Joseph Bell, P.G. Voluntary Cleanup Program – Corrective Action Section Texas Commission on Environmental Quality Environmental Trade Fair 2016 Municipal Setting Designations (MSDs): Program Overview and Requirements Municipal Setting Designations (MSDs): Program Overview and Requirements

Municipal Setting Designation (MSD) A MSD is based upon a restriction placed/supported by a municipality. MSDs prohibit current and future potable use of the groundwater within the MSD boundary. Potable use includes: drinking, showering, bathing, cooking, or watering crops for human consumption. Groundwater Zone 2 Groundwater Zone 3 Groundwater Zone 1 Soil Contamination MSD Property Designated Groundwater

Eligibility Requirements Proposed MSD must be within corporate limit or extraterritorial jurisdiction (ETJ) of municipality. Public water supply must be available to area within MSD boundary and all property within 0.5 mile of the MSD boundary. Municipality ETJ MSD 0.5 mi

Investigation/Assessme nt Remediation Post-Response Action Care When can a MSD be Pursued with the TCEQ? Investigation/AssessmentRemediation Post-Response Action Care A MSD may be pursued at any stage in the investigation and remediation process. Must have documented groundwater contamination within the proposed MSD.

? Who can utilize the provisions of the MSD? = Source Contamination originating from MSD property. MSD relief within MSD boundary MSD relief outside MSD boundary Contamination originating from non-MSD property. No MSD relief within MSD boundary No MSD relief outside MSD boundary MSD Only those persons addressing groundwater contamination within the MSD benefit from the MSD

MSD Considerations MSD ◦ Agents (consultants, lawyers) cost  Application fee  City/RPU dealings  MSD Notification  Miscellaneous Remediation ◦ Agents (consultants, lawyers) cost  Assessment  Remediation  Miscellaneous

Example 5 Mile Water well search

Potential MSD Scenarios Scenario 1: Plume defined and < size of MSD, plume stable/shrinking Scenario 2: Plume defined and < size of MSD, size expanding/unknown Scenario 3: Plume defined and > size of MSD, plume stable/shrinking Scenario 4: Plume defined and > size of MSD, plume expanding/unknown Scenario 5: Plume undefined and unknown in relation to size of MSD, unknown stability All have the same TCEQ MSD application requirements. Plume Defined Plume<MSD Expanding/ Unknown MSD 2 Plume Defined Plume<MSD Stable/Shrinking MSD 1 Plume Defined Plume>MSD Expanding/ Unknown MSD 4 Plume Defined Plume>MSD Stable/Shrinking MSD 3 Plume Undefined Plume><MSD? Expanding/ Unknown MSD 5 All have the same TCEQ MSD application requirements.

Application Requirements Application Form (TCEQ-20149) State Application Fee $1,000 (separate from city requirements) Supporting documentation (discussed later) MSD Certificates are applied to sites that are in a TCEQ Remediation Division Program

Time Frames for Review TCEQ has 90 days from receipt of the MSD Application to: ◦ Issue an MSD Certificate ◦ Deny an MSD Certificate ◦ Request additional information Any responses to requests for additional information received… ◦ TCEQ must respond within 45 days

Data for Last 5 Fiscal Years FY12 ◦ Applications Received= 40 ◦ Certificates issued= 34 ◦ Applications denied/withdrawn= 1 ◦ Applications pending by end of FY= 18 FY13 ◦ Applications Received= 27 ◦ Certificates issued= 28 ◦ Applications denied/withdrawn= 0 ◦ Applications pending by end of FY= 17 FY14 ◦ Applications Received= 25 ◦ Certificates issued= 30 ◦ Applications denied/withdrawn= 0 ◦ Applications pending by end of FY= 12 FY15 ◦ Applications Received= 33 ◦ Certificates issued= 21 ◦ Applications denied/withdrawn= 2 ◦ Applications pending by end of FY= 22 FY16 (thru Feb) ◦ Applications Received= 18 ◦ Certificates issued= 18 ◦ Applications denied/withdrawn= 0 ◦ Applications pending by end of FY= 22 Total ◦ Applications Received= 143 ◦ Certificates issued= 131 ◦ Applications denied/withdrawn= 3 Fiscal Year Applications Received Certificates issued Applications Denied/ Withdrawn Applications Pending by End of Fiscal Year FY FY FY FY FY 16 (thru Feb) Total

MSD Certificates by County 275 MSD Certificates as of 8/31/15 Number of MSD certificates by County Wichita=2 Cooke=1 Denton=3 Collin = 5 Hunt = 1 Tarrant = 49 Dallas = 112 Kaufman = 1 Lubbock = 5 Taylor = 3 Johnson = 1 Ellis = 1 Henderson = 1 Smith = 2 Gregg = 3 Harrison = 1 Ector = 1 Midland = 1 McLennan = 1 Nacogdoches = 2 Angelina = 1 Waller = 1 Harris = 61 Jefferson = 9 Fort Bend = 4 Dimmit = 1 Cameron = 1

Obtaining Required Local MSD Support This slide is a section header to go into the next area of the presentation.

Support Required for MSDs MSD Support ◦ Municipality in which the MSD is proposed ◦ Municipalities within ½ mile of proposed MSD boundary ◦ Municipalities owning or operating a water well within 5 miles of proposed MSD boundary ◦ Retail Public Utilities (RPUs) owning or operating a water well within 5 miles of proposed MSD boundary MSD Support (General Case) Municipality in which the MSD is proposed Municipalities within ½ mile of proposed MSD boundary Municipalities owning or operating a water well within 5 miles of proposed MSD boundary Retail Public Utilities (RPUs) owning or operating a water well within 5 miles of proposed MSD boundary

Format of Support for MSDs An MSD certificate will not be issued unless or until all required support is provided with the application. PASSED BY THE GOVERNING BODY Municipality in which the MSD is proposed PASSED BY THE CITY COUNCIL Ordinance or Restrictive Covenant with Resolution of Support Municipalities within ½ mile of proposed MSD boundary Municipalities owning or operating a water well within 5 miles of proposed MSD boundary Resolution of Support Retail Public Utilities (RPUs) owning or operating a water well within 5 miles of proposed MSD boundary Resolution of Support PASSED BY THE CITY COUNCIL Resolution of Support

Municipalities owning or operating a water well within 5 mi Municipalities within ½ mi RPUs owning or operating a water well within 5 mi Notification must be sent and no opposing resolution issued within 120 days from receipt of notice MSD Support in a Municipality with Two Million People or More Municipalities owning or operating a water well within 5 miles Municipalities within ½ mile RPUs owning or operating a water well within 5 miles Notification must be sent and no opposing resolution issued within 120 days from receipt of notice

Identifying RPUs Resolution of support is required from each RPU that owns or operates a groundwater supply well, as defined Texas Water Code RPUs can be located utilizing the Public Utility Commission (PUC) Water Utility Database:

Size of MSD and Implications MSD smaller than Remediation Site ◦ Only portion issued the MSD can utilize provisions granted by the MSD. ◦ Releases which occurred outside the MSD area have all applicable program rules applied and cannot utilize the MSD provisions. MSD same as Remediation Site ◦ All releases which occurred within the remediation site can utilize provisions granted by the MSD. MSD bigger than Remediation Site ◦ MSD must be contiguous properties ◦ After MSD is issued, newly identified sites within the MSD boundary can be afforded MSD relief. ◦ Assessment reports still needed for sites that were not originally identified at time of MSD issuance MSD smaller than Remediation Site ◦ Only portion issued the MSD can utilize provisions granted by the MSD. ◦ Releases which occurred outside the MSD area have all applicable program rules applied and cannot utilize the MSD provisions. MSD same as Remediation Site ◦ All releases which occurred within the remediation site can utilize provisions granted by the MSD. MSD bigger than Remediation Site ◦ MSD should be comprised of adjacent properties ◦ After MSD is issued, newly identified sites within the MSD boundary can be afforded MSD relief. ◦ Assessment reports still needed for sites that were not originally identified at time of MSD issuance MSD smaller than Remediation Site Only portion issued the MSD is subject to provisions granted by the MSD. Releases outside the MSD area are subject to all applicable program rules applied and person cannot utilize the MSD provisions. MSD same as Remediation Site Within the MSD boundary, persons can utilize provisions granted by the MSD for all releases. MSD bigger than Remediation Site MSD should be comprised of adjacent properties. After MSD is issued, newly identified sites within the MSD boundary can be afforded MSD relief. Assessment reports still needed for sites that were not originally identified at time of MSD issuance.

Notification Procedures

Notice must be provided to Municipality in which proposed MSD is located Municipalities ◦ within ½ mile of proposed MSD boundary, or ◦ owning or operating water wells within a 5 mile radius of proposed MSD boundary RPUs owning/operating a water well within 5 miles of the proposed MSD boundary Each registered private water well owner within 5 miles of the proposed MSD boundary

MSD Notifications (1of 2) Must meet requirements of Texas Health and Safety Code § All persons entitled to notice have 60 days to comment Must provide signed delivery receipts

MSD Notifications (2 of 2) Obtain most recent name and address information from county tax records ahead of time to avoid delays if “returned to sender” (necessitates additional 60 day wait) Proof of adequate delivery includes: ◦ 1 st and 2 nd attempts = signed delivery receipt ◦ 3 rd attempt = signed delivery receipt OR delivery receipt and proof of 2 failed attempts Key map ID numbers to receipts

Notification Process Overview

Excel File for Notifications Formatted for TCEQ mass mail out notifications using Microsoft Word mail merge Should contain: ◦ Current well owner name ◦ Current well owner address ◦ City ◦ State ◦ Zip Remove duplicates and plugged and abandoned wells

THSC Sections – 808 Two-Part Statute MSD Process MSD Received 801 – Definitions 801 – Definitions 802 – Purpose 802 – Purpose 803 – Eligibility 803 – Eligibility 804 – Application 804 – Application 805 – Notice 805 – Notice 806 – Denial 806 – Denial 807 – Certification 807 – Certification 808 – Investigation/ 808 – Investigation/ Response Response

Addressing Section (1 of 2) Applicable before and after MSD certificate issuance Must address all applicable non-potable groundwater use exposure pathways ◦ Does not include soil to groundwater (potable use)

Addressing Section (2 of 2) Potable water wells within MSD or ½ mile of MSD boundary ◦ More than just “registered”  Perform Drinking Water Survey ◦ Determine whether affected or threatened  If affected or threatened, additional assessment may be necessary.  If affected or threatened, address through statutory allowances provided in Section 808.

Example of further exposure pathway assessment warranted RIVER GW PLUME Source MSD Monitoring well Potable use water well

Considerations for Water Wells Within a ½ mile Radius Construction details of water wells which could warrant considering a potable water well threatened ◦ Water wells with unknown screened intervals ◦ Absence of cementation or other measures to prevent screened interval from being affected ◦ Age of the well (old wells typically not cemented to great depths and cementation more likely to fail)

Reference and Guidance Statute: Texas Health and Safety Code Chapter 361 Subchapter W Statute: Texas Health and Safety Code Chapter 361 Subchapter W MSD Guide for Cities TCEQ MSD Webpage

Questions