San Bernardino Municipal Code Ch. 13.25 Spreading or Extraction with the Management Zone

(A) 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 ground water 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 ground water contaminants from the Newmark and Muscoy Operable Units to uncontaminated areas, nor shall such activities, even at their maximum operation, interfere 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.

(B) 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 ground water 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.

(C) 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 ground water resources in the management zone. In addition to any other requirements of this chapter, the following requirements shall apply to the management zone. Nothing contained herein shall exclude compliance with the other provisions of this chapter. In the event of any conflict between the provisions of this chapter and any other chapter, the terms and provisions of this chapter shall apply.

Background:

(A) In 1980, the state performed sampling of certain wells belonging to the City Municipal Water Department (“SBMWD”). These samples disclosed the presence of various contaminants, including trichloroethylene (“TCE”) and perchloroethylene (“PCE”).

(B) Pursuant to § 105 of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9605, the United States Environmental Protection Agency (“EPA”) placed the Newmark Ground Water Contamination Superfund Site (“site”) on the National Priorities List (“NPL”), as set forth in 40 C.F.R. pt. 300, Appendix B, by publication in the Federal Register on March 31, 1989, 54 Fed. Reg. 13296, 13301.

(C) In late 1990, EPA commenced a remedial investigation (“RI”) focusing on the Newmark Operable Unit (“OU”). In September 1992, EPA expanded the RI to include the Muscoy OU.

(D) In March 1993, EPA published notice of the completion of the feasibility study (“FS”) and the proposed plan for interim remedial action pertaining to the Newmark OU. In December 1994, EPA published notice of the completion of the FS and proposed plan for interim remedial action pertaining to the Muscoy OU.

(E) EPA’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.

(F) On September 18, 1995, EPA, the state 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 EPA to fund the O&M.

(G) In September 1996, the SBMWD commenced an action against the United States Army, pursuant to §§ 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)).

(H) Commencing in June 2000, SBMWD, State Department of Toxic Substance Control (“DTSC”) and EPA commenced negotiations to resolve various issues relating to the site OU, Newmark OU and Muscoy OU. On March 23, 2005, the consent decree memorializing the settlement was entered by the court.

(I) The consent decree requires, in part, for the city to implement an ordinance providing for protection and management of the interim remedy set forth in the RODs and ESD and specifically for the city to regulate the spreading and extraction of water from the Bunker Hill Basin within the city in order to prevent or correct spreading practices or extraction operations that could interfere with or interrupt or degrade the performance of the interim remedy.

(J) The protection of ground water 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 and of the more than 600,000 residents of the Counties of San Bernardino and Riverside, who depend upon the continued availability of potable ground water from the Bunker Hill Basin, is paramount. The public health, safety and general welfare of the people of the state and the residents of the city require assurance that spreading of water and extraction of ground water do not interrupt or interfere with the construction, operation and maintenance of the interim remedy or degrade the performance of the interim remedy.

(K) The interim remedy requires, in part, the extraction of contaminated ground water from the Bunker Hill Water Basin, and within the Newmark and Muscoy OUs, and treatment of the ground water to meet all state and federal permits and requirements for drinking water and delivery of treated water to SBMWD for distribution to the public through its potable water system, or in the alternative, for recharge to the aquifer.

(L) The inhibitor wells are located at the downgradient end of the management zone. The inhibitor wells currently in place were designed to function based upon hydrological factors relating to the flow of water through the basin. The rate of flow through the basin may increase when additional spreading occurs at spreading basins located upgradient from the inhibitor wells. Another factor affecting flow rate is the amount of water flowing through the basin and either extracted or flowing out of the basin. When extraction of ground water occurs downgradient or to the side of management zone, or the capacity of existing downgradient or adjacent wells are increased, the rate of flow may increase. Should an increase in the flow of water occur beyond the capacity of the inhibitor wells, the inhibitor wells may not be able to contain and extract the additional contaminated water before it enters the aquifer downgradient from the inhibitor wells.

(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.

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

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 chapter. 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 long as a proposed permit term, to at least 95% at all times, with the proposed project operating 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 chapter as provided in § 13.25.025(G).

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. 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. A calendar day.

DEPARTMENT. The City 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 ground water aquifer by way of wells and other appurtenances.

FS. The feasibility studies performed by EPA for the site and completed in March 1993 and December 1994.

GENERAL MANAGER. The City Municipal Water Department General Manager, or designee.

GROUND WATER. All water beneath the surface of the earth within the zone below the water table in which the soil is saturated with water.

GROUND WATER MODEL or MODEL. The mathematical calculations required to be produced pursuant to the consent decree and SOW addressing the physical characteristics of the ground water in the Bunker Hill Basin under various conditions. The ground water 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 GROUND WATER MODEL can be used to perform predictive particle tracking by simulating future ground water 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. 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; and

(3) Physical reductions in the size of well equipment to limit the well capacity.

NPL. National Priorities List.

OU. Operable Unit.

PERSON. Any state or local government agency, private corporation, firm, partnership, individual, group of individuals, organization, association or, to the extent authorized by law, any federal agency.

PREDICTIVE PARTICLE TRACKING. The use of the ground water model, with the inhibitor wells operating at a 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, including any applicable mitigation measures or project re-design, with the proposed project operating at full permitted capacity for the entire permit term.

PROJECT RE-DESIGN. 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.

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 setting forth the provisions of the interim remedy to be implemented in addressing the contamination identified in RI/FS.

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 City Municipal Water Department.

SITE. The Newmark Ground water Contamination site identified in 40 C.F.R. pt. 3rd Appendix B, published in the Federal Register on March 31, 1989, 54 Fed. Reg. 13296, 13301.

SPREADING BASIN. Areas, facilities and portions of land set aside for the deposit of water with the intent to allow the water to percolate into the ground water basin, as depicted on Exhibit C in Appendix A, 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 § 13.25.015(H), setting forth the implementation of the remedial action to be performed by SBMWD, EPA and DTSC relating to the Newmark OU and Muscoy OU.

WELL or WATER WELL. Any artificial excavation constructed by any method for the purpose of extracting water from, or injecting water into the ground. This definition shall not include:

(1) Oil or gas wells, or geothermal wells constructed under the jurisdiction of the State Department of Conservation, except those wells converted to use as water wells; or

(2) Wells used for the purpose of:

(a) Dewatering excavation during construction; or

(b) Stabilizing hillsides or earth embankments.

(A) 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.

(B) Ground water 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.

(C) Application for permit. An application for a permit shall be filed by the landowner or the applicant with the SBMWD on a form provided by SBMWD. The applicant has an affirmative duty to provide accurate representations of all material facts in the application.

(D) 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 § 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.

(E) Contents of application for permit for spreading. The contents of the application for permit for spreading shall include, as a minimum, the name of the person proposing to conduct the spreading; the time period over which the spreading is proposed to occur; the volume, location and such other information as SBMWD may determine necessary and appropriate to evaluate the application and assure the proposed spreading will not interfere with, compromise, endanger or detrimentally affect the interim remedy or otherwise cause or contribute to the movement of contaminants to areas downgradient of the inhibitor wells.

(F) Fees. SBMWD may levy a fee for review of the application for permit and monitoring of compliance with the permit. The fee shall be established by resolution of the SBMWD Board of Water Commissioners.

(G) Exemption from permit and related requirements for institutional controls ground water 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 Adopt an Institutional Controls Ground Water 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 chapter and will be reviewed and approved pursuant to the ICGMP or successors to that agreement rather than this chapter. 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.

(H) 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.

(2) Subject to timely participation by EPA and DTSC, SBMWD shall endeavor to complete the review within 120 days from notice by SBMWD to applicant that the application is deemed complete.

(3) The completed application shall be subject to review and comment by the EPA and DTSC. SBMWD shall provide to EPA and DTSC a copy of its proposed decision, after which EPA and DTSC, pursuant to the consent decree, shall have a minimum of 30 days to comment on the proposed decision. If either EPA or DTSC object, in writing, to the permit application, proposed decision or modeling work on which a proposed permit decision is based, the SBMWD, EPA and DTSC shall consult for up to 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 EPA 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 EPA, the ground water 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 using 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.

(I) 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 in Appendix A 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) (a) 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.

(b) Such application shall clearly demonstrate that:

1. The well will conform to standards for structural integrity;

2. The water it produces will be properly treated; and

3. 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.

(3) 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.

(5) (a) The city recognizes that the wells listed in Exhibit D in Appendix A by assessor parcel number (“APN”) have been used by the overlying landowners solely for non-potable irrigation on such land.

(b) 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:

1. 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;

2. The well is constructed and screened in such a manner that it will not cause migration of contaminants between different confined intervals of the aquifer; provided, however, that if the replacement well is screened in substantially the same interval as the well it replaces, the replacement well shall be entitled to a rebuttable presumption of compliance with this condition; and

3. 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.

(A) Standard of review. Except as provided above, a permit may be granted for a period of up to 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 EPA or DTSC approved plans adopted thereunder.

(1) Prior to the completion of an updated ground water 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.

(2) After an updated model has been completed, the applicant shall bear the burden of demonstrating 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.

(B) Conditions of approval.

(1) In the event the application is approved, EPA, DTSC and SBMWD shall have the right to condition approval upon mitigation measures, project re-design or other remedial activities to be performed by applicant. EPA, DTSC or SBMWD may require the applicant to prepare a mitigation or remedial plan, subject to approval by EPA, DTSC and SBMWD, prior to issuance of the permit.

(2) If mitigation measures, project re-design or remedial activities are required as a condition of the issuance of a permit, SBMWD may require applicant to post a bond of sufficient value to assure compliance with the mitigation or remedial activities.

(3) Upon approval of the application, with or without mitigation measures, project re-design or remedial activities, and after the posting of a bond, if required, SBMWD shall issue a permit.

(4) The approval and issuance of a permit shall be subject, at all times, to the monitoring of applicant’s activities and suspension or revocation of the permit if it is determined by SBMWD, EPA or DTSC that applicant’s activities interfere with, compromise, endanger or detrimentally affect the interim remedy.

(5) 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.

(6) Misrepresentation or failure to disclose material facts in the application shall be grounds for denial of the application.

(7) The approval and issuance of a permit shall be conditioned upon applicant indemnifying, defending and holding city and SBMWD harmless from any and all claims, causes of action, injury to person or property and enforcement proceedings arising from or related to the application for permit, property subject to the permit, work to be undertaken relating to the permitted property, including work not the subject of the permit or any other matter related to the permit or granting of the permit, including, but not limited to, any costs incurred by SBMWD or the city from any contest to the issuance of the permit.

(C) Denial of application. SBMWD shall deny the application if it determines that the standards of this chapter have 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 migrate 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 EPA 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 EPA, DTSC and/or SBMWD for disapproval of the permit. An applicant denied a permit may appeal the decision pursuant to § 13.25.060.

(A) 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 monitoring, sampling and record-keeping of any wells that are the subject of the permit, including the amount, rate and timing of extraction or spreading and the quality of water being extracted or spread, including, but not limited to, concentrations of perchloroethylene (“PCE”), trichloroethylene (“TCE”), freon and other water quality related concentrations, specified by SBMWD. Upon receipt of any report requested or required by this chapter, SBMWD may require a follow-up report of additional data and/or information. Applicant shall keep records of all activities relating to the operation of wells and/or spreading activities, including all sampling results and flow data. Such records shall be available for inspection and copying by SBMWD, EPA and DTSC upon 48 hours’ notice. These records shall be maintained for a period of not less than five years. The period for retention of records shall automatically be extended for any period of litigation between SBMWD, the city, EPA and/or DTSC and the applicant.

(B) Reporting by non-applicants. Every person, except parties to the ICGMP described in § 13.25.025(G), spreading or extracting more than 250 acre-feet in any month, shall report the amount of such spreading or extraction to the city within 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.

(A) 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 the applicant to cease or reduce its operations and show cause why the permit should not be revoked, modified or restricted.

(B) 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) Misrepresentation or failure to disclose material facts in the application;

(2) 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;

(3) Tampering with monitoring equipment subject to the permit;

(4) Refusing or obstructing SBMWD, or its designee, or EPA or DTSC, or their designees’, timely access to the permitted sites and operations, and records of those operations;

(5) Failure to pay fines;

(6) Failure to meet compliance schedules;

(7) Failure to comply with conditions of approval; and

(8) 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.

(C) 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 § 13.25.060, for applicant to demonstrate why the permit should not be modified or revoked, or the applicant and the General Manager reach a mutually acceptable resolution. In all other circumstances, the 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 the applicant shall be afforded the opportunity for a hearing before the Board of Water Commissioners, pursuant to the provisions of § 13.25.060, to present any evidence as to why the permit should not be modified or revoked.

In the event an existing well, not subject to the permit requirements of this chapter, is operated in a manner which materially interferes with the city’s compliance with the provisions of the consent decree or SOW, or requires an increase in operating rates above design rate in order to maintain compliance with the requirements of the consent decree or SOW, the city may halt, abate or reduce such activities by injunction from the County Superior Court, or by the United States District Court for the Central District of California, acting pursuant to the United States District Court’s retention of jurisdiction over institutional controls in paragraph 1.b, page 11, lines 6 through 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.

The SBMWD may enter into consent orders, assurances of voluntary compliance or similar arrangements establishing an agreement with any person responsible for non-compliance with the 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.

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.

(A) In the event SBMWD denies an application, imposes or materially modifies a condition of approval that is/are unacceptable to the applicant or suspends or revokes a permit, an appeal may be commenced by the applicant.

(B) All appeals must be filed in the office of the SBMWD General Manager within 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.

(C) All appeals shall be heard by the SBMWD Board of Water Commissioners during its 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 the Cal. Code of Civil Procedure, § 1094.6.

(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 state trial court.

(A) Any person violating any provision of this chapter or any condition of a permit shall be guilty of a misdemeanor, punishable by a fine not exceeding $1,000 per violation, and/or by imprisonment not exceeding six months for each violation. Each day a violation occurs may be deemed a separate violation.

(B) 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 per day and actual damages 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.

(C) 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.

(D) A violation of any provision of this chapter or any permit provision or condition shall deemed to be a public nuisance.

(Ord. MC-1221, passed 3-20-2006)

APPENDIX A: EXHIBITS

Exhibit A

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Exhibit B

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Exhibit C

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ORDINANCE MC-1221, 3-20-06

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