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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