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75–303 PDF 2012

EPA OVERREACH AND THE IMPACT ON NEW 

HAMPSHIRE COMMUNITIES 

HEARING 

BEFORE THE

COMMITTEE ON OVERSIGHT 

AND GOVERNMENT REFORM 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

JUNE 4, 2012 

Serial No. 112–157 

Printed for the use of the Committee on Oversight and Government Reform 

( 

Available via the World Wide Web: http://www.fdsys.gov 

http://www.house.gov/reform 

(II) 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

DARRELL E. ISSA, California, Chairman 

DAN BURTON, Indiana 

JOHN L. MICA, Florida 

TODD RUSSELL PLATTS, Pennsylvania 

MICHAEL R. TURNER, Ohio 

PATRICK T. MCHENRY, North Carolina 

JIM JORDAN, Ohio 

JASON CHAFFETZ, Utah 

CONNIE MACK, Florida 

TIM WALBERG, Michigan 

JAMES LANKFORD, Oklahoma 

JUSTIN AMASH, Michigan 

ANN MARIE BUERKLE, New York 

PAUL A. GOSAR, Arizona 

RAU ́ L R. LABRADOR, Idaho 

PATRICK MEEHAN, Pennsylvania 

SCOTT DESJARLAIS, Tennessee 

JOE WALSH, Illinois 

TREY GOWDY, South Carolina 

DENNIS A. ROSS, Florida 

FRANK C. GUINTA, New Hampshire 

BLAKE FARENTHOLD, Texas 

MIKE KELLY, Pennsylvania 

ELIJAH E. CUMMINGS, Maryland, Ranking 

Minority Member 

EDOLPHUS TOWNS, New York 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

DENNIS J. KUCINICH, Ohio 

JOHN F. TIERNEY, Massachusetts 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

JIM COOPER, Tennessee 

GERALD E. CONNOLLY, Virginia 

MIKE QUIGLEY, Illinois 

DANNY K. DAVIS, Illinois 

BRUCE L. BRALEY, Iowa 

PETER WELCH, Vermont 

JOHN A. YARMUTH, Kentucky 

CHRISTOPHER S. MURPHY, Connecticut 

JACKIE SPEIER, California 

LAWRENCE J. BRADY, Staff Director 

JOHN D. CUADERES, Deputy Staff Director 

ROBERT BORDEN, General Counsel 

LINDA A. GOOD, Chief Clerk 

DAVID RAPALLO, Minority Staff Director 

(III) 

C O N T E N T S 

Page 

Hearing held on June 4, 2012 ................................................................................. 1 

WITNESSES 

The Honorable T.J. Jean, Mayor, City of Rochester, New Hampshire 

Written Statement ............................................................................................ 5 

Oral Statement ................................................................................................. 8 

Mr. Dean Peschel,Peschel Consulting LLC, on Behalf of The Great Bay Municipal Coalition 

Written Statement ............................................................................................ 11 

Oral Statement ................................................................................................. 13 

Mr. John Hall, Hall & Associates, on Behalf of the Great Bay Municipal 

Coalition 

Written Statement ............................................................................................ 18 

Oral Statement ................................................................................................. 20 

Mr. Peter Rice, Public Works Director, City of Portsmouth, New Hampshire 

Written Statement ............................................................................................ 24 

Oral Statement ................................................................................................. 27 

Mr. H. Curtis ‘‘Curt’’ Spalding, Region 1 Director, U.S. Environmental Protection Agency 

Written Statement ............................................................................................ 46 

Oral Statement ................................................................................................. 49 

APPENDIX 

Letters, statements, etc., submitted for the record by: 

Carl Spang ................................................................................................................ 65 

Stephen Silva ........................................................................................................... 66 

Judith Spang, Phil Ginsburg, 2 other State Representatives, and 27 

attendees ............................................................................................................... 67 

(1) 

EPA OVERREACH AND THE IMPACT ON NEW 

HAMPSHIRE COMMUNITIES 

Monday, June 4, 2012 

HOUSE OF REPRESENTATIVES

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

Washington, D.C. 

The committee met, pursuant to call, at 9:01 a.m., at Exeter 

Town Office Building, Nowak Room, 10 Front Street, Exeter, New 

Hampshire, Hon. Darrell E. Issa [chairman of the committee] presiding. 

Present: Representatives Issa and Guinta. 

Staff Present: Molly Boyl, Majority Parliamentarian; Lawrence 

Brady, Majority Staff Director; Linda Good, Majority Chief Clerk; 

Kristina Moore, Majority Senior Counsel; Christine Martin, Majority Counsel; Brian Quinn, Minority Counsel; Rebecca Watkins, Majority Press Secretary. 

Chairman ISSA. This committee will come to order. 

Before I begin, this is a Congressional hearing no different than 

any hearing in Washington. We abide by the same rules. Obviously, it is a little more folksy by design, and we will try to be accommodating in any way we can. If there are questions or other 

items that people would like to have placed in the record, if you 

will hand them over to committee staff, we will try to accommodate 

written information and let it into the record. 

Additionally, I am going to notify that the record will remain 

open for five days, which means that if you get any additional information to Mr. Guinta’s office within five days, he will have it included in the record. Now, that doesn’t make it testimony, but it 

does make it material that will be a part of the entire record of 

consideration for this and future hearings. 

The Oversight Committee’s mission statement is that we exist 

for two fundamental principles. First, Americans have a right to 

know that the money Washington takes from them is well spent; 

and, second, Americans deserve an efficient, effective government 

that works for them. 

Our duty on the Oversight and Government Reform Committee 

is to protect these rights. Our solemn responsibility is to hold government accountable to taxpayers, because taxpayers have a right 

to know what they get from their government. It is our job to work 

tirelessly in partnership with citizen watchdogs to deliver the facts 

to the American people and bring genuine reform to the Federal 

bureaucracy. 

As we begin the discussion today, I think it is safe to say everyone here on the dais, and I am sure everyone in the audience, apVerDate Aug 31 2005 10:23 Aug 02, 2012 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 C:\DOCS\75303.TXT APRIL
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preciates the goal for the Great Bay Estuary is, in fact, to make 

it cleaner than it is today and to make it clean enough for habitat, 

including plant life, to flourish. 

Having said that, there will be multiple views—having reviewed 

the written statements, multiple views on how to achieve and to 

what level. And ultimately, this area, like so many areas of America, is dealing with a cost-benefit consideration: how much improvement for how many dollars and where those dollars could otherwise 

be spent, whether remaining in the pockets of the ratepayers or in 

fact providing as much as $100 million for other clean air and clean 

water projects in the region. 

Under the Clean Water Act and the National Pollutant Discharge Elimination System, permits for pollutants ultimately have 

to be granted. This gives the EPA a considerable amount of authority. Early in my career and even a few years beforehand, the Federal Government provided substantial dollars for non-source pollution. Those dollars have not just evaporated, but ultimately the demands are virtually everywhere in America. What you see in the 

Great Bay communities, ultimately we see in California; we see in 

Ohio; we see throughout America. 

This form of pollution, primarily driven from runoff and other 

waste considerations, nonindustrial, is in fact an area of pollution 

once not measured. Today, it in fact is not only measured, but 

household pollutants are in fact the largest single source of water 

concerns in America. Whether it is on the Chesapeake or here in 

New Hampshire, we have a problem. 

In your case, the need to reduce nitrogen levels by at least 73 

percent, back to 1980 levels, are a clear goal. The question is not 

do you go back to that level. The question is, do you go beyond it, 

how much can the ratepayer pay, and are those dollars better used 

elsewhere? 

The EPA has a mission. That mission is clearly defined. But the 

levels that EPA seeks is in fact within a judgment decision. It is 

one of the reasons that Federal regulators, particularly your Congressman, asked us to come here and hear from local authorities 

of whether in fact this balance, this cost-benefit, is in fact being 

properly measured. More importantly, has the EPA bypassed or circumvented the state legislature and imposed its own requirement? 

As I prepared for this hearing, I found a mixed result. I have to 

side with EPA in one sense: There was in fact no clear vote of the 

legislature, and at some point there is a responsibility for the EPA 

to act. Do I believe, and do our witnesses believe that they acted 

appropriately, that they acted properly, or that they should have 

insisted that the legislature at least codify what some would say 

is a significantly flawed study? 

As we listen to our witnesses here today, it is not for us to be 

the final judges. It is for us to collect a record, make it available 

to the entire committee, and then urge the EPA, and, if appropriate, the State of New Hampshire to act in a way that is in the 

best interest of this community, and, more importantly, to set a 

standard for other projects around the country. 

As Congressman Guinta and myself recognize, our committee, no 

matter how many hearings we have, no matter how many investigators do work like this, we, in fact, are not doing work for one 

3 

community. This community today is a community that we hope 

will set the stage for better decisions by the EPA and other agencies around the country. Ultimately, Congressman Guinta’s leadership on this has been appreciated because, in fact, as a former 

mayor, he brought to the Congress an understanding of many of 

these issues and has been a leader in helping us understand some 

of the unique challenges faced in New England. 

And with that, I recognize my colleague for his opening statement. 

Mr. GUINTA. Thank you very much, Mr. Chairman, for holding 

this hearing here in New Hampshire today. 

This is the first field hearing that I have had here in New Hampshire. I very much appreciate this issue being a central issue to the 

committee, and to you and to our staff. 

I also want to thank the distinguished witnesses for being here 

today, as well as the concerned Granite Staters who have great interest in the Great Bay issue. 

Personally, I want to first mention this is an incredibly important issue to me. This is the first piece of legislation that I ended 

up introducing in the House, called the Great Bay Community Protection Act. The reason that I proposed this legislation as one of 

the—as the first piece of legislation is that I was contacted by several of the contiguous communities in this region who expressed 

some concern about this issue. 

I think there is one common goal that we all share, and that we 

want to ensure that the estuary remains a wonderful asset to this 

region and to our state. There are, however, as the chairman pointed out, some differences of opinion as to how to meet the goal and 

objective of reducing nitrogen levels. And while I share the goal of 

reducing nitrogen levels in Great Bay, I think there are various 

ways that we can address and achieve that objective. 

So I think that there is a lot of common support. I think there 

are also different perspectives and different unique approaches into 

how to meet that objective. 

But what is the best way to achieve that objective? And that is 

why we are here: to hear different opinions and different viewpoints today. Some of the proposed solutions would carry very steep 

price tags for local municipalities, small businesses, and families, 

particularly here in Exeter, as well as the communities of Dover, 

Newmarket, Rochester, and Portsmouth, and I have heard from 

those communities over the course of the last year about that legitimate concern. 

So, today, I am here to listen to these communities and their representatives. I want to hear more about the individual plans that 

will be presented, and I would like to hear more about how residents will shoulder the financial impact of the decisions being 

made in their name. It is my hope that when this field hearing is 

concluded, we will have, and leave with a deeper, more complete 

understanding of exactly what is at stake for the Great Bay Estuary and how it impacts everyone. 

In addition, I feel that we also have the responsibility as American citizens to make sure that the Federal Government operates 

within its proper boundaries. Our government was specifically created to serve we the people. It exists to meet our needs, not to 

4 

needlessly intrude into our lives. For as we are reminded in the 

Declaration of Independence, the government derives its powers 

from the consent of the governed. That is why this hearing I think 

is so important. Today, Granite Staters will make their voices 

heard on the permitting process. 

I am proud to say to the chairman and to the group here that 

this is not a partisan issue. Democrats, Republicans, and independents alike agree that EPA needs to take into consideration the 

views of the many people who live in the Great Bay Estuary and 

who would be directly impacted by the Agency’s regulatory actions. 

Governor Lynch, Senator Shaheen, and Senator Ayotte have all 

raised the similar and same concerns and have shown their willingness and support to work collectively to try to address this issue. 

And I want to particularly commend Senator Shaheen, Senator 

Ayotte, and Governor Lynch for supporting a reasonable, long-term 

approach and compromise on how to best ensure that this estuary 

reduces nitrogen, but also does it in a meaningful way and in a 

way that does not significantly and financially place an undue burden on the communities that are here today. 

I also specifically want to commend EPA Region 1 Director Curt 

Spalding, who is here and will testify in the second panel, for his 

personal involvement in this issue. He has met with me personally 

and my staff to discuss options and alternatives for moving forward 

to a reasonable resolution, and I commend him and the EPA for 

trying to find a way to meet the concerns of the communities. 

Finally, I want to say my thanks to all of you for attending this 

hearing. New Hampshire is a place where we are very civically engaged and take great interest in our environment. I am here eager 

to listen to the witnesses who have agreed to testify today and I 

look forward to the question-and-answer period as well, and I yield 

back the balance of my time. 

Chairman ISSA. I thank the gentleman. 

I would now like to ask unanimous consent that three letters 

presented to us be placed in the record: one from the Lamprey River’s Advisory Committee, one from the Lamprey River Watershed 

Association, and the last a letter from Phil Gingbird—Ginsberg, I’m 

sorry—who is a member of the New Hampshire House. 

Without objections, so ordered. 

Chairman ISSA. Thank you. 

Frank, would you like to introduce our witnesses? 

Mr. GUINTA. Yes. Thank you. 

Chairman ISSA. They are your community leaders. 

Mr. GUINTA. Thank you very much, Mr. Chairman. 

We have in the first panel four distinguished individuals. First, 

the Honorable T.J. Jean, who is the mayor of the City of Rochester, 

New Hampshire, as well as a lifelong resident of Rochester, testifying on behalf of the Great Bay Municipal Coalition. 

Second, we have Mr. Dean Peschel of Peschel Consulting, who 

has extensive experience in environmental project management 

and is testifying on behalf of Dover, New Hampshire, and the 

Great Bay Municipal Coalition. 

Third, we have Mr. John Hall of Hall & Associates, who is one 

of the nation’s leading environmental attorneys and is testifying on 

behalf of the Great Bay Municipal Coalition. 

5 

And, finally, to conclude the first panel, we have Mr. Mr. Peter 

Rice, who is a water and sewer engineer for the City of Portsmouth, New Hampshire, and is testifying on behalf of the City of 

Portsmouth. 

Chairman ISSA. Thank you. 

Pursuant to the committee rules, would you all rise to take the 

oath. Raise your right hand. 

[Witnesses sworn.] 

Chairman ISSA. Let the record reflect that all witnesses answered in the affirmative. Please take seats. 

In Washington, we have the same red, yellow, and green lights. 

My predecessor on the committee, Chairman Towns, was always 

quick to remind people that this is not a new phenomenon, that 

green means go, yellow means prepare to stop, and red means stop. 

So I would ask you to try to time your opening statements to be 

as close to that five minutes as possible. 

I might remind you that your entire opening statement is in the 

record, and since none of you are presidential administration witnesses, you undoubtedly have a little ability to summarize if necessary. 

And with that, Mayor, you are recognized. 

STATEMENT OF T.J. JEAN 

Mr. JEAN. Good morning. My name is T.J. Jean and I am the 

mayor of the City of Rochester. 

On behalf of the city, I want to extend our sincere thanks for 

your willingness to hold this oversight hearing which is addressing 

issues of critical importance to the City of Rochester and its citizens. 

The purpose of my testimony today is to discuss with you the severe financial impacts which the regulatory actions proposed by the 

United States Environmental Protection Agency will have on our 

city and its citizens. 

Rochester is committed to protecting the natural environment for 

the benefit of its citizens and all citizens of our state. However, 

Rochester and other major cities in the Great Bay area are concerned that the proposed regulatory actions designed to protect the 

Great Bay are not based upon sound science, and, if implemented, 

would do more than constitute a waste of scarce local resources. It 

would financially cripple our city, prevent us from attracting and 

maintaining our business base, and impose an unreasonable financial burden on our citizens and ratepayers. We are disappointed 

that the EPA would gamble away our future based on little more 

than guesswork. This committee needs to stop the EPA now and 

insist on an independent review of their actions. 

Like other New Hampshire municipalities, Rochester has been 

adversely impacted by the recent national economic downtown. 

However, those impacts have been felt even more significantly in 

our city. 

By way of brief background, the poverty rate in Rochester is at 

13.1 percent, the highest of any city in the Strafford County region. 

The Rochester School District has 32.6 percent of its student population eligible for free or reduced lunch. Rochester accounted for 

31.6 percent of foreclosures in the Strafford County region, with 

6 

118 foreclosures in 2011 alone. The city’s tax base or net assessed 

value has decreased each of the last three years, from approximately $2.36 billion in 2009 to approximately $2 billion in 2011. 

It is no surprise that this recent economic downturn has resulted 

in significant job losses in our city. In the last three years, Rochester has experienced 504 lost jobs or 58 percent of the regional 

employment loss. The largest of those jobs involved 374 jobs lost at 

Thompson Center Arms, formerly the city’s largest employer. 

With respect to the employers which remain in the city, shifting 

and unstable international economics have put additional pressure 

on manufacturers with global products, such as medical devices, 

composite materials, machine parts, and aerospace components, all 

major employment sectors in Rochester. The result of the foregoing 

is a ripple effect throughout our local economy and that consumer 

spending has dropped significantly, having major impacts on the 

downtown business district and the retail and hospitality sectors in 

our city. 

While the financial resources of the city and its citizens have 

plummeted, the financial obligation imposed upon and accepted by 

the city to meet the basic needs of its residents has increased. The 

city continues to finance a number of important major capital expenditure projects to meet the needs of our citizens. These include 

major bridge and road rehabilitation and reconstruction projects to 

better serve our community. As a result, wholly apart from those 

projects which the regulations which are subject of this hearing 

could impose on the city, the city’s annual debt expense is projected 

to increase from approximately 4 million per year to approximately 

6.3 million per year over the next five years. This brings me to the 

financial impacts proposed by the EPA mandate. 

Rochester has been informed that EPA intends to issue a new 

permit requirement for both total nitrogen and phosphorus, which 

would require the city to construct an additional wastewater treatment facility. The city is still retiring a $20 million debt-related 

bond relative to our wastewater treatment plan improved in 1997. 

The city recognized at the time that the construction of these upgraded facilities was appropriate to protect the health of the 

Cocheco River, its aquatic environment, and its users. 

The EPA’s latest mandate will likely require that facility with 

outstanding bonds to be abandoned, as EPA has now changed its 

regulatory focus to total nitrogen. However, the city has been informed by its consultants that EPA’s new proposed nitrogen and 

phosphorus limitations are not based on sound science and will not 

result in demonstrable benefits to the aquatic environment of the 

Cocheco River or Great Bay. While I am not qualified to discuss 

that science, I am certainly able to discuss the financial impact 

which implementation of those requirements would have on the 

city. 

EPA’s indifference to mandating major local expenditures every 

time a new permit is issued based on the flimsiest of information 

simply must cease. We cannot offered such multi-million-dollar 

guesswork. Our consultants have advised us that the capital costs 

related to the upgrade to the city’s wastewater treatment facility 

necessary to comply with the proposed nitrogen and phosphorus 

limits would be approximately $20.5 million. Assuming a 20-year 

7 

amortization period at 5.5 percent interest, this would result in additional debt service costs of approximately $2 million per year beyond those I previously mentioned. After capital construction is 

complete, additional operating costs required to meet these permit 

limits would be approximately 2 million per year, beginning in fiscal year 2016. 

The impact of these costs on our sewer rates is staggering. The 

city’s current sewer rate is $6.11 per 100 cubic feet, already among 

the highest in the region. Compliance with the latest EPA mandates would immediately result in a 23 percent increase in rates. 

By fiscal year 2016, the projected sewer rate would more than double to $12.50 per 100 cubic feet, which would, in turn, mean an estimated yearly user bill of $1,200 per year in fiscal year 2016. 

I see my time has elapsed. I just would like to conclude by saying 

and reaffirming that the city is committed to take whatever steps 

are necessary to protect the health of its citizens and the natural 

environment of Rochester and its surroundings. However, the city 

should not be forced into the kind of economic crisis outlined above 

for little or no demonstratable environmental benefit. 

I appreciate your attention to my remarks and hope you will give 

them due considerable in your role of overseeing these proposed 

regulatory actions. 

Thank you. 

[Prepared statement of Mr. Jean follows:] 

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Chairman ISSA. Thank you. 

Mr. Peschel? 

STATEMENT OF DEAN PESCHEL 

Mr. PESCHEL. My name is Dean Peschel of Peschel Consulting, 

and I’m speaking on behalf of the City of Dover and the Great Bay 

Municipal Coalition. 

Congressman Issa, Congressman Guinta, thank you for convening this hearing of the Oversight and Government Reform Committee here in Exeter. 

The USEPA has proposed limit of technology nitrogen permit 

limits of 3 milligrams per liter for the coalition communities’ wastewater treatment facilities. Nitrogen removal will require all wastewater treatment plants to either modify their existing facility or 

completely build new facilities. 

New Hampshire DES Environmental Services issued a draft nutrient criteria in 2008 which establishes a very low water quality 

standard. EPA relies heavily on this analysis in justifying strict nitrogen limits in the draft permits. The coalition communities reviewed the nutrient criteria and questioned the underlying assumptions and analysis used. Expert consultants were engaged by 

the coalition to review both the science and to analyze the potential 

economic impacts to meet the likely permit limits. Holland Associates of Washington, D.C., and HydroQual of Mahwah, New Jersey, 

were the nationally recognized technical experts selected. Applied 

Economic Research of Laconia, New Hampshire, was the firm chosen to assess the economic impacts associated with these upgrades. 

Our technical experts reviewed the nutrient criteria and told us 

the document has fatal flaws in the methodology and incorrectly 

concludes that nitrogen is causing excessive algae growth which is 

reducing water clarity in the estuary. 

Chairman ISSA. Mr. Peschel, could you speak just a little louder? 

I apologize, but—— 

Mr. PESCHEL. Sure. 

Chairman ISSA. That mic, the one you have closer, that is the 

one that counts the most from the standpoint of the record. 

Mr. PESCHEL. Thank you. 

The consultants further informed us the nitrogen water quality 

standard established by DES is unattainable and will likely require 

communities to expend even more resources on stormwater reductions indefinitely into the future, at a cost two to five times more 

than that of the wastewater treatment upgrades. Based on 

stormwater costs incurred in other states, the basin-wide costs to 

meet EPA mandates could easily exceed $1 billion. That’s a staggering number. 

EPA has issued three draft permits which use the draft criteria 

as justification for imposing limit of technology nitrogen limits. 

John Hall will address how this action violated Clean Water requirements in more detail with you. 

Our economist, Russ Thibeault, principal of Economic Research, 

is a well-respected national expert. AER was provided the capital 

costs, operation and maintenance costs expected, and over a range 

of nitrogen removals. The cost for the five communities to meet a 

3-milligram-per-liter limit is $588 million. This represents a huge 

12 

environmental cost. The costs represent capital costs, the building 

improvements, O&M, and the cost to finance it over a 20-year period. If we look closer at the economic impacts for the City of 

Dover, we see that the cost to meet an 8-milligram-per-liter limit 

is 36.4 million, and a 3-milligram-per-liter, 94 million. That’s a difference of $58.5 million. 

The City of Dover and other coalition communities do not want 

Great Bay to continue to degrade. The communities also want to 

ensure that the investments to improve the conditions in the estuary are effective and achieve intended results. It is clear to us that 

requiring the communities to upgrade wastewater plants to limits 

of technology is unwarranted and will not achieve the desired results, at an extraordinary cost to the ratepayers. 

Times have changed dramatically with respect to funding wastewater. 20 years ago, when the Dover treatment plant was constructed, federal grants paid for 95 percent of those capital costs. 

Today, the local ratepayer will be paying 100 percent of all the 

costs. 

In order to move the process forward, the coalition developed an 

alternative approach to the 3-milligram-per-liter permit. Nitrogen 

levels have increased. We do not want them to continue to increase 

unabated. Nitrogen sources in the watershed are estimated to be 

25 percent to 30 percent from point sources and 65 to 75 percent 

from non-point sources. 

Chairman ISSA. If you could wrap up. 

Mr. PESCHEL. Yes. 

The coalition has proposed an Adaptive Management Plan. It 

will provide significant nitrogen reduction quickly, addresses both 

point and non-point sources, funds needed for monitoring the restoration, and avoids legal appeals and a waste of financial resources and delays of implementing nitrogen reduction. A copy of 

that plan is attached to this written testimony. And I will wrap 

up—— 

Chairman ISSA. Without objection, it will be placed in the record 

in its entirety. 

Mr. PESCHEL. Thank you. 

The coalition believes that the Adaptive Management Plan is an 

effective and rational approach that will engage the entire watershed community, not just the sewer ratepayers. It will build upon 

success that will lead to future success and garner the public support needed to fund future improvements over the long term. It will 

provide significant nitrogen reduction at an affordable cost, and, 

most importantly, provide a process to determine if additional reduction is needed. It will also save over $200 million in expenditures that have no proven need for benefit. 

With that, I will conclude, and thank you very much. 

[Prepared statement of Mr. Peschel follows:] 

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Chairman ISSA. Thank you. 

Mr. Hall? 

I will take a moment for the mics to catch up. 

STATEMENT OF JOHN HALL 

Mr. HALL. To rearrange. Thank you. 

Good morning, Chairman Issa, Congressman Guinta, and members of the committee. My name is John Hall. I am a principal of 

Hall & Associates, an environmental firm that represents the 

Great Bay Municipal Coalition. 

As mentioned in earlier testimony, the Region’s actions will needlessly impose restrictive nutrient reduction requirements that will 

adversely impact these local economies for decades to come, and 

unfortunately not produce the intended environmental improvements. 

In seeking to impose some of the most stringent nutrient limits 

in the nation, the Region has also violated several mandatory duties under the Clean Water Act, as well as several other EPA rules 

and policies that are designed to protect due-process rights and ensure that only reliable scientific methods are employed in regulatory decision-making. 

As noted earlier, the Region has issued three draft NPDES permits that impose very stringent total nitrogen requirements. These 

nitrogen limits are based on draft water quality criteria that have 

never been formally adopted by the State or formally approved by 

EPA, a practice that is strictly prohibited by the Clean Water Act 

and EPA’s regulation known as the Alaska Rule. 

To quote EPA in its ‘‘Questions and Answers on the Alaska 

Rule,’’ I quote: ‘‘The CWA Section 303(c)(3) is explicit that all 

standards must be submitted to EPA for review and must be approved by EPA in order to be the applicable standard. Under actions Section 303(d), the State must base listings on the applicable 

water quality standard. The State cannot use the new standard for 

CWA purposes, e.g., in a final permit, until EPA has approved that 

standard.’’ 

However, the Region simply ignored these requirements. It knew 

it had these mandatory duties, and early on recommended that the 

State quickly move to adopt the criteria into its standards, which 

would have then given the public an opportunity for active input. 

When the State failed to do so, the Region came up with the idea 

to call the draft numeric criteria something else—a narrative criteria interpretation—as if that changed any procedural requirements or the mandatory duties under the Clean Water Act. 

In addition, if not more importantly, the Region knew that there 

was no cause-and-effect relationship between total nitrogen and the 

eelgrass loss for the estuary, and this was based on prior federallyfunded research specifically directed at this issue. Nonetheless, the 

Region adopted the position that stringent nitrogen limits were essential to restore eelgrass populations, and limits of technology 

were mandated which would then also trigger very stringent land 

use controls in these same areas. 

The Region’s insistence on using unadopted numeric criteria and 

permits and impairment listings plainly violates the public notice 

and town requirements included in the Act in part 131. After cirVerDate Aug 31 2005 10:23 Aug 02, 2012 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 C:\DOCS\75303.TXT APRIL
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cumventing the required approval process in March 2011, the Region then undertook additional efforts to exclude the public from a 

peer-review process that was intended to bless the criteria. When 

the coalition found out about the impending peer review, they specifically requested an opportunity to participate in that action. The 

coalition submitted comments to the State and Region based on 

major technical deficiencies in the draft criteria. However, the Region refused to allow the peer reviewers to address any of these 

points and concerns. This is directly at odds with Section 101(e) of 

the Clean Water Act, which mandates that the Agency must promote public participation in any review and modification of standard, not prevent it. 

Since the peer review, the affected communities have repeatedly 

submitted detailed, site-specific information clearly showing the 

proposed permit requirements were fundamentally flawed. To date, 

all of those submissions have been ignored without comment. It is 

now apparent that serious regulatory violations, bias, and, in fact, 

scientific misconduct underlie the Region’s actions. 

The communities believe that the record is clear that the Region 

is determined to implement a predefined regulatory agenda of 

stringent nitrogen limits: 

One: Even after a federally-funded Technical Advisory Committee for the Great Bay confirmed there was no cause-and-effect 

relationship between nitrogen, transparency, and eelgrass loss; 

Two: Even after EPA’s own Science Advisory Board stated that 

the type of simplified analysis the Region now wants us to use to 

support to a more restrictive approach is not scientifically defensible; 

Three: Even after the Region itself internally identified major 

scientific deficiencies and significant conflicts with the Science Advisory Board recommendations. 

These are serious issues. What is the point of having a local or 

federal Science Advisory Board if the agency is simply going to ignore the findings and continually employ methods that are criticized as fundamentally flawed, and, for that reason, will likely misdirect resources? 

In closing, it’s apparent to the coalition communities that the Region appears to have no intention of conducting a comprehensive, 

impartial scientific review. For that reason, the coalition submitted 

a letter to EPA headquarters on May 4th, documenting science 

misconduct and requesting that the matter be withdrawn from the 

Region and transferred to an independent panel of scientific experts. The coalition continues to support this request as the only 

viable means for an objective review that will help ensure the local 

resources are not squandered on misdirected policy mandates. 

We appreciate the committee’s investigation into this matter and 

hope that this can be resolved in the near future. 

The details supporting this testimony, including the misconduct 

letter with numerous attachments are included in the record, Mr. 

Chairman. I request that they be included. 

[Prepared statement of Mr. Hall follows:] 

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Chairman ISSA. No objection. They will all be included in the 

record. 

Mr. Rice? 

STATEMENT OF PETER RICE 

Mr. RICE. Thank you, Mr. Chairman, Congressman Guinta. 

On behalf of the City of Portsmouth and the Great Bay Municipal Coalition communities, I’d like to thank you for this opportunity to testify today. 

My name is Peter Rice. I’m the city engineer for the City of 

Portsmouth, and I’ve worked in this position for the last 10 years. 

Prior to working for the city, I worked as a consulting engineer. I’m 

a registered professional engineer and I have served in a variety 

of state wastewater commissions and organizations, and have been 

involved in the Great Bay nutrient issues since 2002. 

A copy of my resume has been included in my testimony. 

The City of Portsmouth is a small city, about 21,000 people, but 

despite our small size, we have big-city infrastructure problems. 

The city owns and operates two wastewater treatment facilities, 

has over 120 miles of sewer pipe, and manages 20 pumping stations. Communities such as Portsmouth want predictable, scientifically supported environmental regulations that deliver 

demonstratable environmental benefits. Within such a regulatory 

framework, limited municipal resources can be secured, budgeted, 

and invested wisely to deliver necessary services for the maximum 

environmental benefit. 

In 2002 I assumed my predecessor’s position on the State Water 

Quality Standards Advisory Committee. On this committee I became involved with the Nutrient Technical Advisory Committee for 

the New Hampshire Estuarine Project, which is currently known 

as Piscataqua Region Estuarine Partnership, or PREP. The purpose of this technical advisory committee was to provide technical 

peer view on the science used to develop water quality standards 

for the estuaries of New Hampshire. A specific focus of this committee was whether and how nitrogen could be affecting the bay 

ecology, in particular, eelgrass populations. 

In 2005 EPA directed the State to develop nutrient standards for 

the estuary. This was part of a national effort on EPA’s part. Up 

until late 2008, nitrogen, although a concern, was not identified as 

a source of impacts on the bay. In particular, it was concluded, 

based on federally-funded studies, that increased nitrogen levels 

had not caused increased algae growth and had not adversely impacted water transparency in the bay. 

I have attached with my comments presentations given by the 

New Hampshire Department of Environmental Services staff relative to these conclusions. 

In 2008 there was an abrupt turnaround. At a State Water Quality Standards Advisory Committee meeting, a simplified data analysis was presented which ignored previous detailed studies and 

reached an opposite conclusion. This incorrect analysis was supported by EPA and subsequently became the basis for setting 

standards and declaring virtually all waters in the estuary nutrient-impaired. All of this occurred without any formal adoption in 

accordance with law or formal approval of the criteria by EPA as 

25 

a new water quality standard. Thus, the impacted communities 

had no opportunity to challenge these changes. 

As a result of this about-face, Portsmouth reached out to other 

communities with wastewater treatment facilities to discuss the 

State’s water quality criteria. The change in the State’s conclusions 

with regard to the role of nutrients spelled trouble for the municipalities discharging into the Great Bay Estuary. The proposed criteria for nitrogen is not achievable and has been used by EPA to 

claim that nitrogen must be treated to limit of technology at wastewater treatment facilities and that stringent stormwater treatment 

must also be implemented to improve water transparency. 

On March 15, 2010, I attended a Water Environment Federation 

EPA briefing in Washington, D.C. Mike Hanlon, the EPA director 

of wastewater management, advised attendees that the EPA didn’t 

have the time or money to do the science and that the EPA was 

going to apply the Chesapeake Nutrient Criteria Program nationally. 

The following day, at a congressional briefing breakfast, I was 

told by the Regional Administrator Spalding that until Portsmouth 

and other communities developed their own science, EPA would not 

consider our communities’ concerns. 

Complicating EPA’s apparent limited time and money were the 

interest of nongovernmental organizations which appeared to be 

having a disproportionate impact on the water quality process and 

setting of permit limits. I was told that the regulators were more 

worried about possible lawsuits by NGOs than they were afraid of 

municipalities. This deference to the NGOs is an indication that 

EPA is more concerned about policy issues than getting science 

right and implementing cost-effective solutions to protect and improve the environment. This involvement by NGOs may explain 

why our repeated requests for involvement of our technical experts 

were either rejected or trivialized. 

For example, Portsmouth was given assurances by representatives of the New Hampshire Department of Environmental Services 

that we could participate in a formal EPA peer review of the draft 

nutrient criteria. Instead, Portsmouth and other communities were 

excluded from the peer-review process at an EPA level. This EPA 

peer review was carefully orchestrated, exercised, designed to provide an appearance of scientific credibility through fundamentallyflawed nutrient criteria that met EPA’s policy objectives. I have attached the correspondence relative to that process in my statement. 

Rejecting the public’s —— 

Chairman ISSA. Without objection, that will be placed in the 

record. 

Mr. RICE. Thank you. 

Rejecting the public’s request for an inclusive, objective, and open 

process, the regulators have delayed action which would have yielded environmental benefits in the near term. By ignoring good 

science, the EPA’s regulatory process has set up unachievable goals 

which will misapply scarce public funds while not achieving the intended goals, and force communities to spend their money on lawyers instead of science and solutions. 

In summary, the Great Bay Municipal Coalition is committed to 

protecting and restoring the Great Bay, but we believe the existing 

26 

science does not support the regulatory decisions being made and 

should not be the basis for NPDES permits. 

I would like to thank you for this opportunity to let me speak 

today. 

[Prepared statement of Mr. Rice follows:] 

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Chairman ISSA. Thank you. 

I will recognize myself for the first round of questions. 

As you may have seen on C–Span from time to time, our questions are not designed to be softballs, and they won’t be here today. 

Mayor, you spent a lot of time telling us about the money cost 

and the problems in the community, the unemployment, and the 

like. 

Do any of those provide any legitimate reason to not go forward 

with whatever is the requirement under the Clean Water Act and 

whatever would provide a return of health to the estuary? 

Mr. JEAN. Well, I can only speak to the point that, right now, if 

we were to encumber that amount of debt service to meet the nutrient limits, the ratepayers of Rochester would have their sewer 

bills double, and that would remove basically all disposable income 

that they might have to help in the business sector. 

Chairman ISSA. No, I appreciate that. The question was one that 

I think in Washington we have to be sensitive to, but hopefully 

here in New Hampshire, you are sensitive to it, too. 

Ultimately, if it is necessary to double the rates in order to clean 

up the estuary to an acceptable level—in other words, to mitigate 

the damage being done by human activity—isn’t the requirement 

absolute if it’s necessary? 

Mr. JEAN. If it’s necessary, absolutely, yes. 

Chairman ISSA. Okay. And I just want to make that clear, because often we sort of talk about what we can’t afford. And in this 

case, we are the polluters: every home, every runoff and 

stormwater and so on. And I did not think you were saying that 

one offset the other, other than we need to be very careful to make 

sure that in fact it is necessary. 

Mr. Peschel, you went a lot into procedure as did Mr. Hall, but 

particularly, you mentioned the State—I’m sorry, Mr. Hall mentioned that. 

Let me ask you a question. You feel that the science of essentially half as expensive a solution is the appropriate science, don’t 

you? 

Mr. PESCHEL. I do. And I think, you know, based on the information that our consultants, the technical consultants provided, there 

is great doubt that what is being proposed by the EPA is necessary. 

Chairman ISSA. Well, now, I am a businessman, and for the 20- 

plus years I was in business, I know that you generally get from 

your consultants what you seek to get. In other words, they work 

hard to reach a goal that you ask them to get. 

I am presuming that you asked them to get the least expensive 

way to reach a goal that you thought was reasonable. Is that correct? 

Mr. PESCHEL. No, it wasn’t correct. 

Chairman ISSA. You just gave them a blank slate of what would 

it take? 

Mr. PESCHEL. What we told them when we hired our consultants 

was that we wanted an honest review of the information that was 

being presented as being justified by the state nutrient criteria. 

Chairman ISSA. What if they are wrong? What if they are wrong? 

What if the EPA allows you to go forward with your level, the 8 

milligrams rather than the 3? What if, in fact, three years, four 

34 

years, five years—roughly 2020 you would be at that point—you’d 

see that it’s not working? 

Mr. PESCHEL. Then we would have the information that we need 

to make the additional improvements. That has always been our 

understanding and our plan. 

Chairman ISSA. So you’re—— 

Mr. PESCHEL. What we don’t want to do is spend money that is 

not necessary. 

Chairman ISSA. Is that true of—I mean, each of you represents, 

I guess four of the five cities involved, or at least is affiliated. 

If in fact your plan were to be adopted with a measure and renewal period, is it your understanding that, you know, you don’t 

get to do this for 20 years for the life of those bonds; that you 

might, in fact, by choosing a less expensive solution, if you don’t 

achieve the goals that in fact—in other words, the return of health 

of the estuary—that in fact you could find yourself back again with 

a new financial impact? Is that an understanding that you have 

here today? 

Mr. PESCHEL. Absolutely. And any design that we would undertake to meet, you know, say, the 8 milligrams per liter, if we were 

to be found that it’s not sufficient, we haven’t lost anything. The 

actions are supplemental. We would just add on to what we’ve already done. So—— 

Chairman ISSA. Sort of when you cut curtains, you want to make 

sure you cut them but not too short, because you can take more 

away; you can’t add on? 

Mr. PESCHEL. Right. That’s not the case in this particular situation. We can add on, and it won’t have been money lost on the initial. 

Chairman ISSA. Mr. Hall, you went into great detail on the violations of procedure. Ultimately, you also, I gather, believe that they 

reached the wrong conclusion. But even if they reached the right 

conclusion, do you feel that, in fact, the lack of due process on both 

sides is part of the fatal flaw of EPA reaching this conclusion? 

Mr. HALL. Well, there is a serious error and lack of due process 

in the manner in which the procedure went forward, and that does 

need to be corrected. Quite frankly, we wouldn’t be sitting here 

raising just a due-process issue if any of us thought that—— 

Chairman ISSA. But I’m asking for a reason. We have before us 

a document that indicates EPA is scared stiff of the sue-and-settle 

crowd, the NGOs that will sue if they fail to abide by every nuance 

of the rule. 

Ultimately, if they had erred on the side of you, with the same, 

in other words, if they picked you arbitrarily and quickly, wouldn’t 

they have been in the same boat, except in this case it would have 

been NGOs suing them? 

Mr. HALL. Well, actually, it was the NGOs that originally sued 

EPA to establish the Alaska Rule. They said, ‘‘You are changing 

water quality criteria without going through the process. You are 

cutting off our ability to provide the science, the input, the process. 

You are cutting off our ability.’’ 

So they’re the ones that originally sued to make this rule—— 

35 

Chairman ISSA. So all you’re really asking for is what the environmentalists demand and have sued to get: an open and fair process with certain comment requirements that you’ve been denied? 

Mr. HALL. That would be a very fair way of stating the position. 

Chairman ISSA. Let me just ask—and if I could ask for a couple 

more minutes. But—and I said this in my opening statement—isn’t 

the EPA also in a box because of inaction by the state legislature? 

In other words, at some point we in Washington, if a state simply 

chose not to act, and so far the state legislature has not acted— 

isn’t there a time limit at which at some point we have to allow 

the EPA to take some action? Regardless of their violating procedure, ultimately they did have a need to act if in fact a state legislature never acted? 

Mr. HALL. Oh, most certainly. There is a provision under the procedures of 303(c)(3). If a state refuses to take action or delays in 

taking action on updating the water quality criteria, the EPA sends 

them—it’s basically a 60-day notice letter. 

Chairman ISSA. Has the EPA sent that? 

Mr. HALL. No, that letter has not gone out. That was the letter 

that they sent to the state of Florida that triggered the Florida 

water quality standards adoption. 

Chairman ISSA. So, essentially, they haven’t given the state legislature notice to sort of pay rent or quit, to in fact do its job or be 

bypassed? 

Mr. HALL. Correct. That has not happened. 

Chairman ISSA. Lastly, Mr. Rice—and I’ll be brief—but it sounds 

like you’re describing in this process, and from the conference you 

attended, a ready-shoot-aim procedure going on by EPA. They tell 

you they have no time, they tell you they have no money, but 

they’re saying, ‘‘Do it anyway.’’ 

Is that pretty fair? 

Mr. RICE. That is a pretty accurate approach, or statement, yes. 

Chairman ISSA. And where is, in any of your understanding, 

where is in fact the assumption that the science has to be disproved—or has to be established as disproving from the EPA, rather than EPA coming down with science that supports their assertions on water or air? Because it sounds like they’re asking you to 

prove by your science what you want to do, while in fact they say 

there’s no time and no money for them to establish scientific standards in this case. 

Mr. RICE. We asked to participate in the scientific process four 

or five years ago. We said that we would participate financially, 

contributing to the sampling process as well as with our technical 

experts. We were told at that time that they had their science and, 

you know, ‘‘You don’t need to participate.’’ We felt that our participation would have benefited the process and would have gotten us 

farther along. 

In order to know if a decision—a solution works, you need to 

have a foundation that’s solid, so that a financial decision that’s 

made, you can build and measure if that decision was good. If you 

don’t have a ability to measure if something is good or not, or that 

does what you think it’s going to do, you’ll continue to spend money 

on a solution that may not be a solution. 

36 

So what we argued was that we needed to be able to really build 

and measure, and that’s part of this adaptive management approach was that we would be able to say, ‘‘We’re not going to preclude better decisions in the future by jumping all the way to some 

foregone conclusion.’’ We would be able to build, see the improvements. If their science is correct, we should see a 40 percent reduction on our incremental step in terms of the nutrients going into 

the bay. That change should have a marked improvement if their 

theories are correct. 

We do not believe they’re correct. We do not believe the science 

supports the conclusions that they have made. 

Chairman ISSA. Let me just close with, in all of your statements, 

you talked in terms of eelgrass not being affected by this. So your 

theory is, you will do the reduction for other reasons and that ultimately eelgrass will continue to have a problem that you don’t 

know the source of. Is that roughly correct? 

Mr. HALL. Mr. Chairman—— 

Chairman ISSA. Yes. There’s water clarity you mentioned. 

Mr. HALL. Actually, more importantly, they actually do know the 

source of the problem. The research was completed. It concluded— 

which was kind of obvious when you looked at the data—that nitrogen had not caused the effect that they thought it did. 

There’s an interesting thing that happens in the watersheds in 

this area. There’s a lot of swamps. When it rains a lot, colored 

water comes out of the swamps. When colored water comes out of 

the swamps, it goes into all the tributaries and turns them dim. 

The light can’t penetrate. The federal studies found, yes, in fact, 

that’s the primary cause with why there’s poor transparency in 

various areas. Having found that conclusion, it was then tossed 

out, because there was this drive for nutrient criteria. I mean, it 

was as if it was a solution in search of a problem. 

So that’s the unfortunate part, and that’s what Mr. Rice is talking about, about having a—— 

Chairman ISSA. That you reduce the nutrient, and water clarity 

will not change therefor? 

Mr. HALL. Yeah. It doesn’t change it. Yeah. It has no effect on 

it. 

Chairman ISSA. I’ve exceeded my time. 

Mr. Guinta. 

Mr. GUINTA. Thank you very much, Mr. Chairman. I want to 

start with Mayor Jean. 

I just want to ask you a simple question. Do you support ensuring that Great Bay remains clean? 

Mr. JEAN. Absolutely. 

Mr. GUINTA. Okay. During the course of your testimony, you 

commented that protecting the natural environment for the benefit 

of its citizens and all the citizens of the New Hampshire is important, but that you were also concerned that the nitrogen and phosphorus discharge limits proposed by the EPA were unnecessarily 

strict. 

As an alternative, in other testimony, the AMP, or the Adaptive 

Management Plan, has been proposed. Rochester has joined in supporting the Adaptive Management Plan. Can you talk to me a little 

37 

bit about why that Adaptive Management Plan is more reasonable 

from a financial perspective for the City of Rochester? 

Mr. JEAN. Certainly. 

Right now the City of Rochester is at approximately 30 milligrams per liter of nitrogen, and the Adaptive Management Plan 

brings us closer to 8. The most important part of the plan is, it will 

give us some time to collect some hard data that would show 

whether or not what we’re doing for total nitrogen will actually improve the status of Great Bay or not, and we felt that that was 

probably the most cost-effective and reasonable number to achieve, 

and that’s why the city supports that, from a financial standpoint. 

Mr. GUINTA. Now, you talked a lot about the potential cost to 

taxpayers. Taxpayers in the City of Rochester have a tax bill, but 

they also have a sewer bill? 

Mr. JEAN. Correct. Correct. 

Mr. GUINTA. You mentioned a $2 million annual increase in the 

bond for, I would assume the wastewater treatment? 

Mr. JEAN. Correct. 

Mr. GUINTA. You said that would double the rate, and you testified to the rates. 

Can you give me an idea what the average amount that a family 

or household is paying currently for—— 

Mr. JEAN. Sure. 

Mr. GUINTA. Is it billed quarterly? 

Mr. JEAN. It’s billed quarterly, and right now, at the current 

rates, you’re looking at a sewer bill that’s probably about, I’d say 

close to $600 annually. 

So if you were to impose the debt service that a wastewater 

treatment plant upgrade would entail, you’re looking at about 

$1,200. And that’s just the sewer side. That doesn’t count water. 

Of course, there’s both sides to the water and sewer bill. 

Mr. GUINTA. Right. 

And that would be just if this mandate—— 

Mr. JEAN. Correct. 

Mr. GUINTA.—was implemented? 

Mr. JEAN. That’s correct. 

And what’s important to note is, of course, if this were an upgrade that would be spread between the entire commercial and residential tax base, that would be one thing. But this is focused directly to the ratepayers who subscribe to the wastewater treatment 

service that we provide. So it’s a smaller number, as opposed to the 

broad width of a residential tax base. 

Mr. GUINTA. And you mentioned that the valuation of the city 

since, I think you said ’09, has been declining? 

Mr. JEAN. Correct. Has diminished from $2.6 billion to approximately $2 billion. 

Mr. GUINTA. Which is not uncommon for economic conditions 

that the entire country is in. 

Mr. JEAN. That’s correct. 

Mr. GUINTA. There are many other communities that are also— 

their value is declining. 

Mr. JEAN. That’s correct. 

Mr. GUINTA. Which means that either, just from a mathematical 

perspective, either you have less tax base to tax. So if you’re going 

38 

to have the same amount of money, the same amount of services, 

you’ve got to increase taxes or you’ve got to somehow cut back on 

the expenses of the city to equalize that reduction in value. 

Mr. JEAN. That’s correct. But there was a reduction in revenue. 

Mr. GUINTA. Now, has the tax rate increased over the last several years in the City of Rochester? 

Mr. JEAN. It has. 

Mr. GUINTA. What’s the rough average increase? 

Mr. JEAN. You’re looking at approximately 3 percent, 2.5 to 3 

percent over the last three years. 

Mr. GUINTA. Okay. And this issue, this mandate would be in addition to 2.5 to 3 percent annual increase? 

Mr. JEAN. Yes. 

Mr. GUINTA. So this issue, this mandate would be in addition to 

the 2.5 to 3 percent annual increase? 

Mr. JEAN. That’s correct. 

Mr. GUINTA. The second point I wanted to make with the mayor 

is that the Great Bay Municipal Coalition, which includes Rochester, has initiated litigation against the State and the State DES, 

alleging that it violated the state rule-making process by neglecting 

to conduct a formal rule-making process. 

I don’t know if I should ask you this or maybe Mr. Hall or Mr. 

Rice. 

My particular question is, if the State of New Hampshire or the 

EPA were to follow the procedures that the EPA put in place, and 

ensured that the state legislature had a proper review, that obviously would take some time. It would happen over either one cycle 

or maybe two bienniums. That would provide at least some additional time to create different or better science, or maybe more 

agreed-upon science. But, secondly, it would put you in a position 

as a city, one of the contiguous communities, to try to identify a 

means in which you could pay for this, long-term. 

Is that a fair statement? 

Mr. JEAN. That would be fair, and I could defer to Mr. Hall if 

there’s any—anything that he would like to add about the DES 

process. But I think that’s an accurate assessment. 

Mr. GUINTA. Well, in the next round of questioning, maybe I’ll 

get into the specifics on procedure, because I think that is extremely important. 

Mr. HALL. The only point being, the chairman raised whether 

EPA had taken the step of sending the letter to the State, saying, 

‘‘Why have you not adopted the standard?’’ Because the regulatory 

agencies did not do what they were supposed to do, we’re now 

going to court to make them do precisely that. 

So, you know, we’re the ones that are moving the regulatory 

process along its proper path. We wish we didn’t have to do that, 

but that’s the situation we’re stuck in right now. 

Mr. GUINTA. And the final question, I guess I want to ask Mayor 

Jean. 

I know that your method of governance is one of inclusion, and 

I know that one of your focuses has been trying to improve the economic condition of Rochester as an extremely important city to the 

county and to this region. 

39 

If you were to have five businesses that you were courting, and 

you were to include, as a matter of proper disclosure, that there’s 

a potential that there would be significant increases on this side of 

the ledger, how would that affect your ability to attract new, smaller businesses, job creators, and how would that put you in a competitive disadvantage—advantage or disadvantage to other communities? 

Mr. JEAN. From an economic development standpoint, the increased rates would certainly put us at a disadvantage, not only to 

the surrounding communities within Strafford County, but really 

would put the entire Strafford County at a disadvantage and encourage business to settle maybe in Hillsborough County or 

Merrimack County where there are less stringent regulations that 

would cause a wastewater—— 

Mr. GUINTA. Because this is not just affecting Rochester? It’s affecting—— 

Mr. JEAN. No. This is a regional impact. And that’s why we’re 

here today. 

Mr. GUINTA. Okay. Thank you very much. 

I yield back the balance. 

Chairman ISSA. Thank you. 

We’ll do one quick second round, because we do have another 

panel to get to. And I had a couple questions. 

Mr. Rice, you testified that for your first years, 2002 to 2008, essentially the State Water Quality Standards Advisory Committee 

took one approach as to nutrient from a technical advisory standpoint, and then in 2008 there was an abrupt change. 

Can you account for what caused, if you will, what science supports an abrupt change in how nitrogen is looked at? 

Mr. RICE. I can’t justify the abrupt turnaround based on science. 

Chairman ISSA. But you saw—— 

Mr. RICE. Based on policy, I was told by DES personnel that they 

were being directed to come up with a strict nutrient limit and that 

they had to make the numbers work. 

Chairman ISSA. So what you saw was a policy change without 

science that led to essentially science being found to support a policy decision already made? 

Mr. RICE. Correct. 

Chairman ISSA. That’s not uncommon. We see that in Washington. 

I guess, Mr. Hall, that sort of brings us to that question of, these 

procedures that you’re alleging, and I think are pretty well documented, these shortcuts that are being taken, aren’t they in fact 

the exact fatal flaws that both sides need to guard against? In 

other words, even though it’s a long and laborious process of comment and inclusion, that, ultimately, that’s a requirement—whether it’s objections from the left or objections from the right on any 

particular issue, in order to get to a decision that we all have to 

live with—if you will, that’s the due-process guarantee, even if the 

outcome is not always what we wanted? 

Mr. HALL. Well, that’s certainly correct, Mr. Chairman. I mean, 

we’re not trying to dictate an outcome, but we should have our 

process which then allows us to put in the requisite scientific inforVerDate Aug 31 2005 10:23 Aug 02, 2012 Jkt 000000 PO 00000 Frm 00043 Fmt 6633 Sfmt 6633 C:\DOCS\75303.TXT APRIL
40 

mation to show what should or shouldn’t be occurring, and that— 

again, it applies to both sides. 

So I agree. 

Chairman ISSA. And I guess one follow-up question that I’m particularly interested in. 

Isn’t it possible that with all the due process, with the legislature 

acting, with science being re-looked at in an open and transparent 

way, isn’t it possible you’d lose; that in fact we’d end up with less 

than 8, perhaps as little as 3; that the ultimate standard may not 

be where your particular experts found it? 

Mr. HALL. Well, I would offer the following observation. 

Chairman ISSA. I was hoping for a yes or no. 

[Laughter.] 

Mr. HALL. Actually, the answer is no. The scientific information 

is so perfectly clear. 

Chairman ISSA. In other words, you’re comfortable with your 

science. But let me ask it another way. 

The process would at least create the possibility that people of 

good faith would look at the science and reach a different decision 

that might not be exactly the same as yours? 

Mr. HALL. Yes, Mr. Chairman. And, in fact, when we asked for 

the independent peer review, our statement going in—and I mean, 

the coalition’s statement—was, ‘‘Get three truly independent experts’’—and there are top experts in the country that know these 

issues back and forth—‘‘Get three experts. If they say we’re wrong 

and we need to do it, we will go figure out a way to find the money 

and get it all done.’’ 

But if they say it’s, like they did the last time, ‘‘It’s not correct,’’ 

we don’t expect another policy decision to foist a billion-dollar nutrient-reduction program. 

Chairman ISSA. Mr. Rice, you seem to be eager to give an answer. 

Mr. RICE. Yeah. Well, it’s just for perspective. 

Chairman ISSA. And we do this in Washington. We give answers 

where there are no questions. 

[Laughter.] 

Mr. RICE. Well, there’s points to be made, right? 

Chairman ISSA. Yes. 

Mr. RICE. As the city engineer, I’m responsible to look at the 

data that’s available and to make recommendations to the decisionmakers, our city council, our city manager, based on that information. That information needs to be able to support the decisions and 

the investments that the city makes. Reviewing this information 

does not support these significant capital outlays. 

Chairman ISSA. I guess as the city engineer, if you needed to 

build a one-mile-long road that would accommodate a certain 

amount of traffic per day, and you calculated two lanes, and somebody else said, ‘‘But I want four lanes because it looks prettier,’’ 

that, ultimately, you’d be looking at, ‘‘Yes, but why should we pay 

twice as much for twice as many lanes unless we need them?’’ 

Mr. RICE. Correct. 

Chairman ISSA. And so, in a sense, this is what this really is: a 

decision about what it takes in the way of capacity and mitigation 

41 

in order to achieve a goal that is already specified and agreed to 

by all of you? 

Mr. RICE. Absolutely. 

Chairman ISSA. Do all—I know there’s four—I keep saying four, 

but I know there’s one city that we were not able to get a witness 

on either side available for. 

Would you all agree here—and particularly, Mayor, since you 

bind the city to a great extent—that if the process is adhered to, 

that if EPA does what it’s supposed to do, if your legislature, if appropriate, does what they are supposed to do with the 60-day notice, if that comes through, that, ultimately, you would recognize 

and abide by whatever the decision is and whatever the cost is, if 

the due process is properly run through? 

Mr. JEAN. That’s correct. We’d have no choice. 

Chairman ISSA. You’d have no choice, but—— 

Mr. JEAN. Yes. Yes. Yes, we would, Mr. Chairman. 

Chairman ISSA. I guess I’m asking only—you know, for us, we’d 

like—we’d all like to have the best outcome. I would like healthcare 

to cost as much as it does, because I’ve got to tell you, the 

healthcare debate in Washington would be a lot easier if it was half 

the cost. Ultimately, we wouldn’t have a crisis in Medicare. If I 

can’t make it half the cost, I at least have to arrive at the least 

waste and fraud that I can, and then pay the bill. 

Mr. JEAN. Yeah. 

Chairman ISSA. That’s sort of the situation you’re in, is that 

you’d like to protect the citizens of your city by getting them the 

most accurate and least expensive but effective decision with a legitimate due process? 

Mr. JEAN. That’s correct. 

Chairman ISSA. Well, that’s, to a great extent, what Congress 

has an obligation to do with all the federal agencies. And I will tell 

you that’s my goal when I leave here today is to ensure not that 

your particular solution win, but that the process be adhered to so 

that ultimately the best solution, at the lowest cost possible, be 

achieved. 

Thank you. 

Mr. Guinta. 

Mr. GUINTA. Thank you, Mr. Chairman. 

Mr. Rice, you’re here on behalf of the City of Portsmouth. Can 

you tell me what if any votes the City of Portsmouth took relative 

to this particular issue or the Adaptive Management Plan? 

Mr. RICE. I will, and I can. But if I misspeak, my assistant city 

attorney is here to let me know I’m—— 

Mr. GUINTA. Sure. To set you straight. 

Mr. RICE. Yeah, to set me straight. 

Chairman ISSA. So we’ve got an engineer and an attorney. What 

a combination. 

[Laughter.] 

Mr. RICE. Yeah. It’s a bad combo. 

It’s my belief that the city council did vote for the adaptive management approach, and we did budget monies that were passed to 

move forward with that approach in this year’s budget. 

Mr. GUINTA. Can you—— 

42 

Mr. RICE. And then the other question you had was—for the— 

well, the other votes that they’ve been taking is, the city is voting 

and committed to moving forward to build a treatment plant we’re 

upgrading a treatment plant, to build that treatment plant to 8 

milligrams per liter, with the ability to treat to 8. So that’s another 

vote that was taken. 

Mr. GUINTA. So, just to sort of put this in perspective, right now 

we’re talking about anywhere—of a discharge from 20 to 30 milliliters; correct? I mean, currently, the current discharge? 

Mr. RICE. Right. Currently we’re around 20. 

Mr. GUINTA. And different communities are at different levels, 

but it’s roughly 20 to 30 based on the communities. 

So you’re at 20; Rochester could go as high as 30 in certain years. 

But that’s where we are today? 

Mr. RICE. Yeah. 

Mr. GUINTA. The EPA requirement is to get to 3, and the coalition communities would like to get—the goal is to get to 8? 

Mr. RICE. As the first step, correct. And, obviously, what we 

would do is, we would build and measure. You know, the idea is, 

if it didn’t have the results we were hoping for, you know, is it the 

right step and do we need to do anything beyond that? 

Mr. GUINTA. So you don’t object to having a plan; you don’t object 

to ensuring that Great Bay is clean; you don’t object to reducing 

nitrogen. What you’re objecting to, it sounds like, is the mandate 

to immediately get to 3? 

Mr. RICE. We don’t feel the science supports going to 3. 

Mr. GUINTA. Okay. And you have offered to the EPA—have you 

offered to the EPA—— 

Mr. RICE. Yes. 

Mr. GUINTA.—your alternative? 

Mr. RICE. Yes. 

Mr. GUINTA. And what response have you gotten from the EPA? 

Mr. RICE. The request, I think, went through the DES originally, 

in a letter to the EPA; and the EPA responded that it was not adequate, that you had to go to limits of technology. 

Mr. GUINTA. Okay. Can you talk to me a little bit about what you 

identified in your testimony in regards to your attendance to a 

Washington event, a Water Environment Federation EPA staff 

briefing on March 15, 2010? You talked about it a little bit. Can 

you talk a little more in depth about what you were told? 

Mr. RICE. Yeah. I mean, there was a briefing through our New 

Hampshire Water Pollution Control Association, the New England 

water environment group. We went down—we go down annually to 

get updates and have a chance to chat with our representation 

down there, to bring up concerns and get information. 

At a staff EPA briefing to our organization, they were talking 

about the Chesapeake Bay, and they talked about other estuaries 

and that they were taking this approach and expanding it nationally. And I pointed out that there were site-specific differences with 

each estuary and it appears to be a one-size-fits-all, and, you know, 

why would you do that? You know, our Bay is different than elsewhere. 

43 

And they said—and the response was, ‘‘You know, we don’t have 

the time or money. We’re moving forward. And, you know, that’s 

just the way it is, and you just have to accept it.’’ 

Mr. GUINTA. So they don’t have the time or money to do the 

proper—— 

Mr. RICE. But we do. 

Mr. GUINTA. Exactly. 

And, Mr. Hall, you did actually mention in some of your comments that there are geographic differences nationally on what 

would produce the transparency issues or the discoloration of different water bodies? 

Mr. HALL. That’s correct. Actually, if Chesapeake Bay had the 

algal level that you have in Great Bay, they would be doing handstands. It is that low. The nutrients—— 

Mr. GUINTA. Compared to Chesapeake? 

Mr. HALL. Compared to the Chesapeake. And it’s because—— 

Chairman ISSA. It’s nice to be colder. 

Mr. HALL. Colder, and more importantly, I don’t know—if you 

get a chance to go eat some seafood down at Portsmouth Harbor—— 

Chairman ISSA. My staff has contributed considerably to the 

economy in the last two days. 

[Laughter.] 

Mr. RICE. We appreciate that. 

Mr. HALL. Ask them to watch the tidal exchange. It is impressive, the amount of water that comes rushing through every day. 

The detention time, which is a critical controlling factor in any nutrient growth in a bay, is, I think about 13 to 18 days in Great Bay. 

In Chesapeake Bay it’s like nine, ten, twelve months. 

So the amount of difference that you can have in algal growth 

is huge in Chesapeake. In Great Bay, you can put nitrogen in and 

it actually doesn’t affect the algal growth, which is exactly what 

the data showed. 

What we were astounded with—about—was, after the EPA 

looked at the data, EPA looked at the data and they were shown 

that the nitrogen went up—the algae did not change—they still 

kept claiming that nitrogen caused more algae and caused worse 

transparency. The data confirmed it never happened. 

So, yes, there are major differences in this system compared to 

others. And I might note that your Technical Advisory Committee 

from 2007 concluded you shouldn’t use the data from other estuaries, because this one is so different. And I don’t know where that 

recommendation went, but it certainly got ignored in the end process. 

Mr. GUINTA. Mr. Chairman, may I have one additional minute? 

Chairman ISSA. Of course. 

Mr. GUINTA. Okay. Thank you. 

Mr. Hall, we are going to hear in the second panel from the EPA, 

specifically Mr. Spalding, and I suspect what he, to make the 

points for the EPA, will talk a little bit about the PREP, the 

Piscataqua Region Estuaries Partnership, and that report from 

2009 and how it justifies the proposed standards by EPA. 

Can you talk a little bit about, from your perspective, what 

PREP states, what that document states? 

44 

Mr. HALL. Sure. 

Mr. GUINTA. And maybe if you have any concerns or if there are 

also any legitimate points you want to make about that document. 

Mr. HALL. I think the simplest analogy would be the following. 

Suppose you went into a doctor and said, ‘‘I’m having shortness 

of breath.’’ And the doctor said, ‘‘Well, you know, this could be anything from indigestion to you may need bypass surgery. You know 

what we need to do? We need to run some very specific tests to figure out what the right diagnosis should be.’’ 

The doctor runs those tests; concludes, in fact, it was indigestion. 

You go back to meet the doctor again, and then the doctor tells 

you—— 

Chairman ISSA. ‘‘Time for a heart transplant.’’ 

Mr. HALL. ‘‘It’s time for a heart transplant, because I have an 

opening on my schedule next week, and I needed to fit somebody 

in.’’ 

That is what happened with the 2009 criteria document. They 

did the specific studies. When it confirmed that the specific results 

or conclusions were, transparency was not affected in the way they 

thought, they then switched to a simplified diagnosis, plotted data 

in a way—and, by the way, my background is in mathematics and 

I also have degrees of environmental engineering. If I had handed 

this assessment in a master’s program as a basis for calculating a 

nutrient limit, I would have gotten an F. The EPA Science Advisory Board specifically said you can’t use these kind of simplified 

methods to predict complex nutrient criteria. 

Okay. We brought that to EPA’s attention. Now, that SAB report 

happened, oh, about six months after the State finished their report. So we thought, well, we’ll bring this forward. Obviously, 

they’ve make a mistake and they’ll just fix it. 

But, no. Since that date, the Science Advisory Board position 

that you can’t do these kind of analyses was ignored, as was the 

specific diagnosis that this wasn’t a transparency issue. 

So, yeah, we’ve got a few problems with the 2009 documents, and 

that’s why we’ve been asking for an independent scientific review 

from day one, because I cannot imagine any credible set of knowledgeable scientists looking at the evaluation and saying anything 

else other than ‘‘You need to change that.’’ 

Mr. GUINTA. Thank you, Mr. Chairman. 

Chairman ISSA. Thank you. 

I’m going to just follow up, because there was one thing that I 

didn’t get in the last round. 

One of you talked about the 1997 water treatment plant, which 

gets you only to 30 milligrams per liter; right? Currently. 

Mr. JEAN. Yes. Yes. 

Chairman ISSA. So in 1997, in the Year of Our Lord 1997, way 

back then, 30 was good enough. 

As an engineer, how long has 3 been technically possible? How 

long has 8 milligrams per liter cost what it costs now in your 

study? Is this a science where every year, if you—you know, a little 

bit like trying to have the greatest computer. The greatest computer 25 years ago, for millions of dollars, I have in my pocket behind me—it’s an iPad—you know, in my briefcase. But a $20 milVerDate Aug 31 2005 10:23 Aug 02, 2012 Jkt 000000 PO 00000 Frm 00048 Fmt 6633 Sfmt 6633 C:\DOCS\75303.TXT APRIL
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lion computer in the ’70s was not as powerful as an iPad, nor did 

it have as much memory. 

How is the science going relative to being able to make those 

kinds of removals, if 3 is technically possible but expensive today, 

8 is cheaper, and in 1997 you were at 30? Has it progressed that 

quickly? 

Mr. RICE. There have been improvements in the science and the 

understanding of these systems. The big difference between a computer and a biological system—a wastewater system is a natural 

biological system. We take what naturally occurs in the river and 

we condense it down into a treatment plant, so we get more bang 

for the space available. 

Chairman ISSA. Right. But, for example, reverse osmosis is in the 

order of 10 times less costly to do water purification in that system 

than it was a few decades ago. 

Mr. RICE. Sure. 

Chairman ISSA. My reason for asking is, if in fact the EPA were 

to arrive at a decision that 8 looked good enough today, 10 years 

from now, 15 years from now, just as 15 years ago, if they come 

back and there’s a reason to go to 4, is it likely to cost less or more 

because of technology breakthroughs? 

Mr. RICE. It really depends on a number of different things. The 

operation costs of these technologies are not insignificant. Reverse 

osmosis is energy-intensive. A lot of these low-limit biological systems require additional chemicals, methanol, which is dependent 

upon energy prices. So it may be cheaper on a—— 

Chairman ISSA. The last time I checked, you don’t have a lot of 

natural gas coming into New England yet. 

Mr. RICE. No. Right. 

But if you look at in a capital cost, it may be cheaper in terms 

of the capital, but the operation and maintenance costs will offset 

the cost. 

So, you know, it’s crystal ball to a certain extent. Our understanding of the biology and how the bacteria work has significantly 

improved, and we’re doing the best—you know, we’re really milking 

a lot out of what they do naturally. But when you start adding 

chemicals—— 

Chairman ISSA. I guess let’s leave the dollars out for a moment. 

Could you have gotten to 3 milligrams per liter with the existing 

science in 1997? 

Mr. HALL. Not easily. 

Mr. RICE. Probably not easily. I mean, even today, 3 is a seasonal 

type thing. During colder temperatures, it’s going to challenging to 

meet the 3, if not—if not—— 

Chairman ISSA. So it’s a developing standard. It’s also a developing technology. And finding the right mix today doesn’t preclude 

the fact that you could do potentially better, even for a small difference, and do it a few years from now? 

Mr. RICE. Absolutely. And that is really why we say this buildand-measure approach doesn’t preclude doing better things in the 

future. However, going to 3 today does preclude, because it takes 

away resources. 

And you had asked the mayor, you know, what type of impacts 

this could be having, negative other than just financial. The uninVerDate Aug 31 2005 10:23 Aug 02, 2012 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6633 C:\DOCS\75303.TXT APRIL
46 

tended consequence of raising sewer rates in all the sewered communities will drive development into the non-sewered areas. And 

as we’ve seen, non-sewered areas are really the source—the runoff 

is really the source of the problems. And, granted, some of the cities have runoff problems, but you’d be expanding sprawl and moving more runoff issues out of the sewered areas. 

Chairman ISSA. And that is one of the interesting challenges, is 

that when your project is complete at 3 or 8 or whatever level, I’m 

sure the vast majority of the State will still be and its residents 

will be at a level higher; thus, you’ll be the good actor, but some 

of that waste will still be going into the same estuary. 

Mr. RICE. Correct. 

Chairman ISSA. Okay. Well, I want to thank you all for your 

multi-panel answers. If you possibly can remain for the next panel, 

we’d appreciate it. If you have comments or additional items that 

occur as a result of Mr. Spalding’s testimony, please understand 

we’re going to leave the record open for five days for your additional comments, in addition to outside organizations. 

So thank you. And if we could reset for the next panel. 

[Recess.] 

Chairman ISSA. This hearing will come back to order. 

We are now joined by Mr. Curtis, or Curt, Spalding. He is the 

administrator of the Environmental Protection Agency’s New 

York—I’m sorry—New England Region. 

And pursuant to the committee rules, if you also would rise to 

take the oath. 

[Witness sworn.] 

Chairman ISSA. Let the record indicate the witness answered in 

the affirmative. 

Just as at the last panel, although you do probably have a prepared statement that’s been approved, try to limit it as close as you 

can to five minutes, summarize, or skip over a little bit. Your entire statement is going to be placed as a matter of record. 

Mr. SPALDING. I will. 

Chairman ISSA. With that, you’re recognized. 

STATEMENT OF H. CURTIS ‘‘CURT’’ SPALDING 

Mr. SPALDING. Thank you. 

Well, thank you, Mr. Chairman. My name is Curt Spalding. I’m 

the administrator of EPA’s New England Region. I appreciate the 

opportunity to describe the agency’s approaches to the challenges 

facing Great Bay. 

I think we all start from a common understanding. The Great 

Bay estuaries are a real treasure. I’ve been on the water there with 

scientists and state officials, and it’s easy to see what all who live 

in the Seacoast Region already know: Great Bay is a real jewel. It 

is one of only 28 estuaries in the nation to be included in the Clean 

Water Act’s National Estuaries Program. And thanks to the 

Piscataqua Region Estuaries Partnership—or PREP, as was referred to earlier—and many other scientific experts, the estuary 

has been studied extensively for many years. And also, thanks to 

the stewardship of Senator Gregg, the Federal Government has 

made significant investments in research and land conservation in 

this watershed. 

47 

Another point of agreement is that Great Bay is in serious decline. In the 19—in the 2009 PREP study that was referred to, the 

State of the Estuaries Report showing environmental quality of the 

estuary was indeed declining. Of the 12 indicators measured, 11 

showed negative or cautionary trends. The most pressing problems 

include discharges from sewage treatment plants, increased 

stormwater runoff, and non-point source pollution. With mounting 

evidence of serious decline across the watershed in 2009, the New 

Hampshire Department of Environmental Services designated 

Great Bay waters as impaired for failure to meet applicable water 

quality standards. 

The panel before me discussed in detail the scientific uncertainty. What you haven’t heard about is the actual weight of evidence. When EPA weighs all the lines of evidence, particularly in 

the tributary waters where most of the treatment plants discharge, 

we conclude that there is an abundant evidence of impairment. In 

New Hampshire, unlike most states, EPA is the Clean Water Act 

permitting authority. That makes it our responsibility to ensure 

discharges of pollutants to Great Bay do not cause or contribute to 

violations of water quality standards. The discharge of nitrogen to 

Great Bay and its tributaries comes from a variety of sources, including 18 sewage treatment plants in New Hampshire and Maine 

that discharge close to 20 million gallons a day of wastewater, with 

little or no removal of nitrogen. Beginning to control this resource 

of nitrogen represents the single-most cost-effective and predictable 

step that could be taken towards meeting water quality standards. 

Sources other than the sewage treatment plants are also important 

to Great Bay’s nutrient problem, and we will continue to take steps 

to address these sectors, including the development of a general 

permit to address stormwater discharges. 

EPA’s initial focus has been on the small number of facilities 

that discharge the bulk of the nitrogen load coming from sewage 

treatment plants. The plants in Exeter, Newmarket, Dover, and 

Rochester account for over 80 percent of the nitrogen released to 

the Great Bay from treatment plants. 

And as true in every permit we issue, EPA has provided an analysis for the public to examine and critique. In Exeter, Newmarket, 

and Dover, we’ve have lengthy public comment periods and heard 

from proponents and opponents of the proposed nutrient limits. We 

will document our responses to all comments received and provide 

a detailed record of our decisions. I anticipate we will make decisions on the permits later this summer. 

We are very sensitive to the fact that it will take significant public investments to clean up Great Bay. We recognize significant economic impacts facing municipalities for treatment plant upgrades, 

stormwater requirements, and other municipal needs. We are more 

than willing to work with communities on implementation schedules designed to minimize the impact to ratepayers. You’ve heard 

the coalition propose that EPA take an adaptive management approach to control nitrogen in the estuary that would allow treatment plans to be upgraded on phased schedules. These are the discussions we’re having with Newmarket and Exeter now. 

For 18 years prior to my current position, I was executive director of Save the Bay in Rhode Island. I witnessed the nearly comVerDate Aug 31 2005 10:23 Aug 02, 2012 Jkt 000000 PO 00000 Frm 00051 Fmt 6633 Sfmt 6633 C:\DOCS\75303.TXT APRIL
48 

plete crash of Narragansett Bay to nitrogen pollution problems, 

and we struggled to find solutions, just as the struggle is starting 

here. 

I know how hard it is to build a consensus to make the investments in public infrastructure necessary to begin the very long 

path towards restoring Great Bay. There is still time, but probably 

not much time, to arrest the decline in Great Bay before it bottoms 

out. The longer we wait, the harder and more expensive the path 

back. EPA stands willing to work with each community to find an 

affordable path to restoring the treasure that is Great Bay. 

I thank you for the opportunity to testify today. I’m happy to 

take your questions. 

[Prepared statement of Mr. Spalding follows:] 

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Chairman ISSA. Thank you. 

Mr. Spalding, from your CV, your previous employment, what 

was the discharge typical in Rhode Island in parts per mililiter, or 

million? 

Mr. SPALDING. Million? 

Chairman ISSA. Million, yes. 

Mr. SPALDING. Well, the discharges are essentially uncontrolled. 

Chairman ISSA. So they were hundreds or thousands per? 

Mr. SPALDING. The total—— 

Chairman ISSA. In other words, where we’re trying to achieve 3 

or 8—— 

Mr. SPALDING. Right. 

Chairman ISSA.—and we’re presently at 20 or 30—— 

Mr. SPALDING. Yes. 

Chairman ISSA. A decade or two ago, uncontrolled could be 10 or 

20 times that? 

Mr. SPALDING. Well, 40, 50 is not uncommon. I mean, that’s basically a fully functional secondary wastewater plant. 

Chairman ISSA. Plus whatever is running off people’s lawns? 

Mr. SPALDING. Plus what’s running off people’s lawns, the nonpoint runoff. 

The Bay I was charged with trying to restore was—— 

Chairman ISSA. And what did you achieve—what did the water 

discharge turn into, at least from the sewage plants? What was it 

when you left? 

Mr. SPALDING. Well, there’s a set of controls now being implemented on nitrogen. 

Chairman ISSA. No. What was it when you left? 18 years ago, 

what had they, quote, gotten it to? 

Mr. SPALDING. On nitrogen? 

Chairman ISSA. Yes, sir. 

Mr. SPALDING. On nitrogen. They’re still not controlled. So at this 

point, the bay still deals with—— 

Chairman ISSA. So in Rhode Island, they just put as much crap 

down as they want? 

Mr. SPALDING. No, they do not. They now have controls coming 

online in their wastewater plants—— 

Chairman ISSA. Okay. But I asked you specifically, because—— 

Mr. SPALDING.—and permits in place. 

Chairman ISSA. I want to try to understand, because the people 

who are here want to be as clean as necessary. 

Mr. SPALDING. Right. 

Chairman ISSA. And they also want to be comparatively taxed, 

so to speak, along with the rest of the country. 

Mr. SPALDING. Right. 

Chairman ISSA. So, using Rhode Island, you’re telling me it 

wasn’t 20 or 30 per, or certainly 8 or certainly 3 when you left, and 

it isn’t today? 

Mr. SPALDING. There are permit limits in most of the Upper Bay 

Rhode Island plants today. 

Chairman ISSA. That are higher than being proposed here? 

Mr. SPALDING. There is a limit of 5 in Providence, a limit of 3 

in Woonsocket, a limit of 5 in East Providence. 

Chairman ISSA. Okay. 

55 

Mr. SPALDING. So these limits are very much in the ballpark of 

what’s being proposed here. 

Chairman ISSA. Well, let’s talk about the 5 versus 3. This came 

out of the earlier panel. Environmental groups like the Conservation Law Foundation, or CLF, have pressed the EPA for stricter nitrogen limits in the estuary. Internal EPA Region 1 e-mail correspondence obtained through FOIA reveals the EPA considered a 

5-milligrams-per-liter nitrogen limit, with CLF, basically an environmental group—not a neutral, just as your previous group was 

not a neutral—apparently in this e-mail did not agree. 

Are you familiar with this e-mail that was delivered by—— 

Mr. SPALDING. I’m not, but I’m familiar with the point that proponents send e-mails and make input. 

Chairman ISSA. Well, do you know Stephen Sylva? 

Mr. SPALDING. I do know Steve Sylva, yes. 

Chairman ISSA. And do you know Carl Deloy? 

Mr. SPALDING. I do know Carl Deloy, yes. Both work for me. 

Chairman ISSA. Okay. So they’re having a discussion about what 

the standards should be to not get sued; right? 

Mr. SPALDING. Yeah. 

Chairman ISSA. So not getting sued is one of your considerations 

for setting a standard? 

Mr. SPALDING. A standard is that the permit needs to be legal. 

We get sued on both sides quite frequently. It’s a consideration, but 

not a determination. 

Chairman ISSA. But you wouldn’t be having these kinds of e-mail 

discussions if it wasn’t trying to get groups to agree that if you 

meet their standard—their standard you won’t get sued. That’s 

what this e-mail shows. It isn’t referring to defendable science, a 

particular study, norms in other areas. It’s talking about getting 

sued. 

Mr. SPALDING. I think it’s important to note that the permit is 

still under consideration. There’s been no final determination. This 

is a back-and-forth communication. We again have not made a final 

call whether it’s 3 or 5 or any other number. We propose 3 at this 

point. 

Chairman ISSA. Okay. But is this really boiling down to the story 

of the pound of ground beef, and the way you determine a pound 

is, the butcher has got his thumb on the top and he is pushing 

down as hard as he can, and the purchaser has to put his or her 

thumb on the bottom and push equally hard to get a fair one pound 

of beef? Is it really about who can sue to get the middle ground? 

Mr. SPALDING. No. No, it’s not. 

Chairman ISSA. It certainly looks that way from this e-mail. 

Mr. SPALDING. The determination by all involved, looking at the 

weight of evidence, was that 3 was the standard we should propose 

in the draft. 

Chairman ISSA. Well, isn’t 3, though, the limit of technology? 

Isn’t that it, essentially, you couldn’t propose 2, because you 

couldn’t mandate it based on achievable standards? 

Mr. SPALDING. 3, in combination with other factors of non-point 

and stormwater control, as we all discussed, or as was discussed 

earlier, the problem in the watershed and the equity, we believe if 

56 

these plants do achieve 3 in the future and other actions are taken, 

you could meet the water quality standard. 

Chairman ISSA. So if they’re at 30 and they’re willing to go to 

8 in a matter of just a few years, why is that not a dramatic improvement where you can make the change, and if I understand 

correctly from the earlier testimony, in a matter of days, a matter 

of days after you reach that level of output, you reach that level 

in the estuary, and then, over a season, you see the effected 

change? In other words, isn’t it a few days to lower the level, and 

then essentially a season or two in order to see the effect? 

Mr. SPALDING. I wish it was that simple. No. 

If they go to 8—and, in fact, we’ve had conversations with Exeter 

and Newmarket about a phased approach that would bring them 

to 8 and then, in years follow, go to the next level. So, in fact, what 

I was interested in hearing was basic agreement on the phased approach and adaptive management. 

If you go to 8, you’ll start to see improvement, yes. There’s a 

lot—in these systems, the nitrogen tends to be in the system. It 

takes some time for it to work its way through. 

Chairman ISSA. You know I’m a native of Cleveland, even though 

I represent California. 

Mr. SPALDING. Yes. Yes. 

Chairman ISSA. I remember when the Great Lakes were dead. 

Mr. SPALDING. Yes. 

Chairman ISSA. And they found out they weren’t lakes; they were 

rivers. 

Mr. SPALDING. Right. 

Chairman ISSA. Because it took a very short period of time, after 

we quit putting chromate and all these other terrible metals in, for 

it to flush out. 

Mr. SPALDING. Yes. 

Chairman ISSA. Now, in the soils deep beneath Lake Superior 

and Lake Erie, I’m sure you can still measure some levels that 

were left over from decades and decades ago. 

Mr. SPALDING. Right. 

Chairman ISSA. But it sounds like this is an area in which you 

get a fairly quick change. 

And I guess my question is, a phased approach, why wouldn’t 

you, if you will, look for something that is a threefold reduction, or 

however, you want to talk about going from 20 to 30 down to 8? 

Let’s just call it an average of 24 down to an average of 8. Why 

wouldn’t you take that and then measure it, and recognize that 

there’s no bargain? 

And I’m not trying to—— 

Mr. SPALDING. No, I understand. 

Chairman ISSA.—pledge a position. I’m trying to—— 

Mr. SPALDING. I understand what you’re saying. 

Chairman ISSA. Why wouldn’t you say, ‘‘Look. We don’t have a 

bargain. We have a point that we agree to go to and then measure.’’ Why wouldn’t be that the first 5 to 10? Recognizing that even 

though there would be a substantial investment, everybody understands, as I asked the mayor on the first panel, if it doesn’t get the 

job done and science says you have to go further, then, in fact, 

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sentially probably saved a couple hundred million over that 6-, 7- 

, 8-year period that ultimately you’re going to use to make the next 

round of investment if you need to. 

Mr. SPALDING. Yeah. Yeah. It’s interesting you bring up the 

phased approach, because, indeed, what you’ve just described is a 

lot of what we’ve been talking about with Exeter. The only difference is, to make a permit based on the science we see today— 

and there’s been a lot of conversation about science from their consultant, but what we see in the science—— 

Chairman ISSA. And if you noticed, when they were telling me 

how confident they were, I said ‘‘What if?’’ 

Mr. SPALDING. Yes. 

Chairman ISSA. Because we’re always confident in our science, 

and the other side is always confident. 

Mr. SPALDING. Absolutely. 

Chairman ISSA. I’ve been in trials and both sides have experts 

that absolutely agree with them and disagree with each other. 

Mr. SPALDING. Absolutely, sure. And we have a process for arbitrating that through our Environmental Appeals Board. 

But the fact is, writing a permit today, we think 3 is what’s required; but in discussions about a compliance schedule, we’ve 

talked about several years doing exactly what you talked about: 

Let’s put 8 in, let’s look at how it’s achieving, and then we would 

look at the science at that time, with the idea that we all need to 

know how this resource is responding, the issue you just raised. 

Chairman ISSA. So let me try to feed back your words, because 

I think they’re very important today. Because there may be some 

misunderstanding of your goal, your likely rule, and, in fact, what 

people understand. 

Mr. SPALDING. Right. 

Chairman ISSA. If in fact their study happens to be right, and yet 

your belief is the one that ultimately is written on the permit, do 

we have a situation in which you go to their 8; you measure it. If 

they appear to be right in hindsight, you don’t go to 3 even though 

you still believe that you should go to 3, but you see that they’ve 

achieved? 

Mr. SPALDING. Well, we have—— 

Chairman ISSA. Or is this one of the things where they’re guaranteed to have to go to 3 and it’s just a question of when? 

Mr. SPALDING. There are probably two permit cycles in play before—again, talking about the compliance schedule that was being 

discussed—where we could reconsider that 3 if their science proves 

right, if other science proves right, or if somebody—and you talked 

to Peter about the innovation that might be out there, and believe 

it or not, there is a lot of innovation around this water issue. 

Chairman ISSA. I suspected there was, although I didn’t get the 

answer I hoped for. 

Mr. SPALDING. No, there’s a lot of innovation. The State of Massachusetts just launched a very significant effort that way. 

But the point is, yes, there is opportunity for reevaluation in the 

compliance schedule we discussed—I’ve been discussing with Exeter and Newmarket. 

Chairman ISSA. Well, I’m not envisioning a second round, but as 

you saw in the last round, things come to me. 

58 

Mr. SPALDING. Yes. 

Chairman ISSA. But Mr. Guinta has prepared very much for this. 

I’ll recognize the gentleman. 

Mr. GUINTA. Thank you, Mr. Chairman. 

Thank you, Mr. Spalding, for working with me personally and 

my office and the communities in trying to find what I hope is a 

reasonable resolution. We’ve talked about this over the course of 

the last year, and I want to try to get as much information from 

this hearing to the public. I want to continue to digest some additional information that I’ve heard, as you know that I have filed 

legislation to try to find a middle ground in getting to 8 as opposed 

to 3. 

But some of the testimony I heard from the first panel did concern me, because it does seem as though some of the communities—I won’t say all, but maybe some feel their voices aren’t 

being heard as much as maybe you would like or you feel they’re 

being heard. And you were in the audience; you heard some of the 

testimony, particularly from Mr. Rice, on that subject matter. 

Can you maybe talk a little bit about that? Because I suspect 

that there is maybe a difference of opinion that you have, or a different approach that you have as the regional director versus the 

EPA. I mean, I’ve gotten the sense over the years that you want 

to try to find common ground, and I appreciate that. But it does 

seem from some of the testimony that that’s not the opinion or it’s 

not what the contiguous communities have been feeling. 

So can you just talk about that a little bit? And then I’ll get into 

more specific questions. 

Mr. SPALDING. Well, you make a good point. I took the position 

or came in 2009, and this was well underway before I got here. And 

we have been trying to open up paths of dialogue. I’ve had regional 

staff in these communities, especially Exeter and Newmarket, the 

first two permits, many hours of dialogue with those communities 

on thinking about a compliance schedule that would phase the approach and include this adaptive management that they have proposed. 

So we have been—and that was something I discussed in depth 

with my staff: the need to get with the communities and do that. 

And that’s what I used to do running an NGO in Rhode Island, 

have those kind of discussions. And, indeed, 3, 5, other limits were 

put in without appeals in those—in that place in Rhode Island. 

So, yes, I think the need for dialogue is incredibly important, because things will change, new technology will come forth. Will the 

population in these towns continue to grow? The real reason this 

is happening is population growth in this region. So we need to 

continue to do that. 

Mr. GUINTA. On that, are you concerned at all about the point 

that Mr. Rice brought up toward the end of his testimony, about 

sprawl? I mean, fixing, from the EPA’s perspective, one problem 

and almost creating another? 

Mr. SPALDING. Yes. The idea that the costs in the cities would 

go up and the people would go elsewhere. 

Mr. GUINTA. Is that a legitimate issue? 

59 

Mr. SPALDING. It is a legitimate issue. I think the chairman 

pointed out that a solution for this region needs to include all the 

communities. 

One thing that’s very important—— 

Mr. GUINTA. When you say ‘‘all,’’ what do you mean? 

Mr. SPALDING. All the communities that are in the Great Bay Estuary watershed, that may be making an impact. So if you have, 

for example—— 

Mr. GUINTA. So does that go as far west as Candia, New Hampshire? 

Mr. SPALDING. It can. I mean, there needs to be a conversation 

about that. Those with septic systems and individual systems need 

to be brought into this. And you might find, as you go up these rivers, that some folks, their septic system may not be working so well 

anymore. And those problems need to be addressed. What’s coming 

off of farms and lawns needs to be addressed. 

We are very eager to see a whole watershed solution found. Unfortunately, we don’t have that authority, that state and local authority. So they need to put that program together. If that program 

comes together and it shows real progress, there could be a reconsideration of everything we’ve talked about here. 

Mr. GUINTA. Well, staying on that point for a minute, it seems 

like the first panel—and I think you would agree, but I don’t want 

to put words in your mouth, so tell me if I’m wrong—but it seems 

like there’s general understanding that roughly 70 percent of the 

nitrogen in the estuary does not come from wastewater treatment 

plant. 

Mr. SPALDING. That’s right. 

Mr. GUINTA. So you’ve alluded to that. 

Mr. SPALDING. There’s no disagreement there. 

Mr. GUINTA. Okay. So should I be concerned with what the communities are bringing to me in terms of their financial concern? If 

wastewater treatment plant is 30 percent or 28 percent of the problem, why is the first phase of modifying or improving this being 

such a significant financial impact, you know, greater than the 30 

percent that maybe they feel they’re responsible for? 

Because I have to say, I’m hearing from the communities, from 

day one, they want to fix this problem. They don’t want to be in 

a fight with the EPA. They’ve encouraged me and asked me to be 

in this process to try to find that common ground solution. And 

that’s the role that I’ve tried to play from day one, and that’s the 

role I want to continue to play. 

Mr. SPALDING. Well, you should be concerned, like I’m concerned. 

We both should be concerned about impact to ratepayers and how 

this goes in place, and it needs to be phased. We’re working with 

communities with limits all over—and I mean financial limits all 

over New England, places like Holyoke and Fitchburg and other 

places with income levels far below these communities. And we 

work very hard to phase the work so it does not create undue burden. 

But the other thing you point out is, that I think is very important, is should the burden be borne by just these communities? In 

other states in my region, states put forth some bond-issue support 

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60 

ed here. I think that’s the case in most states. They provide some 

help for a resource that’s a state asset like this. 

I do regret, I think like we all do, that the Federal Government 

can’t do more in terms of granting and that sort of thing. But, all 

said, I think we all need to be concerned. Nobody wants to put a 

community at an unfair disadvantage. 

Mr. GUINTA. Two final points I’d like to make, if I could. 

Chairman ISSA. Of course. 

Mr. GUINTA. So, on that note, the Clean Water Act does allow for 

state legislatures to engage in these particular issues. The first 

panel, I think it’s been identified that the state legislature has not. 

Mr. SPALDING. Yes. 

Mr. GUINTA. So, to your point about a greater area, shouldn’t the 

legislature be more engaged, number one? And, number two, if the 

upwards of—you know, it could be 75 million, could be 164 million, 

could be 250 million, depending on the requirement of the 3 for the 

contiguous communities—I mean, we probably differ in the cost, 

but they’re telling me anywhere from 160 to 250. You know, long 

term it could be a billion when you include the other communities. 

Why wouldn’t the—why wouldn’t the Adaptive Management Plan 

of 8 be sufficient? 

I keep hearing—I hear you say that you want to work with them, 

but it sounds like you’re saying at the end of the day, you are saying they have to get to 3. 

Mr. SPALDING. What I’m saying is two things. 

Mr. GUINTA. So there’s two points there. 

Mr. SPALDING. Two things. Looking at the science today, the decline we see in the habitat health of the Great Bay Estuary today, 

we have proposed 3 milligrams per liter as ultimately necessary to 

see the Great Bay and its estuaries recover. That said—— 

Mr. GUINTA. However, you’ve also said that it could change over 

time. 

Mr. SPALDING. That said, we have discussed with the communities a compliance schedule that does a phasing approach using 

the adaptive management approach; that if other means are found 

to get that nitrogen reduction that all feel is necessary done, that 

3 could get reconsidered. We have two, at least two, more permit 

cycles. 

One thing that is unfortunate—— 

Chairman ISSA. When you say ‘‘permit cycles,’’ how long are 

they? 

Mr. SPALDING. They are five years, and these permits are overdue. It’s one of the issues that is not a good thing, that your permits are overdue. I guess it makes us vulnerable to 60-day notices 

anytime. 

Mr. GUINTA. No, I know. But—so the 3—and the chairman was 

trying to make this point, and I think it’s important for the record. 

Mr. SPALDING. Right. 

Mr. GUINTA. Because a lot of people in New Hampshire feel very, 

very strongly about Great Bay. Some want it cleaned up, you know, 

quicker than others. Some people are more concerned about the financial component. 

Mr. SPALDING. Right. 

61 

Mr. GUINTA. But I think most people would agree we have to get 

it cleaned up. 

Getting to that requirement of 3, the e-mail exchange between 

two EPA employer—— 

Mr. SPALDING. Yes. 

Mr. GUINTA. Excuse me, employees, does concern me. I mean, tell 

me if I should not be concerned. 

When two EPA employees specifically state that either 5 mg per 

liter, with CLF’s agreement not to appeal, or 3—that’s what concerns me. What is driving, you know, this standard? Is it an agreement with CLF not to sue? Or is it what people in my state and 

these contiguous communities ultimately want to try to come to an 

agreement with, that it’s in the best interest of their community? 

Mr. SPALDING. Well, I think what you’re seeing here is, we do 

look at legal risk related to permits from all sides. Obviously, we’re 

concerned about the communities and their appeals, potentially. 

That’s why we’ve been meeting with them at length. And then we 

need to be concerned about appeals from the other side. 

Mr. GUINTA. So you also meet with CLF? 

Mr. SPALDING. We from time to time meet with CLF. Not specifically on a permit like we would with a community. 

Mr. GUINTA. Have you met with CLF on this? 

Mr. SPALDING. I have not. 

Mr. GUINTA. Have any EPA employees? 

Mr. SPALDING. I’d have to check with staff. I don’t think they 

have had a specific conversation about this. I think they’ve expected CLF to participate like everyone else, through the public 

comment period. 

Mr. GUINTA. Could you within the five-day period after today’s 

hearing include an answer to that question? 

Mr. SPALDING. I’ll ascertain that. Absolutely. Absolutely. 

Mr. GUINTA. Well, my time has expired. I appreciate the chairman’s willingness to yield, and I yield back. 

Chairman ISSA. Well, you gave us this hearing, so if you need 

more time, you certainly can have it. 

As I promised, there will be something else. 

Mr. SPALDING. Good. 

Chairman ISSA. I’ve worked in engineering for most of my career, 

but I’m a trained businessman. And so, thinking about Sister Peggy’s accounting class in college, if I did my math right, if we went 

from 30 parts to 3 parts, but we’re only affecting 30 percent of the 

discharge and the other 70 percent remains where it is, my arithmetic says that whatever level of discharge you have today, even 

after they go down by tenfold in some cases, you’re still going to 

have 76 percent as much flowing into the estuary as you have 

today. Isn’t that roughly right? 

Mr. SPALDING. I think you’re definitely right, knowing your 

skills. 

Chairman ISSA. So as we’re trying to balance what share is borne 

by five communities and what is necessary to clean this up, if I 

read correctly, basically you’re going to get 70 percent as much pollution if all five communities just ship their water to Tacoma, 

Washington. 

62 

So one of our problems here is, at 70 percent the amount of 

phosphates and nitrogen going into the water, you may still not 

have a clean estuary. Isn’t that true? 

Mr. SPALDING. Yeah. If no other action is taken, I think your conclusion is correct. 

Chairman ISSA. Okay. So as we try to look at our guidance, if 

you will, for future legislation, including Mr. Guinta’s, what I see 

here is, fingers in the dike are good if there’s only a few holes. In 

this case, it looks a little bit like the thing I get my spaghetti dried 

with; that if these cities comply fully at 8 percent, then 5, then 3, 

you may still have an estuary that’s not able to support what the 

people in this community and the surrounding 40-some communities want. 

Mr. SPALDING. That’s right. And I’d add to your concern. If population keeps growing as it has been, this action would perhaps have 

less effect. 

Chairman ISSA. So as we’re looking at guidance to ourselves and, 

quite frankly, Senator Shaheen, all of the elected officials that go 

to Washington, possible guidance to the State for their share, you 

said that, if you will, these are the folks that are under—and I 

don’t want to say your thumb in an unfair way, but they’re under 

your jurisdiction. The others are effectively not. And would it be 

fair to say that we need to look to New Hampshire’s legislature and 

ask, and to other communities, ‘‘What are you going to do to help 

us with the other 70 percent?’’ 

Mr. SPALDING. Absolutely. Absolutely. 

Chairman ISSA. Well, let me ask you a rhetorical question. 

If all of 100 percent suddenly went to 8—in other words, all 

the—you know, we all know that septics sometimes leak conveniently, and no one addresses them because they’re not giving them 

a problem, but they’re flowing right into the water. 

Mr. SPALDING. Exactly. 

Chairman ISSA. If all of that was cleaned up, you might, in fact, 

have a very healthy estuary at 8 or 10, because you’re, of course, 

now dealing with 100 percent of the problem, not just 30. Is that 

true? 

Mr. SPALDING. You might well—I think there has been a conversation about further study. I would presume that would be a 

good thing to do to sort that out. 

Chairman ISSA. Okay. Because part of what we were hoping to 

do, and Mr. Guinta as somebody who has served here as a city 

mayor and obviously knows the state, you know, we’re looking at 

providing guidance both ways: guidance to ourselves in our federal 

role, but also to the state. 

And you mentioned the cycles. Let me ask just one last question, 

or last type of question. 

Mr. Hall, and to a certain extent Mr. Rice, but Mr. Hall particularly, he basically said that your process bypassed an awful lot of 

requirements of notice and hearings and so on. If that’s the case, 

are you concerned that no matter what number you reach, if you 

reach a number that one side or the other doesn’t have, that it’s 

not defensible under federal law? In other words, you’re going to 

end up in a suit either way? 

63 

Mr. SPALDING. He was talking about two processes: the process 

to establish a state water quality standard and our process to establish a permit on the 3, on communities we’ve issued draft permits for. These are distinct. Most of his criticism was at the state 

water quality standard process. 

We feel we followed the procedures to the letter for putting forth 

these permits. We looked at the narrative water quality standard. 

Not the numeric, the narrative. We looked at the preponderance of 

evidence and came forth with a judgment. 

Am I concerned? I’m always concerned when someone raises 

those issues. I think there’s ways to arbitrate those issues. He’s 

written a letter to my program, the water program, of course, the 

Inspector General, who we pay very close attention to EPA. I 

think—— 

Chairman ISSA. Our committee does, too. There are fingers and 

tentacles. 

Mr. SPALDING. We stay very—as I said, pay very close attention. 

So those will be, I think, fairly considered about this issue of 

state water quality standard-setting. But on the permit, which is 

what I’m responsible for, I think we’re in a process where public 

comment is being sought, and then we’re going to have to look at 

it all and issue a response to all these comments, and we need to 

be accountable for the comments we give forth and make a judgment. But, again, I have not waited for that. We’ve been in conversation with community on how to stretch this out to protect 

their financial health, and we want to continue doing that. 

At the end of the day, you made the great point. This has to be 

a whole watershed approach. These permits are just one piece. If 

that whole watershed approach comes into place, clearly these permits can be looked at again, 5 years, 10 years down the line. 

Chairman ISSA. Let me ask you one final question. Do you have 

the authority to work with a schedule that is somewhat closer to 

what each of these individuals, particularly the mayor, talked 

about? 

In other words, they put out bonds for 20 years. They want to 

amortize all or part of a facility for at least 10 before they tear it 

down and do it again, recognizing the 1997 facility could potentially 

become abandoned—— 

Mr. SPALDING. Yeah. Absolutely. 

Chairman ISSA. Unless they’re able to use it as a base for upgrade. 

Do you have the authority to work with schedules that would be 

10 years before the next step, 5 years before the next step, and so 

on? 

Mr. SPALDING. We do. We have schedules like that underway. 

The most difficult issue, as you can appreciate, coming from the 

Midwest—combined sewer problems. Very challenging. We spread 

those out. We need to make incremental progress. 

I think what we’re trying to say right now is we have to do something in the short term, or move forward on Great Bay. And that’s 

what we’re trying to do. 

Chairman ISSA. Well, thank you. 

Mr. Guinta, do you have anything else? 

Mr. GUINTA. If I could have one final comment to that end. 

64 

Chairman ISSA. Of course. 

Mr. GUINTA. I just want to reiterate for the record that Senator 

Shaheen, Senator Ayotte, Governor Lynch, and myself have all submitted letters essentially saying the same thing: that we want to 

support the communities; we hear their concerns; we hear the 

EPA’s concerns. I hear, and we’ve all heard the other groups’, regional local groups’ concerns. But the four elected people that I 

mentioned have all asked for and recommended additional time. 

And my hope would be that the AMP is something that is looked 

at with great optimism and opportunity to find that common 

ground. 

There are other communities that are affected, who I think support the AMP as well. And if there is some opportunity to try to 

find a way to get to the AMP without the implicit mandate, that 

at some point, without empirical data, getting to that 3, I mean, 

give them some time to try to assess. 

Mr. SPALDING. Yeah. 

Mr. GUINTA. If they do the 8, you know, what that would accomplish. 

Mr. SPALDING. Right. We will look at ways to do that. I appreciate the input. Honestly, the input has led us to connect with 

Portsmouth, and we’ve discussed actually a final permit there at 

a—well, a draft, but a draft permit there at the 8-milligram-perliter level, because they are in a different situation. 

I want to make sure everyone understands. Every facility is different—— 

Mr. GUINTA. Oh, yeah, they are. 

Mr. SPALDING. In the context of this. 

So we’re trying hard to be as flexible as we can. So I will—we 

will look at that very closely. 

Mr. GUINTA. And I think there’s bipartisan support amongst the 

delegation and the governor, you know, for that. And I think everyone is trying to balance that—— 

Mr. SPALDING. I hear that. 

Mr. GUINTA.—the mitigation needs, as the community does support, but also the costs approach as well. 

Mr. SPALDING. Right. I hear that. 

Mr. GUINTA. So I appreciate that consideration. 

Mr. SPALDING. Thank you. 

Chairman ISSA. Thank you. 

Thank you, Mr. Guinta. I appreciate your bringing this to our attention and bringing us up here. I want to note that the food, the 

accommodations were excellent. The weather, so-so. 

Mr. SPALDING. Not so good today. 

Well, thank you for visiting the region. I appreciate it. 

Chairman ISSA. Well, that’s what field hearings are for. If we 

stay in Washington and ask you to come, we get one selection. For 

all the men and women who came here, hopefully this was an opportunity for you to see what you would otherwise not necessarily 

have been able to see in Washington. 

So I want to thank you for your patience and for your participation. We stand adjourned. 

[Whereupon, at 11:02 a.m., the committee was adjourned.] 

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