Resolution 2015-23 RESOLUTION NO. 2015-23(R)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WYLIE,
TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE THE
CONSENT FOR ACCESS TO PROPERTY BETWEEN WYLIE AND THE
ENVIRONMENTAL PROTECTION AGENCY CONCERNING ACCESS
TO PROPERTY LOCATED AT 900 W. KIRBY, WYLIE, TEXAS 75098;
FURTHER AUTHORIZING THE CITY MANAGER TO TAKE ANY AND
ALL OTHER ACTIONS NECESSARY TO EFFECTUATE THE SAME;
AND PROVIDING FOR AN EFFECTIVE DATE HEREOF.
WHEREAS, the City Council of the City of Wylie, Texas ("City Council") has
investigated and determined that it is in the best interest of the City of Wylie, Texas ("Wylie")
and its citizens to approve the Consent for Access to Property Agreement between Wylie and the
Environmental Protection Agency ("Consent"), concerning access to property located at 900 W.
Kirby, Wylie, Texas 75098, for the purpose of permitting the Environmental Protection Agency
to comply with its response and enforcement responsibilities under the Comprehensive
Environmental Response, Compensation and Liability Act, codified at 42 U.S.C. § 9601 et seq.
WHEREAS,the City Council has further investigated and determined that it is in the best
interest of Wylie and its citizens to authorize the City Manager to execute the Consent and to
take any and all other actions necessary to effectuate the Annexation Agreements.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF WYLIE,TEXAS:
SECTION l: Findings Incorporated. The findings set forth above are incorporated into
the body of this Resolution as if fully set forth herein.
SECTION 2: Authority of City Manager to Execute Consent. The City Manager is
hereby authorized to execute the Consent and to take any and all other actions necessary to
effectuate the same. The form of the Consent is attached hereto as Exhibit A and incorporated
herein for all purposes. Should the final executed version of the Consent be revised from the
version attached as Exhibit A. such final executed version shall replace Exhibit A of this
Resolution for all purposes.
SECTION 3. Effective Date. This Resolution is effective immediately upon its passage.
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Resolution No.2015-23(R)
Access to property located at
900 W.Kirby Rd.,Wylie
DULY PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF
WYLIE,TEXAS, on the 27th day of October, 2015.
Eric Hogue, May r 0
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Resolution No.2015-23(R)
Access to property located at
900 W. Kirby Rd.,Wylie
Exhibit A
Consent
CONSENT FOR ACCESS TO PROPERTY
Name:
Address of Property:
consent to officers, employees, and authorized
representatives of the United States Environmental Protection Agency("EPA")entering and
having continued access to my property for the following purposes:
-the taking of such soil, water, and air samples as may be determined to be necessary;
-the sampling of any solids or liquids released, discharged, spilled, stored or disposed of on
site;
-the drilling of holes and installation of monitoring wells for subsurface investigation;
- other actions related to the investigation of surface, subsurface, surface water, and/or
ground water contamination;
-the taking of a response action, including,but not limited to, a removal action and/or
spill response action, remedial investigation and feasibility study,an engineering
evaluation and cost analysis, a remedial design and remedial action, including, but not
limited to,the excavation and removal of any contaminated soil,the removal of any
contaminated structures, drums, equipment and/or material, and the removal of any oil,
liquids, solids or sludges from waters of the U.S.
I realize that these actions by EPA are undertaken pursuant to its response and enforcement
responsibilities under the Comprehensive Environmental Response, Compensation and Liability
Act("CERCLA"or"Superfund"), codified at 42 U.S.C. Section 9601 et seq.
I acknowledge that I am the person authorized to grant consent for access. This written
permission is given by me voluntarily with knowledge of my right to refuse and without threats
or promises of any kind.
Date: Signature:
Resolution No.2015-23(R)
Access to property located at
900 W.Kirby Rd., Wylie
a��ED S rgT�4
z A UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 6
% \a 1445 ROSS AVENUE,SUITE 1200
DALLAS TX 75202-2733
yl'r. pRO��C`
Mr. Arturo D. Rodriguez,Jr. September 9, 2015
Russell & Rodriguez, LLP
1633 Williams Drive
Building 2, Suite 200
Georgetown, TX 78628
RE: Chemical Recycling Inc., Superfund Site, 802 Kirby Street, Wylie,Texas
City of Wylie, Texas
Dear Mr. Rodriguez:
1 am writing in response to your electronic correspondence to me,dated August 12, 2015,
concerning the property referenced above(the"Property"). In your correspondence,you
described your client's(the City of Wylie) intentions to acquire the Property as a result of tax
delinquency and to assist the U.S. Environmental Protection Agency ("EPA") in gaining
voluntary access to perform a time-critical removal action of lead-contaminated soil at the
Property. Your correspondence requested a comfort/status letter from the EPA. The purpose of
this comfort/status letter is to provide you with information the EPA has about the Property and
applicable Agency policies, as of the date of this letter. We hope the information in this letter
enables the Cite of Wylie to make informed decisions as it moves forward with the acquisition of
the Property.
lJnder the Comprehensive Environmental Response,Compensation, and Liability Act
(CERCLA,commonly referred to as Superfund), the EPA's mission is to protect human health
and the environment from the risks posed by contaminated or potentially contaminated lands. In
doing so, it is an Agency priority to return lands to productive reuse. The EPA views the City's
intention to acquire and foreclose on the abandoned property as a positive step to achieve the
EPA's mission.
Property Status
Information on hazardous waste sites is contained in the Comprehensive Environmental
Response, Compengation,and Liability Information System (CERCLIS). Site-specific
documents and fact sheets, if available, can be accessed through CERCLIS at
-%v-,k,w.epa.gov/superfund/sites/cursites/index.htm.
The Property, at 802 Kirby Street, Wylie, Texas, is situated within the Chemical_Recycling Inc.,
Superfund Site ("Site"). This Site is located in CERCLIS, but is not on the National Priorities
List (NPL).
For the reasons stated below, the EPA is addressing the Site under its Superfund authority.
I,terne7 Aa"..d•ass(URL;e-Ttp', -v.:,^:v.,epj ov:regiont
Recycled/Recyclable•Pri^ted w th Veyetab e Oil Based inks on* a,Recycisd Pacer,Process C"urine Feee
History and Status of the Site
The Chemical Recycling, Inc., Superfund Site includes a former reclamation facility of
approximately five (5) acres that received spent halogenated and non-halogenated solvents for
recycling. It generated still bottoms as a byproduct of its reclamation process and used the still
bottoms to construct experimental roads on site.
In February. 1989,the EPA performed a Site Investigation and found the facility consisted of
distillation processing equipment, twenty (20) bulk storage tanks and approximately 1500 55-
gallon steel drums, most of which may have contained still bottoms. The Site Investigation also
found experimental roads constructed on the Site property made with spent solvents and still
bottoms. In 1989, the EPA issued an Administrative Order on Consent("AOC") for a Time-
Critical Removal Action in which multiple potentially responsible parties("PRPs") agreed to
perform. The PRPs completed the removal action at the Site in 1990.
In the Summer of 2014,the EPA performed a Removal Site Evaluation ("RSE"). The results of
the summer 2014 sampling event indicated elevated levels of lead in the soil, prompting the EPA
to issue an Action Memorandum on April 20, 2015, for another Time-Critical Removal Action
(2015 Action Memo). The 2015 Action Memo provides for the excavation and removal of lead-
contaminated soils within the Site to the industrial-lead level of 800 ppm. More comprehensive
information regarding the Site is available in the attached Action Memoranda.
Involuntary Acquisition and Reuse of the Property
Based on the information provided to the EPA, the EPA understands that the City of Wylie
intends to take involuntary acquisition of the Property. The EPA further understands the
involuntary acquisition will assist in providing the EPA with voluntary access to address the
need for a Time-Critical Removal Action. The City has expressed its intention to later sell the
property for light industrial or commercial development after EPA completes the Time-Critical
Removal Action,which is an appropriate and protective future use for the Property. The
following paragraph discusses local government's involuntary acquisition of contaminated
properties.
Local governments play an important role in facilitating the cleanup and redevelopment of
properties contaminated by hazardous substances. Therefore it is important to note that,while an
"owner or operator" of contaminated property is generally liable under Section 107 of CERCLA,
the statutory definition of these terms does not include a municipality that acquires title to
property involuntarily, unless the municipality causes or contributes to the release or threat of
release of hazardous substances from the property. In instances where a municipality takes title
to a property through involuntary acquisition - tax delinquency proceedings, bankruptcy,
abandonment, etc. - it is exempted from CERCLA liability as an otivner or operator unless the
municipality causes or contributes to the release or threat of release of hazardous substances
from the property. The municipality can then lease, transfer, or sell the property to a third party
without additional CERCLA liability concerns.
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The EPA has made a determination to perform a Time-Critical Removal at the Property which,
when completed, will enable the Property to be ready for light industrial or commercial land use
subject to applicable local zoning ordinances and all otherwise applicable laws. Further
information regarding involuntary municipal acquisitions of contaminated property is provided
in the enclosed EPA memorandum entitled "Policy on Interpreting CERCLA Provisions
Addressing Lenders and Involuntary Acquisitions by Government" and the"Municipal
Immunity from CERCLA Liability for Property Acquired through Involuntary State
Acquisition."
CERCLA's Exclusion to the"Owner/Operator" Definition
Section 101(20)(A) of CERCLA provides in part as follows:
"The term `owner or operator' means... in the case of any facility,title or control of
which was conveyed due to bankruptcy, foreclosure, tax delinquency, abandonment, or similar
means to a unit of State or local government, any person who owned,operated, or otherwise
controlled activities at such facility immediately beforehand."
Section 101(20)(D) further clarifies the definition of"owner or operator" by adding the
following specific exclusion to the definition:
"The term `owner or operator' does not include a unit of State or local government which
acquired ownership or control involuntarily through bankruptcy,tax delinquency, abandonment,
or other circumstances in which the government involuntarily acquires title by virtue of its
function as sovereign. The exclusion provided under this paragraph shall not apply to any State
or local government which has caused or contributed to the release or threatened release of a
hazardous substance from the facility, and such a State or local government shall be subject to
the provisions of this chapter in the same manner and to the same extent, both procedurally and
substantively, as any nongovernmental entity, including liability under section [107] of this
title."
The exclusionary provision provides that a local entity who acquires title to the property through
tax delinquency falls outside the definition of an "owner or operator" and is therefore protected
from CERCLA liability.
Conclusion
EPA generally issues comfort/status letters to facilitate the cleanup and reuse of contaminated or
formerly contaminated properties. This comfort/status letter is intended to help the City of
Wylie make informed decisions by providing it with the information that the EPA has about the
Property and by identifying the statutory protections, resources and tools that may be potentiall),
available at the Property.
This letter is not otherwise intended to limit or affect the EPA's authority under CERCLA or any
other law or provide a release from CERCLA liability. The EPA encourages you to consult with
legal counsel and the appropriate state, tribal or local environmental protection agency before
taking any action to acquire,clean up, or redevelop potentially contaminated property. It is the
City of Wylie's responsibility to ensure that the proposed use of the Property complies with any
federal,state, local,and/or tribal laws or requirements that may apply. The EPA recommends
that you and your client consult with your own environmental professional to obtain advice on
the compatibility of the proposed reuse.
The EPA remains dedicated to supporting the reuse of contaminated properties and hopes the
information in this letter is useful to you and your client. If you have any additional questions or
wish to discuss this information further, please feel free to contact me at (214)665-8035 or by e-
mail at Quinones.Edwin(icepa.gov.
Sincerely,
Edwin Quinones
Assistant Regional Counsel
Enclosures (2)
cc: (Without Enclosures)
Texas Commission on Environmental Quality:
Omar Valdez
Monica Harris
Charmaine Backens
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