[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
H.R. 4817, A BILL TO AMEND THE SURFACE MINING CONTROL AND RECLAMATION
ACT OF 1977 TO CLARIFY THAT UNCERTIFIED STATES AND INDIAN TRIBES HAVE
THE AUTHORITY TO USE CERTAIN PAYMENTS FOR CERTAIN NON-COAL RECLAMATION
PROJECTS.
=======================================================================
LEGISLATIVE HEARING
before the
SUBCOMMITTEE ON ENERGY AND
MINERAL RESOURCES
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
Thursday, September 23, 2010
__________
Serial No. 111-65
__________
Printed for the use of the Committee on Natural Resources
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
or
Committee address: http://resourcescommittee.house.gov
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580421 PDF WASHINGTON : 2010
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COMMITTEE ON NATURAL RESOURCES
NICK J. RAHALL, II, West Virginia, Chairman
DOC HASTINGS, Washington, Ranking Republican Member
Dale E. Kildee, Michigan Don Young, Alaska
Eni F.H. Faleomavaega, American Elton Gallegly, California
Samoa John J. Duncan, Jr., Tennessee
Frank Pallone, Jr., New Jersey Jeff Flake, Arizona
Grace F. Napolitano, California Henry E. Brown, Jr., South
Rush D. Holt, New Jersey Carolina
Raul M. Grijalva, Arizona Cathy McMorris Rodgers, Washington
Madeleine Z. Bordallo, Guam Louie Gohmert, Texas
Jim Costa, California Rob Bishop, Utah
Dan Boren, Oklahoma Bill Shuster, Pennsylvania
Gregorio Sablan, Northern Marianas Doug Lamborn, Colorado
Martin T. Heinrich, New Mexico Adrian Smith, Nebraska
Ben Ray Lujan, New Mexico Robert J. Wittman, Virginia
George Miller, California Paul C. Broun, Georgia
Edward J. Markey, Massachusetts John Fleming, Louisiana
Peter A. DeFazio, Oregon Mike Coffman, Colorado
Maurice D. Hinchey, New York Jason Chaffetz, Utah
Donna M. Christensen, Virgin Cynthia M. Lummis, Wyoming
Islands Tom McClintock, California
Diana DeGette, Colorado Bill Cassidy, Louisiana
Ron Kind, Wisconsin
Lois Capps, California
Jay Inslee, Washington
Joe Baca, California
Stephanie Herseth Sandlin, South
Dakota
John P. Sarbanes, Maryland
Carol Shea-Porter, New Hampshire
Niki Tsongas, Massachusetts
Frank Kratovil, Jr., Maryland
Pedro R. Pierluisi, Puerto Rico
James H. Zoia, Chief of Staff
Rick Healy, Chief Counsel
Todd Young, Republican Chief of Staff
Lisa Pittman, Republican Chief Counsel
------
SUBCOMMITTEE ON ENERGY AND MINERAL RESOURCES
JIM COSTA, California, Chairman
DOUG LAMBORN, Colorado, Ranking Republican Member
Eni F.H. Faleomavaega, American Don Young, Alaska
Samoa Louie Gohmert, Texas
Rush D. Holt, New Jersey John Fleming, Louisiana
Dan Boren, Oklahoma Jason Chaffetz, Utah
Gregorio Sablan, Northern Marianas Cynthia M. Lummis, Wyoming
Martin T. Heinrich, New Mexico Doc Hastings, Washington, ex
Edward J. Markey, Massachusetts officio
Maurice D. Hinchey, New York
John P. Sarbanes, Maryland
Niki Tsongas, Massachusetts
Nick J. Rahall, II, West Virginia,
ex officio
------
CONTENTS
----------
Page
Hearing held on Thursday, September 23, 2010..................... 1
Statement of Members:
Costa, Hon. Jim, a Representative in Congress from the State
of California.............................................. 1
Prepared statement of.................................... 4
Lamborn, Hon. Doug, a Representative in Congress from the
State of Colorado.......................................... 4
Prepared statement of.................................... 6
Statement of Witnesses:
Antonio, Hon. John E., Sr., Governor, Pueblo of Laguna....... 21
Prepared statement of.................................... 23
Owens, Glenda, Deputy Director, Office of Surface Mining
Reclamation and Enforcement, U.S. Department of the
Interior................................................... 11
Prepared statement of.................................... 12
Pineda, Loretta, Director, Division of Reclamation, Mining
and Safety, Colorado Department of Natural Resources....... 15
Prepared statement of.................................... 17
Teague, Hon. Harry, a Representative in Congress from the
State of New Mexico........................................ 7
Prepared statement of.................................... 8
Additional materials supplied:
List of documents retained in the Committee's official files. 33
LEGISLATIVE HEARING ON H.R. 4817, A BILL TO AMEND THE SURFACE MINING
CONTROL AND RECLAMATION ACT OF 1977 TO CLARIFY THAT UNCERTIFIED STATES
AND INDIAN TRIBES HAVE THE AUTHORITY TO USE CERTAIN PAYMENTS FOR
CERTAIN NON-COAL RECLAMATION PROJECTS.
----------
Thursday, September 23, 2010
U.S. House of Representatives
Subcommittee on Energy and Mineral Resources
Committee on Natural Resources
Washington, D.C.
----------
The Subcommittee met, pursuant to call, at 10:05 a.m. in
Room 1334, Longworth House Office Building, Hon. Jim Costa
[Chairman of the Subcommittee] presiding.
Present: Representatives Costa, Heinrich, and Lamborn.
STATEMENT OF HON. JIM COSTA, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF CALIFORNIA
Mr. Costa. The Subcommittee on Energy and Mineral Resources
will now come to order. Our subject matter this morning is H.R.
4817, a bill that would amend the Surface Mining Control and
Reclamation Act of 1977 and to clarify that uncertified states
and Indian tribes have authority to use certain payments for
certain non-coal reclamation projects. This is an issue that
has been around for awhile. It affects many states,
particularly in the West, as we try to deal with reclamation
efforts.
There is, I think, bipartisan support to try to make the
changes that are reflected in this legislation. It is not the
first time such legislation has been introduced. What the Chair
will do this morning is first hear a fellow colleague, a
witness, Congressman Teague from New Mexico, who will speak on
the measure that has been introduced, and then we have a panel,
and we will follow the same process that we always do with both
the first witness and the other panel members, five minutes for
comments, and then we will follow up with questions or comments
by members of the Subcommittee.
Before we begin with our first witness, our colleague, who
we are pleased to have here, I would be remiss if I didn't
appropriately recognize two people that are no longer going to
be with us. I don't know whether or not this is the last
Subcommittee hearing that we will have in this Congress. It
quite possibly could be, and the fact is that all the members
of this Subcommittee, all the members of the Congress, work
very hard, but we work very hard with our staff, and the staff
of the committees and subcommittees really, I think, make up
the heart and soul of any legislative body.
Two individuals here that I have had the pleasure to work
with since I came to Congress have done just a tremendous job
in terms of their passion, in terms of their hard work, in
terms of their tenacity for detail and, probably most
importantly, I guess sometimes is their propensity to put up
with people like myself. I am talking about Members of
Congress. It is clearly important that we recognize Deborah
Lanzone, who sent out a notice a few weeks ago that she was
going to make this her swan song.
I guess, Deborah, I wore out your patience, but the fact is
you have worked for a number of Congresses on this Committee.
You have also worked in previous administrations in the
Department of the Interior. I know how much you care about good
public policy. I know how focused you are in trying to work in
a bipartisan manner. I know that you have always, always tried
to put forth good public policy in an objective way. I have
really appreciated that hard work even when, on occasion, we
have disagreed; and I have learned and I have grown as a result
of your hard work and your input. I know other members of the
Subcommittee and the full Committee have as well.
Wendy, you too are departing. Deborah Lanzone and Wendy Van
Asselt are part of a team that has allowed this Chair and this
Subcommittee to work at a level that I think reflects the best
that we have in Congress, so Steve, I don't know what we are
going to do without these two people when they are gone, but we
are in trouble, not that any of us are replaceable. The fact
is, Wendy and Deborah, on behalf of members of the
Subcommittee, I want to thank you for a job well done.
I want to thank you for always being there for us, and on
behalf of the Subcommittee, I want to wish both of you the very
best, you and your families and friends, as you pursue future
endeavors. I just ask that you don't forget us, that you come
by and you continue to bless us with your goodwill and your
hard work. I wish you every success in your future endeavors,
clearly, and I will defer to the Ranking Member here at this
time.
Mr. Lamborn. Mr. Chairman, I want to, before I say anything
else, echo your remarks about the gratitude of the members of
this Committee for the service of Ms. Lanzone. When it is done
well, many Americans don't know the service given by the staff
here on Capitol Hill. The personnel and Committee staff often
work long hours with little of the recognition that we receive
as Members for their hard work. I know that because of her
tenure on the Hill and the challenges this Committee has faced
over the last year, that she has served your members and this
Committee well.
In closing, I would like to share one quick story. On
Inauguration morning, before having coffee at the White House,
First Lady Michelle Obama handed Laura Bush a present. Inside
was a leather-bound journal inscribed with a quote from Louis
L'Amour, the great western writer, and the quote said, ``There
will come a time when you believe everything is finished, yet
that will be the beginning,'' so I would like to extend thanks
to her for her service on behalf of all the Republican members
of the Committee, and I wish her the very best on her new
beginning.
[Applause.]
Mr. Lamborn. And I would like to thank Wendy for all of her
hard work for this Committee and wish her the best of luck in
her new adventures in Seattle, Washington.
Mr. Costa. Thank you, Ranking Member Lamborn, for those
kind words. Deborah, Wendy, we thank you very much. If Jim Zoia
hadn't been in your way, who knows what--I am sorry, Jim.
[Laughter.]
Mr. Costa. We do really appreciate the good work that
Deborah and Wendy have done, and we are going to miss you. That
is for sure, so thank you so very much. Doug and I don't have a
gold watch to give, but if we did, it is there in spirit and
heart and clearly we know you are going to continue to do good
work. Thank you so much really.
Let me begin now with the opening statement, and then the
Ranking Member will make his opening statement, and then we
will get to the order of the day with Mr. Teague's comments on
the measure.
As I said at the outset, we are here about an important
measure that involves public health and safety, and that is the
cleanup of abandoned mines. Mr. Teague introduced this measure
with Mr. Lujan and Mr. Heinrich, who are part of the
Subcommittee. Mr. Teague will explain the bill. Let me make a
few remarks quickly. This isn't the first time that the
Subcommittee has examined the problems with abandoned mines. We
held hearings here in Washington and in Sacramento within the
last several years. A former colleague of ours had a bill that
addressed this.
In 2008, the Government Accountability Office estimated
that there are across the country 161,000 abandoned hard rock
mines in the West. In California, we have about 40,000 of them.
I mean, it goes all the way back to the gold rush, of course,
and the challenge we have is that there aren't a lot of
resources to clean up these mines. That is the bottom line, and
that is why funds were provided for states and Indian tribes by
the Department of the Interior's Office of Surface Mining and
Reclamation Enforcement that have been important, but like a
lot of efforts, it has not been enough.
The Office of Surface Mining, under the amendments of the
Surface Mining Control and Reclamation Act of 1977, can provide
grants and clean up sites for hard rock sites as well as coal
mining sites. Historically, the Office of Surface Mining has
provided more than $3 billion since that time to clean up
environmental hazards that have affected over 300,000 acres.
Eleven states and tribes have used roughly $200 million of
those funds to clean up hard rock sites across the country.
However, in recent years, the Department of the Interior
policies have restricted the use of some of the abandoned mine
land monies asserting that they need to be directed only for
coal site reclamation. I will not argue that cleaning up those
coal site mines is important, but we are trying to get some
fairness. We are trying to get some equity here. H.R. 4817
would ensure that uncertified states can use all of the grants
and payments they receive for either coal site reclamation or
to clean up hazard sites for non-coal sites.
This bill doesn't change or increase the amount of funding
distributed to states. That remains the same were this measure
to become law. I think the Subcommittee has consistently heard
testimony that one of the most important things we can do to
protect the public from abandoned mines is to be smart about
how we prioritize the cleanup. That is one of the things I have
argued about in California. While we have 40,000 sites in
California, they don't all pose the same hazard, and we need to
do a better job in prioritizing that.
Some obviously are far more hazardous than others, and
since we don't have enough money to do all the cleanup, it is
just common sense, as my mother used to say, that we
prioritize, that we get the best bang for our dollar, and I
think that is what this bill is trying to do. I look forward to
hearing the testimony from our witnesses, Mr. Teague, and then
the second panel. With that, I will defer to the Ranking
Member, Mr. Lamborn from Colorado, for any statement he may
have.
[The prepared statement of Chairman Costa follows:]
Statement of The Honorable Jim Costa, Chairman,
Subcommittee on Energy and Mineral Resources
Today we will consider a bill that addresses an important public
health and safety issue: the cleanup of abandoned mines. My colleague,
Mr. Teague, introduced H.R. 4817 with Mr. Lujan and Mr. Heinrich; I'll
let Mr. Teague explain the bill, including its importance to his fine
state of New Mexico. However, I do want to make a few remarks, drawing
on my experience chairing this Subcommittee's examination of abandoned
mine problems at hearings here in Washington and in Sacramento. In
2008, the Government Accountability Office estimated that there are at
least 161,000 abandoned hardrock mines in the West. California alone
has 40,000 sites that threaten public health and safety. There are very
few sources of funding for the cleanup of those dangerous hardrock
mines. That's why the funds provided to States and Indian tribes by the
Department of the Interior's Office of Surface Mining Reclamation and
Enforcement have been so important. The Office of Surface Mining, under
amendments to the Surface Mining Control and Reclamation Act of 1977,
can provide grants to clean up sites used for hardrock sites as well as
coal mining sites. Historically, the Office of Surface Mining has
provided more than $3 billion to eliminate safety and environmental
hazards on more than 300,000 acres. 11 states and several tribes have
used roughly $200 million of those funds to clean up hardrock sites.
However, in recent years, Department of Interior policies have
restricted use of some Abandoned Mine Land monies, asserting they must
be used only for coal site reclamation. H.R. 4817 would ensure that
uncertified states can use all the AML grants and payments they receive
for either coal site reclamation or to clean up hazardous non-coal
sites. This bill does not change or increase the amount of funding
distributed to the States. This Subcommittee has consistently heard
testimony that one of the most important things we can do to protect
the public from abandoned mines is to be smart about prioritizing sites
for cleanup, and to direct limited resources to those places of
greatest need--regardless of what mineral was mined at the site. I
think that's what this bill is trying to do. That seems like common
sense. I look forward to hearing from our witnesses on the details of
this bill.
______
STATEMENT OF HON. DOUG LAMBORN, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF COLORADO
Mr. Lamborn. Thank you, Mr. Chairman, and I want to thank
you for holding this hearing today. Before we focus on today's
hearing, I would like to take just a moment to raise a concern
about the erosion of this Committee's jurisdiction. As you
know, Mr. Chairman, this Subcommittee holds jurisdiction over
the nation's energy and mineral resources and the majority of
the programs under the United States Geological Survey. Today,
the Science and Technology Committee will be marking up
legislation addressing the serious issue of rare earth mineral
availability, manufacture of the products utilizing rare earth
minerals, and fostering domestic research into new uses for
rare earth minerals.
Unfortunately, this Committee hasn't had a chance to
address this issue during this Congress. However, the fact that
we haven't addressed this issue doesn't mean that other
committees have free rein to abscond with our areas of
jurisdiction. I am concerned that the Science Committee bill
being debated today establishes within the Department of Energy
a new center whose duties are clearly duplicative of the
operations of the U.S. Geological Survey.
I would hope that before the Science Committee bill reaches
the House Floor that this Committee will assert its
jurisdiction and have an opportunity to examine this
duplication, direct the valuable resources of the American
people to the agencies with real expertise and protect the
jurisdiction of this Committee. Now, that issue stated, today's
hearing will examine H.R. 4817 introduced by our colleague,
Representative Teague of New Mexico.
This bill clarifies the original Congressional intent of
Section 409 of the Surface Mining Control and Reclamation Act
that allows states and tribes to use SMCRA AML funds to address
high priority coal and non-coal AML sites. The Department of
the Interior reinterpreted the intent of Congress for allowable
uses of the Section 409 permits through a Solicitor's Opinion
and their Final Rule for the 2006 amendments to SMCRA to
prohibit the use of Section 409 and prior balance replacement
funds for non-coal projects.
That is why I wish that this Committee could have addressed
this legislation in the 110th Congress when it was H.R. 5661
introduced by the former Ranking Member of this Committee,
Representative Steve Pearce of New Mexico. In some ways, I wish
this Committee would have addressed broader, responsible mining
law reform for hard rock cleanup like H.R. 3201, which I
introduced to address mining law reform, or H.R. 3203, which I
introduced to provide Good Samaritan protections for the
cleanup of abandoned mines.
The Good Samaritan legislation, in particular, would have
provided an incentive for private companies, municipalities and
non-profit organizations to work on the cleanup of abandoned
hard rock mines creating private-sector jobs while improving
the quality of the environment and addressing safety issues
associated with abandoned mine lands. Yet, it wasn't heard
before this Committee. While this legislation before the
Committee today may be a piece of the puzzle in addressing our
non-coal abandoned mine land issues in the West, it also gives
a reminder of the commitment of this Administration to
stripping the funding from certified states and tribes.
I know we will hear in testimony again today that this
Administration believes it is more important to eliminate the
funding to the certified states rather than honor the hard-
fought compromise reached in 2006 that requires the Federal
Government to send the certified states their 50 percent share
of the AML fee levied on coal production. It is the states'
money, and they should be able to use it as they see fit. I
will close, Mr. Chairman, by saying that this is likely our
last hearing of this Congress. I want to thank you for your
leadership over the last two years.
Although we have had a few disagreements, I have enjoyed
working together in addressing one of the most challenging
years in oil and gas policy in a generation. Once again, I want
to thank you for holding this hearing. I welcome our witnesses,
and I look forward to their testimony. Mr. Chairman, I yield
back.
[The prepared statement of Mr. Lamborn follows:]
Statement of The Honorable Doug Lamborn, Ranking Republican,
Subcommittee on Energy and Mineral Resources
Thank you, Mr. Chairman; I want to thank you for holding this
hearing today.
RARE EARTH'S
Before we focus on today's hearing I would like to take a second to
raise a concern about the erosion of this Committee's jurisdiction. As
you know Mr. Chairman, this Subcommittee holds jurisdiction over the
Nation's energy and mineral resources and the majority of the programs
under the United States Geological Survey. Today, the Science and
Technology Committee will be marking up legislation addressing the
serious issue of rare earth mineral availability, manufacture of the
products utilizing rare earth minerals and fostering domestic research
into new uses of rare earth minerals. Unfortunately, this committee
hasn't had a chance to address this issue during this Congress,
however, the fact that we haven't addressed the issue doesn't mean that
other Committee's have free reign to abscond with our areas of
jurisdiction.
I am concerned that the Science Committee bill being debated today
establishes within the Department of Energy a new Center whose duties
are clearly duplicative of the operations of the U.S. Geological
Survey. I would hope that before the Science Committee bill reaches the
House floor this committee will assert their jurisdiction and have an
opportunity to examine this duplication, direct the valuable resources
of the American people to the agencies with real expertise, and protect
the jurisdiction of this Committee.
LEGISLATION HISTORY
That issue settled, today's hearing will examine H.R. 4817,
introduced by our colleague Rep. Teague of New Mexico. This bill
clarifies the original Congressional intent of section 409 of the
Surface Mining Control and Reclamation Act (SMCRA) that allows states
and tribes to use SMCRA AML funds to address high priority coal and
non-coal AML sites. DOI reinterpreted the intent of Congress for
allowable uses of the section 409 permits through a Solicitor's Opinion
and their final Rule for the 2006 amendments to SMCRA to prohibit the
use of section 409 and ``prior balance replacement'' funds for non-coal
projects, that is why I wish this Committee could have addressed this
legislation in the 110th Congress when it was H.R. 5661, introduced by
the former Ranking Member of this Committee, Rep. Steve Pearce of New
Mexico.
In some ways, I wish this Committee would have addressed broader
responsible mining law reform for hard rock clean up like H.R. 3201
which I introduced to address mining law reform. Or H.R. 3203, which I
introduced, to provide ``Good Samaritan'' protections for the cleanup
of abandoned mines. The good sam legislation in particular would have
provided an incentive for private companies, municipalities and non-
profit organizations to work on the clean-up of abandoned hard rock
mines creating private sector jobs while improving the quality of the
environment and addressing safety issues associated with abandoned
mined lands and yet it wasn't heard before this committee.
While this legislation before the Committee today may be a piece of
the puzzle in addressing our non-coal abandoned mine land issues in the
west. It also gives us a reminder of the commitment of this
administration to stripping the funding away from certified states and
tribes. I know we will hear in testimony again today that this
administration believes it is more important to eliminate the funding
to the certified states rather than honor the hard fought compromise
reached in 2006 that requires the federal government to send the
certified states their 50 percent share of the AML fee levied on coal
production. It is the states' money and they should be able to use it
as they see fit..
CLOSE
I will close Mr. Chairman by saying that as this is likely our last
hearing of this Congress, I want to thank you for your leadership over
the last two years although we have had our disagreements, I have
enjoyed working together in addressing one of the most challenging
years in oil and gas policy in a generation.
Once again, I want to thank you for holding this hearing, I welcome
our witnesses and I look forward to hearing their testimony. Mr.
Chairman I yield back.
______
Mr. Costa. Thank you very much, gentleman from Colorado. I
appreciate your comments and the good work that you have done
as a member of the Subcommittee, the Ranking Member and the
efforts that you have made toward bipartisan cooperation. You
are correct. It has been a difficult year in our country for
resource-related issues. Let us begin now with our first
witness. We would like to recognize The Honorable Harry Teague
from the great State of New Mexico, who is the sponsor of this
legislation, for his testimony.
The Chairman is somewhat flexible, but we would still like
to apply the same rules, Congressman Teague, to your five-
minute statement, and then we will go to any comments or
questions after that. You know the rules. Thank you.
STATEMENT OF HON. HARRY TEAGUE, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NEW MEXICO
Mr. Teague. Thank you. Thank you, Chairman Costa, and
members of the Committee for holding this important hearing
today on H.R. 4817, legislation to make Surface Mining Controls
and Reclamation Act, or SMCRA, funding eligible for the
remediation of old uranium mines and mills in New Mexico and
other states. I am proud to introduce this bill with Senator
Jeff Bingaman and my New Mexico House colleagues, Congressmen
Lujan and Heinrich, both members of this Committee.
As you know, Department of the Interior regulations
affected after passage of the 2006 amendments to SMCRA,
currently restrict New Mexico from using the SMCRA funding for
uranium site cleanup. According to the current interpretation
of the law, SMCRA is only available for coal site cleanup in
New Mexico. New Mexico disagrees with this interpretation and
would like to use the SMCRA funds for uranium cleanup, which is
a bigger need in our state.
Despite the efforts of our delegation, the Department of
the Interior has refused to allow for more flexibility in the
use of SMCRA funds for states that aren't certified as having
completed coal site cleanup. Here are the facts about my bill:
New Mexico currently has $14.5 million in SMCRA funds
available; 137 uranium sites in New Mexico need remediation;
the cleanup of the sites would create on average 10 jobs per
site. This is a common sense win-win bill for my State of New
Mexico, would address the legacy of contamination at sites
around New Mexico, and would create over 1,000 good jobs in
rural New Mexico doing it.
Passing H.R. 4817 will help people in New Mexico, in Cibola
County and McKinley County, and across the state. That is why I
am proud to join with the delegation to bring this bill
forward. It is the right thing to do for the people that we
represent. My bill is supported by the New Mexico State
Legislature, New Mexico Mining Association, the City of Grants,
McKinley County Chamber of Commerce, the Association of
Commerce and Energy, the Village of Milan and McKinley County,
among many others.
I also look forward to hearing the testimony of my friend,
Governor Antonio of the Laguna Pueblo. I thank the Committee
for their attention and urge them to bring this legislation to
the House Floor for a vote as soon as possible. Thank you.
[The prepared statement of Mr. Teague follows:]
Statement of The Honorable Harry Teague, a Representative in Congress
from the State of New Mexico
Thank you Chairman Rahall, Chairman Costa, and members of the
committee for holding this important hearing on H.R. 4817, legislation
to make Surface Mining Control and Reclamation Act, or SMCRA, funding
eligible for the remediation of old uranium mines and mills in New
Mexico and other states. I was proud to introduce this bill with
Senator Jeff Bingaman and my New Mexico House colleagues, Congressmen
Lujan and Heinrich, both members of this committee.
As you know, Department of Interior regulations affected after
passage of the 2006 amendments to SMCRA currently restrict New Mexico
from using the SMCRA funding for uranium site clean-up. According to
current interpretation of the law, SMCRA is only available for coal
site clean-up in New Mexico.
New Mexico disagrees with this interpretation and would like to use
the SMCRA funds for uranium clean up, which is a bigger need in our
state. Despite the efforts of our delegation, the Department of
Interior has refused to allow for more flexibility in the use of SMCRA
funds for states that aren't certified as having completed coal site
cleanup.
Here are the facts about my bill.
New Mexico currently has $14.5 million in SMCRA funds
available
137 uranium sites in New Mexico need remediation
The cleanup of the sites would create on-average 10
jobs per site.
This is a common-sense, win-win bill for my state of New Mexico. We
address the legacy of contamination at sites around New Mexico. And we
create over 1,000 good jobs in rural New Mexico doing it.
Passing H.R. 4817 will help people in New Mexico, in Cibola County
and McKinley County and across the state. That's why I'm proud to join
with the delegation bring this bill forward: It's the right thing to do
for the people we represent.
My bill is supported by the New Mexico State Legislature, the New
Mexico Mining Association, the City of Grants, the McKinley County
Chamber of Commerce, the Association of Commerce and Industry, the
Village of Milan, and McKinley County, among many others.
I also look forward to hearing the testimony of my friend Governor
Antonio of the Laguna Pueblo.
I thank the committee for their attention and urge them to bring
this legislation to the House floor for a vote as soon as possible.
______
Mr. Costa. Very impressive, Congressman Teague. I was
obviously going to give you some flexibility within the five-
minute rule, but I appreciate your concise testimony and to the
point. Let me just ask a general question and some other
members have others. Of course, we have our other panel to get
to. In New Mexico, as you stated, there is a particular focus,
and I know Congressman Pearce at the time had informed me of
that as well with uranium.
Uranium was a very important and still is a vital mineral
to our defense and energy needs in this country, and New Mexico
has a large uranium source in that. In California, as I noted,
we have 40,000 abandoned mines, a lot go back to the gold rush
era, but they vary. Has New Mexico taken, and with your
delegation and Senator Bingaman, an effort to prioritize how
that cleanup is?
I guess I am trying to understand because a lot of it was a
part of our energy but also our strategic needs for national
defense, where the role and the responsibility of the Federal
Government is on cleanup. I mean, is there a nexus there? Is it
all just in the hands of New Mexico, or are some of these
cleanup sites still the responsibility of the Federal
Government? I guess I am trying to understand how that
prioritization thing has been developed within your state.
Mr. Teague. No, sir, Mr. Chairman. I think you stated it
very well. I mean, I know that with California having 40,000 to
the 137 that we have don't seem like very many, but it really
is a big problem in those 137 sites, but also as you said, each
site poses a different level of danger, and there has been some
prioritizing of what needs to be done where. I personally think
that for the energy needs of our country going forward that we
are going to need the uranium to create electricity with
nuclear energy.
I think before we can move forward in these areas with
that, I think we are going to have to separate the legacy
problems that we have at these 137 sites from any new business
that we are trying to do in the future, but it is extremely
important, and I think it is the U.S. government's
responsibility to clean these 137 sites.
Mr. Costa. So you are saying then in all 137 cases in New
Mexico, you believe it is the Federal Government's
responsibility to pursue the cleanup?
Mr. Teague. I believe that these should offer the
assistance all the way through, and of the 137, as you said
about your 40,000, some of them don't pose that much risk. They
are going to be minor to clean up, but I do think that we need
the support and the help of the Federal Government to clean
them up, yes, sir.
Mr. Costa. I want to defer to the gentleman here first. Did
you have a point of order?
Mr. Heinrich. I just wanted to ask to return to that when
he is done with his testimony because I want to add a few
things to what the Congressman from southern New Mexico said.
Mr. Costa. Sure. OK. I will defer to the Ranking Member
here, and then we will go through the regular order. Mr.
Lamborn?
Mr. Lamborn. Thank you, Mr. Chairman. This won't take long.
You have done a good job of explaining the bill, so I don't
have any questions at this point, and I will look forward to
further testimony through the rest of the morning. Thank you
for being here.
Mr. Teague. Thank you.
Mr. Costa. Thank you. The gentleman from New Mexico, a co-
sponsor of the measure, Mr. Heinrich?
Mr. Heinrich. Chairman, first I want to thank my colleague
for his leadership on this. This has been something that the
State obviously has been working on for a long time, members of
the Legislature, people like Congressman Teague and his
predecessor, but that whole issue of who is responsible I think
is something that has never been adequately addressed in a way
that is meaningful for the communities in these areas.
There are a number of different kinds of mines. There are
those where the uranium was mined directly for the government
as part of the Cold War effort.
Mr. Costa. Right. And that was the point that my question
was to, and I was trying to get some clarity in those
instances.
Mr. Heinrich. Of those, there is typically a direct line of
DOD responsibility. However, there is typically no money for
the cleanup even though the responsibility is legally there.
Mr. Costa. And there is no debate on that point that it is
the responsibility of the Department of Defense for cleanup
purposes?
Mr. Heinrich. I believe that is correct. Then, there are
other mine sites where the uranium was mined for the Cold War
efforts, but mined by a private company and then sold to the
government. In those cases, the legal responsibility under
current law does not necessarily fall on the U.S. Government
even though the mining operations were for the purpose of
supporting our strategic arms stockpile, and then there are
private mine sites where the uranium was mined and then sold to
the private market for the purpose of power generation, so
there are sort of three different categories there.
Mr. Costa. Categories.
Mr. Heinrich. And there are typically in some cases of the
third, there are responsible parties who the state is pursuing
to clean those things up. The difficulty is oftentimes in that
second category where there were private companies at the time
doing the mining, oftentimes they are long gone, but the
impacts to the communities are still there, and I think that is
why it is so important to take this approach of allowing the
SMCRA funds to be able to be used at the discretion of the
states on higher-priority sites where there may be no legal
responsible party that can be pursued at this time.
Mr. Costa. Are you familiar, I guess it may be a question
to our second panel, but of the efforts of the prioritization
that has taken place in those three categories based upon risk
assessment, risk management?
Mr. Heinrich. I know that the Environment Department
monitors and prioritizes hard rock sites across the state. They
do that oftentimes on the basis of both public health and the
exposure to particularly ground and surface water and that
there are a handful of mine sites, a few hard rock in the
northern part of the state that are prioritized quite high, but
many of their high priority sites have to do with uranium
because of the potential or real ground water contamination and
the potential for public health issues with the wells that are
exposed to that groundwater contamination.
Mr. Costa. Mr. Teague, anything you would like to add?
Mr. Teague. Yes, a couple of things. The State of New
Mexico is in the process of prioritizing all of them and
ranking them in their need, but they don't have that completed
yet, but the New Mexico Environmental Department is in the
process of doing that. One other thing I would like to say, and
I think everybody knows because my colleague, Congressman
Heinrich, did a good job of explaining the different ones, but
really what we have is we have a situation where this uranium
was needed for the United States to win the Cold War with the
Soviet Union and Cibola and McKinley Counties of New Mexico
made some pretty good sacrifices to help our country.
I don't think that we should ask them to continue to
sacrifice. We should clean their sites and their water up.
Mr. Costa. Very good. All right. You have done a good job
on your explanation of the bill. The members of the Committee
have had a chance to make comments, and let us proceed now with
the next panel. Hearing no opposition, we will grant Mr. Teague
the opportunity to sit in here with the Subcommittee if you
choose to do that. All right. Hearing no opposition, you can
come up here and grab a seat.
Our second panel, we have three witnesses: Glenda Owens,
the Deputy Director of the Office of Surface Mining and
Reclamation and Enforcement; Ms. Loretta Pineda, the Director
of the Division of Reclamation and Mining and Safety of
Colorado Department of Natural Resources from Congressman
Lamborn's state; and The Honorable John Antonio, Governor of
the Pueblo Laguna, is that correct? Please, three witnesses,
come forward for your testimony.
I suspect all of you in various ways have testified before.
For those of you who are not familiar with the rules here of
the Subcommittee and Natural Resources I guess in front of the
center witness there is a little box there that has three
lights on it, and when I recognize you, it will be green, and
it will remain green for four minutes, and then on the fifth
minute, it will turn yellow, and at the end of that minute, it
will turn red, and then your chair disappears.
[Laughter.]
Mr. Costa. No, we don't do that, but I like to say that
just to kind of get you relaxed, but we do appreciate,
witnesses, if you have written testimony, and it exceeds five
minutes, please for the sake of the Subcommittee and the staff,
we can submit that and summarize your comments within the five
minutes, and if your written statement is within five minutes,
and you feel more comfortable reading it, that is fine as well,
so we would like to begin with our first witness that the Chair
now recognizes Ms. Glenda Owens for your testimony, and would
you please begin? Is your microphone on there?
STATEMENT OF GLENDA OWENS, DEPUTY DIRECTOR, OFFICE OF SURFACE
MINING RECLAMATION AND ENFORCEMENT
Ms. Owens. Is that better?
Mr. Costa. Yes, that is better. You might bring it a little
closer to you. We want to hear you.
Ms. Owens. Good morning, Chairman Costa, and members of the
Subcommittee, and thank you for the invitation to testify on
behalf of the Office of Surface Mining Reclamation and
Enforcement regarding H.R. 4817. We look forward to working
with you on matters relating to the Surface Mining Control and
Reclamation Act of 1977. While we share the concern about non-
coal abandoned mine sites, we cannot support H.R. 4817 because
it is inconsistent with the Administration's goal of ensuring
expeditious coal reclamation of high priority abandoned coal
sites before the reclamation fee terminates in 2021.
Through SMCRA, Congress established OSM for two basic
purposes: First, to ensure that the nation's coal mines operate
in a manner that protects citizens and the environment during
mining and to restore the land to beneficial use following
mining; second, to implement an abandoned mine land program to
address the hazards and environmental degradation created by
two centuries of weakly regulated coal mining that occurred
prior to SMCRA's enactment.
Title IV of SMCRA created an AML reclamation program funded
by a fee assessed on each ton of coal produced. The fees
collected have been placed in the Abandoned Mine Reclamation
Fund. The money has been used primarily to reclaim lands and
water adversely impacted by coal mining conducted before the
enactment of SMCRA and to mitigate the adverse impacts of
mining on individuals and communities. Since 2006, Section
411[h][1] of SMCRA has precluded uncertified states and tribes
from using funds that they receive under that section for non-
coal reclamation.
H.R. 4817 would amend SMCRA to allow uncertified states and
tribes to use funds received under Section 411[h][1] for
reclamation activities on non-coal mine sites. The President's
proposed Fiscal Year 2011 budget in addition to reducing
spending also proposes to limit the use of AML monies to high-
priority coal reclamation projects. The Department, therefore,
cannot support H.R. 4817 because it is inconsistent with the
Fiscal Year 2011 budget request.
While we recognize the dangers that abandoned hard rock
mines pose, the current challenging economic conditions,
coupled with this Administration's commitment to fiscal
responsibility heighten the need for AML funds to be focused on
the core objective of high-priority coal reclamation projects.
However, we share the concern about non-coal abandoned mines
sites, and OSM would be happy to work with Congress and this
Committee to explore other options to address abandoned non-
coal mine reclamation problems.
Thank you for the opportunity to appear before the
Subcommittee today and testify on this bill. I look forward to
working with you to ensure that the nation's abandoned mine
lands are adequately reclaimed.
[The prepared statement of Ms. Owens follows:]
Statement of Glenda Owens, Deputy Director, Office of Surface Mining
Reclamation and Enforcement, U.S. Department of the Interior
Mr. Chairman and Members of the Subcommittee, thank you for the
invitation to testify on behalf of the Office of Surface Mining
Reclamation and Enforcement (OSM) regarding H.R. 4817. I look forward
to working with you on matters relating to the Surface Mining Control
and Reclamation Act of 1977 (SMCRA).
H.R. 4817 would allow noncertified states and tribes to use certain
SMCRA payments for non-coal reclamation; while the President's Budget
proposed to limit SMCRA payments to high priority coal sites. While we
recognize the importance of addressing hardrock mine hazards, we cannot
support this bill because it is inconsistent with the President's
Budget.
The FY 2011 President's Budget includes a proposal to focus AML
funds on the high-priority coal reclamation sites in order to ensure
that the most hazardous issues can be addressed before the AML fee
expires. In addition to terminating unrestricted payments to certified
states and tribes, the proposal will require all noncertified states to
use their funding only for high priority coal reclamation projects.
Background
Through SMCRA, Congress established OSM for two basic purposes.
First, to ensure that the Nation's coal mines operate in a manner that
protects citizens and the environment during mining operations and to
restore the land to beneficial use following mining. Second, to
implement an Abandoned Mine Land (AML) program to address the hazards
and environmental degradation created by two centuries of weakly
regulated coal mining that occurred before SMCRA's enactment.
Title IV of SMCRA created an AML reclamation program funded by a
reclamation fee assessed on each ton of coal produced. The fees
collected have been placed in the Abandoned Mine Reclamation Fund
(Fund). OSM, either directly or through grants to States and Indian
tribes with approved AML reclamation plans under SMCRA, has been using
the Fund primarily to reclaim lands and waters adversely impacted by
coal mining conducted before the enactment of SMCRA and to mitigate the
adverse impacts of mining on individuals and communities. Also, since
FY1996, an amount equal to the interest earned by and paid to the Fund
has been available for direct transfer to the United Mine Workers of
America Combined Benefit Fund to defray the cost of providing health
care benefits for certain retired coal miners and their dependents.
Section 402(a) of SMCRA fixed the reclamation fee for the period before
September 30, 2007, at 35 cents per ton (or 10 percent of the value of
the coal, whichever is less) for surface-mined coal other than lignite,
15 cents per ton (or 10 percent of the value of the coal, whichever is
less) for coal from underground mines, and 10 cents per ton (or 2
percent of the value of the coal, whichever is less) for lignite. As
originally enacted, section 402(b) of SMCRA authorized collection of
reclamation fees for 15 years following the date of enactment (August
3, 1977); thus, OSM's fee collection authority would have expired
August 3, 1992. However, Congress extended the fees and fee collection
authority through September 30, 1995, in the Omnibus Budget
Reconciliation Act of 1990. The Energy Policy Act of 1992 extended the
fees through September 30, 2004. A series of short interim extensions
in appropriations and other acts extended the fees through September
30, 2007.
The AML reclamation program was established in response to concern
over extensive environmental damage caused by past coal mining
activities. Before the 2006 amendments, the AML program reclaimed
eligible lands and waters using the Fund, which came from the
reclamation fees collected from the coal mining industry. Eligible
lands and waters were those which were mined for coal or affected by
coal mining or coal processing, were abandoned or left inadequately
reclaimed prior to the enactment of SMCRA on August 3, 1977, and for
which there was no continuing reclamation responsibility under State or
other Federal laws.
SMCRA established a priority system for reclaiming coal problems.
Before the 2006 amendments, the AML program had five priority levels,
but reclamation was focused on eligible lands and waters that reflected
the top three priorities. The first priority was ``the protection of
public health, safety, general welfare, and property from extreme
danger of adverse effects of coal mining practices.'' The second
priority was ``the protection of public health, safety, and general
welfare from adverse effects of coal mining practices.'' The third
priority was ``the restoration of land and water resources and the
environment previously degraded by adverse effects of coal mining
practices.''
As originally established, the Fund was divided into State or
Tribal and Federal shares. Each State or Indian tribe with a federally
approved reclamation plan was entitled to receive 50 percent of the
reclamation fees collected annually from coal operations conducted
within its borders. The ``Secretary's share'' of the Fund consisted of
the remaining 50 percent of the reclamation fees collected annually and
all other receipts to the Fund, and was allocated into three shares as
required by the 1990 amendments to SMCRA. First, OSM allocated 40% of
the Secretary's share to ``historic coal'' funds to increase
reclamation grants to States and Indian tribes for coal reclamation.
However, all the funds which were allocated may not have been
appropriated. Second, OSM allocated 20% to the Rural Abandoned Mine
Program (RAMP), operated by the Department of Agriculture. However,
that program has not been appropriated AML funds since the mid 1990's.
Last, SMCRA required OSM to allocate 40% to ``Federal expense''
funds to provide grants to States for emergency programs that abate
sudden dangers to public health or safety needing immediate attention,
to increase reclamation grants in order to provide a minimum level of
funding to State and Indian tribal programs with unreclaimed coal
sites, to conduct reclamation of emergency and high-priority coal sites
in areas not covered by State and Indian tribal programs, and to fund
OSM operations that administer Title IV of SMCRA.
States with an approved State coal regulatory program under Title V
of SMCRA and with eligible coal mined lands may develop a State program
for reclamation of abandoned mines. The Secretary may approve the State
reclamation program and fund it. At the time the 2006 amendments were
enacted, 23 States received annual AML grants to operate their approved
reclamation programs. Three Indian tribes (the Navajo, Hopi and Crow
Indian tribes) without approved regulatory programs have received
grants for their approved reclamation programs as authorized by section
405(k) of SMCRA.
Before the 2006 amendments, States and Indian tribes that had not
certified completion of reclamation of their abandoned coal lands could
use AML grant funds on noncoal projects only to abate extreme dangers
to public health, safety, general welfare, and property that arose from
the adverse effects of mineral mining and processing and only at the
request of the Governor or the governing body of the Indian tribe.
The Surface Mining Control and Reclamation Act Amendments of 2006
were signed into law as part of the Tax Relief and Health Care Act of
2006, on December 20, 2006. Public Law 109-432. The 2006 amendments
revised Title IV of SMCRA to make significant changes to the
reclamation fee and the AML program. One change extended OSM's
reclamation fee collection authority through September 30, 2021. The
statutory fee rates were reduced by 10 percent from the current levels
for the period from October 1, 2007, through September 30, 2012, and an
additional 10 percent from the original levels for the period from
October 1, 2012, through September 30, 2021.
The Fund allocation formula was also changed. Beginning October 1,
2007, certified States are no longer eligible to receive State share
funds. Instead, amounts which would have been distributed as State
share for fee collections for certified States are distributed as
historic coal funds. The RAMP share was eliminated, and the historic
coal allocation is further increased by the amount that previously was
allocated to RAMP.
Since 2006, the Department has interpreted the language of SMCRA
section 411(h) to require that OSM use grants to provide funds to
eligible States and Indian tribes and to preclude noncertified states
and Indian tribes from using funds that they receive under that section
for noncoal reclamation.
H.R. 4817
Under SMCRA, states can use some of the AML funds they receive for
non-coal reclamation. H.R. 4817 would amend SMCRA to allow noncertified
states and tribes to use their mandatory funds received under Section
411(h)(1) from their unappropriated AML Fund balance for reclamation
activities on non-coal mine sites. Noncertified states and tribes can
already use the funds they receive from the ``state share'' and
``historic coal'' formulas for non-coal reclamation.
When Secretary Salazar appeared before the Committee on Energy and
Natural Resources to testify about the FY 2011 President's Budget for
the Department of the Interior, he noted that in developing a balanced
budget request for FY 2011, tough choices had to be made. The budget,
in addition to eliminating unrestricted payments to certified states,
also proposes limiting the use of AML payments to priority coal
reclamation projects. The Department cannot support H.R. 4817 because
it is inconsistent with the Fiscal Year 2011 budget.
In an effort to focus the AML program on coal reclamation before
the reclamation fee terminates, the President's FY 2011 budget proposes
to restrict the use of AML funds by noncertified states to high
priority coal reclamation. Because H.R. 4817 is inconsistent with the
Administration's goal of ensuring expeditious coal reclamation, we
cannot support this bill.
While we recognize the dangers that abandoned hard rock mines can
pose, AML funding needs to be focused on the highest priority problems
Congress originally identified in 1977. The challenging economic
conditions, coupled with this Administration's commitment to fiscal
responsibility, only heighten the need for AML funds to be devoted to
the highest priority coal problems. We note that the administration has
continued to invest in AML, both through the Bureau of Land Management
and National Park Service American Recovery and Reinvestment Act of
2009 funding and the FY 2011 President's Budget to address hardrock
mine reclamation on Federal Lands.
We share the concern about non-coal abandoned mine sites and would
be happy to share the expertise gained administering SMCRA and work
with the Congress and this committee as we seek to address abandoned
non-coal mine problems.
Thank you for the opportunity to appear before the Subcommittee
today and testify on this bill. I look forward to working with the
Subcommittee to ensure that the Nation's abandoned mine lands are
adequately reclaimed.
______
Mr. Costa. Well, thank you very much. I understand I guess
about the part about consistency with this next year's budget
vis-a-vis cleanup. In the several years I have tried to
understand the 1977 act, I am still trying to understand the
consistency in SMCRA. I hate these acronyms.
Ms. Owens. That is a challenge.
Mr. Costa. Yes, because I think what is consistent about
SMCRA is its inconsistency, but that is an editorial comment on
my part. Our next witness is Ms. Loretta Pineda, who is the
Director of the Division of Reclamation of Mining and Safety in
Colorado Department of Natural Resources, and we are looking
forward to hearing your testimony on this important
legislation. Thank you, Ms. Pineda.
STATEMENT OF LORETTA PINEDA, DIRECTOR, DIVISION OF RECLAMATION,
MINING AND SAFETY, COLORADO DEPARTMENT OF NATURAL RESOURCES
Ms. Pineda. Thank you. Good morning. My name is Loretta
Pineda.
Mr. Costa. I am sorry. Pineda, right?
Ms. Pineda. Yes, thank you.
Mr. Costa. I apologize. Pineda?
Ms. Pineda. Pineda.
Mr. Costa. Mucho gusto.
Ms. Pineda. Don't take up some of my minutes here.
[Laughter.]
Mr. Costa. No, no, no. The Chairman is very good about
that.
Ms. Pineda. OK. Thank you.
Mr. Costa. It is on my time.
Ms. Pineda. OK.
Mr. Costa. Ms. Pineda.
Ms. Pineda. Thank you. I serve as the Director of the
Division of Reclamation Mining and Safety within the Colorado
Department of Natural Resources. I am appearing today on behalf
of the Interstate Mining Compact Commission and the National
Association of Abandoned Mine Land Programs. I appreciate the
opportunity to appear before the Subcommittee today to present
our views on H.R. 4817. The 30 states and tribes represented by
these two organizations strongly support this important
amendment to Title IV of the Surface Mining Control and
Reclamation Act.
Mr. Chairman, nationally, abandoned mine lands continue to
have significant adverse effects on people and the environment.
As state and tribal governments, we continue to aggressively
pursue programs and partnerships to address hard rock AML
programs through a variety of state and Federal funding
sources. For states with active coal mining operations within
their borders, the most consistent source of AML funding has
been Title IV grants under SMCRA. Section 409 of the Act allows
the states to use these grants at high-priority non-coal AML
sites, and that work is generally limited to safeguarding
hazards to public safety, such as closing mine openings.
In December 2006, Congress amended Title IV of SMCRA and,
among other things, distributed certain AML funds to states in
an amount equal to those previously allocated under SMCRA but
never appropriated. However, while Section 409 was not changed
or amended in any way, the Interior Department through both a
Solicitor's Opinion and Final Rule has now interpreted SMCRA to
prohibit this enhanced funding from being used for non-coal
projects. This is a significant blow to states such as New
Mexico, Utah and Colorado that have previously used SMCRA AML
funds to address many of the more serious hard rock AML
problems.
At stake for these three states is about $9 million
annually, and without access to these funds, New Mexico will
have to forego an average of 200 non-coal AML closures each
year. Colorado will have to postpone some 350 closures, and
Utah will have to shelf upwards of 500 closures. H.R. 4817
would remedy the Interior Department's unfortunate
interpretation of the 2006 amendment, and as such, we strongly
support the bill. That interpretation not only disregards the
fact that Section 409 was left unamended by Congress, it is
also inconsistent with assurances repeatedly given to the
states and tribes by OSM during the consideration of the
legislation that non-coal could continue to be undertaken with
these AML funds.
The interpretation would also have the unacceptable result
of requiring states and tribes to devote funds to lower-
priority coal sites while leaving dangerous non-coal sites
unaddressed. OSM has argued that prior balance replacement
funds are fundamentally distinct from 402[g] monies distributed
from the fund. This according to OSM is due to the fact that
these prior balance replacement funds are paid from the U.S.
Treasury and have not been allocated under Section 402[g][1].
The fact is these funds were originally allocated under
Section 402[g][1], are due and owing pursuant to the operation
of that section and did not change their color simply because
they are paid from a different source. Without the operation of
Section 402[g][1] in the first place, there would be no
unappropriated state tribal share balances. There was no
intention to condition or restrict the previously improved
mechanisms and procedures that states were using to apply these
monies to high-priority coal and non-coal problems.
To change the rules based on such justification is
inappropriate and inconsistent with the law. The urgency of
advancing this legislation has been heightened, Mr. Chairman,
by statements in OSM's proposed budget for Fiscal Year 2011.
Therein, OSM is proposing to further restrict the ability of
states to expend AML funds on non-coal reclamation projects.
This will apparently occur as part of a legislation proposal
that the Administration intends to pursue in the 111th
Congress.
We are uncertain exactly what OSM has in mind with respect
to this aspect of the proposal, but we suspect it has to do
with clarifying the very issue that is the subject of 4817. For
all we know, it could be even farther reaching. For the same
reasons that Congress needs to clarify this misinterpretation
for non-coal AML work, it should also do so for the Acid Mine
Drainage, AMD, set aside program. Section 402[g][6] has since
1990 allowed a state and tribe to set aside a portion of its
AML grant in a special AMD abatement account to address this
pervasive problem.
We therefore urge the Committee to amend H.R. 4817 to
correct the current policy interpretation by the Interior and
allow the use of unappropriated state and tribal share balance
for the acid mind drainage set aside fund. Thank you for the
opportunity to submit this statement on 4817. I would be happy
to answer any questions.
[The prepared statement of Ms. Pineda follows:]
Statement of Loretta Pineda, Director, Division of Reclamation,
Mining and Safety, Colorado Department of Natural Resources
My name is Loretta Pineda and I serve as the Director of the
Division of Reclamation, Mining and Safety within the Colorado
Department of Natural Resources. I am appearing today on behalf of the
Interstate Mining Compact Commission (IMCC) and the National
Association of Abandoned Mine Land Programs (NAAMLP). I appreciate the
opportunity to appear before the Subcommittee today to present our
views on H.R. 4817, a bill to amend the Surface Mining Control and
Reclamation Act of 1977 (SMCRA) to clarify that uncertified States and
Indian tribes have the authority to use certain payments for certain
noncoal reclamation projects. Both of the organizations I represent
today strongly support this critical amendment to SMCRA.
The Interstate Mining Compact Commission (IMCC) is an organization
of 24 states located throughout the country that together produce some
95% of the Nation's coal, as well as important hardrock and other
noncoal minerals. Each IMCC member state has active mining operations
as well as numerous abandoned mine lands within its borders and is
responsible for regulating those operations and addressing mining-
related environmental issues, including the reclamation of abandoned
mines. Over the years, IMCC has worked with the states and others to
identify the nature and scope of the abandoned mine land problem, along
with potential remediation options.
The NAAMLP is a tax-exempt organization consisting of 30 states and
Indian tribes with a history of coal mining and coal mine related
hazards. These states and tribes are responsible for 99.5% of the
Nation's coal production. All of the states and tribes within the
NAAMLP administer abandoned mine land (AML) reclamation programs funded
and overseen by the Office of Surface Mining (OSM) pursuant to Title IV
of the Surface Mining Control and Reclamation Act (SMCRA, P.L. 95-87).
Mr. Chairman, nationally, abandoned mine lands continue to have
significant adverse effects on the environment. Some of the types of
environmental impacts that occur at AML sites include subsidence,
surface and ground water contamination, erosion, sedimentation,
chemical release, and acid mine drainage. Safety hazards associated
with abandoned mines account for deaths and/or injuries each year.
Abandoned and inactive mines, resulting from mining activities that
occurred over the past 150 years, are scattered throughout the United
States. The sites are located on private, state and public lands.
Over the years, several studies have been undertaken in an attempt
to quantify the hardrock AML cleanup effort. In 1991, IMCC and the
Western Governors' Association completed a multi-volume study of
inactive and abandoned mines that provided one of the first broad-based
scoping efforts of the national problem. Neither this study, nor any
subsequent nationwide study, provides a completely reliable and fully
accurate on-the-ground inventory of the hardrock AML problem. Both the
1991 study and a recent IMCC compilation of data on hardrock AML sites
were based on available data and professional judgment. While the data
is seldom comparable between states due to the wide variation in
inventory criteria, they do demonstrate that there are large numbers of
significant safety and environmental problems associated with inactive
and abandoned hardrock mines and that remediation costs are very large.
Across the country, the number of abandoned hardrock mines with
extremely hazardous mining-related features has been estimated at
several hundred thousand. Many of the states and tribes report the
extent of their respective AML problem using a variety of descriptions
including mine sites, mine openings, mine features or structures, mine
dumps, subsidence prone areas, miles of unreclaimed highwall, miles of
polluted waterways, and acres of unreclaimed or disturbed land. Some of
the types of numbers that IMCC has seen reported in our Noncoal Mineral
Resources Survey and Report and in response to information we have
collected for the Government Accountability Office (GAO) and others
include the following gross estimated number of abandoned mine sites:
Alaska - 1,300; Arizona - 80,000; California - 47,000; Colorado -
7,300; Montana - 6,000; Nevada - 16,000; Utah - 17,000 to 20,000; New
York - 1,800; Virginia - 3,000 Washington - 3,800; Wyoming - 1,700.
Nevada reports over 200,000 mine openings; New Mexico reports 15,000
mine hazards or openings; Minnesota reports over 100,000 acres of
abandoned mine lands and South Carolina reports over 6,000 acres.
What becomes obvious in any attempt to characterize the hardrock
AML problem is that it is pervasive and significant. And although
inventory efforts are helpful in attempting to put numbers on the
problem, in almost every case, the states are intimately familiar with
the highest priority problems within their borders and also know where
limited reclamation dollars must immediately be spent to protect public
health and safety or protect the environment from significant harm.
Today, state agencies are working on hardrock abandoned mine
problems through a variety of limited state and federal funding
sources. Various federal agencies, including the U.S. Environmental
Protection Agency, Bureau of Land Management, U.S. Forest Service, U.S.
Army Corps of Engineers and others have provided some funding for
hardrock mine remediation projects. These state/federal partnerships
have been instrumental in assisting the states with our hardrock AML
work and, as states take on a larger role for hardrock AML cleanups
into the future, we will continue to coordinate with our federal
partners. However, most of these existing federal grants are project
specific and do not provide consistent funding. For states with coal
mining, the most consistent source of AML funding has been the Title IV
grants under the Surface Mining Control and Reclamation Act (SMCRA).
Section 409 of SMCRA allows states to use these grants at high priority
non-coal AML sites. The funding is generally limited to safeguarding
hazards to public safety (e.g., closing mine openings) at hardrock
sites.
In December 2006, Congress significantly amended the SMCRA AML
program to, among other things, distribute funds to states in an amount
equal to that previously allocated under SMCRA but never appropriated.
However, while Section 409 was not changed or amended in any way, the
Interior Department, through both a Soliticor's Opinion (M-37014) and
final rule (73 Fed. Reg. 67576), has now interpreted SMCRA to prohibit
this enhanced funding from being used for noncoal projects. This is a
significant blow to states such as New Mexico, Utah and Colorado that
have previously used SMCRA AML funds to address many of the more
serious hardrock AML problems within their borders.
H.R. 4817 would remedy the Interior Department's unfortunate
interpretation of the 2006 Amendments and as such we strongly support
the bill. That interpretation not only disregards the fact that section
409 was left unamended by Congress, it is also inconsistent with
assurances repeatedly given to the states and tribes by OSM during the
consideration of the legislation that noncoal work could continue to be
undertaken with these AML funds. The interpretation would also have the
unacceptable result of requiring states and tribes to devote funds to
lower priority coal sites while leaving dangerous noncoal sites
unaddressed. While OSM will argue that this may impact the amount of
funding available to uncertified states to address high priority coal
problems, Congress did not seem overly concerned with this result but
rather deferred to its original framework for allowing both high
priority coal and noncoal sites to be addressed.
In its final rule implementing the 2006 amendments to SMCRA (at 73
Fed. Reg. 67576, et seq.), OSM continued to abide by its argument that
``prior balance replacement'' funds (i.e the unappropriated state and
tribal share balances in the AML Trust Fund) are fundamentally distinct
from section 402(g) moneys distributed from the Fund. This, according
to OSM, is due to the fact that these prior balance replacement funds
are paid from the U.S. Treasury and have not been allocated under
section 402(g)(1). This is a distinction of convenience for the
Interior Department's interpretation of the 2006 Amendments and has no
basis in reason or law. The fact is, these funds were originally
allocated under section 402(g)(1), are due and owing pursuant to the
operation of section 402(g)(1), and did not change their ``color''
simply because they are paid from a different source. Without the
operation of section 402(g)(1) in the first place, there would be no
unappropriated (i.e. ``prior'') state and tribal share balances. The
primary reason that Congress appears to have provided a new source for
paying these balances is to preserve a balance in the AML Trust Fund to
1) generate continuing interest for the UMW Combined Benefit Trust Fund
and 2) to insure that there was a reserve of funding left after fee
collection terminates in 2021 to address any residual high priority
historic coal problems. There was never an intent to condition or
restrict the previously approved mechanisms and procedures that states
and tribes were using to apply these moneys to high priority coal and
noncoal problems. To change the rules based on such a justification is
inappropriate and inconsistent with law.
The urgency of advancing this legislation has been heightened, Mr.
Chairman, by statements in OSM's proposed budget for Fiscal Year 2011.
Therein, OSM is proposing to further restrict the ability of states to
expend AML funds on noncoal reclamation projects. This will apparently
occur as part of a legislative proposal that the Administration
supposedly intends to pursue in the 111th Congress. While the primary
focus of that proposal will be the elimination of future AML funding
for states and tribes that are certified under Title IV of SMCRA (which
we adamantly oppose), OSM's explanation of its proposal also contains
the following language: ``Similarly, the proposal will require that
payments to noncertified States are only used for high-priority coal
problems.'' We are uncertain exactly what OSM has in mind with respect
to this aspect of the legislative proposal, but we suspect it has to do
with clarifying the very issue that is the subject of H.R. 4817. For
all we know, it could be even farther reaching.
For the same reasons that Congress needs to clarify this
misinterpretation for noncoal AML work, it should also do so for the
acid mine drainage (AMD) set aside program. Section 402(g)(6) has,
since 1990, allowed a state or tribe to set aside a portion of its AML
grant in a special AMD abatement account to address this pervasive
problem. OSM's recent policy (and now regulatory) determination is
denying the states the option to set aside moneys from that portion of
its grant funding that comes from ``prior balance replacement funds''
each year to mitigate the effects of AMD on waters within their
borders. AMD has ravaged many streams throughout the country, but
especially in Appalachia. Given their long-term nature, these problems
are technologically challenging to address and, more importantly, are
very expensive. The states need the ability to set aside as much
funding as possible to deal with these problems over the long term.
Congress clearly understood the magnitude of this challenge given the
fact that it increased the amount of money that states could set aside
for this purpose from 10 to 30 percent in the 2006 Amendments. We
therefore urge the Committee to amend H.R. 4817 to correct the current
policy interpretation by Interior and allow the use of unappropriated
state and tribal share balances (``prior balance replacement funds'')
for the AMD set aside, similar to the use of these balances for noncoal
work. Suggested amendatory language is attached to our statement.
Over the past 30 years, tens of thousands of acres of abandoned
mine lands have been reclaimed, thousands of mine openings have been
closed, and safeguards for people, property and the environment have
been put in place. There are numerous success stories from around the
country where the states' AML programs have saved lives and
significantly improved the environment. Suffice it to say that the AML
Trust Fund, and the work of the states pursuant to the distribution of
monies from the Fund, have played an important role in achieving the
goals and objectives of set forth by Congress when SMCRA was first
enacted--including protecting public health and safety, enhancing the
environment, providing employment, and adding to the economies of
communities impacted by past coal and noncoal mining. Passage of H.R.
4817 will further these congressional goals and objectives.
In support of our position on H.R. 4817, we also request that you
include for the record the attached resolution (No. 07-8) adopted by
the Western Governors that urges the continued use of funds collected
or distributed under Title IV of SMCRA for the reclamation of high
priority, hard-rock abandoned mines. This resolution is in support of
the Western Governors' policy statements B.4 and B.5.
Thank you for the opportunity to present our views on H.R. 4817. We
welcome the opportunity to work with you to complete the legislative
process and see this bill, as amended, become law.
______
Suggested Amendment to H.R. 4817 to include the AMD set-aside account
(Amendments are in bold and italics)
A Bill
To amend the Surface Mining Control and Reclamation Act of 1977 to
clarify that uncertified States and Indian tribes have the authority to
use certain payments for certain noncoal and acid mine drainage
reclamation projects.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. ABANDONED MINE RECLAMATION.
(a) Reclamation Fee_Section 402(g)(6)(A) of the Surface Mining
Control and Reclamation Act of 1977 (30 U.S.C. 1232(g)(6)(A)) is
amended by inserting ``and section 411(h)(1)'' after ``paragraphs (1)
and (5)''.
b) Filling of Voids and Sealing Tunnels.--Section 409(b) of the
Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1239(b))
is amended by inserting ``and section 411(h)(1)'' after ``section
402(g)''.
(c) Use of Funds.--Section 411(h)(1)(D)(ii) of the Surface Mining
Control and Reclamation Act of 1977 (30 U.S.C. 1240a(h)(1)(D)(ii)) is
amended by striking ``section 403'' and inserting ``section 402(g)(6),
403 or 409.''
______
Western Governors' Association
Policy Resolution 10-3
Cleaning Up Abandoned Mines in the West
A. BACKGROUND
1. Mining has a long history in the West. The western states
are rich in hardrock minerals like gold, silver and copper as
well as coal, much of it low sulfur.
Hardrock Mines
2. Historic hardrock mining in the West, unregulated until
recent years, has left a legacy of thousands of historic
abandoned mines, which pose a threat to human health and safety
and to the environment. These historic mines pre-date modern
federal and state environmental regulations which were enacted
in the 1970s. Often a responsible party for these mines is not
identifiable or not economically viable enough to be compelled
to clean up the site. Thousands of stream miles are impacted by
drainage and runoff from such mines, one of the largest sources
of adverse water quality impacts in several Western states.
3. Cleanup of abandoned hardrock mines is hampered by two
issues--lack of funding and concerns about liability. Both of
these issues are compounded by the land and mineral ownership
patterns in mining districts. It is not uncommon for there to
be dozens of parties with partial ownership or operational
histories associated with a given site.
4. Recognizing the potential for economic, environmental and
social benefits to downstream users of impaired streams,
Western states, municipalities, federal agencies, volunteer
citizen groups and private parties have come together across
the West to try to clean up some of these abandoned hardrock
sites. However, due to questions of liability, many of these
Good Samaritan efforts have been stymied.
5. Potential liability exists for Good Samaritans under Clean
Water Act (CWA) Section 402 National Pollutant Discharge
Elimination System (NPDES) permit program because a party can
inherit liability for any discharges from an abandoned mine
site remaining after their cleanup efforts, even though the
volunteering remediating party had no previous responsibility
or liability for the site, and has reduced the water quality
impacts from the site by completing a cleanup project.
6. Potential liability exists for Good Samaritans under the
Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA).
7. Liability concerns also prevent mining companies from
going back into historic mining districts and remining old
abandoned mine sites or doing volunteer cleanup work. While
this could result in an improved environment, companies that
are interested are justifiably hesitant to incur liability for
cleaning up the entire abandoned mine site.
Coal Mines
8. Congress authorized creation of the Abandoned Mine Land
(AML) Program under Title IV of the Surface Mining Control and
Reclamation Act of 1977 (SMCRA). The program is funded by fees
from current coal production. The coal AML program provides
funding to states to restore lands mined for coal and abandoned
or left inadequately restored before August 3, 1977.
9. Section 409 of SMCRA also authorizes states to use AML
grant funds to address high priority non-coal mine hazards.
While the state AML programs are limited to using SMCRA funds
to only address public health and safety hazards at abandoned
non-coal mines, and not purely environmental threats, the state
programs have employed this provision to make a dent in the
public safety threats posed by abandoned mines.
10. In December 2006, Congress amended Title IV of SMCRA to
reauthorize the fee collection authority, to provide for the
distribution of the unappropriated stateshare balance of the
AML Trust Fund, to increase the minimum program funding to $3
million per year. Section 409 of SMCRA was not amended and no
limits were placed on non-coal projects.
11. However, the Office of Surface Mining (OSMRE) adopted
rules to severely limit certain states from using AML funds for
non-coal mine hazards. For Colorado, New Mexico and Utah, over
70% of their funds are now off limits for non-coal projects.
These states are required to fund lower priority coal mine
reclamation projects while higher priority non-coal hazards
would remain unfunded. The Administration is also proposing to
deny AML funds to states which have ``certified'' completion of
coal AML projects, contrary to agreements codified in 2006.
12. The new interpretation of SMCRA by OSMRE conflicts with
the clear language of the law authorizing the use of coal AML
funds for high priority non-coal mine hazards. OSMRE's new
interpretation will leave the public exposed to significant
hazards to public health and safety at abandoned non-coal mines
being ignored while states are required to expend coal AML
funds at lower priority coal mine sites.
B. GOVERNORS' POLICY STATEMENT
Hardrock Mines
1. Western Governors believe Congress should amend the Clean
Water Act to protect volunteering remediating parties who
conduct authorized remediation from becoming legally
responsible under section 301(a) and section 402 of the CWA for
any continuing discharges from the abandoned mine site after
completion of a cleanup project, provided that the remediating
party--or ``Good Samaritan''--does not otherwise have liability
for that abandoned or inactive mine site. Legislative and
administrative remedies to address potential CERCLA liabilities
should also be considered.
2. The Governors encourage federal land management agencies,
such as the U.S. Bureau of Land Management, the National Park
Service and the U.S. Forest Service, as well as support
agencies, such as the U.S. Environmental Protection Agency, the
U.S. Geological Survey and the U.S. Army Corps of Engineers, to
coordinate their abandoned hardrock mine cleanup efforts with
state efforts to avoid redundancy and unnecessary duplication,
and to employ the expertise and knowledge of state AML
programs.
3. Western Governors urge Congress to designate a dedicated
source of funding for the cleanup of abandoned hardrock mines.
Coal Mines
4. Western Governors urge the Administration to uphold the
intent of Congress to allow states to exercise discretion on
the use of their AML grant funds to address high priority non-
coal abandoned mine hazards and to return funds due
``certified'' states under existing law.
5. Western Governors urge Congress to adopt legislation to
restore the flexibility under SMCRA for the states to use AML
funds at both coal and high priority noncoal abandoned mine
sites and to ensure appropriate liability protections remain in
place.
C. GOVERNORS' MANAGEMENT DIRECTIVES
1. WGA staff will advance the policy positions stated above in
appropriate venues as warranted and report to Governors and
Staff Council on progress and impediments.
2. WGA shall transmit this resolution to Congress, the
Secretary of the Interior, Administrator of the Environmental
Protection Agency, the Director of the Office of Management and
Budget and other appropriate parties as warranted.
______
Mr. Costa. Even though I intruded upon your time, you still
made it. How about that? I was going to give you additional
time. What you are actually saying, and we will get to that in
the questions, but in the 2006 amendments that took place, the
interpretation by the Department of the Interior has not
reflected the will of Congress as to how those funds could be
in a discretionary fashion utilized for the purpose of cleanup,
and that is a point I want to get back to when we get to Q&A.
Our last witness is John Antonio, the Governor of the
Laguna Tribe, and we appreciate the fact that you are here, and
we look forward to hearing your comments.
STATEMENT OF THE HONORABLE JOHN ANTONIO, GOVERNOR, PUEBLO OF
LAGUNA
Mr. Antonio. Thank you, Mr. Chairman. Mr. Costa, Mr.
Lamborn, Mr. Teague and Mr. Heinrich.
Mr. Costa. At home they say Costa, but it is Costa.
Mr. Antonio. OK. I appreciate the opportunity to be here.
As was mentioned, I am John Antonio, Governor for the Pueblo
Laguna in New Mexico, and I bring greetings from our 8,200-
member-strong Laguna located probably about 40 minutes or so
west of Albuquerque, New Mexico, in our great state. Again, I
want to thank you for the opportunity. I come here with an
urgent plea to help us reclaim the world's largest open-pit
uranium mine.
Mining began in 1953. It eventually closed in 1982, so we
had a history of about 30 years of mining, first by Anaconda
Company, which was eventually acquired by ARCO. During the span
of mining, they removed over 400 million tons of earth to mine
about 24 tons of uranium ore. The original lease was about
8,000 acres. You can see on your exhibits the extent of the
mining, the devastation, and in the red circle, you see a
village called Paguate, which is home to about 1,500 tribal
members.
Mr. Costa. How do you pronounce the name of the Village?
Mr. Antonio. Paguate. Paguate Village.
Mr. Costa. Paguate.
Mr. Antonio. One of our six villages. Again, this village
has been impacted over the life of the mine, not only during
the 30 years, but 57 years later. A lot more area has been
impacted by the wind-blown dust and the perennial streams that
pass through. Fifty-seven years later we are still impacted,
and many people have suffered. Many have died from radiation-
related illnesses, cancers, respiratory illnesses, and there
has been a report of a direct link to diabetes, which we do
have high incidents.
In fact, my mom and two sisters are affected by radiation
exposure with the diabetes issues, a lot of my uncles,
relatives. A lot of our people have perished because the cancer
is related. We did have many reclamation efforts in 1989
through 1995 with a $43 million settlement from ARCO. However,
very minimal reclamation was achieved at that time. In the
1980s, BLM put a cost of about $400 million to adequately
reclaim.
We still have high-grade ore piles sitting on a lot of
wind-blown dust. The erosion continues on some of these areas
that have been capped with topsoil. Efforts to clean up have
been again very minimal. The Department of the Interior has
issued a record of decision, and we continue to monitor various
contamination parameters with our own funds. As far as trying
to do our part, we have entered into partnerships with
Environmental Protection Agency. They conducted an area
radiological survey as you see in the different exhibits the
extent of the contamination.
We are also now looking at the homes because some of the
homes were built with rocks that were coming from the mine area
as a result of the overburden removal. We also submitted an
application to EPA to designate a site as a superfund site. We
also approved to establish our own air and water quality
standards to protect ourselves from future mining. We also
approved a moratorium against future uranium mining. However,
it only protects our area.
We also entered in June of 2010 with EPA an MOU to address
the uranium mine contamination. With New Mexico Department of
Health, we have also implemented a study. The study has
indicated that there are high levels of uranium contamination
in the urine, and so we continue to follow up. We have also
entered partnerships with U.S. Geological Survey. They are
going to look at the dispersion of radiation contamination
through soil, water, dust, et cetera. We make a plea to end the
suffering of our people. Thank you very much.
[The prepared statement of Mr. Antonio follows:]
Statement of The Honorable John E. Antonio, Sr.,
Governor of the Pueblo of Laguna
I. INTRODUCTION
This statement is submitted by the Pueblo of Laguna (``Pueblo'' or
``Laguna'') to apprise the Committee of the Pueblo's efforts to reclaim
lands once used for the extraction of uranium ore and to assist the
Committee in assessing the Pueblo's need for funds to use for certain
non-coal reclamation projects.
The Pueblo of Laguna is a federally recognized Indian tribe located
45 miles west of Albuquerque, New Mexico, and has approximately 8,200
members who are affiliated with six (6) different villages. The
Pueblo's lands consist of approximately 590,000 acres in Cibola,
Sandoval, and Bernalillo counties, and contain the site of what was
once the world's largest open pit uranium mine; the Jackpile-Paguate
Mine. The Jackpile-Paguate Mine, which began operating in 1953, was
finally shut down in 1982 but then laid dormant for 7 years before
reclamation activities began. During that time, stockpiled waste was
blown into surrounding areas, including the Paguate Village, located
just 30 yards from the mine. In addition, rain caused waste from the
mine to flow into surface water tributaries. After years of negotiating
with the company who conducted the mining, minimal reclamation efforts
began in 1989 and were completed in 1995. However, there still remain
piles of high grade ore on the surface and within some of the exposed
open pits.
Despite efforts to reclaim the mine after it closed, the mine
continues to have a tremendous impact on the long-term health and
environmental landscape at the Pueblo. Many Pueblo members who worked
in the mine or lived near the mine suffer from cancer-related illnesses
and other health conditions. Two surface water tributaries near the
mine, the Rio Moquino, and the Rio San Jose have since tested positive
for radiation contamination. Groundwater is also at risk for radiation
contamination. Because water is scarce in our arid part of New Mexico,
the contamination of our water resources is devastating to our people
and the entire region. Although no official studies have been conducted
to establish a direct correlation between the mining activities and the
increase in cancer among individuals who live near or worked in the
mine, significant statistical information is being compiled on former
mine workers applying for benefits under the Radiation Exposure
Compensation Act (``RECA''). Many of these applicants have been
diagnosed with cancer-related illnesses.
In addition, other studies that are now being conducted may show a
direct correlation between uranium mining activities and various
respiratory and kidney problems, and may even extend to problems
related to diabetes. Testimony on these and related issues was
presented to a State Legislative Interim Subcommittee in Grants, New
Mexico in 2009, on the impacts of uranium mining.
As a result of our experiences with mining, the Pueblo is opposed
to any new mining on or near Pueblo lands. In 2007, our Tribal Council
passed a resolution to establish a moratorium on any uranium mining and
development. However, in the event that mining is permitted near our
lands, the Pueblo seeks to be included in the process by having a voice
to express our concerns about having adequate protections in place.
II. MINING AT LAGUNA
A. Uranium Mining, Generally
Uranium, a silvery-white, radioactive metal similar in appearance
to a piece of silver or steel, is never found in its pure form in
nature. It is always found combined with other elements into different
chemical compounds, which are highly poisonous. Uranium has been used
to make material for nuclear weapons and to make fuel for nuclear power
plants. Deposits of minerals that include large amounts of uranium,
large enough to make mining worthwhile are rare. However, the ``Four
Corners'' area of Arizona, Colorado, New Mexico and Utah contains some
of the richest deposits of uranium ores in the world. Open pit mining
is used when the ore is close to the surface and involves removing the
``overburden,'' or top layers of soil and rock that cover the ore. The
overburden is hauled off and often stored in huge piles. Underground
mining requires drilling, blasting and digging into the earth and the
ore is obtained by the use of elevators. Holes are drilled to provide
ventilation because the decay of uranium results in a radioactive gas
called radon. Radon can build up in underground mines causing serious
health problems for miners. In addition, underground water can cause
problems. Once the uranium is obtained, the next process is
``milling,'' or removing the valuable mineral from the mined ore. The
ore is crushed and then mixed with water to form slurry. The slurry is
mixed with chemicals to separate out the uranium ore from the rest of
the rock, referred to as ``leaching.'' The liquid containing the
uranium ore, or ``leachate,'' is then filtered from the rest of the
slurry and further concentrated by a precipitation process. Water is
then removed and the precipitate is dried to produce ``yellowcake,''
which is then packaged and shipped to an enrichment plant. Material
left over from the milling process is referred to as ``tailing,'' which
are still dangerous because of the radioactive elements they contain.
B. Uranium Mining at Laguna
The Grants Mineral Belt, which stretches from east of Gallup, New
Mexico to Laguna, New Mexico and includes Laguna Pueblo lands, has
especially rich uranium deposits. In May 1952, the Anaconda Mining
Company (later Atlantic Richfield or ARCO) entered into a lease with
the Pueblo to mine uranium on 4,988 acres of Laguna land near the
Village of Paguate. Additional leases were signed in 1963 and 1976 for
2,560 and 320 more acres, respectively, for a total of 8,000 acres. As
a result, Anaconda operated one of the world's largest open pit uranium
mines at the Pueblo from 1953 until 1982. Before the first lease was
signed with the Pueblo, Anaconda had signed an agreement with the U.S.
Atomic Energy Commission (``Commission''), which made Anaconda the sole
ore-buying agent for the Commission. In fact, a majority of uranium
produced on Indian land between 1950 and 1968 went to the Commission.
Anaconda utilized three (3) open pit mines and 9 underground mines
at Laguna to produce 24 million tons of uranium-bearing ore. More than
400 million tons of earth had to be moved to obtain the ore. Mining
conducted from the 9 underground mines primarily began in the 1970's.
The Jackpile-Paguate Mine, located near the Village of Paguate, was the
deepest open pit mine at 625 feet. The mine operated 24 hours a day, 7
days a week, 365 days a year for 30 years and employed as many as 800
tribal members. At its peak, the mine employed the majority of the
workforce at Laguna and neighboring communities.
ARCO closed the mine on March 1, 1982, after which it laid dormant
for 7 years before any efforts to reclaim the mine began. More than
2,000 acres of land and several pits needed to be reclaimed. One pit
measured over 600 feet deep, and a few pits were filled with
contaminated water that had seeped up over the years. A draft
environmental impact statement found ARCO primarily responsible and
recommended reclaiming the mine because the site was a public health
and safety hazard, noting that more serious hazards would develop if
the site was left un-reclaimed. Reclamation began in 1989 after ARCO
and the Pueblo reached an agreement by which the Pueblo would perform
the reclamation. However, the $43 million provided by ARCO was well
below the estimated $400 million required to fully reclaim the mine.
The Pueblo tried to reclaim the mine as best as possible, despite the
lack of funding and the fact that there were no standards for
reclaiming a uranium mine in place at the time.
In reclaiming the mine, the Laguna Construction Company used the
overburden to partially backfill some of the pits. It was specially
sloped and terraced to keep it in place and prevent wind and rain from
washing it away. Next, a layer of rock, or shale, of up to 12 feet
thick was put into the pits to keep radiation from coming up into the
air. An additional foot and a half of topsoil was placed over the top
and seeded with grasses and other native plants. High grade ore piles
that were still on the surface were covered with layers of top soil and
reseeded with native vegetation. The Pueblo's reclamation process, the
first attempt in the world to reclaim an open pit uranium mine, was
completed in 1995, but the Pueblo continues to monitor the mine and its
ongoing impacts. And, because the $43 million provided by ARCO only
enabled the Pueblo to conduct minimal reclamation, much work still
remains to be done to fully reclaim the mine and reduce the health and
environmental impacts.
III. MINING IMPACTS ON LAGUNA
The Village of Paguate, whose village boundaries lie only 30 yards
from the edge of the largest open pit in the mining area, was
significantly affected by the mining activity. In this village of
approximately 1500 residents, blasting caused old stone and mud houses
to crack apart, and dust from the mine coated homes, crops, and
clothes. Paguate residents on the south and eastern sides of the
village, closest to the mine, recall dust that seemed to linger for
hours after a blast and cracks on the walls of homes.
Despite the minimal reclamation efforts, former mining employees as
well as Pueblo members living in Paguate and downwind continue to
report growing numbers of cancer-related illnesses. Contaminated
surfaces and groundwater sources still exist. Of the 24 million tons of
ore mined from the Jackpile-Paguate Mine, approximately 23.7 million
tons were left as waste, which are still dangerous because of
radioactive elements they contain. In addition, water that flows
through the old mine, including the Rio Moquino and the Rio Paguate, is
contaminated from radioactive elements. Many Laguna members have died,
and others suffer from high incidences of diabetes, reportedly linked
to radiation exposure attributed to uranium mining. In addition,
radiation exposure can cause damage that may not show up for 10-40
years.
Currently, little is known about the stability of the radioactive
pollutants and additional risks, which may involve migration into local
groundwater supplies or into the atmosphere. Meanwhile, the mine
continues to have a tremendous impact on the long-term health and
environmental landscape at the Pueblo, where many residents and former
mine employees continue to experience deleterious health effects. The
mine contaminated parts of the reservation with toxic, radioactive
materials and miners who worked at the Jackpile Mine were not warned of
the exposure to radiation, including radon gas and radioactive dust.
IV. CONSULTATION AND COLLABORATION WITH U.S. ENVIORNMENTAL PROTECTION
AGENCY FOR POSSIBLE DESIGNATION OF THE JACKPILE-PAGUATE MINE
SITE AS A SUPERFUND SITE.
During the month of August, 2009, the Environmental Protection
Agency (EPA) contacted the Pueblo to see if an Aerial Radiological
Survey could be conducted of the entire Grants Mineral Belt area, which
includes Pueblo lands and the Jackpile mine site. The purpose of the
aerial flyover was to: 1) identify any structures with elevated
radiological activity and which might have been associated with
historic uranium mining activity at Jackpile; 2) data collected from
this survey would allow EPA to focus its ground resources on those
structures with elevated radiological activity; 3) EPA would analyze
the results of the data to determine if any remediation is needed; 4)
the report, along with the analysis would be given to the Pueblo; and
5) the collected data could potentially be used to secure funds to
assist with any remediation.
On September 29, 2009, representatives from the EPA Region 6 Office
came before the Pueblo Council and gave a presentation that included
their request for the aerial radiological survey, and a request to
enter into an MOU to formalize a partnership to deal with any air,
water, environmental, and cultural resources impacts as a result of any
mining activity. On October 13, 2009, Mr. Larry Starfield, Acting
Regional Administrator for Region 6 and several of his staff members
came before the Pueblo Council to formally consult with the Council on
a government-to-government basis for the following purposes: 1) to
discuss how further consultation should take place, i.e., informal vs.
formal type of discussions on issues/concerns; 2) the effects of
uranium mining on the tribe's air, land, water, and cultural resources;
and 3) what type of communications can be agreed upon by both parties
during further consultation.
EPA also explained that they were developing a five (5) year
Comprehensive Plan on how to deal with uranium issues. This Plan could
set out a good communication plan between the Pueblo and EPA; set out
certain activities that both EPA and the Pueblo can be involved with;
and would also provide that there be a working partnership between EPA
and the Pueblo to try and resolve any issues/concerns that the Pueblo
has. Representatives from the Pueblo reviewed the Comprehensive Plan
and made several comments and/or suggestions on edits to the Plan. EPA
also wanted to develop a Data Base of information on uranium issues and
wants to work with the Pueblo on how this information can be collected,
stored and retrieved for use by all parties--tribe, state and federal
governments.
In answer to the question of whether the Jackpile mine site might
qualify as a superfund site, it was indicated that the environmental
conditions have to be evaluated first to see if the site meets a
minimum threshold for qualifying as a superfund site. This evaluation
would require a Hazard Ranking Score (HRS), which is a ranking score
that EPA would use to see where the Jackpile mine ranks as compared to
all other sites throughout the country. After the discussion, the
Pueblo Council passed Resolution No. 10-10, approving of the submittal
of an application for designation of the Jackpile Mine site as a
Superfund Site.
EPA also developed a proposed MOU and presented it to Council for
its review. After several meetings and long discussions over the
contents of the MOU, the Council and representatives from the EPA
Region 6 Office entered into a formal MOU on June 22, 2010.
V. STUDY BY THE NEW MEXICO DEPARTMENT OF HEALTH'S ENVIRONMENTAL
EPIDEMIOLOGY BUREAU ON THE HEALTH IMPACTS OF URANIUM MINING.
A presentation was made to the Pueblo Council by Dr. Jana Gunnell,
on a request to conduct a study on the effects of uranium mining and
the study would concentrate on: 1) testing a participant's drinking
water source for uranium; 2) testing a participant's urine specimen for
uranium; and 3) conducting a survey with each participant.
It was explained that funding in the amount of $40,000 was
allocated during the 2007 regular session of the State legislature
under Senate Bill 611 to ``develop a testing protocol, develop and
establish a health registry, contract with appropriate testing
laboratories and coordinate affected parties in regard to a voluntary
testing program for military veterans who may have been exposed to
depleted uranium or other isotopes in the Persian Gulf war or in the
current Iraq or Afghanistan conflict.''
Based on the results from 2007-2008, the Environmental Health
Epidemiology Bureau (EHEB) was approved to utilize the funds
differently from what was stated in the legislation for a variety of
reasons. First, there were a fairly small number of veterans who could
be recruited and of those, only 31 out of 83 chose to obtain an
isotopic analysis (37%). Second, a health registry for veterans already
exists. The Veterans Administration (VA) has a Depleted Uranium Follow-
Up Program that has been in existence since 1993. Any veteran who
believes he or she was exposed to depleted uranium may participate.
Finally, the total uranium in urine is the result used to determine the
potential for uranium to cause adverse health effects, regardless of
whether there is a depleted uranium component.
The Council approved to allow this study to go forward and
information was disseminated out to the public that there were
approximately 50 slots for community members to participate in the
survey. This study has been completed and initial results have
indicated that some tribal members have elevated levels of uranium in
their urine. As a follow-up to the uranium study, the National Center
for Environmental Health, Centers for Disease Control and Prevention
(CDC) is conducting its own study, to see if people who live in an area
where there are high levels of uranium in the environment have an
increased risk for kidney disease.
VI. U.S. GEOLOGICAL SURVEY - URANIUM AND DUST RESEARCH PROJECT
On July 20, 2010, a presentation was made by Dr. Tanya Gallegos,
from the U.S. Geological Survey Office out of Denver, Colorado. The
purpose of the proposed research project is to understand the
dispersion of wastes from the Jackpile-Paguate mine through the air,
water and soil. The purpose of the study was to: 1) look at the effects
of the Jackpile mine on the environment; 2) see how the wind and water
has moved the uranium from the Jackpile mine site area to other areas
of the reservation and how far; 3) has the air, soil and water been
contaminated; and 4) provide information needed to ultimately develop
methods for remediation and ground water restoration.
Dr. Gallegos explained that much of the work to be performed in
this study would occur out in the field, where there would be a
collection of water samples, dust samples, mine waste, radiometric
survey, collection of surface soils from various areas in and around
the mine site, and also have a measurement of the water parameters--how
the water from some small streams may have carried contaminants from
the mine site downstream. The timeframe for the study was to commence
in September, 2010, and the expected duration was to be about one (1)
month. It was also explained that there may be a need to revisit some
sites at a later time to collect more dust samples. On August 10, 2010,
the Pueblo Council approved to allow the USGS Uranium Study to go
forward.
VII. PUSH FOR RADIATION EXPOSURE COMPENSATION ACT (RECA) AMENDMENTS
AND REFORM OF THE MINING LAW OF 1872.
The Pueblo has been actively involved in working with the New
Mexico Congressional delegation to amend the Radiation Exposure
Compensation Act to cover former uranium workers beyond the 1972 cutoff
period. As was indicated in the first portion of this testimony, the
Jackpile-Paguate Mine did not close until 1982, ten years after the
cutoff date under RECA. Many of these post '71 mine workers suffer the
same health effects as those pre-'71 workers, and should be afforded
the same opportunity to receive the benefits that RECA contemplated for
affected uranium workers.
VIII. CONCLUSION
Based on the Pueblo's experience with the Jackpile Mine, the Pueblo
is opposed to any further mining on or near Pueblo lands. The Pueblo
fears that the State of New Mexico, the U.S. Department of Agriculture,
and the U.S. Forest Service will permit additional uranium exploration
and mining because of the current high demand for uranium, fueled by
dwindling uranium stockpiles from existing sources and new orders for a
large number of nuclear-fueled power plants worldwide. The State of New
Mexico is currently looking at re-opening several mining and milling
sites to again mine and mill uranium in efforts to create more jobs and
boast its economy. Because of these new efforts and the Pueblo's first-
hand experience in dealing with both the health and environmental
impacts of mining uranium, and the fact that there would be new dangers
from mining and milling of uranium to downwind and downstream water
users, the Pueblo has taken steps to start developing its own air and
quality standards.
Many federal lands adjoin Indian Country and share water resources
essential to the health and welfare of tribes. Therefore, the Pueblo
believes that it is imperative that any new legislation include
adequate environmental standards to protect the health and welfare of
the adjoining tribal communities. In addition, the Pueblo would like to
see the establishment of a Hardrock Reclamation account for the clean-
up of hardrock mines, and the establishment of a hardrock community
impact assistance account fund.
In closing, thank you for allowing the Pueblo to testify before
this Committee. The Pueblo has been exploring the various options,
alternatives, and opportunities to get funds to deal with the clean-up
of the Jackpile-Paguate uranium mine site for years. What has been done
with the limited resources that were made available from the settlement
with the ARCO company was far less than what is needed to adequately
deal with the health and environmental problems that still exist to
this day at that site. We respectfully request the Committee's
favorable consideration of amending the Surface Mining Control and
Reclamation Act of 1977 to clarify that uncertified States and Indian
tribes do have the authority to use certain payments for certain non-
coal reclamation projects. If you have any questions, please do not
hesitate to contact m
______
Mr. Costa. Thank you very much, Governor Antonio. When you
show these maps as a part of your testimony, is it your
understanding because you talked about pilings on sides of
road, and I suspect there are also tailings on watershed areas,
have these been prioritized to your knowledge either by the
State of New Mexico or the Bureau of Indian Affairs or the
Department of Energy as to which pose the greatest health risks
to the affected tribal areas that you speak on behalf of?
Mr. Antonio. OK. Right now, if you look at the map again,
the Paguate Village, you can see just immediately to the right
there or to the east you see the kind of the orange color?
Well, that is a high-priority area because that is where the
mine is located, again just right next to the village.
Mr. Costa. OK.
Mr. Antonio. A little bit south where you see that other
red part, there is an old reservoir there, and that basically
became a sediment entrapment for all the debris coming down
through----
Mr. Costa. OK. But this isn't just your views or the
tribe's views, this is also reflected by the State of New
Mexico and other people who have done risk assessments?
Mr. Antonio. Yes. We have talked to the Legislature, the
Governors and, of course, our Congressional representatives,
and this is a priority area.
Mr. Costa. All right. Let me go on, Ms. Pineda. I am glad
that you cited in your testimony the sections in the existing
law, 1977, and the changes that were made in the amendments of
2006, and your argument basically is that the Department of the
Interior now is not fulfilling what the original intent of
Congress, is that correct?
Mr. Antonio. Correct.
Mr. Costa. I am talking to Ms. Pineda.
Mr. Antonio. Excuse me. OK. Sorry.
Ms. Pineda. Yes, and I guess I would further remark that
originally in 1977 when SMCRA was created the funding comes
from reclamation fees put on current coal operators, and every
year money was collected and then appropriated back to the
states, and over the past 25 to 30 years, not all of the money
was necessarily appropriated back due to budget situations or
whatever was occurring so the fund was accumulating in terms of
money not being appropriated back to the states, so our
argument is that had we been getting that money all along
during the course of the last 30 years, we would have been able
to be spending that money on non-coal projects or whatever.
Mr. Costa. And I would argue that you are in the best
position to make those determinations far better than we are
here in Washington.
Ms. Pineda. What the priorities are?
Mr. Costa. Right.
Ms. Pineda. I believe so, yes.
Mr. Costa. And you have made assessments based upon hazards
and risk assessment and risk management for health?
Ms. Pineda. Yes. Yes, back in 1980 when we first received
the AML program, Colorado in addition to all the other 30
states and tribes did a national inventory, and in addition to
that, we did a state inventory, so we have inventoried all the
areas for both coal and hard rock so that we can determine
where it is best to spend the money, whether it is on coal
projects or on non-coal projects, so we are really kind of just
asking for that flexibility for the states and tribes, and we
may end up spending some funds on coal projects because some
states have coal fires, subsidence issues that they need to
deal with.
We also recognize that we have these non-coal problems, so
basically what the states are asking for is flexibility in that
funding.
Mr. Costa. Ms. Owens, you I think stated obviously the
Administration's position and as I heard it particularly as it
referenced your priorities for 2011 and what is in the budget,
but is it your view that the amendments of 2006 allow the
Department of the Interior the determination to set these
priorities notwithstanding the monies that can be provided for
states to make their own determinations? I mean, in this case,
notwithstanding the goals of cleaning up coal mines, and I am
not arguing that point.
Obviously, there is a priority there, but also these funds
were provided to have a breakdown for states and tribes to also
be able to address their issues.
Ms. Owens. Correct. Yes, that is true, Chairman Costa, and
I just want to say that Section 409 of SMCRA was not amended in
2006. It did then, and it does now allow the uncertified states
and tribes to use their state and tribal share and also their
historic coal share for non-coal reclamation. That hasn't
changed. The states and tribes can continue to use those
distributions for non-coal reclamation.
Mr. Costa. But under that section, isn't it correct that
the states and tribes also have two other funding segments
within that they can utilize?
Ms. Owens. Well, under 409, what they can use is the state
and historic share, which is one distribution and also the
historic coal share, which is a second distribution. What
411[h][1] does is precludes the use of fire balance replacement
funds by uncertified states on non-coal reclamation.
Mr. Costa. All right. I may want to get back to that, but
my time has expired. The Ranking Member, Congressman from
Colorado, Doug Lamborn.
Mr. Lamborn. Thank you, Mr. Chairman, and before I ask any
questions, I would like to ask unanimous consent to include the
Western Governors' Association Resolution that Ms. Pineda
referred to and attached to her testimony.
Mr. Costa. Without opposition, so ordered.
Mr. Lamborn. For the record. OK. Thank you. Ms. Pineda, it
is good to have you here. It is always good to talk to a fellow
Coloradan, so thank you for your testimony. On a related issue,
we have some Good Samaritan proposals that have been proposed
here in Congress. I have one that has been proposed, for
instance. You have experience with the Animas River Basin and
Good Samaritan efforts. Can you tell us about that and how
successful they have been?
Ms. Pineda. Yes. The Animas River Stakeholders Group is a
very active kind of local watershed in the Silverton area in
San Juan County, and they have been promoting and doing several
reclamation and remediation projects along the upper Animas. In
terms of the Colorado AML program, what we have provided under
SMCRA funds is just basically safeguarding hazards because that
is really the only priority that we can use SMCRA funds for are
kind of health and safety issues related to non-coal.
In addition to that, we have partnered with the Bureau of
Land Management and also the U.S. Forest Service to do several
cleanup projects that have helped water quality issues along
the upper Animas in terms of dealing with mine waste and mine
tailings, so we have probably done over 50 reclamation
remediation projects working along the Animas River doing kind
of mine tailings and mine waster projects.
The real challenge there is that because of liability
issues under the Clean Water Act dealing with draining adits,
adits that are draining, high-pollution, acid mind drainage, we
are unable to really touch those because some of the liability
provisions that are in the Clean Water Act, and no one really
wants to have that liability long term, so the legislation put
forward by yourself and others in Congress would hopefully
amend the Clean Water Act so that we could have Good
Samaritans, we could have state agencies, local governments,
watershed groups, industry help and participate in those kinds
of cleanups because they can be very expensive when you are
looking at kind of long-term water treatment.
In terms of SMCRA and the kinds of funding that we can use
in that watershed, we have been able to help tremendously in
safeguarding a lot of those sites and then using other funding
that we were able to get to do the remediation work, and as you
know, the Silverton area and in Leadville, in Idaho Springs,
Central City, Clear Creek County, it is a very high-tourist
area with a lot of people visiting the high country, so we want
to make sure that they all have a very safe visit.
Mr. Costa. What part of Colorado?
Ms. Pineda. What?
Mr. Costa. What part of Colorado?
Ms. Pineda. All parts of Colorado.
Mr. Lamborn. Silverton.
Ms. Pineda. I am sorry. Silverton is the area that----
Mr. Costa. No. That is lovely country. I just wanted to
make sure I understood it.
Ms. Pineda. Yes.
Mr. Costa. What a lovely state I keep telling all my
friends in Colorado.
Ms. Pineda. Well, we want you to have a safe visit there.
Mr. Costa. Of course. Go ahead. I am sorry to interrupt. I
will add to your time.
Mr. Lamborn. Anything to add to that about Good Samaritan
legislation, or at this point I would like to open it up for
either of the other two witnesses. I know that the intentions
are good, but there are always unforseen consequences, and for
a Good Samaritan to right now currently pick up liability when
they are just trying to help out would discourage probably 100
percent of anyone who would otherwise offer their services.
Ms. Pineda. Right.
Mr. Lamborn. Do any of our other two witnesses care to
comment on that issue of Good Samaritan legislation?
Ms. Owens. I am not familiar with the Good Samaritan
legislation, so I wouldn't----
Mr. Costa. I didn't hear you. I am sorry.
Ms. Owens. I said that I am not familiar with the Good
Samaritan legislation, so I couldn't speak to it.
Mr. Costa. OK.
Mr. Antonio. I understand Good Samaritan means somebody
that is there to help out, so anybody that can help us out, we
will take all the help we can get. Thank you.
Mr. Lamborn. All right. Well, thank you all for being here
and for your testimony. I yield back, Mr. Chairman.
Mr. Antonio. Thank you very much.
Mr. Costa. I really think at the crux of this, and I
believe probably the legislation would not be necessary if it
weren't for a Department of the Interior memorandum of opinion
M-37014 that issued by the Solicitor on December 5, 2007, that
interpreted the amendment to Section 411 to prohibit
uncertified states and Indian tribes from unappropriated
balance amounts for non-coal mine hazards, and it is this
memorandum that has created the problem and has taken the
discretion away from states like Colorado and tribes like yours
with Laguna.
The Department has already opined on the legislation, but
frankly I guess that means they believe that the memorandum of
understanding was appropriate, and that is where we differ. Mr.
Heinrich, for your five minutes for comments or questions?
Mr. Heinrich. Thank you, Chairman. Ms. Owens, I wanted to
ask you as Congressman Teague mentioned earlier, most of the
uranium sites in the southwest date to the Cold War era when
our nation's uranium reserves were used to build up our nuclear
arsenal. New Mexico's miners and mill workers, as well as the
entire community really in Cibola and McKinley County, really
played a critical role in our national security during that
time, and many of us believe that they deserve recognition and
compensation for the things that they have suffered along the
way to produce at those uranium sites.
I wanted to ask you if the Administration opposes the use
of SMCRA funds for reclamation of uranium mines, how do you
propose that we pay for the cleanup of these sites that were
essential to our national security for decades?
Ms. Owens. Well, Congressman Heinrich, as I said, there is
a provision for some portion of the AML funding to be used for
non-coal cleanup, and that is found in Section 409 of the Act.
We recognize and appreciate the problems that are posed by non-
coal hazards. However, because of this Administration's focus
on the cleanup of high-priority coal problems under SMCRA while
we have the extension of the fund, we have to be supportive,
and we do support that money being used for the high-priority
coal cleanup.
Mr. Heinrich. Ms. Pineda, I wanted to ask you other than
SMCRA funds, what other Federal funds are available to your
department for hard rock mine reclamation?
Ms. Pineda. Thank you for that question. Currently, we do
get funding from the Bureau of Land Management and also from
the U.S. Forest Service. The issue with that funding though is
that it is for BLM properties and U.S. Forest Service
properties, so mostly on Federal land, so we still have a lot
of unpatented claims or claims that are on private property
that we still need to safeguard. We are very diligent and
efficient in using all of the different kinds of funding that
are available.
In Colorado, I am lucky to also get some state funding that
I can match with watersheds and other groups to do abandoned
mine land cleanup, and I know that New Mexico, Utah and our
other states and partners are all very diligent in getting as
much funding as we can and to use it as efficiently as we can.
Mr. Heinrich. If you add the funding stream that Ms. Owens
mentioned to any state funding you have plus what is available
through the BLM and the Forest Service, does it even begin to
meet the unmet needs that you have in Colorado?
Ms. Pineda. Well, currently we have 23,000 abandoned mines
in Colorado, so we are very cognizant of the fact that we have
to prioritize because we will probably never be able to really
reach every problem, and not only do we have safeguarding, but
as Congressman Lamborn mentioned, we have acid mine drainage
problems, and a lot of other problems that would require
enormous amounts of funding.
I can assure you that all of the states and tribes that are
involved in getting abandoned mine funding for coal or for non-
coal are very diligent in working with local governments and
watershed groups and just trying to partner and make the
dollars go as far as they can, and a lot of this money also
does translate into jobs and to other opportunities for local
communities.
Mr. Heinrich. Thank you. Governor Antonio, I wanted to ask
in addition to some of the health issues you mentioned, cancer
and other diseases that mine workers and their families have
experienced, are there currently issues with water
contamination with the Pueblo's water supplies because of the
Jackpile Mine?
Mr. Antonio. We are concerned in that close proximity there
because of the groundwater contamination. I know in the history
of the mine there were some potable water that eventually was
abandoned because of that contamination, so we are concerned.
There are some reported high levels of contamination in some of
the water, but we have to constantly monitor those.
Mr. Heinrich. Thank you, Governor. Mr. Chair, I will finish
up just by asking unanimous consent to be able to add to the
record a letter that I have from the New Mexico legislation,
which has worked on this issue for many years.
Mr. Costa. Without objection, so ordered. Let me just close
by saying clearly, Ms. Owens, as you indicated, the states and
tribes do have the utilization of the other two sources of
funding as I noted and you pointed out, but the dispute here is
really on the other source of funding here in which prior that
memorandum states and tribes, as I understand it, did have the
discretionary use of those funds.
As I look down the breakdown here in the last fiscal year,
for the State of Colorado, and I am going to round the numbers
out a bit, but under the state's share, they got $1,855,000 on
the state's share, on the historical share on the coal,
Colorado got $1.26 million, but the larger share, the prior
balance replacement funds that Director Pineda spoke about was
$4.2 million, or 58 percent of the total, of which they have no
discretion and thus the purpose of their testimony here today,
and the same thing with New Mexico.
New Mexico got $1.1 million of the state's share, $308,00
of the historical coal share, but the largest share, $3 million
plus from the prior balance replacement funds are 66 percent.
The State of New Mexico has no ability to utilize in a way that
they thing would be best for its tribes and for its priorities
within the state and vis-a-vis going back to the memorandum
again, therein lies the rub, and that is why they want to
pursue this legislation.
Ms. Owens. I just want to make one comment on that
memorandum that you refer to. The memorandum didn't make the
law. It merely interpreted it.
Mr. Costa. I know, and I am glad you raised that because
let us put a fine point on it. I am one regardless if it is a
Democratic or Republican Administration get a little tired, I
am being polite this morning, I am in a good mood, I get a lot
more than tired, but I get frustrated when any Executive Branch
decides that they are going for their own purposes interpret
the will of Congress that I think is in direct conflict with
what that will of Congress was and the clarity of it, and what
you are saying is well, notwithstanding the law, we take a
broad interpretation. We have issued this memorandum, and these
are our priorities.
Ms. Owens. Actually, Chairman, I am not saying that we take
a broad interpretation of the law. I am saying that the
memorandum opinion read the two provisions that said that the
money could be used for 402[g][1], which is the state and
tribal share, and for 402[g][5], which is the historic coal
share. That is all it did. It said what this allows you to do
is use this money, and what this allows you to do is use the
other money, and weren't attempting to do anything more than
that.
Mr. Costa. Well, the net effect of that as it breaks down
the dollars that are available, in essence, then the majority
of the funds--at least as I saw this breakdown in this fiscal
year for the States of Colorado, New Mexico and Utah--the
majority of the funds are going for the priorities that the
Department of the Interior has established and not necessarily
the priorities that the states and the tribes have established.
I think that is why we had this legislation introduced.
It is a problem. We are going to have to continue to work
on this I believe, and I commend my colleagues for raising this
issue once again. As I said, a previous measure was introduced
that first raised this issue, and we are going to have to work
this out. That is the bottom line. I want to thank all the
witnesses for their testimony. I thank the staff, my Republican
colleagues and their staff members for the fine job you do in
the event that this is our last hearing for the session.
Once again, we want to congratulate Deborah Lanzone and
Wendy Van Asselt for the good work that they have done, and we
wish you the very best, and obviously we continue to look
forward to working with everyone as we try to deal with the
problems that this Subcommittee faces on energy and minerals
for our nation on public lands. This Subcommittee is now
adjourned. Thank you.
[Whereupon, at 11:14 a.m., the Committee was adjourned.]
[ NOTE: The following documents submitted for the record have been
retained in the Committee's official files.]
Heaton, Hon. John A., State Representative,
New Mexico State Legislature, Letter dated September
20, 2010, addressed to Chairman Jim Costa.
Indall, John J. and Adela M. Duran, Counsel,
Uranium Producers of New Mexico, Testimony and
attachments dated September 23, 2010.
Richardson, Hon. Bill, Governor, State of New
Mexico, Testimony dated September 23, 2010.