovisions of a rule adopted or an order, license, permit, or certificateissued under Texas Natural Resources Code, Title 3, or Texas WaterCode, Chapters 26, 27, and 29, are set forth in Table 1.

Figure: 16 TAC §4.211(e) (.pdf)

(f) Penalty enhancements for certainviolations. For violations that involve threatened or actual pollution;result in threatened or actual safety hazards; or result from thereckless or intentional conduct of the operator charged, the Commissionmay assess an enhancement of the guideline penalty amount. The enhancementmay be in any amount in the range shown for each type of violationas shown in Table 2.

Figure: 16 TAC §4.211(f) (.pdf)

(g) Penalty enhancements for certainviolators. For violations in which the operator charged has a historyof prior violations within seven years of the current enforcementaction at any facility regulated by the Commission, the Commissionmay assess an enhancement based on either the number of prior violationsor the total amount of previous administrative penalties, but notboth. The actual amount of any penalty enhancement will be determinedon an individual case-by-case basis for each violation. The guidelinesin Tables 3 and 4 are intended to be used separately. Either guidelinemay be used where applicable, but not both.

Figure 1: 16 TAC §4.211(g) (.pdf)

Figure 2: 16 TAC §4.211(g) (.pdf)

(h) Penalty reduction for acceleratedsettlement before hearing. The recommended monetary penalty for aviolation may be reduced by up to 50% if the operator charged agreesto an accelerated settlement before the Commission conducts an administrativehearing to prosecute a violation. Once the hearing is convened, theopportunity for the operator charged to reduce the basic monetarypenalty is no longer available. The reduction applies to the basicpenalty amount requested and not to any requested enhancements.

(i) Demonstrated good faith. In determiningthe total amount of any monetary penalty requested, recommended, orfinally assessed in an enforcement action, the Commission may consider,on an individual case-by-case basis for each violation, the demonstratedgood faith of the operator charged. Demonstrated good faith includes,but is not limited to, actions taken by the operator charged beforethe filing of an enforcement action to remedy, in whole or in part,a violation or to mitigate the consequences of a violation.

(j) Penalty calculation worksheet.The penalty calculation worksheet shown in Table 5 lists the guidelineminimum penalty amounts for certain violations; the circ*mstancesjustifying enhancements of a penalty and the amount of the enhancement;and the circ*mstances justifying a reduction in a penalty and theamount of the reduction.

Figure: 16 TAC §4.211(j) (.pdf)

[Violations of this subchapter or a permitissued pursuant to this subchapter may subject a person to penaltiesand remedies specified in the Texas Natural Resources Code, Title3, and any other statutes or rules administered by the Commission.]

The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.

Filed with the Office of the Secretary of State on August 16, 2024.

TRD-202403762

Haley Cochran

Assistant General Counsel, Office of General Counsel

Railroad Commission of Texas

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 475-1295

16 TAC §§4.212 - 4.214, 4.218 - 4.224

Statutory authority: Texas Natural Resources Code,§§81.051, 81.052, 81.0351, 85.042, 85.202, 86.042; TexasNatural Resources Code §91.101 and §91.1017; Texas NaturalResources Code §122.004; Texas Natural Resources Code §123.0015;and Texas Water Code Chapter 29.

Cross reference to statute: Texas Natural Resources Code, Chapters81, 85, 86, 91, 122, and 123; and Texas Water Code Chapter 29.

§4.212.General Permit Application Requirementsfor On-Lease Commercial Solid Oil and Gas Waste Recycling Facilities.

(a) An application for a permit for on-lease solidoil and gas waste commercial recycling shall be filed on a Commissionprescribed form with the Technical Permitting Section,and on the same day the [Commission's headquarters officein Austin. The] applicant shall mail or deliver a copy of theapplication to the Commission District Office for the county in whichthe facility is to be located [on the same day the original applicationis mailed or delivered to the Commission's headquarters office inAustin]. The Technical Permitting Section shall not beginfinal review of an application unless the Director has determinedthat the application is complete in accordance with §1.201(b)of this title (relating to Time Periods for Processing Applicationsand Issuing Permits Administratively). [A permit applicationshall be considered filed with the Commission on the date it is receivedby the Commission's headquarters office in Austin.]

(b) The permit application shall contain the applicant'sname; organizational report number; physical office address and,if different, mailing address; telephone number; [and facsimiletransmission (fax) number;] and the name of a contact person.

(c) The permit application shall contain informationaddressing each applicable application requirement of this divisionand all information necessary to initiate the final review by the Director [director]. The Director [director]shall neither administratively approve an application nor refer anapplication to hearing unless the Director [director]has determined that the application is administratively complete.If the Director [director] determines that anapplication is incomplete, the Director [director]shall notify the applicant in writing and shall describe the specificinformation required to complete the application. An applicant maymake no more than two supplemental filings to complete an application. After the second supplemental submission, if the application is complete,the Director shall either approve or deny the application. If theapplication is still incomplete after the second supplemental submission,the Director shall administratively deny the application. The Directorshall notify the applicant in writing of the administrative decisionand, in the case of an administrative denial, the applicant's rightto request a hearing on the application as it stands at the time ofadministrative denial.

(d) The permit application shall contain [an originalsignature in ink, the date of signing, and] the following certification signed and dated by an authorized representative of the applicant:"I certify that I am authorized to make this application, that thisapplication was prepared by me or under my supervision and direction,and that the data and facts stated herein are true, correct, and completeto the best of my knowledge."

(e) A person shall file electronicallyany form or application for which the Commission has provided an electronicversion or an electronic filing system or by hard copy if no digitalformat acceptable to the Commission has been enacted. The operatoror person shall comply with all requirements, including but not limitedto fees and security procedures, for electronic filing.

§4.213.Minimum Engineering and Geologic Information.

(a) The Director [director] mayrequire a permit applicant for on-lease commercial solid oil and gaswaste recycling to provide the Commission with engineering[,]or other information which the Director [director]deems necessary to show that issuance of the permit will not resultin the waste of oil, gas, or geothermal resources, the pollution ofsurface or subsurface water, or a threat to the public health or safety.

(b) Engineering and geologic work productsprepared for the application [by the applicant]shall be sealed by a professional [registered]engineer or geoscientist licensed in Texas as requiredby the Texas Occupations Code, Chapters 1001 and 1002, respectively [Chapter 1001].

§4.214.Minimum Design and Construction Information.

A permit application for on-lease commercial solid oil andgas waste recycling shall include:

(1) a facility diagram [the typicallayout and design] of receiving, processing, and storage areasand all equipment (e.g., pug mill), tanks, silos, and dikes.

(2) a description of the type and thickness of liners(e.g., fiberglass, steel concrete), if any, for all tanks, silos,pits, and storage areas/cells;

(3) a map view and two perpendicular cross-sectionalviews of typical pits and/or storage areas/cells to be constructed,showing the bottom, sides, and dikes, showing the dimensions of each; and

(4) a plan to control and manage stormwater [storm water] runoff and to retain wastes during wet weather,including the location and dimensions of dikes and/or storage basinsthat would collect, at a minimum, stormwater [stormwater] during a 25-year, 24-hour [maximum] rainfallevent, and all calculations made to determine the required capacityand design.

§4.218.General Permit Provisions for On-LeaseCommercial Solid Oil and Gas Waste Recycling.

(a) A permit for on-lease commercial solid oil andgas waste recycling issued pursuant to this division shall specifythe Commission districts within which recycling is authorized, shallbe valid [issued] for a term of not more than five years,and shall authorize operations at any one lease for no more than oneyear. Permits issued pursuant to this division may be renewed, butare not transferable to another operator without the written approvalof the Director [director]. Any request fortransfer of the [this] permit shall [should] be filed with the Technical Permitting Sectionon a Commission prescribed form [Oil and Gas Division inAustin] at least 60 days before the permittee requests [wishes] the transfer to take place.

(b) A permit for on-lease commercial solid oil andgas waste recycling shall include a condition requiring that the permitteeobtain written permission from the surface owner of the lease uponwhich recycling will take place and notify the [appropriate]Commission District Office [district office]72 hours before operations commence on each lease.

§4.219.Minimum [Permit Provisions for] Siting Information.

(a) A permit for on-lease commercial solid oil andgas waste recycling may be issued only if the Director [director] or the Commission determines that the operations will poseno unreasonable risk of pollution or threat to public health or safety.

(b) A pit [On-lease commercial solidoil and gas waste recycling] permitted pursuant to this division is prohibited [and after the effective date of this divisionshall not be located]:

(1) within a 100-year flood plain;[,in a streambed, or]

(2) within [in] asensitive area as defined by §4.110 [§3.91]of this title (relating to Definitions [Cleanup ofSoil Contaminated by a Crude Oil Spill]); [or]

(3) [(2)] within 300 [150] feet of surface water [or public], domestic supplywells, or irrigation water wells;[.]

(4) within 500 feet of any publicwater system wells or intakes;

(5) where there has been observable groundwater within 100 feet of the ground surface unless the pit design includes a geosynthetic clay liner (GCL);

(6) within 1,000 feet of a permanent residence, school, hospital, institution, or church in existence at the time of initial permitting; or

(7) within 500 feet of a wetland.

(c) A permit application for on-lease commercial solid oil and gas waste recycling shall include:

(1) a description of the proposed facility site and surrounding area;

(2) the name, physical address and, if different, mailing address, and telephone number of every owner of the tract on whichthe 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;

(3) the depth to the shallowest subsurface water andthe direction of groundwater flow at the proposed site, and the sourceof this information;

(4) the average annual precipitation and evaporationat the proposed site and the source of this information;

(5) the identification of the soil and subsoil by typicalname and description of the approximate proportion of grain sizes,texture, consistency, moisture condition, and other pertinent characteristics,and the source of this information;

(6) a copy of a county highway map with a scale andnorth arrow showing the location of the proposed facility; and

(7) a United States Geological Survey (USGS) topographicmap or an equivalent topographic map which shows the facility includingthe items listed in subparagraphs (A) - (K) of this paragraph andany other pertinent information regarding the regulated facility andassociated activities. Maps shall be on a scale of not less than oneinch equals 2,000 feet. The map shall show the following:

(A) a scale and north arrow showing the tract sizein square feet or acres, the section/survey lines, and the surveyname and abstract number;

(B) a clear outline of the proposed facility's boundaries;

(C) the location of any pipelines within 500 feet ofthe facility;

(D) the distance from the facility's outermost perimeterboundary to public and private water wells, residences, schools, churches,and hospitals that are within 500 feet of the boundary;

(E) for disposal only, the location of all residentialand commercial buildings within a one-mile radius of the facility boundary;

(F) all water wells within a one-mile radius of thefacility boundary;

(G) the location of the 100-year flood plain and thesource of the flood plain information;

(H) surface water bodies within the map area;

(I) the location of any major and minor aquifers withinthe map area;

(J) the boundaries of any prohibited areas definedunder §4.153 of this title (relating to Commercial Disposal Pits); and

(K) any other information requested by the Directorreasonably related to the prevention of pollution.

(d) [(c)] Factors that the Commissionwill consider in assessing potential risk from on-lease commercialsolid oil and gas waste recycling include:

(1) the volume and characteristics of the oil and gaswaste, partially treated waste and recyclable product to be stored,handled, treated and recycled at the facility;

(2) proximity to coastal natural resources or[,] sensitive areas as defined by §4.110 [§3.91] of this title; and

(3) any other factors the Commission deems reasonablynecessary in determining whether or not issuance of the permit willpose an unreasonable risk.

(e) [(d)] All siting requirementsin this section for on-lease commercial solid oil and gas waste recyclingrefer to conditions at the time the equipment and tanks used in therecycling are placed.

§4.220.Minimum Permit Provisions for Design and Construction.

(a) A permit issued pursuant to this division for on-leasecommercial solid oil and gas waste recycling shall contain any requirementthat the Director [director] or the Commissiondetermines to be reasonably necessary to ensure that:

(1) the design and construction of storage areas, containmentdikes, and processing areas minimize contact of oil and gas wasteand partially recycled waste with the ground surface, and preventpollution of surface and subsurface water;

(2) the pollution of surface and subsurface water fromspills, leachate, and/or discharges from the facility is prevented by:

(A) prohibiting the unauthorized discharge of oil andgas waste and other substances or materials, including contaminated stormwater [storm water] runoff, to the land surfaceat and adjacent to the facility or to surface and subsurface water;

(B) requiring that the operator [permittee] control and remediate spills; and

(C) requiring that the operator [permittee] make regular inspections of the facility; and

(3) the design and construction of the facility allowsfor monitoring for, and detection of, any migration of oil and gaswaste or other substance or material.

(b) All storage cells at the site shall be:

(1) located above the top of the seasonal high water table;

(2) designed to prevent stormwater runoff from enteringthe area; and

(3) surrounded by berms with a minimum width at baseof three times the height and the berms constructed such that theheight, slope, and construction material are structurally sound anddo not allow seepage.

(c) A permit for on-lease commercial solid oil andgas waste recycling issued pursuant to this division shall requirethat the operator [permittee] notify the [appropriate] Commission District Office [district office]prior to commencement of construction, including construction of anydikes, and again upon completion of construction, and that the permitteemay commence operations under the permit 72 hours after notice tothe District Office [appropriate district office].

§4.221.Minimum Permit Provisions for Operations.

(a) A permit for on-lease commercial solid oil andgas waste recycling issued pursuant to this division shall containrequirements the Commission determines to be reasonably necessaryto ensure that:

(1) only wastes and other materials authorized by thepermit generated on-lease, including requirements that the permitteetest incoming oil and gas waste and keep records of amounts of wastes; and

(2) the processing operation and resulting recyclableproduct meet the environmental and engineering standards establishedin the permit.

(b) A permit for on-lease commercial solid oil andgas waste recycling issued under this division may require the permitteeto perform a trial run in accordance with the following procedure.

(1) The permittee shall notify the Commission DistrictOffice [district office] for the county in whichthe facility is located prior to commencement of the trial run.

(2) The permittee shall sample and analyze the partiallytreated waste that results from the trial run, and submit to the Director [director] for review a report of the results ofthe trial run prior to commencing operations.

(3) The permittee shall demonstrate the ability tosuccessfully process a 1,000 cubic yard batch of solid oil and gas waste.

(A) The Technical Permitting Section [Oiland Gas Division in Austin] and the [appropriate]District Office shall [must] be notified inwriting at least 72 hours before waste processing begins.

(B) Samples of the partially treated waste shall becollected from every 200 cubic yards of an 800 cubic yard batch andanalyzed for wetting and drying durability by ASTM D 559-96, modifiedto provide that samples are compacted and molded from finished partiallytreated waste. The total weight loss after 12 cycles shall [may] not exceed 15 percent.

(C) A written report of the trial run shall be submittedto the Technical Permitting Section [Oil and Gas Divisionin Austin] and the District Office [appropriatedistrict office] within 60 days of receipt of the analyses requiredin this section. The following information shall [must]be included:

(i) a summary of the trial run anddescription of the process;

(ii) [(i)] the actual volumeof waste material processed;

(iii) [(ii)] the volume andtype of stabilization material used;

(iv) [(iii)] the type ofwaste and description of the waste material [copies ofall lab analyses required by this section]; and

(v) [(iv)] copies of allchemical and geotechnical laboratory analytical reports and chainof custody sheets for the samples specified in [the resultsof the analysis required under] subparagraph (B) of this paragraph.

(D) The final processed material shall [must] meet the limitations of this section.

(4) The Director [director] shallapprove the trial run if the report demonstrates that the recyclableproduct meets or exceeds the environmental and engineering standardsestablished in the permit.

(5) The permittee shall not use the recyclable productuntil the Director [director] approves the trialrun report.

(c) A permit for on-lease commercial solid oil andgas waste recycling issued pursuant to this division shall includeany requirements, including limits on the volumes of oil and gas waste,partially treated waste, and recyclable product stored at the site,that the Technical Permitting Section [Commission]determines to be reasonably necessary to ensure that the permitteedoes not accumulate oil and gas waste, partially treated waste, and/orrecyclable product at the facility without actually processing theoil and gas waste and putting the recyclable product to legitimatecommercial use.

(d) Excess stormwater [rainwater]collected within a bermed area shall be removed and disposed of inan authorized manner.

(e) Appropriate measures shall be taken to controldust at all times.

(f) Processed material meeting or exceeding theengineering [process control] parameters listed in§4.222(d) of this title (relating to Minimum Permit Provisionsfor Monitoring) is suitable for use on lease roads, drilling pads,tank batteries, compressor station pads, and county roads.

§4.222.Minimum Permit Provisions for Monitoring.

(a) A permit for on-lease commercial solid oil andgas waste recycling issued pursuant to this division shall includemonitoring requirements the Director [director]or Commission determines to be reasonably necessary to ensure thatthe recyclable product meets the environmental and engineering standardsestablished by the Director [director] or theCommission and included in the permit.

(b) Consistent with the requirements of §4.208of this title (relating to General Standards for Permit Issuance),the Director [director] or the Commission shallestablish and include in the permit for on-lease commercial solidoil and gas waste recycling the parameters for which the partiallytreated waste is to be tested, and the limitations on those parametersbased on:

(1) the type of oil and gas waste; and

(2) the intended use for the recyclable product.

(c) A permit for on-lease commercial solid oil andgas waste recycling may require laboratory testing. A permit thatrequires laboratory testing shall require that the permittee use anindependent third party laboratory to analyze a minimum standard volumeof partially treated waste for parameters established in this subchapteror in a permit issued by the Commission.

(d) A permit for on-lease commercial solid oil andgas waste recycling issued pursuant to this division from which therecycled product will be used as road base or other similar uses shallinclude a requirement that a minimum of one sample from each 200 cubicyards of partially treated waste be collected and analyzed for every800 cubic yard composite for the following minimum parameters andmeet the following limits:

Figure: 16 TAC §4.222(d) (No change.)

(e) Recordkeeping and reporting requirements.

(1) Recordkeeping requirements.

(A) Records shall [must] be keptof all waste treated for a period of three years from the date of treatment.

(B) These records shall [must]include the following:

(i) name of the generator;

(ii) source of the waste (lease number or gas I.D.number and well number, or API number);

(iii) date the waste was treated at the drill site;

(iv) volume of the waste treated at the drill site;

(v) name of the carrier;

(vi) identification of the receiving site includingthe lease number or gas I.D. number and well number, API number, orcounty road number;

(vii) documentation that the landowner of the receivinglocation has been notified of the use of the recyclable product onthe landowner's property if used on private land; and

(viii) documentation indicating the approximate locationwhere recyclable product is used including a topographic map showingthe location of the area.

(2) Reporting requirements. The permittee shall providethe Commission, on a quarterly basis, a copy of the records requiredin this section.

§4.223.Minimum Permit Provisions for Closure.

A permit for on-lease commercial solid oil and gas waste recyclingissued pursuant to this division [subchapter]shall include closure standards and any requirement reasonably necessaryto ensure that the permittee can meet the standards. The Commissionshall determine the closure standards for a particular facility basedon the type of materials stored, handled and treated. A permit mayinclude 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 groundwatersamples; and post-closure monitoring.

§4.224.Permit Renewal.

Before the expiration of a permit issued pursuant to this division,the permittee may submit an application to renew the permit ona Commission prescribed form. An application for renewal ofan existing permit issued pursuant to this division [or §3.8of this title (relating to Water Protection)] shall be submittedin writing a minimum of 60 days before the expiration date of thepermit and shall include the operator's [permittee's]permit number and facility identification number assigned bythe Technical Permitting Section. The application for renewalshall include details of proposed changes or shall state that thereare no changes proposed that would require amendment of the permitother than the expiration date.

The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.

Filed with the Office of the Secretary of State on August 16, 2024.

TRD-202403763

Haley Cochran

Assistant General Counsel, Office of General Counsel

Railroad Commission of Texas

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 475-1295

16 TAC §§4.230 - 4.232, 4.234, 4.238 - 4.243, 4.245

Statutory authority: Texas Natural Resources Code,§§81.051, 81.052, 81.0351, 85.042, 85.202, 86.042; TexasNatural Resources Code §91.101 and §91.1017; Texas NaturalResources Code §122.004; Texas Natural Resources Code §123.0015;and Texas Water Code Chapter 29.

Cross reference to statute: Texas Natural Resources Code, Chapters81, 85, 86, 91, 122, and 123; and Texas Water Code Chapter 29.

§4.230General Permit Application Requirementsfor Off-Lease or Centralized Commercial Solid Oil and Gas Waste Recycling.

(a) An application for a permit for off-lease or centralizedcommercial solid oil and gas waste recycling shall be filed ona Commission prescribed form with the Technical PermittingSection, and on the same day the [Commission's headquartersoffice in Austin. The] applicant shall mail or deliver a copyof the application to the Commission District Office for the countyin which the facility is to be located [on the same day the originalapplication is mailed or delivered to the Commission's headquartersoffice in Austin]. The Technical Permitting Section shallnot administratively begin final review of an application unless theDirector has determined that the application is complete in accordancewith §1.201(b) of this title (relating to Time Periods for ProcessingApplications and Issuing Permits Administratively). [Apermit application shall be considered filed with the Commission onthe date it is received by the Commission's headquarters in Austin.]

(b) The permit application shall contain the applicant'sname; organizational report number; physical office address and,if different, mailing address; facility address; telephone number;[and facsimile transmission (fax) number;] and the nameof a contact person.

(c) The permit application shall contain informationaddressing each applicable application requirement of this divisionand all information necessary to initiate the final review by the Director [director]. The Director [director]shall neither administratively approve an application nor refer anapplication to hearing unless the Director [director]has determined that the application is administratively complete.If the Director [director] determines that anapplication is incomplete, the Director [director]shall notify the applicant in writing and shall describe the specificinformation required to complete the application. An applicant maymake no more than two supplemental filings to complete an application. After the second supplemental submission, if the application is complete,the Director shall either approve or deny the application. If theapplication is still incomplete after the second supplemental submission,the Director shall administratively deny the application. The Directorshall notify the applicant in writing of the administrative decisionand, in the case of an administrative denial, the applicant's rightto request a hearing on the application as it stands at the time ofadministrative denial. An application that was administratively deniedmay be refiled with the Commission on a Commission prescribed formand shall contain all information necessary to initiate the finalreview by the Director.

(d) The permit application shall contain [an originalsignature in ink, the date of signing, and] the following certification signed and dated by an authorized representative of the applicant:"I certify that I am authorized to make this application, that thisapplication was prepared by me or under my supervision and direction,and that the data and facts stated herein are true, correct, and completeto the best of my knowledge."

(e) A person shall file electronicallyany form or application for which the Commission has provided an electronicversion or an electronic filing system or by hard copy if no digitalformat acceptable to the Commission has been enacted. The operatoror person shall comply with all requirements, including but not limitedto fees and security procedures, for electronic filing.

§4.231.Minimum Engineering and Geologic Information.

(a) The Director [director] mayrequire a permit applicant for off-lease or centralized commercialsolid oil and gas waste recycling to provide the Commission with engineering,geological, or other information which the Director [director] deems necessary to show that issuance of the permit will notresult in the waste of oil, gas, or geothermal resources, the pollutionof surface or subsurface water, or a threat to the public health or safety.

(b) Engineering and geologic work products prepared forthe application [by the applicant] shall be sealedby a professional [registered] engineer or geoscientistlicensed in Texas [geologist, respectively] as requiredby the Texas Occupations Code, Chapters 1001 and 1002, respectively.

§4.232.Minimum Siting Information.

(a) A permit application for off-lease orcentralized commercial solid oil and gas waste recycling shall include:

(1) a description of the proposed facility site andsurrounding area;

(2) the name, physical address and, if different, mailingaddress,[;] and telephone number[;and facsimile transmission (fax) number] of every owner of thetract on which the facility is to be located. If any owner is notan individual, the applicant shall include the name of a contact personfor that owner;

(3) the depth to the shallowest subsurface water andthe direction of groundwater flow at the proposed site, and the sourceof this information;

(4) the average annual precipitation and evaporationat the proposed site and the source of this information;

(5) the identification of the soil and subsoil by typicalname and description of the approximate proportion of grain sizes,texture, consistency, moisture condition, and other pertinent characteristics,and the source of this information;

(6) a copy of a county highway map with a scale andnorth arrow showing the location of the proposed facility; and

(7) a United States Geological Survey(USGS) topographic map or an equivalent topographic map which showsthe facility including the items listed in subparagraphs (A) - (K)of this paragraph and any other pertinent information regarding theregulated facility and associated activities. Maps shall be on a scaleof not less than one inch equals 2,000 feet. The map shall show the following:

(A) a scale and north arrow showing the tract sizein square feet or acres, the section/survey lines, and the surveyname and abstract number;

(B) a clear outline of the proposed facility's boundaries;

(C) the location of any pipelines within 500 feet ofthe facility;

(D) the distance from the facility's outermost perimeterboundary to public and private water wells, residences, schools, churches,and hospitals that are within 500 feet of the boundary;

(E) for disposal only, the location of all residentialand commercial buildings within a one-mile radius of the facility boundary;

(F) all water wells within a one-mile radius of thefacility boundary;

(G) the location of the 100-year flood plain and thesource of the flood plain information;

(H) surface water bodies within the map area;

(I) the location of any major and minor aquifers withinthe map area;

(J) the boundaries of any prohibited areas definedunder §4.153 of this title (relating to Commercial Disposal Pits); and

(K) any other information requested by the Directorreasonably related to the prevention of pollution.

[(7) a complete, original 7 1/2 minuteUnited States Geological Survey topographic quadrangle map clearlyindicating the outline of the proposed facility; the location of anypipelines that underlay the facility but are not included on the topographicmap; and the location of the 100-year flood plain and the source ofthe flood plain information.]

(b) A pit permitted pursuant to thisdivision is prohibited:

(1) where there has been observable groundwater within100 feet of the ground surface unless the pit design includes a geosyntheticclay liner (GCL);

(2) within a sensitive area as defined by §4.110of this title (relating to Definitions);

(3) within 300 feet of surface water, domestic supplywells, or irrigation water wells;

(4) within 500 feet of any public water system wellsor intakes;

(5) within 1,000 feet of a permanent residence, school,hospital, institution, or church in existence at the time of the initial permitting;

(6) within 500 feet of a wetland; or

(7) within a 100-year floodplain.

(c) Factors that the Commission willconsider in assessing potential risk from on off-lease or centralizedcommercial solid oil and gas waste recycling include:

(1) the volume and characteristics of the oil and gaswaste, partially treated waste, and recyclable product to be stored,handled, treated and recycled at the facility;

(2) proximity to coastal natural resources or sensitiveareas as defined by §4.110 of this title; and

(3) any other factors the Commission deems reasonablynecessary in determining whether or not issuance of the permit willpose an unreasonable risk.

(d) All siting requirements in thissection for on-lease off-lease or centralized commercial solid oiland gas waste recycling refer to conditions at the time the equipmentand tanks used in the recycling are placed.

§4.234.Minimum Design and Construction Information.

(a) A permit application for an off-lease or centralizedcommercial solid oil and gas waste recycling facility shall includethe layout and design of the facility by including a plat drawn toscale with north arrow to top of the map showing the location andinformation on the design and size of all receiving, processing, andstorage areas and all equipment (e.g., pug mill), tanks, silos, monitorwells, dikes, fences, and access roads.

(b) A permit application for an off-lease or centralizedcommercial solid oil and gas waste recycling facility also shall include:

(1) a description of the type and thickness of liners(e.g., fiberglass, steel concrete), if any, for all tanks, silos,pits, and storage areas/cells;

(2) for storage areas where tanks and/or liners arenot used, credible engineering and/or geologic information demonstratingthat tanks or liners are not necessary for the protection of surfaceand subsurface water;

(3) a map view and two perpendicular cross-sectionalviews of pits and/or storage areas/cells to be constructed, showingthe bottom, sides, and dikes, showing the dimensions of each;

(4) a plan to control and manage stormwater [storm water] runoff and to retain incoming wastes during wetweather, including the location and dimensions of dikes and/or storagebasins that would collect, at a minimum, stormwater [stormwater] from the facility during a 25-year, 24-hour [maximum]rainfall event, and all calculations made to determine the requiredcapacity and design; and

(5) if the application is for a stationary commercialrecycling facility, a plan for the installation of monitoring wellsat the facility unless waived by the Technical Permitting Sectionunder §4.241(d) of this title (relating to Minimum Permit Provisionsfor Operations).

§4.238.Notice.

(a) Purpose. Applicants are encouraged to engage with their communities early in the commercial recycling facility planning process to inform the community of the plan to construct an off-lease or centralized commercial solid oil and gas waste recycling facility and allow those who may be affected by the proposed activities to express their concerns. The purpose of the notice required by this section is to inform notice recipients:

(1) that an applicant has filed a permit application with the Commission, seeking authorization to conduct an activity or operate a facility; and

(2) of the requirements for filing a protest if an affected person seeks to protest the permit application.

(b) Timing of notice. The applicantshall provide notice after staff determines that an application foran off-lease or centralized commercial solid oil and gas waste recyclingfacility is complete pursuant to §1.201(b) of this title (relatingto Time Periods for Processing Applications and Issuing Permits Administratively).The date notice is provided begins a 30-day period in which an affectedperson may file a protest of the application with the C

(c) Notice recipients. The applicantshall provide notice to:

(1) the surface owners of the tract on which the commercialrecycling facility will be located;

(2) the surface owners of tracts located within a distanceof 1/2-mile from the fence line or edge of the facility as shown onthe plat required under §4.233(b) of this title (relating toMinimum Real Property Information) of the facility's fence line orboundary, even if the surface owner's tract is not adjacent to thetract on which the commercial recycling facility is located;

(3) the city clerk or other appropriate city officialif any part of the tract on which the commercial recycling facilitywill be located lies within the municipal boundaries of the city;

(4) the Commission's District Office; and

(5) any other person or class of persons that the Directordetermines should receive notice of an application.

(d) Method and contents of notice.Unless otherwise specified in this subchapter, the applicant shallprovide direct notice to the persons specified in subsection (c) ofthis section as follows.

(1) The applicant shall provide notice by registeredor certified mail.

(2) The notice of the permit application shall consistof a complete copy of the application and any attachments. The copyshall be of the application and attachments after staff determinesthe application is complete pursuant to §1.201(b) of this titlebut before the final review is completed.

(3) The notice shall include a letter that contains:

(A) the name of the applicant;

(B) the date of the notice;

(C) the name of the surface owners of the tract onwhich the proposed commercial recycling facility will be located;

(D) the location of the tract on which the proposedcommercial recycling facility will be located including a legal descriptionof the tract, latitude/longitude coordinates of the proposed facility,county, original survey, abstract number, and the direction and distancefrom the nearest municipality or community;

(E) the types of solids to be recycled at the commercialrecycling facility;

(F) the recycling method proposed and the proposedend-use of the recycled material;

(G) a statement that an affected person may protestthe application by filing a written protest with the Commission within30 calendar days of the date of the notice;

(H) a statement that a protest shall include the protestant'sname, mailing address, telephone number, and email address;

(I) the address to which protests may be mailed orthe location and instructions for electronic submittal of a protestif the Commission implements an electronic means for filing protests;

(J) the definition of "affected person" pursuant to§4.110 of this title (relating to Definitions); and

(K) the signature of the operator, or representativeof the operator, and the date the letter was signed.

(4) If the Director finds that a person to whom theapplicant was required to give notice of an application has not receivedsuch notice, then the Director shall not take action on the applicationuntil the applicant has made reasonable efforts to give such personnotice of the application and an opportunity to file a protest tothe application with the Commission.

(e) Proof of notice. After the applicantprovides the notice required by this section, the applicant shallsubmit to the Commission proof of delivery of notice which shall consist of:

(1) a copy of the signed and dated letters requiredby subsection (d)(3) of this section;

(2) the registered or certified mail receipts; and

(3) a map showing the property boundaries, surfaceowner names, and parcel numbers of all notified parties.

(f) Protest process. Any statementof protest to an application must be filed with the Commission within30 calendar days from the date of notice or from the last date ofpublication if notice by publication is authorized by the Director.

(1) The Technical Permitting Section shall notify theapplicant if the Commission receives an affected person's timely protest.A timely protest is a written protest date-stamped as received bythe Commission within 30 calendar days of the date notice is provided.

(2) The applicant shall have 30 days from the dateof the Technical Permitting Section's notice of receipt of protestto respond, in writing, by either requesting a hearing or withdrawingthe application. If the applicant fails to timely file a written response,the Technical Permitting Section shall consider the application tohave been withdrawn.

(3) The Technical Permitting Section shall refer allprotested applications to the Hearings Division if a timely protestis received and the applicant requests a hearing.

(4) The Commission shall provide notice of any hearingconvened under this subsection to all affected persons and personswho have requested notice of the hearing.

(5) If the Director has reason to believe that a personentitled to notice of an application has not received notice as requiredby this section, then the Technical Permitting Section shall not takeaction on the application until notice is provided to such person.

(6) The Commission may issue a permit if no timelyprotests from affected persons are received.

[(a) A permit applicant for off-leaseor centralized commercial solid oil and gas waste recycling shallgive personal notice and file proof of such notice in accordance withthe following requirements.]

[(1) The applicant shall mail or deliver notice tothe following persons on or after the date the application is filedwith the Commission's headquarters office in Austin:]

[(A) the surface owner or owners of the tract uponwhich 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 thecorporate limits of an incorporated city, town, or village;]

[(C) the surface owners of tracts adjoining the tracton which the proposed facility will be located, unless the boundarywith the adjoining tract is a distance of 1/2-mile or greater fromthe fence line or edge of the facility as shown on the plat requiredunder §4.233(b) of this title (relating to Minimum Real PropertyInformation); and]

[(D) any affected person or class of persons that thedirector determines should receive notice of a particular application.]

[(2) Personal notice of the permit application shallconsist of:]

[(A) a copy of the application;]

[(B) a statement of the date the applicant filed theapplication with the Commission;]

[(C) a statement that a protest to the applicationshould] be filed with the Commission within 15 days of the last dateof published notice, a statement identifying the publication in whichpublished notice will appear, and the procedure for making a protestof the application to the Commission;]

[(D) a description of the location of the site forwhich the application was made, including the county in which thesite is to be located, the name of the original survey and abstractnumber, and the direction and distance from the nearest municipality;]

[(E) the name of the owner or owners of the propertyon which the facility is to be located;]

[(F) the name of the applicant;]

[(G) the type of fluid or waste to be handled at thefacility; and]

[(H) the recycling method proposed and the proposedend-use of the recycled material.]

[(3) The applicant shall submit to the Commission proofthat personal notice has been given as required. Proof of notice shallconsist of a copy of each notification letter sent, along with a statementsigned by the applicant that includes the names and addresses of eachperson to whom the notice was sent, and the date that each was notifiedof the application.]

[(b) If the director finds that aperson to whom the applicant was required to give notice of an applicationhas not received such notice, then the director shall not take actionon the application until the applicant has made reasonable effortsto give such person notice of the application and an opportunity tofile a protest to the application with the Commission.]

§4.239.General Permit Provisions.

(a) A permit for an off-lease or centralized commercialsolid oil and gas waste recycling facility issued pursuant to thisdivision shall be valid [issued] for a term of not morethan two years. Permits issued pursuant to this division may be renewed,but are not transferable to another operator without the written approvalof the Director [director].

(b) A permit for an off-lease centralized commercialsolid oil and gas waste recycling facility issued pursuant to thisdivision shall require that, prior to operating, the facility complywith the financial security requirements of Texas Natural ResourcesCode, §91.109, relating to Financial Security for Persons Involvedin Activities Other than Operation of Wells, as implemented by §3.78of this title (relating to Fees and Financial Security Requirements).

(c) A permit for an off-lease centralized commercialsolid oil and gas waste recycling facility shall include a conditionrequiring that the permittee notify the surface owner of the tractupon which recycling will take place and the [appropriate]Commission District Office [district office]before recycling operations commence.

§4.240.Minimum Permit Provisions for Siting.

(a) A permit for an off-lease centralized commercialsolid oil and gas waste recycling facility may be issued only if the Director [director] or the Commission determinesthat the facility is to be located in an area where there is no unreasonablerisk of pollution or threat to public health or safety.

(b) An off-lease centralized commercial solid oil andgas waste recycling facility permitted pursuant to this division isprohibited [and after the effective date of this divisionshall not be located] within a 100-year flood plain.

(c) Factors that the Commission will consider in assessingpotential risk from an off-lease centralized commercial solid oiland gas waste recycling facility include:

(1) the volume and characteristics of the oil and gaswaste, partially treated waste and recyclable product to be stored,handled, treated and recycled at the facility;

(2) distance to any surface water body,wet or dry;

(3) depth to and quality of the shallowest groundwater;

(4) distance to the nearest property line or public road;

(5) proximity to coastal natural resources or[,] sensitive areas as defined by §4.110 [§3.91] of this title (relating to Definitions [Cleanupof Soil Contaminated by a Crude Oil Spill]), or water supplies,and/or public, domestic, or irrigation water wells; and

(6) any other factors the Commission deems reasonablynecessary in determining whether or not issuance of the permit willpose an unreasonable risk.

(d) All siting requirements in this section for anoff-lease centralized commercial solid oil and gas waste recyclingfacility refer to conditions at the time the facility is constructed.

§4.241.Minimum Permit Provisions for Design and Construction.

(a) A permit issued pursuant to this division for anoff-lease centralized commercial solid oil and gas waste recyclingfacility shall contain any requirement that the Director [director] or the Commission determines to be reasonably necessaryto ensure that:

(1) the design and construction of storage areas, containment berms [dikes], and processing areas minimize contactof oil and gas waste and partially recycled waste with the groundsurface, and prevent pollution of surface and subsurface water;

(2) the pollution of surface and subsurface water fromspills, leachate, and/or discharges from the facility is prevented by:

(A) prohibiting the unauthorized discharge of oil andgas waste and other substances or materials, including contaminated stormwater [storm water] runoff, from the facilityto the land surface at and adjacent to the facility or to surfaceand subsurface water;

(B) requiring that the operator [permittee] control spills at the facility; and

(C) requiring that the operator [permittee] make regular inspections of the facility; and

(3) the design and construction of the facility allowsfor monitoring for, and detection of, any migration of oil and gaswaste or other substance or material from the facility.

(b) A permit issued for a stationary commercial recyclingfacility pursuant to this division shall require that the permittee:

(1) install monitoring wells in accordance with 16Texas Administrative Code, Part 4, Chapter 76, relating to Water WellDrillers and Water Well Pump Installers, if required by the TechnicalPermitting Section; and

(2) submit to the Technical Permitting Section [Commission's office in Austin] a soil boring log and other informationfor each well, unless waived by the Technical Permitting Sectionunder §4.241(d) of this title (relating to Minimum Permit Provisionsfor Operations).

(c) The soil boring log and other information requiredin subsection (b) of this section shall:

(1) describe the soils using the Unified Soils ClassificationSystem (equivalent to ASTM D 2487 and 2488);

(2) identify the method of drilling, total depth, andthe 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 referencepoint; and

(5) include a potentiometric map showing static waterlevels and the direction of groundwater flow.

(d) The Commission or the Director [director] may waive any or all of the requirements in subsections (b)and (c) of this section if the permittee demonstrates that an on-siteboring to a minimum depth of 100 feet recovers no water during a 24-hour test.

(e) A permit for an off-lease centralized commercialsolid oil and gas waste recycling facility issued pursuant to thisdivision shall require that the permittee notify the Commission DistrictOffice [district office] for the county in whichthe facility is located prior to commencement of construction, includingconstruction of any dikes, and again upon completion of constructionand that the permittee may commence operations under the permit onlyafter the facility has been inspected by the Commission to ensurethat construction of all elements of the facility is consistent withthe representations in the application and the requirements of the permit.

(f) A permit for an off-lease centralized commercialsolid oil and gas waste recycling facility issued pursuant to thisdivision that requires the installation of monitoring wells shallrequire that the permittee comply with subsections (b) and (c) ofthis section prior to commencing recycling operations.

§4.242.Minimum Permit Provisions for Operations.

(a) A permit for an off-lease centralized commercialsolid oil and gas waste recycling facility issued pursuant to thisdivision shall contain requirements the Commission determines to bereasonably necessary to ensure that:

(1) only wastes and other materials authorized by thepermit are received at the facility, including requirements that thepermittee test incoming oil and gas waste and keep records of amountsand sources of incoming wastes; and

(2) the processing operation and resulting recyclableproduct meet the environmental and engineering standards establishedin the permit.

(b) A permit for an off-lease centralized commercialsolid oil and gas waste recycling facility issued under this divisionmay require the permittee to perform a trial run in accordance withthe following procedure.

(1) The permittee shall notify the Commission DistrictOffice [district office] for the county in whichthe facility is located prior to commencement of the trial run.

(2) The permittee shall sample and analyze the partiallytreated waste that results from the trial run, and submit to the Director [director] for review a report of the results ofthe trial run prior to commencing operations.

(3) The Director [director] shallapprove the trial run if the report demonstrates that the recyclableproduct meets or exceeds the environmental and engineering standardsestablished in the permit.

(4) The permittee shall not use the recyclable productuntil the Director [director] approves the trialrun report.

(c) A permit for an off-lease centralized commercialsolid oil and gas waste recycling facility issued pursuant to thisdivision shall include any requirements, including limits on the volumesof oil and gas waste, partially treated waste, and recyclable productstored at the facility, that the Commission determines to be reasonablynecessary to ensure that the permittee does not speculatively accumulateoil and gas waste, partially treated waste, and/or recyclable productat the facility without actually processing the oil and gas wasteand putting the recyclable product to legitimate commercial use.

§4.243.Minimum Permit Provisions for Monitoring.

(a) A permit for an off-lease centralized commercialsolid oil and gas waste recycling facility issued pursuant to thisdivision shall include monitoring requirements the Director [director] or Commission determines to be reasonably necessaryto ensure that the recyclable product meets the environmental andengineering standards established by the Director [director] or the Commission and included in the permit.

(b) Consistent with the requirements of §4.208of this title (relating to General Standards for Permit Issuance),the Director [director] or the Commission shallestablish and include in the permit for an off-lease centralized commercialsolid oil and gas waste recycling facility the parameters for whichthe partially treated waste is to be tested, and the limitations onthose parameters based on:

(1) the type of oil and gas waste to be accepted atthe commercial recycling facility; and

(2) the intended use for the recyclable product.

(c) A permit for an off-lease centralized commercialsolid oil and gas waste recycling facility may require laboratorytesting. A permit that requires laboratory testing shall require thatthe permittee use an independent third party laboratory to analyzea minimum standard volume of partially treated waste for parametersestablished in this division or in a permit issued by the Commission.

(d) A permit for an off-lease centralized commercialsolid oil and gas waste recycling facility issued pursuant to thisdivision from which the recycled product will be used as road baseor other similar uses shall include a requirement that a minimum ofone sample from each 200 cubic yards of partially treated waste becollected and analyzed for every 800 cubic yards composite for thefollowing minimum parameters and meet the following limits:

Figure: 16 TAC §4.243(d) (No change.)

§4.245.Permit Renewal.

Before the expiration of a permit issued pursuant to this division,the permittee may submit an application to renew the permit. An applicationfor renewal of an existing permit issued pursuant to this division[or §3.8 of this title (relating to Water Protection)]shall be submitted in writing a minimum of 60 days before the expirationdate of the permit and shall include the permittee's permit number.The application shall comply with the requirements of §4.230of this title (relating to General Permit Application Requirementsfor Off-Lease or Centralized Commercial Solid Oil and Gas Waste Recycling),and the notice requirements of §4.238 of this title (relatingto Notice). The Director [director] may requirethe applicant to comply with any of the requirements of §§4.231- 4.237 of this title (relating to Minimum Engineering and GeologicInformation; Minimum Siting Information; Minimum Real Property Information;Minimum Design and 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.

The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.

Filed with the Office of the Secretary of State on August 16, 2024.

TRD-202403764

Haley Cochran

Assistant General Counsel, Office of General Counsel

Railroad Commission of Texas

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 475-1295

16 TAC §§4.246 - 4.248, 4.250, 4.251, 4.254 - 4.259, 4.261

Statutory authority: Texas Natural Resources Code,§§81.051, 81.052, 81.0351, 85.042, 85.202, 86.042; TexasNatural Resources Code §91.101 and §91.1017; Texas NaturalResources Code §122.004; Texas Natural Resources Code §123.0015;and Texas Water Code Chapter 29.

Cross reference to statute: Texas Natural Resources Code, Chapters81, 85, 86, 91, 122, and 123; and Texas Water Code Chapter 29.

§4.246.General Permit Application Requirementsfor a Stationary Commercial Solid Oil and Gas Waste Recycling Facility.

(a) An application for a permit for a stationary commercialsolid oil and gas waste recycling facility shall be filed ona Commission prescribed form with the Technical PermittingSection, and on the same day the [Commission's headquartersoffice in Austin. The] applicant shall mail or deliver a copyof the application to the Commission District Office for the countyin which the facility is to be located. The Technical PermittingSection shall not administratively begin final review of an applicationunless the Director has determined that the application is completein accordance with §1.201(b) of this title (relating to TimePeriods for Processing Applications and Issuing Permits Administratively). [on the same day the original application is mailed ordelivered to the Commission's headquarters office in Austin. A permitapplication shall be considered filed with the Commission on the dateit is received by the Commission's headquarters office in Austin.]

(b) The permit application shall contain the applicant'sname; organizational report number; physical office address and,if different, mailing address; facility address; telephone number;[and facsimile transmission (fax) number;] and the nameof a contact person. A permit for a stationary commercial recyclingfacility also shall contain the facility address.

(c) The permit application shall contain informationaddressing each applicable application requirement of this divisionand all information necessary to initiate the final review by the Director [director]. The Director [director]shall neither administratively approve an application nor refer anapplication to hearing unless the Director [director]has determined that the application is administratively complete.If the Director [director] determines that anapplication is incomplete, the Director [director]shall notify the applicant in writing and shall describe the specificinformation required to complete the application. An applicant maymake no more than two supplemental filings to complete an application. After the second supplemental submission, if the application is complete,the Director shall either approve or deny the application. If theapplication is still incomplete after the second supplemental submission,the Director shall administratively deny the application. The Directorshall notify the applicant in writing of the administrative decisionand, in the case of an administrative denial, the applicant's rightto request a hearing on the application as it stands at the time ofadministrative denial. An application that was administratively deniedmay be refiled with the Commission on a Commission prescribed formand shall contain all information necessary to initiate the finalreview by the Director.

(d) The permit application shall contain [an originalsignature in ink, the date of signing, and] the following certification signed and dated by an authorized representative of the applicant:"I certify that I am authorized to make this application, that thisapplication was prepared by me or under my supervision and direction,and that the data and facts stated herein are true, correct, and completeto the best of my knowledge."

(e) A person shall file electronicallyany form or application for which the Commission has provided an electronicversion or an electronic filing system or by hard copy if no digitalformat acceptable to the Commission has been enacted. The operatoror person shall comply with all requirements, including but not limitedto fees and security procedures, for electronic filing.

§4.247.Minimum Engineering and Geologic Information.

(a) The Director [director] mayrequire a permit applicant for a stationary commercial solid oil andgas waste recycling facility to provide [the Commission with]engineering, geological, or other information which the Director [director] deems necessary to show that issuance of the permitwill not result in the waste of oil, gas, or geothermal resources,the pollution of surface or subsurface water, or a threat to the publichealth or safety.

(b) Engineering and geologic work products prepared forthe application [by the applicant] shall be sealedby a professional [registered] engineer or geoscientistlicensed in Texas [geologist, respectively] as requiredby the Texas Occupations Code, Chapters 1001 and 1002, respectively.

§4.248.Minimum Siting Information.

(a) A permit application for a stationarycommercial solid oil and gas waste recycling facility shall include:

(1) a description of the proposed facility site andsurrounding area;

(2) the name, physical address and, if different, mailingaddress, and[;] telephone number[; andfacsimile transmission (fax) number] of every owner of the tracton 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;

(3) the depth to the shallowest subsurface water andthe direction of groundwater flow at the proposed site, and the sourceof this information;

(4) the average annual precipitation and evaporationat the proposed site and the source of this information;

(5) the identification of the soil and subsoil by typicalname and description of the approximate proportion of grain sizes,texture, consistency, moisture condition, and other pertinent characteristics,and the source of this information;

(6) a copy of a county highway map with a scale andnorth arrow showing the location of the proposed facility; and

(7) a United States Geological Survey(USGS) topographic map or an equivalent topographic map which showsthe facility including the items listed in subparagraphs (A) - (K)of this paragraph and any other pertinent information regarding theregulated facility and associated activities. Maps shall be on a scaleof not less than one inch equals 2,000 feet. The map shall show the following:

(A) a scale and north arrow showing the tract sizein square feet or acres, the section/survey lines, and the surveyname and abstract number;

(B) a clear outline of the proposed facility's boundaries;

(C) the location of any pipelines within 500 feet ofthe facility;

(D) the distance from the facility's outermost perimeterboundary to public and private water wells, residences, schools, churches,and hospitals that are within 500 feet of the boundary;

(E) for disposal only, the location of all residentialand commercial buildings within a one-mile radius of the facility boundary;

(F) all water wells within a one-mile radius of thefacility boundary;

(G) the location of the 100-year flood plain and thesource of the flood plain information;

(H) surface water bodies within the map area;

(I) the location of any major and minor aquifers withinthe map area;

(J) the boundaries of any prohibited areas definedunder §4.153 of this title (relating to Commercial Disposal Pits); and

(K) any other information requested by the Directorreasonably related to the prevention of pollution

[(7) a complete, original 7 1/2 minuteUnited States Geological Survey topographic quadrangle map clearlyindicating the outline of the proposed facility; the location of anypipelines that underlay the facility but are not included on the topographicmap; and the location of the 100-year flood plain and the source ofthe flood plain information].

(b) A pit permitted under this division is prohibited:

(1) where there has been observable groundwater within100 feet of the ground surface unless the pit design includes a geosyntheticclay liner (GCL);

(2) within a sensitive area as defined by §4.110of this title (relating to Definitions);

(3) within 300 feet of surface water, domestic supplywells, or irrigation water wells;

(4) within 500 feet of any public water system wellsor intakes;

(5) within 1,000 feet of a permanent residence, school,hospital, institution, or church in existence at the time of the initial permitting;

(6) within 500 feet of a wetland; or

(7) within a 100-year floodplain.

(c) Factors that the Commission willconsider in assessing potential risk from stationary commercial solidoil and gas waste recycling include:

(1) the volume and characteristics of the oil and gaswaste, partially treated waste and recyclable product to be stored,handled, treated and recycled at the facility;

(2) proximity to coastal natural resources or sensitiveareas as defined by §4.110 of this title; and

(3) any other factors the Commission deems reasonablynecessary in determining whether or not issuance of the permit willpose an unreasonable risk.

(d) All siting requirements in thissection for stationary commercial solid oil and gas waste recyclingrefer to conditions at the time the equipment and tanks used in therecycling are placed.

§4.250.Minimum Design and Construction Information.

(a) A permit application for a stationary commercialsolid oil and gas waste recycling facility shall include the layoutand design of the facility by including a plat drawn to scale withnorth arrow to top of the map showing the location and informationon the design and size of all receiving, processing, and storage areasand all equipment (e.g., pug mill), tanks, silos, monitor wells, dikes,fences, and access roads.

(b) A permit application for a stationary commercialsolid oil and gas waste recycling facility also shall include:

(1) a description of the type and thickness of liners(e.g., fiberglass, steel concrete), if any, for all tanks, silos,pits, and storage areas/cells;

(2) for storage areas where tanks and/or liners arenot used, credible engineering and/or geologic information demonstratingthat tanks or liners are not necessary for the protection of surfaceand subsurface water;

(3) a map view and two perpendicular cross-sectionalviews of pits and/or storage areas/cells to be constructed, showingthe bottom, sides, and dikes, showing the dimensions of each;

(4) a plan to control and manage stormwater [storm water] runoff and to retain incoming wastes during wetweather, including the location and dimensions of dikes and/or storagebasins that would collect, at a minimum, stormwater [stormwater] from the facility during a 25-year, 24-hour [maximum]rainfall event, and all calculations made to determine the requiredcapacity and design; and

(5) a plan for the installation of monitoring wellsat the facility.

§4.251.Minimum Operating Information.

A permit application for a stationary commercial solid oiland gas waste recycling facility shall include the following operating information:

(1) the estimated maximum volume of untreated oil andgas waste and partially treated oil and gas waste to be stored atthe facility;

(2) the estimated maximum volume and time that therecyclable 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 typesof wastes (e.g., oil-based drilling fluid and cuttings, crude oil-contaminatedsoils, production tank bottoms, etc.) to be accepted at the facilityfor treatment and recycling; and

(B) provides for testing of wastes to be processedto ensure that only oil and gas waste authorized by this divisionor the permit will be received at the facility;

(5) plans for keeping records of the source and volumeof wastes accepted for recycling in accordance with the permit, includingmaintenance of records of the source of waste received by well number,API number, lease or facility name, lease number and/or gas identificationnumber, county, and Commission District Office [district];

(6) a general description of the recycling processto be employed; a flow diagram showing the process and identifyingall 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 (SDS) forany 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 aggregatein the treatment process;

(8) a description of any testing to be performed todemonstrate that the proposed processing will result in a recyclableproduct that meets the engineering and environmental standards forthe proposed use; and

(9) an estimate of the duration of operation of theproposed facility.

§4.254.Notice.

(a) Purpose. Applicants are encouragedto engage with their communities early in the commercial recyclingfacility planning process to inform the community of the plan to constructstationary commercial solid oil and gas waste recycling facility andallow those who may be affected by the proposed activities to expresstheir concerns. The purpose of the notice required by this sectionis to inform notice recipients:

(1) that an applicant has filed a permit applicationwith the Commission, seeking authorization to conduct an activityor operate a facility; and

(2) of the requirements for filing a protest if anaffected person seeks to protest the permit application.

(b) Timing of notice. The applicantshall provide notice after staff determines that an application fora stationary commercial solid oil and gas waste recycling facilityis complete pursuant to §1.201(b) of this title (relating toTime Periods for Processing Applications and Issuing Permits Administratively).The date notice is provided begins a 30-day period in which an affectedperson may file a protest of the application with the Commission.

(c) Notice recipients. The applicantshall provide notice to:

(1) the surface owners of the tract on which the commercialrecycling facility will be located;

(2) the surface owners of tracts located within a distanceof 1/2-mile from the fence line or edge of the facility as shown onthe plat required under §4.249(b) of this title (relating toMinimum Real Property Information) of the facility's fence line orboundary, even if the surface owner's tract is not adjacent to thetract on which the commercial recycling facility is located;

(3) the city clerk or other appropriate city officialif any part of the tract on which the commercial recycling facilitywill be located lies within the municipal boundaries of the city;

(4) the Commission's District Office; and

(5) any other person or class of persons that the Directordetermines should receive notice of an application.

(d) Method and contents of notice.Unless otherwise specified in this subchapter, the applicant shallprovide direct notice to the persons specified in subsection (c) ofthis section as follows.

(1) The applicant shall provide notice by registeredor certified mail.

(2) The notice of the permit application shall consistof a complete copy of the application and any attachments. The copyshall be of the application and attachments after staff determinesthe application is complete pursuant to §1.201(b) of this titlebut before the final review is completed.

(3) The notice shall include a letter that contains:

(A) the name of the applicant;

(B) the date of the notice;

(C) the name of the surface owners of the tract onwhich the proposed commercial recycling facility will be located;

(D) the location of the tract on which the proposedcommercial recycling facility will be located including a legal descriptionof the tract, latitude/longitude coordinates of the proposed facility,county, original survey, abstract number, and the direction and distancefrom the nearest municipality or community;

(E) the types of solids to be recycled at the commercialrecycling facility;

(F) the recycling method proposed and the proposedend-use of the recycled material;

(G) a statement that an affected person may protestthe application by filing a written protest with the Commission within30 calendar days of the date of the notice;

(H) a statement that a protest shall include the protestant'sname, mailing address, telephone number, and email address;

(I) the address to which protests may be mailed orthe location and instructions for electronic submittal of a protestif the Commission implements an electronic means for filing protests;

(J) the definition of "affected person" pursuant to§4.110 of this title (relating to Definitions); and

(K) the signature of the operator, or representativeof the operator, and the date the letter was signed.

(4) If the Director finds that a person to whom theapplicant was required to give notice of an application has not receivedsuch notice, then the Director shall not take action on the applicationuntil the applicant has made reasonable efforts to give such personnotice of the application and an opportunity to file a protest tothe application with the Commission.

(e) Proof of notice. After the applicantprovides the notice required by this section, the applicant shallsubmit to the Commission proof of delivery of notice which shall consist of:

(1) a copy of the signed and dated letters requiredby subsection (d)(3) of this section;

(2) the registered or certified mail receipts; and

(3) a map showing the property boundaries, surfaceowner names, and parcel numbers of all notified parties.

(f) Notice by publication. In additionto the notice required by subsection (d) of this section, an applicantfor a stationary commercial solid oil and gas waste recycling commercialfacility permit shall also provide notice by publication.

(g) Newspaper of general circulation.The permit applicant shall publish notice of the application in anewspaper of general circulation in the county in which the proposedfacility will be located at least once each week for two consecutiveweeks, with the first publication occurring not earlier than the datestaff determines that an application is complete pursuant to §1.201(b)of this title (relating to Time Periods for Processing Applicationsand Issuing Permits Administratively) but before the final reviewis completed.

(h) Contents of published notice.The published notice shall:

(1) be entitled "Notice of Application for CommercialSolid Oil and Gas Waste Recycling Facility" if the proposed facilityis a commercial facility;

(2) provide the date the applicant filed the applicationwith the Commission;

(3) identify the name of the applicant;

(4) provide the location of the tract on which theproposed facility will be located including the legal descriptionof the property, latitude/longitude coordinates of the proposed facility,county, name of the original survey and abstract number, and locationand distance in relation to the nearest municipality or community;

(5) identify the owner or owners of the property onwhich the proposed facility will be located;

(6) identify the type of fluid or solid waste to bemanaged at the facility;

(7) identify the proposed recycling method;

(8) state that affected persons may protest the applicationby filing a protest with the Commission within 30 calendar days ofthe last date of publication;

(9) include the definition of "affected person" pursuantto §4.110 of this title (relating to Definitions); and

(10) provide the address to which protests shall bemailed. If the Commission implements an electronic means for filingprotests, then the location to instructions for electronic submittalshall be included.

(i) Proof of notice. The applicantshall submit to the Commission proof that notice was published asrequired by this section. Proof of publication shall consist of:

(1) an affidavit from the newspaper publisher thatstates the dates on which the notice was published and the countyor counties in which the newspaper is of general circulation; and

(2) the tear sheets for each published notice.

(j) Protest process. Any statementof protest to an application must be filed with the Commission within30 calendar days from the date of notice or from the last date ofpublication if notice by publication is authorized by the Director.

(1) The Technical Permitting Section shall notify theapplicant if the Commission receives an affected person's timely protest.A timely protest is a written protest date-stamped as received bythe Commission within 30 calendar days of the date notice is providedor within 30 calendar days of the last date of publication, whicheveris later.

(2) The applicant shall have 30 days from the dateof the Technical Permitting Section's notice of receipt of protestto respond, in writing, by either requesting a hearing or withdrawingthe application. If the applicant fails to timely file a written response,the Technical Permitting Section shall consider the application tohave been withdrawn.

(3) The Technical Permitting Section shall refer allprotested applications to the Hearings Division if a timely protestis received and the applicant requests a hearing.

(4) The Commission shall provide notice of any hearingconvened under this subsection to all affected persons and personswho have requested notice of the hearing.

(5) If the Director has reason to believe that a personentitled to notice of an application has not received notice as requiredby this section, then the Technical Permitting Section shall not takeaction on the application until notice is provided to such person.

(6) The Commission may issue a permit if no timelyprotests from affected persons are received.

(k) Director review. If the Directorhas reason to believe that a person to whom the applicant was requiredto give notice of an application has not received such notice, thenthe Director shall not take action on the application until the applicanthas made reasonable efforts to give such person notice of the applicationand an opportunity to file a protest to the application with the Commission.

[(a) A permit applicant for a stationarycommercial solid oil and gas waste recycling facility shall publishnotice and file proof of publication in accordance with the following requirements.]

[(1) A permit applicant shall publish notice of theapplication in a newspaper of general circulation in the county inwhich the proposed facility will be located at least once each weekfor two consecutive weeks with the first publication occurring notearlier than the date the application is filed with the Commissionand not later than the 30th day after the date on which the applicationis filed with the Commission.]

[(2) The published notice shall:]

[(A) be entitled, "Notice of Application for CommercialSolid Oil and Gas Waste Recycling Facility";]

[(B) provide the date the applicant filed the applicationwith the Commission for the permit;]

[(C) identify the name of the applicant;]

[(D) state the physical address of the proposed facilityand its location in relation to the nearest municipality or community;]

[(E) identify the owner or owners of the property uponwhich the proposed facility will be located;]

[(F) state that affected persons may protest the applicationby filing a protest with the Railroad Commission within 15 days ofthe last date of publication; and]

[(G) provide the address to which protests may be mailed.]

[(3) The applicant shall submit to the Commission proofthat the applicant published notice as required by this section. Proofof publication of the notice shall consist of a sworn affidavit fromthe newspaper publisher that states the dates on which the noticewas published and the county or counties in which the newspaper isof general circulation, and to which are attached the tear sheetsof the published notices.]

[(b) A permit applicant for a stationary commercial solid oil and gas waste 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 adjoining the tracton which proposed facility will be located, unless the boundary withthe adjoining tract is a distance of 1/2-mile or greater from thefenceline or edge of the facility as shown on the plat required under§4.249(b) of this title (relating to Minimum Real Property Information); and]

[(D) any affected person or class of persons that thedirector determines should receive notice of a particular application.]

[(2) Personal notice of the permit application shallconsist of:]

[(A) a copy of the application;]

[(B) a statement of the date the applicant filed theapplication with the Commission;]

[(C) a statement that a protest to the applicationshould be filed with the Commission within 15 days of the last dateof published notice, a statement identifying the publication in whichpublished notice will appear, and the procedure for making a protestof the application to the Commission;]

[(D) a description of the location of the site forwhich the application was made, including the county in which thesite is to be located, the name of the original survey and abstractnumber, and the direction and distance from the nearest municipality;]

[(E) the name of the owner or owners of the propertyon 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 proposedend-use of the recycled material.]

[(3) The applicant shall submit to the Commission proofthat personal notice has been given as required. Proof of notice shallconsist of a copy of each notification letter sent, along with a statementsigned by the applicant that includes the names and addresses of eachperson to whom the notice was sent, and the date that each was notifiedof the application.]

[(c) If the director has reason tobelieve that a person to whom the applicant was required to give noticeof an application has not received such notice, then the directorshall not take action on the application until the applicant has madereasonable efforts to give such person notice of the application andan opportunity to file a protest to the application with the Commission.]

§4.255.General Permit Provisions.

(a) A permit for a stationary commercial solid oiland gas waste recycling facility issued pursuant to this divisionshall be issued for a term of not more than five years. Permits issuedpursuant to this division may be renewed, but are not transferableto another operator without the written approval of the Director [director].

(b) A permit for a stationary commercial solid oiland gas waste recycling facility issued pursuant to this divisionshall require that, prior to operating, a stationary commercial solidoil and gas waste recycling facility comply with the financial securityrequirements of Texas Natural Resources Code, §91.109, relatingto Financial Security for Persons Involved in Activities Other thanOperation of Wells, as implemented by §3.78 of this title (relatingto Fees and Financial Security Requirements).

(c) A permit for a stationary commercial solid oiland gas waste recycling facility shall include a condition requiringthat the permittee notify the surface owner of the tract upon whichrecycling will take place and the [appropriate] Commission District Office [district office] before recyclingoperations commence on each tract.

§4.256.Minimum Permit Provisions for Siting.

(a) A permit for a stationary commercial solid oiland gas waste recycling facility may be issued only if the Director [director] or the Commission determines that the facility isto be located in an area where there is no unreasonable risk of pollutionor threat to public health or safety.

(b) A stationary commercial solid oil and gas wasterecycling facility permitted pursuant to this division is prohibited [and after the effective date of this division shall notbe located]:

(1) within a 100-year flood plain, in a streambed,or in a sensitive area as defined by §4.110 [§3.91] of this title (relating to Definitions [Cleanupof Soil Contaminated by a Crude Oil Spill]); or

(2) within 300 [150] feet ofsurface water or public, domestic, or irrigation water wells.

(c) Factors that the Commission will consider in assessingpotential risk from a stationary commercial solid oil and gas wasterecycling facility include:

(1) the volume and characteristics of the oil and gaswaste, 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;

(3) distance to the nearest property line or public road;

(4) proximity to coastal natural resources or[,] sensitive areas as defined by §4.110 [§3.91] of this title, or surface water and/or public, domestic, orirrigation water wells; and

(5) any other factors the Commission deems reasonablynecessary in determining whether or not issuance of the permit willpose an unreasonable risk.

(d) All siting requirements in this section for a stationarycommercial solid oil and gas waste recycling facility refer to conditionsat the time the facility is constructed.

§4.257.Minimum Permit Provisions for Design and Construction.

(a) A permit issued pursuant to this division for astationary commercial solid oil and gas waste recycling facility shallcontain any requirement that the Director [director]or the Commission determines to be reasonably necessary to ensure that:

(1) the design and construction of storage areas, containmentdikes, and processing areas minimize contact of oil and gas wasteand partially recycled waste with the ground surface, and preventpollution of surface and subsurface water;

(2) the pollution of surface and subsurface water fromspills, leachate, and/or discharges from the facility is prevented by:

(A) prohibiting the unauthorized discharge of oil andgas waste and other substances or materials, including contaminated stormwater [storm water] runoff, from the facilityto the land surface at and adjacent to the facility or to surfaceand subsurface water;

(B) requiring that the permittee control and remediatespills at the facility; and

(C) requiring that the permittee make regular inspectionsof the facility; and

(3) the design and construction of the facility allowsfor monitoring for, and detection of, any migration of oil and gaswaste or other substance or material from the facility.

(b) A permit issued for a stationary commercial solidoil and gas waste recycling facility pursuant to this division shallrequire that the permittee, unless waived by the Technical PermittingSection under §4.257(d) of this title (relating to Minimum PermitProvisions for Operations):

(1) install monitoring wells in accordance with 16Texas Administrative Code, Part 4, Chapter 76, relating to Water WellDrillers and Water Well Pump Installers, if required by the TechnicalPermitting Section; and

(2) submit to the Technical Permitting Section [Commission's office in Austin] a soil boring log and other informationfor each well, if required by the Technical Permitting Section.

(c) The soil boring log and other information requiredin subsection (b) of this section shall:

(1) describe the soils using the Unified Soils ClassificationSystem (equivalent to ASTM D 2487 and 2488);

(2) identify the method of drilling, total depth, andthe 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 referencepoint; and

(5) include a potentiometric map showing static waterlevels and the direction of groundwater flow.

(d) The Commission or the Director [director] may waive any or all of the requirements in subsections (b)and (c) of this section if the permittee demonstrates that an on-siteboring to a minimum depth of 100 feet recovers no water during a 24-hour test.

(e) A permit for a stationary commercial solid oiland gas waste recycling facility issued pursuant to this divisionshall require that the permittee notify the Commission DistrictOffice [district office] for the county in whichthe facility is located prior to commencement of construction, includingconstruction of any berms [dikes], and againupon completion of construction and that the permittee may commenceoperations under the permit only after the facility has been inspectedby the Commission to ensure that construction of all elements of thefacility is consistent with the representations in the applicationand the requirements of the permit.

(f) A permit for a stationary commercial solid oiland gas waste recycling facility issued pursuant to this divisionthat requires the installation of monitoring wells shall require thatthe permittee comply with subsections (b) and (c) of this sectionprior to commencing recycling operations.

§4.258.Minimum Permit Provisions for Operations.

(a) A permit for a stationary commercial solid oiland gas waste recycling facility issued pursuant to this divisionshall contain requirements the Commission determines to be reasonablynecessary to ensure that:

(1) only wastes and other materials authorized by thepermit are received at the facility, including requirements that thepermittee test incoming oil and gas waste and keep records of amountsand sources of incoming wastes; and

(2) the processing operation and resulting recyclableproduct meet the environmental and engineering standards establishedin the permit.

(b) A permit for a stationary commercial solid oiland gas waste recycling facility issued under this division may requirethe permittee to perform a trial run in accordance with the following procedure.

(1) The permittee shall notify the District Office [appropriate district office] for the county in which the facilityis located prior to commencement of the trial run.

(2) The permittee shall demonstrate the ability tosuccessfully process a 1,000 [one thousand]cubic yard batch of solid oil and gas waste.

(A) The Technical Permitting Section [Oiland Gas Division in Austin] and the District Office shall [appropriate district office must] be notified in writing atleast 72 hours before waste processing begins.

(B) Samples of the partially treated waste shall [must] be collected and analyzed as required by §4.243 ofthis title (relating to Minimum Permit Provisions for Monitoring).

(C) Samples shall be collected from every 200 cubicyards of an 800 cubic yard batch and analyzed for wetting and dryingdurability by ASTM D 559-96, modified to provide that samples arecompacted and molded from finished partially treated waste. The totalweight loss after 12 cycles may not exceed 15 percent.

(3) The permittee shall sample and analyze the partiallytreated waste that results from the trial run, and submit to the Director [director] for review a report of the results ofthe trial run prior to commencing operations.

(4) The Director [director] shallapprove the trial run if the report demonstrates that the recyclableproduct meets or exceeds the environmental and engineering standardsestablished in the permit.

(5) The permittee shall not use the recyclable productuntil the Director [director] approves the trialrun report.

(6) A written report of the trial run shall be submittedto the Technical Permitting Section [Oil and Gas Divisionin Austin] and the District Office [appropriatedistrict office] within 60 days of receipt of the analyses requiredin §4.243 of this title. The following information shall [must] be included:

(A) the actual volume of waste material processed;

(B) the volume of stabilization material used;

(C) copies of all lab analyses required by §4.243of this title; and

(D) the results of the analysis required under paragraph(2)(C) of this subsection.

(7) The final recyclable material shall [must] meet the limitations of §4.243 of this title.

(c) A permit for a stationary commercial solid oiland gas waste recycling facility issued pursuant to this divisionshall include any requirements, including limits on the volumes ofoil and gas waste, partially treated waste, and recyclable productstored at the facility, that the Commission determines to be reasonablynecessary to ensure that the permittee does not speculatively accumulateoil and gas waste, partially treated waste, and/or recyclable productat the facility without actually processing the oil and gas wasteand putting the recyclable product to legitimate commercial use.

§4.259.Minimum Permit Provisions for Monitoring.

(a) A permit for a stationary commercial solid oiland gas waste recycling facility issued pursuant to this divisionshall include monitoring requirements the Director [director] or Commission determines to be reasonably necessary to ensurethat the recyclable product meets the environmental and engineeringstandards established by the Director [director]or the Commission and included in the permit.

(b) Consistent with the requirements of §4.208of this title (relating to General Standards for Permit Issuance),the Director [director] or the Commission shallestablish and include in the permit for a stationary commercial solidoil and gas waste recycling facility the parameters for which thepartially treated waste is to be tested, and the limitations on thoseparameters based on:

(1) the type of oil and gas waste to be accepted atthe commercial recycling facility; and

(2) the intended use for the recyclable product.

(c) A permit for a stationary commercial solid oiland gas waste recycling facility may require laboratory testing. Apermit that requires laboratory testing shall require that the permitteeuse an independent third party laboratory to analyze a minimum standardvolume of partially treated waste for parameters established in thisdivision or in a permit issued by the Commission.

(d) A permit for a stationary commercial solid oiland gas waste recycling facility issued pursuant to this divisionfrom which the recycled product will be used as road base or othersimilar uses shall include a requirement that a minimum of one samplefrom each 200 tons of partially treated waste be collected and analyzedfor every 800 ton composite for the following minimum parameters andmeet the following limits:

Figure: 16 TAC §4.259(d) (No change.)

(e) Groundwater monitor wells.

(1) Groundwater monitor wells, if required, shall [must] be monitored for the following parameters after installationand quarterly thereafter:

(A) static water level;

(B) benzene;

(C) total petroleum hydrocarbons (TPH);

(D) total dissolved solids (TDS);

(E) chlorides;

(F) bromides;

(G) sulfates;

(H) nitrates;

(I) carbonates;

(J) calcium;

(K) magnesium;

(L) sodium; and

(M) potassium.

(2) Copies of the sampling and analytical results shallbe filed semi-annually with the Technical Permitting Section [Oil and Gas Division] and the District Office [appropriate district office].

§4.261.Permit Renewal.

Before the expiration of a permit issued pursuant to this division,the permittee may submit an application to renew the permit ona Commission prescribed form. An application for renewal ofan existing permit issued pursuant to this division [or §3.8of this title (relating to Water Protection)] shall be submittedin writing a minimum of 60 days before the expiration date of thepermit and shall include the permittee's permit number. The applicationshall comply with the requirements of §4.246 of this title (relatingto General Permit Application Requirements for a Stationary CommercialSolid Oil and Gas Waste Recycling Facility), and the notice requirementsof §4.254 of this title (relating to Notice). The Director [director] may require the applicant to comply with any of therequirements of §§4.247 - 4.253 of this title (relatingto Minimum Engineering and Geologic Information; Minimum Siting Information;Minimum Real Property Information; Minimum Design and ConstructionInformation; Minimum Operating Information; Minimum Monitoring Information;and Minimum Closure Information), depending on any changes made orplanned to the construction, operation, monitoring, and/or closureof the facility.

The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.

Filed with the Office of the Secretary of State on August 16, 2024.

TRD-202403766

Haley Cochran

Assistant General Counsel, Office of General Counsel

Railroad Commission of Texas

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 475-1295

16 TAC §§4.262 - 4.264, 4.266 - 4.277

Statutory authority: Texas Natural Resources Code,§§81.051, 81.052, 81.0351, 85.042, 85.202, 86.042; TexasNatural Resources Code §91.101 and §91.1017; Texas NaturalResources Code §122.004; Texas Natural Resources Code §123.0015;and Texas Water Code Chapter 29.

Cross reference to statute: Texas Natural Resources Code, Chapters81, 85, 86, 91, 122, and 123; and Texas Water Code Chapter 29.

§4.262.General Permit Application Requirements for Off-Lease Commercial Recycling of Fluid.

(a) An application for a permit for off-lease commercialrecycling of fluid shall be filed on a Commission prescribed formwith the Technical Permitting Section, and on the same day the [Commission's headquarters office in Austin. The] applicant shallmail or deliver a copy of the application to the Commission DistrictOffice for the county in which the facility is to be located.The Technical Permitting Section shall not administratively beginfinal review of an application unless the Director has determinedthat the application is complete in accordance with §1.201(b)of this title (relating to Time Periods for Processing Applicationsand Issuing Permits Administratively). [on the same daythe original application is mailed or delivered to the Commission'sheadquarters office in Austin. A permit application shall be consideredfiled with the Commission on the date it is received by the Commission'sheadquarters office in Austin.]

(b) The permit application shall contain the applicant'sname; organizational report number; physical office address and,if different, mailing address; facility address; telephone number;[and facsimile transmission (fax) number;] and the nameof a contact person. A permit for a stationary commercial recyclingfacility also shall contain the facility address.

(c) The permit application shall contain informationaddressing each applicable application requirement of this divisionand all information necessary to initiate the final review by the Director [director]. The Director [director]shall determine that the application is administratively completeprior to administratively approving an application or referring anapplication to hearing. If the Director [director]determines that an application is incomplete, the Director [director] shall notify the applicant in writing and shall describethe specific information required to complete the application.

(1) An applicant may make no morethan two supplemental filings to complete an application.

(2) After the second supplementalsubmission, if the application is complete, the Director shall acton the application. The Director's action on the application shall be:

(A) approval if the application meets the requirementsof this division and the application has not been protested;

(B) referral to the Hearings Division if the applicationmeets the requirements of this division and the application has beenprotested; or

(C) denial if the application does not meet the requirementsof this division.

(3) If after the second supplementalsubmission the application is still incomplete, the Director shalladministratively deny the application. An application that was administrativelydenied may be refiled with the Commission on a Commission prescribedform and shall contain all information necessary to initiate the finalreview by the Director.

(4) The Director shall notify theapplicant in writing of the administrative decision and, in the caseof an administrative denial, the applicant's right to request a hearingon the application as it stands at the time of administrative denial.

(d) The Director shall approve or deny a complete application for a permit issued under this division that does not include a request for an exception to the requirements of this division not later than the 90th day after the date the complete application was received by the Commission, unless a protest is filed with the Commission, in which case the Commission may extend the amount of time to approve or deny the application in order to allow for a public hearing on the application pursuant to Chapter 1 of this title (relating to Practice and Procedure). If the Director does not approve or deny the application before that date, the permit application is considered approved, and the applicant may operate under the terms specified in the application for a period of one year.

(e) [(d)] The permit applicationshall contain [an original signature in ink, the date of signing,and] the following certification signed and dated by anauthorized representative of the applicant: "I certify thatI am authorized to make this application, that this application wasprepared by me or under my supervision and direction, and that thedata and facts stated herein are true, correct, and complete to thebest of my knowledge."

(f) A person shall file electronicallyany form or application for which the Commission has provided an electronicversion or an electronic filing system or by hard copy if no digitalformat acceptable to the Commission has been enacted. The operatoror person shall comply with all requirements, including but not limitedto fees and security procedures, for electronic filing.

§4.263.Minimum Engineering and Geologic Information.

(a) A [The director may require a]permit applicant for off-lease commercial recycling of fluid shallinclude [to provide the Commission with] engineering,geological, or other information [which the director deems]necessary to:

(1) describe the subsurface geologyunderlying the facility to a depth of at least 100 feet, includingthe identification of the soil and subsoil by typical name and descriptionof the approximate proportion of grain sizes, texture, consistency,moisture condition, permeability, and other pertinent characteristics;

(2) describe the subsurface hydrogeologyunderlying the facility to a depth of at least 100 feet, includingan assessment of the presence and characteristics of permeable andimpermeable strata; and

(3) evaluate the geology, hydrogeology,and proposed engineering design to show that issuance of thepermit will not result in the waste of oil, gas, or geothermal resources,the pollution of surface or subsurface water, or a threat to the publichealth or safety.

(b) Information for engineering andgeological site characterization may be obtained from available informationor from a site investigation including installation of soil borings,soil and groundwater sampling, and soil and groundwater analysis.Site-specific investigation information is considered more reliableand, therefore, will have a greater effect on the permit determination.

(c) If an operator intends to establishand later rely on actual background concentrations of contaminantsin environmental media, then the operator shall collect site-specificsoil and groundwater samples for analysis and include these findingswith the application.

(d) [(b)] Engineering and geologicwork products prepared for the application [by theapplicant] shall be sealed by a professional [registered] engineer or geoscientist licensed in Texas [geologist,respectively] as required by the Texas Occupations Code, Chapters1001 and 1002, respectively.

§4.264.Minimum Siting Information.

(a) A pit permitted under this divisionis prohibited:

(1) where there has been observable groundwater within100 feet of the ground surface unless the pit design includes a geosyntheticclay liner (GCL);

(2) within a sensitive area as defined by §4.110of this title (relating to Definitions);

(3) within 300 feet of surface water, domestic supplywells, or irrigation water wells;

(4) within 500 feet of any public water system wellsor intakes;

(5) within 1,000 feet of a permanent residence, school,hospital, institution, or church in existence at the time of the initial permitting;

(6) within 500 feet of a wetland; or

(7) within a 100-year floodplain.

(b) A permit application for off-lease commercialrecycling of fluid shall include:

(1) a description of the proposed facility site andsurrounding area;

(2) the name, physical address and, if different, mailingaddress,[;] and telephone number[;and facsimile transmission (fax) number] of every owner of thetract on which the facility is to be located. If any owner is notan individual, the applicant shall include the name of a contact personfor that owner;

(3) the depth to the shallowest subsurface water andthe direction of groundwater flow at the proposed site, and the sourceof this information;

(4) the average annual precipitation and evaporationat the proposed site and the source of this information;

(5) the identification of the soil and subsoil by typicalname and description of the approximate proportion of grain sizes,texture, consistency, moisture condition, and other pertinent characteristics,and the source of this information;

(6) a copy of a county highway map with a scale andnorth arrow showing the location of the proposed facility; and

(7) a United States Geological Survey(USGS) topographic map or an equivalent topographic map which showsthe facility including the items listed in subparagraphs (A)-(K) ofthis paragraph and any other pertinent information regarding the regulatedfacility and associated activities. Maps shall be on a scale of notless than one inch equals 2,000 feet. The map shall show the following:

(A) a scale and north arrow showing the tract sizein square feet or acres, the section/survey lines, and the surveyname and abstract number;

(B) a clear outline of the proposed facility's boundaries;

(C) the location of any pipelines within 500 feet ofthe facility;

(D) the distance from the facility's outermost perimeterboundary to public and private water wells, residences, schools, churches,and hospitals that are within 500 feet of the boundary;

(E) for disposal only, the location of all residentialand commercial buildings within a one-mile radius of the facility boundary;

(F) all water wells within a one-mile radius of thefacility boundary;

(G) the location of the 100-year flood plain and thesource of the flood plain information;

(H) surface water bodies within the map area;

(I) the location of any major and minor aquifers withinthe map area;

(J) the boundaries of any prohibited areas definedunder §4.153 of this title (relating to Commercial Disposal Pits); and

(K) any other information requested by the Directorreasonably related to the prevention of pollution.

[(7) a complete, original 7 1/2 minuteUnited States Geological Survey topographic quadrangle map clearlyindicating the outline of the proposed facility; the location of anypipelines that underlay the facility but are not included on the topographicmap; and the location of the 100-year flood plain and the source ofthe flood plain information.]

(c) Factors that the Commission willconsider in assessing potential risk from off-lease commercial recyclingof fluid include:

(1) the volume and characteristics of the oil and gaswaste, partially treated waste and recyclable product to be stored,handled, treated and recycled at the facility;

(2) proximity to coastal natural resources or sensitiveareas as defined by §4.110 of this title; and

(3) any other factors the Commission deems reasonablynecessary in determining whether or not issuance of the permit willpose an unreasonable risk.

(d) All siting requirements in thissection for off-lease commercial recycling of fluid refer to conditionsat the time the equipment and tanks used in the recycling are placed.

§4.266.Minimum Design and Construction Information.

(a) A pit permitted under this divisionshall be designed, built, and maintained as follows.

(1) The pit shall contain the material placed in thepit and prevent releases, overflow, or failure.

(2) The maximum depth from the natural surface elevationshall not exceed 22 feet.

(3) The foundation and interior slopes shall consistof a firm, unyielding base, smooth and free of rocks, debris, sharpedges, or irregularities to prevent the liner's rupture or tear. Allinterior and exterior surfaces of the pit shall be smooth drum rolled.

(4) The pit sides and berms shall have interior andexterior grades no steeper than three horizontal feet to one verticalfoot (3H:1V). The top of the berm shall be wide enough to provideadequate room for inspection, maintenance, and any other structuralor construction requirements.

(A) Fill for berms shall be placed and compacted incontinuous lifts with a maximum loose lift thickness of 10 inches,compacted to eight inches.

(B) Berm fill shall be compacted to at least 95% ofmaximum dry density determined by the Standard Proctor (ASTM D698)and at moisture content within +2% to -2% of optimum moisture contentas determined by a standard proctor soil test on samples from thesource area. One nuclear density test shall be conducted for each2,500 cubic yards, and the applicant shall provide compaction testingresults upon completion.

(5) Both primary and secondary liners in a pit shallbe geomembrane liners composed of ASTM GRI-13 compliant materialsand be impervious, synthetic material that is resistant to ultravioletlight, petroleum hydrocarbons, salts, and acidic and alkaline solutions.Each pit shall incorporate, at a minimum, a liner system as follows:

(A) The primary liner shall be constructed with a minimum60-mil high density polyethylene (HDPE) for any pit under this subsectionpermitted after July 1, 2025.

(B) A leak detection system shall be placed betweenthe primary and secondary geomembrane liners that shall consist of200-mil biplanar geonet or geo-composite equivalent. The leak detectionsystem shall consist of a properly designed drainage and collectionand removal system placed above the secondary geomembrane liner indepressions and sloped to facilitate the earliest possible leak detection.The leak detection system shall be designed with the capability ofremoving a minimum of 1,000 gallons of leachate per acre per day oran alternative action leakage rate shall be calculated.

(C) The secondary liner shall be constructed with aminimum 40-mil HDPE for any pit under this subsection permitted afterJuly 1, 2025. If the depth to groundwater is less than 100 feet belowthe ground surface, the secondary liner shall include a geosyntheticclay liner.

(D) A geotextile (felt) liner shall be placed underthe secondary liner and in contact with the prepared ground surface.

(6) The edges of all liners shall be anchored in thebottom of a compacted earth-filled trench that is at least 24 inchesdeep and shall be performed in accordance with the manufacturer's instructions.

(7) Field seams in geosynthetic material shall be performedin accordance with the manufacturer's instructions and include thefollowing considerations:

(A) Field seams in geosynthetic material shall be minimizedand oriented perpendicular to the slope of the berm, not parallel.

(B) Prior to field seaming, the operator shall overlapliners a minimum of four to six inches. The operator shall minimizethe number of field seams and corners and irregularly shaped areas.There shall be no horizontal seams within five feet of the slope's toe.

(C) Qualified personnel shall perform field seam weldingand testing. Documented quality assurance/quality control testingreports shall be maintained for the life of the liner.

(8) At a point of discharge into or suction from thepit, the operator shall ensure that the liner is protected from excessivehydrostatic force or mechanical damage.

(9) All piping and equipment that is in contact withthe liner shall be secured to prevent liner wear and damage.

(10) There shall be no penetrations of the liner system.

(11) The pit shall be designed to prevent run-on ofany non-contact stormwater, precipitation, or surface water. The pitshall be surrounded by a berm, ditch, or other diversion to preventrun-on of any non-contact stormwater, precipitation, or surface water.

(12) The pit shall be designed to operate with a minimumtwo feet of freeboard plus the capacity to contain the volume of precipitationfrom a 25-year, 24-hour rainfall event.

(b) Tanks and treatment equipmentshall be located within a secondary containment system.

(c) [(a)] A permit applicationfor off-lease commercial recycling of fluid shall include the layoutand design of the facility by including a plat drawn to scale withnorth arrow to top of the map showing the location and informationon the design and size of all receiving, processing, and storage areasand all equipment, tanks, silos, monitor wells, dikes, fences, andaccess roads.

(d) [(b)] A permit applicationfor off-lease commercial recycling of fluid also shall include:

(1) a description of the type and thickness of liners(e.g., fiberglass, steel concrete), if any, for all tanks, silos,pits, and storage areas/cells;

(2) for storage areas where tanks and/or liners arenot used, credible engineering and/or geologic information demonstratingthat tanks or liners are not necessary for the protection of surfaceand subsurface water;

(3) a map view and two perpendicular cross-sectionalviews of pits and/or storage areas/cells to be constructed, showingthe bottom, sides, and dikes, showing the dimensions of each; [and]

(4) a plan to control and manage storm water runoffand to retain incoming wastes during wet weather, including the locationand dimensions of berms [dikes] and/or storagebasins that would collect stormwater [storm water]from the facility, at a minimum, during a 25-year, 24-hour[maximum] rainfall event, and all calculations made todetermine the required capacity and design; and[.]

(5) a plan for the installation ofmonitoring wells at the facility.

§4.267.Minimum Operating Information.

A permit application for off-lease commercial recycling offluid shall include the following operating information:

(1) the estimated maximum volume of untreated oil andgas waste and partially treated oil and gas waste to be stored atthe facility;

(2) the estimated maximum volume and time that therecyclable 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 typesof oil and gas wastes (e.g., hydraulic fracturing flowbackfluid and/or produced water) to be accepted at the facility for treatmentand recycling; and

(B) provides for testing of wastes to be processedto ensure that only oil and gas waste authorized by this divisionor the permit will be received at the facility;

(5) plans for keeping records of the source and volumeof wastes accepted for recycling in accordance with the permit, includingmaintenance of records of the source of waste received by well number,API number, lease or facility name, lease number and/or gas identificationnumber, county, and Commission district;

(6) a general description of the recycling processto be employed; a flow diagram showing the process and identifyingall equipment and chemicals or additives to be used in the process;and the [Material] Safety Data Sheets (SDS) forany chemical or additive;

(7) a description of any testing to be performed todemonstrate that the proposed processing will result in a recyclableproduct that meets the health, safety, and environmentalstandards for the proposed use; and

(8) an estimate of the duration of operation of the proposed facility.

§4.268.Minimum Monitoring Information.

A permit application for off-lease commercial recycling offluid shall include:

(1) a sampling plan for the partially treated wasteto ensure compliance with permit conditions and reuse requirements;

(2) a plan for sampling any monitoring wells at anoff-lease commercial recycling of fluid facility as required by thepermit and this division; and

(3) a plan to verify that fluid oil and gas wastesare confined to the facility pits, tanks, and processing areas, and a schedule for conducting periodic inspections, including plansto inspect pits and liner systems, equipment, processing,and other waste storage areas

§4.269.Minimum Closure Information.

(a) A permit application for off-leasecommercial recycling of fluid shall include a closure cost estimate(CCE) sealed by a professional engineer licensed in Texas.

(1) The CCE shall show all assumptions and calculationsused to develop the estimate. The following assumptions are required:

(A) The facility is in compliance with permit conditions.

(B) The facility will be closed according to the permitor approved closure plan, under which collecting pits shall be dewatered,emptied and demolished prior to backfilling; all remaining waste willbe disposed of at an authorized facility; and the facility will berestored to its native state unless otherwise authorized by the permit.

(C) None of the operator's equipment or facilitiesthat may have otherwise been available at the time of closure (e.g.,disposal wells, land treatment facilities, trucks, bulldozers, andemployees) are available to assist in the closure.

(D) The facility is at maximum capacity. All tanksand pits are full of waste.

(E) Storage tanks and pits contain basic sediment andwater in normal operating proportions, with a minimum volume of atleast 10% basic sediment.

(2) The CCE shall not assess a salvage value for anymaterial or equipment at the facility.

(3) The CCE shall include costs for sampling and analysisof soil for the areas around each waste management unit, includingtank batteries, pads, and all former pits unless closure of an individualpit was previously approved by the Technical Permitting Section.

(4) The CCE shall show unit costs for all material,equipment, services, and labor needed to close the facility. Unitsand fees used shall be appropriate for the type of waste materialto be disposed. For example, disposal units for saltwater shall bereported in oil barrels rather than gallons. The CCE shall be specificand shall state the source or basis for the specific unit cost, includingthe following:

(A) the permitted waste hauler to be used and the hauler'smileage rate;

(B) the distance that waste will be transported for disposal;

(C) the name of each facility where waste will be takenand the disposal costs for that facility;

(D) the source of any material being brought to thefacility, such as clean fill material;

(E) calculations for earth-moving equipment time andcost needed to move the fill dirt if fill dirt will be taken fromthe property;

(F) the total labor costs, including the titles andbilling rates for personnel; and

(G) the quantity of each unit cost item and how thetotal quantity was determined (for example, cubic yards of materialdivided by size of load equals total number of loads).

(5) The CCE shall include maps and illustrations suchas facility plans and photographs that show the current conditionof the facility, and/or the condition of the facility upon reachingmaximum permit conditions.

(6) For facilities with groundwater monitoring wells,the CCE shall include costs to plug and abandon the monitoring wells.

(7) For facilities that will require post-closure monitoring,the CCE shall include costs for a minimum of five years of monitoring.

(8) The CCE shall show all calculations used to arriveat total maximum closure costs.

(9) For all estimates submitted for existing facilities,a NORM screening survey of the facility shall be submitted. NORM screeningsurveys shall be performed using a properly calibrated scintillationmeter with a sodium iodide detector (or equivalent), with the resultsreported in microroentgens per hour. Manufacturer's specificationsand relevant calibration records shall be submitted to the TechnicalPermitting Section for all devices used for NORM detection. All equipment,including piping, pumps, and vessels shall be surveyed. Readings shallbe taken around the perimeter of all pits and to the extent possible,over the pits. The ground surrounding the equipment and pits shallbe surveyed in a systematic grid pattern. At a minimum, the followinginformation shall be reported:

(A) the date of the survey;

(B) the instrument used and the last calibration date;

(C) a background reading;

(D) a site diagram showing where all readings, includingthe background, were taken; and

(E) the readings (in microroentgens per hour).

(10) If fill dirt will be excavated from the propertyto achieve closure, a restrictive covenant shall be submitted withthe CCE. If the restrictive covenant requirements are not provided,the CCE shall assume that fill dirt is purchased from a commercialsupplier. For a restrictive covenant, the following requirements shallbe met whether the operator owns or leases the property:

(A) The operator shall provide a letter from the propertyowner specifically stating that the owner agrees that the material,which is described with specificity as to location, type and amountconsistent with what is in the closure plan, will be available forclosure whether the operator or the state performs closure, and agreeingto a restrictive covenant that reserves use of the material for closure.

(B) The operator shall submit an unsigned draft restrictivecovenant on a Commission prescribed form. Once the Commission approvesthe closure cost and closure plan, the operator will be notified tosubmit a signed original of the restrictive covenant. The Commissionwill sign its portion of the restrictive covenant and return it tothe operator for filing in the real property records of the countywhere the property is located. Once filed in the real property records,the operator shall provide the Commission with a certified copy.

(C) If the facility operator leases the property, theoperator shall provide to the Commission a copy of an amendment oraddendum to the lease between the operator and the surface owner witha clause that specifically reserves use of material and states thatthe reservation shall inure to the Commission (as third party beneficiaryof this provision) if the Commission must initiate actions to closethe facility.

(D) The operator shall submit supporting documentationshowing that the dimensions of the restrictive covenant area can realisticallystore a stockpile in the amount needed. If soil will be excavatedfrom the restrictive covenant area rather than stockpiled, the supportingdocumentation shall show the depth of the excavation is limited towhat can be graded to prevent storm water from ponding in the excavated area.

(11) After the CCE has been calculated, an additional10% of that amount shall be added to the total amount of the CCE tocover contingencies.

(b) A permit application for off-lease commercialrecycling of fluid shall include a detailed plan for closure of thefacility when operations terminate and include the required elementsof §4.276 of this title (relating to Minimum Permit Provisionsfor Closure). The closure plan shall address how the applicantintends to:

(1) remove waste, partially treated waste, and/or recyclableproduct from the facility;

(2) close all storage pits, treatment equipment,and associated piping and other storage or waste processing equipment [areas/cells];

(3) remove berms [dikes] and equipment;

(4) contour and reseed disturbed areas with geographicallyappropriate vegetation including the source of water intended to establishthe reseeded areas of the facility;

(5) sample and analyze soil and groundwater throughoutthe facility; and

(6) plug groundwater monitoring wells.

§4.270.Notice.

(a) Purpose. Applicants are encouragedto engage with their communities early in the commercial recyclingfacility planning process to inform the community of the plan to constructa facility for off-lease commercial recycling of facility and allowthose who may be affected by the proposed activities to express theirconcerns. The purpose of the notice required by this section is toinform notice recipients:

(1) that an applicant has filed a permit applicationwith the Commission, seeking authorization to conduct an activityor operate a facility; and

(2) of the requirements for filing a protest if anaffected person seeks to protest the permit application.

(b) Timing of notice. The applicantshall provide notice after staff determines that an application fora facility for off-lease commercial recycling of fluid is completepursuant to §1.201(b) of this title (relating to Time Periodsfor Processing Applications and Issuing Permits Administratively).The date notice is provided begins a 30-day period in which an affectedperson may file a protest of the application with the Commission.

(c) Notice recipients. The applicantshall provide notice to:

(1) the surface owners of the tract on which the commercialrecycling facility will be located;

(2) the surface owners of tracts located within a distanceof 1/2-mile from the fence line or edge of the facility as shown onthe plat required under §4.265(b) of this title (relating toMinimum Real Property Information) of the facility's fence line orboundary, even if the surface owner's tract is not adjacent to thetract on which the commercial recycling facility is located.

(3) the city clerk or other appropriate city officialif any part of the tract on which the commercial recycling facilitywill be located lies within the municipal boundaries of the city;

(4) the Commission's District Office; and

(5) any other person or class of persons that the Directordetermines should receive notice of an application.

(d) Method and contents of notice.Unless otherwise specified in this subchapter, the applicant shallprovide direct notice to the persons specified in subsection (c) ofthis section as follows.

(1) The applicant shall provide notice by registeredor certified mail.

(2) The notice of the permit application shall consistof a complete copy of the application and any attachments. The copyshall be of the application and attachments after staff determinesthe application is complete pursuant to §1.201(b) of this titlebut before the final review is completed.

(3) The notice shall include a letter that contains:

(A) the name of the applicant;

(B) the date of the notice;

(C) the name of the surface owners of the tract onwhich the proposed commercial recycling facility will be located;

(D) the location of the tract on which the proposedcommercial recycling facility will be located including a legal descriptionof the tract, latitude/longitude coordinates of the proposed facility,county, original survey, abstract number, and the direction and distancefrom the nearest municipality or community;

(E) the types of fluids to be recycled at the commercialrecycling facility;

(F) the recycling method proposed and the proposedend-use of the recycled material;

(G) a statement that an affected person may protestthe application by filing a written protest with the Commission within30 calendar days of the date of the notice;

(H) a statement that a protest shall include the protestant'sname, mailing address, telephone number, and email address;

(I) the address to which protests may be mailed orthe location and instructions for electronic submittal of a protestif the Commission implements an electronic means for filing protests;

(J) the definition of "affected person" pursuant to§4.110 of this title (relating to Definitions); and

(K) the signature of the operator, or representativeof the operator, and the date the letter was signed.

(4) If the Director finds that a person to whom theapplicant was required to give notice of an application has not receivedsuch notice, then the Director shall not take action on the applicationuntil the applicant has made reasonable efforts to give such personnotice of the application and an opportunity to file a protest tothe application with the Commission.

(e) Proof of notice. After the applicantprovides the notice required by this section, the applicant shallsubmit to the Commission proof of delivery of notice which shall consist of:

(1) a copy of the signed and dated letters requiredby subsection (d)(3) of this section;

(2) the registered or certified mail receipts; and

(3) a map showing the property boundaries, surfaceowner names, and parcel numbers of all notified parties.

(f) Protest process. Any statementof protest to an application must be filed with the Commission within30 calendar days from the date of notice or from the last date ofpublication if notice by publication is authorized by the Director.

(1) The Technical Permitting Section shall notify theapplicant if the Commission receives an affected person's timely protest.A timely protest is a written protest date-stamped as received bythe Commission within 30 calendar days of the date notice is provided.

(2) The applicant shall have 30 days from the dateof the Technical Permitting Section's notice of receipt of protestto respond, in writing, by either requesting a hearing or withdrawingthe application. If the applicant fails to timely file a written response,the Technical Permitting Section shall consider the application tohave been withdrawn.

(3) The Technical Permitting Section shall refer allprotested applications to the Hearings Division if a timely protestis received and the applicant requests a hearing.

(4) The Commission shall provide notice of any hearingconvened under this subsection to all affected persons and personswho have requested notice of the hearing.

(5) If the Director has reason to believe that a personentitled to notice of an application has not received notice as requiredby this section, then the Technical Permitting Section shall not takeaction on the application until notice is provided to such person.

(6) The Commission may issue a permit if no timelyprotests from affected persons are received.

[(a) A permit applicant for off-leasecommercial recycling of fluid shall give personal notice and fileproof of such notice in accordance with the following requirements.]

[(1) The applicant shall mail or deliver notice tothe following persons on or after the date the application is filedwith the Commission's headquarters office in Austin:]

[(A) the surface owner or owners of the tract uponwhich 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 thecorporate limits of an incorporated city, town, or village;]

[(C) the surface owners of tracts adjoining the tracton which the proposed facility will be located, unless the boundarywith the adjoining tract is a distance of 1/2-mile or greater fromthe fenceline or edge of the facility as shown on the plat requiredunder §4.265(b) of this title (relating to Minimum Real PropertyInformation); and]

[(D) any affected person or class of persons that thedirector determines should receive notice of a particular application.]

[(2) Personal notice of the permit application shallconsist of:]

[(A) a copy of the application;]

[(B) a statement of the date the applicant filed theapplication with the Commission;]

[(C) a statement that a protest to the applicationshould be filed with the Commission within 15 days of the date ofreceipt and the procedure for making a protest of the applicationto the Commission;]

[(D) a description of the location of the site forwhich the application was made, including the county in which thesite is to be located, the name of the original survey and abstractnumber, and the direction and distance from the nearest municipality;]

[(E) the name of the owner or owners of the propertyon which the facility is to be located;]

[(F) the name of the applicant;]

[(G) the type of fluid or waste to be handled at thefacility; and]

[(H) the recycling method proposed and the proposedend-use of the recyclable product.]

[(3) The applicant shall submit to the Commission proofthat personal notice has been given as required. Proof of notice shallconsist of a copy of each notification letter sent, along with a statementsigned by the applicant that includes the names and addresses of eachperson to whom the notice was sent, and the date that each personwas notified of the application.]

[(b) If the director has reason tobelieve that a person to whom the applicant was required to give noticeof an application has not received such notice, then the directorshall not take action on the application until the applicant has madereasonable efforts to give such person notice of the application andan opportunity to file a protest to the application with the Commission.]

§4.271.General Permit Provisions.

(a) A permit for off-lease commercial recycling offluid issued pursuant to this division shall be valid [issued]for a term of not more than two years. Permits issued pursuant tothis division may be renewed, but are not transferable to anotheroperator without the written approval of the Director [director].

(b) A permit issued pursuant to this division shallrequire that, prior to operating, off-lease commercial recycling offluid comply with the financial security requirements of Texas NaturalResources Code, §91.109, relating to Financial Security for PersonsInvolved in Activities Other than Operation of Wells, as implementedby §3.78 of this title (relating to Fees and Financial Security Requirements).

(c) A permit for off-lease commercial recycling offluid shall include a condition requiring that the permittee notifythe surface owner of the tract upon which recycling will take placeand the [appropriate] Commission District Office [district office] before recycling operations commence on each tract.

§4.272.Minimum Permit Provisions for Siting.

(a) A permit for off-lease commercial recycling offluid may be issued only if the Director [director]or the Commission determines that the facility is to be located inan area where there is no unreasonable risk of pollution or threatto public health or safety. The Director will presume that anapplication meeting the requirements of §4.264(a) of this title(relating to Minimum Siting Information) does not present an unreasonablerisk of pollution or threat to public health or safety with regardto siting, unless extraordinary circ*mstances indicate otherwise.

(b) Off-lease commercial recycling of fluid permittedpursuant to this division is prohibited [and afterthe effective date of this division shall not be located]:

(1) within a 100-year flood plain, in a streambed,or in a sensitive area as defined by §4.110 [§3.91] of this title (relating to Definitions [Cleanupof Soil Contaminated by a Crude Oil Spill]); or

(2) within 300 [150] feet ofsurface water or public, domestic, or irrigation water wells.

(c) Factors that the Commission will consider in assessingpotential risk from off-lease commercial recycling of fluid include:

(1) the volume and characteristics of the oil and gaswaste, partially treated waste and recyclable product to be stored,handled, treated and recycled at the facility;

(2) distance to any surface water body,wet or dry;

(3) depth to and quality of the shallowest groundwater;

(4) distance to the nearest property line or public road;

(5) proximity to coastal natural resources, sensitiveareas as defined by §4.110 [§3.91]of this title, or water supplies, and/or public, domestic, or irrigationwater wells; and

(6) any other factors the Commission deems reasonablynecessary in determining whether or not issuance of the permit willpose an unreasonable risk.

(d) All siting requirements in this section refer toconditions at the time the facility is constructed.

§4.273.Minimum Permit Provisions for Design and Construction.

(a) A permit issued pursuant to this division shallcontain any requirement that the Director [director]or the Commission determines to be reasonably necessary to ensure that:

(1) the design and construction of storage areas, containmentdikes, and processing areas minimize contact of oil and gas wasteand partially recycled waste with the ground surface, and preventpollution of surface and subsurface water;

(2) the pollution of surface and subsurface water fromspills, leachate, and/or discharges from the facility is prevented by:

(A) prohibiting the unauthorized discharge of oil andgas waste and other substances or materials, including contaminated stormwater [storm water] runoff, from the facilityto the land surface at and adjacent to the facility or to surfaceand subsurface water;

(B) requiring that the permittee control spills atthe facility; and

(C) requiring that the permittee make regular inspectionsof the facility; and

(3) the design and construction of the facility allowsfor monitoring for, and detection of, any migration of oil and gaswaste or other substance or material from the facility.

(b) A permit issued for off-lease commercial recyclingof fluid pursuant to this division shall require that the permittee,unless waived by the Technical Permitting Section under §4.273(d)of this title (relating to Minimum Permit Provisions for Operations):

(1) install monitoring wells in accordance with 16Texas Administrative Code, Part 4, Chapter 76, relating to Water WellDrillers and Water Well Pump Installers if required by the TechnicalPermitting Section; and

(2) if required by [submit to]the Technical Permitting Section, submit [Commission'soffice in Austin] a soil boring log and other information foreach well.

(c) The soil boring log and other information requiredin subsection (b) of this section shall:

(1) describe the soils using the Unified Soils ClassificationSystem (equivalent to ASTM D 2487 and 2488);

(2) identify the method of drilling, total depth, andthe 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 referencepoint; and

(5) include a potentiometric map showing static waterlevels and the direction of groundwater flow.

(d) The Commission or the Director [director] may waive any or all of the requirements in subsections (b)and (c) of this section if the permittee demonstrates that an on-siteboring to a minimum depth of 100 feet recovers no water during a 24-hour test.

(e) A permit for off-lease commercial recycling offluid issued pursuant to this division shall require that the permitteenotify the Commission District Office [district office]for the county in which the facility is located prior to commencementof construction, including construction of any berms [dikes], and again upon completion of construction and that the permitteemay commence operations under the permit only after the facility hasbeen inspected by the Commission to ensure that construction of allelements of the facility is consistent with the representations inthe application and the requirements of the permit.

(f) An operator shall not locate materialexcavated during construction:

(1) within 100 feet of a continuously flowing watercourseor significant watercourse;

(2) within 200 feet from a lakebed, sinkhole, stockpond or lake (measured from the ordinary high-water mark), or anyother watercourse;

(3) within 100 feet of a wetland; or

(4) within a 100-year floodplain.

(g) The following requirements applyto signage, fencing, and security.

(1) A sign shall be posted at each entrance to thefacility. The sign shall be readily visible and show the operator'sname, facility name, and permit number in letters and numerals atleast three inches in height.

(2) A sign shall be posted identifying the permit numberof each pit using letters and numerals at least three inches in height.The signs shall clearly state that the fluid within the pit is notpotable or suitable for consumption.

(3) The facility shall maintain security to preventunauthorized access. Security shall be maintained by a 24-hour attendantor a six-foot-high security fence and locked gate when unattended.

(h) Any pit associated with an off-leasecommercial fluid recycling facility permitted pursuant to this divisionafter July 1, 2025, shall comply with the requirements of §4.265(a)of this title (relating to Minimum Design and Construction Information).

§4.274.Minimum Permit Provisions for Operations.

(a) A permit for off-lease commercial recycling offluid issued pursuant to this division shall contain requirementsthe Commission determines to be reasonably necessary to ensure that:

(1) only wastes and other materials authorized by thepermit are received at the facility, including requirements that thepermittee test incoming oil and gas waste and keep records of amountsand sources of incoming wastes; and

(2) the processing operation and resulting recyclableproduct meet the environmental and engineering standards establishedin the permit.

(b) A permit for a facility issued under this divisionmay require the permittee to perform a trial run in accordance withthe following procedure.

(1) The operator [permittee]shall notify the Commission District Office [districtoffice] for the county in which the facility is located priorto commencement of the trial run.

(2) The operator [permittee]shall sample and analyze the partially treated waste that resultsfrom the trial run, and submit to the Director [director]for review a report of the results of the trial run prior to commencing operations.

(3) The Director [director] shallapprove the trial run if the report demonstrates that the recyclableproduct meets or exceeds the environmental and engineering standardsestablished in the permit.

(4) The operator [permittee]shall not use the recyclable product until the Director [director] approves the trial run report.

(c) A permit issued pursuant to this division shallinclude any requirements, including limits on the volumes of oil andgas waste, partially treated waste, and recyclable product storedat the facility, that the Commission determines to be reasonably necessaryto ensure that the permittee does not speculatively accumulate oiland gas waste, partially treated waste, and/or recyclable productat the facility without actually processing the oil and gas wasteand putting the recyclable product to legitimate commercial use.

(d) A permit issued pursuant to this division shallinclude a requirement that the operator of the facility comply withthe requirements of §3.56 of this title (relating to ScrubberOil and Skim Hydrocarbons), if applicable.

(e) Oil shall not accumulate on topof the produced or treated water stored in the tanks and pits. Anyoil on top of the liquids shall be skimmed off and handled in accordancewith Commission rules. Any recovered oil shall be recorded and filedwith the Commission on the appropriate forms or through an electronicfiling system when implemented by the Commission.

§4.275.Minimum Permit Provisions for Monitoring.

(a) Operational monitoring.

(1) The operator shall inspect the pits, tanks, andprocessing equipment weekly. The operator shall maintain a currentlog of such inspections and make the log available for review by theCommission upon request.

(2) The leak detection system shall be monitored ona weekly basis to determine if the primary liner has failed. The primaryliner has failed if the volume of water passing through the primaryliner exceeds the action leakage rate, as calculated using acceptedprocedures, or 1,000 gallons per acre per day, whichever is smaller.

(3) The operator of the pit shall keep records to demonstratecompliance with the pit liner integrity requirements and shall makethe records available to the Commission upon request.

(4) If the primary liner is compromised below the fluidlevel in the pit, the operator shall remove all fluid above the damageor leak within 48 hours of discovery, notify the District Office,and repair the damage or replace the primary liner with a liner meetingthe same levels of protection, at a minimum. The pit shall not bereturned to service until the liner has been repaired or replacedand inspected by the District Office.

(5) If the pit's primary liner is compromised abovethe fluid level in the pit, the operator shall repair the damage orinitiate replacement of the primary liner, with a liner meeting thesame levels of protection, at a minimum, within 48 hours of discoveryor seek an extension of time from the District Office.

(6) If groundwater monitoring wells are required, nowaste shall be received at the facility until all permitted groundwatermonitoring wells have been completed, developed, and sampled. Thedocumentation of these activities shall be provided to the Commissionwithin 30 days after installation of groundwater monitoring wells.Groundwater samples will be analyzed for the parameters in Figure 1.

Figure: 16 TAC §4.275(a)(6) (.pdf)

(7) If an operator has determined the background analyteconcentrations in soil and/or groundwater, those site-specific backgroundlevels shall be signed and sealed by a professional geoscientist orprofessional engineer licensed in Texas and, if accepted by the Director,may be included in the permit as appropriate monitoring standards.

(b) Recyclable product monitoring.

(1) [(a)] A permit for off-leasecommercial recycling fluid issued pursuant to this division shallinclude monitoring requirements the Director [director]or Commission determines to be reasonably necessary to ensure thatthe recyclable product meets the environmental and engineering standardsestablished by the Director [director] or theCommission and included in the permit.

(2) [(b)] A permit under thisdivision for use of the treated fluid for any purpose other than re-useas makeup water for hydraulic fracturing fluids to be used in otherwells may require laboratory testing. A permit that requires laboratorytesting shall require that the permittee use an independent thirdparty laboratory to analyze a minimum standard volume of partiallytreated waste for parameters established in this division or in apermit issued by the Commission.

(c) Quarterly reporting. A permitissued under this division shall include provisions for filing quarterlyreports documenting the fluid volumes into and out of the system ina form and manner prescribed by the Director.

§4.276.Minimum Permit Provisions for Closure.

(a) Notifications.

(1) The operator shall notify the Commission within60 days after the cessation of operations.

(2) The operator shall notify the Commission 45 daysbefore the commencement of closure activities.

(b) Time requirements for closure.

(1) Once the operations have ceased, the operator shallcomplete closure of the facility within one year.

(2) The Commission may grant an extension to closethe facility not to exceed one additional year, provided all fluidhas been removed and the operator attests to its plans for future operation.

(3) If the operator intends to use the pit for a purposeother than recycling, then the operator shall have that use approvedor permitted by the Commission in accordance with the appropriate rules.

(c) Fluid and waste removal.

(1) The operator shall remove all fluids from the treatmentequipment and tanks within 60 days of the date the operations cease.The contents of all tanks, vessels, or other containers shall be disposedof in an authorized manner. All equipment shall be removed and salvaged,if possible, or disposed of in an authorized manner.

(2) The operator shall remove all fluids from pitswithin six months of the date operations cease.

(3) All wastes, including the pit liners, shall beremoved and disposed of in an authorized manner.

(4) Any concrete areas and access roads shall be cleanedand demolished, and the concrete rubble and wash water shall be disposedof in an authorized manner.

(5) All visibly contaminated soils shall be excavatedand removed. The contaminated soil shall be disposed of in an authorized manner.

(d) Confirmation sampling and analysis.

(1) After the removal of wastes and visibly contaminatedsoils, grab samples shall be collected from around and underneatheach pit, processing area, and waste storage, and the samples shallbe analyzed for the parameters listed in Figure 1. The Commissionmay require samples from areas underneath concrete.

Figure: 16 TAC §4.276(d)(1) (.pdf)

(2) The minimum number of grab samples required isas follows:

(A) for pits, five samples per acre of surface area,with a minimum of four samples; and

(B) for areas containing treatment equipment and storagetanks, five samples per acre of surface area.

(3) Any soil sample that exceeds the parameter limitationsspecified in Figure 1 in this subsection or in site-specific limitationsestablished in the permit is considered waste and shall be disposedof at an authorized disposal facility.

(4) If any soil samples exceed the parameter limitationsspecified in Figure 1 in this subsection or in site-specific limitationsestablished in the permit, the operator shall prepare and submit aplan for confirmation, delineation, and remediation, if necessary.

(e) The facility shall be restoredto a safe and stable condition that blends with the surrounding land.Topsoil and subsoils shall be replaced and contoured so as to achieveerosion control, long-term stability, and preservation of surfacewater flow patterns at locations where any surface water entered orexited the property boundary prior to waste management or recyclingactivities at the facility. Final surface grading of the pits andthe storage tank battery areas shall be accomplished in such a mannerthat water will not collect at these former locations. The site shallbe re-vegetated as appropriate for the geographic region and includea planned water source to establish the re-vegetated areas.

(f) Within 60 days of closure completion,the operator shall submit a closure report, including required attachments,to document all closure activities including sampling results andthe details on any backfilling, capping, or covering, where applicable.The closure report shall certify that all information in the reportand attachments is correct, and that the operator has complied withall applicable closure requirements and conditions specified in Commissionrules or directives.

(g) The operator shall notify theCommission when closure and re-vegetation are complete. The Commissionshall not release financial security to the operator until all post-closureactivities are approved by the Commission.

(h) The Commission will inspect thesite and verify compliance with closure requirements.

[A permit for off-lease commercial recyclingfluid issued pursuant to this division shall include closure standardsand any requirement reasonably necessary to ensure that the permitteecan meet the standards. The Commission shall determine the closurestandards for a particular facility based on the type of materialsstored, handled and treated at the facility, and the design and constructionof the facility. A permit may include requirements for removal ofall waste, partially treated waste, and recyclable product; removalof dikes, storage, liners, and equipment; recontouring of the land;collection and analyzing of soil and groundwater samples from thefacility property; and post-closure monitoring.]

§4.277.Permit Renewal.

Before the expiration of a permit issued pursuant to this division,the permittee may submit an application to renew the permit ona Commission prescribed form. The application for renewal ofan existing permit issued pursuant to this division shall be submittedin writing a minimum of 60 days before the expiration date of thepermit and shall include the permittee's permit number. The applicationshall comply with the requirements of §4.262 of this title (relatingto General Permit Application Requirements for Off-Lease CommercialRecycling of Fluid), and the notice requirements of §4.270 ofthis title (relating to Notice). The Director [director]may require the applicant to comply with any of the requirements of§§4.263 - 4.269 of this title (relating to Minimum Engineeringand Geologic Information; Minimum Siting Information; Minimum RealProperty Information; Minimum Design and Construction Information;Minimum Operating Information; Minimum Monitoring Information; andMinimum Closure Information), depending on any changes made or plannedto the construction, operation, monitoring, and/or closure of the facility.

The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.

Filed with the Office of the Secretary of State on August 16, 2024.

TRD-202403767

Haley Cochran

Assistant General Counsel, Office of General Counsel

Railroad Commission of Texas

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 475-1295

16 TAC §§4.278 - 4.280, 4.282 - 4.293

Statutory authority: Texas Natural Resources Code,§§81.051, 81.052, 81.0351, 85.042, 85.202, 86.042; TexasNatural Resources Code §91.101 and §91.1017; Texas NaturalResources Code §122.004; Texas Natural Resources Code §123.0015;and Texas Water Code Chapter 29.

Cross reference to statute: Texas Natural Resources Code, Chapters81, 85, 86, 91, 122, and 123; and Texas Water Code Chapter 29.

§4.278.General Permit Application Requirementsfor a Stationary Commercial Fluid Recycling Facility.

(a) An application for a permit for a stationary commercialfluid recycling facility shall be filed with the Technical PermittingSection on a Commission prescribed form, and on the same day the [Commission's headquarters office in Austin. The] applicant shallmail or deliver a copy of the application to the Commission DistrictOffice for the county in which the facility is to be located.The Technical Permitting Section shall not administratively beginfinal review of an application unless the Director has determinedthat the application is complete in accordance with §1.201(b)of this title (relating to Time Periods for Processing Applicationsand Issuing Permits Administratively). [on the same daythe original application is mailed or delivered to the Commission'sheadquarters office in Austin. A permit application shall be consideredfiled with the Commission on the date it is received by the Commission'sheadquarters office in Austin.]

(b) The permit application shall contain the applicant'sname; organizational report number; physical office address and,if different, mailing address; facility address; telephone number;[and facsimile transmission (fax) number;] and the nameof a contact person. [A permit for a stationary commercial recyclingfacility also shall contain the facility address.]

(c) The permit application shall contain informationaddressing each applicable application requirement of this divisionand all information necessary to initiate the final review by the Director [director]. The Director [director]shall neither administratively approve an application nor refer anapplication to hearing unless the Director [director]has determined that the application is administratively complete.If the Director [director] determines that anapplication is incomplete, the Director [director]shall notify the applicant in writing and shall describe the specificinformation required to complete the application.

(1) An applicant may make no morethan two supplemental filings to complete an application.

(2) After the second supplementalsubmission, if the application is complete, the Director shall acton the application. The Director's action on the application shall be:

(A) approval if the application meets the requirementsof this division and the application has not been protested;

(B) referral to the Hearings Division if the applicationmeets the requirements of this division and the application has beenprotested; or

(C) denial if the application does not meet the requirementsof this division.

(3) If after the second supplementalsubmission the application is still incomplete, the Director shalladministratively deny the application. An application that was administrativelydenied may be refiled with the Commission on a Commission prescribedform and shall contain all information necessary to initiate the finalreview by the Director.

(4) The Director shall notify theapplicant in writing of the administrative decision and, in the caseof an administrative denial, the applicant's right to request a hearingon the application as it stands at the time of administrative denial.

(d) The Director shall approve ordeny a complete application for a permit issued under this divisionthat does not include a request for an exception to the requirementsof this division not later than the 90th day after the date the completeapplication was received by the Commission, unless a protest is filedwith the Commission, in which case the Commission may extend the amountof time to approve or deny the application in order to allow for apublic hearing on the application pursuant to Chapter 1 of this title(relating to Practice and Procedure). If the Director does not approveor deny the application before that date, the permit application isconsidered approved and the applicant may operate under the termsspecified in the application for a period of one year.

(e) [(d)] The permit applicationshall contain [an original signature in ink, the date of signing,and] the following certification signed and dated by anauthorized representative of the applicant: "I certify thatI am authorized to make this application, that this application wasprepared by me or under my supervision and direction, and that thedata and facts stated herein are true, correct, and complete to thebest of my knowledge."

(f) A person shall file electronicallyany form or application for which the Commission has provided an electronicversion or an electronic filing system or by hard copy if no digitalformat acceptable to the Commission has been enacted. The operatoror person shall comply with all requirements, including but not limitedto fees and security procedures, for electronic filing.

§4.279.Minimum Engineering and Geologic Information.

(a) A [The director may require a]permit applicant for a stationary commercial fluid recycling facility shall include [to provide the Commission with] engineering,geological, or other information [which the director deems] necessary to:

(1) describe the subsurface geologyunderlying the facility to a depth of at least 100 feet, includingthe identification of the soil and subsoil by typical name and descriptionof the approximate proportion of grain sizes, texture, consistency,moisture condition, permeability, and other pertinent characteristics;

(2) describe the subsurface hydrogeologyunderlying the facility to a depth of at least 100 feet, includingan assessment of the presence and characteristics of permeable andimpermeable strata; and

(3) evaluate the geology, hydrogeology,and proposed engineering design to show that issuance of thepermit will not result in the waste of oil, gas, or geothermal resources,the pollution of surface or subsurface water, or a threat to the publichealth or safety.

(b) Information for engineering andgeological site characterization may be obtained from available informationor from a site investigation including installation of soil borings,soil and groundwater sampling, and soil and groundwater analysis.Site-specific investigation information is considered more reliableand, therefore, will have a greater effect on the permit determination.

(c) If an operator intends to establish and later rely on actual background concentrations of contaminants in environmental media, then the operator shall collect site-specific soil and groundwater samples for analysis and include these findings with the application.

(d) [(b)] Engineering and geologic work products prepared for the application [by the applicant] shall be sealed by a professional [registered ] engineer or geoscientist licensed in Texas [geologist, respectively,] as required by the Texas Occupations Code, Chapters 1001 and 1002, respectively.

§4.280.Minimum Siting Information.

(a) A pit permitted under this divisionshall not be located:

(1) where there has been observable groundwater within100 feet of the ground surface unless the pit design includes a geosyntheticclay liner (GCL);

(2) within a sensitive area as defined by §4.110of this title (relating to Definitions);

(3) within 300 feet of surface water, domestic supplywells, or irrigation water wells;

(4) within 500 feet of any public water system wellsor intakes.

(5) within 1,000 feet of a permanent residence, school,hospital, institution, or church in existence at the time of the initial permitting;

(6) within 500 feet of a wetland; or

(7) within a 100-year floodplain.

(b) A permit application for a stationarycommercial fluid recycling facility shall include:

(1) a description of the proposed facility site andsurrounding area;

(2) the name, physical address and, if different, mailingaddress, and[;] telephone number[; andfacsimile transmission (fax) number] of every owner of the tracton 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;

(3) the depth to the shallowest subsurface water andthe direction of groundwater flow at the proposed site, and the sourceof this information;

(4) the average annual precipitation and evaporationat the proposed site and the source of this information;

(5) the identification of the soil and subsoil by typicalname and description of the approximate proportion of grain sizes,texture, consistency, moisture condition, and other pertinent characteristics,and the source of this information;

(6) a copy of a county highway map with a scale andnorth arrow showing the location of the proposed facility; and

(7) a United States Geological Survey(USGS) topographic map or an equivalent topographic map which showsthe facility including the items listed in subparagraphs (A) - (K)of this paragraph and any other pertinent information regarding theregulated facility and associated activities. Maps shall be on a scaleof not less than one inch equals 2,000 feet. The map shall show the following:

(A) a scale and north arrow showing the tract sizein square feet or acres, the section/survey lines, and the surveyname and abstract number;

(B) a clear outline of the proposed facility's boundaries;

(C) the location of any pipelines within 500 feet ofthe facility;

(D) the distance from the facility's outermost perimeterboundary to public and private water wells, residences, schools, churches,and hospitals that are within 500 feet of the boundary;

(E) for disposal only, the location of all residentialand commercial buildings within a one-mile radius of the facility boundary;

(F) all water wells within a one-mile radius of thefacility boundary;

(G) the location of the 100-year flood plain and thesource of the flood plain information;

(H) surface water bodies within the map area;

(I) the location of any major and minor aquifers withinthe map area;

(J) the boundaries of any prohibited areas definedunder §4.153 of this title (relating to Commercial Disposal Pits); and

(K) any other information requested by the Directorreasonably related to the prevention of pollution.

[(7) a complete, original 7 1/2 minuteUnited States Geological Survey topographic quadrangle map clearlyindicating the outline of the proposed facility; the location of anypipelines that underlay the facility but are not included on the topographicmap; and the location of the 100-year flood plain and the source ofthe flood plain information.]

(c) Factors that the Commission willconsider in assessing potential risk from stationary commercial fluidrecycling include:

(1) the volume and characteristics of the oil and gaswaste, partially treated waste and recyclable product to be stored,handled, treated and recycled at the facility;

(2) proximity to coastal natural resources or sensitiveareas as defined by §4.110 of this title; and

(3) any other factors the Commission deems reasonablynecessary in determining whether or not issuance of the permit willpose an unreasonable risk.

(d) All siting requirements in thissection for stationary commercial fluid recycling refer to conditionsat the time the equipment and tanks used in the recycling are placed.

§4.282.Minimum Design and Construction Information.

(a) A pit permitted under this divisionshall be designed, built, and maintained as follows.

(1) The pit shall contain the material placed in thepit and prevent releases, overflow, or failure.

(2) The maximum depth from the natural surface elevationshall not exceed 22 feet.

(3) The foundation and interior slopes shall consistof a firm, unyielding base, smooth and free of rocks, debris, sharpedges, or irregularities to prevent the liner's rupture or tear. Allinterior and exterior surfaces of the pit shall be smooth drum rolled.

(4) The pit sides and berms shall have interior andexterior grades no steeper than three horizontal feet to one verticalfoot (3H:1V). The top of the berm shall be wide enough to provideadequate room for inspection, maintenance, and any other structuralor construction requirements.

(A) Fill for berms shall be placed and compacted incontinuous lifts with a maximum loose lift thickness of 10 inches,compacted to eight inches.

(B) Berm fill shall be compacted to at least 95% ofmaximum dry density determined by the Standard Proctor (ASTM D698)and at moisture content within +2% to -2% of optimum moisture contentas determined by a standard proctor soil test on samples from thesource area. One nuclear density test shall be conducted for each2,500 cubic yards, and the applicant shall provide compaction testingresults upon completion.

(5) Both primary and secondary liners in a pit shallbe geomembrane liners composed of ASTM GRI-13 compliant materialsand be impervious, synthetic material that is resistant to ultravioletlight, petroleum hydrocarbons, salts, and acidic and alkaline solutions.Each pit shall incorporate, at a minimum, a liner system as follows:

(A) The primary liner shall be constructed with a minimum60-mil high density polyethylene (HDPE) for any pit under this subsectionpermitted after July 1, 2025.

(B) A leak detection system shall be placed betweenthe primary and secondary geomembrane liners that shall consist of200-mil biplanar geonet or geo-composite equivalent. The leak detectionsystem shall consist of a properly designed drainage and collectionand removal system placed above the secondary geomembrane liner indepressions and sloped to facilitate the earliest possible leak detection.The leak detection system shall be designed with the capability ofremoving a minimum of 1,000 gallons of leachate per acre per day oran alternative action leakage rate shall be calculated.

(C) The secondary liner shall be constructed with aminimum 40-mil HDPE for any pit under this subsection permitted afterJuly 1, 2025. If the depth to groundwater is less than 100 feet belowthe ground surface, the secondary liner shall include a geosyntheticclay liner.

(D) A geotextile (felt) liner shall be placed underthe secondary liner and in contact with the prepared ground surface.

(6) The edges of all liners shall be anchored in thebottom of a compacted earth-filled trench that is at least 24 inchesdeep and shall be performed in accordance with the manufacturer's instructions.

(7) Field seams in geosynthetic material shall be performedin accordance with the manufacturer's instructions and include thefollowing considerations:

(A) Field seams in geosynthetic material shall be minimizedand oriented perpendicular to the slope of the berm, not parallel.

(B) Prior to field seaming, the operator shall overlapliners a minimum of four to six inches. The operator shall minimizethe number of field seams and corners and irregularly shaped areas.There shall be no horizontal seams within five feet of the slope's toe.

(C) Qualified personnel shall perform field seam weldingand testing. Documented quality assurance/quality control testingreports shall be maintained for the life of the liner.

(8) At a point of discharge into or suction from thepit, the operator shall ensure that the liner is protected from excessivehydrostatic force or mechanical damage.

(9) All piping and equipment that is in contact withthe liner shall be secured to prevent liner wear and damage.

(10) There shall be no penetrations of the liner system.

(11) The pit shall be designed to prevent run-on ofany non-contact stormwater, precipitation, or surface water. The pitshall be surrounded by a berm, ditch, or other diversion to preventrun-on of any non-contact stormwater, precipitation, or surface water.

(12) The pit shall be designed to operate with a minimumtwo feet of freeboard plus the capacity to contain the volume of precipitationfrom a 25-year, 24-hour rainfall event.

(b) Tanks and treatment equipmentshall be located within a secondary containment system.

(c) [(a)] A permit applicationfor a stationary commercial fluid recycling facility shall includethe layout and design of the facility by including a plat drawn toscale with north arrow to top of the map showing the location andinformation on the design and size of all receiving, processing, andstorage areas and all equipment, tanks, silos, monitor wells, dikes,fences, and access roads.

(d) [(b)] A permit applicationfor a commercial fluid recycling facility also shall include:

(1) a description of the type and thickness of liners(e.g., fiberglass, steel concrete), if any, for all tanks, silos,pits, and storage areas/cells;

(2) for storage areas where tanks and/or liners arenot used, credible engineering and/or geologic information demonstratingthat tanks or liners are not necessary for the protection of surfaceand subsurface water;

(3) a map view and two perpendicular cross-sectionalviews of pits and/or storage areas/cells to be constructed, showingthe bottom, sides, and berms [dikes], showingthe dimensions of each;

(4) a plan to control and manage stormwater [storm water] runoff and to retain incoming wastes during wetweather, including the location and dimensions of dikes and/or storagebasins that would collect, at a minimum, stormwater [stormwater] from the facility during a 25-year, 24-hour [maximum]rainfall event, and all calculations made to determine the requiredcapacity and design; and

(5) a plan for the installation of monitoring wellsat the facility.

§4.283.Minimum Operating Information.

A permit application for a stationary commercial fluid recyclingfacility shall include the following operating information:

(1) the estimated maximum volume of untreated oil andgas waste and partially treated oil and gas waste to be stored atthe facility;

(2) the estimated maximum volume and time that therecyclable 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 typesof oil and gas wastes (e.g., hydraulic fracturingflowback fluid and/or produced water) to be accepted at thefacility for treatment and recycling; and

(B) provides for testing of wastes to be processedto ensure that only oil and gas waste authorized by this divisionor the permit will be received at the facility;

(5) plans for keeping records of the source and volumeof wastes accepted for recycling in accordance with the permit, includingmaintenance of records of the source of waste received by well number,API number, lease or facility name, lease number and/or gas identificationnumber, county, and Commission district;

(6) a general description of the treatment processto be employed; a flow diagram showing the process and identifyingall equipment and chemicals or additives to be used in the process;and the [Material] Safety Data Sheets (SDS) forany chemical or additive;

(7) a description of any testing to be performed todemonstrate that the proposed processing will result in a recyclableproduct that meets the health, safety, and environmental standardsfor the proposed use; and

(8) an estimate of the duration of operation of theproposed facility.

§4.284,Minimum Monitoring Information.

A permit application for a stationary commercial fluid recyclingfacility shall include:

(1) a sampling plan for the partially treated wasteto ensure compliance with permit conditions and reuse requirements;

(2) a plan for monitoring groundwater based onthe subsurface geology and hydrogeology, which may include the installationand sampling of [any] monitoring wells[at a commercial fluid recycling facility as required by thepermit and this division]; and

(3) a plan to verify that fluid oil and gas wastesare confined to the facility pits, tanks, and processing areas, and a schedule for conducting periodic inspections, including plansto inspect pits and liner systems, equipment, processing,and other waste storage areas.

§4.285.Minimum Closure Information.

(a) A permit application for a stationarycommercial fluid recycling facility shall include a closure cost estimate(CCE) sealed by a professional engineer licensed in Texas.

(1) The CCE shall show all assumptions and calculationsused to develop the estimate. The following assumptions are required:

(A) The facility is in compliance with permit conditions.

(B) The facility will be closed according to the permitor approved closure plan, under which collecting pits shall be dewatered,emptied and demolished prior to backfilling; all remaining waste willbe disposed of at an authorized facility; and the facility will berestored to its native state unless otherwise authorized by the permit.

(C) None of the operator's equipment or facilitiesthat may have otherwise been available at the time of closure (e.g.,disposal wells, land treatment facilities, trucks, bulldozers, andemployees) are available to assist in the closure.

(D) The facility is at maximum capacity. All tanksand pits are full of waste.

(E) Storage tanks and pits contain basic sediment andwater in normal operating proportions, with a minimum volume of atleast 10% basic sediment.

(2) The CCE shall not assess a salvage value for anymaterial or equipment at the facility.

(3) The CCE shall include costs for sampling and analysisof soil for the areas around each waste management unit, includingtank batteries, pads, and all former pits unless closure of an individualpit was previously approved by the Technical Permitting Section.

(4) The CCE shall show unit costs for all material,equipment, services, and labor needed to close the facility. Unitsand fees used shall be appropriate for the type of waste materialto be disposed. For example, disposal units for saltwater shall bereported in oil barrels rather than gallons. The CCE shall be specificand shall state the source or basis for the specific unit cost, includingthe following:

(A) the permitted waste hauler to be used and the hauler'smileage rate;

(B) the distance that waste will be transported for disposal;

(C) the name of each facility where waste will be takenand the disposal costs for that facility;

(D) the source of any material being brought to thefacility, such as clean fill material;

(E) calculations for earth-moving equipment time andcost needed to move the fill dirt if fill dirt will be taken fromthe property;

(F) the total labor costs, including the titles andbilling rates for personnel; and

(G) the quantity of each unit cost item and how thetotal quantity was determined (for example, cubic yards of materialdivided by size of load equals total number of loads).

(5) The CCE shall include maps and illustrations suchas facility plans and photographs that show the current conditionof the facility, and/or the condition of the facility upon reachingmaximum permit conditions.

(6) For facilities with groundwater monitoring wells,the CCE shall include costs to plug and abandon the monitoring wells.

(7) For facilities that will require post-closure monitoring,the CCE shall include costs for a minimum of five years of monitoring.

(8) The CCE shall show all calculations used to arriveat total maximum closure costs.

(9) For all estimates submitted for existing facilities,a NORM screening survey of the facility shall be submitted. NORM screeningsurveys shall be performed using a properly calibrated scintillationmeter with a sodium iodide detector (or equivalent), with the resultsreported in microroentgens per hour. Manufacturer's specificationsand relevant calibration records shall be submitted to the TechnicalPermitting Section for all devices used for NORM detection. All equipment,including piping, pumps, and vessels shall be surveyed. Readings shallbe taken around the perimeter of all pits and to the extent possible,over the pits. The ground surrounding the equipment and pits shallbe surveyed in a systematic grid pattern. At a minimum, the followinginformation shall be reported:

(A) the date of the survey;

(B) the instrument used and the last calibration date;

(C) a background reading;

(D) a site diagram showing where all readings, includingthe background, were taken; and

(E) the readings (in microroentgens per hour).

(10) If fill dirt will be excavated from the propertyto achieve closure, a restrictive covenant shall be submitted withthe CCE. If the restrictive covenant requirements are not provided,the CCE shall assume that fill dirt is purchased from a commercialsupplier. For a restrictive covenant, the following requirements shallbe met whether the operator owns or leases the property:

(A) The operator shall provide a letter from the propertyowner specifically stating that the owner agrees that the material,which is described with specificity as to location, type and amountconsistent with what is in the closure plan, will be available forclosure whether the operator or the state performs closure, and agreeingto a restrictive covenant that reserves use of the material for closure.

(B) The operator shall submit an unsigned draft restrictivecovenant on a Commission prescribed form. Once the Commission approvesthe closure cost and closure plan, the operator will be notified tosubmit a signed original of the restrictive covenant. The Commissionwill sign its portion of the restrictive covenant and return it tothe operator for filing in the real property records of the countywhere the property is located. Once filed in the real property records,the operator shall provide the Commission with a certified copy.

(C) If the facility operator leases the property, theoperator shall provide to the Commission a copy of an amendment oraddendum to the lease between the operator and the surface owner witha clause that specifically reserves use of material and states thatthe reservation shall inure to the Commission (as third party beneficiaryof this provision) if the Commission must initiate actions to closethe facility.

(D) The operator shall submit supporting documentationshowing that the dimensions of the restrictive covenant area can realisticallystore a stockpile in the amount needed. If soil will be excavatedfrom the restrictive covenant area rather than stockpiled, the supportingdocumentation shall show the depth of the excavation is limited towhat can be graded to prevent storm water from ponding in the excavated area.

(11) After the CCE has been calculated, an additional10% of that amount shall be added to the total amount of the CCE tocover contingencies.

(b) [(a)] A permit applicationfor a stationary commercial fluid recycling facility shall includea detailed plan for closure of the facility when operations terminate and include the required elements of §4.292 of this title (relatingto Minimum Permit Provisions for Closure). The closure planshall address how the applicant intends to:

(1) remove waste, partially treated waste, and/or recyclableproduct from the facility;

(2) close all pits, treatment equipment, and associatedpiping and other storage or waste processing equipment [storage areas/cells];

(3) remove berms and equipment; [dikes; and]

(4) contour and reseed disturbed areas with geographicallyappropriate vegetation including the source of water intended to establishthe reseeded areas of the facility;[.]

[(b)] [A permit application for a stationarycommercial fluid recycling facility also shall include in the closureplan information addressing how the applicant intends to:]

(5) [(1)] sample and analyzesoil and groundwater throughout the facility; and

(6) [(2)] plug groundwater monitoring wells.

§4.286.Notice.

(a) Purpose. Applicants are encouragedto engage with their communities early in the commercial recyclingfacility planning process to inform the community of the plan to constructstationary commercial fluid recycling facility and allow those whomay be affected by the proposed activities to express their concerns.The purpose of the notice required by this section is to inform notice recipients:

(1) that an applicant has filed a permit applicationwith the Commission, seeking authorization to conduct an activityor operate a facility; and

(2) of the requirements for filing a protest if anaffected person seeks to protest the permit application.

(b) Timing of notice. The applicantshall provide notice after staff determines that an application stationarycommercial fluid recycling facility is complete pursuant to §1.201(b)of this title (relating to Time Periods for Processing Applicationsand Issuing Permits Administratively). The date notice is providedbegins a 30-day period in which an affected person may file a protestof the application with the Commission.

(c) Notice recipients. The applicantshall provide notice to:

(1) the surface owners of the tract on which the commercialrecycling facility will be located;

(2) the surface owners of tracts located within a distanceof 1/2-mile from the fence line or edge of the facility as shown onthe plat required under §4.249(b) of this title (relating toMinimum Real Property Information) of the facility's fence line orboundary, even if the surface owner's tract is not adjacent to thetract on which the commercial recycling facility is located;

(3) the city clerk or other appropriate city officialif any part of the tract on which the commercial recycling facilitywill be located lies within the municipal boundaries of the city;

(4) the Commission's District Office; and

(5) any other person or class of persons that the Directordetermines should receive notice of an application.

(d) Method and contents of notice.Unless otherwise specified in this subchapter, the applicant shallprovide direct notice to the persons specified in subsection (c) ofthis section as follows.

(1) The applicant shall provide notice by registeredor certified mail.

(2) The notice of the permit application shall consistof a complete copy of the application and any attachments. The copyshall be of the application and attachments after staff determinesthe application is complete pursuant to §1.201(b) of this titlebut before the final review is completed.

(3) The notice shall include a letter that contains:

(A) the name of the applicant;

(B) the date of the notice;

(C) the name of the surface owners of the tract onwhich the proposed commercial recycling facility will be located;

(D) the location of the tract on which the proposedcommercial recycling facility will be located including a legal descriptionof the tract, latitude/longitude coordinates of the proposed facility,county, original survey, abstract number, and the direction and distancefrom the nearest municipality or community;

(E) the types of fluids to be recycled at the commercialrecycling facility;

(F) the recycling method proposed and the proposedend-use of the recycled material;

(G) a statement that an affected person may protestthe application by filing a written protest with the Commission within30 calendar days of the date of the notice;

(H) a statement that a protest shall include the protestant'sname, mailing address, telephone number, and email address;

(I) the address to which protests may be mailed orthe location and instructions for electronic submittal of a protestif the Commission implements an electronic means for filing protests;

(J) the definition of "affected person" pursuant to§4.110 of this title (relating to Definitions); and

(K) the signature of the operator, or representativeof the operator, and the date the letter was signed.

(4) If the Director finds that a person to whom theapplicant was required to give notice of an application has not receivedsuch notice, then the Director shall not take action on the applicationuntil the applicant has made reasonable efforts to give such personnotice of the application and an opportunity to file a protest tothe application with the Commission.

(e) Proof of notice. After the applicantprovides the notice required by this section, the applicant shallsubmit to the Commission proof of delivery of notice which shall consist of:

(1) a copy of the signed and dated letters requiredby subsection (d)(3) of this section;

(2) the registered or certified mail receipts; and

(3) a map showing the property boundaries, surfaceowner names, and parcel numbers of all notified parties.

(f) Notice by publication. In additionto the notice required by subsection (d) of this section, an applicantfor a stationary commercial fluid recycling facility permit shallalso provide notice by publication.

(g) Newspaper of general circulation.The permit applicant shall publish notice of the application in anewspaper of general circulation in the county in which the proposedfacility will be located at least once each week for two consecutiveweeks, with the first publication occurring not earlier than the datestaff determines that an application is complete pursuant to §1.201(b)of this title (relating to Time Periods for Processing Applicationsand Issuing Permits Administratively) but before the final reviewis completed.

(h) Contents of published notice.The published notice shall:

(1) be entitled "Notice of Application for CommercialFluid Recycling Facility" if the proposed facility is a commercial facility;

(2) provide the date the applicant filed the applicationwith the Commission;

(3) identify the name of the applicant;

(4) provide the location of the tract on which theproposed facility will be located including the legal descriptionof the property, latitude/longitude coordinates of the proposed facility,county, name of the original survey and abstract number, and locationand distance in relation to the nearest municipality or community;

(5) identify the owner or owners of the property onwhich the proposed facility will be located;

(6) identify the type of fluid waste to be managedat the facility;

(7) identify the proposed recycling method;

(8) state that affected persons may protest the applicationby filing a protest with the Commission within 30 calendar days ofthe last date of publication;

(9) include the definition of "affected person" pursuantto §4.110 of this title (relating to Definitions); and

(10) provide the address to which protests shall bemailed. If the Commission implements an electronic means for filingprotests, then the location to instructions for electronic submittalshall be included.

(i) Proof of notice. The applicantshall submit to the Commission proof that notice was published asrequired by this section. Proof of publication shall consist of:

(1) an affidavit from the newspaper publisher thatstates the dates on which the notice was published and the countyor counties in which the newspaper is of general circulation; and

(2) the tear sheets for each published notice.

(j) Protest process. Any statementof protest to an application must be filed with the Commission within30 calendar days from the date of notice or from the last date ofpublication if notice by publication is authorized by the Director.

(1) The Technical Permitting Section shall notify theapplicant if the Commission receives an affected person's timely protest.A timely protest is a written protest date-stamped as received bythe Commission within 30 calendar days of the date notice is providedor within 30 calendar days of the last date of publication, whicheveris later.

(2) The applicant shall have 30 days from the dateof the Technical Permitting Section's notice of receipt of protestto respond, in writing, by either requesting a hearing or withdrawingthe application. If the applicant fails to timely file a written response,the Technical Permitting Section shall consider the application tohave been withdrawn.

(3) The Technical Permitting Section shall refer allprotested applications to the Hearings Division if a timely protestis received and the applicant requests a hearing.

(4) The Commission shall provide notice of any hearingconvened under this subsection to all affected persons and personswho have requested notice of the hearing.

(5) If the Director has reason to believe that a personentitled to notice of an application has not received notice as requiredby this section, then the Technical Permitting Section shall not takeaction on the application until notice is provided to such person.

(6) The Commission may issue a permit if no timelyprotests from affected persons are received.

(k) Director review. If the Directorhas reason to believe that a person to whom the applicant was requiredto give notice of an application has not received such notice, thenthe Director shall not take action on the application until the applicanthas made reasonable efforts to give such person notice of the applicationand an opportunity to file a protest to the application with the Commission.

[(a) A permit applicant for a stationarycommercial fluid recycling facility shall publish notice and fileproof of publication in accordance with the following requirements.]

[(1) A permit applicant shall publish notice of theapplication in a newspaper of general circulation in the county inwhich the proposed facility will be located at least once each weekfor two consecutive weeks with the first publication occurring notearlier than the date the application is filed with the Commissionand not later than the 30th day after the date on which the applicationis filed with the Commission.]

[(2) The published notice shall:]

[(A) be entitled, "Notice of Application for StationaryCommercial Fluid Recycling Facility";]

[(B) provide the date the applicant filed the applicationwith the Commission for the permit;]

[(C) identify the name of the applicant;]

[(D) state the physical address of the proposed facilityand its location in relation to the nearest municipality or community;]

[(E) identify the owner or owners of the property uponwhich the proposed facility will be located;]

[(F) state that affected persons may protest the applicationby filing a protest with the Railroad Commission within 15 days ofthe last date of publication; and]

[(G) provide the address to which protests may be mailed.]

[(3) The applicant shall submit to the Commission proofthat the applicant published notice as required by this section. Proofof publication of the notice shall consist of a sworn affidavit fromthe newspaper publisher that states the dates on which the noticewas published and the county or counties in which the newspaper isof general circulation, and to which are attached the tear sheetsof the published notices.]

[(b) A permit applicant for a stationarycommercial fluid recycling facility shall give personal notice andfile proof of such notice in accordance with the following requirements.]

[(1) The applicant shall mail or deliver notice tothe following persons on or after the date the application is filedwith the Commission's headquarters office in Austin:]

[(A) the surface owner or owners of the tract uponwhich 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 thecorporate limits of an incorporated city, town, or village;]

[(C) the surface owners of tracts adjoining the tracton which proposed facility will be located, unless the boundary withthe adjoining tract is a distance of 1/2-mile or greater from thefenceline or edge of the facility as shown on the plat required under§4.281 of this title (relating to Minimum Real Property Information); and]

[(D) any affected person or class of persons that thedirector determines should receive notice of a particular application.]

[(2) Personal notice of the permit application shallconsist of:]

[(A) a copy of the application;]

[(B) a statement of the date the applicant filed theapplication with the Commission;]

[(C) a statement that a protest to the applicationshould be filed with the Commission within 15 days of the last dateof published notice, a statement identifying the publication in whichpublished notice will appear, and the procedure for making a protestof the application to the Commission;]

[(D) a description of the location of the site forwhich the application was made, including the county in which thesite is to be located, the name of the original survey and abstractnumber, and the direction and distance from the nearest municipality;]

[(E) the name of the owner or owners of the propertyon which the facility is to be located;]

[(F) the name of the applicant;]

[(G) the type of fluid or waste to be handled at thefacility; and]

[(H) the recycling method proposed and the proposedend-use of the recycled material.]

[(3) The applicant shall submit to the Commission proofthat personal notice has been given as required. Proof of notice shallconsist of a copy of each notification letter sent, along with a statementsigned by the applicant that includes the names and addresses of eachperson to whom the notice was sent, and the date that each was notifiedof the application.]

[(c) If the director has reason tobelieve that a person to whom the applicant was required to give noticeof an application has not received such notice, then the directorshall not take action on the application until the applicant has madereasonable efforts to give such person notice of the application andan opportunity to file a protest to the application with the Commission.]

§4.287.General Permit Provisions.

(a) A permit for a stationary commercial fluid recyclingfacility issued pursuant to this division shall be valid for a termof not more than five years. Permits issued pursuant to this divisionmay be renewed, but are not transferable to another operator withoutthe written approval of the Director [director].

(b) A permit issued pursuant to this division shallrequire that, prior to operating, the facility shall comply with thefinancial security requirements of Texas Natural Resources Code, §91.109,relating to Financial Security for Persons Involved in ActivitiesOther than Operation of Wells, as implemented by §3.78 of thistitle (relating to Fees and Financial Security Requirements).

(c) A permit for a stationary commercial fluid recyclingfacility shall include a condition requiring that the permittee notifythe surface owner of the tract upon which recycling will take placeand the [appropriate] Commission District Office [district office] before recycling operations commence on each tract.

§4.288.Minimum Permit Provisions for Siting.

(a) A permit for a stationary commercial fluid recyclingfacility may be issued only if the Director [director]or the Commission determines that the facility is to be located inan area where there is no unreasonable risk of pollution or threatto public health or safety. The Director will presume that anapplication meeting the requirements of §4.280(a) of this title(relating to Minimum Siting Information) does not present an unreasonablerisk of pollution or threat to public health or safety with regardto siting, unless extraordinary circ*mstances indicate otherwise.

(b) A stationary commercial fluid recycling facilitypermitted pursuant to this division is prohibited [andafter the effective date of this division shall not be located]within a 100-year flood plain.

(c) Factors that the Commission will consider in assessingpotential risk from a stationary commercial fluid recycling facility include:

(1) the volume and characteristics of the oil and gaswaste, partially treated waste and recyclable product to be stored,handled, treated and recycled at the facility;

(2) distance to any surface water body,wet or dry;

(3) depth to and quality of the shallowest groundwater;

(4) distance to the nearest property line or public road;

(5) proximity to coastal natural resources, sensitiveareas as defined by §4.110 [§3.91]of this title (relating to Definitions [Cleanup ofSoil Contaminated by a Crude Oil Spill]), or water supplies,and/or public, domestic, or irrigation water wells; and

(6) any other factors the Commission deems reasonablynecessary in determining whether or not issuance of the permit willpose an unreasonable risk.

(d) All siting requirements in this section refer toconditions at the time the facility is constructed.

§4.289.Minimum Permit Provisions for Design and Construction.

(a) A permit issued pursuant to this division for astationary commercial fluid recycling facility shall contain any requirementthat the Director [director] or the Commissiondetermines to be reasonably necessary to ensure that:

(1) the design and construction of storage areas, containmentdikes, and processing areas minimize contact of oil and gas wasteand partially recycled waste with the ground surface, and preventpollution of surface and subsurface water;

(2) the pollution of surface and subsurface water fromspills, leachate, and/or discharges from the facility is prevented by:

(A) prohibiting the unauthorized discharge of oil andgas waste and other substances or materials, including contaminatedstorm water runoff, from the facility to the land surface at and adjacentto the facility or to surface and subsurface water;

(B) requiring that the permittee control spills atthe facility; and

(C) requiring that the permittee make regular inspectionsof the facility; and

(3) the design and construction of the facility allowsfor monitoring for, and detection of, any migration of oil and gaswaste or other substance or material from the facility.

(b) A permit issued for a stationary commercial recyclingfacility pursuant to this division shall require that the permittee, unless waived by the Technical Permitting Section under §4.289(d)of this title (relating to Minimum Permit Provisions for Operations):

(1) install monitoring wells in accordance with 16Texas Administrative Code, Part 4, Chapter 76, relating to Water WellDrillers and Water Well Pump Installers, if required by the TechnicalPermitting Section; and

(2) if required by the Technical Permitting Section, submit[to the Commission's office in Austin] a soil boring logand other information for each well.

(c) The soil boring log and other information requiredin subsection (b) of this section shall:

(1) describe the soils using the Unified Soils ClassificationSystem (equivalent to ASTM D 2487 and 2488);

(2) identify the method of drilling, total depth, andthe 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 referencepoint; and

(5) include a potentiometric map showing static waterlevels and the direction of groundwater flow.

(d) The Commission or the Director [director] may waive any or all of the requirements in subsections (b)and (c) of this section if the permittee demonstrates that an on-siteboring to a minimum depth of 100 feet recovers no water during a 24-hour test.

(e) A permit for a stationary commercial fluid recyclingfacility issued pursuant to this division shall require that the permitteenotify the Commission District Office [district office]for the county in which the facility is located prior to commencementof construction, including construction of any berms [dikes], and again upon completion of construction and that the permitteemay commence operations under the permit only after the facility hasbeen inspected by the Commission to ensure that construction of allelements of the facility is consistent with the representations inthe application and the requirements of the permit.

(f) An operator shall not locate materialexcavated during construction:

(1) within 100 feet of a continuously flowing watercourseor significant watercourse;

(2) within 200 feet from a lakebed, sinkhole, stockpond or lake (measured from the ordinary high-water mark) or any other watercourse;

(3) within 100 feet of a wetland; or

(4) within a 100-year floodplain.

(g) The following requirements applyto signage, fencing, and security.

(1) A sign shall be posted at each entrance to thefacility. The sign shall be readily visible and show the operator'sname, facility name, and permit number in letters and numerals atleast three inches in height.

(2) A sign shall be posted identifying the permit numberof each pit using letters and numerals at least three inches in height.The signs shall clearly state that the fluid within the pit is notpotable or suitable for consumption.

(3) The facility shall maintain security to preventunauthorized access. Security shall be maintained by a 24-hour attendantor a six-foot-high security fence and locked gate when unattended.

(h) Any pit associated with a stationarycommercial fluid recycling facility permitted pursuant to this divisionafter July 1, 2025, shall comply with the requirements of §4.282(a)of this title (relating to Minimum Design and Construction Information).

§4.290.Minimum Permit Provisions for Operations.

(a) A permit for a stationary commercial fluid recyclingfacility issued pursuant to this division shall contain requirementsthe Commission determines to be reasonably necessary to ensure that:

(1) only wastes and other materials authorized by thepermit are received at the facility, including requirements that thepermittee test incoming oil and gas waste and keep records of amountsand sources of incoming wastes; and

(2) the processing operation and resulting recyclableproduct meet the environmental and engineering standards establishedin the permit.

(b) A permit for a stationary commercial fluid recyclingfacility issued under this division may require the permittee to performa trial run in accordance with the following procedure.

(1) The operator [permittee]shall notify the Commission District Office [districtoffice] for the county in which the facility is located priorto commencement of the trial run.

(2) The operator [permittee]shall sample and analyze the partially treated waste that resultsfrom the trial run[,] and submit to the Director [director] for review a report of the results of the trial runprior to commencing operations.

(3) The Director [director] shallapprove the trial run if the report demonstrates that the recyclableproduct meets or exceeds the environmental and engineering standardsestablished in the permit.

(4) The operator [permittee]shall not use the recyclable product until the Director [director] approves the trial run report.

(c) A permit issued pursuant to this division shallinclude any requirements, including limits on the volumes of oil andgas waste, partially treated waste, and recyclable product storedat the facility, that the Commission determines to be reasonably necessaryto ensure that the permittee does not speculatively accumulate oiland gas waste, partially treated waste, and/or recyclable productat the facility without actually processing the oil and gas wasteand putting the recyclable product to legitimate commercial use.

(d) A permit issued pursuant to this division shallinclude a requirement that the operator of the facility comply withthe requirements of §3.56 of this title (relating to ScrubberOil and Skim Hydrocarbons), if applicable.

(e) Oil shall not accumulate on topof the produced or treated water stored in the tanks and pits. Anyoil on top of the liquids shall be skimmed off and handled in accordancewith Commission rules. Any recovered oil shall be recorded and filedwith the Commission on the appropriate forms or through an electronicfiling system when implemented by the Commission.

§4.291.Minimum Permit Provisions for Monitoring.

(a) Operational monitoring.

(1) The operator shall inspect the pits, tanks, andprocessing equipment weekly. The operator shall maintain a currentlog of such inspections and make the log available for review by theCommission upon request.

(2) The leak detection system shall be monitored ona weekly basis to determine if the primary liner has failed. The primaryliner has failed if the volume of water passing through the primaryliner exceeds the action leakage rate, as calculated using acceptedprocedures, or 1,000 gallons per acre per day, whichever is smaller.

(3) The operator of the pit shall keep records to demonstratecompliance with the pit liner integrity requirements and shall makethe records available to the Commission upon request.

(4) If the primary liner is compromised below the fluidlevel in the pit, the operator shall remove all fluid above the damageor leak within 48 hours of discovery, notify the District Office,and repair the damage or replace the primary liner with a liner meetingthe same levels of protection, at a minimum. The pit shall not bereturned to service until the liner has been repaired or replacedand inspected by the District Office.

(5) If the pit's primary liner is compromised abovethe fluid level in the pit, the operator shall repair the damage orinitiate replacement of the primary liner, with a liner meeting thesame levels of protection, at a minimum, within 48 hours of discoveryor seek an extension of time from the District Office.

(6) If groundwater monitoring wells are required, nowaste shall be received at the facility until all permitted groundwatermonitoring wells have been completed, developed, and sampled. Thedocumentation of these activities shall be provided to the Commissionwithin 30 days after installation of groundwater monitoring wells.Groundwater samples will be analyzed for the parameters in Figure 1.

Figure: 16 TAC §4.291(a)(6) (.pdf)

(7) If an operator has determined the background analyteconcentrations in soil and/or groundwater, those site-specific backgroundlevels shall be signed and sealed by a professional geoscientist orprofessional engineer licensed in Texas and, if accepted by the Director,may be included in the permit as appropriate monitoring standards.

(b) Recyclable product monitoring.

(1) [(a)] A permit [issued]for a stationary commercial fluid recycling facility pursuant to thisdivision may [shall] include requirements the Director [director] or Commission determines to bereasonably necessary to ensure that the recyclable product meets theenvironmental and engineering standards established by the Director [director] or the Commission and included in the permit.

(2) [(b)] A permit under thisdivision for use of the treated fluid for any purpose other thanas makeup water for hydraulic fracturing fluids or other down-holeuses may require laboratory testing. A permit that requireslaboratory testing shall require that the permittee use an independentthird party laboratory to analyze a minimum standard volume of partiallytreated waste for parameters established in this division or in apermit issued by the Commission.

(c) Quarterly reporting. A permit issued under this division shall include provisions for filing quarterly reports documenting the fluid volumes into and out of the system in a form and manner prescribed by the Director.

§4.292.Minimum Permit Provisions for Closure.

(a) Notifications.

(1) The operator shall notify the Commission within 60 days after the cessation of operations.

(2) The operator shall notify the Commission 45 days before the commencement of closure activities.

(b) Time requirements for closure.

(1) Once the operations have ceased, the operator shallcomplete closure of the facility within one year.

(2) The Commission may grant an extension to closethe facility not to exceed one additional year, provided all fluidhas been removed and the operator attests to its plans for future operation.

(3) If the operator intends to use the pit for a purposeother than recycling, then the operator shall have that use approvedor permitted by the Commission in accordance with the appropriate rules.

(c) Fluid and waste removal.

(1) The operator shall remove all fluids from the treatmentequipment and tanks within 60 days of the date the operations cease.The contents of all tanks, vessels, or other containers shall be disposedof in an authorized manner. All equipment shall be removed and salvaged,if possible, or disposed of in an authorized manner.

(2) The operator shall remove all fluids from pitswithin six months of the date operations cease.

(3) All wastes, including the pit liners, shall beremoved and disposed of in an authorized manner.

(4) Any concrete areas and access roads shall be cleanedand demolished, and the concrete rubble and wash water shall be disposedof in an authorized manner.

(5) All visibly contaminated soils shall be excavatedand removed. The contaminated soil shall be disposed of in an authorized manner.

(d) Confirmation sampling and analysis.

(1) After the removal of wastes and visibly contaminatedsoils, grab samples shall be collected from around and underneatheach pit, processing area, and waste storage, and the samples shallbe analyzed for the parameters listed in Figure 1. The Commissionmay require samples from areas underneath concrete.

Figure: 16 TAC §4.292(d)(1) (.pdf)

(2) The minimum number of grab samples required isas follows:

(A) for pits, five samples per acre of surface area,with a minimum of four samples; and

(B) for areas containing treatment equipment and storagetanks, five samples per acre of surface area.

(3) Any soil sample that exceeds the parameter limitationsspecified in Figure 1 in this subsection or in site-specific limitationsestablished in the permit is considered waste and shall be disposedof at an authorized disposal facility.

(4) If any soil samples exceed the parameter limitationsspecified in Figure 1 in this subsection or in site-specific limitationsestablished in the permit, the operator shall prepare and submit aplan for confirmation, delineation, and remediation, if necessary.

(e) The facility shall be restoredto a safe and stable condition that blends with the surrounding land.Topsoil and subsoils shall be replaced and contoured so as to achieveerosion control, long-term stability, and preservation of surfacewater flow patterns at locations where any surface water entered orexited the property boundary prior to waste management or recyclingactivities at the facility. Final surface grading of the pits andthe storage tank battery areas shall be accomplished in such a mannerthat water will not collect at these former locations. The site shallbe re-vegetated as appropriate for the geographic region and includea planned water source to establish the re-vegetated areas.

(f) Within 60 days of closure completion,the operator shall submit a closure report, including required attachments,to document all closure activities including sampling results andthe details on any backfilling, capping, or covering, where applicable.The closure report shall certify that all information in the reportand attachments is correct, and that the operator has complied withall applicable closure requirements and conditions specified in Commissionrules or directives.

(g) The operator shall notify theCommission when closure and re-vegetation are complete. The Commissionshall not release financial security to the operator until all post-closureactivities are approved by the Commission.

(h) The Commission will inspect thesite and verify compliance with closure requirements.

[A permit for a stationary commercial fluidrecycling facility issued pursuant to this division shall includeclosure standards and any requirement reasonably necessary to ensurethat the permittee can meet the standards. The Commission shall determinethe closure standards for a particular facility based on the typeof materials stored, handled and treated at the facility, and thedesign and construction of the facility. A permit may include requirementsfor removal of all waste, partially treated waste, and recyclableproduct; removal of dikes, storage, liners, and equipment; recontouringof the land; collection and analyzing of soil and groundwater samplesfrom the facility property; and post-closure monitoring.]

§4.293.Permit Renewal.

Before the expiration of a permit issued pursuant to this division,the permittee may submit an application to renew the permit ona Commission prescribed form. An application for renewal ofan existing permit issued pursuant to this division [or §3.8of this title (relating to Water Protection)] shall be submittedin writing a minimum of 60 days before the expiration date of thepermit and shall include the permittee's permit number. The applicationshall comply with the requirements of §4.278 of this title (relatingto General Permit Application Requirements for a Stationary CommercialFluid Recycling Facility), and the notice requirements of §4.286of this title (relating to Notice). The Director [director] may require the applicant to comply with any of the requirementsof §§4.279 - 4.285 of this title (relating to Minimum Engineeringand Geologic Information; Minimum Siting Information; Minimum RealProperty Information; Minimum Design and Construction Information;Minimum Operating Information; Minimum Monitoring Information; andMinimum Closure Information), depending on any changes made or plannedto the construction, operation, monitoring, and/or closure of the facility.

The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.

Filed with the Office of the Secretary of State on August 16, 2024.

TRD-202403768

Haley Cochran

Assistant General Counsel, Office of General Counsel

Railroad Commission of Texas

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 475-1295

16 TAC §4.301, §4.302

Statutory authority: Texas Natural Resources Code,§§81.051, 81.052, 81.0351, 85.042, 85.202, 86.042; TexasNatural Resources Code §91.101 and §91.1017; Texas NaturalResources Code §122.004; Texas Natural Resources Code §123.0015;and Texas Water Code Chapter 29.

Cross reference to statute: Texas Natural Resources Code, Chapters81, 85, 86, 91, 122, and 123; and Texas Water Code Chapter 29.

§4.301.Activities Related to the Treatment and Recycling for Beneficial Use of Drill Cuttings.

(a) The Commission encourages recycling of oil andgas waste. In addition to the requirements of Divisions 3 and 4 ofthis subchapter (relating to Requirements for Off-Lease or CentralizedCommercial Solid Oil and Gas Waste Recycling, and Requirements forStationary Commercial Solid Oil and Gas Waste Recycling Facilities,respectively), operators performing activities permitted under thosedivisions shall comply with the requirements of this division foractivities related to the treatment and recycling for beneficial useof drill cuttings.

(b) The Commission may approve a permit for the treatmentand recycling for beneficial use of drill cuttings if the treateddrill cuttings are used:

(1) in a legitimate commercial product for the constructionof oil and gas lease pads or oil and gas lease roads;

(2) in a legitimate commercial product for the constructionof county roads; or

(3) in a legitimate commercial product used as a concretebulking agent, oil and gas waste disposal pit cover or capping material,treated aggregate, closure or backfill material, berm material, orconstruction fill if the applicant can demonstrate that the product:

(A) meets the engineering and environmental standardsfor the proposed use; and

(B) is at least as protective of public health, publicsafety, and the environment as the use of an equivalent product madewithout treated drill cuttings.

§4.302.Additional PermitRequirements for Activities Related to the Treatment and Recycling for Beneficial Use of Drill Cuttings.

(a) An applicant for a permit to treat and recycledrill cuttings for beneficial use shall show that there is a demonstratedcommercial market for the treated drill cuttings. The applicant maymake this showing by providing:

(1) evidence that the same product made with drillcuttings or a product that is substantially similar is commonly usedin the area where the product is created;

(2) evidence of actual commitments from customers whointend to use the product made with drill cuttings, including informationregarding the volume of product the customers intend to use annually; or

(3) other credible and verifiable means consistentwith the rules in this chapter.

(b) An applicant for a permit to treat and recycledrill cuttings for beneficial use shall perform a trial run in accordancewith the following procedure.

(1) The applicant shall notify the Commission DistrictOffice for the county in which the facility is located prior to commencementof the trial run.

(2) The applicant shall demonstrate the ability tosuccessfully process a 1,000 cubic yard batch of drill cuttings beforethe facility receives or processes any additional drill cuttings.

(3) The applicant shall collect samples of the treateddrill cuttings from every 200 cubic yards of the first 1,000 cubicyard batch.

(4) Samples collected shall be analyzed and shall notexceed the parameters specified in Figure 1 or Figure 2 in subsection(c) of this section, as applicable.

(5) A written report of the results from the trialrun shall be submitted to the District Office and the Technical PermittingSection within 60 days of receipt of the analytical requirement in§4.258 of this title (relating to Minimum Permit Provisions forOperations). The report shall include:

(A) a summary of the trial run and description ofthe process;

(B) the actual volume of drill cuttings processed;

(C) the type of waste and description of the waste material;

(D) the volume and type of each stabilization materialused; and

(E) copies of all chemical and geotechnical laboratoryanalytical reports and chain of custody sheets for the samples requiredin paragraph (3) of this subsection, as applicable.

(6) The applicant shall notify the District Officefor the county in which the facility is located and the TechnicalPermitting Section at least 72 hours before processing begins. Noadditional drill cuttings shall be received or processed while theresults of the trial run are being reviewed by the Technical PermittingSection. Any legitimate commercial product produced during the trialrun shall not be used until the Technical Permitting Section has receivedthe trial run reports and provides written confirmation that the trialrun requirements have been met.

(c) In addition to the permit standards under thissubchapter, beneficial uses for treated and recycled drill cuttingsshall meet the following criteria.

(1) For use of treated and recycled drill cuttingsin a legitimate commercial product for the construction of oil andgas lease pads, oil and gas lease roads, and county roads, the followingrequirements shall apply.

(A) Bench scale tests shall be performed as neededto determine optimum mixing composition. If the composition mixturechanges from the treated drill cuttings produced during the trialrun, the treated drill cuttings shall be analyzed for wetting anddrying durability by ASTM 559-96, modified to provide samples thatare compacted and molded from finished treated drill cuttings. Totalweight loss after 12 cycles shall not exceed 15%.

(B) A sample of the treated drill cuttings shall betested for the parameters listed in Figure 1 in this subsection forthe trial run required by subsection (b) of this section and for every800 cubic yard batch of treated drill cuttings produced thereafter.Each 800 cubic yard sample shall be composed of a composite of foursub-samples obtained at 200 cubic yard intervals. Each sample shallhave a complete chain of custody and shall be analyzed for the parameterson Figure 1 in this subsection.

(C) Any treated drill cuttings not meeting the limitationsspecified in Figure 1 in this subsection shall be returned to themixing cycle, reprocessed, and reanalyzed until the drill cuttingsmeet the required parameters or shall be disposed of in accordancewith Commission rules.

Figure: 16 TAC §4.302(c)(1)(C) (.pdf)

(2) For use of treated and recycled drill cuttingsas a concrete bulking agent, oil and gas waste disposal pit coveror capping material, treated aggregate, closure or backfill material,berm material, or other construction fill material as specified in§4.301(b) of this chapter (relating to Activities Related tothe Treatment and Recycling for Beneficial Use of Drill Cuttings)the following requirements shall apply.

(A) Bench scale tests shall be performed as neededto determine optimum mixing composition if the composition mixturechanges from the treated drill cuttings produced during the trial run.

(B) A sample of the treated drill cuttings shall betested for the parameters listed in Figure 2 in this subsection forthe trial run required by subsection (b) of this section and every800 cubic yard batch of treated drill cuttings produced thereafter.Each 800 cubic yard sample shall be composed of a composite of foursub-samples obtained at 200 cubic yard intervals. Each sample shallbe analyzed for the parameters in Figure 2.

Figure: 16 TAC §4.302(c)(2)(B) (.pdf)

(C) Any treated drill cuttings not meeting the parametersspecified in Figure 2 in this subsection shall be returned to themixing cycle, reprocessed, and reanalyzed until the drill cuttingsmeet the required parameters or shall be disposed of in accordancewith Commission rules.

(D) Copies of the laboratory analytical reports andchain of custody sheets demonstrating that the treated drill cuttingsmeet these requirements shall be submitted to the Technical PermittingSection as part of the quarterly report.

(E) Once the permit to produce the treated drill cuttingshas been granted, the permittee shall submit a separate applicationto the Technical Permitting Section for a letter of authority authorizingthe application of the product to each specific project and location.The following information shall be included in the letter of authority application:

(i) a map drawn to scale showing the location of thefinal disposition of the product with latitude and longitude coordinatesfor the site location;

(ii) a description of the purpose for the product,such as concrete bulking agent, oil and gas waste disposal pit coveror capping material, treated aggregate, closure or backfill material,berm material, or other construction fill material;

(iii) the estimated volume of product to be used atthe location;

(iv) the time frame needed for the production and applicationof the whole volume of treated material for this project; and

(v) landowner approval for the management and finaldisposition of the product at the final disposition location. If thetreated drill cuttings are to be used as a concrete bulking agentat a concrete production plant, written approval from a company officerfrom the receiving facility or corporation is sufficient.

(3) The Commission may require that use of treateddrill cuttings in legitimate commercial products other than thosedescribed in paragraphs (1) and (2) of this subsection comply withcriteria in addition to those specified in this section.

The agency certifies that legal counsel hasreviewed the proposal and found it to be within the state agency'slegal authority to adopt.

Filed with the Office of the Secretary of State on August 16, 2024.

TRD-202403769

Haley Cochran

Assistant General Counsel, Office of General Counsel

Railroad Commission of Texas

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 475-1295

The Railroad Commission of Texas proposed amendments to §§8.1,8.101, 8.110, 8.115, 8.125, 8.201, 8.208, 8.209, and 8.210, relatingto General Applicability and Standards; Pipeline Integrity Assessmentand Management Plans for Natural Gas and Hazardous Liquids Pipelines;Gathering Pipelines; New Construction Commencement Report; WaiverProcedure; Pipeline Safety and Regulatory Program Fees; MandatoryRemoval and Replacement Program; Distribution Facilities Replacements;and Reports. The Commission proposes these amendments to capture thefederal Pipeline and Hazardous Materials Safety Administration (PHMSA)latest standards, to clarify areas of the rules that staff receivesregular inquires on, and to clarify how pipeline operators shouldreport and file with Commission.

The Commission proposes amendments to §8.1(a)(1)(B) to clarifythe requirements for gas production lines located in populated areas.These proposed amendments also impact current requirements under 16TAC §3.70, relating to Pipeline Permits Required, that exemptproduction lines from the permitting rule. The Commission proposesamendments to §3.70 concurrently to the proposed amendments torules in Chapter 8.

The Commission proposes an amendment in §8.1(a)(1)(D) to clarifythat all offshore pipelines (both production and gathering) locatedin Texas waters shall follow 49 CFR 192 and 49 CFR 195.

The Commission proposes an amendment to §8.1(b) to updatethe minimum safety standards and to adopt by reference the Departmentof Transportation (DOT) pipeline safety standards found in 49 CFRPart 191, Transportation of Natural and Other Gas by Pipeline; AnnualReports, Incident Reports, and Safety-Related Condition Reports; 49CFR Part 192, Transportation of Natural and Other Gas by Pipeline:Minimum Federal Safety Standards; and 49 CFR Part 195, Transportationof Hazardous Liquids by Pipeline. Current subsection (b) adopted thefederal pipeline safety standards as of September 6, 2021. The amendmentchanges the date to December 9, 2024, the estimated effective dateof the rule amendments, to capture the federal Pipeline and HazardousMaterials Safety Administration (PHMSA) pipeline safety rule amendmentssummarized in the following paragraphs. Once the effective date isdetermined, the Commission will adopt this rule with a change fromthe proposal to indicate the final effective date.

Docket No. PHMSA-2011-0023: Amdt. Nos. 191-30 and 192-129 revisesthe Federal Pipeline Safety Regulations to improve the safety of onshoregas gathering pipelines effective May 16, 2022. This final rule addressesCongressional mandates, Government Accountability Office recommendations,and public input received as part of the rulemaking process. The amendmentsin this final rule extend reporting requirements to all gas gatheringoperators and apply a set of minimum safety requirements to certaingas gathering pipelines with large diameters and high operating pressures.The rule does not affect offshore gas gathering pipelines.

Following the previously discussed final rule, Docket No. PHMSA-2011-0023:Amdt. Nos. 191-31 and 192-131, effective May 16, 2022, PHMSA notedits April 1, 2022, response denying a petition for reconsiderationof the final rule titled "Safety of Gas Gathering Pipelines: Extensionof Reporting Requirements, Regulation of Large, High-Pressure Lines,and Other Related Amendments." This final rule also makes clarificationsand two technical corrections to that rulemaking. Lastly, this finalrule memorializes a limited enforcement discretion in connection withthat rulemaking's amendment of the regulatory definition of "incidentalgathering." The Commission will adhere to the limited stay of enforcement.

Docket No. PHMSA-2013-0255: Amdt. Nos. 192-130 and 195-105, revisesthe Federal Pipeline Safety Regulations applicable to most newly constructedand entirely replaced onshore gas transmission, Type A gas gathering,and hazardous liquid pipelines with diameters of six inches or greater,effective October 5, 2022. In the revised regulations, PHMSA requiresoperators of these lines to install rupture-mitigation valves (i.e.,remote-control or automatic shut-off valves) or alternative equivalenttechnologies, and establishes minimum performance standards for thosevalves' operation to prevent or mitigate the public safety and environmentalconsequences of pipeline ruptures. This final rule establishes requirementsfor rupture-mitigation valve spacing, maintenance and inspection,and risk analysis. The final rule also requires operators of gas andhazardous liquid pipelines to contact 911 emergency call centers immediatelyupon notification of a potential rupture and conduct post-ruptureinvestigations and reviews. PHMSA requires that operators also incorporatelessons learned from such investigations and reviews into operators'personnel training and qualifications programs, and in design, construction,testing, maintenance, operations, and emergency procedure manualsand specifications. PHMSA promulgated these regulations in responseto congressional directives following major pipeline incidents wherethere were significant environmental consequences or losses of humanlife. The revisions are intended to achieve better rupture identification,response, and mitigation of safety, greenhouse gas, and environmentaljustice impacts.

Following the previously discussed final rule, Docket No. PHMSA-2013-0255:Amdt. Nos. 192-134 and 195-106, effective August 1, 2023, made editorialand technical corrections clarifying the regulations promulgated inits April 8, 2022, final rule titled "Pipeline Safety: Requirementof Valve Installation and Minimum Rupture Detection Standards" forcertain gas, hazardous liquid, and carbon dioxide pipelines. The finalrule also codifies the results of judicial review of that final rule.

Docket No. PHMSA-2011-0023: Amdt. No. 192-132, amended the federalpipeline safety regulations in 49 CFR Part 192 to improve the safetyof onshore gas transmission pipelines effective May 24, 2023. Thefinal rule addresses several lessons learned following the PacificGas and Electric Company incident that occurred in San Bruno, CA,on September 9, 2010, and responds to public input received as partof the rulemaking process. The amendments in this final rule clarifycertain integrity management provisions, codify a management of changeprocess, update and bolster gas transmission pipeline corrosion controlrequirements, require operators to inspect pipelines following extremeweather events, strengthen integrity management assessment requirements,adjust the repair criteria for high-consequence areas, create newrepair criteria for non-high consequence areas, and revise or createspecific definitions related to these amendments.

Following the previously discussed final rule, Docket No. PHMSA-2011-0023:Amdt. No. 192-133, also effective May 24, 2023, made necessary technicalcorrections in 49 CFR Part 192 to ensure consistency within, and theintended effect of, a recently issued final rule titled "Safety ofGas Transmission Pipelines: Repair Criteria, Integrity ManagementImprovements, Cathodic Protection, Management of Change, and OtherRelated Amendments."

Docket No. PHMSA-2016-0002, Amdt. Nos. 192-135, 195-107, amended49 CFR Parts 192 and 195 regarding periodic updates of regulatoryreferences to technical standards and miscellaneous amendments whichamended the Federal pipeline safety regulations (PSRs) to incorporateby reference all or parts of more than 20 new or updated voluntary,consensus industry technical standards. This action allows pipelineoperators to use current technologies, improved materials, and updatedindustry and management practices. Additionally, PHMSA is clarifyingcertain regulatory provisions and making several editorial corrections.The effective date of this final rule was June 28, 2024.

The Commission proposes amendments in §8.1(b)(3) to alignthe rule text with federal exemptions allowed under 49 CFR §199.2(c)(1).

The Commission proposes several amendments in §8.101. First,the amendments proposed in subsection (b) clarify which pipelinesreferenced in 49 CFR Part 195 are subject to subsection (b)'s requirements- pipeline facilities used in the transportation of hazardous liquidsor carbon dioxide. The current rule's figure clarified which pipelineswere subject to the requirements but the rule language was unclear.The Commission also proposes amendments in §8.101(b)(1)(C) and(b)(1)(F) to align state integrity rules with the federal requirements.Amendments proposed in §8.101(d) state that operators of pipelinessubject to 49 CFR §192.710 shall follow the remediation requirementsrequired by 49 CFR §192.710(f). Corresponding changes are madeto a Figure in the section.

The Commission proposes amendments in §8.110 to incorporatePHMSA definitions of types of gathering lines. For gas, the amendmentsincorporate new terms "Type C" and "Type R"; for liquid, the amendmentsincorporate the designation "reporting-regulated-only" gathering lines.These proposed amendments incorporate the newer terminology consistentwith federal rules.

The Commission proposes amendments to §8.115 to require operatorsof liquefied natural gas (LNG) facilities to report the constructionof a new LNG plant or LNG facility to the Commission. This changeis proposed as new paragraph (2) and the remaining paragraphs arerenumbered. The Commission proposes amendments in current §8.115(a)(4),renumbered as paragraph (5), to clarify that for liquified petroleumgas distribution systems, natural gas distribution systems, or mastermeter systems, distribution relocation or replacement is not requiredto be reported to the RRC if the construction is less than three milesin length. Amendments proposed in current subsection (a)(7), renumberedas paragraph (8), exempt Type R gas gathering pipelines and the "reporting-regulated-only"liquid gathering pipelines from the construction notification requirement.Type C pipelines must still comply with this requirement. The otheramendments proposed in §8.115 allow electronic filing of requiredforms and reports either through email or using the Commission's onlineapplication for inspections and permits, which is currently calledthe Pipeline Inspection Permitting System (PIPES) and is availableon the Commission's website.

The Commission proposes amendments to §8.125(e) to changeterminology to align with the Commission's online filing system calledCASES. Applications previously referred to as "dockets" are now called"cases." In addition, amendments proposed in subsection (e) requirethat a notice of a waiver application include the division's emailaddress in addition to other required contents. Similarly, amendmentsproposed in subsection (f) allow affected persons who have receivednotice of a waiver application to object to, support, or request ahearing via email.

The Commission proposes amendments to §8.201(b)(2) and (c)(1)to require payments through the Commission's online application forinspections and permits, which is currently called the Pipeline InspectionPermitting System (PIPES).

The Commission proposes amendments in §8.208(j) to changereporting requirements. Commission staff states operators no longerneed to file these reports with the Commission. Instead, they shouldmaintain a progress report annually and provide to the Commissionupon request.

The Commission proposes an amendment in §8.209(a) to clarifythat 49 CFR §192.1003(b) may provide an exemption. The Commissionalso proposes amendments in subsection (j) to clarify how an operatorof a gas distribution system that is subject to the requirements of§7.310 of this title (relating to System of Accounts) may accountfor the investment and expense incurred to comply with the requirementsof §8.209. Operators of gas distribution systems have inconsistentlyapplied the provisions of §8.209(j)(1)(C) when recording intereston the balance of the regulatory asset account allowed by §8.209(j)(1).This amendment clarifies that the utility's cost of long-term debtbased on the pre-tax cost of capital for the utility as approved bythe Commission in the utility's last statement of intent rate caseis the appropriate metric by which to record interest on the balanceof the account.

The Commission proposes amendments in §8.210(e) to requirean operator to submit the PS-95 even if there are no leaks discovered.Additional amendments add references to the Commission's online permit application.

Stephanie Weidman, Pipeline Safety Director, Oversight and SafetyDivision, has determined there will be no cost to the Commission asa result of the proposed amendments. Ms. Weidman has determined thatfor the first five years the amendments will be in effect, there willbe no fiscal implications for local governments as a result of enforcingthe amendments.

Ms. Weidman has also determined that the public benefit anticipatedas a result of enforcing or administering the amendments will be consistencywith federal requirements.

Ms. Weidman has determined that for each year of the first fiveyears that the amendments will be in effect, there will be no additionaleconomic costs for persons required to comply as a result of Commissionadoption of the proposed amendments. Persons required to comply withthe PHMSA requirements must do so regardless of whether the requirementsare adopted in Commission rules. Therefore, the proposed amendmentsto Commission rules do not create economic costs for persons requiredto comply.

In accordance with Texas Government Code, §2006.002, the Commissionhas determined there will be no adverse economic effect on rural communities,small businesses or micro-businesses resulting from the proposed amendments.As discussed above, there will be no additional economic costs forpersons required to comply as a result of adoption of the proposedamendments; therefore, the Commission has not prepared the economicimpact statement or the regulatory flexibility analysis required under§2006.002.

The Commission has determined that the proposed rulemaking willnot affect a local economy; therefore, pursuant to Texas GovernmentCode, §2001.022, the Commission is not required to prepare alocal employment impact statement for the proposed rules.

The Commission has determined that the proposed amendments do notmeet the statutory definition of a major environmental rule as setforth in Texas Government Code, §2001.0225; therefore, a regulatoryanalysis conducted pursuant to that section is not required.

During the first five years that the rule would be in effect, theproposed amendments would not: create or eliminate a government program;create or eliminate any employee positions; require an increase ordecrease in future legislative appropriations; increase fees paidto the agency; create a new regulation; increase or decrease the numberof individuals subject to the rule's applicability; expand, limit,or repeal an existing regulation; or affect the state's economy. Asnoted above, the individuals required to comply with the proposedamendments are subject to the requirements, which are PHMSA's standards,even if those requirements are not adopted in Commission rules.

Comments on the proposal may be submitted to Rules Coordinator,Office of General Counsel, Railroad Commission of Texas, P.O. Box12967, Austin, Texas 78711-2967; online at www.rrc.texas.gov/general-counsel/rules/comment-form-for-proposed-rulemakings;or by electronic mail to rulescoordinator@rrc.texas.gov. The Commissionwill accept comments until 5:00 p.m., on Monday, September 30, 2024.The Commission finds that this comment period is reasonable becausethe proposal and an online comment form will be available on the Commission'sweb site more than two weeks prior to TexasRegister publication of the proposal, giving interested personsadditional time to review, analyze, draft, and submit comments. TheCommission encourages all interested persons to submit comments nolater than the deadline. The Commission cannot guarantee that commentssubmitted after the deadline will be considered. For further information,call Ms. Weidman at (512) 463-2519. The status of Commission rulemakingsin progress is available at www.rrc.texas.gov/general-counsel/rules/proposed-rules.Once received, all comments are posted on the Commission's websiteat https://rrc.texas.gov/general-counsel/rules/proposed-rules/. Ifyou submit a comment and do not see the comment posted at this linkwithin three business days of submittal, please call the Office ofGeneral Counsel at (512) 463-7149. The Commission has safeguards toprevent emailed comments from getting lost; however, your operatingsystem's or email server's settings may delay or prevent receipt.

SUBCHAPTER A. GENERAL REQUIREMENTS AND DEFINITIONS

16 TAC §8.1

The Commission proposes the amendments under TexasNatural Resources Code, §81.051 and §81.052, which givethe Commission jurisdiction over all common carrier pipelines in Texas,persons owning or operating pipelines in Texas, and their pipelinesand oil and gas wells, and authorize the Commission to adopt all necessaryrules for governing and regulating persons and their operations underthe jurisdiction of the Commission, including such rules as the Commissionmay consider necessary and appropriate to implement state responsibilityunder any federal law or rules governing such persons and their operations;Texas Natural Resources Code, §§117.001-117.101, which givethe Commission jurisdiction over all pipeline transportation of hazardousliquids or carbon dioxide and over all hazardous liquid or carbondioxide pipeline facilities as provided by 49 U.S.C. Section 60101,et seq.; and Texas Utilities Code, §§121.201-121.210, 121.213-121.214,which authorize the Commission to adopt safety standards and practicesapplicable to the transportation of gas and to associated pipelinefacilities within Texas to the maximum degree permissible under, andto take any other requisite action in accordance with, 49 United StatesCode Annotated, §§60101, et seq.

Statutory authority: Texas Natural Resources Code, §81.051,§81.052, and §§117.001-117.101; Texas Utilities Code,§§121.201-121.211; §§121.213-121.214; §121.251and §121.253, §§121.5005-121.507; and 49 United StatesCode Annotated, §§60101, et seq.

Cross-reference to statute: Texas Natural Resources Code, Chapter81 and Chapter 117; Texas Utilities Code, Chapter 121; and 49 UnitedStates Code Annotated, Chapter 601.

§8.1.General Applicability and Standards.

(a) Applicability.

(1) The rules in this chapter establish minimum standardsof accepted good practice and apply to:

(A) all gas pipeline facilities and facilities usedin the intrastate transportation of gas, including LPG distributionsystems and master metered systems, as provided in 49 United StatesCode (U.S.C.) §§60101, et seq.; and Texas Utilities Code,§§121.001 - 121.507;

(B) onshore [pipeline and gathering and]production pipelines and production facilities, inClass 2, 3, or 4 locations as defined by 49 CFR §192.5, beginningafter the first point of measurement and ending as defined by 49 CFRPart 192 as the beginning of an onshore gathering line. These [The gathering and] production pipelines and productionfacilities [beyond this first point of measurement]shall be subject to 49 CFR §192.8(c) in determining if thesepipelines and facilities are Type A, Type B, or Type C, and subjectto the rules in 49 CFR §192.9 for Type A, Type B, or Type C pipelines [§192.8 and shall be subject to the rules as definedas Type A or Type B gathering lines as those Class 2, 3, or 4 areasas defined by 49 CFR §192.5];

(C) the intrastate pipeline transportation of hazardousliquids or carbon dioxide and all intrastate pipeline facilities asprovided in 49 U.S.C. §§60101, et seq.; and Texas NaturalResources Code, §117.011 and §117.012; and

(D) all pipeline facilities originating in Texas waters(three marine leagues and all bay areas). These pipeline facilitiesinclude those production and flow lines originating at the well. Thesefacilities shall be subject to 49 CFR Part 192 for natural gas pipelinesand 49 CFR Part 195 for hazardous liquid pipelines.

(2) The regulations do not apply to those facilitiesand transportation services subject to federal jurisdiction under:15 U.S.C. §§717, et seq.; or 49 U.S.C. §§60101,et seq.

(b) Minimum safety standards. The Commission adoptsby reference the following provisions, as modified in this chapter,effective December 9, 2024 [September 13, 2021].

(1) Natural gas pipelines, including LPG distributionsystems and master metered systems, shall be designed, constructed,maintained, and operated in accordance with 49 U.S.C. §§60101,et seq.; 49 Code of Federal Regulations (CFR) Part 191, Transportationof Natural and Other Gas by Pipeline; Annual Reports, Incident Reports,and Safety-Related Condition Reports; 49 CFR Part 192, Transportationof Natural and Other Gas by Pipeline: Minimum Federal Safety Standards;and 49 CFR Part 193, Liquefied Natural Gas Facilities: Federal Safety Standards.

(2) Hazardous liquids or carbon dioxide pipelines shallcomply with 49 U.S.C. §§60101, et seq.; and 49 CFR Part195, Transportation of Hazardous Liquids by Pipeline.

(3) All operators of pipelines and/or pipeline facilities, except operators that only operate one or more master meter systems,as defined in 49 CFR §191.3, shall comply with 49 CFR Part199, Drug and Alcohol Testing, and 49 CFR Part 40, Procedures forTransportation Workplace Drug and Alcohol Testing Programs.

(4) All operators of pipelines and/or pipeline facilitiesregulated by this chapter, other than master metered systems and distributionsystems, shall comply with §3.70 of this title (relating to PipelinePermits Required).

(c) Special situations. Nothing in this chapter shallprevent the Commission, after notice and hearing, from prescribingmore stringent standards in particular situations. In special circ*mstances,the Commission may require the following:

(1) Any operator which cannot determine to its satisfactionthe standards applicable to special circ*mstances may request in writingthe Commission's advice and recommendations. In a special case, andfor good cause shown, the Commission may authorize exemption, modification,or temporary suspension of any of the provisions of this chapter,pursuant to the provisions of §8.125 of this title (relatingto Waiver Procedure).

(2) If an operator transports gas and/or operates pipelinefacilities which are in part subject to the jurisdiction of the Commissionand in part subject to the Department of Transportation pursuant to49 U.S.C. §§60101, et seq.; the operator may request inwriting to the Commission that all of its pipeline facilities andtransportation be subject to the exclusive jurisdiction of the Departmentof Transportation. If the operator files a written statement underoath that it will fully comply with the federal safety rules and regulations,the Commission may grant an exemption from compliance with this chapter.

(d) Retention of DOT filings. A person filing any documentor information with the Department of Transportation pursuant to therequirements of 49 CFR Parts 190, 191, 192, 193, 195, or 199 shallretain a copy of that document or information. Such person is notrequired to concurrently file that document or information with theDivision unless another rule in this chapter requires the documentor information to be filed with the Division or unless the Divisionrequests a copy.

(e) Penalties. A person who submits incorrect or falseinformation with the intent of misleading the Commission regardingany material aspect of an application or other information requiredto be filed at the Commission may be penalized as set out in TexasNatural Resources Code, §§117.051 - 117.054, and/or TexasUtilities Code, §§121.206 - 121.210, and the Commissionmay dismiss with prejudice to refiling an application containing incorrector false information or reject any other filing containing incorrector false information.

(f) Retroactivity. Nothing in this chapter shall beapplied retroactively to any existing intrastate pipeline facilitiesconcerning design, fabrication, installation, or established operatingpressure, except as required by the Office of Pipeline Safety, Departmentof Transportation. All intrastate pipeline facilities shall be subjectto the other safety requirements of this chapter.

(g) Compliance deadlines. Operators shall comply withthe applicable requirements of this section according to the following guidelines.

(1) Each operator of a pipeline and/or pipeline facilitythat is new, replaced, relocated, or otherwise changed shall complywith the applicable requirements of this section at the time the pipelineand/or pipeline facility goes into service.

(2) An operator whose pipeline and/or pipeline facilitywas not previously regulated but has become subject to regulationpursuant to the changed definition in 49 CFR Part 192 and subsection(a)(1)(B) of this section shall comply with the applicable requirementsof this section no later than the stated date:

(A) for cathodic protection (49 CFR Part 192), March1, 2012;

(B) for damage prevention (49 CFR 192.614), September1, 2010;

(C) to establish an MAOP (49 CFR 192.619), March 1, 2010;

(D) for line markers (49 CFR 192.707), March 1, 2011;

(E) for public education and liaison (49 CFR 192.616),March 1, 2011; and

(F) for other provisions applicable to Type A gatheringlines (49 CFR 192.8(c)), March 1, 2011.

The agency certifies that legal counselhas reviewed the proposal and found it to be within the state agency'slegal authority to adopt.

Filed with the Office of the Secretary of State on August 15, 2024.

TRD-202403734

Haley Cochran

Assistant General Counsel, Office of General Counsel

Railroad Commission of Texas

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 475-1295

16 TAC §§8.101, 8.110, 8.115, 8.125

The Commission proposes the amendments under TexasNatural Resources Code, §81.051 and §81.052, which givethe Commission jurisdiction over all common carrier pipelines in Texas,persons owning or operating pipelines in Texas, and their pipelinesand oil and gas wells, and authorize the Commission to adopt all necessaryrules for governing and regulating persons and their operations underthe jurisdiction of the Commission, including such rules as the Commissionmay consider necessary and appropriate to implement state responsibilityunder any federal law or rules governing such persons and their operations;Texas Natural Resources Code, §§117.001-117.101, which givethe Commission jurisdiction over all pipeline transportation of hazardousliquids or carbon dioxide and over all hazardous liquid or carbondioxide pipeline facilities as provided by 49 U.S.C. Section 60101,et seq.; and Texas Utilities Code, §§121.201-121.210, 121.213-121.214,which authorize the Commission to adopt safety standards and practicesapplicable to the transportation of gas and to associated pipelinefacilities within Texas to the maximum degree permissible under, andto take any other requisite action in accordance with, 49 United StatesCode Annotated, §§60101, et seq.

Statutory authority: Texas Natural Resources Code, §81.051,§81.052, and §§117.001-117.101; Texas Utilities Code,§§121.201-121.211; §§121.213-121.214; §121.251and §121.253, §§121.5005-121.507; and 49 United StatesCode Annotated, §§60101, et seq.

Cross-reference to statute: Texas Natural Resources Code, Chapter81 and Chapter 117; Texas Utilities Code, Chapter 121; and 49 UnitedStates Code Annotated, Chapter 601.

§8.101.Pipeline Integrity Assessment and Management Plans for Natural Gas and Hazardous Liquids Pipelines.

(a) This section does not apply to plastic pipelines.

(b) By February 1, 2002, operators of intrastate transmissionlines subject to the requirements of 49 CFR Part 192 or pipelinefacilities used in the transportation of hazardous liquids or carbondioxide subject to 49 CFR Part 195 shall have designated ona system-by-system or segment within each system basis whether thepipeline operator has chosen to use the risk-based analysis pursuantto paragraph (1) of this subsection or the prescriptive plan authorizedby paragraph (2) of this subsection. Hazardous liquid pipeline operatorsusing the risk-based plan shall complete at least 50% of the initialassessments by January 1, 2006, and the remainder by January 1, 2011;operators using the prescriptive plan shall complete the initial integritytesting by January 1, 2006, or January 1, 2011, pursuant to the requirementsof paragraph (2) of this subsection. Natural gas pipeline operatorsusing the risk-based plan shall complete at least 50% of the initialassessments by December 17, 2007, and the remainder by December 17,2012; operators using the prescriptive plan shall complete the initialintegrity testing by December 17, 2007, or December 17, 2012, pursuantto the requirements of paragraph (2) of this subsection.

(1) The risk-based plan shall contain at a minimum:

(A) identification of the pipelines and pipeline segmentsor sections in each system covered by the plan;

(B) a priority ranking for performing the integrityassessment of pipeline segments of each system based on an analysisof risks that takes into account:

(i) population density;

(ii) immediate response area designation, which, ata minimum, means the identification of significant threats to theenvironment (including but not limited to air, land, and water) orto the public health or safety of the immediate response area;

(iii) pipeline configuration;

(iv) prior in-line inspection data or reports;

(v) prior pressure test data or reports;

(vi) leak and incident data or reports;

(vii) operating characteristics such as establishedmaximum allowable operating pressures (MAOP) for gas pipelines ormaximum operating pressures (MOP) for liquids pipelines, leak surveyresults, cathodic protection surveys, and product carried;

(viii) construction records, including at a minimumbut not limited to the age of the pipe and the operating history;

(ix) pipeline specifications; and

(x) any other data that may assist in the assessmentof the integrity of pipeline segments; [.]

(C) assessment of pipeline integrity using at leastone of the following methods appropriate for each segment:

(i) in-line inspection;

(ii) pressure test;

(iii) direct assessment; [or]

(iv) for gas pipelines only, guidedwave ultrasonic testing (GWUT);

(v) for gas pipelines only, excavationwith direct in situ examination; or

(vi) [(iv)] other technologyor assessment methodology not specifically listed in this paragraphafter approval by the director. [;]

(D) management methods for the pipeline segments whichmay include remedial action or increased inspections as necessary; [and]

(E) periodic review of the pipeline integrity assessmentand management plan every 36 months, or more frequently if necessary; and [.]

(F) re-assessment intervals not toexceed the following:

(i) for pipelines subject to 49 CFR Part 195, a maximuminterval of 10 years for onshore line pipe that can accommodate inspectionby means of in-line inspection tools; or

(ii) for pipelines subject to 49 CFR Part §192.710,a maximum interval of 10 years.

(2) Operators electing not to use the risk-based planin paragraph (1) of this subsection shall conduct a pressure testor an in-line inspection and take remedial action in accordance withthe following schedule:

Figure 1: 16 TAC §8.101(b)(2) (No change.)

Figure 2: 16 TAC §8.101(b)(2) (.pdf)

Figure 2: 16 TAC §8.101(b)(2)

(c) Within 185 days after receipt of notice that anoperator's plan is complete, the Commission shall either notify theoperator of the acceptance of the plan or shall complete an evaluationof the plan to determine compliance with this section.

(d) After the completion of the assessment requiredunder either plan, the operator shall promptly remove defects thatare immediate hazards and, no later than the next test interval, shallmitigate any anomalies identified by the test that could reasonablybe predicted to become hazardous defects. For pipelines subjectto 49 CFR §192.710, an operator shall follow the remediationrequirements required by 49 CFR §192.710(f).

(e) If a pipeline that is not subject to this sectionundergoes any change in circ*mstances that results in the pipelinebecoming subject to this section, then the operator of such pipelineshall establish integrity of the pipeline pursuant to the requirementsof this section prior to any further operation. Such changes includebut are not limited to an addition to the pipeline, change in theoperating pressure of the pipeline, change from inactive to activestatus, change in population in the area of the pipeline, or changeof operator of the pipeline segment. If a pipeline segment is acquiredby a new operator, the pipeline segment can continue to be operatedwithout establishing pipeline integrity as long as the new operatorutilizes the prior operator's operation and maintenance proceduresfor this pipeline segment. If the population in the area of a pipelinesegment changes, the pipeline segment can continue to operate withoutestablishing pipeline integrity until such time as the operator determineswhether or not the change in population affects the criteria applicableto the integrity management program, but for no longer than the timeframes established under 49 CFR Part 192 or 195.

§8.110.Gathering Pipelines.

(a) Scope. This section applies to the following gathering pipelines:

(1) Type C natural gas gathering pipelines as defined under 49 CFR §192.8 [located in a Class1 location not regulated by 49 CFR §192.8 or §8.1 of thistitle (relating to General Applicability and Standards)]; [and]

(2) Type R natural gas gathering pipelinesas defined under 49 CFR §192.8; and

(3) [(2)] hazardous liquids andcarbon dioxide gathering pipelines as defined under 49 CFR §195.15 [located in a rural area as defined by 49 CFR §195.2and not regulated by 49 CFR §195.1, 49 CFR §195.11, or §8.1of this title].

(b) Safety. Each operator of a gathering pipeline describedin subsection (a) of this section shall take appropriate action usingprocesses and technologies that are technically feasible, reasonable,and practicable to correct a hazardous condition that creates a riskto public safety.

(c) Reporting.

(1) Each operator of a gas gathering pipeline describedin subsection (a) of this section shall comply with §8.210(a)of this title (relating to Reports).

(2) Each operator of a hazardous liquids pipeline describedin subsection (a) of this section shall comply with §8.301(a)(1)(B)and (a)(2)(B) of this title (relating to Required Records and Reporting)except that the initial telephonic report is not required.

(d) Investigation.

(1) Each operator of a gathering pipeline describedin subsection (a) of this section shall conduct its own investigationand cooperate with the Commission and its authorized representativesin the investigation of any of the following:

(A) an accident as defined by 49 CFR §195.50;

(B) an incident as defined by 49 CFR §191.3;

(C) a threat to public safety; or

(D) a complaint related to operational safety.

(2) Each operator shall provide the Commission reasonableaccess to the operator's facilities, provide the Commission any recordsrelated to such facilities, and file such reports or other informationnecessary to determine whether there is a threat to the continuingsafe operation of the pipeline.

(e) Corrective action and prevention of recurrence.As a result of the investigations authorized under subsection (d)of this section, the Commission may require the operator to submita corrective action plan to the Commission to remediate an accident,incident, or other hazardous condition that creates a risk to publicsafety, or to address a complaint related to public safety. Upon theCommission's review and approval of the corrective action plan, theoperator shall complete the corrective action. No provision of thisrule prevents the operator from implementing any corrective actionat any time the operator deems necessary or prudent to correct orprevent a threat to the safe operation of the gathering pipeline andpipeline facilities.

§8.115.New Construction Commencement Report.

(a) An operator shall notify the Commission beforethe construction of pipelines and other facilities as follows.

(1) For construction of a new, relocated, or replacementpipeline 10 miles in length or longer including liquified petroleumgas distribution systems, natural gas distribution systems, and mastermeter systems 10 miles in length or longer, an operator shall notifythe Commission not later than 60 days before construction.

(2) For construction of a new LNGplant or LNG facility, an operator shall notify the Commission notlater than 60 days before construction.

(3) [(2)] Except as providedin paragraphs [(4) and] (5) and (6) of thissubsection, for construction of a new, relocated, or replacement pipelineat least one mile in length but less than 10 miles, an operator shallnotify the Commission not later than 30 days before construction.

(4) [(3)] For installation ofany permanent breakout tank, an operator shall notify the Commissionnot later than 30 days before installation. For installation of mobile,temporary, or prefabricated breakout tanks, an operator shall notifythe Commission upon placing the mobile, temporary, or prefabricatedbreakout tank in service.

(5) [(4)] For liquefiedpetroleum gas distribution systems, natural gas distribution systems,or master meter systems, no construction notification is requiredfor new, relocated or replacement construction [on liquifiedpetroleum gas distribution systems, natural gas distribution systems,or master meter systems] less than three miles in length[,no construction notification is required]. For new, relocated, or replacement construction [on liquified petroleum gasdistribution systems, natural gas distribution systems, or mastermeter systems] at least three miles in length but less than10 miles in length, an operator shall either:

(A) notify the Commission not later than 30 days beforeconstruction by filing a Form PS-48 for every relocated or replacementconstruction; or

(B) provide to the Commission a monthly report thatreflects all known projects planned to be completed in the following12 months, all projects that are currently in construction, and allprojects completed since the prior monthly report. The report shouldprovide the status of each project, the city and county of each project,a description of each project, and the estimated starting and endingdate. These monthly reports shall be filed by email to PS-48Reports@rrc.texas.gov.

(6) [(5)] For the constructionof a new liquefied petroleum gas distribution system, natural gasdistribution system, or master meter system less than 10 miles inlength in a new subdivision or that results in a new distributionsystem ID, an operator shall either:

(A) notify the Commission not later than 30 days beforeconstruction by filing a Form PS-48 New Construction Report [Form PS-48] for every initial construction; or

(B) provide to the Commission a monthly report thatreflects all known projects planned to be completed in the following12 months, all projects that are currently in construction, and allprojects completed since the prior monthly report. The report shouldprovide the status of each project, the city and county of each project,a description of each project, and the estimated starting and ending date.

(7) [(6)] For construction ofa sour gas pipeline and/or pipeline facilities, as defined in §3.106of this title (relating to Sour Gas Pipeline Facility ConstructionPermit), an operator shall notify the Commission not later than 30days before construction by filing Form PS-48 and Form PS-79.

(8) [(7)] Pipelines subject to §8.110(a)(2) and (3) [§8.110] of this title(relating to Gathering Pipelines) are exempt from the constructionnotification requirement.

(b) Any of the notifications required by subsection(a) of this section, unless an operator elects to use the alternativenotification allowed by subsection (a)(5) or (a)(6) [(a)(4)] of this section, shall be made by filing a Form PS-48New Construction Report using the Commission's online applicationavailable on the Commission's website. The report shall include [with the Commission Form PS-48 stating] the proposed originatingand terminating points for the pipeline, counties to be traversed,size and type of pipe to be used, type of service, design pressure,and length of the proposed line. If a notification is not feasiblebecause of an emergency, an operator must notify the Commission assoon as practicable. A Form PS-48 that has been filed with the Commissionshall expire if construction is not commenced within eight monthsof date the report is filed. An operator may submit one extension,which will keep the report active for an additional six months. Afterone extension, the Form PS-48 will expire.

§8.125.Waiver Procedure.

(a) Purpose and scope. The Commission considers waiverapplications to be properly based on a technical inability to complywith the pipeline safety standards set forth in this chapter, relatedto the specific configuration, location, operating limitations, oravailable technology for a particular pipeline. Generally, an applicationfor waiver of a pipeline safety rule is site-specific. Cost is generallynot a proper objection to compliance by the operator with the pipelinesafety standards set forth in this chapter, and a waiver filed simplyto avoid the expense of safety compliance is generally not appropriate.An operator shall request a waiver prior to performing any activitiesthat would fall under the waiver.

(b) Filing. Any person may apply for a waiver of apipeline safety rule or regulation by filing an application for waiverwith the Division. Upon the filing of an application for waiver ofa pipeline safety rule, the Division shall assign a docket numberto the application and shall forward it to the director, and thereafterall documents relating to that application shall include the assigneddocket number. An application for a waiver is not an acceptable responseto a notice of an alleged violation of a pipeline safety rule. TheDivision shall not assign a docket number to or consider any applicationfiled in response to a notice of violation of a pipeline safety rule.

(c) Form. The application shall be typewritten on papernot to exceed 8 1/2 inches by 11 inches and shall have margins ofat least one inch. The contents of the application shall appear onone side of the paper and shall be double or one and one-half spaced,except that footnotes and lengthy quotations may be single spaced.Exhibits attached to an application shall be the same size as theapplication or folded to that size.

(d) Content. The application shall contain the following:

(1) the name, business address, and telephone number,and facsimile transmission number and electronic mail address, ifavailable, of the applicant and of the applicant's authorized representative,if any;

(2) a description of the particular operation for whichthe waiver is sought;

(3) a statement concerning the regulation from whichthe waiver is sought and the reason for the exception;

(4) a description of the facility at which the operationis conducted, including, if necessary, design and operation specifications,monitoring and control devices, maps, calculations, and test results;

(5) a description of the acreage and/or address uponwhich the facility and/or operation that is the subject of the waiverrequest is located. The description shall:

(A) include a plat drawing;

(B) identify the site sufficiently to permit determinationof property boundaries;

(C) identify environmental surroundings;

(D) identify placement of buildings and areas intendedfor human occupancy that could be endangered by a failure or malfunctionof the facility or operation;

(E) state the ownership of the real property of thesite; and

(F) state under what legal authority the applicant,if not the owner of the real property, is permitted occupancy;

(6) an identification of any increased risks the particularoperation would create if the waiver were granted, and the additionalsafety measures that are proposed to compensate for those risks;

(7) a statement of the reason the particular operation,if the waiver were granted, would not be inconsistent with pipeline safety.

(8) an original signature, in ink, by the applicantor the applicant's authorized representative, if any; and

(9) a list of the names, addresses, and telephone numbersof all affected persons, as defined in §8.5 of this title (relatingto Definitions).

(e) Notice.

(1) The applicant shall send a notice [copyof the application and a notice of protest form published by the Commission] by certified mail, return receipt requested, to all affectedpersons on the same date of filing the application with the Division. The applicant shall file all return receipts with the Division asproof of notice. The notice shall include:

(A) a copy of the application;

(B) a description of [describe]the nature of the waiver sought;

(C) a statement [shall state]that affected persons have 30 calendar days from the date of the lastpublication to file written objections or requests for a hearing withthe Division; [and]

(D) [shall include] the case [docket] number of the application;[, and]

(E) the mailing address of the Division; and

(F) the Division's email address safety@rrc.texas.gov. [The applicant shall file all return receipts with theDivision as proof of notice].

(2) The applicant shall publish notice of its applicationfor waiver of a pipeline safety rule once a week for two consecutiveweeks in the state or local news section of a newspaper of generalcirculation in the county or counties in which the facility or operationfor which the requested waiver is located. The notice shall describethe nature of the waiver sought; shall state that affected personshave 30 calendar days from the date of the last publication to filewritten objections or requests for a hearing with the Division; andshall include the case [docket] number of theapplication and the mailing address of the Division. Within ten calendardays of the date of last publication, the applicant shall file withthe Division a publisher's affidavit from each newspaper in whichnotice was published as proof of publication of notice. The affidavitshall state the dates on which the notice was published and shallhave attached to it the tear sheets from each edition of the newspaperin which the notice was published.

(3) The applicant shall give any other notice of theapplication which the director may require.

(f) Protest or support of waiver application.

(1) Affected persons shall have standing to objectto, support, or request a hearing on an application.

(2) A person who objects to, who supports, or who requestsa hearing on the application shall file a written objection, statementof support, or request for a hearing with the Division no later thanthe 30th calendar day after the date the notice of the applicationwas postmarked or the last date the notice was published in the newspaperin the county in which the person owns or occupies property, whicheveris later.

(3) The objection, statement of support, or requestfor a hearing shall:

(A) state the name, address, and telephone number ofthe person filing the objection, statement of support, or requestfor hearing and of every person on whose behalf the objection, statementof support, or request for a hearing is being filed;

(B) include a statement of the facts on which the personfiling the protest or statement of support relies to conclude thateach person on whose behalf the objection, statement of support, orrequest for a hearing is being filed is an affected person, as definedin §8.5 of this title; [and]

(C) include a statement of the nature and basis forthe objection to or statement of support for the waiver request; and

(D) be filed with the Commission byemail to safety@rrc.texas.gov.

(g) Division review.

(1) The director shall complete the review of the applicationwithin 60 calendar days after the application is complete. If an applicationremains incomplete 12 months after the date the application was filed,such application shall expire and the director shall dismiss withoutprejudice to refiling.

(A) If the director does not receive any objectionsor requests for a hearing from any affected person, the director mayrecommend in writing that the Commission grant the waiver if grantingthe waiver is not inconsistent with pipeline safety. The directorshall forward the file, along with the written recommendation thatthe waiver be granted, to the Hearings Division for the preparationof an order.

(B) The director shall not recommend that the Commissiongrant the waiver if the application was filed to correct an existingviolation, to avoid the expense of safety compliance, or filed afterthe applicant already engaged in activities covered by the proposedwaiver. The director shall dismiss with prejudice to refiling an applicationfiled in response to a notice of violation of a pipeline safety rule.

(C) If the director declines to recommend that theCommission grant the waiver, the director shall notify the applicantin writing of the recommendation and the reason for it, and shallinform the applicant of any specific deficiencies in the application.

(2) If the director declines to recommend that theCommission grant the waiver, and if the application was not filedeither to correct an existing violation or solely to avoid the expenseof safety compliance, the applicant may either:

(A) modify the application to correct the deficienciesand resubmit the application; or

(B) file a written request for a hearing on the matterwithin ten calendar days of receiving notice of the assistant director'swritten decision not to recommend that the Commission grant the application.

(h) Hearings and orders.

(1) Within three days of receiving either a timely-filedobjection or a request for a hearing, the director shall forward thefile to the Hearings Division, which shall set and conduct the hearingin accordance with Chapter 1 of this title (relating to Practice and Procedure).

(2) After a hearing, the Commission may grant a waiverof a pipeline safety rule based on a finding or findings in the orderthat the grant of the waiver is not inconsistent with pipeline safety.

(i) Notice to United States Department of Transportation.Upon a Commission order granting a waiver of a pipeline safety rule,the director shall give written notice to the Secretary of Transportationpursuant to the provisions of 49 United States Code Annotated, §60118(d).The Commission's grant of a waiver becomes effective in accordancewith the provisions of 49 United States Code Annotated, §60118(d).

The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.

Filed with the Office of the Secretary of State on August 15, 2024.

TRD-202403735

Haley Cochran

Assistant General Counsel, Office of General Counsel

Railroad Commission of Texas

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 475-1295

16 TAC §§8.201, 8.208 - 8.210

The Commission proposes the amendments under Texas Natural Resources Code, §81.051 and §81.052, which give the Commission jurisdiction over all common carrier pipelines in Texas,persons owning or operating pipelines in Texas, and their pipelinesand oil and gas wells, and authorize the Commission to adopt all necessaryrules for governing and regulating persons and their operations underthe jurisdiction of the Commission, including such rules as the Commissionmay consider necessary and appropriate to implement state responsibilityunder any federal law or rules governing such persons and their operations;Texas Natural Resources Code, §§117.001-117.101, which givethe Commission jurisdiction over all pipeline transportation of hazardousliquids or carbon dioxide and over all hazardous liquid or carbondioxide pipeline facilities as provided by 49 U.S.C. Section 60101,et seq.; and Texas Utilities Code, §§121.201-121.210, 121.213-121.214,which authorize the Commission to adopt safety standards and practicesapplicable to the transportation of gas and to associated pipelinefacilities within Texas to the maximum degree permissible under, andto take any other requisite action in accordance with, 49 United StatesCode Annotated, §§60101, et seq.

Statutory authority: Texas Natural Resources Code, §81.051,§81.052, and §§117.001-117.101; Texas Utilities Code,§§121.201-121.211; §§121.213-121.214; §121.251and §121.253, §§121.5005-121.507; and 49 United StatesCode Annotated, §§60101, et seq.

Cross-reference to statute: Texas Natural Resources Code, Chapter81 and Chapter 117; Texas Utilities Code, Chapter 121; and 49 UnitedStates Code Annotated, Chapter 601.

§8.201.Pipeline Safety and Regulatory Program Fees.

(a) Application of fees. Pursuant to Texas UtilitiesCode, §121.211, the Commission establishes a pipeline safetyand regulatory program fee, to be assessed annually against operatorsof natural gas distribution pipelines and pipeline facilities andnatural gas master metered pipelines and pipeline facilities subjectto the Commission's jurisdiction under Texas Utilities Code, Title3. The total amount of revenue estimated to be collected under thissection does not exceed the amount the Commission estimates to benecessary to recover the costs of administering the pipeline safetyand regulatory programs under Texas Utilities Code, Title 3, excludingcosts that are fully funded by federal sources for any fiscal year.

(b) Natural gas distribution systems. The Commissionhereby assesses each operator of a natural gas distribution systeman annual pipeline safety and regulatory program fee of $1.00 foreach service (service line) in service at the end of each calendaryear as reported by each system operator on the U.S. Department ofTransportation (DOT) Gas Distribution Annual Report, Form PHMSA F7100.1-1due on March 15 of each year.

(1) Each operator of a natural gas distribution systemshall calculate the annual pipeline safety and regulatory programtotal to be paid to the Commission by multiplying the $1.00 fee bythe number of services listed in Part B, Section 3, of Form PHMSAF7100.1-1, due on March 15 of each year.

(2) Each operator of a natural gas distribution systemshall remit to the Commission on March 15 of each year the amountcalculated under paragraph (1) of this subsection. Payments shallbe made using the Commission's online application available on theCommission's website.

(3) Each operator of a natural gas distribution systemshall recover, by a surcharge to its existing rates, the amount theoperator paid to the Commission under paragraph (1) of this subsection.The surcharge:

(A) shall be a flat rate, one-time surcharge;

(B) shall not be billed before the operator remitsthe pipeline safety and regulatory program fee to the Commission;

(C) shall be applied in the billing cycle or cyclesimmediately following the date on which the operator paid the Commission;

(D) shall not exceed $1.00 per service or service line; and

(E) shall not be billed to a state agency, as thatterm is defined in Texas Utilities Code, §101.003.

(4) No later than 90 days after the last billing cyclein which the pipeline safety and regulatory program fee surchargeis billed to customers, each operator of a natural gas distributionsystem shall file with the Commission's Oversight and Safety Divisiona report showing:

(A) the pipeline safety and regulatory program feeamount paid to the Commission;

(B) the unit rate and total amount of the surchargebilled to each customer;

(C) the date or dates on which the surcharge was billedto customers; and

(D) the total amount collected from customers fromthe surcharge.

(5) Each operator of a natural gas distribution systemthat is a utility subject to the jurisdiction of the Commission pursuantto Texas Utilities Code, Chapters 101 - 105, shall file a generallyapplicable tariff for its surcharge in conformance with the requirementsof §7.315 of this title (relating to Filing of Tariffs).

(6) Amounts recovered from customers under this subsectionby an investor-owned natural gas distribution system or a cooperativelyowned natural gas distribution system shall not be included in therevenue or gross receipts of the system for the purpose of calculatingmunicipal franchise fees or any tax imposed under Subchapter B, Chapter182, Tax Code, or under Chapter 122, nor shall such amounts be subjectto a sales and use tax imposed by Chapter 151, Tax Code, or SubtitleC, Title 3, Tax Code.

(c) Natural gas master meter systems. The Commissionhereby assesses each natural gas master meter system an annual pipelinesafety and regulatory program fee of $100 per master meter system.

(1) Each operator of a natural gas master meter systemshall remit to the Commission the annual pipeline safety and regulatoryprogram fee of $100 per master meter system no later than June 30of each year. Payments shall be made using the Commission's onlineapplication available on the Commission's website.

(2) The Commission shall send an invoice to each affectednatural gas master meter system operator no later than April 30 ofeach year as a courtesy reminder. The failure of a natural gas mastermeter system operator to receive an invoice shall not exempt the naturalgas master meter system operator from its obligation to remit to theCommission the annual pipeline safety and regulatory program fee onJune 30 each year.

(3) Each operator of a natural gas master meter systemshall recover as a surcharge to its existing rates the amounts paidto the Commission under paragraph (1) of this subsection.

(4) No later than 90 days after the last billing cyclein which the pipeline safety and regulatory program fee surchargeis billed to customers, each natural gas master meter system operatorshall file with the Oversight and Safety Division a report showing:

(A) the pipeline safety and regulatory program feeamount paid to the Commission;

(B) the unit rate and total amount of the surchargebilled to each customer;

(C) the date or dates on which the surcharge was billedto customers; and

(D) the total amount collected from customers fromthe surcharge.

(d) Late payment penalty. If the operator of a naturalgas distribution system or a natural gas master meter system doesnot remit payment of the annual pipeline safety and regulatory programfee to the Commission within 30 days of the due date, the Commissionshall assess a late payment penalty of 10 percent of the total assessmentdue under subsection (b) or (c) of this section, as applicable, andshall notify the operator of the total amount due to the Commission.

§8.208.Mandatory Removal and Replacement Program.

(a) Effective September 1, 2008, this section appliesto each operator of a gas distribution system that is subject to therequirements of 49 CFR Part 192.

(b) For leaks identified on any underground compressioncoupling used to mechanically join steel pipe, each operator shalleither replace the leaking compression coupling or repair it usinga sleeve welded over the compression coupling.

(c) Each operator shall repair or replace any compressioncoupling used to mechanically join steel pipe that is exposed duringoperation and maintenance activities unless the operator can determinethe coupling was installed after 1980.

(d) For leaks identified on any underground compressioncoupling used to mechanically join plastic pipe, each operator shallremove and/or replace the leaking compression coupling.

(e) For any other compression coupling used to joinplastic pipe that is exposed during operation and maintenance activities,each operator shall:

(1) For plastic pipe two inches or less in diameter,replace or remove such coupling unless the operator can determinethat the coupling is designated as an ASTM (American Society for Testingand Materials) D2513 Category 1 type fitting.

(2) For plastic pipe greater than two inches in diameter,replace or remove such coupling unless the operator can determinethat the coupling is designated as an ASTM D2513 Category 1 or Category3 type fitting.

(f) Each operator shall remove and replace all compressioncouplings at currently known service riser installations, identifiableby a meter number or a street address, if they are not manufacturedand installed in accordance with ASTM D2513 for Category 1 fittings.

(g) Each operator shall complete the removal and replacementof such compression couplings by November 30, 2009.

(h) Any coupling installed on plastic pipe after September1, 2008, shall be designed to meet the requirements of ASTM D2513Category 1.

(i) Any coupling installed on steel pipe after September1, 2008, shall be designed to meet the requirements of 49 CFR Part192, §192.273.

(j) Beginning January 15, 2025, and annually [November 1, 2008, and every six months] thereafter until allcompression couplings on the operator's system subject to subsection(f) of this section have been removed and replaced, each operatorshall maintain [file with the division] a progressreport showing the number of service riser installations checked,the condition of the coupling, and the total number of compressioncouplings replaced for the prior calendar year [thatreporting period]. Each operator shall retain this progressreport and shall provide a copy of the report to the Commission upon request.

§8.209.Distribution Facilities Replacements.

(a) Unless exempted by 49 CFR §192.1003(b),this [This] section applies to each operator of agas distribution system that is subject to the requirements of 49CFR Part 192. This section prescribes the minimum requirements bywhich all operators will develop and implement a risk-based programfor the removal or replacement of distribution facilities, includingsteel service lines, in such gas distribution systems. The risk-basedprogram will work in conjunction with the Distribution Integrity ManagementProgram (DIMP) using scheduled replacements to manage identified risksassociated with the integrity of distribution facilities.

(b) Each operator must make joints on below-groundpiping that meets the following requirements:

(1) Joints on steel pipe must be welded or designedand installed to resist longitudinal pullout or thrust forces per49 CFR §192.273.

(2) Joints on plastic pipe must be fused or designedand installed to resist longitudinal pullout or thrust forces perASTM D2513-Category 1.

(c) Each operator must establish written proceduresfor implementing the requirements of this section. Each operator mustdevelop a risk-based program to determine the relative risks and theirassociated consequences within each pipeline system or segment. Eachoperator that determines that steel service lines are the greatestrisk must conduct the steel service line leak repair analysis setforth in subsection (d) of this section and use the prescriptive modelin subsection (f) of this section for the replacement of those steelservice lines.

(d) In developing its risk-based program, each operatormust develop a risk analysis using data collected under its DIMP andthe data submitted on the PS-95 to determine the risks associatedwith each of the operator's distribution systems and establish itsown risk ranking for pipeline segments and facilities to determinea prioritized schedule for service line or facility replacement. Theoperator must support the analysis with data, collected to validatesystem integrity, that allow for the identification of segments orfacilities within the system that have the highest relative risk rankingor consequence in the event of a failure. The operator must identifyin its risk-based program the distribution piping, by segment, thatposes the greatest risk to the operation of the system. In addition,each operator that determines that steel service lines are the greatestrisk must conduct a steel service line leak repair analysis to determinethe leak repair rate for steel service lines. The leak repair ratefor below-ground steel service lines is determined by dividing theannualized number of below-ground leaks repaired on steel servicelines (excluding third-party leaks and leaks on steel service linesremoved or replaced under this section) by the total number of steelservice lines as reported on PHMSA Form F 7100.1-1, the Gas DistributionSystem Annual Report. Each operator that determines that steel servicelines are the greatest risk must conduct the steel service line leakrepair analysis using the most recent three calendar years of datareported to the Commission on Form PS-95.

(e) Each operator must create a risk model that willidentify by segment those lines that pose the highest risk rankingor consequence of failure. The determination of risk is based on thedegree of hazard associated with the risk factors assigned to thepipeline segments or facilities within each of the operator's distributionsystems. The priority of service line or facility replacement is determinedby classifying each pipeline segment or facility based on its degreeof hazard associated with each risk factor. Each operator must establish*ts own risk ranking for pipeline segments or facilities to determinethe priority for necessary service line or facility replacements.Each operator should include the following factors in developing itsrisk analysis:

(1) pipe location, including proximity to buildingsor other structures and the type and use of the buildings and proximityto areas of concentrations of people;

(2) composition and nature of the piping system, includingthe age of the pipe, materials, type of facilities, operating pressures,leak history records, prior leak grade repairs, and other studies;

(3) corrosion history of the pipeline, including knownareas of significant corrosion or areas where corrosive environmentsare known to exist, cased crossings of roads, highways, railroads,or other similar locations where there is susceptibility to uniquecorrosive conditions;

(4) environmental factors that affect gas migration,including conditions that could increase the potential for leakageor cause leaking gas to migrate to an area where it could create ahazard, such as extreme weather conditions or events (significantamounts or extended periods of rainfall, extended periods of drought,unusual or prolonged freezing weather, hurricanes, etc.); particularsoil conditions; unstable soil; or areas subject to earth movement,subsidence, or extensive growth of tree roots around pipeline facilitiesthat can exert substantial longitudinal force on the pipe and nearbyjoints; and

(5) any other condition known to the operator thathas significant potential to initiate a leak or to permit leakinggas to migrate to an area where it could result in a hazard, includingconstruction activity near the pipeline, wall-to-wall pavement, trenchlessexcavation activities (e.g., boring), blasting, large earth-movingequipment, heavy traffic, increase in operating pressure, and othersimilar activities or conditions.

(f) This subsection applies to operators that determineunder subsection (c) of this section that steel service lines arethe greatest risk. Based on the results of the steel service lineleak repair analysis under subsection (d) of this section, each operatormust categorize each segment and complete the removal and replacementof steel service lines by segment according to the risk ranking establishedpursuant to subsection (e) of this section as follows:

(1) a segment with an annualized steel service lineleak rate of 5% or greater but less than 7.5% is a Priority 1 segmentand an operator must remove or replace no less than 10% of the originalinventory per year; and

(2) a segment with an annualized steel service lineleak rate of less than 5% is a Priority 2 segment. An operator isnot required to remove or replace any Priority 2 segments; however,upon discovery of a leak on a Priority 2 segment, the operator mustremove or replace rather than repair those lines except as outlinedin subsection (g) of this section.

(g) For those steel service lines that must remainin service because of specific operational conditions or requirements,each operator must determine if an integrity risk exists on the segment,and if so, must replace the segment with steel as part of the integritymanagement plan.

(h) All replacement programs require a minimum annualreplacement of 8% of the pipeline segments or facilities posing thegreatest risk in the system and identified for replacement pursuantto this section. Each operator with steel service lines subject tosubsection (f) of this section must establish a schedule for the replacementof steel service lines or other distribution facilities accordingto the risk ranking established as part of the operator's risk-basedprogram and must submit the schedule to the Division for review andapproval or amendment under subsection (c) of this section.

(i) In conjunction with the filing of the pipelinesafety and regulatory program fee pursuant to §8.201 of thistitle (relating to Pipeline Safety and Regulatory Program Fees) andno later than March 15 of each year, each operator must file withthe Division:

(1) by System ID, a list of the steel service lineor other distribution facilities replaced during the prior calendaryear; and

(2) the operator's proposed work plan for removal orreplacement for the current calendar year, the implementation of whichis subject to review and amendment by the Division. Each operatormust notify the Division of any revisions to the proposed work planand, if requested, provide justification for such revision. Within45 days after receipt of an operator's proposed revisions to its risk-basedplan and work plan, the Division will notify the operator either ofthe acceptance of the risk-based program and work plan or of the necessarymodifications to the risk-based program and work plan.

(j) Each operator of a gas distribution system thatis subject to the requirements of §7.310 of this title (relatingto System of Accounts) may use the provisions of this subsection toaccount for the investment and expense incurred by the operator tocomply with the requirements of this section.

(1) The operator may:

(A) establish one or more designated regulatory assetaccounts in which to record any expenses incurred by the operatorin connection with acquisition, installation, or operation (includingrelated depreciation) of facilities that are subject to the requirementsof this section;

(B) record in one or more designated plant accountscapital costs incurred by the operator for the installation of facilitiesthat are subject to the requirements of this section;

(C) record interest on the balance in the designateddistribution facility replacement accounts based on the costof long-term debt [pretax cost of capital] last approvedfor the utility by the Commission. The utility's cost of long-termdebt [pre-tax cost of capital] may be adjusted andapplied prospectively if the Commission establishes a new costof long-term debt [pre-tax cost of capital] for theutility in a future proceeding;

(D) reduce balances in the designated distributionfacility replacement accounts by the amounts that are included inand recovered though rates established in a subsequent Statement ofIntent filing or other rate adjustment mechanism; and

(E) use the presumption set forth in §7.503 ofthis title (relating to Evidentiary Treatment of Uncontroverted Booksand Records of Gas Utilities) with respect to investment and expenseincurred by a gas utility for distribution facilities replacementmade pursuant to this section.

(2) This subsection does not render any final determinationof the reasonableness or necessity of any investment or expense.

(k) A distribution gas pipeline facility operator shallnot install as a part of the operator's underground system a castiron, wrought iron, or bare steel pipeline. A distribution gas pipelinefacility operator shall replace any known cast iron pipelines installedas part of the operator's underground system not later than December31, 2021.

§8.210.Reports.

(a) Incident report.

(1) Telephonic report. At the earliest practical momentbut no later than one hour following confirmed discovery, a gas companyshall notify the Commission by telephone of any event that involvesa release of gas from its pipelines defined as an incident in 49 CFR§191.3. The telephonic report shall be made to the Commission's24-hour emergency line at (512) 463-6788 and shall include the following:

(A) the operator or gas company's name;

(B) the location of the incident;

(C) the time of the incident;

(D) the number of fatalities and/or personal injuries;

(E) the phone number of the operator;

(F) the telephone number of the operator's on-siteperson; and

(G) any other significant facts relevant to the incident.Ignition, explosion, rerouting of traffic, evacuation of any building,and media interest are included as significant facts.

(2) This paragraph applies to each operator of a gasdistribution system that is subject to the requirements of 49 CFRPart 192. Such operator shall also provide the following informationto the Division when the information is known by the operator:

(A) the cost of gas lost;

(B) estimated property damage to the operator and others;

(C) any other significant facts relevant to the incident; and

(D) other information required under federal regulationsto be provided to the Pipeline and Hazardous Materials Safety Administrationor a successor agency after a pipeline incident or similar incident.

(3) Written report.

(A) Following the initial telephonic report for incidentsdescribed in paragraph (1) of this subsection, the operator shallretain its records and provide to the Commission upon request theapplicable written reports submitted to the Department of Transportation.Operators of gas gathering pipelines regulated by §8.110 (relatingto Gathering Pipelines) shall file with the Commission within 30 calendardays after the date of the telephonic report a written report on anincident described in paragraph (1) of this subsection utilizing theapplicable form from the Department of Transportation.

(B) The written report is not required to be submittedfor master metered systems.

(C) The Commission may require an operator to submita written report for an incident not otherwise required to be reported.

(b) Pipeline safety annual reports. Each gas companyshall retain the annual report for its intrastate systems in the samemanner as required by 49 CFR Part 191. A gas company shall providea copy of the annual report to the Commission upon request.

(c) Safety related condition reports. Each gas companyshall submit to the Division in writing a safety-related conditionreport for any condition outlined in 49 CFR 191.23.

(d) Offshore pipeline condition report. Within 60 daysof completion of underwater inspection, each operator shall file withthe Division a report of the condition of all underwater pipelinessubject to 49 CFR 192.612(a). The report shall include the informationrequired in 49 CFR 191.27.

(e) Leak Reporting. For purposes of this subsection,the term "leak" includes all underground leaks, all hazardous aboveground leaks, and all non-hazardous above ground leaks that cannotbe eliminated by lubrication, adjustment, or tightening. Each operatorof a gas distribution system shall submit to the Division a list ofall leaks repaired on its pipeline facilities. Each such operatorshall list all leaks identified on all pipeline facilities. Each suchoperator shall also include the number of unrepaired leaks remainingon the operator's systems by leak grade. Each such operator shallsubmit leak reports by July 15 and January 15 of each calendaryear, in accordance with the PS-95 Semi-Annual Leak Report ElectronicFiling Requirements using the Commission's online application availableon the Commission's website [using the Commission's onlinereporting system, Form PS-95, by July 15 and January 15 of each calendaryear, in accordance with the PS-95 Semi-Annual Leak Report ElectronicFiling Requirements]. The report submitted on July 15 shallinclude information from the previous January 1 through the previousJune 30. The report submitted on January 15 shall include informationfrom the previous July 1 through the previous December 31. Alloperators shall submit a PS-95 Semi Annual Leak Report every July15 and January 15, even if there are no pending or repaired leaksduring the reporting time period. The report includes:

(1) leak location;

(2) facility type;

(3) leak classification;

(4) pipe size;

(5) pipe type;

(6) leak cause; and

(7) leak repair method.

(f) The Commission shall retain state records regardinga pipeline incident perpetually. "State record" has the meaning assignedby Texas Government Code §441.180.

The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.

Filed with the Office of the Secretary of State on August 15, 2024.

TRD-202403736

Haley Cochran

Assistant General Counsel, Office of General Counsel

Railroad Commission of Texas

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 475-1295

CHAPTER 24. SUBSTANTIVE RULES APPLICABLE TO WATER AND SEWER SERVICE PROVIDERS

SUBCHAPTER B. RATES AND TARIFFS

16 TAC §24.50

The Public Utility Commission of Texas (commission)proposes the repeal of 16 Texas Administrative Code (TAC) §24.361,relating to Municipal Rates for Certain Recreational Vehicle Parksand proposes to replace the repeal with new §24.50, relatingto Rates for Certain Recreational Vehicle Parks.

This proposed new rule will implement Texas Water Code §13.152as added by Senate Bill 594 during the Texas 88th Regular LegislativeSession. The new rule will require a retail public utility, otherthan a municipally owned utility (MOU), that provides water or sewerservice to a recreational vehicle park to ensure that billing forthe service is based on actual water usage recorded by the retailpublic utility. The new rule will also prohibit a retail public utility,other than an MOU, from imposing a surcharge based on the number ofrecreational vehicle or cabin sites in the recreational vehicle park.

Growth Impact Statement

The agency provides the following governmental growth impact statementfor the proposed rule, as required by Texas Government Code §2001.0221.The agency has determined that for each year of the first five yearsthat the proposed rule is in effect, the following statements will apply:

(1) the proposed rule will not create a government program andwill not eliminate a government program;

(2) implementation of the proposed rule will not require the creationof new employee positions and will not require the elimination ofexisting employee positions;

(3) implementation of the proposed rule will not require an increaseand will not require a decrease in future legislative appropriationsto the agency;

(4) the proposed rule will not require an increase and will notrequire a decrease in fees paid to the agency;

(5) the proposed rule will create a new regulation;

(6) the proposed rule will expand, limit, or repeal an existing regulation;

(7) the proposed rule will change the number of individuals subjectto the rule's applicability; and

(8) the proposed rule will not affect this state's economy.

Fiscal Impact on Small and Micro-Businesses and Rural Communities

There is no adverse economic effect anticipated for small businesses,micro-businesses, or rural communities as a result of implementingthe proposed rule. Accordingly, no economic impact statement or regulatoryflexibility analysis is required under Texas Government Code §2006.002(c).

Takings Impact Analysis

The commission has determined that the proposed rule will not bea taking of private property as defined in chapter 2007 of the TexasGovernment Code.

Fiscal Impact on State and Local Government

Tammy Benter, Division Director, Division of Utility Outreach,has determined that for the first five-year period the proposed ruleis in effect, there will be no fiscal implications for the state orfor units of local government under Texas Government Code §2001.024(a)(4)as a result of enforcing or administering the section.

Public Benefits

Ms. Benter has determined that for each year of the first fiveyears the proposed section is in effect the public benefit anticipatedas a result of enforcing the section will be enhanced customer billingprotections for customers of a retail public utility other than amunicipally owned utility. There will not be any probable economiccosts to persons required to comply with the rule under Texas GovernmentCode §2001.024(a)(5).

Local Employment Impact Statement

For each year of the first five years the proposed section is ineffect, there should be no effect on a local economy; therefore, nolocal employment impact statement is required under Texas GovernmentCode §2001.022.

Costs to Regulated Persons

Texas Government Code §2001.0045(b) does not apply to thisrulemaking because the commission is expressly excluded under subsection§2001.0045(c)(7).

Public Hearing

The commission will conduct a public hearing on this rulemakingif requested in accordance with Texas Government Code §2001.029.The request for a public hearing must be received by September 27,2024. If a request for public hearing is received, commission staffwill file in this project a notice of hearing.

Public Comments

Interested persons may file comments electronically through theinterchange on the commission's website. Comments must be filed bySeptember 27, 2024. Comments should be organized in a manner consistentwith the organization of the proposed rules. The commission invitesspecific comments regarding the costs associated with, and benefitsthat will be gained by, implementation of the proposed rule. The commissionwill consider the costs and benefits in deciding whether to modifythe proposed rules on adoption. All comments should refer to ProjectNumber 56828.

Each set of comments should include a standalone executive summaryas the last page of the filing. This executive summary must be clearlylabeled with the submitting entity's name and should include a bulletedlist covering each substantive recommendation made in the comments.

Statutory Authority

The new section is proposed under Texas Water Code §13.041(a),which provides the commission the general power to regulate and supervisethe business of each public utility within its jurisdiction and todo anything specifically designated or implied by the Texas WaterCode that is necessary and convenient to the exercise of that powerand jurisdiction; Texas Water Code §13.041(b), which providesthe commission with the authority to adopt and enforce rules reasonablyrequired in the exercise of its powers and jurisdiction; Texas WaterCode §13.087 which prescribes municipal rates for certain recreationalvehicle parks; and Texas Water Code §13.152 which establishesbilling requirements for recreational vehicle parks by a retail publicutility other than an MOU.

Cross Reference to Statute: Texas Water Code §13.041(a) and(b), 13.087, 13.152.

§24.50.Rates for Certain Recreational Vehicle Parks.

(a) The following words and terms, when used in thissection, have the following meanings, unless the context clearly indicates otherwise.

(1) Nonsubmetered master metered utility service--Potablewater service that is master metered but not submetered and wastewaterservice that is based on master metered potable water service.

(2) Recreational vehicle--Includes a:

(A) house trailer as that term is defined by TexasTransportation Code, §501.002; and

(B) towable recreational vehicle as that term is definedby Texas Transportation Code, §541.201.

(3) Recreational vehicle park--A commercial propertyon which service connections are made for recreational vehicle transientguest use and for which fees are paid at intervals of one day or longer.

(b) A municipally owned utility that provides nonsubmeteredmaster metered utility service to a recreational vehicle park mustdetermine the rates for that service on the same basis the utilityuses to determine the rates for other commercial businesses, includinghotels and motels, that serve transient customers and receive nonsubmeteredmaster metered utility service from the utility.

(c) A retail public utility, other than a municipallyowned utility, that provides water or sewer service to a recreationalvehicle park:

(1) must ensure that billing for the service is basedon actual water usage recorded by the retail public utility; and

(2) is prohibited from imposing a surcharge based onthe number of recreational vehicles or cabin sites in the recreationalvehicle park.

The agency certifies that legal counsel hasreviewed the proposal and found it to be within the state agency'slegal authority to adopt.

Filed with the Office of the Secretary of State on August 16, 2024.

TRD-202403777

Adriana Gonzales

Rules Coordinator

Public Utility Commission of Texas

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 936-7322

16 TAC §24.361

Statutory Authority

The repeal is proposed under Texas Water Code §13.041(a),which provides the commission the general power to regulate and supervisethe business of each public utility within its jurisdiction and todo anything specifically designated or implied by the Texas WaterCode that is necessary and convenient to the exercise of that powerand jurisdiction; Texas Water Code §13.041(b), which providesthe commission with the authority to adopt and enforce rules reasonablyrequired in the exercise of its powers and jurisdiction; Texas WaterCode §13.087 which prescribes municipal rates for certain recreationalvehicle parks; and Texas Water Code §13.152 which establishesbilling requirements for recreational vehicle parks by a retail publicutility other than an MOU.

Cross Reference to Statute: Texas Water Code §13.041(a) and(b), 13.087, 13.152.

§24.361.Municipal Rates for Certain Recreational Vehicle Parks.

The agency certifies that legal counsel hasreviewed the proposal and found it to be within the state agency'slegal authority to adopt.

Filed with the Office of the Secretary of State on August 16, 2024.

TRD-202403778

Adriana Gonzales

Rules Coordinator

Public Utility Commission of Texas

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 936-7322

SUBCHAPTER C. INFRASTRUCTURE AND RELIABILITY

16 TAC §25.52

The Public Utility Commission of Texas (commission)proposes an amendment to 16 Texas Administrative Code (TAC) §25.52relating to Reliability and Continuity of Service.

The amended rule will require each transmission and distributionutility to maintain an online outage tracker that provides detailedinformation regarding power outages. The amended rule will also requireeach electric utility, municipally owned utility, and electric cooperativeto develop processes to receive information from appropriate stateor local governmental authorities concerning the existence of potentialhazardous conditions that may require the disconnection of electricservice to a customer.

Growth Impact Statement

The agency provides the following governmental growth impact statementfor the proposed rule, as required by Texas Government Code §2001.0221.The agency has determined that for each year of the first five yearsthat the proposed rule is in effect, the following statements will apply:

(1) the proposed rule will not create a government program andwill not eliminate a government program;

(2) implementation of the proposed rule will not require the creationof new employee positions and will not require the elimination ofexisting employee positions;

(3) implementation of the proposed rule will not require an increaseand will not require a decrease in future legislative appropriationsto the agency;

(4) the proposed rule will not require an increase and will notrequire a decrease in fees paid to the agency;

(5) the proposed rule will not create a new regulation;

(6) the proposed rule will expand an existing regulation;

(7) the proposed rule will not change the number of individualssubject to the rule's applicability; and

(8) the proposed rule will not affect this state's economy.

Fiscal Impact on Small and Micro-Businesses and Rural Communities

There is no adverse economic effect anticipated for small businesses,micro-businesses, or rural communities as a result of implementingthe proposed rule. Accordingly, no economic impact statement or regulatoryflexibility analysis is required under Texas Government Code §2006.002(c).

Takings Impact Analysis

The commission has determined that the proposed rule will not bea taking of private property as defined in chapter 2007 of the TexasGovernment Code.

Fiscal Impact on State and Local Government

David Smeltzer, Director of Rules and Projects has determined thatfor the first five-year period the proposed rule is in effect, therewill be no fiscal implications for the state or for units of localgovernment under Texas Government Code §2001.024(a)(4) as a resultof enforcing or administering the section.

Public Benefits

Mr. Smeltzer has determined that for each year of the first fiveyears the proposed section is in effect the public benefit anticipatedas a result of enforcing the section will be improved communicationbetween state and local governmental entities and utilities regardinghazardous conditions and the timely and accurate monitoring and disclosureof power outages throughout the State of Texas. The probable economiccosts required to comply with the rule will be minimal and will varyfrom person to person under Texas Government Code §2001.024(a)(5).

Local Employment Impact Statement

For each year of the first five years the proposed section is ineffect, there should be no effect on a local economy; therefore, nolocal employment impact statement is required under Texas GovernmentCode §2001.022.

Costs to Regulated Persons

Texas Government Code §2001.0045(b) does not apply to thisrulemaking because the commission is expressly excluded under subsection§2001.0045(c)(7).

Public Hearing

The commission will conduct a public hearing on this rulemakingif requested in accordance with Texas Government Code §2001.029.The request for a public hearing must be received by September 20,2024. If a request for public hearing is received, commission staffwill file in this project a notice of hearing.

Public Comments

Interested persons may file comments electronically through theinterchange on the commission's website. Comments must be filed bySeptember 20, 2024. Comments should be organized in a manner consistentwith the organization of the proposed rule. The commission invitesspecific comments regarding the costs associated with, and benefitsthat will be gained by, implementation of the proposed rule. The commissionwill consider the costs and benefits in deciding whether to modifythe proposed rule on adoption. All comments should refer to ProjectNumber 56897.

Each set of comments should include a standalone executive summaryas the last page of the filing. This executive summary must be clearlylabeled with the submitting entity's name and should include a bulletedlist covering each substantive recommendation made in the comments.

Statutory Authority

The amendment is proposed under Public Utility Regulatory Act (PURA)§14.001, which grants the commission the general power to regulateand supervise the business of each public utility within its jurisdictionand to do anything specifically designated or implied by this titlethat is necessary and convenient to the exercise of that power andjurisdiction; §14.002, which authorizes the commission to adoptand enforce rules reasonably required in the exercise of its powersand jurisdiction; §38.005, which requires the commission to implementservice quality and reliability standards relating to the deliveryof electricity to customers by electric utilities; and PURA §38.072,which requires an electric utility to give nursing facilities, assistedliving facilities and hospice facilities the same priority that itgives to a hospital in the utility's emergency operations plan forrestoring power after an extended outage; and §38.074, whichrequires the commission to, in collaboration with the Railroad Commissionof Texas, rules to establish a process to designate certain naturalgas facilities and entities as critical natural gas customers duringenergy emergencies and to require utilities to prioritize these facilitiesfor load-shed and power restoration purposes during an energy emergency.

Cross Reference to Statute: Public Utility Regulatory Act §§14.001,14.002, 38.005, 38.072, 38.074.

§25.52.Reliability and Continuity of Service.

(a) Application. This section applies to all electricutilities as defined by §25.5 [§25.5(41)]of this title (relating to Definitions) and all transmission and distributionutilities as defined by §25.5 [§25.5(137)]of this title. When specifically stated, this section also appliesto electric cooperatives and municipally-owned utilities (MOUs). Theterm "utility" as used in this section means an electric utility anda transmission and distribution utility.

(b) General.

(1) - (5) (No change.)

(6) Within six months of the effective date of this rule, each utility, electric cooperative, and MOU must, in consultation with commission staff, make available to state and local authorities a method to report a potential hazardous condition that may require disconnection of service. Each utility, electric cooperative, and MOU must provide notice of the reporting method and any relevant contact information to the commission, the Railroad Commission of Texas, and the State Fire Marshal upon its adoption and no later than February 1 of each calendar year.

(7) Each utility must maintain an accurate and publicly available online outage tracker on its website.

(A) An online outage tracker must contain a map ofthe utility's service territory that identifies, for each active outage,the location of the outage, the date and time the outage was reportedor otherwise identified, an estimated restoration time, the statusof the restoration effort, and the date and time the information wasmost recently updated. Information provided by the outage trackerunder this subparagraph must be available in English and Spanish,where applicable.

(B) If a utility's outage tracker is scheduled to betaken offline or may otherwise become unavailable due to maintenanceor upgrades, the utility must post details of the scheduled activityon its website and provide notice of the scheduled activity to thecommission's Consumer Protection and Critical Infrastructure Securityand Risk Management divisions no later than seven days prior to thescheduled activity. A utility must immediately notify the commissionin writing if the utility's outage tracker unexpectedly becomes unavailable.

(C) An outage tracker must provide or link to informationthat indicates the different methods a customer may use to reportan outage or hazardous condition and provide or link to informationon how a customer may request to receive updates on the status ofoutages and outage restoration efforts.

(c) - (h) (No change.)

The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.

Filed with the Office of the Secretary of State on August 16, 2024.

TRD-202403779

Adriana Gonzales

Rules Coordinator

Public Utility Commission of Texas

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 936-7322

16 TAC §25.472

The Public Utility Commission of Texas (commission)propose an amendment to 16 Texas Administrative Code (TAC) §25.472,relating to Privacy of Customer Information. The proposed amendmentswill require retail electric providers to provide emergency contactinformation for retail electric customers to transmission and distributionutilities. The proposed amendments also restrict the use of this informationto providing affected customers with updates on power outages, estimatedrestoration times, and restoration updates.

Growth Impact Statement

The agency provides the following governmental growth impact statementfor the proposed rule, as required by Texas Government Code §2001.0221.The agency has determined that for each year of the first five yearsthat the proposed rule is in effect, the following statements will apply:

(1) the proposed rule will not create a government program andwill not eliminate a government program;

(2) implementation of the proposed rule will not require the creationof new employee positions and will not require the elimination ofexisting employee positions;

(3) implementation of the proposed rule will not require an increaseand will not require a decrease in future legislative appropriationsto the agency;

(4) the proposed rule will not require an increase and will notrequire a decrease in fees paid to the agency;

(5) the proposed rule will not create a new regulation;

(6) the proposed rule will expand an existing regulation;

(7) the proposed rule will not change the number of individualssubject to the rule's applicability; and

(8) the proposed rule will not affect this state's economy.

Fiscal Impact on Small and Micro-Businesses and Rural Communities

There is no adverse economic effect anticipated for small businesses,micro-businesses, or rural communities as a result of implementingthe proposed rule. Accordingly, no economic impact statement or regulatoryflexibility analysis is required under Texas Government Code §2006.002(c).

Takings Impact Analysis

The commission has determined that the proposed rule will not bea taking of private property as defined in chapter 2007 of the TexasGovernment Code.

Fiscal Impact on State and Local Government

David Smeltzer, Director of Rules and Projects, has determinedthat for the first five-year period the proposed rule is in effect,there will be no fiscal implications for the state or for units oflocal government under Texas Government Code §2001.024(a)(4)as a result of enforcing or administering the section.

Public Benefits

Mr. Smeltzer has determined that for each year of the first fiveyears the proposed section is in effect the public benefit anticipatedas a result of enforcing the section will be improved communicationsbetween transmission and distribution utilities and retail electriccustomers regarding electric power outages and projected restorationtimes. The economic costs required to comply with this rule will notbe significant and will vary from person to person under Texas GovernmentCode §2001.024(a)(5).

Local Employment Impact Statement

For each year of the first five years the proposed section is ineffect, there should be no effect on a local economy; therefore, nolocal employment impact statement is required under Texas GovernmentCode §2001.022.

Costs to Regulated Persons

Texas Government Code §2001.0045(b) does not apply to thisrulemaking because the commission is expressly excluded under subsection§2001.0045(c)(7).

Public Hearing

The commission will conduct a public hearing on this rulemakingif requested in accordance with Texas Government Code §2001.029.The request for a public hearing must be received by September 19,2024. If a request for public hearing is received, commission staffwill file in this project a notice of hearing.

Public Comments

Interested persons may file comments electronically through theinterchange on the commission's website. Comments must be filed bySeptember 19, 2024. Reply comments must be filed by October 3, 2024.Comments should be organized in a manner consistent with the organizationof the proposed rule. The commission invites specific comments regardingthe costs associated with, and benefits that will be gained by, implementationof the proposed rule. The commission will consider the costs and benefitsin deciding whether to modify the proposed rule on adoption. All commentsshould refer to Project Number 56898.

The commission also requests comments on the following question:

Does the proposed rule strike the appropriate balance between enablingtransmission and distribution utilities to provide affected customerswith information concerning power outages and protecting customers'privacy? If not, why?

Each set of comments should include a standalone executive summaryas the last page of the filing. This executive summary must be clearlylabeled with the submitting entity's name and should include a bulletedlist covering each substantive recommendation made in the comments.

Statutory Authority

The amendment is proposed under Public Utility Regulatory Act (PURA)§14.001, which grants the commission the general power to regulateand supervise the business of each public utility within its jurisdictionand to do anything specifically designated or implied by this titlethat is necessary and convenient to the exercise of that power andjurisdiction. §14.002, which authorizes the commission to adoptand enforce rules reasonably required in the exercise of its powersand jurisdiction. Amended §25.472 is also proposed under §17.004and §39.101, which direct the commission to implement customerprotections for electric customers, and §39.106, which directsthe commission to designate providers of last resort.

Cross Reference to Statute: Public Utility Regulatory Act §§14.001,14.002, 17.004, 39.101, and 39.106.

§25.472.Privacy of Customer Information.

(a) (No change.)

(b) Individual customer and premise information.

(1) - (5) (No change.)

(6) Emergency contact information.Notwithstanding paragraph (1) of this subsection, a REP may provideproprietary customer information to a TDU in accordance with this paragraph.

(A) Within 30 days of the effective date of this section,each REP must provide a TDU with customer contact information foreach retail customer of the REP within that TDU's service territory.The information must include the retail customer's name, service address,telephone number, mobile phone number, and email address. The REPmust provide this information using the standard electronic transactionfields intended for the provision and updating of customer contactinformation including power outage contact information.

(B) For a new customer, a REP must provide the customercontact information listed in subparagraph (A) of this paragraph tothe TDU within five days of the new customer's enrollment.

(C) A REP must provide any updated customer contactinformation to a TDU within five days of the REP receiving the updated information.

(D) A TDU may use the information provided under thisparagraph to provide affected customers with notifications of poweroutages, estimated restoration times, and restoration updates. A TDUis prohibited from using the information provided under this paragraphexcept as permitted by this subparagraph, unless otherwise authorizedby statute, commission rule, commission order, or as expressly authorizedin writing by the customer.

(E) Each communication made by a TDU to a customerusing the information provided under this paragraph must include instructionson how the customer can opt out of future communications under this paragraph.

(F) Each notification or communication provided underthis paragraph must be provided in English and Spanish.

The agency certifies that legal counselhas reviewed the proposal and found it to be within the state agency'slegal authority to adopt.

Filed with the Office of the Secretary of State on August 16, 2024.

TRD-202403780

Adriana Gonzales

Rules Coordinator

Public Utility Commission of Texas

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 936-7322

CHAPTER 84. DRIVER EDUCATION AND SAFETY

The Texas Department of Licensing and Regulation (Department)proposes amendments to existing rules at 16 Texas Administrative Code(TAC), Chapter 84, Subchapter A, §84.2 and §84.3; SubchapterC, §§84.40, 84.43, 84.44, 84.46; Subchapter D, §84.50;Subchapter E, §84.60 and §84.63; Subchapter G, §84.80;and Subchapter N, §84.600 and §84.601; new rules at SubchapterD, §84.51 and §84.52; Subchapter M, §§84.500 -84.505; and the repeal of existing rules at Subchapter D, §84.51and §84.52; and Subchapter M, §§84.500 - 84.502 and§84.504 regarding the Driver Education and Traffic Safety (DES)program. These proposed changes are referred to as "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The proposed rules under 16 TAC, Chapter 84, implement House Bill(HB) 1560, Article 5, Regular Session (2021) and Texas Education Code,Chapter 1001, Driver and Traffic Safety Education.

The proposed rules are necessary to complete the Department's administrativerulemaking effort for the implementation of HB 1560, Article 5 forthe DES program, which addresses rule amendments relating to: (1)driver training curriculum, driver education certificate prerequisites,and enforcement; and (2) implementing the recommendations of the DESCurriculum Workgroup (Workgroup).

House Bill 1560, Article 5, Driver Education(Phase 2)

House Bill 1560, Article 5, Regular Session (2021) representeda significant reorganization and modification in the Driver Educationand Traffic Safety program, which the Department is implementing intwo phases. The first phase of the DES bill implementation projectincluded: (1) repealing specific driver training license types, programcourses, endorsem*nts, and administrative functions to promote simplicityand transparency for stakeholders; and (2) amending program fees andrequirements related to the revised license types. The Departmentaccomplished these objectives in its first rulemaking to implementthe bill, through the adoption of rules that became effective June1, 2023.

This second phase of rulemaking will address additional amendmentsthat will impact issues such as: (1) driver education course curriculum,classroom and behind-the-wheel instruction hours, and course creation;(2) provider administration of driver education certificates aftercourse auditing; and (3) authorizing the Commission to change minimumhours for driver education course instruction.

The Workgroup conducted three meetings in this second phase toaddress the proposed changes to the DES program brought about by HB1560, Article 5. The Workgroup review was limited to 16 TAC Chapter84, Subchapters A, C-E, G, M and N, and the proposed rules reflecttheir recommendations.

Advisory Board Recommendations

The proposed rules were presented to and discussed by the Driver Education and Traffic Safety Advisory Committee (Committee) at its meeting on April 25, 2024. The Advisory Board approved changes to the proposed rules at 16 TAC §§84.500, 84.502, 84.505 and 84.601. The Advisory Board voted and recommended that the proposed rules with changes be published in the Texas Register for public comment.

SECTION-BY-SECTION SUMMARY

Subchapter A, General Provisions.

The proposed rules amend §84.2, Definitions, by: (1) adding new definitions for "behind-the-wheel instruction", "in-car instruction", "registered agent", and "supervised practice"; and (2) renumbering the provisions as needed.

The proposed rules amend §84.3, Materials Adopted by Reference,by updating the DES Program Guides adopted by reference to their new2024 editions, which include updates to reflect current laws, rules,and Department policies and to improve organization and clarity. TheDES Program Guides will be published separately in the Texas Register in the "In-Addition" sectionof the publication with the proposed rules.

Subchapter C, Driver Education Schools and Instructors.

The proposed rules amend §84.40, Driver Education ProviderLicensure Requirements, by: (1) repealing the requirement that a schoolprovide a current list of inventoried motor vehicles used for instructionas a part of the license renewal application; and (2) correcting rule language.

The proposed rules amend §84.43, Driver Education Certificates,by: (1) adding a provision that a school's failure to update curriculumfollowing an audit recommendation could result in the Department'ssuspension of the school's right to receive driver education certificates;(2) expanding suspension or revocation penalties to a school's credentialsin the event of any misrepresentation made by a school or instructorin issuing a driver education certificate; and (3) clarifying rulelanguage and grammar.

The proposed rules amend §84.44, Driver Education InstructorLicense, by correcting rule language.

The proposed rules amend §84.46, Attendance and Makeup, bycorrecting rule language.

Subchapter D, Parent-Taught Driver Education.

The proposed rules amend §84.50, Parent-Taught Driver EducationProgram Requirements, by (1) adding language clarifying the minimumamount of behind-the-wheel instruction and supervised practice a studentmust complete after receiving a learner license upon completion ofModule One; and (2) repealing language requiring that behind-the-wheelparent taught driver education be conducted solely on Texas highways.

The proposed rules add new §84.51, Submission of Parent-TaughtCourse for Department Approval. The new rule replaces existing §84.51to repeal the department's practice of pre-approval of course materialat initial application, and course review upon renewal, consistentwith HB 1560 directives.

The proposed rules add new §84.52, Revocation of DepartmentApproval (formerly entitled "Cancellation of Department Approval").The new rule replaces existing §84.52 to: (1) expand the Department'sauthority to revoke a parent-taught driver education (PTDE) providerlicense in the event the course material is inconsistent with applicablestate law; (2) provide a 90-day window for a PTDE provider to correctany deficiencies in the course material noticed by the Departmentbefore possible revocation; (3) establish a 30-day waiting periodfor a PTDE provider to reapply for a new parent-taught driver educationprovider license after revocation; and (4) clarified rule language.

The proposed rules repeal existing §84.51, Submission of Parent-TaughtCourse for Department Approval.

The proposed rules repeal existing §84.52, Cancellation ofDepartment Approval.

Subchapter E, Providers.

The proposed rules amend §84.60, Driving Safety Provider LicenseRequirements, by correcting rule language.

The proposed rules amend §84.63, Uniform Certificate of CourseCompletion for Driving Safety Course, by correcting rule language.

Subchapter G, General Business Practices.

The proposed rules amend §84.80, Names and Advertising, bycorrecting rule language.

Subchapter M, Curriculum and Alternative Methods of Instruction.

The proposed rules add new §84.500, Courses of Instructionfor Driver Education Providers. The new rule replaces existing §84.500to: (1) update the educational objectives of driver training coursesconsistent with current state law; (2) reduce the minimum of classroominstruction hours in driver education courses from 32 to 24 hours;(3) govern the administration and teaching of driver education materialsto maximize student mastery of educational content; (4) clarify drivereducation requirements related to behind-the-wheel and in-car instruction;(5) transfer the rule requirements for in-person and online adultsix-hour driver education courses to new §§84.502 and 84.503,respectively; (6) restrict students from enrolling in a driver educationcourse after commencement of the fifth hour (instead of the seventhhour) of classroom instruction; (7) allow DE providers more flexibilityin the presentation of driver education instruction to students, consistentwith the provisions of HB 1560; and (8) reorganize subsections as needed.

The proposed rules add new §84.501, Driver Education CourseAlternative Method of Instruction. The new rule replaces existing§84.501 to: (1) clarify minimum Department standards for AMIapproval to ensure secure testing and security measures for contentand personal validation, and integrity and consistency in presentationof driver education course curriculum with in-person and online instruction;(2) reduce the total duration of student break intervals, and theminimum hours of driver education instructional content presentedin an AMI format from 32 hours to 24 hours; (3) increase the minimumamount of minutes allocated to an AMI for multimedia presentationsfrom 640 minutes to 720 minutes; (4) simplify the academic integritystandards and instructional design concepts for an AMI driver educationcourse; (5) add multifactor authentication requirements for personalvalidation of students for an AMI driver education course; (6) clarifythe process by which a DE provider may modify AMI instructional methodsand ensure that such changes are consistent with applicable law, rulesand DE Program Guides; and (7) reorganize subsections as needed.

The proposed rules add new §84.502, In-Person Driver EducationCourse Exclusively for Adults. The new rule replaces existing §84.502to: (1) move the Department rules related to the Adult In-Person SixHour Driver Education Course from §84.500(b)(2) and place themin a separate section for greater ease in location and clarity forthe public; and (2) reorganize the subsections as needed.

The proposed rules add new §84.503, Online Driver EducationCourse Exclusively for Adults, to: (1) move the Department rules relatedto the Adult Online Six Hour Driver Education Course from §84.500(b)(2)(B)and place them in a separate section for greater ease in locationand clarity for the public; (2) add multifactor authentication requirementsfor personal validation of students for an online adult six-hour drivereducation course; and (3) reorganize the subsections as needed.

The proposed rules add new §84.504, Driving Safety Coursesof Instruction. The new rule replaces existing §84.504 to: (1)relocate the Driving Safety rules from §84.502 to this new rulelocation; (2) update the educational objectives of driver trainingcourses consistent with current state law; (3) remove authorship requirementsfor those providers that compose customized driving safety curriculum;(4) simplify rule language; and (5) reorganize the subsections as needed.

The proposed rules add new §84.505, Driving Safety CourseAlternative Delivery Method, to: (1) relocate existing §84.504to this new rule location; (2) add multifactor authentication requirementsfor personal validation of students for an ADM six-hour driving safetyeducation course; (3) simplify rule language; and (4) reorganize thesubsections as needed.

The proposed rules repeal existing §84.500, Courses of Instructionfor Driver Education Schools.

The proposed rules repeal existing §84.501, Driver EducationCourse Alternative Method of Instruction.

The proposed rules repeal existing §84.502, Driving SafetyCourses of Instruction.

The proposed rules repeal existing §84.504, Driving SafetyCourse Alternative Delivery Method.

Subchapter N, Program Instruction for Public Schools, EducationService Centers, and Colleges or Universities Course Requirements.

The proposed rules amend §84.600, Program of Organized Instruction,by: (1) reducing the minimum of classroom instruction hours in a drivereducation course from 32 to 24 hours; (2) restricting students fromenrolling in a driver education course after commencement of the fifthhour (instead of the seventh hour) of classroom instruction in a 24-hourprogram; (3) limiting driver education training (including in-carinstruction) to a maximum of six hours each day; and (4) clarifyingrule language.

The proposed rules amend §84.601, Additional Procedures forStudent Certification and Transfers, by reducing the record retentionperiod for Texas schools of driver education course completion certificatesfrom seven years to three years, or as mandated by the school district.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Tony Couvillon, Policy Research and Budget Analyst, has determinedthat for each year of the first five years the proposed rules arein effect, there are no estimated additional costs or reductions incosts to state or local government as a result of enforcing or administeringthe proposed rules.

Tony Couvillon, Policy Research and Budget Analyst, has determinedthat for each year of the first five years the proposed rules arein effect, there is no estimated increase or loss in revenue to thestate or local government as a result of enforcing or administeringthe proposed rules.

LOCAL EMPLOYMENT IMPACT STATEMENT

Because Mr. Couvillon has determined that the proposed rules willnot affect a local economy, the agency is not required to preparea local employment impact statement under Texas Government Code §2001.022.

PUBLIC BENEFITS

Mr. Couvillon also has determined that for each year of the firstfive-year period the proposed rules are in effect, the public benefitwill be that the proposed rules become clearer and easier to understand,and aids license holders to comply with the rules more fully.

Adoption of the limited changes contained in the proposed rulesby the Texas Commission of Licensing and Regulation will: (1) clarifyand update the curriculum requirements to reflect the current rolesand responsibilities for the driver education provider types; (2)align the standards for parent-taught course approvals to conformwith current department practices; (3) reduce the minimum number ofclassroom hours for a driver education course from 32 hours to 24hours, allowing providers to streamline educational materials deliveredto students and increase content mastery; and (4) increase the maximumhours of daily driver education for prospective students by providersfrom four to six hours, allowing providers to more efficiently offerclassroom and in-car instruction.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Couvillon has determined that for each year of the first five-yearperiod the proposed rules are in effect, there are no anticipatedeconomic costs to persons who are required to comply with the proposed rules.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse economic effect on small businesses, micro-businesses,or rural communities as a result of the proposed rules. Because theagency has determined that the proposed rule will have no adverseeconomic effect on small businesses, micro-businesses, or rural communities,preparation of an Economic Impact Statement and a Regulatory FlexibilityAnalysis, as detailed under Texas Government Code §2006.002,is not required.

Many holders of driver education provider licenses are small ormicro-businesses. However, the agency does not track employee numbersor gross receipt amounts for its license holders, so the number ofsuch businesses cannot be estimated. The proposed rules do not imposeany adverse costs on small or micro-businesses. All driver educationcourses currently exceed the minimum number of hours, and no provideris required to reduce the hours in their driver education course curriculum,therefore no cost is required to comply. Any costs that might be entailedin complying with the minor changes to the curriculum language willbe minimal.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

The proposed rules do not have a fiscal note that imposes a coston regulated persons, including another state agency, a special district,or a local government. Therefore, the agency is not required to takeany further action under Texas Government Code §2001.0045.

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Texas Government Code §2001.0221, the agency providesthe following Government Growth Impact Statement for the proposedrules. For each year of the first five years the proposed rules willbe in effect, the agency has determined the following:

1. The proposed rules do not create or eliminate a government program.

2. Implementation of the proposed rules does not require the creationof new employee positions or the elimination of existing employee positions.

3. Implementation of the proposed rules does not require an increaseor decrease in future legislative appropriations to the agency.

4. The proposed rules do not require an increase or decrease infees paid to the agency.

5. The proposed rules do not create a new regulation.

6. The proposed rules expand, limit, or repeal an existing regulation.

The proposed rules require a decrease in the classroom hours forthe teen course from 32 to 24.

The proposed rules expand an existing regulation by adding failureto update curriculum post-audit as required as an additional reasonfor the suspension of the provider's right to receive driver educationcertificates; and by authorizing a public school to determine a combinationof methods of instruction that can be provided in the six hours ofdriver education training allowed.

The proposed rules limit a regulation by removing the requirementfor a renewing driver education provider to submit a current listof all motor vehicles used for instruction, and by removing the signaturerequirement for a driving training entity ordering driver education certificates.

7. The proposed rules do not increase or decrease the number ofindividuals subject to the rules' applicability.

8. The proposed rules do not positively or adversely affect thisstate's economy.

TAKINGS IMPACT ASSESSMENT

The Department has determined that no private real property interestsare affected by the proposed rules and the proposed rules do not restrict,limit, or impose a burden on an owner's rights to his or her privatereal property that would otherwise exist in the absence of governmentaction. As a result, the proposed rules do not constitute a takingor require a takings impact assessment under Texas Government Code§2007.043.

PUBLIC COMMENTS

Comments on the proposed rules may be submitted electronicallyon the Department's website at https://ga.tdlr.texas.gov:1443/form/gcerules; by facsimile to (512) 475-3032; or by mail to Shamica Mason,Legal Assistant, Texas Department of Licensing and Regulation, P.O.Box 12157, Austin, Texas 78711. The deadline for comments is 30 daysafter publication in the Texas Register.

SUBCHAPTER A. GENERAL PROVISIONS

16 TAC §84.2, §84.3

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapter51, and Texas Education Code, Chapter 1001, which authorize the TexasCommission of Licensing and Regulation, the Department's governingbody, to adopt rules as necessary to implement these chapters andany other law establishing a program regulated by the Department.

The statutory provisions affected by the proposed rules are thoseset forth in Texas Occupations Code, Chapter 51, and Texas EducationCode, Chapter 1001. No other statutes, articles, or codes are affectedby the proposed rules.

The legislation that enacted the statutory authority under whichthe proposed rules are proposed to be adopted is House Bill 1560,87th Legislature, Regular Session (2021).

§84.2.Definitions.

Words and terms defined in the Code have the same meaning whenused in this chapter. The following words and terms have the followingmeanings when used in this chapter, unless the context clearly indicates otherwise.

(1) ADE-1317--The driver education certificate of completionconfirming student completion of a department-approved driver educationcourse exclusively for adults.

(2) Advertising--Any affirmative act, whether writtenor oral, designed to call public attention to a driver training provideror course [in order] to evoke a desire to patronize thatdriver training provider or course. This includes meta tags and search engines.

(3) Behind-the-wheel instruction--Drivinginstruction of a licensed student driver conducted with a TDLR licensedinstructor, or authorized parent or individual pursuant to Texas EducationCode §1001.112.

(4) [(3)] Branch location--Alicensed in-person driver education provider that has the same ownershipand name as a licensed primary in-person driver education providerbut has a different physical address from the primary provider.

(5) [(4)] Code--Refers to TexasEducation Code, Chapter 1001.

(6) [(5)] Contract site--An accreditedpublic or private secondary, or postsecondary school approved as alocation for a driver education course of a licensed driver education provider.

(7) [(6)] DE-964--The drivereducation certificate of completion confirming completion of an approvedminor and adult driver education course.

(8) [(7)] Education Service Center(ESC)--A public school district service organization of the TexasEducation Agency governed by Texas Education Code, Chapter Eight.

(9) [(8)] Endorsem*nt--The methodby which a driver education course is delivered to the student, whetherin-person, online or parent-taught.

(10) In-car instruction - Refers toobservation instruction and behind-the-wheel instruction.

(11) [(9)] Instructional Hour(also known as "Clock Hour"):

(A) Driver Education Provider Instructional Hour--55minutes of instruction time in a 60-minute period for a driver educationcourse. This includes classroom and in-car instruction time.

(B) Driving Safety Provider Instructional Hour--50minutes of instruction in a 60-minute period for a driving safety course.

(12) [(10)] Personal validationquestion--A question designed to establish the identity of the studentby requiring an answer related to personal information such as a driver'slicense number, address, date of birth, or other similar informationthat is unique to the student.

(13) [(11)] Primary driver educationprovider--The main business location for a licensed in-person drivereducation provider.

(14) [(12)] Public or privateschool--A public or private secondary school accredited by the TexasEducation Agency.

(15) Registered agent--An individualTexas resident or an organization on whom may be served process, notice,or demand required or permitted by law to be served on a filing entity,domestic or foreign. Registered agents must be designated and maintainedin accordance with Texas Business Organizations Code, Chapter Five.

(16) [(13)] Relevant driver trainingentity--Refers to a licensed driver education provider, exempt drivereducation school, public or private school, education service center,college, or university.

(17) Supervised practice--Drivinginstruction of a licensed student driver conducted with a TDLR licensedinstructor, or in the presence of an adult who meets the requirementsof Texas Transportation Code, §521.222(d)(2), or authorized parentor individual pursuant to Texas Education Code §1001.112.

(18) [(14)] Uniform certificateof course completion--A document with a serial number purchased fromthe department that is printed, administered, and suppliedby driving safety providers for issuance to students confirming completionof an approved driving safety course, and that meets the requirementsof Texas Transportation Code, Chapter 543, and Texas Code of CriminalProcedure, Article 45.051 or 45.0511. This term encompasses all partsof an original or duplicate uniform certificate of course completion.

(19) [(15)] Validation question--Aquestion designed to establish the student's participation in a courseor program and comprehension of the materials by requiring the studentto answer a question regarding a fact or concept taught in the courseor program.

§84.3.Materials Adopted by Reference.

(a) The minimum requirements for course content, classroominstruction, in-car, simulation, and range training required by thischapter for a minor and adult driver education course are the standardsestablished in the Program of Organized Instruction in Driver Educationand Traffic Safety (POI-DE), December 2024 [May 2022]Edition, created and distributed by the department, which is adoptedinto these rules by reference.

(b) The minimum requirements for course content andinstruction for a driver education course exclusively for adults arethe standards established in the Program of Organized Instructionin Driver Education and Traffic Safety Exclusively for Adults Six-HourCourse (POI-Adult Six-Hour), December 2024 [May 2022]Edition, created and distributed by the department, which is adoptedinto these rules by reference.

(c) The minimum requirements for course content andinstruction for a driving safety course are the standards establishedin the Course of Organized Instruction for Driving Safety, (COI-DrivingSafety), December 2024 [May 2022] Edition, createdand distributed by the department, which is adopted into these rulesby reference.

The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.

Filed with the Office of the Secretary of State on August 19, 2024.

TRD-202403803

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 463-7750

16 TAC §§84.40, 84.43, 84.44, 84.46

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapter51, and Texas Education Code, Chapter 1001, which authorize the TexasCommission of Licensing and Regulation, the Department's governingbody, to adopt rules as necessary to implement these chapters andany other law establishing a program regulated by the Department.

The statutory provisions affected by the proposed rules are thoseset forth in Texas Occupations Code, Chapter 51, and Texas EducationCode, Chapter 1001. No other statutes, articles, or codes are affectedby the proposed rules.

The legislation that enacted the statutory authority under whichthe proposed rules are proposed to be adopted is House Bill 1560,87th Legislature, Regular Session (2021).

§84.40.Driver Education Provider Licensure Requirements.

(a) Application. An application for licensure as adriver education provider must be made on forms prescribed by thedepartment[,] and be accompanied by the appropriate fees.An application for a branch driver education provider license mustnot have the same physical address as the primary provider. A licenseapplication is valid for one year from the date it is filed with the department.

(b) Bond requirements. In the case of an original ora change of owner application, an original bond must be provided.In the case of a renewal application, an original bond or a continuationagreement for the approved bond currently on file must be submitted.The bond or the continuation agreement must be executed on the formprovided by the department.

(c) Verification of driver education provider ownership.In the case of an original or change of owner application for a drivereducation provider, the owner must provide verification of ownershipto the department.

(d) Change of ownership of a driver education provider.A change of ownership occurs when there is a change in the controlof the provider. The control of a provider is considered to have changed:

(1) in the case of ownership by an individual, whenmore than 50 percent of the provider has been sold or transferred;

(2) in the case of ownership by a partnership or acorporation, when more than 50 percent of the provider, or of theowning partnership or corporation has been sold or transferred; or

(3) when the board of directors, officers, shareholders,or similar governing body has been changed to such an extent as tosignificantly alter the management and control of the provider.

(e) Purchase of a driver education provider.

(1) A person who purchases a licensed driver educationprovider must obtain an original license or branch location licenseas applicable.

(2) The purchaser must assume all refund liabilitiesincurred by any former owner as well as the liabilities, duties, andobligations under the enrollment contracts between the students andany former owner before the transfer of ownership.

(f) New location or change of address.

(1) The department must be notified in writing of anychange of address at least fifteen (15) working days before the move.

(2) The driver education provider must submit the appropriatechange of address fee prior to the actual move.

(3) If a student is not willing or able to change locations,a pro-rata refund (without deducting any administrative expense) mustbe made to the student.

(g) Renewal of driver education provider license. Anapplication for the renewal of a license for a driver education providermust be submitted before the expiration of the license and includethe following:

(1) the renewal fee;

(2) a current list of instructors at the school, ifapplicable; and

(3) an executed bond or executed continuation agreementfor the bond, currently approved by and on file with the department. [; and]

[(4) if applicable, a current listof all motor vehicles used for instruction.]

(h) Denial, revocation, or conditional license. Theauthority to operate a branch location ceases if a primary drivereducation provider license is denied or revoked. The operation ofa branch location license may be subject to any conditions placedon the continued operation of the primary driver education provider.A driver education provider license for a branch location may be denied,revoked, or conditioned separately from the license for the primary location.

(i) Driver education provider closure.

(1) The driver education provider owner must notifythe department at least fifteen (15) working [business]days before the anticipated provider closure. In addition, the drivereducation provider owner must provide written notice of the actualdiscontinuance of the operation on the day of cessation of classes.A driver education provider must make all records available for reviewto the department upon department request.

(2) The department may declare a driver education providerto be closed:

(A) when the provider no longer has the facilities,vehicles, instructors, or equipment to provide training pursuant tothis chapter;

(B) when the provider has stopped delivering instructionand training in driver education and has failed to fulfill contractualobligations to its students;

(C) when the provider informs the department in writingof its intention to no longer deliver instruction or training in drivereducation and returns all unissued driver education certificates orcertificate numbers; or

(D) when the provider owner allows the license to expire.

(3) If a branch location closes and a student is notwilling or able to complete the training at the primary location,a pro-rata refund (without deducting any administrative expense) mustbe made to the student.

(j) A driver education provider must not state or implythat a driver's license, permit, or DE-964 is guaranteed or assuredto any student or individual who will take or complete any instruction,or enroll, or otherwise receive instruction from any driver education provider.

(k) Contract site. An in-person driver education providermay conduct a course at a contract site, upon execution of a legalwritten agreement between the licensed driver education provider andan authorized representative for the contract site to provide drivereducation instruction. The course is subject to the same rules thatapply to the licensed driver education provider, including inspectionsby department representatives. An on-site inspection is not requiredprior to use of the site. The written agreement is subject to therecordkeeping requirements under §84.81.

§84.43.Driver Education Certificates.

(a) Relevant driver training entities.

(1) A relevant driver training entity may request drivereducation certificates or certificate numbers by submitting an online[, mailed or faxed] department prescribed order form, [signedby an authorized representative of the relevant driver training entity,]stating the number of driver education certificates or certificatenumbers to be purchased and include payment of all appropriate fees.[A signature is not required for orders placed through the online system.]

(2) Relevant driver training entities must:

(A) issue driver education certificates or certificatenumbers only to students who have successfully completed the applicableportion of the approved driver education course;

(B) issue driver education certificates or certificatenumbers in serial number order as purchased from the department;

(C) indicate the serial number of the original drivereducation certificate or certificate number on such certificate orcertificate number and any issued duplicate, if necessary;

(D) not use an ADE-1317 driver education certificateor certificate number to replace a DE-964 driver education certificateor certificate number;

(E) not transfer unassigned or blank driver educationcertificates or certificate numbers at any time;

(F) maintain effective protective measures to ensurethe security of driver education certificates or certificate numbersto prevent the unauthorized production or misuse of the certificates,and for the recovery of lost data (electronic or otherwise) for suchcertificates or certificate numbers;

(G) maintain reconciliation records of all purchased,issued, unissued or unassigned driver education certificates or certificatenumbers in ascending serial number order, and ensure security andrecovery of the reconciliation record data;

(H) make all records available for review by representativesof the department upon request;

(I) return unissued driver education certificates orcertificate numbers to the department within thirty (30) calendardays from the date of the discontinuance of the driver education program,unless otherwise notified by the department;

(J) report to the department all unaccounted drivereducation certificates or certificate numbers within fifteen (15)working days of the discovery of the incident;

(K) conduct an investigation to determine the circ*mstancessurrounding their unaccounted driver education certificates and reportthe investigation findings, including preventative measures for recurrence,to the department within thirty (30) calendar days of the discovery;

(L) develop and maintain effective policies and processesto ensure constant privacy, security, and integrity of confidentialstudent information, personal and financial, and make the privacypolicy available to all students; and

(M) ensure that the front of each driver educationcertificate contains the department's complaint contact informationand current department telephone number in a font that is visibly recognizable.

(3) Each unaccounted original or duplicate driver educationcertificate or certificate number (whether lost, stolen, blank, orunissued) may be considered a separate violation.

(4) The right to receive driver education certificatesmay be immediately suspended for a period determined by the department if:

(A) a department investigation is in progress and thedepartment has reasonable cause to believe the certificates have beenmisused or abused or that adequate security was not provided; or

(B) the relevant driver training entity or its designeefails to provide information on records requested by the department,or fails, post-audit, to update curriculum based on changes in departmentrules or applicable law within the required time.

(5) The driver education certificate is a governmentrecord as defined under Texas Penal Code, §37.01(2). Any misrepresentationby the applicant or person issuing the driver education certificatemay result in suspension or revocation of instructor and/or provider credentials or program approval and/or criminal prosecution.

(b) Driver education provider responsibilities.

(1) Driver education certificates or certificate numbersmust only be ordered by driver education providers. The primary drivereducation provider must order all driver education certificates andcertificate numbers for its branch locations.

(2) A driver education provider must issue the "ForLearner License Only" portion of the DE-964 certificate to the studentupon successful completion of Module One of the Program of OrganizedInstruction for Driver Education and Traffic Safety.

(3) A driver education provider must issue the "ForDriver License Only" portion of the DE-964 certificate to the studentupon successful completion of the driver education course.

(4) The exception to paragraphs (2) and (3) is a requestfor transfer by the parent or legal guardian of the student. The transferpolicy will be followed to comply with the parent or legal guardianrequest for transfer.

(5) The DPS copy of a driver education certificatemust contain the original signature of the driver education instructor,or the designated parent-taught driver education instructor as applicable.The name of the driver education provider owner or its designee maybe written, stamped, or typed.

(c) Public or Private Schools, Education Service Centers,Colleges, or Universities responsibilities.

(1) The driver education certificates must be issuedto the superintendent, college, or university chief schoolofficial, ESC director, or their designee responsible for managingthe certificates for the school. This does not remove the superintendent,college, or university chief school official, or ESC directorfrom obligations pursuant to this subchapter to oversee the program.

(2) The department will accept purchase requisitionsfrom school districts.

(3) Each superintendent, college, or universitychief school official, ESC director, or their designee must ensurethat the policies concerning driver education certificates are followedby all individuals who have responsibility for the certificates.

(4) The superintendent, college, or universitychief school official, ESC director, or their designee must ensurethat employees issue a driver education certificate only to a personwho has successfully completed the entire portion of the course forwhich the driver education certificate is being used.

(A) The "For Learner License Only" portion of the drivereducation certificate must be issued to the student upon completionof Module One of the Program of Organized Instruction for Driver Educationand Traffic Safety.

(B) The "For Driver License Only" portion of the drivereducation certificate must be issued to the student upon completionof the driver education program.

(C) The exception to subparagraphs (A) and (B) is arequest for transfer by the parent or legal guardian of the student.The transfer policy will be followed to comply with the parent orlegal guardian request for transfer.

(5) The DPS copy of a driver education certificatemust contain the original signature of the driver education instructor.The name of the superintendent, college, or universitychief school official, ESC director, or their designee may be written,stamped, typed, or omitted.

(6) The superintendent, college, or universitychief school official, ESC director, or their designee must completethe affidavit on the driver education certificate if the licensedinstructor has left the driver education program, become seriouslyill or deceased.

§84.44.Driver Education Instructor License.

(a) An application for licensure as a driver educationinstructor must be made on forms prescribed by the department andbe accompanied by the appropriate fees. A license application is validfor one year from the date it is filed with the department. A personapplying for an original driver education instructor license must:

(1) hold a valid class A, B, C, or CDL driver's license,other than a learner license or provisional license, for the precedingthree years, that has not been revoked or suspended in the precedingthree years;

(2) submit a completed application with non-refundableapplication fee as prescribed by the department;

(3) submit the instructor licensing fees;

(4) submit a national criminal history record informationreview fee; and

(5) provide fingerprints to the Texas Department ofPublic Safety (DPS) through the IdentoGo Fingerprint Service or anyother method required by the DPS.

(b) A driver education instructor may perform instructionand administration of the classroom and in-car phases of driver education,as prescribed in the POI-DE, and the classroom phase of the POI-Adult Six-Hour.

(c) An application for renewal of a driver educationinstructor license must be submitted on forms prescribed by the department.A complete renewal application must include the following:

(1) the renewal fee;

(2) provide a valid driver license record that meetsthe requirements stated in §84.44(a)(1); and

(3) if selected for audit, proof of successful completionof at least two hours of continuing education credit during the licenserenewal period relating to driver education, driving safety, and instructional techniques.

(d) The department will employ an audit system forreporting completion of continuing education. The licensee is responsiblefor maintaining a record of the licensee's continuing education experiences.The certificates, transcripts, or other documentation verifying thecompletion of continuing education hours must not be forwarded tothe department at the time of renewal unless the department has selectedthe licensee for audit.

(e) The audit process for continuing education willbe as follows:

(1) The department will select for audit a random sampleof licensees for each renewal period. Licensees will be notified ofthe continuing education audit when they receive their renewal documentation.

(2) If selected for an audit, the licensee must submitcopies of certificates, transcripts, or other documentation satisfactoryto the department, verifying the licensee's attendance, participation,and completion of the continuing education. All documentation mustbe provided at the time of the renewal.

(3) Failure to timely furnish documentation or providingfalse information during the audit process or renewal process aregrounds for disciplinary action against the licensee.

(f) An applicant for a driver education instructorlicense or its renewal must [successfully] pass a criminalhistory background check.

§84.46.Attendance and Makeup.

(a) Written or electronic records of student attendancemust be prepared daily to document the attendance and absence of thestudents. A student must make up any time missed. Electronic signaturesmust comply with Texas Business and Commerce Code, Chapter 322.

(b) Driver education training offered by the providermust not exceed six hours per day. In-person driver education providersmay include five minutes of break per instructional hour as identifiedin §84.500 (relating to Courses of Instruction for Driver Education Providers [Schools]). In-car instruction providedby the provider must not exceed four hours per day as follows:

(1) four hours or less of in-car training; however,behind-the-wheel instruction must not exceed two hours per day; or

(2) four hours or less of simulation instruction; or

(3) four hours or less of multicar range instruction; or

(4) any combination of the methods delineated in thissubsection that does not exceed four hours per day.

(c) A student must complete the hours of instructionfor the required classroom and in-car phases of the minor or adultdriver education course, including any makeup lessons, within thetimeline specified in the original student enrollment contract.

(d) Amendments [Variances] tothe timelines for completion of the driver education instruction statedin the original student enrollment contract may be made at the discretionof the provider owner and must be agreed to in writing by the parentor guardian.

The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.

Filed with the Office of the Secretary of State on August 19, 2024.

TRD-202403804

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 463-7750

16 TAC §84.51, §84.52

STATUTORY AUTHORITY

The proposed repeals are proposed under Texas Occupations Code,Chapter 51, and Texas Education Code, Chapter 1001, which authorizethe Texas Commission of Licensing and Regulation, the Department'sgoverning body, to adopt rules as necessary to implement these chaptersand any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposed repeals are thoseset forth in Texas Occupations Code, Chapter 51, and Texas EducationCode, Chapter 1001. No other statutes, articles, or codes are affectedby the proposed repeals.

The legislation that enacted the statutory authority under whichthe proposed repeals are proposed to be adopted is House Bill 1560,87th Legislature, Regular Session (2021).

§84.51.Submission of Parent-Taught Course for Department Approval.

§84.52.Cancellation of Department Approval.

The agency certifies that legal counsel hasreviewed the proposal and found it to be within the state agency'slegal authority to adopt.

Filed with the Office of the Secretary of State on August 19, 2024.

TRD-202403810

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 463-7750

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapter51, and Texas Education Code, Chapter 1001, which authorize the TexasCommission of Licensing and Regulation, the Department's governingbody, to adopt rules as necessary to implement these chapters andany other law establishing a program regulated by the Department.

The statutory provisions affected by the proposed rules are thoseset forth in Texas Occupations Code, Chapter 51, and Texas EducationCode, Chapter 1001. No other statutes, articles, or codes are affectedby the proposed rules.

The legislation that enacted the statutory authority under whichthe proposed rules are proposed to be adopted is House Bill 1560,87th Legislature, Regular Session (2021).

§84.50.Parent-Taught Driver Education Program Requirements.

(a) Prior to teaching a department-approved parent-taughtdriver education course, a parent or other individual authorized under§1001.112 of the Code, must submit a completed request for Parent-TaughtDriver Education Instructor Designation Service Application with anon-refundable fee to the department.

(b) After receiving the Parent-Taught Driver EducationInstructor Designation Service Application, the instructor must obtainone of the department approved parent-taught driver education coursesto fulfill program requirements.

(c) The parent-taught driver education provider mustprovide the appropriate portion of a control-numbered DE-964 to aperson who has completed the objectives found in Module One: TrafficLaws of the POI-DE, or who has successfully completed the entire portionof the course for which the DE-964 is being issued.

(d) The program includes both classroom and in-carinstruction phases. Instruction is limited to six hours per day, includingnot more than two hours of behind-the-wheel instruction per day.

(e) The parent, or other individual authorized under§1001.112 of the Code, may teach both instruction phases, orutilize a licensed driver education provider, or public driver educationschool for either phase.

(f) The fourteen (14) hours of in-car instruction mustbe taught under one program: either parent-taught, or a licensed drivereducation provider, or public driver education school. All previousdriver education hours must be repeated if the method of instructionchanges prior to completion of either phase.

(g) The remaining hours of classroom following ModuleOne: Traffic Laws of the POI-DE, must be taught under one program,either parent-taught, a licensed driver education provider, or publicdriver education school.

(h) The additional thirty (30) hours of behind-the-wheelsupervised practice must be completed in the presence of an adultwho meets the requirements of Texas Transportation Code, §521.222(d)(2).

(i) A student may apply to the Department of PublicSafety for a learner license after completion of the objectives foundin Module One: Traffic Laws of the POI-DE.

(j) Behind-the-wheel parent-taught drivereducation instruction may be conducted in any vehicle that is legallyoperated with a Class C driver license [on a Texas highway].

(k) Behind-the-wheel parent-taughtdriver education instruction and supervised practice may begin afterthe student receives a learner license. The required curriculum thatmust be followed includes:

(1) a minimum of 44 hours that consists of: seven hoursbehind-the-wheel instruction in the presence of a parent or otherindividual authorized under §1001.112 of the Code;

(2) seven hours of in-car observation in the presenceof a parent or other individual authorized under §1001.112 ofthe Code; and

(3) 30 hours of behind-the-wheel supervised practice,including at least 10 hours at night, certified by a parent or guardianwho meets the requirements of Texas Transportation Code, §521.222(d)(2).The 30 hours of behind-the-wheel supervised practice must be endorsedby a parent or legal guardian if the student is a minor.

[(k) Behind-the-wheel driver educationinstruction may begin after the student receives a learner license.The required curriculum that must be followed includes: minimum of44 hours that includes: seven hours behind the wheel supervised practiceinstruction in the presence of a parent or other individual authorizedunder §1001.112 of the Code; seven hours of in-car observationin the presence of a parent or other individual authorized under §1001.112of the Code; and 30 hours of behind the wheel supervised practice,including at least 10 hours at night, in the presence of an adultwho meets the requirements of Texas Transportation Code, §521.222(d)(2).]

§84.51.Submission of Parent-Taught Course for Department Approval.

(a) If the curriculum and all materials meet or exceedthe applicable minimum standards set forth in the Code, the departmentwill approve the course. No more than 640 minutes of the requiredhours of classroom instruction delivered via multimedia may be counted.

(b) Notification of approval or denial will be sentto the requesting entity. Deficiencies will be noted in cases of denial.Any substantive change in course curriculum or materials will requiresubmission for approval according to subsection (a).

(c) A written request is required within thirty (30)days if there is any change relating to an approved course, includingcontact information, company name, and course titles. Updated informationwill be included as soon as practical.

(d) The department will retain submitted materialsaccording to the department's retention schedule.

(e) Course identification. All parent-taught coursesmust display the parent-taught provider name and license number assignedby the department on the entity's website and the registration pageused by the student to pay any monies, provide any personal information,and enroll.

(f) A parent-taught driver education provider may acceptstudents redirected from a website if the student is redirected toa webpage that clearly identifies the parent-taught provider and licensenumber offering the course. This information must be visible beforeand during the student registration and course payment processes.

§84.52.Revocation of Department Approval.

(a) A parent-taught driver education provider may berevoked upon finding that the course does not meet the standards requiredunder §1001.112 or §1001.2043(a) of the Code.

(b) Prior to revocation, the department will allowthe parent-taught driver education provider ninety (90) days fromthe date of notification the opportunity to correct the noted deficienciesin the curriculum.

(c) Failure to adequately respond within the requiredtime will result in revocation of the course.

(d) If a parent-taught driver education course is revokedby the department, the entity must wait thirty (30) days before applyingfor a new Parent Taught Driver Education Provider license.

The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.

Filed with the Office of the Secretary of State on August 19, 2024.

TRD-202403805

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 463-7750

16 TAC §84.60, §84.63

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapter 51, and Texas Education Code, Chapter 1001, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters andany other law establishing a program regulated by the Department.

The statutory provisions affected by the proposed rules are thoseset forth in Texas Occupations Code, Chapter 51, and Texas EducationCode, Chapter 1001. No other statutes, articles, or codes are affectedby the proposed rules.

The legislation that enacted the statutory authority under whichthe proposed rules are proposed to be adopted is House Bill 1560,87th Legislature, Regular Session (2021).

§84.60.Driving Safety Provider License Requirements.

(a) Application for driving safety provider license.An application for a driving safety provider license must be madeon forms prescribed by the department, and be accompanied by the appropriatefee. A license application is valid for one year from the date itis filed with the department.

(b) Bond requirements for providers. In the case ofan original or a change of owner application, an original bond mustbe provided in the amount of $10,000. In the case of a renewal application,an original bond or a continuation agreement for the approved bondcurrently on file shall be submitted. The bond or the continuationagreement must be executed on the form prescribed by the department.

(c) Provider license. The provider license must indicatethe name of the driving safety course for which approval is grantedexactly as stated in the application for the course approval.

(d) Verification of ownership for driving safety provider.In the case of an original or change of owner application for a drivingsafety provider, the provider owner must provide verification of ownership.

(e) Purchase of driving safety provider. A person orpersons purchasing a licensed driving safety provider must obtainan original license and bond. The contract or any instrument transferringthe ownership of the driving safety provider must include the following statements:

(1) The purchaser must assume all refund liabilitiesincurred by the seller or any former owner before the transfer ofownership; and

(2) The purchaser must assume the liabilities, duties,and obligations under the enrollment contracts between the studentsand the seller, or any former owner.

(f) New location. The department must be notified inwriting of any change of address of a driving safety provider or itsregistered agent at least fifteen (15) working days before the move.The appropriate fee and all documents must also be submitted.

(g) Renewal of driving safety provider license. A completeapplication for the renewal of a license for a driving safety providermust be submitted before the expiration of the license and must includethe following:

(1) a completed application for renewal;

(2) an annual renewal fee; and

(3) an executed bond or executed continuation agreementfor the bond currently on file with the department.

(h) Provider closure. A provider owner must notifythe department of its closure date at least fifteen (15) working [business] days before the closure. A provider must make allrecords and all used and unused uniform certificates of course completionand course completion certificate numbers available for review bythe department upon request.

§84.63.Uniform Certificate of Course Completion for Driving Safety Course.

(a) For purposes of this section, the term "certificate"refers to uniform certificates of course completion issued by thedepartment to driving safety providers in paper format, and certificatenumbers issued to driving safety providers for inclusion on department-approveddriving safety course certificate completion forms.

(b) Driving safety provider responsibilities. Providersare responsible for original and duplicate certificates in accordancewith this subsection. Each driving safety provider must:

(1) submit a plan for the electronic issuance of certificatesfor approval by the department prior to its implementation;

(2) issue certificates that comply with the designspecifications approved by the department;

(3) develop and maintain a department-approved methodfor securing, issuing, and maintaining original and duplicate certificatesthat, to the greatest extent possible, prevents the unauthorized productionor misuse of the certificates, and allows for the recovery of lostdata (electronic or otherwise) for such certificates;

(4) issue certificates only to students who have successfullycompleted all elements of the provider's approved driving safety course;

(5) maintain secure files (electronic or otherwise)with data pertaining to all certificates purchased from the department,and must make available to the department, upon request, an ascendingnumerical accounting record of the numbered certificates issued;

(6) issue all original and duplicate certificates usingfirst-class or enhanced postage, equivalent commercial delivery method,or a department-approved electronic issuance method;

(7) sequentially number original certificates fromthe block of numbers purchased from the department;

(8) use certificates only for the course for whichthe certificates were ordered from the department;

(9) implement and maintain methods for efficientlyissuing original certificates so that issuance of duplicate certificatesis kept at a minimal rate;

(10) report all unaccounted original and duplicatecertificates or unissued certificates or duplicates to the departmentwithin 15 working [business] days of the discoveryof the incident;

(11) conduct an investigation to determine the circ*mstancessurrounding the unaccounted items noted in paragraph (10), and submita report of the findings of the investigation, including preventativemeasures for recurrence, to the department within thirty (30) daysof the discovery; and

(12) report original and duplicate certificate data,by secure electronic transmission, to the department within five (5)days of issuance using guidelines established and provided by thedepartment. The issue date indicated on the certificate shall be thedate the provider issues the certificate to the student.

(c) Disposition of original or duplicate certificates.

(1) The provider's records, including unissued or unnumberedoriginal and duplicate certificates, must be available for reviewby representatives of the department.

(2) A driver safety provider must not issue, transfer,or transmit an original or duplicate certificate bearing the serialnumber of a certificate or duplicate previously issued.

(3) Each unaccounted, missing, blank, or unissued originalor duplicate certificate may be considered a separate violation. Thismay include a lost, stolen, or otherwise unaccounted original or duplicate certificate.

(4) When a duplicate certificate is issued by a provider,the duplicate certificate shall bear a serial number from the blockof numbers purchased from the department by the provider. The duplicatecertificate must clearly indicate the number of both the duplicateand the original serial number of the certificate being replaced.

(5) Any item on a duplicate certificate that has differentdata than that shown on the original certificate must clearly indicateboth the original data and the replacement data; for example, a changein the date of course completion must show the correct date and "changedfrom XX," where "XX" is the date shown on the original certificate.

(6) If the student requests a duplicate certificatewithin thirty (30) days of the date of issue of the original certificatebecause the original was not received, unusable, or was issued witherrors due to no fault of the student, the provider must issue theduplicate at no cost to the student. Driving safety providers mustinclude this information in the student enrollment contract.

The agency certifies that legal counsel hasreviewed the proposal and found it to be within the state agency'slegal authority to adopt.

Filed with the Office of the Secretary of State on August 19, 2024.

TRD-202403806

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 463-7750

16 TAC §84.80

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapter51, and Texas Education Code, Chapter 1001, which authorize the TexasCommission of Licensing and Regulation, the Department's governingbody, to adopt rules as necessary to implement these chapters andany other law establishing a program regulated by the Department.

The statutory provisions affected by the proposed rules are thoseset forth in Texas Occupations Code, Chapter 51, and Texas EducationCode, Chapter 1001. No other statutes, articles, or codes are affectedby the proposed rules.

The legislation that enacted the statutory authority under whichthe proposed rules are proposed to be adopted is House Bill 1560,87th Legislature, Regular Session (2021).

§84.80.Names and Advertising.

(a) A licensed driver training provider must not conductbusiness or advertise under a name that is not distinguishable froma name used by any other licensed driver training provider [provide], or tax-supported educational establishment in thisstate, unless specifically approved in writing by the department.

(b) Use of names other than the approved provider namemay constitute a violation of this section.

(c) Branch providers must conduct business using thesame name as the primary driver education provider.

(d) Any publicly posted advertisem*nt from a licenseapplicant subject to license approval by the department must includethe following information:

(1) A notice stating "Driving School Coming Soon"; and

(2) Display a functioning phone number and email addressfor the provider within the advertisem*nt.

(e) An applicant applying for approval of a new providerlicense must not:

(1) Enroll students or conduct classes in driver trainingprior to department approval of the license application;

(2) Accept payments from prospective students; or

(3) Publish advertisem*nts including the provider nameor upcoming class sessions.

(f) A driver training provider must not advertise withoutincluding the provider name and license number as it appears on theprovider license.

(g) All advertisem*nts of a multiple classroom locationor alternative delivery method shall meet the requirements in subsections(a) - (f).

The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.

Filed with the Office of the Secretary of State on August 19, 2024.

TRD-202403807

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 463-7750

16 TAC §§84.500 - 84.502, 84.504

STATUTORY AUTHORITY

The proposed repeals are proposed under Texas Occupations Code,Chapter 51, and Texas Education Code, Chapter 1001, which authorizethe Texas Commission of Licensing and Regulation, the Department'sgoverning body, to adopt rules as necessary to implement these chaptersand any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposed repeals are thoseset forth in Texas Occupations Code, Chapter 51, and Texas EducationCode, Chapter 1001. No other statutes, articles, or codes are affectedby the proposed repeals.

The legislation that enacted the statutory authority under whichthe proposed repeals are proposed to be adopted is House Bill 1560,87th Legislature, Regular Session (2021).

§84.500.Courses of Instruction for Driver Education Providers.

§84.501.Driver Education Course Alternative Method of Instruction.

§84.502.Driving Safety Courses of Instruction.

§84.504.Driving Safety Course Alternative Delivery Method.

The agency certifies that legal counsel hasreviewed the proposal and found it to be within the state agency'slegal authority to adopt.

Filed with the Office of the Secretary of State on August 19, 2024.

TRD-202403811

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 463-7750

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapter51, and Texas Education Code, Chapter 1001, which authorize the TexasCommission of Licensing and Regulation, the Department's governingbody, to adopt rules as necessary to implement these chapters andany other law establishing a program regulated by the Department.

The statutory provisions affected by the proposed rules are thoseset forth in Texas Occupations Code, Chapter 51, and Texas EducationCode, Chapter 1001. No other statutes, articles, or codes are affectedby the proposed rules.

The legislation that enacted the statutory authority under whichthe proposed rules are proposed to be adopted is House Bill 1560,87th Legislature, Regular Session (2021).

§84.500.Courses of Instruction for Driver Education Providers.

(a) The educational objectives of driver training coursesmust include, but not be limited to, promoting respect for and encouragingobservance of traffic laws and traffic safety responsibilities ofdriver education and citizens; instruction on law enforcement proceduresfor traffic stops in accordance with provisions of the Community SafetyEducation Act; information relating to human trafficking preventionin accordance with the provisions of the Julia Wells Act (Senate Bill1831, Section 3, 87th Regular Legislature (2021)); information relatingto the Texas Driving with Disabilities Program (Senate Bill 2304,88th Regular Legislature (2023)); litter prevention; anatomical gifts;safely operating a vehicle near oversize or overweight vehicles; thepassing of certain vehicles as described in Transportation Code §545.157;the dangers and consequences of street racing; leaving children invehicles unattended; distractions; motorcycle awareness; alcohol awarenessand the effect of alcohol on the effective operation of a motor vehicle;recreational water safety; reducing traffic violations, injuries,deaths, and economic losses; the proper use of child passenger safetyseat systems; and motivating development of traffic-related competenciesthrough education, including, but not limited to, Texas traffic laws,risk management, driver attitudes, courtesy skills, and evasive driving techniques.

(b) This subsection contains requirements for drivereducation courses. All course content and instructional material mustinclude current statistical data, references to law, driving procedures,and traffic safety methodology. For each course, curriculum documentsand materials may be requested as part of the application for approval.For courses offered in a language other than English, the course materialsmust be accompanied by a written declaration affirming that the translationof the course materials is true and correct in the proposed languagepresented. Such course materials are subject to the approval of thedepartment prior to its use by a driver education provider.

(1) Minor and adult driver education course.

(A) The driver education classroom phase for studentsage 14 and over must consist of:

(i) a minimum of 24 hours of classroom instructionin the presence of a person who holds a driver education instructorlicense or who meets the requirements for a driver education courseconducted by a parent, legal guardian, or designated person;

(ii) seven (7) hours of behind-the-wheel instructionin the presence of a person who holds a driver education instructorlicense or who meets the requirements for a driver education courseconducted by a parent, legal guardian, or designated person;

(iii) seven (7) hours of in-car observation instructionin the presence of a person who holds a driver education instructorlicense or who meets the requirements for a driver education courseconducted by a parent, legal guardian, or designated person; and

(iv) 30 hours of behind-the-wheel supervised practice,including at least 10 hours of nighttime practice, in the presenceof a person at least 21 years of age, has at least one year of drivingexperience, and holds a valid driver license. The 30 hours of behind-the-wheelsupervised practice are to be certified by a parent, legal guardian,or designated person if the student is a minor. Simulation hours mustnot be substituted for the behind-the-wheel supervised practice. Behind-the-wheelsupervised practice is limited to two hours per day.

(B) Providers are allowed five minutes of break perinstructional hour for all phases. No more than ten minutes of breaktime may be accumulated for each two hours of instruction.

(C) Driver education course curriculum content, minimuminstruction requirements, and administrative guidelines for classroominstruction, in-car instruction, simulation, and multicar range mustinclude the educational objectives established by the department inthe POI-DE and the requirements of this subchapter.

(D) Driver education providers that desire to instructstudents age 14 and over in an in-person classroom program must providethe same beginning date for each student in the same class of 36 orless. No student must be allowed to enroll and start the classroomphase after the fifth hour of classroom instruction has begun.

(E) Students must receive classroom instruction froman instructor who is licensed by the department. An instructor mustbe in the classroom and available to students during the entire 24hours of instruction, including self-study assignments. Instructorsmust not have other teaching assignments or administrative dutiesduring the 24 hours of classroom instruction.

(F) Videos, tape recordings, guest speakers, and otherinstructional media that present concepts required in the POI-DE maybe used as part of the required 24 hours of in-person classroom instruction.Such supplemental instruction must not exceed 720 minutes of totalin-person classroom hours.

(G) Self-study assignments occurring during regularlyscheduled class periods must not exceed 25 percent of the course andmust be presented to the entire class simultaneously.

(H) Each classroom student must be provided a drivereducation textbook or access to instructional materials that are incompliance with the POI-DE approved for the school. Instructionalmaterials, including textbooks, must be in a condition that are legibleand free of obscenities.

(I) A copy of the current edition of the "Texas DriverHandbook" or equivalent study material must be made available to eachstudent enrolled in the classroom phase of the driver education course.

(J) Each student, including makeup students, must beprovided their own seat and table or desk while receiving classroominstruction. A provider must not enroll more than thirty-six (36)students, excluding makeup students, and the number of students maynot exceed the number of seats and tables or desks available at theprovider's location.

(K) When a student changes providers, the providermust follow the current transfer policy developed by the department.

(2) Driver Education Behind-the-Wheel and In-Car Instruction

(A) All behind-the-wheel instruction must include actualdriving operation by the student. A provider must not permit a ratioof more than four students per instructor or exceed the seating andoccupant restraint capacity of the vehicle used for instruction. Providersthat allow one-on-one instruction must notify the parents in the contract.

(B) A student must have a valid driver's license orlearner license in his or her possession during any behind-the-wheelinstruction or supervised practice.

(C) All behind-the-wheel instruction and supervisedpractice extended by the provider must begin no earlier than 5:00a.m. and end no later than 11:00 p.m.

(D) A provider may use multimedia systems, simulators,and multicar driving ranges for behind-the-wheel and observation instructionin a driver education program. Each simulator, including the filmedinstructional programs, and each plan for a multicar driving rangemust meet state specification developed by DPS and the department.A licensed driver education instructor must be present during useof multimedia systems, simulators, and multicar driving ranges.

(E) Four periods of at least 55 minutes per hour ofinstruction in a simulator may be substituted for one hour of behind-the-wheeland observation instruction. Two periods of at least 55 minutes perhour of multicar driving range instruction may be substituted forone hour of behind-the-wheel and observation instruction relatingto elementary or city driving lessons. However, a minimum of fourhours must be devoted to actual behind-the-wheel and observation instruction.

(c) In a minor and adult driver education program,a student may apply to the DPS for a learner license after completingthe objectives found in Module One: Traffic Laws of the POI-DE.

(d) The instructor must be physically present in appropriateproximity to the student for the type of instruction being given.A driver education instructor, or provider owner must sign or stampall completed classroom instruction records.

(e) The driver education provider must make a reasonableeffort to validate the identity of the student at the time of enrollment.

§84.501.Driver Education Course Alternative Method of Instruction.

(a) Approval process. The department may approve anendorsem*nt for an alternative method whereby a driver education provideris approved to teach all or part of the classroom portion of a drivereducation course by an alternative method of instruction (AMI) thatdoes not require students to be physically present in a classroomthat meets the following requirements.

(1) Standards for approval. The department may approvea driver education provider to teach all or part of the classroomportion of a driver education course by an AMI that does not requirestudents to be present in a classroom only if:

(A) the AMI includes testing and security measuresthat the department determines are adequately secure to ensure coursecontent and personal validation;

(B) the course satisfies any other requirement applicableto a course in which the classroom portion is taught to students inthe usual classroom setting;

(C) a student and instructor are in different locations;

(D) the AMI instructional activities are integral tothe academic program; and

(E) adequate communication between a student and instructorand among students is emphasized.

(2) Application. The provider must submit a completedAMI application along with the appropriate fee. The application forAMI approval must be treated the same as an application for the approvalof a driver education traditional course, and the AMI must deliverthe curriculum as aligned with the POI-DE.

(3) Provider license required. A person or entity offeringa classroom driver education course to Texas students by an AMI musthold a driver education provider license. The driver education provideris responsible for the operation of the AMI.

(b) Course content. The AMI must deliver the same topics,instruction requirements, and course content as required by the departmentin the POI-DE.

(1) Editing. The material presented in the AMI mustbe edited for grammar, punctuation, and spelling and be of such qualitythat it does not detract from the subject matter.

(2) Irrelevant material. Advertisem*nt of goods andservices must not appear during the actual instructional times ofthe course. Distracting material that is not related to the topicbeing presented must not appear during the actual instructional timesof the course.

(3) Student breaks. The AMI is allowed five minutesof break per instructional hour for all phases, for a total of 120minutes of break time. No more than ten minutes of break time maybe accumulated for each two hours of instruction.

(4) Minimum content. The AMI shall present sufficientinstructional content so that it would take a student a minimum of24 hours (1,440 minutes) to complete the course. A course that demonstratesthat it contains 1,320 minutes of instructional content shall mandatethat students take 120 minutes of break time or provide additionaleducational content for a total of 1,440 minutes (24 hours). In orderto demonstrate that the AMI contains sufficient content, the AMI mustuse the following methods.

(A) Word count. For written material that is read bythe student, the total number of words in the written sections ofthe course must be divided by 180. The result is the time associatedwith the written material for the sections.

(B) Multimedia presentations. There shall be a minimumof 90 minutes of multimedia presentation. The provider owner mustcalculate the total amount of time it takes for all multimedia presentationsto play, not to exceed 720 minutes.

(C) Charts and graphs. The AMI may assign one minutefor each chart or graph.

(D) Time Allotment for Questions. The provider ownermay allocate up to 90 seconds for questions presented over the Internetand 90 seconds for questions presented by telephone.

(E) Total time calculation. If the sum of the timeassociated with the written course material, the total amount of timefor all multimedia presentations, and the time allotted for all charts,graphs, questions, and breaks equals or exceeds the minimum 1,440minutes, the AMI has demonstrated the required amount of content.

(F) Alternate time calculation method. In lieu of thetime calculation method, the AMI may submit alternate methodologyto demonstrate that the AMI meets the minimum 24-hour requirement.

(5) Academic integrity. The academic integrity of theAMI for a classroom driver education course must include:

(A) goals and objectives that are measurable and clearlystate what the participants should know or be able to do at the endof the course;

(B) a clear, complete driver education classroom courseoverview and syllabus;

(C) content and assignments that are sufficient toteach the standards being addressed; and

(D) if online, clearly stated academic integrity andInternet etiquette expectations regarding lesson activities, discussions,e-mail communications, and plagiarism.

(6) Instructional design. Instructional design of AMIfor classroom driver education must:

(A) ensure each lesson includes a lesson overview,objectives, resources, content and activities, assignments, and assessmentsto provide multiple learning opportunities for students to masterthe content;

(B) include instruction that provides opportunitiesfor students to engage in higher-order thinking, critical-reasoningactivities, and thinking in increasingly complex ways;

(C) include a statement that notifies the student ofthe provider owner's security and privacy policy regarding studentdata, including personal and financial data; and

(D) include assessment and assignment answers.

(c) Personal validation. The AMI must maintain a methodto validate the identity of the person taking the course. The personalvalidation system must incorporate one of the following requirements.

(1) Provider-initiated method. The AMI may use a methodthat includes testing and security measures that are at least as secureas the methods available in the in-person classroom.

(A) Time to respond. The student must correctly answerthe personal validation question within 90 seconds for questions presentedover the Internet and 90 seconds for questions presented by telephone.

(B) Placement of questions. At least one personal validationquestion must appear in each major unit or section, not includingthe final examination.

(C) Exclusion from the course. The AMI must excludethe student from the course after the student has incorrectly answeredmore than 30 percent of the personal validation questions.

(D) Correction of answer. The provider may correctan answer to a personal validation question for a student who inadvertentlymissed a personal validation question. In such a case, the studentrecord must include a record of both answers and an explanation ofthe reasons why the answer was corrected.

(2) Third party data method. The online course mustask a minimum of 60 personal validation questions randomly throughoutthe course from a bank of at least 200 questions drawn from a thirdparty data source.

(A) Time to respond. The student must correctly answerthe personal validation question within 90 seconds for questions presentedover the Internet and 90 seconds for questions presented by telephone.

(B) Placement of questions. At least one personal validationquestion must appear in each major unit or section, not includingthe final examination.

(C) Exclusion from the course. The AMI must excludethe student from the course after the student has incorrectly answeredmore than 30 percent of the personal validation questions.

(D) Correction of answer. The provider may correctan answer to a personal validation question for a student who inadvertentlymissed a personal validation question. In such a case, the studentrecord must include a record of both answers and an explanation ofthe reasons why the answer was corrected.

(3) Multifactor authentication method. The AMI mayuse a multifactor or two-factor authentication for personal validation.

(d) Content validation. The AMI must incorporate acourse content validation process that verifies student participationand comprehension of course material, including the following.

(1) Timers. The AMI may include built-in timers toensure that 1,440 minutes of instruction have been attended and completedby the student.

(2) Testing the student's participation in multimediapresentations. The AMI must ask at least one course validation questionfollowing each multimedia clip of more than 180 seconds.

(A) Test bank. For each multimedia presentation thatexceeds 180 seconds, the AMI must have a test bank of at least four questions.

(B) Question difficulty. The question must be shortanswer, multiple choice, essay, or a combination of these forms. Thequestion must be difficult enough that the answer may not be easilydetermined without having viewed the actual multimedia clip.

(C) Failure criteria. If the student fails to answerthe question correctly, the AMI must either require the student toview the multimedia clip again or the AMI fails the student from thecourse. If the AMI requires the student to view the multimedia clipagain, the AMI must present a different question from its test bankfor that multimedia clip. The AMI may not repeat a question untilit has asked all the questions from its test bank.

(D) Answer identification. The AMI must not identifythe correct answer to the multimedia question.

(3) Mastery of course content. The AMI must test thestudent's mastery of the course content by asking questions from eachof the modules listed in the program of organized instruction fordriver education and traffic safety.

(A) Test bank. The test bank for course content masteryquestions must include at least:

(i) 20 questions each from Module One listed in thePOI-DE; and

(ii) 10 questions each from the remaining modules.

(B) Placement of questions. The mastery of course contentquestions must be asked at the end of each module.

(C) Question difficulty. Course content mastery questionsmust be of such difficulty that the answer may not be easily determinedwithout having participated in the actual instruction.

(4) Repeat and retest options. The AMI may use thefollowing options for students who fail an examination to show masteryof course content.

(A) Repeat the failed module. If the student missesmore than 30 percent of the questions asked on a module examination,the AMI must require that the student take the module again. The correctanswer to missed questions may not be disclosed to the student (exceptas part of course content). At the end of the module, the AMI mustagain test the student's mastery of the material. The AMI must presentdifferent questions from its test bank until all the applicable questionshave been asked. The student may repeat this procedure an unlimitednumber of times.

(B) Retest the final examination. If the student missesmore than 30 percent of the questions asked on the final examination,the AMI must retest the student in the same manner as the failed examination,using different questions from its test bank. If the student failsthe same unit examination or the comprehensive final examination threetimes, the student fails the course.

(e) Student records. The AMI must provide for the creationand maintenance of the records documenting student enrollment, theverification of the student's identity, and the testing of the student'smastery of the course material. The provider must ensure that thestudent record is readily, securely, and reliably available for inspectionby a department-authorized representative. The student records mustcontain all information required in §84.81 (relating to RecordkeepingRequirements) and the following information.

(1) A record of all questions asked and the student's responses.

(2) The name or identity number of the staff memberentering comments or revalidating the student.

(3) The name or identity number of the staff memberretesting the student.

(4) If any answer to a question is changed by the providerfor a student who inadvertently missed a question, the provider mustprovide both answers and a reasonable explanation for the change.

(5) A record of the time the student spent in eachunit of the AMI and the total instructional time the student spentin the course.

(f) Additional requirements for AMI courses. Coursesdelivered via the Internet or technology must also comply with thefollowing requirements.

(1) Course identification. All AMI courses must displaythe driver education provider name and license number assigned bythe department on the entity's website and the registration page usedby the student to pay any monies, provide any personal information,and enroll.

(2) A driver education provider offering an AMI coursemay accept students redirected from another website if the studentis redirected to the webpage that clearly identifies the name andlicense number of the provider offering the AMI course. This informationmust be visible before and during the student registration and coursepayment processes.

(g) Additional requirements for video courses.

(1) Delivery of the material. For AMIs delivered usingvideotape, digital video disc (DVD), film, or similar media, the equipmentand course materials may only be made available through a processthat is approved by the department.

(2) Video requirement. The video course must includeno more than 720 minutes of multimedia that is relevant to the requiredtopics such as video produced by other entities for training purposes,including public safety announcements and B roll footage. The remainderof the 1,440 minutes of required instruction must be video materialthat is relevant to required course instruction content.

(A) A video AMI must ask, at a minimum, at least onecourse validation question for each multimedia clip of more than 180 seconds.

(B) A video AMI must devise and submit for approvala method for ensuring that a student correctly answers questions concerningthe multimedia clips of more than 180 seconds.

(h) Standards for AMIs using new technology. For AMIsdelivered using technologies that have not been previously reviewedand approved by the department, the department may apply similar standardsas appropriate and may also require additional standards. These standardsmust be designed to ensure that the course can be taught by the alternativemethod and that the alternative method includes testing and securitymeasures that are at least as secure as the methods available in theusual classroom setting.

(i) Modifications to the AMI. The licensed providerfor the approved course on which the AMI is based must ensure thatany modification to the AMI is consistent with applicable law, departmentrules and the POI-DE.

(j) Termination of the provider's operation. Upon termination,providers must deliver any missing student data to the departmentwithin five days of termination.

(k) Access to instructor and technical assistance.The provider must establish hours that the student may access an instructortrained in the classroom portion of the curriculum, and for technicalassistance. Except for circ*mstances beyond the control of the provider,the student must have access to the instructor and technical assistanceduring the specified hours.

(l) Enrollment guidelines. The AMI for driver educationclassroom that desires to instruct students age 14 and over must providethe same beginning date for each student in the same class of 36 orless. No student shall be allowed to enroll and start the classroomphase after the fifth hour of classroom instruction has been completed.

§84.502.In-Person Driver Education Course Exclusively for Adults.

(a) Driver education course exclusively for adults.Courses offered in an in-person classroom facility to persons whoare age 18 to under 25 years of age for the education and examinationrequirements for the issuance of a driver's license under Texas TransportationCode, §521.222 and §521.1601, must be offered in accordancewith the following:

(1) In-person approval process. The department mayapprove an endorsem*nt for a driver education course exclusively foradults to be offered in-person if the course meets the following requirements.

(A) Application. The driver education provider mustsubmit a completed application along with the appropriate fee;

(B) Instructor license required. Students must receiveclassroom instruction from a licensed driver education instructor; and

(C) Minimum course content. The driver education courseexclusively for adults must consist of six clock hours of classroominstruction that meets the minimum course content and instructionrequirements contained in the POI-Adult Six-Hour.

(2) Course management. An approved adult driver educationcourse must be presented in compliance with the following:

(A) The instructor must be physically present in appropriateproximity to the student for the type of instruction being given.A licensed driver education instructor, or provider owner must signor stamp all completed classroom instruction records.

(B) A copy of the current edition of the "Texas DriverHandbook" or equivalent study material must be made available to eachstudent enrolled in the course.

(C) Self-study assignments, videos, tape recordings,guest speakers, and other instructional media that present topicsrequired in the course must not exceed 150 minutes of instruction.

(D) Each student, including makeup students, must beprovided their own seat and table or desk while receiving classroominstruction. A provider must not enroll more than 36 students, excludingmakeup students, and the number of students may not exceed the numberof seats and tables or desks available at the provider's location.

(E) A minimum of 330 minutes of instruction is required.

(F) The total length of the course must consist ofa minimum of 360 minutes.

(G) Thirty minutes of time, exclusive of the 330 minutesof instruction, must be dedicated to break periods or to the topicsincluded in the minimum course content.

(b) Students must not receive a driver education certificateof completion unless that student receives a grade of at least 70percent on the highway signs examination and at least 70 percent onthe traffic laws examination as required under Texas TransportationCode §521.161.

(c) The driver education provider must make a reasonableeffort to validate the identity of the student at the time of enrollment.

§84.503.Online Driver Education Course Exclusively for Adults.

(a) Online approval process. The department may approvean endorsem*nt for an online driver education course exclusively foradults to be offered if the course meets the following requirements.

(1) Application. The applicant for an online drivereducation provider license must submit a completed application alongwith the appropriate fee.

(2) Online Provider license required. A person or entityoffering an online driver education course exclusively for adultsmust hold an online driver education provider license.

(3) The online driver education provider must be responsiblefor the operation of the online course.

(4) Students must receive classroom instruction froma licensed driver education instructor.

(b) Course content. The online course must meet therequirements of the course identified in §1001.1015 of the Codeand as described in the POI-Adult Six-Hour.

(1) Length of course. The course must be six hoursin length, which is equal to 360 minutes. A minimum of 330 minutesof instruction must be provided. Thirty minutes of time, exclusiveof the 330 minutes of instruction, must be dedicated to break periodsor to the topics included in the minimum course content. All breakperiods must be provided after instruction has begun and before thecomprehensive examination and summation.

(2) Required material. A copy of the current editionof the "Texas Driver Handbook" or equivalent study material must bemade available to each student enrolled in the course.

(3) Editing. The material presented in the online coursemust be edited for grammar, punctuation, and spelling and be of suchquality that it does not detract from the subject matter.

(4) Irrelevant material. Advertisem*nt of goods andservices, and distracting material not related to driver educationmust not appear during the actual instructional times of the course.

(5) Minimum content. The online course must presentsufficient content so that it would take a student 360 minutes tocomplete the course. To demonstrate that the online course containssufficient minutes of instruction, the online course must use thefollowing methods.

(A) Word count. For written material that is read bythe student, the course must contain the total number of words inthe written sections of the course. This word count must be dividedby 180, the average number of words that a typical student reads perminute. The result is the time associated with the written materialfor the sections.

(B) Multimedia presentations. For multimedia presentation,the online course must calculate the total amount of time it takesfor all multimedia presentations to play, not to exceed 150 minutes.

(C) Charts and graphs. The online course may assignone minute for each chart or graph.

(D) Time allotment for questions. The online coursemay allocate up to 90 seconds for questions presented over the Internetand 90 seconds for questions presented by telephone.

(E) Total time calculation. If the sum of the timeassociated with the written course material, the total amount of timefor all multimedia presentations, and the time associated with allcharts and graphs equals or exceeds 330 minutes, the online coursehas demonstrated the required amount of minimum content.

(F) Alternate time calculation method. In lieu of thetime calculation method, the online course may submit alternate methodologyto demonstrate that the online course meets the 330-minute requirement.

(c) Personal validation. The online course must maintaina method to validate the identity of the person taking the course.The personal validation system must incorporate at least one of thefollowing requirements.

(1) Provider-initiated method. Upon approval by thedepartment, the online course may use a method that includes testingand security measures that validate the identity of the person takingthe course. The method must meet the following criteria.

(A) Time to respond. The student must correctly answera personal validation question within 90 seconds.

(B) Placement of questions. At least two personal validationquestions must appear randomly during each instructional hour, notincluding the final examination.

(C) Exclusion from the course. The online course mustexclude the student from the course after the student has incorrectlyanswered more than 30 percent of the personal validation questions.

(D) Correction of answer. The online course may correctan answer to a personal validation question for a student who inadvertentlymissed a personal validation question. In such a case, the studentrecord must include a record of both answers and an explanation ofthe reasons why the answer was corrected.

(2) Third party data method. The online course mustask a minimum of twelve (12) personal validation questions randomlythroughout the course from a bank of at least twenty (20) questionsdrawn from a third party data source. The method must meet the following criteria.

(A) Time to respond. The student must correctly answera personal validation question within 90 seconds.

(B) Placement of questions. At least two personal validationquestions must appear randomly during each instructional hour, notincluding the final examination.

(C) Exclusion from the course. The online course mustexclude the student from the course after the student has incorrectlyanswered more than 30 percent of the personal validation questions.

(D) Correction of answer. The online course may correctan answer to a personal validation question for a student who inadvertentlymissed a personal validation question. In such a case, the studentrecord must include a record of both answers and an explanation ofthe reasons why the answer was corrected.

(3) Multifactor authentication method. The online coursemay use a multifactor or two-factor authentication for personal validation.

(d) Content validation. The online course must incorporatea course content validation process that verifies student participationand comprehension of course material, including the following.

(1) Timers. The online course may include built-intimers to ensure that 330 minutes of instruction have been attendedand completed by the student.

(2) Testing the student's participation in multimediapresentations. The online course must ask at least one course validationquestion following each multimedia clip of more than 180 seconds.

(A) Test bank. For each multimedia presentation thatexceeds 180 seconds, the online course must have a test bank of atleast four questions.

(B) Question difficulty. The question shall be shortanswer, multiple choice, essay, or a combination of these forms. Thequestion must be difficult enough that the answer may not be easilydetermined without having viewed the actual multimedia clip.

(C) Failure criteria. If the student fails to answerthe question correctly, the online course must require the studentto view the multimedia clip again. The online course must then presenta different question from its test bank for that multimedia clip.The online course may not repeat a question until it has asked allthe questions from its test bank.

(D) Answer identification. The online course must notidentify the correct answer to the multimedia question.

(3) Course participation questions. The online coursemust test the student's course participation by asking at least twoquestions each from Topics Two through Eight of Chapter Four in thePOI-Adult Six Hour.

(A) Test bank. The test bank for course participationquestions must include at least ten questions each from Topics Twothrough Eight of Chapter Four in the POI-Adult Six-Hour.

(B) Placement of questions. The course participationquestions must be asked at the end of the major unit or the sectionin which the topic is covered.

(C) Question difficulty. Course participation questionsmust be of such difficulty that the answer may not be easily determinedwithout having participated in the actual instruction.

(4) Comprehension of course content. The online coursemust test the student's mastery of the course content by administeringat least 30 questions covering the highway signs and traffic lawsrequired under Texas Transportation Code, §521.161.

(A) Test banks (two). Separate test banks for coursecontent mastery questions are required for the highway signs and trafficlaws examination as required under Texas Transportation Code, §521.161,with examination questions drawn equally from each.

(B) Placement of questions. The mastery of course contentquestions must be asked at the end of the course (comprehensive final examination).

(C) Question difficulty. Course content mastery questionsmust be of such difficulty that the answer may not be easily determinedwithout having participated in the actual instruction.

(D) Retest the student. If the student misses morethan 30 percent of the questions asked on an examination, the onlinecourse must retest the student using different questions from itstest bank. The student is not required to repeat the course, but maybe allowed to review the course prior to retaking the examination.If the student fails the comprehensive final examination three times,the student fails the course.

(e) Student records. The online course must providefor the creation and maintenance of the records documenting studentenrollment, the verification of the student's identity, and the testingof the student's mastery of the course material. The provider mustensure that the student record is readily, securely, and reliablyavailable for inspection by a department representative. The studentrecords must contain all information required in §84.81 (relatingto Recordkeeping Requirements) and contain the following information:

(1) a record of all questions asked and the student's responses;

(2) the name or identity number of the staff memberentering comments, retesting, or revalidating the student;

(3) both answers and a reasonable explanation for thechange if any answer to a question is changed by the provider fora student who inadvertently missed a question; and

(4) a record of the time the student spent in eachunit and the total instructional time the student spent in the course.

(f) Waiver of certain education and examination requirements.A licensed driver education instructor must determine that the studenthas successfully completed and passed a driver education course exclusivelyfor adults prior to waiving the examination requirements of the highwaysign and traffic law parts of the examination required under TexasTransportation Code, §521.167, and signing the ADE-1317 drivereducation completion certificate.

(g) Age requirement. A person must be at least 18 yearsof age to enroll in a driver education course exclusively for adults.

(h) Issuance of certificate. Not later than the 15thworking day after the course completion date, the provider must issuean ADE-1317 driver education certificate only to a person who successfullycompletes an approved online driver education course exclusively for adults.

(i) Access to instructor and technical assistance.The provider must establish hours that the student may access an instructortrained in the adult driver education curriculum, and for technicalassistance. Except for circ*mstances beyond the control of the provider,the student must have access to the instructor and technical assistanceduring the specified hours.

(j) Additional requirements for online courses. Coursesdelivered via the Internet or technology must also comply with thefollowing requirements.

(1) Re-entry into the course. An online course mayallow the student re-entry into the course by username and passwordauthentication or other means that are as secure as username and password authentication.

(2) Navigation. The student must be provided orientationtraining to ensure easy and logical navigation through the course.The student must be allowed to freely browse previously completed material.

(3) Audio-visual standards. The video and audio mustbe clear and, when applicable, the video and audio must be synchronized.

(4) Course identification. All online courses mustdisplay the driver education provider name and license number assignedby the department on the entity's website and the registration pageused by the student to pay any monies, provide any personal information,and enroll.

(5) Domain names. Each provider offering an onlinecourse must offer that online course from a single domain.

(6) A driver education provider offering an onlinecourse may accept students redirected from a website if the studentis redirected to the webpage that clearly identifies the name andlicense number of the provider offering the online course. This informationmust be visible before and during the student registration and coursepayment processes.

(7) Compliance with Texas Transportation Code, §521.1601.Persons age 18 to under 25 years of age must successfully completeeither a minor and adult driver education course or the driver educationcourse exclusively for adults. Partial completion of either coursedoes not satisfy the requirements of rule or law.

(8) Issuance of certificate. A licensed provider orinstructor may not issue an ADE-1317 adult driver education certificateto a person who is not at least 18 years of age.

§84.504.Driving Safety Courses of Instruction.

This section contains requirements for traditional classroomdriving safety courses. For each course, the following curriculumdocuments and materials are required to be submitted as part of theapplication for approval. Courses of instruction must not be approvedthat contain language that a reasonable and prudent individual wouldconsider inappropriate. Any changes and updates to a course must besubmitted by the driving safety provider and approved prior to being offered.

(1) Driving safety courses.

(A) Educational objectives. The educational objectivesof driving safety courses must include, but not be limited to, promotingrespect for and encouraging observance of traffic laws and trafficsafety responsibilities of drivers and citizens; information relatingto human trafficking prevention in accordance with the provisionsof the Julia Wells Act (Senate Bill 1831, Section 3, 87th RegularLegislature (2021)); information relating to the Texas Driving withDisabilities Program (Senate Bill 2304, 88th Regular Legislature (2023));implementation of law enforcement procedures for traffic stops inaccordance with the provisions of the Community Safety Education Act;the proper use of child passenger safety seat systems; safely operatinga vehicle near oversize or overweight vehicles; the passing of certainvehicles as described in Transportation Code §545.157; the dangersand consequences of street racing; reducing traffic violations; reducingtraffic-related injuries, deaths, and economic losses; and motivatingcontinuing development of traffic-related competencies.

(B) Driving safety course content guides. A coursecontent guide is a description of the content of the course and thetechniques of instruction that will be used to present the course.For courses offered in languages other than English, the driving safetyprovider must affirm that the translation of the course materialsis true and correct in the proposed language presented. Such materialsare subject to review by the department. Each driving safety coursemust include the following:

(i) a statement of the course's traffic safety goal;

(ii) a statement of policies related to techniquesof instruction, standards, and performance;

(iii) a statement of policies related to student progress,attendance, makeup, and conduct. The policies must be used by eachdriving safety provider and include the following requirements:

(I) appropriate standards to ascertain the attendanceand identity of students. All driving safety providers must use appropriatestandards for documenting attendance;

(II) if the student does not complete the entire course,including all makeup lessons within the timeline specified by thecourt, no credit for instruction shall be granted;

(III) any period of absence for any portion of instructionwill require that the student complete that portion of instructionin a manner determined by the driving safety provider; and

(IV) conditions for dismissal and conditions for re-entryof those students dismissed for violating the conduct policy;

(iv) a statement of policy addressing entrance requirementsand special conditions of students such as the inability to read,language barriers, and other disabilities;

(v) a list of relevant instructional resources suchas textbooks, audio and visual media and other instructional materials,and equipment that will be used in the course and the furniture deemednecessary to accommodate the students in the course such as tables,chairs, and other furnishings. The course shall include a minimumof 60 minutes of audio/video materials relevant to the required topics;however, the audio/video materials must not be used in excess of 165minutes of the 300 minutes of instruction. The resources may be includedin a single list or may appear at the end of each instructional unit;

(vi) written or printed materials to be provided foruse by each student as a guide to the course;

(vii) instructional activities and resources to beused to present the material (lecture, films, other media, small-groupdiscussions, workbook materials, written and oral discussion questions,etc.). When small-group discussions are planned, the course contentguide must identify the questions that will be assigned to the groups;

(viii) techniques for evaluating the comprehensionlevel of the students; and

(ix) a completed form cross-referencing the instructionalunits to the topics identified in Chapter Four of the COI-DrivingSafety. A form to cross-reference the instructional units to the requiredtopics and topics unique to the course will be provided by the departmentupon request.

(C) Course and time management. Approved driving safetycourses must be presented in compliance with the following guidelinesand must include statistical information drawn from data maintainedby the Texas Department of Transportation or National Highway TrafficSafety Administration.

(i) A minimum of 300 minutes of instruction is required.

(ii) The total length of the course must consist ofa minimum of 360 minutes.

(iii) Sixty (60) minutes of time, exclusive of the300 minutes of instruction, must be dedicated to break periods orto the topics included in the minimum course content. All break periodsmust be provided after instruction has begun and before the comprehensiveexamination and summation.

(iv) Administrative procedures such as enrollment mustnot be included in the 300 minutes of the course.

(v) Courses conducted in a single day in an in-personclassroom must allow a minimum of 30 minutes for lunch.

(vi) Courses taught over a period longer than one daymust provide breaks on a schedule equitable to those prescribed forone-day courses. However, all breaks must be provided after the courseintroduction and prior to the last unit of the instructional day orthe comprehensive examination and summation, whichever is appropriate.

(vii) The order of topics must be approved by the departmentas part of the course approval, and for each student, the course mustbe taught in the order identified in the approved application.

(viii) Students must not receive a uniform certificateof course completion unless that student receives a grade of at least70 percent on the final examination.

(ix) In an in-person classroom, there must be sufficientseating for the number of students, arranged so that all studentsare able to view, hear, and comprehend all instructional aids andthe class must have no more than 50 students.

(x) The driving safety provider must make a reasonableeffort to validate the identity of the student at the time of enrollment.

(D) Minimum course content. Driving Safety course content,including video and multimedia, must include current statistical data,references to law, driving procedures, and traffic safety methodology,as shown in the COI-Driving Safety, to assure student mastery of thesubject matter.

(E) Examinations. Each course provider shall submitfor approval, as part of the application, tests designed to measurethe comprehension level of students at the completion of the drivingsafety course. The comprehensive examination for each driving safetycourse must include at least two questions from the required unitsset forth in Chapter Four, Topics Two through Twelve of the COI-DrivingSafety, for a total of at least 20 questions. The final examinationquestions shall be of such difficulty that the answer may not easilybe determined without completing the actual instruction. Provider-designatedpersons who offer or provide instruction must not assist studentsin answering the final examination questions but may facilitate alternativetesting. Students must not be given credit for the driving safetycourse unless they score 70 percent or more on the final test. Theprovider must identify alternative testing techniques to be used forstudents with reading, hearing, or learning disabilities and policiesfor retesting students who score less than 70 percent on the finalexamination. The provider may choose not to provide alternative testingtechniques; however, students shall be advised whether the courseprovides alternative testing prior to enrollment in the course. Testquestions may be short answer, multiple choice, essay, or a combinationof these forms.

(F) The course owner shall update all the course contentmethodology, procedures, statistical data, and references to law withthe latest available data.

(G) The department may alter the due date of the renewaldocuments by giving the approved course six months' notice. The departmentmay alter the due date to ensure that the course is updated six monthsafter the effective date of new state laws passed by the Texas Legislature.

(H) If, upon review and consideration of an original,renewal, or amended application for course approval, the departmentdetermines that the applicant does not meet the legal requirements,the department shall notify the applicant, setting forth the reasonsfor denial in writing.

(2) The department may revoke approval of any coursegiven to a provider under any of the following circ*mstances:

(A) Any information contained in the application forthe course approval is found to be untrue;

(B) The school has failed to maintain the courses ofstudy on which previous approval was issued;

(C) The provider has been found to be in violationof the Code, and/or this chapter; or

(D) The course has been found to be ineffective inmeeting the educational objectives set forth in paragraph (1)(A).

§84.505.Driving Safety Course Alternative Delivery Method.

(a) The driving safety provider may offer a courseby alternative delivery method (ADM) that meets the following requirements:

(1) Standards for acceptance. The department may acceptan ADM offered by a driving safety provider for an approved drivingsafety course if the ADM delivers a course in a manner that is atleast as secure as an in-person classroom. ADMs that meet the requirementsoutlined in subsections (b) - (h), shall receive ADM acceptance.

(2) The ADM must deliver the driving safety provider'scurriculum as delineated in the course content guide required by §84.504(relating to Driving Safety Courses of Instruction), and the COI-Driving Safety.

(3) Provider license required. A person or entity offeringa driving safety course to Texas students by an alternative deliverymethod must hold a driving safety provider license. The driving safetyprovider is responsible for the operation of the ADM.

(b) Course content. The ADM must deliver the same topics,instruction requirements, and course content as the approved drivingsafety course established by the department in the COI-Driving Safety.

(1) Course topics. The time requirements for each unitand the course described in §84.504(a)(1)(C) and (D) must be met.

(2) Editing. The material presented in the ADM mustbe edited for grammar, punctuation, and spelling and be of such qualitythat it does not detract from the subject matter.

(3) Irrelevant material. Advertisem*nt of goods andservices must not appear during the actual instructional times ofthe course. Distracting material that is not related to the topicbeing presented must not appear during the actual instructional timesof the course.

(4) Minimum content. The ADM must present sufficientcontent so that it would take a student 300 minutes to complete thecourse. To demonstrate that the ADM contains sufficient content, theADM must use the following methods.

(A) Word count. For written material that is read bythe student, the driving safety provider must count the total numberof words in the written sections of the course. This word count mustbe divided by 180, the average number of words that a typical studentreads per minute. The result is the time associated with the writtenmaterial for the sections.

(B) Multimedia presentations. For multimedia presentation,the driving safety provider must calculate the total amount of timeit takes for all multimedia presentations to play.

(C) Charts and graphs. The ADM may assign one minutefor each chart or graph.

(D) Examinations. The provider may allocate up to 90seconds for questions presented over the Internet and 90 seconds forquestions presented by telephone.

(E) Total time calculation. If the sum of the timeassociated with the written course material, the total amount of timefor all multimedia presentations, and the time associated with allcharts and graphs equals or exceeds 300 minutes, the ADM has demonstratedthe required amount of content.

(F) Alternate time calculation method. In lieu of thetime calculation method, the driving safety provider may submit alternatemethodology to demonstrate that the ADM meets the 300-minute requirement.

(5) Student breaks. A course that demonstrates thatit contains 300 minutes of instructional content must mandate thatstudents take 60 minutes of break time or provide additional educationalcontent for a total of 360 minutes.

(c) Personal validation. The driving safety providermust ensure the ADM maintain a system to validate the identity ofthe person taking the course. The personal validation system mustincorporate one of the following requirements.

(1) Provider-initiated method. The ADM may use a methodthat includes testing and security measures that are at least as secureas the methods available in the in-person classroom.

(A) Time to respond. The student must correctly answerthe personal validation question within 90 seconds.

(B) Placement of questions. At least one personal validationquestion must appear in each major unit or section, not includingthe final examination.

(C) Exclusion from the course. The ADM must excludethe student from the course after the student has incorrectly answeredmore than 30 percent of the personal validation questions.

(D) Correction of answer. The provider may correctan answer to a personal validation question for a student who inadvertentlymissed a personal validation question. In such a case, the studentrecord must include a record of both answers and an explanation ofthe reasons why the answer was corrected.

(2) Third party data method. The online course mustask a minimum of 10 personal validation questions randomly throughoutthe course drawn equally from at least two different databases.

(A) Time to respond. The student must correctly answerthe personal validation question within 90 seconds.

(B) Placement of questions. At least one personal validationquestion must appear in each major unit or section, not includingthe final examination.

(C) Exclusion from the course. The ADM must excludethe student from the course after the student has incorrectly answeredmore than 30 percent of the personal validation questions.

(D) Correction of answer. The provider may correctan answer to a personal validation question for a student who inadvertentlymissed a personal validation question. In such a case, the studentrecord must include a record of both answers and an explanation ofthe reasons why the answer was corrected.

(E) Student affidavits. A student for whom third-partydatabase information is available from fewer than two databases (forexample, a student with an out-of-state driver's license) may be issueda uniform certificate of completion upon presentation to the drivingsafety provider of a notarized copy of the student's driver's licenseor equivalent type of photo identification and a statement from thestudent certifying that the individual attended and successfully completedthe six-hour driving safety course for which the certificate is beingissued and there exists a corresponding student record.

(3) Multifactor authentication method. The AMD mayuse a multifactor or two-factor authentication for personal validation.

(d) Alternative methods. The driving safety providermay employ an ADM that uses alternate methods that are at least assecure as one of the methods listed above.

(e) Content validation. The driving safety providermust ensure the ADM incorporate a course content validation processthat verifies student participation and comprehension of course material,including the following.

(1) Timers. The ADM must include built-in timers toensure that 300 minutes of instruction have been attended and completedby the student.

(2) Testing the student's participation in multimediapresentations. The ADM must ask at least one course validation questionfollowing each multimedia clip of more than 180 seconds.

(A) Test bank. For each multimedia presentation thatexceeds 180 seconds, the ADM must have a test bank of at least four questions.

(B) Question difficulty. Each question must be shortanswer, multiple choice, essay, or a combination of these forms. Thequestions must be difficult enough that the answer may not be easilydetermined without having viewed the actual multimedia clip.

(C) Failure criteria. If the student fails to answerthe question correctly, the ADM shall either require the student viewthe multimedia clip again or the ADM must fail the student from thecourse. If the ADM requires the student to view the multimedia clipagain, the ADM must present a different question from its test bankfor that multimedia clip. The ADM may not repeat a question untilit has asked all the questions from its test bank.

(D) Answer identification. The ADM must not identifythe correct answer to the multimedia question.

(3) Mastery of course content. The ADM must allow fortesting of the student's mastery of the course content by asking atleast two questions from each of the topics listed in Chapter Four,Topics Two through Twelve of the COI-Driving Safety.

(A) Test bank. The test bank for course content masteryquestions must include at least ten questions from each of the topicsidentified in Chapter Four, Topics Two through Twelve of the COI-Driving Safety.

(B) Placement of questions. The mastery of course contentquestions must be asked either at the end of the major unit or sectionin which the topic identified in Chapter Four, Topics Two throughTwelve of the COI-Driving Safety, (unit examination) or at the endof the course (comprehensive final examination).

(C) Question difficulty. Course content mastery questionsmust be short answer, multiple choice, essay, or a combination ofthese forms, and of such difficulty that the answer may not be easilydetermined without having participated in the actual instruction.

(4) Repeat and retest options. The ADM may use eitherof the following options for students who fail an examination to showmastery of course content, but may not use both in the same ADM.

(A) Repeat the failed unit. If the student misses morethan 30 percent of the questions asked on an examination, the ADMmust require that the student take the unit again. All timers mustbe reset. The correct answer to missed questions may not be disclosedto the student (except as part of course content). At the end of theunit, the ADM must again test the student's mastery of the material.The ADM must present different questions from its test bank untilall the applicable questions have been asked. The student may repeatthis procedure an unlimited number of times.

(B) Retest the student. If the student misses morethan 30 percent of the questions asked on an examination, the ADMmust retest the student in the same manner as the failed examination,using different questions from its test bank. The student is not requiredto repeat the failed unit but may be allowed to do so prior to retakingthe examination. If the student fails the same unit examination orthe comprehensive final examination three times, the student failsthe course.

(f) Student records. The ADM must provide for the creationand maintenance of the records documenting student enrollment, theverification of the student's identity, and the testing of the student'smastery of the course material. Each entry that verifies enrollment,identifies the question asked or the response given, documents retestingand/or revalidation, and documents any changes to the student's recordmust include the date and time of the activity reported. The studentrecords must contain the following information.

(1) The student's name and driver's license number.

(2) A record of which personal validation questionswere asked and the student's responses.

(3) A record of which multimedia participation questionswere asked and the student's responses.

(4) The name or identity number of the staff memberentering comments, retesting, or revalidating the student.

(5) If any answer to a question is changed by the drivingsafety provider for a student who inadvertently missed a question,the provider must provide both answers and a reasonable explanationfor the change.

(6) A record of the course content mastery questionsasked and the answers given.

(7) A record of the time the student spent in eachunit of the ADM and the total instructional time the student spentin the course.

(8) The provider must also ensure that the studentrecord is readily, securely, and reliably available for inspectionby the department.

(g) Additional requirements for ADM courses. Coursesdelivered via the Internet must also comply with the following requirements.

(1) Course identification. All ADM courses must displaythe driving safety provider name and license number assigned by thedepartment on the entity's website and the registration page usedby the student to pay any monies, provide any personal information,and enroll.

(2) A driving safety provider offering a driving safetycourse through ADM may accept students redirected from another websiteif the student is redirected to the webpage that clearly identifiesthe names and license numbers of the provider offering the ADM. Thisinformation must be visible before and during the student registrationand course payment processes.

(3) Domain names. Each provider offering a drivingsafety course through ADM must offer that ADM from a single domain.

(h) Additional requirements for video courses.

(1) Delivery of the material. For ADMs delivered usingvideotape, digital video disc (DVD), film, or similar media, the equipmentand course materials may only be made available through a departmentapproved process.

(2) Video requirement. In order to meet the video requirementof §84.504(a)(1)(B)(v), the video course must include between60 and 150 minutes of multimedia that is relevant to the requiredtopics such as video produced by other entities for training purposes,including public safety announcements and B roll footage. The remainderof the 300 minutes of required instruction must be video materialthat is relevant to the required topics and produced specificallyfor the ADM.

(A) A video ADM must ask at least one course validationquestion for each multimedia clip of more than 180 seconds at theend of each major segment (chapter) of the ADM.

(B) A video ADM must devise and submit for approvala method for ensuring that a student correctly answers questions concerningmultimedia clips consisting of more than 60 seconds in length presentedduring the ADM.

(i) Standards for ADMs using new technology. For ADMsdelivered using technologies that have not been previously reviewedand approved by the department, the department may apply similar standardsas appropriate and may also require additional standards. These standardsmust be designed to ensure that the course can be taught by the alternativemethod and that the alternative method includes testing and securitymeasures that are at least as secure as the methods available in thetraditional classroom setting.

(j) Modifications to the ADM. A change to a previouslyapproved ADM may be made without the prior approval of the department.The driving safety provider must notify the department of the modificationnot later than 30 days after its occurrence.

(k) Termination of the driving safety provider's operation.Upon termination, a driving safety provider must deliver any missingstudent data to the department within five days of termination.

(l) Access to the driving safety provider for technicalassistance. The driving safety provider must establish hours thatthe student may obtain technical assistance. Except for circ*mstancesbeyond the control of the provider, the student must have access tothe provider and technical assistance during the specified hours.

The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.

Filed with the Office of the Secretary of State on August 19, 2024.

TRD-202403808

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 463-7750

16 TAC §84.600, §84.601

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapter 51, and Texas Education Code, Chapter 1001, which authorize the TexasCommission of Licensing and Regulation, the Department's governingbody, to adopt rules as necessary to implement these chapters andany other law establishing a program regulated by the Department.

The statutory provisions affected by the proposed rules are thoseset forth in Texas Occupations Code, Chapter 51, and Texas EducationCode, Chapter 1001. No other statutes, articles, or codes are affectedby the proposed rules.

The legislation that enacted the statutory authority under whichthe proposed rules are proposed to be adopted is House Bill 1560,87th Legislature, Regular Session (2021).

§84.600.Program of Organized Instruction.

(a) To be approved under this subchapter, a drivereducation plan must include one or more of the following course programs.

(1) Core program. This program must consist of at least 24 [32] hours of classroom instruction; seven hoursof behind-the-wheel instruction in the presence of a certified instructor;seven hours of in-car observation in the presence of a certified instructor;and 30 hours of behind-the-wheel supervised practice [instruction], including at least 10 hours of instruction that takes placeat night, certified [verified] by a parent orguardian in the presence of an adult who meets the requirements ofTexas Transportation Code, §521.222(d)(2).

(2) In-car only program. This program must consistof at least seven hours of behind-the-wheel instruction in the presenceof a certified instructor; seven hours of in-car observation in thepresence of a certified instructor; and 30 hours of behind-the-wheel supervised practice [instruction], including at least10 hours of instruction that takes place at night, certified [verified] by a parent or guardian in the presence of an adultwho meets the requirements of Texas Transportation Code, §521.222(d)(2).

(3) Classroom only program. This program must consistof at least 24 [32] hours of classroom instruction.

(b) The minimum requirements of the driver educationprogram must be met regardless of how the course is scheduled. Thefollowing applies to all minor and adult driver education programs.

(1) A learner portion of a DE-964 must be issued toa student to obtain a learner's license upon completion of ModuleOne of the POI-DE. A driver license portion of the DE-964 must begiven when all in-car laboratory and classroom instruction has beencompleted by the student.

(2) In-car laboratory lessons may be given only afterthe student has obtained a learner's license.

(3) Instruction may be scheduled any day of the week,during regular school hours, before or after school, and during the summer.

(4) Instruction must not be scheduled before 5:00 a.m.or after 11:00 p.m.

(5) The driver education classroom phase must haveuniform beginning and ending dates. Students must proceed in a uniformsequence. Students must be enrolled and in class before the fifth [seventh] hour of classroom instruction in a 24 [32]-hourprogram and the 12th hour of classroom instruction in 56-hour or semester-length programs.

(6) Self-study assignments occurring during regularlyscheduled class periods must not exceed 25 percent of the course andmust be presented to the entire class simultaneously.

(7) The driver education course must be completed withinthe timelines established by the superintendent, college or universitychief school official, or ESC director. This must not circumvent attendanceor progress. Variances to the established timelines must be determinedby the superintendent, college or university chief school official,or ESC director and must be agreed to by the parent or legal guardian.

(8) Public schools [Schools]are allowed five minutes of break within each instructional hour inall phases of instruction. A break is an interruption in a courseof instruction occurring after the lesson introduction and beforethe lesson summation. It is recommended that the five minutes of breakbe provided outside the time devoted to behind-the-wheel instructionso students receive a total of seven hours of instruction.

(9) Driver education training offered by the public school must not exceed six hours per day. Public schools may include five minutes of break per instructional hour as identified in §84.500 (relating to Courses of Instruction for Driver Education Providers). In-car instruction provided by the public school must not exceed four hours per day as follows:

(A) four hours or less of in-car training; however, behind-the-wheel instruction must not exceed two hours per day; or

(B) four hours or less of simulation instruction; or

(C) four hours or less of multicar range instruction; or

(D) any combination of the methods delineated in thissubsection that does not exceed four hours per day.

[(9) A student must not receive creditfor more than four hours of driver education training at a publicschool in one calendar day no matter what combination of trainingis provided, excluding makeup. Further, for each calendar day, a studentis limited to a maximum of:]

[(A) two hours of classroom instruction;]

[(B) four hours of observation time;]

[(C) two hours of multicar range driving;]

[(D) three hours of simulation instruction; and]

[(E) one hour of behind-the-wheel instruction.]

(10) Driver education training certified [verified] by the parent is limited to two hours [onehour] per day.

(c) Course content, minimum instruction requirements,and administrative guidelines for each phase of driver education classroominstruction, in-car training (behind-the-wheel and observation), simulation,and multicar range must include the instructional objectives establishedby the department, as specified in this subsection and the POI-DE,and meet the requirements of this subchapter. Sample instructionalmodules may be obtained from the department. Schools may use sampleinstructional modules developed by the department or develop theirown instructional modules based on the approved instructional objectives.The instructional objectives are organized into the modules outlinedin this subsection and include objectives for classroom and in-cartraining (behind-the-wheel and observation), simulation lessons, parentalinvolvement activities, and evaluation techniques. In addition, theinstructional objectives that must be provided to every student enrolledin a minor and adult driver education course include information relatingto litter prevention; anatomical gifts; safely operating a vehiclenear oversize or overweight vehicles; distractions, including theuse of a wireless communication device that includes texting; motorcycleawareness; alcohol awareness and the effect of alcohol on the effectiveoperation of a motor vehicle; and recreational water safety. A studentmay apply to the Texas Department of Public Safety (DPS) for a learner'slicense after completing four [six] hours ofinstruction as specified in Module One of the POI-DE.

(d) A public school may use multimedia systems, simulators,and multicar driving ranges for instruction in a driver education program.

(e) Each simulator, including the instructional programs,and each plan for a multicar driving range must meet state specificationsdeveloped by the department. Simulators are electromechanical equipmentthat provides for teacher evaluation of perceptual, judgmental, anddecision-making performance of individuals and groups. With simulation,group learning experiences permit students to operate vehicular controlsin response to audiovisual depiction of traffic environments and drivingemergencies. The specifications are available from the department.

(f) A minimum of four periods of at least 55 minutesper hour of instruction in a simulator may be substituted for onehour of behind-the-wheel and one hour observation instruction. A minimumof two periods of at least 55 minutes per hour of multicar drivingrange instruction may be substituted for one hour of behind-the-wheeland one hour observation instruction relating to elementary or citydriving lessons. However, a minimum of four hours must be devotedto behind-the-wheel instruction and a minimum of four hours must bedevoted to observation instruction.

(g) A school may not permit more than 36 students perdriver education class, excluding makeup students.

(h) All behind-the-wheel lessons must consist of actualdriving instruction. Observation of the instructor, mechanical demonstrations,etc., must not be counted for behind-the-wheel instruction. The instructormust be in the vehicle with the student during the entire time behind-the-wheelinstruction is provided.

(i) Minor and adult driver education programs mustinclude the following components.

(1) Driver education instruction is limited to eligiblestudents between the ages of 14-18 years of age, who are at least14 years of age when the driver education classroom phase begins andwho will be 15 years of age or older when the behind-the-wheel instructionbegins. Students officially enrolled in school who are 18-21 yearsof age may attend a minor and adult driver education program.

(2) Motion picture films, slides, videos, tape recordings,and other media that present concepts outlined in the instructionalobjectives may be used as part of the required instructional hoursof the classroom instruction. Units scheduled to be instructed mayalso be conducted by guest speakers as part of the required hoursof instruction. Together, these must not exceed 720 [640]minutes of the total classroom phase.

(3) Each classroom student must be provided a drivereducation textbook or driver education instructional materials approvedby the department.

(4) A copy of the current edition of the "Texas DriverHandbook" or equivalent study material [publishedby DPS] must be made available [furnished]to each student enrolled in the classroom phase of the driver education course.

(5) No public school should permit a ratio of lessthan two, or more than four, students per instructor for behind-the-wheelinstruction, except behind-the-wheel instruction may be provided foronly one student when it is not practical to instruct more than onestudent, for makeup lessons, or if a hardship would result if scheduledinstruction were [is] not provided. In eachcase when only one student is instructed:

(A) the school must obtain a waiver signed and datedby the parent or legal guardian of the student and the chief schoolofficial stating that the parent or legal guardian understands thatthe student may be provided behind-the-wheel instruction on a one-on-onebasis with only the instructor and student present in the vehicleduring instruction;

(B) the waiver may be provided for any number of lessons;however, the waiver must specify the exact number of lessons for whichthe parent is providing the waiver; and

(C) the waiver must be signed before the first lessonin which the parent is granting permission for the student to receiveone-on-one instruction.

(j) Colleges and universities that offer driver educationto adults must submit and receive written approval for the coursefrom the department prior to implementation of the program. The requestfor approval must include a syllabus, list of instructors, samplesof instructional records that will be used with the course, and informationnecessary for approval of the program.

§84.601.Additional Procedures for Student Certification and Transfers.

(a) Unused DE-964s must not be transferred to anotherschool without written approval by the department.

(b) The DE-964 document is a government record as definedunder Texas Penal Code, §37.01(2). Any misrepresentation by theapplicant or person issuing the form as to the prerequisite set forthmay result in suspension or revocation of instructor credentials orprogram approval and/or criminal prosecution.

(c) The superintendent, college or university chiefschool official, ESC director, or their designee may request to receiveserially numbered DE-964 certificates for exempt schools by submittinga completed order on the form provided by the department stating thenumber of certificates to be purchased and including payment of allappropriate fees. The department will accept purchase requisitionsfrom school districts.

(d) All DE-964 certificates and records of certificatesmust be provided to the department or DPS upon request. The superintendent,college or university chief school official, ESC director, or theirdesignee must maintain the school copies of the certificates. Thechief school official, ESC or DPS director, or their designee mustreturn unissued DE-964 certificates to the department within 30 daysfrom the date the school discontinues the driver education program,unless otherwise notified.

(e) The public school may accept any part of the drivereducation instruction received by a student in another state; however,the student must complete all the course requirements for a Texasdriver education program. Driver education instruction completed inanother state must be certified in writing by the chief official orcourse instructor of the school where the instruction was given andinclude the hours and minutes of instruction and a complete descriptionof each lesson provided. The certification document must be attachedto the student's individual record at the Texas school and be maintainedwith the record for three [seven] years oras mandated by the school district.

(f) Students who are licensed in another state andhave completed that state's driver education program should contactthe DPS for information on the licensing reciprocal agreement betweenthat state and Texas.

(g) All records of instruction must be included aspart of the student's final history when it is necessary to compilemultiple records to verify that a student successfully completed adriver education course.

The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.

Filed with the Office of the Secretary of State on August 19, 2024.

TRD-202403809

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 463-7750

16 TAC §§131.1, 131.11, 131.21, 131.23, 131.25, 131.27, 131.29

The Texas Department of Licensing and Regulation(Department) proposes new rules at 16 Texas Administrative Code (TAC),Chapter 131, §§131.1, 131.11, 131.21, 131.23, 131.25, 131.27,and 131.29, regarding the Procedural Rules During Temporary Administrationof the Texas Board of Veterinary Medical Examiners. These proposedchanges are referred to as the "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The proposed rules under 16 TAC, Chapter 131, will implement TexasOccupations Code, Chapter 801, Veterinarians, Subchapter A-1, TemporaryAdministration by the Texas Department of Licensing and Regulation.

On September 1, 2023, the Texas Board of Veterinary Medical Examiners(Board) was brought under the temporary administration of the Departmentby Senate Bill (SB) 1414, 88th Legislature, Regular Session (2023).As a result of SB 1414, the Texas Commission of Licensing and Regulation(Commission) now serves as the decision-maker in contested cases underOccupations Code, Chapter 801 (Veterinary Licensing Act or "the Act.").Occupations Code §801.022(a) and (b) vest the Department, duringtemporary administration, with most of the Board's former policymakingand decision-making authority under the Act, with the Board retainingrulemaking authority over standard of care and scope of practice matters,subject to limited oversight, under §801.024. Occupations Code§801.022(c) gives the Commission and Department discretion todelegate powers to the Board or its executive director, and to withdrawthese delegations of power. Under Occupations Code §801.022(d),the Commission is required to adopt rules necessary to implement thetemporary administration of the Board. Occupations Code §801.025provides that in the event of a conflict between Occupations Code,Chapters 51 and 801, the latter prevails, and that the provisionsof Subchapter A-1 prevail over the remainder of Chapter 801.

Prior to the effective date of SB 1414, contested cases under theAct were decided by the Board, applying the Act and the Board's proceduralrules found in 22 TAC, Chapter 575, which implement the Act. Similarly,contested cases before the Commission are decided under the proceduralrules at 16 TAC, Chapter 60, which implement Occupations Code, Chapter51, the Department's enabling statute. Key differences exist betweenthe Chapter 60 and Chapter 575 rules, introducing the possibilityof confusion in conduct of contested veterinary licensing cases duringthe temporary administration. The proposed rules address these issuesby resolving conflicts between the Chapter 60 and Chapter 575 rulesas necessary to effect the temporary administration, while preservingthe statutory rights of license holders and the statutory hierarchyset forth in Occupations Code §801.025.

The proposed rules clarify that unless the Commission delegatesits authority to make decisions in contested cases under the VeterinaryLicensing Act, the Commission will serve as the decision-maker inthese matters. The Commission may delegate this authority to its ownexecutive director, the Board, or the Board's executive director.Further, the proposed rules provide detail regarding the Board's,Department's, and Commission's roles in the contested case process,and the procedures to be followed if the Commission does not delegateits decision-making power. Further, the proposed rules address conflictsbetween the Board's existing rules and the Commission's rules relatingto interim and interlocutory appeals, as well as deadlines for exceptionsand replies in cases before the State Office of Administrative Hearings.

SECTION-BY-SECTION SUMMARY

The proposed rules add new 16 TAC, Chapter 131, Procedural RulesDuring Temporary Administration of the Texas Board of Veterinary Medical Examiners.

The proposed rules add new §131.1, Authority and Applicability.Subsection (a) sets forth the legal authority for the rule chapter.Subsection (b) sets forth the circ*mstances under which the rulesapply. Subsection (c) sets forth a framework for resolving any conflictsbetween this chapter, the Chapter 60 rules, and the Chapter 575 rules,as enumerated in paragraphs (1) - (3).

The proposed rules add new §131.11, Definitions. Subsection(a) incorporates by reference the definitions in the Act, the APA,and in 16 TAC §60.10. Subsection (b) provides specific definitionsin paragraph (1) - (9) for certain key terms, doing so for clarityand ease of reference.

The proposed rules add new §131.21, Contested Case Proceedingsat SOAH. The rule mirrors language in 16 TAC §60.305(a) and clarifiesthat the period for exceptions and replies is determined under theAPA and SOAH's procedural rules, rather than under 22 TAC §575.6.

The proposed rules add new §131.23, Interlocutory or InterimAppeals. The rule clarifies that, notwithstanding the rule at 22 TAC§575.30(f), which purports to permit interlocutory or interimappeals, such a proceeding is not available during the temporary administration.

The proposed rules add new §131.25, Commission and Board Considerationof Proposals for Decision. The rule clarifies that the Board actsin an advisory capacity and that the Commission is the decision-makerfollowing the issuance of a proposal for decision. Subsection (a)sets forth the Commission's status as decision-maker and its authorityto delegate this power to the Board on a revocable basis, as providedin Occupations Code §801.022(c). Subsection (b) provides thatthe Board is to consider the proposal for decision at an open meetingin accordance with its procedural rules, is to make a written recommendationto the Commission, and will notify the parties of its recommendationby mail or email. Subsection (b) provides that no motion for rehearingor reconsideration is to be filed at the Board level. Subsection (c)outlines the procedures for Commission consideration of the Board'srecommendation. Subsection (d) addresses the content of oral argument,where permitted, and prohibits the consideration of new evidence presentedduring oral arguments, tracking certain language from 16 TAC §60.308(b).Subsection (e) provides the factors that will be considered by theCommission in determining the appropriate disciplinary action fora violation.

The proposed rules add new §131.27, Motions for Rehearing.The rule tracks the language of 16 TAC §60.309, clarifying thatthe Commission's procedures for motions for rehearing apply to casesunder the Act.

The proposed rules add new §131.29, Proceedings for the Modificationor Termination of Agreed Orders and Disciplinary Orders. The ruleclarifies that the Commission is the decision-maker over proceedingsto modify or terminate a previously imposed sanction. Subsection (a)clarifies that the rule does not create a new right to relief. Subsection(b) provides that the Commission is the decision-maker unless thispower is delegated, and that the terms of a delegation order overrideany conflicting provision in this rule section. Subsection (c) providesthat the Board is to consider and make recommendations on motionsto modify or terminate a sanction. Subsection (d) provides that theCommission will rule on the motion after considering the Board's recommendation.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Tony Couvillon, Policy Research and Budget Analyst, has determinedthat for each year of the first five years the proposed rule is ineffect, enforcing or administering the proposed rule does not haveforeseeable implications relating to costs or revenues of state orlocal governments.

LOCAL EMPLOYMENT IMPACT STATEMENT

Because Mr. Couvillon has determined that the proposed rules willnot affect a local economy, the agency is not required to preparea local employment impact statement under Texas Government Code §2001.022.

PUBLIC BENEFITS

Mr. Couvillon also has determined that for each year of the firstfive-year period the proposed rules are in effect, the public benefitwill be an improved understanding by the public, license holders,the Board, and Department, of their rights and responsibilities withrespect to the contested case process during the Department's temporaryadministration of the Board.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Couvillon has determined that for each year of the first five-yearperiod the proposed rules are in effect, there are no anticipatedeconomic costs to persons who are required to comply with the proposed rules.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse economic effect on small businesses, micro-businesses,or rural communities as a result of the proposed rules. Because theagency has determined that the proposed rule will have no adverseeconomic effect on small businesses, micro-businesses, or rural communities,preparation of an Economic Impact Statement and a Regulatory FlexibilityAnalysis, as detailed under Texas Government Code §2006.002,is not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

The proposed rules do not have a fiscal note that imposes a coston regulated persons, including another state agency, a special district,or a local government. Therefore, the agency is not required to takeany further action under Texas Government Code §2001.0045.

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Texas Government Code §2001.0221, the agency providesthe following Government Growth Impact Statement for the proposedrules. For each year of the first five years the proposed rules willbe in effect, the agency has determined the following:

1. The proposed rules do not create or eliminate a government program.

2. Implementation of the proposed rules does not require the creationof new employee positions or the elimination of existing employee positions.

3. Implementation of the proposed rules does not require an increaseor decrease in future legislative appropriations to the agency.

4. The proposed rules do not require an increase or decrease infees paid to the agency.

5. The proposed rules create a new regulation. The proposed rulesadd procedural rules for the handling and consideration of contestedcases involving individuals licensed under the Act during temporary administration.

6. The proposed rules do not expand, limit, or repeal an existing regulation.

7. The proposed rules increase the number of individuals subjectto the rules' applicability. The proposed rules establish proceduralrules affecting any individual licensed under the Act who is or becomesa party to a contested case during temporary administration.

8. The proposed rules do not positively or adversely affect thisstate's economy.

TAKINGS IMPACT ASSESSMENT

The Department has determined that no private real property interestsare affected by the proposed rules and the proposed rules do not restrict,limit, or impose a burden on an owner's rights to his or her privatereal property that would otherwise exist in the absence of governmentaction. As a result, the proposed rules do not constitute a takingor require a takings impact assessment under Texas Government Code §2007.043.

PUBLIC COMMENTS

Comments on the proposed rules may be submitted electronicallyon the Department's website at TBVME.Comments@tdlr.texas.gov; by facsimile to (512) 475-3032; or by mail to Vanessa Vasquez,Legal Assistant, Texas Department of Licensing and Regulation, P.O.Box 12157, Austin, Texas 78711. The deadline for comments is 30 daysafter publication in the Texas Register,

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code §801.022,which authorizes the Texas Commission of Licensing and Regulation(Commission), the Department's governing body, to adopt rules as necessaryto effect the Department's temporary administration of the board inaccordance with Occupations Code, Chapter 801, subchapter A-1.

The proposed rules are also proposed under Texas Occupations Code,Chapter 51, which authorize the Commission to adopt rules as necessaryto implement these chapters and any other law establishing a programregulated by the Department.

The statutory provisions affected by the proposed rules are thoseset forth in Texas Occupations Code, Chapters 51 and 801. No otherstatutes, articles, or codes are affected by the proposed rules.

The legislation that enacted the statutory authority under whichthe proposed rules are proposed to be adopted is Senate Bill 1414,88th Legislature, Regular Session (2023).

§131.1.Authority and Applicability.

(a) Authority. This chapter is adopted under the authorityof Texas Occupations Code, Chapters 51 and 801.

(b) Applicability. This chapter prescribes proceduralrules during the department's temporary administration of the board.

(c) Conflicts. In the event of a conflict between thischapter, the rules of the board under 22 TAC Chapter 575, and therules of the department under 16 TAC, Chapter 60:

(1) This chapter prevails over any conflicting provisionin Chapter 575 or Chapter 60;

(2) Unless otherwise specified in law, where thereis no applicable provision in this chapter, the provisions of Chapter575 prevail over a conflicting provision of Chapter 60; and

(3) Where there is no applicable provision in eitherthis chapter or Chapter 575, the provisions of Chapter 60 prevail.

§131.11.Definitions.

(a) Where applicable, the definitions contained in Texas Occupations Code Chapter 801, Texas Government Code Chapter 2001, and 16 TAC §60.10 are incorporated into this chapter.

(b) The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.

(1) Board - The Texas Board of Veterinary Medical Examiners.

(2) Commission - The Texas Commission of Licensing and Regulation.

(3) Department - The Texas Department of Licensing and Regulation.

(4) Executive Director - The head administrative officialof the department or board, as specified.

(5) License - A license, certificate, registration,title, commission, or permit issued by the department or board.

(6) License holder - A person who holds a license issuedby the department or board.

(7) Party - A person or state agency named or admittedas a party to participate in a contested case.

(8) Sanction - An action against a license holder oranother person, including the denial, suspension, or revocation ofa license, the reprimand of a license holder, the placement of a licenseholder on probation, or refusal to renew.

(9) Veterinary Licensing Act - Texas Occupations Code,Chapter 801.

§131.21.Contested Case Proceedings at SOAH.

Contested case hearings at SOAH, including the period for exceptionsand replies, are governed by Texas Government Code, Chapter 2001 andthe SOAH rules under 1 TAC Chapter 155.

§131.23.Interlocutory or Interim Appeals.

Notwithstanding the provisions of 22 TAC §575.30(f), nointerlocutory or interim appeals are permitted.

§131.25.Commission and Board Consideration of Contested Cases.

(a) Commission as decision-maker. The commission maydelegate to the board, the executive director of the board, or theexecutive director of the department the authority to decide contestedcases. Such delegation is revocable. Unless so delegated, the commissionis the decision-maker of all contested cases under the VeterinaryLicensing Act, and the provisions of this section will apply. Shouldthe commission delegate authority to decide contested cases, the termsof the delegation will override any conflicting provision in this section.

(b) Board to make recommendation. Following the issuanceof a proposal for decision, the board, in an open meeting and in accordancewith its procedural rules, may permit the parties to present oralarguments. The board will make a written recommendation to the commissionon the resolution of the case, and will notify the parties or theirrepresentatives of its recommendation by postal or electronic mail.The board's recommendation is not binding on the commission. No motionfor rehearing or reconsideration may be considered by the board followingits recommendation.

(c) Commission consideration of board's recommendationregarding proposals for decision. After receiving the board's recommendationrelating to the adoption or modification of a proposal for decision,the Commission will consider the case in an open meeting unless ithas delegated decision-making authority to the board. The commissionmay, in its sole discretion, hear oral argument in the matter.

(d) Oral argument. If oral argument is permitted ata board or commission meeting at which a contested case is considered,argument must be restricted to summation of testimony and evidencepresented during the SOAH hearing or admitted into the SOAH record,including filings of the parties, exceptions, dispositions, and theresponses, and suggested inferences from the evidentiary record. Nonew testimony, witnesses, or information may be considered.

(e) Sanctions. In determining the appropriate disciplinaryaction for a violation, the commission will consider the factors listedunder §801.411(b) of the Veterinary Licensing Act and the scheduleof sanctions provided under 22 TAC §575.25.

§131.27.Motions for Rehearing.

(a) The commission may delegate to the board the authorityto accept and rule upon motions for rehearing. Unless so delegated,the commission will rule upon motions for rehearing and the provisionsof this section will apply. Should the commission delegate this authority,the terms of the delegation will override any conflicting provisionin this section.

(b) A motion for rehearing in a contested case underthe Veterinary Licensing Act must be filed with the department andwill be handled in accordance with Texas Government Code, Chapter2001, Subchapter F, and 16 Texas Administrative Code §60.309.

(c) The commission may, in its sole discretion, hearoral argument on a motion for rehearing related to a contested caseunder the Veterinary Licensing Act.

§131.29.Proceedings for the Modification of Termination of Agreed Orders and Disciplinary Orders.

(a) No new right to relief created. This section governsproceedings to modify or terminate agreed orders and disciplinaryorders where a right to seek such relief exists under current lawand does not create a new right to such relief.

(b) Commission as decision-maker. The commission maydelegate to the board or the executive director of the departmentthe authority to rule upon motions to modify or terminate agreed ordersor disciplinary orders. Such delegation is revocable. Unless so delegated,the commission will rule upon all such motions. Should the commissiondelegate this authority, the terms of the delegation will overrideany conflicting provision in this section.

(c) Board to issue recommendation. The board will receiveand consider motions to modify or terminate agreed orders or disciplinaryorders in accordance with the Veterinary Licensing Act and the board'sprocedural rules. Following board deliberation of the motion, theboard will make a written recommendation to the commission on theresolution of the case and notify the parties or their representativesof its recommendation by postal or electronic mail.

(d) Following the issuance of the board's recommendation,the commission will rule upon the motion.

The agency certifies that legal counsel has reviewedthe proposal and found it to be within the state agency's legal authorityto adopt.

Filed with the Office of the Secretary of State on August 19, 2024.

TRD-202403802

Doug Jennings

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: September 29, 2024

For further information, please call: (512) 463-3671