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By David E. Whitten
Many Texas cities and towns have shallow groundwater polluted with low levels
of contaminants from historical operations of dry cleaners, gas stations, auto
repair shops and other common urban sources.
These environmental impacts are usually compared to drinking water standards to determine whether corrective action is necessary, even though the affected groundwater is not used for potable purposes, if it is used at all. Cleanups governed by drinking water standards are notoriously expensive and time-consuming.
Recognizing that most Texas communities rely on surface water or very deep groundwater for drinking water supplies, Subchapter W of Chapter 361 of the Texas Health & Safety Code now allows municipalities to approve, and the Texas Commission on Environmental Quality (TCEQ) to certify, areas called “municipal setting designations.”
An area is eligible for certification as a municipal setting designation (MSD) if it is within the corporate limits or extraterritorial jurisdiction of a municipality with a population of at least 20,000 and an existing public drinking water system supplies drinking water to the area and surrounding properties within a half-mile of the proposed MSD.
If those eligibility criteria are met, an applicant can seek certification of an MSD by:
1)Fulfilling TCEQ and municipal notice and application requirements;
2) Restricting the use of affected groundwater within the proposed MSD by ordinance or restrictive covenant;
3) Obtaining a resolution in support of the ordinance or restrictive covenant from the local municipality, other municipalities within a half-mile of the proposed MSD and the governing authority for any retail public utility with a groundwater supply well located within five miles of the proposed MSD; and
4) If necessary, demonstrating to TCEQ that certification of an MSD would not negatively affect the current and future regional water resource needs or obligations of a municipality, retail public utility or private well owner.
Upon certification of an MSD, contaminant impacts are subject
to less rigorous investigation and cleanup requirements. In essence, investigation
and cleanup requirements are governed only by the risk of actual human exposure
to affected groundwater (such as through contact during construction or inhalation
of contaminants from the groundwater to the surface) and as necessary to protect
ecological resources.
By eliminating investigation and cleanup standards based on human ingestion
risk factors, environmental impacts at MSD properties can be resolved more quickly
and less expensively. With faster and less expensive cleanups, contaminated
sites more easily attract new capital investment that, in turn, promotes redevelopment,
the creation of more jobs, higher taxable values and stronger urban cores.
To date, several Texas cities, including Dallas and Fort Worth, have taken steps
to support the certification of MSDs. In 2004, Dallas approved the state’s
first two MSD applications on a pilot basis. These MSD applications ultimately
resulted in TCEQ’s certification of MSD Nos. 001 and 002.
In January 2005, the city of Fort Worth adopted the state’s first procedural
ordinance governing the approval and enforcement of MSDs. As the Dallas and
Fort Worth MSD programs mature and more Texas cities implement their own MSD
programs, MSDs will become an increasingly popular mechanism for facilitating
the timely and cost-effective investigation and cleanup of contaminated urban
properties. BFN
David E. Whitten, Esq. is a shareholder with the environmental law firm of Guida,
Slavich & Flores, P.C. in Dallas. Whitten was successful in obtaining the
first MSD issued by the state of Texas in October 2004.
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