H.B. 3152 78(R)    BILL ANALYSIS


H.B. 3152
By: Bonnen
Environmental Regulation
Committee Report (Unamended)



BACKGROUND AND PURPOSE 

 Many commercial and industrial properties in municipal areas across Texas
are underlain with unusable groundwater that has become contaminated by
historical on-site or off-site sources.  Often these plumes of
contamination migrate under surrounding properties and commingle with
other plumes making distinctions of responsibility for assessment and
remediation difficult.  The presence of such contamination often prevents
the appropriate use and redevelopment of property due to the cost of
investigating and remediating groundwater to drinking water standards when
the groundwater is not a drinking water resource.  Current law requires
the landowner or the facility owner/operator responsible for the condition
to define the extent of contamination and to develop an approach to
correct the problem through response actions, which may be extremely
expensive.  Current law does not allow ordinances or other institutional
controls, such as restrictive covenants, to eliminate groundwater response
action objectives in locations where the groundwater will not be used as a
future drinking water source.  Specifically, ordinances restricting the
installation and use of wells are not currently allowed as an effective
response action.  As a result, a great deal of money and resources are
spent assessing and remediating unusable groundwater in municipal areas.
Alternatively, developers must abandon municipal redevelopment projects
because of the prohibitive costs associated with the required response
action, thereby preventing stimulation to the local property tax base.  A
more balanced approach to these situations is required.  The approach
should be protective of real public health issues and recognize that the
actual risk associated with municipal groundwater contamination in many
cases is property stagnation. 

This bill would address that problem by authorizing the Texas Commission
on Environmental Quality ("TCEQ") and local governments to create
municipal setting designations ("MSDs") for properties that rely on
protected community water systems to supply drinking water.  Pursuant to
this authority, a city could restrict potable use of groundwater in
designated areas where public water is available.  Once groundwater use is
restricted to non-potable uses and public water is made available, the
TCEQ would certify the area as an MSD.  Parties responsible for
contaminated properties within the MSD would no longer have to consider
the risks associated with human consumption of the contaminated
groundwater in developing a response action to address the contamination.
Consequently, the extent of required remediation necessary to address
groundwater that is not a drinking water resource would be greatly reduced
or completely eliminated at those sites.  If enacted, these changes to the
law would substantially reduce the cost of investigations and remediations
at contaminated sites in municipal areas, thereby restoring and
revitalizing the local property tax base by encouraging municipal
redevelopment. This bill also empowers local governments to protect
citizens from the dangers associated with consumption of contaminated
groundwater.  


RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any
additional rulemaking authority to a state officer, department, agency, or
institution. 



 

ANALYSIS

Section 1.  Adds Subchapter W, Chapter 361, Health and Safety Code.
Subchapter W contains Sections 361.801 through 361.808. 
The new Section 361.801 adds definitions for the terms "Contaminant,"
"Potable water," and "Response action." 
The new Section 361.802 provides that the purpose of the new Subchapter W
is to provide authorization to the executive director of the TCEQ (the
"Executive Director") to certify MSDs for municipal properties to limit or
eliminate the scope of response actions addressing contaminant impacts to
groundwater that has been restricted from potable water use by ordinance
or restrictive covenant. 
The new Section 361.803 establishes eligibility criteria for an MSD,
including requirements regarding the population of the municipality
containing the MSD and the availability of public drinking water.  The MSD
must be subject to an ordinance or restrictive covenant that prohibits use
of groundwater beneath the MSD as potable water and appropriately
restricts other uses of groundwater. 
The new Section 361.804 adds requirements regarding the application for a
MSD, affidavits, and information regarding the applicant, site
information, and the applicable ordinance or restrictive covenant.
Further, Section 361.804 provides that the Executive Director must (1)
issue a MSD certificate, (2) deny the application, or (3) request
additional information from the applicant, within a certain time after the
application is received. 
The new Section 361.805 requires the applicant to provide notice regarding
the MSD application to (1) the municipality in which the MSD is located,
and (2) any municipality whose boundaries are within one-half mile of the
MSD.  Section 361.805 also specifies the requirements regarding the
content of the notice, and that copies of the notice must be provided to
the Executive Director. 
The new Section 361.806 provides that the Executive Director may deny an
application for MSD if (1) any of the eligibility criteria in Section
361.803 are not met, (2) the MSD would negatively impact the current and
future regional water resource needs or obligations of certain
municipalities, or (3) the application is incomplete or inaccurate.
Section 361.806 also provides certain deadlines for the Executive Director
to request additional information from an applicant.  Section 361.806 also
contains notice, explanation and refund requirements in the event the
Executive Director denies the application. 
The new Section 361.807 provides that once an application is complete, the
Executive Director shall issue a MSD certificate to the applicant and to
certain municipalities.  Section 361.807 provides certain requirements
regarding the content of a MSD certificate.  Section 361.807 also provides
a procedure for obtaining a MSD certificate when the original application
does not include an ordinance or restrictive covenant satisfying Section
361.803. 
The new Section 362.808 provides generally that where no potable water use
wells are located or planned to be located within one-half mile beyond the
boundary of the MSD (the "outer zone"), the Executive Director shall not
require a person addressing environmental impacts for a property located
in the MSD to conduct an environmental investigation or response action.
An exception exists when such action is necessary (1) to ensure the
protection of humans from exposures to environmental impacts to
groundwater not related to a potable water use, or (2) to protect
ecological resources. 
Section 361.808 provides that where potable water use wells are located
within the outer zone, the Executive Director shall require a person
addressing environmental impacts for a property located in the MSD to
complete an investigation to determine if groundwater contamination
emanating from the property has caused or is reasonably anticipated to
cause applicable human or ecological standards to be exceeded in the outer
zone.  If that investigation indicates that groundwater emanating from the
property has not caused or is not reasonably anticipated to cause
applicable human or ecological standards to be exceeded in the outer zone,
the Executive Director shall approve the completion of  groundwater
response actions at the property.  There is an exception whereby the
Executive Director may require a response action to the extent necessary
(1) to ensure the protection of humans from exposures to environmental
impacts to groundwater not related to a potable water use, or (2) to
protect ecological resources. 
Section 361.808 provides that if an investigation indicates that
groundwater emanating from the property has caused or is reasonably
anticipated to cause applicable human or ecological standards to be
exceeded in the certified MSD or in the outer zone, the Executive Director
shall approve the completion of groundwater response action at the
property once the person has completed one of three options.  First, the
person may complete response actions at the property to remediate
environmental impacts to groundwater to applicable human or ecological
standards.  Second, the person may (1) complete response actions at the
property to address environmental impacts to groundwater not related to a
potable water use, (2) provide a reliable water source to owners of
impacted potable water use, and (3) obtain from the owners of impacted
potable water use wells restrictive covenants that prohibit the potable
water use of groundwater, and that restrict other uses of groundwater in a
manner consistent with the groundwater quality.  Third, the person may
expand the MSD to include the properties with impacted potable use water
wells. 
Section 361.808 also provides that the Executive Director may require a
person responsible for property within a certified MSD to complete a
response action to address environmental impacts to groundwater emanating
from the property that has caused or is reasonably anticipated to cause
applicable human or ecological standards to be exceeded in an area located
beyond the outer zone, provided such action is necessary to ensure the
protection of humans from exposures to environmental impacts to
groundwater or the protection of ecological resources.  Finally, Section
361.808 contains a savings clause that provides that nothing in the
statute alters or affects the private rights of action of any person under
any statute or common law for personal injury or property damage caused by
the release of contaminants.   
Section 2.  Amends Subsection (a), Section 211.003, Local Government Code,
to authorize the governing body of a municipality to regulate the pumping,
extraction, and use of groundwater for drinking purposes. 
Section 3.  Amends Subsection (a), Section 212.003, Local Government Code,
to authorize the governing body of a municipality by ordinance to extend
to the extraterritorial jurisdiction of the municipality the application
of municipal ordinances relating  to the pumping, extraction, and use of
groundwater for drinking purposes. 
Section 4.  Provides that this Act takes effect on September 1, 2003.

EFFECTIVE DATE
September 1, 2003.