January 30, 2002
Catherine
M. Rojko, Trial Attorney
Environ.
and Natural Res. Division
United
States Department of Justice
P.O.
Box 7611
Washington,
D.C. 20044
Re: Aerojet/Modifications
to Partial Consent Decree
DOJ Ref. No. 90-7-1-74
Dear
Ms. Rojko:
The County
of Sacramento Department of Water Resources (“CSDWR”), submits its comments
to the Department of Justice pertaining to the proposed modification to the Partial
Consent Decree (PCD) in the matter of United States v. Aerojet General
Corporation, et al., CIVS 86-0063 EJG and CIVS 86-0064 EFG. These comments are intended to supplement
the comments CSDWR submitted during the public comment period. While we understand that the public comment
period may be closed, these comments are submitted in response to the staff
report of the Central Valley Regional
Water Quality Control Board (“RWQCB”).
The comments and conclusions on the staff report varied significantly
from the Request for Public Comments.
CSDWR urges the agencies to consider the comments and reexamine the
issues involved in this very important matter.
The CSDWR believes the modified PCD, as proposed, fails to provide any
assurance of an adequate supply of potable water to serve existing development
as well as the carve-out lands. The modified PCD also fails to assess the
impact of carve-out land use on area water supply and has not been approved in
compliance with CEQA. As a result, the PCD modification, as
proposed, is inappropriate, improper and inadequate. The Department is requested to withdraw or withhold its consent
to the proposed modified PCD until it provides assurances of an adequate supply
of potable water to serve existing requirements, assesses the impact of the
carve-out land use on area water supply and complies with CEQA.
The
CSDWR is charged with the responsibility of obtaining and providing potable
water to the residents and businesses located in its Zone 40 Service Area. The Zone 40
Service Area includes much of the southeastern portion of Sacramento County
east of Highway 99 and South of Highway 50.
The area includes the Sunrise Corridor Service Area, the Mather Main
Base and Mather Housing areas, and the Sunrise-Douglas area, currently slated
for development. There are
currently over 24,000 active water services in Zone 40.
Groundwater contamination resulting
from perchlorate and NDMA plumes emanating from the Aerojet
Superfund site, including the Western
Groundwater Operable Unit, and the Inactive
Rancho Cordova Test Sites (IRCTS) formerly owned by Aerojet and now owned
by Boeing (collectively referred to as the “Aerojet/IRCTS site”) has resulted
in the loss of thirteen public drinking water wells in Sacramento County. Of the ten water supply wells originally
operated by the County in the Sunrise/Mather area, only the four Mather housing
water supply wells remain as viable sources of water supply for this entire
area. The County’s two water supply wells in the Sunrise Corridor Service Area
and three of the four wells at Mather Main Base have been shut down due to
perchlorate contamination. The remaining Mather Main Base well is used only for
fire protection.
In
their opposition to Aerojet’s Motion, the United States and the State of
California initially objected vigorously to Aerojet’s motion to modify the PCD
to allow it to carve out approximately 3000 acres of property from the
Superfund site (“Aerojet’s Motion” or “Carve-Out Motion”). In opposition to Aerojet’s motion, the
United States and the State of California made the following representations
and arguments to the Court:
- Given the number of drinking water wells
close to the migrating contaminant plume, some wells will likely become contaminated
before the lengthy remedial action is complete. The options for providing alternate water supplies in the area
are few and the Record of Decision should provide a contingency for an
alternative water supply to quickly replace affected drinking water
wells. (Opposition of the United States
and the State of California to the Motion of Aerojet-General Corporation and
Cordova Chemical Company to Modify the Consent Decree as to Carve-Out Lands
(“United States Opposition”), p.17, lines 1-6.)
- In the event certain further wells are shut
down, there will not be adequate water supplies for that area. The measures
taken by Aerojet to supply contingency or alternative water supplies have been
short sighted and fall woefully short of coming to grips with the urgency that
its contamination has wrought. (United States Opposition, p. 17, lines 9-21
citing Declaration of Darrell Eck, SCWRD Senior Engineer filed in support of
the United States Opposition).
- Aerojet has failed to provide for appropriate
alternative remedies to deal with contamination of water supplies and cited
Aerojet’s reliance on the potential for use of treated water from the
contaminated plume when the Department of Health Services has already stated
that this would not be permitted.
(United States Opposition, p. 18, lines 4-7.)
- Before they could agree to a negotiated
carve-out, there must be assurances that both future property owners and
tenants of the carve-out lands and the public are adequately protected. To do so, the government must ensure that
water supply issues are addressed, Aerojet will be able to pay for the cleanup
of the entire site and adequate deed restrictions must be in place. (United States Opposition, p.15, line 23-p.
16, line 3.)
- “[B]ecause the limited amount of available
water in the area, the major development Aerojet has planned for the carve-out
lands, which will draw on that limited water, could interfere with Aerojet’s
ability to quickly provide alternate water for public use when its plume contaminates
wells used for existing development…It would therefore be irresponsible for the
governments to negotiate a carve-out without further assurances in these
important areas of public interest.”
(United States Opposition, p. 22, lines 6-13.)
Aerojet’s
motion was denied and further negotiations produced the current version of the
modified PCD. On September 27, 2001,
the United States, the State of California and Aerojet lodged a proposed
modified PCD with the Court. CSDWR
submits that the proposed modified PCD does not address the concerns previously
raised by the agencies as it does not provide for a replacement water supply
for the groundwater supply capacity already lost and fails to ensure that
future losses will be promptly rectified.
In their
solicitation for public comments on the proposed modified PCD, the regulating
agencies, noted “New development in the carve-out lands would require a source
of drinking water. Aerojet could
furnish the carve-out lands with surplus water from its plant operations. But if development requires more water than
Aerojet has available, Aerojet would have to find new sources.”
At the
November 8, 2001 public hearing held by the Regional Board, each of the water
purveyors in the affected area, CSDWR, American
States Water Company (“ASWC”), the parent company of Arden Cordova Water
Company, and Citizens Utilities Company, opposed the proposed PCD modification
on the basis, in part, that Aerojet had not yet provided a replacement supply
for the groundwater supply capacity already lost and the inadequacy of the
proposed modification to ensure that future losses will be promptly rectified.
CSDWR also objected on the basis that development of the carve-out lands would
negatively impact the available water supply and the lack of an environmental
review under NEPA and CEQA.
The
Regional Board staff report recommended approval of the modified PCD and
carve-out plan and concluded that the proposed modification assures the
availability of replacement water supplies for threatened public water supply
wells. The Regional Board subsequently
approved the modification to the PCD.
There is no evidence that replacement
water is available or adequate to serve existing development as well as the carve-out lands. Nor is there any evidence that the
regulating agencies assessed the impact of carve-out land use on area water
supply. The evidence is clear, based,
in part, on the regulating agencies’ own admissions in Federal Court and their
request for public comments, that the carve-out lands will be developed and its
land use will be modified.
The regulatory agencies represented to
the court that they were opposed to any PCD without an enforceable guarantee
that Aerojet would provide replacement water to any water purveyor that lost
water supply wells. Similarly, they
required that any subsequent use of the carve-out lands would require a water
supply. The evidence includes:
a.
Opposition of the
United States and the State of California to the Motion of Aerojet-General
Corporation and Cordova Chemical Company to Modify the Consent Decree as to
Carve-Lands, filed October 23, 2000 in the federal lawsuit (“United States
Opposition”).
b.
Declaration of Alex
MacDonald, Senior Engineer, Central Valley Regional Water Quality Control
Board, in support of the United States Opposition.
c.
Declaration (with
attachments) of Charles S. Berrey, U.S. Environmental Protection Agency
Remedial Project Manager for the Aerojet Superfund Site, in support of the United
States Opposition.
d.
Letter dated April 21,
2000, from Gary Carlton, Executive Officer, Central Valley Valley Regional
Water Quality Control Board, to Chris Conley, Vice-President of Aerojet-General
Corporation.
Each of
these documents details the lack of requirements under the existing PCD for
Aerojet to provide any replacement water and the need for a guarantee of
replacement water to protect the public interest before a carve-out could
occur. Despite these prior concerns raised by the agencies to the court and in
their official capacities, there is nothing in the existing proposal to modify
the PCD that ameliorates the concerns as previously asserted by the regulating
agencies.
There is no Evidence of an Immediately Available
Replacement Water Supply
There is no evidence to support a conclusion that the
proposed modification to the PCD would assure the availability of replacement
water supplies for threatened public water supply wells. The affected local
water purveyors presented substantial evidence to the contrary.
1.
The required
Alternative Water Supply Reports do not result in the replacement water being
made available to the local water purveyors.
The existing PCD provides
that Aerojet must provide Preliminary and Final Water Supply Alternatives
Reports when specified concentrations of chemicals are exceeded in a listed
well. However, the reports do nothing
to physically provide alternative water supplies. Aerojet has already demonstrated that while it may comply with
the letter of the law by submitting the required reports, the reports have
wholly lacked in substance. The
alternatives suggested by Aerojet to date have been either unacceptable to the
local water purveyors and regulatory agencies or are unproven, unreliable,
and/or subject to substantial legal and political hurdles.
2.
The Modified PCD does
not address the water supplies already lost or the time and effort necessary to
develop the replacement water supply.
Even if a water supply alternative
is deemed acceptable and plausible, there is substantial lead-time and effort
before the actual provision of replacement water can occur. After the preparation, submission and
approval of the Water Supply Alternatives Reports, the replacement source must
be procured and construction of the infrastructure to deliver the alternative
water supply must be completed. The
current PCD does not impose any deadlines in which Aerojet must provide
replacement water. The modifications
to the PCD impose a requirement for Aerojet to immediately (within 24 hours)
provide interim alternate water to the affected water purveyors. However, no
facilities, permits or agreements are currently in place to replace a well
threatened by the NDMA and/or perchlorate contamination nor are there any
existing systems for distribution of water from new sources. The Regional Board
staff acknowledged that for delivery of an immediate interim alternate water
supply, the facilities and any necessary permits/agreements need to be in-place
prior to the well being shut down. The PCD, as it currently exists and even
with the proposed modification, is written in terms of prospective lost water
supplies. The CSDWR and the other local
water purveyors have already lost water supplies and water supply
capacity. Modifications to the PCD are
needed to address the current situation and require that replacement water
supply and capacity be procured now.
3.
The PCD must require
Aerojet to replace Lost Capacity as well as Lost Water
Supply.
Aerojet’s efforts to
mitigate the closure of the water purveyors’ wells have not been
satisfactory. These efforts have done
nothing to replace lost water supply capacity, but have only utilized existing
capacity. As a result, the loss of the
water supply wells has resulted not only in lost production, but also loss of
the ability of the local water purveyors to utilize capacity of wells for
existing and future needs. Utilization
of other wells to replace the lost wells simply diminishes the existing system
capacity and further diminishes the system flexibility to deal with increased
demand or future well closure. The
capacity of the wells lost to the perchlorate contamination must be replaced by
an equal amount of water supply capacity.
The Alternate Water Supply Contingency Plan is
Inadequate.
Aerojet’s
Contingency Plan consists of two components.
The first component is a 3-year contract between Aerojet and the City of
Folsom to provide Aerojet with up to 3000 gallons per minute of water. The second component is a new water supply
well to be paid for by Aerojet and given to ASWC known as the Rossmoor Bar Park
well. As ASWC indicated in its comments
to the Regional Board, delivery of 3000 gallons per minute is over-optimistic
and water requested by ASWC under that contract was not successfully
delivered. Moreover, none of the water
purveyors are parties to that contract; rather it is between Aerojet and the
City of Folsom. CSDWR, Citizens
Utilities and ACWSC cannot rely on a source of water when they are not parties
to the contract. That contract is also
limited to the extent that the water “is available” and thus is not a
completely firm or reliable supply. In
short, the contract does nothing to provide water to the CSDWR. The second component, the Rossmoor Bar Park
well, is a replacement well and does not provide a new source of drinking
water. Moreover, there is no guarantee
that the CSDWR will be provided any water from that well.
The
Modified PCD does not assess the impact of carve-out land use on area water
supply.
In their request for public comments,
the regulating agencies focused substantial attention on the potential for
Aerojet’s development of the 3000 acres of property sought to be carved-out
from the Superfund site. The proposed
modification to the PCD imposed conditions on the transfer of the
property. The regulating agencies also
noted that “New development in the carve-out lands would require a source of
drinking water. Aerojet could furnish
the carve-out lands with surplus water from its plant operations. But if development requires more water than
Aerojet has available, Aerojet would have to find new sources.” These comments were consistent with the
arguments raised by the EPA and the State of California in their opposition to
Aerojet’s Motion for Carve-Out. In
their opposition to the Aerojet motion, they argued, “[B]ecause the limited
amount of available water in the area, the major development Aerojet has
planned for the carve-out lands, which will draw on that limited water, could
interfere with Aerojet’s ability to quickly provide alternate water for public
use when its plume contaminates wells used for existing development…It would
therefore be irresponsible for the governments to negotiate a carve-out without
further assurances in these important areas of public interest.” (United States Opposition, p. 22, lines
6-13.)
Despite those assertions to
the Court in opposition to Aerojet’s Carve-Out Motion, the proposed
modification to the PCD fails to provide any protection for this important
issue. In its comments, CSDWR noted
that “Aerojet’s sale of land and retention of an interest in the cleanup effort
will place the burden of identifying a source of water supply to support
development of the Carve-Out on the local water purveyors. It is particularly troublesome to SCDWR to
have to assume such a burden when the contamination created by Aerojet has
already made it difficult for the CSDWR to meet its current water supply
obligations much less those for an entire new development.” The CSDWR recommended that the covenants and
environmental restrictions sought to be imposed by the regulating agencies
contain a requirement that Aerojet provide a viable source of water supply to
support development on these properties prior to sale. The two other local
water purveyors impacted by the Aerojet contamination, ACWSC and Citizens
Utilities, expressed similar concerns about the adequacy of the water supply
for the carve-out lands and how its development may negatively impact the
existing water supply in the area.
Regional Board Staff
responses to comments indicated that because the proposed modification to the
PCD and the Record of Decision do not provide water for development on the
carve-out lands, the Regional Board was not concerned with that issue. Staff
indicated that how and when the carve-out property is developed was to be left
to the development approval process.
CSDWR submits that such a position is completely contrary to the
evidence presented by the affected local water purveyors and directly contradicts the concerns raised by
the agencies in their request for comments and their representations to the
Court when opposing Aerojet’s Carve-Out Motion.
The regulating agencies
need to acknowledge that the lack of assurances of adequate water supply for
development of the carve-out lands will create still further demand on the
water basin at a time Aerojet has not even developed an adequate alternate
water supply to replace existing sources impacted by the contamination. The impact will not be limited to just the
carve-out lands, but rather all lands within the entire groundwater basin. As a result, the Modified PCD may impose serious
consequences on the region for decades to come. The carve-out, without restrictions on how and where water
supplies may come from, sets the stage for a free-for-all among competing water
interests. This will compromise
Aerojet’s ability to provide adequate and acceptable alternative and
contingency water supplies throughout the affected area, not just the carve-out
lands. That responsibility should not
and cannot be foisted on the local agencies alone.
The regulating agencies must comply with CEQA.
In response to the regulating agencies’
request for comments, the SCDWR expressed its concern whether the regulating
agencies had made a determination whether the carve-out was exempt from
environmental documentation or evaluation required under the California Environmental Quality Act (“CEQA”)
or the National Environmental
Policy Act (“NEPA”). The SCDWR
expressed its concern that neither Aerojet nor the regulating agencies had
conducted a cumulative analysis of the impact of the carve-out may have on the
environment. To the knowledge of the
SCDWR, neither Aerojet nor the regulating agencies filed a Notice of
Exemption under CEQA.
Conclusion.
Based on the foregoing, CSDWR urges the regulating
agencies to further modify the Partial Consent Decree to impose in the
covenants and environmental restrictions a requirement that Aerojet provide a
viable source of water supply to support development on the carve-out property
or any portion thereof prior to sale.
Moreover, the regulating agencies are requested to convene a meeting
with Aerojet and the local water purveyors in an effort to develop viable
enforceable written interim short-term and long-term water supply plans to be
submitted as part of the modified Partial Consent Decree.
We look forward to working with the
regulating entities to resolve this very important issue.
Very
truly yours,
William
E. Hvidsten
WEH:mm
cc:
The Honorable Gray Davis
Winston H. Hickox
John F. Whisenhunt, Esq.
John Coppola
Forrest Williams
Darrell Eck
Alex MacDonald
Charles Berrey
Ed Cargile
Reed Sato, Esq.
William K. Koska, Esq.
Nancy J. Casale, Esq.
Nora Kostelnik
