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HomeMy WebLinkAbout23-Water Department MAYOR & COMMON COUNCIL / COMMUNITY DEVELOPMENT COMMISSION MEETING BACKUP MEETING DATE: March 6, 2006 DEPUTY: Linda Sutherland *** No backup materials are included for the following items. *** ITEM # STATUS 8 9 19 Resolution approving destruction of City Attorney records Old Waterman Canyon Fire Set a public hearing for proposed development impact fees 20 Ordinance amending Chapters 2.02, 2.04, 2.06 et al 21 22 Cable Canyon Road Council Committee Appointments 23 Ordinance adding Chapter 13.25 Spreading or Extraction . ~R-06-06 11 :44 FROM-LAW OFFICES OF ROBERT A, OWEN T-116 P.02/03 F-i3T City of Rialto CALIFORNIA Office of the Oty ^ttDtney Robert A. Owen City Anomey March 6, 2006 Entp-rp-d into Record at / / Cn",,' :', 'lVl1p-vCms MIg: .3/1110 " bY-~'1 Oc..l~~G..LC re A\julda Item _. . 2.3' Stacey R. Aldstadt General Manager City of San Bernardino Municipal Water Department 300 North "D" Street, 5tb Floor appetence San Bernardino, CA 92418 Via Facsimile @ (909) 384-5215 ~h~ ~ity Clerk/CDC Secy City of San Bernardino Re: Proposed Ordinance of the Ciry of San Bernardino adding Chapter J 3.25: Regarding the Spreading or Extraction of Water within the Management Zone Dear Ms. Aldstadt: This will confirm the substance of our meeting on Monday, February 27,2006, regarding the City of Rial to's position on the above referenced Ordinance, as follows: Staff for both cities agreed that tremendous progress has been made towards resolving some of the previously held differences on the application ofme Ordinance to the City of Rial to. Despite the fact that the legal staff for each City still have widely different views regarding the constitutionality of the Ordinance in some of the unaddressed areas, and in light ofthe totality of the circumstances as discussed in our numerous meetings, I intend to recommend to the Rialto City Council that it not institute any litigation as a result of 1I1e City of San Bernardino's adoption of the OrdinanCe. While, of course, the City of Rialto reserves its rights to raise any and all constitutional infirmities of the OrdinanCe in any subsequent litigation or enforcement actions, we believe the more productive path would be to work in cooperation with yOIl, your staff, the Water Board and the San Bernardino Common Council, towards solutions that address the concerns of both Cities in an anlicable fashion. We believe that such solutions are at hand, provided that both parties continue to pursue them in good faith. Rialto does have one change in the Ordinance that may be necessary in the future in order to enable amicable resolution of such issues. It would be a change that would at least authoriu: the general manager to approve the issuance of a permit for either 25 or 30 years for publicly operated WIIter purveyors subject to the Ordinance (of which Rilllto is the only one), so that 150 SOUTH PALM AVENUE, RlALTO, CAUFORNIA 92376 (909) 89()..9027 . Fax (909) 890.9037 MAR-OS-OS 11 :45 F~LAW OFFICES OF ROBERT A, OWEN T-lIS P.OS/OS F-8ST StaceY R. A1dstadt March 6, 2006 Page 2 Rialto can assure future developers of its' 20 year water supply abilities as required by State law, However. this assumes that Rialto chooses to develop a well within the Management Zone, but outside of the plume area. It may well end up that Rialto chooses to develop its weU(s) outside of the Management Zone, or within the Plume area (with appropriate treatment), in which case no cban&e will be needed to the Ordinance. We appreciate your verbal commitment to work with Rialto in this regard if necessary. Rialto maintains that requiring purveyors to bear the burden of proof that pumping will not interfere with the federal rem.edy violates various constitutional reqllirenlents, as detailed in our previoUS correspondence. You and your counsel have conceded that with respect to proceedini$ to reduce or eliminating pumping from a well which existed at the time of adoption of the OrdinanCe, the sole remedy of the City of San Bernardillo will be to pursue injunctive relief ina court of law where the City of San Bernardino bears the burden of proof. New wells or increased pumping of existing wells will still require that the purveyor bear the burden of proof. Wbile our legal telUllS still disagree on whether such a provision is constitutional, we agreed that each City will work together in an attempt to reach an agreement regarding alternative water supplies of adequate duration, so that Rialto is not in a position of having to raise this cballenge, and so that Rialto does not drill a new well in locations not desired by the City of San Bernardino. This letter is not intended to, nor does it, set forth all of Rialto'S legal objections. Rather it is intended to conflTID the positive and productive outcome of our several meetings on the subject and to convey Rialto's sense of cooperation and participation in San Bernardino's attempt to deal with a very grimacing threat to its own and Rialto' s water resources. We thank. you for your assurances of good faith in future discussions to resolve these issues and look forward to beginning this task. If the Rialto City Council fecls any differently than expressed hercin after I have a chance to discuss these issues with them (which I do not believe they will), I will contact you immediately. Otherwise, we will look forward to addressing these issues in an orderly l11lIlUler. Thank you for your continuing assistance and cooperation in this matter. Very Truly Yours ~4~ Robert A. Owen City Attorney City of Rialto Cc: Honorable Mayor and City COllncil, City of Rialto Henry Garcia, City Administrator Pete Fox, Water Superintendent Tom Jacobson, Gresham Savase, Nolan and Tilden Susan Trager, Law Offices of Susan M. Trager " ~ ., " 'J ". .~ I' o ~ > ~ Ii (l.\:) l~ .~ , ---. ~ ",oj jl .::. ~ '',.: ;:t, "j{ '~~~ , 'i>r;i} , \ i II Q. ::: l'l 11I== "'Cl III C II .l!; .. .- II = Q. U ::I l'l lilY. :I C 0.2 40 >0 U o Cl: U _ III l'l ::I .- ==1 "'Cl E C II l'la: of E ~ 'i it 40 II .5 z :'* . ) " /' -. < 'i: ., W" F~. ::i< o. i....~u , ~!:;3 -'ill... -t ~~ i _ ~~~ =~e. 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":=1 ----. r1P i .~ '~ a ~ L,1 I ~ CD ,0 L'C , 4'~~- Co , -,,~ , I. ~ ~ . ----. .'--1 '='I. B1 L'l o ~ . ';,; - '~ ",1='. ll, j\.,'" ,"/:it" 'll;, :)i' --, ~ ~ 1..:-= ~~l a ~ D .1 ~:~ ' '-./: ' ~v /~ I. ~ ~ L-=' .'L......-l .~ B) ~ o ~ io,,~ ~. (lfD) t@) 'I'm ~--, '-) ~ liill1 L';;;:;" .... ,~1 ~~ :L....., (ll " " .' ~.. " '" .;~ '~ , " '.,. OJ" " t ! m 0 O::1n i I . -:- .;. ~..o~c...o.. '" "" I' .. 00 0 · - 007'- o L . o~o...,r ~( I/Jr~ 12. /. ':10 ~'3^1l:l o , . << ~ ::J <( 0 ~ . " " . << . . . I Ii CITY OF SAN BERNARDINO - REGUEST FOR COUNCIL ACTION From: Stacey R. Aldstadt, General Manager I.Jdpt: Water Subject: Adopt 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. Date: February 10, 2006 M/CC: 3/6/2006 Synopsis of Previous Council Action: April 2005 - Item discussed in legislative review committee. January 10, 2006 - Item discussed in legislative review committee and it was recommended that said ordinance be forwarded to Mayor and Council for adoption. Recommended motion: That said Ordinance be laid over for adoption. Sianat~~ Contact person: Stacey R. Aldstadt. General Manaaer Phone: 384-5091 Supporting data attached: Yes Ward: N/A FUNDING REQUIREMENTS: Amount: N/A Source:(Acct. No.) Water Department (Acct. Description) Finance: Council Notes: 3/u//J' I 7c;_n?l=:? Anonrl", (tom Nn ~ CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION STAFF REPORT On March 23,2005, the United States District Court, Central District, ordered entry of the consent decree in the matter of City of San Bernardino v. United States of America. The consent decree settles the City's and the state's claims arising from groundwater contamination allegedly caused by the United States' Department of the Army. The consent decree contains a number of provisions obligating the City (the City of San Bernardino Municipal Water Department) to operate and maintain the groundwater contamination extraction and treatment system (the Newmark remedy) and other related activities. The Newmark remedy is designed to slow the spread of and treat contaminants. The consent decree requires the City to take certain specified actions to protect the Newmark remedy designed by the United States Environmental Protection Agency (USEP A). Consent Decree Provisions Under Section IX (Access and Institutional Controls), Paragraph 27.a of the consent decree, the City has agreed to "institute a groundwater management program whereby the City shall monitor and, where warranted by the City's best professional judgment, and, if available, the Groundwater Model, in consultation with EPA and DTSC [Department of Toxic Substances Control], take appropriate actions to prevent or mitigate [installation or re-equipping of extraction wells within a prescribed area known as the Management or Permit Zone and regulate artificial recharge within City limits]." This paragraph governs the City's obligations while the groundwater model is being developed. At Section IX.27.b., the consent decree provides as follows: [The City shall within 30 days of entry of this Consent Decree] "initiate the City legislative process for approval and adoption of a groundwater management program consistent with the requirements of Paragraph 27.c, 27.d and 28 that requires specific, advance written approval from the City (which approval shall be based on the City's best professional judgment in consultation with EP A and DTSC) in order to (1) install new wells or to reconstruct existing wells in a manner which increases their capacity if such wells are located within the Permit Zone; (2) increase the annual volume of water spread in the Waterman Canyon, Devil's [sic] Canyon, and Badger Canyon spreading basin; or (3) construct any new spreading basins within the City limits located upgradient of the Newmark and Muscoy treatment systems." Section IX.27.c provides as follows: [The City shall within 30 days of entry of this Consent Decree] "submit to EPA a plan proposing to define the Permit [or Management] Zone and for a well permit program to require applicants for permits to drill new wells or to reconstruct existing wells to increase production capacity to demonstrate and certify, using the Groundwater Model, that the proposed new or reconstructed well, at its maximum production, will not interfere with or Council Staff Report March 2006 Page 1 adversely affect the integrity of the Newmark and Muscoy extraction and treatment systems, will not increase the likelihood that contaminants will migrate past or around the barrier wells that are part of those systems, and will not otherwise interfere with the performance of the [Newmark remedy]." Section IX.27.d provides as follows: [The City shall within 30 days of entry of this Consent Decree] "submit to EPA a plan for a permit program to regulate the spreading of water in the spreading basins located within City limits that are upgradient of the Newmark and Muscoy extraction and treatment systems. This program shall address, at a minimum, the spreading basins located at Devil's [sic] Canyon, Waterman Canyon and Badger Canyon, and any expansion or replacement of these basins, and any additional basins constructed before the completion of the Work provided for in this Consent Decree. The regulation of spreading activities shall be directed to assuring that any spreading of water in these basins shall not interfere with or adversely affect the integrity of the Newmark and Muscoy Interim Remedial Actions. The permit program will accommodate the use of these basins for flood control purposes in order to protect public safety and to assure proper operation of the City's supply wells and of all treatment systems." "Upon approval by EPA pursuant to [the section on approval of plans], the City shall implement the permit program." Section IX.28 provides as follows: "In addition to the above-described conditions on permit issuance, the City shall condition the issuance of any permit issued under the permit programs described in this Section on the grant of a right for EP A., DTSC and the City, including their contractors and representatives, (1) of access at reasonable times to the wells or spreading basins or related areas for the purpose of verifYing compliance with the permit; and (2) upon reasonable notice to inspect and copy documents and records of the operations of the permitted facilities in order to verifY compliance with the permit. Nothing in this Paragraph shall limit EP A's or DTSC' s respective statutory and regulatory authorities, including, but not limited to, the authority to obtain access to real property." Proposed Ordinance The consent decree lodged with the court appended a draft ordinance intended to meet the obligations set forth in Section IX of the consent decree. After the draft ordinance was published in the Federal Register, the City received a number of comments from potentially affected parties outlining concerns about its terms. After reviewing the comments received on the Institutional Controls aspects of the consent decree, the City negotiated with a number of water purveyors who submitted comments. Most of those commenting parties will be cooperating in a groundwater management program as contemplated by the terms of Section IX, and as further discussed below, in the section entitled Council Staff Report March 2006 Page 2 "Agreement to Develop and Adopt an Institutional Controls Groundwater Management Program (Interim Settlement Agreement)." The ordinance is intended to regulate specific activities (installation of new wells, reconstruction of existing wells and artificial recharge) within the City limits and as further delimited by the Management (or Permit) Zone. In developing the ordinance, Water Department staff quickly determined that, at least initially, the Management Zone should be drawn conservatively, because, at this time, there is not enough hydrological information to ascertain with certainty whether some activities will or will not affect the remedy. The consent decree requires the City to develop a groundwater model for use in analyzing potential impacts to the remedy. That groundwater model will not be ready for use until mid-2006. The ordinance is currently intended to regulate the activities of those parties that construct new wells or modifY existing wells to increase production in the Management Zone. The ordinance recognizes the parties to the Interim Settlement Agreement and exempts those parties from regulation. This is because the Interim Settlement Agreement acts as a functional equivalent to a groundwater management program for those parties, as required in Section IX.27.a, and as more fully explained below. Therefore, the ordinance is primarily aimed at smaller producers, usually private, having the ability to produce from the basin. The ordinance also addresses artificial recharge in the Management Zone, attempting to regulate the rate and volume of water spread at the upper ends of the groundwater basin to prevent accelerating the movement of contaminants past the remedy wells. There are a limited number of agencies involved in operation of spreading basins, including the San Bernardino County Flood Control District, and those parties will be consulted as stakeholders. It should be noted that the proposed ordinance, as required by Section IX, also regulates artificial recharge. However, those activities are not normally conducted by private parties, but by other water purveyors or the San Bernardino County Flood Control District. It is important to note that, while the groundwater model is being developed, the ordinance will place the burden of proof on the permittee to show its activities will not interfere with or adversely affect the integrity of the remedy, will not increase the likelihood that contaminants will migrate past or around the remedy wells, and will not otherwise interfere with the performance of the remedy. The ordinance is intended to satisfY the requirements of Sections IX27.b, IX27.c, and IX27.d. Water Department staff will be preparing guidance for the implementation of the ordinance that addresses the permit conditions to be imposed, including those requirements set forth in Section IX28. Prior to the last review by the Legislative Review Committee, Water Department staff, in consultation with the City Attorney's office and special legal counsel, revised provisions of the ordinance to address some of the concerns raised by those who submitted comments to the ordinance appended to the consent decree. Among the issues addressed were the following: (1) a 3/6/2006 Page 3 requirement for the permittee to provide a substantial insurance policy was removed; (2) the permit duration was lengthened from 3 years to 15 years, in light of the substantial capital investment involved in drilling new wells; (3) the Management Zone or Permit Zone was modified to reflect geologic faulting that would naturally prevent the migration of contaminants; and, (4) removal of a revocation of permit for "changed conditions." At the Legislative Review Committee meeting held in April 2005, Water Department staff recommended reference back to the Water Department by the Legislative Review Committee so that additional modifications could be made to the ordinance. The Legislative Review Committee agreed and referred the ordinance back to the Water Department for more work. Since April 2005, the following additional modifications have been made to the ordinance: 1. The revised ordinance has a very precise definition of Adverse Effect, keyed to a percentage of the Predictive Particle Tracking done by the Groundwater Model. Put simply, a permit may be issued if the Predictive Particle Tracking method shows that the Interim Remedy continues to achieve 95% capture of particles at all times during the life of the permit when the Interim Remedy is operated at Design Rates. 2. If a proposed project does not achieve 95% capture, then the Project must employ Mitigation Measures and/or Project Re-Design to assure that 95% capture is achieved during all times during the life of the permit. Very specific definitions are supplied for "Mitigation Measures," Predictive Particle Tracking," Project Re-Design," and used at appropriate places in the Ordinance. 3. References to re-equipping or repairing wells in 13.25.025, paragraph B. have been deleted to make clear that only new or reconstructed wells will require permits, not existing wells operated normally. 4. Section 13.25.025, paragraph HA. sets forth in detail the required review of permit applications using Predictive Particle Tracking. This provides an objective, quantifiable means of measuring compliance and measuring Adverse Effects. 5. Section 13.25.025, paragraph I, provides an expedited and streamlined procedure for wells to be drilled in the contaminated zone, and provides a longer permit term for such wells, which are presumed to help speed up the remedial work. In addition, certain small volume extractors are exempt from permit requirements if they use the water on the overlying parcel for non -potable irrigation or sand and gravel operations, as these wells are not expected to have a material effect on remedial operations. 6. Section 13.25.040, reporting is expanded to include a reporting requirement for certain existing wells extracting more than 250 acre feet per month. This is to help give the operators of the remedy data needed in case extraordinary withdrawals from an existing well begin to affect remedial operations. 7. Section 13.25.045, revocation and emergency powers, was revised to delete a provision allowing permit revocation because of a material change of conditions. A provision allowing revocation for failure to comply with conditions of approval was added. 8. Section 13.25.047, was added to make clear that if an existing well, not subject to permit requirements, materially interferes with the remedy or forces an increase in remedial operations above design rates, the City may seek injunctive relief. 3/6/2006 Page 4 For those producers that are not part of the Interim Settlement Agreement, and until the ordinance is adopted, the provisions of Section IX.27.a apply. During the period that Section IX.27.a applies (while the ordinance has not yet been adopted), the Water Department will be monitoring the levels of production through reports prepared by the Watermaster in the Western judgment to ascertain whether there are any activities that might adversely affect the remedy. The "Aereement to Develop and Adopt and Institutional Controls Groundwater Manaeement Proeram (the "Interim Settlement Aereement") As outlined above, several water purveyors submitted comments critical of the proposed ordinance to the Department of Justice and USEP A during the public comment process. After receipt of those comments, Water Department staff began meeting with the principals for those purveyors in an effort to resolve the concerns that were raised. The biggest concern for these commenting parties was the imposition of a regulatory scheme on their activities in the basin. San Bernardino Valley Municipal Water District (Muni District) has obligations under contracts and the Western judgment to import water for artificial recharge. They stated concerns regarding their ability to fulfill those obligations while meeting the requirements of the proposed ordinance. They also own two operating wells within the Management Zone that would be regulated under the ordinance. Western Municipal Water District is a wholesale agency that provides water to retailers in areas of Riverside County. They were concerned as well that their ability to negotiate contracts to store water in the basin would be compromised by the provisions of the proposed ordinance. Other purveyors, including the City of Riverside, Riverside Highland Water Company, East Valley Water District, West Valley Water District and the City of Colton, either have wells in the Management Zone or intend at some time in the future to drill new wells in the Management Zone. Their universal concern was that they would be prohibited from using their wells. After extensive negotiations, these water purveyors entered into the Interim Settlement Agreement (ISA), which accomplishes several things. First, it obligates the ISA parties to meet l'.nd reach agreement on a long-term groundwater management program. The goal of the ISA group is to produce an Institutional Controls Settlement Agreement (ICSA) that will, among other management goals, "manage extraction and artificial recharge to ensure the effectiveness and integrity of the Newmark remedy." (ISA, p.lO.) Second, during the term of the ISA and the subsequent ICSA, the parties to both agreements are exempt from the provisions of any ordinance that is intended to regulate groundwater extraction and artificial recharge. Third, the ISA allows for certain pre-approved or permitted activities. Those activities are attached to the ISA as Exhibit "B" (Exhibit B activities). Using its best professional judgment, the Water Department has determined that Exhibit B activities will not adversely affect the Newmark remedy. All of the Exhibit B activities have been on-going for several years, at a minimum. In the 3/6/2006 Page 5 development ofUSEP A's groundwater model used to design the remedy, the Exhibit B activities were necessarily factored in. The Newmark Operable Unit, which was operational and functional in 2000, has been working as designed and many of the Exhibit B activities would have been assumed to have some influence on the Newmark au. The Exhibit B activities are defined in a geographic area and with volumetric limits. As long as an ISA party stays within the geographic area and within the volumetric limit, that party may drill a new well or re-construct an existing well. In essence, the ISA functions as the equivalent satisfying the City's obligations under Section IX.27.a. The ISA parties agree that, except for Exhibit B activities, they will not construct new wells or re-construct existing wells in the Management Zone during the period of time that the parties are negotiating the final ICSA. The ISA recognizes that a groundwater model will be developed and used by the parties in the groun~water management program. However, the development of the final ICSA and the Exhibit B activities will be implemented pending finalization of the groundwater model. All stakeholder parties, including the ISA group, will have an opportunity to review and comment on the groundwater model. The ISA also recognizes that, if the Water Department issues a permit under the final ICSA, while the groundwater model is not final, it must obtain USEPA's and DTSC's concurrence. The Water Department is submitting the Exhibit B activities to USEP A, as required under Section IX.27.a, for review and consultation. The Water Department is also submitting a plan to USEPA outlining the structure of the ISA, the goals of the ICSA and the ordinance, in accordance with Section IX.27.c and IX.27.d. In conclusion, Water Department staff believes that the requirements of the consent decree have been met, or will be met, with the strategies outlined above. The Ordinance was approved by the Legislative Review Committee on January 10, 2006. Financial Impact: The costs of implementing the ordinance will be borne by the Water Department. Recommendation: That said Ordinance be laid over for adoption. 3/6/2006 Page 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDINANCE NO. 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 specificaIly 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 of the Interim Remedy; and, C. That the adoption of this Ordinance is statutorily and categoricaIly 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 foIlows: 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 YLD.23 City of San Bernardino Municipal Water Department Page 1 of 14 3/612006 AN ORDINANCE OF THE CITY OF SAN BERNARDINO. CAUFORNIA ADDING CHAPTER 13.25 OF THE SAN BERNARDINO MUNICIPAL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE 1 Chapter 13.25 SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE 2 3 4 5 6 7 8 9 10 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, tnterfere 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:pply 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. 11 12 13 14 15 16 17 18 19 20 13.25.015 Background Pertaining to Newmark Groundwater Contamination Superfund 21 Site. 22 Background. 23 A. 24 25 B. 26 27 28 C. 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, EP A commenced a Remedial Investigation ("RI") focusing on the Newmark Operable Unit ("OU") In September 1992, EP A expanded the RI to include the Muscoy OU. City of San Bernardino Municipal Water Department Page 2 of 14 3/6/2006 1 D. 2 3 E. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 F. 26 27 28 AN ORDINANCE OF TIlE CITY OF SAN BERNARDINO. CALIFORNIA ADDING CHAPTER 13.25 OF TIlE SAN BERNARDINO MUNICIP AL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE G. 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, EPA published notice of the completion of the FS and Proposed Plan for interim remedial action pertaIning to the Muscoy Ou. EP A's determinations concerning the interim remedial actions to be implemented at the Site are set forth in the Newmark OU 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 of the 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 OU 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 l'rotection 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 COITect 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 spreadin~ of water and extraction of groundwater do not interrupt or mterfere with the constructIOn, operation and maintenance of the Interim Remedy or degrade the performance of the Interim Remedy. H. 1. 1. K. 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 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 spreadin~ occurs at spreading basins located upgradient from the inhibitor wells. Another factor affectmg 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 L. 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 MUNICIP AI.. CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MAN AGEMENT ZONE 1 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 2 may not be able to contain and extract the additional contaminated water before it enters the aquifer downgradient from the inhibitor wells. 3 4 M. 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. 5 13.25.20 Definitions. 6 A. 7 8 9 10 11 B. 12 13 14 15 16 D. 17 E. 18 F. 19 G. 20 H. 21 22 1. 23 J. 24 K 25 L. 26 M. 27 N. 28 c. "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 hydrologic cycle representative of long-term hydrology and extending for a term at least as lon~ 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 of the 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 permiSSIOn 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. "EPA": 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 Page 4 of 14 3/6/2006 O. 2 P. 3 4 Q. 5 R. 6 7 8 9 S. 10 11 T. 12 13 U. 14 15 16 17 18 19 V. 20 W. 21 X. 22 23 Y. 24 25 26 27 Z. 28 AN ORDINANCE OF THE CITY OF SAN BERNARDINO. CALIFORNIA ADDING CHAPTER 13.25 OF THE SAN BERNARDINO MUNICIP AL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE "FS": The Feasibility Studies performed by EPA for the Site and completed in March, 1993 and December 1994. "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; 2. readily enforceable and verifiable pumping restrictions; 3. physical reductions in the size of well equipment to limit the well capacity. "NPL": National Priorities List. "aU": 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, tncludins 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. City of San Bernardino Municipal Water Department Page 5 of 14 3/6/2006 1 AA. 2 BB. 3 4 5 CC. 6 7 DD. 8 EE. 9 FF. 10 11 12 GG. 13 14 Iffi. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. B. 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 "RI": The Remedial Investigations performed at the Site for the Newmark Operable Unit and the Muscoy Operable Unit. "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 settin~ forth the provisions of the Interim Remedy to be Implemented in addressing the contamination Identified in RIlFS. "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, 1330l. "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 H., setting forth the implementation of the remedial action to be performed by SBMWD, EP A 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 2. Wells used for the purpose of: 13.25.025 a. Dewatering excavation during construction, or b. Stabilizing hillsides or earth embankments. Permits. c. 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 Mwticipal Water Department Page 6 of 14 3/612006 AN QIrnINANQ" QF TH" QITY QF ~AN R"RNARDlNQ, QAWFQRNIA. Al}I)INQ QUAPTl\R IU$ PI' TH" ~AN R"RNAlWINQ MUNICIPAL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE Contents of Application for Permit for Extraction. The contents of the Application for Permit for Extraction shall 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 of the Inhibitor Wells, or increase the likelihood that contaminants will migrate past or around these wells, or interfere with or Adversely Affect the Interim Remedy. Contents of A lication for Permit for S readin . 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 wilI 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.. 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. Exemption from Permit and Related Requirements for Institutional Controls Groundwater Management Program (ICGMP) Members. By agreement effective January 1,2005, a number of local water agencies have entered into the agreement entitled Agreement to Develop and Ado)?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 Agreement, 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 received from the Applicant all documents and necessary information to commence its review. 3. Subject to timely participation by EP A and DTSC, SBMWD shall endeavor to complete the review within One Hundred Twenty (120) days from Notice by SBMWD to Applicant that the application is deemed complete. The completed application shall be subject to review and comment by the EP A and DTSC. SBMWD shall provide to EP A and DTSC a copy of its proposed decision, after which EP A and DTSC, pursuant to the Consent Decree, shan have a minimum of thirty (30) days to comment on the proposed decision. If either EP A or DTSC object in 2. City of San Bernardino Municipal Water Department Page 7 of 14 3/6/2006 1 2 3 4 5 6 7 8 9 10 1. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 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 determIne 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 spreadIng operation, shall be approved if the project is forecast to have an Adverse Effect unless such Adverse Effect is elimInated 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: a. the well will conform to standards for structural integrity; b. the water it produces will be properly treated; and 3. 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. 4. 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: 5. City of San Bernardino Municipal Water Department Page 8 of 14 3/6/2006 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 B. 13.25.035 A. 20 21 22 23 24 25 26 27 28 AN ORDINANCE OF THE CITY OF SAN BERNARDINO, CALIFORNIA, ADDING CHAPTER 13.25 OF THE SAN BERNARDINO MUNICIP AL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE a. 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 insubstantially 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. b. c. Approval of Permits. 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 al?proved, EP A, DTSC and SBMWD shall have the right to condition approval upon MitIgation Measures, Project Re-Design, Of other remedial activities to be performed by Applicant. EPA, DISC or SBMWD may require Applicant to prepare a mitigatIon ;:>f 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. 2. 3. Upon approval of the al?plication, 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. 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 4. City of San Bernardino Municipal Water Department Page 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 SBMWD, EPA 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 EPA, 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 aperoval and issuance of a permit shall be conditioned upon Applicant indemnitying, defending, and holding City and SBMWD harmless from any and all claims, causes of action, injury to person or property and enforcement proceedin~s arising from or related to the Application for Permit, property subject to the pernut, 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~ication. SBMWD shall deny the application if it determines that the standards of this Chapter ave not been attained or if either SBMWD, EPA 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~rate 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 19 A. 20 21 22 23 24 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 perchIoroethylene (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 ApplIcant. 25 26 27 28 City of San Bernardino Mtmicipa] Water Department Page 10 of 14 3/6/2006 1 B. 2 3 4 13.25.045 5 A. 6 7 8 B. 9 10 11 12 13 14 15 16 17 18 19 20 C. 21 22 23 24 25 26 27 28 II/II 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 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. 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: 1. 2. 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 EP A or DTSC, or their designees' timely access to the permitted sites and operations, and records of those operations. 3. 4. 5. 6. 7. 8. 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 of the 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 Mana~er 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. City of San Bernardino Municipal Water Department Page 11 of 14 3/612006 AN ORDINA."ICE 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 1 13.25.047 Interference by Existing Wells with Consent Decree or SOW 2 3 4 5 6 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 Desi~n 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 l.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 8 9 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. 10 13.25.055. Cease and Desist Orders 11 12 13 14 15 If SBMWD 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 of the cease and desist order. 16 13.25.060 Hearing Procedures and Appeals. 17 18 19 20 21 22 23 24 25 26 27 28 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 Page 12 of 14 3/6/2006 AN ORDINANCE OF THE CITY OF SAN BERNARDINO, CALIFORNIA, ADDING CHAPTER I3.2S OF THE SAN BERNARDINO MUNICIPAL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE 1 13.25.070 Violations, Remedies and Penalties. 2 A. 3 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 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 WNE 1 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and 2 3 4 5 meeting thereof, held on the day of Common Council of the City of San Bernardino at a . 2006, by the folIowing vote, to wit: COUNCIL MEMBERS 6 ESTRADA 7 BAXTER 8 MCGINNIS 9 DERRY 10 KELLEY 11 JOHNSON 12 MCCAMMACK 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AYES NAYS ABSENT ABSTAIN Rachel Clark, City Clerk day of ,2006. The foregoing Ordinance is hereby approved this Approved as to form and legal content: JAMES F. PENMAN City Attorney By: r11N-. 1. [~-?y~ () Patrick 1. 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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. EXHIBIT D County Well Recordation Numbers APNs 3601925 0153351170000 0153351171001 0150161120000 0150154140000 0272161120000 0272161070000 3600119,3600742,3600743 c (,