Ord 37-2019 MSD Ordinance for 2400 Burkburnett Rd 9/3/2019
Ordinance No. 37-2019
Ordinance Authorizing the Acceptance of Deed Restrictions
Prohibiting the use of Designated Groundwater from Beneath the
Property Located at 2400 Burkburnett Road, Wichita Falls, Texas,
76306, 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 of this Ordinance
WHEREAS, Chapter 361, Subchapter W of the Texas Solid Waste Disposal Act
properties upon receipt and approval of a properly submitted application to 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, the applicant is required to provide documentation that the property for which
designation is sought is 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; and
WHEREAS, the Wichita Falls Chamber of Commerce & Industry (hereinafter,
Designation for the property whose street address is 2400 Burkburnett Road, Wichita
hin the city
limits of the City of Wichita Falls; and
WHEREAS, applicant has certified to the City of Wichita Falls that:
(1) The purpose of such application is to assist applicant in obtaining from TCEQ
r completion of any remedial
requirements and appropriate review by TCEQ, that no further environmental cleanup or
(2) As a part of such application, applicant has submitted a statement regarding the type
of known contamination in the groundwater beneath the MSD property and has identified
above Tier 1 groundwater ingestion
protective concentration levels as stated in 30 Texas Administrative Code Chapter 350
(3) The designated property has three (3) chemicals of concern in the groundwater above
the TCEQ and Environmental Protection Agency regulatory limits that include
Trichloroethene (TCE), cis1,2-Dichloroethene (cis-1,2-DCE), and Vinyl Chloride which
are soluble in water.
(4) Notice of the application for this ordinance was published in a newspaper of general
circulation in the community, as set forth in and as evidenced by Exhibit "B", attached
hereto and made a part hereof; and
(5) A public meeting was held at 6:00 p.m. on Monday, August 19, 2019 at the City Council
th
Chamber Conference Room, 1300 7 Street, Wichita Falls, Texas 76301, wherein
interested parties were afforded the opportunity to ask questions and to voice issues or
concerns to the applicant; and
WHEREAS, the executive director of TCEQ has determined, pursuant to Section
361.807(c) of the MSD Legislation, that the applicant has submitted a complete
application, excepting only the ordinance being herein considered, and has issued a letter
to the applicant stating that a Municipal Setting Designation will be certified for the MSD
property on submission of a copy of this ordinance after approval by the City Council; and
WHEREAS, applicant has continuing obligations to satisfy Section 361.808 of the
MSD legislation and applicable TCEQ regulations concerning groundwater contamination
investigation and response actions; and
WHEREAS, all information requested by representatives of the City of Wichita
Falls has been furnished to such representatives by applicant, and the City
representatives have reviewed such information and applicant has satisfied all
requirements imposed upon applicant by the City of Wichita Falls; and
WHEREAS, applicant strongly desires to secure a Municipal Setting Designation
for the MSD property, as well as TCEQ closure documentation, and has requested the
City of Wichita Falls 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 Wichita Falls is of the opinion that it is
Municipal Setting Designation and TCEQ closure documentation from the TCEQ by
passage of the ordinance set forth hereinafter.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF WICHITA FALLS:
SECTION 1. That all of the declarations and findings contained in the preambles
of this ordinance are made a part hereof and shall be fully effective as a part of the
ordained subject matter of this ordinance.
SECTION 2. That the City Council finds that it is in the best interest and welfare of
property whose street address is 2400 Burkburnett Road, Wichita Falls, Texas 76306, the
leg
SECTION 3.
Designation for the MSD property and the issuance of closure documentation by TCEQ,
applicant shall execute, deliver and file, no later than 10 days from the effective date
hereof, in the official real property records of Wichita 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 analysis; and (ii) wells used for the purpose
of remediation of soil or groundwater contamination. The deed restriction shall also
include that all underground construction material shall meet design requirements for the
level and type of contamination in the soil and groundwater and material and construction
method shall be approved by a licensed professional engineer in the State of Texas; and
all contaminated soil or groundwater removed from the designated site shall be disposed
of properly.
SECTION 4. That a file-stamped copy of said deed restriction shall be delivered to
the City Attorney within three business days after the date of filing. The deed restriction
shall run with the land and be binding on and enforceable as to any and all subsequent
owners of the MSD property. The deed restriction shall be enforceable by the City of
Wichita Falls and may be amended or terminated only with the prior written consent of
the City of Wichita Falls after at least 30 days prior written notice to TCEQ of any pending
amendment or termination.
SECTION 5. That failure to execute, record and deliver the deed restriction in
accordance with this ordinance within the time limits set forth in Sections 3 and 4 hereof
shall render this ordinance null and void, and of no further force or effect.
SECTION 6. That the applicant shall submit, upon receipt of the Municipal Setting
Designation certificate from TCEQ respecting the MSD property, a true and correct copy
of same to the Director of Public Works. The applicant shall also submit, upon receipt of
TCEQ closure documentation from TCEQ respecting the MSD property, a true and
correct copy of such documentation to the Director of Public Works.
SECTION 7. That failure of the applicant to diligently pursue and obtain from
TCEQ, within 90 days from the effective date of this ordinance: (1) a Municipal Setting
Designation certificate for the MSD property; and (2) TCEQ closure documentation for
the MSD property, shall render this ordinance voidable by the City Council following 30
days advance written notice to TCEQ and the applicant.
SECTION 8. That this ordinance shall take effect immediately from and after its
passage and publication in accordance with the provisions of the Charter of the City of
Wichita Falls, and it is accordingly so ordained.
PASSED AND APPROVED this, the 3rd day of September, 2019
_______________________________
MAYOR
ATTEST:
_____________________________
City Clerk
Exhibit A: Site and Legal Description
Exhibit B