Monterey County Municipal Code Ch. 16.10 Digging and Excavation on the Former Fort Ord

The United States Army (Army) is in the process of transferring various parcels of the former Fort Ord military installation (Fort Ord) to the County or to other entities within the County's land use jurisdiction. Some parcels of the former Fort Ord were contaminated with unexploded ordnance and explosives (UXO), which is a hazardous waste. The Army will not transfer those parcels until it has cleared those parcels of UXO to its standard. Even following the Army's completion of UXO response activities, it is possible that some UXO materials may remain on those parcels. The California Environmental Protection Agency, Department of Toxic Substances Control (DTSC) has statutory responsibility to oversee cleanup of releases of hazardous substances, which includes hazardous waste. DTSC cannot certify that all UXO has been cleared and it will require a land use covenant to be recorded with the Monterey County Recorder on those parcels to provide additional controls and restrictions to protect the public health and safety. The County will also enter into an Agreement with DTSC to provide additional safety measures and reporting.

(Ord. 5012 § 1 (part), 2005)

The Board of Supervisors finds and determines that those properties formerly included within the Fort Ord military installation that are suspected of containing UXO require special standards and procedures for digging and excavation in addition to those contained in the Building Code, to ensure that:

A. Neither digging or excavation nor development of such properties occurs until ordnance or explosive remediation thereon is completed;

B. Potential purchasers or developers of sites which may contain UXO and those persons whose work at such sites includes disturbing soil, are aware of the potential that UXO may be located on these properties and are aware of the requirements for UXO precautions prior to any digging, excavation or ground disturbance thereon; and

C. DTSC should be continuously involved in the establishment of controls for those properties because it has statutory oversight responsibility with respect to hazardous substance response actions.

(Ord. 5012 § 1 (part), 2005)

A. The Board of Supervisors, with the concurrence of DTSC, hereby designates all real property within the County's land use jurisdiction which was formerly part of Fort Ord and which have been identified in the Archives Search Report and supplement, dated 1997, or otherwise identified, as the possible location of unexploded ordnance or explosives as an Ordinance Remediation District (hereafter "district"). All such districts are defined as those areas of the unincorporated portions of the former Fort Ord, excepting therefrom the "Track 0" parcels as identified in the Finding of Suitability to Transfer, Track 0 Parcels, Former Fort Ord, California document, dated May 2003. The County shall notify DTSC of any change in the permitted land uses in any district within thirty (30) days after it adopts any change.

B. The regulations in this Chapter shall apply in all districts and shall be in addition and subject to all provisions of the County Code, including Titles 16, 18 and 21.

(Ord. 5012 § 1 (part), 2005)

It shall be unlawful for any person, including utilities, to engage in any of the following activities on any property located within a district unless that person is acting pursuant to a valid excavation permit (hereafter "permit") issued pursuant to this Chapter: excavation, digging, development or ground disturbance of any type that involves the displacement of ten (10) cubic yards or more of soil.

(Ord. 5012 § 1 (part), 2005)

It shall be unlawful for any person to engage in any unauthorized metal detection activity of any type on any property located within the district. This prohibition does not prevent metal detection activity if specifically authorized by the County as part of a permit for development or as part of a County project on County land or if authorized by a state and/or federal agency for remediation or similar purposes.

(Ord. No. 5364, § 2, 4-20-2021)

An owner or user of real property located within a district who desires to conduct the activities described in Section 16.10.040 shall apply to the Building Official for a permit. The application shall be on a form approved by the County, may be combined with an application for grading pursuant to County Code Chapter 16.08, shall be signed by the permit applicant and all owners of each parcel of property on which excavation will be done, and shall contain the following information:

A. Six copies of a description of any previous UXO excavation or removal activity conducted on the property whose soil is proposed to be excavated, moved or graded;

B. Six copies of a description of the property where soil is proposed to be excavated, moved or graded. The description shall include a drawing with dimensions to a scale which sets forth the size and details of all proposed excavation activity, including any proposed cut and fill, trenching, well drilling, mineral excavation, post hole drilling, or other activity of any sort whenever the applicant proposes to do either of the following: (1) disturb ten (10) cubic yards or more of soil; or (2) disturb soil in a manner inconsistent with restrictions placed on the property by the Army or as noted on the district map;

C. Six copies of a statement that the person submitting the application acknowledges liability for removing all detected unexploded ordnance and explosives in accordance with this Chapter and the permit;

D. Six copies of a statement by the person submitting the application that they have, within the preceding twelve (12) months, delivered a copy of the notice to everyone whose work at the property described in Subsection 16.10.050(B) includes disturbing soil;

E. The expected completion date of the activities authorized by the permit;

F. Any other information which the Building Official may require as pertinent to the determination of the adequacy of the proposed plan;

G. Payment of the permit fee, as established by the Board of Supervisors, at the time of filing the application for the permit.

(Ord. 5012 § 1 (part), 2005)

The Building Official shall review the permit application and shall approve the permit unless evidence is available which indicates that the proposed grading or excavation will create an undue risk to the health and safety of the public at large. Prior to acting on any such application, the Building Official, in his/her sole discretion, may set and conduct a public hearing for the purpose of receiving comments on the proposed grading and excavation. Except as otherwise indicated in Section 16.10.080, any permit issued hereunder shall be subject to the following conditions:

A. All excavation and grading shall be performed solely in accordance with the permit approved and issued by the County.

B. Prior to movement of any soil on any property located within a district, the permittee or designee shall personally deliver to each person who intends to work on the property described in the permit the Safety Alert—Ordnance and Explosives at former Fort Ord, as prepared by the Directorate of Environmental and Natural Resources Management at the Presidio of Monterey, or its successor document, and explain to each such person the information set forth in that notice.

C. The permittee may not move or disturb soil unless the permittee is in compliance with the requirements placed on the property by an Agreement executed between the County, Redevelopment Agency, FORA and DTSC. Said Agreement shall, at a minimum, include OE construction support ("Construction Support") and shall be attached to and become a part of any permit issued pursuant to this Chapter.

D. The permittee shall cease soil disturbance activities upon a discovery of any suspected unexploded ordnance. The permittee shall notify the Monterey County Sheriff, Directorate of Law Enforcement at the Presidio of Monterey, the Army and DTSC of any suspected unexploded ordnance discovered during any excavation or soil removal immediately upon discovery. The permittee shall coordinate appropriate response actions with the Army and DTSC.

E. No later than thirty (30) days following the completion of the permitted soil disturbance activity, the permittee shall prepare and file with the Building Official, the Army and DTSC an After Action Report that shall state whether and where UXO was detected and the extent and depth of UXO response actions undertaken and completed on the property that is the subject of the permit. The After Action Report shall be in the form provided in Exhibit "A" and shall include site maps to illustrate the information contained in the report. All After Action Reports prepared and filed in accordance with this Chapter shall be deemed public records.

F. In consideration for the issuance of a permit and project approval, permittee shall defend at its sole expense any action or proceeding brought against the County and its Agents, Officers, and employees because of the approval of said permit. In further consideration for the issuance of a permit and project approval, the permittee shall indemnify and hold harmless from any liability the County and its agents, officers and employees and reimburse the County for any expenses incurred resulting from or in connection with the approval of the project including any claim, suit or legal proceeding and any and all related litigation costs, court costs, and attorneys' fees which the County may be required to pay as a result of such action. The County may, at its sole discretion, participate in the defense of any such action, but such participation shall not relieve the permittee of its obligations under this Subsection.

G. The Building Official shall mail a notice of permit approval to the Army, DTSC, and all owners of property within three hundred (300) feet of the real property that is the subject of the permit application.

(Ord. 5012 § 1 (part), 2005)

Every permit issued by the Building Official under the provisions of this Chapter shall expire if the work authorized by such permit is not commenced within one hundred twenty (120) days from the date of such permit, or if the work authorized by such permit is commenced and then suspended or abandoned for a period of thirty (30) days, unless such suspension is approved by the Building Official. Before such work can be recommenced, a new permit shall first be obtained, and the fee therefor shall be as established from time to time by the Board of Supervisors for a new permit for such work, provided no changes have been made or will be made in the original plans and specification for such work.

(Ord. 5012 § 1 (part), 2005)

Following consultation with and approval by DTSC, the Board of Supervisors may, upon a finding that the requirements of Section 16.10.060(C) are no longer necessary, designate by ordinance or resolution any district as a Limited Control District and/or no longer subject to the provisions of this Chapter. The holder of any permit issued for any Limited Control District shall not be subject to Section 16.10.060(C).

(Ord. 5012 § 1 (part), 2005)

Upon a finding by the Building Official that a permit should be issued for excavation or grading on the proposed site, a surety bond, in the form prescribed by the Monterey County Code Section 16.08.290, conditioned upon the faithful performance and completion of the permitted excavation activity, shall be filed with the County. Such surety shall be executed in favor of the County and shall be maintained in an amount prescribed by the Building Official sufficient to ensure the completion of the ordnance remediation and excavation of the site as prescribed in the approved permit.

(Ord. 5012 § 1 (part), 2005)

Request for amendments to an approved excavation permit may be submitted to the Building Official at any time, detailing proposed changes from the original permit. Deviations from the original permit shall not be undertaken until such amendment has been approved by the County in writing. Amendments to an approved permit shall be approved by the same procedure as prescribed for the approval of the original excavation permit.

(Ord. 5012 § 1 (part), 2005)

Any person aggrieved by any determination of the Building Official in exercise of the authority granted in this Chapter shall have the right to appeal pursuant to Monterey County Code Sections 16.08.460 through 16.08.510, inclusive.

(Ord. 5012 § 1 (part), 2005)

A. The County shall notify the owners of property designated as Ordnance Remediation Districts, and those utilities known to be providing service within the County, of the requirements of this Chapter and provide those persons with the Safety Alert—Ordnance and Explosives at Former Fort Ord, as identified in Section 16.10.060(B), above. The County shall annually notify the owners of said property as shown on the equalized tax rolls of the requirements of this Chapter and provide those persons with a copy of the notice. Failure of any owner, occupant or user of such land to receive said notification shall not relieve them from responsibility for compliance with this Chapter.

B. All owners, occupants or users of land subject to this Chapter, including utilities, shall notify any subsequent owners, assigns, lessees or users of such land of the requirements of this Chapter. Notification shall be made prior to transfer of the property in question.

C. All persons identified in Subsection 16.10.120(A) above shall deliver, at least annually, a copy of the notice to everyone whose work at UXO sites includes disturbing soil and shall explain the contents thereof to those persons.

(Ord. 5012 § 1 (part), 2005)

This Chapter shall not be revised without prior written notice to the DTSC.

(Ord. 5012 § 1 (part), 2005)