Section 4.140 - [Effective 7/1/2025] Additional Requirements for Commercial Facilities(a) In addition to the requirements of this division, all applicants for commercial facilities and permittees of commercial facility permits shall comply with Division 4 of this subchapter (relating to Requirements for All Permitted Waste Management Operations) and any other sections of this subchapter applicable to the applicant's or permittee's management of oil and gas wastes.(b) A facility authorized or permitted as a non-commercial facility prior to July 1, 2025 but that meets the definition of a commercial facility in §4.110 of this title (relating to Definitions) as of July 1, 2025 shall comply with the requirements of this division or request an exception on or before July 1, 2026.(c) A facility that meets the definition of a commercial facility in §4.110 of this title is considered a commercial facility under § 3.78 of this title (relating to Fees and Financial Security Requirements), and therefore, an applicant for a commercial facility permit shall submit the financial security required by Texas Natural Resources Code § 91.109 and § 3.78 of this title for each permit renewal, amendment, and/or transfer.(d) A commercial facility shall not manage oil and gas waste or otherwise begin active operation until the required financial security is approved and accepted by the Commission.(e) Pursuant to § 3.78 of this title, the amount of the financial security shall be the maximum dollar amount necessary to close the facility.(f) The full financial security shall be maintained:(1) until all post-closure activities are completed and approved by the Technical Permitting Section; and(2) while the facility has been referred to and remedial actions are being overseen by the Site Remediation Unit in the Oil and Gas Division.(g) To determine the maximum dollar amount necessary to close the facility, a professional engineer licensed in Texas shall prepare or supervise the preparation of a closure-cost estimate (CCE). (1) In addition to the assumptions and calculations specified in § 3.78 of this title, the professional engineer shall make the following assumptions when determining the dollar amount necessary to close the facility. (A) The facility is in compliance with permit conditions.(B) The facility will be closed according to the permit or approved closure plan, including the sampling and analysis of soils to confirm compliance.(C) None of the operator's other equipment or facilities (e.g., disposal wells, pits, trucks, bulldozers, and employees) are available at the time of closure.(D) The facility is at maximum capacity. All tanks and pits are full of waste. Disposal pits are fully constructed.(E) Storage tanks and pits contain basic sediment and water in normal operating proportions, with a minimum volume of at least 10% basic sediment.(2) The CCE shall not include a salvage or no cost value for any material or equipment at the facility.(3) The CCE shall include costs for sampling and analysis of soil for the areas around each waste management unit, including tank batteries, pads, and former pits.(4) The CCE shall show unit costs for all material, equipment, services, and labor needed to close the facility. Units and fees used shall be appropriate for the type of waste material to be disposed of. For example, disposal units for saltwater shall be reported in oil barrels rather than gallons. Solids held within permitted containments shall be reported in cubic yards. The CCE shall be specific and shall state the source or basis for the specific unit cost, including the following: (A) the permitted waste hauler to be used and the hauler's mileage rate;(B) the distance that waste will be transported for disposal;(C) the name of each facility where waste will be taken and the disposal costs for that facility;(D) the source of any material being brought to the facility, such as clean fill material;(E) calculations for earth-moving equipment time and cost needed to move the fill dirt if fill dirt will be taken from the facility;(F) the total labor costs, including the titles and billing rates for personnel; and(G) the quantity of each unit cost item and how the total quantity was determined (for example, cubic yards of material divided by size of load equals total number of loads).(5) The CCE shall include maps and illustrations such as facility plans and photographs that show the current condition of the facility, and/or the condition of the facility upon reaching maximum 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 maintenance and monitoring. The length of monitoring shall be determined by the Director.(8) The CCE shall show all calculations used to arrive at total maximum closure costs.(9) For all estimates submitted for existing facilities, a NORM screening survey of the facility shall be submitted. NORM screening surveys shall be performed using a properly calibrated scintillation meter with a sodium iodide detector (or equivalent), with the results reported in microroentgens per hour. Manufacturer's specifications and relevant calibration records shall be submitted to Technical Permitting Section in Austin for all devices used for NORM detection. All equipment, including piping, pumps, and vessels shall be surveyed. Readings shall be taken around the circumference of the pits and to the extent possible, over the pits. The ground surrounding the 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; and(E) the readings (in microroentgens per hour).(10) If fill dirt will be excavated from the property to achieve closure, a restrictive covenant shall be submitted with the CCE. If the restrictive covenant requirements are not provided, the CCE shall assume that fill dirt is purchased from a commercial supplier. For a restrictive covenant, the following requirements shall be met whether the operator owns or leases the property:(A) The operator shall provide a letter from the property owner specifically stating that the owner agrees that the material, which is described with specificity as to location, type and amount consistent with what is in the closure plan, will be available for closure whether the operator or the state performs closure, and agreeing to a restrictive covenant that reserves use of the material for closure.(B) The operator shall submit an unsigned draft restrictive covenant on the form provided by the Commission. Once the Commission approves the closure cost and closure plan, the operator will be notified to submit a signed original of the restrictive covenant. The Commission will sign its portion of the restrictive covenant and return it to the operator for filing in the real property records of the county where 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, the operator shall provide to the Commission a copy of an amendment or addendum to the lease between the operator and the surface owner with a clause that specifically reserves use of material and states that the reservation shall inure to the Commission (as third-party beneficiary of this provision) if the Commission must initiate actions to close the facility.(D) The operator shall submit supporting documentation showing that the dimensions of the restrictive covenant area can realistically store a stockpile in the amount needed. If soil will be excavated from the restrictive covenant area rather than stockpiled, the depth of the excavation is limited to what can be graded to prevent stormwater from ponding in the excavated area.(11) After the CCE has been calculated, an additional 10% of that amount shall be added to the total amount of the CCE to cover contingencies.(h) A permit application for a commercial facility shall include a detailed plan for closure of the facility when operations terminate and include the required elements of §4.132 of this title (relating to Closure). The closure plan shall address how the applicant intends to: (1) remove waste, partially treated waste, and/or recyclable product from the facility;(2) close all pits, treatment equipment, and associated piping 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 throughout the facility; and(6) plug groundwater monitoring wells.16 Tex. Admin. Code § 4.140
Adopted by Texas Register, Volume 50, Number 01, January 3, 2025, TexReg 0080, eff. 7/1/2025