13-Resolution authorizing contract with Weaver Boos ConsultantsCITY COUNCIL AGENDA ITEM BRIEFING SHEET
Submittal Date:
Originaring Department:
Presented By:
Agenda Item No.:
01105110
Engineering, Planning &
Shawn Napier, P.E.
Council Date:
Development
13.
O1/11/10
RECOMMENDED MOTION:
Move to approve an agreement for professional services with Weaver Boos Consultants, LLC-
Southwest for engineering services related to a municipal setting designation application for the
Stillhouse Landfill and authorizing the City Manager to negotiate and execute all necessary documents.
POLICY ISSUE(S):
Professional services; Environmental protection; Required by TCEQ
BACKGROUND:
The FY 2009-2010 budget includes $41,100 to continue the post-closure program for the Stillhouse
Road Landfill. The Texas Commission on Environmental Quality (TCEQ) is requiring that we submit a
schedule for proceeding with an assessment and response action for the landfill (see accompanying
TCEQ letter dated Oct. 12, 2009). The City has been granted an extension on the submission deadline
from this original letter from TCEQ.
The Weaver Boos proposal is in the amount of $41,000 to complete a municipal setting designation
(MSD) application for the Stillhouse Road Landfill area (a nine-page guide about MSD for cities also
accompanies this briefing sheet). The City has used Weaver Boos (and its predecessors) since 1990.
BOARD/COMMISSION RECOMMENDATION:
EXHIBITS:
Resolution, TCEQ letter, proposal and contract with Weaver Boos, MSD Guide
ACTION:
BUDGET INFO:
❑ Financial Report ❑ Minute Order
Expense
$ 41,000.00
❑ Department Report Z Resolution
Budgeted Amt.
$ 41,100.00
❑ Presentation ❑ Ordinance
y'I'D Actual
$ -0-
❑ Public Hearing ❑ Other
Acct. Name
Post Closure Maintenance - Landfill
Acct. Number
01-0416-44-00
FISCAL NOTES:
REVIEWED AND APPROVED BY:
Z Administration Z City Clerk Z Community Development ❑ EMS/IT ❑ Finance ❑ Fire
❑ Municipal Coutt Z Legal ❑ Library ❑ Police Z Eng./Public Works ❑ Utilities
City of Paris
Revised 2/04/08
94
DRAFT
attorney\reswork\current\Weaver Boos Contract Res - Landfill Ground Monitoring 2009
RESOLUTIOIV 1V0.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PARIS,
TEXAS, APPROVING A PROFESSIONAL SERVICES CONTRACT WITH
WEAVER BOOS CVONSULTANTS, LLC TO PREPARE AND FILE A
MUIVICIPAL SETTING DESIGIVATION WITH THE TEXAS
COMMISSION ON ENVIRONMENTAL QUALITY FOR THE
STILLHOUSE ROAD LANDFILL; MAKING OTHER FINDINGS AND
PROVISIONS RELATED TO THE SUBJECT; A1VD DECLARING A1V
EFFECTIVE DATE.
WHEREAS, the City of Paris is in need of professional services to prepare and
file a municipal setting designation with the Texas Commission on Environmental
Quality for the Stillhouse Road Landfill and Weaver Boos Consultants LLC has made a
proposal for Groundwater Monitoring and Testing Services; and,
WHEREAS, the proposal from Weaver Boos Consultants, LLC is deemed to be
in the best interest of the City of Paris and its citizens and that such professional
services contract in a form substantially similar to Exhibit A attached hereto and
made a part hereof be approved;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF PARIS, TEXAS:
Section 1. That the findings set out in the preamble of this resolution are hereby in
all things approved.
Section 2. That the proposal of Weaver Boos Consultants, LLC for professional
services to prepare and file a municipal setting designation with Texas Commission
on Environmental Quality for the Stillhouse Road Landfill described in Exhibit A
attached hereto, be, and the same is hereby accepted.
Section 3. That the Mayor of the City of Paris, be, and he is hereby authorized and
directed to execute on behalf of the Ciry of Paris the Professional Services Contract in
a form substantially similar to the form of Exhibit A attached hereto.
Section 4. That this resolution shall be effective from and after the date of passage.
PASSED AND ADOPTED this 11th day of January, 2010.
Jesse James Freelen, Mayor
ATTEST:
Janice Ellis, Ciry Clerk
APPROVED AS TO FORM:
W. Kent McIlyar, City Attorney
Bryan W. Shaw, Ph.D., Chairman
Buddy Garcia, Commissioner
Carlos Rubinstein, Commissioner
Mark R. Vickery, P.G., Executrue Director
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Protectrny Texas by Reducrng and Preuenting Pollution
October 12, 2009
[vlr. Shawn Napier, P.E.,
Director of Public Works
Citv of Paris
P. O. Box 9037
Paris, Texas 75461-9037
Re: City of Paris Landfill - Lamar County
Municipal Solid Waste (MSW) - Permit No. 144
Status of Groundwater [nvestigation Report
Tracl<ing Nos. 12827713 and 12851688; RN 102142825 / CN600632269
Dear Mr. Napier:
This letter acl<nowledbes that we received a report on groundNvater monitoring activities conducted at the
referenced facility in !une and Uecember of 1998, and September of 2008. The report was received under
x cover letter dated Septernber 29, 2009, fi-om Mr. Robert S. Ferbend, P.G., of Weaver Boos Consultants
LLC Soiithwest, Fort Worth, Texas. The report Nvas provided in response to requests in our letters dated
December 10, 2007, and August 5, 2009. We also received a letter from Mr. Ferbend dated September 4,
2009, respondi»g to our letter dated August 5, 2009, advising us that the report on groundwater
E-nonitoring activities would be submitted b_y October l, 2009.
Thank you for the report. The report clocuments past (1998) and recent (2008) sampling of monitor wells
and piezometers at the facility, and indicates that volatile organic compounds and metals are present in
groundwater at levels above groundwater protection standards. The report also provides an inventory of
the monitor " ells and piezometers, and offers recommendatioiis regarding their future use.
The goal for this facility is to be able to close as required by Title 30 Texas Administrative Code
(30 TAC), Chapter 330, Section (§)330.21 (relating to Closure). The applicable closure and post-closure
care requirements are detailed in §330.453 (relating to Closure Requirements for Municipa] Solid Waste
Landfill Units that Stopped Receiving Waste Prior to October 9, 1991, Type IV Landfills, and Municipal
Solid Waste Sites) and §330.463(a) (relating to Post-Closure Care Requirements). The rules in
§330.463(a) require tlle owner or operator to con-ect any problems, including iiiipacts to groundwater
,uch as those that appear to be indicated by the monitoring results in the September 2009 report.
Section 330.463(a)(3) states that if there is evidence of a release from an MSW unit, the executive
director may require an investigation into the nature and extent of the release and an assessment of
measures necessary to correct an impact to groundwater. Because the facility stopped receiving waste
piior to October 9, 1991, the City may pursue << response action under 30 TAC Chapter350 (relating
to Texas Rislc Reduction Probram), following the ge»eral outline in §350.3 (relating to Process).
For more information about the Texas Risk Reduction Program, please visit our web page at
www.tceq.state.tx.usiremediation/trrpitrrp.html.
P.O. Box 13087 Austin, Texas 78711-3087 512-239-1000 Internet address: www.tceq.state.tx.us
. ~ /
Mr. Shawn Napier, P.E.
Page 2
October 12, 2009
Please also note the following comjlients regarding plugging and abandonment ofwells and piezometers:
• Be certain of which wells and piezometers you plug and abandon, and the reasons.
Depending on the response action plan that is followed for this facility, you may need to
replace or add monitor wells or piezometers.
• For wells that you do decide to plug, please obtain prior written authorization, and plug the
wells using amethod that will allow proper sealing of the borehole to ensure there is no
communication to or from the surface or between layers within the barehole. Plugging
standards are described in 16 TAC §76.1004.
Please contact us within 30 days of the date of this letter with a schedule for proceeding with the
assessment and response action. As a reminder, it is the responsibility of the City as the owner or
operator of the subject facility to ensure that it does not cause a discharge or imminent threat of discharge
of waste, the creation and maintenance of a nuisance, or endangerment of the human health and welfare
or the environment, which are prohibited by 30 TAC §330.15(a) (relating to General Prohibitions).
Please provide a copy of the September 2009 report, as well as all future correspondence to TCEQ
Region 5, to the attention of Mr. Michael Brashear, Waste Section Manager, 2916 Teague Drive, Tyler,
Texas 75701-3734.
If you have any questions about this letter, please contact me by telephone at (512) 239-4419, by e-mail to
AAvakian@tceq.state.tx.us, or in writing at the address on our letterhead (please specify Mail Code 124
on the first line of our address).
Sincerely,
~ >
Arten J. Avakian, P.G., Project Manager
Municipal Solid Permits Sectioii
Waste Permits Division
Texas Commissioil on Environmental Quality
AJA/fp
cc: Mr. Robert S. Ferbend, P.G., Weaver Boos Consultants LLC Southwest, Fort Worth
~ ~
XMISAYlER
$oos
Y.i.c
SOSTTH~EST`
December 10, 2009
Mr. Shawn Napier, P.E.
City of Paris
150 SE First Street
Paris, Texas 75460
6420 SOUTHWEST BLVD, SUITE 206
Clzicugo, IL
FORT WORTH, TEXAS 76109
Spri,Tgrield, IL
PHONE: 817.735.9770
Naperville, IL
FfIX: 817.735.9775
Griffith, In'
www weaverboos.com
South Bend, IN
Denver, CO
St. Louis, MO
Colun:bus, OH
Beaverton, OR
Fort Worth, TX
Re: Proposal for MSD Consulting Services
Stillhouse Road Landfill, Paris, Texas
Dear Mr. Napier:
Per your request, Weaver Boos Consultants, LLC-Southwest (WBC) is providing the City
of Paris (City) with a proposal to complete a municipal setting designation (MSD)
application for the Stillhouse Road Landfill area. This area will include the landfill
property and all adjacent areas impacted by Stillhouse Road Landfill-source contaminants.
This proposal assumes the MSD area is within the City extraterritorial jurisdiction. As
part of the MSD application, the City would pass an ordinance or restrictive covenant that
prohibits the use of groundwater from beneath the designated area. In so doing, the need
for groundwater remediation or future monitoring is expected to be removed. This
proposal includes the following service tasks:
Task 1- Five Mile Water Well Search
WBC will obtain a five mile radius water well search as required by the TCEQ for MSD
applications. The results will become part of the MSD application. Any identified water
wells within the search radius will receive a TCEQ-required public notice letter. As part
of this task, WBC will obtain a copies of an MSD application for City ordinance text and
other reference purposes. According to TCEQ MSD requirements, if there is a potable-
sue groundwater well within 0.5 miles of the MSD boundary then the extent of any
gro0undwater contamination beyond that boundary must be determined and the
groundwater remediated in accordance with TCEQ requirements. If there is no
groundwater well within 0.5 miles of the MSD boundary, then the contamination will not
be assessed or remediated for potable purposes.
Task 2-Public Water Supply System Verification
WBC will obtain a letter from the Lamar County public water supply provider that
indicates public water supplies are available to land owners within 0.5 miles of the MSD
area - as required by the TCEQ for MSD applications. WBC will also obtain map-based
information regarding the water supply line locations. This information will become part
of the MSD application.
cl
~ J J
Mr. Shawn Napier
December 10, 2009
Page 2
Task 3 - Application Preparation
WBC will prepare a Stillhouse Road Landfill MSD application for submittal to the TCEQ.
The application will present the site history, limits of known contamination,
contamination trends, area geology, hydrogeology, groundwater quality and resources,
water well data, alternative water supply information, and a draft or final City ordinance
supporting the MSD area groundwater prohibition.
Task 4- Public Notice Activities
WBC will complete the public notice activities required by the TCEQ at or before the
MSD application submittal. The noticed parties include the City, the area public water
supply provider that owns a groundwater supply well within 5 miles of the MSD area, and
each owner of a private water supply well within 5 miles of the MSD area. The noticed
parties have 60 days to file comments with the TCEQ regarding the proposed MSD. The
TCEQ cannot deny or certify the MSD application until 60 days after the notice mailing.
Following the public notice mailing, WBC will submit the MSD application to the TCEQ.
Task 5- MSD Support Services
Under this task, WBC will travel up to two times to a City office to provide technical
support for the MSD initiative. These visits may be used to brief City personnel or
council members on the MSD requirements and project status.
Task 6- Groundwater Monitor Well and Piezometer Plugging
Following the TCEQ approval of the Stillhouse Road Landfill MSD, WBC will arrange
for a Texas-licensed well driller to plug all existing on-site and off-site groundwater
monitor wells and piezometers related to the landfill subsurface investigations - as
authorized by the TCEQ. The driller will remove all surface materials and all well casing
materials that can be pulled from the surface. All removed well materials will be disposed
of by the City at the City's expense. The City will provide a backhoe and operator at its
own expense to facilitate the well plugging activities. In addition, the City will complete
well location restoration activities at its own expense.
Schedule
Assuming the City accepts this proposal by December 31, 2009, WBC will submit a
TCEQ response action schedule letter to the TCEQ by January 9, 2009. The letter is
intended to provide a schedule to Arten Avachian of the TCEQ for moving the landfill
OiCI7I" OF P.ARSWROPOSAL 13009'uNSD PROPOSAL'v12SD PROPOSAL 12-09.DOC
` im
~ ~ 'i.l
Mr. Shawn Napier
December 10, 2009
Page 3
contamination case towards closure in response to his timeline extension letter of
November 18, 2009.
Budget
An estimated budget for the report preparation services is presented below. WBC will
invoice the City for project time and materials costs, consistent with the attached Annual
Fee Schedule. Additional services not listed in this proposal will be invoiced for time and
materials costs, consistent with the attached Annual Fee Schedule.
Estimated Budget for Stilihouse Road Landfill MSD Services
Task ! Description
Contractor
Laboratory
WBC
Expenses
Task
Services
Analyses
Labor
Total
Task 1: Five Mile Water Well
$2,000
-
$5
000
$500
$7
500
Search
,
,
Task 2: Alternative Public Water
Supply Verification
_
_
$2,000
$500
$2,500
Task 3: MSD Application
Preparation
_
_
$10,000
$500
$10,500
Task 4: MSD Public Notice Mailing
-
-
$2,500
$500
$3,000
Task 5: MSD Support Services
-
-
$2,500
$500
$3,000
Task 6: Monitor Well Plugging
$10,000
-
$3,500
$1,000
$14,500
Project Totals
$41,000
Proposal Assumptions
We have developed the preceding project approach based on the following assumptions.
• The area impacted by landfill-sourced contaminants is within the City
extraterritorial jurisdiction.
• The City xArill pass an MSD groundwater ordinance or restrictive covenant.
• There are no existing groundwater supply wells within the proposed MSD area.
• When the Task 6 well and piezometer plugging activities are required, the City
will make all arrangements for off-site property access, landowner permission
remove the off-site wells and piezometers, and the City will dispose of all well and
piezometer plugging wastes at the City's expense.
O:~Cf7'S'OFPAJUS'~PROPOSAL,200Y,MSDPROPOS4LMSUPROPO5'A1 17-09.UOC
1 r-, ~~/eT~-v<c~ %~"o ~(~OIO.~Tr/~~c'alJ
~ 1 ~
Mr. Shawn Napier
December 10, 2009
Page 4
~ Additional WBC Additional Consideration or Task 6 costs may be incurred due to
poor access or impassible conditions.
Additional Groundwater Monitoring Consideration
• The TCEQ may not approve a Stillhouse Road Landfill MSD area without
confirmation of the approximate extent of groundwater VOC and metals
contamination. The results from the 2008 groundwater sampling indicated VOC
and metals concentrations exceeding the TCEQ's groundwater protection
standards were present at the northern and eastern landfill boundary areas. If
requested by the TCEQ and City, WBC will attempt to determine the extent of off-
site groundwater VOC contamination by drilling, installing and sampling up to
three off-site groundwater piezometers in one mobilization to the site. In addition,
up to five additional existing landfill piezometers or monitor wells will be sampled
and analyzed for VOCs and metals for confirmation of current on-site conditions
while at the site. As part of this monitoring activity, the City will make all
arrangements for off-site property access, permission to install and sample
groundwater piezometers, and City disposal of all drilling and groundwater
sampling wastes. It is recommended the off-site piezometers remain functional
until the MSD is approved by the TCEQ and their removal is authorized by the
TCEQ. The estimated cost for the piezometer installations and groundwater
sampling, analyses and reporting is $17,350.
We appreciate the apportunity to be of service to the City. Attached to this proposal are
copies of a Proposal Acceptance Sheet, WBC General Terms and Conditions, and WBC
fee schedule. If this proposal is acceptable, please return one signed copy of the Proposal
Acceptance Sheet to our office. Please contact me with any questions or concerns.
Sincerely,
Weaver Boos Consultants, LLC-Southwest
.4V -
Robert S. Ferbend, P.G.
Senior Hydrogeologist
Attachments: Proposal Acceptance Sheet
WBC General Terms and Conditions
WBC Annual Fee Schedule
(l (77Y OF PAlUS,PROPOSAI.',1009MSD PROPOSAI_ MS'D P20POSAL 12-09.DOC
~
~%II~6!?aC~2460,6.) ~~647J///111I316
WEAVER BOOS CONSULTANTS, LLC-SOUTHWEST
6420 Southwest Blvd., Suite 206
Fort Worth, Texas 76109
(817) 735-9770
PROPOSAL ACCEPTANCE SHEET
Description of Services: MSD Consultin; Services
Project Name: Stillhouse Road Landfill
Project Address: Stillhouse Road, Paris, Texas
Weaver Boos Project No.: F21 102 Date: 12-09-09
Client Contract No.:
For approval and payment of charges, invoices will be charged to the account of:
Firm: City of Paris, Texas Attention: Mr. Shawn Napier, P.E.
Street Address: 150 SE First Street Telephone: (903) 784-9292
City/State: Paris, Texas
Zip Code: 75460
This AGREEMENT acknowledges acceptance of the Standard Terms and Conditions (attached) and is subject to the
following special provisions/payment schedule:
Per attached broposal
This AGREEMENT is accepted by:
By (Signature)
By (Type/Print)
Accepted: , 20
O: OF l'AR/SJ'ROPOS9Li2009 vLLG'D PROPOS'A/_.PKO/'OSA7. A('('L• P7' SH[ili 1' 12-09.21T
Weaver Boos Consultants, LLC-Southwest
/
(Signature)
Jeffrev P. Young, P.E.
By (Type/Print)
Princinal
Accepted: I 2I f 0 , 20 0 9
- I - 103
WEAVER BOOS CONSULTANTS, LLC
ANNUAL FEE SCHEDULE - PROFESSIONAL SERVICES
(Effective October 1, 2008)
V. SURVEI'ING
a)
Senior Professional Land Surveyor
Hr
130
00
b)
Professional Land Surveyor
Hr
.
110
00
c)
Survey Project Coordinator
.
Hr.
85.00
d)
Survey Party Chief
Hr
85
00
e)
Survey Party - 2 Man/Conventional
Hr
.
130
00
0
Survey Party - 3 Man/Conventional
Hr
.
170.00
g)
Survey Party - 1 Man/GPS or Robotic
Hr
130
00
h)
Survey Party - 2 Man/GPS or Robotic
Hr
.
170
00
i)
Survey Pariy - 3 Man/GPS or Robotic
Hr
.
210.00
VI. EQUIPMENT RENTAL FEES
a)
pH, Specific Conductance and Temperature Meter
Day
40.00
b)
Peristaltic Filter Pump
Day
35.00
c)
Electric Purge Pump
Day
40.00
d)
Grundfos Pump Control Box
Day
100.00
e)
Water Level Indicator
Day
30.00
fl
Filter and Hose (for pump)
Ea
20.00
g)
Micropurge Flow Cell and Sonde
Day
120.00
h)
GA 90 (formerly grouped with GEM's below)
Day
90.00
i)
Modified Level "D" (Tyveks, Boots, Gloves)/per person/per chg of clothing
Ea
50.00
J)
Photoionization Detector Meter
Day
110.00
k)
Nuclear Density Gauge
Day
60.00
1)
Air Sampling Equipment, per pump
Day
50.00
m)
Hand Operated Field Probe Equipment
Day
25.00
n)
Explosimeter
Day
30.00
o)
GA90/GEM 500/GEM 2000 Gas Analyzer
Day
175.00
P)
Flame Ionization Detector
Day
110.00
q)
Interface Probe
Day
50.00
r)
ATV
Day
50.00
s)
Company Truck
Day
75.00
t)
Hand-Held Field GPS/G15
Day
150.00
u)
Laser Level
Day
75.00
v)
Spatial Imaging Laser Scanner
Day 2,500.00
TESTING AND RENTAL NOTES:
I. Rates for testing and equipment not listed above are available on request.
2. Testing and equipment rental costs are negotiable for specific projects and for on-site laboratory progrdms.
3. Laboratory unit prices cover equipment and labor costs to perform standard test procedures and laboratory reports with normal tum-
azound times. Non-standard testing requirements, supervisory and project management costs, data evaluation costs, and environmental
sample disposal costs are not included in the testing unit prices and are billed separately.
4. Equipment rental rates aze for equipment costs only. Tiansportation, calibration and peisonnel costs aze billed sepazately.
5. Daily and weekly rates cover a maximum of 10 and 50 houis respectively.
6. SAMPLES WILL NOT BE RETAINED beyond classification and testing unless other arrangements aze agreed to in writing.
Envuonmental samples remain the property of the client
finy modification to this fee schedule requires the written approval of Weaver Boos Consultants, LLC
O:\FIOMETroposalWttachmcnu_LLCTee Schedule\WBC NC Fa Sc6edule_ OcC 08.doc Page Z of2
WEAVER BOOS CONSULTANTS, LLC
General Terms and Conditions
Version 2009-A1
Page 1 of 4
These General Terms aiid Conditions are incorporated by reference
into the foregoing Proposal and shall along with the Proposal
constitute the agreement (the "Agreemenf") under which services
are to be performed by Weaver Boos Consultants North Central.
LLC (WBC) for Client. Unless timely accepted Nvithout reservation
or change by Client, the Proposal shall remain valid for 90 davs
after which time it shall expire and been deemed revoked.
SECTION 1: SCOPE OF SERVICES
a.
b.
It is understood that the scope o}' services and time schedule
defined in dhe Proposal are based on the information provided
b~ Client and certain assumptions based upon WBC's
experience and Client's representations. If this information is
incomplete or inaccurate, or if unexpected site conditions are
discovered, the scope of services and time schedule may
change. even as the work is in progress.
The scope of' services shall include all services provided by
WBC in its discretion, which are reasonably necessary and
appropriate for the effective and prompt fulfillment of WBC'S
obligations under the Agreement and all services shall be
subject to the provisions of the Agreement, including these
General Terms and Conditions and any Supplemental Terms or
Conditions incorporated herein. All such services provided
shall be invoiced and paid for in accordance with Section 3
below.
c. All additional or subsequent work performed for client, shall be
subject to these General Terms and Conditions, unless
otherwise expressly superseded or modified by mutual written
agreement of WBC and Client.
SECTION 2: CLIENT DISCLOSURES
a. It shall be the duty of the Client before and during the project
to promptly notify WBC of any known or suspected hazardous
substances which are or may be related to the services to be
provided. Such hazardous substances shall include but not be
limited to any substance which posed or may pose a present or
potential hazard to human health or the environment, whether
contained in product, material, by-product, waste or sample and
whether it exists in a solid, liquid, semisolid or gaseous form.
b. Following any disclosure as set forth in the preceding
paragraph, or if any hazardous substances are discovered or
reasonably suspected by WBC afrer its services are undertaken,
and which WBC determines in its discretion substantially
change the costs and risks of the project, then WBC may, at its
discretion, discontinue its services.
c. Client shall timely notify WBC of potential health hazards or
nuisances which might arise out of the work by WBC and its
contractors and/or subcontractors (hereinafter referred to as
subcontractors), and thereafter WBC shall take necessary and
reasonable measures to protect its employees against such
possible health hazards or nuisances. The reasonable direct
costs of such measures shall be bome by the Client.
d. The Client shall notify WBC of any other conditions, of which
Client is or should reasonably be aware of, which might
significantly affect the efficiency or safety of work of WBC.
SECTION 3: BILLING AND PAYMENTS
a. Unless otherwise specifically provided in the Agreement,
billings will be based on the fee schedule referenced in the
proposal. WBC shall submit invoices mon[hly for services
performed and expenses incurred and not previously billed on
any previous invoice. Vayment is due upon receipt. For all
amounts unpaid after thirty (30) days of the invoice date Client
agrees to pay to WBC a finance charge of one and one-half
percent (1 1/2%) per month, eightee❑ percent (18%) annually,
or the legal maximum rate if it is less. The billing rates
described in this Agreement may be modified on a periodic
basis (typically annually). These modifications will be
incorporated into long term projects. unless otherwise
addressed in the Proposal.
b. Ihe Client shall provide WBC Nvith a clear written statement
within fiifteen (15) days afrer receipt of the invoice of any
objections to the invoice or any portion or element thereof.
Eailure to provide such a written statement shall constitute
acceptance of the invoice as submitted. Only reasonably
disputed sums may be withheld from payment. For purposes of
this section. Client may only dispute a charge on the basis that
the related services were not performed, or that they were
performed in an defective manner falling beneath the requisite
standard of care. Further, WBC and Client agree to promptly
meet, address and resolve invoice disputes.
c. The Client's obligation ro pay for the services performed under
this Agreement is in no way contingent upon other events;
including but not limited to Client's ability to obtain financing,
zoning, approval of governmental or regulatory agencies, final
adjudication of a lawsuit in which WBC is not involved,
complete a transaction or successfully complete the project.
No deduction shall be made from any invoice on account of
penalty, liquidated damages or other sums withheld from
payment to WBC.
d. If timely payments are not received, then WBC may commence
collection activities. It is agreed that all expenses incurred by
WBC in obtaining liens, obtaining judgments or collecting any
amounts due under the Agreement including the time of WBC
employees, at full billing rates, all associated costs, and
reasonable attorney's fees shall be recoverable from the Client.
SECTION 4: RIGHT OF ACCESS
a. If services to be provided under this Agreement require the
agents, employees, or subcontractors of WBC to enter onto the
Project site, Client shall provide timely right of access to the
site to WBC, its employees, agents and subcontractors, to
conduct the planned field observations and services. WBC
shall take reasonable precaution to reduce damage to the site
due to its operations, but is not responsible for the cost of
restoration for any damage resulting from its operations, unless
otherwise provided for in the Proposal.
SECTION 5: SAMPLING OR TEST LOCATION
a. If the scope of services includes performance of soil borings, or
other subsurface excavations by WBC, it is understood that the
Client will furnish WBC with a diagram indicating the location
and boundaries of the site, and all subsurface structures and
utilities. WBC reserves the right to deviate a reasonable
distance from the proposed boring location(s). Client
recognizes that drilling equipment is large and heavy and
understands the risk of site damage. At Client's request and
cost, WBC will restore the site to the conditions existing prior
to WBC operations if practicable. WBC shall not be liable for
damage or injury to or resulting from damage to subterranean
structures (pipes, tanks, cables, wires or other utilities and
subsurface structures, etc.) which are not called to WBC's
1~~~J
WEAVER BOOS CONSULTANTS, LLC
General Terms and Conditions
Version 2009-A1
Page 2 of 4
c.
d.
attention in xariting and correctly shown on the diagram(s)
furnished or correctlv marked at the site.
Unless othenvise stated. the fees in this proposal do not include
costs associated vvith surveying of the site for the accurate
horizontal and vertical locations of tests. f ield tests or boring
locations described in our report or shoxNn on sketches are
based upon information furnished by others and/or estimates
made in the field by our representatives. Such dimensions and
elevations should be considered as approximations unless
otherwise stated.
This agreement may be terminated by WBC if site conditions
prevent soil borings or other subsurface exeavations by WBC at
or near the designated locations, because of either obstructions
or safety considerations, and these conditions were not revealed
to WBC prior to acceptance of this Agreement If. in order to
complete borings, or other subsurface excavation, to their
designated depths. additional work is necessitated bv
encountering impenetrable subsurface objects, this and all
additional wark will be charged for at the appropriate rates in
the fee schedule.
Any equipment lost or damaged due to site surface or
subsurface conditions. and not due primarily to the negligence
of WBC or its subcontractors, will be invoiced at cost plus 15
percent.
losses and expenses including attorneys' fees arising out of or
resulting therefrom.
SECTION 8: INDEMNITY PROVISIONS
a. WBC agrees to indemnify, hold harmless, and defend Gient
from and against any loss, damage, injury, claim, and liability
arising from and to the extent caused by the negligent acts or
omissions of WBC, its agents and subcontractors, but subject to
the limitations of liability set forth in Section 11 of this
Agreement Further, Client agrees to indemnify, hold harmless.
and defend WBC against any loss, damage. injury, claim or
liability not caused by or arising from the acts or omissions of
WBC.
b. Client hereby waives all claims for indemnity and contribution
(and related theories) for claims which are otherwise covered
(or would be ordinarily covered) when made directly to WBC
or its subcontractors under Worker's Compensation insurance
provided by WBC or its subcontractors.
SECTION 9: STANDARD OF CARE
a.
SECTION 6: SAMPLES h
a. All materials and samples will be discarded immediately after
testing unless the Client advises WBC in writing to the
contrary. In such case, the samples will be delivered, shipping
charges collected, or stored at owner's expense.
b. Client shall have the sole responsibility to dispose of any
hazardous substance or regulated contaminant whether the
result of or a by-product of sampling or not, in accordance with
applicable law. Client shall bear all costs and liabilities
associated therewith.
c. Client agrees to indemnify, defend and hold harmless WBC
from any claims made or asserted against WBC arising out of
or related to collection, storage or disposition of samples or
materials alleging a failure to comply with any Federal, State or
local environmental law, regulation or ordinance.
SECTION 7: REPORTS AND OWNERSHIP OF
DOCUMENTS
a. With the exception of WBC reports to Client, all documents,
including field data, field notes, laboratory test data,
calculations and estimates are and remain the property of WBC.
Client agrees that all reports and other work furnished to the
Client but not paid for in full will be returned to WBC upon
demand and will not be used for design, construction, permits,
licensing, or any other purpose.
b. Documents, including but not limited to, technical reports, field
data, field notes, laboratory test data, calculations, and
estimates furnished to the Client or its agency pursuant to this
agreement are not intended or represented to be suitable for use
by third parties or reuse by the Client or to the extensions of the
Project or on any other project. Any use or reuse without
WBC's written consent will be at Client's sole risk and without
liability or legal exposure to WBC or to WBC's
subcontractor(s). Client shail indemnify and hold harmless
WBC and WBC's subcontractor(s) from all claims, damages,
c.
WBC represents that the services performed under this
Agreement will be performed with the care and skill ordinarily
exercised by reputable members of the profession practicing
under similar conditions at the same time in the same or similar
locality.
Client recognizes that subsurface conditions may vary from
those encountered at the locations where the borings, surveys,
or explorations are made by WBC and that the data
interpretations and recommendations of WBC's personnel are
based solely on the information provided to WBC. WBC will
be responsible for those data, interpretations, and
recommendations, but shall not be responsible for the
interpretation by others of the information developed.
NO OTHER WARRANTY, EXPRESSED OR IMPLIED, IS
MADE OR INTENDED BY RENDITION OF CONSULTING
SERVICES OR BY FURNISHING ORAL OR WRITTEN
REPORTS OF THE FINDINGS MADE.
SECTION 10: INSURANCE
a. WBC represents that it and its agents, consultants, and
subcontractors employed by it, have procured Worker's
Compensation insurance and that WBC has coverage under
liability insurance policies which WBC deems reasonable and
adequate. WBC shall furnish certificates of insurance upon
request. If the Client requests specific inclusions or limits of
coverage that are not present in WBC's insurance, the cost of
such inclusions or coverage increases, if available, shall be at
the expense of the Client.
SECTION 11: LIMITATIONS OF LIABILITY
a. IT IS AGREED THAT, TO THE FULLEST EXTENT
PERMITTED BY LAW, CLIENT WILL LIMIT WBC's
TOTAL AGGREGATE LIABILITY TO CLIENT TO $50,000
OR THE AMOUNT OF WBC's FEE WHICH HAS BEEN
ACTUALLY PAID TO AND RECEIVED BY WBC,
WHICHEVER IS LESS, FOR ANY AND ALL INJURIES,
CLAIMS, LOSSES EXPENSES OR CLAIM EXPENSES
(INCLUDING ATTORNEY'S AND EXPERT WITNESS
FEES) ARISING OUT OF THIS AGREEMENT OR THE
SERVICES TO BE PERFORMED PURSUANT TO THIS
AGREEMENT FROM ANY CAUSE OR CAUSES. SUCH
CAUSES INCLUDE, BUT ARE NOT LIMITED TO, WBC'S
WEAVER BOOS CONSULTANTS, LLC
General Terms and Conditions
Version 2009-AI
Page 3 of 4
NEGLIGENCE. ERRORS_ OMISSIONS. STRIC"1'
LIABILITY, BREnCH OF CON"I'RACT. STATUTORY
LIABILITY. BREACH OF WARRANTY. NEGLIGEN"I-
MISREPRESENTAT(ONS. F,NVIRONMENTAL LIABILITY
OR OTHER ACTS GIVING RISE TO LIABILITY 13ASED
UPON CONTRACT. TORT OR S"I'A"I'UTE. [T [S
EXPRESSLY AGREED THAT THE REML:DY S"I'ATED
HEREIN IS 'FHE CLIENT'S EXCLUSIVE AND SOLE
REMEDY FOR ANY DAMAGF,(S) ARIS[NG OUt OF THIS
AGREEMENT OR SERVICES TO BE PERFORMF,D
PURSUANT TO THIS AGREEMENT.
b. WBC will increase our limitation of liabilitN up to the limits of
our available insurance coverage or otherwise to $100,000.
whichever is greater, upon client's written request, and for the
additional consideration of $500. Said request and payment
must be received within 14 days of the date of execution of the
Proposal and be before any claim arises.
c. The Client further agrees to notify any contractors or
subcontractors who may perform work in connection with any
design, report or study prepared by WBC of such limitation of
liability for breach of contract, errors, omissions or negligence
and require as a condition precedent to their performing their
work a like limitation of liability on their part as against WBC.
d. The Client and WBC agree that neither will be liable to the
other for consequential damages incurred due to the fault of the
other. Said damages include, but are not limited to. loss of use
and lost profits.
e. With the exception of actions pertaining to materialmen or
mechanic's liens, and if lawful, causes of action between the
parties to this Agreement pertaining to acts or failures to act
shall be deemed to have accrued and the applicable statutes of
limitations shall commence to run on the date the alleged act or
failure to act occurred.
f. Not withstanding the above, all claims, whether based upon
conVact, tort, breach of warranty, professional negligence
(including errors, omissions or other professional acts), or
otherwise, shall be deemed waived unless made by the Client in
writing and received by WBC within one (1) year after Client
reasonably knew or should have known of its existence, but in
no event, shall such claim be asserted by Client later than two
(2) years after WBCs completion of services with respect to
which the claim is made.
SECTION 12: ARBITRATION OF DISPUTES
a.
b.
Claims, disputes or other matters in question between the
parties to this Agreement arising out of or relating to this
Agreement or the breach thereof shall be subject to and decided
by arbitration in accordance with the Construction Industry
Arbitration rules of the American Arbitration Association
currently in effect, such arbitration to be held in Chicago,
Illinois, unless the parties mutually agree otherwise.
Demand for arbitration shall be filed in writing with the other
party to this Agreement and with the American Arbitration
Association. A demand for arbitration shall be made within a
reasonable time after the claim, dispute or other matter in
questio❑ has arisen. In no event shall the demand for
arbitration be made after the date when institution of legal or
equitable proceeding based on such claim, dispute or other
matter in question would be barred by applicable statutes of
limitations subject to Section 10(e) above.
c. No arbitration arising out of our relating to this Agreement
shall include, by consolidation, joined or in any other manner,
an additiona] person or entity not a party to this Agreement
except bNl written consent of WBC. Client and anv other person
or entity sought to be joined.
d. The a~~°ard tenderecl bv the arbitrator shall be final, and
judgment may be entered upon it in accordance with applicable
law in any court having jurisdiction thereof.
SECTION 13: TERMINATION
a. This Agreement may be terminated by either party upon at least
seven (7) days written notice in the event of substantial failure
by the other party to perform in accordance with the terms
hereof through no fault of the terminating party. Such
termination shall not be effective if the substantial failure has
been remedied before expiration of the period specified in
written iiotice.
b. WBC may terminate this Agreement if the Client suspends
WBC's services for more than sixry (60) consecutive days
through no fault of WBC's.
c. This Agreement may be tenninated without cause by either
party upon at least sixty (60) days' written notice.
d. If this Agreement is terminated, WBC shall be paid for services
performed prior to the termination date set forth in the notice
plus termination expenses. Termination expenses shall include
costs attributable to personnel and equipment rescheduling and
re-assignment and all other costs incurred directly attributable
to termination.
SECTION 14: MISCELLANEOUS
a. In the event that any provision (or portion thereofl herein shall
be deemed invalid or unenforceable, the other provisions hereto
shall remain i❑ full force and effect, and binding upon the
parties hereto. In such event, the provisions found to be invalid
shall be deemed to be reformed so that the intent of such
provision will be enforced to the maximum extent permitted by
applicable law.
b. The heading or title of a section is provided for convenience
and information and shall not serve to alter or affect the
provisions included herein.
c. All obligations arising prior to the termination of this
Agreement and all provisions of this Agreement allocating
responsibility or liability between the Client and WBC shall
survive the completion of services and the termination of the
Agreement.
d. Unless otherwise provided, the substantial law of the State of
Indiana will govern the validity of this agreement, its
interpretation and performance, and remedies for contract
breach or any other claims related to this agreement.
e. WBC shall apply professional judgment in determining the
extent to which WBC shall compiy with any given standard
identified in WBC's documents. Unless otherwise indicated,
such compliance, referred to as "General Compliance"
specifically excludes consideration of any standard listed as a
reference in the text of those standards cited by WBC.
f. Unless specifically stated in WBC's Proposal, it is understood
the costs for implementation of the work are based on privately
owned projects utilizing merit (non-union) wages and
employees. Government funded or publicly owned projects
that require prevailing wages will have specific fees identified
WEAVER BOOS CONSULTANTS, LLC
General Terms and Conditions
Version 2009-A1
Page 4 of 4
in the Proposal. Any job action. strike, or other requirement to
use union represented employees will require renegotiation oi'
the costs Cor performing the work.
In the event that WBC borroxvs or uses equipment or
machinery, including but not limited to stationary. mobile and
non-road mobile equipment, from the Client, it is agreed that
the equipment is being rented for the sum of $ I.00 and other
considerations unless a specific rental agrecment is ezecuted by
the parties.
This Agreement may be assigned by WE3C to an aftiliate
company. in whole or in pan. WBC may also retain persons or
entities not in WBC's employ without Client's prior specific
consent when such retention is appropriate and customary.
including. but not necessarily being limited to, surveyors.
drilling subcontractors. testing laboratories. remediation
contractors. and specialized consultants. Client shall not assign
its duties and obligations hereunder without the prior written
consent of WBC.
1nQ
Shawn Napier
From:
Ferbend, Bob [bferbend@weaverboos.com]
Sent:
Friday, October 23, 2009 2:58 PM
To:
Shawn Napier; Shane Grissom
Subject:
Municipal Setting Designation
Attachments:
TCEQ MSD City Guidance.pdf
Attached is a TCEQ guide for cities regarding municipal setting designations (MSDs).
There is nothing in the rules that I am aware of which prohibits a landfill and adjacent area MSD.
According to the TCEQ MSD database, a landfill property has not been designated yet.
Usually, the MSDs are former gas stations, dry cleaners, etc. - all with a city's limits or ETJ.
Possible course of action:
1. Complete 5-mile radius water well search. My initial scan of the Water Development Board GIS database for
water wells look promising.
2. Obtain completed MSD case files from other cities for background/template information.
3. Send Mr. Avakian a letter of intent to pursue an MSD for Stillhouse and adjacent properties on all sides. He
will huddle with his associates at TCEQ to determine if this is possible or a regulatory means to block this type
of closure exists.
4. If Arten/TCEQ offer no initial resistance, then:
5. Start efforts to educate council and obtain letter indicating council's willingness to proceed with MSD. We
may need a couple of ineetings on this item.
6. Obtain letter from local water distribution provider indicating they have no objections to MSD and their water
services are present or available to owners of future MSD affected properties.
7. Submit MSD application to TCEQ.
8. Complete public notice activities to affected properties and any registered water well owners within 5 mile
radius of MSD area.
9. Wait 60 days for public response.
10. Based on public response, possibly conduct a TCEQ-attended meeting to attempt to mitigate concerns.
11. Pass MSD ordinance that prohibits groundwater wells within the MSD area.
12. Request TCEQ MSW issue site closure.
Potentialty, TCEQ may require the extent of off-site contamination.
I would anticipate no further groundwater monitoring or remediation after the MSD is passed.
E..,Ec st 6, 1 ~.6. ;'trJr;! f~yt.l oc~f_ ei!.
Weaver Boos Consultants
6420 Southwest Blvd. I Suite 206 ( Fort Worth, TX 76109
t. 817-735-9770 1 f. 817-735-9775 1 m. 817-907-8529
www.weaverboos.com I bferbend@weaverboos.com
IMPORTANT NOTICE: The information contained in this email message (including any attachments) may be confidential, privileged or both, and is intended
exclusively for the addressee(s) intended by the sender. If it appears you have received this email message in error, please notify the sender immediately and
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1~~
T E X A S C O M M I S S I O N O N E N V I R O N M E N T A L Q U A L I T Y
Municipal Setting Designations
A Guide for Cities GI-326
August2007
INTRODUCTION
The 78th Texas Legislature passed a Municipal
Setting Designations (MSDs) statute, effective
September 1, 2003, governing the potability of
groundwater and the requirements for removing
contaminants from groundwater. The law
authorized the TCEQ to receive, process, and
certify MSD applications for properties with
contaminated groundwater that are located in
cities or their extraterritorial jurisdiction. The
TCEQ can certify an application only if there is
local city support. The city has the choice to
either support or not support an MSD application.
Because of this need for city support, city officials
can expect to be contacted by persons who wish
to pursue state certification of an MSD. Cities
can also pursue MSDs for their own use.
The MSD law creates a new alternative to
persons addressing the groundwater
contamination they are responsible for causing,
as well as to persons who "volunteer" to address
groundwater contamination. The MSD statute
limits investigation and remediation requirements
for contaminated groundwater on MSD properties
when that groundwater is not used and will not be
used in the future for potable water.
This document is provided as a reference about
MSDs for city govemments and explains:
• what an MSD is,
• the purpose behind the law, and
• potential considerations when the city is
deciding its position on MSD certification.
Further information on MSDs can be accessed
online at <www.tceq.state.tx.us/goto/msd>.
You may contact the TCEQ Remediation Division
directly at 512-239-2200. Ask to speak with a
staff member knowledgeable about MSDs.
MSD OVERVIEW
An MSD is an official state designation given to
property within a municipality or its extraterritorial
jurisdiction that certifies that designated
groundwater at the property is not used as
potable water, and is prohibited from future use
as potable water because that groundwater is
contaminated in excess of the applicable potable-
water protective concentration level. The
prohibition must be in the form of a city
ordinance, or a restrictive covenant that is
enforceable by the city and filed in the property
records. The MSD property can be a single
property, multiple properties, or a portion of a
property.
Definitions:
Groundwater-The water present below
ground surface.
Potable Water-The statute defines potable
water as water that is used for drinking,
showering, bathing, cooking, or for irrigating
crops intended for human consumption.
Potable-Water Protective Concentration
Level -A maximum concentration of a
contaminant in groundwater that is non-
injurious to people using the groundwater for
potable purposes. Potable-water protective
concentration levels are specific to each
contaminant and are reported in units of
milligrams of contaminant per liter (mglL) of
water.
The TCEQ is an equal opportunity/affirmative action employec The agency dces not allow discrimination on the basis of race, color, religion, national origin, sex, disability, age, sexual
orientation or veteran status.
~ ~ l~u
BACKGROUND AND PURPOSE
The purpose of the MSD law is to provide a less
expensive and faster alternative to the existing
state environmental regulations governing the
investigation and cleanup of contaminated
groundwater. The statute substitutes a municipal
ordinance or restrictive covenant for TCEQ
regulations to protect the public against exposure
to contaminated groundwater.
In many cities, some of the chemicals spilied onto
the ground by commercial or industrial activities
have seeped through the soil and into
groundwater. Because groundwater is frequently
a source of potable water for people, the state
regulations typically require the investigation and
remediation of the contaminated groundwater to
support potable water use. In almost every case,
potable water use of groundwater is the strictest
standard the state uses to regulate the cleanup of
contaminated groundwater.
In some ciry locations, however, no one is using
groundwater as potable water in the vicinity of the
contaminated groundwater zone, and there is no
plan to use that groundwater as potable water in
the future because another source of water is
available. For such instances, the MSD statute
provides an alternative that overrides standard
TCEQ regulatory requirements. Instead of
restoring or controlling the contaminated zone so
iYs groundwater can be used as potable water, a
prohibition is placed on the designated
groundwater beneath the MSD property to
prevent its use as potable water.
However, if there is a potable-use water well
within one-half mile of the MSD property
boundary, then the extent of any groundwater
contamination beyond that boundary does have
to be determined and the water remediated in
accordance with the statute. If there is no such
well, then the contamination will not be assessed
or remediated for potable purposes, but
assessment could be required for other purposes
Because people or animals, fish, and plants
(ecological receptors) may be exposed to the
contamination in other ways, the law still allows
the TCEQ to require the contamination to be
investigated and remediated for other concerns
unrelated to potable-water use. For example, the
inhalation of vapors originating from the
groundwater contaminants or the discharge of
groundwater contaminants to lakes or streams
can be a concem.
G I-326
By offering this alternative to address the problem
of contaminated groundwater that will not be
used as potable water, persons may be more
inclined to develop and redevelop properties in
municipal areas that have contaminated
groundwater.
AUTHORITY TO ESTABLISH
AN MSD
The 78th Texas Legislature passed HB 3152,
and subsequently that legislation was codified
in the Texas Solid Waste Disposal Act (Texas
Heaith and Safety Code 361.801-08). The
legislation provided new authority for cities to
support MSDs (see Local Government Code
211.003[a], 212.003[a], and 401.005). The
THSC was subsequently modified by HB 2018,
80th Legislature. The statutes can be down-
loaded from <www.tceq.state.tx.us/goto/msd>.
ELIGIBILITY CRITERIA
The statute specifies two eligibility
requirements:
• The proposed MSD property must be
within the corporate limits or
extraterritorial jurisdiction of a
municipality authorized by statute.
• There must be a public water supply
system that meets state requirements
that "supplies or is capable of supplying
drinking water" to the MSD property
and all properties within one-half mile
of the MSD properry.
ALLOWABLE APPLICANTS
Any of the following "persons" (as defined in
THSC 361.003[23]) can apply for an MSD:
• an individual
• a corporation
• an organization
• a government (including a local
government) or governmental
subdivision or agency
• a business trust, partnership,
association, or any other legal entity
This means that cities can also apply for an
MSD. An MSD can be used to address
groundwater contamination the applicant is
responsible for, or for any other property where
there is groundwater contamination, provided
the eligibility criteria are met.
Page 2
~ -
1.~
STATUTORY NOTIFICATION
REQUIREMENTS
The MSD statute requires the applicant to
provide a letter to notify the parties identified
below that an MSD application is to be
submitted to the TCEQ. The notice must be
completed in advance of, or at the same time
as, an application is submitted to the TCEQ.
Specifically, the notice letter must be sent to:
Each municipality:
o in which the MSD property is
located,
o with a boundary located within one-
half mile from the MSD property
boundary, or
o that owns or operates a water
supply well located within 5 mi from
the MSD property boundary;
Each owner of a"private water well
registered with the commission"' that is
located within 5 mi from the MSD
property boundary; and
Each retail public utility2 that owns or
operates a groundwater supply well
located within 5 mi of the MSD property
boundary.
In the notice letter, the applicant is required to:
. identify the location of the proposed
MSD property,
. state the reason for the MSD
certification,
. state that municipalities and retail
public utilities can make comments to
the TCEQ,
. identify the type of groundwater
contaminants, and
. name the party responsible for the
contamination.
Notified parties have up to 60 days after they
receive the notice letter to file comments with
the TCEQ, if they choose to do so. The TCEQ
cannot take action to deny or certify the
application until 60 days after the notified
parties receive those notices.
' Statutory language that means the TCEQ,
but also must include the Texas Water
Development Board and the Texas Department
of Licensing and Regulation.
' Retail public utility as defined by Texas Water
Code 13.002.
THE CITY ROLE
The city is not required by statute to accept,
process, or support MSD applications.
However, for an MSD to be certified by the
TCEQ, municipal support for the application is
paramount. Therefore, MSD certification is
significantly controlled by the city. For the city
where the proposed MSD property is located,
the statute allows an MSD application to be
certified oniy if that city councii adopts either:
an ordinance to prohibit potable use of
the designated groundwater from
beneath the MSD property and to
appropriately restrict other uses of, and
contact with, the designated
groundwater, or
a resolution that supports the filing of a
restrictive covenant by the applicant
that is enforceable by the municipality
to prohibit potable use of designated
groundwater from beneath the MSD
property and to appropriately restrict
other uses of, and contact with, the
designated groundwater.
The statute also defines a role for cities that
border the proposed MSD city within one-half
mile of the proposed MSD boundary or that
own or operate a groundwater supply well
located within 5 mi of the proposed MSD
boundary. In these cases, the applicant must
also provide a notice to that city of the
applicanYs intent to file an MSD application with
the TCEQ. Further, the statute allows the
TCEQ to certify an application in such
situations only if the city council of that
bordering city also adopts a resolution in
support of the MSD application.
As stated earlier, no municipality is under
statutory obligation to support an MSD
application, but without municipal support, the
TCEQ is statutorily required to deny the
application because it is incomplete. An
application is not complete until the ordinance
or resolution and restrictive covenant, as
applicable, are adopted by the city where the
proposed MSD is located, and by any other
cities, when applicable. However, in
accordance with the statute, the ordinance,
resolution, and restrictive covenant can be
adopted after the TCEQ processes and
"precertifies" the application.
GI-326 Page 3
In all cases, the TCEQ will need assurance that
applicants have the firm support of each
required city before submitting an application to
the TCEQ. Therefore, it is up to the city to
decide what is in its best interest regarding
each MSD property that is proposed to be
located within its border or within a bordering
city. The statute does not prohibit a city from
imposing additionaf application procedures and
requirements on the applicant.
Outside of supporting the application, the
municipality also needs to confirm the status of
public water availability for the TCEQ when the
city owns or operates a public drinking water
supply system that serves the MSD area.
Specifically, the TCEQ must have verification
that a public drinking water supply system
exists that "supplies or is capable of supplying
drinking water" to the MSD property and all
surrounding properties within one-half mile of it.
The applicant must include this information in
the application, but the TCEQ also prefers to
directly verify this with the public drinking water
supplier. A letter signed by an appropriate city
official verifying the availability, or the extent of
public drinking water service supplied to the
proposed MSD area, is sufficient.
If a ciry does not support an MSD, it should
directly inform the applicant of this fact.
Additionally, it can also document this
conclusion in a letter submitted to the TCEQ.
THE ROLE OF RETAIL PUBLIC
UTILITIES
By statute, retail public utilities (RPUs) have a
role in certain instances. The applicant is
required to identify every RPU, if any, that owns
or operates a groundwater supply well located
within 5 mi of the MSD property and provide
notice to each identified RPU of the applicanYs
intent to submit an MSD application to the
TCEQ.
If there is any such RPU in the MSD area then,
in order for the MSD application to be certified,
the applicant must provide a copy of a
resolution in support of the MSD application
from the governing body of each applicable
RPU.
As is the case for a municipality, the RPU is
under no statutory obligation to support an
MSD application. The TCEQ is also directing
applicants to obtain firm support of each RPU
before submitting an application to the TCEQ.
An RPU is also asked to support the TCEQ in
processing the application by confirming to
what extent its system supplies, or is capable of
supplying, water to the MSD property and all
properties within one-half mile of it. This
information is needed for the application. A
letter from each RPU signed by an appropriate
official with the RPU verifying the extent of its
public drinking water service to the proposed
MSD area is sufficient.
City and Retail Public Utility Support
The applicant is not to submit an MSD
application to the TCEQ without "firm" municipal
and RPU support for the application. Firm
support can be demonstrated by providing the
TCEQ with a direct indication from an individual
within the municipality or RPU who has authoriry
to advise the city council or goveming body that
they will recommend that the required
resolutions or ordinance be adopted.
THE TCEQ ROLE
As with cities and RPUs, the TCEQ's role is
established by statute. The TCEQ is to receive
and process applications, verify that proposed
MSD properties meet statutory eligibility
requirements, and verify that applications are
administratively complete. If the MSD property
is statutorily eligible and the application is
complete, then the TCEQ will certify the
application.
The TCEQ has statutory authority to deny an
application when:
• the eligibility requirements are not met,
• the application is incomplete or
inaccurate, or
• based on comments or information
from applicant-notified parties or other
information, the TCEQ determines the
MSD would negatively impact the
current and future regional water
resource needs or obligations of a
municipality, an RPU, or a private well
owner.
If the application is certified, the TCEQ is
required to provide a copy of the certification to
parties who received notice from the applicant,
GI-326 Page 4
~ 1~ 3
as well as to all parties who provided comment
during the 60-day comment period on the
application and to anyone else who requested
a copy. The TCEQ will also be available to
help municipalities obtain an understanding of
the MSD statute and program.
The TCEQ's responsibilities subsequent to
MSD certification are determined under the
statute in 361.808 (Investigation and Response
Action Requirements).
Apptlcant considera MSD r City and RPU considers 1
beneflt and eligibillty. ~ MSD applirations and I
1 adopts procedures as ~
~ _eeded.
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RPU for support. I
~
~ csxy & nPU
~ contact with - - - - - - - - - - - -
TCEQ. ~
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RPU Do not submit MSD applicatlon.
Support MSD4
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Appllcant leaues required noUce
lettsre, and eubmita MSD application to
TCEQ.
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application or
requirements ordinances
7 adopted4
i
rCity & RPU adopt
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a- aames mau TCEQ lasues MSD
application and notifies certificete & notlce.
ApplScmt compltee rovith
enokonmental
regulations, as
Figure 1. MSD application process. (Dashed
lines denote optional actions.)
CERTIFICATION PROCESS
In general, an applicant must give notice to
parties identified by statute that an MSD
application will be submitted to the TCEQ, and
subsequently submit an MSD application for
TCEQ consideration. However, as indicated in
Figure 1, the process also involves city and
RPU support. Note that there are actions
required for the applicant, notified cities, RPUs,
and the TCEQ. The TCEQ must certify, deny,
or request additional information within 90 days
of receiving the application.
If the city anticipates local interest in applying
for MSDs, and if the city is, in general, willing to
support MSDs, then the city may choose to
establish procedures for an appiicant to follow
when seeking city support as indicated in
Figure 1. For example, the City of Fort Worth
has adopted procedural ordinances for MSD
applicants to follow.
CONSIDERATIONS IN
SUPPORTING MSDs
The practical outcome of an MSD is that the
requirement to investigate and remediate
existing contaminated groundwater for use as
potable water will be lessened or eliminated.
Instead of the TCEQ regulations, the public is
protected through the MSD prohibition on
potable-water use.
The following considerations are presented to
aid cities unfamiliar with MSDs that are unsure
of certain factors they may need to consider.
Water Resource
Considerations
Current and future dependence
on groundwater for potable water
Consider the source of your current or future
potable-water supply and whether existing
contaminated groundwater in the MSD area
threatens a potable groundwater supply the
city or its citizens rely on, or will rely on in the
future. The establishment of an MSD is
tantamount to authorization to remove that
contaminated groundwater zone within the
MSD boundary from use for potable water,
indefinitely. Figures 2 anti 3 illustrate the
location of the major and minor groundwater
aquifers in the state. Many areas of the state
rely on these aquifers for potable water.
In considering whether to support MSDs, in
general, if the city relies on surface water or
groundwater located far from the MSD area for
potable water, then the existing groundwater
contamination within the city might not be a
particularly important consideration. However,
if the city or its citizens rely on groundwater
GI-326 Page 5
/
1 s
beneath the city, then the groundwater
contamination may threaten the potable-water
supply.
When evaluating if there is any such threat to
the potable-groundwater supply, relevant
factors to consider may include the following,
as well as other potential factors:
• what groundwater zone(s) are used
• what groundwater zones are
contaminated
• what the degree and extent of the
groundwater contamination is
• the hydraulic connection between the
potable-groundwater supply and the
contaminated groundwater
• how much is known of the location of
existing local water wells
• proximity of existing and planned
potable-water wells to groundwater
contamination
• the design of those potable-water wells
and the integrity of those wells against
contamination
• potential for future water-well
installations outside the MSD potable
water-use prohibition
• the chemical and physical properties of
the groundwater contaminants
Considering these factors, it may become
apparent that MSDs can be appropriately sited
anywhere within the city, or only within certain
areas of the city, if at all. There may be ways
to shore up any uncertainties in the
appropriateness of MSDs by placing particular
information or action requirements on the
applicants.
lrrigation and industrial water
SOUI"C@S
If the groundwater is used for non-potable
water in the vicinity of the MSD property, the
TCEQ is not prohibited by statute from
requiring the person to investigate and
remediate the groundwater to address those
non-potable considerations. Examples of non-
potable groundwater use include irrigation of
lawns, watering pets and livestock, and
industrial process or cooling water. Historically,
the TCEQ has typically applied its protective
concentration levels for potable-water use to
such non-potable uses of groundwater.
Outcrops of Major Aquifers in Texas
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comd.s
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o 100 200 aoo 400
n~~s
Additionally, pumping of
groundwater for non-potable
use can spread the existing
groundwater contamination.
The frequency of non-
potable groundwater use in
the area might give an
indication of whether the
municipality might prefer the
MSD to cover the full extent
of groundwater
contamination, or to provide
the necessary insight into
the appropriate scope and
scale of an ordinance
prohibiting municipal
groundwater use or a
restrictive covenant.
MSD Management
Considerations
Figure 2. Outcrops of major aquifers.
• the local (and possibly regional)
hydrogeology (aquifer recharge,
groundwater flow, aquifer
interconnectivity, etc.)
MSDs frequently bring up questions regarding
management, some of which might not be
unique to, or a true consequence of, an MSD.
GI-326 Page 6
r
_ _ 1
The City Goals
Depending on the city' goals, MSDs might be
an important altemative to removing
contaminants from all groundwater. Any
restrictive covenant or ordinance used to
prohibit potable-water use must at least cover
the entire MSD property.
Additionally, the city may want to place such
limits outside the MSD boundary as a
safeguard against future potable-water use in
the MSD area, or in anticipation of other MSDs
If the ciry supports use of MSDs and is also
contemplating, or is already undertaking, a
significant brownfield redevelopment or
revitalization project for a city sector, then the
scale of MSDs is important. A multi-property or
land within the physical limits of that ordinance.
This would allow applications to be filed as
additional properties with groundwater
contamination are discovered. The ordinance
does need to stipulate that the reason for the
potable water use prohibition is that the
groundwater is contaminated.
Be aware that the statute requires notices to,
and resolutions from, different parties within
certain radial distances from the boundary of
the MSD property. Moreover, the regulatory
flexibility a certified MSD provides is tied to
whether there are potable-water wells located
within one-half mile of the MSD boundary. As
the size of the proposed MSD property is
increased, the radial distances commensurately
reach farther out and can shift requirements for
notification and MSD support as
well as allowable relative
Outcrops of Minor Aquifers in Texas proximityto potable-waterwells,
depending on what falls within
those radial distances.
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Repeal of Ordinance
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The MSD certificate is
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predicated on the institutional
O
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covenant) remaining in effect.
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Therefore, if the ciry changed its
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support for an MSD by
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withdrawing an ordinance, there
tp-'"GT°CI'
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would be no prohibition against
IM PoTK BUNCA
the use of the contaminated
groundwater within the MSD for
f;=-VWST*EKASBOUoM
potable water. Accordingly, the
i WOODBINE
~YEO1.„ACMQN
TCEQ and the city need to be in
communication if there is to be a
change in the MSD support at
the city. As a courtesy, the
TCEQ requests to be notified by
Figure 3. Outcrops of minor aquifers. the city at least 60 days in
advance of making any such change.
regional MSD or a regional ordinance that
prohibits the use of the designated groundwater
as potable water might be advantageous. An
MSD applies to all contamination in the
designated groundwater within the MSD
boundary, even if it extends across multiple
real-estate tracts that have their different
sources of contamination within the MSD
property.
A regional groundwater ordinance could
support subsequent MSD applications filed
property by property for the different tracts of
GI-326
Coverage of the potable-water
use prohibition and potable-water
well installation
The MSD statute requires only that the
designated groundwater within the MSD
boundary be prohibited from potable use. The
MSD prohibition is not required to extend
beyond the boundary of the MSD or to cover
the extent of contaminated groundwater that
Page 7
may extend beyond the MSD boundary,
currently or in the future. There may be no
other naturai or legal controls or safeguards
outside the boundary of the MSD that prevents
installation of a potable-water well within one-
half mile of the MSD property, subsequent to
MSD certification.
If the TCEQ becomes aware of such a
situation, then the person responsible for the
MSD groundwater contamination will have to
assess and remediate for potable purposes in
accordance with 361.808 of the MSD statute.
Unfortunately, the TCEQ may not be made
aware of new wells in the vicinity of the MSD.
If future potable use of groundwater in the
vicinity of the MSD property is a concern, then
local initiatives to monitor and report water-well
installation in the vicinity of existing MSDs may
have merit. Some cities may already have
other ordinances or controls that prohibit water
wells or require a city permit to be obtained
before a water well can be installed. Such
controls are not typically sufficient to satisfy the
MSD ordinance requirements, but can
effectively give added protection.
Alternatively, the city may also consider
notifying local citizens as a means to safeguard
against future potable-water use in the MSD
area.
Technical expertise and technical
information
When evaluating the appropriateness of MSDs,
a city may encounter some complex legal and
technical matters. Considerations include
which departments should evaluate MSD
proposals; what problems, if any, they
anticipate in arriving at a conclusion; and what
information is needed to support a good
decision on the matter. The MSD statute
requires the applicant to supply the specific
information listed in the statute, but the city
might have a need for other information. In that
case, it might consider defining procedures for
MSD applicants.
Contaminant Considerations
The appropriateness of a particular MSD can
depend on the nature of the contaminants and
the expected behavior of the groundwater
contaminants over time. Detailed information
on contaminant behavior is not required at the
time of submitting an MSD application.
Therefore, the MSD application may be
prepared and submitted to the TCEQ at the
front end of a remediation project. This may
result in the TCEQ having little to no technical
information regarding contaminant conditions at
the property at the time of processing the
application.
Further, once an application is certified by the
TCEQ, the requirements of THSC 361.808 take
effect. As discussed previously, depending on
the presence or absence of local potable-water
wells and the applicability of other exposure
concerns in the MSD property and surrounding
area, there may not be a requirement to define
the nature and extent of groundwater
contamination, or to evaluate the potential for
the contamination to spread further (laterally, or
to deeper groundwater zones).
Also, the groundwater contamination at an
MSD property may have a potentially short or
long legacy, depending on the nature of the
contaminant and site conditions. Some
groundwater contaminants, such as benzene,
are less persistent in the environment than
others. That means that once the contaminant
source is mitigated, the dissolved groundwater
contaminant commonly degrades or its
concentration naturally diminishes due to
bacterial, chemical, and/or physical processes.
Other contaminants, such as some chlorinated
solvents, are not as readily amenable to natural
degradation and may be more persistent in the
environment. Additionally, some contaminants
degrade to a more toxic groundwater
contaminant. For example,
tetrachloroethylene, also known as
perchloroethylene or "perc"-a commonly used
dry-cleaning chemical- degrades through
several intermediate chemicals to the more
toxic chemical, vinyl chloride.
All other factors being equal, the longer-legacy
contaminants might naturally warrant more
concern than short-legacy contaminants.
Unfortunately, in many instances the longer-
Iegacy contaminants are also among the most
difficult, and therefore among the most
expensive, to clean up.
GI-326 Page 8
~ ~ 1
Public-Awareness
Considerations
For statutory notice requirements, see the
Statutory Notification Requirements section of
this document on page 3. A city should
consider whether it prefers that additional
parties, such as landowners or other potential
stakeholders, be notified of the proposed
MSD.
AN EXAMPLE
Figure 4 illustrates an example MSD. The figure
is of a three-dimensional cross-section of a slice
into the ground beneath property in a city. In the
cross-section, three different groundwater zones
are depicted. The box labeled "MSD Property"
depicts the lateral and vertical boundaries of the
MSD.
In this example, only Groundwater Zone 1 is
contaminated. An MSD can only be applied to
existing contaminated groundwater zones, not
to clean or uncontaminated groundwater zones.
Therefore, as indicated by the vertical boundary
of the box, only Groundwater Zone 1 is
included in the MSD. The portion of
Groundwater Zone 1 within the MSD boundary
is deemed the "designated groundwater" for the
MSD and as such is prohibited from current
and future use as potable water.
Groundwater Zones 2 and 3 are not
contaminated, and therefore they are not
eligible for inclusion in the MSD. In this
example, only Groundwater Zone 1 is
prohibited as a potable water supply. Unless
there is a potable-water well within one-half
mile of that MSD boundary, the groundwater
contamination will not be investigated or
remediated for potable-water use.
GI-326 Page 9
Figure 4. Three-dimensional cross-section
of an MSD property and the designated
groundwater zone.