Texas Attorney General Opinion: JM-226 Page: 5 of 8
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Honorable Lloyd Doggett - Pas;e 5 (JM-226)
Further, in some instana=s, a city could determine that the only
"safe" storage of hazardous materials is no storage near its water
supply or the supply's tributaries -- chat such storage is a nuisance
in fact. Certain substances lad uses of property, hazardous enough to
cause a well-founded apprehension of danger, may be totally prohibited
from the specific areas in trhich they create a hazard. Treadgill v.
State, sura; Stoughton v. :ity of Fort Worth, supra. Just as the
storage of fireworks and fliumable liquids may be prohibited because
of a well-founded apprehennion of danger to people and property
nearby, so may a home rule city prohibit the storage of substances
near its water supply whic,, if introduced into the city's water
supply, would endanger the health, safety, and welfare of the public.
Thus, both the method of storage of hazardous substances and the
location of such storage may be regulated in sensitive areas pursuant
to section 19's nuisance c'.xuse, within the city's boundaries and
within five thousand feet of its boundaries. Regulation of unsafe
storage practices may also be enacted pursuant to section 19's water
pollution prevention clause.
As indicated, pollution of a public watercourse is a nuisance;
thus, the water supply pollution prevention clause of section 19 also
encompasses prohibiting as a nuisance the storage of certain hazardous
materials in the watersheds cf the city's water supply and defining as
a nuisance certain unsafe sI:crage practices which endanger the home
rule city's water -supply. However, the water pollution prevention
clause is somewhat broader in nature. Water pollution prevention may
properly include regulation cif activities not necessarily constituting
a nuisance. See, e.g., City of Austin v. Jamail, supra.
Nevertheless, general constitutional protections prohibit
unreasonable ordinances and arbitrary applications of police power.
See City of Brookside Village v. Comeau, 633 S.W.2d 790 (Tex. 1982),
cert. denied, 459 U.S. 1087 (1982); City of Austin v. Teague, 570
S.w.2d 389 (Tex. 1978); Crossman v. City of Galveston, supra. The
only question remaining is vlhether any specific state or federal lavews
limit these powers of a home rule city. As indicated previously, the
test is whether limits on the exercise of these powers appear vith
"unmistakable clarity." CitZ of Corpus Christi v. Continental Bus
Systems, Inc., supra.
On the federal level, the Resource Conservation and Recovery Act
of 1976, 42 U.S.C. 516901, et seq, as amended by the Solid Waste
Disposal Act Amendments of h190, [hereinafter RCRA], was intended as a
comprehensive scheme designed to deal with an alarming increase in the
uncontrolled generation, transportation, and disposal of hazardous
wastes. Section 6929 of the RCRA deals with the retention by the
states of certain authority as follows:
Upon the effective date of regulations under
this subchapter no State or political subdivision
may impose any requirements less stringent thanp. 1015
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JM-226, text, November 5, 1984; (https://texashistory.unt.edu/ark:/67531/metapth272666/m1/5/?q=%221984~%22: accessed August 15, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.