The Non-Potable Groundwater Use Act Exposed

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The Non-Potable Groundwater Use Act was adopted by ALEC's Natural Resources Task Force at the Spring Task Force Summit on April 13, 2002, approved by the full ALEC Board of Directors in May, 2002.

ALEC Bill Text


The purpose of this act is to remediate contaminated water that is not usable as drinking water and make it available for an appropriate and beneficial use and to set standards for alternative use. This model bill is based on legislation adopted Arizona in 1997 (See A.R.S. § 40-281 et seq.)

Model Legislation

Be it enacted by the Legislature of the State of ______________:

Section 1. {Legislative Intent}

A. This Act contains the following essential elements:

1. Institution of a proportionate liability system to replace joint liability for hazardous substance cleanups.
2. Relief for parties that cannot afford to pay their share of cleanup costs.
3. Site prioritization with greater emphasis on risk to human health and greater flexibility in determining appropriate site cleanup methods and levels.
4. Removal of regulatory and liability barriers to encourage transportation and use of remediated water.
5. Enhanced community involvement and public participation at all stages of the cleanup process.

B. The Director of Environmental Quality may seek, if appropriate, remediation under all available State remedial and enforcement mechanisms before proceeding under this Act.

Section 2. {Remedial action criteria}

A. Remedial actions shall:

1. Assure the protection of public health and welfare and the environment.
2. To the extent practicable, provide for the control, management or cleanup of the hazardous substances so as to allow the maximum beneficial use of the waters of the State.
3. Be reasonable, necessary, cost-effective and technically feasible.

B. The Director shall adopt rules necessary to implement this article. The Director may adopt CERCLA rules, guidelines, or procedures, by reference to the extent consistent with this article. Rules adopted pursuant to this subsection shall include rules for:

1. The selection of remedial actions including the establishment of the level and extent of cleanup at a site or apportion of a site. The rules shall provide for the selection of a remedial action by comparison of alternative remedial actions, which may include no action, monitoring, source control, controlled migration, physical containment, plume remediation, and the consideration of the criteria in Subsection C of this section. The rules also shall provide that the selected remedial action meet the requirements of Subsection A of this section and the following:
(a) For remediation of soil, the selected remedial action shall be consistent with the soil remediation standards adopted pursuant to [Insert reference to state soil cleanup standards]
(b) For remediation of waters of the State, the selected remedial action shall address, at a minimum, any source of water that, at the time of selection of the remedial action, either supplies water for municipal, domestic, industrial, irrigation, or agricultural uses or is part of a public water system, if the source of water would now or in the reasonably foreseeable future produce water that would not be fit for its intended end use. The specific measures to address any such groundwater source shall not reduce the supply of water available.

C. In adopting the rules required by this section and in selecting remedial actions, the Director shall consider the following factors:

1. Population, environment, and welfare concerns at risk.
2. Routes of exposure.
3. Amount, concentration, hazardous properties, environmental fate, such as the ability to bio-accumulate, persistence and probability of reaching the waters of the State and the form of the substance present.
4. Physical factors affecting human and environment exposure such as hydrogeology, climate, and the extent of previous and expected migration.
5. The extent to which the amount of water available for beneficial use will be preserved by a particular type of remedial action.
6. The technical practicality and cost-effectiveness of alternative remedial actions applicable to a site.
7. The availability of other appropriate Federal or State remedial action and enforcement mechanisms, including, to the extent consistent with this article, funding sources established under CERCLA, to respond to the release.

D. The Director may approve a remedial action that may result in water that does not meet drinking water quality standards after completion of the remedy if the Director finds that the remedial action meets the requirements of this section.

E. The Director shall issue certification of closure for completion of the project. The certificate shall serve as notice that no further action will be taken on the remediation project.

Section 3. {Liability for remedial actions costs: limitation of actions}

A. Except as otherwise provided in this Act, a person who is a responsible party shall be strictly and severally liable for such reasonable, necessary and cost-effective expenditures for remedial actions as are incurred by this State, a political subdivision of this State, or any other person in a manner consistent with the rules and procedures adopted under this Act, but not including nonrecoverable costs.[1] A responsible party may be held liable for remedial action costs for a release of hazardous substance even though the conduct that resulted in the release or the release itself occurred before [Insert effective date of state Superfund statute].

B. This Act shall not supercede the Clean Water Act and the Safe Drinking Water Act.


[1.] The Arizona statute contains a definition of nonrecoverable costs (A.R.S. § 49-281.9) that includes such items as salaries and benefits paid to state employees, the cost of responsible party searches, and the cost of the WQARF Advisory Board established by statute to oversee the WQARF program.

Adopted by the Natural Resources Task Force at the Spring Task Force Summit April 13, 2002.

Approved by the full ALEC Board of Directors May, 2002.