ORD 2013-24 - Municipal Settings Designation ORDINANCE NO. 2013-24
AN ORDINANCE OF THE CITY OF HUNTSVILLE,TEXAS, PROHIBITING THE USE
OF DESIGNATED GROUNDWATER FROM BENEATH CERTAIN PROPERTY AS
FURTHER DESCRIBED IN ATTACHMENT A SUPPORTING CERTIFICATION OF A
MUNICIPAL SETTING DESIGNATION BY THE TEXAS COMMISSION ON
ENVIRONMENTAL QUALITY; PROVIDING A PENALTY CLAUSE; PROVIDING A
SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, Subchapter W, "Municipal Setting Designations," of Chapter 361, "Solid
Waste Disposal Act," of the Texas Health and Safety Code authorizes the Texas Commission on
Environmental Quality to create municipal setting designations; and
WHEREAS, pursuant to Section 551,005(a) of the Texas Local Government Code, for
the purpose of establishing and enforcing a municipal setting designation, the governing body of
a municipality may regulate the pumping, extraction, or use of groundwater by persons other
than retail public utilities, as defined by Section 13.002, Water Code, to prevent the use of or
contact with groundwater that presents an actual or potential,threat to human health; and
WHEREAS, pursuant to Section 551.005(b) of the Texas Local Government Code, for
the purpose of establishing and enforcing a municipal setting designation, the governing body of
a municipality by ordinance may extend to the extraterritorial jurisdiction of the municipality the
application of municipal ordinances; and
WHEREAS, the City Council finds that:
(1) The eligibility criteria of Section 361.803 of the Texas Health and Safety Code
have been met;
(2) This municipal setting designation ordinance will not have an adverse effect on
the current or future water resource needs or obligations of the City of Huntsville;
(3) There is a public drinking water supply system that satisfies the requirements of
Chapter 341 of the Texas Health and Safety Code and that supplies or is capable of supplying
drinking water to the designated property and property within one-half mile of the designated
property; and
(4) This municipal setting designation ordinance is necessary because the
concentration of chemicals of concern exceed concentrations considered safe for human
ingestion; and
NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF HUNTSVILLE:
SECTION 1. That for purposes of this municipal setting designation ordinance, the
"designated property"means the property described in Exhibit A attached to the ordinance.
SECTION 2. That for purposes of this municipal setting designation ordinance,
"designated groundwater" means water below the surface of the designated property to a depth
of 400 feet.
SECTION 3. That use of the designated groundwater from beneath the designated
property as potable water, as defined in Section 361.801(2) of the Texas Health and Safety Code,
and the following uses of or contacts with the designated groundwater are prohibited:
(1) Human consumption or drinking.
(2) Showering or bathing.
(3) Cooking.
(4) Irrigation of crops for human consumption.
SECTION 4. That the city council supports the application to the Texas Commission on
Environmental Quality for certification of a municipal setting designation for the designated
property.
SECTION 5. That any person owning, operating, or controlling the designated property
remains responsible for complying with all applicable federal, state, and local statutes,
ordinances, rules, and regulations relating to environmental protection, and that this municipal
setting designation ordinance in itself does not change any environmental assessment or cleanup
requirements applicable to the designated property.
SECTION 6. That approval of this municipal setting designation ordinance shall not be
construed to subject the City of Huntsville to any responsibility or liability for any injury to
persons or damages to property caused by any chemical of concern.
SECTION 7. That within 60 days after adoption of this municipal setting designation
ordinance, the Director of Public Works shall cause to be filed a certified copy of this municipal
setting designation ordinance in the deed records of the county where the designated property is
located.
SECTION 8. That within 60 days after adoption of this municipal setting designation
ordinance, the Director of Public Works shall send a certified copy of this municipal setting
designation ordinance to the Texas Commission on Environmental Quality.
SECTION 9. That the Director of Public Works shall notify the Texas Commission on
Environmental Quality 60 days prior to any amendment or repeal of this municipal setting
designation ordinance.
SECTION 10. That a person violating Section 3 of this municipal setting designation
ordinance, upon conviction, is punishable by a fine not to exceed $2,000, and that the Texas
Commission on Environmental Quality shall be notified of any violations.
SECTION 11. It is the intention of the City Council that this municipal setting
designation ordinance, and every provision hereof, shall be considered severable, and the
invalidity or unconstitutionality of any section, clause, provision or portion of this ordinance
shall not affect the validity or unconstitutionality of any other portion of this ordinance.
SECTION 12. That this municipal setting designation ordinance shall take effect
immediately from and after its passage and publication in accordance with the provisions of the
Charter of the City of Huntsville, and it is accordingly so ordained.
THE CITY OF HUNTSVILLE
4A70-
Mac Woodward, May
ATTEST• APPR V E AS TO FORM:
Le oo war , City e ry eo chneider, City Attorney
CITY COUNCIL AGENDA
°t 6/4/2013
Agenda Item: 6d
Item/Subject: Consider an ordinance creating a Municipal Setting Designation(MSD)located near the
intersection of Avenue I and South Sam Houston Avenue,
Initiating Department/Presenter:Community&Economic Development
Presenter:Aron Kulhavy,AICP, Director of Community& Economic Development and Carol Reed, Public
Works Director
Recommended Motion: Move to ap>' ve Ordinance.ZQ1324`,' creating;, A Muoicipall Setting
Designation (MSD) located near the intersection of /Avenue i and South'Sant Houston Avenue, 2"d
reading.
Strategic Initiative:Strategic Initiative#1-Huntsville residents enjoy a safe, healthy, affordable, and
historic community
Discussion: Staff met with Modern Geosciences, an environmental firm representing their client that
plans on developing property located near the intersection of Avenue I and Sam Houston. Their
preliminary environmental investigation revealed groundwater contamination from past businesses on
the subject property.
In order to resolve problems like this, the 78'h Texas Legislature passed Municipal Setting Designation
(MSD) laws in 2003. This allows for a less expensive and faster alternative to the existing State
environmental regulations governing the investigation and cleanup of contaminated ground water. The
statue substitutes a municipal ordinance in lieu of TCEQ regulations to protect the public against
exposure to the contaminated groundwater. A Municipal Setting Designation (MSD), with support by a
municipality, will be certified by the Texas Commission on Environmental Quality (TCEQ ) that the
designated ground water at the defined property is not used as potable water, and is prohibited from
future use a potable (drinking) water because the groundwater is contaminated in excess of the
applicable potable-water protective concentration level.
Modern Geosciences is pursuing this method to clean up the site and is asking that the City of Huntsville
support their application by passing the attached ordinance. (Exhibit "A" in the attached ordinance will
be a detailed property description that is currently being developed by the project engineer.) If the City
does not approve this ordinance, the firm cannot file their application with TCEQ. If the application
cannot be filed, their client will not purchase this property and clean up the site as part of the
redevelopment process. This being said, the groundwater contamination will continue to spread away
from the point source to surrounding areas, which it has already done as determined from preliminary
investigations.
This designation has been used successfully in numerous other municipalities. Staff has reached out to
other cities that have used this program and have not received any negative feedback.
Previous Council Action: First reading on 5/21/13.
Agenda stern #6d Page 1
Financial Implications:
®There is no financial impact associated with this item.
❑Item is budgeted: In the amount of$
❑Item is not budgeted:
❑Item is estimated to generate additional revenue:
Approvals: ❑City Attorney El Director of Finance ❑City Manager
Associated Information:
• Ordinance pp. 3-5
I • MSD overview and information pp. 6-9
t
i
a
P
I
i
III
i
Agenda Item #6d
•_•• Page 2
ORDINANCE NO. 2013-24
AN ORDINANCE OF THE CITY OF HUNTSVILLE, TEXAS, PROHIBITING THE USE
OF DESIGNATED GROUNDWATER FROM BENEATH CERTAIN PROPERTY AS
FURTHER DESCRIBED IN ATTACHMENT A SUPPORTING CERTIFICATION OF A
MUNICIPAL SETTING DESIGNATION BY THE TEXAS COMMISSION ON
ENVIRONMENTAL QUALITY; PROVIDING A PENALTY CLAUSE; PROVIDING A
SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, Subchapter W, "Municipal Setting Designations," of Chapter 361, "Solid
Waste Disposal Act," of the Texas Health and Safety Code authorizes the Texas Commission on
Environmental Quality to create municipal setting designations; and
WHEREAS, pursuant to Section 551.005(a) of the Texas Local Government Code, for
the purpose of establishing and enforcing a municipal setting designation, the governing body of
a municipality may regulate the pumping, extraction, or use of groundwater by persons other
than retail public utilities, as defined by Section 13.002, Water Code, to prevent the use of or
contact with groundwater that presents an actual or potential threat to human health; and
WHEREAS, pursuant to Section 551.005(b) of the Texas Local Government Code, for
the purpose of establishing and enforcing a municipal setting designation, the governing body of
a municipality by ordinance may extend to the extraterritorial jurisdiction of the municipality the
application of municipal ordinances; and
WHEREAS, the city council finds that:
(1) The eligibility criteria of Section 361.803 of the Texas Health and Safety Code
have been met;
(2) This municipal setting designation ordinance will not have an adverse effect on
the current or future water resource needs or obligations of the City of Huntsville;
(3) There is a public drinking water supply system that satisfies the requirements of
Chapter 341 of the Texas Health and Safety Code and that supplies or is capable of supplying
drinking water to the designated property and property within one-half mile of the designated
property; and
(4) This municipal setting designation ordinance is necessary because the
concentration of chemicals of concern exceed concentrations considered safe for human
ingestion; and
Agenda Item#6d Page 3
NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
I
CITY OF HUNTSVILLE:
SECTION 1. That for purposes of this municipal setting designation ordinance, the
"designated property"means the property described in Exhibit A attached to the ordinance.
a
SECTION 2. That for purposes of this municipal setting designation ordinance,
"designated groundwater" means water below the surface of the designated property to a depth
d
of 400 feet.
SECTION 3. That use of the designated groundwater from beneath the designated
i
property as potable water, as defined in Section 361.801(2) of the Texas Health and Safety Code,
1 and the following uses of or contacts with the designated groundwater are prohibited:
(1) Human consumption or drinking.
(2) Showering or bathing.
i
a
(3) Cooking.
t
(4) Irrigation of crops for human consumption.
SECTION 4. That the city council supports the application to the Texas Commission on
Environmental Quality for certification of a municipal setting designation for the designated
property.
4
SECTION 5. That any person owning, operating, or controlling the designated property
remains responsible for complying with all applicable federal, state, and local statutes,
i ordinances, rules, and regulations relating to environmental protection, and that this municipal
setting designation ordinance in itself does not change any environmental assessment or cleanup
1 requirements applicable to the designated property.
SECTION 6. That approval of this municipal setting designation ordinance shall not be
construed to subject the City of Huntsville to any responsibility or liability for any injury to
persons or damages to property caused by any chemical of concern.
SECTION 7. That within 60 days after adoption of this municipal setting designation
ordinance, the Director of Public Works shall cause to be filed a certified copy of this municipal
i
setting designation ordinance in the deed records of the county where the designated property is
s
located.
q
s
a Agenda Item #6d Page 4
i
a
SECTION 8. That within 60 days after adoption of this municipal setting designation
ordinance, the Director of Public Works shall send a certified copy of this municipal setting
designation ordinance to the Texas Commission on Environmental Quality.
SECTION 9. That the Director of Public Works shall notify the Texas Commission on
Environmental Quality 60 days prior to any amendment or repeal of this municipal setting
designation ordinance.
SECTION 10. That a person violating Section 3 of this municipal setting designation
ordinance, upon conviction, is punishable by a fine not to exceed $2,000, and that the Texas
Commission on Environmental Quality shall be notified of any violations.
SECTION 11. It is the intention of the City Council that this municipal setting
designation ordinance, and every provision hereof, shall be considered severable, and the
invalidity or unconstitutionality of any section, clause, provision or portion of this ordinance
shall not affect the validity or unconstitutionality of any other portion of this ordinance.
SECTION 12. That this municipal setting designation ordinance shall take effect
immediately from and after its passage and publication in accordance with the provisions of the
Charter of the City of Huntsville, and it is accordingly so ordained.
Mac Woodward, Mayor
ATTEST: APPROVED AS TO FORM:
Lee Woodward, City Secretary Leonard Schneider, City Attorney
Agenda Item #6d Page 5
i
Y
r
A x f
{t� .@XiH�3 � r :� or;d`•Snva.err a., ;� rr � +
-
�
R k 1J'Y Y
Jff
L .. ..YmnfR^t'T^
}a� i
N'u�Y r
zrQ ! E Zy r I
r
Kj q t
' II
:P ¢4
" af�
1
fj
A VENUBJ _...rt__ tlr
R.O.W.VARIES)
i _ k IEf 6 P a� t o t x7Ft � ,,Y55 io 3
w55'Y' R
�•!�i n a!° � ! r } a r i R t} +��Tii� G � i
I p 4 y b P i4
i
jti kcz§, r%reyh,�'ea,#i ,fe4a re. ajte� ' , ss !hh
Y ;.,;._ 4
Ll
e #t
fLVC ,.,`YGz Dy
f
i
j IIIUI 1���
s Agenda Item#6d Page 6
4
s
f
EXHIBIT A
"a
.
} L tp H° J•'x y-0 y yy
h N 4
w
W
Al
W
W
CL
M
��A yyi•• y� ��Tt+ � .b m �.4
L■
cd {5
{iii
F �
Y• m A' m
� C
� N a
0 ti O N w N
J
x
Agenda Item #6d Page 7
i
W h
Ln
W
III;
W
>
O u
V! •N v
to � �-
W CC
O co I
J
CL E N
_ N
Q •� V-? U
V) J ate' O "c
N ( C6
N 0)
•
.— Q �j — cn (U
N u 0 a v
u L-L .-
Q >
M -0
� •� cn
•— J N >
�=' 4-1
N
m . . —
O •-
s
0
4-J c- 0 a-J
cn •� 0 4-J u
N tv
Q)
._
aA
— — — a�
>
cr
- 4-J w 0
dC <t Q z w
C z V
o
i
i
Agenda Item #6d Page 8
i
Municipal Setting Designations:A Guide for Cities TCEQ publication GI-326
All other factors being equal,the longer and as such prohibited from current
legacy contaminants might naturally and future use as potable water.
warrant more concern than short legacy
contaminants. Unfortunately,in many Groundwater Zones 2 and 3 are not
instances the longer legacy contaminated,and therefore,they are
contaminants are also among the most not eligible to be included in the MSD.
difficult and therefore among the most In this example,only Groundwater Zone
expensive to cleanup. 1 is prohibited as a potable water supply.
Unless there is a potable-water well
PUBLIC AWARENESS within one-half mile of that MSD
CONSIDERATIONS boundary,the groundwater
contamination will not be investigated
The statutory notice requirements were or remediated for potable water use.
presented earlier in the STATUTORY
NOTIFICATION REQUIREMENTS section
of this document. Recipients of the 4-
notice have 6o days from the date it is
received to file comments with the Pro
TCEQ. The city might consider whether ,
it prefers that additional parties,such as oared crou
landowners or other potential
stakeholders,are notified of the
proposed MSD.
AN MSD EXAMPLE
Figure 4.Three-dimensional cross-section of an
Figure 4 illustrates an example MSD. MSD property and the designated groundwater
The figure is of a three-dimensional zone.
cross-section of a slice into the ground
beneath property in a city. In the cross-
section,three different groundwater
zones are depicted. The"box"labeled
"MSD Property"depicts the lateral and
vertical boundaries of the MSD (MSD
property).
In this example, only Groundwater Zone
i is contaminated. An MSD can only be
applied to existing contaminated
groundwater zones,not to clean or
uncontaminated groundwater zones.
Therefore,as indicated by the vertical
boundary of the box,only Groundwater
Zone 1 is included in the MSD. The
portion of Groundwater Zone 1 that is
within the MSD boundary is deemed the
"designated groundwater"for the MSD
Page 12 Revised February 2013
Agenda Item #6d Page 9