(a) If an operator who maintains a tank or pit does not take protective measures necessary to prevent harm to birds, the operator may incur liability under federal and state wildlife protection laws. Federal statutes, such as the Migratory Bird Treaty Act, provide substantial penalties for the death of certain species of birds due to contact with oil in a tank or pit. These penalties may include imprisonment. State statutes also protect certain species of birds. The Railroad Commission of Texas (commission) is cooperating with federal and state wildlife authorities in their efforts to protect birds.
(b) An operator must screen, net, cover, or otherwise render harmless to birds the following categories of open-top tanks and pits associated with the exploration, development, and production of oil and gas, including transportation of oil and gas by pipeline:
  (1) open-top storage tanks that are eight feet or greater in diameter and contain a continuous or frequent surface film or accumulation of oil; however, temporary, portable storage tanks that are used to hold fluids during drilling operations, workovers, or well tests are exempt;
  (2) skimming pits as defined in §3.8 of 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 used as skimming pits.
(c) If the commission finds a surface film or accumulation of oil in any other pit regulated under §3.8 of this title (relating to Water Protection), the commission will instruct the operator to remove the oil. If the operator fails to remove the oil from the pit in accordance with the commission's instructions or if the commission finds a surface film or accumulation of oil in the pit again within a 12-month period, the commission will require the operator to screen, net, cover, or otherwise render the pit harmless to birds. Before complying with this requirement, the operator will have a right to a hearing upon request. In addition to the enforcement actions specified by this subsection, the commission may take any other appropriate enforcement actions within its authority.

Source Note: The provisions of this §3.22 adopted to be effective September 1, 1991, 16 TexReg 2523; amended to be effective November 1, 1991, 16 TexReg 4737.