II

103D CONGRESS

1ST SESSION S. 1352

To amend the Comprehensive Environmental Response, Compensation, and

Liability Act of 1980 (Superfund) to establish a public-private partnership demonstration project for the cleanup of ground water pollution

in the San Gabriel Basin.

IN THE SENATE OF THE UNITED STATES

AUGUST 4 (legislative day, JUNE 30), 1993

Mrs. FEINSTEIN introduced the following bill; which was read twice and

referred to the Committee on Environment and Public Works

A BILL

To amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (Superfund) to establish a public-private partnership demonstration project

for the cleanup of ground water pollution in the San

Gabriel Basin.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘San Gabriel Basin

5 Demonstration Project Act’’.

6 SEC. 2. FINDINGS.

7 The Congress finds the following:
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1 (1) The San Gabriel Basin presents a unique

2 set of environmental problems.

3 (2) The San Gabriel Valley is an area of one

4 hundred and ninety five square miles located ap5 proximately ten to twenty miles northeast of down6 town Los Angeles in Los Angeles County. It is the

7 home of 1,000,000 to 1,500,000 people who rely on

8 the ground water of the San Gabriel Basin for their

9 primary drinking water.

10 (3) The San Gabriel Basin is the most heavily

11 contaminated potable ground water basin in the

12 United States.

13 (4) The ground water in the San Gabriel Basin

14 is heavily contaminated with toxic volatile organic

15 compounds (VOCs) including trichloroethylene

16 (TCE), perchloroethylene (PCE), and carbon tetra17 chloride (CTC). The contamination levels vary

18 throughout the Valley.

19 (5) Four separate areas of contamination in the

20 San Gabriel Basin are listed in the National Priority

21 List (NPL) of Superfund. The areas where the VOC

22 contamination exceeds drinking water standards cov23 ers approximately thirty to forty square miles.

24 (6) The VOCs in the San Gabriel Basin have

25 been generated by hundreds of commercial and in-
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1 dustrial facilities scattered throughout the San Ga2 briel Valley, over a period of more than thirty years.

3 (7) The San Gabriel Basin is also heavily con4 taminated with nitrates as a result of hundreds of

5 years of agriculture and ranching in the Valley as

6 well as from industrial and residential septic sys7 tems.

8 (8) Once contaminated, ground water is very

9 difficult to clean up.

10 (9) A plume of polluted ground water will mi11 grate and spread contaminants wherever it flows.

12 The many areas of ground water contamination

13 throughout the San Gabriel Basin move at different

14 rates and in different directions, depending on the

15 density of the contaminants, the character of the aq16 uifer, and the local flow patterns. In the San Gabriel

17 Basin, flow patterns may be changing directions due

18 to fluctuating pumping rates throughout the Basin

19 and other factors.

20 (10) Complicating the cleanup in the San Ga21 briel Basin is the fact that forty-five different water

22 purveyors take water from the basin.

23 (11) Because the ground water flows under

24 hundreds of different facilities, apportioning respon-
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1 sibility could be very complicated and could ulti2 mately be a very litigious process.

3 (12) There are approximately two hundred and

4 seventy five public water supply wells in the San Ga5 briel Basin. Eighty wells have contamination levels

6 exceeding current Federal drinking water standards.

7 Some of these wells have been abandoned and re8 placed with new wells in clean areas. In other con9 taminated wells, pumping continues but the ground

10 water is blended with clean water so that distributed

11 water meets the drinking water standards.

12 (13) The San Gabriel Basin presents a unique

13 opportunity for the community to solve a difficult

14 problem, by working together with the Federal Gov15 ernment in a public-private partnership.

16 SEC. 3. SAN GABRIEL BASIN DEMONSTRATION PROJECT.

17 Title I of the Comprehensive Environmental Re18 sponse, Compensation, and Liability Act of 1980

19 (Superfund) is amended by adding at the end the following

20 new section:

21 ‘‘SEC. 127. SAN GABRIEL BASIN DEMONSTRATION PROJECT.

22 ‘‘(a) TREATMENT OF WATER.—(1) As promptly as

23 practicable after the date of enactment of this section but

24 not later than six months after such date, the Adminis25 trator shall enter into one or more cooperative agreements
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1 or contracts with the San Gabriel Basin Water Quality

2 Authority, or a successor public agency, (hereinafter in

3 this Act referred to as the ‘Authority’) to provide water

4 treatment to remove volatile organic compounds from the

5 ground water in the San Gabriel Basin. In the case of

6 the projects described in paragraph (3)(B), the contracts

7 or cooperative agreements shall also include the Water Re8 plenishment District of Southern California and the

9 Central Basin Municipal Water District. Implementation

10 of such contracts or cooperative agreements shall be con11 tingent upon a determination by the Administrator that

12 the preconditions of subsection (b) have been met.

13 ‘‘(2) The Authority may contract with other public

14 agencies to provide water treatment services or facilities

15 or related services and facilities, subject to approval by

16 the Administrator and pursuant to the decision rendered

17 in Los Angeles Superior Court Case Number 924128,

18 Upper San Gabriel Valley Municipal Water District v. City

19 of Alhambra, et al.

20 ‘‘(3) Contracts or cooperative agreements under this

21 subsection shall be consistent, insofar as possible, with the

22 April 17, 1990 draft Basin-Wide Technical Plan prepared

23 by the Administrator, and shall include but not be limited

24 to the following elements:
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1 ‘‘(A) BALDWIN PARK.—Proposed capital ex2 penditures in the vicinity of Baldwin Park over the

3 next ten years, including $4,500,000 for monitoring

4 wells, $14,500,000 for up to seven wellhead treat5 ment plants, and $136,000,000 for a conjunctive-use

6 plant designed to clean up the Basin and at the

7 same time allow utilization of the basin as a storage

8 facility which will increase reliability of water sup9 plies in Southern California. Such expenditures shall

10 include a water supply component jointly funded by

11 the Metropolitan Water District of Southern Califor12 nia and the Bureau of Reclamation (as authorized

13 by Public Law 102–579), and a VOC clean-up com14 ponent funded by the Project. Proposed operating

15 costs for these projects will increase gradually to

16 about $32,000,000 per year at the end of the ten

17 year period.

18 ‘‘(B) WHITTIER NARROWS.—Proposed capital

19 expenditures, including $1,000,000 for engineering

20 assessment, $3,000,000 for monitoring wells,

21 $11,500,000 for wellhead projects, and $20,000,000

22 for regional treatment plants to prevent contami23 nated ground water from moving from the San Ga24 briel Basin toward the Central Basin through the

25 Whittier Narrows and proposed operating costs for
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1 such projects which at the end of the ten year period

2 equal approximately $3,000,000 per year.

3 ‘‘(C) PUENTE BASIN AREA.—Proposed capital

4 expenditures which include $2,000,000 for engineer5 ing assessments, $3,000,000 for monitoring wells,

6 and $10,000,000 for regional plants in the Puente

7 Valley area to extract and treat highly contaminated

8 groundwater to meet water supply needs and pro9 posed operating costs for such projects which, at the

10 end of the ten year period will equal approximately

11 $2,000,000 per year.

12 ‘‘(D) ARCADIA, EL MONTE, MONROVIA, GLEN13 DORA.—Proposed capital expenditures in these

14 areas, including $3,000,000 for monitoring wells and

15 $7,500,000 for up to five wellhead treatment plants

16 and proposed operating costs for such projects which

17 will equal about $2,000,000 per year at the end of

18 the ten year period.

19 Federal funds made available under provisions of law

20 other than this section or other provisions of this Act for

21 any expenditure referred to in subparagraphs (A), (B),

22 (C), or (D) shall not be treated as costs of remedial action

23 recoverable under section 107(a)(4)(A) of this Act.

24 ‘‘(4) Contracts or cooperative agreements under this

25 subsection shall provide for consultation with—
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1 ‘‘(A) the Upper San Gabriel Valley Municipal

2 Water District,

3 ‘‘(B) the Main San Gabriel Basin Watermaster,

4 ‘‘(C) the San Gabriel Valley Municipal Water

5 District.

6 ‘‘(D) the Three Valleys Municipal Water Dis7 trict,

8 ‘‘(E) the Central Basin Municipal Water Dis9 trict,

10 ‘‘(F) the Water Replenishment District of

11 Southern California,

12 ‘‘(G) the San Gabriel Valley Protective Associa13 tion,

14 ‘‘(H) the San Gabriel River Watermaster,

15 ‘‘(I) the Metropolitan Water District of South16 ern California,

17 ‘‘(J) the California State Water Resources Con18 trol Board, and

19 ‘‘(K) the California Regional Water Quality

20 Control Board, Los Angels Region.

21 ‘‘(5) If the Basin-Wide Technical Plan is published

22 in final form after the date on which any contract or coop23 erative agreement under this subsection is entered into,

24 the contract or cooperative agreement shall be modified

25 by the parties to the extent necessary to be consistent with
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1 the plan. Pursuant to such contract or cooperative agree2 ment, the Authority shall provide treatment for water

3 withdrawn from the Basin by qualified public water sys4 tems unless otherwise provided by the Metropolitan Water

5 District of Southern California.

6 ‘‘(6) No contract or cooperative agreement entered

7 into under this subsection shall take effect unless the Ad8 ministrator determines that all preconditions for imple9 menting the treatment project under this subsection have

10 been met, as provided in subsection (b), before the date

11 thirty months after the enactment of this section.

12 ‘‘(7) In providing water treatment under this sub13 section and apportioning costs under this section, the Ad14 ministrator and the Authority shall give credit for costs

15 incurred in the design, construction, and operation of any

16 previously approved project undertaken with respect to the

17 Basin and shall take appropriate steps to ensure continu18 ity.

19 ‘‘(b) PRECONDITIONS FOR IMPLEMENTATION OF

20 TREATMENT PROJECT.—(1) No water treatment shall be

21 provided pursuant to any contract or cooperative agree22 ment under subsection (a) until the Administrators, in

23 consultation with the Authority, finds that—

24 ‘‘(A) a sufficient number (at least 65 percent)

25 of the persons notified by the Administrator under
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1 this Act prior to the date six months after the enact2 ment of this section that they may be potentially re3 sponsible parties have entered into long-term cost4 sharing contracts with the Administrator under this

5 subsection; and

6 ‘‘(B) those contracts are sufficient to provide

7 annual payment for at least 50 percent of the total

8 costs incurred by the Administrator after the date of

9 the enactment of this section in carrying out water

10 treatment under subsection (a).

11 ‘‘(2) The contracts with participating parties under

12 this subsection shall also require that each participating

13 party entering into such a contract will—

14 ‘‘(A) conduct an eviornmental site assessment

15 in accordance with subsection (i) of the property

16 owned or operated by that party by reason of which

17 such party has been designated as a potentially re18 sponsible party, and

19 ‘‘(B) carry out all removal and remedial action

20 required with respect to hazardous substances in the

21 soil above the water table on such property, to the

22 extent necessary to comply with the standards under

23 section 121.

24 ‘‘(3) Any person, including potentially responsible

25 parties identified by the Administrator after the date six
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1 months after the enactment of this section, as well as all

2 local government entities within the San Gabriel Basin,

3 who submits a request to the Administrator to participate

4 in the project under this section shall be offered the oppor5 tunity to enter into cost sharing contracts under this sec6 tion and those who enter into such contracts shall be treat7 ed as a participating party for purposes of this section.

8 ‘‘(4) Each person desiring to participate under this

9 section shall enter into a contract under this section within

10 ninety days after the date on which the contract is offered

11 by the Administrator to such party.

12 ‘‘(5) The annual payment by each participating party

13 shall be made in accordance with an appropriate schedule

14 of periodic payments established by the Administrator and

15 the Authority to coincide with the funding necessary to

16 carry out this section. Each participating party shall be

17 given the opportunity to fund its periodic payment liability

18 on a present value basis by entering into a structured set19 tlement arrangement. If a participating party funds its

20 periodic payment liability through a structured settlement

21 arrangement, the Authority shall be named as the owner

22 and payee of the funding instrument at the time of the

23 purchase of the instrument. Any such arrangement is sub24 ject to the approval of the Administrator and the Author25 ity, particularly as to the schedule of payments and the
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1 licensed insurance company utilized for these purposes. A

2 participating party may enter into a structured settlement

3 arrangement as a single entity, or may enter into such

4 an arrangement with other participating parties. Except

5 as provided in subsection (c)(5), if a structured settlement

6 arrangement is established pursuant to the provisions of

7 this section, the participating party to whom the settle8 ment relates shall be released from any and all further

9 liability with respect to the settlement.

10 ‘‘(6) No court shall have jurisdiction to review any

11 challenge to the removal or remedial action selected in any

12 contract or cooperative agreement under this section.

13 ‘‘(c) COST SHARING.—(1) Six months after the en14 actment of this section, the Administrator shall notify

15 each potentially responsible party and each other person

16 who has submitted notice to the Administrator under sub17 section (b)(4) of the Administrator’s intention to allocate

18 the total costs incurred by the Administrator for water

19 treatment under subsection (a). Within sixty days after

20 the Administrator notifies such potentially responsible

21 parties and other persons, any such parties and other per22 sons desiring to become participating parties shall so no23 tify the Administrator and agree to provide the Adminis24 trator with such information as the Administrator deems

25 necessary to allocate costs among participating parties
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1 under this subsection. If the Administrator deems the in2 formation provided by any such person to be insufficient

3 to permit the Administrator to make cost allocations

4 under this subsection, the Administrator designate such

5 person as ineligible to be a participating party. If the par6 ties and other persons notified by the Administrator agree

7 on an allocation of costs among themselves within one

8 hundred and eighty days after the expiration of such sixty9 day period, the Administrator shall allocate costs in ac10 cordance with such agreement. If such parties fail to reach

11 an agreement for cost allocation within such one hundred

12 and eighty-day period, within thirty days after the expira13 tion of such one hundred and eighty-day period the Ad14 ministrator shall allocate costs in accordance with para15 graphs (2) and (3).

16 ‘‘(2) In allocating costs to each participating party

17 as provided in paragraph (1), the Administrator shall

18 make two allocations. The first allocation shall allocate

19 only those costs associated with the specific zone of con20 tamination located in proximity to the participating party.

21 The allocation shall be made among all participating par22 ties located in proximity to such zone, pursuant to the for23 mula established by the Administrator under paragraph

24 (3). The second allocation shall allocate those costs not

25 associated with specific zones of contamination. The allo-
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1 cation shall be made among all participating parties, pur2 suant to the formula established by the Administrator

3 under paragraph (3).

4 ‘‘(3) When no agreement has been reached pursuant

5 to paragraph (1), the Administrator shall establish a for6 mula for allocating costs under this subsection. The for7 mula shall require that the share of the total costs to be

8 paid by a participating party shall be based upon the fol9 lowing factors:

10 ‘‘(A) The Standard Industrial Code Number (as

11 determined by the Secretary of Commerce) of the

12 participating party and the Administrator’s estimate

13 of the likelihood that industrial operations having

14 that SIC Number contributed to contamination of

15 the Basin.

16 ‘‘(B) The revenues attributable to the partici17 pating party’s facility in the San Gabriel Valley in

18 a baseline year established by the Administrator.

19 ‘‘(C) The ability of the participating party to

20 pay.

21 ‘‘(D) Prior expenditures made by the participat22 ing party for ground water mediation in the Basin

23 (not including any costs of litigation or other attor24 ney’s fees).
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1 ‘‘(4) In allocating costs under this subsection the Ad2 ministrator shall also allocate a share of the total costs

3 of carrying out the water treatment project under sub4 section (a) to potentially responsible parties who do not

5 agree to become participating parties under this section.

6 The Administrator shall recover costs from such

7 nonparticipating parties pursuant to other provisions of

8 this Act. The total of all shares contributed by participat9 ing parties under this subsection shall not be more than

10 80 percent of the total costs of carrying out the water

11 treatment project authorized under subsection (a), except

12 as provided in paragraph (5).

13 ‘‘(5) At the time the Administrator enters into a con14 tract or cooperative agreement with the Authority under

15 subsection (a), the Administrator shall estimate the total

16 costs expected to be incurred by the Administrator under

17 subsection (a). Each contract with a participating party

18 under this section shall provide that the maximum obliga19 tion of that participating party under such contract shall

20 not exceed 200 percent of that participating party’s share

21 of such estimated total costs.

22 ‘‘(6) Amounts received from participating parties

23 shall be paid to the Authority and deposited in an interest

24 bearing account which shall be available only for purposes
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1 of the water treatment project carried out under sub2 section (a).

3 ‘‘(d) LEVEL OF TREATMENT.—The water treatment

4 provided pursuant to contracts and cooperative agree5 ments under this section shall be adequate to insure that

6 the treated water will comply with the most stringent

7 standards applicable to drinking water under title XIV of

8 the Public Health Service Act (the Safe Drinking Water

9 Act) or under any provision of State law governing drink10 ing water quality.

11 ‘‘(e) RECOVERY OF FEDERAL SHARE OF COST.—

12 There are authorized to be appropriated to the Adminis13 trator such sums as may be necessary to cover 20 percent

14 of the total costs of carrying out the water treatment

15 project carried out under subsection (a). For purposes of

16 section 107, the Federal share of costs made available pur17 suant to this subsection shall be included as costs of reme18 dial action within the meaning of section 107(a)(4)(A)

19 which are recoverable by the United States Government

20 in an action under section 107 against potentially respon21 sible parties who are not participating parties. For pur22 poses of section 107 all actions taken by the Administrator

23 and the Authority in conformity with this section shall be

24 deemed to have been taken in conformity with the Na25 tional Contingency Plan.
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1 ‘‘(f) EXEMPTION FROM OTHER LIABILITY.—No par2 ticipating party making contributions pursuant to an

3 agreement under this section and complying with sub4 section (b)(2) shall be liable, under any other provision

5 of this Act or the Solid Waste Disposal Act or under any

6 State statutory laws or rules of common law, for the costs

7 of any removal or remediation with respect to hazardous

8 substances released into the San Gabriel Basin, or for

9 costs or damages to natural resources associated with such

10 Basin, to the extent such release occurred before the en11 actment of this section and is identified in a site assess12 ment, and no participating party shall be required to abate

13 any such prior release of any hazardous substances into

14 the Basin (except to the extent required by subsection

15 (b)(2)(B)). The exemption provided by the preceding sen16 tence for any participating party shall cease to apply to

17 such participating party upon a determination by the Ad18 ministrator that such participating party—

19 ‘‘(1) has failed or refused to make any portion of

20 the contribution required of such party pursuant to

21 an agreement under this section,

22 ‘‘(2) has failed or refused to carry out the ac23 tivities required under subsection (b)(2), or

24 ‘‘(3) has filed a suit against another person for

25 contribution of costs as described in subsection (f).
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1 ‘‘(g) CONTRIBUTION.—No participating party may

2 bring an action against any other person to require such

3 other person to contribute any part of the costs required

4 to be paid to the Administrator by such participating

5 party under this section.

6 ‘‘(h) RELATIONSHIP TO OTHER LAWS.—Except as

7 provided in subsection (f), nothing in this section shall be

8 construed to affect the liability of any person under any

9 other provision of this Act or under any other provision

10 of law with respect to hazardous substances, pollutants,

11 or contaminants in the San Gabriel Basin. Nothing in this

12 section shall be construed to affect the authority of the

13 Administrator to carry out removal or remedial action or

14 any other response action with respect to such hazardous

15 substances, pollutants, or contaminants in addition to the

16 demonstration project authorized by this section.

17 ‘‘(i) LIABILITY EXEMPTION FOR PUBLIC WATER

18 SYSTEMS.—Neither the owner or operator of a qualified

19 public water system shall be liable under any provision of

20 Federal statutory or common law affording rights of con21 tribution for costs or damages in any suit for recovery of

22 costs for a removal or remedial action with respect to haz23 ardous substances in the San Gabriel Basin if such a suit

24 is brought by a potentially responsible party that is not

25 a participating party under this section.
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1 ‘‘(j) COMPREHENSIVE ENVIRONMENTAL COMPLI2 ANCE PROGRAM.—

3 ‘‘(1) GENERAL REQUIREMENTS.—To quality as

4 a participating party under this section, a potentially

5 responsible party must establish a Comprehensive

6 Environmental Compliance Program and agree to

7 conduct an Environmental Site Assessment.

8 ‘‘(2) REGISTERED ENVIRONMENTAL ASSES9 SORS.—The Comprehensive Environmental Compli10 ance Program and Environmental Site Assessment

11 shall be prepared, signed, and dated by a registered

12 civil engineer or registered geologist in accordance

13 with State law, and the Program shall be certified

14 by a person who is capable of committing the finan15 cial resources necessary to implement the Program,

16 such as the owner, operator, or responsible corporate

17 officer, or in the case of a government agency, a

18 principal executive official or a ranking elected offi19 cial.

20 ‘‘(3) CONTENT OF ENVIRONMENTAL SITE AS21 SESSMENT.—The Environmental Site Assessment

22 required under this section shall contain—

23 ‘‘(A) an evaluation of practices and proce24 dures established by the current owner or oper-
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1 ator of the facility for which the assessment is

2 conducted to—

3 ‘‘(i) ensure continuing compliance

4 with applicable environmental require5 ments; and

6 ‘‘(ii) identify and implement hazard7 ous waste reduction opportunities for the

8 facility.

9 ‘‘(B) the results of Level I Preliminary As10 sessment (noninvasive investigation and regu11 latory search), and if site conditions warrant,

12 the Level II Assessment (invasive sampling for

13 suspected hazardous materials and preparation

14 of remedial design specifications) and the Level

15 III Assessment (on-site remediation); and

16 ‘‘(C) demonstration of compliance with all

17 applicable State and Federal laws, such as, but

18 not limited to the ‘Community Right-to-Know

19 Act’ and ‘California Hazardous Water Reduc20 tion Act and Management Review’ (SB 14);

21 ‘‘(4) COPIES.—Copies of each environmental

22 site assessment shall be provided to the Adminis23 trator and the appropriate State official.

24 ‘‘(k) DEFINITIONS.—As used in this section—
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1 ‘‘(1) QUALIFIED PUBLIC WATER SYSTEM.—The

2 term ‘qualified public water system’ means a ‘public

3 water system’, as defined in title XIV of the Public

4 Health Service Act (the Safe Drinking Water Act),

5 which is entitled, as of May 15, 1991, to withdraw

6 water from or store water in the San Gabriel Valley

7 Groundwater Basin, as determined under State law.

8 ‘‘(2) BASIN.—The terms ‘San Gabriel Basin’

9 and ‘‘the Basin’ means the San Gabriel Valley

10 Groundwater Basin underlying the San Gabriel Val11 ley in Los Angeles County, California.

12 ‘‘(3) POTENTIALLY RESPONSIBLE PARTY.—The

13 term ‘potentially responsible party’ means a person

14 who is identified by the Administrator as a person

15 who may be liable under section 107, or under any

16 provision of State law, for any amount with respect

17 to cleanup of hazardous substances in the San Ga18 briel Basin.

19 ‘‘(4) PARTICIPATING PARTY.—The term ‘par20 ticipating party’ means a person who has requested

21 to participate as provided in subsection (b)(4) and

22 who has entered into a contract with the Adminis23 trator under subsection (b).

24 ‘‘(5) STRUCTURED SETTLEMENT ARRANGE25 MENT.—The term ‘structured settlement arrange-
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1 ment means an arrangement where the Authority

2 owns—

3 ‘‘(A) a settlement annuity or similar in4 strument issued by a company licensed to do

5 business as an insurance company under the

6 laws of any State which has a financial stability

7 rating from a nationally recognized insurance

8 company rating organization which rating is

9 satisfactory to the Administrator, or

10 ‘‘(B) any obligation of the United States,

11 that has a defined schedule of periodic pay12 ments which coincides with the schedule of peri13 odic payments determined to be appropriate for

14 the Basin cleanup.’’.

Æ

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