The city council has found and does find 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.
(1983 Code, sec. 28-171; Ordinance 2006-O0133, sec. 1, adopted 1/12/2007)
means those persons entitled to notice in section 22.10.004(b)(7) below.
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.
means any chemical that has the potential to adversely affect
ecological or human receptors due to its concentration, distribution,
and mode of toxicity.
means the Texas Commission on Environmental Quality or any
successor agency delegated the authority and responsibilities of the
Texas Commission on Environmental Quality.
means the director of environmental compliance or the director’s
authorized designee.
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.
means water below the surface of the earth.
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 municipal setting designations
in order to limit the scope of or eliminate the need for investigation
of or response actions addressing contaminant impacts to groundwater
that has been restricted from use as potable water by ordinance or
restrictive covenant.
means water that is used for irrigating crops intended for
human consumption, drinking, showering, bathing, or cooking purposes.
(1983 Code, sec. 28-172; Ordinance 2006-O0133, sec. 1, adopted 1/12/2007)
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.
(1983 Code, sec. 28-173; Ordinance 2006-O0133, sec. 1, adopted 1/12/2007)
(a)
A person, including the city, seeking city council approval of a
municipal setting designation (MSD) for property within the corporate
limits of the city, or within its extraterritorial jurisdiction, shall
file an original and six (6) copies of the application with the city
secretary. The application may be filed in person, by United States
mail, or by a document delivery service.
(b)
An application shall be on a form provided by the director, and shall
contain:
(1)
Applicant’s name and address and the name, address, daytime
telephone number, and email address of a contact person;
(2)
The location and legal description of the proposed outer boundaries
of the MSD;
(3)
A statement as to whether applicant has filed an application with
the executive director of the commission for an MSD for the property;
(4)
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 property for which the MSD is sought, and property within one-half
(1/2) mile of the property for which the MSD is sought;
(5)
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 off site 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 off site and the basis for that statement;
(6)
Identification of the person(s) responsible for the contamination
of the groundwater, if known;
(7)
A listing of:
(A)
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;
(B)
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;
(C)
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
(D)
Each municipality, other than the city, with a boundary located not
more than one-half (1/2) 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,
as amended;
(8)
A copy of the application to the executive director of the TCEQ,
if filed;
(9)
A site map, drawn to scale, including a metes and bounds description
of the property, the boundary of the proposed MSD, and a statement
by a professional land surveyor registered by the Texas Board of Professional
Land Surveying attesting to the accuracy of the metes and bounds property
description;
(10)
A series of maps, diagrams, and figures sealed by a professional
engineer and/or a professional geoscientist registered by the Texas
Board of Professional Engineers or Geoscientists, respectively, depicting
the following information:
(11)
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)
A set of printed mailing labels with the names and addresses of persons listed in subsection (b)(7) above;
(2)
An electronic file of the names and addresses of persons listed in subsection (b)(7) above, in a format acceptable to the director and compatible with city information systems; and
(3)
An application fee in the amount of $2,000.00.
(e)
An applicant may withdraw his 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 22.10.009 below.
(1983 Code, sec. 28-174; Ordinance 2006-O0133, sec. 1, adopted 1/12/2007; Ordinance 2014-O0151, sec. 15,
adopted 11/6/2014)
(a)
Upon receiving an application for 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 planning 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.
(b)
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.
(1983 Code, sec. 28-175; Ordinance 2006-O0133, sec. 1, adopted 1/12/2007)
(a)
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.
(b)
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.
(c)
If the director determines that the application is incomplete, he
will return the application 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 returned application contains deficiencies,
the director shall again return the application to the applicant and
note the deficiencies in writing, and the applicant shall again have
thirty (30) days to resubmit the application. If an applicant fails
to remedy the deficiencies after the director has provided notice
in writing on at least two occasions, the director may return the
application and require a new application fee prior to further consideration
of the application.
(1983 Code, sec. 28-176; Ordinance 2006-O0133, sec. 1, adopted 1/12/2007; Ordinance 2014-O0151, sec. 16,
adopted 11/6/2014)
(a)
Notice of the public hearing on a MSD application may be combined
with notice of additional public meetings on the same subject 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:
(1)
The director will provide published notice of a public hearing for
the proposed MDS 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) day before the public meeting;
(2)
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
(3)
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:
(A)
The applicant;
(B)
The list provided by applicant of 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 role;
(C)
The list provided by applicant of persons who own private registered
water wells within five (5) miles of the subject property;
(D)
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
(E)
The list provided by applicant of each municipality with a boundary
located not more than one-half (1/2) 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.
(b)
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.
(1983 Code, sec. 28-177; Ordinance 2006-O0133, sec. 1, adopted 1/12/2007; Ordinance 2014-O0151, sec. 17,
adopted 11/6/2014)
(a)
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.
(b)
The applicant or applicant’s representative must appear at
the hearing and present the request for 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.
(c)
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.
(e)
In order to approve an application, the city council must:
(1)
Adopt a resolution supporting the application to the Texas Commission
on Environmental Quality; and
(2)
Enact an ordinance prohibiting the potable use of designated groundwater
from beneath the property and restricting the nonpotable use of groundwater
from beneath the property except for sampling and remediation purposes
unless prior consent has been granted by the city for the nonpotable
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.
(f)
In the ordinance enacted pursuant to subsection (e)(2) above, city council may place other reasonable restrictions on the use of designated groundwater from beneath the property.
(g)
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 Environmental
Quality as provided by Texas Health and Safety Code section 361.805.
(h)
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.
(1983 Code, sec. 28-178; Ordinance 2006-O0133, sec. 1, adopted 1/12/2007)
If, after the 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 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. If the water utilities director has not issued public
notice, he may, in the interest of the public health and safety, ask
the applicant to withdraw the MSD application voluntarily. After addressing
the health and safety issues, the applicant may reapply without forfeiting
the original two thousand dollar ($2,000.00) fee.
(1983 Code, sec. 28-179; Ordinance 2006-O0133, sec. 1, adopted 1/12/2007; Ordinance 2014-O0151, sec. 18,
adopted 11/6/2014)
(a)
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.
(1983 Code, sec. 28-180; Ordinance 2006-O0133, sec. 1, adopted 1/12/2007)
