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ORDINANCE NO. 2008- ~h
AN ORDINANCE AMENDING CHAPTER 26 ENTITLED "UTILITIES" OF THE CODE OF
ORDINANCES OF THE CITY OF DENTON, TEXAS, BY THE ADDITION OF ARTICLE X
ENTITLED "MUNICIPAL SETTING DESIGNATIONS", REGARDING THE LOCAL
RULES ADOPTED BY THE CITY OF DENTON FOR MUNICIPAL SETTING t'
DESIGNATIONS; PROVIDING FINDINGS AND DEFINITIONS, PROVIDING FOR THE
PROHIBITION OF THE USE OF DESIGNATED GROUNDWATER IN A MUNICIPAL
SETTING DESIGNATION, PROVIDING FOR AN APPLICATION PROCESS FOR A
MUNICIPAL SETTING DESIGNATION, PROVIDING FOR PUBLIC MEETINGS AND
HEARINGS, PROVIDING FOR NOTICE TO PERSONS WITHIN THE AFFECTED
COMMUNITY, PROVIDING FOR LIMITATIONS ON REAPPLICATION, PROVIDING
FOR PROOF THAT RESPONSE ACTIONS HAVE BEEN COMPLETED ON A SITE,
PROVIDING FORA 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
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of human health and the environment balanced with the economic welfare of the citizens of the
city; and
WHEREAS, where public drinking water is available, the potable use of groundwater in
designated areas should be prohibited to protect public health and welfare when the quality of the
groundwater presents an actual or potential threat to human health; and
WHEREAS, due notice was given to the public of a public hearing for the purpose of
determining whether the City Council of the City of Denton, Texas should enact an Ordinance
controlling Municipal Setting Designations in the City 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 facilitate efforts to secure a
Municipal Setting Designation and TCEQ closure documentation from the TCEQ for certain
properties by passage of this 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. Chapter 26 of the Denton Code of Ordinances, Entitled "Utilities" is hereby
amended by adding and adopting Article X, entitled "Municipal Setting Designations", Sections 26-
271 through 26-279, which shall read as follows:
ARTICLE X. MUNICIPAL SETTING DESIGNATION (MSD)
See. 26-271. Definitions.
For the purposes of this article, the following terms, phrases, words, abbreviations and their
derivations shall have the meaning given herein. When not inconsistent with the context, words
used in the present tense include the future tense, words in the plural number include the singular
number, and words in the singular number include the plural number. The word "shall" is always
mandatory and not merely directory. Words not defined shall be given their common and
ordinary meaning.
Affected community means those persons entitled to notice as defined in 26-273(b)(6)
Authorized representative means, for purposes of signing an application, if the applicant is a
corporation, the president, secretary, treasurer, or a vice-president of the corporation in charge of
a principal business function, or any other person who performs similar policy or decision-
making functions for the corporation; if the applicant is a partnership or sole proprietorship, a
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general partner or proprietor, respectively; and if the applicant is a local government, the chief
executive officer or his authorized designee.
Chemical or contaminant of concern means any chemical that has the potential to adversely
affect ecological or human receptors due to its concentration, distribution, and mode of toxicity.
City Attorney means the City Attorney for the City of Denton, or the City Attorney's authorized
representative.
Designated Groundwater means groundwater that will be or is prohibited from use as potable
water, or for all uses, by a municipal setting designation ordinance.
Designated Property means the property that will be or is subject to a municipal setting
designation ordinance. The designated property may cover several platted lots or tracts of land.
Director means the Director of the Planning Department for the City of Denton, or the Director's
authorized representative.
Environmental risk assessment means the qualitative and quantitative evaluation performed in an
effort to define the risk posed to human health and/or the environment by the presence or
potential presence and/or use of pollutants.
Groundwater means water below the surface of the earth.
Ingestion Protective Concentration Level means the protective concentration level for human
ingestions of contaminants of concern established by the TCEQ under the Texas Risk Reduction
Program, determined as if there was no municipal setting designation.
Ingestion Protective Concentration Level Zone means the area where concentrations of
contaminants of concern from sources on or migrating through the designated property are
greater than the ingestion protection concentration level, determined as if there was no municipal
setting designation.
Municipal Setting Designation (MSD) means a designation as provided by Chapter 361,
Subchapter W, of the Texas Health and Safety Code, which authorizes the executive director of
the Texas Commission on Environmental Quality to certify municipal setting designations in
order to limit the scope of, or eliminate the need for, investigations or response actions
addressing contaminant impacts to groundwater which has been restricted from use by ordinance
or restrictive covenant.
Municipal Setting Designation Ordinance means an ordinance adopted pursuant to this Article.
Non-Ingestion Protective Concentration Level means the protective concentration level for
dermal contact or inhalation for contaminants of concern established by the TCEQ under the
Texas Risk Reduction Program.
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Non-Ingestion Protective Concentration Level Exceedance Zone means the area where
concentrations of contaminants of concern from sources on or migrating from or through the
designated .property are greater than non-ingestion protection concentration levels for
contaminants of concern established by the TCEQ under the Texas Risk Reduction Program.
Potable water means water that is used for irrigating crops intended for human consumption, as
well as water that is used for drinking, showering, bathing, or cooking purposes.
Protective Concentration Level means the lowest concentration level for a contaminant of
concern within a source medium determined from all applicable exposure pathways and as
defined in the Texas Risk Reduction Program.
Response Action means the control, decontamination, or removal from the environment of a
contaminant or hazardous substance pursuant to Subchapter W, "Municipal Setting
Designation," of Chapter 361, "Solid Waste Disposal Act" of the Texas Health and Safety Code.
TCEQ means the Texas Commission on Environmental Quality.
TCEQ Application means the application submitted to the TCEQ for certification of a municipal
setting designation.
To the Extent Known means information known by an applicant or applicant's agent after review
of all public and private records and other information sources available in the exercise of due
diligence.
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 26-276(d)(3).
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.
(b) An application shall contain:
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(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, which
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 applies 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
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Safety Code) or similar state or federal program, and a description of the
designated property's status in the program;
(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;
(3) A nonrefundable application fee in an amount set by City Council.
(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 26-277 below.
Sec. 26-274. Staff Review
(a) For purposes of the times stated in this ordinance, an application is deemed to
have been received on the date that the application was actually received by the Director,
as indicated by the file date stamped on the application by the Planning Department.
(b) The application for a MSD shall be forwarded to the Development Review
Committee (DRC) for staff review. The purpose of the review is to determine whether the
application is complete, and whether any current or future City property or other interests
have the potential to be impacted by the proposed MSD. City staff shall not conduct an
environmental risk assessment of the application.
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(c) If the Director, in his or her sole discretion, determines that it is likely that a
source of a contaminant of concern originated on the designated property, and that the
ingestion or non-ingestion protective concentration level exceedance zone for that
contaminant of concern extends to the public right-of-way adjacent to the designated'
property, the Director may recommend that the Municipal Setting Designation include a
condition that the public right-of way adjacent to the property be included, at no
additional cost to the City, in the TCEQ application for the MSD.
(d) If the Director determines that the application is incomplete or insufficient, the
application will be returned to the applicant, noting the deficiencies in writing. The
applicant shall have thirty (30) days from the date of the deficiency letter to correct the
deficiencies and resubmit the application. If the applicant fails to submit a corrected
application within the allotted time, the application shall be deemed to be withdrawn and
the application fee forfeited.
(e) If the Director determines that the application is complete, a public meeting and a
public hearing will be scheduled. The public meeting must be held prior to the public
hearing.
(1) A public meeting will be scheduled approximately forty-five (45) days
following the day the application was received; and
(2) A public hearing of the City Council will be scheduled approximately
thirty (30) days following the public meeting.
Sec. 26-275. Notice of Public Meeting
(a) Notice of the public meeting for an MSD application must include the date, time and
location of the public meeting, the identity of the applicant, the location and legal
description of the Designated Property, the purpose of the MSD, the type of
contamination identified in the groundwater of the area for which the MSD is sought, and
a statement that a copy of the application is available for public viewing at the City
Secretary's Office Notice will be made as follows:
(1) The Director will publish notice of a public meeting for a proposed MSD
in the official newspaper of the City, or in a newspaper of general circulation, not
less than fifteen (15) days before the public meeting;
(2) The Director will provide written notice of a public meeting for a
proposed MSD, not less than fifteen (15) days before the date of the public
meeting by properly addressed and regular postage paid, in the United States mail.
Notice will be mailed to:
(a) The applicant;
(b) Those on the list provided by applicant pursuant to Section 26-
273(b)(6);
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(b) The Applicant is required to post at least one sign upon the area for which a MSD
has been requested. Posting shall be in the same manner as zoning amendments. The
sign(s) must state that a MSD has been requested for the area and that additional
information can be acquired by telephoning the number listed thereon or visiting the web
site address listed thereon. The erection and/or the continued maintenance of any such
sign shall not be deemed a condition precedent to the holding of any public meeting or
public hearing or to any official action concerning the MSD application.
Section 26-276 Public meeting
(a) The purpose of a public meeting is for the applicant to present information to the
affected community about the MSD process in general, the application specific to the
property for which the MSD is being sought, and to obtain input from the affected
community prior to a formal action by the City Council.
(b) The applicant or its representative must appear at the public meeting. If the
applicant fails to appear at the public meeting either in person or by representative, the
application shall be deemed withdrawn and the application fee forfeited.
(c) The Director will facilitate the meeting, giving the applicant or its representative
the opportunity to present its reasons for requesting a MSD, and giving members of the
affected community the opportunity to ask the applicant questions or make oral
comments on the application.
Section 26-277 City Council Public Hearing
(a) Prior to the public hearing, the Director will provide the City Council a copy of
the application, and a written report summarizing the request for the MSD approval, any
staff comments of concerns, and minutes of the public meeting.
(b) The applicant or its representative must appear at the public hearing and present
the request for a MSD approval. If the applicant fails to appear at the public hearing, the
application shall be deemed withdrawn and the application fee forfeited.
(c) Persons wishing to speak either in favor of or against the application will be
provided the opportunity in accordance with City Council guidelines for public hearings.
(d) Following the conclusion of the public hearing, the City Council may approve,
conditionally approve, disapprove, or postpone action on the application to a future date.
If approving an application, the City Council shall:
(1) Approve a municipal setting designation ordinance supporting the
application to be presented to the TCEQ, and prohibiting the use of
designated groundwater from beneath the Designated Property; and
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(2) Include in the ordinance other reasonable restrictions, including, but not
limited to specification of underground construction materials to be used
in the Designated Property.
(e) City Council approval of an application shall not be deemed to waive the City's
right to comment on a MSD application that has been filed with the Executive Director of
the TCEQ.
Section 26-278 Limitation on Reapplication
If after public hearing the City Council disapproves an application, or if the applicant has
withdrawn its application after public notice has been issued, no new MSD applications for the
proposed Designated Property shall be accepted by the City or scheduled for a public hearing by
the City Council within a period of twelve (12) months of the date of disapproval or withdrawal.
Section 26.279 Additional Provisions, Enforcement, and Penalties
(a) The applicant shall provide, or cause to be provided, insurance with coverage for
environmental impairments (or seepage and pollution) associated with the cleanup of the
property for which the MSD is sought. Evidence of insurance coverage meeting all
requirements of this section (26.279) shall be provided during the MSD application
process with the City. The required insurance policy shall be enacted on the same date
the applicant files the MSD application with the TCEQ, and the applicant shall provide
certifications of insurance to the Director at this time. Failure to enact the insurance
policy as requested shall result in the City contacting the TCEQ and withdrawing support
for the MSD.
1. The policy shall be endorsed to read "this policy will not be cancelled or
non-renewed without 30 days written notice to the City, except when the
policy is being cancelled for non-payment of premium, in which case 10
days advanced written notice is required".
2. Policy coverage shall apply to all sudden and non-sudden pollution
conditions resulting from the escape or release of vapors, fumes, acids,
alkalis, toxic chemicals, liquids or gases, waste materials or other irritants,
contaminants, or pollutants resulting from the MSD property.
3. Policy coverage shall be a minimum Combined Single Limit of
$1,000,000 per occurrence of environmental impairment(s) (or seepage
and pollution), and shall be maintained until completion documentation is
issued by the TCEQ and provided to the City as specified in 26.279(b).
(b) 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
documentation issued for the MSD area, showing that response actions, if required, have
been completed.
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(c) 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: (i) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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 plan are violated shall be considered a separate offense.
(h) 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.
(i) 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.
0) 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 4. In the event any one or more provisions of this ordinance are held by a
court or an administrative agency of competent jurisdiction to be illegal, invalid or unenforceable
in any respect, the City shall make a good faith effort to remedy the defect, if any, to fulfill the
purpose and intent of this ordinance.
SECTION 5. 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 6. 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 ) Igth
,da ,Qf QAIzqet~ _'2008.
MARK A 'BURROUGI, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:~~J~/(C
APPROVED AS TO LEGAL FO
EDWIN M. SNYI)E13~CITY ORNEY
BY:
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