2010-003
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ORDINANCE NO.-26-10-003-
AN ORDINANCE AMENDING ARTICLE X, ENTITLED "MUNICIPAL SETTING
DESIGNATIONS", OF CHAPTER 26, ENTITLED "UTILITIES", OF THE CODE OF
ORDINANCES OF THE CITY OF DENTON, TEXAS, REGARDING THE LOCAL RULES
ADOPTED BY THE CITY OF DENTON FOR MUNICIPAL SETTING DESIGNATIONS,
PROVIDING THE APPLICATION PROCESS FOR A MUNICIPAL SETTING
DESIGNATION, THE PROVISION OF NOTICE TO PERSONS WITHIN THE AFFECTED
COMMUNITY, THE DELETION OF INSURANCE REQUIREMENTS, THE PROHIBITION
OF THE USE OF GROUNDWATER IN A MUNICIPAL SETTING DESIGNATION, THE
FILING OF DEED RESTRICTIONS IN THE OFFICIAL PROPERTY RECORDS OF
DENTON COUNTY, TEXAS; PROVIDING FINDINGS; PROVIDING FOR A PENALTY
NOT TO EXCEED $2,000 FOR VIOLATIONS THEREOF; PROVIDING THAT A PENALTY
SHALL BE RECOVERABLE FOR EACH DAY A PROVISION OF THIS ORDINANCE IS
VIOLATED, AND EACH SUCH- VIOLATION SHALL BE A SEPARATE OFFENSE;
PROVIDING FOR A CIVIL FINE OF NOT TO EXCEED $1,000 PER DAY FOR
VIOLATIONS OF THIS ORDINANCE, TOGETHER WITH OTHER DESIGNATED LEGAL
AND EQUITABLE REMEDIES THAT ARE AVAILABLE TO THE CITY; PROVIDING FOR
A SEVERABILITY CLAUSE; PROVIDING FOR A SAVINGS CLAUSE, REPEALING ALL
ORDINANCES IN CONFLICT HEREWITH; PROVIDING AN OPEN MEETINGS CLAUSE;
PROVIDING FOR CITY COUNCIL APPROVAL THEREOF; PROVIDING FOR
PUBLICATION THEREOF; PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Denton, Texas is a home-rule municipality; and
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, due to limited quantity and low quality, there are areas of shallow
groundwater within the City of Denton and its extraterritorial jurisdiction that are not valuable as
potable water sources, and are therefore not utilized for potable purposes; and
WHEREAS, properties in the City of Denton are underlain with unusable groundwater
that may have become contaminated by historical on-site or off-site sources; and
WHEREAS, the use of Municipal Setting Designations within the City of Denton allows
for a state-evaluated corrective action process for groundwater that is directed toward protection
of human health and the environment balanced with the economic welfare of the citizens of the
city; and
sAour documents\ordinances\09\msd ordinance revised 123009.doc
WHEREAS, where public drinking water is available, the potable use of groundwater in
designated areas should be prohibited to protect public health and welfare when the quality of the
groundwater presents an actual or potential threat to human health; and
WHEREAS, pursuant to Ordinance No. 2008-150, the City Council of the City of
Denton, Texas enacted an ordinance controlling Municipal Setting Designations ("MSD
Ordinance") in the City of Denton, Texas; and
WHEREAS, certain requirements of the MSD Ordinance are in need of modification to
provide efficiency to the MSD process and to maintain and further the best interest of the public
health, safety and welfare of the citizens of Denton, Texas; and
WHEREAS, the City Council of the City of Denton, Texas has considered the matter and
deems it appropriate and in the best interest of the public and the City to amend the MSD ordinance;
NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The facts and the recitations contained and cited in the preamble hereof are
hereby found and determined to be true and correct and are incorporated herein by reference.
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 and TCEQ closure documentation for MSD Properties.
SECTION 3. Section 26-272, entitled "Use of Groundwater in MSD Areas Prohibited,"
Article X, Chapter 26 of the Denton Code of Ordinances, is hereby amended to read as follows:
Sec. 26-272. Use of Groundwater in MSD Areas Prohibited
(a) A person commits an offense if the person intentionally, knowingly, or with
criminal negligence uses groundwater in Designated Property as a potable or non-potable
water source.
(b) A person commits an offense if the person intentionally, knowingly, or with
criminal negligence uses groundwater in Designated Property for any purpose prohibited
as a condition of Council approval, as specified in Section 26-277(d).
SECTION 4. Section 26-273, entitled "Application for City Council Approval of MSD",
Article X, Chapter 26 of the Denton Code of Ordinances, is hereby amended to read as follows:
Sec. 26-273. Application for City Council Approval of MSD
(a) A person seeking City Council approval of a MSD for an area within the
corporate limits of the City of Denton shall apply in writing to the Planning Department
of the City of Denton, with the number and format of copies, as determined by the
Director.
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(b) An application shall contain:
(1) The applicant's name and address, and the name, address, daytime
telephone number, and email address of both the applicant's contact
person and the licensed professional who prepared the application;
(2) The location and legal description of the proposed outer boundaries of the
MSD area for which designation is sought;
(3) A statement as to whether a public drinking water supply system exists
that satisfies the requirements of Texas Health and Safety Code Chapter
341 and that supplies or is capable of supplying drinking water to the area
for which the MSD is sought, and property within one-half mile of the
area for which the MSD is sought;
(4) A description of the groundwater sought to be restricted, including the
identified chemicals of concern therein and the levels of contamination
known to the applicant, and the identified vertical and horizontal extent of
the contamination. If the applicant has not documented groundwater
contamination offsite that originates from the area for which an MSD is
sought, the application shall include a statement as to whether
contamination more likely than not exceeds residential assessment levels
offsite and the basis for that statement;
(5) Identification of the points of origin of the contamination, and
identification of the person (s) responsible for the contamination, to the
extent known;
(6) A listing of:
(a) All state-registered private water wells within five (5) miles
from the boundary of the area for which the designation is sought,
including a notation of those wells that are used for potable water
purposes (if known);
(b) Each retail public utility, as that term is defined in the
Texas Water Code, that owns or operates a groundwater supply
well located not more than five (5) miles from the area for which
the MSD is sought;
(c) Each municipality, other than the City of Denton, with a
boundary located not more than one-half (1/2) mile from the area
for which the MSD is sought; or that owns or operates a
groundwater supply well located not more than five (5) miles from
the area for which the MSD is sought; and
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(d) All owners of real property lying within 200 feet of the
subject property, as the ownership appears on the last approved
City tax roll.
(7) A site map, drawn to scale, including a metes and bounds description of
the proposed Designated Property, the boundary of the proposed MSD area, the
location of groundwater on the proposed MSD area, and the extent of
groundwater contamination to the limits that it has been defined. The map shall
include a statement by a professional land surveyor registered by the Texas Board
of Professional Surveying attesting to the accuracy of the metes and bounds
description;
(8) The location of all soil sampling points and groundwater monitoring wells;
(9) For each contaminant of concern found at the site, to the extent known,
provide a table displaying the following information
(a) the level of contamination, the ingestion protective concentration
level and non-ingestion protective concentration levels, all
expressed as mg/L or mg/kg, depending on sampling medium; and
(b) the critical protective concentration level as defined without the
municipal setting designation, highlighting any exceedances; and
(c) the critical protective concentration level as defined with the
municipal setting designation, highlighting any exceedances; and
(d) a digital file, in a format acceptable to the Director, that
summarizes this information.
(10) A statement as to whether contamination on and off the Designated
Property will exceed a residential assessment level as defined in the Texas Risk
Reduction Program, if known, and the basis for that statement;
(11) A description of any environmental regulatory actions that have been
taken within the last five years in conjunction with the Designated Property, to the
extent known;
(12) A listing of all existing TCEQ, U.S. Environmental Protection Agency
registrations, permits, and identification numbers that apply to the Designated
Property;
(13) A summary of any environmental site assessment reports filed with the
TCEQ regarding any site investigation or response actions that are planned,
ongoing, or completed related to this designated property;
(14) A statement as to whether the designated property has been submitted to
the Texas Voluntary Cleanup Program (Section 361.601 of the Texas Health and
Safety Code) or similar state or federal program, and a description of the
designated property's status in the program;
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(15) Any other information that the Director deems pertinent.
(c) The application shall be signed by an authorized representative of the applicant
and shall contain the following certification statement:
"I certify under penalty of law that this document and all attachments were prepared
under my direction or supervision in a manner designed to assure that qualified personnel
properly gather and evaluate the information submitted. Based on my inquiry of the
person or persons directly responsible for gathering the information, the information
submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am
aware that there are significant penalties for submitting false information, including the
possibility of fine and imprisonment for knowing violations."
(d) An application shall be accompanied by:
(1) An electronic file of the names and addresses of persons listed in
Subsection (b)(6) above, in a format acceptable to the Director and
compatible with City information systems; and
(2) A set of printed mailing labels with the names and addresses of persons
listed in subsection (b)(6) above; and
(3) A nonrefundable application fee in an amount set by City Council; and
(4) If an applicant desires to attempt to use the notification requirements of
this section to simultaneously address the local and State public
notification and public meeting requirements, the applicant must follow
the specifications outlined in the current version of the City of Denton
Municipal Setting Designation Supplementary Guidance Document. It is
the sole responsibility of the applicant to ensure that the language of the
public notice, as well as the notification process itself, meets the State
requirements.
(e) An applicant may withdraw its application only in writing by letter sent certified
mail, return receipt requested, to the Director, and shall forfeit the application fee. If the
Director has not issued public notice prior to the receipt of the withdrawal letter, the
applicant may- reapply at any time. If public notice has issued, a new application is
subject to the limitations of Section 26-278 below.
SECTION 5. Section 26-279, entitled "Additional Provisions, Enforcement and
Penalties", Article X, Chapter 26 of the Denton Code of Ordinances, is hereby amended to read
as follows:
Section 26-279 Additional Provisions, Enforcement, and Penalties
(a) A person who has received approval of a MSD from the City, shall, upon issuance
from the TCEQ, provide the Director with a copy of the certificate of completion or other
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documentation issued for the MSD area, showing that response actions, if required, have
been completed.
(b) The Applicant shall execute, deliver and file, no later than thirty (30) 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.
(c) A file-stamped and recorded copy of said deed restriction shall be delivered to the
City Attorney's office and the Director's office within three business days after the date
of filing. 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.
(d) A person commits an offense if they fail to provide the City Attorney and the
Director with the documentation required in this Section within the specified time frames.
(e) A person commits an offense if the person intentionally, knowingly, or with
criminal negligence uses groundwater in a Designated Property for a purpose prohibited
in the Municipal Setting Designation Ordinance. .
(f) Any person who violates any provision of this article shall, upon conviction, be
punished by a fine not to exceed two thousand dollars ($2,000.00). Each day that one or
more provisions in this article are violated shall be considered a separate offense.
(g) The city attorney is authorized to commence an action for appropriate legal or
equitable relief in a court of competent jurisdiction in addition to the penalty mentioned
in the above subsection (f). Such additional relief may include a civil fine of up to one
thousand dollars ($1,000.00) per day for violations of sections 26-278, and all other
damages, costs, remedies and legal processes to which the city may be entitled.
(h) This ordinance shall be and is hereby declared to be cumulative of all other
ordinances of the City of Denton, and this ordinance shall not operate to repeal or affect
any of such other ordinances except insofar as the provisions thereof might be
inconsistent or in conflict with the provisions of this ordinance, in which event such
conflicting provisions, if any, in such other ordinance or ordinances are hereby repealed.
(1) All of the regulations provided in this ordinance are hereby declared to -be
governmental and for the health, safety and welfare of the general public. Any member of
the City Council or any City official or employee charged with the enforcement of this
ordinance, acting for the City of Denton in the discharge of his/her duties, shall not
thereby render himself/herself personally liable; and he/she is hereby relieved from all
personal liability for any damage that might accrue to persons or property as a result of
any act required or permitted in the discharge of his/her said duties.
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SECTION 6. It is hereby declared to be the intention of the City Council of Denton,
Texas, that the phrases, clauses, sentences, paragraphs, and sections of this Ordinance are
severable, and if any phrase, clause, sentence, paragraph, or section of this Ordinance should be
declared unconstitutional, illegal or unenforceable by the valid judgment or decree of any court
of competent jurisdiction, such unconstitutionality, illegality or unenforceability shall not affect
any of the remaining phrases, clauses, sentences, paragraphs, or sections of this Ordinance, since
the same would have been enacted by the City Council without incorporation in this Ordinance
of such unconstitutional, illegal or unenforceable phrase, clause, sentence, paragraph, or section.
SECTION 7. All ordinances or parts of ordinances in force when the provisions of this
ordinance became effective which are inconsistent, or in conflict with the terms or provisions
contained in this ordinance are hereby repealed to the extent of any such conflict.
SECTION 8. This ordinance shall become effective fourteen (14) days from the date of its
passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published
twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within
ten (10) days of the date of its passage.
-PASSED AND APPROVED this the day of , 2010.
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rt y MARK A%BURROUGHS, ~ AYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By: d e.~
APP VED ~ S TO LEGAL FORM: i
ANITV BURGESS, CITY ATTORNEY
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By:
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