David P. Kimball Attorney Direct: (602) 530-8221 GallagheraKennedy Email: dpk@gknet.com March 14, 2019 VIA U.S. MAIL AND EMAIL Mr. Misael Cabrera Mark Brnovich, Esq. Director Attorney General Arizona Department of Environmental Quality Office ofArizona?s Attorney General 1 1 10 W. Washington Street 1275 W. Washington St. Phoenix, AZ 85007 Phoenix, AZ 85007 Re: RID Remediation Project Director Cabrera and Attorney General Brnovich: On behalf of the Roosevelt Irrigation District (RID), we wanted to followup on our March 22 and June 1 l, 2018 meetings and subsequent letters and conversations now that the United States Environmental Protection Agency (EPA) has responded to written appeal seeking EPA support of voluntary groundwater remedial actions at the West Van Buren Area (WVBA) Water Quality Assurance Revolving Fund (WQARF) Registry Site. RID appealed to EPA for support on July 19. 2018 following the request made of EPA by the Arizona Department of Environmental Quality (ADEQ) on April 24, 2018 to expedite remedial action at the WVBA WQARF Site by considering extending the westward boundary of the Motorola 52nd Street federal Superfund Site (federal M52 Site) to include portions of the WVBA impacted by groundwater contamination originating from the federal M52 Site. As ADEQ convincingly noted, EPA has been aware for over two decades that the groundwater contamination migrating from the federal M52 Site has adversely impacted the WVBA Site. This problem is so obvious that even the Operable Unit 3 (OU3) potentially responsible parties (PRPs) in the federal M52 Site acknowledge that the "presumed distal end of the M52 VOC plume terminates within the WVB WQARF Site? and ?[t]he future selection of a remedy for the WVB area will mitigate any potential exposure to contaminated groundwater downgradient of Unfortunately, it is now clear based on September 2018 letter to RID that EPA will not take timely action to address the public health and groundwater contamination problems that once again have been brought to attention. Without any consideration or discussion request regarding an administrative extension of the current boundaries ofthe adjacent, upgradient federal M52 Site, EPA instead responded that it will take years to include the WVBA WQARF Site on the federal National Priorities List (NPL). After NPL listing, based Final Operable Unit 3 Remedial Investigation Report, Motorola 52?" Street Super/and Site, Operable Unit 3. Phoenix, Arizona, prepared by Environmental Resource Management. October 2016, at pages 3 and 35. 2575 East Camelback Raad Phoenix. Arizona 85016-9225 P: 802-530-8000 F: 802?530-8500 Mr. Misael Cabrera Mark Brnovich, Esq. March 14, 2019 Page 2 on pace at OU3 of the federal M52 Site, it may take another decade before the direct and ongoing releases of toxic pollutants into the ambient air ofthe local community and the ongoing migration into the WVBA WQARF Site of the toxic groundwater contamination originating from the federal M52 Site will be addressed. RID strongly disagrees with positions and analysis and has issued a reply to EPA, dated March 5, 2019, which is attached as Exhibit 1.2 The regional groundwater contamination problem must be addressed. Not only is the contaminated groundwater migrating from the federal M52 Site impacting the WVBA Site, but as evident in the following ADEQ depiction of the groundwater plumes associated with all Phoenix-area volatile organic compound (VOC) sites, groundwater contamination in the entire region is migrating to the WVBA Site.3 ?59.50?" non: auofizgliirgcsiftgfiaow 1 (1,131; . 93023? comm AND CANIL . . LU: v. . uolonorumns'nis? WQARF ROOSEVELT IRRIGATION ova, up meF DISTRICT WE LL-FIELD EPA NPL SUPERFUND HISTORIC WEST VAN BUREN Proposed Boundaries Figure 1 I Proposed WQARF Sites (?09?89" Cmnded Site - .221. art: :1 pr ?4"de d-d w. ?u I - t'ts?. rug)?; ?in ?.7156!" i r. ?fw?m . The groundwater contamination problem illustrated above is unlike any other in Arizona. In this region, extensive pumping of large capacity RID production wells is the dominant control on the shallow groundwater ?ow system. Indeed, the PRPs of the West Van Buren Working Group have noted, pumping since the 19503 has resulted in an extensive, regional 3 Although the initial reply to EPA was drafted in October 2018, we were led to believe that there would be opportunities to address the problems without the need ofa formal reply. Unfortunately, no such opportunities materialized and minor tweaks were made to the original draft reply due to the passage oftime. 3 Illustration included in April 24, 2018 letter to EPA. The ?gure has been modi?ed to include the VOC plume originating from the 56lh Street and Earll Drive WQARF Site, which was left offthe ADEQ map, and to show the apparent groundwater flow direction associated with the converging VOC plumes. The area encompassing the RID well field in the WVBA Site is also shown. 2 7003 279v4 Mr. Misael Cabrera Mark Brnovich, Esq. March 14, 2019 Page 3 groundwater depression that controls groundwater gradients over much of the central and northern portions of the WSRV [West Salt River As a consequence, the RID well ?eld has been massively impacted by VOC contamination from numerous sources and sites, with up to 26 RID wells contaminated by VOCs. And unfortunately, for an indeterminant time that may encompass 30 to 40 years or more, the VOCs in groundwater pumped by RID were and continue to be released into the ambient air within the WVBA community, exposing the local low income, minority WVBA community to toxic VOCs. Persistent and long-term inhalation exposure to toxic VOCs like trichloroethene (TCE) is a likely contributor to serious health effects and may explain, at least in part, the extremely high reported air toxics cancer risk in the area. Speci?cally, EPA environmental data compiled in the BI SCREEN screening and mapping tool indicate the WVBA Site ranks at the 97?h percentile for potential lifetime cancer risk associated with inhalation of air toxics.5 The lack of any State or Federal action to address the largest groundwater contamination site in Arizona is untenable to RID and should be unacceptable to the State from a public and environmental justice perspective. After all, stated mission is to ?protect and enhance public health and to prevent pollution of the air, water, and land, and to ensure cleanup when pollution occurs (emphasis Apart from voluntary efforts to undertake remediation under ADEQ-approved remedial actions, remediation to protect public health and prevent environmental contamination is not occurring at the WVBA Site. On the other hand, the State of Arizona and EPA have initiated cleanups involving the implementation of large-scale groundwater pump and treat remedial actions between 15 and 30 years ago at the other major Arizona contaminated sites. The impoverished, minority population within the WVBA Site has had to live with direct exposure to toxic VOCs and groundwater contamination affecting their community while regulators moved forward decades ago to implement remedial actions to address environmental degradation at the other major sites in Arizona, including the adjacent, upgradient federal M52 region of the same plume connected to the WVBA Site. The near total disregard for the WVBA is typified by the fact that the State of Arizona has allocated only $80,000 of funds from the projected FY2019 WQARF budget to address the WVBA Site.7 This total amounts to 0.6 percent of the proposed $13.3 million WQARF budget allocated to all sites. Oddly, the West Osborn Complex WQARF Site is budgeted to receive $1.24 million in WQARF funding even though the entire VOC plume outside of the source area is migrating with prevailing groundwater flow toward the WVBA Site. Consequently, RID asserts the State ofArizona must now step up and fulfill its responsibilities and legal mandate to protect public health, prevent further environmental degradation and cleanup groundwater contamination within the WVBA WQARF Site. This problem can no longer be ignored or dismissed. Given unwillingness to take any timely 4 inal Feasibility Study Report, West Van Buren WQA RF Site. Phoenix, Arizona, prepared by Haley Aldrich, December 2014, Site Conceptual Model, at A-9. 5 The EJSCREEN result indicates that only 3% of statewide residents have a higher cancer risk than the average resident ofthe WVBA Site. See EJSCREEN data on presentation to EPA, included as Attachment A in Exhibit 1. 20/ 8 WQARF Annual Report 7003279v4 Mr. Misael Cabrera Mark Brnovich, Esq. March 14, 2019 Page 4 action, the WVBA WQARF Site remains an Arizona WQARF Site subject to the State of Arizona WQARF Program requirements, procedures and standards under Arizona law for the foreseeable future. As a result, the responsibility falls on the State of Arizona to actively address the ongoing risks to public health, welfare and the environment within the WVBA WQARF Site. Time is of the essence for State action given that the existing RID remediation funds are depleting and further delay is inexcusable, especially when the State of Arizona declared back in February 2017 that ?the State of Arizona will no longer accept delays [to groundwater remediation] at the Site.? Despite the State?s call against any further delay in remediation at the WVBA WQARF Site in February 2017, the State of Arizona has failed and/or refused to take the necessary additional administrative actions to enable full implementation, continued operation and funding of the RID remedial actions that have been formally approved by the ADEQ and directly address the risks to public health, welfare and the environment in the WVBA WQARF Site in compliance with all applicable Arizona laws and WQARF Program requirements. Now that EPA has clearly stated its inability to timely address the WVBA WQARF Site and the recent Arizona primary and general elections are over, we again seek the State of Arizona?s immediate assistance, consistent with its February 2017 declaration and applicable legal obligations, to avoid further delay in the full implementation, continued operation and funding ofthe ADEQ- approved RID groundwater remedial action in the WVBA WQARF Site. We do not understand why RID has been denied any meeting with the Governor when RID is a victim ofthe groundwater contamination, has volunteered to mitigate public health and environmental risks and is the only party that has expended substantial funds and resources to address the massive groundwater contamination in the WVBA WQARF Site. In fact, RID has arranged private funding through a public-private-partnership to fully implement the ADEQ- approved RID groundwater remedial action and build additional infrastructure to maximize the bene?cial use of the treated groundwater as required by state law,8 and to encourage future economic growth and development in the State. Although a meeting was held on March 22, 2018 with the Governor?s staff, ADEQ, the Arizona Department of Water Resources (ADWR) and the Attorney General?s Of?ce, no response has ever been provided to the materials, options and proposals presented by RID at the meeting. For more than thirty (30) years, the State of Arizona has identified and known of groundwater contamination within the WVBA WQARF Site that violates applicable water quality standards and presents an imminent and substantial danger to public health, welfare and the environment. In response to the groundwater contamination, which contaminated water supply wells and caused the release of toxic pollutants into the ambient air of the local community within the WVBA WQARF Site, RID voluntarily developed and has partially implemented groundwater remedial actions over the last eight (8) years that ADEQ formally approved in 2010, 2013, 2014, 2015 and 2016. Additionally, a federal court has determined 8 See A.R.S. 4 7003 279v4 Mr. Misael Cabrera Mark Brnovich, Esq. March 14, 2019 Page 5 these ADEQ-approved remedial actions comply with Arizona?s applicable laws as well as substantially complying with the federal National Contingency Plan For over a year now, and again during the March 22, 2018 meeting, RID has presented the State ofArizona with multiple options to avoid further delay in the full implementation, continued operation and funding of the ADEQ-approved and NCP-compliant RID groundwater remedial action for the WVBA WQARF Site. Those options included: State issuance ofa Conditional Poor Quality Groundwater Withdrawal Permit to avoid Arizona taxpayer funding of the ADEQ-approved RID groundwater remedial action, (ii) Arizona taxpayer partial funding of the ADEQ-approved RID groundwater remedial action under the WQARF program as required pursuant to Arizona law,l0 State support for administrative oversight of the ADEQ-approved and NCP-compliant RID groundwater remedial action as an interim CERCLA response action to avoid federal taxpayer funding, or (iv) enforcement actions by ADEQ or the Attorney General?s Office to compel the legally responsible parties and state regulatory agencies to comply with the requirements and obligations of the WQARF Program and address the ongoing risks to public health, welfare and the environment and/or to seek appropriate civil and criminal penalties for ongoing violations of the aquifer water quality standards as provided under Arizona law.ll Inexplicably, RID has never received a response from the Governor?s Office on those options. Instead, actions have been taken by the State and the Attorney General?s Of?ce in the meantime that raise additional questions on why the State fails to act and continues to delay active remediation and/or funding needed at the WVBA WQARF Site. This letter will outline again the many potential options available to the State ofArizona to avoid further delay in the full implementation, continued operation and funding of the ADEQ-approved RID groundwater remedial action for the WVBA WQARF Site, to comply with the State?s legal obligations to fund ?orphan shares? and issue permits to facilitate the prompt conduct of ADEQ-approved remedial actions, to address the imminent and substantial danger to public health, welfare and the environment presented by the groundwater contamination in the WVBA WQARF Site and to ensure compliance with all applicable water quality and remedial action standards. A. Available Options to Avoid Further Delay and to Implement the ADEQ-Approved RID Remedial Action State Issuance of a Conditional The full implementation and private funding of the ADEQ-approved and NCP-compliant RID groundwater remedial action has been delayed solely by the State of Arizona?s refusal to issue a that is mandated by statute to be issued, and that routinely and consistently has RID v. SRP, No. 2:10-cv-00290, Dkt. 1396, ?Order: (I) Denying Motion for Summary Judgment re: NCP Compliance; (2) Granting Cross-Motion for Summary Judgment re: NCP Compliance; and (3) Overruling Objections to Additional Fact Statements," 28, 13 (D. Ariz. ?led March 15, 2017). ?0 A.R.S. See discussion infra. See A.R.S. 49-262. 49-263 and 49-287. 5 7003279v4 Mr. Misael Cabrera Mark Brnovich, Esq. March 14, 2019 Page 6 been issued for over thirty (30) years for similar government-approved groundwater pump and treat remedial actions in Arizona. Pursuant to ARS 49-290.01.A, ?the department of water resources shall expedite the processing and issuance ofpermits, approvals or authorizations to facilitate the plompt conduct of approved remedial actions." Accordingly, over the last thirty (30) years since the creation of ADEQ and the WQARF remediation program, ADWR on behalf of the State of Arizona routinely and consistently has issued to authorize the necessary withdrawal of contaminated groundwater pursuant to ADEQ-approved groundwater pump and treat remedial actions until the applicable Arizona aquifer water quality standards e. the federal drinking water quality Maximum Contaminant Levels under the federal Safe Drinking Water Act)12 are achieved, regardless of the end use of the remediated water g, for irrigation use, municipal use or discharge to a wastewater system). In fact, the issuance of this administrative groundwater withdrawal permit to facilitate ADEQ-approved pump and treat remedial actions is so routine that ADWR has issued a even before ADEQ had approved a remedial action, conditioning the on approval.l3 Nevertheless, the State of Arizona has unlawfully refused to issue a ?to facilitate the prompt conduct of approved remedial actions? at the WVBA WQARF Site as required by statute and the State?s 30?year custom and practice. Instead, the State of Arizona has attempted to impose unlawful conditions and apply unlawful interpretations to avoid the issuance ofa apparently due to political influence and improper interference from parties legally responsible for the contamination. The State ofArizona through its ADWR Director in June 2017 tried to justify its failure to issue a by suggesting that a may not be necessary given that RID already possesses existing water rights to withdraw and transport water from the WVBA WQARF Site, which could be relied upon by RID as an alternative to a to fully implement the ADEQ- approved RID groundwater remedial action. Yet the same ADWR Director unilaterally revoked prior ADWR regulatory determinations to undermine and put into question the reliability of the ?3 A.A.C. Rl8-l l-406. In addition to the existing numeric drinking water aquifer water quality standards. Arizona law requires compliance with narrative aquifer water quality standards to provide a safety net by ensuring protection of public health and the environment if new toxicological data determines that the existing numeric drinking water aquifer water quality standard for a contaminant (like TCE) may no longer be adequately protective. The narrative aquifer water quality standards prohibit a pollutant to be present in any ?concentration which endangers human health" or ?impairs existing or reasonably foreseeable uses of water in any aquifer.? A.A.C. R18-1 l-405A. and C. '3 At the 56?h Street and Earl] Drive WQARF Site. ADWR issued a effective July 15, 2010 (in the same year ADEQ formally approved Early Response Action for the WVBA WQARF Site) ?in anticipation of the early response action (ERA) at the site and the need to pump groundwater from extraction wells and developing the groundwater treatment system.? Clear Creek Assoc. Remedial Investigation Report. 56th Street and Earl] Drive WQA RF Site, 17 (2018). The was issued nearly a year before a party entered into an agreement with ADEQ in 201 1 to ?design and implement an ?ttest Fir? DrivelitmI.._Treatment 0f the extracted groundwater t0 the applicable drinking water quality standards is required, despite the irrigation end use of the remediated groundwater. ?4 See Attachment in Exhibit 1. 6 7003279v4 Mr. Misael Cabrera Mark Brnovich, Esq. March 14, 2019 Page 7 same existing RID water rights. By previous written correspondence in 201 1 and 2013 from ADWR, the State ofArizona informed RID that ?the Department [of Water Resources] concurs that RID has the ability to deliver the remediated groundwater to non-irrigation customers within its service area [b]ecause RID has the [water] right to withdraw and transport groundwater to landowners? and ?the duration of [certain private-party] agreements would not affect the legal availability of the groundwater." '5 In short, ADWR previously in 2011 and 2013 had confirmed that RID has a water right that allows RID to withdraw and transport the contaminated groundwater in the WVBA WQARF Site as required under the ADEQ-approved RID groundwater pump and treat remedial action. However, in 2015, despite these prior written ADWR regulatory determinations upon which RID has relied and the fact that an existing water right has not prohibited routine issuance of to conduct similar groundwater remediations in the past'?, the new ADWR Director, due to the apparent political in?uence of certain legally responsible polluting parties, unilaterally questioned the reliability of such prior ADWR determinations confirming existing water rights. Even when ADWR staff thereafter drafted numerous written clarifications further supporting 2013 written confirmation of water rights, the new ADWR Director granted unlawful veto authority over the issuance of those clari?cations to a party legally responsible for the contamination in the WVBA WQARF Site.'7 By refusing to routinely and expeditiously issuing the as mandated by statute and requested by RID and, at the same time, taking unilateral action to revoke prior regulatory determinations confirming water rights, ADWR on behalfof the State of Arizona is solely responsible for the continued delay in the full implementation and funding of the ADEQ-approved RID groundwater remedial action in the WVBA WQARF Site and the continued uncontrolled release of toxic VOCs into the ambient air of the local WVBA community. As outlined and proposed in the presentation provided to the Governor?s Office on March 22, 2018, the issuance of a Conditional would avoid any further delay in addressing the groundwater contamination caused by inconsistent and, frankly, unlawful positions and actions, and would comply with statutory mandate in A.R.S. 49-290.01.A ?to expedite the processing and issuance of permits to facilitate the prompt conduct of IADEOI approved remedial actions? and 30-year custom and practice of routinely issuing to implement government-approved groundwater pump and treat remedial actions. As previously explained on many occasions, the Conditional would be effective only if and when RID no longer possessed an independent water right. The issuance of such a Conditional will enable timely financial assistance through a public-private partnership to privately fund the full implementation and continued operation of the ADEQ- approved RID remedial action under the jurisdiction and oversight and avoid Arizona '5 See attached ADWR letters in Exhibit 2. written legal detemiinations of RlD?s independent water right are consistent with the sworn statement ofa relevant PRP despite current efforts to influence ADWR to revoke such determinations. See Attachment 1 in Exhibit 1. ADWR issued SRP a in order to perform an ERA to protect an SRP well despite SRP holding a service area water right. '7 See Attachment in Exhibit 1. See ADWR email in Exhibit 2. 7 7003279v4 Mr. Misael Cabrera Mark Brnovich, Esq. March 14, 2019 Page 8 taxpayers having to pay any ?orphan share? portion of the contamination caused by third?party polluters, as would otherwise be required under the WQARF Program. (ii) Arizona Taxpayer Partial Funding of ADEQ-Approved RID Remedial Action with WQARF funds During the last eight (8) years since ADEQ ?rst formally approved Early Response Action, the State of Arizona has provided only limited WQARF funds to implement and operate the ADEQ-approved RID remedial action at the State?s largest WQARF Site. explanation for the lack of ?nancial support was ?because competing State-wide budget priorities have resulted in the continued underfunding of While that explanation was true for the ?rst ?ve (5) years of active groundwater remediation at the WVBA WQARF Site, the Arizona legislature has authorized full funding of the WQARF program the last few years and for the current ?scal year. Irrespective of the actual or perceived lack of WQARF funds, the State of Arizona more recently requested the key stakeholders to expeditiously develop a ?remedial action plan that is comprehensive and covers all activities necessary? for a regional groundwater remedy at the WVBA WQARF Site.? In fact, ADEQ, on behalf of the State of Arizona, declared in February 2017 that ?notwithstanding previous communications, the State of Arizona will no longer accept delays at the West Van Buren Water Quality Assurance Revolving Fund Site.?20 Inexplicably and despite the State?s February 2017 declaration against any further delays, $0 from the WQARF funds were projected for the WVBA WQARF Site for the FY2018 budget,21 resulting in continued State inaction and further delay to the full implementation, continued operation and funding of the ADEQ-approved RID remedial action in spite of the federal court?s admonishment to Arizona?s public entities for their failure to act.22 The lack of WQARF funding over the years and the virtual absence of any WQARF funding for the future is inexcusable. The groundwater contamination in the WVBA WQARF Site has been studied by ADEQ for over thirty (30) years, and ADEQ has documented groundwater contamination on a massive scale that directly impacts numerous RID operating water supply wells and is being released into the ambient air and exposing the local WVBA community to toxic pollutants. The WVBA WQARF Site is the largest and most expensive contamination site on the WQARF Registry in Arizona. Moreover, groundwater contamination from the adjacent federal M52 CERCLA Site and other WQARF sites has impacted and will '8 ADEQ approval of Feasibility Study Report (April 2015). See Attachment in Exhibit 1. '9 ADEQ letter to WVBA Interested Parties, February 10, 2017. See Exhibit 3. 20 Id. 3' ADEQ, WQARF FY17 Annual Report, 35 (2017). In fact, minimal WQARF funds have been projected for the last four years to address the largest WQARF site in Arizona: $25,000 (FY16), $10,000 (FY17), $80,000 (FY19). 33 The federal court sharply criticized the lack of remedial action by Arizona?s public entities. Speci?cally, the federal judge stated: ?It astounds me. to be honest with you, as to why the public entities here didn?t step up more forcefully on all bases to do something about what is admittedly a very serious problem. 1 don?t think anybody disagrees, 0r ifthey do, 1 don?t know on what basis they could possibly suggest that there aren?t plumes of very deadly carcinogenic chemicals ?oating around underneath the city of Phoenix, Arizona.? Reporter ?3 Transcript of Proceedings (Motion Hearing) at page 38, lines 14-21, RID v. SRP, No. CV-10-0920 (D. Ariz. Feb. 28, 2017).. 8 7003279v4 Mr. Misael Cabrera Mark Brnovich, Esq. March 14, 2019 Page 9 continue to migrate to the WVBA Site for the long-term future. The WVBA WQARF Site is the key to cleaning up regional groundwater contamination in the greater Phoenix area, yet the State agencies and EPA have not taken any substantive remedial action to address the problem. In 2014, ADEQ prepared an internal study ?to estimate the potential future costs that may be incurred by the State of Arizona?s Water Quality Assurance Revolving Fund."23 In ?estimating the total cost to the WQARF program," 2014 report and its recent 2017 update assumed ?the primary remedial objective considered for each site was to allow for the present and reasonably foreseeable use of all contaminated media,? (ii) costs should be limited only to thirty (30) years, the program may become ?nancially responsible for the site at any time, regardless of previous actions,? and (iv) ?standard remedial technologies, such as pump and treat for groundwater plume containment, were chosen.?24 In determining what remedial actions would be necessary, the ?project manager and other ADEQ staff experience, along with examples from similar sites, were used to determine the probable course of action? and ?all inputs were chosen based on their ability to meet the site?s remedial objectives and to utilize the most cost-effective methods wherever possible.?25 The WVBA WQARF Site was determined by ADEQ to be the most expensive WQARF cleanup at $139,527,680. It should be noted that the pump and treatment of water supply wells, consistent with the ADEQ- approved RID Modi?ed Early Response Action, was independently selected by ADEQ as the ?probable course of action? to achieve the primary remedial objectives established by ADEQ for the WVBA WQARF Site. Under the WQARF program, the State of Arizona has a statutory obligation to fund the ?orphan shares?26 at the WVBA WQARF Site from the available WQARF funds. 27 ADEQ has informed multiple parties at multiple times of its ongoing liability allocation process for the WVBA WQARF Site that would establish and quantify ?orphan share" financial liability, including public acknowledgment in June 2017 that the State of Arizona?s ?orphan share? was then estimated to be at least 10-15%. Many PRPs have argued that the State of Arizona?s ?orphan share? is greater than 50%, especially since the WQARF Program is statutorily obligated also to fund a 25% discount to any PRP who timely pays its allocated share.28 In fact, the estimate may be more accurate given more recently 37? ADEQ, Evaluation of Potential Future Costs at Arizona Superfund Sites, 1 (January 2014) (also often referred to as the RACER Report). See excerpts in Exhibit 4. 241d. 35 [ti 3" Pursuant to A.R.S. ?orphan shares" means the shares ofthe cost ofa remedial action that are allocated to an identi?ed person who is determined to be a responsible party and that are not paid or otherwise satis?ed by that responsible party due to any of the following: The party cannot be located or no longer exists; The party has entered into a qualified business settlement pursuant to this article? The party has entered into a settlement pursuant to this article for an amount that is less than its allocated share; The director has determined that the share allocated to the party is uncollectible. 37 Pursuant to A.R.S. 49-282.E.2.e, ?monies from the water quality assurance revolving fund shall be user/for the following purposes: ?Funding orphan shares.? Even 20l4 RACER report acknowledges that funds are used, in part, to take remedial actions; and fund orphan shares 3? Pursuant to A.R.S. 49-28705, ADEQ ?shall notify each person that has been determined to be liable under this article ofthe following: 9. An offer to settle the person?s liability ifthe person agrees to pay seventy-?ve 9 7003279v4 Mr. Misael Cabrera Mark Brnovich, Esq. March 14, 2019 Page 10 estimated 61% ?orphan share? at all WQARF sites.29 The higher ?orphan share? calculation also is consistent with the former Brewer administration?s authorization for ADEQ to issue a written settlement offer for the WQARF Program to assume 50% of the remedial action costs for the WVBA WQARF Site.3O RID has offered the State of Arizona alternative options to avoid its statutory ?nancial liability for any and all ?orphan shares? contributing to contamination in the WVBA WQARF Site. Nevertheless, given the recent full funding of the WQARF program by the legislature, RID does not understand why the State of Arizona would refuse to provide at least the 10-15% ?orphan share,? which if paid, could enable full implementation and continued operation of the ADEQ-approved and Arizona law-compliant RID remedial action at the WVBA WQARF Site and achieve containment of the groundwater plume? and all of the remedial objectives speci?cally established by ADEQ for the WVBA WQARF Site as required by Arizona law.32 To date, we have not heard any response or explanation from the State of Arizona for failing to fund the ?orphan shares? for the WVBA WQARF Site. Similarly, we have not heard any explanation from the Attorney General?s Of?ce regarding its comments at the June 11, 2018 meeting that the State of Arizona may delay full implementation, continued operation and funding of approved RID remedial action because the statutory word ?shall? may be interpreted not to mean ?shall." As noted in our follow-up letter to Arizona Assistant Attorneys General Curtis Cox and Shilpa Hunter-Patel on July 17, 2018, such a position is incredulous and contrary to the spirit and express language of the existing WQARF Program33 and violates Governor Ducey?s reliance on the plain and common meaning of words.34 If the State of Arizona continues to refuse to issue a Conditional that would enable private funding of the ADEQ-approved RID groundwater remedial action, the State of Arizona should pay for all the ?orphan share" contributions to the contamination within or migrating into the WVBA WQARF Site as mandated by Arizona law. Even the minimal ?orphan share? estimate by ADEQ could fund the full implementation and continued operation ofthe ADEQ-approved RID groundwater remedial action to address the imminent and percent of the share of remedial action costs allocated to the person by the department." The 25% discount becomes ?orphan shares? pursuant to A.R.S. ?49-281.10.c. 3" Pursuant to WQARF FY17 Annual Report, ?based on current site numbers, orphan share is estimated at nearly 61 percent or $262 million" for all sites. 30 See Exhibit 5. 3' See A.R.S. 49-282.06.A.1 and A2. Without implementation ofthe ADEQ-approved RID groundwater remedial action. there is no containment ofthe WVBA contaminant plume. In fact, website states that is in the process of sampling the far western toe ofthe groundwater plume for additional plume de?nition and con?rmation of containment." 33 See A.A.C. Rl8-16-406.l and 407.E. 33 Pursuant to the 1997 WQARF reform legislation, the liability provisions were modi?ed from joint and several liability to several liability because ADEQ was obligated to cover "orphan shares" from the WQARF fund. 3? In the 2015 State ofthe State address, Governor Ducey encouraged ?Attorney General Bmovich: Dust off your dictionary and help us out here. The words ofthe statute are clear. ?And? means ?and.? ?Or? means Sadly, it has come to our attention that other statutorily mandated WQARF remedial action criteria may fall victim to the Attorney General?s interpretation that ?shall? may now be interpreted ?not" to mean ?shall.? 7003279v4 10 Mr. Misael Cabrera Mark Brnovich, Esq. March 14, 2019 Page 11 substantial danger to public health, welfare and the environment at Arizona?s largest WQARF site. State Support for Administrative Oversight of the ADEQ-Approved RID Remedial Action as an Interim CERCLA Response Action On behalf of the State of Arizona, ADEQ informed interested parties in February 2017 that if there was further delay beyond December 31, 2017, ?the State of Arizona will request that the United States Environmental Protection Agency evaluate the WVB Site for inclusion on the National Priorities List.? ADEQ requested evaluation on April 24, 2018. In its April 24, 2018 letter, ADEQ requested EPA ?rst to evaluate whether EPA could simply extend the current boundaries of the federal M52 Site administratively to include most of the WVBA WQARF Site, similar to what EPA did when it extended the federal M52 Site boundaries to previously include the East Washington WQARF Site, which currently constitutes OU2 and OU3 of the federal M52 Site. Alternatively, ADEQ requested evaluation of placing the WVBA WQARF Site on the NPL. lnexplicably, in September 2018 letter, EPA only discussed inclusion of the WVBA WQARF Site on the federal NPL. As such, EPA explained it would take years for NPL listing and, thereafter, based on the timeline at the upgradient OU3 area, it would likely be another decade before EPA would take any CERCLA response action to address the groundwater contamination and releases of toxic VOCs into the ambient air of the local community within the WVBA WQARF Site. Although September 2018 response conflicts with CERCLA statutory authority and prior practice in Arizona, as documented in March 5, 2019 letter to EPA, EPA no longer appears to be a viable timely option to avoid further delay in addressing the groundwater contamination and the public health, welfare and environmental risks at the WVBA WQARF Site. The State of Arizona needs now to look for viable State and private sector solutions. (iv) Enforcement Action by ADEQ and/or Attorney General?s Of?ce to Protect Public Health, Welfare and the Environment from Toxic Releases and Migration of Groundwater Contamination Another option was discussed with the Attorney General?s Of?ce in our July 17, 2018 letter. State law authorizes that the Attorney General, independently and/or with the ADEQ Director, may and should pursuant to A.R.S. 49-262, 49-263 and 49-287 pursue a temporary restraining order, a preliminary injunction, a permanent injunction or any other relief, including civil and criminal penalties, against state regulatory agencies and/or the legally responsible polluting parties for violations of applicable WQARF statutes, rules and water quality standards that ADE-Q already has documented and determined to ?present an imminent and substantial endangerment to public health and the environment.? In fact, in an effort to expedite remediation at another WQARF Site, ADEQ and the Attorney General?s Office have determined that ?[blv its very nature, ?the release of a hazardous substance may present an imminent and substantial danger to the public health or welfare or the environment.?35 Additionally, ADEQ 7?5 See Exhibit 6 for State of Arizona?s Proposed Finding of Fact and Conclusions of Law in State QfArimna v. Palo Verde Investments, el. al/ (filed on October 26, 20 I 8). 7003279v4 1 1 Mr. Misael Cabrera Mark Bmovich, Esq. March 14, 2019 Page 12 and the Attorney General?s Of?ce have determined the ?fact that all aquifers are designated as drinking water sources ful?lls the potential danger to public health or welfare options [and] the environment option is also satis?ed merely by the release ofa hazardous substance and by the movement and spread of that released hazardous substance into the environment.?36 Again, neither ADEQ nor the Attorney General?s Of?ce has explained why the enforcement authorities provided by statute have not been utilized and pursued by the State of Arizona to avoid any continued delay in addressing the ongoing releases of toxic VOCs from the contaminated groundwater into the ambient air of the local WVBA community and the ongoing migration and contamination oleD?s water supply wells and additional groundwater resources within the WVBA WQARF Site. B. The State of Arizona Continues to Unlawfully Treat the WVBA WQARF Site and the ADEQ-approved RID Remedial Action Differently from the Other Cleanup Sites in Arizona As described above and contrary to its February 2017 declaration that ?the State of Arizona will no longer accept delays [to groundwater remediation] at the Site," the State of Arizona is solely responsible for refusing to routinely issue a as required by statute and for unilaterally revoking prior regulatory determinations that would enable full implementation, operation and funding of the ADEQ-approved RID groundwater remedial action. As a result, the State of Arizona is treating the WVBA WQARF Site and the ADEQ?approved RID remedial action unlawfully different from the other cleanup sites in Arizona. Also noted above, ADEQ and the Attorney General?s Of?ce are on record declaring to a court regarding a new WQARF Site in Arizona that because all aquifers in Arizona are statutorily designated as a drinking water source, any hazardous substance release to an aquifer ?may present an imminent and substantial endangerment to public health or welfare or the environment.?37 However, despite determination that the ADEQ-approved RID groundwater remedial action in the WVBA WQARF Site is ?in response to a release or threat of a release of a hazardous substance or pollutants that presents an immediate and substantial endangerment to the public health or the environment," the State of Arizona has not acted to address this ?imminent and substantial endangerment?8 as authorized by the WQARF Program.39 In fact, the WVBA WQARF Site is the only known site in Arizona where an active groundwater remedial action has not been taken by a regulatory agency (ADEQ or EPA) to prevent direct and ongoing releases and public exposure to contaminated groundwater containing toxic VOCs above Maximum Contaminant Levels (MCLs) to ensure protection of public health. welfare and the environment as required by applicable Arizona and federal laws. 30 Id 37 Id. 38 See ADEQ approved WQARF reimbursements in 2013, 2014 and 2015 pursuant to A.R.S. ?49-282.E.l in Attachment in Exhibit 1. See also Agreement to Conduct Work between ADEQ and RID, dated October 8, 2009. 39 See A.R.S. ?49-287. 7003279v4 12 Mr. Misael Cabrera Mark Brnovich, Esq. March 14, 2019 Page 13 The State of Arizona also inexplicably has failed to identify the WVBA WQARF Site as a priority site for active remediation despite the WVBA WQARF Site being the largest contamination site with the highest potential ?nancial liability for the State of Arizona. Although ADEQ has recently developed a KOUI program to identify ?sites with Known,40 Ongoing4 and Unauthorized42 Impacts43 to Human Health and the Environment? for agency action, the WVBA WQARF Site has not been included. The WVBA WQARF Site is absent from the KOUI list despite the State of Arizona having collected data and documented that releases of toxic VOCs have impacted the groundwater above the applicable aquifer water quality standards and are being released into the ambient air of the local community within the WVBA WQARF Site at levels exceeding federal public health guidelines, that the WVBA groundwater has and continues to be signi?cantly contaminated by toxic pollutants migrating from the adjacent, upgradient federal M52 Site and the West Central Phoenix WQARF Site. and that the groundwater contamination in the WVBA WQARF Site is migrating and spreading and may not be contained.44 Additionally, the State of Arizona has refused to contribute WQARF funds for the full implementation and operation of the ADEQ?approved RID groundwater remedial action at the WVBA WQARF Site that is addressing contamination from ?orphan shares,?45 despite the WQARF Program having received full funding from the Arizona legislature for the last several years. Instead, the State of Arizona is spending significant WQARF funds annually at dramatically smaller-size sites. For example. only $80,000 from the projected FY2019 WQARF budget is allocated to the WVBA WQARF Site (the largest groundwater contamination site in Arizona), compared to $543,000 at the WCP North Canal WQARF Site, $550,000 at the 7?h Ave and Bethany WQARF site and $1,240,000 at the W0C WQARF site in Phoenix. Additionally, in the June 1 1, 2018 meeting, the Attorney General?s Office without explanation indicated that the State of Arizona may not ful?ll its obligation as mandated by Arizona law to fund the ?orphan shares? at the WVBA WQARF Site, all to the detriment ofpublic health, welfare and the environment. Furthermore, ADWR on behalfof the State of Arizona has refused to ?expedite the processing and issuance of permits the approvals 0r authorizations to facilitate the prompt conduct of [the ADEQ-]approved remedial actions? at the WVBA WQARF 4? ADEQ has defined ?Known" as "empirical data showing an impact to human health or the environment." 4' ADEQ has de?ned ?Ongoing" as "continuing health impacts; environmental impacts are either spreading, being added to, or getting worse and cannot be resolved within 6 months.? 43 ADEQ has de?ned "Unauthorized" as ?impact exceeding a regulatory standard." 43 ADEQ has de?ned ?Impact" as ?n_0t a risk, [but] an impact to human health o_r the environment." 44 The WVBA WQARF Site would not qualify for the KOUI priorities ifthe ADEQ-approved RID groundwater remedial action was being implemented; however, an approved but unfunded remedial action does not protect the public health, welfare or the environment. ?5 A.R.S. 49-281 .10 de?nes ?orphan share" as ?the shares ofthe cost ofa remedial action that are allocated to an identi?ed person who is determined to be a responsible party and that are not paid or otherwise satis?ed by that responsible party due to any of the following: The party cannot be located or no longer exists; The party has entered into a quali?ed business settlement pursuant to this article; The party has entered into a settlement pursuant to this article for an amount that is less than its allocated share; or The director has determined that the share allocated to the party is uncollectible. 7003279v4 13 Mr. Misael Cabrera Mark Brnovich, Esq. March 14, 2019 Page 14 Site as mandated by Arizona law46 and has been custom and practice over the last thirty (30) years to comply with the mandatory WQARF Program remedial action criteria in A.R.S. ?49-282.06. In fact, the State of Arizona now has indicated that it will not approve any groundwater remedial action for the WVBA WQARF Site that requires a in contradiction of prior approvals of groundwater pump and treat remedial actions for the WVBA WQARF Site.47 Such actions by the State of Arizona violate applicable Arizona law that mandates the prompt conduct of approved remedial actions needed to protect public health welfare and the environment. Additionally, failure by the State ofArizona to pump and treat the contaminated groundwater in the WVBA WQARF Site to address water supply wells contaminated above applicable water quality standards and achieve containment of the largest groundwater plume violates numerous WQARF Program remedial action statutory requirements.48 To our knowledge, the WVBA WQARF Site is the only known WQARF site where the State ofArizona has failed to meet its mandatory remediation requirements. Conclusion We therefore again ask for immediate meetings with the Governor and the Attorney General to discuss the positions outlined in September 2018 letter. the lack of any timely assistance from the EPA and, therefore, the State of Arizona?s responsibilities under Arizona law to address the direct and ongoing public health and environmental risks associated with the toxic VOCs that are being released into the local WVBA community and are continuing to migrate and contaminate water supply wells and additional groundwater resources. Time is of the essence for State action given existing RID remediation funds are depleting and the private funds arranged by RID to fully implement and operate the ADEQ-approved RID groundwater remedial action and build additional infrastructure to maximize the bene?cial use of the treated groundwater are contingent upon the State complying with its legal obligations. Sincerely, GALLAGHER KENNEDY. P.A. By; avid P. Kim 11] DPK/sgl Attachments 7003279 cc: (w/allachmenls) Daniel Scarpinato, Governor Annie Foster, Governor General Counsel 4? A.R.S. 49-290.01.A. 47 See Exhibit 7 for Conditions for Settlement. 48 See and 41-10308. 7003279v4 14 EXHIBIT 1 i David P. Kimball, Attorney Direct: (602) 530?8221 Gallagher??ernnedy March 5, 2019 ATTORNEY-CLIENT Mr. Enrique Manzanilla Director, Superfund Division US EPA Region 9 75 Hawthorne Street San Francisco, CA 94105-3901 Re: EPA Needs to Act, Consistent with Existing CERCLA Authoritv and Prior EPA Actions, and Concur with a Judiciallv?Approved NCP Compliant and State- Approved Groundwater Response Action to Expedite Remediation at the WVBA QARF Site in Phoenix, Arizona Dear Mr. Manzanilla: Thank you for your letter received on September 26, 2018 in response to various correspondence and the one meeting between EPA staff and the Roosevelt Irrigation District (RID) over the last year.1 It was unfortunate that your letter failed to respond to the speci?c issues raised in our July 19, 2018 letter and, instead, focused on issues that EPA staff raised during our March 13, 2018 meeting in San Francisco and other issues that are extraneous to addressing the relevant groundwater contamination.2 In fact, September 2018 letter runs counter to broad authority under the CERCLA statute, speci?c prior ?ndings by a federal court, EPA and the State of Arizona, speci?c administrative actions at the adjacent federal Superfund site and the recommendations of Superfund Task Force. Even more troubling is that the EPA letter inexplicably defers (without the bene?t of any rebuttal from RID) to false allegations made by potentially responsible parties (PRPs) under CERCLA for the groundwater contamination in the Motorola 52nd Street federal Superfund (federal M52) Site and the West Van Buren Area (WVBA) Water Quality Assurance Revolving Fund (WQARF) Site in Phoenix, Arizona. We apologize for the delayed reply. Although we initially drafted this letter in October 2018, we were led to believe that there would be opportunities to address the problems without the need of a formal reply. Unfortunately, no such opportunities materialized and minor tweaks were made to the original draft reply due to the passage of tlme. 2 See footnote 43. As more fully explained in this letter, the EPA positions advanced in its September 2018 letter and resultant inaction by EPA are contrary to eXpIicit CERCLA authority to authorize RID to act on behalf, prior CERC LA response actions in Arizona and the Superfund Task Force recommendations. r. a n- 'nr (M12Ll)! Thai i Lila J-iti'fl .Jl Mr. Manzanilla March 5, 2019 Page 2 We also do not understand why EPA refuses to grant any of the meetings with leadership requested by RID3 which is an innocent victim of the contamination and the only party that has expended substantial funds to address the massive groundwater contamination that has migrated and continues to migrate from the federal M52 Site into the adjacent WVBA WQARF Site. That ongoing contamination has signi?cantly contaminated numerous operating RID water supply wells and is causing uncontrolled releases of toxic volatile organic compounds (VOCs) into the ambient air of a local low income, minority community in west Phoenix, Arizona. Instead of addressing speci?c requests or proposed options to expedite a prompt interim CERCLA response action, EPA responds with arguments from parties, who have been identi?ed as PRPs by EPA and/or the Arizona Department of Environmental Quality (ADEQ), that further delay addressing a very serious problem.4 Therefore, as has been the unfortunate routine for the last 10 years, this letter will again provide information and identify relevant documents to correct the inaccuracies and misrepresentations that have been raised in letter, and again request direct meetings with EPA leadership. As described in RlD?s prior correspondence, the purpose of outreach to EPA over the past two years is to accelerate cleanup in order to protect human health and the environment and water supply at the largest groundwater contaminant plume in Arizona and one of the largest in the United States. April 24, 2018 letter to EPA identi?es relevant documents and data establishing that a continuous and unbroken plume above applicable aquifer water quality standards has migrated and continues to migrate from the adjacent, upgradient federal M52 Site into the WVBA WQARF Site, which was placed on Arizona?s WQARF Registry of groundwater contamination sites in 1987. In fact, ADEQ has acknowledged that current containment of the plume cannot be con?rmed, especially since the ADEQ-approved RID groundwater remedial action, which includes measures to address the potential lack of containment, has not been fully implemented due to lack of funding and continued delay by the State of Arizona, EPA and total failure by any of the identi?ed PRPs to ?ind the ADEQ-approved remedial action for the WVBA WQARF Site. As demonstrated in April 24, 2018 letter to EPA, EPA has known for two decades that the groundwater contamination migrating from the federal M52 Site has adversely impacted the WVBA WQARF Site and west Phoenix community. Yet, despite the information presented and readily available to EPA over the past two decades, EPA now claims that the 3 RID has requested meetings with former EPA Administrator Scott Pruitt (April 26, 20 8), the head of Superfund Task Force initiative Steven Cook (July 25, 2018) and EPA Region 9 Administrator Michael Stoker (August 26, 2018) because the ADEQ-approved groundwater response action for the WVBA WQARF Site exceeds the $50 Million threshold for administrative oversight by EPA Headquarters. 4 A federal court in Arizona has noted: ?It astounds me, to be honest with you, as to why the public entities here didn?t step up more forcefully on all bases to do something about what is admittedly a very serious problem" don?t think anybody disagrees, or if they do, I don?t know on what basis they could possibly suggest that there aren?t plumes of very deadly carcinogenic chemicals ?oating around underneath the city of Phoenix, Arizona.? RID Action, Dkt. 1397 at 38:17-21 (Reporter?s Transcript of 2/28/17 Hearing). 5 Arizona has adopted by statute the primary drinking water maximum contaminant levels (MCLS) as drinking water aquifer water quality standards, and all aquifers in Arizona are classi?ed for drinking water protected use. See ARS and 49-224.B. Mr. Manzanilla March 5, 2019 Page 3 groundwater contamination is ?complex? and addressing the contamination ?will take time to complete,? including the delay of another decade before a CERCLA response action occurs.6 Even more troubling for the impacted local WVBA community is statement that does not embark upon a large groundwater cleanup project without ?rst placing the Site on the which as more fully described below is inconsistent with prior response actions at the nearby east Phoenix community impacted by the same adjacent, upgradient federal M52 Site7 and the recommendations of new Superfund Task Force which are designed to expedite groundwater cleanups to address uncontrolled releases of toxic VOCs into the ambient air of local communities.8 The inexcusable lack of any active state or federal governmental response action to address the groundwater contamination and toxic releases and emissions in the WVBA WQARF Site is of particular concern given that data compiled from own analytical tool, EJ SCREEN, indicate that, like the federal M52 Site, the WVBA WQARF Site is overwhelmingly comprised of an impoverished, undereducated, minority population having a disproportionally higher air toxics cancer risk.9 In fact, the WVBA WQARF Site is the only known site in Arizona where an active response action has not been taken by a regulatory agency (EPA or ADEQ) to prevent direct and ongoing public exposure to contaminated groundwater containing toxic VOCs above the drinking water MCLs and EPA public health guidelines to ensure protection of human health and the environment as required by applicable federal and Arizona laws. Contrary to Letter, CERCLA Authorizes Expedited Response Actions to Address Imminent and Substantial Dangers to the Public Health, Welfare or the Environment Despite September 2018 letter that claims it will take signi?cant time to address the contaminated groundwater that has migrated and continues to migrate from the federal M52 Site into the WVBA WQARF Site, Section 104 of CERCLA clearly states that [wlhenever anv hazardous substance is released or there is a substantial threat of such a release into the environment which may present an imminent and Based on statements in its letter and pace at the adjacent federal M52 Site, it will be another decade for EPA to address the impacts of the contaminated groundwater migrating from the federal M52 Site into the WVBA WQARF Site that is contaminating the WVBA groundwater and being released into the ambient air of the local community. This is based on statements that ?it often takes a year or more from the Govemor?s concurrence to get a site proposed to the that ?it can take another year or more for EPA to make a ?nal determination on whether to ?nalize a proposed NPL site? and potentially another decade for a new since it has been 1 1 years since Operable Unit 3 (OU3) was created at the federal M52 Site and an still is not ?nalized. 7 Also contrary to statement, EPA administratively extended the boundaries of the existing federal M52 Site to include the former East Washington WQARF Site (which currently constitutes OU2 and OU3 of the federal M52 Site) for the same reasons ADEQ has requested EPA in its April 24, 2018 letter to evaluate a further extension of those boundaries to include the WVBA WQARF Site. 8 position con?icts with 2013 determination that remediation measures should be taken to mitigate the uncontrolled releases of toxic VOCs into the air, as required at other EPA groundwater cleanups. See ADEQ Approval of RlD?s Modi?ed ERA, dated February 1, 2013 (Attachment A). 9 See Presentation provided to EPA on March 13, 2018. (Attachment B) Mr. Manzanilla March 5, 2019 Page 4 substantial danger to the public health or welfare, the President [11 i_s authorized to act, consistent with the national contingency plan, t_o provide for remedial action relating to such hazardous substance at any time or take any other response measure consistent with the national contingency plan which the President deems necessary to protect the public health or welfare or the environment. When the President determines that such action will be done properly and by the owner or operator of the facility the President may allow such person to carry out the action,lo conduct the remedial investigation, or conduct the feasibility study in accordance with section 9622 of this title.11 There is no dispute that hazardous substances have been released into the environment that may present an imminent and substantial danger to public health, welfare and the environment in the WVBA WQARF Site. As noted in April 24, 2018 letter to EPA, the 1994 Record of Decision for OU2 at the federal M52 Site noted that the ?contamination extends beyond the area and into the West Van Buren WQARF area, to approximately 75th Avenue.? The 2015 OU3 Remedial Investigation Report for the adjacent federal M52 Site, prepared by two parties identi?ed by EPA as PRPs, noted that the ?presumed distal end of the M52 VOC plume terminates within the WVB WQARF Site? and that ?a remedy for the WVB area will mitigate any potential exposure to contaminated groundwater downgradient of Additionally, ADEQ speci?cally has determined on multiple occasions, and in de?ance of the arguments to the contrary, that remedial action costs incurred in implementing the ADEQ-approved RID groundwater remedial action were ?reasonable, necessary and cost- effective [and] in response to a release or threat of release of a hazardous substance or pollutant '0 Given this clear statutory language, it is unclear why EPA states in its recent letter that rare instances, non- liable parties may also play a role in performing a portion of the response action with EPA oversight.? In fact, EPA has encouraged RID to ?continue working to ensure that remedial action is taken in a timely manner to protect resources for future use.? letter to RID, 2 (April 4, 2017). Additionally, statutory language is consistent with Arizona?s WQARF requirement that the ?well owner or water provider whose water use is being addressed may, in its sole discretion, elect to construct, operate, or construct and operate the water treatment component of the remedy or early response action which is designed to address its use.? AAC R18-16-4l 1.6. The Superfund Task Force recommendations also support RlD?s implementation of the ADEQ-approved RID remedial action to expedite cleanup using private funds. In the recommendations, recognizes that it should support, where appropriate, innovative approaches to promote third-party investment in cleanup? to ?utilize various federal and state authorities to conduct response actions that are consistent with CERCLA and the including the ?use of early response actions at Superfund sites.? Superfund Task Force Recommendations (2017) (See Background to Goal 3, Strategy 1 and Recommendations 13 and 12). Allowing RID to ?properly and carry out the action? is even more critical to ensure protection of public health and the environment given statement in its September 2018 letter that even if the WVBA WQARF Site becomes a NPL site in a couple of years, ?it has to compete with all of the other NPL sites for staff and funding resources.? 42 U.S.C. 9604(a). RID certainly quali?es as an ?owner or operator? (42 U.S.C. of its wells (which qualify as a ?facility? as that term is broadly de?ned in 42 U.S.C. 9601(9)) that have been contaminated by the groundwater contamination. '2 Final OU3 RI Report, 3 and 35. knowledge and inaction for more than 20 years to address the groundwater contamination migrating from the federal M52 Site that has contaminated the WVBA WQARF Site contradicts current claim in its September 2018 letter that has not had any involvement in the investigation and nature and extent of contamination at the West Van Buren WQARF Site.? Mr. Manzanilla March 5, 2019 Page 5 that presents an immediate and substantial endangerment to the public health or the Therefore, EPA has the clear and speci?c CERCLA statutory authority to ?provide for remedial action relating to such hazardous substance at any time or take any other response measure consistent with the national contingency plan.? In reviewing ongoing remedial actions between 2008 and 2015, a federal court determined that did as a matter of law substantially comply with the applicable requirements set forth in the Therefore, EPA has the clear CERCLA statutory authority to concur with the ADEQ-approved and NCP- compliant RID groundwater remedial action to expedite the groundwater cleanup and address the impacts of the contaminated groundwater that has migrated and continues to migrate from the federal M52 Site into the WVBA WQARF Site, where the toxic VOCs have contaminated water supply and are being directly released into the ambient air of the local community. Again, such action by EPA would be consistent with Superfund Task Force recommendations that EPA should ?utilize various federal and state authorities to conduct response actions that are consistent with CERCLA and the As noted in July 19, 2018 letter to EPA and contrary to the statements in September 2018 letter, EPA in fact has previously adopted the implementation of a long-term groundwater treatment response action prior to NPL listing with respect to the very same groundwater contamination plume. In September 1988, EPA concurred with an ADEQ- approved interim groundwater pump and treatment remedy at of the federal M52 Site, which was more than a year before the federal M52 Site was listed on the NPL in October 1989.16 The 1988 Record of Decision (ROD) ?serve[d] as EPA concurrence with the remedial action for the Motorola 52nd Street site, as approved by noting that approved this remedial action in conformance with: the Arizona Administrative Code; Arizona Revised Statute; the National Contingency Plan, to the extent practicable; and relevant state and federal requirements.? '3 See approvals pursuant to ARS 49-282.E.1 1. (Attachment C) '4 Roosevelt Irrigation Dist. v. Salt River Project Agric. Improvement and Power Dist, 210CV00290DAEBGM, 2017 WL 2712879, at *15 (D. Ariz. Mar. 15, 2017), reconsideration denied, 210CV00290DAEBGM, 2017 WL 2712881 (D. Ariz. May 12,2017). ?5 Superfund Task Force Recommendations (2017) (See Recommendation 12). ?6 Again, prior actions at of the federal M52 Site contradict statement in its September 2018 letter that does not select and oversee long-term remedial actions without the assurance that the Superfund will be available in the event the performing party is unable to meet the requirements of the remedy that EPA has selected in its Record of Decision.? EPA selected a long-term remedial action at of the federal M52 Site before the Site was placed on the NPL, which listing is necessary ?to determine what CERCLA-financed remedial action(s), if any, may be appropriate.? 83 Fed. Reg. 46,408, 46,408 (Sept. 13, 2018) (?Final Rule: National Priorities List?). current excuse to delay any CERCLA response action without assurance that the Superfund will be available is contradicted by Superfund Task Force recommendation to consider P3 funding (which is readily available to fully implement the ADEQ-approved, NCP-compliant RID groundwater response action) to expedite needed response actions, which was a speci?c charge of the former EPA Administrator. Superfund Task Force Recommendations (2017) (See Executive Summary). Mr. Manzanilla March 5, 2019 Page 6 EPA clearly has the CERCLA statutory authority and precedent to concur with ADEQ-approved and NCP-compliant remedial action to expedite an interim CERCLA response action to address the imminent and substantial endangerment to public health, welfare and the environment at the WVBA WQARF Site caused in substantial part by contamination migrating from the very same federal M52 Site. Given the presentation provided to EPA last year17 and the availability of substantiating documents on website,18 it is incredible that EPA would claim that has not selected a remedy,? when ADEQ, after years of agency review and public notice and comment, formally approved an Early Response Action (ERA) in 2010, a Modi?ed ERA in 2013 and the selected remedial action proposed in the RID Feasibility Study Report in 2015. approvals were issued under the Arizona WQARF remediation program that was modeled after CERCLA and is ?Arizona?s version of the federal ?superfund? program.?l9 A federal court also has held that, in addition to substantial compliance with the NCP, has demonstrated that it engaged in an extensive vetting process? and that ?the record indicates that RID gave substantial thought and attention to compliance with site-speci?c Arizona law,?20 which also establishes compliance with the ?applicable, relevant and appropriate requirements? of CERCLA.21 In June 2010, after having ?carefully analyzed technical and legal documents and correspondence contained in the Site ?le, including submittals by RID and other interested parties since September 2009, and comments received through the public participation process? and having ?analyzed the [Early Response Action] Work Plan to determine compliance with applicable State statutes and rules,? ADEQ formally approved the RID ERA because has a unique opportunity to increase the removal of contamination from the aquifer via its wells? and ?[w]ithout treatment, these contaminants will continue to degrade the quality of the aquifer within the Site.?22 Again in 2013, ADEQ formally approved Modi?ed ERA and objectives to protect supply of water and addressing current and future risks to public health, welfare, and the environment Additionally, formal approval of the Modi?ed ERA required implementation of measures? to limit exposures from the ?signi?cant volatilization and transfer of contaminants, from water into the air, [that] is occurring and ongoing.?24 Finally, in 2015, ADEQ ?determined that the FS Report [and proposed remedial action] meets the requirements of Arizona Revised Statutes 49- 287.03 and Arizona Administrative Code R18-16-407 and therefore ADEQ is approving FS Report.?25 '7 See RlD?s presentation to EPA on March 13, 2018. (Attachment B) ?8 See online repository at Imps: 'lcgacvazdequox':environ '9 AAR Volume 8 Issue #13 at page 1492. 20 Roosevelt Irrigation Dist. v. Salt River Project A gric. Improvement and Power Dist, 210CV00290DAEBGM, 2017 WL 2712879, at *13-14 (D. Ariz. Mar. 15, 2017), reconsideration denied, 210CV00290DAEBGM, 2017 WL 2712881 (D. Ariz. May 12, 2017). 2? 42 U.S.C. 9621. 22 See ADEQ letter to RID (June 24, 2010). (Attachment D) 23 See ADEQ letter to RID (February 1, 2013). (Attachment A) 24 Id. 25 See ADEQ letter to RID (April 13, 2015). (Attachment E) GK Mr. Manzanilla March 5, 2019 Page 7 In 2014 and 2017, ADEQ also independently selected Modi?ed ERA as the ?most prudent course of [remedial] action? for the VOC-contaminated groundwater at the WVBA WQARF Site when it internally evaluated and calculated the estimated total remedial action costs (over the next 30 years) at each groundwater contamination site on the WQARF Registry list.26 Given formal approvals under the WQARF program and a federal court?s determination of NCP compliance of remedial actions, EPA has the clear CERCLA statutory authority and precedent at of the federal M52 Site to concur with the ADEQ-approved and NCP-compliant RID groundwater remedial action as an interim CERCLA response action to expedite addressing the imminent and substantial endangerment to public health, welfare and the environment at the WVBA WQARF Site. As noted in July 19, 2018 letter, and ignored by EPA in its September 2018 response, rarely, if ever, has EPA been presented with a groundwater remedial action already approved and determined by a state and federal court to comply with applicable state law, to substantially comply with the applicable federal NCP, to have been subject to substantial public participation and comment and that meets all applicable state and federal remedial action standards and requirements at no cost to the federal Superfund. There is no ustifiable Reason for EPA to Delay an Interim CERCLA Response Action to Address the Imminent and Substantial Danger Caused in Substantial Part by Groundwater Contamination Migrating from the Federal M52 NPL Site Simply so EPA can Repeat the NCP Process It is remarkable that September 2018 letter completely ignores and fails to consider expeditiously addressing the WVBA WQARF Site pursuant to its authority under CERCLA Section 104. Such expeditious EPA action could include administratively extending the current boundaries of the existing federal M52 Site to include most, if not all, of the WVBA WQARF Site for all the reasons described in April 24, 2018 letter to EPA, similar to prior extension of the federal M52 Site boundaries to include the East Washington WQARF Site that currently constitutes OU2 and OU3 of the federal M52 Site. Administratively extending the current boundaries of the federal M52 Site to include the groundwater contamination that has migrated from the federal M52 Site into the WVBA WQARF Site, as ADEQ has requested EPA to evaluate pursuant to applicable CERCLA policies and procedures, would negate the delay associated with separately listing the WVBA WQARF Site on the NPL as indicated in letter. Such expeditious EPA action also could include concurring with the ADEQ-approved and NCP-compliant RID remedial action as an interim CERCLA response action at the WVBA WQARF Site, similar to prior concurrence with an ADEQ-approved remedial action as an interim CERCLA response action at of the federal M52 Site. Such prior concurrence by 2" ADEQ, Evaluation of Potential Future Costs at Arizona Superfund Sites, 2, App. 8-14 (January 2014), Update (2017). Mr. Manzanilla March 5, 2019 Page 8 EPA with an ADEQ-approved remedial action as an interim CERCLA response action at of the federal M52 Site was clearly consistent with CERCLA statutory authority under Section 104. Instead of exercising the same CERCLA administrative and/or statutory response action authority for the WVBA WQARF Site, EPA now simply claims that it ?is not in a position to select and oversee implementation of a remedy at this juncture? and that EPA does not ?oversee remedial activities developed under state programs where EPA was not involved in the investigation, evaluation of remedial alternatives, and selection of the response action.? There is no justi?able reason why RID and the WVBA community should be subjected to direct and ongoing exposures to toxic VOCs that have migrated and continue to migrate from the federal M52 Site for another decade simply to allow EPA an opportunity to duplicate the WQARF process, which a federal court held to be substantially compliant with the federal NCP. As clearly stated in CERCLA Section 104, the only requirement is that EPA ?act consistent with the [federal In fact, current position con?icts with own guidance that notes provisions ?re?ect Congress' judgment that CERCLA response actions should not be delayed by time-consuming and duplicative administrative requirements.?28 Moreover, September 2018 letter contradicts not only prior CERCLA administrative action in extending the boundaries of the federal M52 Site to include contamination migrating into the East Washington WQARF Site, as well as prior concurrence with an ADEQ-approved remedial action as an interim CERCLA response action at of the federal M52 Site, but also the Superfund Task Force recommendations and EPA Directives for addressing large and/or complex contamination sites. In fact, EPA ?[r]egions are encouraged to consider greater use of early and/or interim actions to address immediate risks.?29 The Directives reiterate stated bias for initiating responses as soon as the information makes it possible to do so and recommends the use of . .. early actions to quickly address high risk areas? and ?the ?phased approach? strategy for addressing contaminated groundwater integration, site characterization, early action, and remedy selection.?30 As evident by April 24, 2018 letter to EPA, EPA has suf?cient information to establish remedial action objectives (RAOs) for an interim CERCLA response action for the WVBA WQARF Site as EPA already has established RAOs to address the groundwater contamination in OU3 of the adjacent, upgradient federal M52 Site in order to protect public health, welfare and the environment.31 These RAOs for OU3 include: RAO 1 Prevent exposure to groundwater containing COCs above Maximum Contaminant Levels to ensure protection of human health and the environment. 27 42 U.S.C. 9604(a)(1). 28 EPA, Permits and Permit ?Equivalency? Processes for CERCLA On-site Response Actions, 4 (February 1992). 29 EPA, Superfund Task Force Recommendations, 2 (July 2017). 30 Id. 3' EPA Comments on 11/30/26 OU3 Final FSTM (February 3, 2017). Mr. Manzanilla March 5, 2019 Page 9 RAO 2 Capture the migration of groundwater containing COCs above Maximum Contaminant Levels, past a location west of Avenue within the WVBA WQARF Site].32 RAO 3 Restore groundwater to bene?cial use within a reasonable timeframe. Bene?cial use is potential future use as potable water.33 According to ?Groundwater Remedy Completion Strategy,? the ?[e]stablishment of RAOs [remedial action objectives] in the Superfund decision document generally provides an important foundation for development of a site-speci?c strategy.?34 In addition to RAOs, ?proposed and ?nal decision documents should include ?cleanup levels for each medium contaminant-speci?c remediation goals), the basis for cleanup levels, and risk at cleanup levels? since ?[g]roundwater cleanup levels are established based on promulgated standards (eg, federal or state MCLs or non-zero or other standards to be found in EPA in its September 2018 letter is now claiming it cannot timely address the groundwater contamination that EPA has known for over 20 years has migrated and continues to migrate from OU3 into the WVBA WQARF Site, where it has and continues to be contaminating water supply and is being released into the ambient air and directly exposing the local community to toxic VOCs, in violation of its own RAOs for the very contamination to which the RAOs apply. It is important to note that RAOs for OU3 of the federal M52 Site are substantially the same as the mandatory WQARF remedial action criteria in ARS 49- 282.06.A. -2, which are achieved by the ADEQ-approved and NCP-compliant RID remedial action for the WVBA WQARF Site: 0 l. Assure the protection of public health and welfare and the environment. 0 2. To the extent practicable, provide for the control, management or cleanup of the hazardous substances in order to allow the maximum bene?cial use of the waters of the state. Despite formal approvals of the RID remedial action and a federal court con?rming the RID remedial actions substantially comply with CERCLA ARARs and the NCP, current position is simply one of unjusti?ed delay. As discussed in more detail below, casual dismissal and refusal in its September 2018 letter to discuss or pursue the ADEQ-approved RID remedial action as an interim 32 This RAO is another example of EPA con?rming that groundwater contamination migrating from the federal M52 Site has contaminated the WVBA WQARF Site given that 7Lh Avenue is the arbitrary boundary line between the upgradient federal M52 Site and the downgradient WVBA WQARF Site. 33 EPA Comments on 11/30/16 OU3 Final STM (February 3, 2017) 3? EPA, Groundwater Remedy Completion Strategy (May 2014). The purpose of the 2014 strategy document ?is to help focus resources on the information and decisions needed to effectively complete groundwater remedies and to ensure that these remedies protect human health and the environment.? The strategy document ?presents a recommended ?groundwater remedy completion strategy? for evaluating Superfund groundwater remedy performance and making decisions to help facilitate achievement of RAOs [remedial action objectives] and associated cleanup levels.? 1d. at 3. Mr. Manzanilla March 5, 2019 Page 10 CERCLA response action or to administratively extend the boundaries of the federal M52 Site in order to address serious public health and environmental issues, as being a matter that is simply ?a disagreement about the appropriate end use of the water,? is ludicrous. EPA is fully aware that the PRPs do not want RID to implement a remedial action that complies with RAOs for OU3 of the federal M52 Site or the mandatory ?remedial action criteria? of the Arizona WQARF program35 or the ADEQ?established ?remedial objectives? for the WVBA WQARF Site.36 For all the aforementioned reasons, EPA should not delay implementation of an ADEQ-approved and NCP-compliant remedial action as an interim CERCLA response action when the remedial action goals and objectives under applicable federal and Arizona laws can be readily achieved to address contamination migrating from the federal M52 Site into the WVBA WQARF Site to protect public health, welfare and the environment. To do otherwise, raises the specter that EPA is not ful?lling its CERCLA responsibilities to protect public health and the environment in part due to the in?uence of other federal agencies and departments which have been identi?ed as PRPs responsible for the contamination and which are opposing any response action in the WVBA WQARF Site. CERCLA Does Not Address Water Rights or Mandate the End Use of Water RID fully agrees with position stated in its September 2018 letter that does not address water rights or mandate the end use of water,? which is why it makes no sense that EPA would raise issues relating to ?water rights? and ?water end use? as apparent justi?cation for delaying any interim CERCLA response action to expeditiously address the known contamination that has migrated and continues to migrate from the federal M52 Site into the WVBA WQARF Site to adversely impact public health and the environment. It is remarkable that in its letter EPA is repeating arguments of the PRPs, including federal agencies and departments, who are on record in opposing compliance with federal and state remediation and public health laws and the EPA and ADEQ-established remedial action objectives, even though these same PRP arguments have been rejected by ADEQ and a federal court and would expose the local community to releases of toxic VOCs. Water Rights EPA is fully aware that the implementation of the GUI interim groundwater extraction remedy at the federal M52 Site is not subject to an independent water right, because ?a Poor Quality Groundwater Withdrawal Permit was issued by the Arizona Department of Water Resources for the withdrawal and disposal of groundwater.?37 In fact, the 1988 ROD, which acted as concurrence with the ADEQ-approved remedial action as interim remedy for prior to NFL listing, includes response that a would be necessary to implement the approved remedial action ?since Motorola does not have any water rights.?38 As a matter of Arizona law and customary practice, are Arizona 35 See A.R.S. 49-28206 3" ADEQ, Final Remedial Objectives Report (2012). 37 2011 Sitewide Five-Year Review Report, Motorola 52nd Street Superfund Site, Phoenix, Arizona, (2011). 38 1988 ROD, Att. 3, Response to Question 54. Mr. Manzanilla March 5, 2019 Page 11 permits ?usually issued [by in conjunction with CERCLA, WQARF, or leaking UST sites for pump and treat operations to allow the withdrawal of groundwater?39 to implement govemment-approved groundwater response actions. Despite Arizona law speci?cally requiring that ADWR expedite the processing and issuance of permits [such as a to facilitate the prompt conduct of approved remedial actions,?40 RID has been unlawfully denied a that is and has been routinely and consistently issued as a matter of Arizona law and practice by ADWR for the past 30 years due to the apparent political in?uence and improper interference by prominent PRPs. For example, ADWR has issued a more than a year before ADEQ even approved a groundwater pump and treat response action that treats VOC-contaminated groundwater to meet applicable drinking water aquifer water quality standards.41 If ADWR had issued a to implement the ADEQ-approved and NCP-compliant RID groundwater remedial action, as speci?cally required by Arizona law and consistent with virtually every other groundwater pump and treat remedial action in Arizona over the last 30 years, there would be no need for involvement in the WVBA WQARF Site since RID has secured private funds through a public- private partnership (P3) structure to expedite full implementation of the ADEQ-approved and NCP-compliant RID remedial action. Contrary to this Arizona statutory obligation to ?expedite the processing and issuance? of a current Director unlawfully refuses to issue a to implement the ADEQ-approved and NCP-compliant RID groundwater remedial action.42 As discussed at our March 13, 2018 meeting, such actions are not shocking given that 39 ADWR, Third Management Plan for Phoenix Active Management Area, 7-10 (1999). Even parties that have independent water rights utilize to implement approved pump and treat remedial actions. In fact, the WVBA Working Group, which includes the City of Phoenix and SRP which both have independent water rights, informed ADEQ that accordance with A.R.S. ?45-516, a Poor Quality Groundwater Withdrawal Permit would be required by ADWR to pump a groundwater extraction well within the Phoenix Active Management Area.? In 2002, ADWR issued SRP a to remediate groundwater under an ERA to prevent the contaminated groundwater from impacting a production well. 40 A.R.S. ADWR issued a effective July 15, 2010 ?in anticipation ofthe early response action (ERA) at the site and the need to pump groundwater from extraction wells and developing the groundwater treatment system.? Clear Creek Assoc, Draft Remedial Investigation Report, 56th Street and Earl] Drive WQARF Site (2018). The was issued nearly a year before Freescale entered into an agreement with ADEQ in 201 to ?design and implement an legacyazdeq.govcnviron Street liarll Drivehtml 42 Initially, the current ADWR Director, who previously objected to approval of RlD?s remedial action on behalf of a PRP, and ADWR staff opposed issuing a based on conditions that violate Arizona law and were inconsistent with 30-year practice of routinely issuing to facilitate govemment-approved remedial actions. See January 6, 2017 letter to ADWR regarding concern over new and unlawful permit conditions. (Attachment F) Next, the current ADWR Director tried to justify not issuing a by claiming in a public meeting that a was unnecessary because of existing and independent water right that enables RID to implement the ADEQ-approved and NCP-compliant RID groundwater remedial action. At the same public meeting, the current ADWR Director failed to disclose that he had taken unlawful actions to revoke prior ADWR determinations con?rming the same RID existing water right. As discussed during our March 13, 2018 meeting, the former ADWR Director unlawfully revoked a prior 2013 ADWR written determination that the duration of certain private contracts did not adversely impact water right to withdraw contaminated groundwater and transport remediated water to the West Valley for assured water supply purposes. See 2013 ADWR determination (Attachment G) Although the current ADWR Director unlawfully revoked the prior 2013 determination soon after being appointed, ADWR staff drafted clari?cation letters that further supported the prior 2013 ADWR written GK Mr. Manzanilla March 5, 2019 Page 12 the current ADWR Director was the former Water Manager for the City of Phoenix, which is a prominent PRP in the WVBA WQARF Site, and the current ADWR Director signed letters of opposition to approval of the RID Early Response Action.43 However, the prompt conduct of the ADEQ-approved and NCP-compliant RID groundwater remedial action for the WVBA WQARF Site, as mandated by Arizona law44 and authorized under CERCLA Section 104, should not be unlawfully delayed by withholding the issuance of a State permit from ADWR due to political in?uence. In fact, CERCLA speci?cally provides that Federal, State, or local permit shall be required for the portion of any removal or remedial action conducted entirely onsite, where such remedial action is selected and carried out in compliance with this section.?45 The NCP interprets "on-site" as "the areal extent of contamination and all suitable areas in very close proximity to the contamination necessary for implementation of the response action,? and EPA policy further de?nes "on-site" to ?include the soil and the groundwater plume that are to be remediated.? 4" Additionally, EPA policy identi?es that the ?response actions covered by CERCLA section 121(e)(1) include those conducted p_ursuant to CERCLA sections 104, 106, 120, 121, and 122 [and] also include r?ponse actions implemented by a State or political subdivision operating pursuant to a contract or cooperative agreement executed pursuant to As a result, RID has simply requested that EPA act in accordance with its existing CERCLA statutory authority, which EPA has used nationally and at the adjacent federal M52 Site, to address the groundwater contamination that has migrated and continues to migrate from the federal M52 Site into the WVBA WQARF Site, where it is contaminating water supply and being directly released into the ambient air and exposing the local community to toxic VOCs. Any of the various CERCLA options presented by RID to EPA over the last year, including concurrence with the ADEQ-approved and NCP-compliant RID groundwater remedial action consistent with prior concurrence with an ADEQ-approved remedial action as an interim CERCLA response action at of the federal M52 Site prior to NPL listing, would trigger exemption from obtaining a from the biased and determination. See draft clari?cation letter. (Attachment H) However, these clari?cation letters were never ?nalized because current Director unlawfully gave veto authority to a PRP. 43 City of Phoenix letters, dated December 23, 2009 and April 21, 2010. 4? A.R.S. 45 42 U.S.C 9621.e.1. 4" EPA, Permits and Permit ?Equivalency? Processes for CERCLA On-site Response Actions, 2 (February 1992). 47 Id. As a political subdivision, RID raised the ?cooperative agreement? issue at the March 13, 2018 meeting as a potential method of implementing authority under CERCLA Section 104. In fact, during that meeting, EPA acknowledged that there were other administrative options to allow interim response actions while EPA implements the NPL process, if NPL listing were necessary. As a result, RID identi?ed the process at the Anaconda site as another potential option to expedite a response action and avoid additional delay. To date, EPA has failed to identify any potential options for expediting an interim CERCLA response action, as promised on March 13, 2018. Instead, EPA simply suggests that the process to evaluate actions at the WVBA Site is complex and will take time to complete, possibly requiring RID and the local WVBA community to wait another decade to address the ongoing contamination of RlD?s water supply and the direct exposure of the local community to releases of toxic VOCs attributable in substantial part to the groundwater contamination migrating from the federal M52 Site into the WVBA WQARF Site. Mr. Manzanilla March 5, 2019 Page 13 con?icted current ADWR Director and the PRP political in?uence on the State.48 The federal statutory exemption from the issuance of a would provide the certainty to enable the P3 funding to expeditiously implement, operate and maintain the ADEQ-approved and NCP- compliant RID remedial action until the applicable aquifer water quality standards and remedial objectives are achieved. policy that implementing remedial actions, EPA has consistently taken the position that the acquisition of permits is not required for on-site remedial actions? is consistent with provisions, which ?re?ect Congress? judgment that CERCLA response actions should not be delayed by time-consuming and duplicative administrative requirements.?49 If EPA would utilize its broad existing CERCLA statutory authority and follow its prior practice at of the federal M52 Site of concurring with ADEQ- approved and NCP-compliant remedial actions (as determined by a federal court in case), the P3 funding would fully implement a NCP-compliant remedial action within a year to address the largest groundwater contaminant plume in Arizona, compared to position in its September 2018 letter that RID and the WVBA community need to wait a long and indeterminant time, possibly another decade, for remediation and protection of public health and the environment. Additionally, concurrence with the ADEQ-approved and NCP- compliant RID groundwater remedial action as an interim CERCLA response action50 pursuant to CERCLA statutory authority will ensure that will continue to ensure its activities do not exacerbate pathways for contaminant exposure?? as requested by EPA in its September 2018 letter to RID. However, instead of responding to requests to meet with EPA leadership to expedite a CERCLA response action under several potential regulatory and administrative options consistent with the authority and purposes of CERCLA and the Superfund Task Force recommendations, September 2018 letter strangely suggests that RID has asked EPA to ?have a role in the ongoing water rights dispute.?52 As expressly noted by EPA in its own letter 43 Consistent with EPA guidance, the reporting requirements of a would still be required for implementing the ADEQ?approved and NCP-compliant RID groundwater remedial action. 49 EPA, Permits and Permit ?Equivalency? Processes for CERCLA On-site Response Actions, 4 (February 1992). 50 As discussed in San Francisco during the March 13, 2018 meeting, RID acknowledges that after the interim response action is operational, additional efforts to optimize the response action may be necessary. 5? As previously discussed with EPA, RID is in the process of replacing a water supply well that already has an installed wellhead treatment system to remove toxic VOCs. However, RID would prefer to discuss certain options with EPA that would optimize remediation of the contaminated aquifer consistent with applicable Arizona law and own remedial action objectives for OU3 of the federal M52 Site. 52 EPA references a letter received from the City of Phoenix claiming that EPA should not act as authorized by CERCLA to implement a NCP-compliant groundwater remedial action if it ?would take water out of the City of Phoenix and SRP service area.? It is ridiculous that EPA gives any credence to such a position without at least some discussion with RID, especially given that the City of Phoenix and SRP (both PRPs in the WVBA WQARF Site) obtained approval from ADEQ to install new groundwater remediation extraction wells within the WVBA WQARF Site (but of course failed to follow through), which is within the City of Phoenix and SRP service area, that would have been pumped, treated to aquifer water quality standards prior to discharge to the RID system and transported outside the City of Phoenix and SRP service area, in violation of precisely what the City of Phoenix and SRP have objected to EPA about RID. In fact, the same concept was proposed as the pump and treat alternative in the 2015 Report for OU3 of the federal M52 Site, prepared for EPA by two PRPs. Yet despite these facts, EPA inexplicably suggests in its September 2018 letter that the City of Phoenix letter is relevant despite claim that does not address water rights or mandate the end use of water.? Mr. Manzanilla March 5, 2019 Page 14 and exempli?ed by actions at of the federal M52 Site, water rights are irrelevant to implementing a response action consistent with the federal NCP to meet applicable water quality standards, achieve RAOs, meet ARARs and otherwise protect public health and the environment. The irrelevance of state water rights or state permits g. a to implement a CERCLA interim response action is further exempli?ed by the groundwater extraction associated with the ongoing interim response action at OU2 of the federal M52 Site, where none of the major documents discuss whether there is a water right or or CERCLA exemption as the basis for the CERCLA groundwater pump and treat interim response action. Such state water rights and/or permit requirements are expressly exempt under CERCLA for the express purpose of avoiding delay in implementing needed response actions to protect public health and the environment.53 apparent adoption of the PRP arguments, which violate federal and state law and have been rejected by ADEQ and a federal court, would result in little to no remediation of contaminated groundwater supplies ever being conducted unless a party with clear independent water rights54 would implement the groundwater pump and treat remediation; thus, granting polluters a license to pollute in violation of applicable federal and Arizona laws. End Use of Treated Water Despite EPA rightfully claiming that does not mandate the end use of water,? September 2018 letter claims that a dispute raised by PRPs over the potential end use of the groundwater justi?es further delay by EPA on moving forward with implementing NCP-compliant remedial action. This end use dispute already has been argued many times by the PRPs before ADEQ and a federal court, and each time the arguments have been rejected. Thus, it is surprising again that without conferring with RID, EPA would even consider the irrelevant end use issue to the detriment of the contaminated aquifer and the public health of the local community. In response to numerous PRP comments on FS Report years ago raising the groundwater end use issue, RID strongly objected, as violative of multiple Arizona laws and WQARF rules to the fundamental proposition incorporated within all the comments that the commenters are able to indiscriminately and without authority pollute Arizona?s drinking water protected use aquifers and water supply wells and have no liability for violating the applicable state water quality standards and no remedial obligation to control, manage or cleanup their contamination, unless and until only certain bene?cial uses are made of the contaminated resource.55 53 42 U.S.C. ?9621e.1. 5? It is telling that a PRP identi?ed by EPA for the groundwater contamination has raised the concern as to independent water right even though the unbiased former ADWR Director made such a determination in 2013 and the same PRP has made a declaration of independent water right before ADWR and state courts. See ?rst few pages of declaration of independent water rights. (Attachment 1) 55 RID Response to Comments on RID FS Report, 1 (February 6, 2015). Mr. Manzanilla March 5, 2019 Page 15 RID noted that neither CERCLA nor WQARF grant an unfettered license to pollute Arizona?s aquifers and water supply wells without legal or regulatory consequence if no or only certain bene?cial uses were currently being made of the polluted resource. This shameful and unlawful position shared by all of the commenters is epitomized by the false statement in the AZ Chamber Comments that the WGFS Report ?conclusively demonstrates that treatment is NOT now needed and can be avoided entirely.?56 Notwithstanding the same end use argument, ADEQ rejected it and approved the proposed remedial action in FS Report.57 Furthermore, the PRPs speak out of both sides of their mouths on the end use issue. Despite the argument that water supply wells do not need to be addressed now to be ?t for a_11 reasonably foreseeable end uses over the next 100 years, including as a municipal water supply, as required by applicable WQARF statutes and rules and as established by remedial objectives for the WVBA WQARF Site,58 the PRPs declared to ADEQ in their own FS Report that ?Lflor each end use scenario, extracted groundwater would need to be treated to meet AWQS for WVBA COCs prior to reinjection or discharge to an end user.?59 In fact, the PRPs speci?cally admit that ?extracted groundwater would need to be treated to AWOS for WVBA COCs prior to discharge to the RID system?60 for its current irrigation use. This necessity to treat extracted contaminated groundwater to AWQS at the wellhead is required by various Arizona laws and constitutes an ARAR under CERCLA. ADEQ informed EPA in its letter, dated April 24, 2018, that an ?important factor is that all aquifers in Arizona are classi?ed as ?drinking water protected use?, pursuant to Arizona Revised Statutes Additionally, Arizona requires that a ?remedial action shall [t]o the extent practicable, provide for the control, management or cleanup of the hazardous substances in order to allow the maximum bene?cial use of the waters of the state?62 and ?address, at a minimum, any well that at the time of selection of the remedial action would now or in the reasonably foreseeable 5" Id. In its response, noted a purpose of the letter was to try and ?avoid civil and criminal violations of applicable water quality standards as proposed by the WGFS Report and in the comments of its supporters.? See A.R.S. 49?262 and 49-263. 57 See April 13, 2015 approval of RlD?s FS Report. (Attachment E) 58 A.R.S. 49-282.06.B.4.b.; A.A.C. A.A.C. ADEQ Final Remedial Objectives Report for WVBA WQARF Site (2012). 59 Working Group Feasibility Study Report (WGFS Report), 25 (2014). Id. at 28. Similarly, the PRPs at OU3 of the federal M52 Site determined that ?[s]tatewide aquifer protection standards established for drinking water protective usage [is an] ARAR for setting water quality objectives for groundwater as part of the ?nal remedy.? OU3 Report, Table C-3 (2015). 6? ADEQ Letter to EPA (April 24, 2018). ARS The PRPs recognized that a ?critical component of groundwater extraction is ?nding a bene?cial end use for the treated groundwater that allows for the maximum bene?cial use of the waters of the state.? WGFS Report, 26. Similarly, the PRPs at OU3 of the federal M52 Site determined that an for any ?nal remedy must consider maximum bene?cial use of the waters of the state.? OU3 Report, Table C-3 (2015). GK Mr. Manzanilla March 5, 2019 Page 16 future produce water that would not be ?t for its current or reasonably foreseeable [over at least the next 100 years] end uses without treatment due to the release of hazardous substances.?63 Unlike apparent acceptance of the arguments, ADEQ after having ?carefully analyzed technical and legal documents and correspondence contained in the Site ?le, including submittals by RID and other interested parties since September 2009, and comments received through the public participation process? and having ?analyzed the [Early Response Action] Work Plan to determine compliance with applicable State statutes and rules,? ADEQ approved the RID ERA because has a unique opportunity to increase the removal of contamination from the aquifer via its wells? and ?[w]ithout treatment, these contaminants will continue to degrade the quality of the aquifer within the Site.? Similarly, the federal court rejected the arguments in holding that the ?record indicates that RID gave substantial thought and attention to compliance with site-speci?c Arizona law? and that the PRPs ?have not presented evidence of the existence of any other ?signi?cantlv more cost effective permanent remedial altemative.?? In fact, as presented to ADEQ and EPA, the vast majority of groundwater cleanups in Arizona treat contaminated groundwater to applicable Arizona AWQSs or federal MCLs even if currently used for an irrigation end use."4 Conclusion As noted in July 19, 2018 letter to EPA, it is unreasonable that EPA continues to request, as EPA did again in its September 2018 letter, that should continue to ensure its activities do not exacerbate pathways for contaminant exposure,? while refusing to support efforts to expedite full implementation of the ADEQ-approved and NCP-compliant RID remedial action with private funds. If EPA would take any of the available options authorized under CERCLA or consistent with response actions at of the federal M52 Site, RID has secured private funds to expedite full implementation of the ADEQ-approved and NCP- compliant RID remedial action in order to provide prompt and necessary protection of public health, welfare and the environment. These private funds, consistent with the purposes of CERCLA and the Superfund Task Force recommendations, will expedite efforts to address what a federal court declared is ?admittedly a very serious problem? due to the ?plumes of very deadly carcinogenic chemicals ?oating around underneath the city of Phoenix, Arizona?"5 that are attributable in signi?cant part to releases of toxic VOCS by PRPs identi?ed by EPA in the federal M52 Site that have contaminated RlD?s wells and water supply and are being directly released into the ambient air of the local community in the adjacent, downgradient WVBA WQARF Site. The local community within the WVBA should not be exposed to the continued migration and volatilization of toxic VOCs from the federal M52 Site simply because EPA has decided either not to protect the local WVBA community to the same degree as the local communities at the federal M52 Site and the other CERCLA sites in Arizona or is simply A.R.S. ?49-282.06.B.4.b.; A.A.C. See summary of cleanup sites in Arizona included in ADEQ-approved RID FS Report and presented to EPA at March 13, 2018 meeting. (Attachment J) Reporter '5 Transcript of Proceedings (Motion Hearing) at page 38, lines 14-21, RID v. SRP, No. CV-10-0920 (D. Ariz. Feb. 28, 2017). Mr. Manzanilla March 5, 2019 Page 17 unwilling to provide the needed protection to public health and the environment as required by federal law. Unfortunately, EPA advances in its September 2018 letter the unjustifiable and government-rejected positions of PRPs to continue to delay addressing this admittedly very serious problem. It is unclear why EPA is refusing to act as authorized by statute, rule, policy and its own historical practices under CERCLA especially when EPA funds would not be needed at the WVBA WQARF Site to address the largest groundwater contaminant plume in the State of Arizona. Rarely, if ever, has EPA been presented with a groundwater remedial action already approved and determined by a state and federal court to comply with applicable state law, to substantially comply with the applicable federal NCP, to have been subject to substantial public participation and comment and that meets all applicable state and federal remedial action criteria at no cost to the federal Superfund. We again ask for meetings with EPA leadership to discuss the contents of September 2018 letter, legal authorities under CERCLA and rationale for not supporting a prompt interim CERCLA response action at the WVBA WQARF Site with the ADEQ-approved and NCP-compliant RID groundwater remedial action to address the direct public health and environmental risks associated with the toxic VOCs that have migrated and continue to migrate from the federal M52 Site into the WVBA WQARF Site in Phoenix, Arizona. Very truly yours, NNEDY, P.A. By: vid P. Kim 1, DPK/sgl cc: Andrew Wheeler, EPA Administrator Henry Darwin, EPA COO Steven Cook, EPA Superfund Task Force Michael Stoker, EPA Region 9 Administrator Deborah Jordan, EPA Region 9 Deputy Administrator Alexis Strauss, EPA Region 9 Daniel Scarpinato, Arizona Govemor?s Chief of Staff Misael Cabrera, ADEQ Director Tom Buschatzke, ADWR Director GK Attachment A ARIZONA DEPARTMENT OF ENVIRONMENTAL QUALITY 1110 West Washington Street Phoenix, Arizona 85007 (602) 771-2300 - Janice K. Brewer Henry R. Darwin Governor Director February 1, 2013 Mr. Donovan L. Neese Superintendent Roosevelt Irrigation District 103 West Baseline Road Buckeye, Arizona 85326 RE: Conditional Approval of Modified Early Response Action Work Plan West Van Buren WQARF Registry Site Phoenix, Arizona Dear Mr. Neese: The Arizona Department of Environmental Quality (ADEQ) Remedial Projects Unit (RPS) has completed its review of the Modi?ed Early Response Action Work Plan Modified ERA Work Plan), West Van Buren WQARF Registry Site, Phoenix, Arizona, dated October 2012, and prepared by Synergy Environmental, LLC on behalf of the Roosevelt Irrigation District (RID). The Modified ERA Work Plan serves as a modi?cation to original Early Response Action (ERA) Work Plan dated February 3, 2010. ADEQ has reviewed the Modified ERA Work Plan only as it pertains to the objectives outlined in the Modified ERA Work Plan. Specifically, objective to protect supply of water and addressing current and future risks to public health, welfare, and the environment [Arizona Administrative Code (AAC) Rl8-l6- Based on our analysis of available information, ADEQ conditionally approves, the October 20l2 Modified ERA Work Plan. This approval supersedes approval of the previous ERA Work Plan dated February 3, 2010. The conditional approval is contingent upon the following: 1. RID must maintain historical pumping rates to ensure that there are no adverse impacts to groundwater quality and levels within the West Van Buren Area. Water levels must be maintained at or near current levels taking into acc0unt natural variations. 2. As stated in the Public Health Exposure Assessment and Mitigation Summary Report, prepared by Synergy Environmental, LLC and dated September 16, 2011, ?there is not an imminent (acute) risk to public from the contamination being released from the RID Southern Regional Office 400 West Congress Street - Suite 433 - Tucson. AZ 8570] (520) 628~6733 Printed on recycled paper Mr. Donovan L. Neese February 1, 2013 Page 2 of 2 water systems.? However, long-term effects are uncertain and data also shows that ?significant volatilization and transfer of contaminants, from the water into the air, is occurring and is ongoing.? Based on these statements, RID intends to implement measures to limit these exposures. conditional approval is contingent on RlD?s implementation of these measures. ADEQ analyzed the Modified ERA Work Plan to determine compliance with applicable State statutes and rules. ADEQ has not reviewed whether the Modified ERA Work Plan is consistent with any federal laws or regulations. ADEQ also did not review information contained in the Modified ERA Work Plan not relevant to the stated objectives. This includes, but is not limited to, the ancillary benefits from implementing the RID Modified ERA Work Plan. ADEQ agrees that these can be considered during the West Van Buren WQARF Feasibility Study. conditional approval also does not include an analysis or approval of the transport or ?nal diSposition and use of the treated water. As stated, the Modi?ed ERA Work Plan incorporates all relevant and applicable information from the original ERA Work Plan I look forward to working with you and other parties as you begin this process. Please contact me at 602?771-4567 or llmgaQazdquov should you have any questions. Sincerely, WXWW Laura L. Malone, Director Waste Programs Division Arizona Department of Environmental Quality cc: Henry Darwin, ADEQ Tina LePage, ADEQ Andre? Chiaradia, ADEQ Kevin Snyder, ADEQ Attachment Roosevelt Irrigation District Groundwater Remediation Project inthe West Van Buren Area WQARF Site Meeting with Environmental Protection Agency March 13; 2018 AGENDA Purpose of meeting History of WVBA and EPA Involvement Site Demographics Regional groundwater contaminant plume Timeline of RID remedial actions RID Early Response Action Modified ERA RID Feasibility Study and Selected Groundwater Remedy NCP Compliance of RlD?s Remedial Actions Next Steps Cooperative Agreement Future Optimization, if appropriate PURPOSE OF MEETING Brief EPA on the RID Remediation Project: Regional Groundwater Remedy in the West Van Buren Area WQARF Site Voluntary P3 Funded and Performed ADEQ-approved and NCP-compliant Addressing the Largest Groundwater VOC Contaminant Plume in Arizona (one of the largest in the country) Geographic extension of the groundwater contamination migrating from the Motorola Street Superfund Site Seeking EPA administrative help NOT MONEY PURPOSE OF MEETING 0 RID Project should be the poster-child example of new Superfund Initiative Administrator Pruitt commissioned the Superfund Task Force on May 22, 2017 to ?provide recommendations on an expedited timeframe on how the agency can restructure the cleanup process, realign incentives of all involved parties to promote expeditious remediation, reduce the burden on cooperating parties. incentivize parties to remediate sites, encourage private investment in cleanups and sites and promote the revitalization of properties across the countrv.? - EPA administrative help needed because of the: On-going violations of applicable groundwater cleanup and water quality end use standards, On-going obstruction and delay of needed remediation by PRPs, and On-going social and environmental injustice for exposure of the low income, minority local community to uncontrolled releases of toxic substances WVBA WQARF Site Timeline Early History (1987 2009): WVBA Site listed on WQARF Registry in 1987 Site characterization, PRP search, facility regulatory actions, and groundwater modeling Over 50 Facilities investigated WQARF Reform Legislation in 1997 Draft Remedial Investigation Report - 2008 0 Nine primary source areas identified 0 Draft RI Report finalized in 2012 P3 meetings - 2009 Potential OU4 Overfile and Gentleman?s Agreement METROPOLITAN PHOENIX SITES Source: ADEQ FY15 WQARF Annual Report . I 3 camuu. murmur) . caveman 'Ymmx . ?a"mmpw" nmscaoomom mammalian A wcpuomnmunws 'm'u?fzm . ?mscuomao umscuoot I . . we? was? woman: so? at? sfnesr I momocm 0:1? . DO 0" as! thou I a, . mm 5512?; . oumosmmaoa 7 ?mm was? mom - .. . mu scum. 191"me mom .. -??hvul . can? I I ma scum Superfund - - WQARF E3 9'03? WQARF I mace 2.5 5 MassMETROPOLITAN PHOENIX SITES Source: ADEQ FY17 WQARF Annual Report DEMOGRAPHICS (EJSCREEN) WVBA WQARF SITE: 0 24 Square Miles 68,000 Residents 88% Minority Population 0 78% Low Income M52 CERCLA SITE: 12 Square Miles 50,000 Residents 76% Minority Population - 72% Low Income 45% Lacking HS Education . VEST VAN MEN - EAST minnows NEWS LANDFILL I. sumo 7' AIRPORT PGA-N CERCLA SITE: 0 4 Square Miles 9,000 Residents 44% Minority Population - 24% Low Income 9% Lacking HS Education NIBW CERCLA SITE: - 14 Square Miles - 71,000 Residents 28% Minority Population - 35% Low Income 5315?s was 7% Lacking HS Education . a m. . I I muslin; FORCE BASE- 5 Milesf 2r 3! WMsuomwmm Iran-mm DEMOGRAPHICS (EJSCREEN) ?no . gunmen .J/c .Elm? WCPNORTH PI-UK ace um scnom 3mm um scuom now scuoot mo . tam . scramsmeamn we? NORTH awn. nuns w'mo AW 5mm mo mow scuoou. not . \l acr non-i sma mo oseonu . we? WEST own news so? um sr?nssr I 1 men a. sum MOTOR 0 5200 STREET wen vna aunts EAST mmrou a numctossn . . .- i ?1 'v ants mosnmeoa 7' ?mm .. . Imam . was" scum. 19m menu AIR TOXICS CANCER RISK: WVBA WQARF Site 97% mm;' 4 M52 CERCLA Site - 98% - NIBW CERCLA Site - 51% mutant - PGA-N CERCLA Site?61an?: . - mom E: 0'05? WQARF FORCE use? mom scum . . 2.5 5 Miles GROUNDWATER REM EDIAL ACTIONS WCP WOC WQARF SITE: Approved/ in progress 30 capacity MST VAN BIREN WVBA WQARF SITE: RID Remedial Action (FS) mm - 2012 to present ?on? 13,000 capacity I. 3 ?plug M52 CERCLA SITE: 0U1 1992 to present - 810 capacity OU2 2001 to present 5,300 capacity m1 wanton a 16181 Mi mm 5372?: sumo my meat 7 wanna mom South OU North OU PGA CERCLA SITE: 1990 to present 0 2,700 capacity - WOARF 1994 to present I 0 1,000 capacity 5 Muesi mmomm 3 40TH STREET MD I SCHOCI ROAD ECP STREET AND mum SCHOOL RD ET AND 0880!?? NIBW CERCLA SITE: Central Treatment Facility 1994 to present 9,400 capacity Miller Road Facility 0 1997 to present 6,300 capacity GAC Facility - 2013 to present 3,000 capacity m. roaceme; REMEDIAL ACTION METRICS 1? cam ?w 3 winner mo . .4. . . my?. NORTH :09 um sneer up see com 5mm um 5cm ROAD mu scuoou. ROAD wcemr - wcpuoamumnwe GRAIDAVENIE scewgsmenm/ 5 ecnom smamoossonn 1: WEST GRAND AVEMJE 141?" . usrmsaucrou ainunaoseo - Mm. .. ms! Mi mm sstE?s 7 W, mum 9940 WVBA WQARF Site M52 002 - 2011: Street am ?gm . . mm scum RID Wellhead Treatment Systems Groundwater Treatment Facility Gallons Treated VOC Mass Gallons Treated VOC Mass Year 6) Removed 6) Removed . 39.0: 1 (pounds) (pounds) . .. . mu scum 3 2012 1,978 895 1.140 535 4 2013 1,800 768 1,009 401 5 2014 256 88 794 313 2015 1.402 557 712 289 2016 Results Optimized 2016 1,557 653 597 209 Rm We"; RID Wells Totals 6,993 2,961 4,252 1,747 001 (9 350 Days) must-moan GOODYEAR . mom scum Extracted (MG) 3 .. VOC Mass Removed 687 209 653 1,560 .. (pounds) CENTRAL PHOENIX REGIONAL PLUME - ?[t]he future selection of a remedy for the WQARF Sites WVB area will mitigate any potential exposure a; to contaminated groundwater downgradient j. of -- Final OU3 RI Report, page 35 West Osborn . comp." Street WQARF Site -- .. Site OU1 up?wu D- wove no.1 i0? arm-1:7 R1040: ?(I?37w: .S-v denmml Arm saw-n lint). I a .4 ?The presumed distal end of the M52 VOC plume terminates within the WVB WQARF Site.? -- Final OU3 RI Report, page 3 0 Single, nearly 15?mile long commingled plume originating from numerous, widespread VOC releases within 3 separate ?Superfund? sites VOC contamination generally limited to shallow (UAU) groundwater system RID pumping creates regional hydraulic trough or sink within the WVBA Site, resulting in area?wide hydraulic control of the shallow groundwater system (See Feasibility Study Report prepared by the West Van Buren Working Group, December 2015) DEGREE OF WVBA CONTAMINATION l- i WI . as; West Osborn - .l . 1' 1 mp.? WQARF Site ?0-82 g- I . - - RIDRID-10 RD-HO Rio-112 7:16:52- "?0439 5210.92 RD-QS .4 I . RIO-6 Bin-09jam-mm .11 . - an. ._lvl. est - i uren? . rga 07" f5". 0 Upper Alluvial Unit (UAU1) Upper Alluvial Unit (UAUZConcentrations declining 0 Concentrations steady - Middle Alluvial Unit (upper MAU) not well de?ned RID OPERATIONS IN WVBA SITE West Osborn Complex WQARF Site. . In .0 ?2 ?Rig-N L105 RID-84 RIM i I ma RID-109 RID-88 RID-1 10 RID-89 moor .55] . ?0.9115? ?Rb-11? I RID-92 KILLS- 11'5" 315-17 V, o-un- I. ago-93 RIDQG m. 4 I . Uren? f?a a; RID operates 33 wells in WVBA Site vicinity; pump 80,000 acre-feet per year At least 23 RID wells impacted by VOCs with 12 wells exceeding TCE and/or PCE MCLs with up to 92 TCE and 21 PCE RID conveys water in Salt and Main Canal to Goodyear and Buckeye; for irrigation future uses VOLUNTARY REMEDIAL ACTIONS RID Agreement to Conduct Work (2009) RID Early Response Action (2010) RID Wellhead Treatment Pilot Proposal (2011) RID Installs LGAC Treatment Systems at 4 wells (2012) RID Modified Early Response Action (2012) RID Feasibility Study Work Plan (2013) RID Feasibility Study Report (2014) RID Proposed Remedial Action Plan (2015, later withdrawn at request) RID Requests for Funding Options (2016-2017) 0 ADEQ (Orphan Share, Reimbursement, Cost Sharing) 0 Private Funds (Secured but no government assurance of right to implement ADEQ-approved remedial action) EPA (oversight or funds) ADEQ APPROVALS OF RID WORK KEY WORK PRODUCTS: - Agreement to Conduct Work ADEQ execution on October 9, 2009 has determined that releases or threatened releases of hazardous substances have occurred resulting in groundwater contamination that impacted multiple RID water supply wells which may present an imminent and substantial endangerment to the public health, welfare, or the environment.? ?parties desire that RID conduct the ERA and FS (collectively the ?Work?)? agrees to conduct all Work under the approved Plan. All Work conducted by RID shall be performed in accordance with rules adopted under A.R.S. 49-28206.? ADEQ APPROVALS OF RID WORK ERA Work Plan ADEQ approval on June 24, 2010 ADEQ ?has reviewed the ERA Work Plan. The Work Plan summarizes technical information regarding the Site, provides iustification for an ERA, and describes an ERA remedy designed to remediate contaminated groundwater within the Site." ?In addition to the ERA Work Plan, ADEQ has also carefully analyzed technical and legal documents and correspondence contained in the State file, including submittals by RID and other interested parties since September 2009, and comments received through the public participation process.? has a unique opportunity to increase the removal of contamination from the aquifer via its wells [and] w ithout treatment, these contaminants will continue to degrade the qualitv of the aquifer within the Site.? The ERA will ?maximize the benefit of pumping and treating contaminated groundwater within the Site, which is intended to result in aquifer restoration and reduce the cost of the final remedy.? analyzed the ERA Work Plan to determine compliance with applicable state statutes and rules.? ADEQ APPROVALS (cont) Wellhead Treatment System Pilot Proposal ADEQ approval on Sept. 2, 2011 The work is ?being undertaken to determine whether well head treatment can be an effective treatment technology [to reduce] the costs of the final remedy and/or mitigating contaminant exposure." concurs that the implementation of the work plan may yield data justifying a modification to the ERA, and therefore agrees to its implementation.? 0 Modified ERA Work Plan ADEQ approval on Feb. 1, 2013 has reviewed the Modified ERA Work Plan only as it pertains to the objectives to protect RID's supply of water and addressing current and future risks to public health, welfare, and the environment.? conditionally approves the October 2012 Modified ERA Work Plan [and] this approval supersedes approval of the previous ERA Work Plan.? conditional approval is contingent on implementation of measures to limit these exposures" from volatilization of hazardous VOCs since the ?long-term effects are uncertain and data also shows that 'significant volatilization and transfer of contaminants, from water into the air, is occurring and ongoing.? Feasibility Study Work Plan ADEQ approval on July 6, 2013 ADEQ APPROVALS (cont.) 0 Wellhead Treatment System Plan ADEQ approval in April 2015; most recent version approved in Feb. 2016 0 Revised Draft Feasibility Study Report ADEQ approval on April 13, 2015 has determined that the FS Report meets the requirements of Arizona Revised Statutes 49-28703 and Arizona Administrative Code because competing State-wide budget priorities have resulted in continued underfunding of WQARF, ADEQ will be discontinuing all discretionary work on the WVB WQARF Site at this time.? - WQARF Reimbursement ADEQ approval in FYs 2013-2015 for a total of more than $600,000 ADEQ reimbursed RID ?for its reasonable, necessary and cost- effective remedial action costs that were incurred in response to a release or threat of a release of a hazardous substance that presents an immediate and substantial endangerment to the public health or environment.? RID EARLY RESPONSE ACTION Original ERA Work Plan As Approved 0 A new priority pumping regimen for the RID wellfield to maximize removal of hazardous substances from the groundwater while maintaining current annual groundwater withdrawal Address the 10 most highly contaminated RID wells to remove thousands of pounds of VOCs from the groundwater annually - Construction of a new centralized treatment facility to reliably remove VOCs and reduce their concentrations to meet standards applicable for all beneficial uses. 0 Physical improvements to selected RID wells and canals to reduce emission of VOCs from water to air and to reduce exposure to VOCs 0 Discharge of treated water to the RID Main Canal for irrigation use or to a new pipeline for potable use. RID EARLY RESPONSE ACTION ?Modified? ERA Work Plan As Approved - Utilizes wellhead treatment systems with LGAC at 8 most highly contaminated RID wells in lieu of the central water treatment facility 0 Eliminates lateral pipelines to connect southern tier wells and the Salt Canal - Utilizes a combination of treatment and blending to effectively reduce the concentration of VOCs from several additional wells with lower contaminant concentrations, resulting in lower volume of contaminated water being directly treated while ensuring RID water supplies meet applicable MCLs to ensure protection of all current and reasonably foreseeable end uses - Reduces capital and costs by 50% RID EARLY RESPONSE ACTION RID-114 11o "Rb-n? RID-10C - RIMS Rio-99' RI RD- A 3113.104 RID-03 uren? Well RID-114: Treatment Started in May 2012 UAU Completion Equipped with 3 LGAC Skids Remove 340 lbs/year VOC Mass (2,400 350 days) 0 Currently out of service RID EARLY RESPONSE ACTION RID-95 We" i 60 g; - Treatment Started in Feb 2012 so 5/ Completion . . Equipped with 2 LGAC Skids .. 4? 55 - Remove 350 lbs/year VOC Mass 30 55 +ch (1,600 350 days) .. 20 55 29WRID EARLY RESPONSE ACTION Well RID-92: - Treatment Started in May 2012 - UAU/upper Completion .. - Equipped with 1 LGAC Skid . 0 Remove 460 lbs/year VOC Mass (1,100 350 days) 0 RID-111R 22. mom 10? ?30-112 9 RID-95 mosI RID-88 RID-03 es uren? re RID EARLY RESPONSE ACTION .. Well RID-89: 0 Treatment Started in May 2012 Completion Equipped with 3 LGAC Skids Remove 400 lbs/year VOC Mass (2,400 350 days) ~In. HM 1 I RID FEASIBILITY STUDY REPORT Feasibility Study Report As Approved Updated ADEQ Central Phoenix Plume Model applied to comparative analysis of remedial alternative 0 Four Remedial Alternatives Evaluated: Reference Remedy treatment at 9 RID well sites with blending to address other impacted wells; 2 replacement wells Less Aggressive Alternative treatment at 6 RID well sites with blending to address other impacted wells; 1 replacement well More Aggressive Alternative treatment at 6 RID well sites with blending and re-injection to address other impacted wells; 1 replacement well Most Aggressive Alternative ?treatment at all 12 RID well sites exceeding 2 replacement wells - Less Aggressive Alternative was selected remedy $9.4 Million Capital Cost $2.0 Million - Annual ADEQ?Approved FS Remedial Action ALTERNATIVE: .- 11, - Groundwater Pump Treat remedial action i at the 6 most contaminated RID wells KW 9 I. New Replacement Well . war I ?414 3'000 39": 1 RID-106 3,000 RID-109 2,000 2.RID-89 3.000 RID-95 2,000 Pawn. 2 RID-92 1,000 RID COMPLIANCE WITH NCP Reasonable, necessary and cost-effective course of action to protect public health and the environment ADEQ approvals determined RID remedial actions to be ?reasonable, necessary and cost-effective? RID remedial actions meet applicable state water quality standards and USEPA maximum contaminant levels (MCLs) that are exceeded at WVBA Site and water supply wells RID remedial actions utilize reliable LGAC treatment for VOCs RID remedial actions are more cost-effective than other Arizona VOC-contaminated groundwater cleanups (See attached comparison chart) Provide public information and community input RID prepared and submitted at least 70 letters, responding to 37 ADEQ letters and/or requests and 114 PRP communications and/or work products RID attended at least 45 meetings with ADEQ RID attended at least 73 meetings with other stakeholders CAB, ADWR, PRPs, elected officials, water providers, cities, etc) RID COMPLIANCE WITH NCP (cont) - Evaluation of the health and environmental threat RID remedial actions prevent exposure to groundwater containing COCs exceeding USEPA MCLs RID remedial actions contain and capture groundwater containing COCs exceeding MCLs RID remedial actions restore aquifer to beneficial use, which is potable water - Evaluate alternatives to achieve remedial objectives ADEQ approval determined that FS Report complied with the requirements of ARS 49-287.03 and AAC R-18-16-407 Comply with all ARARs RID remedial actions achieve remedial action criteria in A.R.S. 49-282.06.A-B (See attached Superfund comparison charts) U.S. DISTRICT SUMMARY JUDGMENT Compliance with NCP: was able to meet its burden of providing evidence that it substantially complied with 0 ?In considering overall methods, however, the Court finds that ?while certainly not in perfect compliance,? RID did as a matter of law substantially complv with the applicable requirements set forth in the Compliance with Public Participation: has demonstrated that it engaged in an extensive public vetting process of its ERA and MERA proposals, and that Defendants themselves participated in this process.? Compliance with ARARs: I 0 ?The record indicates that RID gave substantial thought and attention to compliance with site-specific Arizona law.? U.S. DISTRICT STATEMENTS Remediation is Necessary: 0 ?It astounds me, to be honest with you, as to why the public entities here didn?t step up more forcefully on all bases to do something about what is admittedly a very serious problem.? - don?t think anybody disagrees, or if they do, I don?t know on what basis they could possibly suggest that there aren?t plumes of very deadly carcinogenic chemicals floating around underneath the city of Phoenix, Arizona.? RID Remedial Actions are Cost-Effective: ?Defendants have not presented evidence of the existence of any other ?significantly more cost effective permanent remedial alternative?? Next Steps Cooperative Agreement to accelerate implementation of NCP-Compliant and ADEQ?approved remedial action Future optimization of NCP-Compliant and ADEQ-approved remedial action, if appropriate Cooperative Agreement with RID to Implement NCP- Compliant and ADEQ-approved Remedial Action State or political subdivision thereof may apply to the President to carry out actions authorized in this section.? 42 U.S.C. 9604(d)(1)(A) ?Whenever any hazardous substance is released or there is a substantial threat of release into the environment which may present an imminent and substantial danger to the public health or welfare, the President is authorized to act, consistent with the national contingency plan, and provide for remedial action relating to such hazardous substance or take any other response measure consistent with the which the President deems necessagg to protect the public health or welfare or the environment.? 42 U.S.C. 9604(a)(1) ?When the President determines that such action will be done properly and by the owner or operator of the facility the President may allow such person to carry out the action.? 42 U.S.C. 9604(a)(1) ?lTlhe President may respond to any releases or threat of release in the President?s discretion, it constitutes a public health or environmental emergency and no other person with the authority and capabilig to respond to the emergency will do so in a timely manner.? 42 U.S.C. 9604(a)(4) COOPERATIVE AGREEMENT COMPLIES WITH NEW SUPERFUND INITIATIVE Promotes expeditious remediation of Arizona?s largest groundwater contaminant plume and one of the largest in the country Reduces the burden on cooperating parties lncentivizes parties to remediate site Encourages private investment in cleanups Avoids Environmental Justice issues with local minority community - Promotes economic development with remediated water Avoids EPA Superfund expenditures/costs Arizona and ADEQ Unable to Respond to WVBA Contamination - Despite position that ?the State of Arizona will no longer accept delays at the Site]? and requires a ?remedial action plan that is comprehensive and covers all activities necessary to conduct a final regional remedy for the WVB Site,? Arizona and ADEQ have no money for the WVBA Site because competing State-wide budget priorities have resulted in continued underfunding of WQARF, ADEQ will be discontinuing all discretionary work on the WVB WQARF Site at this time.? (April 2015) ADEQ current budget is $0 for the WVBA Site Governor?s current budget will discontinue General Fund support for the WQARF program. Arizona Refuses to Provide Certainty for the RID Remedial Actions to be Implemented with Private Funds - The Arizona Department of Water Resources (ADWR) has stated that no Poor Quality Groundwater Withdrawal Permit will be issued at WVBA Site (unlike virtually all groundwater cleanups in Arizona) Although ADWR acknowledged in June 2017 that no is necessary because of RlD?s existing water rights, the current ADWR Director is unwilling to confirm water rights to implement duration of remedy Former ADWR Director noted that "the Department concurs that RID has the ability to deliver - [and] [b]ecause RID was in existence and engaged in the withdrawal, delivery and distribution of groundwater as of January 1, 1977, BMW landowners within its service areaI which may inc ude new non-irrigation customers.? November 7, 2011 letter) u: 0 n- 1' October 21, 2013 letter) 0 Current ADWR Director revoked ADWR's October 21, 2013 letter and granted a PRP the ability to veto any clarification letter draft clarification letter reaffirmed its October 21, 2013 determination because it ?was based on reading of the face of the agreements, and the fact ADWR did not see an expiration date in the most recent agreement.? Although ADWR rejected that effort to draft response, legal counsel noted that no clarification letter would be forthcoming without that PRP's approval ?Current ADWR Director actively opposed the RID remedial actions while employed for the City of Phoenix. Although the current Director was the supervisor for Mr. Craddock, the ADWR staffer that signed the October 21, 2013 letter, the ADWR Director personally revoked that letter on March 31, 2015 in response to a February 18, 2014 letter from the PRP to Mr. Craddock. The former ADWR Director was requested by the outgoing Governor's Chief of Staff in 2014 to revoke the October 21, 2013 letter in front of Henry Darwin, then the ADEQ Director. The former ADWR Director and Henry Darwin were targeted during the change in administrations for their actions relating to the RID remedial actions. FUTURE OPTIMIZATION, IF APPROPRIATE 0 Potential for additional cost savings and accelerating full implementation; 0 Enhance plume containment of the leading, downgradient extent of the plume; - Enhance mass removal and aquifer restoration by focused extraction from the most highly contaminated central core of the contaminant plume; and - Address additional contaminants not presently identified as WVBA COCs Attachment ARIZONA DEPARTMENT OF ENVIRONMENTAL QUALITY 1110 West Washington Street - Phoenix, Arizona 85007 I602) 771-2300 lamco K. Brewer Governor Director Henry R. Darwin August 7, 201.3 EGEIIVIE Roosevelt Irrigation District UG 9 mg 103 West Baseline Road A 2 Buckeye, Arizona 85326 Re: Request for Reimbursement Dear Mr. Neese: In accordance with A.R.S. ?49-282.E.t t, Roosevelt Irrigation District (RID) requested reimbursement trom the Water Quality Assurance Revolving Fund (WQARF) for remedial actions undertaken in response to a release or a threat of a release of hazardous substances or pollutants that presents an imminent and substantial endangerment to the public health or the environment. A.R.S. allows the Arizona Department of Environmental Quality (ADEQ) to reimburse up to $250,000 in any given year. RID provided ADEQ with substantial documentation to support their claim. RID's documentation totaled incurred costs of $359,895.00. ADEQ has reviewed the information provided and has determined that the documentation supports the work performed at the site in response to contamination that has impacted well ?eld. In accordance with ADEQ has determined the following: - RID is a political subdivision 0 Remedial costs were reasonable, necessary and cost-effective. 0 Actions were taken in response to a release or threat of a release of a hazardous substance or pollutant and that release or threat of a raisese presents an imminent and substantial endangerment to the public health or environment 0 RID has taken all reasonable efforts to obtain reimbursement from responsible parties and the federal government Therefore, ADEO has included a reimbursement check in the amount oi $250,000. As a condition of reimbursement, ADEQ is requesting that should RID recover monies in excess of $250,000 from responsible parties via litigation, for incurred costs that were the basis of ADEQ's reimbursement, that RID will in turn reimburse WQARF the full $250,000. By co-signing this letter, RID is agreeing to this provision. Sincerely, 4? . I ura L. Malone, Director Donovan L. Neese, Superintendent Waste Programs Division Roosevelt Irrigation District Enc. Reimbursement Check Southern Regional Of?ce 400 West Congress Street - Suite 433 Tucson, AZ 8570! (520) 628?6733 Printed on recyc/ed paper Aritona DADepaEmneQnt of Environmental Quality FWATER QUALITY ASSURANCE APPLICANT: Roossven' FUND (WQARF) SUBMITTAL Lig'jgz?h? NSTRICT POLITICAL SUBDIVISION REIMBURSEMENT CHECKLIST WE 6/18- 7/11/2014 REVIEWED BY: LE PAGE BASED UPON INFORMATION PROVIDED BY APPLICANT, HAS THE FOLLOWING CRITERA BEEN is applicant a political subdivision? Has applicant taken all reasonable efforts to obtain reimbursement from the responsible party? Has applicant taken all reasonable efforts to obtain reimbursement from the federal government? Are the remedial actions reasonable, necessary and cost effective Does the release or threatened release of the hazardous substance or pollutant present an immediate and substantial endangerment to the public health or the environment? Were claimed remedial actions cost incurred within current fiscal year? IF ANY OF THE ABOVE QUESTIONS HAVE BEEN ANSWERED WITH - NECESSARY CRITERIA FOR REIMBURSEMENT HAS NOT BEEN MET STOP REVIEW OF PACKET - YES REIMBURSEMENT APPLICATION: yes Completed Application (Signed and Notarized) yes Costs Incurred invoices Attached yes Adequate Invoice Backup Attached yes Reimbursement of Remedial Action Costs Spreadsheet Completed {attached} Additional information Needed to Complete Submittal (see attached email) - only able to reimburse yes documented labor from emall dated 6/23/2014 for T. Blood. Warranty costs not reimbursed (see Remedial Action Costs Spreadsheet). Applicant Notified of Submittal De?ciencies? Datez6/18/2014 REIMBURSEMENT AMOUNT: Total Amount Submitted for Reimbursement: Amount Approved for Reimbursement) um our! 7? 4mm?: I I $288,814.57 932535-49 Pinata?, aid" 3/79) v/ Attachment . ARIZONA DEPARTMENT OF ENVIRONMENTAL QUALITY 1110 West Washington Street Phoenix, Arizona 85007 (602) 771-2300 Janice K. Brewer Governor Director Benjamin H. Crumbles June 24, 2010 Mr. Stanley H. Ashby Superintendent Roosevelt Irrigation District 103 W. Baseline Road Buckeye, AZ 85326 Re: Conditional Approval of a Water Quality Assurance Revolving Fund (WQARF) Early Response Action (ERA) Work Plan for the West Van Buren Registry Site Dear Mr. Ashby: The Arizona Department of Environmental Quality (ADEQ) has reviewed the Roosevelt Irrigation District (RID) BRA Work Plan for the West Van Buren WQARF Registry Site (the Site) dated February 3, 2010. The Work Plan summarizes technical information regarding the Site, provides justi?cation for an ERA, and describes an BRA remedy designed to remediate contaminated groundwater within the Site. In addition to the ERA Work Plan, ADEQ has also carefully analyzed technical and legal documents and correspondence contained in the Site ?le, including submittals by RID and other interested parties since September 2009, and comments received through the public participation process. Based on our analysis of all available information, ADEQ conditionally approves, the February 3, 2010 ERA Work Plan. The attached matrix identi?es speci?c conditions, tasks and outcomes that must be achieved to maintain the conditional approval. RID has a unique opportunity to increase the removal of contamination from the aquifer via its wells by analyzing and potentially modifying existing well screen intervals and pumping rates. Without treatment, these contaminants will continue to degrade the quality of the aquifer within the Site. The conditions ADEQ is placing on this approval will ensure that the ERA maximizes the bene?t of pumping and treating contaminated groundwater within the Site, which is intended to result in aquifer restoration and reduce the cost of the ?nal remedy. ADEQ reserves the right to identify additional conditions as new information becomes available throughout ERA implementation. In addition, RID shall submit all information and take all action required by A.A.C. 404, 411, 412, 413 and A.R.S. The information and actions required by these provisions include, but are not limited to, community involvement, the submittal of design and engineering plans for the ERA, and addressing unknown or changed conditions during implementation of the ERA. Northern Regional Of?ce Southern Regional Office 1801 W. Route 66 - Suite 117 . Flagstaff. AZ 86001 400 West Congress Street Suite 433 Tucson. AZ 85701 (928) 779?031 3 (520) 628?6733 Printed on recycled paper Page 2 of 2 ADEQ analyzed the ERA Work Plan to determine compliance with applicable State statutes and rules. ADEQ has not reviewed whether the ERA Work Plan is consistent with any federal laws or regulations. In addition, review and conditional approval of the ERA is limited only to those activities expressly described within the ERA related to the extraction and treatment of contaminated groundwater within the Site. conditional approval does not include an analysis or approval of the transport or final disposition and use of the treated water. Until information about a ?nal remedy is developed, ADEQ cannot estimate the cost of the ?nal remedy and each responsible party?s proportionate share of liability. As a result, ADEQ will not provide any covenants not to sue or contribution protection for WQARF liability in a settlement, until we have enough information about the final remedy to determine the impact of the settlement on funding of the ?nal remedy. We look forward to working with you and other interested parties as you begin to implement the ERA. Please contact Amanda Stone, Director of the Waste Programs Division at (602) 771-45 67 if you wish to discuss the technical aspects of this conditional approval. Sincerely, WW Benjamin H. Grumbles Director Attachment (1) cc: Herb Guenther, Arizona Department of Water Resources Approval of the proposed RID ERA is made with the following conditions that must be met within the time periods identi?ed below, or within another time period approved by ADEQ. All work plans required by this conditional approval must be submitted to ADEQ for approval prior to implementation, and must include a schedule for performing all tasks identi?ed in the work plan. Once a work plan is approved by ADEQ, all tasks within the work plan must be completed in accordance with the schedule in the approved work plan, unless a deviation is agreed upon by ADEQ in writing. RID shall begin implementation of task 1 and 2 concurrently, and 2, 3 and 4 sequentially. Conditional approval is based on the assumption that each of these areas of concern will be investigated appropriately and the results of the investigations will demonstrate that the ERA continues to meet minimum applicable statutory and rule requirements. Days are calendar days, unless speci?cally noted otherwise. Task No. Description Completion/Submittal Date 1. Public Health Threat The RID work plan states there is a current risk to the public health from exposure to VOCs (?om both air and water) within the West Van Buren Area (WVBA), however, speci?c documentation about the risks and how the risks will be mitigated during the ERA implementation has not yet been provided. Within 30 days of BRA approval, RID shall submit a risk analysis work plan to ADEQ documenting the risks and demonstrating to ADEQ how and when the ERA will mitigate the risks. 2. RID Wells Investigation Due to the proposed increased pumping rate at RID wells to be used for remediation, RID must conduct well testing and modeling to insure that changes in pumping will not adversely affect groundwater quality and levels within the WVBA beyond what would be expected with the current pumping conditions. Water levels must be maintained at or near current levels taking into account natural variations. The investigation must determine how ERA workplan implementation will affect both the aquifer and wells in the area of the plume. Within 45 days of ERA approval, RID shall submit a well investigation work plan for the investigation of RID wells within the plume boundary. This investigation shall include at a minimum, water levels, screen intervals, spinner log testing, depth speci?c analytical testing, and video logging. Within 60 days of completion of the work required by the well investigation work plan, RID shall submit a well investigation report to ADEQ. Task N0. Descr?tion Completion/Submittal Date 3. Groundwater Modeling A groundwater model must be constructed to estimate the effects of the changed RID well pumping rates. RID has indicated that the overall pumping rate will stay the same; however, the wells that will be pumped will change. This change must be modeled. The groundwater model must also evaluate how the diverted pumpage of RID wells will affect other contaminant groundwater plumes, such as those created at Leaking Underground Storage Tank (LUST) sites and neighboring WQARF and Superfund sites. The model must also consider differing pumping rates and locations. One of the goals of the ERA is to remediate groundwater. RID must maximize, to the extent practical, the removal of contaminants from the subsurface when the ERA is implemented. Currently the RID treatment system plan is based on treating the entire volume of groundwater that the RID wells are capable of pumping. However, this may be excessive if the wells can be pumped. at a lower rate from the contaminant zone and still maintain the desired effects of groundwater recovery. Therefore, the model shall also consider impacts of other pumping rates on drawdown and capture zones. Within 60 days of written approval of the well investigation report, RID shall submit a groundwater model work plan. At a minimum, the groundwater model shall estimate the effects of changed pumping rates and locations on the aquifer, including but not limited to water levels and all contaminant plumes within the WVBA and neighboring WQARF and CERCLA sites. Within 60 days of completion of the work required by the groundwater model work plan, RID shall submit a groundwater model report to ADEQ for approval. Task No. Description Completion/Submittal Date 4. Pump and Treat System RID must complete an engineering design study which describes all technical requirements for a pump and treat remediation system, including a description of the in?uent and ef?uent contaminant levels. All applicable permits must be in place, prior to construction and/or operation of the pump and treat system, as required under the relevant statutes and rules. RID must also submit a construction, operation and maintenance work plan for the pump and treat system. The work plan must contain a plan for monitoring groundwater quality and groundwater elevations, including what wells will be sampled and monitored, the frequency that they will be sampled and monitored, and the parameters that will be analyzed. As part of the work plan, RID must also submit proposed sampling frequency, locations, and analytical methods, at the pump and treat system. Within 60 days of written approval of the groundwater model report, RID shall submit an engineering design study for the pump and treat remediation system sealed by an Arizona Registered Professional Engineer. At a minimum the engineering design study shall include all of the technical design requirements of the pump and treat remediation system, including a description of the in?uent and effluent contamination levels. In addition, the engineering design study must include a list of all permits that must be obtained prior to construction and operation. Within 60 days of written approval of the engineering design study, RID shall submit a remediation system construction, operation, and maintenance work plan. At a minimum the work plan shall include, an Operation and Maintenance plan for the remediation system, a description of the sampling of RID canals and wells (both for groundwater elevation and quality) during operation of the remediation system, and a description of sampling of remediation system in?uent and ef?uent water. Attachment ARIZONA DEPARTMENT (f to or ENVIRONMENTAL QUALITY ?32% ?ys/ Douglas A. Ducey Henry R. Darwin Governor Director April 13, 2015 Via email and regular mail Mr. Donovan Neese Roosevelt Irrigation District 103 West Baseline Road Buckeye, Arizona 85326 Re: Draft Feasibility Study - Roosevelt Irrigation District Dear Mr. Neese: The Arizona Department of Environmental Quality (ADEQ) has completed its review of the Revised Draft Feasibility Study Report (FS Report), submitted November 26, 2014. The F5 Report was prepared by Synergy Environmental, LLC on behalf of Roosevelt Irrigation District (RID) for the West Van Buren (WVB) Water Quality Assurance Revolving Fund (WQARF) site. ADEQ has reviewed the FS Report under an executed working agreement dated October 8, 2009 between RID and ADEQ. ADEQ had previously completed the "administrative completeness? review and provided comments to RID. It should be noted that the checklist used for this portion of the review was more administrative than substantive. During this review, it was determined that ADEQ should have answered Item #7 as ?No? versus ?Not Applicable?. ADEQ agreed to correct that error when providing feedback on the FS Report. By way of this letter, ADEQ is correcting that error. ADEQ has determined that the FS Report meets the requirements of Arizona Revised Statutes 49-28703 and Arizona Administrative Code R18-16-407 and therefore ADEQ is approving FS Report. Please be aware, though, that because competing State-wide budget priorities have resulted in the continued underfunding of WQARF, ADEQ will be discontinuing all discretionary work on the WVB WQARF site at this time. Should funding levels change, ADEQ will of course re- evaluate this decision. Main Office Southern Regional Of?ce 1110 West Washington Street - Phoenix, AZ 85007 400 West Congress Street - Suite 433 - Tucson, AZ 85701 (602) 771-2300 (520) 628-6733 printed on recycled paper Page 2 of 2 Mr. Donovan Neese April 13, 2015 Page 2 Feel free to contact me should you have any questions. Sincerely, Lau a L. Malone, Director Waste Programs Division Cc: Tina LePage ADEQ Danielle Taber, ADEQ Anthony Young, AGO Dennis Shirley, Synergy Environmental, LLC. Julie Carver, Matrix Design Group, inc. Attachment i David P. Kimball Attorney 1 Direct: (602) 530-8221 [:aliatihemKeni?iedv January 6, 2017 VIA ELECTRONIC MAIL ONLY Mr. 'l?homas Buschatzke Director ARIZONA 0r RiasooRCI-?s I I 10 W. Washington Street Phoenix, AZ 85007 Re: Proposed Application for Poor Quality Groundwater Withdrawal Permit for the VBA QARF Site Director Buschatzkc: This letter responds to your December 30, 2016 letter. In responding, I feel it necessary for the record to ?rst accurately characterize our communications with staff over the past several months. These communications were pursued to ?facilitate the prompt conduct? of the ADEQ?approved groundwater remedial action for the West Van Buren Area (W VBA) Water Quality Assurance Revolving Fund Registry Site (WQARF Site) in order to address the numerous hazardous substances, including the known human carcinogen TCE, that have contaminated the local groundwater, are being exposed to the local minority community, and have impacted the wells and water supply of the Roosevelt Irrigation District (RID), all in violation of applicable Arizona water quality and public health standards and established EPA thresholds. RECENT ADWR DISCUSSIONS In my August 31, 2016 email response to your August 29, 2016 inquiry regarding my August 26, 2016 letter, I did not say that I was ?not seeking written interpretation" simply in preference of another meeting as stated in your December 30, 2016 letter. I clearly stated that ?we do not believe that the delay, costs and formality of pursuing a formal interpretation under ARS 41-1000102 is necessary or justi?ed? because ?our review of records con?rmed that, over the last 30 years, ADWR has consistently and without exception issued PQG WPs to all and EPA-approved groundwater remedial actions [and that] such consistent action over the past 30 years by ADWR clearly indicates an established interpretation of general applicability. such that ADWR can and should issue a for the WVBA WQARF Site.? My August 3 I 2016 email continued to note Mr. Thomas Buschatzke January 6, 2017 Page 2 that any ?undue delay by ADWR in issuing a PQGW to implement the ADI-{Q-approved RID groundwater remedial action for the WVBA WQARF Site would not only violate statutory responsibility under ARS 49-29001 .A to 'expedite the processing and issuance of . . to facilitate the prompt conduct of approved remedial actions? (emphasis added), it would prohibit implementation of the speci?c groundwater remedial action approved by ADISQ for the WVBA WQARF Site, result in continued violations of the enforceable aquifer water quality standards, and continue the uncontrolled releases of hazardous volatile organic compounds into the predominantly minority local community. For these reasons, time is of the essence in the issuance of the for the WVBA Site.? As a result, I concluded my August 31, 2016 email with: ?To avoid any undue delay, we are prepared to meet at your earliest convenience to walk through the details of the application for the WVBA Site." Given your September I, 2016 response that is happy to meet to walk through the details of the application for the WVBA WQARF Site [and] Mo meet [our] request to move this forward,? I was under the impression that ADWR, after reviewing my August 26, 20I6 letter, was finally acknowledging its 'I'itle 49 obligations and 30-year history of routinely issuing to ?facilitate the prompt conduct of [government] approved remedial actions." Sadly, the subsequent meetings with staff were focused solely on certain Title 45 provisions and a refusal to act consistent with 30-year history of routinely issuing to implement governmeunapproved remedial actions as required by Title 49. For example, September 26, 2016 email clarified that ADWR would not comply with ADWR's Title 49 obligations to ?expedite the processing and issuance of permits to facilitate the prompt conduct of approved remedial actions,? but instead would only act ?consistent with efforts to process and review all applications that the agency receives as quickly as possible? and that has made no decision on whether or not it will grant a permit.? September 26, 2016 email also critici7ed any reference to and any reliance on the numerous and consistent ADWR statements contained in historical applications approved by ADWR to implement govermnent-approved remedial actions as required by Title 49. Instead, ADWR claimed ?each application is unique, and determinations on those applications are made on a case-by-case basis after considering not only the information provided in the application, but supporting documentation as well.? After our September 27, 2016 meeting where staft?continucd to ignore and disregard Title 49 obligations and raised a number of new application standards, we responded in an email, dated September 29, 2016, that "in an effort to meet the unexpected new application standards established at our meeting, we have provided specific responses [rather] than the minimal responses previously approved by ADWR for other PWG applications to 2 implement approved groundwater remedial actions. Despite the new and more comprehensive 1 requests for information that prior applicants have not been subject to, we are willing to comply, where possible and reasonable, in order to assist the agency to expedite the administrative and substantive reviews once the application is formally submitted." In response to our September 29, 2016 email. ADWR in an email, dated October 3, 2016, requested two more GK Mr. Thomas Buschatzke January 6, 2017 Page 3 pieces of information and stated that "so long as the above-described information is provided at the time of the ?ling of your application, we believe that your proposed responses, along with the supporting documentation that you have provided to date, would be sufficient to satisfy the requirements for administrative completeness [only] under A.R.S. October 3. 2016 email goes on to state that because "this email adequately identi?es the information ADWR needs for its administrative completeness review we do not believe that another pre-applieation meeting will be necessary [and] [Me are available to answer any additional questions that you may have through written correspondence.? In short, your December 30, 2016 letter inaccurately characterizes the reasons and scope of our request for another meeting. In our October 6, 2016 response, our request for another meeting was ?to address the substantive [not the administrative completeness] requirements that we previously have discussed in correspondence with the agency [since] [w'Je believe that expediting the administrative and substantive reviews will ensure that we can expedite the permitting process to move fast toward the public notice and comment period [because] [aJs we have discussed with the agency, time is of the essence since a party has agreed to fund the completion of the ADEQ?approved RID groundwater remedial action for the WVBA WQARF Site upon issuance of the Our October 6, 2016 email also questioned need for the additional information requested in October 3, 2016 email as conditions to satisfy even "the requirements for administrative completeness.? Speci?cally, we assumed that such a request was a misunderstanding since it would violate the provisions of ARS 41-1030 and 1079 and would be inconsistent with the application and historical requirements "of other applicants for the agency?s administrative or substantive reviews." Additionally, we questioned that the requested information "appears to be irrelevant to a which grants only an administrative right to withdraw poor quality groundwater? especially "for a that is to be issued to facilitate the implementation of an ADEQ-approved groundwater remedial action that already addresses and describes the transportation of water for its proposed beneficial use.? We questioned some of concerns raised with the ADEQ-approved groundwater remedial action because approving remedial actions under Title 49 is outside statutory authority and because "ADWR-issued WPs include the condition that ?the issuance of this permit does not constitute endorsement [by of the assertions or findings of investigations and studies submitted by the Permittee as part of its applications.? Once again, in my October 14, 2016 email to the Directors of ADEQ and ADWR, we raised similar legal concerns after the October 13, 2016 meeting with ADWR because staff raised a number of troubling issues that directly conflict and/or are inconsistent with ADliQ's remedial action program and the permit requirements and conditions that ADWR has required in previously approved to implement any government-approved remedial actions.? GK Mr. Thomas Busehatzke January 6, 2017 Page 4 Your December 30. 2016 letter, yet again, raises an issue that not only has never been applied to other applicants that obtained a to implement remedial actions, but directly violates Title 49 obligations and the mandatory statewide remedial action standards in ARS 49-282.06.B.4.b. staff ?rst raised this potential issue as to ?whether the issuance oi?a is prohibited in this case by virtue 45?491? after my August 26, 2016 letter demonstrated that initial opposition to a in this case was inconsistent with Title 49 obligations and 30?year history of routinely issuing to implement government-approved remedial actions. Pursuant to ARS 45-491, ?in an active management area, a city, town, private water company or irrigation district may withdraw groundwater only pursuant to this article, except as provided by a grandfathered right and except as otherwise provided in this section.? ARS 45-491 (C) states that a ?city, town or private water company may withdraw groundwater pursuant to a poor quality groundwater withdrawal permit issued under section 45-516? and does not include an ?irrigation district.?1 Ofcourse an ?irrigation district" is unable to withdraw groundwater pursuant to a poor quality groundwater withdrawal permit under ARS 45-516 since ARS 45-516 specifically limits authority to ?issue a pemiit to a non?irrigation user.? Notwithstanding the referenced language in ARS 45-491 and 45-516, both enacted into law in 1980, ADWR has routinely issued to ?irrigation users,? including an irrigation district de?ned under ARS 45?402, in order to comply with 1986 statutory obligation ?to facilitate the processing and issuance of to expedite the prompt conduct of [government] approved remedial actions." Despite 30-year historical practice of issuing to all government- approved remedial actions, regardless of the language in ARS 45-491 and 516, and the fact that the potential applicant for a to conduct the ADEQ?approved groundwater remedial action for the WVBA WQARF Site is not an "irrigation district,? ADWR continues to inexplicably oppose the on this basis. When pressed for clari?cation on the phone and in meetings, ADWR has stated that any party groundwater contamination in a well owned by an irrigation district would be the agent of the irrigation district and, therefore, would trigger the alleged prohibition in ARS 45-491. As noted in my October 14, 2016 email to the ADEQ and ADWR Directors, such an interpretation directly violates the mandatory statewide remedial action standards in ARS 49-2825.06.B.4.b. requiring that ?the selected remedial action shall address; at a minimum. any well [whether owned by an irrigation district or not] that at the time of?selection of'the remedial action either supplies mater/0r municipal, domestic, industrial, irrigation or agricultural uses or is part of a public water system ifthe well would now or in the reasonablyforeseeable future produce water that would not be?t for its current or reasonabot/Oreseeable end uses without treatment due to the release o/?huzardous substances.? As de?ned by ARS 45-402, an ?irrigation district? is established ?to provide for the improvement. of such lands susceptible ofiirigation? (ARS 48?2303) or ?to provide for the irrigation ol? lands in the area." ARS ?48?2602. GK Mr. Thomas Buschatzke January 6, 2017 Page 5 Yet again in your December 30, 2016 letter, ADWR continues to unlawfully focus on the 1980 Title 45 provisions that were enacted before the creation in 1986 of ADEQ, the WQARF program, the enforceable aquifer water quality and public health standards and Title 49 obligations. The Arizona legislature recognized the con?ict that might arise under 1980 Title 45 water quality management statutes to implement the new l986?1?itle 49 groundwater quality remedial action statutes, which is why the Arizona legislature in 1986 mandated that ADEQ and ADW enter into a Memorandum of Understanding and authorized ADWR to waive any Title 45 requirement that would delay or prohibit the implementation of an ADEQ-approved remedial action under Title 49. WAIVER AND MOU As noted in my December 22, 2016 letter, we have not heard a response from ADWR about participating in the discussions with ADEQ on a potential waiver of the new and/or irrelevant issues raised by ADWR that have delayed the ?the prompt conduct" of the ADEQ- approved remedial action for the BA WQARF Site. It has been over two and a half months since my October 14, 2017 request for a meeting with yourself and the Director of in order to "expedite the processing and issuance? of the ?to facilitate the prompt conduct of [the] approved remedial actions? for the WVBA QARF Site as required by Arizona law. Such a meeting would be required if ADWR decided to waive any Title 45 requirement instead of pursuing a formal Memorandum of Understanding (MOU) on the issuance of permits to implement government-approved remedial actions as required by ARS Given the initial reasons for opposition to a to implement the ADEQ- approved groundwater remedial action for the WVBA WQARF Site, we performed a public records search of historical review and issuance of to implement government-approved remedial actions. During our review of historical practice of routinely issuing to implement government-approved remedial actions, we found that ADWR never raised the issues or prohibited a PQG based on the reasons that were presented to us. The public records search also revealed that ADWR has never formally waived a Title 45 requirement when issuing to implement govermnent-approved remedial actions, even though many of the historical and existing fail to comply with the plain terms 45-516 and other Title 45 requirements. therefore, we had assumed that the plain terms of ARS 45-516 and the other Title 45 provisions had been superseded by a MOU between ADEQ and ADW as required by ARS since the violation of the applicable aquifer water quality standards is prohibited by ARS 49-262 and 263 and constitutes an ?immediate and substantial endangerment to the public health or the environment.? Unfortunately, despite previous statement to the contrary, a MOU has not been fomtalizcd even though ADWR has established an informal MOU process in its own Management Plans for Arizona?s Active Management Areas and substantive policy statements. GK Mr. Thomas Buschatzlx'e January 6, 2017 Page 6 As noted in my October 7, 2016 letter to ADEQ and ADWR, the informal MOU process used by ADEQ and ADWR for decades should simply be formalized to protect all prior PQG WPs that did not obtain a waiver of any Title 45 provisions and allow expedited review and issuance of all future l?QGWl?s to implement governrnent~approved remedial actions as required by Title 49. A formal MOU would provide the certainty that a will be expeditiously processed and issued and the consistency that all government-issued applications will be treated the same. Fomializing the process already outlined in statute and Management Plans and substantive policy statements could be achieved within days. compared to the over two and a half months that we have been requesting a meeting between ADWR and ADEQ. Sadly, ADW continues to disregard the statutory obligation to execute a formal MOU, as demonstrated by the absence ofany discussion ofthe MOU in your December 30. 2016 letter, and continues to manufacture excuses to unlawfully delay implementation of the ADEQ-approyed remedial actions at the WVBA WQARF Site. NEED FOR REMEDIAL ACTION A'l? SITE Consistent with prior approvals, a groundwater remedial action is necessary to protect public health, welfare and the environment at the WVBA WQARF Site. The ADEQ- approved groundwater remedial action being undertaken at the WVBA Site has been determined by ADEQ to comply with the following mandatory remedial action criteria in ARS 49-28206: assure the protection ofpublic health and welfare and the environment; (ii) provide for the control, management or cleanup ofthe hazardous substances in order to allow the maximum beneficial use of the waters of the state; be reasonable, necessary, cost- effective and technically feasible; (iv) address, at a minimum, any well that at the time of selection of the remedial action would now or in the reasonably foreseeable future produce water that would not be fit for its current or reasonably foreseeable end uses without treatment due to the release of hazardous substances: and be consistent with the requirements of title 45, chapter 2. Additionally, many ofthe costs incurred to implement the ADEQ-approvcd groundwater remedial action have been determined by ADEQ to be "reasonable, necessary and cost-effective remedial action costs incurred in response to a release or threat of a release of a hazardous substance or pollutants that presents an immediate2 and substantial endangerment to the public health or the environment.?3 The groundwater within the WVBA Site is contaminated by numerous hazardous substances. including TCE, above applicable Arizona water quality and public health standards. which creates an immediate and substantial endangerment to public health, welfare and the environment. As you may be aware, TC was recently upgraded by the nited States 3 As noted in Lincoln Properties. Ltd. Higgins, 1993 WL 217429, 13 1993) and other courts, ?a ?nding of ?immincnee? does not require a showing that actual harm will occur immediately? since "an endangerment need not be immediate to be ?immincnt.?" Ilowever. despite this legal distinction. the terms ?imminent? and "immediate" are routinely identified as synonyms. Sue and 3 ARS 49-282.E.1 l. GK Mr. Thomas Buschatzke January 6, 2017 Page 7 Department of Health and I luman Services? National Toxicology Program to a ?known human carcinogen.? This recent federal action is consistent with 2011 toxicological review and determination that TCE is carcinogenic to humans by all routes of exposure and poses a potential human health hazard for noneancer toxicity to the central nervous system, kidney, liver, immune system, male reproductive system and the developing embryo/fetus. EPA has recently recommended a not?to-be exceeded, average TCE air exposure level of 2 micrograms per cubic meter (pg/m3) for women of reproductive age due to a heightened potential risk of fetal heart defects. Pursuant to the ADEQ-approved [Early Response Action for the WVBA WQARF Site. 'I?Cli and other hazardous volatile organic compounds (VOCs) in air were sampled in the Public Health Exposure Assessment for the WVBA WQARF Site. The sampling identi?ed the presence and other VOCs in all air samples obtained in proximity to the RID wells and water conveyance systems in concentrations ranging from 1.88 to 29 rig/m3 in the breathing zone where the public may be exposed near RID wells and diversion structures. In contrast, these same VOCS were not detected in background samples at locations away from the sources of air emissions associated with the RID water system. The observed 'l?Cli concentrations in ambient air generally exceed the threshold EPA now considers protective for short-term exposure to sensitive populations in a residential setting. As outlined in the ADEQ-approved RID Feasibility Study Report and recent ADEQ groundwater samples, the groundwater within the WVBA WQARF Site exceeds the applicable Arizona aquifer water quality standards (AWQSs). ADWR has noted that the AW QSs ?are the cornerstone of the state?s groundwater protection program? and ?because all aquifers in Arizona are classified and protected for drinking water use, Arizona?s [numeric and narrative] AWQSs are enforceable standards for water quality in all of Arizona?s aquifers.?4 ADWR has acknowledged that ?Arizona has adOpted the federal primary MCl.s, established under [the Safe Drinking Water Act], as numeric and that "Arizona?s narrative AWQS include the following: (1) a discharge shall not cause a pollutant to be present in an aquifer classi?ed/or a drinking water protected use in a concentration which endangers human health and (3) a discharge shall not cause a pollutant to be present in an aquifer which impairs existing or uses o/?water in an aquifer.?S Based on the recent EPA determination that TC is more toxic than previously known when the current federal MC l. (5.0 rig/L) was promulgated, the ICE concentrations in the WVBA Site, based on recent water quality sampling by ADEQ, signi?cantly exceed the current 5.0 rig/L numeric and the narrative AWQS (likely around 1.0-2.0 4 Phoenix AMA Third Management Plan. 7-7. citing ARS 5 Id. In the latest ADEQ water quality sampling conducted ?rst quarter 01?2015, concentrations as high as 67.9 ngtL, 189.0 uglL and 23.1 ug?L were detected in the upper alluvial unit 1, the upper alluvial unit 2, and the middle alluvial unit ofthe aquifer, respectively. 7 Recent discussions throughout the country suggest that the near future closer to 1.0- 2.0 rig/L in order to account for the new EPA toxicity data. 1n fact, the current EPA Region 9 Regional Screening Level for TCE in residential tap water (drinking water) is 0.49 rig/L. Mr. Thomas Buschatzke January 6, 2017 Page 8 CONCLUSION As we have noted in numerous writings and meetings with ADW for months now, failure to comply with its Title 49 obligations and its 30-year historical practice of routinely issuing to implement govermnent-approved remedial actions is prohibiting implementation of the speci?c groundwater remedial action approved by for the WVBA QARF Site, resulting in continued violations ol?the enforceable aquifer water quality and public health standards and the uncontrolled release and exposure of the local minority community to hazardous VOCs at levels exceeding established EPA thresholds. Unless ADWR provides appropriate assurances by January 31, 2017 that it will ?expedite the processing and issuance? of a ?to facilitate the prompt conduct of [the approved remedial action? for the WVBA WQARF Site as required by state law, we have no other option but to take any and all actions necessary to protect public health, welfare, the environment and legal rights in its wells and water supply. Very truly yours, KENNEDY, P.A. )avid P. Kimba cc: Hunter Moore, Governor '3 Of?ce Henry Darwin, Governor ?s Michael Liburdi, Governor ?3 Office Danny Seidcn. Governor Of?ce Misael Cabrera. Attachment JANICE K. BREWER SANDY FABRITZ-WHITNEY Governor Director ARIZONA DEPARTMENT RESOURCES 3550 North Central Avenue. Second Floor Phoenix, Arizona 602.771.8500 amatergov October 21, 2013 Mr. Donovan Neese Roosevelt Irrigation District 103 West Baseline Road Buckeye. Arizona 85326 Dear Mr. Neese, On May 7, 2010, the Department issued a letter (May 7, 2010 letter) to Mr. Stan Ash by of the Roosevelt Irrigation District (RID). Among other things, the May 7, 2010 letter suggested that "a difference of opinion regarding the duration of the contract? between RID and the Salt River Valley Water Users? Association (SRVWUA) could negatively affect the legal availability of groundwater pumped by RID for use within its boundaries, for purposes of Assured Water Supply determinations. Pursuant to your request, the Department has reviewed the following agreements provided by counsel for RID: 1. Water Contract, dated August 25, 1921, between the Carrick Mangham Agua Fria Lands irrigation Company and SRVWUA. 2. Assignment, dated July 11, 1923, between the Carrick Mangham Agua Fria Lands 8i Irrigation Company and RID. 3. Supplement Agreement, dated February 3, 1927, between RID and SRVWUA. 4. Supplement Agreement, dated May 31, 1950, between RID and SRVWUA. After review. the Department has determined that the duration of these agreements would not affect the legal availability of groundwater pumped by RID for use within its boundaries, for purposes of Assured Water Supply determinations. If I may be of further assistance, please contact me at (602) 771- 8615. Sincerely, Andrew Craddock, Manager Recharge, Assured 8L Adequate Water Supply Program Attachment Kenneth C. Slowinski From: Kenneth C. Slowinski Sent: Wednesday, May 20, 2015 4:19 PM To: ?John Weldon" Subject: Draft letter from Tom Buschatzke to David Kimball Attachments: Draft Letter to David Kimball 5-20-15.docx David and John, l'm attaching the draft letter from Tom Buschatzke to David Kimball that I spoke to both of you about this afternoon. if you have any comments on the draft letter, please submit them Friday, May 29. Thank you. DRAFT 5-20-15 David P. Kimball, GALIAGHER KENNEDY 2575 East Camelback Road Phoenix, Arizona 85016-9225 Re: letters dated October 21. 2013 and March 31, 2015 Dear Mr. Kimball: I am writing to provide further clari?cation of the letter from Andrew Craddock of the Arizona Department of Water Resources to Donovan Neese of the Roosevelt Irrigation District dated October 21, 2013 (?2013 Letter?). I am also providing further clarification of my letter to RID and Salt River Project dated March 31. 2015 (?2015 Letter?). The 2013 Letter was sent to RID after you requested ADWR to review four agreements between RlD?s predecessor, RID and the Salt River Valley Water Users? Association and provide RID with a letter stating whether the duration of those agreements would affect the legal availability of groundwater pumped by R11) from wells within boundaries for use within boundaries for purposes of future Assured Water Supply determinations. As stated in the 2013 Letter, ADWR reviewed the four agreements and determined that the duration of the agreements would not affect the legal availability of the groundwater for purposes of AWS determinations. This statement was based on reading of the face of the agreements. and the fact ADWR did not see an expiration date in the most recent agreement. The 2013 Letter was based solely on ADWR's review of the four agreements provided to us, and did not address any other factors that might come before ADWR if an AWS application that includes such groundwater as a source of supply were filed with ADWR at a later date. Accordingly, the 2013 Letter was not intended to be a decision by ADWR regarding the duration of the agreements or whether groundwater pumped by RID within boundaries would be legally available for future AWS determinations. At the time ADWR sent the 2013 Letter, it recognized that facts or legal issues outside of the face of the agreements could affect the duration of the agreements and long-term ability to pump groundwater within boundaries. which in turn could affect the legal availability of the groundwater for AWS purposes. ADWR also recognized that facts and legal issues unrelated to the duration of the agreements could affect the legal availability of the groundwater for AWS purposes. attorney explained this to you betore A1) WR sent the 2013 Letter. After ADWR sent the 2013 letter to RID. SRP requested clarification from ADWR regarding the 9.013 Letter. Specifically. SRP requested that ADWR clarify that the 2013 Letter was not a 1 formal and binding opinion by ADWR with respect to any future AWS applications and that other legal and factual issues potentially could affect long-term ability to pump groundwater within boundaries. Because the 2013 Letter was limited as explained above. I felt it was appropriate for me to send the 2015 Letter and make the clarification contained in that letter. The 2015 letter clari?es that that ADWR has not made a formal decision on whether the groundwater RID intends to pump within boundaries may be included as a legally available water supply in a speci?c AWS determination. and that any decision by ADWR on that issue would be made if and when it receives an application that includes such water as a proposed source of supply and would be based on all facts available to ADWR at that time. The 2015 Letter did not withdraw any statement made in the 2013 Letter. However, it clari?es that if ADWR receives an application for an AWS determination that includes groundwater to be pumped by RID within SRVWI lA?s boundaries. ADWR will consider any relevant facts and legal issues not considered by it when it sent the 2013 Letter in determining whether the groundwater is a legally available water supply for the applicant. Sincerely. 'l'homas Buschatzke cc: David C. Roberts, SRP Attachment I BAK601 AMENDED STATEMENT OF CLAIMANT FORM File 50. 39-50055 FOR Date Revised: WFN - OTHER . i :2 i 3; VERDE RIVER WATERSHED if; f. 3 n. .. . SUPERIOR COURT or MARICOPA COUNTY I ?51. mem?amtbee Attachment 1) . suemCElaimam City braiet?? W_Zip Code Telephone 2. Basis of Claim: A. I Appropriation Right acquired prior to June 12, 1919. 1974 Water Rights Registration Act Registry No. M086 (as amended! B. I Appropriation Right acquired after June 12,1919. Application No. (See Attachment 2) Permit No ,or Certi?cate of arer Right N0. C. I Decreed water right Principal litigants court date and case no (See Attachment 3) D. El Right to withdraw groundwater Grandfathered Right No E. I Other, describe: (See Attachment 3) 3. Claimed Priority Date: (month/daylyear) (See Attachment 4) 4. Use: A. I Municipal E. I Recreation, Fish Wildlife B. I Commercial or Industrial F. I Other, describe: C. I Mining Lrg'gotion, Domestic. Power D. I Stoc kwatering other than from a stockpond 3. Source of Water: (See Attachment 5} A. I Stream: name Verde River tributary to Salt River E. El Spring: name tributary to C. I Lake or Reservoir: name tributary to D. I3 Groundwater. 6. Legal description of the Point of Diversion: (See Attachments 6-1 through 6- 3) Section ,Township__ Range 7. If there are Irrigation, Domestic or Stockpond Uses also supplied from the Point of Diversion, describe: (See No. 4 above) 8. Means of Diversion: {See Attachments 3 and 7) El Instream pump. I Gravity flow into a ditch, canal or pipeline. I Well: Arizona Department of Water Resources Well Registration No. 55? Other, describe: See instructions for explanation of uses in this category ll). 11. 13. 14. 15. 16. 17. Means of Conveyance: (See Attachments 8?1 and 8-2} A. I Ditch, canal or pipeline. If the means of conveyance is owned and/or operated by some other entity, please give name and address: 8. I Other, describe: Place of Use, if other than point of diversion: (See Attachments 9-1 and 92) County Marimpa Legal Subdivision Section Township Range Claimed Right: (See Attachment 10) El cubic-feet per second A. Maximum Flow Rate: El gallons per minute El Arizona miner?s inches B. Annual Volume of Water Use: acre-feet C. Storage Right: acre-feet Attach photographs, maps or sketches necessary to show the point of diversion, storage reservoir(s) place(s) of use and means of conveyance. (See Attachments 6-2, 6-3 and 9-2) It may be necessary for a representative from the Department of Water Resources to inspect the diversion, conveyance and place of use. Your signature following will grant ission to enter your property for the purpose of inspection: Signature of Claimant. Should it be necessary for a representative of the Department to contact you as the claimant or your representative, are there any special instructions regarding time of day or address to aid in locating the speci?ed person? Mr. David C. Roberts (602) 236-2343 Attach Filing Fee to Form. Mail form(s) and ?ling facts) to: Department of Water Resources Adjudications Division, 15 South 15th Avenue, Phoenix, Arizona 85007. Additional comments: This Statement of Claimant relates to the SRP reservoirs in the Verde Rive watershed and water uses in the Verde River and Lower Gila River watersheds. As discussed iJ Attachment SRP has ?led related Statements of Claimant for its reservoirs and water uses in th Salt River watershed and for its water uses in the Lower Gila River watershed. (attach additional sheet if required) Notarized Statement: 1(We), William P. Schrarler, President the claimant(s) named in this claim, do hereby certify under penalty of perjury, that the informatir contained and Statements made herein are to the best of my(our) knowledge and belief true. correct at complete. (seal) 1.7 1" 2/4. 2 M5 game an i Commission Expires Notary Public 9n- .cw. sr-Tm TERR Ll. A KONON NOTARV Pi RI MARISOFA COUNTY 28. 2003 or, Authorized Personnel of the Department of Water Resources My 00mm {wires - Attachment 1: A ttachment 2: Attachment 3: Attachment 4: Attachment 5: Attachment Attachment 6-2: Attachment 6-3: Attachment 7: Attachment Attachment 8-2: Attachment 9 1: Attachment 9-2: Attachment 10: Attachment 11: LIST OF ATTACHMENTS Claimant Name Applications to Appropriate Water Basis of Right - Verde River Claimed Priority Dates Source and Storage of Water Horseshoe Dam and Reservoir Map Bartlett Dam and Reservoir Map Phoenix Verde Pipeline and Verde Treatment Plant Map Means of Diversion Means of Conveyance Means of Conveyance Map Place of Use Description Place of Use Map Claimed Right Related Statements ol'Claimant File No. 39-50051 File No. 39-50055 ATTACHMENT 1 CLAIMANT NAME This claim is made by the Salt River Valley Water Users? Association (Association or SRVWUA) and the Salt River Project Agricultural Improvement and Power Disrrict collectively referred to as SRP, for themselves and on behalf of SRVWUA shareholders. In addition, this claim includes water necessary to ful?ll SRP's obligation to deliver water to the following entities in satisfaction of their independent water rights, pursuant to the following decrees, settlements, and agreements, and all supplements and amendments thereto: Arlington Canal Company - Stipulation Between Arlington Canal Company and Salt River Valley Water Users? Association, Roosevelt Irrigation District, and Marioopa County Water Conservation District No. 1, 1944 Bogle Farms, Inc. et 211. Agreement between the Salt River Valley Water Users? Association and Boglc Farms, Inc. et al., 1965 Buckeye Irrigation Company Basis of Settlement of Litigation Between Buckeye Irrigation Company and the Salt River alley Water Users? Association, 1943 City of Phoenix - Agreement between Salt River Valley Water Users? Association and the City of Phoenix, A Municipal Corporation. 1946 Fort McDowell Indian Community - Fort McDowell Indian Community Water Rights Settlement Agreement. 1993 Lakin Cattle Company Agreement Between Loring C. Lennox and the Salt River Valley Water Users? Association, l92l MariCOpa Garden Farms Agreement between the Fidelity Savings Loan Association and the Salt River Valley Water Users? Association, 1924 Maricopa Indians Contract for Pumping Water for Maricopa Indians on Gila River Indian Reservation, 1936 New State Irrigation and Drainage Disuict Agreement between New State Canal Company, Landowners, and the Salt River Valley Water Users? Association, 1924 Peninsula-Horowitz Agreement Between the Salt River Valley Water User?s Association, Roosevelt Irrigation District, and Valley Bank and Trust Company, N. P. McCallum, George Taylor, T. W. Barker, C. W. and Bertha Boggs, A. B. Vault, W. A Thompson, and Maude M. Tanton Grunshaw. I930 Phelps Dodge Corporation - Agreement between Salt River Valley Water Users? Association, Phelps Dodge Corporation, and Defense Plant Corporation, 1944 Roosevelt Irrigation District - Agreement between A. A. Carriek and Frank J. Mangham and the Salt River Valley Water Users? Association, 1920 Roosevelt Water Conservation District Agreement between the Salt River Valley Water Users' Association and Auxiliary Eastern Canal Landowners? Association, "1920 Salt River Pima-Mariwpa Indian Community - Agreement between the United States and the Salt River Valley Water Users? Association Verde River Storage Works. 1935 Salt River Pirna~Maricopa Indian Community Salt River Pima-Maricopa Indian Community Water Rights Settlement Agreement, 1988 St. John?s Irrigation District Agreement between St. John?s Irrigation District and the Salt River Valley Water Users? Association, 1924 Attachment 1, Page 1 Attachment TABLE 10. GROUNDWATER REMEDIAL ACTIONS - COMPARATIVE ANALYSIS West Van Buren Area WQARF Site Treatment Technology Required Treatment Leyals' End Use at leniediated Wear Remedy Capital Cost (in years completed) Capital Cost (2014 aoiimi' De?gn tram Capacity NormalizedJ unit-I Costs] mam-em (Sim) Amount oil Groundwater Enacted Through 2013 Ammorvoc Mass llenmed Through 2013 Average Annual Groundwater Pump In Treat Rate Routine 08M Cost Annual VOC Mass Removal late Annual 00M Costs Routine oaivi Cost (Sinai) M52 CEICIA Site Operabla Unit 1 Air Stripping with VGAC Primary Drinking Water Standards Industrial Sanitary Sewer Irrigation $3.1 (1992) $5.3 MM 010 gpm? 3.6 billion gaiions? 23,635 pounds? 230 grirriI (2010-2013) 21?. (mm, 813 pouni'irilyeaiJ (2010-2013) 899 pouringI 51310" $1.446 $1.3 MM/year? (2006-2010) $6.37? (2006-2010) $11.50 M52 SID. Operable Unit 2 LGAC (lead/lat) Primary Drinking Water Standards Irrigation $12.0 (2001) 516.2 MM 5300 gpm' $3,057 13.3 billion gaiions? 14,116 pounds l 2.108 (2010-2013) 1019 mm' 612 pounds/yeark (2010-2013); I .101 001mm $794" $2,743 $1.1 MM/year? (zoos-2010) $0.84" (20007010) 31 no MOW CERCIA Sit. Central Wet Treatment Facility Air Stripping with VGAC Primary Drinking Water Standards Drinking Water $10.4 (19932000) $16.2 MM 9,400 0001? $1,723 56.8 billion gallons' 51,129 pounds' (ICE onIy) 4,343 gpm' (2010-2013) a 024 an m? Ta only 1,065 pounds/year' (2010-2013) 1,004 nounml $807 (20102013) $050 $0.86 MiVI/year'I (2005-2009) $0.37 (2010-2013] S0 mew CERQA Site Miller load Treatment Facility Air Stripping with VGAC Primary Drinking Water Standards Drinking Water 5103 (1995.97) $15.3 MM 5,300 gprn? $2,429 32.4 billion gallonsI 7,937 pounds' (ICE NW) 4,891 gpin' (2010-2013) 4,003 gnm' TCE only 57? pounds/year' (2010-2013) I 401001.01? $0.54 MM/year' (2005-2007) $2.3 MM/year (2003) $932 - 4,064 (2010-2013) SI, Md 5, 18 $0.21 - 0.91 (20102013) so 25- 1 11 CERCIA Site tuaon Airport Remediation Project Air Stripping with VGAC Primary Drinking Water Standards Drinking Water $8.7 (1990) 513.9 MM 6,200 gpm" $2,242 38.1 galions"l 4,570 pounds"I (TCE only through 2012) 3,274 mm? (2010-2013) 2.511 20mm TCE only 161 pouniils/year"I (2010-2013) 107 nondsm $0.85 MM/year? (before 1.4- dioxane treatment began) $5.280 (2010-2013) 37944 $0.49 (2010 2013) ?n m1 Primary Driidring Water Standad: Winn Water' $9.4 MM 13,300 pin" $707 - 11,750 gpm" um I a "$570 "51.7 Min/year" $0.27 LGAC (lead/Ira) Primary Drinking Water Standards Irrigation Drinking Water. $13.6 $13.6 MM ~19,soo 39m? $697 16,071 gpm" 2.820 . $883 pounds/year - $2.5 Min/year" $0.29 LGAC (lead/lair) Primary Drinking Water Standards Irrigation Drinking Water. $14.6 MM. $14.6 MM ~13,300 .pm? $1,098 12,142 gpm" 2,569 $708 pounds/year $1.8 (VIM/year? $0.28 (lead/lat) Primary Drinking Water Standards Irrigation Drinking Water- $19.5 $19.5 MM ~29,1oo gym? $670 23,047 spin" 3,164 $1.120 pounds/yea;l $3.5 MM/year?" a: 50'29 Pmidl Envmn'wr'rru. LII TABLE 10. GROUNDWATER REMEDIAL ACTIONS - COMPARATIVE ANALYSIS West Van Buren Area WQARF Site Notes: 1) Treatment Levels applicable to site Contaminants of Concern 2) Based on percentage Increase in Consumer Price Index (CPI) from dates of construction completion through May 2014. 3) Capital Cost in 2014 dollars relative to design treatment capacity in gpm. Values in red denote 2013 reported values/metrics A i 5: M52 Motorola 52nd Street Superfund Site LGAC liquid-phase GAC operation and maintenance NIBW North Indian Bend Wash lb pound VOC volatile organic compound TIAA Tucson International Airport Area Kgal thousand gallons TCE trichloroethene WVBA West Van Buren Area MM million values are estimates VGAC vapor-phase GAC 2 gallons per minute CERCLA Comprehensive Environmental Response, Compensation, and Liability Act (Superfund) Exganatlon: a) A major portion of remediated water is planned for municipal use pending RID construction of a separate conveyance pipeline from the WVBA Site to District land. b) Letter of Determination for Motorola 52nd Street Facility Phoenix, dated September 30, 1988. c) Flnal Remedial Action Report for Motorola 52nd Street Superfund Sire, Operable Unit 2 Area Phoenix, Arizona, prepared by Black Veatch Corporation, dated September 12, 2003. d) Final Feasibility Study Addendum North Indian Bend Wash Superfund Site, Scottsdale, Arizom, prepared by the NIBW Participating Companies, dated November 15, 2000 (See Table MS in Appendix M, Volume 5). e) Verbal communication: Mr. Jeff Biggs, Project Coordinator, Tucson Airport Remediation Project, Tucson Water. f) Draft Feasibility Study Report West Van Buren Area WOARF Site, Phoenix, Arizona, prepared by Synergy Environmental See Table 5 for design treatment capacity and Table 7 for capital and costs). g) 2011 Sitewide Five-Year Review Report, Motorola 52nd Street Superfund Site Phoenix, Arizona, prepared by URS Corporation, September 2011 [See Sections 4.1 and 4.2; Tables 4-1 and 4-2). h) First Five-Year Report for Tucson International Airport Area Superfund Site Pima County, Arizona, prepared by US. Environmental Protection Agency, September 2013 (See Section 4.2.1 for pounds of VOCs removed and volume of groundwater extraction over 216 month period, and Section 4.3.1 for costs [2001]). i) The proposed remedy provides remediation of up to 26,800 water supply when including blending of other contaminated supply wells that would operate according to an approved remedial action plan. j) Information pertaining to amount of groundwater treated and mass removed is from annual Operable Unit No. 1 Effectiveness Reports prepared by Clear Creek Associates. k) Information pertaining to amount of groundwater treated and mass removed is from annual Effectiveness Reports for 20th Street Groundwater Treatment Facility, Operable Unit 2 Area prepared by Connestoga-Rovers 8i Associates. I) Information pertaining toamount of groundwater treated and mass removed is from annual Site Monitoring Reports, NIBW Superfund Site prepared by the NIBW Participating Companies. m) Information pertaining to amount of groundwater treated and mass removed is from annual Water Quality Reports prepared by Tucson Water. n) Estimated pumping rate is based on assigned pumping of remedy wells developed for the FS Model (see Appendix F). 0) Based on reported 2013 concentrations of PCE, TCE, and and projected pumping in groundwater modeling scenarios (see Appendix F). p) Motorola 52nd St. Superfund Site, Five-Year Review Completed Fact Sheet prepared by Environmental Protection Agency and Arizona Department of Environmental Quality (See page 2 for average VOC mass removed and average volume of groundwater extracted for 2006-2010). q) First Five-Year Review, Indian Bend Wash Superfund Site Scottsdale and Tempe, Maricopa County, Arizona, prepared by U.S. Environmental Protection Agency, September 2011 (See Table 4~8; periodic rehabilitation costs not included in Costs Summary). r) Excluding line item costs for area-wide groundwater monitoring and capital equipment costs from Table 7 Draft Feasibility Study Report West Van Buren Area WQARF Site, Phoenix, Arizona, prepared by Synergy Environmental. SYNERGY Page 2 of 2 ENVIRONMINTII. EXHIBIT 2 -- . JANICE K. BREWER snuonnin. FABRITZWHEY Governor Qirector ARIZONA DEPARTMENT OF WATER RESOURCES 3550 North Central Avon ue, Phoenix. Arizona 85012 Telephone (502) 7? 1 .5500 November 7. 201! Stunlcy Ashby Roosevelt irrigation District West Baseline Road Buckeye, AZ 85325 Re: West Van Huron Area Water Quality Assurance Rovolving Fund Registry Site Dear Mr. Ashby. This letter is in mspottSc to your letter dated Juiy 2011 regarding the West Van But-on Area Water Quality Assurance Revolving Fund Registry Site (?West Van Buren Site"). Specifically you asked if the Arizona Department of Water Resources (?Department?) agreed With your understanding that the treated groundwater supply Roosevelt irrigation District may providc from this site {?remcdintod groundwater") can he wheeled through the RID conveyance system. retain its in be as surface. water and will be exempt from replenishment ohiigations under current statute and rule by the end user. First. the Department concurs that RID has the ability to deliver the rcmodiatod groundwater to non-irrigation customers within its service area. Booniusc RID went in existence and engaged in the withdrawal, deliver} and distrihution ofgroundwatcr as ol?Januar-y l. 1977, it has the right to withdraw and transport groundwater to landowners within its service area. which may include new non-irrigatiOn customers. Sec Arizona Revised Statutes 45?494? However. there is one limitation that applies to industrial users. A.R.S. provides that an industrial user may not obtain groundwater delivery service from an irrigation district in excess oi?the amount it was entitled to receive on the date of designation of the active: management area unless the industrial user has acquired a grandfathered right or has obtained a general industrial use permit. Second. as provided ?u in sections 4-107, 15 and 6-204 of 'l'hird Pian for the Phoenix Active Mzmagemont Area entitled ?Rd-mediated (irotindwatcr Accotmting for Conservation Requirements," groundwater pursuant to on approved remedial action project under the Comprehensive Environmentai Response. Comp-cusntion and liability Act or Title 4-9. Arizona Revised Statutes, and used by a person subject to a conservation requirement established under chaptcr 4, at 6 ol? the TM shali be accounted for consistent with the accounting for surface water For purposes of determining tho person?s compliance with the conservation requirement. t-HM-nnI-r-mmomn. - hat-mum- ?Ii-?munch ?1 While this water is accounted as surface water for purposes of compliance with the conservation requirements in the TM P. it is accounted differently in the case ofAssurcd Water Supply. i?Or purposes of the Assured Water Sopply program, it is important to clarify that this water is still accounted for as groundwater. The is whEther or not the use of remediated groundwater can be deemed consistent with the management goal ofthc AMA as set forth in Arizona Administrative Code 'l'it'lc l5, Chapter 12, Article 7. including A.A.C. 3-l 5-?22 with Management Goal") and thus be exempt from replenishment ob-ligatinns. A municipal providet's use of groundwater withdrawn put'Suan?. to an apprmed remedial action project will be deemed cmsistenl with the management goal of the AMA if the conditions in A.A.C. 121245-729 (?Remedial Groundwater; Consistency with Management Goal?) are met. One of those conditions is that the municipal provider must apply to the Department for a determination that the municipal provider's use of the groundwater is consistent with the management goal of the AMA before Jammy I. Finally, you requested con?rmation that RID has the ability to 'thel? the remedinted groundwater through its conveyance system. in most cases a water provider cannot wheel its own water to customers through its own conveyance system. in other words. a water provider cannot introduce a specific type of?watcr into its conveyance system, isolate that water its other water sources in the system. and direct the water to a speci?ed customer (except as provided in A.R.S. However, because it was the. intent of the Legislature to encourage the use of remediated groundwater by mun icipel water providers and for purposes of Assured Water Supply only, RID could withdraw the remediated groundwater and wheel it through its system to a speci?ed municipal provider within its service area who has applied for and been granted a determination that the municipal provider?s use of the remediated groundwater is con sistent with the management goal of the AMA. The use ofthe remediatcd groundwater by that municipal provider would be exempt from replenishment obiigations until January I, 2025 Under the current law. I hope this letter has answered the questions you have raised. The Department understands the importance of this issue and would be more than happy to further assist you in this matter. Please contact Scott Miller at 602-771?8604 if you would like to have any follow up discussions. Director cc: Scott Miller. Statewide AMA Director Ken Slowinski, Chief Legal Counsel I'hc Jamar) l. 20m deadline was established in session inu' (Laws (?lt 2.87. . JANICE K. BREWER FABRHZ-WHITHEY Governor Director amour. 9;??le RESOURGIS 3550 North Central Avenue. Second Floor Phoenix. Arizona 85012-2105 602.771.8500 ammo rigov October 21, 2013 Mr. Donovan Neese Roosevelt irrigation District 103 West Baseline Road Buckeye, Arizona 35326 Dear Mr. Neese, On May 7, 2010, me Department issued a letter (May 7, 2010 letter) to Mr. Stan Ashby of the Roosevelt Irrigation District (RID). Among other things, the May 7, 2010 letter suggested that "a difference of opinion regarding the duration of the contract" between RID and the Salt River Valley Water Users? Association (SRVWUA) could negatively affect the legal availability of groundwater pumped by RID for use within its boundaries, for purposes of Assured Water Supply determinations. Pursuant to your request. the Department has reviewed the following agreements provided by counsel for RID: 1. Water Contract, dated August 25, 1921, between the Carrick 8t Mangham Agua Fria Lands Irrigation Company and SRVWUA. 2. Assignment, dated My 11, 1923, between the Carrick a Mangham Agua Fria Lands 8: Irrigation Company and RID. 3. Supplement Agreement, dated February 3, 1927, between RID and SRVWUA. 4. Supplement Agreement, dated May 31, 1950, between Rio and SRVWUA. After review. the Department has determined that the duration of these agreements would not affect the legal availability of groundwater pumped by RID for use within its boundaries, for purposes of Assured Water Supply determinations. If I may be of further assistance, please contact me at (602} 771* 8615. Sincerely. Andrew I. Craddock, Manager Rocha rge, Assured 8t Adequate Water Suopiy Program - Ennis, Sonja G. From: Sent: To: Subject: Dave, Kenneth C. Slowinski Tuesday, August 04. 2015 11:57 AM Kimball David P. RE: ADWR Confirmation Letter Director Buschatz ke has asked me to let you know that he will not be sending any additional letters to RID on this matter. Director Buschatzke believes his March 31, 2015 letter to RID and SRP accurately states position regarding the issues described in that letter, and he does not believe that an additional letter is necessary or warranted. There appears to be a misunderstanding regarding my conversation with y0u following our meeting on May 19, 2015. You state in your email that following the May 19 meeting, I con?rmed by telephone that ADWR would be issuing another letter to RID. i did not make such a statement. Instead, I stated that Director Buschatzke would send another letter only if both RID and SRP agreed to the contents of the letter. After communicating the contents of several draft letters to you and SRP's attorney, it became clear that an agreement on a letter accepta bie to both parties could not be reached. Ken Slowinski Chief Counsel Arizona Depa rtment of Water Resources 602?771v84?2 amoral-s time sunrises hr no naxr cement From: Kimball Ill, David P. [mailtozDPK@gknet.coml Sent: Wednesday, July 29, 2015 12:28 PM To: Kenneth C. Slowinski Subject: ADWR Con?rmation Letter Ken: i am writing to thank you personally, first, for keeping me and RID generally informed through our multiple voicemalls, telephone calls and email correspondence over the last two months and, secondly, for preparing multipie draft letters on behalf of ADWR to resolve RID concerns with March 31, 2015 letter to me. All of the ADWR draft letters were intended to con?rm in writing what ADWR verbaiiy clarified during our meeting with representatives of the Governor's office on May 19, 2015. During the May 19 meeting, you verbally clarified on behalf ofthe ADW that ADWR's March 31, 2015 letter to me was not intended to modify. withdraw or In any way annul any of the ADWR statements contained in its October 21, 2013 letter to RID and that the May 7, 2010 and October 21, 2013 ADWR letters to RID speak for themselves. The day after the May 19 meeting, you confirmed by telephone that ADWR would be issuing a letter con?rming in writing what ADWR clari?ed verbally at that May 19 meeting. Since your May 20, 2015 confirmation, RID patiently has been waiting to receive ADWR's ?nal written canfirmation. The delay has been unexpected as ADWR issued a draft confirmation letter, dated May 20, 2015, for RlD's comment. Except for some minor, inconsequential edits, RID acknowledged that May 20, 2015 draft con?rmation letter accurately reflected what ADWR clarified during the May 19 meeting. Expecting ADWR immediately to finalize and issue its confirmation letter, RID was Surprised to hear that ADWR was waiting to receive comment from SRP on ADWR's May 20, 2015 draft con?rmation letter to RID, particularly when SRP was not present at the May 19 meeting and was not involved in ADWR's issuance of its October 21, 2013 letter to RID. After additional time had pa ssed, you contacted me and asked if would have any problem with adding a final sentence to the earlier ADWR draft letter that hopefully would placate SRP. Although RID strongly objected to any involvement by SRP, after hearing ADWR's proposed final sentence over the phone, and it not being inconsistent with ADWR's statements to RID during the May 19 meeting and in ADWR's October 21. 2013 letter, RID expressed no objections to ADWR's proposed additional sentence. Notwithstanding RID's acceptance of these two ADWR draft letters, no ?nal ADWR letter was forthcoming. Instead, you advised me by phone that SRP objected to ADWR's two draft letters (to RID) and that SRP had drafted alternative language for ADWR's letter to Rio. You recited some of the SRP alternative language over the phone, and RID strongly objected to the SRP language as it was inconsistent with ADWR's verbal clarifications at the May 19 meeting and with ADWR's own words and statements in its October 21, 2013 letter to RID and its May 20, 2015 draft con?rmation letter to RID. After the aforementioned discussion, RID Submitted 3 public records request to ADWR regarding SRP's discussions with ADWR on RID matters, and became aware of a recent third uthored draft confirmation letter, dated June 26, 2015, that. is only two sentences: I am writing regarding the letter from the Arizona Department of Water Resources to Roosevelt Irrigation District dated May 7, 2010 and October 21, 2013 ("Letters"). This is to inform you that the Letters speak for themselves and my letter to RID and Salt River Project dated March 31, 2015 does not withdraw any statements made in those Letters. This third ADWR draft con?rmation letter, albeit sho rt. was consistent with verbai clari?cation to RID at the May 19 meeting and with the qualifications in ADWR's 2010 and 2013 letters to RID. Accordingly, informed you that any of the three draft confirmation letters actually authored by ADWR {and only ADWR) is acceptable to RID. Nonetheless, it now has been over two months since ADWR committed to provide written confirmation to all) consistent with ADWR's comments at the May 19 meeting. RID appreciates ADWR's burdensome schedule, but ADWR has authored three draft con?rmation letters (the last draft confirmation letter being only two sentences) that are consistent with ADWR's verbal clari?cations to RID at the May 19 meeting, and has con?rmed to ADWR that all three draft con?rmation letters are acceptable. RID sees no reason for any further delay in ADWR issuing any one of those three ADWR draft confirmation letters. Upon your return from vacation next week, prompt issuance of any one of those three ADWR-authored con?rmation letters would be appreciated. Please contact me if there is anything RID needs to do to facilitate the issuance of any one of those ADWR con?rmation letters. Dave Gallagher?igllennedy David 9. Kimbail Attome Profile 2575 E. Camelback Road, Suite 1100 . 8 016 9225 dpk@gknet.com 602-530?8000 I This message and any of the attached documents contain information from the law ?rm of Gallagher Kennedy, PA. that may be con?dential and/or privileged. If yen are not the intended recipient. you may not read, copy. distribute, or use this information, and no privilege has been waived by your inadvertent receipt. If you have received this transmission in error, please notify the sender by reply e-maii and then delete this message. Thank you. EXHIBIT 3 OF Douglas A. Ducey Governor February 10, 2017 John K. Castle, Chairman and CEO Castle Harlan, Inc. 150 East 58?h Street New York, NY 10155 Michelle Rosenthat, Esq. Greg IIixson, Esq. Univar USA, Inc. c/o Veris Law Group PLLC 1809 Seventh Avenue, Suite 1400 Seattle, WA 98101 greg@verislawgroup.com D. Evan van Hook, Corporate Vice President of Health, Safety, and Environment Honeywell International 101 Columbia .Road Morristown, NJ 07962 Evan.vanhook@honeywell.com Pam Amorin, Environmental, Health, and Safety Manager Semiconductor 5005 East McDowell Road Phoenix, AZ 85008 Pam.amorin@onsemi.com James 'Burriss, President and CEO ChemReseareh 1101 West Hilton Avenue Phoenix, AZ 85007 jburriss(ajchemresearchco.com Molly Greene Senior Director, AZ Government Affairs and Policy Salt River Project P.O. Box 52025 Phoenix, AZ 85072 molly. ARIZONA DEPARTMENT ENVIRONMENTAL QUALITY t? Misael Cabrera Director Via .E-Mail and US. Mail Patrick Dinkel, Vice President of Environmental and Chief Sustainability Of?cer Arizona Public Service 400 North 5th Street, MS 9080 Phoenix, AZ 85004 Patrick.dinkel@aps.eom Ron Moulton, Regional Manager U.S. Department of Energy Western Area Power Administration Desert Southwest Region PO. Box 6457 Phoenix, AZ 85005 moulton@wapa.gov Craig Milum, President Milum Textile Services 333 North "I"h Avenue Phoenix, AZ 85007 Steve Dalley, General Manager Prudential Overall Supply, inc. Phoenix Industrial Services 5102 West Roosevelt Street Phoenix, AZ 85043 Donovan Neese Roosevelt Irrigation District 103 West Baseline Road Buckeye, AZ 85326 dneese@rooseveltirrigationorg Southern Regional Office 400 W. Congress Street Suite 433 I Tucson, AZ 85701 628-6733 Main Of?ce 1110 W. Washington Street 0 Phoe nix. AZ 85007 {602) 771-2300 printed on recycled paper February 10, 2017 Page 2 of 2 Re: Final Invitation for West Van Buren Site Regional Remedy Dear Sir or Madam: Notwithstanding previous communications. the State of Arizona will no longer accept delays at the West Van Burcn Water Quality Assurance Revolving Fund Site (WVB Site). This letter is the ?nal invitation for involved parties to collaborate, reach consensus, and propose a regional groundwater remedy at the WVB Site. We invite parties to propose a consensus remedial action plan that is comprehensive and covers all activities necessary to conduct a ?nal regional remedy for the WVB Site. including but not limited to, a commitment to secure necessary permits and approvals from the State. We also request that this occur expeditiously. lf this is not acceptable to the parties, or if parties continue to delay, the State of Arizona will request that the United States Environmental Protection Agency evaluate the WVB Site for inciusion on the National Priorities List. Until further notice, please direct all questions to me at (602) 771-2203. Sincerely, Mi ael Cabrera, Director cc: Kirk Adams, Arizona Governor?s Chief of Staff Hunter Moore, Arizona Governor's Policy Adviser for Natural Resources Anthony Young, Arizona Assistant Attorney General EXHIBIT 4 Evaluation of Potential Future Costs at Arizona Superfund Sites Arizona Department of Environmental Quality January 2014 INTRODUCTION The objective of this study was to estimate the potential future costs that may be incurred by the state of Arizona?s Water Quality Assurance Revolving Fund (WQARF). WQARF funds are used, in part, to conduct investigations to determine if a release or threatened release of a hazardous substance exists; conduct remedial investigations, feasibility studies, health effect studies, and risk assessments; take remedial actions; and fund orphan shares (Arizona Revised Statutes The estimation of potential future costs to the program required the analysis of three types of sites: 1] Sites currently listed on the WQARF Registry that are in some stage of remedial investigation and for which a remediai action has and/or will take place in the future. 2) Sites in some stage of a preliminary investigation (Pl) that may or may not be listed on the WQARF Registry in the future. 3} Sites that are being investigated or remediated under federal supervision for which the WQARF program is currently or may become responsible for all or at least some of the associated costs in the future. The primary tasks to be accomplished as part of this project were as follows: 0 Determine the probable course of action at each site, based on currently available information; and 0 Estimate the potential cost over the lifetime of each site. The parametric cost modeling software program Remedial Action Cost Engineering and Requirements (RACER) was used to estimate the potentiai cost at each site. The program uses a combination of user- defined, site-specific information and generic engineering solutions to estimate remediation costs from an extensive cost database. Site-specific information was gathered directly from Arizona Department of Environmental Quality (ADEQ) project managers and the WQARF program's independent consultants, as well as ADEQ Legal Support Unit Staff with knowledge of the status of PI sites. Site cost estimates for this study were initiated in October 2013 and completed over the course of approximately eight weeks. Estimating the total cost to the WQARF program for the investigation and remediation of sites requires making certain assumptions about future activities. The primary assumptions were: 0 Unless otherwise speci?ed, the primary remedial objective considered for each site was to allow for the present and reasonably foreseeable use of all contaminated media. 0 Any remedial action will take no longer than 30 years to meet all site-specific remedial objectives. Thus, all monitoring and remedial operations were limited to 30 years beyond the implementation of a given remedial action. 0 For each site analyzed herein, the WQARF program may become ?nancially responsible for the site at any time, regardless of previous actions taken by responsible parties. 0 Standard remedial technologies, such as pump and treat for groundwater plume containment, were chosen (in cases where a remedial technology was not yet selected or in place) over more innovative approaches that would require more extensive investigation and field testing. 1 The long timeframes over which estimates were made, and the relatively large number of sites, made it impossible to account for every contingency, or to include every eventual detail of site remediation as part of these estimates. Given these limitations, the results are likely to be conservatively low. They represent approximate costs and should not be construed as equivalent to cost estimates provided by independent contractors who would be implementing the detailed work activities on each site. The following sections discuss specifics of the current study approach in greater detaii. STUDY APPROACH Background A report entitled ?Evaluation of Risks, Costs, and Liability Alternatives for Arizona WQARF Sites? was produced in 1996 by Clean Sites West, inc. for the Arizona Legislature pursuant to a contract with the Arizona Department of Environmental Quality. As in the current study, the 1996 report estimated the future costs associated with the remediation of sites in the WQARF program. However, the report considered a smaller set of WQARF sites did not consider any PI or federal sites and used substantially different cost-estimation methods. These differences make a direct comparison of the CSW report results to those of the current study impractical. Also, a primary focus of the CSW report was to assess the impact of different potentialiy responsible party liability schemes on WQARF site costs. In contrast, the current study considered only the totai potential costs to the WQARF program associated with hazardous waste releases. The potential cost for any given site will be dependent on a number of factors. liar example, the selection of future remedial actions and a ?nal remedy will have a substantial effect on the total remediation cost for each site. Therefore, all available information, including input from ADEQ project managers was used to determine the most prudent course of action. The sum of money potentially recoverable from responsible parties will also affect the final cost to the WQARF program. A number of sites are expected to see at least some degree of cost recovery from responsible parties or other government agencies for actions taken by WQARF. However, due to the uncertainty in the potential magnitude of such recovery, all future actions were included in the current study and resulting cost estimate, and the potential for cost recovery was not evaluated. Cost ?stimation Future remedial and investigative costs were estimated using the RACER software version 11.1 developed by AECOM speci?cally for environmental remediation and restoration projects. The software was originally developed under the direction of the 0.5. Air Force for estimating environmental investigation and cleanup costs for the annuai budgeting and appropriations process. The software has been subjected to a formal validation, verification, and accreditation process in accordance with Department of Defense Instruction 5000.61. The RACER software is intended ?to provide an automated, consistent and repeatable method to estimate and document the program cost for the environmental cleanup of contaminated sites and to provide a reasonable estimate for program funding purposes consistent with the information available at the time of the estimate preparation." 2 document reported an uncertainty of for cost estimates1 whiie the U.S. Environmental Protection Agency estimates an uncertainty of -35f+50% for cost estimates included in feasibility studies?. Although no attempt was made to quantify uncertainty for this current study, its uncertainty is to also be within these ranges and the cost estimates are thought to be conservatively four for several reasons: 0 it is not possible to account for every eventuai detaii of remedial activities over the lifetime of a site, especially for preliminary investigation sites for which littie information is known. 0 When selecting future remediation strategies, standard technologies were'chosen that do not require extensive bench and piiot-scaie testing to determine feasibility. The inflation rate of 1.3% is relatively tow when compared to historical inflation rates. RESULTS Table 4 presents a cost breakdown of estimated total cost by site, with escalation. Potential site costs are displayed in Figure 4 as a function of the type of site (WQARF, Federal or Pi). Appendix provides a more complete cost breakdown by site, site type, and phase of activity and includes an estimation of net present value. A total of 33 sites that are currently being remediated under WQARF-program supervision were evaluated to determine future costs. The estimated median cost for site-remediation is approximately $7.2 million. A number of factors in?uenced the estimation of costs including site size, contamination type, current phase of the WQARF process, and projected remedial action. As presented in Table 4, costs ranged from $15,144 to $139,527,680. The RACER?generated total potential cost for ail WQARF sites currently listed in the Registry with escalation is $429 million. The total estimated net present value for the WQARF sites is $211 million. Twelve sites were evaluated for which there is currently some federal involvement. These sites may have state lead authority or oversight, some state ?nancial participation, and/or the potential to become a state~iead site in the future. For these ?federal? sites, the only remediai actions that were included were those that may possibly be paid for by the state. Therefore, RACER cost estimates for these sites may not represent the total lifetime cost for remediation. The median potential cost to the WQARF program for these sites is approximately $3.4 million. As presented in Table 4,'costs ranged from $60,000 to $37,761,415. individual site costs were dependent on many of the same factors as WQARF sites. The RACER-generated total potential cost for the "federal" sites with escaiation is $95 The total estimated net present value for the federal sites is 5?3 After carefui consideration of available information, 39 sites currently in the Pl stage were determined to have the potential to become WQARF sites in the future. For each of these sites, the decision process presented in Figure 1 was used to determine what PI work remains to be completed at a given site and how cost estimates for the Remedial investigation/Feasibility Study work would be made. The specific remediai actions to be modeied with RACER were chosen based on a determination of how much work has been completed to date and the type of contamination present. information regarding Table 4. Estimated future costs (with esca?ationl incurred by WQARF for each site. Site Name Site Category Location Total 72h Streetand Arizona manue WQAM Tucson 5533.352 7th Avenue and Bethany Home Road WW Phoemx 54,685,581 16th Street and Camelback Road Phoenix 20th Street and Factor Avenue WQARF Yuma $12,255,175 56th Street and Earl! WQARF Phoenix 58.011401 BroadwayePantano WOARF Tun-sort $60,508,751" Central and Camelback WQARF Phoenix $2,573,483 Cooper Commerce WW Gilbert $10,375,882 East Central Phoenix - 24th Street and Grand Canal War? Phoemx $13,982,422 East Central Phoenix - 32nd S?eet and lndran School WQARF Phoonlx $16,227.15 East Central Ph oemx 3891 Street Road WQARF Phoenrx $4207.35 East Central Phoenix - 40th Street and lndlan School Road Phoenix $14,486,490 East Central Phoentx - 40th Street and Osborn Road: WQARF Phoemx $14.107?w East Central Phner'rtx - 48th Street and Indian School Road Phoenrx $15,335,472 Shannon Road/El Cammo del Cerro wmar Tucson $16,227,819 Estes Landfill WQARF Phoenix $590.8?b Klondyke Ta WQARF Klandyke $7,139,591 Los Reale?s Landfill WQARF Tucson $4,531,651 Miracle Mlle W-OARF Tum-0n $9,342,941 Park-Euclld WOARF tucson 55.801338 Paysan. PCS WQARF Payson 54.915346 smerbeu Land?ll WQARF Tucson $19,659,220 South. Mesa WQARF Elbert/Mesa $2,433,218. Tonto Drive and Cherry Street WOA-RF Peyson $15,144 Tyson Wash WIMRF .. MATHEW Vulture WOJXRF Wldcenburg $198,081 West Cenu'al Phoenix - East Grand Avenue WQARF Phoenix 51.551.51? West. Central Phoanlx - North Canal Plume Phoemx West Central Phoenix - North Plume .WQARF ehoenrx 511.691.4328 West Central Phoenlx - West Grand Avenue Phoenix $35,373 West Central Phoenix - West Osborn Complex WOARF Phoemx $8,025,975 West Van Buren WQARF Phoemx 5139.527.? Western Ave Flume WQARF Goodyear/Mondale $285,979 Kachma loray Federal Phoenix Nelson Engineering Federal Phat-Mat $251.03 Motorola ?5an StreetQUZ F?de?ll Phoenix 5711.331 Seal-on 9 Lease Federal Cameron $10,198,069 Tucson er'le Club Federal Three Paints $987,630 12 Appendix - DRAFT RACER Cost Estimates individual Cost Breakdown by Phase Feasibility Study - Report Completion Feasibility Study PRAP 8. R09 Design Remedial Action - Pump 8. Treat Feasibility Study - Vertioai Aquifer Profiting Long Term 08M Long Term om - GW monitoring - 40 wetis Present Cost Met Present Value Totat Coat (with escalation) Project Name: West Centrai PhoenIx-North Piuine Prolect Nam: West Central Phoenix - West Grand Avenue Location Modifier: PHOENIX, AZ PRAP and ROD Site Ctoseout Present Goat Net Present Vaiue Total Cost (with escalation) Protect Name: West Central Phoenix - West Grand Avenue Project Name: West Central Phoenix - West Osborn Complex Location Modifier: PHOENIX, AZ Feasibility Study - and ROD Design Remedial Action - GW Operations and Maintenance - Gw Long Term Monitonng Site cioseout Remedial Action - Deep Monitoring Well Present Cost Net Present Value Total Coat (with escalation) Minot Name: West Central Phoonltr - West Osborn Complex Project Name: West Van Buren Location Modifier: PHOENIX. AZ $60,952 $32,099 $88,498 $1,156,976 $516,744 $5,612,814 $1,063,582 $9.01 0,842 $6,859,001 $1 1 591,428 $23,146 $12,914 $36.060 $34,951 $6,873 $32,099 $50,355 $664,425 $387,003 $2,232,507 $72,?94 $51 ,237 $5,950.41 9 $4,1 48,729 $8,025,975 Page 13 Appendix - DRAFT RACER Cost Estimates Individual Cost Breakdown by Phase Feasibility Study - Initial Report Work $76,200 Feasibility Study - Report Completion $71,195 PRAP and R00 $32,099 Design - Three Soil Vapor Extraction Systems $58,552 Remedial Action - Three Soil Vapor Extraction Systems $822,099 Operations and Maintenance - Three Soil Vapor Extraction Systems $988,388 Remedial Action - Groundwater Pump and Treat. $1 .145,2?0 Remedial Action - Groundwater Pump and Treat, V06 $452,835 Operations and Maintenance - SVE system at Prudential: (4 years) $286,267 Remedial Action - Roosevelt Irrigation District Wellhead Treatment . 4 systems $10,467,657 Design - Roosevelt irrigation District Wellhead Treatment 4 systems $271,066 Operations and Maintenance Wellhead Treatment - 8 system (30 years) $54,299,146 Long-Term Monitoring (30 years) $5,111,048 Operations and Maintenance - Groundwater Pump and Treat, V00 (30 years) $7,836,534 Operations and Maintenance - Groundwater Pump and Treat, VOCIChrome (80 years) $9,602,983 Operations and Maintenance - Groundwater Pump and Treat, VOCIChrome (30 years) $9,602,983 Remedial Action - Groundwater Fump and Treat. $1,145,270 Remedial Action - Excavation of chrome til-contaminated soil $620382 Design - Pump and Treat Systems $211,406 Site Closeout $303,903 Present Cost $03,205,882 Nat Present Value Total Cost (with eecaiation) $139,535?: Protect Name: West Van Buren Project Name: Western Avenue Plume Feasibility Study - PRAP, ROD and Community Involvement $50,726 Remedial Action - NINA $169,725 Site Closeout $23,013 Present Cost $243,464 Net Present Value $204,842 Total Coat (with escalation) $285,979 Protect llama: Western Avenue Plume Federal Sites Protect Name: Kachina Joray Location Modi?er: PHOENIX, AZ EXHIBIT 5 DEPARTMENT gf?eh OF I ENVIRONMENTAL QUALITY 1; 1110 West Washington Street a Phoenix, Arizona 85007 A?s Iar a. Urmcr {(102} 771-2300 - R. Darwin time: nor Dupcrm OUTLINE OF TERMS FOR SETTLEMENT BETWEEN ADEQ, RID AND SETTLING PRPS Recitals A. The West Van Buren Area WQARF Site is one of the largest groundwater contamination plumes in Arizona and the United States. 3. Pursuant to A.A.C. RID has expressed its intent to construct and operate a water treatment remedy to address certain MO wells under A.R.S. until the final remedial objectives are achieved. C. RID is a political subdivision of Arizona that uses, used or may use waters of the state far drinking water purposes and is seeking ADEQ matching funds pursuant to A.R.S. 49- 0. Rib estimates that the capital and other remedial action costs to address the groundwater contamination in the West Van Buren Area WQARF Site and the operating and maintenance costs of the remedial actions through 2020 will total approximately $40 million. RID estimates that there will be additional costs associated with the remedial actions addressing the groundwater contamination that will be incurred after 2020. For purposes of this proposal, ?Covered Costs? means: (1) the $40 million in costs attributable to the remediation actions through 2020; and (2) future costs after 2020 if, and only if, the current favorable accounting of groundwater withdrawn pursuant to an approved remedial action projects (as set forth in Laws 1997, Chapter 287, Section 52) is continued beyond 2025. E. RID has initiated litigation against a number of potentially responsible parties in the United States District Court for District of Arizona, in case number DAE-BGM (the Action?) seeking, among other things, recovery of response costs under CERCLA 107, 42 U.S.C. 9607. F. Absent a consensual resolution, ADEQ retains authority under the Arizona WQARF and the federal CERCLA statutes to pursue enforcement and contribution actions against PRPs. G. ADEQ is willing to enter into an administrative settlement, consent decree or order by the Court presiding over the CERCLA Action to: (1) pay matching funds under A.R.S. 49- in the amount set forth in paragraph 2 below; (2) provide to those PRPs who Southern Regionai Of?ce 400 West Congress Street Suite 433 - Tucson, AZ 85701 (520) 623-6733 Primed on reg/tied paper Page 2 of 3 commit to the settlement terms outlined herein (the "Settling a covenant not to sue and contribution and cost recovery protection from all persons with respect to the Covered Costs on the terms set forth in paragraphs 8 and 9 below. H. This outline sets forth proposed general terms to resolve certain of the outstanding issues through a settlement among ADEQ, RID and the Settling PRPs. Term; of Proposed Settlement 1. RID will commit a local matching amount of $20 million to equal the $20 million RID is seeking from WQARF through ADEQ under A.R.S. 49-282IF) to be used to pay for or to .defray the Covered Costs. 2. ADEQ will pay matching funds under A.R.S. equal to the amount of 50% of the Covered Costs, in an amount not to exceed $20 million, issued from the WQARF fund - provided adequate funding is available in the WQARF fund. 3. The Settling PRPs will pay an amount equal to $20 million share of the Covered Costs. 4. The Settling PRPs and RID will cooperate with ADEQ to finalize a Feasibility Study report to address the groundwater contamination in the West Van Buren Area WQARF Site that meets all applicable legal requirements in A.R.S. Title 49, Article 5 and A.A.C. R18- 16-407. The Settling PRPs and RID must agree not to submit public comment on this Feasibility Study report. 5. The Settling PRPs and RID will cooperate with ADEO. to develop a Proposed Remedial Action Plan to address the groundwater contamination in the West Van Buren Area WQARF Site pursuant to A.A.C. RIB-164108. Settling PRPs and RID agree not to submit public comment on the Proposed Remedial Action Plan. 6. The Settling PRPs and RID will be provided a copy of the Record of Decision to address the groundwater contamination in the West Van Buren Area WQARF Site, but the Settling PRPs and RID agree not to submit public comment on, or appeal, the Record of Decision. 7. The Settling PRPs and RID agree not to submit public comment on, or appeal, any ADEQ settlement with other PRPs. 8. ADEQ will provide the Settling PRPs with a covenant not to sue concerning all liability to the State of Arizona under WQARF and CERCLA for recovery of the matching funds paid under A.R.S. pursuant to Paragraph 2 above. Page 3 of 3 9. ADEQ will provide the Settling PRPs with contribution and cost recovery protection from all persons with respect to the Covered Costs. 10. RID will release the Settling PRPs from liability under WQARF, CERCLA and other state laws for recovery of the Covered Costs; provided, however, that RID will retain the right to pursue any and all claims against any or all of the non-settling PRPs to recover costs associated with groundwater contamination within the West Van Buren Area WQARF Site, including CERCLA 10? claims. EXHIBIT 6 MARK BRNOVICH Attorney General Ariz. Bar No. 14000 SHILPA HUNTER-PATEL Ariz. Bar No. 019830 RYAN J. REGULA Ariz. Bar No. 028037 Assistant Attorneys General Environmental Enforcement Section 2005 N. Central Avenue Phoenix, AZ 85004 Telephone: (602 542-8014 Envrronmenta?l azag.gov Attorneys for aintiff IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR MARICOPA COUNTY STATE OF ARIZONA, ex rel. MISAEL No: CV2018-011904 CABRERA, Director, Arizona Department of Environmental Quality, Plaintiff, Plaintiff State?s Proposed Findings of Fact and Conclusions of Law vs. PALO VERDE INVESTMENTS, L.L.C., an Arizona limited liability (Assigned to the Hon. Teresa A. Sanders) company, SHOP VAC CORPORATION, a New Jersey corporation, and LAKE HAVASU CITY, a municipal corporation, Defendants. Plaintiff State proposes the following ?ndings of fact and conclusion of law. PROPOSED FINDINGS OF FACT 3 The WOARF Program and Access 1. The Water Quality Assurance Revolving Fund Program, also known as Arizona?s ?Superfund Program,? is a comprehensive investigative and civil enforcement program adopted by the Arizona legislature for identifying and holding 26? responsible those entities that impmperly released hazardous waste into the environment. A.R.S. 49-281 et seq. 2. The Arizona Department of Environmental Quality is the designated state agency for administering and enforcing the WQARF Program. A.R.S. 49-282. 3. The WQARF Program?s ?rst goal is to identify, investigate, and take remedial actions for releases or threatened releases of hazardous substances that have contaminated or may contaminate the environment or threaten human health. A.R.S. 49-287. 4. The WQARF Program?s second goal is to investigate, identify, and take civil enforcement action against parties that are responsible and liable for the contamination and to recover taxpayer funds expended by the State to clean up the responsible parties? contamination. A.R.S. 49-285. 5. When there has been a release of a hazardous substance, the director 0f ADEQ may elect to undertake a WQARF action. A.R.S. 6. A WQARF action is a multi~stage process that includes: (1) investigating contamination, (2) identifying the appropriate remedial action, and (3) seeking cost recovery against reaponsible parties. A.R.S. 49-28101 - 49-28707. 7. The instant case is limited to the requested relief of access, which is part of the investigative stage of the WQARF enforcement process. It is not an action to establish a party?s proportion of liability or to rec-over costs; the action to determine proportional liability and cost recovery occurs at a later stage in the WQARF Program. A.R.S. 49- 287.06 49-28107, Scott Green Testimony. 8. In the instant case, the State seeks access to wells to investigate the contamination, evaluate the spread of contamination in the region, and obtain evidence through sampling taking groundwater samples from the wells owned or controlled by one or more of the Defendants). A.R.S. 49-288. 75. Scott Green also testi?ed that access request was based on the fact that they needed entry to determine the need for an appropriate remedial action. This type of a request satis?es another enumerated circumstance, speci?cally 76. Next, Scott Green testi?ed numerous times that access was denied by Shop Vac, Palo Verde, and Lake Havasu City to the Shop Vac wells on City and Palo Verde property unless the State complied with Defendant Shop Vac?s demands to use its preferred sampling methodology, including use of the purging methodology, video logging, and redevelopment of the wells. 77. Accordingly, the State proved it will likely succeed on the merits of its A.R.S. complaint for access. 78. A.R.S. 49-288 is clear on its face and does not require, prescribe, or restrict ability to use any sampling methodology in the course of conducting its investigation and inspection of the Defendants? wells. A.R.S. 49-288. 79. With that said, the Court ects the Defendants? argument that the State had to make its request after physically entering the facility and after providing appropriate documentation when entry was denied. All A.R.S. 49-28 requires is an access request rooted in an A.R.S. circumstance be made and that request be denied. Defendants? arguments about reasonable time, notice, and credentials, and entry all pertain to when access has already been granted, not before. 80. Second, the State proved a possibility of irreparable injury if the access injunction is not granted. A.R.S. states: ?If there is a release or the threat of a release of a hazardous substance which ME present an imminent and substantial danger to the public health or welfare or the environment[, . . . t]he attorney general may request a . . . preliminary injunction . . . to protect the public health or welfare or the environment ?om the release.? (Emphasis added). In the context of environmental law, ?imminent and substantial danger? has a 12 =mrm speci?c and unique meaning. This is evident by the word ?may" in the statute. ?May? Edoes not require proof of ?imminent and substantial danger? but rather the possibility. 5: See US. v. Conservation Chemical Co, 619 F. Supp. 162, 184, 192 (WD. Mont. 1985). Moreover ?imminent? does not mean an "emergency" nor does it mean ?immediate.? Id. at 193 (signal citing US. v. Waste Industries, 734 F.2d 159, 165 (4th Cir. 1984). ?Imminent? means certain factors are present that could lead to a ham even if it ?may not be realized for years.? 1d. at 193-94. Similarly, substantial danger ?is not actual harm, but a threatened or potential harm.? Id. at 193. inally. the State need only demonstrate that the public health or welfare or the environment may possibly be in danger. Id. at 192. It does not need to demonstrate the possibility of danger to all three. Id. 81. The State satis?ed the ?imminent and substantial danger? threshold by proving the release of hazardous substances such as hexavalent chromium and chromium which the Defendants admit occurred. (Scott Green Testimony, Dennis Shirley Testimony). By its very nature. ?the release of a hazardous substance may present an imminent and substantial danger to the public health or welfare or the environment.? That is why the substance is considered hazardous. However, the State went beyond that initial threshold by demonstrating that the groundwater aquifer is contaminated and the contamination plume has moved through the groundwater aquifer towards off-site wells at concentrations hundreds of times above the legal limit. The legislature has designated all aquifers in the State of Arizona as drinking water sources. See A.R.S. 49-224( B). The fact that all aquifers are designated as drinking water sources ful?lls the potential danger to the public health or welfare options for meeting the imminent and substantial i danger element of the preliminary injunction standard. However, the environment option to this element is also satis?ed merely by the release of a hazardous substance and by the movement and spread of that released hazardous substance into the environment. 13 EXHIBIT 7 Framework ??vArLu-vw-nnu . Aquifer Water Quality Standards (AWQS) must be met Plume must be contained' In both the short and long term and mass flux must be a part of the proposed remedy ADEQ will complete the WQARF process for the West Van Buren site APoor?QualitVWater will not be issued A waiver for the municipal replenIshment reqUIrement will not be granted v- 1 A waiver for selling water outside of district boundaries ?will not be granted s. a