United States: Municipal Setting Designations – A Sensible Alternative to Costly Cleanup of Urban Groundwater

A new law passed during the 78th Regular Session of the Texas Legislature, H.B. 3152, offers hope of a sensible limit to the cost of cleaning up groundwater in an urban environment by creating the concept of the Municipal Setting Designation ("MSD"). Used in conjunction with other state and federal cleanup programs such as the Texas Voluntary Cleanup Program ("VCP"), the MSD will afford landowners an alternative to spending large sums to cleanup water that is not a drinking water resource in order to satisfy conservative drinking water standards. Such expenses are often a major impediment to redevelopment of industrial and commercial property and completion of VCP projects. This paper reviews the background to the development of this legislation and its application to typical case examples.

Concern about the cost of groundwater cleanup at commercial and industrial sites is obviously linked to the laws imposing liability for environmental conditions on property owners, tenants and lenders. Such laws are essential to maintaining a safe environment and protecting the groundwater resources upon which we all depend. In Texas, this type of liability arises from three basic statutory schemes. First, at the federal level, the Comprehensive Environmental Response and Compensation and Liability Act of 1980 ("CERCLA" or "Superfund") imposes liability for the cost of investigating and remediating releases of hazardous substances.¹ A second federal statute, the Resource Conservation and Recovery Act ("RCRA"), imposes liability for correcting groundwater contamination from hazardous waste treatment storage, or disposal units and solid waste management units upon the owner or operator of those units.² At the state level, a third statute, the Texas Solid Waste Disposal Act ("SWDA"), creates a scheme of liability both to the government and to those who expend money investigating or remediating conditions on property.³ Liability in such situations is strict for contamination on or emanating from the property.⁴ In other words, fault is not an issue. Instead, an owner or operator is liable by virtue of its status, not as a result of poor management or culpable behavior.⁵

Together, the federal and state statutes cover a broad range of hazardous and non-hazardous materials. At the federal level, liability under CERCLA is for the release or threat of release of a "hazardous substance" as defined by EPA.⁶ The list of hazardous substances is quite comprehensive.⁷ Liability under RCRA can require an owner or operator to address hazardous wastes, hazardous constituents of solid waste, and pollutants or contaminants.⁸ At the state level, potential liability extends to an even broader universe of "solid waste."⁹

The liability imposed pursuant to these three statutory schemes is for all the costs of response incurred by the state agency or federal agency and for all necessary costs of response incurred by others.¹⁰ Liability extends to the current owner or operator, the past owner or operator at the time of disposal or release, and/or one who arranges for disposal.¹¹ The term "operator" includes tenants on the property.¹² Further, under certain circumstances, lenders can become liable for conditions on property.¹³

Since the early 1980’s, this type of strict liability for environmental conditions has had a profound impact on property transactions. First, prospective purchasers and lenders now conduct extensive due diligence in an effort to determine whether the property they are considering purchasing, or contemplating as collateral for a loan, has environmental problems. If environmental problems exist on the property, the cost of investigating and remediating these problems can lead to the loss of a sale, loss of financing, and ultimately to the abandonment of property. Even if the property is not abandoned, the value often drops because needed maintenance is deferred and the opportunity for redevelopment moves on to other properties. Often the most significant component of the costs of investigation and remediation is attributable to the groundwater component.

Of course, the risk of loss to a prospective purchaser or lender is profound and more than justifies the due diligence effort. The purchaser can lose the market value of the property as the value drops to reflect the costs which might be incurred to address environmental conditions as well as the risk of liability attributable to off-site conditions due to the migration of contaminants.¹⁴ Thus, there is the real risk that the value of the property will actually fall below zero as significant costs are incurred to address conditions on the property. The lender must watch helplessly as its collateral becomes worthless.

The response to these liability developments has been a number of market-driven initiatives. The market for real estate, like all markets, requires certainty or at least measurable risk. Certainty in this arena means a discernable path forward through obstacles of environmental liabilities and an opportunity for "closure" in a reasonable period of time. The market hates uncertainty and delay. The buyer or the lender needs to understand the steps necessary to eliminate an impediment to a deal and to have a sense of how long those steps will take. In response to the market’s need for a discernable path, the Texas legislature enacted the VCP,¹⁵ the Innocent Owner Program ("IOP"),¹⁶ and liability protection for lenders and fiduciaries during the 1990’s.¹⁷

In 1995, the legislature enacted the statute authorizing the VCP, a program designed to encourage private parties to voluntarily investigate and remediate environmental conditions on their properties.¹⁸ This goal is accomplished by providing incentives, both in terms of the protection from enforcement and liability relief for future owners, operators and lenders.¹⁹ In addition to providing incentives, the VCP provides an effective mechanism for closure. Applicants to the VCP can even close on a transaction and complete the investigation and remediation following the transaction without subjecting the purchaser (now the owner) to liability for conditions remedied over time following the purchase.²⁰ Assuming that the steps needed to complete closure of the site are taken, the TCEQ will issue a certificate of completion, and the purchaser will be relieved from any liability for the conditions existing on the property at the time of purchase.²¹

Two years later in 1997, the legislature enacted the statute authorizing the IOP, which affords protection to innocent landowners from liability for conditions that originate offsite on neighboring or nearby properties.²² The innocent landowner can obtain a certificate from the TCEQ documenting that status.²³ The 1997 legislature also enacted lender and fiduciary protections to the SWDA that mirror federal protections in CERCLA.²⁴

Notwithstanding these initiatives, obstacles remain. One of the primary obstacles is the significant cost and impracticability of groundwater cleanup in many cases. While new technical and regulatory approaches have emerged, the standards for groundwater cleanup for most sites remain the very conservative drinking water standards.²⁵ Moreover, soil cleanup is often driven by groundwater protection standards that are designed to preserve groundwater as a drinking water resource regardless of the prospects for future use of the groundwater for that purpose. This obstacle is manifested in increasing costs of investigation and remediation, uncertainty as to the cost and timing of completion of remediation, and a growing frustration that hundreds of thousands of dollars are expended on investigations and cleanups to meet drinking water standards in those cases in which no one is drinking, or ever will drink, the water.²⁶

This obstacle is particularly frustrating in an urban setting where groundwater contamination is often the result of multiple historic sources of contamination. Contributors to the problem might include past solvent usage at manufacturing plants, industrial facilities, dry cleaners, car repair shops, leaking underground storage tanks at filling stations, and even contamination from uses during the distant past.²⁷ The presence of multiple off-site landowners and interest-holders whose property has potentially been affected by the groundwater contamination further complicates the path to closure. To compound the frustration, in an urban environment shallow groundwater is rarely used as drinking water because public water supplies commonly afford a safe water supply.

Thus, the obstacle of urban groundwater contamination often results in large sums of money, often hundreds-of-thousands or millions of dollars, being spent cleaning up the groundwater. Depending on the circumstances, this expenditure may be both an ineffective and wasteful use of resources, and can result in redevelopment and refinancing projects being shelved. Many sites have opted out of the VCP when owners realized that the cost of cleaning up the groundwater to drinking water quality was beyond their financial ability.

The MSD legislation offers a possible solution by recognizing the realty of urban groundwater contamination. Based on concepts employed in successful regulatory programs in Ohio²⁸ and Illinois,²⁹ the MSD legislation is not about ignoring sources of contamination or the importance of groundwater resources. Rather, MSDs strike a balance by allowing an appropriate assessment of risk and response where groundwater is not a drinking water resource and other viable drinking water sources are readily available.³⁰ The MSD legislation provides a means for limiting the investigation and cleanup obligations with respect to urban groundwater without jeopardizing public safety.

H.B. 3152, authored by Representative Dennis Bonnen and sponsored by Senator Mike Jackson, contains two express findings in support of the enactment of the legislation that clearly demonstrate the legislature’s belief that the government may establish MSDs under authority of its inherent police power. First, the legislature finds that:

This finding makes it clear that the legislature understood the importance of restricting access as a means of controlling exposure. The second finding states that:

This finding is important to municipalities considering the establishment of an MSD for two reasons. First, it is a clear expression of legislature’s intent to authorize cities to exercise their police power over the use of groundwater for the protection of public health. The finding also makes it clear that not all groundwater within an MSD need be contaminated. If the groundwater may pose a potential threat to human health, the city may act.³³

The purpose stated in the legislation is as important as the findings:

This stated purpose leaves no question but that the TCEQ is to act on applications and that the goal of action is to eliminate the need for investigation of groundwater and response actions once the MSD has been certified.

To be eligible for an MSD, a property must satisfy a couple of eligibility criteria drafted to ensure an alternate drinking water supply. First, the property considered for an MSD must be within a city or the extraterritorial jurisdiction of a municipality authorized by statute that has a population of at least 20,000.³⁵ Second, a public water supply system must exist that is capable of supplying water to the property within the MSD and to property within a half mile of the property proposed for designation.³⁶

For eligible sites, the statute anticipates a two-step approval process. Either step may be taken first or they may be taken concurrently. The city in which the MSD will be located must approve the MSD by ordinance or by resolution.³⁷ In addition, the TCEQ must approve the application and certify the MSD.³⁸ In cases where the municipality is eager to support an MSD, it may make more sense for the applicant to pursue the necessary local approvals before the application is submitted to TCEQ or before the agency has completed its review. In other cases, the municipality may require that the TCEQ approve the application before the city considers the issue of an MSD.

The statute certainly provides considerable incentive for pursuing an MSD because, upon certification, the applicant will no longer be required to consider ingestion (drinking) of the groundwater as a risk factor within the MSD.³⁹ This change in the standards, which will be utilized in the context of a site review by the state, as part of a VCP application for example, will eliminate the need to meet the conservative drinking water standards as well as the soil cleanup standards established to preserve drinking water quality within the MSD.⁴⁰ At the same time, other risk factors such as inhalation of vapors coming up from groundwater or direct contact with the water must still be considered and addressed to ensure protection of human health.⁴¹ This change in approach is significant because under the Texas Risk Reduction Program most cleanups of groundwater and soil are driven by the risk of ingestion of the groundwater.

While an MSD may reduce investigation and remediation costs, it does not alter or affect the private rights of action of any person under any statute or common law for personal injury or property damages caused by the release of contaminants.⁴² Therefore, the neighboring landowner may still seek to recover from the owner or operator responsible for the contamination.⁴³ Such an action would likely be based upon a tort theory such as negligence, nuisance or trespass and seek diminution in property value. Further, the MSD legislation expressly states that it is not meant to alter or supersede any requirement of a federal environmental program administered by the State of Texas.⁴⁴

A simple case study is useful for illustrating the components of the MSD legislation. First, consider a factory located within the extraterritorial jurisdiction of Texas City, Texas, approximate population of 43,000. Assume that groundwater contamination has been found on the property and that the past operating practices of the factory have been identified as the source of the contamination, which is confined to the property.

One of the first steps in proceeding with an MSD is to determine which method of institutional control is most appropriate to restrict groundwater use for the site. MSDs are established by an institutional control prohibiting potable use of groundwater within the MSD.⁴⁵ There are two alternatives for satisfying this requirement. One is a city ordinance that prohibits potable use of groundwater drawn from wells located on any property within the MSD.⁴⁶ The second option is a restrictive covenant prohibiting such groundwater use that is enforceable by the city and supported by a resolution passed by the city accepting the restrictive covenant.⁴⁷ In this case study, in which there are no off-site impacts, a restrictive covenant is the better institutional control method. In fact, in situations involving a limited number of offsite landowners who are willing to negotiate a restrictive covenant, the restrictive covenant and resolution will probably remain the most effective MSD method for establishing an institutional control on groundwater. The applicant can negotiate with the adjacent landowners for an appropriate restrictive covenant and then approach the city with a request that the city adopt a resolution accepting what is a fact at that point – that groundwater within the restricted area will not be used for potable water purposes – and confirming that the city too will enforce the restriction.

The next step in the MSD process is to identify the statutory stakeholders. There are three categories of statutory shareholders,⁴⁸ called this because they enjoy specific rights or have a defined role in the MSD process. Statutory stakeholders include certain cities, private well owners, and retail public utilities.⁴⁹ The stakeholder cities include the city in which the MSD will be located, a city with a boundary located within one-half mile of the proposed MSD, and a city with a groundwater supply well within five miles of the proposed MSD.⁵⁰ Owners of private wells registered with the TCEQ that are located within a five-mile range of the proposed MSD boundary are also stakeholders for the purpose of notification.⁵¹ Finally, retail public utilities with groundwater supply wells located within five miles of the proposed MSD boundary are statutory stakeholders with a significant role in the process that is similar to the role of a municipality.⁵²

At this step in the process, the applicant should consider meeting with the city and any identified retail public utilities. These two statutory stakeholder groups have what amounts to a veto power over the MSD project because both the city and retail public utility stakeholders must pass a resolution in support of the MSD.⁵³ This particular requirement is one of the most troublesome aspects of the legislation and resulted from necessary political compromise during the legislative process. Time will tell whether these public entities, with no particular interest in the outcome of the process, will consider requests for resolutions or simply decline to pass a resolution for MSDs outside their immediate area. A possible refinement to the statute would be to reverse the presumption and require that an objection be raised by such a stakeholder following notice. The standard by which such an objection would be evaluated is already in the statute.⁵⁴

An important step in the MSD process is the statutory notice to stakeholders. Written notice must be sent to the statutory stakeholders that include, again, certain cities, retail public utilities with wells within five miles, and private well owners with registered wells located within five miles of the MSD.⁵⁵ The written notice must include the following:

• the location and purpose of the proposed MSD;

• an invitation to submit comments to TCEQ;

• the type of contamination; and

• the name of the responsible party, if known.⁵⁶

Once notice is provided to the statutory stakeholders, the MSD application may be submitted to the TCEQ for action by the executive director.⁵⁷ That action can include the issuance of the MSD certificate, denial of the application, or a request for additional information.⁵⁸ Since the applicant will likely be dealing with both the city and the state at the same time, the state may process the application to a point where it requires only the city action (an ordinance or resolution in support) to complete the processing and certification. Upon receipt of documentation of the city’s action, the MSD certificate would be issued.⁵⁹ The MSD application must include the following:

• the legal description of MSD boundaries and designated groundwater to be restricted;

• a statement whether statutory stakeholder cities/retail public utilities support the MSD;

• the type of groundwater contamination;

• proof of notice to statutory stakeholders;

• copy of the restrictive covenant and/or city resolution or ordinance (if available); and

• an application fee of $1,000.⁶⁰

The executive director must deny an application if the eligibility criteria are not met, the information provided is incomplete or inaccurate, or the MSD would negatively impact the current and future regional water resource needs or obligations of a statutory stakeholder.⁶¹ This last criterion suggests a substantive review by the executive director. Given the fact that affirmative action, a resolution or ordinance, is required of the city in which the MSD is located or the city or retail public utility with a well within five miles, the significance of this criterion remains to be seen.

For the state to take final action certifying the MSD, institutional controls must be in place.⁶² In this case study, the institutional control is in the form of a restrictive covenant coupled with a resolution by the city. The deed restriction must prohibit potable use of groundwater drawn from on-site wells. Potable use includes "irrigating crops intended for human consumption, drinking, showing, bathing, or cooking."⁶³ Other uses of groundwater -- cooling water use in an industrial facility for example -- might still be appropriate for water drawn from on-site wells in the absence of other risk factors.

Upon certifying an MSD, the executive director must send copies of the MSD certificate to the applicant, statutory stakeholders, anyone who submitted comments, and anyone who requested a copy.⁶⁴ The issuance of an MSD certificate does not end the process for a property. In fact, the MSD is merely a tool to be used within other programs administered by the TCEQ. For example, an applicant in the VCP may use an MSD in lieu of addressing the groundwater ingestion pathway,⁶⁵ and the MSD may alter the soil response requirements because the soil to groundwater protection standards based on ingestion will no longer be applicable. Similarly, potable groundwater use will no longer be a factor in the evaluation of risk. At the same time, VCP staff will still review the application to ensure protection of human health from non-potable exposure to groundwater and to protect other ecological resources. Ultimately, the time and costs for VCP certification should be substantially reduced.

The MSD legislation is also applicable to more complex cases involving large off-site areas, numerous off-site landowners, and multiple sources in an urban setting. One can envision a source investigation commencing at a dry cleaners within a strip shopping center. As a source investigation proceeds to determine the extent of contamination, other sources of contamination may be identified in the area. For example, underground storage tanks associated with a nearby convenience store gas station may be a source of contamination. The impact of a second dry cleaners may be detected nearby, which is not uncommon in today’s urban environment. As the area of investigation continues to expand, other sources such as a car repair shop or manufacturing facility may be identified. The MSD legislation would accommodate the creation of an MSD by ordinance that incorporates a number of sources or a region or area of a city such as this in which there are numerous existing or historic sources and extensive historic groundwater contamination. One significant benefit to this approach is that, by using an ordinance as the mechanism for institutional control, the need for individual negotiations over restrictive covenants with numerous off-site landowners is eliminated. The ordinance becomes the institutional control prohibiting the potable use of groundwater, and no restrictive covenant is required.

The development of the MSD legislation was another step in the market-based response to environmental issues on real property. The new approach recognizes that the high cost of groundwater cleanup is often an impediment to completion of a cleanup and that in some cases the standards driving those costs are out of step with the reality of the situation. Groundwater in urban areas is often affected by numerous historic sources of contamination and will not be developed as a source of drinking water. Further, reliable sources of potable water are otherwise available. The MSD process is based upon the reasonable assumption that local governments can recognize this reality and weigh the resource issues and land use issues accordingly. Of course, the TCEQ retains the important role of evaluating whether a proposed site is eligible statutorily and technically for an MSD. Hopefully, the process will help define a clearer and less wasteful path forward for those confronting the costs of an environmental cleanup.

The legislation is not a panacea. There will be cases that are candidates for MSDs and others that are not. Some city councils may decide that the political risks associated with approving an MSD, particularly if an ordinance is required, are too high because of the concern that citizens will protest leaving impacted groundwater unremediated -- even though there is no risk of human exposure. Hopefully, in the appropriate cases MSDs can free economic resources and encourage the redevelopment of urban property and the return of valuable properties to productive use. This is the goal of the legislation and will be the measure of its success. Unfortunately, at present, the potential for success is being frustrated by the pace of implementation. Notwithstanding the detailed procedures spelled out in the statute, the TCEQ has announced its intention to defer processing of any applications for MSDs until rules can be developed. This process may not commence until the summer of 2004. The statute was detailed by design and was to be implemented upon its effective date, September 1, 2003. Clearly the MSD legislation represents a shift away from the traditional approach of remediating groundwater, regardless of future use, to drinking water standards. This shift may be difficult for some agency staff to accept. Hopefully, with encouragement, the agency will move forward to implement this program. However, those interested in MSDs must be vigilant and participate in any rulemaking that is conducted. This will insure that the benefits intended and the protections afforded by this legislation are not lost in the rulemaking process.

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James Morriss is a partner in the Austin office of Thompson & Knight where he heads the firm’s Environmental practice group. His practice involves environmental permitting, compliance counseling, administrative and judicial litigation in environmental matters before local, state, and federal environmental agencies, and state and federal courts. Morriss also has extensive experience with brownfields issues, including projects in the Texas Voluntary Cleanup Program and the state’s Innocent Owner/Operator Program, which is authorized by a statute he helped to develop and pass in 1997. Morriss headed a team of attorneys and lobbyists who developed and supported the passage of the House Bill 3152 that authorizes Municipal Settings Designations.

Matthew J. Knifton is an associate in the Environmental practice group in Thompson & Knight's Austin office. His practice focuses on environmental permitting, compliance counseling, real property transactions, and brownfields matters. Knifton was part of the firm's team that developed the text and concept of House Bill 3152 that authorizes Municipal Settings Designations.

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