Monterey Municipal Code Art. 8 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 City or to other entities within the City’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 completed response actions for UXO as required by law. Even following the Army’s completion of UXO response actions, 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 has considered requiring land use restrictions that will be recorded with the Monterey County recorder. The City believes that recorded land use restrictions would burden the title of those parcels and present economic disincentives to develop them. The City and DTSC desire that sufficient controls and restrictions be placed on these parcels to protect the public health, safety and in a manner equivalent to that resulting from recordation of land use restrictions.

The City Council finds and determines that those properties formerly included within the Fort Ord military installation which 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 UXO sites and those persons whose work at UXO 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 remediation 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.

a.The City Council shall by resolution, and with the concurrence of DTSC, designate all real property within the City’s land use jurisdiction which was formerly part of Fort Ord and which have been identified in the Revised Archives Search Report, Former Fort Ord, dated 1997, or are otherwise identified, as the possible location of unexploded ordnance or explosives as an ordnance remediation district. All such districts shall be depicted on a grading district map by an “ORD” suffix to indicate the existence of ordnance remediation obligations on such property and, upon receipt of notification by the Army of specific requirements or restrictions on such districts, a notation thereof. The City shall notify DTSC of any change in the permitted land uses in any district within thirty days after it adopts any change.

b.The regulations in this chapter shall apply in all “ORD” districts and shall be in addition and subject to all provisions of the municipal code and the building code.

An owner or user of real property located within a district who desires to conduct the activities described in Section 9-76 shall apply to the Chief of Inspection Services/Building Official for a permit. The application shall be on a form approved by the City, shall be signed by the permit applicant, and shall contain the following information:

a.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.A description of the property whose 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 (1) disturb ten cubic feet or more of soil; or (2) disturb soil in a manner inconsistent with restrictions placed on the property by the Army and as noted on the grading district map;

c.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.A statement by the person submitting the application that s/he has, within the preceding twelve months, delivered a copy of the notice to everyone whose work at the property described in subsection b above includes disturbing soil;

e.Any other information which the Chief of Inspection Services/Building Official may require as pertinent to the determination of the adequacy of the proposed plan;

f.Payment of the permit fee, as established by the City Council, at the time of filing the application for the permit. (Ord. 3653 § 4, 2022; Ord. 3472 § 1, 2012; Ord. 3424 § 1, 2009)

The Community Development Director 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 Chief of Inspection Services/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 9-80, 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 by the City and in accordance with the permit as issued by the City.

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 notice and safety plan, which is attached as an exhibit to the permit, and explain to each such person the information set forth in that notice.

c.The permittee may not move or disturb soil in a manner inconsistent with restrictions placed on the property by the Army and as noted on the grading district map unless there is a Department of Defense certified, or equivalent, explosive ordnance disposal technician acceptable to the Chief of Inspection Services/Building Official who is on site and visually supervises any such activity. Any excavation or soil disturbance inconsistent with restrictions placed on the property by the Army may be accomplished only after investigation using sweep lanes no wider than five feet throughout the excavation area and after using detection devices and visual identification to locate, identify and remove any unexploded ordnance discovered during such excavation activity.

d.The permittee shall cease soil disturbance activities and shall notify 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 days following the completion of the permitted soil disturbance activity, the permittee shall prepare and file with the Chief of Inspection Services/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 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.The permittee agrees as a condition of issuance of a permit to defend at its sole expense, indemnify and hold harmless from any liability the City, and reimburse the City for any expenses incurred resulting from or in connection with the approval of the project including any claim, suit or legal proceeding. The City 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. (Ord. 3653 § 5, 2022; Ord. 3472 § 1, 2012; Ord. 3424 § 1, 2009)

The permit shall be valid for one year from the date it is issued.

Following consultation with and approval by DTSC, the City Council may, upon a finding that the requirements of Section 9-78(c) are no longer necessary, designate by resolution any district as a limited control district. The holder of any permit issued for any limited control district shall not be subject to section 9-78(c).

Upon a finding by the Chief of Inspection Services/Building Official that a permit should issue for excavation or grading on the proposed site, a surety bond, lien or other security guarantee conditioned upon the faithful performance and completion of the permitted excavation activity shall be filed with the City. Such surety shall be executed in favor of the City and shall be maintained in an amount prescribed by the Chief of Inspection Services/Building Official sufficient to ensure the completion of the ordnance remediation and excavation of the site as prescribed in the approved permit. (Ord. 3653 § 4, 2022; Ord. 3472 § 1, 2012; Ord. 3424 § 1, 2009)

Request for amendments to an approved excavation permit may be submitted to the Chief of Inspection Services/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 City 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. 3653 § 4, 2022; Ord. 3472 § 1, 2012; Ord. 3424 § 1, 2009)

Any person aggrieved by any determination of the Chief of Inspection Services/Building Official in exercise of the authority granted in this chapter shall have the right to appeal to the City Council. Any appeal setting forth the contested decision and the reasons for contesting same must be filed within ten working days after the posting of the Chief of Inspection Services/Building Official’s decision at the three places designated by the City Council. The City council shall render its decision within sixty days following the filing of the notice of appeal. The council may affirm, reverse or modify the decision of the Chief of Inspection Services/Building Official. The Council action shall be final upon issuance of its decision. (Ord. 3653 § 4, 2022; Ord. 3472 § 1, 2012; Ord. 3424 § 1, 2009)

a.To the extent that the Army identifies those persons to whom it has conveyed property that is designated ordnance remediation districts, the City will notify those persons and those utilities known to be providing service within the City, of the requirements of this chapter and provide those persons with a notice and safety plan (“Notice and Safety Plan”), which shall be adopted by the City. The City shall annually notify the owners of such 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 such notification shall not relieve that person 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 (a) above shall deliver, at least annually, a copy of the Notice and Safety Plan to everyone whose work at UXO sites includes disturbing soil and shall explain the contents thereof to those persons.

This chapter shall not be revised without prior written notice to the DTSC and subject to the terms and conditions of the DTSC in their agreement with the City.”