HomeMy WebLinkAboutOrdinance - 2006-O0133 - Amending Chapter 28 By Adding Sects 28-171, 28-180; Public Hearing Designations - 12/19/2006First lleading
December 19~ 2006
Item No. 5.9
ORDINANCE NO. 2006-Q0133
Second Reading
January 12, 2007
!tea No. 5.1
AN ORDINANCE AMENDING CHAPTER 28 OF THE CODE OF
ORDINANCES OF THE CITY OF LUBBOCK, TEXAS BY AMENDING
ARTICLE V, BY ADDING SECTIONS 28-171 THROUGH SECTION 28-180 OF
THE CODE OF ORDINANCES OF THE CITY OF LUBBOCK ESTABLISING
THE PROCEDURE FOR MUNICIPAL SETTING DESIGNATIONS;
PROVIDING FOR A PUBLIC HEARING; PROVIDING FOR A PENALTY;
PROVIDING A SAVINGS CLAUSE AND PROVIDING FOR PUBLICATION.
WHEREAS, many commercial and industrial properties in the corporate limits of
the City of Lubbock and its extraterritorial jurisdiction are underlain with groundwater
that has become contaminated by historical on-site or off-site sources;
WHEREAS, the use of municipal setting designations within the corporate limits
of the City of Lubbock and its extraterritorial jurisdiction allows for a state-evaluated
corrective action process for groundwater that is directed toward protection of human
health and the environment balanced with the economic welfare of the citizens of the
City;
WHEREAS, where public drinking water is available, the potable use of
groundwater in designated areas should be prohibited to protect public health, safety and
welfare when the quality of the groundwater presents an actual or potential threat to
human health;
WHEREAS, public input is a valuable resource for every local government and a
public hearing should be required when determining which areas should be prohibited
from using groundwater for potable use within the corporate limits of the City of
Lubbock and its extraterritorial jurisdiction; and
WHEREAS, the City Council of the City of Lubbock deems it to be in the best
interest of the public, health and safety of the citizens of the City of Lubbock to establish
procedures for designating certain areas within the corporate limits of the City of
Lubbock and within the extraterritorial jurisdiction of the City of Lubbock with
municipal settings designations; NOW THEREFORE:
SECTION 1: THAT Article V of Chapter 28 of the Code of Ordinances, City of
Lubbock, Texas, is hereby amended by adding sections 28-171 to 28-180 that shall read
as follows:
Sec. 28.171. City Council Findings.
The City Council of the City of Lubbock has found and does fmd that:
(1) Many commercial and industrial properties in the corporate limits of the City
of Lubbock and its extraterritorial jurisdiction are underlain with groundwater
that has become contaminated by historical on-site or off-site sources;
(2) The use of municipal setting designations within the corporate limits of the
City of Lubbock and its extraterritorial jurisdiction allows for a state-
evaluated corrective action process for groundwater that is directed toward
protection of human health and the environment balanced with the economic
welfare of the citizens of the City;
(3) Where public drinking water is available, the potable use of groundwater in
designated areas should be prohibited to protect public health, safety and
welfare when the quality of the groundwater presents an actual or potential
threat to human health; and
(4) Public input is a valuable resource for every local government and a public
hearing should be required when determining which areas should be
prohibited from using groundwater for potable use within the corporate limits
of the City of Lubbock and its extraterritorial jurisdiction.
Sec. 28-1 72. Definitions.
(1) Affected community means those persons entitled to notice in section 28-174
(2)(g) below.
(2) Authorized representative means, for purposes of signing an application, if
the applicant is a corporation, the president, secretary, treasurer, or a vice-
president of the corporation in charge of a principal business function, or any
other person who performs similar policy or decision-making functions for the
corporation; if the applicant is a partnership or sole proprietorship, a general
partner or proprietor, respectively; and if the applicant is a local government,
the chief executive officer or his authorized designee.
(3) Chemical of concern means any chemical that has the potential to adversely
affect ecological or human receptors due to its concentration, distribution, and
mode of toxicity.
(4) Commission means the Texas Commission on Environmental Quality or any
successor agency delegated the authority and responsibilities of the Texas
Commission on Environmental Quality
(5) Director means the Director of Environmental Compliance or the Director's
authorized designee.
(6) 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.
(7) Groundwater means water below the surface of the earth.
(8) Municipal setting designation (MSD) means a designation as provided by
Chapter 361, Subchapter W, of the Texas Health and Safety Code, which
authorizes the executive director of the Commission to certify mWlicipal
setting designations in order to limit the scope of or eliminate the need for
investigation of or response actions addressing contaminant impacts to
grom1dwater that has been restricted from use as potable water by ordinance
or restrictive covenant.
(9) Potable water means water that is used for irrigating crops intended for
human consumption, drinking, showering, bathing, or cooking purposes.
Sec. 28-173. Use of groundwater as a potable water source in municipal setting
designation probibited.
A person commits an offense if the person intentionally, knowingly, or with criminal
negligence uses groundwater in a municipal setting designation as a potable water source
or for a purpose prohibited in the ordinance creating that municipal setting designation.
Sec. 28-17 4. Application for City Council approval of municipal setting designation.
(1) A person, including the City of Lubbock, seeking City Council approval of a
municipal setting designation (MSD) for property within the corporate limits
of the City of Lubbock, or within its extraterritorial jurisdiction, shall file six
(6) copies of an application with the City secretary. An application may be
filed in person, by United States mail, or by a document delivery service.
(2) An application shall be on a form provided by the Director, and shall contain:
a. Applicant's name and address, and the name, address, daytime telephone number,
and email address of a contact person;
b. The location and legal description of the proposed outer boundaries of the MSD;
c. A statement as to whether applicant has filed an application with the executive
director ofthe Commission for an MSD for the property;
d. A statement as to whether a public drinking water supply system exists that
satisfies the requirements ofTexas Health and Safety Code Chapter 341 and that
supplies or is capable of supplying drinking water to the property for which the
MSD is sought, and property within one-half ( 1/2) mile of the property for
which the MSD is sought;
e. A description of the groundwater sought to be restricted, including the identified
chemicals of concern therein and the levels of contamination known to applicant,
and the identified vertical and horizontal area of the contamination. If applicant
has not documented groundwater contamination offsite that originates from the
property for which an MSD is sought, the application shall include a statement as
to whether contamination more likely than not exceeds a non-MSD
residential assessment level offsite and the basis for that statement;
f. Identification of the person(s) responsible for the contamination of the
groundwater, ifknown;
g. A listing of:
(i) All owners of real property lying within one-half ( 1/2) mile of the
subject property, as the ownership appears on the last approved City
tax roll;
{ii) All state-registered private water wells within five (5) miles from the
boundary of the property for which the designation is sought,
including a notation of those wells that are used for potable water
purposes (if known), and a statement as to whether applicant has
provided the owners with notice as provided in Texas Health and
Safety Code Section 361.805;
(iii)Of each retail public utility that owns or operates a groundwater
supply well located not more than five (5) miles from the property for
which the MSD is sought, and a statement as to whether applicant has
provided the utilities with notice as provided in Texas Health and
Safety Code Section 361.805; and
(iv)Each municipality, other than the City of Lubbock, with a boundary
located not more than one-half (112) mile from the property for which
the MSD is sought; or that owns or operates a groundwater supply well
located not more than five ( 5) miles from the property for which the
MSD is sought; and a statement as to whether applicant has provided
the municipalities with notice as provided in Texas Health and Safety
Code Section 361.805;
h. A copy of the application to the executive director of the Commission, if
filed;
1. A site map, drawn to scale, including a metes and bounds description of
the property, the boundary of the proposed MSD, the location and depth of
groundwater on the property, the depth interval of contaminated
groundwater and the extent of groundwater contamination to the limits
that it has been defined. The map shall include a statement by a
professional land surveyor registered by the Texas Board of Professional
Surveying attesting to the accuracy of the metes and bounds property ·
description; and
J. Any other information that the Director deems pertinent.
(3) 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
pers01mel 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 fme and imprisonment for knowing
violations. 11
( 4) An application shall be accompanied by:
a. A set of printed mailing labels with the names and addresses of persons
listed in subsection (2)(g) above;
b. An electronic file of the names and addresses of persons listed in
subsection (2)(g) above, in a format acceptable to the Director and
compatible with City information systems; and
c. An application fee in the amount of $2,000.
(5) An applicant may withdraw its application in writing by letter sent certified
mail, return receipt requested, to the Director, and shall forfeit the application
fee. If the Director has not issued public notice prior to the receipt of the
withdrawal letter, the applicant may reapply at any time. If public notice has
issued, a new application is subject to the limitations of section 29-179 below.
Sec. 28-175. Staff review.
( 1) Upon receiving an application for an MSD approval, the City Secretary will
distribute a copy to the Director, the City Attorney's office, the City
Manager's office, the City's water department, the City's plarming department
and the engineering department for staff review. The purpose of the review is
to determine whether the application is complete, and whether any current or
future City property or other interests have the potential to be impacted by the
proposed MSD. City staff shall not be tasked with conducting an
environmental assessment of the application.
(2) City staff must send a written report to the Director within ten (10) calendar
days of receiving the application, noting any discrepancies in the application,
and advising of any City interests that may potentially be impacted by the
proposed MSD.
Sec. 28-176. Director action following application review.
(1) Following staff review, if the Director determines that the application is
complete, he will schedule a public hearing. A public hearing will be
scheduled at a time no later than sixty (60) days following the day the
application was received by the City.
(2) The date that an application is deemed to have been received by the City is the
date that the application was received by the City Secretary, as indicated by
the file date stamped on the application package by the City Secretary.
(3) If the Director determines that the application is incomplete, he will return the
application to applicant, noting the deficiencies in writing. The applicant shall
have 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.
Sec. 28-177. Notice of public bearing.
(1) Notice of the public hearing on an MSD application may be combined and
must include the date, time and location of the public hearing, the identity of
the applicant, the location and legal description of the property for which the
MSD is sought, the purpose of the MSD, the type of contamination identified
in the groundwater of the property for which the MSD is sought, and a
statement that a copy of the application is available for public viewing at the
City Secretary's office. Notice will be made as follows:
a. The Director will provide published notice of a public hearing for a
proposed MSD by means of a legal advertisement appearing in the official
newspaper of the City, or a paper of general circulation, not less than
fifteen (15) days before the public meeting;
b. The Director will provide posted notice of a public hearing by requesting
that the City secretary post the notice at city hall, in a place readily
accessible to the general public at all times, not less than fifteen (15) days
before the public meeting; and
c. The Director will serve written notice of a public hearing for a proposed
MSD not less than fifteen (15) days before the date set for the public
meeting. Such notice shall be deemed served when it is deposited,
properly addressed and regular postage paid, in the United States mail.
Notice will be served to:
(i) The applicant;
(ii) The list provided by applicant of owners of real property lying within
one-half (112) mile of the subject property, as the ownership appears
on the last approved city tax roll;
(iii)The list provided by applicant of persons who own private registered
water wells within five (5) miles of the subject property;
(iv)The list provided by applicant of each retail public utility that owns or
operates a groundwater supply well located not more than five (5)
miles from the property for which the MSD is sought; and
(v) The list provided by applicant of each municipality with a boundary
located not more than one-half ( 112) mile from the property for which
the MSD is sought or that owns or operates a groundwater supply well
located not more than five ( 5) miles from the property for which the
MSD is sought.
(2) The Director will direct the erection of at least one (1) sign upon the property
for which an MSD has been requested. Where possible such sign or signs
must be located in a conspicuous place or places upon such property at a point
or points nearest any right-of-way, street, roadway or public thoroughfare
adjacent to such property. Such sign(s) must be so erected not less than fifteen
(15) days before the date set for the public meeting. Any such sign(s) will be
removed subsequent to final action by the City Council on the MSD
application. The sign(s) must state that an MSD has been requested for the site
and that additional information can be acquired by telephoning the number
listed thereon or visiting the web site address listed thereon. The erection
and/or the continued maintenance of any such sign shall not be deemed a
condition precedent to the holding of any public hearing or to any official
action concerning the MSD application.
Sec. 28-178. Conduct of public hearing.
(1) Prior to the hearing, the Director will provide the City Council with a written
report summarizing the request for the MSD approval, including any concerns
raised by the reviewing departments, and will attach a copy of the application
to the report.
(2) The applicant or applicant•s representative must appear at the hearing and
present the request for an MSD approval. If the applicant fails to appear at the
hearing either in person or by representative, the application shall be deemed
withdrawn and the application fee forfeited.
(3) Persons wishing to speak either in favor of or against the application will be
provided the opportunity in accordance with City Council rules or guidelines
for public hearings.
(4) Following the conclusion of the public hearing, the City Council may
deliberate the matter of the application, and then may either:
a. Vote to approve or disapprove the application; or
b. Postpone action on the application to a future date.
(5) In order to approve an application, the City Council must:
a. Adopt a resolution supporting the application to the Texas Commission on
Envirorunental Quality; and
b. Enact an ordinance prohibiting the potable use of designated groundwater
from beneath the property and restricting the non-potable use of
groundwater from beneath the property except for sampling and
remediation purposes unless prior consent has been granted by the City for
the non-potable use of the groundwater. The ordinance must include a
metes and bounds description of the property to which the ordinance
applies; a listing of the contaminants; and a statement that the ordinance is
necessary because the contaminant concentrations exceed potable water
standards.
(6) In the ordinance enacted pursuant to subsection (5)(b) above, City Council
may place other reasonable restrictions on the use of designated groundwater
from beneath the property.
(7) City Council approval of an application shall not be deemed to waive the
City's right to comment on an MSD application that has been filed with the
Executive Director of the Texas Commission on Envirorunental Quality as
provided by Texas Health and Safety Code Section 361.805.
(8) In the event the City Council desires to repeal any ordinance granted herein,
City staff shall provide notice of such repeal to the Commission at least sixty (60)
days prior to the effective date of such repeal.
Sec. 28-179. 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 issued, no new MSD applications for the
property shall be accepted by the City or scheduled for a hearing by the City Council
within a period of twelve (12) months of the date of disapproval or withdrawal.
Sec. 28-180. Additional requirements.
(1) A person who has received approval of an MSD from the City, shall, upon
issuance from the Commission, provide the Director with a copy of the
certificate of completion or other documentation issued for the property,
showing that response actions have been completed.
(2) A person commits an offense if they fail to provide the Director with the
documentation required in subsection (a) above, within thirty (30) days of its
issuance by the Commission.
SECTION 2: THAT the City Council finds and declares that sufficient written
notice of the date, hour, place and subject of this meeting of the Council was posted at a
designated place convenient to the public at the City Hall for the time required by law
preceding this meeting, that such place of posting was readily accessible at all times to
the general public, and that all of the foregoing was done as required by law at all times
during which this Ordinance and the subject matter thereof has been discussed,
considered and formally acted upon.
The City Council further ratifies, approves and confirms such written notice and
the contents of posting thereof.
SECTION 3: THAT should any paragraph, sentence, clause, phrase, or word of
this Ordinance be declared unconstitutional or invalid for any reason, the remainder of
this Ordinance shall not be affected thereby.
SECTION 4: THAT the City Secretary is hereby authorized and directed to
cause publication of the descriptive caption of this Ordinance as an alternative method of
publication provided by law.
AND IT IS SO ORDERED
Passed by the City Council on the flrst reading on this 19th day of December , 2006.
Passed by the City Council on the second reading on this 12th day of January , 2007. ~~ DA~;MAYOR
ATTEST:
R~mcy
APPROVED AS TO CONTENT: r-
Dan De~n, Director of Environmental Compliance
APPROVED AS TO FORM:
Matthew L. Wade, Natural Resources City Attorney
as/CCOOCSIMunicipal Settings Res.
December 8, 2006