2003S0407-2 03/13/03
By: Bonnen H.B. No. 3152
A BILL TO BE ENTITLED
AN ACT
relating to the potability of and requirements for removing
contaminants from groundwater.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 361, Health and Safety Code, is amended
by adding Subchapter W to read as follows:
SUBCHAPTER W. MUNICIPAL SETTING DESIGNATIONS
Sec. 361.801. DEFINITIONS. In this subchapter:
(1) "Contaminant" includes:
(A) solid waste;
(B) hazardous waste;
(C) a hazardous waste constituent listed in 40
C.F.R. Part 261, Subpart D, or Table 1, 40 C.F.R. Section 261.24;
(D) a pollutant as defined in Section 26.001,
Water Code; and
(E) a hazardous substance:
(i) as defined in Section 361.003; or
(ii) subject to Subchapter G, Chapter 26,
Water Code.
(2) "Potable water" means water that is used for
drinking, showering, bathing, or cooking purposes.
(3) "Response action" means the cleanup or removal
from the environment of a hazardous substance or contaminant,
excluding a waste, pollutant, or substance regulated by or that
results from an activity under the jurisdiction of the Railroad
Commission of Texas under Chapter 91 or 141, Natural Resources
Code, or Chapter 27, Water Code.
Sec. 361.802. PURPOSE. The purpose of this subchapter is to
provide authorization to the executive director to certify
municipal setting designations for municipal properties in order to
limit the scope of or eliminate the need for response actions
addressing contaminant impacts to groundwater that has been
restricted from use as potable water by ordinance or restrictive
covenant.
Sec. 361.803. ELIGIBILITY FOR A MUNICIPAL SETTING
DESIGNATION. A person, including a local government, may submit a
request to the executive director for a municipal setting
designation for property if:
(1) the property is within the corporate limits or
extraterritorial jurisdiction of a municipality authorized by
statute that has a population of at least 20,000;
(2) a public drinking water supply system exists that
satisfies the requirements of Chapter 341 and that supplies or is
capable of supplying drinking water to:
(A) the property for which designation is sought;
and
(B) property within one-half mile of the property
for which designation is sought; and
(3) the property for which designation is sought is or
will be subject to:
(A) an ordinance authorized under the Local
Government Code that prohibits the use of groundwater from beneath
the property as potable water and that appropriately restricts
other uses of groundwater from beneath the property in a manner
consistent with maintaining groundwater quality; or
(B) a restrictive covenant that prohibits the use
of groundwater from beneath the property as potable water and
appropriately restricts other uses of groundwater from beneath the
property in a manner consistent with maintaining groundwater
quality.
Sec. 361.804. APPLICATION FOR A MUNICIPAL SETTING
DESIGNATION. (a) A person seeking to obtain a municipal setting
designation under this subchapter must submit an application and an
application fee to the executive director as prescribed by this
section.
(b) An application submitted under this section must:
(1) be on a form provided by the executive director;
and
(2) contain the following:
(A) the applicant's name and address;
(B) a legal description of the outer boundaries
of the proposed municipal setting designation;
(C) a statement as to whether the municipality
that contains the property for which the designation is sought, or
any municipality within one-half mile of the property for which the
designation is sought, supports the proposed designation;
(D) an affidavit that affirmatively states that:
(i) the municipal setting designation
eligibility criteria contained in Section 361.803 are satisfied;
(ii) true and accurate copies of all
documents demonstrating that the municipal setting designation
eligibility criteria provided by Section 361.803 have been
satisfied are included with the application;
(iii) a true and accurate copy of a legal
description of the property for which the municipal setting
designation is sought is included with the application; and
(iv) notice was provided in accordance with
Section 361.805;
(E) proof of notice, as required by Section
361.805(c); and
(F) a copy of the ordinance or restrictive
covenant satisfying the requirements described in Section
361.803(3), or a statement that the applicant will provide a copy of
the ordinance or restrictive covenant satisfying the requirements
described in Section 361.803(3) before the executive director
certifies the municipal setting designation in accordance with
Section 361.807.
(c) Not later than 90 days after receiving an application
submitted as provided by Subsection (b), the executive director
shall:
(1) issue a municipal setting designation certificate
in accordance with Section 361.807;
(2) deny the application in accordance with Section
361.806; or
(3) request additional information for the municipal
setting designation application based on the eligibility criteria
provided by Section 361.803.
(d) Not later than the 45th day after the date the executive
director receives any additional information requested under
Subsection (c)(3), the executive director shall certify or deny the
application.
Sec. 361.805. NOTICE. (a) On or before the date of
submission of an application to the executive director, a person
seeking a municipal setting designation must provide notice to:
(1) the municipality in which the property for which
the designation is sought is located; and
(2) any municipality whose boundaries are within
one-half mile of the property for which the designation is sought.
(b) The notice must include, at a minimum:
(1) the purpose of the municipal setting designation;
(2) the eligibility criteria for a municipal setting
designation;
(3) a copy of this subchapter;
(4) the location and description of the property for
which the designation is sought;
(5) a statement that the municipality may provide
written comments on any information relevant to the executive
director's consideration of the municipal setting designation; and
(6) a statement that the executive director will
certify or deny the application or request additional information
from the applicant not later than 90 days after receiving the
application.
(c) The applicant must submit copies of the notice letter
delivered to the municipality or municipalities described in
Subsection (a) and the signed delivery receipts to the executive
director with the application.
Sec. 361.806. DENIAL OF APPLICATION. (a) The executive
director may deny an application submitted under Section 361.804
if:
(1) any of the eligibility criteria described in
Section 361.803 have not been met for the property for which the
municipal setting designation is sought;
(2) the municipal setting designation would
negatively impact the current and future regional water resource
needs or obligations of the municipality where the property for
which the designation is sought is located or any municipality
whose boundaries are located within one-half mile of the property
for which the designation is sought; or
(3) the application is incomplete or inaccurate.
(b) If the executive director determines that an
application is incomplete or inaccurate, the executive director,
not later than the 90th day after receipt of the application, shall
provide the applicant with a list of all information needed to make
the application complete or accurate. An applicant may resubmit an
application once without submitting an additional application fee
if the applicant resubmits the application not later than the 45th
day after the date the executive director issues notice that the
application is incomplete or inaccurate.
(c) If the executive director denies the application, the
executive director shall:
(1) notify the applicant that the application has been
denied; and
(2) explain the reasons for the denial of the
application.
Sec. 361.807. CERTIFICATION. (a) If the executive
director determines that an applicant has submitted a complete
application, including a copy of the ordinance or restrictive
covenant satisfying the requirements described in
Section 361.803(3), the executive director shall issue a municipal
setting designation certificate to:
(1) the applicant for the municipal setting
designation;
(2) the municipality in which the municipal setting
designation is located; and
(3) the municipality whose boundaries are within
one-half mile of the municipal setting designation.
(b) The municipal setting designation certificate shall:
(1) indicate that the municipal setting designation
eligibility criteria described in Section 361.803 are satisfied
and that the executive director has certified the municipal setting
designation;
(2) indicate that any person addressing environmental
impacts for a property located in the certified municipal setting
designation shall complete any necessary investigation and
response action requirements in accordance with Section 361.808;
and
(3) include a legal description of the outer
boundaries of the municipal setting designation.
(c) If the executive director determines that an applicant
has submitted a complete application except that an ordinance or
restrictive covenant satisfying the requirements described in
Section 361.803(3) has not been submitted, the executive director
shall issue a letter to the parties listed in Subsection (a) stating
that a municipal setting designation will be certified on
submission of a copy of the ordinance or restrictive covenant
satisfying the requirements described in Section 361.803(3). On
submission of the ordinance or restrictive covenant satisfying the
requirements described in Section 361.803(3), the executive
director shall issue a municipal setting designation certificate in
accordance with Subsections (a) and (b).
Sec. 361.808. INVESTIGATION AND RESPONSE ACTION
REQUIREMENTS. (a) If no potable water wells are located or
planned to be located within one-half mile beyond the boundary of a
municipal setting designation, the executive director may not
require a person addressing environmental impacts for a property
located in the municipal setting designation to:
(1) investigate the nature and extent of contamination
in groundwater except to satisfy the requirements of Subsection
(b); or
(2) conduct response actions to remove,
decontaminate, or control environmental impacts to groundwater
based solely on potential potable water use.
(b) Notwithstanding Subsection (a), the executive director
may require a person to complete a response action to address
environmental impacts to groundwater in a certified municipal
setting designation if action is necessary to ensure:
(1) the protection of humans from exposures to
environmental impacts to groundwater that are not related to a
potable water use, including exposures from nonconsumptive uses and
exposures resulting from inadvertent contact with contaminated
groundwater; or
(2) the protection of ecological resources.
(c) If potable water wells are located within one-half mile
beyond the boundary of a municipal setting designation, the
executive director shall 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 consumption or
ecological standards to be exceeded in the area located within
one-half mile beyond the boundary of the certified municipal
setting designation.
(d) 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
consumption or ecological standards to be exceeded in the area
located within one-half mile beyond the boundary of the certified
municipal setting designation, the executive director shall
approve the completion of groundwater response actions at the
property except to the extent that response actions are necessary
to satisfy Subsection (b).
(e) If an investigation described in Subsection (c)
confirms that groundwater emanating from the property has caused or
is reasonably anticipated to cause applicable human consumption or
ecological standards to be exceeded in the certified municipal
setting designation or in the area located within one-half mile
beyond the boundary of the certified municipal setting designation,
the executive director shall approve the completion of groundwater
response action at the property if the person addressing
environmental impacts:
(1) completes response actions at the property to
remove, decontaminate, or control environmental impacts to
groundwater to meet applicable human consumption or ecological
standards; or
(2) completes response actions at the property to
remove, decontaminate, or control environmental impacts to
groundwater that are not related to a potable water use, including
actions to protect humans from exposures from nonconsumptive uses
and exposures resulting from inadvertent contact with contaminated
groundwater and actions to protect ecological resources, and:
(A) provides to owners of impacted potable water
wells described in Subsection (c) a reliable alternate water supply
that will provide a volume of water sufficient for the intended use
for a period not shorter than the period that the impacted wells
exceed the human consumption or ecological standards and, after
obtaining permission from such owners, files a restrictive covenant
that prohibits the use of groundwater as potable water and
restricts other uses of groundwater in a manner consistent with
groundwater quality; or
(B) expands the municipal setting designation to
include the properties with impacted potable water wells described
in Subsection (c).
(f) Notwithstanding any other provision of this section,
the executive director may require a person responsible 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:
(1) the protection of humans from exposures to
environmental impacts to groundwater; or
(2) the protection of ecological resources.
(g) This subchapter relates to the scope of the response
action that can be required by the commission in municipal settings
designated under this subchapter. Nothing in this subchapter shall
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. Subsection (a), Section 211.003, Local
Government Code, is amended to read as follows:
(a) The governing body of a municipality may regulate:
(1) the height, number of stories, and size of
buildings and other structures;
(2) the percentage of a lot that may be occupied;
(3) the size of yards, courts, and other open spaces;
(4) population density; [and]
(5) the location and use of buildings, other
structures, and land for business, industrial, residential, or
other purposes; and
(6) the pumping, extraction, and use of groundwater
for drinking purposes.
SECTION 3. Subsection (a), Section 212.003, Local
Government Code, is amended to read as follows:
(a) The governing body of a municipality by ordinance may
extend to the extraterritorial jurisdiction of the municipality the
application of municipal ordinances adopted under Section 212.002
and other municipal ordinances relating to access to public roads
or the pumping, extraction, and use of groundwater for drinking
purposes. However, unless otherwise authorized by state law, in
its extraterritorial jurisdiction a municipality shall not
regulate:
(1) the use of any building or property for business,
industrial, residential, or other purposes;
(2) the bulk, height, or number of buildings
constructed on a particular tract of land;
(3) the size of a building that can be constructed on a
particular tract of land, including without limitation any
restriction on the ratio of building floor space to the land square
footage;
(4) the number of residential units that can be built
per acre of land; or
(5) the size, type, or method of construction of a
water or wastewater facility that can be constructed to serve a
developed tract of land if:
(A) the facility meets the minimum standards
established for water or wastewater facilities by state and federal
regulatory entities; and
(B) the developed tract of land is:
(i) located in a county with a population of
2.8 million or more; and
(ii) served by:
(a) on-site septic systems
constructed before September 1, 2001, that fail to provide adequate
services; or
(b) on-site water wells constructed
before September 1, 2001, that fail to provide an adequate supply of
safe drinking water.
SECTION 4. This Act takes effect September 1, 2003.