Hunters Point Shipyard. | |
Definitions. | |
Aplicability of Article. | |
Reports by Director. | |
General Welfare; Non-Assumption of Liability. | |
Construction on City Property. | |
Former Landfill Disposal Areas. | |
Rules and Regulations. | |
Fees. | |
Violations. | |
Enforcement Actions. | |
Reserved. | |
Remedies Not Exclusive. | |
Institutional Controls. | |
Site Evaluation and Site Mitigation for Unrestricted Residential Property. | |
HPS Property With a Durable Cover Requirement. | |
Severability. | |
Findings. The Board of Supervisors of the City and County of San Francisco hereby finds and declares as follows:
A. This ordinance is designed to protect human health and safety and the environment at the former Hunters Point Shipyard during and after development and to facilitate redevelopment as envisioned in the Hunters Point Shipyard Redevelopment Plan, which the Board of Supervisors adopted in 1997 and amended in 2010, and its Environmental Impact Reports.
B. The United States designated Hunters Point Shipyard as a U.S. Naval Shipyard in 1945. The United States Environmental Protection Agency (EPA) placed the Hunters Point Shipyard on the National Priorities List pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) in 1989. The U.S. Navy ("Navy") has divided the site into parcels for purposes of remediation.
C. The Navy issued a CERCLA Record of Decision (ROD) for Parcel A which was approved by the EPA, the California Department of Toxic Substances Control (DTSC), and the San Francisco Bay Region Regional Water Quality Control Board (RWQCB) in November 1995. The ROD concluded that "no action" was needed to clean up Parcel A. Effective April 5, 1999, EPA removed Parcel A from the National Priorities List after EPA and the State of California found that all appropriate responses under CERCLA had been implemented, that no further cleanup is appropriate for Parcel A and that the remedial actions conducted on Parcel A remain protective of public health, welfare, and the environment.
D. On September 1, 2004, the Navy issued a draft final Finding of Suitability to Transfer (FOST) for Parcel A. On September 30th and October 6th and 7th 2004, respectively, the EPA, DTSC and the RWQCB concurred with the Navy's FOST. The Navy signed the FOST on October 14, 2004. The FOST for Parcel A contains requirements for certain notices, restrictions and covenants to be included in the deed for Parcel A. These notices, restrictions and covenants are also referred to as "institutional controls" and are binding on all successive owners of any portion of Parcel A.
E. On December 3, 2004, the Navy transferred portions of Parcel A to the San Francisco Redevelopment Agency.
F. The Navy issued a CERCLA ROD Amendment for Parcel B in January 2009, a ROD for Parcel D-1 in September 2009, a ROD for Parcel G in February 2009, a ROD for Parcel UC-1 in August 2009 and a ROD for Parcel UC-2 in December 2009. The EPA, DTSC and the RWQCB approved these RODs. The RODs concluded that additional action was needed for the parcels to be protective of public health, welfare, and the environment in light of the redevelopment plans for the site. The Navy is preparing a ROD for Parcel C and issued a Draft Proposed Plan in January 2009. The Navy issued a Draft Final No Further Action ROD for Parcel D-2 in January 2009. The Navy completed a Draft Final Remedial Investigation Report for Parcel E in February 2008 and a Draft Feasibility Study in July 2009. The Navy issued a Draft Final Remedial Investigation Feasibility Study (RI/FS) for Parcel E-2 in February 2009 and a Draft Final Radiological Addendum to the RI/FS in March 2010. The Navy issued the Final Feasibility Study for Parcel F in April 2008.
G. In addition to Parcel A, which the Navy already transferred to the San Francisco Redevelopment Agency ("Agency"), it is anticipated that the Navy will offer the remaining parcels for transfer to the Agency in accordance with a Conveyance Agreement between the Agency and the Navy. Prior to transfer of any parcel, the Navy will issue a draft final FOST or a draft final Finding of Suitability for Early Transfer (FOSET) for the parcel. If the Navy issues a FOST, the Conveyance Agreement requires the Navy to obtain the concurrence of the EPA, DTSC, and RWQCB in the final FOST before it offers the parcel to the Agency. If the Navy issues a FOSET, CERCLA requires the Navy to obtain the approval of EPA and the concurrence of the Governor of California which will be based on input from DTSC and the RWQCB. A FOST or FOSET may require the deeds for the property to include certain environmental notices, restrictions or covenants, also referred to as "institutional controls" that will be binding on all successive owners of the transferred property to which such notices, restrictions or covenants apply. The Navy also is expected to enter into a Covenant to Restrict Use of Property (CRUP) with DTSC, which will be binding on subsequent owners and will provide for DTSC enforcement of the covenants, restrictions or conditions to which the property is subject. A Land Use Control Remedial Design (LUC RD) for each parcel will lay out the inspection and reporting requirements for the institutional controls and activity and land use restrictions. For property that transfers via a FOSET, the EPA and the Agency and possibly subsequent private developers, will be required to enter into an Administrative Order on Consent (AOC), also approved by state environmental regulatory agencies, which will detail the required corrective or cleanup actions and restricted activities associated with the property covered by the AOC and provide for EPA enforcement of its terms. Additionally, for property that transfers via a FOSET, the Navy and the Agency will enter into an Early Transfer Cooperative Agreement (ETCA), which will provide for the Agency to cause to be performed certain environmental remediation activities to facilitate redevelopment in exchange for funding of such activities by the Navy.
H. The Board of Supervisors by Resolution 347-10, adopted CEQA findings, including a mitigation monitoring and reporting program ("MMRP") for the Candlestick Point-Hunters Point Shipyard Phase II Development Plan Project ("Project"), for which the Agency and Planning Commissions certified a Final Environmental Impact Report ("FEIR") in June 3, 2010. The Project contains all of the property in the Hunters Point Shipyard except the property designated as Parcel A by the Navy. The MMRP contains mitigation measures that address potential hazardous materials impacts associated with the Project. It is the intent of the Board to create a process for the Department of Public Health to enforce in the Hunters Point Shipyard portion of the Project certain hazardous materials mitigation measures identified in the FEIR through this Article 31.
(Added by Ord. 303-04, File No. 041541, App. 12/24/2004; Ord. 204-10, File No. 100575, App. 8/3/2010)
In addition to the general definitions applicable to this Code, whenever used in this Article, the following terms shall have the meanings set forth below:
(a) "Applicant" means a person applying for any of the following authorizations for subsurface activities on portions of the Hunters Point Shipyard subject to this Ordinance:
(1) For property determined by the applicable ROD to be suitable for unrestricted residential use (i) any building or grading permit that involves the disturbance of at least 50 cubic yards (38.23m3) of soil; (ii) any permit pursuant to the Public Works Code that involves the disturbance of at least 50 cubic yards (38.23m3) of soil; (iii) any improvement plan pursuant to Division 3 of the Subdivision Code that involves the disturbance of at least 50 cubic yards (38.23m3) of soil; (iv) any permit to operate or approval to close an underground tank, pursuant to Sections 1120 and 1120.1 of the Health Code that involves the disturbance of at least 50 cubic yards (38.23m3) of soil; (v) any well construction, modification, operation or maintenance permit pursuant to Article 12B of the Health Code; or (vi) any permit that involves demolition of structures with lead-based paint.
(2) For property which is subject to a deed restriction or covenant containing an environmental restriction requiring a durable cover or engineered cap (i) any building or grading permit that involves the disturbance of soil; (ii) any permit pursuant to the Public Works Code that involves the disturbance of soil; (iii) any improvement plan pursuant to Division 3 of the Subdivision Code that involves the disturbance of soil; (iv) any permit to operate or approval to close an underground tank, pursuant to Sections 1120 and 1120.1 of the Health Code that involves the disturbance of soil; or (v) any well construction or destruction permit pursuant to Article 12B of the Health Code.
(3) Notwithstanding the preceding subdivisions, an Applicant does not include a person applying for a permit for the sole purpose of conducting environmental characterization.
(b) "Director" means the Director of the San Francisco Department of Public Health or the Director's designee.
(c) "GIS" is a geographic information system, computer-based system containing site-specific environmental information.
(d) "Hunters Point Shipyard parcels" or "HPS parcels" mean that area of the City and County of San Francisco shown on Article 31 Map - Figure 1, which is maintained for public distribution by the Director. A copy of said figure is on file with the Clerk of the Board of Supervisors in File No. 100575.
(e) "Improvement Plan" means an improvement plan as required under the Subdivision Map Act, California Government Code Sections 66410 et seq.
(f) "Parcel A" means that area of the City and County of San Francisco shown on Article 31 Map - Figure 1, which is maintained for public distribution by the Director. A copy of said figure is on file with the Clerk of the Board of Supervisors in File No. 100575.
(g) "Prescribed Subsurface Activity Area" means the specific location and horizontal and vertical extend of the proposed disturbance, excavation, grading or other subsurface activity defined using coordinates compatible with the GIS to the extent feasible.
(Added by Ord. 303-04, File No. 041541, App. 12/24/2004; amended by Ord. 113-05, File No. 050547, App. 6/10/2005; Ord. 204-10, File No. 100575, App. 8/3/2010)
(a) Applicants must comply with this Article. The Department of Public Works (for any permit or improvement plan subject to this Article), the Department of Building Inspections (for building and grading permits) and the Department of Health (for underground tank permits and approvals and water well permits) shall inform the Director whenever a permit or improvement plan application is submitted for Hunters Point Shipyard and shall refer Applicants to the Director. The Director shall determine the applicability of this Article to the permit application or improvement plan and shall implement and enforce the provisions of this Article. If the Director determines that a permit or improvement plan is subject to the provisions of this Article, the permit or improvement application shall not be deemed complete until the Applicant has complied with the requirements of this Article or shall be conditioned upon compliance with this Article as specified herein.
(b) Any person that obtains environmental sampling data shall submit that data to the Director in a form acceptable to the Director.
(c) Prior to applying for a permit or improvement plan any person that desires to comply with this ordinance may enter into a voluntary agreement with the Director. The voluntary agreement shall be signed as to form by the City Attorney and shall require the person to comply with the substantive requirements of this Article and any regulations adopted by the Director; require payment of fees; and provide for Director notification to the relevant department that the person has complied with this Article.
(d) Compliance with this Article does not relieve any person of compliance with any applicable federal, state, regional or local law, and does not take the place of compliance with any requirement of any regulatory agency that has jurisdiction to enforce any legal requirement that this Article is intended to address.
(Added by Ord. 303-04, File No. 041541, App. 12/24/2004; Ord. 204-10, File No. 100575, App. 8/3/2010)
The degree of protection required by this Article is considered to be reasonable for regulatory purposes. This Article shall not create liability on the part of the City, or any of its officers or employees for any damages that result from reliance on this Article or any administrative decision lawfully made in accordance with this Article. All persons handling hazardous materials within the City should be and are advised to determine to their own satisfaction the level of protection desirable to ensure no unauthorized release of hazardous materials.
In undertaking to require Applicants to comply with this Article, the City and County of San Francisco is assuming an undertaking only to promote the general welfare. It is not assuming, nor is it imposing on itself or on its officers and employees, any obligation for breach of which it is liable for money damages to any person who claims that such breach proximately caused injury.
All inspections specified or authorized in this Article shall be conducted at the discretion of the City and nothing in this Article shall be construed as requiring the City to conduct any such inspection nor shall any actual inspection made imply a duty to conduct any other inspection.
(Added by Ord. 303-04, File No. 041541, App. 12/24/2004; Ord. 204-10, File No. 100575, App. 8/3/2010)
All departments, boards, commissions and agencies of the City and County of San Francisco that authorize construction or improvements on land under their jurisdiction under circumstances where no building, grading, street use or other permit or approval is required pursuant to the San Francisco Municipal Codes shall adopt rules and regulations to insure that the procedures set forth in this Article are followed. The San Francisco Redevelopment Agency and the departments of Public Health, Public Works, and Building Inspection shall assist other departments, boards, commissions and agencies to ensure that these requirements are met.
(Added by Ord. 303-04, File No. 041541, App. 12/24/2004; Ord. 204-10, File No. 100575, App. 8/3/2010)
Upon receipt of a site evaluation report from an Applicant, the Director shall determine whether the Prescribed Subsurface Activity Area is subject to the provisions of the California Integrated Waste Management Act (Cal. Public Resources Code § 40000 et seq.) as amended, relating to development on or near a former landfill disposal site. In making this determination, the Director may consult with the Local Enforcement Agency and the California Integrated Waste Management Board.
(a) For any Prescribed Subsurface Activity Area or portion thereof that is subject to such provisions, the Director shall require the Local Enforcement Agency to approve proposed land uses and determine any necessary protective measures or requirements to the extent necessary to comply with California Code of Regulations, Title 27, Chapter 3, Subchapter 4, Article 6 (Section 20917 et seq.) and Subchapter 5 (Section 20950 et seq.), as amended.
(b) For any Prescribed Subsurface Activity Area or portion thereof that is located within 1,000 feet of a former landfill disposal site, but which is not subject to the above- referenced provisions of the California Integrated Waste Management Act, the Director shall review any proposed structures to ensure that the construction or use of the structure will not pose a threat to public health and safety or the environment. In making this determination, the Director shall consider the potential for adverse impacts on public health and safety and the environment, taking into account the following: the amount, nature and age of solid waste in the landfill disposal area; current and projected gas generation; effectiveness of existing controls; proximity of the proposed land uses to landfill disposal area; and other relevant geographic or geologic features. Based on these factors, the Director shall determine whether the structure must be designed and constructed in accordance with the following measures or requirements (or other design providing an equivalent degree of protection against gas migration into the structure): installation of a geomembrane or equivalent system with low permeability to landfill gas between the concrete floor slab of the structure and subgrade; installation of a permeable layer of open graded material of clean aggregate with a minimum thickness of 12 inches between the geomembrane and the subgrade or slab; installation of a geotextile filter to prevent the introduction of fines into the permeable layer; installation of perforated venting pipes, designed to operate without clogging, within the permeable layer; construction of a venting pipe with the ability to be connected to an induced draft exhaust system; installation of automatic methane gas sensors within the permeable gas layer, and inside the structure to trigger an audible alarm when methane gas concentrations are detected; and/or appropriate periodic methane gas monitoring, including monitoring inside structures, with reporting requirements and a contingency and mitigation plan.
For purposes of this section, "structures" shall include: buildings, subsurface vaults, utilities or any other buildings or areas where potential gas buildup would be of concern.
(c) If the Director determines under subsections (a) or (b) of this Section that protective measures or requirements are necessary, the Director shall inform the relevant department in writing that such measures or requirements must become conditions of the permit or improvement plan.
(Added by Ord. 303-04, File No. 041541, App. 12/24/2004; Ord. 204-10, File No. 100575, App. 8/3/2010)
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