Those persons entitled to notice in section 6-13-8 below.
The application submitted to the city for a municipal setting
designation ordinance.
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.
Any chemical that has the potential to adversely affect ecological
or human receptors due to its concentration, distribution, and mode
of toxicity.
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.
Water below the surface of the earth.
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.
Water that is used for irrigating crops intended for human
consumption, drinking, showering, bathing, or cooking purposes.
The Texas Commission on Environmental Quality.
The application submitted to the TCEQ for certification of
a municipal setting designation.
(Ordinance 2009-45, sec. 1, adopted 11/24/09)
(a)
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.
(b)
A person
commits an offense if the person intentionally, knowingly, or with
criminal negligence uses groundwater in a municipal setting designation
for a purpose prohibited in the ordinance creating that municipal
setting designation.
(Ordinance 2009-45, sec. 1, adopted 11/24/09)
(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 six
(6) copies of an application with the city. An 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 city, 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 that applicant has notified the executive director of
the commission that an MSD for the property is sought;
(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 is more likely than not to exceed a 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 500 feet of the subject
property, as the ownership appears on the last approved city tax roll;
(B)
All state-registered private water wells within one-half (1/2) mile
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;
(8)
Either: (A) a legal description of the boundaries of the designated
property certified by a professional surveyor registered with the
Texas Board of Professional Surveying; or (B) a lot and block legal
property description which lists the lot number and block number followed
by a reference to a subdivision tract recorded in the county property
records;
(9)
A site map, drawn to scale, including the boundary of the proposed
MSD and the extent of groundwater contamination to the limits that
it has been defined; and
(10)
Any other information that the city 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 gathered
and evaluated 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 city and compatible with city information systems; and
(3)
An application fee as set forth herein.
(Ordinance 2009-45, sec. 1, adopted 11/24/09; Ordinance 2011-32, sec. 1, adopted 9/13/11)
(a)
An
application will not be accepted until the initial filing fee has
been paid. An application will not be placed on a city council agenda
until the additional processing fee has been paid.
(b)
All
applications must be submitted to the city attorney or his designee.
The applicant shall submit the fees with the application.
(c)
No
refund of the fees may be made.
(d)
The
initial filing fee for a municipal setting designation ordinance is
$2,500.00. No notices or advertisement of the public meeting shall
be made until the initial filing fee is paid. A municipal setting
designation ordinance shall not be placed on a city council agenda
until an additional processing fee of $5,000.00 is paid.
(e)
The
city council may, by resolution, waive or reimburse the initial filing
fee when the city council finds that payment of the fee would result
in substantial financial hardship to the applicant.
(Ordinance 2009-45, sec. 1, adopted 11/24/09)
(a)
Authority.
This section is adopted pursuant to the authority provided in:
(1)
Subchapter W, “Municipal Setting Designation,” of chapter
361, “Solid Waste Disposal,” of the Texas Health and Safety
Code;
(2)
Paragraph (6) of Subsection (a) of Section 211.003, “Zoning Regulations Generally,” of chapter 211, “Municipal Zoning Authority,” of the Texas Local Government Code;
(3)
Subsection (a) of Section 212.003, “Extension of Rules to Extraterritorial Jurisdiction,” of chapter 212, “Municipal Regulation of Subdivisions and Property Development,” of the Texas Local Government Code; and
(4)
Section 401.005, “Restriction on Pumping, Extraction and Use
of Groundwater,” of chapter 401, “Water Control by Municipalities,”
of the Texas Local Government Code.
(b)
Findings.
The city council finds that:
(1)
Due to limited quantity and low quality, there are areas within the
city and its extraterritorial jurisdiction where the groundwater is
not valuable as a source for potable water;
(2)
The city does not currently utilize groundwater from within its city
limits as a source for public potable water;
(3)
Many properties in the city and its extraterritorial jurisdiction
are underlain with unused or unusable groundwater that has become
contaminated by historical on-site or off-site sources;
(4)
Municipal setting designation ordinances enable a state corrective
process for groundwater that protects human health and the environment
while also promoting the economic welfare of citizens;
(5)
Where the quality of the groundwater presents an actual or potential
threat to human health, and another source of potable water is available,
the use of designated groundwater beneath a designated property should
be prohibited to protect the public health, safety, and welfare;
(6)
Municipal setting designation ordinances should be considered only
after a process that allows for public notice and input; and
(7)
The use of municipal setting designation ordinances within the city
and its extraterritorial jurisdiction will encourage the economic
development of properties that have contaminated groundwater.
(c)
An applicant may withdraw its application in writing by letter sent certified mail, return receipt requested, to the city, and shall forfeit the application fee. If public notice prior to the receipt of the withdrawal letter has not been issued, the applicant may reapply at any time. If public notice has issued, a new application is subject to the limitations of section 6-13-11 below.
(Ordinance 2009-45, sec. 1, adopted 11/24/09)
Upon receiving an application for an MSD approval, the city’s
utility department, public works department, and planning department
will receive a copy 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 risk assessment of the application.
(Ordinance 2009-45, sec. 1, adopted 11/24/09)
(a)
Following
staff review, if it is determined 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.
(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, as indicated
by the file date stamped on the application package.
(c)
If
it is determined that the application is incomplete, 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.
(Ordinance 2009-45, sec. 1, adopted 11/24/09)
(a)
Notice
of the public meeting and the public hearing on an MSD application
may be combined and must include the date, time and location of the
two (2) events, the identity of the applicant, the location and legal
description of the property for which the MSD is sought, the purpose
of the MSD and the type of contamination identified in the groundwater
of the property for which the MSD is sought. Written notice of a public
meeting and a public hearing for a proposed MSD will be sent 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:
(1)
The applicant;
(2)
The list provided by applicant of owners of real property lying within
500 feet of the subject property, as the ownership appears on the
last approved city tax roll;
(3)
The list provided by applicant of persons who own private registered
water wells within one-half (1/2) mile of the subject property;
(4)
Such other persons as the city shall designate; and
(5)
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
city attorney 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 website 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.
(Ordinance 2009-45, sec. 1, adopted 11/24/09; Ordinance 2011-32, sec. 2, adopted 9/13/11)
(a)
The
purpose of a public meeting is for the applicant to provide information
to the affected community about MSDs and the application and to obtain
input on the application prior to a formal hearing before the city
council.
(b)
The
public meeting will be held in the evening at a location convenient
to the affected community.
(c)
The
applicant or applicant’s 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.
(d)
At
the meeting, the applicant or the applicant’s representative
will be given the opportunity to present its reasons for requesting
an MSD, and members of the affected community will be given the opportunity
to ask the applicant questions or make oral comments on the application.
(e)
A tape
recording of the public meeting will be made.
(Ordinance 2009-45, sec. 1, adopted 11/24/09)
(a)
Prior
to the hearing, the city council will be provided with a written report
summarizing the request for the MSD approval, including any concerns
raised by the reviewing departments.
(b)
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.
(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. 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.
(Ordinance 2009-45, sec. 1, adopted 11/24/09)
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.
(Ordinance 2009-45, sec. 1, adopted 11/24/09)
(a)
A
person who has received approval of an MSD from the city, shall, upon
issuance from the commission, provide the city attorney with a copy
of the certificate of completion or other documentation issued for
the property, showing that response actions have been completed.
(Ordinance 2009-45, sec. 1, adopted 11/24/09)
(a)
The
municipal setting designation sites in the city limits are: [sic]
(b)
The
municipal setting designation sites in the extraterritorial jurisdiction
are:
(1)
ETJ-MSD-01.
(A)
ETJ-MSD-01 is defined as a 947.385-acre property located at 2400
South Grandview, Odessa, Texas, 79766, said property being more particularly
described by the metes and bounds description (Exhibit A) and map
(Exhibit B) of Ordinance No. 2011-04.
(B)
Groundwater beneath ETJ-MSD-01 is typically encountered approximately
10 to 30 feet (ft) below ground surface (bgs) in the uppermost groundwater-bearing
zone (GWBZ). The uppermost GWBZ consists of Quaternary deposits and
the Ogallala formation and is referred to here as the Ogallala GWBZ.
Affected groundwater is mostly limited to the uppermost GWBZ (TCEQ,
2005). The chemicals of concern identified in the groundwater beneath
the site include benzene, toluene, ethylbenzene, xylene, styrene,
and naphthalene.
(C)
The use of the designated groundwater in ETJ-MSD-01 for potable and
irrigation purposes is hereby prohibited. This prohibition is necessary
because the contaminant concentrations exceed potable water standards.
(D)
The city will provide advance written notice to the TCEQ, as much
as is practicable, prior to enacting an ordinance repealing or amending
this section.
(2)
ETJ-MSD-02.
(A)
ETJ-MSD-02 is defined as a 5.71-acre tract of property located at
2300 Production, 1121 South Meadow and 1112 South Meadow, Odessa,
Texas, 79761, said property being more particularly described by the
metes and bounds description (Exhibit A) and map (Exhibit B) of Ordinance
No. 2012-05.
(B)
The designated groundwater beneath ETJ-MSD-02 is comprised of a Shallow
Groundwater Bearing Unit (GWBU) and Deeper GWBU. A sandstone/siltstone
unit (Fredricksburg) separates the two GWBUs but does not provide
hydraulic separation between the two units. The Shallow GWBU (Ogallala
Formation) is encountered between 17 and 25 feet below grade and extends
to approximately 35 feet below ground surface (bgs). The groundwater
gradient within the Ogallala is to the southeast. The Deeper GWBA
(Antlers Formation) is encountered between 18 and 26 and extends to
a depth of not more than 150 feet bgs where it is underlain by the
Dockum Group which presents a regional aquitard to prevent vertical
migration. The groundwater gradient within the Antlers Formation is
to the south-southeast. The Chemicals of Concern identified in the
groundwater beneath the site have included Tetrachloroethene, Trichloroethene,
cis, 1, 2 Dichloroethene, trans 1, 2 Dichloroethene, and Vinyl Chloride.
(C)
The use of the designated groundwater in ETJ-MSD-02 for potable water,
as defined in section 361.801(2) of the Texas Health and Safety Code,
and the following uses of or contacts with the designated groundwater
are prohibited:
(3)
ETJ-MSD-03.
(A)
ETJ-MSD-03 is defined as lots 9 and 10, and a 1.43 acre tract out
of lot 11, block 2, Odessa Industrial Development Park, located in
section 36, block 42, T-2-S, T&P Ry. Co. Survey, 2381 E. Interstate
20, Odessa, Texas 79765, said property being more particularly described
by the metes and bounds description (exhibit A) and map (exhibit B)
of Ordinance No. 2014-47.
(B)
Groundwater at the proposed MSD property location and surrounding
area is typically encountered approximately 24 to 26 feet (ft.) below
ground zero (bgs) in the uppermost groundwater-bearing unit zone (GWBZ).
The uppermost GWBZ consists of quaternary deposits and the Ogallala
Formation and is referred to here as the Ogallala GWBZ. Based on groundwater
samples and data from the property, affected groundwater is limited
to the uppermost GWBZ; however, deeper wells have been installed at
the property. The groundwater based on the Upper Antlers Formation
at approximately 65ft. bgs in the area and should also be designated
as restricted for use. The chemical of concern beneath the site is
Tetrachloroethylene (PCE).
(C)
The use of the designated groundwater in ETJ-MSD-03 for potable water,
as defined in section 361.801(2) of the Texas Health and Safety Code,
and the following uses or contacts with the designated groundwater
are prohibited:
(4)
ETJ-MSD-04.
(A)
ETJ-MSD-04 is defined as tract 1, being a 6.30 acre tract out of lot 1, block 4 located in section 32, block 42 T&P RY Co. Survey and a 15.045 acre tract out of lot 1, block 3 in section 32, block 31 T&P RY Co. Survey, 2122 and 2120 Maurice Road, Odessa, Texas 79763, said property more particularly described by the metes and bounds description (exhibit A) and map (exhibit B) of Ordinance 2019-18.
(B)
The “designated groundwater” beneath ETJ-MSD-04 means
water below the surface of the designated property to a depth of 100
feet. The chemicals of concern identified in the groundwater beneath
the site have included perchloroethylene (PCE), trichloroethylene
(TCE), and 1,2-dichloroethene (1, 2-DCE).
(C)
The use of the designated groundwater in ETJ-MSD-04 for potable water,
as defined in section 361.801(2) of the Texas Health and Safety Code,
and the following uses or contact with the designated groundwater
are prohibited:
(c)
Any person, firm or corporation who violates or who resists the enforcement of any of the provisions of this article shall be punished by a fine and penalty of violating public health as indicated by section 1-1-9 of this code. Each day or portion thereof that a violation continues shall constitute a separate offense as provided in section 1-1-9 of this code.
(Ordinance 2011-04 adopted 1/25/11; Ordinance 2012-05 adopted 1/24/12; Ordinance
2014-47 adopted 9/9/14; Ordinance 2019-48 adopted 10/22/19)
