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HomeMy WebLinkAboutItem 09 - Municipal Setting Designation OrdinanceMEMO TO: FROM: MEETING DATE: SUBJECT: RECOMMENDATION: ITEM !1 0 rw�.. HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL BRUNO RUMBELOW, ACTING CITY MANAGER b�— OCTOBER 11, 2005 MUNICIPAL SETTING DESIGNATION ORDINANCE City Council to consider adopting an ordinance amending Chapter 25, Utilities and Services, of the City of Grapevine Code of Ordinances by the addition of Article VII, "Municipal Setting Designation" and take any necessary action. FUNDING SOURCE: N/A BACKGROUND: The 78th Texas Legislature passed a Municipal Setting Designation (MSD) law in 2003 providing for a new option for landowners that have experienced groundwater contamination on their properties. The law provides a process managed by the Texas Commission on Environmental Quality (TCEQ) that allows landowners the option of restricting groundwater usage for potable (drinking water) purposes in exchange for reduced cleanup requirements of contaminated groundwater. Many landowners in Texas have discovered that the groundwater under their properties is contaminated. The contamination could be the result of a previous owner/tenant, could have migrated from off site or is the result of their own activities. Leaking underground petroleum storage tanks are an example. Upon discovery of the contamination, prior to 2003 and the MSD provision, the groundwater was to have been restored to drinking water quality standards per TCEQ rules. Remediation of the contaminated water to meet drinking water standards is very costly and often was not achievable. In some cases this rendered properties unsellable and undevelopable and they remained blighted for many years. The MSD law provides an option for landowners to apply for MSD certification and avoid some of the cleanup criteria previously required by the TCEQ. Groundwater usage is restricted on the site in exchange for reduced cleanup requirements. Support of the City in which the site is located by passage of an ordinance restricting the groundwater October 5, 2005 (10:04AM) usage is a TCEQ requirement of certification. Many cities in Texas utilize surface water for drinking water purposes and do not utilize water wells such as Grapevine. Restriction of groundwater usage for potable purposes does not create a hardship and offers a reasonable solution for properties that have experienced groundwater contamination. MSD certification does not release the property owner from other environmental cleanup criteria. Humans, animals, and plants can potentially be exposed to contamination in ways other than drinking groundwater. The TCEQ is responsible for regulating and ensuring these other environmental criteria are mitigated. An environmental survey of the site that characterizes all components of the contamination such as the chemical makeup, depth of penetration into the soil, size, direction of migration, origin etc. are evaluated by TCEQ and factor into the TCEQ decision of the appropriateness of the application. The attached ordinance is a procedural ordinance that spells out the process for Grapevine to consider whether to support the MSD application and restrict the use of groundwater on a site or disapprove the request, which will end the MSD effort. A summary of the procedure included in the ordinance for Council consideration of an MSD application is as follows: 1. Applicant submits an application accompanied by a fee of $2,500. 2. Staff will review the application for completeness. 3. City will schedule a public meeting within 45 days of date of application and notify as follows: • Publish notice in a paper of general circulation. • Post a notice at City Hall. • Serve written notice to all owners of real property lying within Y2 mile of the subject property. • Serve written notice to all persons who own a private, registered water well within five miles of the subject property. • Serve written notice to each retail public utility that owns or operates a groundwater supply well within five miles from the subject property. • Serve written notice to each municipality with a boundary located not more than one half mile from the subject property. 4. Post a sign on the subject property stating pertinent information relative to the MSD. 5. A copy of the application must be made available in the Grapevine Public Library. 6. Conduct a public hearing, typically a City Council Meeting. In the event Council approves the application then a companion resolution and Ordinance restricting potable goundwater usage will be required. In the event Council rejects the application, the initiative will cease. October 5, 2005 (2:10PM) The MSD process is a State of Texas initiative and is managed by the TCEQ. City approval in the form of a groundwater restrictive ordinance and resolution is required by TCEQ to consider the MSD application. TCEQ requires mitigation of all hazards associated with the specific contamination with the exception of potable groundwater. Environmental interests are protected by the TCEQ. The MSD rule is an excellent tool for development/redevelopment of properties where groundwater contamination exists and the community where the site is located does not utilize groundwater for potable purposes. Staff recommends approval of the MSD Ordinance. MS/ms October 5, 2005 (2:07PM) � AN ORDINANCE AMENDING CHAPTER 25 OF THE CITY OF GRAPEVINE CODE OF ORDINANCES, AS AMENDED, BY THE ADDITION OF ARTICLE VII, "MUNICIPAL SETTING DESIGNATION," PROVIDING FINDINGS AND DEFINITIONS, PROVIDING FOR THE PROHIBITION OF THE USE OF GROUNDWATER FOR POTABLE PURPOSES IN A MUNICIPAL SETTING DESIGNATION, PROVIDING FOR AN APPLICATION PROCESS FOR A MUNICIPAL SETTING DESIGNATION, PROVIDING FOR PUBLIC MEETINGS AND HEARINGS, PROVIDING FOR NOTICE TO PERSONS WITHIN THE AFFECTED COMMUNITY, PROVIDING FOR LIMITATIONS ON REAPPLICATION, PROVIDING FOR PROOF THAT RESPONSE ACTIONS HAVE BEEN COMPLETED ON A SITE, PROVIDING THAT THIS ORDINANCE IS CUMULATIVE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A FINE OF UP TO $2,000.00 FOR EACH OFFENSE IN VIOLATION OF THE ORDINANCE; PROVIDING A SAVINGS CLAUSE; AND PROVIDING AN EFFECTIVE DATE WHEREAS, due to limited quantity and low quality, there are areas of shallow groundwater within the city and its extraterritorial jurisdiction that are not valuable as potable water sources, and therefore are not utilized for potable water; and WHEREAS, many commercial and industrial properties in Grapevine and its extraterritorial jurisdiction are underlain with unusable groundwater that has become contaminated by historical on-site or off-site sources; and WHEREAS, the City of Grapevine does not utilize groundwater as a source for public drinking water, and less than six percent of all municipal water supplies in Tarrant County come from groundwater sources; and WHEREAS, the use of Municipal Setting Designations within Grapevine and its extraterritorial jurisdiction allows for a state -evaluated corrective action process for groundwater that is directed toward protection of human health and the environment balanced with the economic welfare of the citizens of the city; and WHEREAS, where public drinking water is available, the potable use of groundwater in designated areas should be prohibited to protect public health and welfare when the quality of the groundwater presents an actual or potential threat to human health; and WHEREAS, people should have a say in decisions which affect their lives and property, and public input should influence governmental decisions; and WHEREAS, all statutory and constitutional requirements for the passage of this Ordinance have been adhered to, including but not limited to the Open Meeting Act; and WHEREAS, the City Council determines that the passage of this Ordinance is in the best interests of the health, safety, and welfare of the public. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS: Section 1. That all matters stated hereinabove are found to be true and correct and are incorporated herein by reference. Section 2. That Chapter 25, Utilities and Services, is hereby amended by the addition of the following Article VII, "Municipal Setting Designation": "Section 25-200. Definitions. Unless a provision explicitly states otherwise, the following terms and phrases, as used in this Article, shall have the meanings hereinafter designated. Act means the Texas Water Quality Control Act, as amended, codified as Chapter 26, Texas Water Code. Affected community means those persons entitled to notice in Section 25-203 (b)(7) below. Authorized representative means for purposes of signing an application, if the applicant is a corporation, the president, secretary, treasurer, or a vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the corporation; if the applicant is a partnership or sole proprietorship, a general partner or proprietor, respectively; and if the applicant is a local government, the chief executive officer or his authorized designee. Chemical of concern means any chemical that has the potential to adversely affect ecological or human receptors due to its concentration, distribution, and mode of toxicity. Director means the Director of Public Works or the Directors authorized representative. ORD. NO. 2 Environmental risk assessment means the qualitative and quantitative evaluation performed in an effort to define the risk posed to human health and/or the environment by the presence or potential presence and/or use of pollutants. Groundwater means water below the surface of the earth. Municipal Setting Designation (MSD) means a designation as provided by Chapter 361, Subchapter W, of the Texas Health and Safety Code, which authorizes the executive director of the Commission to certify municipal setting designations in order to limit the scope of or eliminate the need for investigation of or response actions addressing contaminant impacts to groundwater that has been restricted from use as potable water by ordinance or restrictive covenant. Permit (n.) means an order issued by the Texas Commission on Environmental Quality in accordance with the procedures prescribed in the Act establishing the treatment which shall be given to wastes being discharged into or adjacent to any water in the state to preserve and enhance the quality of the water and specifying the conditions under which the discharge may be made. Potable water means water that is used for irrigating crops intended for human consumption, drinking, showering, bathing, or cooking purposes. Section 25-201. Declaration of Policy and Purpose. It is the policy of the City and the purpose of this Article to maintain the quality of water in the City consistent with the public health and enjoyment, the propagation and protection of terrestrial and aquatic life, the operation of existing industries, and the economic development of the City; and to require the use of all reasonable methods to implement this policy. Section 25-202. Use of groundwater in Municipal Setting Designation as a potable water source prohibited. (a) A person commits an offense if the person intentionally, knowingly, or with criminal negligence uses groundwater in a Municipal Setting Designation as a potable water source. (b) A person commits an offense if the person intentionally, knowingly, or with criminal negligence uses groundwater in a Municipal Setting Designation for a purpose prohibited in the ordinance creating that Municipal Setting Designation. Section 25-203. Application for City Council Approval of Municipal Setting Designation. ORD. NO. 3 (a) A person, including the City of Grapevine, seeking City Council approval of a Municipal Setting Designation (MSD) for property within the corporate limits of the City of Grapevine, or within its extraterritorial jurisdiction, shall file six copies of an application with the Director. An application may be filed in person, by United States mail, or by a document delivery service. (b) An application shall be on a form provided by the Director, and shall contain: (1) Applicant's name and address, and the name, address, daytime telephone number, and email address of a contact person; (2) The location and legal description of the proposed outer boundaries of the MSD; (3) A statement as to whether applicant has filed an application with the executive director of the Commission for an MSD for the property; (4) A statement as to whether a public drinking water supply system exists that satisfies the requirements of Texas Health and Safety Code Chapter 341 and that supplies or is capable of supplying drinking water to the property for which the MSD is sought, and property within one-half mile of the property for which the MSD is sought; (5) A description of the groundwater sought to be restricted, including the identified chemicals of concern therein and the levels of contamination known to applicant, and the identified vertical and horizontal area of the contamination. If applicant has not documented groundwater contamination offsite that originates from the property for which an MSD is sought, the application shall include a statement as to whether contamination more likely than not exceeds a residential assessment level offsite and the basis for that statement; (6) Identification of the person(s) responsible for the contamination of the groundwater, if known; (7) A listing of: (A) all owners of real property lying within one-half mile of the subject property, as the ownership appears on the last approved city tax roll; ORD. NO. 4 (B) all state -registered private water wells within five miles from the boundary of the property for which the designation is sought, including a notation of those wells that are used for potable water purposes (if known), and a statement as to whether applicant has provided the owners with notice as provided in Texas Health and Safety Code Section 361.805; (C) of each retail public utility that owns or operates a groundwater supply well located not more than five miles from the property for which the MSD is sought, and a statement as to whether applicant has provided the utilities with notice as provided in Texas Health and Safety Code Section 361.805; and (D) each municipality, other than the City of Grapevine, with a boundary located not more than one-half mile from the property for which the MSD is sought; or that owns or operates a groundwater supply well located not more than five miles from the property for which the MSD is sought; and a statement as to whether applicant has provided the municipalities with notice as provided in Texas Health and Safety Code Section 361.805; (8) A copy of the application to the executive director of the Commission, if filed; (9) A site map, drawn to scale, including a metes and bounds description of the property, the boundary of the proposed MSD, the location of groundwater on the property, and the extent of groundwater contamination to the limits that it has been defined. The map shall include a statement by a professional land surveyor registered by the Texas Board of Professional Surveying attesting to the accuracy of the metes and bounds property description; and (10) Any other information that the Director deems pertinent. (c) The application shall be signed by an authorized representative of the applicant and shall contain the following certification statement: "I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in a manner designed to assure that qualified personnel properly gather ORD. NO. 5 and evaluate the information submitted. Based on my inquiry of the person or persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations." (d) An application shall be accompanied by: (1) A set of printed mailing labels with the names and addresses of persons listed in subsection (b)(7) above; (2) An electronic file of the names and addresses of persons listed in subsection (b)(7) above, in a format acceptable to the Director and compatible with City information systems; and (3) An application fee in an amount of $2,500.00. (e) An applicant may withdraw its application in writing by letter sent certified mail, return receipt requested, to the Director, and shall forfeit the application fee. If the Director has not issued public notice prior to the receipt of the withdrawal letter, the applicant may reapply at any time. If public notice has issued, a new application is subject to the limitations of Section 25-209 below. Section 25-204. Staff Review. (a) Upon receiving an application for an MSD approval, the Director will distribute a copy to his designee within the Public Works Department and Development Services Department for staff review. The purpose of the review is to determine whether the application is complete, and whether any current or future City property or other interests have the potential to be impacted by the proposed MSD. City staff shall not be tasked with conducting an environmental risk assessment of the application. (b) City staff must send a written report to the Director within thirty calendar days of receiving the application, noting any discrepancies in the application, and advising of any City interests that may potentially be impacted by the proposed MSD. Section 25-205. Director Action Following Application Review. ORD. NO. 6 (a) Following staff review, if the Director determines that the application is complete, he will schedule a public meeting and a public hearing. The public meeting must be held prior to the public hearing. (1) A public meeting will be scheduled at a time no later than 60 days following the day the application was received by the City; and (2) A public hearing will be scheduled at a time no later than 90 days following the day the application was received by the City. (b) The date that an application is deemed to have been received by the City is the date that the application was received by the Director, as indicated by the file date stamped on the application package by the Department of Public Works. (c) If the Director determines that the application is incomplete, he will return the application to applicant, noting the deficiencies in writing. The applicant shall have 30 days from the date of the deficiency letter to correct the deficiencies and resubmit the application. If the applicant fails to submit a corrected application within the allotted time, the application shall be deemed to be withdrawn and the application fee forfeited. Section 25-206. Notice of Public Meeting and Public Hearing. (a) Notice of the public meeting and the public hearing on an MSD application may be combined and must include the date, time and location of the two events, the identity of the applicant, the location and legal description of the property for which the MSD is sought, the purpose of the MSD, the type of contamination identified in the groundwater of the property for which the MSD is sought, and a statement that a copy of the application is available for public viewing at a specified Grapevine Public Library facility. Notice will be made as follows: (1) The Director will provide published notice of a public meeting and a public hearing for a proposed MSD by means of a legal advertisement appearing in the official newspaper of the City, or a paper of general circulation, not less than 15 days before the public meeting; (2) The Director will provide posted notice of a public meeting and a public hearing by requesting that the City Secretary post the notice at City Hall, in a place readily accessible to ORD. NO. 7 the general public at all times, not less than 15 days before the public meeting; and (3) The Director will serve written notice of a public meeting and a public hearing for a proposed MSD not less than 15 days before the date set for the public meeting. Such notice shall be deemed served when it is deposited, properly addressed and regular postage paid, in the United States mail. Notice will be served to: (A) the applicant; (B) the list provided by applicant of owners of real property lying within one-half mile of the subject property, as the ownership appears on the last approved city tax roll; (C) the list provided by applicant of persons who own private registered water wells within five miles of the subject property; (D) the list provided by applicant of each retail public utility that owns or operates a groundwater supply well located not more than five miles from the property for which the MSD is sought; and (E) the list provided by applicant of each municipality with a boundary located not more than one-half mile from the property for which the MSD is sought or that owns or operates a groundwater supply well located not more than five miles from the property for which the MSD is sought. (b) The Director will direct the erection of at least one sign upon the property for which an MSD has been requested. Where possible such sign or signs must be located in a conspicuous place or places upon such property at a point or points nearest any right-of- way, street, roadway or public thoroughfare adjacent to such property. Such sign(s) must be so erected not less than 15 days before the date set for the public meeting. Any such sign(s) will be removed subsequent to final action by the City Council on the MSD application. The sign(s) must state that an MSD has been requested for the site and that additional information can be acquired by telephoning the number listed thereon or visiting the web site address listed thereon. The erection and/or the continued maintenance of any such sign shall not be deemed a condition ORD. NO. 8 precedent to the holding of any public meeting or public hearing or to any official action concerning the MSD application. (c) The Director will send a copy of the application to the Grapevine Public Library facility located nearest to the property that is the subject of the application, and request that it be displayed for public review. The librarian for the facility will display the application in a publicly accessible area of the library until at least the completion of City Council action on the application, or the withdrawal of the application by applicant. Section 25-207. Conduct of Public Meeting. (a) The purpose of a public meeting is for the applicant to provide information to the affected community about MSD's and the application and to obtain input on the application prior to a formal hearing before the City Council. (b) The public meeting will be held in the evening at a location convenient to the affected community. (c) The applicant or applicant's representative must appear at the public meeting. If the applicant fails to appear at the public meeting either in person or by representative, the application shall be deemed withdrawn and the application fee forfeited. (d) The Director will be responsible for the conduct of the meeting. He will give the applicant or the applicant's representative the opportunity to present its reasons for requesting an MSD, and will give members of the affected community the opportunity to ask the applicant questions or make oral comments on the application. (e) The Director will make a tape recording of the public meeting available for the public. Section 25-208. Conduct of Public Hearing. (a) Prior to the hearing, the Director will provide the City Council with a written report summarizing the request for the MSD approval, including any concerns raised by the reviewing departments, and will attach a copy of the application to the report. (b) The applicant or applicant's representative must appear at the hearing and present the request for an MSD approval. If the applicant fails to appear at the hearing either in person or by ORD. NO. 9 representative, the application shall be deemed withdrawn and the application fee forfeited. (c) Persons wishing to speak either in favor of or against the application will be provided the opportunity in accordance with City Council rules or guidelines for public hearings. (d) Following the conclusion of the public hearing, the City Council may deliberate the matter of the application, and then may either: (1) vote to approve or disapprove the application; or (2) postpone action on the application to a future date. (e) In order to approve an application, the City Council must: (1) adopt a resolution supporting the application to the Texas Commission on Environmental Quality; and (2) enact an ordinance prohibiting the potable use of designated groundwater from beneath the property. The ordinance must include a metes and bounds description of the property to which the ordinance applies; a listing of the contaminants; and a statement that the ordinance is necessary because the contaminant concentrations exceed potable water standards. (f) In the ordinance enacted pursuant to subsection (e)(2) above, City Council may place other reasonable restrictions on the use of designated groundwater from beneath the property. (g) City Council approval of an application shall not be deemed to waive the City's right to comment on an MSD application that has been filed with the Executive Director of the Texas Commission on Environmental Quality as provided by Texas Health and Safety Code Section 361.805. Section 25-209. Limitation on Reapplication. If after public hearing the City Council disapproves an application, or if the applicant has withdrawn its application after public notice has been issued, no new MSD applications for the property shall be accepted by the city or scheduled for a hearing by the City Council within a period of 12 months of the date of disapproval or withdrawal. Section 25-210. Additional Requirements. ORD. NO. 10 (a) A person who has received approval of an MSD from the City, shall, upon issuance from the Commission, provide the Director with a copy of the Certificate of Completion or other documentation issued for the property, showing that response actions have been completed. (b) A person commits an offense if they fail to provide the Director with the documentation required in subsection (a) above, within 30 days of its issuance by the Commission." Section 3. That all ordinances or any parts thereof in conflict with the terms of this ordinance shall be and hereby are deemed repealed and of no force or effect; provided, however, that the ordinance or ordinances under which the cases currently filed and pending in the Municipal Court of the City of Grapevine, Texas, shall be deemed repealed only when all such cases filed and pending under such ordinance or ordinances have been disposed of by a final conviction or a finding not guilty or nolo contendere, or dismissal. Section 4. Any person violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in a sum not to exceed Two Thousand Dollars ($2,000.00) and a separate offense shall be deemed committed upon each day during or on which a violation occurs or continues. Section 5. If any section, article, paragraph, sentence, clause, phrase or word in this ordinance, or application thereto any person or circumstance is held invalid or unconstitutional by a Court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance; and the City Council hereby declares it would have passed such remaining portions of the ordinance despite such invalidity, which remaining portions shall remain in full force and effect. Section 6. The fact that the present ordinances and regulations of the City of Grapevine, Texas are inadequate to properly safeguard the health, safety, morals, peace and general welfare of the public creates an emergency which requires that this ordinance become effective from and after the date of its passage, and it is accordingly so ordained. Section 7. This ordinance shall be in full force and effect after its passage and publication as required by law, and it is so ordained. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS on this the 11th day of October, 2005. ORD. NO. 11 UNNIMM"s ATTEST: ORD. NO. 12