[House Hearing, 110 Congress] [From the U.S. Government Publishing Office] ADDRESSING SEWAGE TREATMENT IN THE SAN DIEGO - TIJUANA BORDER REGION: IMPLEMENTATION OF TITLE VIII OF PUB. L. 106-457, AS AMENDED ======================================================================= (110-55) HEARING BEFORE THE SUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT OF THE COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE HOUSE OF REPRESENTATIVES ONE HUNDRED TENTH CONGRESS FIRST SESSION __________ JULY 10, 2007 __________ Printed for the use of the Committee on Transportation and Infrastructure ____ U.S. GOVERNMENT PRINTING OFFICE 36-686 WASHINGTON : 2007 _____________________________________________________________________________ For Sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800 Fax: (202) 512�092104 Mail: Stop IDCC, Washington, DC 20402�090001 COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE JAMES L. OBERSTAR, Minnesota, Chairman NICK J. RAHALL, II, West Virginia JOHN L. MICA, Florida PETER A. DeFAZIO, Oregon DON YOUNG, Alaska JERRY F. COSTELLO, Illinois THOMAS E. PETRI, Wisconsin ELEANOR HOLMES NORTON, District of HOWARD COBLE, North Carolina Columbia JOHN J. DUNCAN, Jr., Tennessee JERROLD NADLER, New York WAYNE T. GILCHREST, Maryland CORRINE BROWN, Florida VERNON J. EHLERS, Michigan BOB FILNER, California STEVEN C. LaTOURETTE, Ohio EDDIE BERNICE JOHNSON, Texas RICHARD H. BAKER, Louisiana GENE TAYLOR, Mississippi FRANK A. LoBIONDO, New Jersey ELIJAH E. CUMMINGS, Maryland JERRY MORAN, Kansas ELLEN O. TAUSCHER, California GARY G. MILLER, California LEONARD L. BOSWELL, Iowa ROBIN HAYES, North Carolina TIM HOLDEN, Pennsylvania HENRY E. BROWN, Jr., South BRIAN BAIRD, Washington Carolina RICK LARSEN, Washington TIMOTHY V. JOHNSON, Illinois MICHAEL E. CAPUANO, Massachusetts TODD RUSSELL PLATTS, Pennsylvania JULIA CARSON, Indiana SAM GRAVES, Missouri TIMOTHY H. BISHOP, New York BILL SHUSTER, Pennsylvania MICHAEL H. MICHAUD, Maine JOHN BOOZMAN, Arkansas BRIAN HIGGINS, New York SHELLEY MOORE CAPITO, West RUSS CARNAHAN, Missouri Virginia JOHN T. SALAZAR, Colorado JIM GERLACH, Pennsylvania GRACE F. NAPOLITANO, California MARIO DIAZ-BALART, Florida DANIEL LIPINSKI, Illinois CHARLES W. DENT, Pennsylvania DORIS O. MATSUI, California TED POE, Texas NICK LAMPSON, Texas DAVID G. REICHERT, Washington ZACHARY T. SPACE, Ohio CONNIE MACK, Florida MAZIE K. HIRONO, Hawaii JOHN R. `RANDY' KUHL, Jr., New BRUCE L. BRALEY, Iowa York JASON ALTMIRE, Pennsylvania LYNN A WESTMORELAND, Georgia TIMOTHY J. WALZ, Minnesota CHARLES W. BOUSTANY, Jr., HEATH SHULER, North Carolina Louisiana MICHAEL A. ACURI, New York JEAN SCHMIDT, Ohio HARRY E. MITCHELL, Arizona CANDICE S. MILLER, Michigan CHRISTOPHER P. CARNEY, Pennsylvania THELMA D. DRAKE, Virginia JOHN J. HALL, New York MARY FALLIN, Oklahoma STEVE KAGEN, Wisconsin VERN BUCHANAN, Florida STEVE COHEN, Tennessee JERRY McNERNEY, California VACANCY (ii) Subcommittee on Water Resources and Environment EDDIE BERNICE JOHNSON, Texas, Chairwoman GENE TAYLOR, Mississippi RICHARD H. BAKER, Louisiana BRIAN BAIRD, Washington JOHN J. DUNCAN, Jr., Tennessee DORIS O. MATSUI, California WAYNE T. GILCHREST, Maryland JERRY F. COSTELLO, Illinois VERNON J. EHLERS, Michigan TIMOTHY H. BISHOP, New York FRANK A. LoBIONDO, New Jersey BRIAN HIGGINS, New York GARY G. MILLER, California RUSS CARNAHAN, Missouri ROBIN HAYES, North Carolina JOHN T. SALAZAR, Colorado HENRY E. BROWN, Jr., South MAZIE K. HIRONO, Hawaii Carolina HEATH SHULER, North Carolina TODD RUSSELL PLATTS, Pennsylvania HARRY E. MITCHELL, Arizaon BILL SHUSTER, Pennsylvania JOHN J. HALL, New York JOHN BOOZMAN, Arkansas STEVE KAGEN, Wisconsin CONNIE MACK, Florida JERRY MCNERNEY, California JOHN R. `RANDY' KUHL, Jr., New ELEANOR HOLMES NORTON, District of York Columbia CHARLES W. BOUSTANY, Jr., BOB FILNER, California Louisiana ELLEN O. TAUSCHER, California JEAN SCHMIDT, Ohio MICHAEL E. CAPUANO, Massachusetts CANDICE S. MILLER, Michigan GRACE F. NAPOLITANO, California THELMA D. DRAKE, Virginia MICHAEL A ARCURI, New York JOHN L. MICA, Florida JAMES L. OBERSTAR, Minnesota (Ex Officio) (Ex Officio) (iii) CONTENTS Page Summary of Subject Matter........................................ vi TESTIMONY Marin, Carlos, United States Commissioner, International Boundary and Water Commission, United States and Mexico................. 6 Nastri, Wayne, Regional Administrator, U.S. Environmental Protection Agency, Region 9.................................... 6 Simmons, Jim, Managing Partner, Bajagua, LLC..................... 27 PREPARED STATEMENT SUBMITTED BY MEMBERS OF CONGRESS Boozman, Hon. John, of Arkansas.................................. 36 Costello, Hon. Jerry F., of Illinois............................. 40 PREPARED STATEMENTS SUBMITTED BY WITNESSES Marin, Carlos.................................................... 41 Nastri, Wayne.................................................... 48 Simmons, Jim..................................................... 50 SUBMISSIONS FOR THE RECORD Simmons, Jim, Managing Partner, Bajagua, LLC, Power Point slide presentation................................................... 96 Development Agreement between the United States Section of the International Boundary and Water Commission, United States and Mexico, and Bajagua LLC, submitted by the Subcommittee......... 109 [GRAPHIC] [TIFF OMITTED] T6686.001 [GRAPHIC] [TIFF OMITTED] T6686.002 [GRAPHIC] [TIFF OMITTED] T6686.003 [GRAPHIC] [TIFF OMITTED] T6686.004 [GRAPHIC] [TIFF OMITTED] T6686.005 [GRAPHIC] [TIFF OMITTED] T6686.006 ADDRESSING SEWAGE TREATMENT IN THE SAN DIEGO TIJUANA BORDER REGION: IMPLEMENTATION OF THE TITLE VII OF P.L. 106-457 AS AMENDED ---------- Tuesday, July 10, 2007 House of Representatives, Committee on Transportation and Infrastructure, Subcommittee on Water Resources and Environment, Washington, DC. The Subcommittee met, pursuant to call, at 2:13 p.m., in Room 2167, Rayburn House Office Building, Hon. Eddie Bernice Johnson [Chairwoman of the Subcommittee] Presiding. Ms. Johnson. I call the Subcommittee to order, and I would like to ask unanimous consent that Mr. Bilbray join us up here. This afternoon, the Subcommittee is meeting to discuss the issue of sewage treatment in the San Diego and the Tijuana border region. Over the years, the Subcommittee has become well aware of the sewage treatment problems faced by the San Diego- Mexico border region. We have also witnessed how the U.S.- Mexico border region has experienced tremendous growth over the past few decades with the cities of San Diego and Tijuana, Mexico, though on opposite sides of the border, growing closer together both physically and economically and linking the faiths of the two cities. We have also discovered that what happens in one city has had an impact on the other, and this is especially true in the case of the sewage treatment needs of the border region. Unfortunately, the wastewater treatment systems for the City of Tijuana, Mexico have not kept pace with the city's growing population. Untreated sewage flowing from Mexico to the Tijuana River and into the Pacific Ocean has adversely impacted the South Bay communities of San Diego County, the river valley, estuary, and the coastal waters of the United States. These flows continue to pose a serious threat to public health, to the economy and to the environmental region. To address these problems, this Committee has twice considered and approved legislation sponsored by our colleague, Mr. Filner, and other Members of the San Diego delegation to, once and for all, stem the flowing tide of untreated or partially treated sewage that enters this country every day. The proposal advocated by Mr. Filner and by his colleagues from the San Diego community is a comprehensive attempt to address both the short-term and the long-term sewage treatment needs of the region, taking into consideration the expectations of continued population growth in the next few decades. Unfortunately, 7 years after legislation was enacted to implement this proposal, the citizens of the San Diego region continue to wait for a comprehensive solution to this issue and continue to face the likelihood of beach closures and waters contaminated with untreated sewage. Over the years, the Subcommittee has continued to follow implementation of the Tijuana River Valley Estuary and the Beach Sewage Cleanup Act. In fact, this is the second time that this Subcommittee has asked the administration to provide an update on the implementation of the law. I hope that today's hearing will shed light on why progress seems to be slowed and why concerns have been raised on whether this administration might be changing its position on how best to solve this problem. I will ask Mr. Boozman for a statement. Mr. Boozman. Thank you, Madam Chair. For years, Congress has been trying to address a public health and environmental problem that exists along the U.S.- Mexican border. Raw or partially treated sewage from the Tijuana, Mexico area flows into the United States and ends up on California beaches. In 2000, Congress addressed this problem by authorizing the United States to contract with a facility in Mexico for wastewater treatment services that would meet Clean Water Act standards. That authorization was contained in public law 106-457, the Tijuana River Valley Estuary and Beach Sewage Cleanup Act of 2000. That law required the United States and Mexico to negotiate a new treaty minute and a contract for wastewater treatment services in the Tijuana, Mexico area. The treaty negotiations were completed in 2004. However, before a contract for wastewater treatment services could be signed, the Tijuana River Valley Estuary and Beach Sewage Cleanup Act authorization had to be extended and updated. This Committee reported legislation H.R. 4794, which provided the necessary authority. The project in this legislation was not controversial, and the bill was enacted into law in late 2004. It became public law number 108-425. It is now 7 years after this wastewater treatment project was first authorized. Over these past 7 years, the parties have been working towards implementing the wastewater treatment project seemingly without much controversy. Now, all of a sudden, at this late date, for reasons that have not been well- articulated which we look forward to hearing of today, it appears that certain parties may be looking to fundamentally change the direction of this project. Many are concerned that changing the direction of the project at this late date could mean even further delays in addressing the sewage pollution problems in the San Diego border region. Today, we have asked for testimony from three of the principal parties involved in this issue--the United States section of the International Boundary and Water Commission, which operates under the foreign policy guidance of the Department of State and represents the United States and boundary water, sanitation, water quality, and flood control issues in the border region with Mexico; the EPA, which is responsible for implementing water quality issues under the Clean Water Act; and the Bajagua Project, LLC, the company that has contracted with the IBWC to provide wastewater treatment services in the San Diego-Tijuana border region. We want to hear from the witnesses about the status of implementing the wastewater treatment project authorized by the Tijuana River Valley Estuary and Beach Sewage Cleanup Act in 2000 as amended in 2004, including: Why is it taking so long to get the project built? What issues stand in the way of completing the project? Why are some looking to fundamentally change the direction of this project at this late date? When can we expect to see the project completed? How much will the project cost by the time it is finally completed? Will the project satisfy all of the region's wastewater and treatment needs and resolve the longstanding sewage pollution problems in the region? Thank you, Madam Chair. Ms. Johnson. Thank you very much. The chair now recognizes Congressman Filner. Mr. Filner. Thank you, Madam Chair, and I strongly and greatly appreciate this hearing. What may seem like a parochial issue in this Member's district, I think, is really an international problem. We are dealing, of course, with the Mexico-U.S. border region, severe environmental issues at that border, all across it--water and sewage is one of them--and the solution of this problem can be a model for the way the two countries cooperate or it could be a model for how we continue not to make progress on these very important issues. When you talked about the previous legislation and my bill, actually, they were very closely coordinated with our colleague's from San Diego, Mr. Bilbray. I think, together, we have now 50 years that we have been up to our neck or sometimes drowning in sewage, and I would ask unanimous consent that he be allowed to sit with the Committee during this hearing. Ms. Johnson. Any objections? I hear none. Mr. Filner. Thank you, Madam Chair. This is an issue which has plagued San Diego and our region for 60, almost 70 years probably. We have the Tijuana River that flows north from San Diego--I am sorry--north from Mexico through the City of Tijuana and then through my district, emptying out to the Pacific Ocean. When Tijuana does not have sufficient sewage capacity, all of the sewage that may be dumped in strange places in that city end up in the Tijuana River, again, contaminating our beaches and presenting health problems for our citizens. It took many, many, many years to come to a consensus to build a waste treatment plant on our side of the border, which was authorized at the beginning of the 1990s and which opened up, I guess, around 1997. We broke ground in 1995. Okay. When the plant opened, Madam Chair, it was obsolete. It treated half of the flows that we needed it to, and it treated it only to what is called the "advanced primary level" and was not meeting the secondary levels required by law, but Congress had put a cap on expenditures, and that is as far as they could go, so we were left with the problem of not only doubling the capacity of an already existing plant, but in upgrading the level of treatment. I would say, for almost a decade, we have wrestled with those questions, and the result were the laws that you indicated which were passed by voice vote in the Congress, that were signed by two presidents--one Democrat and one Republican--and that were supposed to be the law of the land which mandated the building of a secondary treatment facility in Mexico that would be carried out by a private firm and that would bill the United States for treating the sewage. It seemed to us to be an incredibly win, win, win, win, win, win proposal. Not only would we get the plant built at the levels required by law in the United States, but it would be done in the most environmentally sensitive way that we know about; it would be done in Mexico so as not to take up land for that in the United States, and in fact, it would produce water that could be recycled for Mexico. This is a major problem in both the City of Tijuana, through the State of Baja and in Mexico in general, and this was an incredibly innovative way to deal with that issue. None of the plans that have ever existed in the United States called for the recycling of water to tertiary standards. So this helps Mexico; it helps the United States, and it would be done over time so that Congress would not be responsible for one major hit in terms of money. IBWC, the International Boundary and Water Commission, was supposed to take charge of that, and it has gone a long way toward making that project, in fact, close to implementation. It decided that it was the environmentally preferred alternative. It gave all of the necessary legal decisions to go ahead, and we thought we were going to, in fact, meet a court-mandated rule in San Diego--a court-mandated provision--that calls for secondary treatment by September of next year. For some reason--and that is why we are here today--all of that has come to halt. As to what looked like the implementation after more than a decade of the discussion of not only meeting the Clean Water Act standards but of allowing tertiary treatment in Mexico, all of that now is at a standstill, and we are back to where we were maybe before 1990. That is why we are here today, to figure that out and to figure out how to move forward from there. I appreciate again your allowing us to focus on this issue. Ms. Johnson. Thank you, Mr. Filner. Pursuant to the unanimous consent request, I recognize Mr. Bilbray for an opening statement. Mr. Bilbray. Thank you, Madam Chair, and I appreciate the Committee and the Chair for allowing me to sit with the Committee. Madam Chair, I no longer have the privilege of representing the southern region of San Diego County, but I do have a history with this, not only as an elected official, but I grew up on the border, as a young man, going down to the beach and seeing the big red signs with "pollution" on it, not from Americans but from a foreign government. My involvement with this issue goes back to when I was 25 years old as a new city council member in 1976. In 1980, I, literally, almost went to jail over trying to raise awareness of this issue as a new mayor at 29 years old, saying, "Where is the EPA? Where is the IBWC? Where is the environmental community? Does anybody care about this working class neighborhood?" The fact is that, in 1980, we had 42 million gallons of raw sewage pouring onto our beaches in the summer. By 1985, we finally got everybody to the table, and the United States and Mexico negotiated a minute order that basically said, "Mexico, we know you want to treat your sewage on your side. We have concerns about your discharge issues and their impact on the estuary. So send over your sewage. We will treat it." Mexico said, "Fine, but we want a guaranteed right to always call it back because we want to use this for reclamation." In fact, the issue was raised by then Ambassador Gavin, as you will remember, because there was a request for a loan to pump water into Tijuana from the Colorado River, and the big issue was "What are you going to do with this water when you get it? You cannot handle the sewage you have now." That agreement was put together where we said we would treat it, that Mexico would provide the pipes and get it to that location. Well, then you ended up having the situation of changing technology. Let me sensitize this. Mr. Filner's community is willing to take a sewage treatment plant in their neighborhood to treat another country's sewage. It takes extraordinary political, you know, bravery of the Member from San Diego to do this. What happened was that we saw that there was an alternative to have expandable--we know that 25 mgd is just the first step. You have got to go out beyond that. In looking at that, the proposal was to use a public- private sector, treat as much of it as possible in Mexico-- after all, that is where it was--and on election day, the day I was voted out of office, Bill Clinton signed into law what I authored, with Mr. Filner's coauthorship, to have this public- private partnership signed into law, and frankly, they signed it into law and waited until that day because they were afraid, I am sure, that there might be political benefits to a candidate at that time, but with that aside, it got done. I, actually, worked with and for Bajagua at trying to get the Bush administration to be as involved in this issue as the Clinton administration was because the Clinton administration actually ended up being very supportive. The foot-dragging that has gone on consistently on this issue is just extraordinary while the beaches are still being closed, and I just have to say that I think that this is an example that a lot of people should look to, the fact that, in the 30 years I have been there and in the 60 years we have had this problem, I have never seen a bureaucrat who has been fired or anybody who has not gotten paid because the sewage problem was not taken care of. At least with the public-private sector, it is an outcome-based environmental strategy. If the sewage is not treated, the company does not get paid, and you know, if the company does not get paid, somebody is going to get fired down through the process. There is a little incentive there to protect the environment. That is what we are looking at here, but now what is being proposed is to go back to 10 years ago to a plan that had been worked out in 1985 and to only go with a 25 mgd and just take care of what is important for the law, not for the environment and, basically, finish this job and walk away from it. That is my concern, and I think that we have got to really talk about where do we go from here. Everybody understands that 25 mgd does not do the job. We have a moral obligation to protect our people from a foreign government's impact, and that means a lot more than 25 mgd. So I appreciate the chance to be able to be here. Frankly, my concern is that my children are second generation sewage kids. I do not want my grandchildren to be surfing in Mexican sewage in the next decade and be the third generation. With your help, Madam Chair, we will be able to stop that generational gap, okay? Thank you. Ms. Johnson. Thank you very much. We are pleased to have two very distinguished witnesses on our first panel today. First, we have the Honorable Carlos Marin, the Commissioner of the United States section of the International Boundary and Water Commission. Next, we have Mr. Wayne Nastri, the Administrator of Region 9 of the U.S. Environmental Protection Agency. We are pleased that you were both able to make it this afternoon. Your full statements will be placed into the record, so we ask you, if you will, to try to keep your remarks to a summary of about 5 minutes each. We will continue to proceed in the order in which the witnesses are listed on the call of the hearing. TESTIMONIES OF CARLOS MARIN, UNITED STATES COMMISSIONER, INTERNATIONAL BOUNDARY AND WATER COMMISSION, UNITED STATES AND MEXICO; AND WAYNE NASTRI, REGIONAL ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, REGION 9 Ms. Johnson. So, Mr. Marin, you may proceed. Mr. Marin. Madam Chairwoman and Members of the Subcommittee, thank you for the opportunity to discuss the U.S. section of the International Boundary and Water Commission's efforts to address the ongoing problem of Tijuana sewage and the particular steps we have taken to implement the Tijuana River Act. I would like to begin by noting a few points. I am a licensed Professional Engineer and a 27-year career employee of the U.S. International Boundary and Water Commission. I have had firsthand experience in building wastewater treatment plants in Mexico from my days as U.S. Project Manager for the IBWC at a treatment facility in Nuevo Laredo, Mexico. The IBWC has over a century of experience in binational cooperation and is engaged in a number of joint projects. Any binational project undertaken by the IBWC that is located in Mexico is under the jurisdiction of the Mexican section. My authority stops at the border. Pursuant to the Clean Water Act and international agreements with Mexico and at a cost shared by the U.S. and Mexican governments, the U.S. IBWC has constructed and now operates the South Bay International Wastewater Treatment Plant on the U.S. side of the border off the San Diego coast, and it treats 25 million gallons per day of sewage from the Tijuana area that would otherwise flow untreated into the United States and discharge that effluent in an outfall approximately 3.5 miles into the Pacific Ocean. Due to the urgent need to provide some level of treatment, operation began in 1997 at the advanced primary level. In late 2000, Congress enacted the public law to provide for the secondary treatment of the effluent in Mexico, if such treatment is not provided in the United States, as well as additional Tijuana sewage flows under a private-public partnership arrangement. To achieve the objective of the public law, the U.S. IBWC concluded a new agreement with Mexico, completed the final environmental impact statement and issued the Record of Decision, in which was its election of the construction of the treatment facility in Mexico. The U.S. IBWC entered into a development agreement with Bajagua, LLC, on February 14th, 2006, giving the company exclusive rights to pursue the development of the Mexican facility. It should be noted that this is a highly technical and complicated project. The IBWC does not view its role as being limited to that of a conduit or a pass-through of U.S. funding. The IBWC has an international law responsibility to ensure that the project is developed in a viable, effective and professional manner and that all elements are considered with applicable U.S. and Mexican law. It cannot be overemphasized that IBWC is under a court order to achieve full compliance with the Clean Water Act by September 30th, 2008. In light of this legislation, we face possible fines and other sanctions for noncompliance. A number of tasks remain to be accomplished under the development agreement. Bajagua notified us that it would be unable to meet the May 2nd, 2007 milestone set forth in the development agreement, requesting an extension to the deadline, and they subsequently informed us that it would be unable to achieve compliance of the September 30th, 2008 court-ordered deadline. Fortunately, the administration has begun to consider a contingency plan for achieving compliance. The President's fiscal year 2008 budget requests funding for the U.S. IBWC to begin construction of secondary-level treatment at the existing South Bay facility, which is viewed as a more efficient and less expensive solution. This agency has worked diligently to advance the public law in both sections of the IBWC and has invested a significant amount of staff time and resources to that effort. However, due to the number of factors that are beyond the U.S. IBWC's control, a permanent solution proves to be evasive. We know much more today about the complexity of implementing this legislation that was passed in 2000. In 2000, we did not know the true costs of the Bajagua Project to the American taxpayers. Yet, today, based on the financial analysis conducted by an independent consultant, we know that the project has the potential of reaching $1 billion over a 20-year period of a sole-source contract. We also do not know how long it will take to make the Mexican facility a reality. I cannot, in all honesty, tell you that, nor can Bajagua. There are many critical steps still pending which require Mexico's full participation, support and concurrence. One cannot predict the alacrity of the Mexican bureaucracy, a bureaucracy we must engage on the Federal, State and local levels and which often changes with each election cycle. In closing, let me state that our ultimate goal is to afford the citizens of Southern California protection from renegade Mexican sewage and to operate our facility in accordance with U.S. law. Madam Chair, thank you for the opportunity to testify today. I would be pleased to respond to any questions you or other Members of the Subcommittee may have. Ms. Johnson. Thank you very much. The Chair now recognizes Mr. Wayne Nastri, Administrator of Region 9, San Francisco. Mr. Nastri. Thank you, Madam Chair and Members of the Subcommittee, and Congressman Bilbray. It gives me great pleasure to be here today before you to describe the efforts the EPA has undertaken to address the issues here in Tijuana-San Diego. Since the 1930s, raw sewage flowing into the United States has posed a serious threat to public health and to the environment and to the economy of South Bay communities of San Diego. Congress, recognizing this in 1987, passed the Water Quality Act, which authorized and appropriated to EPA $239.4 million to construct a wastewater treatment facility and ocean outfall in Northern San Diego County, and I want to be clear that that $239 million was for the construction of a full secondary treatment facility. That facility was going to treat the sewage from Tijuana, Mexico which would otherwise have been in the United States and have contaminated the Tijuana River, the estuary and our coastal beaches. With these funds, the EPA provided a grant to the United States International Boundary and Water Commission to construct the South Bay International Wastewater Treatment Plant. The EPA also provided funds to the City of San Diego to construct an ocean outfall that treated and conveyed the water 3.5 miles into the Pacific Ocean. The plant became fully operational in 1999, and it was approached in a phased manner. In order to expedite treatment of the Tijuana sewage, the first phase was constructed as an advanced primary as an interim measure with the full intention of going to secondary treatment. Secondary treatment is required under Federal law in order to protect human health and the environment, and it was anticipated to be initiated shortly after the primary treatment facility became operational. In 2000, the EPA had requested of Congress an increase to the spending cap because of cost overruns. Congress, recognizing the cost overruns and other issues, chose an alternative approach with the Estuaries and Clean Waters Act of 2000, the public law 106-457. Under public law 106-457, it requested that the IBWC begin negotiations with Mexico to construct a secondary treatment plant known as the "public law facility," and that would serve to upgrade the South Bay International Wastewater Treatment Plant as well as to treat additional Tijuana sewage. We have not been a party to the negotiations between the IBWC, Mexico and Bajagua--the company selected to implement the requirements of public law 106-457. Therefore, we are really not in a position to update the Subcommittee on the negotiations or on the specifics of the implementations of public law 106-457. The EPA has responded to requests by both the IBWC and Bajagua, LLC for assistance. In fact, we authorized the IBWC to utilize the remaining grant funds to support the development and the completion of the 2005 Environmental Impact Statement prepared in accordance with the National and Environmental Policy Act. The EIS selected the public law facility as the preferred alternative for the secondary treatment component to the South Bay International Wastewater Treatment Plant. Most recently, my office has also provided comments on the requests for the proposal prepared by Bajagua, LLC to design, build and operate a contract for them to complete the public law facility in Mexico. Until secondary treatment is provided, the South Bay International Wastewater Treatment Plant will continue to violate the Clean Water Act, and inadequately treated sewage continues to pollute the waters of Southern California, but all of the news is not bleak. In fact, the performance of the international wastewater treatment plant is exemplary, so let me share some of the good news about that. It is fully operational at the advanced primary level, and Southern San Diego County is no longer experiencing the effects of daily sewage contamination to the rivers and beaches. The EPA and the IBWC are continually working to optimize the treatment plant to achieve peak operational performance, and we recognize that we must continue our efforts to ensure that the rivers and beaches are free from sewage and contamination year round. We stand ready to work with all agencies and stakeholders to move forward with compliance with the Clean Water Act, including secondary treatment requirements, creating a foundation for a sustainable future for decades to come. Thank you. Ms. Johnson. Thank you very much. The Chair now recognizes Mr. Filner for the first round of questions, and you may take this seat. Mr. Filner. [Presiding.] You know how much I tried to get out of this particular assignment, right? Thank you for being here, and thank you for being involved with this issue for so long. I am sure, like Mr. Bilbray and myself, you feel like there has been too much sewage for too long, and you would like to get out of it. Let me just ask Mr. Marin: You signed a Supplemental Environmental Impact Statement that said the so-called "Bajagua Project" was the preferred alternative. You signed, I guess, the Record of Decision, and you signed documents giving Bajagua the authority to go out to bid on contracts. We have met many, many times over the last number of years since you have been both the acting and the permanent commissioner, and you told me--and we worked on that assumption--that you were aggressively implementing the laws that were passed in the attempt to solve these problems. In all of that time, you never mentioned once that you were looking for another alternative, and all of a sudden, $66 million appears in the President's budget. Money does not appear like that out of nothing. I did not request it. Mr. Bilbray did not request it. Nobody in Congress requested it. How did that money get in there, and how long have you been working on this situation when, supposedly, we were trying to implement the public laws from 2000 and 2004? Mr. Marin. Sir, in response to your question, I can tell you that the U.S. section, in combination with the Mexican section, has put a lot of resources and a lot of time and a lot of financial resources into trying to get the public law requirements adhered to and, you know, executed. One of the things, again, as you mentioned, is I did sign the Record of Decision selecting the Bajagua Project as the preferred alternative, but that was based on the requirements that Bajagua had already advanced its project. Yet, they had already selected a site, and they had already done some design and so forth. That would be the only way that the court-ordered date would be met. It is a September 30th, 2008. Unfortunately, things change as time goes on. The project is no longer at the same site as was proposed. There is no design prepared at this moment. Again, there was a conceptual design that was proposed, and so far, that has cost--again, it is a factor in which maybe the decision has been to change, and right now, I cannot say that we are changing course. We might be pursuing two different alternatives. As to the $66 million budget, I can tell you that there was a very tedious effort by several Federal agencies that were involved to see how this project could be implemented. First of all, in the development agreement, too, there was a May 2nd date that needed to be complied with. There were a lot of requirements that had to be met by Bajagua on that date. That was not complied with, and so that date was also in the President's budget. So, once the President's budget was implemented and the date came about, then the alternative plan was there in order to proceed in order to meet the clean water standards. The only alternative was what was originally planned and designed back in the 1990s. The design of the secondary treatment plant was completed at the time. Again, unfortunately, the funding was not there to construct it. So that was based on the reviews that we conducted. That was the only option that we had in order to be able to meet the clean water requirements for---- Mr. Filner. Did you ask for the $66 million? Mr. Marin. No, sir. That was, again, the administration's-- -- Mr. Filner. Who asked for it? I mean, money does not just appear. Mr. Marin. We provided--how do you say--the technical background as to how much it would cost, and again, the budget, the $66 million, was basically a consensus of Federal agencies that this would be the best approach to take since we could not, again---- Mr. Filner. If you pursued that approach, would you meet the court-ordered deadline? Mr. Marin. No, sir. Mr. Filner. Okay. So there is no way, apparently, that we are going to meet the 2008 court-mandated deadline? Mr. Marin. Not at this point. Mr. Filner. So since neither alternative--why have you stopped working on the first alternative, which you said was environmentally the most preferred, which you said was the best? In fact, if you read all of the supporting documents, you ripped apart this alternative of secondary treatment in the United States. You ripped it apart in your document. So why didn't you keep pursuing the first alternative? Mr. Marin. Again, we provided, or, by letter, I requested that we suspend our agreement with Bajagua in order, again, to be able to review the situation as it is now. Again, there was no compliance to the development agreement. Mr. Filner. That is not true. They missed a deadline. Mr. Marin. They missed several deadlines. Mr. Filner. But they made several, right? Mr. Marin. They did, but there are very few, and I can tell you the critical ones were not met. Mr. Filner. And did you have any possible role in delaying that? Mr. Marin. Sir, there is a lot--again, this is an international project, and there are a lot of factors that influence what is happening there. It is not something---- Mr. Filner. Including your not being able to go to meetings, including your taking too long to---- Mr. Marin. No. I am sorry, but I know Bajagua, and again, I mentioned in the previous meeting that they had put together a list of areas in which we, according to them, had delayed, but I can tell you we can spend all afternoon contradicting every single one of those. Mr. Filner. You just said you know how difficult and complex the negotiations are, and then you are saying that, oh, well, they did not respond. So you recognize how difficult it is. We are just very upset that you did not put all of your resources into trying to make that happen since we passed two laws in this Congress to do that, and I mean that was very upsetting to those of us who have tried for so long, and you are seemingly going back to a proposal which was rejected a decade ago which may take another decade to come to fruition. Remember, the first plant that is there took more than a decade, I think, Brian, to get into action, and it was obsolete when it was open. So we are trying to get all around that. I am going to come back to you, Commissioner, and also to you, Mr. Nastri, but I will yield to my friend from Arkansas, Mr. Boozman. Mr. Boozman. Thank you, Mr. Chairman. I guess I am confused about this. We have a situation where, in the past, we have had, you know, a lot of effluent coming from Mexico. The Tijuana area has grown in the last 10 years.You know, we had a partial solution that treated 25 million; is that right? Now, probably, what is it? What is the total effluent now, 75 million or 70 million? Mr. Nastri. In terms of the treatment---- Mr. Boozman. As far as the amount that needs to be treated that is coming out of the--so I guess my point is that we have got a much worse situation now than we did 10 years ago even though we have had a partial solution. I do not understand how your solution--and I really do not know your solution, Mr. Marin. I do not see how that addresses that at all. The other thing, Mr. Nastri, is that you said that it is good news that we do not have these spikes and stuff, but because it is just phase 1 coming out of the treatment plant, if you tested that water, it does not meet the EPA standards because of phase 2's not being there, does it? Mr. Nastri. It does not meet the secondary standards, Congressman. Mr. Boozman. So all that means is that the reality is, when you walk down the beach, you do not see the visible feces and stuff like that, but you have still got the dissolved crud in the water that is there all the time. In fact, to me, that is even more dangerous because at least when you see the stuff, you know, if you are out there, you realize there is a danger there. Mr. Nastri. I can understand your perspective, but the fact of the matter is that, when you look at the water quality standards now as opposed to 10 years ago, we are much better off today than we were 10 years ago when we did not have the facility operational. Mr. Boozman. Do you agree with his solution? Mr. Marin. Do I agree? Mr. Boozman. No. Does Mr. Nastri? Mr. Nastri, as to the EPA, do you support what they are trying to do? Mr. Nastri. What we support is getting secondary facilities constructed, and we support getting it done in the most expeditious way possible. I think you are right. Mr. Boozman. Are you concerned about the other 50 million or 35 million, whatever it is, that is not being addressed at all? Mr. Nastri. The issue that you are raising addresses future capacity, and there are a number of plants that are about to be on line or are about to be constructed or are about to actually be completed and become operational through loans developed and acquired by Mexico through the Japanese banks, and there are other facilities that will address that capacity. So will we need that capacity right away? No. Will we need that capacity in 2015? Yes. Will we need that capacity in 2023? Yes, but right now, because the plant is in violation, our primary goal is to get the plant in compliance, and so our goal is to do it in the most expeditious way. As you and the Members of the Committee have noted, it has been 7 years, and we seem to be no closer to secondary treatment than we had been 7 years ago. So, when you ask me as a representative of EPA what our opinion is, I am going to tell you that I want to respond in a way that gives me the most assurance, and the only way that I have that assurance is if it is something that we, as an agency, have control over. The U.S. EPA does not have control over the construction in Mexico. Mr. Boozman. But as a plan, I mean as far as looking at plans, if you could snap your fingers and know that, you know, the proposed thing in Mexico is actually done and is going to be constructed, that is a much better plan as far as solving the whole problem than just getting the secondary, isn't it? Mr. Nastri. The Bajagua plant, as described to me earlier today, in going to secondary and tertiary treatment and utilizing more of the water is certainly a better approach, and that was the basis for the preferred environmental approach described in the EIS. It is that you are actually treating more to a higher standard as opposed to 25 million within the IWTP. Mr. Boozman. As to what you are trying to do, Mr. Marin, do you have the legal authority to do that? I mean, is there statutory authority in place now? The legislation that we passed seems to be different than what you are doing. Do you have the legal authority to even do this? Mr. Marin. The public law, sir, identifies that, if there is no other alternative in the United States, that secondary can be considered or that other alternative can be considered in the United States even at the same time as the Bajagua Project. If I could add to what Mr. Nastri here has said on the water deliveries or on the quantity of water that is available in Mexico, right now, we are treating 25 million gallons a day of sewage at our plant, again, to advanced primary standards. Mexico also has a lagoon system in which they are treating 25 million gallons a day, and that was upgraded 2, 3 years ago. What I can say is that there are about 8 million to 12 million gallons of raw sewage going into the Pacific Ocean about 6 miles south of the border. Again, as Mr. Nastri has mentioned, there are two plants under construction using the Japanese credit, the Japanese credit plans. Those will be treating sewage to secondary, and they also will be aligned later in 2008. So, right now, the way it is seen is that there is enough capacity to treat the sewage that is being generated in Mexico. There is no renegade sewage in the Tijuana River, and there are, yes, occasional discharges in some of water, but we also have facilities to capture those and put them back in our plant. Mr. Boozman. One last thing, Mr. Chairman, if you will indulge me. So is your problem in not doing what Congress has asked you to do in the sense of what we have put in legislatively? Is it with the plan or is it with Bajagua? Is it the implementation of the plan with the company that was selected? Mr. Marin. Well, I think, sir, again, there are several factors right now that are, I guess, preventing the continuation or at least the advancement of the Bajagua Project. It is not--I do not have anything---- Mr. Boozman. Like I said, do you have a problem with what we have legislatively asked you to do? Mr. Marin. No, sir. Mr. Boozman. Do you disagree with that or do you disagree with the group that is trying to---- Mr. Marin. No, sir. I just am looking to see what is the most efficient and effective way of getting secondary to our plant to be meeting the secondary requirements and, therefore, to alleviate the court-ordered deadlines and sanctions that may come. Mr. Boozman. Okay. Thank you, Mr. Chairman. Mr. Filner. Mr. Boozman, I would ask unanimous consent to give Mr. Bilbray a chance to ask some questions of these witnesses. So ordered. Mr. Bilbray. Thank you, Mr. Chairman. Commissioner, you said there is no renegade flows going into Tijuana. Are you willing to go down there now to wade in the Tijuana River with me? Mr. Marin. Yes, sir. I had photos taken yesterday that show that there is nothing there. Mr. Bilbray. You are saying that, right now in the flood- controlled channel, there is no pollution? Mr. Marin. Yes, sir. Mr. Bilbray. I will make a call over to the county health department, and I will love to see them verify that. Mr. Marin. I will meet you there, sir. Mr. Bilbray. So it has got no flows going through it now? Mr. Marin. I do not think so. No. We operate that plant when there are flows coming across. Mr. Bilbray. The interceptives? Mr. Marin. Yes, sir. Mr. Bilbray. Gull Canyon has no problems? Mr. Marin. No, sir. Mr. Bilbray. In fact, I will have my staff give the county a call to see what the latest numbers are on the Tijuana River. The fact is--what was your estimate in 1995 of building the total plant, secondary and primary? Mr. Marin. I am not familiar---- Mr. Bilbray. Okay. What was your estimate of building a 25- mgd primary? Mr. Marin. Right now? Mr. Bilbray. What was it in 1995? Mr. Marin. I do not have that figure, sir. Mr. Bilbray. How much over were you? Do you know how much you were over? Mr. Marin. No, sir. Let me just put it this way. Even though I have a 27-year career with the boundary commission, that project was not under my authority. Mr. Bilbray. So you have no idea what the original projections were for the construction of the existing IBWC project? Mr. Marin. No, sir. I was building another wastewater treatment plant at that time. Mr. Bilbray. Do you have any idea now what you are projecting the 25-mgd secondary is going to be? Mr. Marin. $94 million. Mr. Bilbray. $94 million. That will treat 25 mgd to secondary? Mr. Marin. Yes, sir. Mr. Bilbray. Previously treated? Mr. Marin. Yes. Mr. Bilbray. So the problem I have here is that you do not have the numbers as to how much you underestimated your original projections. So I have got your projections now. I have no way of judging how much farther over you are going to go, but we all know it was grossly underestimated in the previous first stage of construction. Will you agree with that? Mr. Marin. Yes, sir. Mr. Bilbray. Okay. Do you see where there is a little credibility problem here? Mr. Marin. Well, again, if I may add, we also had this estimate from Montgomery Watson, which is also one of the 40 top engineering firms in the United States. Mr. Bilbray. I understand that. The difference is---- Mr. Filner. Those are private firms that you are trusting. Very interesting. Mr. Marin. I believe Bajagua is doing the same thing, sir. Mr. Bilbray. And that is fine. The fact is that history has proven that, when you build it on the border with all of the problems that we have along the border with floods and with the fact of an uncontrolled situation along the border, there are a lot of unforeseen things. Mr. Marin. Correct. Mr. Bilbray. Okay. So the record of the in-house operation of IBWC has been less than stellar. It has been frustrating, okay? I understand both sides. This is 25 mgd to go to secondary. What is the next step? Where do we go? Are we finished with this treatment issue? In other words--well, let me just back up and say this. Has there ever been enough capacity in the Tijuana region for treating sewage? Mr. Nastri. Not to my knowledge. Mr. Bilbray. Has there ever been a plant that has come on line as to its original projection on "time"? Mr. Nastri. I am not aware of any within Tijuana. Mr. Bilbray. Okay. I am only saying this because those who have worked on this know that it has always been over budget, that it has always been late on "time" and that it was not just because it is a bureaucracy; it is because we are working across the border. The trouble, as I am looking here, is that you are taking timelines and projections based on scenarios that are not justified by the record of the agency that is executing it or as to the location, and I am not just saying the agency. It is a tough environment. Those of us who work in binational issues understand it is a different world. Frankly, that is why we are more comfortable with the concept of, if you do not get the sewage treated, you do not get paid. I would love to be able to challenge the Commission with let us do this 25 mgd on the basis that you only get paid after, that you get the Federal money and the taxpayers' money after you start treating the sewage, and that is the challenge that we are getting into. So we have never been on time. We have never had enough capacity. Now you are telling me they are going to be on time, and we will have plenty of capacity. Mr. Nastri. Congressman, you have asked me questions specific to Tijuana, and as I mentioned earlier, the EPA had a cap placed on spending for upgrading wastewater treatment facilities within the Tijuana area. I can provide you examples of where, in fact, we have been on time, where we have been on budget within Mexico, and I can point to my colleague---- Mr. Bilbray. Has it applied in Tijuana? Mr. Nastri. As it applies to Tijuana, again, because of the restriction on the spending cap, the EPA has not been able to move forward. Mr. Bilbray. Well, first of all, I had a question of if the spending cap were after you had overruns or before you had overruns? Mr. Nastri. It was after. Mr. Bilbray. Okay. See, that is what I mean. It was a reaction. All you have got to say is--Tijuana is the fastest growing region in Mexico. In fact, it is probably the fastest growing region in North America, but you have got a whole dynamic there that you can try to apply certain areas to, but this is one of them that we get into. What is the IBWC's plan for the next phase? Are you going to be coming to this Congress, to this Committee, asking for funding for the next 25 mgd up to secondary, Mr. Commissioner? Mr. Marin. Again, right now, in the President's budget, it calls for $66 million. I know the House has removed that wording from the budget, but the Senate has put it back in. Mr. Bilbray. Commissioner, I am not saying that. EPA, you can answer this, too. Are we saying, "We do not need any more treatment. We are not going to expand the IBWC plant at all anymore"? Mr. Marin. No. We will expand the plant to secondary. Mr. Bilbray. Okay, to secondary, but you are not going to increase the volume of treatment at that site anymore? Mr. Marin. No, sir. No. Well, no. Excuse me. That plant--with the program that we are implementing, it can expand the plant immediately to 50 mgd and then ultimately for 100 mgd. Mr. Bilbray. What I am saying is--here is my question to you. Are you willing to tell this Committee now, "look, once we get this done next year, we are going to be coming with"---- Mr. Marin. No. No, sir. I do not think--again, the flows are not there in Mexico. Mr. Bilbray. So, in other words, what you are saying is---- Mr. Marin. Mexico can take care of their own---- Mr. Bilbray. --and what you are telling this Committee is that there is no longer going to be a problem after this year with Tijuana sewage? Mr. Marin. Maybe not for many years. Mr. Bilbray. You honestly believe that we will not have to worry about that? The people at Pearl Beach and the people in San Diego have now been assured by their government not to worry about it, that Mexico is taking care of all of the problems and that we do not need to make any more of an effort? Mr. Marin. We will work, Congressman, to take care of the issues with Mexico if things--again, right now, our agreement is to take care of the 25 mgd from Mexico. Mr. Bilbray. Let me say this publicly just in closing, Mr. Commissioner. I did not support the original proposal to treat sewage in the United States. I liked the idea that Mexico had a treatment facility in their country and that it was not in our neighborhoods, and most Americans would agree that it is much better that Mexico treats their sewage in their neighborhoods and not in ours, so I am not arguing with that, but then the Commission, in working with the EPA, fought tooth and nail to get Mexico to allow the sewage to be treated in the United States. Bob Filner's district was allowed the privilege of hosting a foreign country's treatment facility. Finally, I agreed to that. We went with it. We passed a law in 2000 that I authored and that Bob cosponsored. The President of the United States had a chance to veto that bill on Election Day in 2000. He did not. The executive branch signed it. I will be very frank with you. My opinion is that the people who are working under you have spent every day since 2000 to de facto veto that legislation and to obstruct the implementation even though it was explicit in how it should be executed. The bureaucracy is vetoing a duly passed piece of legislation, and I see this as a major violation of the separation of powers. I do not see anywhere in the Constitution that the executive branch gets a second shot at vetoing a bill. That is what I see has happened. When you introduce an amendment to finance a whole different project without even talking to the people about where you are going and how you are doing it, I mean the whole illusion was we are moving; we are moving; we are moving, and all at once, it shows up in the budget. It does not happen overnight. I think Mr. Filner is right on that. I have just got to tell you that I think you guys have done everything you can since 2000 to make sure it does not happen, and the project is still not done. I yield back, Mr. Chairman. Mr. Marin. I seriously disagree with your statement, sir. Mr. Nastri. I certainly disagree with that, that EPA has fought to oppose this project. In fact, we have tried to be expeditious in our response in providing assistance to both Bajagua and to the IBWC. Mr. Bilbray. My question is would either one of you support the concept of a public-private partnership---- Mr. Nastri. I do not know enough to have a position on that particular matter, sir. With regard to public-private partnerships, I am a big proponent of those. In fact, we have done many, addressing primarily air quality issues, not only within San Diego-Tijuana, not only within California, but in fact, we have developed a model that has been used throughout the Nation. So I am a big proponent of public-private partnerships. Mr. Bilbray. I just think it is so much more the nature of bureaucracy to do what you are used to, and you are used to contracting with a private company to build a project but not to operate it and to be responsible for the outcome. Frankly, as a victim, as somebody who grew up as a victim of the lack of government action, I have a lot more faith in a contractor's being held accountable, because he will not get his money. You guys get paid no matter if the sewage flows or not. That is our biggest problem. All of us get paid if the sewage flows or not. Frankly, I would love to see us all a little sensitized, and if we have got to use contracting as a way to sensitize that--I did it at the county; I did it at the city--then I think that those of us in the Federal Government ought to be brave enough to try new things. Thank you very much, Mr. Chairman, and I appreciate it, and I know it is a frustrating situation, but it is something that we are all going to have to be held accountable for. Mr. Filner. Thank you, Mr. Bilbray. I think your characterization of a de facto veto of two pieces of legislation is accurate. Commissioner Marin, I was shocked that you did not know how much the secondary treatment will cost. If you listened to Mr. Nastri's testimony, he puts it at $239 million, and I think we have heard that that was $100 million under budget, which is why it could not be constructed, the full secondary. I know both Mr. Bilbray and I, who are in the area almost daily when we are home, find it very difficult to believe your statements, Commissioner Marin, about the lack of problems and to believe your written testimony, Mr. Nastri, which you did not repeat, I noticed, in your oral statement that Southern San Diego County is no longer experiencing the effects of daily sewage contamination to their rivers and beaches. That is an amazing statement. I mean, I will join you and Mr. Bilbray and Commissioner Marin and step foot in that or I will dare you to do it. I mean, do you find that statement just completely out of touch with reality, Mr. Bilbray? Mr. Bilbray. Well, I was out there 3 weeks ago, riding horses along there, and it was flowing 3 weeks ago. Mr. Filner. Where do you get that information? You say it is no longer experiencing the effects of daily sewage contamination on rivers and beaches. Who told you that or how do you know that? Mr. Nastri. We collect the information. I think I was trying to make the distinction, Congressman, with all due respect, between wet weather flows and dry weather flows and what it is we are trying to accomplish. We are not saying that there will be no sewage ever. We are saying that, under dry weather conditions, we will collect the sewage---- Mr. Filner. That is not what you said here. Mr. Nastri. What I said was---- Mr. Filner. There is nothing about--oh, in dry weather. You said the treatment plant is no longer experiencing the effects of daily sewage contamination in its rivers and on its beaches. Mr. Nastri. That is true. Mr. Filner. You are absolutely wrong. Mr. Bilbray. Would the gentleman yield? Mr. Filner. Yes. Mr. Bilbray. Okay. Now we are using wordsmithing. Will you admit that? Will you admit that? Mr. Nastri. I made the distinction that there are different conditions---- Mr. Bilbray. Wait a minute. When the red sign goes up telling the kids "stay out of the water," when the red sign goes up and says "this water is not safe to touch," is there a caveat saying "wet weather" or "dry weather"? Mr. Nastri. The signs usually go up in wet weather conditions, sir. Mr. Bilbray. And the point being that, if we do not keep our beaches open, the kids do not give a damn if it is dry or wet weather. The fact is, if you do not have the capacity--you are using the caveat "we have capacity for dry weather." Excuse me. Historically, dry weather has never been a problem there. Historically, the wet weather has always been a problem. So what you are doing is ignoring the true problem, the tough problem. That is wet weather flow. Are we going to go to Boston and tell Boston that they do not have to have sewer overflow systems? Will the center just talk about San Francisco? We require it as a minimum standard throughout this country, but what you are saying is the standard for those who live along the border is only dry weather, not wet weather. Will you admit this: If we do not have capacity for wet weather, we have not solved the problem? Will you admit that? Mr. Nastri. We have not solved the full problem caused by Mexico. Within the United States, we are addressing both the wet weather and the dry weather flows as you suggest. The issue about the authority, though, to address what EPA can do---- Mr. Filner. As the administrator for the 9th district, I find your statement so out of touch with reality. I have trouble with, you know, listening to anything you have to say. Let me ask you three things. Let me make three points quickly. I think the whole point was, when you made your statement-- and we have it on the record--about control, you want control, and you did not have it on this project, so you were prepared to scuttle it. That is what you want. It has nothing to do with the court order or anything; it was control, and that is in your own words. So I find that incredible. That is the definition of "bureaucrat." That is all you are concerned with. I will tell you that you are focused on dealing with the law that your 25 million gallons per day will be turned to secondary. You are not an environmentalist if you can say that you have done your job and that that is what you are going to do. You are going to upgrade this to secondary. We have done our job. What about the 50 million gallons? What about recycling? What about the sludge that is there? This is not the best solution, and you know damn well it is not. This is a solution to meet the purely technical, legal situation with no regard for the well-being of our constituents or of the environment because, if you were concerned about that, you would not testify like this. You would say, "Look, I will fulfill the 25 million gallons secondary, but I will also then figure out how to do tertiary like Bajagua does. I will figure out how to do 59 million gallons like Bajagua does. I will figure out how to recycle the water like Bajagua does." All you say is "I want control, and I am going to meet the law, and we are going to leave it at the completely obsolete standard of 25 million gallons per day." I mean I find that disgraceful for an administrator of the EPA, and you said--by the way, I will give you a chance to answer. You said this is the most expeditious way to get that secondary. I want you to say that again on the record when you know that the Congressman from the district is going to fight that appropriation every step of the way. Do you know how easy it is to give away $66 million as opposed to getting it? I am going to fight that. The people will go to court about your process, your activated sludge process. They will go to court on many different grounds, and you will never see the light of day of that project. Mr. Filner. Do you now say it is the most expeditious way to get there. Mr. Nastri. Congressman, thank you for giving me a chance to respond to your comments. First, as a regional administrator of the USEPA, I uphold the law. We will do that. Mr. Filner. The law. Mr. Nastri. We will do that. When you ask me what is the best way to do it, I say give it to me, give it to EPA, we will take care of it, we will get it done. Mr. Filner. The Congress said a different way. We told you what the way was. We passed two laws. Mr. Nastri. We have complied and provided assistance necessary. You asked a question today what will it take and I am trying to give you my honest answer to that. With regard to meeting the law, absolutely we will do whatever is necessary within the authority granted to us certainly by Congress and others. The challenge though, sir, and the challenge which we have met, is working with Border 2012 Commission. It is working with Mexico to just the very questions that you asked us. It is working with Mexico to find ways where we don't have the authority to get them to do things that otherwise wouldn't be done. It is working along the entire U.S. border. It is working---- Mr. Filner. It is not working. I live there. Mr. Nastri. Sir, we don't have the authority to move forward in such a manner. That is why we are using those partnerships---- Mr. Filner. You are not solving 59 million gallons a day, you are solving 25 and you are doing it in a way which is not necessarily environmental sensitive and does not recycle the sewage. Why is that a better way? The claim is the Bajagua Project does meet the law, right? The secondary treatment, if it was implemented, it would meet the law? Mr. Nastri. Yes, it would. Mr. Filner. They are closer to meeting the deadline than this--I learned a new word, "chimera"--of a secondary edition-- because we are going to fight that. We have a Republican, we have a Democrat, anybody who wants to give away $60 million will be pretty well aware of what we think, and we will be at those conference committees and everywhere and you ain't going to get it. It is not even the question of that. It is a question that you have come up with an alternative. Actually we mandated one knowing that alternative. It was found to be not sufficient, another one was pointed out--regardless of your statements that you assisted. I think if we had court testimony on it, we would have testimony on how EPA and IBWC resisted the implementation of that law since it was passed. And you would be looking for a way not to do it, and there has been one reason and you said it, control. Mr. Nastri. Congressman, I said control because if that is how you asked to us proceed we would do so. We have provided assistance, technical resources, and we will continue to do so. If you asked if we have a preference, I have no preference on whether it is Bajagua, through a national wastewater treatment plant. The preference we have now does come into compliance. The preference is that we work in partnership with Mexico, with all the stakeholders, to come up with a way that is acceptable. Part of the challenge here is to take the history from the last 10, 15 years and learn from it. I can tell you when I came into this position the financial management of the border fund is something that caused me great concern. We permitted a number---- Mr. Filner. I don't give a damn about that. We are talking about treatment of sewage from Mexico today and how we are going to get them to comply with the law and comply with the environment. I will call on Mr. Boozman. Mr. Boozman. Thank you, Mr. Chairman. I am not emotionally in this thing in the sense of I didn't grow up in San Diego. I live in Arkansas in the center of the country. I have been on the Committee since 2001, on Water Resources the entire time and on Transportation. I think you do agree that the intent of the law in 2000, and then I tweaked the law in 2004, really wasn't a direction that is different than what you are taking now. And for somebody who tries to get things done, goes through the process, it is very irritating to do those things and then not have the agencies carry it out. And I really see that that is what is happening, and I think you would agree that we are hearing it. We are the ones who did it, Mr. Filner is on the Committee, Ms. Johnson, we agree our intent was not to do what you are doing now. On the other hand, I am willing to listen if you are telling me that because the Japanese are going to build treatment plants, we are not going to have a problem in a few years. I will listen, but you are going to have to give me evidence that that is the case. Right now I am a little confused. I have an excellent relationship with EPA. In Arkansas we have a lot of rivers and streams and enjoy working with you guys, but things are a little tougher, it seems, with the standard as far as getting rid of the phase 1 stuff and feeling like everything is okay now. I understand you want to get to phase 2 to bring it into compliance that way, but you are still not dealing with--you have as big a problem now because of the growth of Tijuana and the surrounding region as you did when we started this thing 10 years ago. Is that not right? Mr. Nastri. I said we have a big problem, and I certainly hope I didn't convey that we were resting on our laurels with the advanced primary because we certainly agree and I thought I acknowledged that the outfall is continuing to discharge in a manner that is not in compliance with the Clean Water Act. It is in violation and posing a risk to the health of our nearby populations, to the community, to the beaches, to the rivers, absolutely, and that is why EPA has provided funding and is doing everything they can to move this project forward. As I mentioned before, we are not party to the negotiations with the IBWC, we are not party to negotiation with Bajagua. We are providing resources when asked. And I would ask if you are aware of any type of incidence where EPA has delayed or hindered, make me aware of it, because I am not aware of such issues. Mr. Boozman. I guess my point is we have a problem and so the Committee, they scratch their heads and the staff and the Members, and we look at this and say well, we have this problem, let's come up with a solution that gets you your secondary into compliance and then it also treats the other because of the growth of the city on the other side and then especially keeping it on the other side which--so we are going to treat that too. We come up with that solution. That to me is a good solution. What we are talking about is backing off and doing the second phase of that, which for me again is not the legislative intent of what we were trying to do. Is that not right? Isn't the better solution to the problem the one that we came up with? If we can get--and this is a separate issue that we are going to talk about in a little bit, but if we can get the companies to get the thing built the way that we want to get it done. Mr. Nastri. I think your intent as you describe it, had it been met in the way that it was desired, the answer to your question would be yes, but the challenge has been as the commissioner has described. Here is where I get to the issues of control. I can control what my agency does, I can control what my staff does, I can't control what other agencies do or do not do. So having said that, what we rely on are people making schedules, people meeting commitments. If those commitments and schedules haven't been met for whatever reason, and I will not comment, they just haven't been met, the issue is do we have confidence and can it be done. Mr. Boozman. Thank you, sir. Mr. Nastri. Sure. Mr. Boozman. We went for years trying to work out the treatment or whatever. What does Mexico think about this? Do they mind us pulling the plug or do they want us to pull the plug on this? Mr. Marin. Let me tell you Mexico supports the Bajagua Project. It would be dumb for them not to do it. It is a free project---- Mr. Boozman. Are we having any kind of legal obligation with them? Mr. Marin. Normally it is a 50/50 split. That is what we would do with Mexican projects. I believe that is in the 1944 treaty. This one is a whole free project to Mexico. Mr. Boozman. You negotiated it. Somebody did. Mr. Marin. Yes, we were joined with Mexico to build this plant. Mr. Boozman. You came up with an assignment. I guess my question was when we came up and signed it do we have a legal obligation or an oral obligation to do our treaty? I don't understand. Mr. Marin. Let me say Mexico has already paid the U.S. for secondary treatment of their sewerage. They paid us when the first plant was constructed, and of course our agreement with them was this plant would go to secondary and they paid us in advance. In fact they made their last installment this year. Right now it is an obligation to the U.S. to provide secondary--again Mexico---- Mr. Boozman. That is another obligation that we haven't talked about. So we have that obligation sounds like, but do we have an obligation either by treaty or by a moral obligation? Since we spent a lot of time working on an agreement and both sides signed the paper, are we bound to doing what we said we would do? Mr. Marin. Not necessarily. We will work together to get the project done, but there is no definite and specific commitment that this project had to be done. Mr. Boozman. What I would like to do, Mr. Chairman, with your permission, is we have several questions that we would like to submit to the witnesses. I yield back. Mr. Filner. Yes. Mr. Boozman. Thank you. Mr. Filner. Before I call Mr. Bilbray, you said you had to have confidence in the agencies you deal with. That is the problem here. We have a problem because the IBWC didn't fulfill its original commitment of building a 25 million gallon per day facility that would treat at secondary standards. Why deal with IBWC if you can't trust them? Mr. Bilbray. Mr. Bilbray. I guess I want to come back and visit this issue of where we are going, because problem is I don't see us going beyond, I see an abandonment of a long-term agenda. I would like to ask EPA, how many beach closings have occurred because of the lack of secondary treatment at the outfall? Mr. Nastri. I don't have the exact number. I can get that to you, sir. Mr. Bilbray. Well, let me say I would--you may want to ask your staff about that. Mr. Nastri. I absolutely will. Mr. Bilbray. Because my information from the county of San Diego, which does the testing, zero, zero, that the health risk of not going to secondary to that today is zero. You want to guess what percentage of the closures in that area was because of wet weather flow? Mr. Nastri. Yes, I would say probably 100 percent. Mr. Bilbray. Can we agree that the public health threat here is wet weather flow and so from the EPA's point of view, separate from these guys, wet weather is the end all? If you ignore wet weather--let's pull up our tent, except for what you said, and I understand what you said. My concern is that the law is sufficient, it is not enough to do just the law. In this situation where you want to take your kids into that water the secondary is not what is going to threaten their lives. My kids are recommended to have hepatitis A and B inoculation because of exposure from a foreign government lack of action and the lack of action of our government, and that is why I am coming back down to this issue. We can't walk away, you are not going to be done with this, ladies and gentlemen, until you take care of wet whether flow, and there are a few of us who will go to our grave dragging this back up. Commissioner, in 2001, within months of the passage of the legislation, you had staffers who weren't under your supervisor at the time, but were actively working within the coalition, saying there is no accountability if we have a private contractor implement. And they publicly stated, and in private discussions would be there, they didn't want to do this project. Now, you think about what I feel like working my entire life in this, finally getting all the players together, he will take up treatment plant in his district, we will get the money for you, we have everything together, and you have somebody who says, Congressman, I don't care what you guys do, we are not going to do it, we are not here to serve the law, we are not going to follow the congressional mandate, we are insulated from that. And you know the problem with the commission because it is a hybrid formed in the 1840s, basically not under the supervision of anybody, has created a mindset that basically has been insulated from political reality. And now you have a situation where you have mid management people telling Congressmen and telling the public, we don't care what the law is, we don't have to do it, we don't like it. That is the kind of thing why I am outraged, that is why I am sitting up here on this dais. It is not my Committee, it is not even my district, but it is my country that says the executive branch is not supposed to be not above the law, they should be executing the law. I don't see where we go with this thing if you play with that. I still come back to every cent that is wasted, every cent not spent as effective as possible, I say this to EPA, every cent not drained to protect the value is an act against the environment because that is a cent that could have been used somewhere else. My concern is here, if we are going to treat 25 mgd to secondary for $1.75 instead of $1.05, that is an act against the environment for us to sit and just say, don't worry, we will find the money somewhere else, we will find more money. That is why I am saying you will pay the price and fulfill the law, but you are not going move the agenda for protecting the environment. And no one passed the Clean Water Act ever thinking it would hurt the environment and never assumed that we would waste money and not be as the most effective as we can. We will go another 25 mgds, Commissioner, the wet weather flows will be brought up. Is the State Department willing to close the border for every day that the beaches are closed, are you willing to shut the port of entry? No. Why not? Is Mexico more important than tourism on the beach of Coronado? There is a real double standard here, but it is not important enough to you to do those kind of things. That is why I say it will come down the pike. I will do everything I can while I am in Congress and if it means shutting off and eliminating the privilege of crossing the border to protect our environment, I will be willing to do it, but wet weather flows are important, they are the ones going out there, and that is one of the threats, that is what is closing our beaches. Mr. Nastri. Congressman, I agree that the wet weather flows are a big challenge, but even if we proceed in the Bajagua format, that still will not address the wet weather flows. Mr. Bilbray. So you agree that Mexico is part of the Minute order, Commissioner, why we are giving them such a deal on treatment? We give them a great deal on treatment, they are supposed to focus on the wet weather flow, they are supposed to put it in pipes, which will increase the volume that we need to treat. So that is my concern. If you take the existing flows, you have to remember we have to project, we don't know what the wet weather flows would be. For us to say we don't need anymore at this time is not viable, it is not responsible. If they do their job, our job will increase substantially but the environment will benefit. That is why I get mad. I was there when we negotiated, Mexico was supposed to put it in a pipe and we are supposed to make sure it doesn't pollute the ocean. They will do their part. The trouble is I don't think we will be doing ours. Mr. Filner. Let me make one more point. When I first heard about the Bajagua proposal, the thing that intrigued me the most was the recycling the water. The government of Mexico, the State of Baja, the City of Tijuana all are desperate for water. I understand there are discussions about the Colorado River distribution because Mexico is a party to that and both your agencies I suspect will be involved in dealing with the allocation of water resources. It seems to me to undermine a project for producing 50,000 mgd of reclaimed water is harmful to the future of water resources in the whole Colorado Basin, let alone southern California. Why wouldn't you be jumping on that? I don't understand it, a million gallons a day of reclaimed water in an area desperate for water, why can't you help on that? Do you have any other plans to give us reclaimed water? Mr. Marin. Sir, that reclaimed water is not for U.S. beneficial use. Mr. Filner. I said give it to Mexico so we don't have to worry about Mexico's claim anywhere else. Mr. Marin. There is an issue on the Colorado River and California location, California has been reduced to the 4.4 plan, 5.42. That is water that is seeping from the canal into Mexico---- Mr. Filner. What are you doing to help the region with more water? I just don't--you should be jumping on this thing with everything that you have got. You could leave office by saying you made sure the region had 50,000 gallons more where you don't have to worry about the Mexico and regional thing. Mr. Marin. Sir. Mr. Filner. Do you have any other plan? Mr. Marin. To provide the Colorado River water to the U.S. system to Tijuana. Mr. Filner. How much is that? Mr. Marin. It depends on---- Mr. Filner. How much is it? Mr. Marin. There is other---- Mr. Filner. How does that compare to 50 million? Mr. Marin. It is not U.S. water, it is Mexico water. We are concerned about the U.S. Mr. Filner. We are treating the sewage, which is what your job is and claiming and making sure our neighbor to the south has resources. And you are saying that is not our job. Mr. Nastri. Make sure the water quality standards are being met. Mr. Filner. That is why we are getting upset, because of the kind of bureaucratic answers we are getting here. Your job is to fulfill the law, our job is to help the region. Mr. Boozman. Thank you. One thing real quick, when will the court hear the matter of extending the deadline, the September 2008? And what is the IBWC, what are you guys going to argue when you go to court? Mr. Marin. Sir, that request was filed this morning. It was sent by the Justice Department to our regional control order or the judge--I am not familiar exactly who it was sent to, but it has been filed and we will request an extension for construction of the plant. When we get a response, that is a different issue. Mr. Boozman. And the argument? Mr. Marin. Again that there will be right now pursuing dual course secondary to the U.S. and the Bajagua Project. Basically the extension is to be able to mediate one of those two deadlines. Mr. Filner. Which deadline are you trying to meet with that? Mr. Marin. 2008--the request that we are fighting is for an extension of time, to be able to construct our plant or finish the Bajagua---- Mr. Filner. What date is that? Mr. Marin. March, 2010. Mr. Filner. You think you are going to build--even Mr. Nastri is looking at you with some incredulity. March 2009? Mr. Marin. 2010. Mr. Filner. You don't have any money yet. You are claiming the environmental lift thing has been done but it ain't because it is a new project. You haven't dealt with the Congressional problems and lawsuits and you will do it by---- Mr. Marin. Based on the EPA and CEQ the environmentalists have prepared. Mr. Filner. I wished you worked on the other one as much as this one. I am sorry. One more question. Mr. Bilbray. Originally, there was a little thing called litigation between Surfrider and Sierra Club. Has Sierra Club, Surfrider and the judge, I guess Judge Rooster, have they signed off on going to activate sludge, now going back to the original, have they assured you they have no problems with you now going back? Mr. Marin. The lawsuit that was filed, sir, was a lawsuit to request that the IBWC consider other alternatives, it was not to say they would not accept activated sludge. There was an additional decision in 1999 that clarified that situation. We would have to go back again to update those requirements. Mr. Bilbray. In other words, you would have to--you agreed to give priority to the ponding over the activated sludge. So you would have to go back and renegotiate that with those parties and that judge or you show them that you fulfilled your requirement? Mr. Marin. Yes, sir. Mr. Bilbray. So we would go back to where we were 10 years ago? Mr. Marin. The issue about not being able to use it---- Mr. Bilbray. Activated sludge, and you don't to worry about lawsuits? Mr. Marin. As far as the decision a few years after that. Mr. Bilbray. Yes. The Sierra Club and Surfrider have told you they are okay with activated sludge now, they changed their position. Mr. Marin. I haven't read the documents recently to tell you yes or no. I know the decision is made that we did what the lawsuit required, for us to go look at different alternatives in order to address the issue there. Mr. Bilbray. I would strongly ask you to go back and touch base with those litigations to see if they changed their position. As far as I know, Mr. Chairman, there is no change at all in their positions. Mr. Filner. We thank you, Mr. Marin and Mr. Nastri, for your presence, and we thank you for helping us to understand the situation. Mr. Marin. If I may, Congressman Filner, I have some photos taken on July 16 of the river, it is basically dry, if you want pictures. Mr. Filner. That is because of all your efforts? What is that supposed to prove? Mr. Marin. The Congressman was saying there are flows in the system. Mr. Filner. Have you pictures of all the---- Mr. Marin. This is Tijuana. Mr. Filner. He asked about---- Mr. Marin. We have facilities at those sites. Mr. Bilbray. Next time why don't you send someone to the Hollister Street Bridge and test the water at the Hollister Street Bridge, and I challenge you to wade in the water at the Hollister Street Bridge. Mr. Marin. It wouldn't be the first time. Mr. Filner. It may be the last. Mr. Bilbray. I assure you---- Mr. Filner. Anything additional to submit we would be happy to argue with you right now. The second panel will please join us. Representing the Bajagua firm, we have Jim Simmons, who is Managing Partner. You have the floor. TESTIMONY OF JIM SIMMONS, MANAGING PARTNER, BAJAGUA, LLC Mr. Simmons. Thank you. Thank you, Mr. Chairman. My name is Jim Simmons. I am the Managing Partner of the Bajagua Project and a principal in the project. I have provided you today with written testimony which you all have in your possession, and I decided not to represent that testimony after listening to the process that has gone on here today. I will say this, and I think it is extremely important for us to try to characterize what we are trying to accomplish here. Mr. Filner. Just for a second, is Commissioner Marin or Mr. Nastri in the room? Voice. They left. Mr. Filner. They left. They don't want to hear this testimony? Just for the record, they left before your testimony. Thank you. Mr. Simmons. I certainly hope they come back. We find ourselves at a historical moment, it is also a little bit hysterical. I think we are at a point now where we have come full circle with a public project partnership put in place by Congress twice and asked to move forward with the project on the border to bring together a process that will bring several things for the United States and several things for the country of Mexico. Mr. Chairman, as you are so painfully aware, Mexico has been brought to the table to negotiate from a fairly weak position over the years, has looked to the United States to try to resolve issues they don't consider their problem. They don't have a sewage problem in the City of Tijuana, they have a water problem. The objective put on the table and brought forward was a proposal to create value, to create a commodity so that the City of Tijuana, the State of Baja and the country of Mexico can look at that and say it is incumbent to make use of this commodity and develop our neighborhoods based on clean water. We have a mechanism to develop clean facilities where we have something we can sell. Up to this point in the history of this project, and I look back to remind all of you on February 27th, 1944, that was 5 days after I was born, this treaty was put in place to resolve this issue. I would love to see this resolved before I am passed from this planet. I think it is a question now of how do we bring together the final steps of this process. We have put a huge amount of information before you and in front of the IBWC and others that says if we work together we come up with a facility that produces 59 million gallons today of secondary treated water, right now that is what is being charged in Mexico 5 million gallons, not one single drop is being treated to secondary standards, whether it comes out of San Antonio, Buenos Aires, whether it comes out of ITP, none is being treated to a secondary level. When we get our plant on-line everything we produce will be a minimum of secondary. We will provide the beginning of a process in Mexico where they will have a commodity that they desperately need. It is a process by which they will eventually be self-sufficient in their treatment. It is the only mechanism available to the United States to get out from under this long-term burden of paying for sewage across the border. Under the plan that the Commissioner has proposed to you to take 25 million gallons a day and treat that, that is an ongoing process under the treaty. There is no way out. This Congress will be asked for the next 100 years to pay for that 25 million gallons a day. Under our process it comes to an end in 25 years, the plan is paid for. There is a tertiary facility in place who has the financial ability to take over the process, and this country will finally step back and take a deep breath and say finally I am not paying for the treatment of Mexico sewage. It is a concept that when we proposed it to Congress it was passed unanimously twice, because what happens here is that I and my partners will step up with a checkbook and we will write a check for the entire amount of money that it takes for the project, we will not ask the Congress for one dime. At the end of the day I will come to you and say I am now producing secondary treatment water, and I would like to you pay me for the production of that water. And you will test it, you will say yes, sir, you have produced it, and we agree we will pay you for that. As long as you do that, we will continue to pay you for it. We have assumed the risk and appropriations, we have a bank that has financed us, all of the pieces are in place. I realize I am over my 5 minutes, I really could go on for a long, long time. I will defer to questions on this process. But in conclusion let me say this, we are virtually at the gate, we have identified the site in Mexico, we are currently working on the site. We have been given rights-of-way on the top of the berm to put the pipelines, which saves us from breaking streets and spending extra money to put pipelines in streets. We have been given a concession for the reuse of the water for 20 years. That is the economic engine that runs the entire process. Give me that economic engine and I will turn this into something that makes sense for you, the United States, to Mexico, and we will finally see an end to this problem, because instead of sewage being something that runs on beaches, it will be something that Mexico will seek to capture to bring the economic value back which they desperately need. I thank you for your time and attention. I will answer any questions I can and elaborate on anything I have said. Thank you. Mr. Filner. Thank you, Mr. Simmons. If the IBWC was cooperating with you, when could you have a plant open that would meet the requirements of the scenario? Mr. Simmons. The Clean Water Act implementation of the process we believe we could be in the ground up and tested and fully operational in 25 months. Mr. Filner. From the time---- Mr. Simmons. From the time they tell me to go. That could be today if they would tell me that. Mr. Filner. All right. For the record, Administrator Nastri and Commissioner Marin just walked in, so maybe you should answer my question again. Mr. Filner. I asked, assuming there was cooperation from the IBWC since we already have the EPA cooperation, could you open a plant that implemented or was in compliance with the Clean Water Act? Mr. Simmons. We believe we could open it 25 months from the time the restriction is lifted on us to move forward and we met with our three qualified bidders. That is the schedule they have given me. It would take 6 months to put all the filing negotiation in place and sign a contract, 19 months to build the plant. There are some mechanisms to shorten that. I have gone over those mechanisms with the Commissioner and those mechanisms involve while we are negotiating in that 6-1/2 month period, Bajagua itself could begin site preparation, we could look at ordering the pipe now in the beginning of the process rather than waiting for the orders to come after the contract is signed. There are several other mechanisms that may shorten the time 3, 4, 5 months. What we are looking for is an opportunity to put this in the ground. On the outside if I am set free to move forward and get full cooperation from the IBWC and the agencies involved, I will have it in the ground in 25 months. I have not been threatened with a lawsuit and don't have the same difficulties in front of me in terms of finding money from Congress. I will come to you and ask you to consider paying me until 2009. That would only be for the first few months. Mr. Filner. So when Mr. Nastri said he was interested in the most expeditious way of complying with the law, would you say your way would be a way to do that? Mr. Simmons. Absolutely. Mr. Boozman. Initially, again we enacted a couple laws, this didn't appear to be very controversial, you went through the process and got as far as you got and now you are having troubles. Why is that? How have you gotten crossways with the administration? Mr. Simmons. Well, I think there is a lawsuit hanging over the IBWC and they certainly don't want to be an agency sanctioned by the court for not complying with the Clean Water Act. And I think, as the Commissioner put very clearly, this is a complicated project that involves two national governments, two state governments, and several city governments, and his fear is putting all those pieces together in a timely way will be more difficult than he can deal with. Therefore, he wants to have a plan that will take him to his objective of not being sanctioned by the court in order to resolve that sole issue, to make sure he is not sanctioned by the court, and therefore in the process lose the vision and the ability to see past that and to treat into the future and to create this mechanism that will allow this reclaimed water to become a reality. I think that that fear is unfounded. If I get the same effort and cooperation into helping me with Mexico and things on the other side of the border that he has convinced you to put the $66 million toward, we will make it work. We are virtually at the door of doing that. I have three qualified bidders. Within 2 weeks I could have an RFP in their hands and they could be out to bid and we could go into construction within 6 months. Mr. Boozman. So I guess everyone agrees, as you said and as we had testimony earlier, it is a complicated situation in getting these things done. So you don't feel like your timetable is overly optimistic? Mr. Simmons. I don't feel as though my timetable is overly optimistic, and I didn't feel that my previous timetable was overly optimistic had I been given the level of cooperation I believe I should have gotten. At this point there are---- Mr. Boozman. Where do you think you haven't gotten the cooperation specifically? Mr. Simmons. I think that the International Air and Water Commission could have made a significantly bigger effort to help us work through the problems in Mexico. They started off by telling us we couldn't deal with Mexico without them being present, and then it was extremely difficult to make them present. So we have essentially abandoned that position and we have gone on to work with Mexico on our own and we have been very successful. I recognize that providing documentation for everything I will say to you right now, that is important and we will do that. We have convinced Mexico and, as the Commissioner said, Mexico ultimately would be rather stupid if they didn't take this process forward, but they have made an investment here. He made it clear they already paid for secondary, it wasn't clear it had to be secondary to the United States. They already made the payment, it can be in their country. He also made it clear that Mexico needs the water and they understand that implicitly. It is also very important that when I walk across the border in a public-private partnership that we do that together and make ourselves available to each other in a more expedient manner than we previously have. My contention is if we can find a mechanism to motivate each other to work closely together, we will accomplish this and get it done. And I am pleading with the IBWC and the EPA and with this Congress to help us do that. The reason I am pleading is because again it is a historic process that needs to succeed so that when this border has a fundamental change and how it moves forward treating infrastructure and water and how we share the Colorado River and how we do business with Mexico, this is an extremely important component. I would welcome the participation of Region 9 EPA in the process along with IBWC as a fresh breath to come to the table and help the differences be worked out. Help us work with Mexico. There is significant strength in that approach, and I would welcome that. We need to break through the barrier and make this process go forward. Mr. Boozman. Thank you, Mr. Chairman. Mr. Filner. Mr. Bilbray? Mr. Bilbray. Mr. Simmons, I am trying to look where do we go from here. If instead of going to using our money on site in the Tijuana Valley for secondary and the next allocation to look for is to expand the IBWC project to 50 million, another 25 million, could you handle, are you going to be on line to handle that next 25 million by the time we can complete an expanded facility? Mr. Simmons. Yes, our capacity will be at 59 million in the initial stage of construction. Mr. Bilbray. My argument is this, my frustration is everybody saying, don't let him do that, whatever, and I would like everybody doing their part, but don't try to do it all. I think the big one right now is to start planning now for expanding the existing facility, do what it can do and get you working on doing the secondary, the reclamation. Let me tell you, Bob's community, it will be tough selling another 25 mgd in his community let alone going to some of the other stuff we have talked about. My question is the original proposal for Mexico was to go with the plant on the Alamar, not far from where you are proposing a plant. The United States negotiators, A-5, Mexico City raised the issue that there was no control over the quality of the waste that was going to be disposed of in the Alamar and thus into Tijuana. That was Mexico's original plan. In lieu of that you asked, or offered, let us treat it, you give us--in fact the money Mexico paid was supposedly exactly what they were projecting for their costs, saying we will build it in our country and by building it in our country we have some enforcement. The assumption at that time was there is no way to have any control over the quality of the treatment unless we have it in the United States. If you were treating in Mexico, what would be the way for us to make sure that the quality of the treatment was up to the standards that we require, not Mexican secondary, but U.S. secondary, what would help you or your payments or what would be the hammer for us to make sure, do we have any enforcement capability to make that you treat the sewage that comes up to secondary and then no sub-treated effluent is coming back down that outfall? Mr. Simmons. Mr. Bilbray, I can tell you that this Committee in the formulation of the law both times foresaw that that could be a problem and put in a mechanism that is the ultimate control; that is, the quality of that flow, that specifically states that if we don't meet U.S. discharge standards with both the Clean Water Act and the California Ocean Plan that we will not get paid. It is simply direct to the pocketbook. It was a mechanism put in place by this Committee. Mr. Bilbray. What do you think the results would be to the operator or the manager of that plant if they stopped getting payments from the Federal Government because that manager wasn't treating the sewage to a proper level? Mr. Simmons. Obviously the management would be changed, the company would be changed. You have several involvements here, not only the U.S. Government has a stake in this, but the bank and bondholders, you have the principals who have to put up $30 million of its own money to build the plant. The monitoring in the process to make sure the standards are reached is going to be significant. Mr. Bilbray. What you have proposed is that we can fulfill the outcome base concerns, that was the reason for siting originally in the United States, but because you have the lack of civil service protection there is a possibility of even more accountability that unlike this happening with our in-house government operation somebody doesn't get the sewage treated, somebody is going it lose their job? Mr. Simmons. Correct. I think most importantly, Congressman, is that the original concept of asking Mexico to allow us to control this was there are absolutely no sanctions that the U.S. Government can place upon the Mexican government if they don't perform, and that was the wisdom that this Committee applied to this law that said, look, we will tie it to the pocketbook of the private company; if that private company does not perform, they will not get paid. So I think it is a new twist in the process that provides a mechanism of control, an ultimate one in my view, and it also gives an opportunity for this facility to rise to a point where it treats to way above secondary and keeps the water in Mexico. So the amount of discharge along with the quality of the discharge is improved. Mr. Bilbray. Thank you very much, Mr. Chairman. And I think the issue was that we never trusted anything in Mexico because we always assumed it to be a government-operated facility and there was no way for us to be putative or to have an enforcement handle on Mexico, but the argument that if you have a private company that is getting paid a fee for service, you get a denied fee because the service was not fulfilling, something we have not been able to do with other projects. Thank you very much. Mr. Filner. If I recall, you have an engineering background. Mr. Simmons. I have--no, I have a planning background. Mr. Filner. Planning. Until today when we had earlier meetings with Senator Feinstein and others, I guess I had not realized how far the thinking or how far back 10 years of thinking had gone for the $66 million, which I guess is to build an activated sludge system, the additional not sewage capacity, but technical capacity, to treat to secondary standards and your deal as far as I could see. Aside from that, what problems are in line with that alternative? Why is that good or bad for this Nation? Mr. Simmons. I think if you look at what it costs to put that in place to simply treat only the 25 million gallons for secondary and if you look at the costs per thousand gallons treated, it is significantly greater than the overall cost per thousand gallons to go to a 59 million capacity. In the process of keeping up with the growth in the Tijuana region, which is prolific, if one must plan ahead, at least 5 or 6 years out, we are planning out 17, 18 years trying to put it ahead of where it is today. If this facility is built on the U.S. side of the border and it has to go through the process that it needs to go through there, we are still looking at some spikes. If there are failures and problems with this, it doesn't have the buffering capacity that the Bajagua facility has and the potential for continued contamination on the border exists and it is not a good expenditure of U.S. funds to address that simple one-step solution to provide the 25 and ignore the rest. The 25 million gallons is an important component, it provides the basis upon which the whole 59 can be built. Mr. Filner. And as far as the process itself, the activated sludge, what is your sense of that as---- Mr. Simmons. All of the facilities are activated sludge in one sense or another, it is a group of bugs that eat the sewage. When you get a toxic spike, significant numbers of them die. The facility that is being proposed on the U.S. side is a facility that uses clarifiers and other mechanisms to provide the treatment. It is a relatively small community of biologic effort and so when you get a toxic spike that small community of microbes is killed relatively easily and so you end up with a whole system that goes down rather than a portion of the system. The mechanism that we have intended to put in place was specifically designed to deal with the fact that Mexico has not been successful nor very successful in dealing with their toxic spikes, with their pretreatment program, and our system has a very big buffer. I can give you a very good analogy. If you have a teaspoon of cream and you drop it in a cup of coffee it turns lighter. If you drop that same teaspoon in a swimming pool, you don't see it. It isn't quite that dramatic. We planned over the years to be sure if the toxic situation doesn't get resolved in Tijuana, and at this point it is not resolved, that we would have a buffering capacity to deal with it, and I think that is why we proceeded the way we have. I will add this. We are in what we call a design/build mechanism for building. Under the design/build, the designer has the ability to make changes in what we proposed as our conceptual project. Those changes have to relate to two things, he can do it cheaper and prove to us and to the IBWC that he is doing it with proven technology so we don't end up with a situation where someone has invented something in their garage and they can sell it to us for $15 and it doesn't work. We focus only on the ponds as the preferred alternative. It is a very safe alternative. It does work and it will provide the buffer we need to prevent that kind of discharge. The reason we don't want the discharges to get out of context with the law, if we don't stay within the law we don't get paid, so we are buffering to prevent that. Mr. Filner. Aside from political or funding issues, which I raised with the earlier panel, cost effectiveness, the capacity, the technology, the specific technology, and the inability to reuse the water, it is an inferior kind of plant. Mr. Simmons. Absolutely. I think the only reason there is any fear to move forward with a Mexican facility is that the U.S. has an inherent difficulty believing Mexico can be controlled in a way that can be productive for the United States or completely controlled, and that is the reason we provide this bridge between the public and the private sectors that is based on two things. It is based on private funds providing the first steps of making sure this thing works and then the Congress simply paying for a service. It also provides a bridge that brings to Mexico the one thing that has always been missing in these dealings with Mexico, and that is they now have a valuable commodity that they want to protect and preserve. Without that, before that they were simply dealing with a problem, now they are dealing with actually making money and increasing their ability to provide water to their citizens. It is a huge step in the right direction for Mexico. Mr. Filner. On behalf of Mr. Bilbray, are you sure no illegal microbes won't be able to cross, right? Mr. Simmons. That is correct. We have them identified, so we can pick them up. Mr. Filner. Last chance? We thank you, Mr. Simmons, we thank---- Mr. Simmons. Mr. Chairman, one more statement. I have with me today a letter to Senator Feinstein that is from the Imperial Valley Irrigation District. As you know, they are the guys who are directly involved with relining of the canal and providing water to San Diego and the cross border issues, and they are writing to say they are very much in favor of the Bajagua Project going forward, providing this extremely valuable resource to the City of Tijuana. Mr. Filner. Thank you for joining us---- Mr. Bilbray. I want to thank you very much. I appreciate that. Let me say, both the EPA and the IBWC, thank you for coming this far out east. I am in a grumpy mood because I had to give up a day of surfing in my district to talk about pollution problems in someoneelse's district, at a plant in somebody else's district, and a problem from someone else's country. I think this is what the system is supposed to do, and this is why we have oversight. Let me tell what you a pleasure it was to surf where the water was clean, warm, and the surf was good. I hope people can enjoy their water the way I have enjoyed mine. Mr. Filner. We have I think been helped today. Everybody wants an expeditious compliance with Clean Water Act in terms of the water that is now being dumped in the ocean that does not meet those standards. We want to meet those standards, as was said, expeditiously, but we also want it cost effectively in a way--again, I hasn't known any of you people before you came with the proposal and what I found very important about it, cooperation between Mexico and the United States, water for a desperate nation, the ability to treat what we foresee as capacity in the future. Mr. Filner. That is all very important. I was disappointed to have our commissioner and administrator define the issue in such narrow terms that we will miss an opportunity to do these broader things. And I think if I gave Mr. Nastri a choice to look back and say, "Yes, I got a 25-million-gallon-per-day plant in compliance with the Clean Water Act" versus "Wow, we got 59 million gallons a day treated in a more environmental way, a more cost-effective way, and gave water to Mexico," I think the legacy that you would prefer would be the latter. And I think we have that opportunity, and whether he wants it or not, we are going to give him the chance to have that legacy. Thank you so much. This meeting is adjourned. 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