A rulemaking hearing concerning Tennessee's classification of ground water has been scheduled by the Tennessee Department of Environment and Conservation (TDEC), Division of Water Pollution Control (the Division). The hearing will be held at 10:00 a.m. on Friday, October 19, 2007, at the L&C Tower in Nashville. The Division is proposing significant changes to the existing ground water standards under the Tennessee Water Quality Control Act. In addition, the Division is recommending new ground water reporting requirements for certain property owners and purchasers. The Division's proposal would delete and replace substantial sections of the existing ground water classification scheme, and if enacted, these revisions would alter the number of classifications currently available and re-write existing classification criteria. In addition, the Division is proposing new reporting requirements for ground water testing that would require owners and prospective purchasers of industrial or commercial property who test the groundwater to notify TDEC of certain contamination.
The most significant aspect of these provisions is the creation of mandatory reporting requirements. The proposed rule requires:
Owners or prospective purchasers of property used for commercial or industrial purposes who test the ground water or perched water on the property shall notify the commissioner of any contamination of such water if a reasonable person would conclude it poses a substantial risk to health or safety, including but not limited to, situations in which water at levels that exceed general use criteria is used as potable water or vapors released from the water are causing an explosion hazard or a current inhalation hazard with a hazard quotient of greater than 1 or a cancer risk of greater than 1 x 10-6.
This proposed rule raises a number of questions, including:
- The term "owners or prospective purchasers" is vague. For example, would lessees/prospective lessees of a property be required to notify TDEC if contamination is identified? How firm does one's intent to purchase need to be in order to be considered a prospective purchaser? If a prospective purchaser reports contamination, but does not close the transaction, is the property owner then liable for the cleanup?
- The term "property used for commercial or industrial purposes" is also subject to various interpretations. Is the land use determination based on zoning classifications? Would the reporting requirements extend to properties currently zoned for agriculture, yet slated for commercial development? What if commercial activity is taking place in a residential area? Would this include developers of large residential units or mixed-use developments?
- The standard for determining whether notification is required is "if a reasonable person would conclude [the groundwater] poses a substantial risk to health or safety." Examples include references to hazard quotients and cancer risk levels. Would a risk assessment be required for all ground water samples? Are the listed levels the only triggering mechanism, or could some other factor be judged a "substantial" risk? Do risks to the environment also trigger the reporting requirements?
- Concerns of future liability, decreased property values, and potentially high abatement costs by the property owner could deter parties from performing ground water analysis. Property owners and prospective purchasers could forego ground water testing rather than risk developing information that is publicly disclosed.
In addition to the reporting obligations, the Division's proposed Ground Water Classification Rule makes a number of other changes to the existing rules, which have been little used. Under the new rules, when parties are remediating contaminated ground water or perched water, the commissioner will have authority to establish an Area of Control over the property and implement remedial actions as prescribed in other state environmental acts. This would provide a legal basis under the Water Quality Act for allowing contaminated ground water to exist for some period of time while it is cleaned up, and thus close a gap in the justification for approving cleanup standards other than drinking water. Other significant revisions include increasing the total dissolved solids concentration for Unusable Ground Water from 3,000 ppm to 10,000 ppm, and removing the current Limited Use Ground water classification, which has proved difficult to implement.
TDEC's proposed ground water rulemaking could have significant impacts on current and future property owners. Furthermore, the Division's efforts to protect Tennessee's ground water resources could ultimately prove detrimental if they lead to decreased testing. The Division is accepting written comments on the proposed rule changes until Nov. 19, 2007. Waller Lansden is soliciting comments on the proposals, and we will provide these comments to the Division.
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