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R2010-117 - 2010-09-13RESOLUTION NO. 2010 -117 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS SUPPORTING THE CERTIFICATION OF A MUNICIPAL SETTING DESIGNATION AT 6712 TELEAN STREET, HOUSTON, HARRIS COUNTY, TEXAS. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: WHEREAS, Chapter 361, Subchapter W, of the Texas Solid Waste Disposal Act authorizes the Texas Commission on Environmental Quality (the "Commission to certify Municipal Setting Designations for properties upon receipt and approval of a properly submitted application; and WHEREAS, as part of the application to the Commission for a Municipal Setting Designation for a site, the applicant is required to provide documentation that the application is supported by: (1) the city council of the municipality in which the site is located; (2) the city council of each municipality with a boundary located within one -half mile from the site; (3) the city council of each municipality that owns or operates a groundwater supply well within five miles from the MSD Site (as defined herein); and (4) the governing body of each retail public utility, as defined by Section 13.002, Texas Water Code, that owns or operates a groundwater supply well within five miles from the site; and WHEREAS, FPA/PinPoint Mykawa, LLC "Applicant intends to file an application with the Commission for certification of a Municipal Setting Designation for the property located at 6712 Telean Street, Houston, Harris County, Texas (the "MSD Site and WHEREAS, the MSD Site is located within five miles of a state registered public supply well„ owned and operated by the City of Pearland (the "City and WHEREAS, the City is a retail public utility, as defined by Section 13.002 Texas Water Code; and WHEREAS, the designated groundwater identified in Applicant's City of Houston Municipal Setting Designation Application is shallow groundwater beneath the MSD Site to a depth of 200 feet below ground surface; and WHEREAS, the MSD Site is approximately 4.5 miles from the well owned by the City, and the designated groundwater identified in Applicant's City of Houston Municipal Setting Designation Application generally flows to the north northeast; and WHEREAS, following the issuance of a Municipal Setting Designation ordinance by the City of Houston and a resolution of support for each additional municipality and retail public utility from which such a resolution is required, Applicant intends to submit to the Commission an application for certification of a Municipal Setting Designation for the MSD Site pursuant to Texas Health and Safety Code, Chapter 361, Subchapter W. NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: SECTION 1. That the City hereby supports Applicant's application to the Commission for a Municipal Setting Designation for the MSD Site provided the Commission and the Environmental Protection Agency, as agencies charged with the protection of human health and the environment, thoroughly review the conditions on the designated property and issue a certificate of completion only when all of the applicable issues of concern have been properly addressed. 2 PASSED, APPROVED and ADOPTED this the 13 day of September, A.D., 2010. TOM REID MAYOR ATTEST: L� e!- 1 APPROVED AS TO FORM: C i r�c.r4 Darrin M. Coker City Attorney City of Houston, Texas, Ordinance No. 2010- 60/ A MUNICIPAL SETTING DESIGNATION ORDINANCE PROHIBITING THE USE OF DESIGNATED GROUNDWATER BENEATH A TRACT OF LAND CONTAINING 18.592 ACRES COMMONLY KNOWN AS 6712 TELEAN STREET, HOUSTON, TEXAS; AND SUPPORTING ISSUANCE OF A MUNICIPAL SETTING DESIGNATION BY THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY; PROVIDING FOR SEVERABILITY; AND DECLARING AN EMERGENCY. * * * * * * 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 ("TCEQ") to create municipal setting designations; and WHEREAS, on August 22, 2007, by Ordinance No. 2007-959, the City Council adopted Article XIII, of Chapter 47, Code of Ordinances, Houston, Texas, to provide a process for establishing municipal setting designation ordinances; and WHEREAS, Sections 47-765(f) and 47-767(a)of the Code of Ordinances, Houston, Texas, authorize municipal settingdesignation ordinances that prohibit P 9 the use of designated groundwater as potable water and thereby enable the TCEQ to certify a municipal setting designation for designated property; and WHEREAS, on September 25, 2009, FPA/PinPoint Mykawa, LLC ("Applicant") applied to the Director of the Public Works and Engineering Department, requesting that the City Council support a municipal setting designation ordinance for 6712 Telean Street located in Houston, Texas 77075; and WHEREAS, on June 15, 2010, the Director of the Public Works and Engineering Department conducted a public meeting as required by section 47- 764, at the Crestmont Community Center, 5200 Selinsky Road, Houston, Texas 77048 and notified the community when the City Council public hearing would occur; and WHEREAS, City Council conducted a public hearing on July 14, 2010; and WHEREAS, the City Council finds that: (1) the application meets the eligibility criteria of Section 361.803 of the Texas Health and Safety Code; (2) the municipal setting designation will not have an adverse effect on the current or future water resource needs or obligations of the City of Houston; 1- (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 contaminants of concern exceeds human ingestion protective concentration levels, and the establishment of a municipal setting designation will allow the property to be brought back into productive use; and WHEREAS, City Council finds that the Director of the Public Works and Engineering Department on behalf of City Council, in accordance with the Charter of the City of Houston, state law, and the ordinances of the City of 2 Houston, has given the required notices, City Council has held the required public hearing regarding this Municipal Setting Designation Ordinance and all procedural requirements have been satisfied; NOW THEREFORE; BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF HOUSTON: Section 1. That for purposes of this Municipal Setting Designation Ordinance, the "designated property" means the one tract described in Exhibit A, attached to this Ordinance and incorporated by reference herein. Section 2. That for purposes of this Municipal Setting Designation Ordinance, "designated groundwater" means groundwater beneath the designated property to a depth not to exceed 200 feet that is prohibited from use as potable water by this Ordinance. Section 3. That use of the designated groundwater from beneath the designated property as potable water, as that term is defined in section 47-761 of the Code of Ordinances, Houston, Texas, is prohibited. Section 4. That the use of the designated groundwater from beneath public rights-of-way immediately adjacent to the designated property as potable water, as that term is defined in section 47-761 of the Code of Ordinances, Houston, Texas, is prohibited, Section 5. That the designated property must receive a certificate of completion or other analogous documentation issued by the TCEQ or the United States Environmental Protection Agency ("EPA") showing that any site investigations and response actions required pursuant to Section 361.808 of the 3 Texas Health and Safety Code have been completed to the satisfaction of the TCEQ or EPA within the time period required by them. Section 6. That the City Council supports the application to the TCEQ for a municipal setting designation on the designated property, with the following comment: (1) The TCEQ and the EPA, as agencies charged to protect human health and the environment, are requested to thoroughly review the conditions on the designated property and issue a certificate of completion only when all contaminants of concern, through the applicable routes of exposure, have been addressed. Section 7. That any person owning, operating, or controlling the designated property remains responsible for complying with all applicable federal and state laws and regulations and all ordinances, rules, and regulations of the City of Houston. The City Council's approval of a municipal setting designation ordinance in itself does not change any environmental assessment or cleanup requirements applicable to the designated property. Section 8. That approval of this Municipal Setting Designation Ordinance shall not be construed to subject the City of Houston to any responsibility or liability for any injury to persons or damages to property caused by any contaminant of concern. Section 9. That within 30 days after adoption of this Municipal Setting Designation Ordinance, the Applicant shall provide the Director of the Public Works and Engineering Department with an electronic file showing the location of 4 the designated property and the designated groundwater in a format compatible with the City's geographic information system and its integrated land management system, and shall provide an electronic file showing the location of the designated property and the designated groundwater to the Harris County Appraisal District in a format compatible with its system. Section 10. That within 30 days after adoption of this Municipal Setting Designation Ordinance, the Director of the Public Works and Engineering Department shall send a certified copy of this ordinance to the Applicant, TCEQ and EPA. Section 11. That the Applicant shall provide the Director of the Public Works and Engineering Department with a copy of the municipal setting designation certificate issued by the TCEQ pursuant to section 361.807 of the Texas Health and Safety Code within 30 days after issuance of the certificate. Section 12. That within 30 days after receipt of the municipal setting designation certificate from the TCEQ, the Director of the Public Works and Engineering Department shall file a certified copy of this Municipal Setting Designation Ordinance in the deed records of Harris County. Section 13. That if any provision, section, subsection, sentence, clause or phrase of this Ordinance, or the application of same to any person or set of circumstances is for any reason held to be unconstitutional, void or invalid, the validity of the remaining portions of this Ordinance or their applicability to other persons or sets of circumstances shall not be affected thereby, it being the intent of the City Council in adopting this Ordinance that no portion hereof or provision 5 or regulation contained herein shall become inoperative or fail by reason of any unconstitutionality, voidness or invalidity of any other portion hereof, and all provisions of this Ordinance are declared to be severable for that purpose. Section 14. There exists a public emergency requiring that this Ordinance be passed finally on the date of its introduction as requested in writing by the Mayor; therefore, this Ordinance shall be passed finally on such date and shall take effect immediately upon its passage and approval by the Mayor. PASSED AND ADOPTED this °?Oicla U of y 2010. Mayor of the City of Houston Pursuant to Article VI, Section 6, Houston City Charter, the effective date of the foregoing Ordinance is AUG 0 3 2010 City Secretary Prepared by the Legal Department c Cz:::)__:„..:9cA July 1 C 10, Ceil Price, Senior Assistant City Attorney Requested by Daniel Menendez, P.E., Interim Director, Public Works and Engineering Department L.D. File No. 0800900066001 G:ILANDICEIL\MSDs 2010\6712 Telean.doc CAPTION RALt9111110*I DAILY COURT Jr'=` AUG 0 3 2010 6 AYE NO ✓ MAYOR PARKER •••• •••• COUNCIL MEMBERS ✓ STARDIG JOHNSON ✓ CLUTTERBUCK ✓ ADAMS ✓ SULLIVAN 186011-0111 HOANG >✓ PENNINGTON �4 mar GONZALEZ ✓ RODRIGUEZ ✓ COSTELLO ✓ LOVELL Allerwr-ors MUM NORIEGA 1✓ BRADFORD JONES CAPTION ADOPTED MAY017 Rev.12/013 • EXHIBIT A METES AND BOUNDS DESCRIPTION "DESIGNATED PROPERTY" 18.592 ACRES IN THE G. WILGUS SURVEY,ABSTRACT NO. 1127 J.M. SWISHER SURVEY,ABSTRACT NO. 1278 W.T. MCNEEL SURVEY,ABSTRACT NO. 1692 WM. J. LOVETT SURVEY,ABSTRACT NO. 526 HARRIS COUNTY,TEXAS A 18.592-ACRE (809,856 SQUARE FEET) TRACT OF LAND SITUATED LN THE G. WILGUS SURVEY, ABSTRACT NO. 1127, J.M. SWISHER SURVEY, ABSTRACT NO. 1278, W.T. MCNEEL SURVEY, ABSTRACT NO. 1692, AND WM. J. LOVETT SURVEY, ABSTRACT NO. 526, HARRIS COUNTY, TEXAS, BEING OUT OF THAT CALLED 140.826-ACRE TRACT DESCRIBED AS TRACT 1 IN DEED TO FPAJPINPOINT HOBBY, LLC AS RECORDED UNDER HARRIS COUNTY CLERK'S FILE NUMBER 20070147235 OF THE OFFICIAL PUBLIC RECORDS OF REAL PROPERTY, AND BEING ALL OF A CALLED 8.52-ACRE TRACT DESCRIBED IN A DEED TO ISADORE AND ESTHER ROBINSON AS RECORDED UNDER HARRIS COUNTY CLERK'S FILE NUMBER B849280 OF THE OFFICIAL PUBLIC RECORDS OF REAL PROPERTY, AND A CALLED 6.24-ACRE TRACT DESCRIBED IN A DEED TO ISADORE AND ESTHER ROBINSON AS RECORDED UNDER HARRIS COUNTY CLERK'S FILE NUMBER B849280 OF THE OFFICIAL PUBLIC RECORDS OF REAL PROPERTY, AND A CALLED 1.38-ACRE TRACT - DESCRIBED IN A DEED TO ISADORE AND ESTHER ROBINSON HAS RECORDED UNDER HARRIS COUNTY CLERK'S FILE NUMBER B849299 OF THE OFFICIAL PUBLIC RECORDS OF REAL PROPERTY, AND A PORTION OF TELEAN STREET, SAID 18.592-ACRE TRACT BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS, (BEARINGS BASED ON THE TEXAS STATE PLANE COORDINATE SYSTEM OF 1983, SOUTH CENTRAL ZONE, AS DETERMINED BY GPS MEASUREMENTS. COORDINATES SHOWN HEREON ARE TEXAS SOUTH CENTRAL ZONE NO. 4204 STATE PLANE GRID COORDINATES (NAD83) AND MAY BE BROUGHT TO THE SURFACE BY APPLYING THE FOLLOWING COMBINED SCALE FACTOR OF 0.99987863945): BEGINNING at a 3/4-inch iron rod with EHRA cap found marking the southwest corner of a called 5-acre tract described in a deed to Leonard Holt Tozer, Jr. as recorded under F Harris County Clerk's File Number R708328 of the Official Public Records of Real Property, and being the most southerly northwest corner of said Tract 1 and an interior corner of the herein described tract, having the coordinates X=3,142,636.64 and Y=13,793,030.48; 7 • • THENCE North 87°14'28"East 178.72 feet, along the common line of said called 5-acre tract and said Tract 1 to the most easterly northeast corner of the herein described tract, having the coordinates X=3,142,815.13 and Y=13,793,039.08; THENCE South 03°12'02" East 481.64 feet, over and across said Tract 1 to a point for corner,having the coordinates X=3,142,842.02 and Y=13,792,558.25; THENCE South 27°08'36" West 196.62 feet, to a point in the common line between said Tract 1 and a called 2.30-acre tract described in a deed to Paul Gregory Garza as recorded under Harris County Clerk's File Number L909196 of the Official Public Records of Real Property, and being the most easterly southeast corner of the herein described tract,having the coordinates X=3,142,752.32 and Y=13,792,383.30; THENCE South 87°21'29" West 79.39 feet, along the common line of said called 2.30- acre tract and said Tract 1 to a point in the east line of said called 6.24-acre tract, and being the northwest corner of said called 2.30-acre tract, having the coordinates X=3,142,673.03 and Y=13,792,379.64; THENCE South 03°12'02" East, along the common line of said called 2.30-acre tract and said called 6.24-acre tract, at 336.77 feet passing a PK-nail in asphalt found in the north right-of-way line of Telean Street (based on a variable width), from which a found 3/4-inch iron pipe bears North 24°19'30"East 9.02 feet, and continuing for a total distance of 365.03 feet to a point in the south right-of-way line of said Telean Street, and being the most southerly southeast corner of the herein described tract, having the coordinates X=3,142,693.41 and Y=13,792,015.22; THENCE South 86°19'49" West 249.74 feet, along the south right-of-way line of Telean Street to a point in the east right-of-way line of the G.C. & S.F. Railroad (based on a width of 100-feet), and being the southwest corner of the herein described tract, having the coordinates X=3,142,444.21 and Y=13,791,999.24; THENCE North 16°28;30" West, along the east right-of-way line of said G.C. & S.F. Railroad, at 31.95 feet passing a 3/4-inch iron rod with cap stamped "KMS Surveying" found in the north right-of-way line of said Telean Street marking the southwest corner of said called 1.38-acre tract, and continuing for a total distance of 1,647.23 feet to a railroad spike in a gravel road found marking the northwest corner of said called 8.52- acre tract and the southwest corner of a called 6.562-acre tract described in a deed to Houston Lighting and Power Company as recorded in Volume 1137, Page 128 of the Harris County Deed Records, having the coordinates X=3,141,977.12 and Y=13,793,578.65; THENCE North 87°14'28"East 627.98 feet, along the common line of said called 6.52- acre tract and said called 8.52-acre tract to a %-inch iron rod with Baseline cap found marking the northeast corner of said called 8.52-acre tract and of the herein described tract,having the coordinates X=3,142,604.29 and Y=13,793,608.87; 8 THENCE South 03°12'02" East, at 15.00 feet passing a 3/a-inch iron rod with EHRA cap found marking the northwest corner of said called 5-acre tract, and continuing of a total distance of 579.37 feet to the POINT OF BEGINNING and containing 18.592 acres (809,856 square feet) of land. This description accompanies an Exhibit, prepared by KMS Surveying, LLC and dated September 18,2009. G:\LAND\CEIL\MSDs 2010\6712 Telean.doc 9 • TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Municipal Setting Designations A Guide for Cities GI-326 August 2007 INTRODUCTION MSD OVERVIEW The 78th Texas Legislature passed a Municipal An MSD is an official state designation given to Setting Designations(MSDs)statute, effective property within a municipality or its extraterritorial September 1, 2003, governing the potability of jurisdiction that certifies that designated groundwater and the requirements for removing groundwater at the property is not used as contaminants from groundwater. The law potable water, and is prohibited from future use authorized the TCEQ to receive, process, and as potable water because that groundwater is certify MSD applications for properties with contaminated in excess of the applicable potable- contaminated groundwater that are located in water protective concentration level. The cities or their extraterritorial jurisdiction. The prohibition must be in the form of a city TCEQ can certify an application only if there is ordinance, or a restrictive covenant that is local city support. The city has the choice to enforceable by the city and filed in the property either support or not support an MSD application. records.The MSD property can be a single Because of this need for city support, city officials property, multiple properties, or a portion of a can expect to be contacted by persons who wish property. to pursue state certification of an MSD. Cities can also pursue MSDs for their own use. The MSD law creates a new alternative to persons addressing the groundwater Definitions: contamination they are responsible for causing, as well as to persons who"volunteer"to address Groundwater—The water present below groundwater contamination. The MSD statute ground surface. limits investigation and remediation requirements for contaminated groundwater on MSD properties Potable Water—The statute defines potable when that groundwater is not used and will not be water as water that is used for drinking, used in the future for potable water. showering, bathing, cooking, or for irrigating This document is provided as a reference about crops intended for human consumption. MSDs for city governments and explains: Potable-Water Protective Concentration • what an MSD is, Level—A maximum concentration of a • the purpose behind the law, and contaminant in groundwater that is non- • potential considerations when the city is injurious to people using the groundwater for deciding its position on MSD certification. potable purposes. Potable-water protective concentration levels are specific to each Further information on MSDs can be accessed contaminant and are reported in units of online at<www.tceq.state.tx.us/goto/msd>. milligrams of contaminant per liter(mg/L)of You may contact the TCEQ Remediation Division water. directly at 512-239-2200.Ask to speak with a staff member knowledgeable about MSDs. II The TCEQ is an equal opportunity/affirmative action employer.The agency does not allow discrimination on the basis of race,color,religion,national origin,sax,disability,age,sexual orientation or veteran status. BACKGROUND AND PURPOSE By offering this alternative to address the problem of contaminated groundwater that will not be The purpose of the MSD law is to provide a less used as potable water, persons may be more expensive and faster alternative to the existing inclined to develop and redevelop properties in state environmental regulations governing the municipal areas that have contaminated investigation and cleanup of contaminated groundwater. groundwater.The statute substitutes a municipal ordinance or restrictive covenant for TCEQ AUTHORITY TO ESTABLISH regulations to protect the public against exposure AN MSD to contaminated groundwater. In many cities, some of the chemicals spilled onto The 78th Texas Legislature passed HB 3152, the ground by commercial or industrial activities and subsequently that legislation was codified in the Texas Solid Waste Disposal Act(Texas have seeped through the soil and into Health and Safety Code 361.801-08). The groundwater. Because groundwater is frequently a legislation provided new authority for cities to source of potable water for people, the state support MSDs(see Local Government Code regulations typically require the investigation and 211.003[a], 212.003[a], and 401.005). The remediation of the contaminated groundwater to THSC was subsequently modified by HB 2018, support potable water use. In almost every case, 80th Legislature. The statutes can be down- potable water use of groundwater is the strictest loaded from <www.tceq.state.tx.us/goto/msd>. standard the state uses to regulate the cleanup of contaminated groundwater. ELIGIBILITY CRITERIA In some city locations, however, no one is using groundwater as potable water in the vicinity of the The statute specifies two eligibility contaminated groundwater zone, and there is no requirements: plan to use that groundwater as potable water in • The proposed MSD property must be the future because another source of water is within the corporate limits or available. For such instances, the MSD statute extraterritorial jurisdiction of a provides an alternative that overrides standard municipality authorized by statute. TCEQ regulatory requirements. Instead of • There must be a public water supply restoring or controlling the contaminated zone so system that meets state requirements it's groundwater can be used as potable water, a that"supplies or is capable of supplying prohibition is placed on the designated drinking water"to the MSD property groundwater beneath the MSD property to and all properties within one-half mile prevent its use as potable water. of the MSD property. However, if there is a potable-use water well ALLOWABLE APPLICANTS within one-half mile of the MSD property boundary, then the extent of any groundwater contamination beyond that boundary does have Any of the following"persons" (as defined in to be determined and the water remediated in THSC 361.003[23]) can apply for an MSD: accordance with the statute. If there is no such • an individual well, then the contamination will not be assessed • a corporation or remediated for potable purposes, but • an organization assessment could be required for other purposes. • a government(including a local government)or governmental Because people or animals, fish, and plants subdivision or agency (ecological receptors) may be exposed to the • a business trust, partnership, contamination in other ways, the law still allows association, or any other legal entity the TCEQ to require the contamination to be investigated and remediated for other concerns This means that cities can also apply for an unrelated to potable-water use. For example, the MSD. An MSD can be used to address inhalation of vapors originating from the groundwater contamination the applicant is groundwater contaminants or the discharge of responsible for, or for any other property where groundwater contaminants to lakes or streams there is groundwater contamination, provided can be a concern. the eligibility criteria are met. GI-326 Page 2 STATUTORY NOTIFICATION THE CITY ROLE REQUIREMENTS The city is not required by statute to accept, The MSD statute requires the applicant to process, or support MSD applications. provide a letter to notify the parties identified However, for an MSD to be certified by the below that an MSD application is to be TCEQ, municipal support for the application is submitted to the TCEQ. The notice must be paramount. Therefore, MSD certification is completed in advance of, or at the same time significantly controlled by the city. For the city as, an application is submitted to the TCEQ. where the proposed MSD property is located, Specifically,the notice letter must be sent to: the statute allows an MSD application to be certified only if that city council adopts either: • Each municipality: • an ordinance toprohibit potable use of o in which the MSD property is located, the designated groundwater from o with a boundary located within one- beneath the MSD property and to half mile from the MSD property appropriately restrict other uses of, and boundary, or contact with, the designated o that owns or operates a water groundwater, or supply well located within 5 mi from • a resolution that supports the filing of a the MSD property boundary; restrictive covenant by the applicant • Each owner of a"private water well that is enforceable by the municipality registered with the commission"' that is to prohibit potable use of designated located within 5 mi from the MSD groundwater from beneath the MSD property boundary; and property and to appropriately restrict Each retail public utility2 that owns or other uses of, and contact with, the • operates a groundwater supply well designated groundwater. located within 5 mi of the MSD property The statute also defines a role for cities that boundary. border the proposed MSD city within one-half In the notice letter, the applicant is required to: mile of the proposed MSD boundary or that • identify the location of the proposed own or operate a groundwater supply well MSD property, located within 5 mi of the proposed MSD state the reason for the MSD boundary. In these cases, the applicant must • certification, also provide a notice to that city of the state that municipalities and retail applicant's intent to file an MSD application with • public utilities can make comments to the TCEQ. Further, the statute allows the TCEQ to certify an application in such the TCEQ, situations only if the city council of that • identify the type of groundwater bordering city also adopts a resolution in contaminants, and support of the MSD application. • name the party responsible for the contamination. As stated earlier, no municipality is under statutory obligation to support an MSD Notified parties have up to 60 days after they application, but without municipal support, the receive the notice letter to file comments with TCEQ is statutorily required to deny the the TCEQ, if they choose to do so. The TCEQ application because it is incomplete. An cannot take action to deny or certify the application is not complete until the ordinance application until 60 days after the notified or resolution and restrictive covenant, as • parties receive those notices. applicable, are adopted by the city where the proposed MSD is located, and by any other ' Statutory language that means the TCEQ, cities, when applicable. However, in but also must include the Texas Water accordance with the statute, the ordinance, Development Board and the Texas Department resolution, and restrictive covenant can be of Licensing and Regulation. adopted after the TCEQ processes and 2 Retail public utility as defined by Texas Water "precertifies"the application. Code 13.002. GI-326 Page 3 In all cases,the TCEQ will need assurance that applicants to obtain firm support of each RPU applicants have the firm support of each before submitting an application to the TCEQ. required city before submitting an application to the TCEQ.Therefore, it is up to the city to An RPU is also asked to support the TCEQ in decide what is in its best interest regarding processing the application by confirming to each MSD property that is proposed to be what extent its system supplies, or is capable of located within its border or within a bordering supplying, water to the MSD property and all city. The statute does not prohibit a city from properties within one-half mile of it.This imposing additional application procedures and information is needed for the application. A • requirements on the applicant. letter from each RPU signed by an appropriate official with the RPU verifying the extent of its Outside of supporting the application, the public drinking water service to the proposed municipality also needs to confirm the status of MSD area is sufficient. public water availability for the TCEQ when the city owns or operates a public drinking water City and Retail Public Utility Support supply system that serves the MSD area. Specifically, the TCEQ must have verification The applicant is not to submit an MSD that a public drinking water supply system application to the TCEQ without"firm" municipal exists that"supplies or is capable of supplying and RPU support for the application. Firm drinking water"to the MSD property and all support can be demonstrated by providing the surrounding properties within one-half mile of it. TCEQ with a direct indication from an individual The applicant must include this information in within the municipality or RPU who has authority the application, but the TCEQ also prefers to to advise the city council or governing body that directly verify this with the public drinking water they will recommend that the required supplier. A letter signed by an appropriate city resolutions or ordinance be adopted. official verifying the availability, or the extent of public drinking water service supplied to the proposed MSD area, is sufficient. If a city does not support an MSD, it should THE TCEQ ROLE directly inform the applicant of this fact. Additionally, it can also document this As with cities and RPUs, the TCEQ's role is conclusion in a letter submitted to the TCEQ. established by statute. The TCEQ is to receive and process applications, verify that proposed MSD properties meet statutory eligibility THE ROLE OF RETAIL PUBLIC requirements, and verify that applications are administratively complete. If the MSD property UTILITIES is statutorily eligible and the application is complete, then the TCEQ will certify the • By statute, retail public utilities(RPUs) have a application. role in certain instances. The applicant is required to identify every RPU, if any, that owns The TCEQ has statutory authority to deny an or operates a groundwater supply well located application when: within 5 mi of the MSD property and provide • the eligibility requirements are not met, notice to each identified RPU of the applicant's • the application is incomplete or intent to submit an MSD application to the inaccurate, or TCEQ. • based on comments or information from applicant-notified parties or other If there is any such RPU in the MSD area then, information, the TCEQ determines the in order for the MSD application to be certified, MSD would negatively impact the the applicant must provide a copy of a current and future regional water resolution in support of the MSD application resource needs or obligations of a from the governing body of each applicable municipality, an RPU, or a private well RPU. owner. If the application is certified, the TCEQ is As is the case for a municipality, the RPU is required to provide a copy of the certification to under no statutory obligation to support an parties who received notice from the applicant, MSD application. The TCEQ is also directing GI-326 Page 4 as well as to all parties who provided comment or request additional information within 90 days during the 60-day comment period on the of receiving the application. application and to anyone else who requested a copy. The TCEQ will also be available to If the city anticipates local interest in applying help municipalities obtain an understanding of for MSDs, and if the city is, in general, willing to the MSD statute and program. support MSDs,then the city may choose to establish procedures for an applicant to follow The TCEQ's responsibilities subsequent to when seeking city support as indicated in MSD certification are determined under the Figure 1. For example, the City of Fort Worth statute in 361.808 (Investigation and Response has adopted procedural ordinances for MSD Action Requirements). applicants to follow. Applicant eligibility. MSD r City and RPU considers I CONSIDERATIONS I N benefit and eligibility. I MSD applications and I iI, I adopts procedures as I I needed. I SUPPORTING MSDs Applicant contacts city and r RPU for support. I I The practical outcome of an MSD is that the ,' contact RPU ` I requirement to investigate and remediate ` TCEQ. ` existing contaminated groundwater for use as . TCEQ. • City& No potable water will be lessened or eliminated. RPU ►CDo not submit MSD application) Instead of the TCEQ regulations, the public is Support protected through the MSD prohibition on MSD7 potable-water use. Yes RPU—retail public utility Applicant issues required notice The following considerations are presented to letters,and submits MSD application to aid cities unfamiliar with MSDs that are unsure TCEQ. of certain factors they may need to consider. Meets Water Resource eligibility& Yes Resolutions No application or Considerations requirements ordinances adopted? Current and future dependence No Yes City&RPU adopt resolution& on groundwater for potable water ordinances.Applicant submits proof to TCEQ. Consider the source of your current or future CTCEQdenieeMSD C TCEQSssuerMSD . potable-water supply and whether existing application and notifies esrt[f(cate&nonce. applicant. contaminated groundwater in the MSD area Applicant complies with threatens a potable groundwater supply the —s environmental __ city or its citizens rely on, or will rely on in the regulations,as future. The establishment of an MSD is applicable. Figure 1. MSD application process. (Dashed tantamount to authorization to remove that contaminated groundwater zone within the lines denote optional actions.) MSD boundary from use for potable water, CERTIFICATION PROCESS indefinitely. Figures 2 and 3 illustrate the location of the major and minor groundwater , aquifers in the state. Many areas of the state In general, an applicant must give notice to rely on these aquifers for potable water. parties identified by statute that an MSD application will be submitted to the TCEQ, and In considering whether to support MSDs, in subsequently submit an MSD application for general, if the city relies on surface water or TCEQ consideration. However, as indicated in groundwater located far from the MSD area for Figure 1, the process also involves city and potable water, then the existing groundwater RPU support. Note that there are actions contamination within the city might not be a required for the applicant, notified cities, RPUs, particularly important consideration. However, • and the TCEQ. The TCEQ must certify, deny, if the city or its citizens rely on groundwater GI-326 Page 5 beneath the city, then the groundwater • the chemical and physical properties of contamination may threaten the potable-water the groundwater contaminants supply. Considering these factors, it may become When evaluating if there is any such threat to apparent that MSDs can be appropriately sited the potable-groundwater supply, relevant anywhere within the city, or only within certain factors to consider may include the following, areas of the city, if at all. There may be ways as well as other potential factors: to shore up any uncertainties in the • what groundwater zone(s) are used appropriateness of MSDs by placing particular • what groundwater zones are information or action requirements on the contaminated applicants. • what the degree and extent of the groundwater contamination is Irrigation and industrial water • the hydraulic connection between the sources potable-groundwater supply and the contaminated groundwater • how much is known of the location of If the groundwater is used for non-potable existing local water wells water in the vicinity of the MSD property, the • proximity of existing and planned TCEQ is not prohibited by statute from potable-water wells to groundwater requiring the person to investigate and contamination remediate the groundwater to address those the design of those potable-water wells non-potable considerations. Examples of non- • and the integrity of those wells against potable groundwater use include irrigation of contamination lawns, watering pets and livestock, and potential for future water-well industrial process or cooling water. Historically, • t the TCEQ has typically applied its protective installations outside the MSD potable water-use prohibition concentration levels for potable-water use to such non-potable uses of groundwater. • Additionally, pumping of Outcrops of Major Aquifers in Texas groundwater for non-potable use can spread the existing groundwater contamination. ;INCH Legend The frequency of non- N amour= potable groundwater use in i Counties W a , ki Major Aquifers&Name the area might give an ��.�i ® i CARRLZO indication of whether the • ��. ■», ,I■ fir*� ;� p EDWARDs municipality might prefer the ��'-Caen 1-�EDWARD&TRINITY �� _ a�a��ta MSD to cover the full extent emi c . }.4. '�+ .r I F ,'rl GULF COAST of groundwater �C 2 ,� ,;,T NuEco aoLsoNIlltrilt contamination, or to provide 4" Crr.:.l ocALlAu, 41°' �`'e4•., �rthe necessary insight into r!V � �� Gi ;�;w"PECOSVALLEY pie .; the appropriate scope and Ed SEYMOUR va� �� scale of an ordinance f-I TRINITY prohibiting municipal • o 100 200 300 400 groundwater use or a V restrictive covenant. Milesles 41141 MSD Management Considerations Figure 2. Outcrops of major aquifers. MSDs frequently bring up questions regarding • the local (and possibly regional) management, some of which might not be hydrogeology (aquifer recharge, unique to, or a true consequence of, an MSD. groundwater flow, aquifer interconnectivity, etc.) GI-326 Page 6 The City Goals land within the physical limits of that ordinance. This would allow applications to be filed as Depending on the city' goals, MSDs might be additional properties with groundwater an important alternative to removing contamination are discovered. The ordinance contaminants from all groundwater. Any does need to stipulate that the reason for the restrictive covenant or ordinance used to potable water use prohibition is that the prohibit potable-water use must at least cover groundwater is contaminated. the entire MSD property. Additionally, the city may want to place such Be aware that the statute requires notices to, limits outside the MSD boundary as a and resolutions from, different parties within safeguard against future potable-water use in certain radial distances from the boundary of the MSD area, or in anticipation of other MSDs. the MSD property. Moreover, the regulatory flexibility a certified MSD provides is tied to If the city supports use of MSDs and is also whether there are potable-water wells located contemplating, or is already undertaking, a within one-half mile of the MSD boundary. As significant Brownfield redevelopment or the size of the proposed MSD property is revitalization project for a city sector, then the increased, the radial distances commensurately scale of MSDs is important. A multi-property or reach farther out and can shift requirements for notification and MSD support as well as allowable relative Outcrops of Minor Aquifers in Texas proximity to potable-water wells, depending on what falls within III � Legend those radial distances. ':,t Q(buneee Mlnr Aeefee L Neer :r�■ CM BLAINE Repeal of Ordinance ' .11W15 .7 -BIABSON W--at_ E r� t ,,� MIL,. -BONE SPRINLLVICTORIO PEAK y�T y1 i ArI i\11f\ i• d*- �BRAZOSRNERALLWIUM The MSD certificate is ' °.kh t`s�' .�' ■■■III,■ I i /A.'" -CAPRMIREEF COMPLIX s t �y � predicated on the institutional _ i,,y 1 i■I1111111•4w� 7� 0 o :lECWARo&TRINRV(HOHPLAINS) control(ordinance or restrictive T� ` 'P !y`i e; -ELIENSUROER SAN SABA n. �I�►,��4�� - covenant) remaining in effect. �R HCKO R( ..w ,� i j EtV, -*NEcuB Therefore, if the city changed its ii . -.1 rZ '.Twr r�r ®EN MARATHON support for an MSD by �; �� '�j�'� QMARBLEFALLS withdrawing an ordinance, there ,■ I^ �` ' ®PACATOCH r. ,�+**� n3 QUEEN CITY would be no prohibition against ,� _ A`." ®sTABLACA the use of the contaminated 0 100 200 300 �'� -fn1STLER groundwater within the MSD for i I I I �� __SPARTA .. EWESTTENABBOLSO,S potable water. Accordingly, the Miles N uwoca e -YEOU UAONBON TCEQ and the city need to be in communication if there is to be a change in the MSD support at the city. As a courtesy, the TCEQ requests to be notified by Figure 3. Outcrops of minor aquifers. the city at least 60 days in advance of making any such change. regional MSD or a regional ordinance that prohibits the use of the designated groundwater as potable water might be advantageous. An Coverage of the potable-water MSD applies to all contamination in the use prohibition and potable-water designated groundwater within the MSD boundary, even if it extends across multiple well installation real-estate tracts that have their different sources of contamination within the MSD The MSD statute requires only that the property. designated groundwater within the MSD boundary be prohibited from potable use. The A regional groundwater ordinance could MSD prohibition is not required to extend support subsequent MSD applications filed beyond the boundary of the MSD or to cover property by property for the different tracts of the extent of contaminated groundwater that GI-326 Page 7 may extend beyond the MSD boundary, contaminants over time. Detailed information currently or in the future. There may be no on contaminant behavior is not required at the other natural or legal controls or safeguards time of submitting an MSD application. outside the boundary of the MSD that prevents Therefore, the MSD application may be installation of a potable-water well within one- prepared and submitted to the TCEQ at the half mile of the MSD property, subsequent to front end of a remediation project. This may MSD certification. result in the TCEQ having little to no technical information regarding contaminant conditions at If the TCEQ becomes aware of such a the property at the time of processing the situation, then the person responsible for the application. MSD groundwater contamination will have to assess and remediate for potable purposes in Further, once an application is certified by the accordance with 361.808 of the MSD statute. TCEQ, the requirements of THSC 361.808 take . Unfortunately, the TCEQ may not be made effect. As discussed previously, depending on aware of new wells in the vicinity of the MSD. the presence or absence of local potable-water wells and the applicability of other exposure If future potable use of groundwater in the concerns in the MSD property and surrounding vicinity of the MSD property is a concern, then area, there may not be a requirement to define local initiatives to monitor and report water-well the nature and extent of groundwater installation in the vicinity of existing MSDs may contamination, or to evaluate the potential for have merit. Some cities may already have the contamination to spread further(laterally, or other ordinances or controls that prohibit water to deeper groundwater zones). wells or require a city permit to be obtained • before a water well can be installed. Such Also, the groundwater contamination at an controls are not typically sufficient to satisfy the MSD property may have a potentially short or MSD ordinance requirements, but can long legacy, depending on the nature of the effectively give added protection. contaminant and site conditions. Some groundwater contaminants, such as benzene, Alternatively,the city may also consider are less persistent in the environment than notifying local citizens as a means to safeguard others. That means that once the contaminant against future potable-water use in the MSD source is mitigated, the dissolved groundwater area. contaminant commonly degrades or its concentration naturally diminishes due to Technical expertise and technical bacterial, chemical, and/or physical processes. information Other contaminants, such as some chlorinated solvents, are not as readily amenable to natural When evaluating the appropriateness of MSDs, degradation and may be more persistent in the a city may encounter some complex legal and environment. Additionally, some contaminants technical matters. Considerations include degrade to a more toxic groundwater which departments should evaluate MSD contaminant. For example, proposals; what problems, if any, they tetrachloroethylene, also known as anticipate in arriving at a conclusion; and what perchloroethylene or"perc"—a commonly used information is needed to support a good dry-cleaning chemical—degrades through decision on the matter. The MSD statute several intermediate chemicals to the more requires the applicant to supply the specific toxic chemical, vinyl chloride. information listed in the statute, but the city might have a need for other information. In that All other factors being equal, the longer-legacy case, it might consider defining procedures for contaminants might naturally warrant more MSD applicants. concern than short-legacy contaminants. Unfortunately, in many instances the longer- Contaminant Considerations legacy contaminants are also among the most difficult, and therefore among the most expensive, to clean up. The appropriateness of a particular MSD can depend on the nature of the contaminants and the expected behavior of the groundwater GI-326 Page 8 Public-Awareness r-4-, Considerations �3• I' ; ®©m. Elmaw c HI! �5171.1713411. .; MSD Property! For statutorynotice requirements, see the ' ^" q Soil Statutory Notification Requirements section of F?r# ,? 'contamma this document on page 3.A city should Groundwater Zone 1 l 13 gnated Grou . • `.a: x` consider whether it prefers that additional parties, such as landowners or other potential s. ,& x Groundwater Zone 2 r, 4 4 stakeholders, be notified of the proposed r , F , �.zi' MSD. e f,,, r• Groundwater Zone 3 ; fa g e y AN EXAMPLE -r-. Figure 4. Three-dimensional cross-section Figure 4 illustrates an example MSD.The figure of an MSD property and the designated is of a three-dimensional cross-section of a slice groundwater zone. 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. In this example, only Groundwater Zone 1 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 within the MSD boundary is deemed the"designated groundwater"for the MSD and as such is prohibited from current and future use as potable water. Groundwater Zones 2 and 3 are not contaminated, and therefore they are not eligible for inclusion in the MSD. In this example, only Groundwater Zone 1 is prohibited as a potable water supply. Unless there is a potable-water well within one-half mile of that MSD boundary, the groundwater contamination will not be investigated or remediated for potable-water use. GI-326 Page 9 Questions Summary Municipal Setting Designation (MSD) Public Meeting June 15,2010 Former Gulf Metals Industries Landfill Site 6712 Telean St. MSD #2009-20-GMI Applicant: FPA/PinPoint Mykawa,LLC 675 Bering,Suite 550 Houston,Texas 6:15 pm—8:00 pm Presenters: Richard Chapin (City of Houston) and Mr. James Kendrick, P.E. (NewFields) Attendees: 60 (not including City of Houston or NewFields) 1) When you say"that property"—what property do you mean? Response(City): When we refer to the "property" we are only referencing the designated property identified in the MSD application. 2) For properties and/or wells located within 5 miles of the designated property, what criteria were used to asses if the groundwater was impacted? Response(City): The technical consultant will address the delineation of contamination. 3) Were core samples collected at the property? Response(City): Yes — The technical consultant will provide a summary of investigation activities performed at the designated property. 4) Is everything in the public record? Response(City): Yes — Documentation regarding the site is available to the public at the TCEQ offices and the MSD application is available on line and at the Mancuso Library. 5) When will the MSD be presented in front of the City Council? Response (City): The City Council meeting is scheduled for August 4,2010 (9:00am). 6) How does this program work? Does the City go looking for contaminated properties or does the property owner approach the City? Response(City): The property owner initiates this process—the City does not identify sites and initiate the process. 7) Does issuance of a MSD mean that they will they run water to all properties located within the area of concern? Response(City): The City of Houston evaluates the need to run water to properties and determines if it is financially beneficial to provide new service to an area. 8) Does the city already know where contamination is? Response(City): No, until a property owner approaches the City, we don't know about contamination located on a parcel of property. 9) What about people that have water wells in the area — have we been drinking contaminated water? Response (City): No,this site has not affected off-site water wells. 10)Why are we just hearing about this problem now,when it has been a problem for so many years? Response(City): That is one thing we like about the MSD program — it has a lot of public comment and everything is done out in the open. Other state environmental programs do not require public notifications. 11)Why did you scare everyone with the mailer if their contamination has not impacted any well? Response (City): The notification is a requirement of the TCEQ. It was not our intent to scare anyone. 12)Does the City support the application on behalf of the applicant or the community? Response(City): The City is here to provide service to both parties, but would not support an application if we didn't believe that it was appropriate. A lot of work has been completed prior to reaching this point. 13)Did they remove all of the waste material? Response(NF): No, the waste material was solidified (i.e., mixed in Portland cement) in 2002. 14)When they first started dumping, they used it as a sand pit. How deep did it go? Did they leave untreated waste material in the ground? Response(NF): Approximately 15-20 feet. No, they solidified all the oily/organic waste material 15)The train that derailed there—it was bad. Did this contribute to the contamination? Response(NF): It may have contributed, but the waste disposal activities were the main source of contamination. 16)What are our chances that the contamination has migrated out 5-miles? Response (NF): Zero percent chance. 17)Are there any civil or criminal charges against the owners? Response(City): No there were no regulations at the time the disposal occurred. 18)How do they decide when to stop installing off-site wells? Response(NF): Site investigation activities are performed until the vertical and horizontal extent of contamination is delineated. For groundwater, the limit of delineation are the drinking water standards. 19)How far off the property were samples collected? Response (NF): Until clean samples were collected, which was up to several hundred feet from the property. 20)Will you continue to monitor groundwater in the future? Response(NF): The TCEQ has the ultimate decision on further post-closure groundwater monitoring requirements. 21) What are you putting there? Response (PP): We purchased a large parcel of property, and we will be deed recording a portion of this property due to the groundwater contamination. We have developed a large portion of the property that we have leased (Phase I development) and we have development plans for Phase II (light industrial/warehouse). These plans have been placed on hold due to the current economy; however, we plan to run a rail spur across this parcel and develop the area that requires rail access. Conceptual development plans will be available on the back table. 22)Did you purchase the property knowing that it was contaminated? Response(PP): Yes. We did exhaustive due diligence prior to acquisition and we would not have purchased the landfill property if we did not believe that there was limited exposure and we could not proceed with our development plans. 23)You said that you were going to maintain the cap, will you also maintain the wells and keep testing? Response(PP): The former owner will continue any future groundwater testing and we (the current owner)will maintain the cap. 24)Have they done the research to make sure that development will not disturb the waste material? Response(PP): Yes, we retained environmental consultants and civil engineers to perform the necessary analysis and testing to ensure that we will not impact the integrity of the landfill cap. Based on their analysis, the planned development(i.e., rail spur, truck/car parking, and light buildings) will not impact the integrity of the cap. 25)We just want to make sure that things will be maintained into the future. Response(PP): We will maintain the site in the future and we do not have any plans to sell the property in the future. 26)Will there be any notice attached to our deed? Response(City): No, only the designated property will have a deed recordation. NO. 2010-0525-1 07/13-14/10, Page 12 HEARINGS—9:00 A.M. 1. HEARING to consider a Municipal Setting Designation ordinance for FPA/PinPoint Mykawa, LLC for the site located at 6712 Telean Street - DISTRICT I— RODRIGUEZ — was called. Council Members Johnson, Adams, Hoang, Rodriguez and Lovell absent. The City Secretary stated that Ms. Carol Ellinger Haddock would make remarks concerning the hearing. Council Members Johnson, Adams, Hoang, Rodriguez and Lovell absent. Ms. Haddock stated that she was a Senior Assistant Director of the Department of Public Works & Engineering, that more than six years ago the Texas legislature provided another tool to encourage redevelopment of contaminated properties by authorizing Municipal Setting Designations or MSDs, that an MSD protected public health by designating a particular parcel, beneath which contaminated groundwater was prohibited from use as potable water, that this State Law was administered by the Texas Commission on Environmental Quality, that she was here today because, although the TCEQ issues an MSD, participation in the State program required local support, that Article 13 of Chapter 47 of the Code of Ordinances provides a process by which the City may support, or not support, a parry's MSD application to the State, that as part of that process they were holding this public hearing, that the application was submitted by FPA/PinPoint Mykawa, LLC for 19.34 acres of land located at 6712 Telean Street, that the site, commonly known as the Former Gulf Metals site, was previously used as a landfill from the 1950s to 1970s, that in 2002, the organic waste in the landfill was solidified and a clay landfill cap was constructed, that the site was a former State Super Fund site and was transferred to the Texas Voluntary Cleanup Program when the landfill cap was completed, that the groundwater plume was decreasing, however, six contaminants of concern still existed in the groundwater that exceeded human ingestion protection levels, that depending upon the outcome of today's hearing, the Director of Public Works and Engineering would forward a request for City Council to adopt an ordinance to support this MSD application, that the ordinance would include all elements required by State Law and Article 13 of Chapter 47 of the Code of Ordinances, that she and the applicant were available if they had any questions. Council Members Johnson, Adams, Rodriguez and Lovell absent. The City Secretary stated that no one had reserved time to appear at the hearing. Council Members Johnson, Adams, Rodriguez and Lovell absent. Council Member Costello moved to close the public hearing, seconded by Council Member Costello. All voting aye. Nays none. Council Members Johnson, Adams, Rodriguez and Lovell absent. MOTION 2010-0536 ADOPTED. Mayor Parker stated that they would move to the agenda, but had a couple of quick announcements on the Mayor's Report. Council Members Johnson, Adams, Rodriguez and Lovell absent. MAYOR'S REPORT Mayor Parker stated that if they had checked the City's website they would notice that they had a new website up, that she wanted to thank Bob Novack and Bryan Carr, but all of the webmasters in the various City departments also worked on it, they had checked it and checked it but it was a new website, if people saw glitches or things that they should have or were not being linked properly to please let them know, but were excited about the new look and would encourage them to check out the City's website; that immediately after the Council meeting they were having a press conference downstairs on the Major League Soccer All Star Game, and a NO. 2010-0525-1 07/13-14/10, Page 14 10. RESOLUTION designating certain property within the City of Houston as a historic landmark (Playhouse Theatre - 4816 Main Street) - DISTRICT C — CLUTTERBUCK — was presented. All voting aye. Nays none. Council Members Johnson, Rodriguez and Lovell absent. RESOLUTION 2010-0041 ADOPTED. 11. RESOLUTION designating certain property within the City of Houston as a historic landmark (Strickland-Lasater-Thomas House - 2184 Troon Road) - DISTRICT G - PENNINGTON — was presented. All voting aye. Nays none. Council Members Johnson, Rodriguez and Lovell absent. RESOLUTION 2010-0042 ADOPTED. 12. RESOLUTION designating certain property within the City of Houston as a landmark and protected landmark - (Magnolia Park City Hall and Central Fire Station - 7301 Avenue F) DISTRICT I - RODRIGUEZ — was presented. All voting aye. Nays none. Council Members Johnson, Rodriguez and Lovell absent. RESOLUTION 2010-0043 ADOPTED. 13. RESOLUTION supporting the certification of a Municipal Setting Designation outside the boundary of the City of Houston at 12715 Royal Drive, Stafford, Texas — was presented. All voting aye. Nays none. Council Members Johnson, Rodriguez and Lovell absent. RESOLUTION 2010-0044 ADOPTED. 14. RESOLUTION amending Resolution No. 2010-35 approving and authorizing the nomination of Sysco Corporation to the Office of the Governor Economic Development & Tourism through the Economic Development Bank as an Enterprise Project — was presented. All voting aye. Nays none. Council Members Johnson, Rodriguez and Lovell absent. RESOLUTION 2010-0045 ADOPTED. 15. ORDINANCE AMENDING ARTICLE XIII OF CHAPTER 47 OF THE CODE OF 4_,,.. ORDINANCES, HOUSTON, TEXAS, relating to Municipal Setting Designation Ordinances to prohibit certain contaminated groundwater from potable use; containing findings and other provisions relating to the foregoing subject; providing an effective date; providing for severability — was presented. All voting aye. Nays none. Council Members Johnson, Rodriguez and Lovell absent. ORDINANCE 2010-0556 ADOPTED. 17. ORDINANCE approving and authorizing Amendment No. 1 to contract between the City of Houston and the TEXAS COMMISSION ON ENVIRONMENTAL.QUALITY (Approved by Ordinance No. 2009-525) in order to increase the maximum amount of funding provided by TCEQ for the City's Air Pollution Control Program; authorizing the Director of the Health & Human Services Department to act as the City's representative in the administration process; authorizing the Director to accept future modifications to the grant and expend the grant funds, as awarded, and to apply for and accept all subsequent awards, if any, pertaining to the grant- $720,418.00 Grant Fund— was presented. All voting aye. Nays none. Council Members Johnson, Rodriguez and Lovell absent. ORDINANCE 2010-0557 ADOPTED. 18. ORDINANCE approving and accepting the Texas Department on Aging and Disability Services Area (DADS) FY2011-2013 Area Plan on behalf of the Harris County Area Agency on Aging ("HCAAA") for Supportive Services, Nutrition Services, Caregiver Programs, Administration, Medication Management Training, Elder Abuse Prevention, and Ombudsman Activity; declaring HCAAA's eligibility for such plan funding; authorizing the Director of the Health and Human Services Department of the City of Houston to act as the HCAAA's Representative for purposes of the DADS Area FY 2011-2013 Plan; authorizing the Director to apply for, accept and expend the DADS Area FY 2011-2013 Plan Funds, if awarded, and to apply for, accept and expend all subsequent DADS Area HEATH&SAFETY CODE SUBTITLE B.SOLD WASTE,TOXIC CHEMICALS, SEWAGE,LITTER,AND WATER CHAPTER 361 SOLID WASTE DISPOSAL ACT SUBCHAPTER W.MUNICIPAL SETTING DESIGNATIONS • Sec.361.801. DEFINITIONS. In this subchapter: • (1) "Contaminant" includes: (A) solid waste; (B) hazardous waste; • (C) a hazardous waste constituent listed in 40 C.F.R.Part 261, Subpart • D,or Table 1,40 C.F.R. Section 261.24; (D) a pollutant as defined in Section 26.001,Water Code; and • (E) a hazardous substance: (i) as defined in Section 361.003;or (ii) subject to Subchapter G, Chapter 26,Water Code. (2) "Potable water"means water that is used for irrigating crops intended for human consumption,drinking,showering,bathing,or cooking purposes. (3) "Response action"means the cleanup or removal from the environment of a hazardous substance or contaminant,excluding a waste,pollutant,or substance regulated by or that results from an activity under the jurisdiction of the Railroad Commission of Texas under Chapter 91 or 141,Natural Resources Code,or Chapter 27,Water Code. Acts 2003,78th Leg.,ch. 731,Sec. 1,eff. Sept. 1,2003. • Sec.361.8015. LEGISLATIVE FINDINGS. (a) The legislature finds that access to and the use of groundwater may need to be restricted to protect public health and welfare where the quality of groundwater presents an actual or potential threat to human health. (b) The legislature finds that an action by a municipality to restrict access to or the use of groundwater in support of or to facilitate a municipal setting designation advances a substantial and legitimate state interest where the quality of the groundwater subject to the designation is an actual or potential threat to human health. Acts 2003,78th Leg.,ch. 731,Sec. 1,eff. Sept. 1,2003. • • � I i i Sec.361.802. PURPOSE. The purpose of this subchapter is to provide authorization to the executive director to certify municipal setting designations for municipal properties 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. Acts 2003,78th Leg.,ch. 731,Sec. 1,eff.Sept. 1,2003. Sec. 361.803.ELIGIBILITY FOR A MUNICIPAL SETTING DESIGNATION. A person,including a local government,may submit a request to the executive director for a municipal setting designation for property if: (1) the property is within the corporate limits or extraterritorial jurisdiction of a municipality authorized by statute; and (2) a public drinking water supply system exists that satisfies the requirements of Chapter 341 and that supplies or is capable of supplying drinking water to: (A) the property for which designation is sought; and (B) property within one-half mile of the property for which designation is sought. ' I Acts 2003,78th Leg.,ch.731,Sec. 1,eff.Sept. 1,2003. Amended by: • Acts 2007,80th Leg.,R.S.,Ch.240, Sec. 1,eff.May 25,2007. Sec.361.804. APPLICATION FOR A MUNICIPAL SETTING DESIGNATION. (a) A person seeking to obtain a municipal setting designation under this subchapter must submit an application to the executive director as prescribed by this section. (b) An application submitted under this section must: •(1) be on a form provided by the executive director; (2) contain the following: (A) the applicant's name and address; (B) a legal description of the outer boundaries of the proposed municipal setting designation and a specific description of the designated groundwater that will be restricted under the ordinance or restrictive covenant described by Section 361.8065(a)(2); (C) a statement as to whether the municipalities or the retail public j utilities entitled to notice under Section 361.805 support the proposed designation; (D) an affidavit that affirmatively states that: (i) the municipal setting designation eligibility criteria contained in Section 361.803 are satisfied; (ii) true and accurate copies of all documents demonstrating that the municipal setting designation eligibility criteria provided by Section 361.803 have been satisfied are included with the application; (iii) a true and accurate copy of a legal description of the property for which the municipal setting designation is sought is included with the application; and (iv) notice was provided in accordance with Section 361.805; (E) a statement regarding the type of lmown contamination in the groundwater beneath the property proposed for a municipal setting designation; (F) proof of notice,as required by Section 361.805(c); and (G) if available at the time of the application, a copy of the ordinance or restrictive covenant and any required resolutions satisfying the requirements described in Section 361.8065,or a statement.that the applicant will provide a copy of the ordinance or restrictive covenant and any required resolutions satisfying the requirements described in Section 361.8065 before the executive director certifies the municipal setting designation in accordance with Section 361.807;and (3) be accompanied by an application fee of$1,000. (c) Not later than 90 days after receiving an application submitted as provided by Subsection(b),the executive director shall: (1) issue a municipal setting designation certificate in accordance with Section 361.807; (2) deny the application in accordance with Section 361.806; or (3) request additional information for the municipal setting designation application. (d) Not later than the 45th day after the date the executive director receives any additional information requested under Subsection(c)(3),the executive director shall certify or deny the application. (e) Fees collected under this section shall be deposited to the credit of the waste management account. Acts 2003,78th Leg.,ch.731, Sec. 1,eff. Sept. 1,2003. Sec. 361.805. NOTICE. (a) On or before the date of submission of an application to the executive director,a person seeking a municipal setting designation must provide notice to: ' I • • (1) each municipality: (A) in which the property for which the designation is sought is located; (B) with a boundary located not more than one-half mile from the property for which the designation is sought; or (C) that owns or operates a groundwater supply well located not more than five miles from the property for which the designation is sought; (2) each owner of a private water well registered with the commission that is located not more than five miles from a boundary of the property for which the designation is sought; and (3) each retail public utility,as defined by Section 13.002,Water Code,that owns or operates a groundwater supply well located not more than five miles from the property for which the designation is sought. (b) The notice must include,at a minimum: (1) the purpose of the municipal setting designation; (2) the eligibility criteria for a municipal setting designation; (3) the location and description of the property for which the designation is sought; (4) a statement that a municipality described by Subsection(a)(1) or retail public utility described by Subsection(a)(3)may provide written comments on any information relevant to the executive director's consideration of the municipal setting designation; (5) a statement that the executive director will certify or deny the application or • request additional information from the applicant not later than 90 days after receiving the • application; . (6) the type of contamination on the property for which the designation is sought;and (7) identification of the party responsible for the contamination of the property, if lcnown. (c) The applicant must submit copies of the notice letters delivered in accordance with Subsection (a)and the signed delivery receipts to the executive director with the application. (d) For the purpose of this section,notice to a municipality must be provided to the city Secretary for the municipality and notice to a retail public utility must be to the registered agent, the owner,or the manager. (e) A municipality,retail public utility,or private well owner entitled to notice under this section may file comments with the executive director not later than the 60th day after the date the municipality,retail public utility, or private well owner receives the notice under this section. Acts 2003,78th Leg.,ch. 731,Sec. 1, eff. Sept. 1,2003. Sec. 361.806. DENIAL OF APPLICATION. (a) The executive director shall deny an application submitted under Section 361.804 if: (1) any of the eligibility criteria described in Section 361.803 have not been met for the property for which the municipal setting designation is sought; (2) the application is incomplete or inaccurate;or (3) after the 60-day comment period described by Section 361.805(e),the • executive director determines that the municipal setting designation would negatively impact the current and future regional water resource needs or obligations of a municipality, a retail.public utility,or a private well owner described by Section 361.805(a). (b) If the executive director determines that an application is incomplete or inaccurate, the executive director,not later than the 90th day after receipt of the application, shall provide the applicant with a list of all information needed to make the application complete or accurate. (c) If the executive director denies the application,the executive director shall: (1) notify the applicant that the application has been denied;and (2) explain the reasons for the denial of the application. • Acts 2003,78th Leg.,ch.731, Sec. 1,eff. Sept. 1,2003. • Sec.361.8065. PRECER1'WICATION REQUIREMENTS. (a) Before the executive director may issue a municipal setting designation certificate under Section 361.807,the applicant must provide documentation of the following: (1) that the application is supported by a resolution adopted by: (A) the city council of each municipality described by Section 361.805(a)(1)(B) or(C); and (B) the governing body of each retail public utility described by Section 361.805(a)(3); and (2) that the property for which designation is sought is: (A) subject to an ordinance that prohibits the use of designated groundwater from beneath the property as potable water and that appropriately restricts other uses of and contact with that groundwater;or • (B) subject to a restrictive covenant enforceable by the municipality in which the property for which the designation is sought is located that prohibits the use of designated groundwater from beneath the property as potable water and appropriately restricts other uses of and contact with that groundwater. (b) A designation described by Subsection(a)(2)(B)must be supported by a resolution passed by the city council of the municipality. Acts 2003,78th Leg.,ch.731,Sec. 1,eff.Sept. 1,2003. • Sec.361.807. CERTIFICATION. (a) If the executive director determines that an • applicant has complied with Section 361.8065 and submitted a complete application,the executive director shall issue a copy of the municipal setting designation certificate to: (1) the applicant for the municipal setting designation; (2) each municipality,retail public utility,and private well owner described by Section 361.805(a);and (3) each person who submitted comments on the application for the municipal setting designation and anyone else who requested a copy during the review period. (b) The municipal setting designation certificate shall: (1) indicate that the municipal setting designation eligibility criteria described in Section 361.803 are satisfied and that the executive director has certified the municipal setting designation; (2) indicate that any person addressing environmental impacts for a property located in the certified municipal setting designation shall complete any necessary investigation and response action requirements in accordance with Section 361.808; and (3) include a legal description of the outer boundaries of the municipal setting designation. (a) If the executive director determines that an applicant has submitted a complete application except that an ordinance orrestrictive covenant and any required resolutions satisfying the requirements described in Section 361.8065 have not been submitted,the executive director shall issue a letter to the applicant listed in Subsection(a)stating that a municipal setting designation will be certified on submission of a copy of the ordinance or restrictive covenant and any required resolutions satisfying the requirements described in Section 361.8065.On submission of the ordinance or restrictive covenant and any required resolutions satisfying the requirements described in Section 361.8065,the executive director shall issue a municipal setting designation certificate in accordance with Subsections(a)and(b). Acts 2003,78th Leg.,ch. 731, Sec. 1,eff. Sept. 1,2003. Sec.361.808. INVESTIGATION AND RESPONSE ACTION REQUIREMENTS. (a) If no potable water wells are located within one-half mile beyond the boundary of a municipal setting designation,the executive director shall not require a person addressing environmental impacts for a property located in the municipal setting designation to: (1) investigate the nature and extent of contamination in groundwater except to satisfy the requirements of Subsection(b); or • (2) conduct response actions to remove,decontaminate,or control environmental impacts to groundwater based solely on potential potable water use. (b) Notwithstanding Subsection (a),the executive director shall require a responsible person to complete a response action to address environmental impacts to groundwater in a certified municipal setting designation if action is necessary to ensure: (1) the protection of humans from exposures to environmental impacts to groundwater that are not related to a potable water use,including exposures from nonconsumptive uses and exposures resulting from inadvertent contact with contaminated groundwater;or (2) the protection of ecological resources. (c) If potable water wells are located within one-half mile beyond the boundary of a • municipal setting designation,the executive director shall require a person addressing environmental impacts for a property located in the municipal setting designation to complete an investigation to determine whether groundwater contamination emanating from the property has caused or is reasonably anticipated to cause applicable human health or ecological standards to be exceeded in the area located within one-half mile beyond the boundary of the certified municipal setting designation. (d) If an investigation described in Subsection(c)confirms that groundwater emanating from the property has not caused and is not reasonably anticipated to cause applicable human health or ecological standards to be exceeded in the area located within one-half mile beyond the boundary of the certified municipal setting designation,the executive director shall approve the • completion of groundwater response actions at the property except to the extent that response actions are necessary to satisfy Subsection(b). (e) If an investigation described in Subsection(c) confirms that groundwater emanating from the property has caused or is reasonably anticipated to cause applicable human health or ecological standards to be exceeded in the area located within one-half mile beyond the boundary of the certified municipal setting designation,the executive director shall approve the completion . 1 of groundwater response action at the source property if the person addressing environmental impacts: (1) completes response actions at the source property to remove, decontaminate,or control environmental impacts to groundwater to meet applicable human health or ecological standards; or (2) completes response actions at the source property to remove, decontaminate, or control environmental impacts to groundwater that are not related to a potable water use,including actions to protect humans from exposures from nonconsumptive uses and exposures resulting from inadvertent contact with contaminated groundwater and actions to protect ecological resources, and: (A) provides to owners of impacted potable water wells described in Subsection(c)a reliable alternate water supply that will provide a volume of water sufficient for the intended use for a period not shorter than the period that the impacted wells exceed the human health or ecological standards and,after obtaining permission from such owners,files a restrictive covenant that prohibits the use of groundwater from those wells as potable water and restricts other uses of groundwater in a manner consistent with groundwater quality; or (B) expands the municipal setting designation in accordance with the procedures under this subchapter relating to the initial application for a municipal setting designation to include the properties with impacted potable water wells described in Subsection (c). (f) Notwithstanding any other provision of this section,the executive director may • require a person responsible for property within a certified municipal setting designation to complete a response action to address environmental impacts to groundwater emanating from the property that has caused or is reasonably anticipated to cause applicable human health or ecological standards to be exceeded in an area located more than one-half mile beyond the boundary of the certified municipal setting designation,provided such action is necessary to ensure: (1) the protection of humans from exposures to environmental impacts to groundwater; or • (2) the protection of ecological resources. (g) This subchapter relates to the scope of the response action that can be required by the executive director in municipal settings designated under this subchapter.Nothing in this subchapter shall be construed to alter or affect the private rights of action of any person under any statute or common law for personal injury or property damage caused by the release of contaminants.Nothing in this subchapter is meant to alter or supersede any requirement of a federally authorized environmental program administered by the State of Texas. Acts 2003,78th Leg.,ch.731, Sec. 1,eff.Sept. 1,2003. • • • • • • • 1