[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 1352 Introduced in Senate (IS)]

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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``San Gabriel Basin Demonstration 
Project Act''.

SEC. 2. FINDINGS.

    The Congress finds the following:
            (1) The San Gabriel Basin presents a unique set of 
        environmental problems.
            (2) The San Gabriel Valley is an area of one hundred and 
        ninety five square miles located approximately ten to twenty 
        miles northeast of downtown Los Angeles in Los Angeles County. 
        It is the home of 1,000,000 to 1,500,000 people who rely on the 
        ground water of the San Gabriel Basin for their primary 
        drinking water.
            (3) The San Gabriel Basin is the most heavily contaminated 
        potable ground water basin in the United States.
            (4) The ground water in the San Gabriel Basin is heavily 
        contaminated with toxic volatile organic compounds (VOCs) 
        including trichloroethylene (TCE), perchloroethylene (PCE), and 
        carbon tetrachloride (CTC). The contamination levels vary 
        throughout the Valley.
            (5) Four separate areas of contamination in the San Gabriel 
        Basin are listed in the National Priority List (NPL) of 
        Superfund. The areas where the VOC contamination exceeds 
        drinking water standards covers approximately thirty to forty 
        square miles.
            (6) The VOCs in the San Gabriel Basin have been generated 
        by hundreds of commercial and industrial facilities scattered 
        throughout the San Gabriel Valley, over a period of more than 
        thirty years.
            (7) The San Gabriel Basin is also heavily contaminated with 
        nitrates as a result of hundreds of years of agriculture and 
        ranching in the Valley as well as from industrial and 
        residential septic systems.
            (8) Once contaminated, ground water is very difficult to 
        clean up.
            (9) A plume of polluted ground water will migrate and 
        spread contaminants wherever it flows. The many areas of ground 
        water contamination throughout the San Gabriel Basin move at 
        different rates and in different directions, depending on the 
        density of the contaminants, the character of the aquifer, and 
        the local flow patterns. In the San Gabriel Basin, flow 
        patterns may be changing directions due to fluctuating pumping 
        rates throughout the Basin and other factors.
            (10) Complicating the cleanup in the San Gabriel Basin is 
        the fact that forty-five different water purveyors take water 
        from the basin.
            (11) Because the ground water flows under hundreds of 
        different facilities, apportioning responsibility could be very 
        complicated and could ultimately be a very litigious process.
            (12) There are approximately two hundred and seventy five 
        public water supply wells in the San Gabriel Basin. Eighty 
        wells have contamination levels exceeding current Federal 
        drinking water standards. Some of these wells have been 
        abandoned and replaced with new wells in clean areas. In other 
        contaminated wells, pumping continues but the ground water is 
        blended with clean water so that distributed water meets the 
        drinking water standards.
            (13) The San Gabriel Basin presents a unique opportunity 
        for the community to solve a difficult problem, by working 
        together with the Federal Government in a public-private 
        partnership.

SEC. 3. SAN GABRIEL BASIN DEMONSTRATION PROJECT.

    Title I of the Comprehensive Environmental Response, Compensation, 
and Liability Act of 1980 (Superfund) is amended by adding at the end 
the following new section:

``SEC. 127. SAN GABRIEL BASIN DEMONSTRATION PROJECT.

    ``(a) Treatment of Water.--(1) As promptly as practicable after the 
date of enactment of this section but not later than six months after 
such date, the Administrator shall enter into one or more cooperative 
agreements or contracts with the San Gabriel Basin Water Quality 
Authority, or a successor public agency, (hereinafter in this Act 
referred to as the `Authority') to provide water treatment to remove 
volatile organic compounds from the ground water in the San Gabriel 
Basin. In the case of the projects described in paragraph (3)(B), the 
contracts or cooperative agreements shall also include the Water 
Replenishment District of Southern California and the Central Basin 
Municipal Water District. Implementation of such contracts or 
cooperative agreements shall be contingent upon a determination by the 
Administrator that the preconditions of subsection (b) have been met.
    ``(2) The Authority may contract with other public agencies to 
provide water treatment services or facilities or related services and 
facilities, subject to approval by the Administrator and pursuant to 
the decision rendered in Los Angeles Superior Court Case Number 924128, 
Upper San Gabriel Valley Municipal Water District v. City of Alhambra, 
et al.
    ``(3) Contracts or cooperative agreements under this subsection 
shall be consistent, insofar as possible, with the April 17, 1990 draft 
Basin-Wide Technical Plan prepared by the Administrator, and shall 
include but not be limited to the following elements:
            ``(A) Baldwin park.--Proposed capital expenditures in the 
        vicinity of Baldwin Park over the next ten years, including 
        $4,500,000 for monitoring wells, $14,500,000 for up to seven 
        wellhead treatment plants, and $136,000,000 for a conjunctive-
        use plant designed to clean up the Basin and at the same time 
        allow utilization of the basin as a storage facility which will 
        increase reliability of water supplies in Southern California. 
        Such expenditures shall include a water supply component 
        jointly funded by the Metropolitan Water District of Southern 
        California and the Bureau of Reclamation (as authorized by 
        Public Law 102-579), and a VOC clean-up component funded by the 
        Project. Proposed operating costs for these projects will 
        increase gradually to about $32,000,000 per year at the end of 
        the ten year period.
            ``(B) Whittier narrows.--Proposed capital expenditures, 
        including $1,000,000 for engineering assessment, $3,000,000 for 
        monitoring wells, $11,500,000 for wellhead projects, and 
        $20,000,000 for regional treatment plants to prevent 
        contaminated ground water from moving from the San Gabriel 
        Basin toward the Central Basin through the Whittier Narrows and 
        proposed operating costs for such projects which at the end of 
        the ten year period equal approximately $3,000,000 per year.
            ``(C) Puente basin area.--Proposed capital expenditures 
        which include $2,000,000 for engineering assessments, 
        $3,000,000 for monitoring wells, and $10,000,000 for regional 
        plants in the Puente Valley area to extract and treat highly 
        contaminated groundwater to meet water supply needs and 
        proposed operating costs for such projects which, at the end of 
        the ten year period will equal approximately $2,000,000 per 
        year.
            ``(D) Arcadia, el monte, monrovia, glendora.--Proposed 
        capital expenditures in these areas, including $3,000,000 for 
        monitoring wells and $7,500,000 for up to five wellhead 
        treatment plants and proposed operating costs for such projects 
        which will equal about $2,000,000 per year at the end of the 
        ten year period.
Federal funds made available under provisions of law other than this 
section or other provisions of this Act for any expenditure referred to 
in subparagraphs (A), (B), (C), or (D) shall not be treated as costs of 
remedial action recoverable under section 107(a)(4)(A) of this Act.
    ``(4) Contracts or cooperative agreements under this subsection 
shall provide for consultation with--
            ``(A) the Upper San Gabriel Valley Municipal Water 
        District,
            ``(B) the Main San Gabriel Basin Watermaster,
            ``(C) the San Gabriel Valley Municipal Water District.
            ``(D) the Three Valleys Municipal Water District,
            ``(E) the Central Basin Municipal Water District,
            ``(F) the Water Replenishment District of Southern 
        California,
            ``(G) the San Gabriel Valley Protective Association,
            ``(H) the San Gabriel River Watermaster,
            ``(I) the Metropolitan Water District of Southern 
        California,
            ``(J) the California State Water Resources Control Board, 
        and
            ``(K) the California Regional Water Quality Control Board, 
        Los Angels Region.
    ``(5) If the Basin-Wide Technical Plan is published in final form 
after the date on which any contract or cooperative agreement under 
this subsection is entered into, the contract or cooperative agreement 
shall be modified by the parties to the extent necessary to be 
consistent with the plan. Pursuant to such contract or cooperative 
agreement, the Authority shall provide treatment for water withdrawn 
from the Basin by qualified public water systems unless otherwise 
provided by the Metropolitan Water District of Southern California.
    ``(6) No contract or cooperative agreement entered into under this 
subsection shall take effect unless the Administrator determines that 
all preconditions for implementing the treatment project under this 
subsection have been met, as provided in subsection (b), before the 
date thirty months after the enactment of this section.
    ``(7) In providing water treatment under this subsection and 
apportioning costs under this section, the Administrator and the 
Authority shall give credit for costs incurred in the design, 
construction, and operation of any previously approved project 
undertaken with respect to the Basin and shall take appropriate steps 
to ensure continuity.
    ``(b) Preconditions for Implementation of Treatment Project.--(1) 
No water treatment shall be provided pursuant to any contract or 
cooperative agreement under subsection (a) until the Administrators, in 
consultation with the Authority, finds that--
            ``(A) a sufficient number (at least 65 percent) of the 
        persons notified by the Administrator under this Act prior to 
        the date six months after the enactment of this section that 
        they may be potentially responsible parties have entered into 
        long-term cost-sharing contracts with the Administrator under 
        this subsection; and
            ``(B) those contracts are sufficient to provide annual 
        payment for at least 50 percent of the total costs incurred by 
        the Administrator after the date of the enactment of this 
        section in carrying out water treatment under subsection (a).
    ``(2) The contracts with participating parties under this 
subsection shall also require that each participating party entering 
into such a contract will--
            ``(A) conduct an eviornmental site assessment in accordance 
        with subsection (i) of the property owned or operated by that 
        party by reason of which such party has been designated as a 
        potentially responsible party, and
            ``(B) carry out all removal and remedial action required 
        with respect to hazardous substances in the soil above the 
        water table on such property, to the extent necessary to comply 
        with the standards under section 121.
    ``(3) Any person, including potentially responsible parties 
identified by the Administrator after the date six months after the 
enactment of this section, as well as all local government entities 
within the San Gabriel Basin, who submits a request to the 
Administrator to participate in the project under this section shall be 
offered the opportunity to enter into cost sharing contracts under this 
section and those who enter into such contracts shall be treated as a 
participating party for purposes of this section.
    ``(4) Each person desiring to participate under this section shall 
enter into a contract under this section within ninety days after the 
date on which the contract is offered by the Administrator to such 
party.
    ``(5) The annual payment by each participating party shall be made 
in accordance with an appropriate schedule of periodic payments 
established by the Administrator and the Authority to coincide with the 
funding necessary to carry out this section. Each participating party 
shall be given the opportunity to fund its periodic payment liability 
on a present value basis by entering into a structured settlement 
arrangement. If a participating party funds its periodic payment 
liability through a structured settlement arrangement, the Authority 
shall be named as the owner and payee of the funding instrument at the 
time of the purchase of the instrument. Any such arrangement is subject 
to the approval of the Administrator and the Authority, particularly as 
to the schedule of payments and the licensed insurance company utilized 
for these purposes. A participating party may enter into a structured 
settlement arrangement as a single entity, or may enter into such an 
arrangement with other participating parties. Except as provided in 
subsection (c)(5), if a structured settlement arrangement is 
established pursuant to the provisions of this section, the 
participating party to whom the settlement relates shall be released 
from any and all further liability with respect to the settlement.
    ``(6) No court shall have jurisdiction to review any challenge to 
the removal or remedial action selected in any contract or cooperative 
agreement under this section.
    ``(c) Cost Sharing.--(1) Six months after the enactment of this 
section, the Administrator shall notify each potentially responsible 
party and each other person who has submitted notice to the 
Administrator under subsection (b)(4) of the Administrator's intention 
to allocate the total costs incurred by the Administrator for water 
treatment under subsection (a). Within sixty days after the 
Administrator notifies such potentially responsible parties and other 
persons, any such parties and other persons desiring to become 
participating parties shall so notify the Administrator and agree to 
provide the Administrator with such information as the Administrator 
deems necessary to allocate costs among participating parties under 
this subsection. If the Administrator deems the information provided by 
any such person to be insufficient to permit the Administrator to make 
cost allocations under this subsection, the Administrator designate 
such person as ineligible to be a participating party. If the parties 
and other persons notified by the Administrator agree on an allocation 
of costs among themselves within one hundred and eighty days after the 
expiration of such sixty-day period, the Administrator shall allocate 
costs in accordance with such agreement. If such parties fail to reach 
an agreement for cost allocation within such one hundred and eighty-day 
period, within thirty days after the expiration of such one hundred and 
eighty-day period the Administrator shall allocate costs in accordance 
with paragraphs (2) and (3).
    ``(2) In allocating costs to each participating party as provided 
in paragraph (1), the Administrator shall make two allocations. The 
first allocation shall allocate only those costs associated with the 
specific zone of contamination located in proximity to the 
participating party. The allocation shall be made among all 
participating parties located in proximity to such zone, pursuant to 
the formula established by the Administrator under paragraph (3). The 
second allocation shall allocate those costs not associated with 
specific zones of contamination. The allocation shall be made among all 
participating parties, pursuant to the formula established by the 
Administrator under paragraph (3).
    ``(3) When no agreement has been reached pursuant to paragraph (1), 
the Administrator shall establish a formula for allocating costs under 
this subsection. The formula shall require that the share of the total 
costs to be paid by a participating party shall be based upon the 
following factors:
            ``(A) The Standard Industrial Code Number (as determined by 
        the Secretary of Commerce) of the participating party and the 
        Administrator's estimate of the likelihood that industrial 
        operations having that SIC Number contributed to contamination 
        of the Basin.
            ``(B) The revenues attributable to the participating 
        party's facility in the San Gabriel Valley in a baseline year 
        established by the Administrator.
            ``(C) The ability of the participating party to pay.
            ``(D) Prior expenditures made by the participating party 
        for ground water mediation in the Basin (not including any 
        costs of litigation or other attorney's fees).
    ``(4) In allocating costs under this subsection the Administrator 
shall also allocate a share of the total costs of carrying out the 
water treatment project under subsection (a) to potentially responsible 
parties who do not agree to become participating parties under this 
section. The Administrator shall recover costs from such 
nonparticipating parties pursuant to other provisions of this Act. The 
total of all shares contributed by participating parties under this 
subsection shall not be more than 80 percent of the total costs of 
carrying out the water treatment project authorized under subsection 
(a), except as provided in paragraph (5).
    ``(5) At the time the Administrator enters into a contract or 
cooperative agreement with the Authority under subsection (a), the 
Administrator shall estimate the total costs expected to be incurred by 
the Administrator under subsection (a). Each contract with a 
participating party under this section shall provide that the maximum 
obligation of that participating party under such contract shall not 
exceed 200 percent of that participating party's share of such 
estimated total costs.
    ``(6) Amounts received from participating parties shall be paid to 
the Authority and deposited in an interest bearing account which shall 
be available only for purposes of the water treatment project carried 
out under subsection (a).
    ``(d) Level of Treatment.--The water treatment provided pursuant to 
contracts and cooperative agreements under this section shall be 
adequate to insure that the treated water will comply with the most 
stringent standards applicable to drinking water under title XIV of the 
Public Health Service Act (the Safe Drinking Water Act) or under any 
provision of State law governing drinking water quality.
    ``(e) Recovery of Federal Share of Cost.--There are authorized to 
be appropriated to the Administrator such sums as may be necessary to 
cover 20 percent of the total costs of carrying out the water treatment 
project carried out under subsection (a). For purposes of section 107, 
the Federal share of costs made available pursuant to this subsection 
shall be included as costs of remedial action within the meaning of 
section 107(a)(4)(A) which are recoverable by the United States 
Government in an action under section 107 against potentially 
responsible parties who are not participating parties. For purposes of 
section 107 all actions taken by the Administrator and the Authority in 
conformity with this section shall be deemed to have been taken in 
conformity with the National Contingency Plan.
    ``(f) Exemption From Other Liability.--No participating party 
making contributions pursuant to an agreement under this section and 
complying with subsection (b)(2) shall be liable, under any other 
provision of this Act or the Solid Waste Disposal Act or under any 
State statutory laws or rules of common law, for the costs of any 
removal or remediation with respect to hazardous substances released 
into the San Gabriel Basin, or for costs or damages to natural 
resources associated with such Basin, to the extent such release 
occurred before the enactment of this section and is identified in a 
site assessment, and no participating party shall be required to abate 
any such prior release of any hazardous substances into the Basin 
(except to the extent required by subsection (b)(2)(B)). The exemption 
provided by the preceding sentence for any participating party shall 
cease to apply to such participating party upon a determination by the 
Administrator that such participating party--
          ``(1) has failed or refused to make any portion of the 
        contribution required of such party pursuant to an agreement 
        under this section,
            ``(2) has failed or refused to carry out the activities 
        required under subsection (b)(2), or
            ``(3) has filed a suit against another person for 
        contribution of costs as described in subsection (f).
    ``(g) Contribution.--No participating party may bring an action 
against any other person to require such other person to contribute any 
part of the costs required to be paid to the Administrator by such 
participating party under this section.
    ``(h) Relationship to Other Laws.--Except as provided in subsection 
(f), nothing in this section shall be construed to affect the liability 
of any person under any other provision of this Act or under any other 
provision of law with respect to hazardous substances, pollutants, or 
contaminants in the San Gabriel Basin. Nothing in this section shall be 
construed to affect the authority of the Administrator to carry out 
removal or remedial action or any other response action with respect to 
such hazardous substances, pollutants, or contaminants in addition to 
the demonstration project authorized by this section.
    ``(i) Liability Exemption for Public Water Systems.--Neither the 
owner or operator of a qualified public water system shall be liable 
under any provision of Federal statutory or common law affording rights 
of contribution for costs or damages in any suit for recovery of costs 
for a removal or remedial action with respect to hazardous substances 
in the San Gabriel Basin if such a suit is brought by a potentially 
responsible party that is not a participating party under this section.
    ``(j) Comprehensive Environmental Compliance Program.--
            ``(1) General requirements.--To quality as a participating 
        party under this section, a potentially responsible party must 
        establish a Comprehensive Environmental Compliance Program and 
        agree to conduct an Environmental Site Assessment.
            ``(2) Registered environmental assessors.--The 
        Comprehensive Environmental Compliance Program and 
        Environmental Site Assessment shall be prepared, signed, and 
        dated by a registered civil engineer or registered geologist in 
        accordance with State law, and the Program shall be certified 
        by a person who is capable of committing the financial 
        resources necessary to implement the Program, such as the 
        owner, operator, or responsible corporate officer, or in the 
        case of a government agency, a principal executive official or 
        a ranking elected official.
            ``(3) Content of environmental site assessment.--The 
        Environmental Site Assessment required under this section shall 
        contain--
                    ``(A) an evaluation of practices and procedures 
                established by the current owner or operator of the 
                facility for which the assessment is conducted to--
                            ``(i) ensure continuing compliance with 
                        applicable environmental requirements; and
                            ``(ii) identify and implement hazardous 
                        waste reduction opportunities for the facility.
                    ``(B) the results of Level I Preliminary Assessment 
                (noninvasive investigation and regulatory search), and 
                if site conditions warrant, the Level II Assessment 
                (invasive sampling for suspected hazardous materials 
                and preparation of remedial design specifications) and 
                the Level III Assessment (on-site remediation); and
                    ``(C) demonstration of compliance with all 
                applicable State and Federal laws, such as, but not 
                limited to the `Community Right-to-Know Act' and 
                `California Hazardous Water Reduction Act and 
                Management Review' (SB 14);
            ``(4) Copies.--Copies of each environmental site assessment 
        shall be provided to the Administrator and the appropriate 
        State official.
    ``(k) Definitions.--As used in this section--
            ``(1) Qualified public water system.--The term `qualified 
        public water system' means a `public water system', as defined 
        in title XIV of the Public Health Service Act (the Safe 
        Drinking Water Act), which is entitled, as of May 15, 1991, to 
        withdraw water from or store water in the San Gabriel Valley 
        Groundwater Basin, as determined under State law.
            ``(2) Basin.--The terms `San Gabriel Basin' and ``the 
        Basin' means the San Gabriel Valley Groundwater Basin 
        underlying the San Gabriel Valley in Los Angeles County, 
        California.
            ``(3) Potentially responsible party.--The term `potentially 
        responsible party' means a person who is identified by the 
        Administrator as a person who may be liable under section 107, 
        or under any provision of State law, for any amount with 
        respect to cleanup of hazardous substances in the San Gabriel 
        Basin.
            ``(4) Participating party.--The term `participating party' 
        means a person who has requested to participate as provided in 
        subsection (b)(4) and who has entered into a contract with the 
        Administrator under subsection (b).
            ``(5) Structured settlement arrangement.--The term 
        `structured settlement arrangement means an arrangement where 
        the Authority owns--
                    ``(A) a settlement annuity or similar instrument 
                issued by a company licensed to do business as an 
                insurance company under the laws of any State which has 
                a financial stability rating from a nationally 
                recognized insurance company rating organization which 
                rating is satisfactory to the Administrator, or
                    ``(B) any obligation of the United States, that has 
                a defined schedule of periodic payments which coincides 
                with the schedule of periodic payments determined to be 
                appropriate for the Basin cleanup.''.

                                 <all>

S 1352 IS----2