SRC-TAG C.S.H.B. 3152 78(R)    BILL ANALYSIS


Senate Research CenterC.S.H.B. 3152
By: Bonnen (Jackson)
Natural Resources
5/19/2003
Committee Report (Substituted)

DIGEST 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.   
Current law requires the landowner or the facility owner/operator
responsible for the condition to define the extent of the contamination
and to develop an approach to correct the problem through response
actions, which may be extremely expensive.  However, it does not allow
ordinances or other institutional control, such as restrictive covenants,
to eliminate groundwater response action objectives in locations where the
groundwater will no longer be used as a drinking water source;
specifically, ordinances restricting the installation and use of wells are
not currently allowed as a response action.  C.S.H.B. 3152 sets forth the
provisions relating to the potability of and requirements for removing
contaminants from groundwater, which includes authorizing a city to
restrict potable use of groundwater in designated areas where public
drinking water is available.  

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to
a state officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Chapter 361, Health and Safety Code, adding Subchapter
W, as follows: 

SUBCHAPTER W.  MUNICIPAL SETTING DESIGNATIONS

Sec.  361.801. DEFINITIONS.  Defines "contaminant," "potable water," and
"response action." 

Sec.  361.8015.  LEGISLATIVE FINDINGS.  Sets forth legislative findings
relating to access to and the use of groundwater. 

 Sec.  361.802.  PURPOSE.  Sets forth the purpose of this subchapter.

Sec.  361.803.  ELIGIBILITY FOR A MUNICIPAL SETTING DESIGNATION.
Authorizes a person, including a local government, to submit a request to
the executive director of the Texas Commission on Environmental Quality
(TCEQ) (executive director) for a municipal setting designation for
property if certain conditions exist. 
 
Sec. 361.804.  APPLICATION FOR A MUNICIPAL SETTING DESIGNATION.  (a)
Requires a person seeking to obtain a municipal setting designation under
this subchapter to submit an application to the executive director as
prescribed by this section. 

(b)  Requires an application submitted under this section be on a form
provided by the executive director and to contain certain information. 

(c)  Requires the executive director, not later than 90 days after
receiving an application submitted as provided by Subsection (b), to take
certain actions. 

(d)  Requires the executive director, not later than the 45th day after
receiving any  additional information requested under Subsection (c)(3),
to certify or deny the application. 

(e)  Requires the fees collected under this section to be deposited to the
credit of the waste management account. 

Sec.  361.805.  NOTICE.  (a)  Requires the person seeking a municipal
setting designation, on or before the submission of an application to the
executive director,  to provide notice to certain municipalities. 

  (b)  Requires the notice to include, at a minimum, certain information.

(c)  Requires the applicant to submit copies of the notice letters
delivered in accordance with Subsection (a) and the signed delivery
receipts to the executive director with the application. 

(d)  Requires the notice to a municipality to be provided to the city
secretary for the municipality, and notice to a retail public utility to
be to the registered agent, the owner, or the manager, for the purpose of
this section. 

(e)  Authorizes a municipality, retail public utility, or private well
owner entitled to notice under this section to file comments with the
executive director not later than the 60th day after the date the
municipality, retail public utility, or private well owner receives the
notice under this section.  

Sec.  361.806.  DENIAL OF APPLICATION.  (a)  Requires the executive
director, under certain conditions, to deny an application submitted under
Section 361.804.  

(b)  Requires the executive director, if the executive director determines
that an application is incomplete or inaccurate, not later than the 90th
day after receiving the application, to provide the applicant with a list
of all information needed to make the application complete or accurate.  

(c)  Requires the executive director, if the executive director denies the
application, to notify the applicant that the application has been denied
and to explain the reasons for the denial of the application. 

Sec.  361.8065.  PRECERTIFICATION REQUIREMENTS.  (a) Requires the
applicant to provide certain information, before the executive director
may issue a municipal setting designation certificate under Section
361.807.   

(b)  Requires a designation described by Subsection (a)(2)(B) to be
supported by a resolution passed by the city council of the municipality. 

Sec.  361.807.  CERTIFICATION.  (a)  Requires the executive director, if
the executive director determines that an applicant has complied with
Section 361.8065 and submitted a complete application, to issue a copy of
the municipal setting designation certificate to  
 certain persons and entities.

(b)  Requires the municipal setting designation certificate to indicate
certain information.   

(c)  Requires the executive director, if the executive director determines
that an applicant has submitted a complete application except that an
ordinance or restrictive covenant and any required resolutions satisfying
the requirements described in Section 361.8065 have not been submitted, to
issue a letter to the applicant listed in Subsection (a) stating that a
municipal setting designation will be certified on submission of a copy of
the ordinance or restrictive covenant and any required resolutions
satisfying the requirements described in Section  361.8065.  Requires the
executive director, on submission of the ordinance or restrictive covenant
and any required resolution satisfying the requirements described in
Section 361.8065, to issue a municipal setting designation certificate in
accordance with Subsections (a) and (b).  

Sec.  361.808.  INVESTIGATION AND RESPONSE ACTION REQUIREMENTS.  (a)
Prohibits the executive director, if no potable water wells are located
within one-half mile beyond the boundary of a municipal setting
designation, from requiring a person addressing environmental impacts for
a property located in the municipal setting designation to take certain
actions. 

(b)  Authorizes the executive director, notwithstanding Subsection (a),
to require a responsible person to complete a response action to address
environmental impacts to groundwater in a certified municipal setting
designation if action is necessary to ensure certain protections. 

(c)  Requires the executive director, if potable water wells are located
within onehalf mile beyond the boundary of a municipal setting
designation, to require a person addressing environmental impacts for a
property located in the municipal setting designation to complete an
investigation to determine whether groundwater contamination emanating
from the property has caused or is reasonably anticipated to cause
applicable human health or ecological standards to be exceeded in the area
located within one-half mile beyond the boundary of the certified
municipal setting designation. 

(d)  Requires the executive director, if an investigation described in
Subsection (c) confirms that groundwater emanating from the property has
not caused and is not reasonably anticipated to cause applicable human
health or ecological standards to be exceeded in the area located within
one-half mile beyond the boundary of the certified municipal setting
designation, to approve the completion of groundwater response actions at
the property except to the extent that response actions are necessary to
satisfy Subsection (b). 

(e)  Requires the executive director, if an investigation described in
Subsection (c) confirms that groundwater emanating from the property has
caused or is reasonably anticipated to cause applicable human health or
ecological standards to be exceeded in the area located within one-half
mile beyond the boundary of the certified municipal setting designation,
to approve the completion of groundwater response action at the property
if the person addressing environmental impacts meets certain requirements. 

(f)  Authorizes the executive director, notwithstanding any other
provision of this section, to require a responsible person for property
within a certified municipal setting designation 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 consumption or ecological standards to be exceeded in an area
located more than one-half mile beyond the boundary of the certified
municipal setting designation, provided such action is necessary to ensure
the protection of humans from exposure to environmental impacts to
groundwater or the protection of ecological resources. 

(g)  Provides that this subchapter relates to the scope of the response
action that can be required by the executive director in municipal
settings designated under this subchapter.  Requires nothing in this
subchapter to be construed to alter or affect 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 Section 211.003(a), Local Government Code, to authorize
the governing body of a municipality to regulate the pumping, extraction,
and use of groundwater by persons  other than  retail public utilities, as
defined by Section 13.002 (Definitions), Water Code, for the purpose of
preventing the use or contact with groundwater that presents an actual or
potential threat to human health. 

SECTION 3.  Amends Section 212.003(a), Local Government Code, to make a
conforming change. 

SECTION 4.  Amends Chapter 401, Local Government Code, by adding Section
401.005, as follows: 

Sec.  401.005.  RESTRICTION ON PUMPING, EXTRACTION, OR USE OF GROUNDWATER.
(a)  Authorizes the governing body of a municipality, for the purpose of
establishing and enforcing a municipal designation,  to regulate the
pumping, extraction, or use of groundwater by persons other than retail
public utilities, as defined by Section 13.002, Water Code, to prevent the
use of or contact with groundwater that presents an actual or potential
threat to human health. 

(b)  Authorizes the governing body, for the purpose of establishing and
enforcing a municipal setting designation, to extend to the
extraterritorial jurisdiction of the municipality the application of
municipal ordinances adopted under this section. 

SECTION 5.  Effective date: September 1, 2003.