Ord 22-2015 5/5/2015Ordinance No. _22-2015_
Ordinance authorizing the acceptance of deed restrictions
prohibiting the use of Designated Groundwater from beneath the
property located at 1011 Vermont Street, 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
WHEREAS, Chapter 361, Subchapter W of the Texas Solid Waste Disposal Act
(the “MSD legislation”) authorizes the TCEQ to certify Municipal Setting Designations
for properties upon receipt and approval of a properly submitted application to TCEQ;
and,
WHEREAS, the Texas legislature, in enacting the MSD legislation, f ound 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 f or 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 Peerless Manufacturing Company (hereinafter, “Applicant”) has
submitted an application for certification of a Municipal Setting Designation for the
property whose street address is 1011 Vermont Street, Wichita Falls, Texas 76306, the
legal description of which is set forth in Exhibit “A” attached hereto and made a part
hereof (the “MSD property”), said property being located within the city limits of the Cit y
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
documents demonstrating TCEQ’s determination, after completion of any remedial
requirements and appropriate review by TCEQ, that no further environmental cleanup or
restoration is required by TCEQ with respect to the MSD property (“TCEQ closure
documentation”); and,
(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 that shallow groundwater (less than 50 feet below ground surface)
(“designated groundwater”) contains chemicals of concern above Tier 1 groundwater
ingestion protective concentration levels as stated in 30 Texas Administrative Code
Chapter 350 (“Texas Risk Reduction Program” or “TRRP”); and,
(3) The designated property has six (6) chemicals of concern in the groundwater
above the TCEQ and Environmental Protection Agency regulatory limits that include
arsenic, benzene, tetracholoethene, trichloroethene (TCE), cis1,2-dichloroethene (cis-
1,2-DCE), and vinyl chloride, which are soluble in water; and,
(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 Tu esday, March 31, 2015 at the
City Council Chambers, 1300 7th 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 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 documentati on, 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
in the best interest of the public and the City to facilitate Applicant’s efforts to secure a
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, THAT:
SECTION 1. 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. The City Council finds that it is in the best interest and welfare of the
public to facilitate TCEQ’s certification of a Municipal Setting Designation for the
property whose street address is 1011 Vermont Street, Wichita Falls, Texas 76301, the
legal description of which is set forth in Exhibit “A ,” attached hereto and made a part
hereof (the “MSD property”), as well as TCEQ closure documentation.
SECTION 3. To facilitate TCEQ’s certification of a Municipal Setting 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 potable purpose . 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. 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 wi th 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. 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. The Applicant shall submit, upon receipt of the Municipal Setting
Designation certificate from TCEQ respecting the MSD property, a true and correc t 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. 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. 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 5th day of May, 2015.
_______________________________
MAYOR
ATTEST:
_____________________________
City Clerk
Exhibit A: Site and Legal Description
The legal description of the designated property at 1011 Vermont Street in Wichita Falls
is as follows:
Lot 1-A, Block 3-A, a Replat of Lots 1-12, Block 3; and Lots 1-12, Block 4,
SCOTLAND ADDITION, an Addition to the City of Wichita Falls, Wichita County,
Texas, according to the Replat recorded in Vol. 24, Page 200, Wichita County
Plat Records.
GPS Coordinates:
Coordinates of MSD Boundary Vertices
X Y
3754103.76 545128.84
3754023.64 545513.16
3753955.14 545513.55
3753962.49 545125.36
NOTE: Coordinates provided in Universal Transverse Mercator projection, Zone 14 North (meters), North American Datum 1983
Exhibit B: Public Hearing Notice
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
MUNICIPAL SETTINGS DESIGNATION CERTIFICATE
As provided for in §361.807, Subchapter W, Texas Health and Safety Code (Solid Waste Disposal Act):
I, Beth Seaton, Director, Remediation Division, TCEQ, certify the Municipal Setting Designation (MSD)
for MSD No. 292, in the City of Wichita Falls, for the tract of land described in Exhibit "A ". The eligibility
requirements of Texas Health and Safety Code §361.803 are satisfied as attested to by the affidavit in
Exhibit "B ", provided pursuant to Texas Health and Safety Code §361.804(b)(2)(D). This certificate shall
continue in effect so long as the ordinance or restrictive covenant required by Texas Health and Safety
Code §361.8o65 remains in effect.
Any person addressing environmental impacts for a property located in the certified municipal setting
designation shall complete any necessary investigation and response action requirements in accordance
with Texas Health and Safety Code §36i.8o8, in conjunction with the applicable Texas Commission on
Environmental Quality environmental remediation regulation, as modified by Texas Health and Safety
Code §361.8o8.
l
EXECUTED this the day of Sqkr&bw,20
Be Seaton, Director
Remediation Division
Texas Commission on Environmental Quality
EXHIBIT --
PAGE 1 OF 2..
Legal Description
A legal description of the MSD propery. Provide sacient global positioning satellite coordinate lot-aliollr to
alloav the MSD property boarndaries to be plotted (map risen) in ageographic informahon system.
GPS Coordinates:
Coordinates of MSD
Boundary Vertices
X
Y
3754103.76
545128.84
3754023.64
545513.16
3753955.14
545513.55
3753962.49
545125.36
NOTE: Coordinates provided in Universal Transverse
Mercator projection, Zone 14 North (meters), North
American Datum 1983
The legal description of the designated property located at 1011 Vermont Street in Wichita
Falls is provided below:
Lot 1-A, Block 3 -A, a Replat of Lots 1 -12, Block 3; and Lots 1 -12, Block 4,
SCOTLAND ADDITION, an Addition to the City of Wichita Falls, Wichita
County, Texas, according to the Replat -recorded in Vol. 24, Page 200, Wichita
County Plat Records.
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Exhibit B
Municipal Setting Designation
Affidavit of Eligibility
BEFORE ME, the undersigned authority, on this day personally appeared
Peter 9urlage , as an authorized representative of
Peerless Manufacturing Co. , down to me to be the person
whose name is subscribed below who being by me first duly sworn, upon their oath,
stated as follows:
I am over the age of 18 and legally competent to make this affidavit. I have personal
knowledge of the facts stated herein.
I affirmatively state that (place an X in all applicable blanks)
❑X The MSD eligibility criteria of THSC Section 361.803 are satisfied.
0 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.
Q A true and accurate copy of a legal description of the proposed MSD property is
included with the application.
0 Notice has been provided in accordance with THSC 361.806.
0 A copy of an ordinance or restrictive covenant and any required resolutions are
provided in this application or will be provided before the executive director
certifies this application.
&,— 6 ". ,, /.. . , Date: 6/3012015
Signature
Peter Burlage
Printed Name
President and CEO
Title
STATE OF Texas
COUNTY OF ')�Q G S
SUBSCRIBED AND SWORN b ore me on this the 319 V` day of
20L. to which witjieo my hand ands al of office.
Not Public in and for the State of ! X� S
. " KATHRYN AWN SEALS
TCEQ 20149 = *: MY COMMISSION EXPIRES August 2011
!' Deoirber 21, 2017