HomeMy WebLinkAboutMC-1221
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Adopted: March 20. 2006
Effective: April 20, 2006
1 ORDINANCE NO. Me-i22i
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AN ORDINANCE OF THE CITY OF SAN BERNARDINO, CALIFORNIA, ADDING
CHAPTER 13.25 OF THE SAN BERNARDINO MUNICIPAL CODE ENTITLED SPREADING
OR EXTRACTION WITHIN THE MANAGEMENT ZONE
THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO
DOES HEREBY FIND:
A. That the City of San Bernardino Municipal Water Department (SBMWD) is required by the
terms of the Consent Decree entered on March 23, 2005 to enact institutional controls and
implement an ordinance providing for the protection and management of the Interim Remedy
set forth in Record of Decisions and Explanation of Significant Differences prepared by the
Environmental Protection Agency; and,
B. That the SBMWD is specifically required by the terms of the Consent Decree to regulate the
spreading and extraction of water from the Bunker Hill Basin within the City of San
Bernardino in order to prevent or correct spreading practices or extraction operations that
could interfere with or mterrupt or degrade performance ofthe Interim Remedy; and,
C. That the adoption of this Ordinance is statutorily and categorically exempt under the
California Environmental Quality Act pursuant to the provisions of the California Public
Resources Code Section 21080(b)(8) and Title 14, California Code of Regulations Sections
15273(a), 15301, 15302, 15303, 15307, 15308, 15309, and 15321.
NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO DO HEREBY ORDAIN AS FOLLOWS:
SECTION 1: Chapter 13.25 of the San Bernardino Municipal Code is hereby added to read
as follows:
ARTICLES
13.25.010
13.25.015
13.25.020
13 .25.025
13.25.035
13.25.040
13.25.045
13.25.047
13.25.050
13.25.055
13.25.060
13.25.070
Purpose
Background Pertaining to Newmark Groundwater Contamination
Superfund Site
Definitions
Permits
Approval of Permits
Reporting
Revocation and Emergency Powers
Interference by Existing Wells with Consent Decree or SOW
Consent Orders
Cease and Desist Orders
Hearing Procedures and Appeals
Violations, Remedies and Penalties
City of San Bernardino Municipal Water Department
Page 10f14
3/6/2006
AN ORDINANCE OF THE CITY OF SAN BERNARDINO. CALIFORNIA. ADDING CHAPTER 13.25 OF THE SAN BERNARDINO
MUNICIPAL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE
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Chapter 13.25
SPREADING OR EXTRACTION WITHIN
THE MANAGEMENT ZONE
13.25.010
Purpose.
The purpose of this Chapter is to assure that activities occurring in the Management Zone,
including but not limited to development, digging, drilling, boring or reconstruction of wells, extraction
of groundwater from wells and spreading of water do not interfere with or cause pass through of
contaminants from the Newmark and Muscoy Operable Units. Activities such as well construction or
reconstruction or artificial recharge undertaken in the Management Zone shall not cause or contribute
to the migration of groundwater contaminants from the Newmark and Muscoy Operable Units to
uncontaminated areas, nor shall such activities, even at their maximum operation, mterfere with or
adversely affect the integrity of the Newmark or Muscoy extraction and treatment systems, nor shall
they otherwise interfere with the performance of these Interim Remedial Actions at the Newmark and
Muscoy Operable Units
It is the further purpose of this chapter to assure the protection of human health and the
environment, and compliance with relevant Federal and State requirements directly associated with the
performance of the remedy.
It is the further purpose of this chapter to manage the spreading of water within the
Management Zone and manage the development, digging, drilling, boring, reconstruction of wells, and
extraction of groundwater from wells, to assure compliance with the remedial program set forth in the
RODs, Consent Decree and Statement of Work, as defined below and aid in the eventual restoration of
the aquifer to beneficial use.
It is the further intent of this Chapter to regulate activities within the Management Zone only to
the extent necessary to achieve the purposes set forth and to minimize the regulatory impacts to those
intending to spread water or develop groundwater resources in the Management Zone.
In addition to any other requirements of Chapter 13.25, the following requirements shall a:{'ply
to the Management Zone. Nothing contained herein shall exclude compliance with the other proviSIOns
of Chapter 13.25. In the event of any conflict between the provisions of this Chapter 13.25 and any
other Chapter, the terms and provisions of this Chapter shall apply.
13.25.015 Background Pertaining to Newmark Groundwater Contamination Superfund
21 Site.
22 Background.
23 A.
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In 1980 the State of California performed sampling of certain wells belonging to the City of San
Bernardino Municipal Water Department ("SBMWD"). These samples disclosed the presence
of various contaminants, including trichloroethylene (TCE) and perchloroethylene (PCE).
Pursuant to Section 105 of the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 USC 9605, the United States Environmental Protection Agency
("EP A") placed the Newmark Groundwater Contamination Superfund Site ("Site") on the
National Priorities List ("NPL"), as set forth in 40 CFR Part 300, Appendix B, by publication in
the Federal Register on March 31, 1989,54 Fed. Reg. 13296, 13301.
In late 1990, EPA commenced a Remedial Investigation ("RI") focusing on the Newmark
Operable Unit ("OU"). In September 1992, EPA expanded the Rl to include the Muscoy Ou.
City of San Bernardino Municipal Water Department
Page 2 ofl4
3/6/2006
AN ORDINANCE OF THE crry OF SAN BERNARDINO. CALIFORNIA ADDING CHAPTER 13.25 OF THE SAN BERNARDINO
MUNICIPAL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE
Me-122I
1 D. In March 1993, EPA published notice of the completion of the Feasibility Study ("FS") and the
Proposed Plan for interim remedial action pertaining to the Newmark au. In December 1994,
2 EPA published notice of the completion of the FS and Proposed Plan for interim remedial action
pertaIning to the Muscoy au.
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EP A's determinations concerning the interim remedial actions to be implemented at the Site are
set forth in the Newmark au Record of Decision ("ROD"), signed August 4, 1993, and Muscoy
ROD signed March 24 1995 and the Explanation of Significant Differences (ESD) signed on
August 18, 2004.
On September 18, 1995, EP A, the State of California and SBMWD entered into a Cooperative
Agreement providing, in part, for SBMWD to perform the operation and maintenance (O&M)
of the remedial action set forth in the RODs, and for EP A to fund the O&M.
In September 1996, the SBMWD commenced an action a~ainst the United States Army
pursuant to Section 107 and 113 of CERCLA seeking to obtaIn its costs for response and the
operation and maintenance ofthe Newmark and Muscoy OUs [City of San Bernardino v. United
States of America, Dept. of the Army, et al. USDC Case No. CV 96-5205 MRP (JGx)
consolidated with USDC Case No. CV 96-8867 MRP (JGx)].
Commencing in June 2000, SBMWD' State of California Department of Toxic Substance
Control ("DTSC") and EP A commenced negotiations to resolve various issues relating to the
Site au, Newmark au and Muscoy au. On March 23, 2005, the Consent Decree
memorializing the settlement was entered by the Court.
The Consent Decree requires, in part, for the City of San Bernardino (City) to implement an
ordinance providing for protection and management of the Interim Remedy set forth in the
RODs and ESD and specIfically for the City to regulate the spreading and extraction of water
from the Bunker Hill Basin within the City in order to prevent or correct spreading practices or
extraction operations that could interfere with or interrupt or degrade the performance of the
Interim Remedy.
The protection of groundwater resources within the City is of utmost importance to the City and
SBMWD' The public health, safety and general welfare of the people of the State of California
and of the more than 600,000 residents of the Counties of San Bernardino and Riverside who
depend upon the continued availability of potable groundwater from the Bunker Hill Basin is
paramount. The public health, safety and general welfare of the people of the State of
California and the residents of the City of San Bernardino require assurance that spreading of
water and extraction of groundwater do not interrupt or Interfere with the constructIOn,
operation and maintenance of the Interim Remedy or degrade the performance of the Interim
Remedy.
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The Interim Remedy requires, in part, the extraction of contaminated groundwater from the
Bunker Hill Water Basin, and within the Newmark and Muscoy OUs, and treatment of the
groundwater to meet all State and federal permits and requirements for drinking water and
delivery of treated water to SBMWD for dIstribution to the public through its potable water
system, or in the alternative, for recharge to the aquifer.
L.
Inhibitor wells extract groundwater. The inhibitor wells are located at the downgradient end of
the Management Zone. The inhibitor wells currently in place were designed to function based
upon hydrological factors relating to the flow of water through the basin. The rate of flow
through the basin may increase when additional spreading occurs at spreading basins located
upgradient from the inhibitor wells. Another factor affectIng flow rate is the amount of water
flowing through the basin and either extracted or flowing out of the basin. When extraction of
groundwater occurs downgradient or to the side of Management Zone, or the capacity of
City of San Bernardino Municipal Water Department
Page 3 of 14
3/612006
AN ORDINANCE OF THE CITY OF SAN BERNARDINO. CALIFORNIA. ADDING CHAPTER 13.25 OF THE SAN BERNARDINO
MUNICIPAL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE
Me-i22i
existing downgradient or adjacent wells are increased, the rate of flow may increase. Should an
increase in the flow of water occur beyond the capacity of the inhibitor wells, the inhibitor wells
may not be able to contain and extract the additional contaminated water before it enters the
aquifer downgradient from the inhibitor wells.
As required by the Consent Decree, the City must exercise its police power to protect the public
welfare of the City by adopting reasonable regulatory measures.
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M.
5 13.25.20 Definitions.
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B.
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C.
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"Adverse Effect," and "Adversely Effect," Any proposed new or reconstructed well, or any
water spreading (artificial recharge) activity, forecast to reduce particle capture (as measured
using Predictive Particle Tracking) below 95% at any time in the proposed future permit term,
shall be presumed to have an adverse effect under this Ordinance. This presumption may be
rebutted by Project Re-design or Mitigation Measures to restore particle capture percentages,
over a hydrolog1c cycle representative of long-term hydrology and extending for a term at least
as Ions as a proposed permit term, to at least 95% at all times, with the proposed project
operatmg at the full permitted capacity for the life ofthe proposed project.
Applicant": The person or entity submitting the application addressed in this chapter. The term
"Applicant" shall also include the person or entity granted any permit or permiss10n pursuant to
the terms of this chapter, and shall also include all licensees, lessees, agents, contractors,
operators, employees, officers, directors, representatives, attorneys, successors, assigns, heirs
and other persons or entities exercising the rights of the permit through applicant. The term
"Applicant" shall not include a Party to the ICGMP that is exempt from the provisions of this
Ordmance as provided in section 13.25.025(G) below
"Aquifer": A geologic formation that stores, transmits and yields significant quantities of water
to wells and springs.
"Barrier well": See "Inhibitor well" below.
"Basin": The Bunker Hill Basin
"City": The City of San Bernardino.
"Code": The San Bernardino Municipal Code.
"Contamination" means any impairment in the quality of water of the City by wastes or other
degrading elements in amounts or concentrations violating any federal or state drinking water
standard or applicable permit limit for the water produced by the Interim Remedy, or otherwise.
"Day" means a calendar day.
"Department" means the San Bernardino Municipal Water Department.
"DOHS": State of California Department of Health Services.
"DTSC": State of California Department of Toxic Substance Control.
"EPN': The United States Environmental Protection Agency.
"Extraction": The process of taking water from the groundwater aquifer by way of wells and
other appurtenances.
City of San Bernardino Municipal Water Department
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3/6/2006
AN ORDINANCE OF THE CITY OF SAN BERNARDINO. CALIFORNIA ADDING CHAPTER 13.25 OF THE SAN BERNARDINO
MUNICIPAL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE
Me-I22I
1 O. "FS": The Feasibility Studies performed by EPA for the Site and completed in March, 1993
and December 1994.
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"General Manager" means the San Bernardino Municipal Water Department General Manager
or designee.
"Groundwater": All water beneath the surface of the earth within the zone below the water
table in which the soil is saturated with water.
"Groundwater Model" or "Model" means the mathematical calculations required to be produced
pursuant to the Consent Decree and SOW addressing the physical characteristics of the
groundwater in the Bunker Hill Basin under various conditions. The Groundwater Model is a
three-dimensional numerical model that will account for changes in water levels over time, and
will account for spatial variations in underground hydrologic parameters. The Groundwater
Model can be used to perform Predictive Particle Tracking by simulating future groundwater
levels in three dimensions over time.
"Inhibitor Well": The wells designed by EPA for the extraction of water from specific areas of
the basin and identified in the RODs.
"Management Zone": The geographic area depicted and defined on Exhibit "A" and Exhibit
"B", on file in the office of the General Manager of SBMWD. The "Management Zone" is
referred to in the Consent Decree as the "Permit Zone".
"Mitigation Measures" mean readily enforceable and verifiable steps taken to reduce or
eliminate Adverse Effects forecast for a proposed new or reconstructed well or water spreading
(artificial recharge) project by Predictive Particle Tracking. Mitigation Measures can include,
but are not limited to:
1.
locating an additional well or wells in the contaminant plume to counteract migration of
contaminants past the inhibitor wells;
readily enforceable and verifiable pumping restrictions;
physical reductions in the size of well equipment to limit the well capacity.
2.
3.
v.
"NPL": National Priorities List.
W.
x.
"OU": Operable Unit.
"Person": Any state or local government agency, private corporation, firm, partnership,
individual, group of individuals, organization, association, or to the extent authorized by law,
any federal agency.
Predictive Particle Tracking means the use of the Groundwater Model, with the inhibitor wells
operating at Design Rate under the SOW, over a representative hydrologic cycle, including
representative wet and dry periods for the Bunker Hill Basin, to determine the percentage of
particle capture achieved at all times over the life of the proposed project, mcluding any
applicable Mitigation Measures or Project Re-Design, with the proposed project operatmg at
full permitted capacity for the entire permit term. .
"Project Re-Design" means verifiable and enforceable changes in the physical design,
equipment, or location or volume of a proposed water spreading (artificial recharge) or new or
reconstructed well project intended to reduce or eliminate Adverse Effects forecast for a project
evaluated with Predictive Particle Tracking.
y.
Z.
City of San Bernardino Municipal Water Department
Page 5 of14
3/6/2006
AN ORDINANCE OF THE CITY OF SAN BERNARDINO. CALIFORNIA. ADDING CHAPTER 13.25 OF THE SAN BERNARDINO
MUNICIPAL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE
Me-122I
1 AA. "RI": The Remedial Investigations performed at the Site for the Newmark Operable Unit and
the Muscoy Operable Unit.
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CC.
DD.
EE.
FF.
00.
RH.
13.25.025
A.
B.
C.
"Record of Decision" or "ROD": The Record of Decision for the Newmark Operable Unit
signed August 4, 1993 and the Record of Decision for the Muscoy Operable Unit Signed March
24, 1995 setting forth the provisions of the Interim Remedy to be Implemented in addressing the
contamination Identified in RIfFS.
"Remedy" or "Interim Remedy": The course of action set forth in the RODs, Statement of
Work (SOW), and Consent Decree (CD) relating to the operation and maintenance of the
remedial action specified in said documents.
"SBMWD": The San Bernardino Municipal Water Department.
"Site": The Newmark Groundwater Contamination site identified in 40 CFR Part 3rd
Appendix B, published in the Federal Register on March 31, 1989,54 Fed. Reg. 13296, 13301.
"Spreading Basin": Areas, facilities and portions ofland set aside for the deposit of water with
the intent to allow the water to percolate into the groundwater basin, as depicted on Exhibit "C",
attached hereto and incorporated by this reference and on file in the office of the General
Manager of SBMWD.
"Statement of Work" (SOW): The document incorporated into the Consent Decree, referenced
in Section 13.25.015 R., setting forth the implementation of the remedial action to be performed
by SBMWD, EPA and DTSC relating to the Newmark OU and Muscoy ou.
"Well" or "water well" means any artificial excavation constructed by any method for the
purpose of extracting water from, or injecting water into the ground. This definition shall not
mclude:
1.
Oil or gas wells, or geothermal wells constructed under the jurisdiction of the California
State Department of Conservation, except those wells converted to use as water wells; or
Wells used for the purpose of:
2.
a. Dewatering excavation during construction, or
b. Stabilizing hillsides or earth embankments.
Permits.
Spreading. Unless a permit issued by SBMWD pursuant to this Chapter is first obtained, it shall
be unlawful for any person, as prinCipal, agent or employee, to spread water (artificial recharge)
within the Management Zone.
Groundwater Extraction. Unless a permit issued by SBMWD pursuant to this Chapter is first
obtained, it shall be unlawful for any person to develop, dig, or drill a new well, or to
reconstruct an existing well in a manner to increase its maximum capacity over its maximum
capacity on March 23, 2005, or the most recent operation if the well was inoperable on March
23, 2005, or to allow the development, digging, drilling, or reconstruction of any well on land
located within the Management Zone.
Aphlication for Permit. An application for a permit shall be filed by the landowner or Applicant
Wit the SBMWD on a form provided by SBMWD. Applicant has an affirmative duty to
provide accurate representations of all material facts in the application.
City of San Bernardino Municipal Water Department
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3/612006
AN QIIDINANGR QF TltR GITY QF SAN RRRNAlU}tNQ, GAWFQRNIA, AUI}INQ GHAI'TRR U,~5 QF TltR SAN RRRNAlWINQ
MUNICIPAL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE
Me-I22I
D. Contents of Ap~Hcation for Permit for Extraction. The contents of the AppHcation for Permit
for Extraction s all include, as a minimum, all of the items set forth in Section 13.24.250 and
the elevations of proposed screening intervals, and such other information as SBMWD
determines necessary and appropriate to evaluate the application and assure that the proposed
extraction will not interfere with, compromise, endanger or detrimentally or Adversely Affect
the Interim Remedy or otherwise cause or contribute to the movement of contaminants to areas
downgradient ofthe Inhibitor Wells, or increase the Hkelihood that contaminants will migrate
past or around these wells, or interfere with or Adversely Affect the Interim Remedy.
Contents of Ap~lication for Permit for Spreading. The contents of the Application for Permit
for Spreading s all include, as a minimum, the name of the person proposing to conduct the
spreading, the time period over which the spreading is proposed to occur, the volume, location
and such other information as SBMWD may determine necessary and appropriate to evaluate
the application and assure the proposed spreading will not interfere with, compromise, endanger
or detrimentally affect the Interim Remedy or otherwise cause or contribute to the movement of
contaminants to areas downgradient of the Inhibitor Wells..
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Fees. SBMWD may levy a fee for review of the Application for Permit and monitoring of
compliance with the permit. The fee shall be established by resolution of the SBMWD Board of
Water Commissioners.
G.
Exemption from Permit and Related Requirements for Institutional Controls Groundwater
Management Program aCGMP) Members. By agreement effective January 1,2005, a number
of local water agencies have entered into the agreement entitled Agreement to Develop and
Adol?t an Institutional Controls Groundwater Management Program. That program currently
provIdes for short-term restrictions on production and spreading to protect the Interim Remedy
while a long-term agreement is negotiated. The long-term agreement will be as protective of
the Interim Remedy as this Chapter, and projects which are subject to the ICGMP or successors
to that Agreement will be reVIewed and approved by the ICGMP Parties pursuant to those
agreements. As long as a party proposing to construct or reconstruct a well or to spread water
for artificial recharge is a member in good standing of the ICGMP under the agreement
effective January 1, 2005, or successors to that AS!.eement, that Party's project(s) will be
exempt from the provisions of this Ordinance and WIll be reviewed and approved pursuant to
the ICGMP or successors to that Agreement rather than this Ordinance. Compliance with
ICGMP requirements shall be deemed to be full compliance with this Chapter. Non-compliance
with ICGMP requirements shall be addressed pursuant to remedies provided for in the ICGMP
Agreement or successors to it. In the event the ICGMP expires or lapses while this Chapter is in
force, or a Party with an approved spreading or well project withdraws from the ICGMP, any
Mitigation Measures, Project Re-Design measures, access and monitoring requirements, and
parallel undertakings imposed or agreed to by the Party under the ICGMP shall become fully
enforceable by the City under this Chapter.
Review of Application.
1.
The review process of the application will commence when SBMWD determines it has
rec~ived from the Applicant all documents and necessary information to commence its
reVIew.
2.
Subject to timely participation by EPA and DTSC, SBMWD shall endeavor to complete
the review within One Hundred Twenty (120) days from Notice by SBMWD to
Applicant that the appHcation is deemed complete.
The completed application shall be subject to review and comment by the EP A and
DTSC. SBMWD shall provide to EPA and DTSC a copy of its proposed decision, after
which EP A and DTSC, pursuant to the Consent Decree, shall have a minimum of thirty
(30) days to comment on the proposed decision. If either EP A or DTSC object in
3.
City of San Bernardino Municipal Water Department
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3/612006
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AN ORDINANCE OF THE CITY OF SAN BERNARDINO, CALIFORNIA, ADDING CHAPTER 13.25 OF THE SAN BERNARDINO
MUNICIPAL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE
Me-122I
writing to the permit application, proposed decision or modeling work on which a
proposed permit decision IS based, the SBMWD, EP A and DTSC, shall consult for up to
sixty (60) days in order to resolve any material differences among them over such
matters. Consistent with the Consent Decree, the SBMWD shall not issue a permit over
the unresolved objections of either EP A or DTSC.
4. Except as provided below, Applications shall be evaluated using the Predictive Particle
Tracking in order to determme if there is an Adverse Effect. Once approved by EP A,
the Groundwater Model will be used for Predictive Particle Tracking, to forecast particle
capture through a hydrologic cycle reasonably representative of long-term hydrology
lasting for at least the proposed permit term, which hydrologic cycle shall include a wet
cycle and a dry cycle, based on historic hydrologic data for similar periods, and which
shall assume that the Inhibitor Wells are operated at Design Rates. Mitigation Measures
and any Project Re-Design are to be evaluated usin~ the same method. No proposed
well construction or reconstruction, or future spreadmg operation, shall be approved if
the project is forecast to have an Adverse Effect unless such Adverse Effect is
elimmated through readily enforceable Mitigation Measures or Project Re-Design.
Permit Applications for Extraction Wells in Plume Areas and for Irrigation Use on Overlying
Land.
1. Applications to drill in the areas shown on the attached map, Exhibit C to this Chapter,
are strongly encouraged. The boundaries of these areas correspond to the City's
estimates of areas within the Newmark and Muscoy contaminant plumes where
extraction and treatment of water from these areas will slow the spread of contaminants.
2. For wells proposed in the designated areas shown in the map, the Applicant and the City
may use a streamlined modeling process, to be developed by the City, to model the
projected hydraulic impacts of the proposed extraction well in the proposed location
upon the operations of the inhibitor wells. Such application shall clearly demonstrate
that:
3.
a. the well will conform to standards for structural integrity;
b. the water it produces will be properly treated; and
c. the well is screened at a depth and in such a manner that its construction and
operation will not cause the migration of contaminants between different
confined intervals of the aquifer.
The City shall set the permit term for such wells in the designated areas for not less than
15 years, with the option, in the City's discretion, to set the permit term for up to 30
years.
Wells used by overlying landowners solely for non-potable irrigation or solely for sand
and gravel operations on such land, may be replaced on the same parcel without a permit
under this Chapter provided that no such overlying landowner shall extract more than
250 acre feet per year from the same or contIguous parcels without a permit issued
pursuant to this Chapter.
The City recognizes that the wells listed in Exhibit D by Assessor Parcel Number (APN)
have been used by the overlying landowners solely for non-potable irrigation on such
land. These landowners may replace these wells on these properties without making the
modeling demonstration required by this Chapter provided that such Applications
clearly demonstrate that:
4.
5.
City of San Bernardino Municipal Water ])epartment
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AN ORDINANCE OF THE CITY OF SAN BERNARDINO. CALIFORNIA, ADDING CHAPTER 13.25 OF THE SAN BERNARDINO
MUNICIPAL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE
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the water it produces will continue to be used only for non-potable irrigation or
sand and gravel operations on the land, or contiguous parcels of the same
landowner, where the well is located;
the well is constructed and screened in such a manner that it will not cause
migration of contaminants between different confined intervals of the aquifer,
provided, however, that if the replacement well is screened in substantially the
same interval as the well it replaces, the replacement well shall be entitled to a
rebuttable presumption of compliance with this condition; and
that extractions shall not increase by more than 25% over the maximum annual
production and extraction rates for the last ten years, as shown by
contemporaneous documentary evidence or by an Edison Pump Test and review
of electrical consumption.
Approval of Permits.
a.
b.
c.
A.
13.25.035
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Standard of Review. Except as provided above, a permit may be granted for a period of up to
fifteen (15) years with or without conditions under the provisions of this chapter only if the
Applicant demonstrates that the proposed extraction or spreading and method of operation is not
forecast to cause an Adverse Effect when evaluated using the Predictive Particle Tracking, and
will not interfere with, compromise, endanger or detrimentally affect the Interim Remedy, or
cause the City to be in potential violation or non-conformance with the SOW, Consent Decree
or RODs, or EP A or DTSC approved plans adopted thereunder.
Prior to the completion of an updated Groundwater Model the Applicant shall bear the
burden of demonstrating through the use of engineering and other satisfactory scientific
data that the proposed extraction or spreading will not cause an Adverse Effect and will
not interfere with, compromise, endanger or detrimentally affect the Interim Remedy.
After an updated Model has been completed, the Applicant shall bear the burden of
demonstratmg through the use of the Predictive Particle Tracking and other satisfactory
scientific evidence that the proposed extraction or spreading is not forecast to cause an
Adverse Effect, and will not interfere with, compromise, endanger or detrimentally
affect the Interim Remedy.
Conditions of Approval.
1.
2.
1.
In the event the application is approved, EP A, DTSC and SBMWD shall have the right
to condition approval upon Mitigation Measures, Project Re-Design, or other remedial
activities to be performed by Applicant. EP A, DTSC or SBMWD may require
Applicant to prepare a mitigatIOn or remedial plan subject to approval by EP A, DTSC
and SBMWD prIor to issuance of the permit.
If Mitigation Measures, Project Re-Design, or remedial activities are required as a
condition of the issuance ofa permit, SBMWD may require Applicant to post a bond of
sufficient value to assure compliance with the mitigation or remedial activities.
Upon approval of the application, with or without Mitigation Measures, Project Re-
Design, or remedial actiVIties, and after the posting of a bond, if required, SBMWD shall
issue a permit.
2.
3.
4.
The approval and issuance of a permit shall be subject at all times to the monitoring of
Applicant's activities and suspension or revocation of the permit if it is determined by
City of San Bernardino Municipal Water Department
Pal!.e 9 of 14
3/6/2006
AN ORDINANCE OF THE CITY OF SAN BERNARDINO, CALIFORNIA, ADDING CHAPTER 13.25 OF THE SAN BERNARDINO
MUNICIPAL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE
Me-122I
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SBMWD, EP A or DTSC that Applicant's activities interfere with, compromise,
endanger or detrimentally affect the Interim Remedy.
The issuance of a permit shall be conditioned on the grant to EP A, DTSC and the City,
including SBMWD, their contractors and representatives, of access to the wells or
spreading basins or related areas for the purpose of verifying compliance with the
permit, and upon reasonable notice to inspect and copy documents and records of
Applicant's operations of the permitted facilities.
Misrepresentation or failure to disclose material facts in the application shall be grounds
for denial of the application.
The approval and issuance of a permit shall be conditioned upon Applicant
indemnifying, defending, and holding City and SBMWD harmless from any and all
claims, causes of action, injury to person or property and enforcement proceedings
arising from or related to the Application for Permit, property subject to the permit,
work to be undertaken relating to the permitted property, including work not the subject
of the permit or any other matter related to the permit or granting of the permit,
including but not limited to any costs incurred by SBMWD or City from any contest to
the issuance of the permit.
Denial of Ap~cation. SBMWD shall deny the application if it determines that the standards of
this Chapter ve not been attained or if either SBMWD, EP A or DTSC determines that the
proposed project is forecast to cause an Adverse Effect which is not eliminated by Mitigation
Measures or Project Re-Design or will interfere with or adversely affect the integrity of the
Newmark and Muscoy extraction and treatment systems, or will increase the likelihood that
contaminants will mi~ate past or around the barrier walls that are part of those systems or will
otherwise interfere With the performance of the Interim Remedial Actions, or cause the City to
be in potential violation or non-conformance with the SOW, Consent Decree or RODs, or any
plan approved by EP A or DTSC in order to implement those documents. SBMWD shall
provide to Applicant a copy of the written objections made together with any additional written
statement of reasons by EP A, DTSC and/or SBMWD for disapproval of the permit. An
Applicant denied a permit may appeal the decision pursuant to Section 13.25.060.
5.
6.
7.
C.
18 13.25.040
Reporting
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Reporting by Applicants. A condition of each and every permit shall be the requirement that the
Applicant proVide, at least quarterly, regular written reports to SBMWD of water levels,
chemistry and other information affecting water quality deemed appropriate by SBMWD. The
SBMWD may specify forms for such reports and such forms shall be used by Applicant to
comply with the provisions of this section. Such reports shall require Applicant to perform
momtoring, sampling and record keeping of any wells that are the subject of the permit,
including the amount, rate and timing of extraction or spreading and the quality of water being
extracted or spread, including, but not limited to, concentrations of perchloroethylene (PCE),
Trichloroethylene (TCE), Freon and other water quality related concentrations specified by
SBMWD. Upon receipt of any report requested or required by this chapter, SBMWD may
require a follow-up report of additional data and/or information.
Applicant shall keep records of all activities relating to the operation of wells and/or spreading
activities, including all sampling results and flow data. Such records shall be available for
inspection and copying by SBMWD, EPA and DTSC upon forty-eight (48) hours notice. These
records shall be maintained for a period of not less than five (5) years. The period for retention
of records shall automatically be extended for any period of litigation between SBMWD, the
City of San Bernardino, EP A and/or DTSC and Apphcant.
City or San Berrurcdino Municipal Water Department
Page 10 of14
3/612006
AN ORDINANCE OF THE CITY OF SAN BERNARDINO, CALIFORNIA, ADDING CHAPTER 13.25 OF THE SAN BERNARDINO
MUNICIPAL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE
C-1221
B. Reporting by Non-Applicants. Every person, except Parties to the ICGMP described in section
13.25.025(G) above, spreading or extracting more than 250 acre-feet in any month shall report
the amount of such spreading or extraction to the City within ninety (90) days of the close of the
calendar year quarter in which such spreading or extraction occurred. Said report shall be
submitted under penalty of perjury. The SBMWD may specify forms for such reports and such
reports shall be used to comply With the provisions of this section.
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13.25.045
A.
Revocation and Emergency Powers.
If there is an immediate and serious threat to the Interim Remedy, and its performance in
accordance with the SOW, Consent Decree or RODs, and if SBMWD believes it may be due in
whole or in part to Applicant's operations, SBMWD may order Applicant to cease or reduce its
operations and show cause why the permit should not be revoked, modified or restricted.
In addition to the provisions set forth above, the permit may be revoked upon the determination
of the SBMWD General Manager of any of the following:
Misrepresentation or failure to disclose material facts in the application.
Falsifying or making misrepresentations on any reports submitted to SBMWD, whether
as part of the application, as a condition of the permit or as submitted voluntarily by the
Applicant.
Tampering with monitoring equipment subject to the permit.
Refusing or obstructing SBMWD or its designee, or EPA or DTSC, or their designees'
timely access to the permitted sites and operations, and records of those operations.
Failure to pay fines.
Failure to meet compliance schedules.
Failure to comply with conditions of approval.
Failure to file timely reports or to respond to requests for reports, sampling data,
monitoring activities or cooperation with the Interim Remedy for the Newmark
Superfund Site.
In the event the activities ofthe Applicant, or Applicant's agents, contractors, licensees, lessees
or employees are deemed by SBMWD to interfere with or adversely affect the integrity of the
Newmark and Muscoy extraction and treatment systems, or will increase the likelihood that
contaminants will migrate past or around the barrier wells that are part of those systems or will
otherwise interfere with the performance of the Interim Remedy, SBMWD may revoke or
suspend the permit and compel Applicant to cease all activities covered by the permit until
either a hearing is held before the Board of Water Commissioners pursuant to Section
13.025.060 below for Applicant to demonstrate why the permit should not be modified or
revoked, or Applicant and the General Manager reach a mutually acceptable resolution. In all
other circumstances, Applicant shall be adVised in writing of any non-compliance with the
permit or other condition that may warrant a modification of permit conditions or revocation of
the permit, and Applicant shall be afforded the opportunity for a hearing before the Board of
Water Commissioners pursuant to the provisions of Section 13.25.060, below, to present any
evidence as to why the permit should not be modified or revoked.
1.
2.
3.
4.
5.
6.
7.
8.
City of San Bernardino Municipal Water Department
Page 11 of 14
3/612006
AN ORDINANCE OF TIlE CITY OF SAN BERNARDINO, CAliFORNIA, ADDING CHAPTER 13.25 OF THE SAN BERNARDINO
MUNICIPAL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE
MC-1221
1 13.25.047
Interference by Existing Wells with Consent Decree or SOW
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In the event an existing well, not subject to the Permit requirements of this Chapter, is operated
in a manner which materially interferes with the City's compliance with the provisions of the Consent
Decree or SOW, or requires an increase in operating rates above Design Rate in order to maintain
compliance with the requirements of the Consent Decree or SOW, the CIty may halt, abate, or reduce
such activities by injunction from the San Bernardino County Superior Court, or by the United States
District Court for the Central District of California, acting pursuant to the U.S. District Court's
retention of jurisdiction over Institutional Controls in paragraph 1.b, page 11, lines 6-19 of the Consent
Decree. ThIS provision is in addition to, and not in derogation of, the City's other statutory, equitable,
and common law remedies.
7 13.25.050
Consent Orders
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The SBMWD may enter into consent orders, assurances of voluntary compliance, or similar
arrangements establishing an agreement with any person responsible for non-compliance withJhe
provisions of this Chapter. Such arrangements will include specific action to be taken by the person to
correct any non-compliance and shall be enforceable in a court of competent jurisdiction.
13.25.055.
Cease and Desist Orders
IfSBMWD finds that a person has violated any provision of this Chapter, or a permit, or the
person's activities pose an immediate and serious threat to the Interim Remedy, and that it is likely the
person will continue with such violation or detrimental activities, SBMWD may issue an administrative
order directing such person immediately to cease and desist from such conduct and to take all actions
necessary to comply fully with the order. If the person fails immediately to comply with such an
administrative order, that person shall be subject to criminal and civil liability in addition to whatever
civil liability the person may have been subject to as a result of the conduct that prompted the issuance
ofthe cease and desist order.
16 13.25.060
Hearing Procedures and Appeals.
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A.
In the event SBMWD denies an application, imposes or materially modifies a condition of
approval that is/are unacceptable to Applicant, or suspends or revokes a permit, an appeal may
be commenced by Applicant.
All appeals must be filed in the office of the SBMWD General Manager within fifteen (15) days
of any denial, approval with conditions, suspension or revocation. The Appeal filed with
SBMWD shall include the name of the Applicant, name, address and telephone number of the
person representing applicant, Assessor's Parcel Number (APN) or other description of property
Involved, any identifYIng case number or application number issued by SBMWD; the baSIS for
the appeal, the date and signature of the Applicant.
All appeals shall be heard by the SBMWD Board of Water Commissioners during their regular
meetIngs. The burden of proof at such hearing shall be upon the Applicant. Following the
hearing the Board of Water Commissioners shall issue its decision. Said decision shall be
deemed a final administrative decision. Upon rendition of any adjudicatory administrative
decision by the SBMWD Board of Water Commissioners, notice shall be given to the parties
that the time within which judicial review must be sought is governed by the provisions of
Section 1094.6 of the California Code of Civil Procedure
B.
C.
D.
Any issue relating to the Consent Decree or SOW may, at the discretion of the SBMWD, be
adjudicated in the United States District Court for the Central District of California, including
the right of the SBMWD to remove any action initially brought in a California trial court.
City of San Bernardino Municipal Water Department
Pa~e 12 of 14
3/6/2006
AN ORDINANCE OF THE CITY OF SAN BERNARDINO, CALIFORNIA, ADDING CHAPTER 13.25 OF THE SAN BERNARDINO
MUNICIPAL CODE ENTITLED SPREADING OR EXTRACTION WITHlN TIlE MANAGEMENT ZONE
Me-I22I
1 13.25.070
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Violations, Remedies and Penalties.
Any person violating any provision of this chapter or any condition ofa permit shall be guilty of
a misdemeanor, punishable by a fine not exceeding $1,000.00 per violation, and/or by
imprisonment not exceeding six months for each violation. Each day a violation occurs may be
deemed a separate violation.
Notwithstanding anything to the contrary contained herein, and in addition to any other
penalties, fines or other action, the SBMWD Board of Water Commissioners may order the
payment of damages and civil penalties not to exceed $10,000.00 per day and actual dama~es
for any violation of any provisIOn of this chapter. Said penalties shall be deemed to be cIvil
penalties and may be imposed in addition to any criminal penalties.
In the event of any violation of any provision of this chapter, and in addition to any other
remedies, at the sole and exclusive discretion of SBMWD, the permit may be revoked.
A violation of any provision of this ordinance or any permit provision or condition shall be
deemed to be a publIc nuisance.
City of San Bernardino Municipal Water Department
Page 13 of14
3/6/2006
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23 JAMES F. PENMAN
City Attorney
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AN ORDINANCE OF THE CITY OF SAN BERNARDINO, CALIFORNIA, ADDING CHAPTER 13.25 OF THE SAN BERNARDINO
MUNICIPAL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE
Me-I22I
1 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and
2 Common Council of the City of San Bernardino at a ~~~~Lr meeting thereof, held on the
20th day of
, 2006, by the following vote, to wit:
March
COUNCIL MEMBERS AYES NAYS ABSENT ABSTAIN
ESTRADA X
BAXTER X
MCGINNIS X
DERRY X
KELLEY X
JOHNSON X
MCCAMMACK X
~i&",~
The foregoing Ordinance is hereby approved this d-O ~ay of March
,2006.
orris, Mayor
an Bernardmo
Approved as to form
and legal content:
City of San Bernardino Municipal Water Department
Page 14 of 14
3/6/2006
Me-122I
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ORDINANCE NO. Me-122I
AN ORDINANCE OF THE CITY OF SAN BERNARDINO,
CALIFORNIA, ADDING CHAPTER 13.25 OF THE SAN BERNARDINO
MUNICIPAL CODE ENTITLED SPREADING OR EXTRACTION
WITHIN THE MANAGEMENT ZONE.
EXlllBIT D
County Well Recordation Numbers
APNs
I
3601925
I
3600119,3600742,3600743
0153351170000
0153351171001
0150161120000
0150154140000
0272161120000
0272161070000