If a developer in Texas wants to put a shopping center or a restaurant on a polluted site, he might not have to clean it up first, thanks to a four-year-old state law that’s beginning to gain traction.

The state is supposed to make landowners get rid of polluted materials that could threaten water supplies. But more and more, developers — including one in Denton — are applying for a special designation that allows them to avoid the most stringent state cleanup standards and leave more pollutants in the ground.

State legislators approved the municipal setting designation in 2003 to offer a cheaper and quicker way to turn polluted land into developable real estate. The law is aimed at properties where water below the soil is contaminated but not needed for drinking, cooking, bathing or irrigating crops.

Critics say the system rewards polluters, ignores potential health risks, and lacks checks and balances. It also relies almost entirely on applicants to report the nature and extent of pollution at a site, with little or no independent testing by cities or the state.

“It’s big bucks winning out over public health,” said Austin lawyer Rick Lowerre, whose firm specializes in environmental law. “It’s a horrible program, and no one is telling the cities that.”

Supporters say it’s unfair to hold landowners to drinking water standards for properties where no one would ever drill a well and where other public water supplies are available. The designations are safe, they say, because the approval process requires cities to first enact deed restrictions preventing anyone from accessing the polluted water.

“Cities have been very accepting and very helpful in getting these passed because I think they’ve realized that a lot of properties end up sitting vacant and getting blighted” without the designation, said Paul S. Rodusky, senior hydrogeologist at Dallas-based Reed Engineering Group, which is involved in the Denton case. “The MSDs are a great tool.”

Debate about the designations erupted in Denton last month when a Dallas developer asked for one to build a shopping center on a former unregulated dumpsite at the busy southwest corner of Interstate 35 and University Drive. The Denton City Council is expected to vote on the request Tuesday.

Regardless of how the council votes, the debate over municipal setting designations isn’t likely to end. This year, the Legislature changed the law to allow the designations in cities with fewer than 20,000 residents. The Texas Commission on Environmental Quality receives a growing number of applications each year, and the state’s most populous city, Houston, recently passed an ordinance enabling approval of the designations after rejecting previous applications.

Local control

The redevelopment tool has been used most often in North Texas, home to 33 of the state’s 40 certified municipal setting designations. Twenty-one are in Dallas, seven in Fort Worth and one each in Duncanville, Euless, Garland, Grapevine and Irving.

Statewide, the designations now encompass more than 600 acres of land where pollutants such as lead, petroleum hydrocarbons and arsenic were detected. Another 15 applications representing more than 2,000 acres of land are pending before the state environmental quality commission, mostly from Fort Worth, Dallas and Arlington.

Those eligible to apply for the designation include an individual, a company, a business trust and even a city itself.

Under the law, the state commission receives and certifies the applications, but in practice, local governments have largely decided their fate.

The environmental quality commission in 2003 denied the first application it received after the city of Houston refused to support it. Another Irving-based application met a similar fate in 2004.

Now, applicants usually don’t bother to apply to the state until they secure local support, said Mike Frew, a technical specialist in the commission’s remediation division.

The only other application the commission has denied involved a Dallas location that the state deemed ineligible because it was given a permit as a hazardous waste facility, Frew said.

“It’s very much a local-control program,” he said.

No independent testing

When the commission receives applications, it checks to see if they are complete and meet all requirements under the law. The commission also evaluates how polluted groundwater might impact an area’s future water needs, but it generally does not conduct its own studies, Frew said.

Instead, the commission relies on written comments submitted by neighboring well owners to determine the impact on water resources. The law requires that applicants notify each city within a half-mile of the proposed designation boundary, along with owners of private wells, retail public utilities and other water supplies within five miles. Those notified have up to 60 days to file comments with the commission.

The commission bases its evaluation on the comments it receives, Frew said.

Likewise, the state does not perform its own testing of pollution at the sites.

“The state doesn’t have that kind of money,” Frew said. “It’s a self-reporting situation in many cases. However, the information that they [applicants] report to the state must meet certain criteria and standards, and we just review that it does meet those standards.”

The practical effect of the designation is that landowners can leave higher levels of pollution in the ground, Frew said. In some cases, that could mean no further cleanup is required. Other times, landowners still have to perform some remediation at the site, such as replacing contaminated soil with fresh dirt, so pollutants don’t harm air quality or seep into nearby streams and lakes, Frew said.

‘Recipe for serious problems’

To Lowerre, the Austin lawyer, the designation process is rife with red flags.

“You’re relying on the person who’s contaminated the site and going to have to pay for it to tell you where the pollution is and where it isn’t,” he said. “Then you’re going to leave it there. You’re never really going to involve the public in the process.

“It’s a recipe for serious problems in the future.”

The state does not require applicants to notify neighboring property owners who don’t have wells, even though groundwater can move horizontally across property lines. Houston’s ordinance, effective Nov. 1, requires notification of landowners within 2,500 feet of the proposed site because city leaders believed neighbors deserved to know, said Carol Ellinger, senior assistant director in Houston’s public works and engineering department.

Although the groundwater in a municipal setting designation may be shallow and unusable, Lowerre said pollutants left in place could still affect air quality or seep through faults into drinkable aquifers deeper underground.

Also, the downside of a local-control program is that city politics or lack of expertise might cloud the decision-making process, Lowerre said.

“This can be done right, but the program right now is not set up with the kinds of checks and balances you would expect it to be,” he said.

Denton designation

Ken Banks, Denton’s environmental quality manager, said Lowerre’s concerns about municipal setting designations might be valid in some instances. But the proposed Denton designation isn’t worrisome for several reasons, Banks said.

Soil tests at the 9-acre site show arsenic, lead and mercury above state levels for groundwater protection, according to tests performed for the would-be developer, Standridge Companies.

But Banks said the groundwater is too shallow for a quality well and a layer of impermeable rock effectively isolates it from aquifers deeper underground.

Further, the city would require the applicant to successfully complete the state’s voluntary cleanup program as a condition of the designation, Banks said. The program could involve some cleanup, depending on the level of pollutants detected, he said.

Representatives of Standridge Companies have said they plan to spend about $4 million to dig up and replace contaminated soil there but that cleaning up the site to drinking water standards would cost considerably more.

Since Denton requires residents to get a permit to drill water wells, Banks said the city could prevent landowners near a municipal setting designation from tapping into the polluted water, assuming they didn’t drill illegally.

Finally, Banks said applicants’ self-reporting of pollution is routinely done in state and federal cleanup activities. Many applicants, including Standridge Companies, hire independent third parties to measure the pollution, he said.

Self-reporting “is a concern, but I don’t think that’s a concern that’s limited to an MSD,” he said.

Whether the Denton council will endorse the designation is uncertain. The last time council members discussed the issue, on Oct. 2, they couldn’t reach consensus.

Banks said he would recommend approval of the designation Tuesday.

“The site’s contaminated now, and it has been for a long time,” he said. “This is an opportunity to deal with that situation.”

LOWELL BROWN can be reached at 940-566-6882. His e-mail address is lmbrown@dentonrc.com.

IF YOU GO

What: Denton City Council regular meeting

When: 6:30 p.m. Tuesday

Where: City Hall, 215 E. McKinney St.

Why: The council will consider a request to allow commercial development on top of a former unregulated dumpsite under less stringent pollution cleanup rules. The property is at the southwest corner of Interstate 35 and University Drive. The Texas Commission on Environmental Quality would have the final say.

AVOIDING CLEANUP

The Texas Commission on Environmental Quality has certified 40 municipal setting designations, encompassing more than 600 acres, since the Legislature created the designation in 2003. North Texas is home to 33 of the sites. The special designation allows developers to avoid the most stringent state cleanup standards and leave more pollutants in the ground. Here’s how the break down by city:

Dallas: 21

Fort Worth: 7

Duncanville: 1

Euless: 1

Garland: 1

Grapevine: 1

Irving: 1

The other designations are in Beaumont (6) and Port Arthur (1).

SOURCE: Texas Commission on Environmental Quality