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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 then delete; any other use of this email message is prohibited. Thank you. 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. Appl3cant contacts city and - RPU for support. I ~ ~ csxy & nPU ~ contact with - - - - - - - - - - - - TCEQ. ~ clq• & N. RPU Do not submit MSD applicatlon. Support MSD4 Yea RPU - retail public utility Appllcant leaues required noUce lettsre, and eubmita MSD application to TCEQ. Meets eligibWty & Yee RenoWtfons No application or requirements ordinances 7 adopted4 i rCity & RPU adopt resolution & ordlnances. Appllcant aubmlis proof W TCEQ. 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 I LegMd comd.s ~.~.w. ; ~ Major A r lf B N w~a . _.i qu e s ame ~ CARRQO ' ~ Envwaos .y. EDNW2DSTRMATY cuLF cwsr H,ECo saSoN ocnLuu+ PHCOS VAILEY SEYMWR ~ iaNm ~ 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. N w*e $ o 100 zoo soo 6==4==l ~ Miles ~pa 0 oo~+es Repeal of Ordinance ! BLOSSOM ! BONE fiPRINC+VICTORIO PEAk CZ BRAZasFWERALLWIU, The MSD certificate is nGIPITANREEfCOMPLEx CKUII L D predicated on the institutional O WEDYMRD6TflINITY(NOHPUIIS) control (ordinance or restrictive MELLENBUROER-&1N5A84 L HCKOFY covenant) remaining in effect. M pwms Therefore, if the ciry changed its ~ U"'" MAPATNON ~ support for an MSD by ~ MAftBtEFRLLb withdrawing an ordinance, there tp-'"GT°CI' pVEfN CITY 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.