22 U.S.C. § 277d–44 — Actions to be taken by the Commission and the Administrator
submitted 26 years ago by Pub. L. 106-457 to r/title-22-FOREIGN-RELATIONS-AND-INTERCOURSE · 1,074 words · no verdicts yet
The Boundary Commission must arrange secondary sewage treatment — up to 50 million gallons a day, and possibly 25 million more — for wastewater from the South Bay plant and the Tijuana River area, treated either in the U.S. or Mexico. The EPA must study the region's long-term sewage needs, and the Commission can sign a 20-year contract with a private Mexican facility to handle the treatment, subject to detailed terms Congress spells out.
(a) Secondary treatment. (1) In general — Under Treaty Minute 311, and despite a limit in the 1987 Water Quality Act, the Commission must provide secondary treatment for up to 50 million gallons a day (mgd) of wastewater in Mexico: (A) effluent from the IWTP, if a U.S. facility doesn't treat it; and (B) extra sewage from the Tijuana River area. (2) Additional authority — If the comprehensive plan under (b) finds a need for more secondary-treatment capacity in the San Diego-Tijuana region and recommends providing it in Mexico, the Commission may add up to 25 more mgd of capacity there.
(b) Comprehensive plan. Within 24 months of November 7, 2000, the EPA Administrator must create a plan, with input from stakeholders, addressing cross-border sanitation problems in the San Diego-Tijuana region. It must at least: (1) analyze the region's long-term secondary-treatment needs; (2) analyze upgrades needed in Tijuana's sewage collection system; and (3) identify and recommend options for handling future sewage flows from the Tijuana River area.
(c) Contract. (1) In general — Despite normal federal procurement law, the Commission may sign a multi-year fee-for-service contract with the owner of a Mexican facility to meet the secondary-treatment requirements of (a), paying under the contract subject to available funding and the terms below. (2) Terms — Any such contract must at least cover: (A) moving the advanced primary effluent from the IWTP to the Mexican facility; (B) treating that effluent to the secondary level, meeting U.S., California, and Mexican water-quality law; (C) sending back to the South Bay Ocean Outfall, for discharge into the Pacific, any treated water that can't be reused in either country, meeting U.S. and California water-quality law; (D) capacity, beyond what's needed for the IWTP effluent, for advanced primary and secondary treatment of the extra Tijuana River sewage described in (a)(1)(B); (E) a 20-year contract term; (F) monitoring, verification, and enforcement of compliance with water-quality standards; (G) arrangements for disposing of and using sludge from both the IWTP and the Mexican facility, at sites in Mexico; (H) a requirement that the Mexican facility's owner keep a 20% equity stake in the facility throughout the contract; (I) fees the Commission pays the owner for treatment services, reflecting all agreed development, financing, construction, operation, and maintenance costs, including insurance costs, which can be spread out over the contract term; (J) neither the Commission nor the U.S. government owes cancellation fees if the Commission cancels the contract; (K) the owner may buy insurance against the Commission cancelling the contract, but the U.S. government cannot provide or guarantee that insurance, and the government may independently check whether the insurance premium is reasonable when negotiating fees; (L) if the Commission cancels the contract, ownership of the facility transfers to another government entity, not the United States; (M) if the owner fails to perform, ownership also transfers to another government entity, not the United States; (N) the owner must use competitive procedures, consistent with federal procurement law, to hire contractors for engineering, construction, and operation; (O) the Commission gets to review and approve the contractors the owner selects; (P) the owner must keep all records needed to show compliance with this section and the contract; (Q) the State Department's Inspector General can access those records to monitor and evaluate the arrangement; and (R) the Commission's payments can be offset or credited to reflect a share of revenue the owner earns selling treated water.
(d) Implementation. (1) In general — The State Department's Inspector General must monitor how any contract under this section is carried out and evaluate whether the Mexican facility's owner is meeting the section's and contract's terms. (2) Report — The Inspector General must send Congress a report on that evaluation no later than two years after signing any contract, then again three years after that, and periodically after that.
Pursuant to Treaty Minute 311 to the Treaty for the Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande, dated February 3, 1944, and notwithstanding section 510(b)(2) of the Water Quality Act of 1987 (101 Stat. 81), the Commission is authorized and directed to provide for the secondary treatment of a total of not more than 50 mgd in Mexico—
of effluent from the IWTP if such treatment is not provided for at a facility in the United States; and
of additional sewage emanating from the Tijuana River area, Mexico.
Subject to the results of the comprehensive plan developed under subsection (b) revealing a need for additional secondary treatment capacity in the San Diego-Tijuana border region and recommending the provision of such capacity in Mexico, the Commission may provide not more than an additional 25 mgd of secondary treatment capacity in Mexico for treatment described in paragraph (1).
Not later than 24 months after November 7, 2000, the Administrator shall develop a comprehensive plan with stakeholder involvement to address the transborder sanitation problems in the San Diego-Tijuana border region. The plan shall include, at a minimum—
an analysis of the long-term secondary treatment needs of the region;
an analysis of upgrades in the sewage collection system serving the Tijuana area, Mexico; and
an identification of options, and recommendations for preferred options, for additional sewage treatment capacity for future flows emanating from the Tijuana River area, Mexico.
Notwithstanding any provision of Federal procurement law, the Commission may enter into a multiyear fee-for-services contract with the owner of a Mexican facility in order to carry out the secondary treatment requirements of subsection (a) and make payments under such contract, subject to the availability of appropriations and subject to the terms of paragraph (2).
Any contract under this subsection shall provide, at a minimum, for the following:
Transportation of the advanced primary effluent from the IWTP to the Mexican facility for secondary treatment.
Treatment of the advanced primary effluent from the IWTP to the secondary treatment level in compliance with water quality laws of the United States, California, and Mexico.
Return conveyance from the Mexican facility of any such treated effluent that cannot be reused in either Mexico or the United States to the South Bay Ocean Outfall for discharge into the Pacific Ocean in compliance with water quality laws of the United States and California.
Subject to the requirements of subsection (a), additional sewage treatment capacity that provides for advanced primary and secondary treatment of sewage described in subsection (a)(1)(B) in addition to the capacity required to treat the advanced primary effluent from the IWTP.
A contract term of 20 years.
Arrangements for monitoring, verification, and enforcement of compliance with United States, California, and Mexican water quality standards.
Arrangements for the disposal and use of sludge, produced from the IWTP and the Mexican facility, at a location or locations in Mexico.
Maintenance by the owner of the Mexican facility at all times throughout the term of the contract of a 20 percent equity position in the capital structure of the Mexican facility.
Payment of fees by the Commission to the owner of the Mexican facility for sewage treatment services with the annual amount payable to reflect all agreed upon costs associated with the development, financing, construction, operation, and maintenance of the Mexican facility, including costs associated with the purchase of any insurance or other financial instrument under subparagraph (K). Costs associated with the purchase of such insurance or other financial instrument may be amortized over the term of the contract.
Neither the Commission nor the United States Government shall be liable for payment of any cancellation fees if the Commission cancels the contract.
The owner of the Mexican facility may purchase insurance or other financial instrument to cover the risk of cancellation of the contract by the Commission. Any such insurance or other financial instrument shall not be provided or guaranteed by the United States Government, and the Government may reserve the right to validate independently the reasonableness of the premium when negotiating the annual service fee with the owner.
Transfer of ownership of the Mexican facility to an appropriate governmental entity, other than the United States, if the Commission cancels the contract.
Transfer of ownership of the Mexican facility to an appropriate governmental entity, other than the United States, if the owner of the Mexican facility fails to perform under the contract.
The use of competitive procedures under applicable law, consistent with division C (except sections 3302, 3307(e), 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41, by the owner of the Mexican facility in the procurement of property or services for the engineering, construction, and operation and maintenance of the Mexican facility.
An opportunity for the Commission to review and approve the selection of contractors providing engineering, construction, and operation and maintenance for the Mexican facility.
The maintenance by the owner of the Mexican facility of all records (including books, documents, papers, reports, and other materials) necessary to demonstrate compliance with the terms of this section and the contract.
Access by the Inspector General of the Department of State or the designee of the Inspector General for audit and examination of all records maintained pursuant to subparagraph (N) 1 to facilitate the monitoring and evaluation required under subsection (d).
Offsets or credits against the payments to be made by the Commission under this section to reflect an agreed upon percentage of payments that the owner of the Mexican facility receives through the sale of water treated by the facility.
The Inspector General of the Department of State shall monitor the implementation of any contract entered into under this section and evaluate the extent to which the owner of the Mexican facility has met the terms of this section and fulfilled the terms of the contract.
The Inspector General shall transmit to Congress a report containing the evaluation under paragraph (1) not later than 2 years after the execution of any contract with the owner of the Mexican facility under this section, 3 years thereafter, and periodically after the second report under this paragraph.
Source credit: (Pub. L. 106–457, title VIII, § 804, Nov. 7, 2000, 114 Stat. 1978; Pub. L. 108–425, § 1, Nov. 30, 2004, 118 Stat. 2420.)
- 2000Enacted · Pub. L. 106-457 · 114 Stat. 1978
- 2004Amended · Pub. L. 108-425 · 118 Stat. 2420
A history note hasn’t been published yet. The record shows enactment by Pub. L. 106-457 on 2000-11-07.
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