WHEREAS, the marshlands and near shore areas once located adjacent to the island of Alameda were filled with dredge material between 1900 and 1940; and

WHEREAS, the marsh crust, and subtidal zone extending from it, is a horizon that is identifiable in the subsurface (the interface at the bottom of the fill material) which contains remnants of grasses and other intertidal and subtidal features; and

WHEREAS, the marsh crust/subtidal zone also contains, at least locally, elevated levels of petroleum-related substances, such as semi-volatile organic compounds, which substances may pose an unacceptable risk to human health and the environment if excavated in marsh crust/subtidal zone materials, brought to the ground surface and handled in an uncontrolled manner; and,

WHEREAS, proper handling, storage and disposal of materials excavated from the marsh crust/subtidal zone, pursuant to state and federal hazardous materials laws, will help eliminate unacceptable exposures and risks to human health and the environment; and

WHEREAS, the Draft Base-wide Focused Feasibility Study for the Former Subtidal Area and Marsh Crust and Groundwater (U.S. Navy February 20, 1999) recommends implementation by the City of an institutional control, such as an excavation ordinance, as a remedial action related to the cleanup by the United States Navy of Naval Air Station Alameda and the Fleet Industrial Supply Center, Alameda Annex and Facility, which closed military installations are anticipated to be transferred to the City; and

WHEREAS, it can be seen with a certainty that adoption of a permitting program by the City that requires proper handling, storage and disposal, pursuant to existing state and federal hazardous material laws, of materials excavated from the marsh crust/subtidal zone will not involve or require any physical activities other than optional testing of excavated materials and, therefore, is exempt from the California Environmental Quality Act pursuant to California Code of Regulations, Title 14, Section 15061(b)(3) because there is no possibility that the enactment of the ordinance may have a significant effect on the environment.

Section 1. The Alameda ,Municipal Code is hereby amended by adding a new Subsection 13-56 (Excavation Into the Marsh Crust/Subtidal Zone at the Former Naval Air Station Alameda and Fleet Industrial Supply Center) to Article XVII (Pits, Wells and Excavations) of Chapter XIII (Building and Housing ) thereof to read:

13-56.1 Definitions

For purposes of this Article the following definitions shall apply:

Bay shall mean San Francisco Bay, including the Oakland Estuary and the Oakland Inner Harbor.

Earth material shall mean any rock, natural soil or fill or any combination thereof.

Excavation shall mean the mechanical removal of earth material.

Hazardous Materials, as defined in California Health and Safety Code sections 25260(d) and 25501(k), shall mean any material that, because of its quantity, concentration or physical or chemical characteristics, poses a significant or potential hazardous to human health and safety, or to the environment. Hazardous materials include, but are not limited to, hazardous substances, hazardous waste and material which a handler or the administering agency has reasonable basis for believing would by injurious to the health and safety of persons or harmful to the environment if released in to the workplace or the environment.

Marsh Crust shall mean the underground layer that is the remnant of the tidal marsh that existed along the shoreline of Alameda Island before filling to create additional dry land. In many places, this layer contains substances from former industrial discharges that were retained in the historic marsh before filling.

Subtidal Zone shall mean the underground layer that is the per-filling Bay floor extension of the historic marsh. Together, the marsh crust and the subtidal zone constitute a single, continuous underground layer that extends Bayward of the original mean higher high tide line of Alameda Island, before filling, throughout the area that was filled.

Threshold depth shall mean the depth below which a permit is required by this Article. The threshold depth for any location at which this article applies is shown on Exhibit __. The threshold depth is conservatively identified with the elevation above which there is likelihood that substances from the historic marsh or Bay floor would have mixed during filling.

13-56.2 Permit Required.

a. It shall be unlawful for any person, including utility companies and their employees and contractors, to excavate below a threshold depth, to be established by the City Engineer, above the marsh crust/subtidal zone within the area of the former Naval Air Station Alameda and Fleet Industrial Supply Center, Alameda Annex and Facility s depicted in Exhibit __ hereto, without first obtaining a permit in writing from the City Engineer.

b. All excavation below the threshold depth in the area subject to this Article shall be performed solely in accordance with the permit as approved and issued by the City.

13-56.3 Depth of Excavation Subject to Permit Requirements

The City Engineer shall establish a threshold depth (which may vary by location) below which a permit shall be required for excavation pursuant to this Article. In establishing the threshold depth the City Engineer shall include a margin of safety above the elevation of the historic marsh surface or subtidal zone. The City Engineer shall publish a map depicting the parcels and threshold depth for which a permit is required under this Article. The City Engineer may update the map as necessary to incorporate any new information concerning the depth of the marsh crust/subtidal zone received by the City since the preparation of the initial map or last update.

13-56.4 Exception to Permit Requirement

No permit shall be required under this Article solely for pile driving or other penetration of the marsh crust/subtidal zone that does not involve brining material from below the threshold depth to above the threshold depth.

13-56.5 Permit Application

Application for a permit shall be made in writing on forms available in or form the Building Services Office and shall be filed in the Building Services Office. Section 13-1.2 of Article 1 of Chapter XXIII regarding Appeals (Section 105.1), Appeal Fee (Section 105.2), Expiration (Section 106.4.4), Permit Fees (Section 107.2) and Plan Review Fees (Section 107.3) shall apply to all permits issued pursuant to this Article. The information required to be provided on the application shall be determined by the City Engineer and shall include at a minimum:

a. A description of the property that is to be excavated sufficient to locate the area of proposed excavation on Exhibit __.

b. Detailed plans of the excavation work t be done, including a drawing with dimensions to scale of all proposed excavation activity.

c. A statement of the maximum depth of excavation.

d. All elevations in plans and application materials submitted to the City shall be reference to City Datum.

e. A cost estimate for purposes of determining the amount of the bond requires to be obtained pursuant to Section 13-56.11.

13-56.6 Certifications and Acknowledgments

a. The following certification shall be required as part of the permit application:

1. The applicant shall sign a certification prepared by the City Engineer acknowledging receipt of notice that the property to be excavated may be in the area of the marsh crust/subtidal zone, and that hazardous materials may be encountered during excavation.

2. The applicant shall sign a certification prepared by the City Engineer acknowledging that federal and state hazardous materials laws and regulations will apply to storage, transportation, and disposal of any materials excavated from the marsh crust/subtidal zone that are hazardous materials.

3. The applicant shall sign a certification prepared by the City Engineer acknowledging liability for disturbing and removing all materials from the marsh crust/subtidal zone in accordance with this Article and the permit.

b. All building permits issued for construction or excavation within the area subject to this Article shall contain the following written warning:

"Pursuant to Article XVII of the Alameda Municipal Code, excavation work in the area of the march crust/subtidal zone within the area of the former Naval Air Station Alameda, and Fleet and Industrial Supply Center, Alameda Annex and Facility, as depicted in Exhibit __ to Article XVII, may be subject to special materials handling requirements. The permittee acknowledges that he or she has been informed of the special materials handling requirements of Article XVII and that hazardous materials may be encountered during excavation."

13-56.7 Notification Prior to State of Excavation

a. After receipt of a permit and no less that two (2) business days (forty-eight (48) hours minimum) before commencement of any excavation activity in the area subject to this Article, the permittee shall notify the City Engineer of the planned state of excavation. Said notifications shall include a schedule for any excavation work that will last for more that one day.

b. The permittee shall give adequate notice to Underground Services Alert prior to commencing any excavation activity subject to this Article.

13-56.8 Materials Handling

The permittee shall elect to follow one or more of the courses of action set forth in Sections 13-56.8a, 13-56.8b and 13-56.8c, below, before beginning any excavation activities in the area subject to this Article. Unless otherwise demonstrated by the permittee to the satisfaction of the City Engineer, it is presumed that soil below the threshold depth in the area of the marsh crust/subtidal zone, as depicted on Exhibit __ must be managed as though it were hazardous. Section 13-56.8a provides the permittee the opportunity to rebut this presumption through testing. Section 13-56.8b requires the permittee to assume that the presumption is correct. Section 13-56.8c concerns preparation of contingency plans for handling excavated materials from below the threshold depth as though they were hazardous. The permittee may elect to follow Section 13-56.8a, but must comply with Section 13-56.8b or 13-56.8c if testing demonstrates that the presumption is correct.

a. The permittee may elect to use reconnaissance borings, pursuant to a plant prepared by a qualified registered engineer or registered geologist, licensed in the State of California, to rule out, to the satisfaction of the City Engineer, the presence of hazardous materials below the threshold depth in the area to be excavated. The permittee may substitute existing information for reconnaissance data that it would otherwise collect if existing information is form the location and depth to be excavated and contains observations or results of analyses that otherwise would have resulted from the reconnaissance investigation.

1. If the marsh crust/subtidal zone is not observed (for example, by sight or smell) within the area and to the depth to be excavated, no additional materials controls, except as may otherwise be required under applicable federal state or local law, are required under this article.

2. If hazardous materials are found below the threshold depth within the area to be excavated, the applicant shall comply with either Section 13-56-8b or Section 13-56.8c, at his or her election.

b. The permittee may presume that materials excavated from below the threshold depth must be disposed at an appropriately permitted landfill. No excavated materials from below the threshold depth may be stockpiled prior to disposal or returned to the excavation.

c. The permittee shall hire a qualified registered engineer or registered geologist, licensed in the State of California, to develop a site-specific construction site management plan and materials testing program to the satisfaction of the City Engineer. The construction site management plan shall include at a minimum, provisions governing control of precipitation run on and run off from stockpiled soils, soil segregation, securing of stockpiled soils, and duration of stockpiling.

13-56.9 Health and Safety Plan

The applicant shall cause to be prepared by a certified industrial hygienist, and keep on the construction site at all times, a health and safety plan to protect workers at the excavation site and the general public to the satisfaction of the City Engineer. The City Engineer may prepare and provide to applicants a model health and safety plan which, if used by the applicant, shall be modified by the applicant's certified industrial hygienist to suit the specific requirements of the applicants project.

13-56.10 Excavation Site Best Management Practices

All excavation and materials handling activities permitted under this Article shall be conducted in accordance with applicable Alameda County Clean Water Program Best Management Practices and City of Alameda Storm Water Management and Discharge Control Program Ordinance requirements.

13-56.11 Bonds

Upon a finding by the City Engineer that a permit should issue for excavation pursuant to this Article, a surety or performance bond conditioned upon the faithful performance and completion of the permitted excavation activity shall be filed with the City. Such bond shall be executed in favor of the City and shall be maintained in such form and amounts prescribed by the Risk Manager sufficient to ensure that work, if not completed in accordance with the approved plans and specifications, will be corrected to eliminate hazardous conditions.

13-56.12 Non-assumption of Liability

In undertaking to require applicants for certain excavation permits to comply with the requirements of this Article, the City of Alameda is assuming an undertaking only to promote the general welfare. The City is not assuming, nor is it imposing on itself or on its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such a breach proximately caused injury.

13-56.13 Construction on City Property

a. The city Engineer shall prepare standard work procedures that comply with all requirements of this Article for all City construction or improvement activities involving excavation below the threshold depth in the area subject to this Article. All departments, boards, commissions, bureaus and agencies of the City of Alameda that conduct construction or improvements on land under their jurisdiction involving excavation below the threshold depth in the area subject to this Article shall follow such standard work procedures.

b. The City Engineer shall prepare standard contract specifications that require City contractors to comply with all requirements of this Article. All contracts entered into by departments, boards, commissions, bureaus and agencies of the City of Alameda that authorize construction of improvements on land under their jurisdiction involving excavation below the threshold depth in the area subject to this Article shall contain such standard contract specifications.

13-56.14 Severability

If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Article or any part thereof is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Article or any part thereof. The City Council hereby declare that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase of this Article irrespective of the fact that one or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases be declared unconstitutional or invalid or effective.

13-56.15 Application Fee

No permits for excavation in the marsh crust/subtidal zone shall be issued unless a fee has been paid. The fee shall be set by City Council resolution.

13-56.16 Enforcement

a. Any person, including utility companies and their employees and contractors, violating any of the provisions of this Article shall be deemed guilty of a misdemeanor, and each person shall be deemed guilty of separate offense for each and every day or portion thereof during which any violation of any of the provisions of this Article is committed continued or permitted, and such violation may be prosecuted and punished as an infraction or misdemeanor pursuant to the provisions of Section 1-5.1 of the Alameda Municipal Code.

b. Any person, including utility companies and their employees and contractors, that commences any excavation without first obtaining the necessary permits therefor shall, if subsequently allowed to obtain a permit, pay an amount, in addition to the ordinary permit fee required, quadruple the permit fee otherwise required.

13-56.17 Amendment to Article XVII

This Article XVII shall not be amended without thirty (30) days prior written notice to the California Department of Toxic Substances Control.

Section 2. This Ordinance shall be in full force and effect from and after the expiration of thirty (30) days from the date of its final passage.