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.