2009-045ORDINANCE NO. ~O®% -Q`f✓
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON AUTHORIZING
THE ACCEPTANCE OF DEED RESTRICTIONS PROHIBITING THE USE OF
DESIGNATED GROUNDWATER FROM BENEATH THE PROPERTY, GENERALLY
DESCRIBED AS THE 0.79 ACRE TRACT, BEING PART OF LOT 1, BLOCK 1 VICTORIA
SQUARE, GENERALLY AT THE NORTHEAST CORNER OF SOUTH LOCUST AND
EAST PRAIRIE STREETS, DENTON, TEXAS, TO FACILITATE CERTIFICATION OF A
MUNICIPAL SETTING DESIGNATION ("MSD") OF SAID PROPERTY BY THE TEXAS
COMMISSION ON ENVIRONMENTAL QUALITY ("TCEQ"), PURSUANT TO THE
TEXAS SOLID WASTE DISPOSAL ACT; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, Chapter 361, Subchapter W of the Texas Solid Waste Disposal Act (the
"MSD legislation") authorizes the Texas Commission on Environmental Quality ("TCEQ") to
certify Municipal Setting Designations for properties upon receipt and approval of a proper
application to the TCEQ; and
WHEREAS, the Texas legislature, in enacting the MSD legislation, found 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; and
WHEREAS, as a part of the application process for a Municipal Setting Designation, an
applicant is required to provide a resolution or ordinance of support from the municipality in
which the MSD is being sought, and is required to demonstrate to the TCEQ that a resolution or
ordinance prohibiting the use of and contact with designated groundwater from beneath the
property has been enacted; and
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, some commercial and industrial properties within Denton and its
extraterritorial jurisdiction are underlain with unusable groundwater that has becomc
contaminated by historical on-site or off-site sources; and
WHEREAS, 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 public health; and
WHEREAS, the use of a Municipal Setting Designation allows for a State-evaluated
corrective action process for groundwater that is directed towards the protection of human health
and the environment; and
WHEREAS, Jack Bell Companies (hereinafter "Applicant") intends to submit an
application to the TCEQ for certification of a Municipal Setting Designation for the property
sAour documents\ordinancesN09\msd ordinance.doc
located at generally at the northeast corner of South Locust and East Prairie Streets, being part of
Lot 1, Block 1, Victoria Square, the legal description of which is set forth in Exhibit "A",
attached hereto and made a part hereof (the "MSD Property"), said MSD Property being located
within the city limits of the City of Denton; and
WHEREAS, the Applicant has certified to the City of Denton that:
1. the purpose of the application is to assist the Applicant in obtaining from
the TCEQ the documents demonstrating the TCEQ's determination, after
completion of any remediation requirements and appropriate review by the
TCEQ, that no further environmental cleanup or restoration is required by
the TCEQ with respect to the MSD Property ("TCEQ closure
documentation"); and
2. as a part of the application, the Applicant has or will submit to the TCEQ a
statement regarding the type of known contamination in the groundwater
beneath the MSD Property and has identified that shallow groundwater
(less than 50 feet below ground surface) contains chemicals of concern
above Tier 1 groundwater ingestion protective concentration levels, as set
forth in 30 Texas Administrative Code, Chapter 350 (the "Texas Risk
Reduction Program"); and
WHEREAS, the Applicant has continuing obligations to satisfy Section 361.808 of the
MSD legislation and applicable TCEQ regulations concerning groundwater contamination
investigations and response actions; and
WHEREAS, the Applicant desires to secure a Municipal Setting Designation for the
MSD Property, as well as TCEQ closure documentation, and has requested the City of Denton to
facilitate said objectives through passage of this Ordinance pertaining to deed restrictions
prohibiting the use of designated groundwater from beneath the MSD Property; and
WHEREAS, the City Council of the City of Denton is of the opinion that it is in the best
interest of the public and the City to facilitate the Applicant's efforts to secure a Municipal
Setting Designation and TCEQ closure documentation from the TCEQ by passage of this
Ordinance as set forth in Chapter 26, Section X of the Denton Code of Ordinances, entitled
"Municipal Setting Designations"; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Council finds that the findings, statements, and policy
determinations set forth in the preamble of this Ordinance are true and correct and are
incorporated herein.
SECTION 2. The City Council finds that it is in the best interests of public health, safety
and welfare to facilitate and support the TCEQ's certification of a Municipal Setting Designation
for the MSD Property, as well as the TCEQ closure documentation.
sAour documents\ordinances\09\msd ordinance.doc
SECTION 3. To facilitate the TCEQ's certification of a Municipal Setting Designation
for the MSD Property and the issuance of closure documentation by the TCEQ, the Applicant
shall execute, deliver and file, no later than fifteen (15) days from the date of the TCEQ's
certification, in the official real property records of Denton County, Texas, a deed restriction
approved as to form by the City Attorney prohibiting the drilling of wells and the use of
designated groundwater for any purpose, including but not limited to any potable purpose, and
excepting only: (1) wells used as monitoring wells for the collection of groundwater samples for
chemical or biological laboratory analyses; and (ii) wells used for the purposes of remediation of
soil or groundwater contamination.
SECTION 4. A file-stamped recorded copy of said deed restriction shall be delivered to
the City Attorney's office and the Director of Planning's office of the City of Denton within
three business days after the date of filing in the Denton County real property records. The deed
restriction shall be enforceable by the City of Denton and may be amended or terminated only
with the prior written consent of the City of Denton after at least 30 days prior written notice to
the TCEQ of any pending amendment or termination.
SECTION 5. Failure to execute, record, and deliver the deed restriction in accordance
with this Ordinance within the time limits set forth herein shall render this Ordinance null and
void, and of no further force or effect unless the City authorizes an extension in writing.
SECTION 6. The applicant shall submit, upon receipt of the Municipal Setting
Designation certification from the TCEQ for the MSD Property, a true and correct copy of the
deed restriction to the Manager of the Division of Environmental Quality. The Applicant shall
also submit, upon receipt of TCEQ closure documentation from the TCEQ for the MSD
Property, a true and correct copy of such documentation to the Manager of the Division of
Environmental Quality and the City Secretary's office.
SECTION 7. Failure of the Applicant to diligently pursue and obtain from the TCEQ: (i)
a Municipal Setting Designation certificate for the MSD Property; and (ii) TCEQ closure
documentation for the MSD Property, shall render this Ordinance voidable by the City Council
following 30 day's written notice to the TCEQ and the Applicant.
SECTION 8. This Ordinance shall take effect immediately from and after its passage.
PASSED AND APPROVED this the ry / - day of 2009.
3
sAour documents\ordinances\09\msd ordinance.doc
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY.
VED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
Bryan W. Shaw, Ph.D., Chairman E 0
fr
Buddy Garcia, Commissioner If
y
Carlos Rubinstein, Commissioner
Mark R. Vickery, P.G., Executive Director
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Protecting Texas by Reducing and Preventing Pollution
November 6, 2009
Ms. Jennifer Walters, City Secretary
City of Denton
215 E. McKinney
Denton, TX 76201
Re: Municipal Setting Designation Certification (MSD) for Jack Bell Property
Management, 417-419 South Locust Street, Denton, TX; MSD No. 109
Dear Ms. Walters:
As required by TEX HEALTH & SAFETY CODE §361.807(a)(2), enclosed is a copy of
the MSD dated November 2, 2009. The City of Denton passed an ordinance (Ordinance
No. 2009-045) in support of this MSD application. For this reason, the Texas
Commission on Environmental Quality is required to provide you a copy of the MSD
Certificate.
If you have any questions, please contact me at (512) 239-3429.
Sincerely,
Scott Settemeyer, P.G., Proj Manager
VC'P-CA S°ction
Remediation Division
DSS/jdm
Enclosure
P.O. Box 13087 Austin, Texas 78711-3087 512-239-1000 Internet address: www.tceq.state.tx.us
printed on recycled paper using soy-based ink
TEXAS COMMISSION 'ON ENVIRONMENTAL QUALITY
`1VIU1\~ICIPAL;SETTING DESIGNATION'CERTIFICATE .
As provided:for.in<§36'1 80Z,aSubchspter Wjexas~Health and -Safe ' ode (Solid Waste'Dis 'osal'Act)
ify the _
: of the Texas-Commission on ,Environmental Quality cert
T Mark R.-:Vickery, Executive Director,
Municiod]°Setting;Designation for'MSD No 109,`in'the City of:Denton;'for the'.tract-of:land'descnbed in' =
The _eligibility requirements.,of Texas: Health :and 'Safety Code §361 8.03 are -.satisfied as
Exhibi A
T attested to_ by the faffdavrt in. iExhibit :".'B':, provided' pursuant to- Texas Health ,an 'Safety -Code
§3.61 ~804(b)(2~)(1D). sThts certificate shall+continue,m~effecf so long as the institutional controlrequ~iedby _
Texas Health and.SafetyfCode §3:61 `8065i►s maintained in-effect -
P acts fora ro Pert located m tthe fcerhfied .mumci ' al settin pr
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An, ersori addressorgterivirorimental im
y
4 designation';shall,complete anymecessary investigation and response action requirements in ;accordance
with ,exas'Healih-a d'Safety=Code;§3611 808,;m,copjunction with:the applicable Texas'Commission>on -
,Y- ;Environmental JQuality;en iroiimental rernediation :regulation, as_rnodified by Texas Health And'Safety
T
' `C6de;§361,808'-,
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LEGAL DESCRIPITION OF SUBJECT TRACT
STATE OF TEXAS
COUNTY OF DENTON
WHEREAS Jack Bell Construction Co., Inc. is the owner of all that certain tract or parcel of
land situated in the William Loving Survey Abstract #759, Denton County, Texas, said tract
being part of Lot 1 Block 1 Victoria Square, an addition to the City of Denton, Denton
County, Texas, as evidenced by the plat recorded thereof in Cabinet E, Page 240, P.RD.C.T.,
and being more fully described as follows:
COMMENCING at a'/2 inch CIRF at the Northwest corner of said Victoria Square Addition,
said point also being on the East right-of-way line of South Locust Street;
THENCE: South 89 degrees 36 minutes 10 seconds East a distance of 252.99 feet to a'/z inch
CIRF at the Northeast comer of said Victoria Square Addition, said point also being on the
West right-of-way line of Wainwright Street;
THENCE: South 00 degrees 02 minutes 50 seconds West, with the West right-of-way line of
Wainwright a distance of 150.00 feet to a set '/Z inch Steel Square Tubing with a plastic cap
marked Cox 4577 for comer;
THENCE: North 89 degrees 41 minutes 17 seconds West a distance of 105.60 feet to an X-
cut in concrete found "for comer for the PLACE OF BEGINNING;
THENCE: South, 00 degrees 06 minutes 35 seconds West a distance of 99.83 feet to a'/z inch
square tube found for corner;
THENCE: South 89 degrees 36 minutes 09 seconds East a distance of 49.92 feet to a set '/2
inch Steel Square Tubing with a plastic cap marked Cox 4577 for corner;
THENCE: South 00 degrees 02 minutes 50 seconds West a distance of 100:00 feet to a set'/z-
inch Steel Square Tubing with a plastic cap_marked Cox 4577 at the Southeast corner of said
Victoria' Square Addition, said point also being on the North right-of-way line of East Prairie
Street;
THENCE: North 89 degrees 36 minutes 09 seconds West with the North right-of-way line of
East Prairie Street a distance of 196.89 feet to a set 1/2 inch Steel Square Tubing with a plastic
cap marked Cox 4577 at the Southwest corner of said Victoria Square'Addition, said point
also being a the intersection of the North right-of-way line of East Prairie Street and the East
right-of-way line of Locust Street;
THENCE: North 00 degrees 00 minutes 13 seconds West with the East right-of-way line of
Locust Street a distance of 199.99 feet to a point;
THENCE: South 89 degrees 32 minutes 29 seconds East, crossing said Victoria Square
Addition, a distance of 147.25 feet to the POINT OF BEGINNING, and containing 0.79
acres of land.
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c) each retail public utility, as defined by Texas Water Code, §13.002, that owns or
operates a groundwater supply well located within five miles beyond the proposed
(F)Yes
FON
O NA4
MSD boundaries?
-3"Do not submit application.
4 NA only when no such municipality, private well owner, or retail public utility exists
MSD Information:
List all existing TCEQ and US Environmental Protection Agency registration, permit, identification numbers (e.g.,
SWR No:, VCP No., LPST ID No:, UIC Registration No:, PWS ID. No.), if any, that apply to the groundwater
contamination situation within the proposed MSD boundary. State "none" if none applicable.
Is the proposed designated groundwater contaminated in excess of an applicable
s
OYes
DO
use standard (i.e., 30 TAC 350, GWin9)?
potable water
Was:the groundwater contamination previously reported to the TCEQ?
- - - -
i
OYes, when?
~
J
-(!)No--
.(To support implementation of HB 3030, 786i Legislature.)
8 /20
/08
Is there a potable-use well within the boundary of the proposed MSD that uses the
(es6
(F)No
designated groundwater.as.source.water?
Is there a -potable-use *well within the boundary of the proposed MSD that uses a
deeper_groundwater zone for-the source water that is not properly.sealed off from
OYesfi
ONo
-the designated groundwater?
Is the applicant aware of any non-consumptive use of the groundwater or other
human health or ecological exposure pathways that are of concern? If yes,
OYes
(F)No
specify:
Has.each municipality and retail public utility identified in §361:8065„provided firm
'
(F)Yes
0106
ordinance or resolution in support of the application?
commitment to adopt an
Is a copy of.the.ordinance or restrictive covenant that restricts consumptive use
and appropriately restricts other uses of.-and coritacf'with'the designated
.
(F)Yes
ONo
with this application?
groundwater, and-any required-resolutions provided
s "Potable water" means water that is used for irrigating crops intended for human consumption, drinking,
showering, bathing, or cooking purposes [THSC §361.801(2)].
6-Do not submit an application.
I rmatively.state that (place an X in all applicable blanks):
✓ The MSD eligibility criteria of THSC §361.803 are satisfied.
True and accurate copies of all documents demonstrating"that the'MSD eligibility criteria provided-by-THSC~ _ - =
§361.803 have* been satisfied and are included with the application.
✓ .A.true.and accurate.copy.of a.legal.description of the proposed.MSD property is included with the application.
✓ Notice was provided.in accordance with THSC §361.805.
✓ A copy of an ordinance or restrictive covenant and any required resolutions are provided in this application or
will be provided befo a executiv director certifies this application.
/Z: 7
Applicant S1gna ur Date
Before metjOn IUQA` the undersigned authority, on this day person
Name of Notary
AC.IL Re LI and signed this Municipal Setting Designation Applic
Name of Applicant
Sworn, subscribed and signed before me in the County of
day of o o , this month of 1 20L
DEVON RAE RICHARD80N
My Commlawn Ejon
dune 17, 2019
TCEQ-20149 June 2007 2