Background:
A. In 1980 the State of California performed sampling of certain wells belonging to the City of San Bernardino Municipal Water Department ("SBMWD"). These samples disclosed the presence of various contaminants, including trichloroethylene (TCE) and perchloroethylene (PCE).
B. Pursuant to Section 105 of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 USC 9605, the United States Environmental Protection Agency ("EPA") placed the Newmark Groundwater Contamination Superfund Site ("Site") on the National Priorities List ("NPL"), as set forth in 40 CFR Part 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 of California 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 Section 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 of California 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 of San Bernardino (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 groundwater 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 of California and of the more than 600,000 residents of the Counties of San Bernardino and Riverside who depend upon the continued availability of potable groundwater from the Bunker Hill Basin is paramount. The public health, safety and general welfare of the people of the State of California and the residents of the City of San Bernardino require assurance that spreading of water and extraction of groundwater 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 groundwater from the Bunker Hill Water Basin, and within the Newmark and Muscoy OUs, and treatment of the groundwater 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. Inhibitor wells extract groundwater. 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 groundwater 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.