[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]


                          EPA'S ANIMAS SPILL

=======================================================================

                        JOINT OVERSIGHT HEARING

                               BEFORE THE

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                                AND THE

              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                      Thursday, September 17, 2015

                               __________

                           Serial No. 114-20

                    (Committee on Natural Resources)

                               __________

                           Serial No. 114-62

             (Committee on Oversight and Government Reform)

                               __________

       Printed for the use of the Committee on Natural Resources
       
       
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                     COMMITTEE ON NATURAL RESOURCES

                        ROB BISHOP, UT, Chairman
            RAUL M. GRIJALVA, AZ, Ranking Democratic Member

Don Young, AK                        Grace F. Napolitano, CA
Louie Gohmert, TX                    Madeleine Z. Bordallo, GU
Doug Lamborn, CO                     Jim Costa, CA
Robert J. Wittman, VA                Gregorio Kilili Camacho Sablan, 
John Fleming, LA                         CNMI
Tom McClintock, CA                   Niki Tsongas, MA
Glenn Thompson, PA                   Pedro R. Pierluisi, PR
Cynthia M. Lummis, WY                Jared Huffman, CA
Dan Benishek, MI                     Raul Ruiz, CA
Jeff Duncan, SC                      Alan S. Lowenthal, CA
Paul A. Gosar, AZ                    Matt Cartwright, PA
Raul R. Labrador, ID                 Donald S. Beyer, Jr., VA
Doug LaMalfa, CA                     Norma J. Torres, CA
Jeff Denham, CA                      Debbie Dingell, MI
Paul Cook, CA                        Ruben Gallego, AZ
Bruce Westerman, AR                  Lois Capps, CA
Garret Graves, LA                    Jared Polis, CO
Dan Newhouse, WA                     Wm. Lacy Clay, MO
Ryan K. Zinke, MT
Jody B. Hice, GA
Aumua Amata Coleman Radewagen, AS
Thomas MacArthur, NJ
Alexander X. Mooney, WV
Cresent Hardy, NV
Vacancy

                       Jason Knox, Chief of Staff
                      Lisa Pittman, Chief Counsel
                David Watkins, Democratic Staff Director
             Sarah Parker, Democratic Deputy Chief Counsel
                                 
                                 ------                                

              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                     JASON CHAFFETZ, Utah, Chairman

JOHN L. MICA, Florida                ELIJAH E. CUMMINGS, Maryland, 
MICHAEL R. TURNER, Ohio                  Ranking
JOHN J. DUNCAN, Jr., Tennessee         Minority Member
JIM JORDAN, Ohio                     CAROLYN B. MALONEY, New York
TIM WALBERG, Michigan                ELEANOR HOLMES NORTON, District of
JUSTIN AMASH, Michigan                 Columbia
PAUL A. GOSAR, Arizona               WM. LACY CLAY, Missouri
SCOTT DesJARLAIS, Tennessee          STEPHEN F. LYNCH, Massachusetts
TREY GOWDY, South Carolina           JIM COOPER, Tennessee
BLAKE FARENTHOLD, Texas              GERALD E. CONNOLLY, Virginia
CYNTHIA M. LUMMIS, Wyoming           MATT CARTWRIGHT, Pennsylvania
THOMAS MASSIE, Kentucky              TAMMY DUCKWORTH, Illinois
MARK MEADOWS, North Carolina         ROBIN L. KELLY, Illinois
RON DeSANTIS, Florida                BRENDA L. LAWRENCE, Michigan
MICK MULVANEY, South Carolina        TED LIEU, California
KEN BUCK, Colorado                   BONNIE WATSON COLEMAN, New Jersey
MARK WALKER, North Carolina          STACEY E. PLASKETT, Virgin Islands
ROD BLUM, Iowa                       MARK DeSAULNIER, California
JODY B. HICE, Georgia                BRENDAN F. BOYLE, Pennsylvania
STEVE RUSSELL, Oklahoma              PETER WELCH, Vermont
EARL L. ``BUDDY'' CARTER, Georgia    MICHELLE LUJAN GRISHAM, New Mexico
GLENN GROTHMAN, Wisconsin
WILL HURD, Texas
GARY J. PALMER, Alabama

                    Sean McLaughlin, Staff Director
                 David Rapallo, Minority Staff Director
                Katie Bailey, Professional Staff Member
                           Sarah Vance, Clerk

                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Thursday, September 17, 2015.....................     1

Statement of Members:
    Bishop, Hon. Rob, a Representative in Congress from the State 
      of Utah....................................................     1
        Prepared statement of....................................     3
    Cartwright, Hon. Matt, a Representative in Congress from the 
      State of Pennsylvania......................................     8
    Chaffetz, Hon. Jason, a Representative in Congress from the 
      State of Utah..............................................     7
    Grijalva, Hon. Raul M., a Representative in Congress from the 
      State of Arizona...........................................     4
        Prepared statement of....................................     6

Statement of Witnesses:
    Begaye, Russell, President, Navajo Nation, Window Rock, 
      Arizona....................................................    79
        Prepared statement of....................................    80
        Questions submitted for the record.......................    86
    Flynn, Ryan, Secretary of Environment and Natural Resource 
      Trustee, State of New Mexico, Sante Fe, New Mexico.........    97
        Prepared statement of....................................    98
        Questions submitted for the record.......................   101
    McCarthy, Gina, Administrator, U.S. Environmental Protection 
      Agency, Washington, DC.....................................    10
        Prepared statement of....................................    12
        Questions submitted for the record.......................    13
    Olguin, Mike, Member, Tribal Council, Southern Ute Indian 
      Tribe, Ignacio, Colorado...................................    88
        Prepared statement of....................................    89
        Questions submitted for the record.......................    92
    Wolk, Larry, Executive Director and Chief Medical Officer, 
      Colorado Department of Public Health and Environment, 
      Denver, Colorado...........................................    93
        Prepared statement of....................................    95
        Questions submitted for the record.......................    96

Additional Materials Submitted for the Record:
    Fox News report, ``Before Colorado mine disaster, EPA project 
      caused spill in Georgia,'' by Watchdog.org, August 20, 2015    63
    Gold King Mine Task Order Statement of Work, August 17, 2015, 
      prepared for EPA Region 8 ERRS by Environmental 
      Restoration, LLC...........................................   135
    Hennis, Todd, President of San Juan Corporation of Colorado 
      and Owner of the Gold King Mine, prepared statement of.....   131
    List of documents submitted for the record retained in the 
      Committee's official files.................................   146
    Standard Form 95, Claim for Damage, Injury, or Death from the 
      U.S. Environmental Protection Agency for Gold King Mine 
      Release Claims.............................................    31
    Summary Report from the U.S. Environmental Protection 
      Agency's Internal Review of the August 5, 2015 Gold King 
      Mine Blowout...............................................   138
    U.S. Environmental Protection Agency Region 8, August 17, 
      2015 Memorandum providing partial chronology of events from 
      the Gold King Mine Release incident........................   112
    Wall Street Journal article, ``Salvaging a Lesson From the 
      Animas River Spill,'' by Bill Wehrum, September 9, 2015....    53
                                     

 
             JOINT OVERSIGHT HEARING ON EPA'S ANIMAS SPILL

                              ----------                              


                      Thursday, September 17, 2015

                     U.S. House of Representatives

                     Committee on Natural Resources

                             joint with the

              Committee on Oversight and Government Reform

                             Washington, DC

                              ----------                              

    The committees met, pursuant to notice, at 10:08 a.m., in 
room 2167, Rayburn House Office Building, Washington, DC, Hon. 
Rob Bishop [Chairman of the Committee on Natural Resources] 
presiding.
    Present from the Committee on Natural Resources: 
Representatives Bishop, Gohmert, Lamborn, Fleming, McClintock, 
Lummis, Duncan, Gosar, Labrador, LaMalfa, Westerman, Newhouse, 
Hice, Hardy; Grijalva, Napolitano, Tsongas, Huffman, Lowenthal, 
Cartwright, Beyer, and Gallego.
    Present from the Committee on Oversight and Government 
Reform: Representatives Chaffetz, Mica, Jordan, Walberg, Amash, 
Gosar, Gowdy, Lummis, Massie, Meadows, DeSantis, Mulvaney, 
Buck, Walker, Blum, Hice, Carter, Grothman, Hurd, Palmer; 
Maloney, Norton, Clay, Lynch, Connolly, Cartwright, Lieu, 
Watson Coleman, Plaskett, DeSaulnier, Welch, and Lujan Grisham.
    Also present: Representative Tipton, Pearce; and Lujan.
    Chairman Chaffetz. The Committee on Oversight and 
Government Reform and the Committee on Natural Resources will 
come to order. Without objection, the Chair is authorized to 
declare a recess at any time.
    I am pleased to have both committees here, and I am pleased 
to recognize the Chairman of the Committee on Natural 
Resources, my colleague from Utah, Mr. Bishop, for 5 minutes 
for his opening statement.

STATEMENT OF THE HON. ROB BISHOP, A REPRESENTATIVE IN CONGRESS 
                     FROM THE STATE OF UTAH

    The Chairman. Hey, you started the clock, and I could not 
even find the button to turn this on. Thank you, Mr. Chaffetz, 
it is nice to be here with you.
    Over a year ago, EPA began remediation on the Gold King 
Mine in Colorado that ultimately led to 3 million gallons of 
orange crap that went down the Animas and San Juan Rivers from 
Colorado into New Mexico, Utah, and perhaps even into Arizona.
    EPA documents show the Agency was aware as early as June of 
2014 that a massive blowout was possible. However, EPA decided 
not to test the hydrostatic pressure in the mine. Instead, they 
just simply dug around it with heavy machinery. If an 
individual or private company had done this, EPA would already 
have made sure there was hell to pay.
    EPA's aggressive enforcement tactics have often resulted in 
criminal charges for mistakes or accidents. In Alaska, armed 
EPA agents descended on a small mining town based on 
speculation that individuals may have violated the Clean Water 
Act. In Wyoming, EPA is threatening a rancher with $75,000 a 
day in fines because he built a stock pond on his own land. One 
dismissed EPA regional director spoke of crucifying someone to 
make an example for others. I even have a constituent who had 
jail time because he tried to work with the EPA; and EPA told 
him, when he asked for advice on how to solve his problem, ``We 
don't advise, we just regulate.''
    Evidence from states across this Nation demonstrate that 
EPA is more concerned with the enforcing of a heavy-handed 
regulation than actually protecting our resources. Now, EPA has 
violated not only this issue, but also violated environmental 
laws, like the Clean Water Act and the Endangered Species Act.
    Making sure EPA is held accountable for the spill it caused 
is the primary reason for today's hearing. Another is to hear 
from those who are affected by EPA's action. We want to find 
out what happened, how to solve it, and how to make sure it 
does not happen again. We want to find out why EPA was so slow 
in notifying downstream users of what was happening to them. 
EPA basically sat back and let others do the work of informing; 
and when those authorities asked EPA for information about the 
spill, or for access to the results of the water quality or 
sediment sampling plans, EPA simply delayed.
    I find that the states of New Mexico, Utah, and Colorado 
were quick and competent in their efforts. I am very proud of 
what the tribes were doing in this area. They were effective 
with the resources that they actually had. Even EPA workers who 
worked on the ground, I thought did a great job; but even they 
were kept in the dark by EPA Washington.
    EPA is not alone in this shameful behavior. The Interior 
Department was nearly invisible in the wake of the spill, 
despite the fact that every one of their agencies has some 
jurisdiction. The Bureau of Reclamation released over a billion 
gallons of water from the Navajo Dam to dilute the spill. I 
would like to know who did that, why, and understand the 
problems that resulted from that release of water.
    But the agencies who were simply there, like the Fish and 
Wildlife, the Park Service, and BLM, they have responsibility; 
but they were AWOL, and they should be held accountable for 
some of the results, as well.
    I am disappointed the Department of the Interior is not 
here to testify on how they will go about their separate 
investigation. We need to know what the scope of that 
investigation is, and waiting 60 days in sacrosanct area while 
they make their decisions is a wrong approach. We need to know 
ahead of time if the wrong questions are being asked in the 
first place. That is why I wish the Department of the Interior 
was actually here to testify on how they are going to go about 
their review of what is going on.
    Finally, I have one other complaint. I understand that 
Administrator McCarthy agreed to come only if she appeared 
first and on her own panel; that is something we would not do 
in my committee. You are lucky that this is a joint committee. 
Refusing to sit alongside representatives of the states and 
tribes that have traveled across this country to discuss this 
disaster is simply unheard of, and is wrong. It is arrogance, 
and it is hubris. It goes through the Agency, and it should not 
take place. The Administration does not deserve special 
treatment; they should be at the same panel with the same other 
people. I am sorry, I find this request shameful. The first 
thing you should do is apologize to the Navajo Nation and the 
Southern Utes in New Mexico and Colorado for refusing to sit at 
the same table and take the same questions with them.
    Both the EPA and the Department of the Interior will be 
held accountable, today and in the future, as the recovery 
efforts continue. I look forward to this hearing to find out 
specifics of what happened and how we solve this in the future, 
so that we do not replicate this again.
    Before we move forward on any other kind of reclamation in 
this effort, we have to make sure that we do not recreate the 
mistakes that we have done in the past. Accountability is going 
to be important. I look forward to hearing the testimony of all 
the witnesses that are here, and I yield back.
    [The prepared statement of Chairman Bishop follows:]
   Prepared Statement of the Hon. Rob Bishop, Chairman, Committee on 
                           Natural Resources
    Over a year ago, EPA began to investigate remediation of the Gold 
King Mine near Silverton, Colorado. That work culminated last month in 
the disastrous spill of 3 million gallons of orange mine water 
containing toxic heavy metals including lead, cadmium, and arsenic. The 
plume flowed along the Animas and San Juan Rivers from Colorado and 
into New Mexico, Utah, and Arizona.
    EPA documents show the Agency was aware as early as June 2014 that 
a massive blowout was possible. However, EPA decided not to test the 
hydrostatic pressure in the mine. Instead, it dug around with heavy 
machinery. If an individual or a private company had done this, EPA 
would have already made sure there was hell to pay.
    Americans have repeatedly witnessed EPA's aggressive enforcement 
tactics, which often result in criminal charges for true mistakes or 
accidents. In Alaska, armed EPA agents descended on a small mining town 
based on speculation that individuals may have violated the Clean Water 
Act. In Wyoming, EPA is threatening a rancher with $75,000 in fines a 
day because he built a stock pond on his own land. One dismissed EPA 
Regional Director even spoke of crucifying someone to make an example 
for others.
    Evidence from every state demonstrates EPA is more concerned with 
enforcing a heavy handed regulatory agenda than responsibly protecting 
our natural resources.
    Now we hear from EPA that the Animas River is under control, 
despite EPA's violating environmental laws like the Clean Water Act and 
Endangered Species Act.
    Making sure EPA is held accountable for the spill it caused is the 
primary reason for today's hearing. Another is to hear from those 
affected by EPA's actions.
    Instead of notifying downstream users and the appropriate tribal, 
state, and local authorities that a toxic plume was headed toward them, 
EPA sat back and let others do the work. And when those authorities 
asked EPA for information about the spill and for access to the results 
of water quality and sediment sampling plans, EPA obfuscated and 
delayed. So much for ``transparency.''
    EPA is not alone in its shameful behavior. The Department of the 
Interior has been nearly invisible in the wake of the spill--despite 
nearly every one of its agencies having jurisdiction. The Bureau of 
Reclamation--the agency tasked with conducting a review of EPA's 
spill--released 1.3 billion gallons of water from the Navajo Dam to 
help dilute the spill. The USGS has conducted sampling and helped 
estimate the spill's volume. The Fish and Wildlife Service, the 
National Park Service, and the BLM are entrusted with managing wildlife 
resources and Federal lands. And finally, the Bureau of Indian affairs 
ensures the Federal Government's trust responsibility to tribes is 
honored.
    Let me be clear. Secretary Jewell's refusal to testify today is 
especially egregious and disappointing, given the magnitude of this 
disaster and the breadth of its effect on her agency. As Chair of the 
White House Council on Native American Affairs, her absence runs 
counter to that Council's stated trust responsibilities. As Chairman, I 
will expect her to appear before the committee in the near future to 
provide answers. An eleventh hour, unsigned statement and ``no show'' 
is simply unacceptable and cannot be tolerated.
    I understand Administrator McCarthy agreed to come only if she 
appeared first and on her own panel--refusing to sit alongside 
representatives of states and tribes that traveled across the country 
to discuss the disaster her agency unleashed in their backyard.
    Despite our Government's foundation by states on the principles of 
federalism, the Federal Government's trust and treaty obligations to 
tribes, the EPA Administrator, at least in my view, should not be given 
special treatment.
    I expect we will hear the words ``1872 Mining Law'' repeatedly from 
both the Administration and the minority, as they attempt to ignore 
EPA's culpability, shift blame, and pursue action on an agenda that 
would decimate the mining industry.
    That is not why we are here today. This hearing is to hold the EPA 
accountable for the disaster they caused and ensure states, tribes, and 
affected property owners know what to expect as recovery efforts move 
forward.

                                 ______
                                 

    Chairman Chaffetz. I thank the gentleman. I now recognize 
Mr. Grijalva, the Ranking Member of the Committee on Natural 
Resources, for his opening statement.

   STATEMENT OF THE HON. RAUL GRIJALVA, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF ARIZONA

    Mr. Grijalva. Thank you, Mr. Chairman. Also, thank you to 
Chairman Bishop for holding this hearing.
    I would like to believe that Republicans are holding so 
many hearings on this particular incident because they 
genuinely care about water quality, wildlife, and public health 
of affected communities. I would like to believe that this has 
opened your eyes to the problem of abandoned mines throughout 
the West, acid mine drainage, and the difficult task of 
cleaning this mess up. Unfortunately, as much as I would like 
to believe, we all know this is not the case.
    The Majority's overwhelming interest in this issue comes 
from the fact that it was the Environmental Protection Agency 
that was holding the shovel when the spill occurred, and the 
Majority cannot pass up a chance to attack EPA. For them, this 
is a gold mine. This is being mined like a political gold mine, 
and the Gold Rush is on.
    I am not here to defend EPA on this issue at all. They made 
a mistake, particularly when it came to notifying the Navajo 
Nation and others in New Mexico about the spill, the 
consequences, and the mitigation that was going to be needed. 
This spill imposed real costs on people downstream.
    The legitimate claims from people affected by this spill 
deserve to be dealt with quickly, and I hope they will be made 
whole quickly. But it is important to put this incident in 
perspective, which is so sorely lacking around here.
    First, the EPA and the state of Colorado were there to 
clean up someone else's mess. The EPA and the state of Colorado 
did not hollow out the inside of these mountains in the search 
for gold. They did not simply pick up and leave when things 
were not profitable any more; those were the owners and 
operators of the Gold King Mine. But Colorado and the EPA were 
there this summer, as they have been for years, working closely 
with local stakeholders, trying to figure out a way to clean 
the mess up.
    Second, this was not a pristine mountain stream. The four 
mines on the Cement Creek had been leaking 330 million gallons 
of acid mine drainage each year. The EPA spill released 3 
million gallons. That effectively means that there is an 
equivalent-sized spill every 3 days on the river. Let me put it 
another way. This is the juice box that we are all used to--
well, at least my grandkids use all the time--it represents the 
amount of wastewater that was spilled on August 5 because of 
EPA. This water jug represents the amount that goes into the 
river each year.
    Third, it is important to point out that EPA was not there 
by itself. In addition to the longtime support of the local 
community, which has fought pollution from these mines for well 
over a century, the EPA was there in partnership with the state 
of Colorado, a partnership that has existed for decades.
    It was the EPA and the Colorado Department of Public Health 
and Environment that investigated the site back in the 1990s. 
It was EPA and the Colorado Division of Reclamation, Mining and 
Safety that were working to stop the drainage from these mines; 
and both of these agencies concluded there would not be a 
blowout at the Gold King Mine.
    But what we need more than perspective on this particular 
spill, is perspective on the entire issue. The problem here is 
a horribly outdated mining law that dates back to the time of 
the telegraph and the horse and buggy. We now have phones we 
carry in our pockets, but our mining law remains stuck in 1872. 
Because of that law, we have over a half million abandoned 
mines in this Nation, tens of thousands of miles of rivers 
contaminated with acid mine waste, and not nearly enough money 
to clean this all up. It is time to update this outdated relic.
    Earlier this year, I introduced the Hardrock Mining Reform 
and Reclamation Act. It gives us a modern mining law with 
strong environmental and public health protection. It raises 
the money to help clean up abandoned hardrock mines from coast 
to coast. Sadly, no Republicans have agreed to co-sponsor this 
bill yet.
    Whether it is uranium proposals to mine dangerously close 
to the Grand Canyon, whether it is gold in New Mexico, or 
copper ore in Arizona, the fact remains that, as these 
companies leave, they leave behind--to the miners that worked 
hard on those tough jobs, to the affected communities, they are 
left to pick up and have to deal with all the consequences of 
contamination that are left behind.
    Hardrock mining, because of the law, pays no royalties at 
all. It is time that the Majority, if they really care about 
what is happening to these communities and the rivers in the 
West, I invite them to join me in trying to reform our 19th 
century mining laws.
    With that, Mr. Chairman, thank you, and I yield back.

    [The prepared statement of Mr. Grijalva follows:]
   Prepared Statement of the Hon. Raul M. Grijalva, Ranking Member, 
                     Committee on Natural Resources
    Thank you, Mr. Chairman, and thank you and Chairman Bishop for 
holding this hearing.
    I would like to believe that Republicans are holding so many 
hearings on this particular incident because they genuinely care about 
water quality and wildlife.
    I would like to believe that this has opened your eyes to the 
problem of abandoned mines throughout the West, and acid mine drainage, 
and the difficult task of cleaning this mess up.
    Unfortunately, we all know that is not the case.
    The Majority's overwhelming interest in this issue comes from the 
fact that it was the Environmental Protection Agency that was holding 
the shovel when the spill occurred, and the Majority cannot pass up a 
chance to attack the EPA. For them, this gold mine has really been a 
gold mine.
    I am not here to defend the EPA on this issue. They made a mistake, 
particularly when it came to notifying the Navajo Nation and others in 
New Mexico, and this spill imposed real costs on people downstream.
    The legitimate claims from people affected by this spill deserve to 
be dealt with quickly, and I hope they will be made whole as soon as 
possible.
    But it is important to put this incident in perspective, which is 
so sorely lacking around here.
    First, the EPA and the state of Colorado were there to clean up 
someone else's mess. They did not hollow out the inside of these 
mountains in search of gold. They did not simply pick up and leave when 
things weren't profitable enough--that was the owners and operators of 
the Gold King Mine.
    But they were there this summer, as they have been for years, 
working closely with local stakeholders, trying to figure out a way to 
clean this mess up.
    Second, this was not a pristine mountain stream. The four mines on 
Cement Creek had been leaking 330 million gallons of acid mine drainage 
each year. The EPA spill released 3 million gallons.
    That effectively means that there's an equivalent sized spill every 
3 days on this river.
    Let me put that another way. If this juice box represents the 
amount of wastewater that was spilled on August 5 because of the EPA, 
then this water jug represents the amount that goes into the river each 
year.
    Third, it's important to point out that EPA was not there by 
itself. In addition to the longtime support of the local community, 
which has fought water pollution from these mines for well over a 
century, the EPA was there in partnership with the state of Colorado, a 
partnership that has existed for decades.
    It was EPA and the Colorado Department of Public Health and 
Environment that investigated the site back in the 1990s.
    It was EPA and the Colorado Division of Reclamation, Mining and 
Safety that were working to stop the drainage from these mines, and 
both of those agencies concluded there wouldn't be a blowout at the 
Gold King Mine.
    But what we need more than perspective on this particular spill is 
perspective on the entire issue.
    The problem here is a horribly outdated mining law that dates back 
to the time of the telegraph and the horse and buggy.
    We now have phones we carry in our pockets. But our mining law 
remains stuck in 1872.
    Because of that law, we have a half million abandoned mines in this 
Nation, tens of thousands of miles of rivers contaminated with acid 
mine waste, and not nearly enough money to clean this all up.
    It is time to update this outdated relic.
    Earlier this year I introduced the Hardrock Mining Reform and 
Reclamation Act. It gives us a modern mining law, with strong 
environmental protections, and it raises the money to help clean up 
abandoned hardrock mines from coast to coast. Sadly, no Republicans 
have agreed to co-sponsor this bill yet.
    If the Majority really cares about what's happening to the 
communities and the rivers in the West, I invite them to join me in 
trying to reform our 19th century mining laws.
    I yield back.

                                 ______
                                 

    Chairman Chaffetz. Thank you. I will now recognize myself 
for 5 minutes.

   STATEMENT OF THE HON. JASON CHAFFETZ, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF UTAH

    Chairman Chaffetz. In Colorado last month, there was a 
massive environmental disaster. Three million gallons of 
polluted mine wastewater spilled into the Animas River in a 
matter of hours. It was the worst ecological catastrophe in the 
region in recent memory. The spill released a mustard-colored 
plume into the regional river system stretching some 80 miles 
long. We have a video that I would like to show of what 
happened.
    [Video shown.]
    Chairman Chaffetz. All right, when they fix that we will 
come back to it. That is not the right video.
    So, what caused the accident? What caused the accident? The 
Environmental Protection Agency. My colleagues and I often 
disagree on the merits of EPA's action. However, I am certain 
that everyone in this room can agree that EPA should not be 
making the environment worse.
    We are here to examine how this disaster happened. We are 
also here to examine how it was managed. Most importantly, we 
are here to make sure it never, ever happens again.
    The EPA must be held fully accountable for the accident. 
Last year, a private company in West Virginia accidentally 
released roughly 7,500 gallons of chemicals into the river. 
Remember, this spill was 3 million gallons. The EPA immediately 
began a criminal investigation. The EPA built a case against 
the company that resulted in criminal indictments for six 
employees. The company was forced to declare bankruptcy.
    In 1999, a private company in Alaska inadvertently spilled 
1,500 gallons of oil into a nearby river. The project manager 
of the site was sentenced to prison--prison--for 6 months. Yet, 
I have heard the EPA Administrator go on television, saying, 
``We hold our people to an even higher standard.'' I am not 
aware of anybody who has been dismissed, held accountable, let 
alone given some criminal charges along the way.
    In the aftermath of the Deep Horizon's oil spill in 2010, 
President Obama demanded that those responsible be held fully 
accountable. When asked if he would fire the CEO of the company 
responsible, President Obama said, ``He wouldn't be working for 
me.'' Has anything happened to any of the EPA employees who 
were responsible for this? Not a thing. The EPA should not get 
special treatment or avoid the consequences they have 
instituted on others.
    One of the more offensive things that I heard as I visited 
with the President of the Navajo Nation, who was deeply 
affected by this, is that days--days--after this, we had EPA 
employees walking the banks of the river. They were not there 
to do a cleanup, not there to help with the cows, the cattle, 
and other things, but they were out there, handing out these 
waiver forms, trying to get a waiver form signed to limit the 
liability, days after this happened. Many of these people do 
not even speak English, and yet you had employees of the 
Federal Government working for you out there trying to limit 
their liability. That is so fundamentally, totally wrong and 
offensive.
    Did the EPA call the Navajo Nation to let them know what 
was happening right away? No. It was 48 hours until you 
bothered to even make contact with the Navajo Nation. Then, 
when you offered support, two people came down--two--to go sit 
in the Control Center, basically to spy and to see what was 
going on there. They were not down there working hard to get 
this thing cleaned up. We are going to hear from the President 
of the Navajo Nation. He is the one that told us about this and 
what is going on.
    You can shake your head no, but that is exactly what 
happened. It is highly offensive--hand out waiver forms, try to 
limit the liability, instead of taking care of what you knew 
was happening more than a year in advance--more than a year in 
advance. That is what is so deeply concerning here.
    There is one other point that I would like to make as we go 
along in this. In June of 2014, the EPA contracted with 
Environmental Restoration, a company, to work the Gold King 
Mine. In the contract--again, more than a year in advance--the 
contract says, ``Conditions may exist that could result in a 
blowout of the blockages and cause a release of large volumes 
of contaminated mine waters and sediment from inside the mine, 
which contain concentrated heavy metals.'' They knew this was a 
distinct possibility; they knew that this was going to happen 
more than a year in advance. Yet, obviously, they did not take 
the necessary precautions to make sure that this did not 
happen.
    We want to have some answers to that, and a host of other 
questions. We do appreciate you being here today, and we look 
forward to a lively discussion.
    I would like to recognize Mr. Cartwright, the gentleman 
from Pennsylvania, for his comments and opening statement.

  STATEMENT OF THE HON. MATT CARTWRIGHT, A REPRESENTATIVE IN 
            CONGRESS FROM THE STATE OF PENNSYLVANIA

    Mr. Cartwright. Thank you, Mr. Chairman, and thank you, 
Administrator McCarthy, for appearing before us. I understand 
this is your third time testifying this week about this 
specific topic, and I understand this is the fourth hearing 
overall on the question of the Gold King Mine release.
    It is certainly appropriate for Congress to examine this 
spill, how it happened, whether it could have been prevented, 
how it was handled, and what can be done to prevent similar 
types of spills into the future. But before we begin, I want to 
make one very important point: While the Gold King Mine spill 
was damaging, as has been pointed out by Mr. Grijalva, this 
spill pales in comparison to a series of even bigger toxic 
spills from many other mines that have been abandoned for 
decades, and the cumulative effect of daily seepage from mines 
all across our Nation for more than 100 years.
    The Animas River has been plagued by pollution caused by 
abandoned mines like the Gold King Mine. For example, in 1975, 
a dam broke on a pond holding mine waste, sending 50,000 tons 
of sludge into the Animas River and turning it, at that time, 
the color of aluminum paint. Three years later, an estimated 
500 million gallons of water and sludge from the Sunnyside Mine 
turned the Animas River black, all the way to New Mexico.
    Last week, the mayor of Durango, Colorado, Dean Brookie, 
testified before the Science Committee that ``the August 5 
release of 3 million gallons was equivalent to roughly a week's 
worth of normal discharge from this mine.'' He said this was a 
level of only 2 percent of the annual discharge from the mine. 
He testified, ``The heavy metal contamination that emanates 
from hundreds of separate mine sites in the mountains upstream 
of Durango has been impacting our community since the late 19th 
century. It is a constant, if often invisible threat to our 
community's public health and economic well-being, and has thus 
far resisted thoughtful and well-intended efforts to mitigate 
this risk.''
    Now, in Pennsylvania, my own district faces this same 
threat of continual mine discharges. We used to mine coal in 
northeastern Pennsylvania, hard coal. In fact, there are 575 
abandoned mine lands in my district, creating 382 miles of acid 
mine drainage-affected streams. The fact is that mining 
companies have not been held responsible for the toxic 
devastation they left behind. But EPA and states are being 
forced to clean up this legacy of leakage with resources that 
are completely inadequate.
    Using data obtained from the states, the environmental 
advocacy group Earthworks estimated there are more than 500,000 
abandoned hardrock mines throughout the country. To clean up 
just 147 of these mine sites, it would cost the Federal 
Government between $7-$24 billion, according to a 2004 
estimate; but in Fiscal Year 2015, the budget for cleaning up 
hardrock mine sites totaled only about $40 million. Congress 
has to provide more resources to address this problem.
    Congress must address the much broader problem of cleaning 
up these mine sites. That is why I am pleased to be an original 
co-sponsor of Mr. Grijalva's bill, the Hardrock Mining Reform 
and Reclamation Act of 2015, to help remedy the problem.
    Finally, as I said at the outset, I think it is completely 
appropriate to conduct oversight of EPA's actions in this case; 
so the hearing is appropriate. But EPA has taken responsibility 
for this accident; and independent technical experts, including 
experts at the Department of the Interior and EPA's Inspector 
General, are currently assessing what could be done differently 
to avoid this type of spill in the future, and to speed the 
notification of all parties involved. But, let's take this 
opportunity now to focus on the larger issue of the devastating 
legacy of pollution that mining companies have left behind all 
across our Nation.
    Let me close by extending our welcome to the other 
witnesses today from the Navajo Nation, the Southern Ute Tribal 
Council, and from New Mexico and Colorado. I look forward to 
your testimony, not only about this bill, but about what steps 
Congress can take to address the much broader problems we are 
facing with water quality throughout the country.
    I thank you, Mr. Chairman.
    Chairman Chaffetz. I thank the gentleman. We are going to 
try to show this video again. I think it is less than a minute. 
It shows the start of the spill and what happened.
    [Video shown.]
    Chairman Chaffetz. Some 3 million gallons. We are going to 
hold the record open for 5 legislative days for any Members who 
would like to submit a written statement.
    The Chair also would like to note the presence today of 
some of our colleagues: Congressman Steve Pearce of New Mexico; 
Congressman Scott Tipton of Colorado; as well as Ben Ray Lujan, 
also of New Mexico. We appreciate your interest in this issue, 
and look forward to your insight. I would ask unanimous consent 
that Congressmen Pearce, Lujan, and Tipton be allowed to fully 
participate in today's hearing.
    The Chairman. Mr. Chairman, are you really sure you want 
Pearce and Tipton to be here? Can we discuss that at all?
    [Laughter.]
    Chairman Chaffetz. We have some great flexibility here that 
we are exercising--the Pope is coming next week, we are trying 
to be as nice as possible.
    The Chairman. All right, I will not say anything then.
    [Laughter.]
    Mr. Grijalva. Absolution.
    Chairman Chaffetz. Without objection, so ordered.
    We now recognize the distinguished witness on our first 
panel. We are pleased to welcome Ms. Gina McCarthy, the 
Administrator of the U.S. Environmental Protection Agency.
    Pursuant to Oversight and Government Reform Committee 
rules, all witnesses are to be sworn before they testify. If 
you would, please rise and raise your right hand.
    Do you solemnly swear or affirm that the testimony you are 
about to give will be the truth, the whole truth, and nothing 
but the truth?
    Ms. McCarthy. Yes, I do, Chairman.
    Chairman Chaffetz. Thank you. Let the record reflect the 
witness answered in the affirmative.
    Your entire written statement will, obviously, be made part 
of the record. But we would appreciate your verbal comments, 
and we now recognize you for those at this time.

 STATEMENT OF GINA McCARTHY, ADMINISTRATOR, U.S. ENVIRONMENTAL 
               PROTECTION AGENCY, WASHINGTON, DC

    Ms. McCarthy. Good morning, Chairmen Chaffetz and Bishop, 
Ranking----
    Chairman Chaffetz. If you could, move that microphone--
apologies. I just want to make sure the audio is sufficient. As 
close as you can. Thank you.
    Ms. McCarthy. All right. Better?
    Chairman Chaffetz. Much better, thank you.
    Ms. McCarthy. Good morning, Chairmen Chaffetz and Bishop, 
Ranking Members Cummings and Grijalva, and members of the 
committee. I am Gina McCarthy, Administrator of the U.S. 
Environmental Protection Agency. I want to thank you for the 
opportunity to appear today to discuss the August 5 Gold King 
Mine release and subsequent EPA response.
    This was a tragic and unfortunate incident, and the EPA has 
taken responsibility to ensure that it is cleaned up 
appropriately. The EPA's core mission is to ensure a clean 
environment and to protect public health; and we are dedicated 
to continuing to do our job to protect the environment and to 
hold ourselves to the same high standard we demand of others.
    The EPA was at the Gold King Mine on August 5, conducting 
an investigation to assess mine conditions and ongoing water 
discharges, dewater the mine pool, and assess the feasibility 
of further mine remediation. While excavating above a mine 
opening, the lower portion of the bedrock crumbled, and 
approximately 3 million gallons of pressurized water discharged 
from the mine into Cement Creek, which is a tributary to the 
Animas River.
    EPA and Colorado officials informed downstream 
jurisdictions in Colorado within hours of the release, before 
the plume reached drinking water intakes and irrigation 
diversions. Notifications to other downstream jurisdictions 
continued the following day, allowing for those intakes to be 
closed prior to the plume's arrival.
    In the aftermath of the release, we initiated an internal 
review of the incident and we released an Internal Review 
Summary Report on August 26, which includes an assessment of 
the events and potential factors contributing to the Gold King 
Mine incident. The report provides observations, conclusions, 
and recommendations that regions should consider applying when 
conducting ongoing and planned site assessments, 
investigations, and construction or removal projects at similar 
types of sites across the country. The EPA will implement all 
the recommendations from the report, and has shared its 
findings with external reviewers.
    In addition to the internal review, the U.S. Department of 
the Interior is leading an independent assessment of the 
factors that led to the Gold King Mine incident. The goal of 
DOI's independent review is to provide the EPA with an analysis 
of the incident that took place at the Gold King Mine, 
including the contributing causes. Both internal and external 
reviews will help inform the EPA for ongoing and planned site 
assessments, investigations, and construction or removal 
projects.
    One of our foremost priorities is to keep the public 
informed about the impacts from the Gold King Mine release and 
our response activities. The EPA has closely coordinated with 
our Federal partners and with officials in Colorado, New 
Mexico, Utah, the Southern Ute and Ute Mountain Ute tribes, and 
Navajo Nation to keep them apprised of water and sediment 
sampling results, which are routinely posted on our Web site. 
These results do indicate that the water and sediment have 
returned to pre-event conditions. They also supported local and 
state decisionmakers as they made decisions about lifting water 
restrictions along the Animas and the San Juan Rivers on August 
14 and August 15.
    Finally, I want to clarify that the EPA was working with 
the state of Colorado to take action at the Gold King Mine to 
address both the potential for a catastrophic release and the 
ongoing adverse water quality impacts caused by the significant 
mine discharges into the Upper Animas watershed. Based upon 
2009-2014 flow data, approximately 330 million gallons of 
contaminated water was being discharged from mines in the 
watershed each year to Cement Creek and the Animas River--that 
is 100 times more than the estimated release from the Gold King 
Mine on August 5.
    The EPA was and continues to work with the state of 
Colorado and the Animas River Stakeholder Group to address 
these significant discharges from mines in the Upper Animas 
watershed that are impacting these waterways.
    I think it is important to note that, across the country, 
our Superfund program has successfully cleaned up more than 
1,150 hazardous waste sites, and successfully responded to or 
provided oversight for thousands of removal actions to protect 
human health and the environment. That reflects our long-
standing commitment to protect human health and the environment 
that we will continue to pursue. We will also continue to 
support the Administration's request for an Abandoned Mine 
Lands fee to help cover the costs of cleanup of these sites.
    All of the affected residents of Colorado and New Mexico 
and members of the Southern Ute, Ute Mountain Ute, and Navajo 
Nation tribes can be assured that EPA has and will continue to 
take responsibility to help ensure that the Gold King Mine 
release is cleaned up.
    Thank you, Mr. Chairman. That concludes my statement. I 
will be happy to answer any questions the committee might have.
    [The prepared statement of Ms. McCarthy follows:]
Prepared Statement of Gina McCarthy, Administrator, U.S. Environmental 
                           Protection Agency
    Good morning Chairmen Chaffetz and Bishop, Ranking Members Cummings 
and Grijalva, and members of the committee. I am Gina McCarthy, 
Administrator for the U.S. Environmental Protection Agency. Thank you 
for the opportunity to appear today to discuss the August 5 Gold King 
Mine release and subsequent EPA response.
    This was a tragic and unfortunate incident, and the EPA has taken 
responsibility to ensure that it is cleaned up appropriately. The EPA's 
core mission is to ensure a clean environment and protect public 
health, and we are dedicated to continuing to do our job to protect the 
environment and to hold ourselves to the same high standard we demand 
from others.
    The EPA was at the Gold King Mine on August 5 conducting an 
investigation to assess mine conditions and ongoing water discharges, 
dewater the mine pool, and assess the feasibility of further mine 
remediation. While excavating above a mine opening, the lower portion 
of the bedrock crumbled and approximately 3 million gallons of 
pressurized water discharged from the mine into Cement Creek, a 
tributary of the Animas River. EPA and Colorado officials informed 
downstream jurisdictions in Colorado within hours of the release before 
the plume reached drinking water intakes and irrigation diversions, and 
notifications to other downstream jurisdictions continued the following 
day, allowing for those intakes to be closed prior to the plume's 
arrival.
    In the aftermath of the release, we initiated an internal review of 
the incident and released an Internal Review Summary Report on August, 
26, which includes an assessment of the events and potential factors 
contributing to the Gold King Mine incident. The report provides 
observations, conclusions, and recommendations that regions should 
consider applying when conducting ongoing and planned site assessments, 
investigations, and construction or removal projects at similar types 
of sites across the country. The EPA will implement all the 
recommendations from the report and has shared its findings with 
external reviewers.
    In addition to the internal review, the U.S. Department of the 
Interior is leading an independent assessment of the factors that led 
to the Gold King Mine incident. The goal of DOI's independent review is 
to provide the EPA with an analysis of the incident that took place at 
Gold King Mine, including the contributing causes. Both internal and 
external reviews will help inform the EPA for ongoing and planned site 
assessments, investigations, and construction or removal projects.
    One of our foremost priorities is to keep the public informed about 
the impacts from the Gold King Mine release and our response 
activities. The EPA has closely coordinated with our Federal partners 
and with officials in Colorado, New Mexico, Utah, the Southern Ute and 
Ute Mountain Ute tribes and the Navajo Nation to keep them apprised of 
water and sediment sampling results, which are routinely posted on our 
website. These results indicate that water and sediment have returned 
to pre-event conditions and supported local and state decisionmakers as 
they made the decision to lift water restrictions along the Animas and 
San Juan Rivers on August 14 and August 15.
    Finally, I want to clarify that the EPA was working with the state 
of Colorado to take action at the Gold King Mine to address both the 
potential for a catastrophic release and the ongoing adverse water 
quality impacts caused by the significant mine discharges into the 
Upper Animas Watershed.
    Based upon 2009-2014 flow data, approximately 330 million gallons 
of contaminated water was being discharged from mines in the Watershed 
each year to Cement Creek and the Animas River--100 times more than the 
estimated release from the Gold King Mine on August 5.
    The EPA was and continues to work with the state of Colorado and 
the Animas River Stakeholder Group to address these significant 
discharges from mines in the Upper Animas Watershed that are impacting 
these waterways.
    I think it is important to note, that all across the country, our 
Superfund program has successfully cleaned up more than 1,150 hazardous 
waste sites and successfully responded to or provided oversight for 
thousands of removal actions to protect human health and the 
environment. That reflects our long-standing commitment to protect 
human health and the environment that we will continue to pursue and 
continue to support the Administration's request for an Abandoned Mine 
Lands fee to help cover the costs of cleanups at these sites.
    All of the affected residents of Colorado and New Mexico and 
members of the Southern Ute, Ute Mountain Ute, and Navajo Nation Tribes 
can be assured that the EPA has and will continue to take 
responsibility to help ensure that the Gold King Mine release is 
cleaned up.
    Thank you Mr. Chairman that concludes my statement. I will be happy 
to answer any questions that you or the committee members may have.

                                 ______
                                 

Questions Submitted for the Record to Administrator Gina McCarthy, U.S. 
                    Environmental Protection Agency
  Questions Submitted by Rep. Jason Chaffetz, Chairman, Committee on 
                    Oversight and Government Reform

    Question 1. Administrator McCarthy has said that Environmental 
Protection Agency (EPA) acknowledges responsibility for the Gold King 
release. What is the extent of the ``responsibility'' EPA is willing to 
assume?

    Answer. The EPA has taken responsibility to ensure that the release 
from Gold King Mine is cleaned up appropriately. The Agency is 
committed to working closely with response agencies and state, local 
and tribal officials to respond to concerns and to evaluate impacts to 
public health and the environment.
    On August 26,2015, with a December 8, 2015, addendum, the Agency 
issued an internal review of the events leading up to the blowout. The 
Summary Report and addendum are posted on the EPA Web site. One of the 
initial lessons learned in the aftermath of the Gold King Mine release 
is that the EPA can improve its communications regarding releases and 
other environmental events that may affect multiple jurisdictions. The 
EPA believes it is important to focus on the steps that need to be 
taken to help prevent similar incidents from occurring at other mining 
sites. The EPA is reviewing the Department of the Interior Technical 
Evaluation of the Gold King Mine Incident report and is awaiting the 
review from the EPA's Office of the Inspector General. These reports 
and assessments will help inform the EPA's ongoing efforts to work 
safely and effectively at mine sites as we carry out our mission to 
protect human health and the environment.

    Question 2. The EPA is the Federal agency charged with setting the 
national standard for environmental stewardship. Shouldn't EPA be held 
to a higher standard than the entities it regulates?

    Answer. The EPA's core mission is to ensure a clean environment and 
protect public health, and we are dedicated to continuing to do our job 
to protect the environment and to hold ourselves to the same high 
standard we demand from others.

    Question 3. In a letter dated September 3, 2015, the state of Utah 
put EPA Region 8 Administrator, Shawn McGrath on notice of actions 
taken by state and local government agencies to protect the health, 
safety and welfare of citizens and visitors, as well as the economic 
base of the affected local governments. The letter notes that not-with-
standing EPA's stated intent to reimburse response costs, expenses and 
damages, to date the state has received no response, or confirmation of 
EPA's intention to reimburse the state, the process to obtain 
reimbursement or when payment may be received. Based on these 
circumstances:

  a.  Does EPA in fact intend to reimburse the state for response 
            costs, expenses and damages?

  b.  What is the process for the state and local governments to submit 
            claims to EPA?

  c.  When may the state and local governments expect to receive 
            payment?

  d.  How will EPA fund the costs of reimbursement?

    Answer. Enclosed is the EPA Regional Administrator's October 7, 
2015, response to the state of Utah's inquiry regarding the process for 
seeking reimbursement for state and local governments' response costs, 
expenses and damages from the Gold King Mine release. This letter 
addresses the Joint Committee's question about the process for 
submitting claims under the Federal Tort Claims Act and applying for 
cooperative agreements pursuant to the Comprehensive Environmental 
Response, Compensation & Liability Act (CERCLA) and the EPA's 
implementing regulations at 40 C.F.R. Part 35, Subpart O. The region 
continues to work with the state on its request for reimbursement of 
response costs.

Enclosure

            U.S. ENVIRONMENTAL PROTECTION AGENCY,  
                                          REGION 8,
                                           Denver, Colorado

                                                    October 7, 2015

Alan Matheson
Executive Director
Utah Department of Environmental Quality
P.O. Box 144810
Salt Lake City, Utah 84114-4810

    Dear Mr. Matheson:

Thank you for your letter of September 3, 2015, inquiring about the 
process for seeking reimbursement for state and local governments' 
response costs, expenses and damages from the Gold King Mine Spill.

Individuals, businesses or governmental entities that have a claim for 
money damages resulting from personal injury, property damage or 
economic loss caused by negligent or wrongful federal government 
actions may file a claim under the Federal Tort Claims Act (FTCA). 
Standard Form 95 is used to present claims against the United States 
under the FICA. Standard Form 95 is not required to present a claim 
under the FTCA, but it is a convenient format for supplying the 
information necessary to bring an FTCA claim. For information about how 
to file a claim, including access to Standard Form 95, please visit the 
EPA's website at the following address: http://www2.epa.gov/
goldkingmine/claims-process-and-standard-form-95-damage-injury-or-
death-result-gold-king-mine.

As a general matter, claims must be presented to the EPA within two 
years after the claim accrues. A person may amend their claim form at 
any time prior to reaching a settlement with the EPA, or before the 
person files a lawsuit under the FTCA. Although EPA regulations state 
that the agency has six months to resolve a claim, we will make every 
effort to respond to Gold King Mine release claims as soon as possible.

The EPA also can enter into cooperative agreements with states, tribes 
and political subdivisions to pay for certain costs related to response 
actions in connection with the Gold King Mine release under the 
Comprehensive Environmental Response, Compensation and Liability Act 
(CERCLA) and EPA implementing regulations at 40 C.F.R. Part 35, Subpart 
O. If the state of Utah wishes to apply for a cooperative agreement 
with the EPA, please call Cinna Vallejos at (303) 312-6376, or visit 
the EPA's website at the following address: http://www.epa.gov/ogd/
grants/how_to_apply.htm.

The EPA continues to monitor conditions in the Animas and San Juan 
Rivers and is in the process of developing a monitoring strategy for 
the next year, with input from all the stakeholders, including the Utah 
Division of Water Quality.

The EPA, in consultation with the Animas River Stakeholders Group 
(ARSG), has installed a bulkhead in the Red and Bonita mine. This 
bulkhead will control any sudden releases from within the Red and 
Bonita mine and can be closed in when the site team is ready to 
evaluate the results from the bulkhead closure. The EPA is working at 
the Gold King Mine to stabilize the adit entry and the first 75 feet of 
the adit this year, weather conditions permitting. Next year we will 
continue with work to open up the mine and evaluate water flows.

As part of the Gold King Mine spill, the EPA has tasked our contractor 
to install a temporary treatment system at Gladstone to treat ongoing 
discharges from the Gold King Mine over the winter. While this 
treatment will dramatically improve the water quality of the Gold King 
Mine discharge, other mines in the area will continue to discharge 
water until more permanent solutions are developed. We are working with 
the state of Colorado and local leaders on such long-term remediation 
strategies in the Upper Cement Creek Basin.

Again, we appreciate your inquiry. If the EPA may provide anything 
further, please contact me, or your staff may wish to contact David 
Ostrander, Gold King Mine Regional Incident Coordinator, at (303) 312-
6827 or [email protected].

            Sincerely,

                                          Shaun L. McGrath,
                                            Regional Administrator.

    Question 4. Does EPA assume responsibility for the damages caused 
by the action or inaction of its contractor--Environmental Restoration 
on August 5, 2015?

  a.  Was Environmental Restoration following a work plan prepared by 
            EPA at the time of the release?

  b.  Was Environmental Restoration acting under the direction and 
            control of EPA's on-scene coordinator at the time of the 
            incident?

    Answer. The EPA is committed to working closely with response 
agencies and state, local and tribal officials to respond to concerns 
and to evaluate impacts to public health and the environment. 
Individuals, businesses or governmental entities that believe they have 
suffered money damages resulting from personal injury, property damage 
or economic loss caused by negligent or wrongful U.S. Government 
actions may file a claim with the EPA under the Federal Tort Claims Act 
for injury or damage. To date, no determination has been made regarding 
claims submitted to the EPA.
    The EPA had an approved work plan for site activities and there was 
an EPA On-Scene Coordinator at the time of the incident. The EPA is 
reviewing the Department of the Interior's report on the Gold King Mine 
incident and is awaiting a report from the EPA's Office of the 
Inspector General.

    Question 5. Does EPA plan on taking any action against its 
contractors--Weston (Superfund Assessment and Response Team) and 
Environmental Restoration (Emergency and Rapid Response Services) to 
recover any reimbursement costs or damages it is required to pay?

    Answer. At this point, the EPA has not taken any action against its 
contractors. The EPA believes it is important to focus on the steps 
that need to be taken to help prevent similar incidents from occurring 
at other mining sites. The EPA is currently reviewing the Department of 
the Interior's report of the Gold King Mine Incident and is awaiting a 
report from the EPA's Office of the Inspector General.

    Question 6. Why did EPA delay in providing the state and other 
stakeholders notice of the release and why did it refuse to share water 
quality monitoring data in the days immediately following the release?

  a.  Was EPA adequately prepared for an emergency given the conditions 
            known at the time?

  b.  Did the sampling and monitoring results immediately following the 
            release disclose any ongoing threats to public health, 
            safety or the environment?

    Answer. Consistent with EPA Region 8's Regional Contingency Plan, 
notifications to local officials in Silverton and to the Colorado spill 
reporting line were done as quickly as possible through the state staff 
who were working in the area. The Colorado Department of Public Health 
and Environment then proceeded to immediately notify downstream water 
users along the Animas River, on Wednesday, August 5, the day of the 
release. Local officials in Durango were notified the day of the 
incident and actions were taken to shut down water intakes and 
irrigation ditches. The plume reached Durango the evening of August 6. 
Further notifications were made to additional Colorado state officials, 
EPA Region 6, New Mexico Environmental Department, and additional local 
and tribal officials on August 5-8.
    The EPA began collecting water quality data in advance of the plume 
reaching downstream locations, and once the data was thoroughly 
reviewed and validated, it was released to the public and posted on the 
EPA's Web site. Sampling following the release showed a spike in metal 
concentrations for 1 day and subsequently water quality returning to 
pre-incident conditions. The closure of water intakes, irrigation 
ditches and recreational use on the Animas River limited the potential 
for exposure to the metal concentration spike and addressed concern for 
public health or safety. Additionally, assessment of immediate impacts 
through studies done by Colorado Department of Public Health and 
Environment and Mountain Studies Institute showed no acute impacts to 
the aquatic biota.
    The EPA was working with the state of Colorado to take action at 
the Gold King Mine to address both the potential for a catastrophic 
release and the ongoing adverse water quality impacts caused by the 
significant mine discharges into the Upper Animas Watershed over many 
years. These efforts are continuing following the August 5, 2015, 
release to prevent future releases.
    The Site Health and Safety Plan at the Gold King Mine included 
emergency procedures that addressed worker safety, release response, 
evacuation routes and emergency notifications. A copy of the Health and 
Safety Plan can be found at: http://www2.epa.gov/goldkingmine/gold-
king-health-and-safety-plan. All indications at the site were that 
there was limited water backed up inside the mine prior to the release 
and that precautions had been taken to avoid an uncontrolled release.

    Question 7. What are EPA's plans to address the continuing and 
long-term impacts of the discharges from the mines in the Animas 
watershed?

  a.  What water treatment technologies and processes have been 
            evaluated to address the discharges?

  b.  What are the estimated costs of long-term treatment of the 
            discharges from the Gold King Mine?

  c.  To what level of water quality (drinking water standards) will 
            the discharge be treated?

  d.  How long will treatment be required?

  e.  How will EPA fund those ongoing perpetual, long-term costs?

    Answer. The U.S. EPA, together with the Colorado Department of 
Public Health and Environment, is listening to and working with local, 
tribal, nongovernmental and other stakeholders regarding their concerns 
and evaluating options for long-term solutions to the impacts from 
mining in the Upper Animas Watershed.
    In the interim, the EPA has constructed a temporary water treatment 
plant to address the ongoing discharges from the Gold King Mine over 
the winter season. The EPA evaluated six proposals for the interim 
water treatment plant, all proposing a chemical neutralization process. 
The capital cost of interim water treatment plant selected is $1.78 
million and annual operations costs are $1.0 million. The water quality 
discharge goals for the interim water treatment plant is to reduce 
total metals by greater than 85 percent. Since the treated water is not 
being used as a source of potable water, drinking water standards were 
not applied to the discharge of the water treatment plant. The 
treatment plant will be operated over the winter during the limited 
time that removal work is being conducted at the Gold King Mine. EPA's 
Superfund Removal Program is providing the funding for the temporary 
water treatment.

    Question 8. Has EPA sampled the sediments in the Animas and San 
Juan Rivers following the Gold King Mine Release?

  a.  Has EPA made a comparison between the contaminant (heavy metals 
            and hazardous substances) concentrations in the sediments 
            pre-release and post-release?

  b.  What conditions does the comparison disclose?

    Answer. The EPA has been conducting environmental studies of metal 
concentrations and other water quality parameters in the Upper Animas 
Watershed since 2009. As part of those studies, the EPA collected 
sediment and surface water samples. In addition, after the Gold King 
Mine release, the EPA conducted sampling of sediment and surface water 
at the same sampling locations in Colorado to specifically evaluate 
impacts from the Gold King Mine release. In New Mexico, surface water 
and sediment sampling began on August 6, 2015, and August 10, 2015, 
respectively. In Utah, surface water and sediment sampling began on 
August 9, 2015, and August 14, 2015, respectively.
    Because the EPA had data to characterize pre-release conditions in 
Colorado, we were able to compare metal concentrations in sediment pre-
release and post-release. Concentrations of metals in river sediments 
typically vary from sample to sample, and this was observed in the San 
Juan River but no net increase in metals concentrations have been 
observed since the Gold King Mine release. The EPA's test results 
subsequent to the Gold King Mine release show that metal concentration 
levels throughout the area as well as in New Mexico and Utah are below 
sediment/soil recreational screening levels.
    By August 12, 2015, EPA's test results were showing metal 
concentration levels throughout this area below surface water and 
sediment/soil recreational screening levels and returning to pre-event 
conditions. By September 2, 2015, sampling results were showing that 
levels were back to and maintaining pre-event levels.\1\ Based on 
previous monitoring, it has been shown that metal concentrations may 
fluctuate from time to time because of water surges due to heavy rains 
or other events that may change the water flow rates or volume.
---------------------------------------------------------------------------
    \1\ http://www2.epa.gov/goldkingmine/data-gold-king-mine-
response#datasets.

    Question 9. Has EPA evaluated the impacts of the release in the 
sediments, macroinvertebrates, vegetation and aquatic life in the 
---------------------------------------------------------------------------
Animas and San Juan water systems?

  a.  What did the evaluation disclose?

  b.  Are there protected species of fish or other aquatic life in the 
            Animas and San Juan Rivers?

  c.  What are the anticipated long-term impacts on sediments, 
            macroinvertebrates, vegetation and aquatic life based on 
            the available sampling information?

    Answer. The EPA has evaluated macroinvertebrate impacts in the 
Animas and San Juan Rivers. In collaboration with the Mountain Studies 
Institute, benthic invertebrates have been evaluated in Colorado both 
pre-release and post-release. The state of Colorado has evaluated 
impacts to fish, and no fish kills have been reported in the rivers 
downstream from the release.
    The EPA has compared metals concentrations measured in the sediment 
sampling program in the Animas and San Juan Rivers with sediment 
screening concentrations used by the EPA to evaluate the potential for 
ecological impacts, and sediment concentrations in the rivers are 
consistently below those screening concentrations. These studies have 
indicated no additional impairment to benthic macroinvertebrates, 
microinvertebrates nor fish.
    The EPA understands there are no protected species of fish or other 
aquatic life in the Upper Animas River. The U.S. Fish and Wildlife 
Service lists the following fish species as present or potentially 
present in the San Juan River: Razorback sucker (endangered) and 
Colorado pikeminnow (endangered), Greenback cutthroat trout 
(threatened), and the Zuni bluehead sucker (endangered).
    The EPA has not found any immediate impacts to biota and data does 
not suggest that there will be any long-term impacts to the Animas or 
San Juan River sediments, benthic macroinvertebrates, vegetation or 
aquatic life due to the Gold King Mine release. The EPA will evaluate 
additional data produced under a long-term Conceptual Monitoring Plan 
currently in review.

    Question 10. Has EPA identified technologies and processes to treat 
sediments in the Animas and San Juan Rivers to eliminate any heavy 
metals and hazardous substance contamination?

  a.  To what quality levels will the sediments be treated?

  b.  How long will treatment be required?

  c.  How will EPA fund those ongoing perpetual, long-term costs?

    Answer. Other than removal or capping, there are no known treatment 
technologies for treating sediment. However, because there have not 
been any risks identified to the Animas and San Juan Rivers due to the 
Gold King Mine release, no treatment technologies appear to be 
warranted at this time. The EPA will evaluate additional data produced 
under a long-term Conceptual Monitoring Plan.

              Questions Submitted by Rep. Grace Napolitano

    Question 1. Estimates of the number of abandoned mines in the 
United States vary greatly--anywhere from 100,000 to 500,000. With the 
information that EPA currently has, can you provide me with the number 
and location of known abandoned mines in the United States (please 
break them down by: state, Federal land vs. private land, NPL list, 
Federal agency with jurisdiction). How many of these abandoned mines 
are foreign owned? Additionally, can you please quantify the amount of 
ongoing toxic releases that escape from these mines on a daily basis?

    Answer. Abandoned mine lands exist across private, Federal, state, 
and/or tribal lands. A number of Federal statutes address environmental 
contamination issues associated with abandoned mine lands, and Federal 
statutory authority is spread among several agencies with no one agency 
having overall statutory responsibility. Five Federal agencies 
including the Department of the Interior's Bureau of Land Management, 
Office of Surface Mining Reclamation and Enforcement, and National Park 
Service; the Department of Agriculture's Forest Service; and the 
Environmental Protection Agency may be authorized to fund the cleanup 
of some of these hardrock mine sites based upon jurisdiction, need, and 
state concurrence. Therefore, the EPA does not maintain a comprehensive 
list of the number, location or ownership status of abandoned mines in 
the United States.
    The EPA does not maintain information on the amount of ongoing 
toxic releases from mines. However, according to the U.S. General 
Accounting Office (Information on the Number of Hardrock Mines, Cost of 
Cleanup, and Value of Financial Assurances, GAO-11-834T, July 14, 
2011), there are at least 161,000 abandoned hardrock mine sites in the 
12 western states and Alaska, and at least 33,000 of these sites have 
degraded the environment by contaminating surface water and groundwater 
or leaving arsenic-contaminated tailings piles. There are 129 mining 
and mineral processing sites on the NPL and another 8 sites being 
addressed through Superfund Alternative Approach agreements. Although 
not a comprehensive list, additional information regarding other state 
inventories can be found at: http://www.abandonedmines.gov/
mapdata.html.

    Question 2. My understanding is that the Environmental Protection 
Agency has limited statutory responsibility over abandoned mines, 
unless these mines pose an imminent and substantial endangerment to 
public health, or where assistance from EPA is requested by another 
Federal agency, a state, or other stakeholder. More specifically, as 
you noted in your testimony, EPA may participate in abandoned mine 
activities related to its authorities under the Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA).

     Please provide me with a detailed summary of the abandoned 
            mine sites where EPA has used its CERCLA authority over the 
            past 5 years, including information on the amount of 
            Federal appropriations expended for such sites, whether the 
            activities undertaken using these funds were related to 
            removal or remedial activities (or some other CERCLA 
            related authority), and a brief description of the 
            activities undertaken.

     In addition, I understand that EPA may also utilize the 
            authorities under the Federal Water Pollution Control Act 
            (Clean Water Act) related to abandoned mines, including 
            both its authorities under sections 402 and 319. Please 
            provide me with a detailed summary of the abandoned mine 
            sites where EPA has used its Clean Water Act authority over 
            the past 5 years, including a brief description of the 
            activities undertaken.

    Answer. In general, EPA's Superfund program addresses hardrock 
mining and mineral processing site cleanups by listing a site on the 
Superfund National Priorities List (NPL) or by performing removal 
actions when states have requested the EPA's assistance to address 
imminent risks to human health or the environment. The Superfund 
program has also worked with other Federal agencies to address 
contamination at hardrock mining sites. To date, the EPA's Superfund 
program has been involved in only a small fraction of the abandoned 
hardrock mine sites located throughout the country.
    There are currently 129 abandoned hardrock mining and mineral 
processing sites on the NPL and another 8 sites with Superfund 
Alternative Approach (SAA) agreements. Information available online for 
each site includes the state and the EPA region where the site is 
located, provides a current status update of the site, and links to 
additional information about the site.\2\
---------------------------------------------------------------------------
    \2\ http://www.epa.gov/superfund/abandoned-mine-lands-site-
information-1.
---------------------------------------------------------------------------
    If warranted, removal actions, which are short-term responses used 
to handle threats of releases which pose an imminent risk to public 
health or the environment, may be taken at any stage of the Superfund 
process to ensure public safety. The EPA took early removal actions to 
address imminent threats at approximately 35 percent of hardrock mining 
or mineral processing NPL sites prior to their being added to the NPL.
    The EPA has spent close to $1.1 billion in Superfund removal and 
remedial response costs at the 137 proposed, final, and deleted non-
Federal NPL and SAA mining sites during FY 2010-2014. Of the $1.1 
billion, the EPA has spent nearly $585 million in congressionally 
appropriated funds and more than $470 million in funds obtained from 
potentially responsible parties through settlements (Special Accounts). 
These expenditures do not include any funds potentially responsible 
parties and Federal agencies have spent on their own to conduct 
response work. The most frequently selected remedies at mining sites to 
address acid mine drainage include: institutional controls, on-site and 
off-site disposal and engineering containment, and water treatment 
(lime/precipitation).
    The EPA is not aware of any Clean Water Act Section 402 (NPDES) 
permit issued for abandoned mines in the last 5 years. In utilizing 
Clean Water Act Section 319 funding, states identify priority waters 
and nonpoint-source pollution problems, and identify and fund 
activities to address these problems. From 2009-2014, of the Section 
319 projects funded by the EPA, just over $61.7 million were invested 
to fund 105 projects that targeted pollution related to abandoned mine 
drainage, mine tailings, open pit mining, and surface/subsurface mining 
across 10 states (AK, AZ, CA, CO, MD, MI, MT, OH, PA, WV). Of these 
funds, approximately 60 percent have gone to watershed-based projects, 
implementing best management practices within the target watersheds; 
the remaining 40 percent provided funding for activities such as 
watershed planning, water quality monitoring, planning and staff 
support.

    Question 3. My understanding is that a potential remedial action 
related to abandoned mines is to permanently seal any potential 
openings to the mine shaft, to allow the mine to fill with water (and 
remove all of the air that is causing the chemical reactions that lead 
to acid mine drainage), and to control and treat any potential seepage 
from the mine. Some have suggested that this potential remedy only 
increases the likelihood of a future release, should the water in the 
sealed mine cross over into another mine or escape through a previously 
unknown weak point in the structure. How does EPA ensure that proposed 
remedial actions related to abandoned mines improve the overall 
protection of human health and the environment, and not increase the 
likelihood of future uncontrolled releases, such as those that occurred 
at the Gold King Mine?

    Answer. Mine tunnels or adits have been sealed or plugged using 
bulkheads by mining companies as well as state, Federal, and other 
regulators at hardrock and coal mine sites across the United States and 
the world. The objective of installing engineered bulkheads in mine 
adits is to stop or reduce the flow of acid mine drainage from the mine 
and thereby reduce the costs of water treatment that is often necessary 
prior to discharging the mine-contaminated water to the environment. A 
well-engineered bulkhead is typically designed to handle any mine water 
pressure that would likely build up in the mine behind the plug. Proper 
characterization of the mine workings hydrology, hydrogeology, and 
structural stability is needed prior to designing and constructing 
these plugs.
    It is important to note that the Gold King Mine level 7 was 
primarily plugged by a cave-in within the mine tunnel and a temporary 
soil fill was used to secure the adit over the winter. There was not a 
concrete, engineered bulkhead installed at the Gold King Mine Level 7 
adit. In order to be effective and avoid unintended consequences, 
bulkheads have to be designed and constructed to withstand hydraulic 
head or pressure buildup which may impact other parts of the mine 
workings. If not properly characterized or designed, permanent 
bulkheads may potentially lead to pressure buildup and a water release 
from other parts of the mine. Flow through bulkheads, which have piping 
and valves constructed within them, can be designed to monitor water 
buildup and pressure and/or relieve the water and pressure buildup and 
reduce the potential of water being released from other parts of the 
mine.

    Question 4. The water and sediments stirred up by the Gold King 
Mine spill carried downstream through the Animas River, surged into the 
San Juan River and eventually made it to Lake Powell. The chemical 
constituency of the release is now distributed throughout the Animas, 
San Juan and the San Juan Arm of Lake Powell. These sediments and 
consolidated chemicals will be resuspended into the water column during 
future high flow runoff or storm events. While the initial impact may 
have dissipated, we know that the long-term effects will continue. What 
support does EPA intend to provide to the states of Colorado, New 
Mexico and Arizona to continue to monitor and evaluate this 
resuspension of chemicals into the water columns.

    Answer. The EPA will implement a Conceptual Monitoring Plan that 
will sample and assess conditions across the entire watershed, 
including Cement Creek near the Gold King Mine over at least the next 
year, to help determine whether there are any longer term impacts 
associated with the Gold King Mine release. The Conceptual Monitoring 
Plan was distributed for review and comment by state, tribal, and local 
interests, and the EPA currently is evaluating comments received. The 
EPA expects to provide technical and financial resources in 
implementing the Conceptual Monitoring Plan to the affected states and 
tribes using CERCLA response and Clean Water Act authorities.
    The EPA, together with the Colorado Department of Public Health and 
Environment, is listening to and working with local, tribal, 
nongovernmental and other stakeholders regarding their concerns and 
evaluating options for long-term solutions to the impacts from mining 
in the Upper Animas Watershed.

    Question 5. The tribes have a special relationship with the Animas 
and San Juan Rivers. They withdraw water that does not have to go 
through traditional water treatment before it is used to irrigate 
crops, water stock or be used directly by the tribal people. What 
specific actions will the EPA take to ensure that the tribes are 
funded, supported, and worked with as required--in a nation-to-nation 
relationship to track the impacts of this spill over the years it will 
take to move the sediment downstream?

    Answer. The EPA recognizes that tribes have important and 
traditional uses of their waters. The EPA proposed a Conceptual 
Monitoring Plan to assess the impacts of the release and to assess the 
condition of the watershed and these rivers. That plan was provided to 
the tribes for their review and comment. We have recently received and 
are reviewing their input. The EPA is exploring options on how to 
support the tribes in the assessment of these rivers. The EPA will 
continue to work with the tribes through our nation-to-nation 
relationship, and in accordance with the EPA's tribal policies. We will 
continue to apply that approach to our work with the tribes through the 
Conceptual Monitoring Plan and beyond.

    Question 6. Have samples been pulled and analyzed at the source of 
the spill for baseline conditions. Are they continuing to be sampled? 
Does the EPA have long-term concerns with the effects on health, 
livestock and the watershed from exposure to the metals in the river 
water? Do the Centers for Disease Control and Prevention or National 
Institutes of Health play a role in analyzing the short- and long-term 
effects?

    Answer. Yes. The EPA has conducted sampling near the Gold King Mine 
entrance periodically since 2009. Since the August 5 release, the EPA 
has collected samples from the mine discharge and sediments in the 
mine. We have also analyzed samples in Cement Creek both upstream and 
downstream from the treatment ponds.
    The EPA will implement a Conceptual Monitoring Plan that will 
sample and assess conditions across the entire watershed, including 
Cement Creek near the Gold King Mine over the next year, to help 
determine whether there are any longer term impacts associated with the 
Gold King Mine release.
    Sampling of surface water and sediment to date have indicated no 
additional impairment to the Animas River and San Juan River associated 
with the Gold King Mine release. Water and sediment concentrations in 
the Animas and San Juan Rivers vary day-to-day, and, even prior to the 
spill, water and sediment concentrations occasionally exceeded 
screening levels for health, livestock, agriculture, river biota, etc. 
Those screening levels are for long-term conditions and the occasional 
exceedances observed are not high enough or sustained enough to 
threaten public health or other resources. It is important to note that 
this region of the Upper Animas River has been impaired by metals 
concentrations due to extensive historical mining activities for more 
than 100 years.
    The EPA works closely with the Agency for Toxic Substance and 
Disease Registry (ATSDR), which is part of the Centers for Disease 
Control and Prevention, in the evaluation of public health impacts due 
to environmental contamination. ATSDR participated in the Area Command 
for the Gold King Mine and provided advice and information to local 
officials.

                Questions Submitted by Rep. Dan Newhouse

    Question 1. Who was EPA's ``On-Scene Coordinator'' at the Gold King 
Mine on August 5 when the spill was triggered and what was the role of 
that official on site?

    Answer. The EPA On-Scene Coordinator (OSC), as stated in the 
National Oil and Hazardous Substances Pollution Contingency Plan (the 
NCP), directs response efforts and coordinates all other efforts at the 
scene of a release. The section of the NCP on response operations (40 
CFR 300.135) details the duties of the OSC. Because of threats or 
harassment related to the Gold King Mine release on August 5, the EPA 
has not released the names of employees on-site at the time of the 
release.

    Question 2. Why didn't the EPA test the hydrostatic pressure within 
the mine before working, even though it was well-known that 
contaminated mine water was gathering in the mine's tunnels?

    Answer. EPA's Gold King Mine Internal Review Team found that site 
conditions made it difficult to use a drill rig to bore into the GKM 
from above and determine the level of the mine pool and pressure within 
the mine. The Review Team identified technical challenges, safety, 
timing, and cost as factors in considering this technique--and also 
identified the steepness and instability of slopes at the site as a key 
safety consideration.

    Question 3. Ensuring water quality while handling waste in closed 
mines clearly requires expertise in mine management. Why does your 
agency continue to insert itself into mine remediation without 
employing a single mine engineer across the entire agency?

    Answer. Throughout the EPA's three decades of cleaning up waste 
sites through the Superfund response program, the EPA has used an 
interdisciplinary approach to clean up sites that includes employing 
scientists and engineers, including those with mine-related degrees and 
experience in project manager positions, including our On-Scene 
Coordinators. Many of these employees have experience in the natural 
resource and mining industries that they bring with them to the EPA.
    Additionally, EPA contractors include staff with science and 
engineering backgrounds, and Region 8 consults with state partners at 
the Colorado Department of Public Health and the Environment and 
Division of Reclamation, Mining and Safety who have many years of 
experience in mine site remediation. In conducting mining type 
operations, the EPA uses private companies with mining engineers to 
conduct mine remediation work.

                Questions Submitted by Rep. Mark Walker

    Question 1. Do you understand why the Animas spill has exacerbated 
concerns that the Environmental Protection Agency (``EPA'') is not 
qualified to manage our Nation's waterways through the Agency's new 
overarching Waters of the United States (``WOTUS'') regulation?

    Answer. There is no relationship between the Animas River spill and 
the EPA/Department of the Army Clean Water Rule. The EPA has worked 
successfully to address environmental concerns at hundreds of abandoned 
mine sites across the West. We are thoroughly investigating the Animas 
River incident and working closely with our Federal, state, and local 
partners to remediate the effects of the spill.
    The EPA and the Army developed the Clean Water Rule at the request 
of a broad range of interests, including Members of Congress, 
agriculture and forestry organizations, states and local governments, 
development groups, and many others to respond to confusion and 
uncertainty resulting from various decisions of the Supreme Court. The 
agencies will continue to work under the Clean Water Act to protect 
public health, clean water, and a healthy economy.

    Question 2. Most of the waters that the EPA is seeking new 
jurisdiction over through this new mandate have traditionally been 
managed by states, correct?

    Answer. The majority of states implementing Clean Water Act 
programs define their scope of waters jurisdiction to be no greater 
than that established by the EPA under the Clean Water Act. As a 
result, states have not traditionally protected waters under state 
programs more broadly than Federal law defines.

    Question 3. There is a video on the EPA Web site that was released 
when you all announced the final WOTUS rule that says ``until now 60 
percent over our streams and millions of acres of wetlands all across 
the country were not protected.'' Is that statement inaccurate?

    Answer. The EPA has consistently stated that CWA protections are 
unclear for 60 percent of the Nation's streams and millions of acres of 
wetlands as a result of Supreme Court decisions in SWANCC and Rapanos. 
These decisions resulted in confusion about the scope of waters covered 
by the statute. The goal of the Clean Water Rule is to reduce this 
confusion and clearly define, in simple and direct terms, which waters 
are and which are not covered by the Act. This clarity will protect 
human health and the environment, while reducing the costs and delays 
associated with resource-intensive case-specific jurisdictional 
determinations.

    Question 4. What day did you first read the memos written by Major 
General Peabody to Assistant Secretary Darcy that were written on April 
27 and May 15 and expressed serious legal and scientific deficiencies 
with the final WOTUS rule?

    Answer. The Peabody memos and their attachments are deliberative 
documents internal to the Department of the Army and the Army Corps of 
Engineers and were only shared with the EPA at the time they were 
transmitted to Congress after the final Clean Water Rule was published 
in the Federal Register.

    Question 5. Members of the U.S. House Committee on Oversight and 
Government Reform (``OGR'') sent these memos to you personally 
immediately following the July 29 hearing, at which you testified, 
along with numerous questions in a letter that your agency still has 
not responded to date. Assistant Secretary Darcy testified on June 10 
about those memos and that she had seen them. Do you expect members of 
these committees to believe that you still have not read these memos 49 
days after the agency head, with whom you claimed to be closely 
working, testified about knowing the intimate details of those memos?

    Answer. The Peabody memos are deliberative documents internal to 
the Department of the Army and the Army Corps of Engineers and were not 
shared with the EPA during the development of the Rule, only after the 
Rule was final. However, the issues raised in the memos were not new 
and had been thoroughly discussed between the EPA and the Department of 
the Army during the Rule's development. The Corps provided helpful 
input, and the agencies carefully considered suggestions made by Corps 
staff.
    It is important to emphasize that the concerns raised in the 
Peabody memos focus on Corps recommendations to broaden the scope of 
the Clean Water Rule beyond that submitted for final OMB review. 
Ultimately, the agencies set clear distance-based limitations that 
reduce the extent of jurisdiction in order to provide the clarity and 
predictability that will assist all interested parties.

    Question 6. At the July 29 OGR hearing, when you were asked if you 
were aware of the legal and scientific deficiencies raised by the U.S. 
Army Corps of Engineers in those memos, you replied, ``Just from what 
I've read, I have not seen the memo myself.'' Later in that exchange, 
you stated, ``In moving forward with the final, I individually had 
conversations with [Assistant Secretary of the Army Darcy] about the 
changes that the Army Corps was interested in making, and as the 
proposal moved through the interagency process I understood that 
everything had been fully satisfied.'' Were you briefed or did you ask 
anyone to send you the memos after reading the news stories about them? 
If not, why didn't you want to read the memos prior to the July 29 
hearing? Were you advised not to so that you did not have to testify 
about the allegations in the memos of serious flaws and scientific 
deficiencies with your new regulation?

    Answer. The Peabody memos are deliberative documents internal to 
the Department of the Army and the Army Corps of Engineers prepared 
after the Clean Water Rule was submitted for final OMB review. They are 
not part of the agencies' administrative record for the Clean Water 
Rule. The EPA worked closely with the Corps and the Army throughout the 
rulemaking process to respond to issues raised at every level of the 
Corps and the EPA. The process involved years of coordination and 
discussions to assess, evaluate, and reach conclusions regarding every 
aspect of the rulemaking. The final rule represents our best mutual 
efforts to clarify the scope of Clean Water Act jurisdiction consistent 
with science and the law.

    Chairman Chaffetz. Thank you. I now recognize the gentleman 
from Utah, the Chairman of the Natural Resources Committee, Mr. 
Bishop, for his questions.
    The Chairman. Thank you, Ms. McCarthy, for being here. As 
usual, I am still disappointed that you are alone on that 
panel, but thank you for being here.
    Ms. McCarthy, are you aware that Federal agencies are 
required under the Endangered Species Act to review any 
discretionary action they plan to undertake, to see if it may 
affect endangered species or the critical habitat? And that, if 
the Agency determines that endangered species or the critical 
habitat may be affected, they must consult with the Fish and 
Wildlife Service?
    Ms. McCarthy. I am aware.
    The Chairman. Did EPA consult with Fish and Wildlife on its 
activity on the Gold King Mine prior to the August 5 disaster?
    Ms. McCarthy. EPA had no reason to consult with them, 
because we did not plan to take action that would have 
discharged that amount of material into the creek.
    The Chairman. So, you assert that you did not anticipate 
the release; at least that is the email. You two agencies were 
not talking before, so I am glad we finally forced you to 
actually have some communication last night before you sent 
this through. But your assertion is you did not anticipate the 
release that would affect downstream endangered species, so, 
therefore, you did not consult with Fish and Wildlife.
    Ms. McCarthy. We were actually there, Mr. Chairman, because 
of the threat of that release, in attempting to mitigate that--
--
    The Chairman. You did not contact them because you assert 
you did not anticipate that. Now, is that what you and your 
staff are saying----
    Ms. McCarthy. We were there to prevent that type of 
release. That is exactly right.
    The Chairman. I am sorry, I did not quite hear what you 
said.
    Ms. McCarthy. We were there to actually prevent a release, 
because that is the reason why we were working with the state 
of Colorado and others at the site----
    The Chairman. That is----
    Ms. McCarthy [continuing]. Was to try to depressurize----
    The Chairman. I understand.
    Ms. McCarthy [continuing]. If that was----
    The Chairman. That is cool. I appreciate that, but the fact 
is you did not talk to Fish and Wildlife, even though that is 
the law, that----
    Ms. McCarthy. Only if we are taking action----
    The Chairman [continuing]. You are supposed to----
    Ms. McCarthy [continuing]. As you indicated, sir, that----
    The Chairman. No, I am sorry. Ms. McCarthy, listen to this. 
The final Health and Safety Plan, Emergency and Rapid Responses 
Services for the Gold King Site, prepared by Environmental 
Restoration--that is your contractor--for EPA Region 8, dated 
September 4, 2014, contains a section entitled, ``Spills, 
Leaks, or Releases.'' It states, ``Locate the source and stop 
the flow, if it can be done safely.'' The Task Order Statement 
of Work for EPA Region 8 prepared by Environmental 
Restoration--this is dated July 25, 2014--states that 
``conditions may exist that could result in a blowout of the 
blockages, and cause a release of a large volume of 
contaminated mine water and sediment from inside the mine which 
contains concentrated heavy metals.''
    Clearly, these documents demonstrate that, in fact, you did 
not only anticipate the possibility of a release, but also of a 
major blowout; yet, EPA conducted no consultations with Fish 
and Wildlife, as is required under the Endangered Species Act.
    Now, are you aware that these activities are both criminal 
and civil penalties for knowingly violating the Endangered 
Species Act?
    Ms. McCarthy. Sir, I am really not trying to argue with 
you; I am trying to explain that the statement you are reading 
indicates that we were worried about those conditions existing. 
We clearly stated that to the contractor, so that there would 
be no actions taken that would have caused that release. 
Instead, we were there to prevent that release.
    The Chairman. That is wonderful. But, ma'am----
    Ms. McCarthy. That is----
    The Chairman [continuing]. The fact is, you were 
anticipating this type of thing happening. The law, that you 
insist everyone else obey, says you have to contact Fish and 
Wildlife and consult with them. The fact is you did not do it, 
and you had over a year to accomplish that fact.
    Ms. McCarthy. Sir, if I was there to take action to release 
this material, we would not be standing here today. We were 
taking action in an attempt to prevent that release, knowing 
that it was a considerable risk to leave it as it was.
    The Chairman. That is sweet. I appreciate that, and I know 
you feel terrible about it. But, the bottom line is, your 
documents say you anticipated a potential major blowout; and 
the law says if you anticipate a major blowout, you have to 
contact Fish and Wildlife. And, until last night, you did not 
contact Fish and Wildlife. Your agency did not do it. That is 
what the law requires; and there are criminal and civil 
penalties for violating that law, which you violated.
    Now, I do not really care what your goal was. It may be 
noble. It does not make a difference. You violated the law. A 
standard you make everyone else live by, you violated, and you 
are doing it with impunity.
    Are you aware that in the San Juan River starting in 
Farmington, New Mexico, there is a designated critical habitat 
for endangered fish that would be a violation of the ESA for an 
agency to cause adverse modifications of the habitat by 
spilling millions of gallons of this water and these heavy 
metals? Do you realize that area does exist?
    Ms. McCarthy. I was not aware until you just said it, sir, 
no.
    The Chairman. So, have you or your agency discussed EPA's 
failure to consult with the Fish and Wildlife Service prior to 
this hearing, or any request prior to this hearing?
    Ms. McCarthy. We do not believe that we actually 
constituted a failure to notify concerning endangered species, 
because the actions we were taking were intended to stop a 
blowout. Clearly, there was a problem at the site. That is what 
we are looking at now to identify----
    The Chairman. All right, I appreciate your making your own 
interpretation of the law; but that is not what the law 
requires, and that is not what the law says.
    Ms. McCarthy. OK, sir.
    The Chairman. You violated the law, period.
    Now, the communications you said you made--oh, I am sorry, 
I am over. I apologize for that. I will get another shot at 
this. I yield back.
    Chairman Chaffetz. I thank the gentleman. I recognize the 
gentleman from Arizona, Mr. Grijalva, for 5 minutes.
    Mr. Grijalva. Thank you very much, Mr. Chairman.
    Ms. Administrator, getting back to the subject of the 
hearing, which is the Gold King Mine, the role EPA had, and the 
role EPA has at this point. The question is, if EPA and the 
state had not been at the Gold King Mine at all, what would 
have eventually happened to the water that was released on 
August 5?
    Ms. McCarthy. Well, I think as you know, sir, our reason 
for being there was the degraded water quality, a result of 
300-plus million gallons that were going into the creek and the 
Animas River over time. It was anticipated that there was a 
serious potential for a blowout. We were there, working with 
Colorado and the Animas River Stakeholder Group, to address the 
work plan and opportunity to try to mitigate that, and 
basically to resolve an issue that was of significant concern 
to those communities.
    Mr. Grijalva. The affected Native nations' issue, that they 
have legitimately raised, is the issue of notification--rapid 
and on-time notification as to what was occurring and the 
effect that it could have on tribal lands and their people, and 
your response to the lack of rapid and necessary notification 
to that by the Agency.
    Ms. McCarthy. The Agency did institute its notification 
procedure the same day, that was able to effectively get to the 
state of Colorado that day and ensure that, before the plume 
arrived at any intake for drinking water or for irrigation, 
that there was an ability to mitigate that, and make sure that 
the spill was contained. So that was good.
    The following day, we completed the notifications to the 
downstream folks. So, we are talking about a spill on August 5, 
and we completed the notifications on August 6.
    Now, is that rapid? I would argue that we should have done 
better. I would argue that it would have been much better and 
more appropriate to reach everybody the same day. Are we trying 
to do better? Yes. We have issued a notification to all of our 
regions to go back and take a look at what our notification 
process is, how to improve it, how to test it frequently to 
make sure that it is done.
    I think we could have done a lot better at this. But, the 
good news is that we were able to beat the plumes all the way 
down, so that we were able to protect those drinking water 
supplies and those irrigation channels as best we could.
    Mr. Grijalva. Madam Administrator, the Hardrock Mining 
Reform and Reclamation Act has within it a provision that would 
create a fund for cleaning up of the hundreds of thousands of 
abandoned hardrock mine sites in the country. This provision 
has been endorsed by the Administration by being included in 
the President's budget. The funds necessary, how does it help 
with addressing the problem not only that we are dealing with 
here today, but the potential that exists, particularly in the 
West and across this country?
    Ms. McCarthy. I think it would help significantly. 
Certainly, we are very supportive of the President's initiative 
in the Fiscal Year 2016 budget, and we think that it is 
incredibly important to have resources associated with this. We 
are talking about legacy mines, where we will have almost no 
ability to go after----
    Mr. Grijalva. Anybody.
    Ms. McCarthy [continuing]. The principals involved in this. 
We know that, just in Colorado alone, we have 23,000 of those. 
In the Animas, the Upper Animas, it is 400 mines. That is why 
we were there, because there was no ability over the past 20, 
30, 40 years to really effectively address this, even though 
the state worked hard at it, and EPA tried to help, as well.
    This is a significant problem in the West and Alaska, where 
we estimate there are at least 161,000 of these mines left, 
where they continue, in many cases, to degrade water quality.
    Mr. Grijalva. Administrator, there is certainly an 
implication by the Majority--well, it is not really an 
implication, it is a direct statement--that if a private 
company had done this, EPA's response to this incident would 
have been much stronger and much more severe. Did EPA treat 
itself any differently here than it would have treated a 
private company in the same position? That is the question.
    Ms. McCarthy. No, sir. We would have required any company 
that was doing a response action, where they were out doing an 
emergency response action, to keep their folks safe if a spill 
occurred, and then to clean it downstream, to take 
responsibility, and to make sure that, over time, long-term 
consequences are addressed and mitigated. That is exactly what 
EPA is doing here. We have taken full responsibility for our 
actions.
    Mr. Grijalva. Thank you. I yield back.
    Chairman Chaffetz. I recognize myself for 5 minutes.
    If you had to give yourself a letter grade on your 
response, what would you give yourself so far?
    Ms. McCarthy. Sir, I am not giving myself a letter grade, I 
am doing the best I can to look at this incident and what 
caused----
    Chairman Chaffetz. You said in your opening statement, 
``The EPA has closely coordinated with our Federal partners and 
with officials in Colorado, New Mexico, Utah, Southern Ute and 
Ute Mountain tribes, and the Navajo Nation, to keep them 
apprised of water and sediment sampling results, which are 
routinely posted on our Web site.'' I have to tell you I am 
highly offended by those comments.
    Sitting behind you on the front row is the President of the 
Navajo Nation. I want to read some things from his testimony. 
These are his words, not my words, ``To begin with, the U.S. 
Environmental Protection Agency inexplicably delayed 
notification of the spill to the Navajo Nation. The spill 
occurred on the morning of August 5, but the Nation was not 
informed of the release until August 6, a full day later, and 
not even by the Environmental Protection Agency, but by the 
state of New Mexico. It took the EPA almost 2 full days to 
notify us. We view this as a violation of the government-to-
government relationship between the Federal Government and the 
Navajo Nation.'' How do you answer that?
    Ms. McCarthy. Well, sir, I am working closely with the 
President. I have great respect for him, and----
    Chairman Chaffetz. No, you are not. No, you are not. You 
took 2 days before you called them.
    Ms. McCarthy. Let me just answer. The call from New Mexico 
was the way in which we actually do these notifications. We 
work with states. That is not inappropriate.
    Chairman Chaffetz. To put in your statement that you are 
working closely with the Navajo Nation is totally misleading.
    Ms. McCarthy. Sir----
    Chairman Chaffetz. Let me--I have to keep going.
    The Environmental Protection Agency also demonstrated 
complete lack of transparency. He goes on to say, ``The media 
was receiving faster and fuller information from the EPA than 
the Navajo Nation. For example, the New York Times reported the 
spill hours before EPA provided the Nation with notice of the 
spill. And media sources reported that EPA confirmed the 
presence of arsenic on August 7, whereas the Environmental 
Protection Agency still had not reported the presence of 
arsenic to the Nation, even by Sunday, August 9.'' What is your 
excuse for that?
    Ms. McCarthy. Sir, I indicated that our notifications could 
have been better. But the Navajo were given----
    Chairman Chaffetz. No, you did not.
    Ms. McCarthy [continuing]. Notice the day after----
    Chairman Chaffetz. In your testimony you said you are 
working closely with them.
    Ms. McCarthy. We are working----
    Chairman Chaffetz. You did not say you screwed up on the 
communication.
    Ms. McCarthy. I did not----
    Chairman Chaffetz. Why would it take 2 days?
    Ms. McCarthy. I did not say that either, sir. I said that 
we did take a day. I regret that. I wish it had been earlier. 
But the plume actually did not----
    Chairman Chaffetz. You took 2 days.
    Ms. McCarthy [continuing]. Reach the Navajo until August 8. 
So, we had time to work with them, and we have been working 
hard to coordinate with them ever since.
    Chairman Chaffetz. Your first call was to the media, not to 
the Navajo Nation; and I have a problem with that.
    Ms. McCarthy. I did not make any calls, sir, to the----
    Chairman Chaffetz. That is the problem. That is the 
problem. You did not make a call. You have the President of the 
Navajo Nation and you, personally, do not get involved in this.
    Ms. McCarthy. I did, sir.
    Chairman Chaffetz. It is one of the worst spills we have 
ever had.
    Ms. McCarthy. I did, sir, get involved. Could it have been 
earlier?
    Chairman Chaffetz. When did you call the President of the 
Navajo Nation?
    Ms. McCarthy. I believe that I went to the site. August 11 
and August 12 is when I was there.
    Chairman Chaffetz. Well, let's go to the site visit, 
because the President of the Navajo Nation wanted to visit the 
site and you denied him. You would not take him to that site. 
We quote--this is from the Navajo President--``We requested a 
tour from the Environmental Protection Agency, but faced 
immediate resistance. Staff indicated they would only take us 
to the confluence of the Cement Creek and the Animas River.'' 
He goes on and on.
    You did not allow them--the EPA would not allow them to go 
to the site. Why not?
    Ms. McCarthy. As far as my understanding--and I was not at 
the site of the mine--is that it was a dangerous location, and 
we brought them as close as they could. They actually seemed, 
at that point in time, to be very satisfied that they were 
being protected in getting an opportunity to be at the site----
    Chairman Chaffetz. So you were doing it to protect them?
    Ms. McCarthy. Many times that is--you, yourself, saw the 
site in the video. There was damage that occurred. We are 
keeping people safe, but there is no way in which we have kept 
people from going as close to the site as they could safely 
get--and the Navajo, in fact, went there.
    Chairman Chaffetz. They did not get there, and that is the 
testimony: ``We finally convinced them to take us within a 
half-mile of the point of release. We walked the rest of the 
way to the point of the release. There we saw a completely 
unblocked mine adit with an estimated 550-gallon-per-minute 
flow of bright opaque orange,'' and he goes on and on.
    You did not do that. You did not call them, you did not 
communicate with them. You told the media before you told them. 
They wanted to go to the site, you would not do that. Then you 
have the gall to hand out Standard Form 95 and walk along the 
river and try to get them to do waiver forms; and you only did 
that after the President said, ``We are going to sue the EPA.''
    Ms. McCarthy. Sir----
    Chairman Chaffetz. Why did you do that?
    Ms. McCarthy. Sir, it is my understanding that we did not 
hand out claim forms. We had a long discussion following that 
concern, and we are now getting claims----
    Chairman Chaffetz. You are not telling the truth. Here is 
the quote----
    Ms. McCarthy. Sorry, but that is my understanding.
    Chairman Chaffetz [continuing]. From the President of the 
Navajo Nation, ``It was quick to dispatch staff to the Navajo 
communities to hand out Standard Form 95 and encourage members 
of the Navajo Nation to fill out forms to expedite settlement 
of their claims under the Federal Tort Claims Act, and 
apparently to obtain release from members of the Navajo Nation. 
But this was only after I''--again, from the President--
``announced that the Navajo Nation would be suing the EPA.''
    Ms. McCarthy. The----
    Chairman Chaffetz. Do you deny that your people were 
handing out this form?
    Ms. McCarthy. I do deny that we were going around, trying 
to get anybody to sign these forms. Based on the information I 
had, that is not correct.
    Did we supply forms to the Navajo, the Navajo Nation 
leadership? Absolutely, because it is part of an opportunity 
for individual claims to be made. It is not a settlement or a 
release form.
    But we walk through those issues, and I think there is a 
much better understanding of the process for claims that the 
Federal Government has established. I am hoping that we can 
utilize our ability to work with them to recognize the damage 
that has been done, to fully account for that damage, and to 
compensate for it. That is part of the process.
    Chairman Chaffetz. Standard Form 95--I encourage the media 
and everybody to look at it. It states, ``I certify that the 
amount of claim covers only damages and injuries caused by the 
incident above and agree to accept said amount in full 
satisfaction and final settlement of this claim.'' It is a 
settlement agreement.
    Ms. McCarthy. No, it is----
    Chairman Chaffetz. The record will reflect that, again, you 
are totally misleading, totally out of touch, and totally 
inappropriate in this instance.
    Ms. McCarthy. That----
    Chairman Chaffetz. My time has expired. I will now 
recognize the gentleman from Pennsylvania, Mr. Cartwright.
    Mr. Cartwright. Thank you, Mr. Chairman. I would like to 
give the Administrator a moment to answer your last statement.
    Ms. McCarthy. The section you just read refers to a final 
settlement. This is an application to begin a settlement 
process that can be added to and amended throughout the entire 
process.
    The final settlement requires a settlement. The claimant 
needs to actually sign off. It was an ability to get started, 
it was not a final document in any way.
    Mr. Cartwright. Well, thank you for that, Administrator 
McCarthy.
    I would like to switch gears for a moment and focus on the 
extent of the problem of acid mine drainage around the country. 
It is a problem that my constituents in northeastern 
Pennsylvania know only too well. There are 65 million gallons 
of acid mine runoff every day. Here we are talking about a 3 
million gallon spill. There are 65 million gallons of acid mine 
runoff every day flowing into the Lackawanna River, compared to 
that 3 million in the Animas River spill.
    In case you don't believe it, I am going to show you 
pictures of the Lackawanna River on a typical day. This is the 
Old Forge Borehole. It emits 65 million gallons of orange acid 
mine drainage into the Susquehanna River, which finds its way 
down to the Chesapeake Bay.
    Any spill in our rivers is important and needs to be 
addressed. Here, however, what my local paper published, after 
the Animas spill received so much media and congressional 
attention, was this cartoon by my friend, the political 
cartoonist John Cole, from Scranton. On the left side it says, 
``Three million gallons of toxic mine waste accidentally dumped 
into Colorado's Animas River. It's being called an 
`environmental disaster'.'' Then, over on the right side, it 
shows an illustration of the Old Forge Borehole with 65 million 
gallons a day of acid mine runoff, and it says, ``Around here 
we'd call it `Tuesday afternoon'.''
    [Slide.]
    We understand the problem in northeastern Pennsylvania. The 
director of the Lackawanna River Corridor Association, my 
friend, Bernie McGurl, explained to me that in northeastern 
Pennsylvania, ``Schuylkill, Lackawanna, Luzerne, Dauphin, 
Northumberland, Columbia, and Carbon Counties all have profound 
mine drainage issues, with thousands of miles of streams that 
are impacted by mine drainage, many of which are totally devoid 
of aquatic life.''
    Now, nationally, there are over 500,000 abandoned mines. 
These abandoned mines scar our Nation and pollute our 
waterways. My understanding is that, in 2008, EPA estimated 
that to clean them up would cost $50 billion.
    Now, I welcome this newfound interest in water quality in a 
bipartisan way. But given that enormous sum--$50 billion--
Administrator McCarthy, how much do mining companies contribute 
to cleaning up this mess that they create?
    Ms. McCarthy. Well, in the hardrock mining industry, it is 
very difficult for me to honestly estimate that. But on these 
legacy sites, the contribution is close to zero.
    Mr. Cartwright. How much are hardrock mining companies 
charged in royalties for what they extract?
    Ms. McCarthy. They are not charged any, that I am aware of.
    Mr. Cartwright. They are not charged.
    Ms. McCarthy. No, sir.
    Mr. Cartwright. Now that we have established that mining 
companies are not contributing to cleaning up their own messes, 
what are the sources of funding that you have for mine cleanup?
    Ms. McCarthy. The Federal agencies have some resources. 
They are not as significant as the challenges that we are 
facing. For EPA, we have an emergency response fund that we 
utilize, but that is for the entire country; and we have to 
prioritize that and use our resources wisely.
    Mr. Cartwright. What can Congress do to help EPA clean up 
these mines?
    Ms. McCarthy. Well, we think that the proposal that the 
President put in, which actually looks to establish a fee on 
hardrock mining, similar to what we do with coal mining 
industries, that would be utilized to address these legacy 
sites is an appropriate thing to do. It would be based on a 
polluter-pays principle, and provides significantly additional 
funds for us to at least begin to address these challenges.
    Mr. Cartwright. Now, for abandoned coal mines, funding 
comes from coal AML reclamation fees based on coal royalties. 
Correct?
    Ms. McCarthy. That is correct.
    Mr. Cartwright. While coal companies do pay royalties that 
go toward abandoned mine cleanup, they contribute only a small 
fraction of what we need to deal with the problem.
    We have to remember that the AML is set to expire in the 
coming years. I want to take this moment to urge Congress to 
turn its attention to reauthorizing the AML, so we can continue 
the important work in reducing the impact of abandoned mines.
    I thank you, Mr. Chairman.
    Chairman Chaffetz. I thank the gentleman. I ask unanimous 
consent to enter Standard Form 95 into the record.

    [No response.]

    Chairman Chaffetz. Without objection, so ordered.

    [The information follows:]
    [GRAPHIC] [TIFF OMITTED] T6242.004
    
    .eps[GRAPHIC] [TIFF OMITTED] T6242.005
    

    .epsChairman Chaffetz. I now recognize the gentleman from 
Texas, Mr. Gohmert, for 5 minutes.
    Mr. Gohmert. Thank you, Mr. Chairman. Ms. McCarthy, the EPA 
internal review documents of the spill said there is no 
documentation of flow for the Gold King Mine adit available 
before July 2005, when the adit was discharging about 42 
gallons per minute. Then, in September of 2005, it was up to 
135 gallons per minute; in 2006, it increased to 314 gallons 
per minute; 2009-2014, the rate dropped again, all the way down 
to 13 gallons per minutes in September of 2014. According to 
the documentation your staff gave our committee staff on 
September 8, post-blowout adit discharge is approximately 600 
gallons per minute. Is there any new data since September 8 
that changes the 600 gallons per minute discharge rate?
    Ms. McCarthy. I think I have a slightly lower figure, but I 
am happy to provide you with that, sir. I do not want to speak 
when I do not have all the data at my fingertips.
    Mr. Gohmert. OK. You were coming to testify, and you do not 
know if EPA has made it worse since September 8 or made it 
better?
    Ms. McCarthy. Well, my understanding is that it is 
something on the order of 550 gallons per minute, if that is 
what you are asking me.
    Mr. Gohmert. The problem is--and I love a good 
demonstration--but when we show tea or any other thing, and we 
are talking about real sludge, the facts are that before the 
blowout, the discharge rate was 70 gallons per minute; that is 
100,800 gallons per day. Now, 600, maybe 550, but we are 
talking about 800,000-900,000 gallons, up 8 or 9 times what it 
was. That is with the EPA handling----
    Ms. McCarthy. Well----
    Mr. Gohmert [continuing]. And, Ms. McCarthy, I am just 
blown away. You indicate that you did not anticipate--the EPA 
did not anticipate--that this type of blowout could occur. Now, 
when a----
    Ms. McCarthy. I did not say that.
    Mr. Gohmert. Oh, OK. So you just went into it knowing this 
kind of damage could occur, but not preparing for it.
    Ms. McCarthy. We went in there specifically because the 
concern was raised by us and other professionals that there was 
potentially a pressurized blockage there. We were actually 
trying to take action that would mitigate that.
    Mr. Gohmert. OK. But it never crossed EPA's mind that you 
may do more damage than you did good?
    Ms. McCarthy. Of course we tried----
    Mr. Gohmert. OK. Then what activity did you do to be 
prepared for when the flood gates flew open, and you did this 
kind of damage to the environment?
    Ms. McCarthy. What----
    Mr. Gohmert. How were you prepared for that----
    Ms. McCarthy. What we did----
    Mr. Gohmert [continuing]. Other than with waivers of claim 
certificates?
    Ms. McCarthy. No, sir, we spent a great deal of time with 
the state of Colorado, with the Animas----
    Mr. Gohmert. Well, we are going to find out about that from 
Colorado, because you have told us before--you testified on 
July 9 under the Waters of the United States Rule that that was 
developed--you said, ``It is available in the docket, that is 
what we relied on, both the knowledge and expertise of our 
staff, the information we received from the public, and 
comments that--the science that is available to us.''
    But on April 27, Jo-Ellen Darcy, Assistant Secretary for 
the Army for Civil Works, from Major John Peabody, proved that 
that was a false statement, that the 4,000-foot determination 
was not based on science. You did not have proper evidence of 
that. Then we had a Federal judge, Ralph Erickson, that 
verified that you did not--so you come in here and you tell us, 
``Oh, we worked with the state of Colorado.'' It does not sound 
that way, once again; and the result is that we continue to 
have massive damage to the environment.
    Since you have been at the EPA, how many people, 
industries, or companies have been charged with criminal 
violations?
    Ms. McCarthy. I do not have that number, sir.
    Mr. Gohmert. You have charged plenty of people, right?
    Ms. McCarthy. We have conducted enforcement activities that 
we should conduct, yes.
    Mr. Gohmert. How many people at the EPA are under 
investigation right now for this massive discharge that you 
created?
    Ms. McCarthy. I am unaware of any criminal investigation, 
sir.
    Mr. Gohmert. Well, I guess there is the rub, isn't it?
    Ms. McCarthy. I----
    Mr. Gohmert. Your agency is above the law, with all the 
damage you do to the environment, and you want to be in charge 
of all the waters of the United States. You could not even 
figure out how to get ready for a possible discharge. I yield 
back.
    Ms. McCarthy. We are holding ourselves fully accountable, 
sir.
    Chairman Chaffetz. I thank the gentleman----
    Mr. Gohmert. You just--wait.
    Chairman Chaffetz. The gentleman's time----
    Mr. Gohmert. She added the answer----who is being held 
accountable?
    Chairman Chaffetz. The gentleman's time is expired. We are 
now going to recognize the gentlewoman from California, Mrs. 
Napolitano, for 5 minutes.
    Mrs. Napolitano. Thank you, Mr. Chairman; and thank you for 
being here, Ms. McCarthy.
    A lot of questions. First of all, in my subcommittee I was 
not privy to any information from EPA, and that I hold a little 
bit concerning. Please keep that in mind.
    How many of the companies that you know of that are mines--
wherever, whether it is gold, silver, or coal, are foreign-
owned? Do we have any record of that?
    Ms. McCarthy. I do not have that information.
    Mrs. Napolitano. Do you have any way of being able to tell 
this committee? Because if some of those companies are foreign-
owned, they are making money, they are not being--how would I 
say--made responsible for anything that they leave behind. They 
leave it up to the U.S. taxpayer to pick up any kind of 
remediation, and I think that needs to be part of the answer 
that we need to look at.
    In the rest of the United States--and I am very, very 
concerned about what happened in Las Animas--but what about the 
rest of the Nation that has these hundreds, maybe thousands of 
mines? How many of those are close to blowouts? Are there 
assessments?
    Ms. McCarthy. EPA is only involved in, actually, a small 
percentage of those.
    Mrs. Napolitano. Why?
    Ms. McCarthy. Because the authority to look at these is 
spread among a number of agencies, and EPA generally focuses 
on----
    Mrs. Napolitano. Can you break it down so that we have an 
idea of what the problem really is with some of these mines 
that may affect the health and welfare of our communities?
    Ms. McCarthy. We can do our best, but I can tell you that 
the ones that we follow are the ones on the National Priorities 
List, and the ones where we work with states to address what we 
consider to be an imminent threat or a need for emergency 
response. The Upper Animas was in that category.
    Mrs. Napolitano. OK, but I would like to see if you can 
answer some of this for the whole committee.
    I am glad Mr. Bishop is worried about Fish and Wildlife and 
the Endangered Species. That is something that is near and dear 
to the heart of a lot of us. But with that, your budgeting, how 
much budget do you require to be able to do a job, to maybe 
look at avoiding what happened at Las Animas?
    Ms. McCarthy. Well, we just have an environmental fund that 
allows us to tap that for the response actions.
    Mrs. Napolitano. How much is that fund?
    Ms. McCarthy. The Fiscal Year 2015 Superfund remediation 
action budget is $501 million.
    Mrs. Napolitano. Does it have to be on the Superfund? Does 
it have to be designated a Superfund site?
    Ms. McCarthy. No, it does not. This is for remedial action 
that we need to take, whether it is on the Superfund list or 
not.
    Mrs. Napolitano. And you are currently working on how many 
mines to be able to address the issues?
    Ms. McCarthy. I am sorry, I will have to get back to you--
--
    Mrs. Napolitano. Would you, please? Because that would kind 
of answer some of the questions I have.
    And then, how many other agencies are involved, or should 
be involved, besides Fish and Wildlife and the National 
Institute of Health--for being able to determine the status of 
the health concerns? CDC? What about BIA, Bureau of Indian 
Affairs? What role do they play in being able to notify Native 
American tribes? Are they immediate, do you work with them, or 
do you get them involved immediately and task them with doing 
the outreach?
    How many other areas do we have that are really concerning, 
in terms of contamination that are cancerous? Lead, arsenic, 
uranium, and the gold mines, the copper mines, what are the 
hard minerals that are there that are going to affect the 
health of our Nation?
    Ms. McCarthy. Well, there are at least 161,000 abandoned 
mines. While we are talking about ones we know, there are so 
many that we do not know. We know we have experience in looking 
at these mines, and they involve sudden releases like the ones 
we were talking about here and the potential for that. There 
are also periodic mine discharges that are impacting 
headwaters. There are a lot of them.
    Mrs. Napolitano. I am running out of time, but I want to be 
sure that my colleague in Pennsylvania--if there is a 
continuous release, is that one of the areas that EPA may be 
looking at to be able to help address the issue?
    Ms. McCarthy. Well, the challenge for us is really there 
are a lot of these issues. I do not know whether that specific 
one is on the NPL. I doubt that. I do not know if others do----
    Mrs. Napolitano. He is shaking his head no behind you, so 
they do not know.
    Ms. McCarthy [continuing]. But when a state wants us to 
come in and work with them, we do our best----
    Mrs. Napolitano. But is it only at the request of a state, 
or do we have the ability to have you look at a lot of these 
mines?
    Ms. McCarthy. No, we make priorities depending upon what we 
find out and what we are asked to do, but the challenge for us 
is it is limited. And that does not take care of the long-term 
problem; it takes care of short-term problems.
    Mrs. Napolitano. So, what do we need to do to address that 
in the long term?
    Chairman Chaffetz. I thank the gentlewoman. The 
gentlewoman's time has expired.
    Mrs. Napolitano. Thank you, Mr. Chairman.
    Chairman Chaffetz. We now recognize the gentleman from 
Florida, Mr. Mica, for 5 minutes.
    Mr. Mica. Thank you. Let me kind of pick up where Mr. 
Gohmert, the gentleman from Texas, left off on the issue of 
accountability.
    If a private company, corporation, or individual dumped 
7,500 gallons of toxic chemical into a natural waterway, 
wouldn't there be a penalty? Wouldn't you hold them 
accountable?
    Ms. McCarthy. It all depends on the circumstances, sir. We 
would hold them accountable for cleanup----
    Mr. Mica. You would investigate. But----
    Ms. McCarthy [continuing]. But whether or not there would 
be a penalty involved would depend on the circumstances.
    Mr. Mica [continuing]. They would be--someone would be held 
accountable----
    Ms. McCarthy. That is correct.
    Mr. Mica [continuing]. Responsible, you would review that.
    Ms. McCarthy. Yes, yes.
    Mr. Mica. And you do that. That is part of your 
responsibility.
    One of the frustrations I think that Members of Congress 
and the American people have is holding agencies accountable. 
You have been there since July of 2013. You were there during 
this spill. Is that correct?
    Ms. McCarthy. Yes, sir.
    Mr. Mica. And you are in charge of the agency?
    Ms. McCarthy. Yes, sir.
    Mr. Mica. Is there an SES individual below you, or a deputy 
that also would be responsible for this, for----
    Ms. McCarthy. Well, we have----
    Mr. Mica [continuing]. Looking at this matter, and 
overseeing it?
    Ms. McCarthy. I have an assistant administrator.
    Mr. Mica. OK. And who is that?
    Ms. McCarthy. Mathy Stanislaus.
    Mr. Mica. OK. Then you have a regional administrator.
    Ms. McCarthy. That is correct.
    Mr. Mica. Is that Shaun McGrath?
    Ms. McCarthy. That is correct.
    Mr. Mica. OK. And then you have an on-scene EPA----
    Ms. McCarthy. On-scene coordinator.
    Mr. Mica. Who is that, for the record?
    Ms. McCarthy. I do not know the individual's name.
    Mr. Mica. OK. And you have conducted some preliminary 
investigation?
    Ms. McCarthy. Yes, we have----
    Mr. Mica. Everything we see, it looks like there was a 
mistake. You have a contractor, too, who the EPA was 
overseeing. Who is being held accountable, based on the 
information that you have so far?
    Ms. McCarthy. One of the reasons why we asked DOI to do an 
independent investigation was to make sure that somebody 
independently looked at that, and provided us information, so 
that we could follow up to see if there was any----
    Mr. Mica. And that is not complete?
    Ms. McCarthy [continuing]. Lack of judgment or lack of 
oversight, or----
    Mr. Mica. That is not complete, that process?
    Ms. McCarthy. No, sir. That is going to be completed in 
October, is my----
    Mr. Mica. I want you to tell the committee and report back 
to the committee who is held responsible. I have reviewed some 
of the bonuses given to different agencies in the past; and at 
least, historically, EPA has paid some of the biggest 
performance awards. In fact, some of your SES-class folks, 64 
percent of them got bonuses.
    I want to know if there are any recommendations pending for 
any bonuses for any of these individuals, and have that made 
part of the record. I would like that in the next 30 days.
    Then also, I want, for the long-term record, for you to 
report back to the committee the findings and who is held 
accountable. I think that is the least we can do.
    Ms. McCarthy. Yes.
    Mr. Mica. Then what action is taken to those individuals 
who have done this damage to the environment, and caused untold 
damage to the people sitting behind you, who we are going to 
hear from.
    The other thing, too, is the estimate of the cost for 
getting this all back to regular order.
    Ms. McCarthy. I understand. I am happy----
    Mr. Mica. Do you have any estimate?
    Ms. McCarthy. In terms of what it would take? I know that 
we have already spent somewhere upwards of $10 million. We 
expect that will go up considerably over time. Again, the 
challenge we have is to look at the Upper Animas River, 
because, while there may be some continued discharge from the 
Gold King Mine, there continues to be a much larger discharge 
from that area.
    Mr. Mica. So $10 million. Again, all I think----
    Ms. McCarthy. That was just the emergency, the immediate 
response----
    Mr. Mica. This is a reasonable request, that we hold you--
--
    Ms. McCarthy. Absolutely.
    Mr. Mica [continuing]. And others accountable who are 
responsible for this. It can be based on the independent 
findings, but we are looking at $10 million of cost, and a 
disruption to many parties. Is that correct?
    Ms. McCarthy. I fully recognize, and I expect to be held 
accountable. That is the job of this committee, I fully respect 
it and I will cooperate in any way I can.
    Mr. Mica. Finally--I have just a second here--we have 
pending in some court issues dealing with the redefinition of 
``navigable waters,'' and the rule.
    Ms. McCarthy. Yes.
    Mr. Mica. What is the status, very briefly, of that? Is the 
rule going into place----
    Ms. McCarthy. Yes.
    Mr. Mica. Is it on hold? And what are you doing?
    Ms. McCarthy. The rule is actually being implemented, 
except, I believe, in the 13 states where there was a decision 
by a judge to actually issue a preliminary injunction. So, in 
all but those 13 states, it is being fully implemented, as we 
are sitting here, yes.
    Mr. Mica. Thank you.
    Chairman Chaffetz. I thank the gentleman. We will now 
recognize the gentleman from Missouri, Mr. Clay, for 5 minutes.
    Mr. Clay. Thank you, Mr. Chairman. Administrator McCarthy, 
most of the cleanup of hazardous waste from abandoned and 
inactive hardrock mines like Gold King is carried out by the 
EPA and state government agencies.
    Ms. McCarthy. That is right.
    Mr. Clay. The hazardous waste at these abandoned mines was 
caused, however, by the activities of mining companies, not EPA 
or state government. Is that correct?
    Ms. McCarthy. That is correct.
    Mr. Clay. It was the mining companies that made the mess, 
but those companies are not the ones cleaning it up. Do mine 
owners or operators have any legal obligation to clean up the 
pollution they leave behind?
    Ms. McCarthy. It is my understanding that there is some 
liability in some cases, but consistently, in these legacy 
sites, the owners are absent from the discussion.
    Mr. Clay. Why is the EPA involved at all in the cleanup of 
inactive mines like Gold King?
    Ms. McCarthy. We were there because of the concern of a 
potential blowout and the concern of the water quality that was 
being consistently degraded from the mine seepage that was 
entering into the Cement Creek and the Animas River.
    The Cement Creek, literally, has, as far as I know, no fish 
whatsoever. For miles downstream in the Animas, the fish 
population has almost gone down to zero. So, EPA has been 
looking at this as a potential NPL site, a Superfund site; and, 
short of that, looking at how we coordinate with the state and 
with the local stakeholders to address the challenge, short of 
issuing a decision to put it on the NPL site.
    Mr. Clay. So, there are constant pollutants seeping into 
the river from the mine, and it has been going on for years, 
apparently----
    Ms. McCarthy. Large discharges. There is no question that 
the Animas has been struggling; but our hope was that we could 
continue to work together and get that quality shifted into 
another direction, and get that quality continually improved, 
instead of degraded.
    Mr. Clay. And, of course, today's hearing--you do not have 
to respond to this--but today's hearing is to blame the EPA for 
the callous disregard of mining companies, of not being good 
stewards of our environment. I think it is a farce, what we are 
conducting here with you.
    I understand that for abandoned and inactive coal mines, 
there is a dedicated funding source for mine waste cleanup 
which is derived from fees collected on each ton of coal mined 
in this country. Is there a similar funding source for hardrock 
mine remediation?
    Ms. McCarthy. There is not, but that is what the 
President's Fiscal Year 2016 proposed budget is suggesting 
should happen.
    Mr. Clay. Are mine owners financing the cleanup of the mine 
waste that pollutes the land and rivers for decades after the 
mines cease operations?
    Ms. McCarthy. In most cases, no, sir.
    Mr. Clay. Oh, my. Do you believe the President's proposal, 
if enacted, would help provide necessary resources for cleaning 
up abandoned mines?
    Ms. McCarthy. I do, sir.
    Mr. Clay. Well, it is about time that we, as a Congress, 
get serious about responsible parties, and who is responsible 
for making this mess and cleaning it up. It is the same thing 
with radioactive waste left all over the landscape, and nobody 
wants to take responsibility for it. Yet you want to dump on 
the EPA today. I think we should be ashamed of ourselves. We 
should be ashamed of what we are doing in this committee today.
    The current owner of Gold King Mine, Todd Hennis, told CNN 
in August, ``I have been predicting for the last 14 years that 
the situation would continue getting worse and worse. I foresaw 
disaster, and that has been borne out.'' Well, why are 
taxpayers responsible for cleaning up abandoned mines, while 
owners can sit back and do nothing?
    That is the question we need to be asking, as a committee. 
Why don't they have any responsibility, when they made the 
mess? We all have a responsibility to be good stewards of the 
environment, but in this case we will let that one party off.
    Mr. Chairman, I yield back my time.
    Chairman Chaffetz. I thank the gentleman, and I hope he has 
the guts to stand here and ask the President of the Navajo 
Nation if what we are doing here today is a farce.
    Mr. Clay. And I hope we have the guts, as a Congress, to 
actually try to clean it up and stop pointing fingers.
    Chairman Chaffetz. Well----
    Mr. Clay. That is what I hope.
    Chairman Chaffetz. We will see if you ask the Navajo Nation 
if it is a farce. We will now recognize the gentleman from 
Louisiana, Mr. Fleming, for 5 minutes.
    Dr. Fleming. Thank you, Mr. Chairman. Ms. McCarthy, in 
Louisiana we have a saying that the chef should occasionally 
taste her own sauce. What do I mean by that?
    I want to bring up a different issue, but it is connected. 
Are you familiar with the Camp Minden issue, relative to the 
EPA? It was handled out of Dallas.
    Ms. McCarthy. Yes, I am.
    Dr. Fleming. What happened was there was a big explosion in 
2012, as a result of propellant, this explosive that had 
accumulated over 15 million pounds; and it was a lack of 
oversight by the U.S. Army over this private company that 
allowed this to happen.
    So, we had the problem with, ``How were we going to get rid 
of this 15 million pounds? '' And, of course, EPA became 
involved. But we were shocked that the EPA, first of all, said, 
``Well, we are not sure. I guess the local state would probably 
have to pay for it.'' We finally got money from the Superfund.
    Then, after analysis, the EPA said, ``We are just going to 
burn it in the open,'' which means all of these toxic 
substances--arsenic, lead, whatever--going into the air, into 
our ground, and into our water.
    Now, I think back about the coal industry that has been 
more or less severely hampered, if not shut down, because of 
CO2 emissions, which certainly is not as toxic--if 
toxic at all--as arsenic and lead. We have coal-fired plants 
being shut down and now we have the Waters of the U.S. But I 
was shocked, and the local community was shocked, when the EPA 
came in and said, ``We see nothing wrong with the open burn of 
15 million pounds of propellant.''
    We pushed back on it. We had many hearings locally. We 
finally got the EPA to back down and to allow a closed burning, 
which is a more costly procedure. It really seems ironic to me 
that the EPA, which can provide huge fines on private industry 
and individuals, and can actually put people in jail through 
criminal activities of pollution, would be so cavalier in this 
case. In fact, only because of pushback from the community did 
we get the EPA to do the right thing. The EPA was clearly 
trying to take the shortcuts and avoid the cost.
    Then you look at this situation. Incompetently, the EPA 
allowed, of course, this toxic spill, this water that is now in 
our environment; it will never be cleaned up completely. I 
guess what I am saying is it seems like, to me, there is a 
double standard. The EPA is not holding itself to the same 
standards that you hold individuals and industry itself to.
    Ms. McCarthy. Well, sir, let me respond on Camp Minden. I 
actually could not be more pleased of the outcome, and it took 
a long time to get there. I do appreciate the way in which the 
state intervened on that, as well as all of the elected 
officials.
    Dr. Fleming. Yes.
    Ms. McCarthy. It was an option that was chosen by the DOD. 
It was not an uncontrolled burn. But, I think we have ended up 
in a much better place, one that the community really 
participated wonderfully well in, and I could not be more 
pleased.
    Now, in terms of this effort, I want you to understand--and 
I am sure that you do--that EPA's job was to try to support an 
effort to address what we knew was almost a likely 
inevitability of a blowout at that mine, as well as knowing 
that the river was being damaged each and every day, as a 
result of the mining in the Upper Animas.
    Should that spill have occurred? No. Are we going to figure 
out whether we could have done something about it, done 
something different----
    Dr. Fleming. But here is my question, Ms. McCarthy----
    Ms. McCarthy [continuing]. We will find that out----
    Dr. Fleming. I appreciate that. My question is that private 
citizens, Americans, and companies----
    Ms. McCarthy. Yes, yes.
    Dr. Fleming [continuing]. Are held to a high standard, and 
the punishments are severe. But, we are not hearing today of 
any punishments, or reductions in pay, or even firings that are 
going to occur because of this incompetency. That is the point 
I am making, it is a double standard.
    Yes, I know you are doing the best you can, and so forth. 
But one agency after another, the VA and now the EPA, has these 
responsibilities and these broad powers that no single company 
has, to inflict damage, to inflict severe punishment and 
penalties on Americans. Yet we do not find anything within the 
Agency where the decisionmakers and the people with all this 
power have any accountability for that.
    Ms. McCarthy. Sir, when a spill like this happens, the 
accountability is for the person who actually needs to take 
responsibility for that spill to do so, which we had.
    The second level is, ``How did it happen, and was there 
activity that should have been done differently. Is it 
criminal? Is it civil? Is it negligent? '' That is what we are 
looking at now. We are independently having that done, and I 
will live with those consequences. I will appropriately take 
action----
    Dr. Fleming. We will certainly want to hear who those 
decisionmakers were and what happened to them. Thank you, and I 
yield back.
    Chairman Chaffetz. I thank the gentleman. We will now 
recognize the gentlewoman from Massachusetts, Ms. Tsongas, for 
5 minutes.
    Ms. Tsongas. Thank you, Mr. Chairman. And welcome, 
Administrator McCarthy.
    This has not been a simple conversation for you. A lot of 
questions have been raised, I think on both sides of the aisle. 
I think we were all dismayed to see the horrific way in which 
the river was so impacted. I happen to come from a district 
that is rooted in the Industrial Revolution, where rivers have 
run various different colors, depending on the dye that was 
cast into them----
    Ms. McCarthy. I remember that.
    Ms. Tsongas [continuing]. At the end of the manufacturing 
days; so we are all very concerned about how we care for our 
rivers.
    Obviously, this spill does warrant an investigation, but I 
do think I have to give you credit for being willing to be here 
and answer appropriately the questions that we all have. So, I 
want to thank you for it.
    I think it is somewhat disingenuous to compare this with a 
private spill. As we have heard, you all have proactively made 
a decision to investigate yourselves through the Inspector 
General and the EPA, and through the Bureau of Reclamation, as 
well as doing an investigation. As you have said, you will 
accept the outcome of that and take appropriate actions.
    What is also different here is that this is a legacy site. 
Mine operators who benefited from the various metals that were 
in those grounds have subsequently abandoned them and left an 
environmental mess, and we have a difficult time holding them 
accountable. You have said that you were there because of 
concern with a blowout, the possibility of a blowout, and the 
degraded water quality. You have also noted there are 161,000 
such abandoned mines in which these issues present the EPA with 
a challenge of how best to fix them.
    You have also talked about--given that long list, you 
create a National Priorities List. I am curious, and think it 
would really be helpful for you to explain how you prioritize, 
given the vast number of mines that have the great potential to 
pose such harm to our environment.
    Ms. McCarthy. We actually prioritize it in a couple of 
different ways. We have factors that we consider, in terms of 
what deserves to be on the National Priorities List. In this 
particular case, we started back in the mid-1990s, looking at 
this, and actually suggesting that it be on the National 
Priorities List. But what we found at that point in time was 
that the communities and the states were actually getting 
together an Animas River Stakeholder Group, who insisted that 
they could do a good job at addressing this issue without 
taking that measure.
    They actually did a good job. Up until 2005, that river was 
getting cleaner all the time. But there was a turnaround in the 
river, and that turnaround meant that we were getting a lot 
more discharges. We see fish populations degrading. That is why 
we were continuing to look at it as of 2008, to see if we 
should look at the upper creek, the Cement Creek, as the 
section that we would articulate and look at for the National 
Priorities List.
    Out of that discussion came a collaborative effort with the 
state and the Animas River Stakeholder Group to take a look at 
what we could do. That is when the concern of a blowout arose, 
and we started working on a work plan that was very public, 
went to public hearings about what EPA could do to try to 
address that issue while people looked at the long-term 
challenge and thought about how best to do it.
    That is the history of this site. It is a long one, and, 
obviously, today, not a successful one.
    Ms. Tsongas. So, the local community--how did the 
communities initiate their interaction with the EPA? What was 
the process by which that took place?
    Ms. McCarthy. Actually, we have been working with them 
since at least the mid-1990s, that is how far back it goes. 
They pulled together the stakeholder group, that was really 
those people who worked in the mines, public citizens, local 
leaders, and state representatives. EPA helped to participate 
in some of those. It really just became a collaborative effort, 
knowing that they had a large problem, and that we had to work 
together. That became the tone of the discussion. EPA was not 
there to work as a lone entity. It was there to share ideas, to 
bring our mining experts to the table, to work with the state 
of Colorado and folks who knew the area better than we did, and 
to identify what work should happen.
    That was the work plan that we were working under at the 
time that this spill occurred. It was fully developed with 
everybody's input, with public hearings. Now, did we 
underestimate the potential of the spill at the site? Did we do 
something we should not have? Those are the issues that the 
independent review will give a fresh eye to. But it was not 
because we did not try, and it was not because we were not 
working collaboratively.
    Ms. Tsongas. Was the mine operator, the former mine 
operator, a part of any of those discussions?
    Chairman Chaffetz. I thank the gentlewoman. Sorry, the 
gentlewoman's time has expired. I now recognize the gentleman 
from Michigan, Mr. Walberg, for 5 minutes.
    Mr. Walberg. Thank you, Mr. Chairman; and Administrator 
McCarthy, thank you for being here.
    Before I go back to some responsibility questions, let me 
get to something I think is practical, especially since snowy 
weather, winter, may indeed be coming to this area very soon. 
It is expected that snow and wintery conditions will hit the 
Upper Animas area as soon as early October, which I would 
assume will impact the testing, recovery, and remediation 
efforts. What steps is EPA taking to prepare for these 
conditions?
    Ms. McCarthy. We are looking at two efforts, primarily. One 
is we are looking at a long-range monitoring plan that we are 
about to put out in draft to all of the groups that we are 
working with in the area, including the state, local and county 
officials, and the tribes. We will hopefully get some long-
range monitoring plan agreed to that will consider the 
challenges that we are facing with the winter months coming up.
    Mr. Walberg. Can you guarantee that you will not abandon 
the site during the winter?
    Ms. McCarthy. We will not abandon the site. The second 
thing we are doing is taking a look at whether we need to 
enhance the treatment process right at the site. That is not 
the full remediation that the Upper Animas needs, but we are 
looking at that issue in collaboration with the state and local 
communities, and the tribes, as well.
    Mr. Walberg. How many other sites similar to the Gold King 
is EPA currently working at or involved with right now?
    Ms. McCarthy. Well, first of all, I have actually issued a 
memo holding off on continued work on similar sites until we 
see what went wrong. What are we going to----
    Mr. Walberg. With this site?
    Ms. McCarthy [continuing]. See from the independent--from 
this site--so that we can learn those lessons, and ensure it 
does not happen again.
    My understanding is that we have, at this point, identified 
10 sites to actually have work put on hold that seem similar 
enough that we want to just monitor that situation, as long as 
there is not an imminent hazard. We are waiting on that October 
review to take a look at it.
    Mr. Walberg. Isn't it true that the contractor, whose work 
caused or contributed to the disaster, is still working at the 
Gold King site?
    Ms. McCarthy. Yes, that is true, sir.
    Mr. Walberg. Do you think the contractor that played such a 
huge role in this disaster should be working at the site?
    Ms. McCarthy. I think one of the challenges that we face is 
that our on-scene coordinator was at that site, and they were 
overseeing that work. The contractor, as far as my 
understanding, was doing the work dictated under the work plan. 
They are a very experienced contractor. We have no information 
that says that they had done anything wrong.
    We certainly know that the work plan was not sufficient----
    Mr. Walberg. Just a big yellow plume.
    Ms. McCarthy. Well, that was a result of, obviously, 
actions that we took. It was unanticipated. It was a decision 
we made with mining officials, ourselves, the states, and 
others. We need to look at what went wrong, but they are 
actually actively working to see that the----
    Mr. Walberg. Were they given a $500,000 additional--I guess 
you would not call it a bonus, but $500,000 additional to clean 
up the mess they made?
    Ms. McCarthy. I am not aware of what the sums are. If you 
are referring to the fact that they were the first on site and 
the most able to contain the spill, to construct the treatment 
facilities right at the spill location, and to contain it; they 
were there, they helped to do that. What that accounted for, in 
terms of time and money, I do not know.
    Mr. Walberg. Well, I would appreciate you checking into 
that----
    Ms. McCarthy. I will----
    Mr. Walberg [continuing]. Because it seems that it is 
indicated that this company, this contractor, that was highly 
responsible for the disaster, they were there, and they were 
able to be there as quickly because they were there. They were 
the ones that were doing it and caused this spill to take 
place, but it appears that they received an additional $500,000 
on top of their contract to now do the cleanup for the mess 
that they made. That, to me, does not sound appropriate.
    Ms. McCarthy. Sir, I am happy to provide you the 
information on what other compensation may have been given to 
this contractor, but I also want to reiterate that EPA is the 
one that is taking full responsibility for this. DOI will tell 
us whether mistakes were made at the site, or whether there was 
any misjudgment or work that we did not do, in terms of----
    Mr. Walberg. Well, let me get to that, and I appreciate 
that you have said that numerous times. We appreciate any 
entity that says, ``The buck does stop here.''
    Tell the committee in what ways EPA failed and bears the 
blame in this case.
    Ms. McCarthy. We are going to wait for the DOI review to 
tell us that.
    Mr. Walberg. What do you think? I mean we can read 
reports----
    Ms. McCarthy. Yes. Well, lessons----
    Mr. Walberg. What do you think?
    Ms. McCarthy. There are certainly already lessons learned. 
Do I think we were as good as we should be on notification? No, 
I do not think so. I realize that we had three different 
regional offices involved, we had 120 miles to account for 
before it even hit the Navajo Nation lands. We should have been 
more on top of that, and we should be looking at that. That is 
why we have already demanded that those actions take----
    Did we work effectively to get our response actions up? I 
think our response actions have been good. Can they always 
improve? We will look at ways in which we can do that. So we 
are trying to get the lessons learned here. One of the big open 
questions, I think, that you have raised in this committee--and 
I am sure we will be talking about again--is how did this spill 
happen? Did we look at this in a way that was not due diligent 
enough? Did we have the right people there, looking at----
    Mr. Walberg. And I think that goes back to the contract as 
well. So----
    Chairman Chaffetz. I thank the gentleman----
    Mr. Walberg. I thank the Chairman.
    Chairman Chaffetz. Time has expired. We will now recognize 
the gentleman from Massachusetts, Mr. Lynch, for 5 minutes.
    Mr. Lynch. Thank you, Mr. Chairman. Ms. McCarthy, normally 
when I see an old friend at a wake or a funeral, I say, ``It is 
good to see you, just sorry to see you under these 
circumstances.'' So it is good to see you, just sorry to see 
you under these circumstances.
    Ms. McCarthy. Does it feel like that to you, too?
    Mr. Lynch. Yes. Well, I love my EPA in my region. I have to 
say, just----
    Ms. McCarthy. Thank you.
    Mr. Lynch. I want to say some good things here. They are 
very responsive, very conscientious; and I appreciate the work 
that they do.
    But this is not the EPA's finest hour. I think you would 
admit that. I actually have a connection to this whole 
incident. I used to live in Farmington, New Mexico.
    Ms. McCarthy. Really?
    Mr. Lynch. I actually was an iron worker there, and lived 
on the Navajo Reservation. I was a guest of the Navajo Nation 
for a couple of years. I know how the tribe is intensely 
invested, not only financially, but spiritually----
    Ms. McCarthy. Yes.
    Mr. Lynch [continuing]. In their land. I was honored to be 
their guest for a couple of years.
    What troubles me here is that we often see how the EPA 
works. They have an almost maddening hyper-technical compliance 
regime for businesses. That is often the case. Yet, in this 
case, internally, it seems that the EPA abandoned all that 
hyper-technical compliance in its own application of its 
actions.
    What are we going to do? What are we going to do here to 
help the Navajo recover? What are we going to do to get this 
straightened out and cleaned up? Can we get a promise from you 
that you are all in on this, and that you are going to be as 
relentless in cleaning up this spill and this accident as you 
have been in some cases where you come down on some industries, 
that we are all aware of, that found themselves in a similar 
situation?
    We need that type of guarantee. We need you to be all in on 
this. We need you to be relentless in terms of fixing your 
mistake with what happened here. I mean, albeit, I know there 
were good intentions here, but, good Lord, this is a beautiful 
area, and now it is damaged extensively. We need your help to 
set this thing right.
    Ms. McCarthy. Well, I think you know, from my 
forthrightness about taking responsibility for this, that we 
are all in. Is it extraordinarily difficult and upsetting for 
the Navajo? There is no question about it. I recognize that. We 
are working to try to figure out what we can do together to 
resolve the circumstances here, but I know that it is going to 
take a really long time. And this is not EPA's final--best--
what did you say? Finest hour.
    But I am here to tell you that we are taking 
responsibility, we will do that in the long term, and we will 
find a way to get to the Animas River and the San Juan in a way 
that takes care of the underlying fundamental challenge we have 
here.
    But, I want to say that this was not a compliance issue. 
This was a response action to deal with, basically, 
contamination that EPA was not the responsible party for. Am I 
excusing our role in this? Did our actions actually contribute 
to this? If we did anything wrong, we will be fully accountable 
for that. In the meantime, we have to make good to the Navajo, 
the Southern Ute, the Ute Mountain Ute, and the states that are 
involved in this. There is no question about it.
    Mr. Lynch. Yes. As I said before, there is a spiritual 
dimension to this for the Navajo and the Ute, as well. I lived 
not too far from Shiprock, and there is an intense investment 
here on the part of these tribes. This is their homeland. 
Sometimes we forget that they are a sovereign nation, and we 
have a huge responsibility here to fix what we have 
exacerbated. Maybe we did not create it, but we certainly 
exacerbated the problem here; and we need to step up in a big 
way and meet our obligations.
    Mr. Chairman, I will yield back.
    Chairman Chaffetz. I thank the gentleman. I now recognize 
the gentleman from California, Mr. McClintock, for 5 minutes.
    Mr. McClintock. Thank you, Mr. Chairman. Ms. McCarthy, the 
EPA posted videos to its Web site taken by on-site contractors 
at the spill emerging out of the mine as it happened. I think 
we saw a clip of that earlier.
    On September 9, EPA Assistant Administrator Mathy 
Stanislaus testified before the House Science Committee on 
these videos, and I think we have a clip of that testimony.
    [Video shown.]
    Mr. McClintock. I am going to ask they stop it here. 
Obviously, the tape was heavily edited. This was a week ago, 
when your agency was giving misinformation to the Congress.
    You have had a week, and I am going to ask you again. Is 
this editing and concealing of videos EPA's idea of 
transparency and accountability?
    Ms. McCarthy. No, sir. That originally-posted video should 
not have been redacted. When it was pointed out to us, we have 
posted the unredacted version on our Web site.
    Mr. McClintock. You understand the concern here.
    Ms. McCarthy. Yes.
    Mr. McClintock. There are two, basically. One is the 
fundamental competence of the EPA, and I think that speaks for 
itself in this incident. The other is the double standard that 
seems to be at work here.
    You testified earlier in this hearing that you are not 
required to consult with the National Fish and Wildlife 
Service, because you did not intend to cause the spill. Well, 
the Chairman pointed out there is a company that accidentally 
spilled 7,500 gallons--one-fourth of 1 percent of what the EPA 
spilled, and you went after those people viciously and got six 
criminal indictments. You are sending people to jail over that.
    Some other poor guy in Alaska operating a backhoe 
accidentally causes a 1,500-gallon spill. That is five-
hundredths of 1 percent of the spill that EPA, and you sent him 
to prison.
    No criminal charges are being filed against EPA officials, 
are there?
    Ms. McCarthy. Well, I think that we are waiting for the 
Department of the Interior to actually produce a report. If 
they identify criminal or administrative concerns----
    Mr. McClintock. Well, you understand the skepticism of the 
Agency investigating itself.
    Ms. McCarthy. No, the Agency is not----
    Mr. McClintock. You say you are holding yourselves 
accountable, that you are going to take full responsibility. 
Does that mean that you are resigning?
    Ms. McCarthy. No, sir. It means that I am actually having 
the----
    Mr. McClintock. Well, have you asked----
    Ms. McCarthy. I am having----
    Mr. McClintock. Have you asked any of your subordinates to 
resign?
    Ms. McCarthy. No, sir, not----
    Mr. McClintock. Have you docked anybody's pay?
    Ms. McCarthy. No, sir.
    Mr. McClintock. Have you yelled at anybody?
    Ms. McCarthy. Well, maybe.
    Mr. McClintock. Have you----
    Ms. McCarthy. Sir, I am taking accountability for the spill 
and issues around that; but we are working as closely as we can 
to independently get this looked at, and we will be holding 
people fully accountable----
    Mr. McClintock. One more question. There was a blog entry 
reporting on this, pointing out that after the initial spill 
things went from bad to worse for those relying on the river.
    For example, Navajo farmers, unable to use water from the 
river, were provided with emergency water reserves from the 
EPA. Unfortunately, this water was contaminated, too, prompting 
another attempted EPA cover-up. According to The Guardian, EPA 
officials originally told Navajo leaders the individual 
reporting the contamination was ``unstable,'' and deliberately 
``agitating'' in an attempt to undermine the Agency. The Navajo 
leader took the EPA at its word, at least until he observed the 
pollution for himself. Is this true?
    Ms. McCarthy. What I understand is that those tanks were 
tested by the Navajo and found to be clean. It was drinking 
water put into fully cleaned tanks. That is my understanding of 
the situation.
    There was definitely concern. Do I think the level of 
mistrust contributed to that? Do I understand why, given EPA's 
responsibility here? I absolutely do. It is going to take a 
long time, I think, before anybody begins, at least in the 
Navajo, to be able to trust our relationship again. Do I regret 
that?
    Mr. McClintock. Yes.
    Ms. McCarthy. But I am working with them. If they want 
third-party review of everything we do--we are trying to 
identify how we do this.
    We will rebuild this trust; but damage has been done beyond 
what happened to that river, and it is going to take a long 
time to repair that. I am going to do the best I can to make 
sure that happens.
    Chairman Chaffetz. I thank the gentleman. I now recognize 
the gentleman from California, Mr. Lowenthal, for 5 minutes.
    Mr. Lowenthal. Thank you, Mr. Chairman, and both of the 
Chairs for holding this hearing. And thank you, Administrator 
McCarthy, for coming, for being so forthright, for not trying 
to duck tough issues, and for being accountable.
    But I think that we still have to go back to some of the 
points that were made before, that the Gold King Mine spill 
tragedy reminds the Nation of the reality that we have ``a 
creeping killer in the shadows.'' There are up to a half 
million abandoned mines, nationwide. Many of these mines are 
dangerous. They are discharging toxic, acidic mine waste into 
our surface waters; and if we do not do anything to properly 
clean them up and close them down, we will have more disasters. 
That is it. I think that is what I have learned after being 
here.
    I am very sorry it took this tragedy, and I am sorry for 
some of the actions that have been taken; but I am really glad 
that we are focusing our attention on what is frequently 
ignored or forgotten--and that is to help address this problem 
of abandoned mines. I point out again that Ranking Member 
Grijalva, many of my colleagues, and myself, have introduced 
legislation that would secure funding to clean up and properly 
close down these dangerous mines.
    H.R. 963, the Hardrock Mining Reform and Reclamation Act, 
would also provide assistance to mining communities and ensure 
a fair return to taxpayers for extracting public minerals. I 
would like to urge all my colleagues here today to become co-
sponsors of this important legislation, and help us to prevent 
the next abandoned mine contamination release before it 
happens.
    Now, Administrator McCarthy, these may seem like obvious 
questions I have. Some have already been gone over, but I would 
like to get them on the record.
    The EPA, as I understand, was partnering with the state of 
Colorado on the Gold King Mine project. Is that correct?
    Ms. McCarthy. Yes, sir. We were cooperating with them, yes, 
and coordinating our efforts.
    Mr. Lowenthal. Why was the EPA in Colorado working with the 
state on the Gold King Mine, as well as on other mines in the 
area?
    Ms. McCarthy. Because of the degradation of the water 
quality in the Animas River and the San Juan River that was 
being contributed to by these 400 mines in the Upper Animas, as 
well as the threat of a blowout at the mine, which was a very 
big concern.
    Mr. Lowenthal. How did that happen? Why were we in this 
situation?
    Ms. McCarthy. It is a long history, but those mines have 
really not been actively worked since 1991. Since that time, 
there has been a buildup of water in the system. Some of the 
mines in the area have been plugged, which shifts the 
hydrology, which creates a backup. In the Gold King Mine 
itself, it had some collapses in the mine, which made it 
inaccessible; so we were trying to get a handle on the 
situation that was growing increasingly dangerous.
    Mr. Lowenthal. And the question to me is--again, to clear 
up--why were the original mining operators--why did they not 
clean this up? And who will now be paying for this cleanup?
    Ms. McCarthy. My understanding is that, for the most part, 
they are not obligated to. What we use, in terms of our 
resources, are taxpayer dollars; they are given to us, 
appropriated, by Congress.
    Mr. Lowenthal. So, it is the taxpayers that will be paying 
for this--and, not only this. As we look into the future, as 
you already stated, we have incomplete data as to where 
abandoned mines are, what toxins they are releasing into our 
waterways, and we are currently unable to adequately pay for 
the cleanup of these abandoned mines.
    It seems to me, if we take a larger view of the Gold King 
Mine disaster, and we move forward with legislation, that 
something like the Hardrock Mining Reform and Reclamation Act 
would provide the funding for cleaning up these abandoned mine 
sites. Is that not so, that something like this would be 
appropriate?
    Ms. McCarthy. It would certainly help, sir.
    Mr. Lowenthal. Thank you, and I yield back.
    Chairman Chaffetz. I thank the gentleman. I now recognize 
the gentlewoman from Wyoming, Mrs. Lummis, for 5 minutes.
    Mrs. Lummis. Thank you, Mr. Chairman. Thank you, Director 
McCarthy, for being here. Let me set up a scenario.
    A number of years ago, there was a water treatment plant 
that was actually downstream that was treating the water from 
this mine. About 10 years ago, there was a storm; it was 
damaged, it needed to be replaced. A decision was made not to 
replace it, not to treat the water that was coming down.
    Next, EPA and the state of Colorado created a plan to clean 
up the mine, rather than just treat the water going downstream. 
So, they blocked off the flow of water from drainpipes in the 
mine. When they plugged the drainpipes, the water built up into 
a huge wall of water in the mine; and that was a significant 
cause of the blowout last month.
    So, rather than replace the treatment plant downstream that 
was providing cleaned-up water to the Utes and the Navajos, the 
decision was made, ``No, let's not treat it, let's block the 
drains, store the water in the mine.'' When it built up, it 
spilled out. It goes downstream.
    Then, Bureau of Reclamation dumps a ton of water downstream 
that should have been available to the tribes to irrigate with 
and to keep water flows such that endangered species can remain 
viable. To me, this looks like a chain of events that was 
foreseeable and avoidable.
    Now, it was the Gold King Mine's owner that asserted that 
the buildup of water in the mine, when you plugged the drains, 
was a contributor to the blowout. Do you have any reason to 
disagree with that?
    Ms. McCarthy. I have a slightly different understanding of 
the history here, and the issues, so I do not want to pick 
apart the issue; but I do think we need to have a conversation 
about it, because I do not quite see the same history here.
    I do know there have been many decisions. I want you to 
understand EPA's role here. We did not participate in decisions 
about who was responsible for what, where blockages should be 
approved or not approved, or what to do with the treatment 
facility that you identified. We came in, simply trying to work 
with the state and the local stakeholders to identify what we 
could do to alleviate problems along the way.
    Mrs. Lummis. OK. So now that we know that the Southern Ute 
tribe has already spent at least $170,000 responding to the 
spill----
    Ms. McCarthy. Yes.
    Mrs. Lummis [continuing]. Who is going to reimburse them?
    Ms. McCarthy. Actually, there are two processes here, and 
the reimbursement process is handled under CERCLA.
    Basically, it is a Memorandum of Agreement we need to 
reach. I was just checking to see if that has been done with 
the responsible parties who have been helping us. That is a 
routine reimbursement process that we will be able to take care 
of. Those relationships with both the tribes and the states are 
fairly routine for us, because they act as emergency responders 
with us. The Southern Utes have been incredible, and actually 
incredibly diligent in being embedded in our Command Center, 
working on this. Their professionalism has been wonderful. So, 
we are going to make sure that they are properly reimbursed for 
their expenses.
    The second process is the claims process, which is not 
really a reimbursement issue, it is what damages have occurred. 
We use the Federal Claims Tort Act in order to process those 
claims.
    Mrs. Lummis. How does the Federal Tort Claims Act help the 
Navajo? They lost a huge amount of irrigating water, which can 
have long-term devastating effects if drought continues and 
they do not have the water now or in the future. How can they 
be made whole?
    Ms. McCarthy. Right. There are two things that are 
happening here, as well.
    One is that we are talking to the Navajo about how they get 
reimbursed for the work that they have done. It has been 
extensive, as well. We need to work with the President, as well 
as Navajo Nation EPA, to reimburse for their expenses.
    The second issue also is the claims process, if individuals 
want to participate in that process, as well. I want to make 
sure that we are all aware that the reimbursement process is 
quite different; while it is costly, it is easy to do. We have 
processes in place for that.
    The third issue is that we are developing a long-term 
monitoring plan. We need to make sure that that plan allows 
engagement of the tribes, the states, and the counties in that 
effort; and we need to have a stream of funding to support that 
effort, as well.
    Mrs. Lummis. My time has expired. But, Mr. Chairman--might 
I ask that I have an opportunity to meet with you, Director 
McCarthy, about what you and I perceive as a different----
    Ms. McCarthy. Sure.
    Mrs. Lummis [continuing]. Scenario with regard to the cause 
and effect, the chain of events that led to this?
    Ms. McCarthy. I will have my staff work with you----
    Mrs. Lummis. Thank you.
    Chairman Chaffetz. I thank the gentlewoman. We will now 
recognize the gentleman from Virginia, Mr. Beyer, for 5 
minutes.
    Mr. Beyer. Thank you, Mr. Chairman. Administrator McCarthy, 
I would like to thank you for sitting here patiently, and 
capably answering all these questions. I would also like to 
thank Representative Lummis for raising the whole issue of the 
bulwarks and changing the hydrology in the mountain. That seems 
to be what we have missed all along, that water was draining 
and responsibly being treated. When the bulwarks went in 
through a consent decree, everything changed; and there is a 
big problem still out there.
    I am just sort of amazed that all these people, all this 
attention to attack the EPA over a completely accidental 
release of 3 million gallons of mined wastewater, when 330 
million gallons of acid river drainage are flowing into Cement 
Creek and Animas River every year. There were 3 million gallons 
on August 5, and this same watershed gets 3 million gallons 
every 3 or 4 days.
    We have heard today that there are at least 161,000 
hardrock abandoned mines around the country. The U.S. Forest 
Service estimates 5,000-10,000 miles of rivers and streams 
contaminated with acid mine drainage, just from hardrock 
abandoned mine lands located on USFS lands. It seems to me, the 
huge elephant in this room is all of the water drainage from 
these mines, not the relatively small spill of only 3 million 
gallons on August 5.
    The Chairman said this is one of the worst spills we have 
ever had. I am not sure the facts support that claim. In 1975, 
50,000 tons of tailings poured into the Animas River, turning 
the river the color of aluminum paint. In 1978, the Sunnyside 
Mine, 500 million gallons into the Animas--that is 167 times 
what went in on that one day. Those are just the Animas River--
just spills all over the country.
    We keep coming back to accountability, and I like to look 
at process. What was the process by which this decision was 
made? In the testimony before, we hear about the EPA and the 
state of Colorado meeting with the Animas River Stakeholders 
Group. On August 4, they began excavation above where water was 
seeping into the adit. What comes back again and again with the 
Colorado Division of Reclamation, Mining and Safety, the EPA, 
and the contractor, is that the mistake was that someone 
determined that the adit had low or no pressure.
    Ms. McCarthy. Yes.
    Mr. Beyer. Or, ``the underestimation of the water pressure 
in the Gold King Mine workings is believed to be the most 
significant factor relating to that blowout.''
    Is it going to be possible to identify the person or group 
of people who made that faulty determination? And should they, 
then, be fired, have their pay docked, or be yelled at, or----
    Ms. McCarthy. Well, that----
    Mr. Beyer. Because that was the heart of the matter.
    Ms. McCarthy. That was one of the key findings of our 
internal review, and I am sure that is one of the key areas in 
which the Department of the Interior is going to look.
    What we do know is that same review identified the factors 
that they considered to make a judgment. When I say ``they,'' 
it was both the Colorado Division of Reclamation, Mining and 
Safety that was with us, making those determinations on the 
site. They were looking at factors that they could see, to see 
whether or not there was pressure buildup at the Gold King 
Mine, based on that day and that evaluation. They made a 
judgment that turned out to be wrong. Whether or not they did 
due diligence in making that, or missed factors that they 
should have looked at, that is what the Department of the 
Interior is, hopefully, going to be able to advise us.
    We will follow up; and they will be held accountable if 
there were mistakes made, if they could have avoided this, if 
they forgot to look at something, or made a judgment that was 
not based on profound and good engineering and science.
    Mr. Beyer. Thank you. I read the President of the Navajo 
Nation's long and very detailed testimony to be offered later. 
I am sure you have, too, Madam Administrator. Obviously, he 
points out not just concerns about the 3 million gallons, but 
how the EPA will deal with everything that is coming in the 
future, and what the Navajo Nation, its farmers, and its people 
will need.
    Is there any reason to think that the August 5 spill was 
anything more than the trigger for all of this attention and 
partnership between the EPA and the Navajo Nation?
    Ms. McCarthy. I think it has raised visibility of these 
issues in a way that I am hoping something good can come out of 
this, so that we will be better off, in terms of how we manage 
these sites, moving forward. But we have been working with the 
Navajo for years, and we will continue to do that. We will 
address the concerns that they have identified as best we can.
    Mr. Beyer. Because even before the August 5 spill, most of 
these things were just as relevant----
    Ms. McCarthy. They were----
    Mr. Beyer [continuing]. For their farmers, for their water 
supply, and for the spirituality of their land.
    Ms. McCarthy. We now know that the water is at pre-event 
conditions. But that does not mean that the Animas and the San 
Juan are at a point where they need to be, in terms of their 
water quality and the protection of the sediment, so that we 
are not experiencing these fluctuations that we are seeing now.
    Chairman Chaffetz. I thank the gentleman for his time. The 
time has expired. We will now recognize the gentleman from 
South Carolina, Mr. Duncan, for 5 minutes.
    Mr. Duncan. Thank you, Mr. Chairman. First off, I think 
there is a clear double standard of how EPA places itself and 
to how you place private enterprises with regard to this.
    The gentleman from Arizona has been a leader on this issue 
for the Natural Resources Committee. I would like to yield the 
balance of my time to him.
    Dr. Gosar. Ms. McCarthy, in yesterday's hearing in front of 
the Senate Environment and Public Works Committee, when asked 
whether the government should be held to the same standards as 
it requires of the public and the private sector, you stated 
that, ``Actually, a higher standard would be quite 
appropriate.'' Do you still believe today that a higher 
standard for government would be quite appropriate?
    Ms. McCarthy. I do.
    Dr. Gosar. Thank you. I appreciate it.
    Ms. McCarthy. We have a public responsibility that is 
larger than what I think the private sector has, yes.
    Dr. Gosar. I would like to highlight and submit for the 
record a Wall Street Journal article from September 9 written 
by a former EPA employee. In the article, Bill Wehrum states, 
``a facility in Charleston, West Virginia, accidentally spilled 
roughly 7,500 gallons of toxic chemicals into the local 
waterway. The EPA's recent discharge of toxic water in Colorado 
was many times larger. Yet the Agency went after the company 
with everything it had.''

    [The information follows:]

THE WALL STREET JOURNAL
Opinion/Commentary
Salvaging a Lesson From the Animas River Spill

BY BILL WEHRUM

SEPTEMBER 9, 2015

HTTP://WWW.WSJ.COM/ARTICLES/SALVAGING-A-LESSON-FROM-THE-ANIMAS-RIVER-
                    SPILL-1441841582

The EPA employees at fault won't face criminal charges. Neither should 
companies that make similar mistakes.

[GRAPHIC] [TIFF OMITTED] T6242.015


.epsThe Animas River disaster in Colorado is looking worse and worse 
for the Environmental Protection Agency. On Wednesday, EPA officials 
faced grilling from a congressional committee for the Agency's Aug. 5 
spill of three million gallons of toxic wastewater into a tributary of 
the Animas during the cleanup of an abandoned mine near Silverton, 
Colo. On Aug. 24, the Agency released the findings of an internal 
investigation that found its staff had failed to accurately gauge the 
water pressure within the mine, thus increasing the chances for a 
``blowout'' like the one that occurred.

All this came after reports that the EPA had known for more than a year 
that cleaning up the mine was highly risky. As Rep. Lamar Smith (R., 
Texas), chairman of the House Committee on Science, Space and 
Technology, asked in Wednesday's hearing: ``Why did the EPA ignore 
these obvious warnings? ''

Such revelations have intensified criticism of the EPA's handling of 
the spill. High-profile politicians, including former Speaker of the 
House Newt Gingrich, have even called for criminal charges against the 
Agency and the employees at fault. Yet federal law protects them from 
any such action. America will have to settle for EPA Administrator Gina 
McCarthy's statement that she is ``absolutely, deeply sorry this ever 
happened.''

As a former EPA official, I believe the Agency and the individuals 
responsible shouldn't be prosecuted for the accident. But I also 
believe this episode brings needed attention to a serious problem with 
how the EPA conducts business: The Agency often criminalizes actions 
that are nothing more than accidents, many far less damaging to the 
environment than the Animas River disaster. Such treatment is unjust.

There are many examples. Consider last year's Elk River chemical spill. 
In January 2014, a Freedom Industries Inc. facility in Charleston, W. 
Va., accidentally spilled roughly 7,500 gallons of toxic chemicals into 
the local waterway. The EPA's recent discharge of toxic water in 
Colorado was many times larger. Yet the Agency went after the company 
with everything it had.

The EPA quickly dispatched an agent from its Criminal Investigation 
Division to West Virginia. Working with the FBI and a local U.S. 
attorney, the EPA built a case that resulted in criminal indictments 
for Freedom Industries and six of its employees. All pleaded guilty in 
connection with negligent discharge under the Clean Water Act and 
currently await sentencing, which could involve varying prison 
sentences.

Companies and employees who willfully commit a crime should be 
prosecuted. But criminal liability for negligence isn't appropriate 
because, by definition, a negligent act isn't done with intent. That 
doesn't mean that negligent acts should go unpunished. There is ample 
authority for fines and other appropriate relief to be imposed under 
civil law. Criminal liability should be reserved for those who intend 
to break the law.

Yet under the Clean Water Act and numerous other laws enforced by the 
EPA, accidents like the Elk River chemical spill are criminally 
punishable. In that sense many environmental laws and regulations with 
criminal penalties suffer from a problem common in the rest of criminal 
code--a lack of intent requirement.

There is no indication that any of Freedom Industries' employees 
intended to cause the spill. The company declared bankruptcy within 
days of the accident, 11 months before the federal government announced 
its criminal prosecution. (One employee is being criminally prosecuted 
for bankruptcy fraud, which isn't related to the spill.) The company 
also suffered from civil lawsuits from area residents, the costs 
associated with the post-spill cleanup, and the inevitable public-
relations disaster that accompanies such debacles.

In other words, the criminal charges related to the spill added insult 
to an already debilitating injury. They satisfied calls for vengeance 
but failed to serve the cause of justice.

Criminal prosecutions aren't restricted to major, headline-grabbing 
disasters. Take the 1999 prosecution of Edward Hanousek. He oversaw a 
quarrying project for Pacific & Arctic Railway and Navigation Company 
in Alaska where a backhoe accidentally struck a pipeline, sending up to 
1,500 gallons of oil gushing into nearby Skagway River. Though Hanousek 
was off-duty and wasn't operating the backhoe, he was criminally 
charged and sentenced to six months in prison because his contract said 
he was responsible for safety at the site.

There is also the 2011 prosecution of Lawrence Lewis. Upon finding 
sewage flooding a military retirement home in the Washington, D.C., 
metro area, he diverted the flow into a storm drain that--unbeknown to 
him--discharged into the Potomac River. He was charged and pleaded 
guilty to a crime under the Clean Water Act.

The list goes on. The lesson is clear: People can have their lives 
ruined for something that, in Gina McCarthy's words, they are 
``absolutely, deeply sorry'' for and never meant to do.

The EPA accidentally released three million gallons of toxic water into 
one of America's most scenic river systems. Thanks to federal law, the 
employees at fault will never face criminal prosecution or jail time 
for their mistake--nor should they. But neither should the companies 
and individuals who make similar mistakes during their work. What's 
just for the EPA surely is just for those it regulates.

                                 ______
                                 

    Dr. Gosar. Should the Department of Justice or an 
independent investigator go after the EPA with everything it 
has?
    Ms. McCarthy. When we get the final report to understand 
what happened, I would expect DOJ to pay attention to that, and 
I will pay attention to it, as well.
    Dr. Gosar. Would the Inspector Generals be involved in 
that----
    Ms. McCarthy. The Inspector General is also looking at 
doing an independent review, yes.
    Dr. Gosar. Former EPA employee, Wehrum, also references an 
incident that occurred during the Clinton administration, where 
a railroad supervisor overseeing a quarry project hired a 
contractor who accidentally struck a pipeline with a backhoe 
and contaminated about 1,500 gallons of river water. While the 
supervisor, Hanousek, was off-duty at the time of the incident, 
and had subcontracted the work, the EPA pursued criminal 
charges against him. He was sentenced to 6 months in prison 
because he was ultimately responsible for the safety on the 
site.
    You have said that the EPA and you are ultimately 
responsible for this spill, and you take personal 
responsibility of this incident, correct?
    Ms. McCarthy. Sir, the only correction I would make is that 
the Department of Justice is the one that pursues criminal 
actions.
    Dr. Gosar. OK, OK. Since you believe in parity and a higher 
standard for government, should someone from the EPA go to jail 
for this incident, then? We are making apples to apples----
    Ms. McCarthy. I am not at all aware that there is 
negligence, or that we did not do due diligence. Those are the 
things that the Department of the Interior would indicate----
    Dr. Gosar. I would beg to differ. I mean, we knew there was 
a problem here, and we should have alerted everybody along 
these lines.
    Ms. McCarthy. I just do not----
    Dr. Gosar. I think the Chairman of the----
    Ms. McCarthy [continuing]. Know what precipitated----
    Dr. Gosar [continuing]. Committee, from that standpoint.
    Ms. McCarthy. I just do not know yet.
    Dr. Gosar. What actions would the EPA take against a 
private company who was responsible for a spill of this 
magnitude?
    Ms. McCarthy. We actually would be doing exactly the same 
thing with that company at this stage, looking to independently 
identify whether or not there was any negligent or criminal 
activity that led to this. That is exactly the same process we 
are going through today.
    Dr. Gosar. OK. When the spill was reported to the National 
Response Center at 12:27 on August 5, the caller repeatedly 
emphasized how important it was to notify downstream users who 
would be affected by the contaminated plume headed toward them. 
The message was relayed to the EPA.
    Why is it that the state of New Mexico, the Southern Ute 
tribe, and the Navajo Nation all found out about this spill 
from other sources, not the EPA, who caused the incident in the 
first place?
    Ms. McCarthy. It was part of our contingency plan that we 
always use----
    Dr. Gosar. Really?
    Ms. McCarthy [continuing]. To take advantage of local 
information, so that there is appropriate notification. Whether 
or not it was as quick as it could be, I do not know; but that 
was an appropriate way in which to notify.
    Dr. Gosar. Well, so you were notified. How hard would it be 
to pick up the phone?
    Ms. McCarthy. Well, we have a whole stream. It is not us 
individually deciding who to call. There is a contingency plan 
for notification that is developed with the states, with the 
local communities, and that is what we initiate.
    Dr. Gosar. OK.
    Ms. McCarthy. This is not done on the fly. This is a plan 
that was developed with everybody's input----
    Dr. Gosar. Well, obviously, as a CEO, it failed. It failed 
miserably. It was way delayed. You have representatives that 
will testify to that--the Navajo Nation, the Utes.
    I want to, first, move forward a little bit. This lack of 
trust that is now being instilled within the tribes--how can we 
expect states and tribes to have trust and faith in your agency 
to clean up this mess, if they cannot rely simply on being 
informed of what is going on? You talked about collaboration, 
but it shows very poor respect.
    I want to ask one more question before you answer, because 
I am running out of time.
    Ms. McCarthy. OK.
    Dr. Gosar. Why is it so difficult--I know the Southern Utes 
were on there--for tribes and the states to have seats at the 
table at the EPA's Incident Command Center, having open lines 
of communication or getting questions answered about health and 
sediment impacts? Because I know they are. Well, I look over at 
the President of the Navajo Nation. This could have been 
dramatically averted. So, I want to know why there is so much 
reluctancy in those applications?
    Ms. McCarthy. Actually, there is no reluctance to have the 
tribes involved to the extent that they want to. They actually 
were involved in our Incident Command Center. The Southern Utes 
were there and embedded. We had----
    Dr. Gosar. And the Navajo?
    Ms. McCarthy [continuing]. Eleven people embedded in their 
Incident Command Center and other activities in the tribe----
    Dr. Gosar. Something seriously went wrong in this 
application; and, as a CEO, I hope that you would review that. 
Thank you.
    Ms. McCarthy. Thank you, sir.
    Chairman Bishop [presiding]. All right. We are now under 
Resource rules, which means we have a second panel that has 
been sitting for 2 hours, waiting to be heard.
    We are going to move this quickly through, which means your 
5 minutes, I am going to gavel you down at the end of it. For 
your answers, if it comes to 5 minutes and you are in the 
middle of a sentence, I am going to stop you.
    For the rest of you Members, do not wait until there are 10 
seconds left before you ask her a question. Give her a fair 
chance to do this.
    But we are going to keep the 5-minute rule and get along, 
so we can get the other panel in here.
    Delegate Norton, you are next up for 5 minutes.
    Ms. Norton. Thank you, Mr. Chairman.
    Actually, I can see something beneficial that came out of 
this tragic accident. And, of course, you have taken 
responsibility. I congratulate you on the rapid cleanup. It 
should not have happened in the first place, but the benefit 
that has come is that it has focused us on mine leaking. I 
would ask the Chairman to put into the record an editorial from 
The Salt Lake Tribune entitled, ``Editorial: Chaffetz, Bishop 
owe us real answers on EPA failure, not another Benghazi.'' So, 
your taking responsibility is very important. Perhaps it is a 
model for what ought to happen here.
    I understand that, while there is no Federal Government 
data, there may be as many as 500,000 abandoned mines. Are they 
orphans out there, nobody takes responsibility for them? The 
state? The Federal Government? Nobody? Is that the case?
    Ms. McCarthy. The state and Federal Government do the best 
they can, but even we do not know where many of these mines are 
located.
    Ms. Norton. This was in Colorado. I note that in Colorado 
there are three mines listed on something called the National 
Priorities List.
    Ms. McCarthy. Yes.
    Ms. Norton. Does this mean that those mines pose a risk, as 
we speak, for leakage?
    Ms. McCarthy. The reason it is on the National Priorities 
List--which you might think of as the Superfund list--is that 
it----
    Ms. Norton. Yes, and I do not understand why this is not 
covered by the Superfund.
    Ms. McCarthy. Well, there has been discussion about whether 
it should be on the National Priorities List. President Begaye 
has written to me, and I will take that letter very seriously.
    There have been discussions. Up until 2005, there was a 
good opportunity to clean this up, and it was going in the 
right direction----
    Ms. Norton. Ms. McCarthy, I need to know whether this acid 
mine pollution with this half million or so mines poses any 
danger to drinking water or to fish and other wildlife.
    Ms. McCarthy. I would have to say, throughout the country, 
there are many instances in which we are looking at sites on 
the National Priorities List which do pose significant hazard, 
yes.
    Ms. Norton. Including drinking water?
    Ms. McCarthy. Correct.
    Ms. Norton.  We could have some of this leakage into the 
drinking water of the American people?
    Ms. McCarthy. That is a continual threat from many of----
    Ms. Norton. But we do not have any way of knowing that 
until it is there?
    Ms. McCarthy. On the National Priorities List, EPA is 
responsible for monitoring those sites, and for taking action 
if the responsible party is not. So, we are monitoring those. 
The concern I think I have more is----
    Ms. Norton. After you monitor, can you make----
    Ms. McCarthy [continuing]. Those that are not on the list.
    Ms. Norton. Can you then alert or make somebody do 
something about it?
    Ms. McCarthy. Yes.
    Ms. Norton. Who does something about it?
    Ms. McCarthy. It is either the responsible party or EPA.
    Ms. Norton. Or EPA?
    Ms. McCarthy. That is correct. But we only have a small 
fraction of the mines on the National Priorities List.
    Ms. Norton. What do you do to get on that list?
    Ms. McCarthy. It has to be called to our attention. We have 
to do a site assessment. We have to consult and confer with the 
governor in the site, or the leadership in the tribes, in order 
to have it on the National Priorities List; and we have to make 
a decision that is very process-oriented and public, to get 
them on a site and to allow us to then spend Federal and state 
dollars on a more full and rich cleanup.
    Ms. Norton. Well, I see the ball is in our court on that. I 
thank you very much, Mr. Chairman.
    The Chairman. Thank you. We will now turn to Mr. Meadows.
    Mr. Meadows. Thank you, Mr. Chairman. Ms. McCarthy, good to 
see you again.
    Ms. McCarthy. You too, sir.
    Mr. Meadows. I want you, if you would, to clear up 
something for me. Chairman Bishop, when he asked you about why 
you did not notify the Fish and Wildlife, your testimony was 
that you did not anticipate a discharge, so there was no 
notification.
    Then, upon further questioning from Mr. Fleming about an 
unrelated, you said that a discharge was imminent, that you 
believed that it was going to happen.
    So, which is it, your testimony to Mr. Bishop or your 
testimony to Mr. Fleming? Because they seem to conflict.
    Ms. McCarthy. Well, let me try to be a little clearer; I 
apologize if I have not been.
    We were there because concern was raised that there was 
pressurized water in the mine, in that adit, and that it might 
result in a blowout. That is the reason we were doing the work, 
to try to alleviate that pressure. The actions we were taking 
were certainly not intended to cause the blowout, and the 
actual professional opinion of those on the site was that that 
would not happen.
    Mr. Meadows. All right. Let me go a little bit further 
then, because any time you do any kind of work, there is a 
plan.
    Ms. McCarthy. There is.
    Mr. Meadows. Who approved the plan? EPA? Don't you approve 
the plans?
    Ms. McCarthy. Essentially, that is what we----
    Mr. Meadows. Well, I am troubled, because I looked at that 
video, and I am very familiar with 402 permits. I have been 
there, done that.
    Ms. McCarthy. Unfortunately, yes.
    Mr. Meadows. It does not even seem like you followed your 
own guidelines that would be applied to the private sector. I 
did not see any of those there. Did you intentionally avoid 
your own guidelines?
    Ms. McCarthy. There were plans. One--there was a plan. It 
was developed by----
    Mr. Meadows. Did you follow 402 general guidelines?
    Ms. McCarthy. We actually, I believe, followed all permits. 
But what----
    Mr. Meadows. Now, I did not ask--I said 402 guidelines. 
That is a specific question.
    Ms. McCarthy. Yes, I do believe we did, because we were 
actually not----
    Mr. Meadows. So, where was the retention--where was all----
    Ms. McCarthy. There was actually a retention pond that was 
constructed. There was one----
    Mr. Meadows. So the retention pond was behind the truck?
    Ms. McCarthy. No, actually----
    Mr. Meadows. Because I saw the video. It started flowing to 
the truck.
    Ms. McCarthy. No, no----
    Mr. Meadows. Where is the retention pond?
    Ms. McCarthy. The retention pond was constructed in a way 
that would have managed the anticipated release. That was our 
anticipated release we were trying to generate in order to 
relieve the pressure. Because it was a blowout, that treatment 
pond was clearly inundated very quickly.
    Mr. Meadows. Yes, but, Ms. McCarthy, listen. You are 
talking to somebody who has done this. Normally what you have 
are multiple retention ponds, in case of a blowout. I know that 
I have had to construct them. So, you anticipate worst-case 
scenarios. It does not look like you anticipated worst-case 
scenarios. It looked like you kind of cut some corners to try 
to get it done, and you had a truck there working on it.
    Ms. McCarthy. This was one of the issues that the internal 
review raised, as to whether or not the emergency plan was 
adequate.
    Mr. Meadows. What is your opinion on that? Was it adequate? 
Your opinion. I am not asking----
    Ms. McCarthy. Well, that----
    Mr. Meadows. Was it adequate?
    Ms. McCarthy. The internal review clearly pointed out 
that----
    Mr. Meadows. That it was not adequate.
    Ms. McCarthy [continuing]. What they saw was not adequate.
    Mr. Meadows. OK. So let me----
    Ms. McCarthy. What they saw.
    Mr. Meadows [continuing]. Finish----
    Ms. McCarthy. I do not know what else is there. But, I 
honestly think we have to look at the Department of the 
Interior----
    Mr. Meadows. OK. Why do we have to look at the Department 
of the Interior? You keep coming back to that as this 
independent----
    Ms. McCarthy. That is right.
    Mr. Meadows [continuing]. Agency.
    Ms. McCarthy. Yes.
    Mr. Meadows. Well, it is part of the Administration, so I 
hardly see the DOI being independent, necessarily, the way that 
we would think of independent. So why not the Inspector 
General?
    Ms. McCarthy. The Inspector General is looking at this 
issue.
    Mr. Meadows. But why would they not have----
    Ms. McCarthy. I think if we go to----
    Mr. Meadows. Why would they not have the main authority, 
the Inspector General for the EPA?
    Ms. McCarthy. They are going to be looking at this, but----
    Mr. Meadows. Why would they not have the main authority?
    Ms. McCarthy [continuing]. We are going with the agencies 
that have significant expertise, it is the Department of the 
Interior, the Army Corps.
    One of the things we did was to make sure that we were not 
defining the scope of work----
    Mr. Meadows. So who decided who is going to inspect who? 
Did you decide who is going to be independent?
    Ms. McCarthy. No, I left that up to staff and others----
    Mr. Meadows. But your agency decided who was going to be 
independent?
    Ms. McCarthy. We actually consulted with a number of 
agencies. Those agencies agreed to do it. They have----
    Mr. Meadows. Can you get those documents to the committee, 
in terms of those inquiries that were made, in terms of who 
would be best? Because, obviously, if you made multiple 
inquiries, you have data and emails to back that up.
    Ms. McCarthy. I certainly can see what we have available, 
if that is the request. But we did try to----
    Mr. Meadows. I would ask that you----
    Ms. McCarthy [continuing]. Get authorities to actually look 
at this that would have the expertise to be able to do an 
independent review.
    Mr. Meadows. If you would, get that to the committee.
    Mr. Chairman, I yield back.
    The Chairman. Thank you. Under 5 minutes. Well done.
    Mr. Lamborn.
    Mr. Lamborn. Thank you, Mr. Chairman; and for both of the 
Chairmen, thank you for having this hearing.
    Ms. McCarthy, it is probably no secret to you that tens of 
millions of Americans fear the EPA, despise it, and even hate 
it. Many of them are in my district. One of the reasons many 
Americans feel this way is the high-handed and arrogant way 
that the EPA operates. It is constantly moving the goal posts 
of environmental standards.
    In many, if not all, of these cases, the existing standards 
are already quite stringent, and have been complied with at 
great expense on the part of taxpayers or the private sector. 
To ignore the high economic cost of further tightening of 
standards shows a disregard for the difficulties that many 
everyday Americans face in putting food on the table without 
having to pay higher prices for energy or losing jobs because 
of the higher cost of regulation to business.
    My state of Colorado, for instance, is currently being 
forced to sue the EPA to avoid the ill-considered Clean Energy 
Plan, which has an extremely high cost for little or no 
environmental benefit.
    Now, the arrogance of the EPA is seen by its reaction in 
the aftermath of the horrible environmental disaster in 
Colorado that we are here to discuss and investigate today. No 
one has been punished, and the EPA is seeking to avoid any hit 
on its budget for judgments against it resulting from this 
disaster. It wants other parts of the Federal Government to pay 
any judgments.
    So, this, to me, Ms. McCarthy, is a double standard; 
because, had the private sector caused the environmental 
tragedy in Colorado, there would be serious fines and possible 
criminal penalties.
    This brings me to my first question. In light of the 
perceived double standard that the EPA operates under, where 
the private sector is not allowed to use its own science and 
come to its own conclusions unquestioned, would you support 
legislation by Congress that would require the EPA to disclose 
to the American people online whatever science it uses to form 
its judgments?
    Ms. McCarthy. Sir, I am not prepared to talk in the big 
picture about what we would support or not support. I am here 
to tell you that we have taken full responsibility for this 
issue. We are treating us the same way we would be treating the 
private sector. And you are absolutely right, we enforce our 
statutes; that is what brings the public health and 
environmental protections and benefits that people rely on in 
this country. And I believe they will continue to rely on our 
ability to deliver those.
    Mr. Lamborn. A private company would have to absorb a fine 
assessed by the EPA from its budget. You are seeking to have--
--
    Ms. McCarthy. Not in this consequence. This was actually a 
response action to try to mitigate a danger that was pointed 
out to us. The challenge for the private sector would be the 
same as us: make sure that, if an accident happened at that 
site, that they get people out and keep them safe, that they 
reduce the spill quickly, and they take account and 
accountability for all of the damage that it caused.
    Mr. Lamborn. So a private company----
    Ms. McCarthy. That is exactly what we are doing.
    Mr. Lamborn. A private company would not have been fined?
    Ms. McCarthy. Only if----
    Mr. Lamborn. If they were acting in good faith?
    Ms. McCarthy. Only if the actions they were taking were 
against an order or a settlement, or someone was found 
negligent or criminal in the activities.
    And those last two issues are what the Department of the 
Interior will help inform. If we were negligent, if we did not 
do what we should have done, if we did not do due diligence, 
then we will have to be held accountable for that, as well.
    Mr. Lamborn. In the meantime, let me ask you this about the 
contractor.
    Ms. McCarthy. Yes.
    Mr. Lamborn. Is the contractor being suspended from further 
work on mines until the results of the investigation come back?
    Ms. McCarthy. No, sir, because the contractor was working 
under the direct supervision of our on-site coordinator. It is 
my understanding that, at this point, we do not have any reason 
to believe that he was not doing the work that he was tasked to 
do.
    Mr. Lamborn. So it was the EPA director's fault for----
    Ms. McCarthy. I am not sure where fault lies. That is what 
the Department of the Interior is going to identify. The 
question is the key decision that was made--there was the 
understanding based on the site conditions--and this was the 
experts from us and Colorado--that there was low or no 
pressure. That was the key decision. It was not the fact that 
he did the work the way the task order indicated. It was the 
fact that a determination was made that proved to be incorrect.
    Mr. Lamborn. Thank you.
    The Chairman. Thank you. Mr. Hice.
    Dr. Hice. Thank you, Mr. Chairman, for having this hearing 
today. I would like to pick up where Mr. Lamborn was.
    You just said that if a private company did what they 
should have done, there would be no problem. What I would 
submit to you likewise, that if the EPA had done what they 
should have done, we would not have had this spill. So, there 
ought to be equal consequences for the EPA, just as there are 
to private citizens. I cannot believe for one minute that the 
EPA would not aggressively go after another group, another 
company, a private company who was involved in cleaning up a 
potential environmental hazard; particularly if they did not 
have the experience and expertise of doing so, and they created 
a problem such as the EPA created. You would go after them, and 
there would be heads rolling, so to speak.
    Yet, that is precisely what the EPA is now guilty of. To 
this point, nothing at all has happened. You said you are 
treating yourself, the EPA, the same as you do other companies. 
Quite frankly, that is just not the case.
    Have you read the summary report of the internal review of 
the blowout?
    Ms. McCarthy. Yes, I have, sir.
    Dr. Hice. OK. You may recall on page 2, the last sentence 
there. It says, ``The team conducted a limited review of 
Internet resources to determine if there are existing 
guidelines or procedures for investigating sites with similar 
characteristics as this site.''
    Obviously, the EPA does not have experience in cleaning up 
mines such as this. They had to refer to the Internet. The 
expertise, apparently, is restricted to Google. Is that 
correct?
    Ms. McCarthy. I will have to look at the exact sentence you 
are reading. But the on-scene coordinator has extensive mining 
engineering expertise, and we worked with the Colorado Division 
of Reclamation, Mining and Safety, who have considerable 
expertise as well, including----
    Dr. Hice. Well, according to your own----
    Ms. McCarthy [continuing]. Expertise in that area.
    Dr. Hice. According to the report, the summary review, EPA 
relied upon ``Internet resources'' to figure out what to do in 
this scenario, and that is according to what you have 
submitted.
    Let me ask you this. According to the Federal Tort Claims 
Act, are you familiar with the discretionary function 
exemption?
    Ms. McCarthy. No, sir.
    Dr. Hice. That is a legal loophole within the law that 
would allow the EPA to get out of having to pay for any 
damages. My question to you was whether or not the EPA plans to 
utilize that exemption? But, you are saying you are not 
familiar with it.
    Ms. McCarthy. I am not an expert in the claims process, I 
apologize. If we need to answer your questions in more detail--
--
    Dr. Hice. OK. Then, my question to you is--that is a legal 
loophole in the law; will you commit to us today that the EPA 
will not utilize that loophole, and that you will pay for 
damages?
    Ms. McCarthy. We will work with DOJ to compensate, as 
appropriate. I do not----
    Dr. Hice. Will you not utilize----
    Ms. McCarthy. I cannot concur that I----
    Dr. Hice. Will you not utilize a legal loophole to get out 
of it?
    Ms. McCarthy. I cannot say that I will do something against 
the law. I am sorry, sir, I cannot do that. But I will follow 
up----
    Dr. Hice. No, this is in the law. I just do not want the 
EPA utilizing a loophole to get out of what you are 
responsible----
    Ms. McCarthy. I am not going to try to get out of any of my 
responsibilities.
    Dr. Hice. OK. Are you familiar with Greensboro, Georgia, in 
my district, there was a similar experience about 6 months ago, 
where the EPA likewise had a contractor that made a mistake. 
They struck a water main; and lead, arsenic, mercury, and all 
sorts of things went into the Oconee River and Lake. Are you 
familiar with that?
    Ms. McCarthy. I do not recall it.
    Dr. Hice. It is another example of the EPA having a similar 
problem. And, Mr. Chairman, I would like unanimous consent for 
this Fox News report to be added to the record.
    The Chairman. Without objection.

    [The information follows:]

FOXNEWS.com

Before Colorado mine disaster, EPA project caused spill in Georgia

Published August 20, 2015/watchdog.org

Still reeling from a disaster it created at a Colorado gold mine, the 
EPA has so far avoided criticism for a similar toxic waste spill in 
Georgia.

In Greensboro, EPA-funded contractors grading a toxic 19th-century 
cotton mill site struck a water main, sending the deadly sediment into 
a nearby creek. Though that accident took place five months ago, the 
hazard continues as heavy storms--one hit the area Tuesday--wash more 
soil into the creek.

The sediment flows carry dangerous mercury, lead, arsenic and chromium 
downstream to the tourist destination of Lake Oconee, which then feeds 
into Oconee River--home to many federally and state protected species.

Lead in the soil is 20,000 times higher than federal levels established 
for drinking water, said microbiologist Dave Lewis, who was a top-level 
scientist during 31 years at the Environmental Protection Agency.

He became a whistleblower critical of EPA practices and now works for 
Focus for Health, a nonprofit that researches disease triggers.
``Clearly, the site is a major hazardous chemical waste dump, which 
contains many of the most dangerous chemical pollutants regulated by 
the EPA,'' Lewis wrote in a 2014 affidavit for a court case filed by 
local residents that failed to prevent the EPA project: creating a low-
income housing development.

URL: http://www.foxnews.com/politics/2015/08/20/before-colorado-mine-
disaster-epa-project-caused-spill-in-georgia/

                                 ______
                                 

    Dr. Hice. Thank you, sir. I would just conclude, because I 
know we are in a hurry here. You have stated that you are 
taking full responsibility for this spill. In light of the 
criminal charges, the prison sentences, and the incredible 
fines that others have experienced for much less--and many of 
those examples have been brought forth today, much smaller 
accidents--Ms. McCarthy, in the interest of fairness to the 
American people who have experienced the wrath of the EPA for 
much smaller scenarios and accidents than this, I think it is 
only appropriate that you would resign as a statement of 
fairness for what other Americans have experienced for much 
smaller incidents.
    Mr. Chairman, I thank you. With that, I yield back.
    The Chairman. Yields back. Mr. LaMalfa.
    Mr. LaMalfa. Thank you, Mr. Chairman. I appreciate you, Mr. 
Chairman and Chairman Chaffetz, for having this hearing and 
allowing Natural Resources to be part of the committee. Thank 
you, Ms. McCarthy, for making the trip today.
    Several things I am looking at--well, first of all, when I 
look at how people have to deal with their government and their 
regulations, is proportionality. We know what an accident is--
how that is defined. It is when something happens that is out 
of their control, that they did not intend to do, that they did 
not want to have happen, and probably wish they could have 
headed off somehow. But that said, accidents do happen; we 
forgive people for accidents.
    Yet, we see an unforgiveness attitude coming from your 
agency with people that have not done things intentionally. 
When we talk about proportion, for example--coming back to that 
West Virginia mine spill, where it was 7,500 gallons of water, 
that people faced criminal indictments immediately, and could 
end up in prison. The company is out of business.
    But in this case here, with 3 million gallons being dumped 
when other activities should have been taken ahead of time, 
that is 400 times the amount of pollutant that got out. You 
know? Basically, we are talking about one company the size of a 
small backyard dough boy pool versus 400 of those types of 
pools in this. The proportion for the criminal charges for them 
versus what has been brought upon either your contractor or the 
people in your organization, should we have a 400 multiplier 
for prison time being charged against some of your employees or 
your contractor?
    Ms. McCarthy. The West Virginia spill ended up actually 
contaminating drinking water supplies for many people. It 
caused significant concern, and it was done by a company that 
was not following the law in their requirements. That is why 
that was pursued.
    In this instance, I am not saying that the 3 million gallon 
spill did no damage. Clearly, you will hear that damage 
happened, whether or not it was physical or not. The difference 
here is that when there is an accident, you have to determine 
whether somebody was doing the things they should have been 
doing and an accident occurred that they could not have 
anticipated, or whether there is fault and blame. That is what 
we are trying to determine with the independent review, and we 
will follow wherever that goes.
    Mr. LaMalfa. In the case of your organization, once again, 
a question earlier was posed. If you have a project in 
anticipation of a possible blowout--which you admit to in your 
documents, that it was very, very possible of a blowout--that 
you should have been notifying Fish and Wildlife. Therefore, 
that was a violation of the law.
    So, should this committee, should this House, should 
somebody be coming down hard on your agency and your people for 
violating the law and not having that notification; but even 
more so, some of the other measures that could have been taken? 
You call this a pressure situation in that mine, so should have 
hydrostatic testing been made, which is, again, referred to in 
documents? There is acknowledgment in some of your documents 
that testing should have been done ahead of time, but it was 
seen as technically challenging, or maybe costly. Now, in the 
end game, this is much more costly, brings much more 
embarrassment upon your agency, and brings much damage to the 
tribes and many people downstream, as well as drinking water, 
like you mentioned a minute ago.
    So, how much should we come after you for not following the 
law and notifying Fish and Wildlife, but as well as not even 
following what your own documents show--that you should have 
had hydrostatic testing, as well as the possibility of putting 
a relief pipeline, drilling that in place, that would relieve 
the pressure? How hard should we come down on you for this?
    Ms. McCarthy. I do not believe that the Agency violated the 
Endangered Species Act, and we can continue to look at that and 
talk. The more important thing is--you are absolutely right--if 
we did something wrong, then you should come after us. And, 
frankly, I am going to take full accountability for that, as 
well.
    Mr. LaMalfa. Again, back to proportionality, my 
constituents in my rural district face a lot of issues from 
Federal agencies coming after them that--somebody trying to 
change their crop land from grazing or a wheat field to an 
orchard field, because they have to prepare the soil 
differently. They can have somebody on their case over their 
soil preparation with large, large fines. It, indeed, has 
happened.
    Does that seem fair, especially when the people involved 
have a period which they would make an application and they do 
not hear back from the Federal agency; under the law it says 
they can then proceed, and then they come back after that, say, 
90-day period? Does that seem fair, that they believe they are 
operating in the law, and then they come down upon them?
    Ms. McCarthy. Sir, I cannot speak to any particular 
instance that I am unaware of. But I----
    Mr. LaMalfa. Well, under the Waters of the United States, 
our folks are really, really taking a hit on it. So I thank you 
for your----
    The Chairman. Sorry.
    Ms. McCarthy. Thank you, sir.
    The Chairman. Time is out. Follow the law. Next one, Mr. 
Palmer.
    Mr. Palmer. Thank you, Mr. Chairman. Ms. McCarthy, thanks 
for coming again today.
    Five months ago, the EPA sent toxic sediment into a creek 
in Greensboro, Georgia. Initially, EPA denied having anything 
to do with the project, and later admitted that it funded the 
cleanup and the operation that triggered the spill.
    Did you request a Department of the Interior review for 
that spill?
    Ms. McCarthy. I am not directly aware of it, sir; so I will 
have to get back to you.
    Mr. Palmer. All right. The record indicates that you did 
not. It makes me wonder why, after an accident like that, that 
you did not stop all of these cleanup efforts, particularly 
with the Gold King Mine, after having a spill in Georgia just a 
few months ago.
    Let me ask you this. You have been asked several times if 
anyone at EPA is going to lose their job over this incident. 
Has anyone at Environmental Restoration LLC been fired or 
disciplined over this? And I think you may have answered that. 
Am I correct----
    Ms. McCarthy. Not that I am aware of.
    Mr. Palmer. Well, am I correct in that you responded 
earlier that you are continuing to use them as a contractor?
    Ms. McCarthy. That is correct.
    Mr. Palmer. Also, are you aware that it was reported that 
EPA collected about 15,000 tons of poisonous waste from two 
Leadville mines in 2005, and dumped them down the shaft of the 
New Mikado Mine without notifying the mine owner, who happens 
to be Mr. Hennis, who owns the Gold King Mine; and the EPA did 
not take responsibility for that, and did not assist or pay for 
the cleanup.
    Ms. McCarthy. I am not aware of that incident, sir.
    Mr. Palmer. I think you need to look into that, as well.
    One of the things that really concerns me about this--and I 
realize the EPA has a job to do, but I have brought this to 
your attention before about some of the heavy-handed tactics 
that EPA engages in.
    Chairman Bishop, earlier in his questions, talked about the 
fact that the EPA has clearly violated Federal law, that it 
does not matter that the EPA did not realize that they violated 
the law, or that the EPA did not intend to violate the law, or 
that the EPA was just trying to do its job when it violated the 
law. That does not matter, and I am saying it does not matter 
in the context of how you have treated other folks.
    I think Mr. Gosar brought up the case of Edward Hanousek. 
He was sentenced to 6 months in prison for discharging oil into 
a navigable stream. He was convicted, despite the fact that he 
was off duty and not present when the accident occurred.
    Lois Alt of West Virginia, she is a poultry farmer. The EPA 
spotted some feathers and droppings near her chicken houses. 
Now, having grown up on a farm, I am fairly familiar with that. 
I think most people who have been around chicken farms would 
expect to see that. But they told her that she had to get a 
National Pollution Discharge Elimination System permit, or she 
would be fined $37,500 per day. Ms. Alt, true to her native 
West Virginia spirit, is fighting it.
    Andy Johnson from Wyoming has been mentioned. Mr. Johnson 
built a stock pond for his horses and cattle on his 8-acre 
property--a stock pond that a former Army Corps of Engineers 
enforcement officer inspected and concluded that it provided 
environmental benefits, including approved wildlife habitat, 
and that the water flowing out of the pond is three times 
cleaner than the water flowing into it; yet Mr. Johnson has 
been fined $16 million. Now, this is just a small farmer.
    Then you have the situation with the Range Resources 
Corporation in Texas, a natural gas company, being forced to 
spend $4.2 million defending itself in 2011, after the EPA 
issued an emergency order. The EPA accused Range Resources of 
causing or contributing to the contamination of two water 
wells. Then, when it was quickly determined that they did not 
have anything to do with it, despite the incontrovertible 
evidence to this fact, EPA claimed that it was not required to 
prove it even alleged any connection between Range Resources 
and the contamination. You were going to continue on that path 
to force them to pay that, until you finally relented and gave 
that up.
    You also turned over the personal data of 80,000 farmers to 
environmental groups.
    I do not understand why you can come before this committee 
and sit there and say that you are sorry for what you have done 
in the context of how you have treated private companies. You 
really ought to be sorry.
    Mr. Chairman, I yield.
    The Chairman. Thank you. Mr. Westerman.
    Mr. Westerman. Thank you, Mr. Chairman. Despite efforts to 
try to minimize the significance of this spill, the facts 
cannot be ignored that 3 million gallons of acidic, heavy 
metal-laden water were released into the Animas River. This was 
not because of an accident; it was because of mistakes made by 
the EPA, mistakes caused by neglect because of a culture of 
arrogance, where the EPA assumes they can operate outside the 
rules and regulations that others must adhere to.
    Quite simply, the EPA did not have those responsible 
charged with the education and professional experience, 
licensure, and continuing education required to do this job 
properly to safeguard life, health, and property, and to 
promote general welfare.
    Administrator McCarthy, we cannot put this water back in 
the hole, but I hope we can hold everyone accountable who 
negligently let it out.
    Along with that, I hope you will make procedural changes, 
taking competence out of the equation, and prevent future 
spills. Under current procedures and practices, I have concern 
in your ability to safeguard the public's interest.
    Administrator McCarthy, do you believe that the activities 
conducted at the Gold King site would require engineering 
design work?
    Ms. McCarthy. I am sorry, sir, I do not know whether I am 
qualified to answer that question, but I will certainly 
respond----
    Mr. Westerman. Maybe I can help you out. Colorado defines 
the practice of engineering as the ``performance for others of 
any professional service or creative work requiring engineering 
education, training, and experience, and the application of 
special knowledge in the mathematical and engineering sciences 
to such professional services or creative work including 
consultation, investigation, evaluation, planning, design, and 
the observation of construction to evaluate compliance with 
plans and specifications in connection with the utilization of 
the forces, energies, and materials of nature, and the 
development, production, and functioning of engineering 
processes, apparatus, machines, equipment facilities, 
structures and buildings, works, or utilities, or any 
combination or aggregations thereof employed in or devoted to 
public or private enterprises or uses.''
    Again, I will ask you. Do you agree activities conducted at 
the Gold King site would require engineering design work?
    Ms. McCarthy. I think that I am well aware that there was a 
work plan that involved a significant amount of engineering 
expertise. What you asked me were the exact actions at the 
site. I am not prepared to answer that portion of the question.
    Mr. Westerman. So, you are saying you cannot----
    Ms. McCarthy. Clearly----
    Mr. Westerman. You do not have the expertise to determine 
whether professional services were required there; but you did 
say in your earlier testimony that the on-site coordinator had 
significant mine engineering experience. And you did say that 
engineering expertise----
    Ms. McCarthy. That is my understanding----
    Mr. Westerman [continuing]. Went into preparing this work 
plan.
    Ms. McCarthy. Yes, that is correct.
    Mr. Westerman. Colorado law also further goes on to say 
that it requires that ``only a professional engineer may 
practice engineering, and that all engineering documents, 
plats, and reports issued in connection with engineering work 
performed must bear the seal and signature of a Colorado-
licensed professional engineer who is in responsible charge of, 
and directly responsible for, the engineering work.''
    Did a professional engineer design or stamp drawings or the 
plan for the work being conducted at the Gold King site which 
resulted in the blowout?
    Ms. McCarthy. I am happy to follow up on that. I cannot 
answer that----
    Mr. Westerman. I would think that, if an engineer did that, 
if you contracted those services, or if you had someone on 
staff to do that, that you would have those documents with you, 
and say, ``We followed the procedures that were outlined by a 
competent professional in charge of this.'' So far, all I have 
heard is that you had a project coordinator overseeing work at 
this site. Who is this person?
    Ms. McCarthy. I do not have his individual name, sir.
    Mr. Westerman. Do you know what their credentials are?
    Ms. McCarthy. I do not have his bio in front of me, sir, 
but I do know that the work plan itself was not developed at 
the site. It was developed with the state of Colorado after 
significant public input from the Animas River Stakeholder----
    Mr. Westerman. Well, public input and professional 
expertise are not the same thing. This is a serious matter that 
you should have had a professional design person in charge of, 
to stamp these plans or drawings or whatever it was that you 
had----
    Ms. McCarthy. I am not suggesting we did not, but I am 
suggesting I cannot answer your question at this point, but I 
am happy to follow up.
    Mr. Westerman. In looking at data, you have 15,326 
employees in the EPA as of March 2015. In Region 8, you have 
642. Across the country, you only have 12 civil engineers on 
staff. You have two geologists and one civil engineer working 
in Region 8.
    Ms. McCarthy. Wow.
    Mr. Westerman. I think this is unacceptable, and I think 
you are at fault for not having the required design 
professional in charge of this work.
    The Chairman. See what happens when you have an engineer on 
the panel? Ms. Lujan Grisham, you snuck in right on time. You 
are recognized for 5 minutes.
    Ms. Lujan Grisham. Thank you, Mr. Chairman. It is nice to 
see you again.
    I realize this is a difficult hearing, Administrator 
McCarthy, but we all want the same thing: we do not want to 
have these kinds of issues and mistakes going forward
    Quite frankly, I personally appreciate EPA's attitude about 
taking full responsibility. But, for the 3 million gallons of 
toxic--and I am sure that everyone has repeated this over and 
over again--into the Animas River and surrounding area. I 
really want to focus my question on making sure that we are as 
holistic as possible about identifying just exactly what the 
harm is, how we identify and address that harm, and how we 
assess the long-term impacts.
    Specifically--and I hope that President Begaye from the 
Navajo Nation will forgive me for this, because, as he spoke in 
his testimony about the Navajo principle of Hozho--it is very 
important, I think, not to overlook the beauty, order, and 
harmony of these very beautiful, pristine areas. In the legal 
context, if we do not deal with actual damage and future 
damage, and make it completely whole, then it cannot be 
available for the kinds of economic and personal activities 
that we know are critical to this entire area and region. I 
know that that is going to be a complicated process, to place a 
monetary damage from this kind of spill that are more--
traditional damaged crops, suspended outdoor recreation and 
tourism. I am looking at making sure that we restore the area 
to its original aspect, and the potential that it had prior to 
the spill.
    Can you talk to me a little bit about how you are going to 
identify both the long-term impacts that are yet unknown, and 
about how you are going to encompass this Hozho, if you might, 
aspect that we are interested in getting full compensation for 
in this entire region for all the states that are affected?
    Ms. McCarthy. Well, there are two long-term issues that we 
need to address. I know time is constrained, so I will try to 
keep this limited.
    We have a long-term responsibility to deal with the 
sediment issue. That has been one of the major concerns of 
President Begaye and the Navajo, which we appreciate, and 
others, because we know that that river has not been of high 
water quality for some time. Sediment has been a concern. We 
have to monitor that closely. We now have a long-term concern 
about that that we share, and we are developing a plan to do 
that that we will get input from everybody on, so we can 
address that. So----
    Ms. Lujan Grisham. So you--oh, I am sorry.
    Ms. McCarthy. I am sorry. The second long-term issue is 
what happens in the Upper Animas. We are not close to resolving 
the challenges associated with the ongoing discharge, which, 
frankly, dwarfs the spill we have. We have to address that.
    In terms of looking at this more broadly than a technical 
challenge, one of the challenges that the Navajo and, frankly, 
the Southern Ute, and others have expressed to us is that we 
have a trust responsibility with the tribes, which makes this 
more important. We have----
    Ms. Lujan Grisham. Not only more important--I am going to 
reclaim my time, Administrator--but also there is a culture of 
mistrust.
    Ms. McCarthy. Yes.
    Ms. Lujan Grisham. Not just for all trust responsibilities, 
but a specific culture of mistrust between the EPA and our 
nations. Particularly in this case, I hope, again, I do not 
overstep my authority here, but particularly for the Navajo 
Nation.
    I am expecting in that plan, Administrator, that you 
identify very specifically monetary aspects and monetary 
damages related to the long-term impacts. While I completely 
respect that you are looking at the continuation of 
environmental problems--which is absolutely your job, and I 
want you to do that job as effectively as you can--I want 
everybody made whole. And I am not feeling as confident about 
that, particularly.
    In your plan--because I am running out of time--I am going 
to need you to address how individuals process their claims and 
what you are going to do to make that a non-painful process. 
The unemployment rate of the Navajo Nation is upwards of 42 
percent. People cannot wait and wade through a terrible, 
bureaucratic aspect to process, file, and wait for their 
claims. And to use all of our collective offices--I see my 
colleague here, Congressman Pearce--to try to do the appellate 
work that I am sure will be necessary to get fair review. You 
have just a few seconds to assure me that we are going to do 
that.
    Ms. McCarthy. We will do the best we can. Thank you.
    Ms. Lujan Grisham. Thank you.
    The Chairman. You can still go for 7 seconds, if you want. 
I am kidding.
    Mr. Newhouse.
    Mr. Newhouse. Thank you, Mr. Chairman. Thank you, 
Administrator, for being here.
    One of the risks of being a freshman is I am right down 
here in the line of fire with you. I just had one question, in 
light of the Chairman's wanting to get to the other people who 
have been so patiently waiting here.
    Certainly, this is an unfortunate incident, one that we 
must do all we can to prevent from happening again. We need to 
learn from this. But also, the word ``accountability'' has been 
thrown around a lot this morning. You have said as much 
yourself, that you will follow this wherever it goes, and I 
appreciate that.
    Could you tell me how do you define the ``accountability'' 
here? What would that look like in the end?
    Ms. McCarthy. Well, there will be accountability in two 
ways: whether or not we had administrative and management 
failures, or whether we had any criminal concerns that arise 
out of the independent review. Those are two related but 
separate issues.
    Mr. Newhouse. Well, I can say, having run an agency myself 
in a former life, that I believe the ability of the Agency, and 
the credibility of the Agency, its ability to perform its 
duties, is truly on the line here. It is as much at risk as 
anything else. So, I would hope that we can take you at your 
word that the accountability aspect of this will be followed to 
wherever it goes, and that we are satisfied that the people 
that are in charge are held accountable.
    Ms. McCarthy. Well, I know that we have both the Inspector 
General, who looks at these issues, and the Oversight 
Committee. I expect we will be able to walk through the 
accountability issues when all the facts are on the table.
    Mr. Newhouse. Could you tell me a little bit about the 
protocol when the spill happened? Could you talk about what the 
Agency's first actions were? What are the protocols for this 
kind of a spill?
    Ms. McCarthy. The sequence that we expect from the Agency, 
or anybody in this situation, is, first and foremost, to 
protect the folks that are on the site, to make sure that there 
is no potential for safety issues to arise.
    Then, the second issue is the challenge to minimize the 
spill as much as you can to get that under control.
    And the third is to take a look at the impacts downstream, 
so that you can address those and mitigate those, as well. 
Then, obviously, there is a longer-term challenge of making 
sure that there is appropriate compensation through the Claims 
Act. In the case of EPA, where we had partners working with us, 
states and tribes, to also reimburse them for their expenses.
    Mr. Newhouse. Can you say whether or not these protocols 
were all followed? And were there any, just as importantly, 
that were not followed as well as they should have been?
    Ms. McCarthy. I----
    Mr. Newhouse. Hindsight, I know, is 20/20.
    Ms. McCarthy. Yes. I am not aware that we did not follow 
the correct procedures. I am certainly aware that we could have 
done better on notification. I think we will have to learn from 
those lessons, and we have already started to do that. We will 
learn from whatever DOI says about what caused the incident, 
what were the precipitating factors, and what we need to do 
about it.
    Unfortunately, sometimes you learn from some of the worst 
things, and this is one of them.
    Mr. Newhouse. I would agree with that. Thank you, Mr. 
Chairman, I yield back my time.
    The Chairman. We now have three other Members who are not a 
part of our committees who are here to ask questions.
    Mr. Pearce, we will start with you.
    Mr. Pearce. Thank you, Mr. Chairman. Thanks, Administrator, 
for being here today.
    We had some difference of opinion on whether or not the EPA 
was pushing for these Form 95s to be signed. President Begaye's 
testimony says that, apparently, EPA was trying to obtain 
releases for members. Since we have a difference of opinion, 
would you declare here today that any of these forms filled out 
before today and signed maybe unknowingly by members of the 
Navajo Nation would simply be disallowed, and they would be 
allowed to resubmit that paperwork?
    Ms. McCarthy. Those can be changed at any point in time.
    Mr. Pearce. OK.
    Ms. McCarthy. I am unaware that they have been submitted--
--
    Mr. Pearce. All right.
    Ms. McCarthy [continuing]. But we have been working to 
explain the form----
    Mr. Pearce. OK, all right, sounds great.
    Ms. McCarthy [continuing]. And how to do that----
    Mr. Pearce. Also, in order to dilute down the spill, 1.3 
billion gallons of water was dumped that belongs to the Navajo 
Nation. Are you going to reimburse that?--1.3 billions of 
gallons of water into Mexico is a big deal.
    Ms. McCarthy. I do not know what you are referring to. I am 
sorry, sir.
    Mr. Pearce. OK. I would expect, then, for you to look into 
that----
    Ms. McCarthy. OK, sure.
    Mr. Pearce [continuing]. And get back with our office. That 
water was released in order to dilute----
    Ms. McCarthy. Oh, the water released at the dam.
    Mr. Pearce. Yes. So now you are familiar?
    Ms. McCarthy. Well, I did not know what you were referring 
to.
    Mr. Pearce. OK.
    Ms. McCarthy. I am aware that that happened.
    Mr. Pearce. Are you going to be reimbursing the tribe for 
that?
    Ms. McCarthy. I do not know whether that is something 
that----
    Mr. Pearce. You are going to follow up and find out----
    Ms. McCarthy. The Navajo has not raised that issue with me, 
so, I will find out what----
    Mr. Pearce. OK. It would be practical to understand that.
    Ms. McCarthy. OK.
    Mr. Pearce. Also, to Chairman Bishop's point earlier that 
we needed everybody on the same panel--evidently you made the 
assertion that EPA helped New Mexico shut off the intakes for 
public water systems?
    Ms. McCarthy. I indicated that the notifications----
    Mr. Pearce. No, I did not ask about the notification. I 
asked about the help.
    Ms. McCarthy. That is what I was talking about.
    Mr. Pearce. All right. Secretary Flynn's comment was that 
you are not involved at all in the decision, it was done 
entirely by New Mexico, and we could prosecute that decision--
--
    Ms. McCarthy. No, the state----
    Mr. Pearce [continuing]. If we had everybody on the same 
panel together.
    Ms. McCarthy [continuing]. Does that. No----
    Mr. Pearce. So, the whole idea of accountability.
    Ms. McCarthy. Yes.
    Mr. Pearce. Your comment was if anybody is negligent, or if 
a criminal activity--a different time you said that any 
administrative oversights will be dealt with.
    Ms. McCarthy. Yes, that is part of the----
    Mr. Pearce. About how long would you think that would be, 
before we would know the outcome of that? How long will that 
investigation take?
    Ms. McCarthy. Well, they are anticipating to be completed 
in October.
    Mr. Pearce. OK. So then, my point to the others who maybe 
distrust that you will actually follow through on that, does 
the name Robert Beale or John Beale mean anything to you?
    Ms. McCarthy. It very much does, sir.
    Mr. Pearce. OK. He is thrown in jail for 3 years for 
bilking the taxpayers out of about a million dollars, minimum. 
Has any money been received back from him? Did you, as an 
agency, go and claw back money that he had fraudulently filed 
for?
    Ms. McCarthy. We actually have, and we continue to look----
    Mr. Pearce. OK.
    Ms. McCarthy [continuing]. At that, and----
    Mr. Pearce. So, there were people in the Agency who had to 
sign leave, travel, salary, bonuses, all that sort of stuff. 
Right?
    Ms. McCarthy. I am aware of that, yes.
    Mr. Pearce. Has anybody been held accountable for that?
    Ms. McCarthy. The processes were in place. If there is 
additional that we need to do, I----
    Mr. Pearce. No, no. Are any of the supervisors that signed 
off for him coming to work, or him going someplace that he did 
not actually go, traveling first class--has anybody been held 
accountable for that?
    Ms. McCarthy. There was a process in place----
    Mr. Pearce. No. Has anyone been held accountable for that? 
Are any of the management people who signed those things, 
knowing that he was at work, or not knowing----
    Ms. McCarthy. Well, one of----
    Mr. Pearce. Again, going back to this situation, that 
oversight would be negligence, wouldn't it, if somebody signed 
a leave form or signed a performance bonus when he did not 
deserve it?
    Ms. McCarthy. I do not know what the exact term is, sir, 
but that is absolutely an administrative responsibility for us 
to look at that----
    Mr. Pearce. Yet no one has been held accountable to date. 
So, people on this committee have a distrust that your study, 
which is going to be complete, you said, in October, will 
actually result in anyone doing anything--having any 
consequence to them at all.
    Now, you were his direct supervisor for 4 years--2009 
through 2012. Three years, four, I don't know. Something.
    Ms. McCarthy. Something, yes, sir.
    Mr. Pearce. So, again, if people here have a little 
difficulty in believing that you are going to actually follow 
through on this issue, they look at that issue and say, ``The 
highest paid employee of the EPA simply gets to skate for 20 
years, not showing up for work, and no one is held accountable, 
no one.''
    Ms. McCarthy. Actually, I was the person who held John 
Beale accountable.
    Mr. Pearce. Yes----
    Ms. McCarthy. I was the one that referred this, and I 
really----
    Mr. Pearce. I understand that you were the one who 
discovered it, but you also signed off fraudulent payments to 
him that he did not deserve----
    Ms. McCarthy. No, I did not, sir.
    Mr. Pearce [continuing]. And nothing has happened to you or 
anyone else.
    Thank you, Mr. Chairman.
    The Chairman. Thank you. Mr. Tipton.
    Mr. Tipton. Thank you, Mr. Chairman.
    Ms. McCarthy, you had recently stated on August 13 that, 
``We are going to be fully accountable for this in a 
transparent way.''
    Ms. McCarthy. Yes, sir.
    Mr. Tipton. That was your quote. Just as a follow-up, we 
had sent a letter to you on August 15, signed by 29 other 
Members, listing out specific questions regarding the spill. 
When can we expect an answer? You have yet to respond.
    Ms. McCarthy. I will--I am sorry, when did you say you sent 
that?
    Mr. Tipton. August 15.
    Ms. McCarthy. OK. I will double-check, and we will get you 
a tentative date, and----
    Mr. Tipton. No, that will be great. Mr. Westerman, Mr. 
Pearce, you are citing you are going to get back to people. I 
think that is a lot of frustration of the committee work. We 
hear, ``We will get back to you,'' but you never do----
    Ms. McCarthy. Well, sir, I have not seen it, and I do not 
want to give you a date that I would then have to explain away, 
because----
    Mr. Tipton. Well, terrific. If you can get back to us on 
that, we would appreciate it.
    Ms. McCarthy. All right.
    Mr. Tipton. In regards to transparency, you said that the 
EPA was examining different sites that could suffer an EPA 
meltdown, as we saw at the Gold King Mine. You have identified 
10 different mines now, but that did not come forward until 
such time as there was an AP report. How is that feeding in 
with transparency?
    Ms. McCarthy. I am sorry, I do not exactly know the context 
in which you are referring, but----
    Mr. Tipton. Well, the context of the question is that you 
have identified 10 mines----
    Ms. McCarthy. That is correct.
    Mr. Tipton [continuing]. That have the potential to be able 
to have a spill.
    Ms. McCarthy. No. What we did was, when this happened, I 
issued a memo to put a hiatus on all mining operations--mining 
recovery or, what is the word I am looking for, cleanups--that 
we were involved in. As a result of that, those cleanups 
stopped, and we have identified 10 that look similar to this, 
where we have to make sure we do not----
    Mr. Tipton. OK. Are you revealing the locations of all 
these mines?
    Ms. McCarthy. Say that again.
    Mr. Tipton. Are you revealing the locations of all the 
mines?
    Ms. McCarthy. If folks want to have that, I think the 
states were revealed----
    Mr. Tipton. OK.
    Ms. McCarthy [continuing]. And they may have the----
    Mr. Tipton. We have----
    Ms. McCarthy [continuing]. Locations, as well.
    Mr. Tipton. In the AP report, one of the mines was the 
Standard Mine, near Crested Butte in Colorado, which is in my 
district. Is that information correct, that that is one of the 
suspect mines?
    Ms. McCarthy. I do not know, sir, but I can go back and 
take a look.
    Mr. Tipton. OK. We would appreciate having the follow-up on 
that.
    What about districts other than mine, for other Members on 
this committee? Do you feel that it is going to be important to 
be able to reach out and give that notification in advance of 
potential spill areas, just as we saw at the Gold King Mine, to 
let people know in these districts?
    Ms. McCarthy. Yes. The Gold King Mine was raised to us, 
rather than the other way around. We got involved, is my 
understanding, because there was identified to be a blowout 
problem. So, we will continue to work cooperatively, there were 
no secrets here; that work was being done in a very transparent 
and publicly-accessible way.
    Mr. Tipton. I would like to change gears just a little bit 
here. I would like to know how many mining engineers does the 
EPA employ?
    Ms. McCarthy. I cannot answer that right now, sir, but I--
--
    Mr. Tipton. Do you know if there are any?
    Ms. McCarthy. I----
    Mr. Tipton. You do not have to give me a specific number. 
Do you employ any?
    Ms. McCarthy. I know we have a mining team, a national 
mining team that works on these issues, and I know that we work 
on----
    Mr. Tipton. But the team----
    Ms. McCarthy [continuing]. Mining sites.
    Mr. Tipton. Do you have any engineers?
    Ms. McCarthy. I do not know, sir.
    Mr. Tipton. You do not know. Can you get back to us on 
that?
    Ms. McCarthy. Yes, sir.
    Mr. Tipton. OK. You have cited a number of times that you 
work with a lot of people with a lot of expertise in this area. 
I think a lot of the concern that we see is, just given some of 
the protocols that you put into place when we want to be able 
to juxtapose this to a private company that is meeting rigid 
standards, that your organization puts together those 
standards.
    When you, through the document dump that came out about 2 
weeks ago on a Friday, cited that there was a potential for a 
blowout at the Gold King Mine, why was there no effort to be 
able to determine how much water had actually backed up?
    Ms. McCarthy. Well, that----
    Mr. Tipton. If we are talking about having the expertise.
    Ms. McCarthy. Well, I would have to go back and identify 
what both Colorado and EPA were basing their judgments on, but 
it was a concern of the entire community, including the Animas 
River Stakeholder Group, that there was a----
    Mr. Tipton. It was a concern. I am just trying, really, to 
get to the point of prudence, in terms of your position on it. 
It is your job, you are the one that is heading this up.
    Ms. McCarthy. Well, I----
    Mr. Tipton. When we are looking through your documents, 
saying that there was a potential for a----
    Ms. McCarthy. Yes.
    Mr. Tipton [continuing]. Blowout at the Gold King Mine----
    Ms. McCarthy. That is why we were there.
    Mr. Tipton [continuing]. Would it have been prudent to have 
measured how much water is behind the wall that was built up?
    Ms. McCarthy. Well, that is one of the issues--did we take 
all the prudent steps we needed to? That is where the 
Department of the Interior is going to be able to help inform 
us.
    Mr. Tipton. Can you understand some of the frustration, the 
position that you put yourself in----
    Ms. McCarthy. Yes, yes.
    Mr. Tipton [continuing]. As being the enforcers, the 
experts in the field, and you are saying, ``This is a mystery. 
We are having now to look back and see what went wrong.''
    You know, actually, this is in my district.
    Ms. McCarthy. Yes, sir.
    Mr. Tipton. I have talked to engineers, miners that work in 
that area. They would not have proceeded the way that the EPA 
did. Thank you, Mr. Chairman.
    The Chairman. Thank you.
    Ms. McCarthy. Thank you, sir.
    The Chairman. Ms. McCarthy, let me save you some time in 
getting back with him. According to your Web site, you have 
zero mining engineers. Actually, Scott, our committee has more 
mining engineers than EPA does.
    Mr. Hardy.
    Mr. Hardy. Thank you, Mr. Chairman. Along that same line of 
questioning, I would like to know how many hydrological 
engineers you have on your team?
    Ms. McCarthy. I do not know that answer, sir.
    Mr. Hardy. How about how many geological engineers?
    Ms. McCarthy. I do not know that answer, either.
    Mr. Hardy. I guess the question that would go along with 
that, then, is how do we have the expertise in hiring a 
contractor to do this, or why does the EPA figure that they 
have that expertise, if you do not know? Isn't it your 
responsibility to know?
    Ms. McCarthy. Not on every site, sir. But it is my 
responsibility to manage the Agency appropriately.
    Mr. Hardy. Did you know that the EPA requires that mines, 
before they can be open, have an environmental, a NEPA process 
done? And, in order to do that, they have to have geological 
engineers, hydrological engineers, and mining engineers to go 
along with that. Is that true?
    Ms. McCarthy. I am not that familiar with it, sir. But 
those are the issues that the Department of the Interior----
    Mr. Hardy. You are the head of the department? Don't you 
feel that is your responsibility, to know what you need in your 
department?
    Ms. McCarthy. Again, it is my responsibility to manage the 
Agency effectively.
    Mr. Hardy. So, before you hire somebody--what is the hiring 
process of a contractor before they begin work on such a 
project as this?
    Ms. McCarthy. I cannot say that I have ever been directly 
involved in that hiring process; but I am aware that we set 
criteria for the credibility of the contractors, we look for 
those with experience and background that is appropriate, and 
we do that through an RFP process.
    Mr. Hardy. How would we know what that experience and 
process is, if we potentially do not have the experience on our 
own staff, the EPA's own staff, to be able to hire that type of 
a contractor, to understand what you need in that process?
    Ms. McCarthy. Well, I am not assuming that we do not have 
expertise to understand what is necessary for----
    Mr. Hardy. I would just like an answer to that question.
    Through this process, when a mine is open and it has gone 
on--at least in the state of Nevada--for 60, 70, 80 years, you 
have to provide documentation, the environmental process, the 
NEPA process. It was called something in those days, but those 
processes are there.
    What happens to those records that are provided by those 
mine folks? What happens to that information that they have to 
provide the EPA or any other entity that is with the Federal 
Government?
    Ms. McCarthy. Any information that is provided with the 
Federal Government has to be properly retained, in accordance 
with the law.
    Mr. Hardy. Do you believe that would be pertinent to the 
investigation of this mine, and how to handle the situation, 
before we just hire a contractor to go do something?
    Ms. McCarthy. Whatever appropriate steps we should take 
should be documented.
    Mr. Hardy. I think those questions should all be asked 
before you start that process. I believe there has been a real 
violation here, a real problem. I see it happening within EPA; 
they are more worried about the environmental side of this 
situation than understanding the responsibility you have before 
these become contractors themselves.
    So with that, I yield back. Thank you.
    The Chairman. Thank you, I appreciate that. If Mr. Lujan 
were to come in here at some point--we have another panel--we 
will make sure that he has a chance of asking some questions.
    Ms. McCarthy, appreciate you being here. This is now 3 
hours into this hearing. Once again I will state, and I do not 
want to sound like a teacher berating a student; but had you 
been willing to share the panel with the other four witnesses 
that were here, it would have been an enlightening opportunity 
and discussion. Those other witnesses who had some expert 
testimony could have added some expertise and some answers to 
the questions that had been here. So, I am very sorry that you 
were not able to do that.
    At the beginning, I said you might want to apologize to 
those for not being willing to sit on the same panel with them. 
I will give you that same opportunity. But, if not, this panel 
is expended, and we will invite the other four witnesses to 
come before us and take a position at the table.
    Ms. McCarthy. Thank you, Chairman.
    Mr. Grijalva. Mr. Chairman, if I may, a point of privilege. 
I will have to be leaving. I have questions for the additional 
witnesses that we will submit to the committee in writing. It 
is a conflict I cannot resolve. My apologies to the witnesses 
who are coming up. With that, thank you.
    The Chairman. I totally understand, and we will submit your 
questions to these witnesses in writing.
    We will take a brief pause here as we change panels. The 
faster we can make that exchange, the better it would be.
    [Pause.]
    The Chairman. While we are coming down let me introduce 
very quickly Mr. Russell Begaye, who is the President of the 
Navajo Nation; Mr. Mike Olguin--I hope I pronounced that 
close--Treasurer of the Southern Ute Indian Tribe; Dr. Larry 
Wolk, who is Executive Director of the Colorado Department of 
Public Education and Environment; and Mr. Ryan Flynn, who is 
the Secretary of the Environment for the state of New Mexico. 
Appreciate the four of you being here.
    Since you do not want to--don't sit down yet. I am trying 
to save you some extra space here. Pursuant to the rules of the 
Oversight and Government Reform Committee--and only that 
committee--all witnesses will be sworn in before they testify. 
Would you please raise your right hands?
    Do you solemnly swear or affirm that the testimony you are 
about to give will be the truth, the whole truth, and nothing 
but the truth?
    Let the record reflect that all witnesses answered in the 
affirmative. Thank you, you may be seated.
    Once again, anything that you have submitted in writing is 
part of the record, and will be there. We will ask you each to 
make a quick statement, if you could, limited to 5 minutes. As 
you noticed, we will try and be kind of arbitrary with the 
gavel coming down; but we do appreciate you being here as part 
of this discussion.
    We will start with President Begaye. You have 5 minutes to 
give an oral testimony to the committee.

 STATEMENT OF RUSSELL BEGAYE, PRESIDENT, NAVAJO NATION, WINDOW 
                         ROCK, ARIZONA

    Mr. Begaye. Good afternoon, Chairman Chaffetz and Chairman 
Bishop. Good to see you all, always. Thank you for your 
support, and also Ranking Members of the committees. My name is 
Russell Begaye [speaking native language], and I am the 
President of the Navajo Nation.
    I was born and raised along the San Juan River in Shiprock. 
Years ago, when I was a little boy, we saw hundreds of fish, 
dead fish, floating down the river. As boys, we would jump in 
the river, catching the dying fish. I had been asking for years 
why those fish were dead. I did not get an answer until August 
13, when Administrator McCarthy came to visit our nation: 1.5 
million gallons of radium 226 spilled from the uranium mill 
site located by the bridge in my hometown, Shiprock. We not 
only swam in that radioactive water, but my brothers ate the 
contaminated fish.
    I am asking members of these two committees to not allow 
history to repeat itself. Hold the EPA accountable for the 
toxic spill that occurred on August 5, about a month-and-a-half 
ago. Do not let them get away with their negligence. Our people 
are suffering. Much of the organic crops have been lost. Our 
livestock are penned up. Our farmers and ranchers are exhausted 
from hauling water. Our children are afraid of the river.
    We have been told by the EPA that cleanup will take 
decades. This is what we will have to live with for years to 
come.
    Today, we come to ask for help. The White House is silent. 
FEMA, DOI, and other Federal agencies are being told to not use 
their own resources to help us by the U.S. EPA. The U.S. EPA 
has made promises, but we have not seen any of these promises 
fulfilled. The promises were made empty. They are like the 
thunder we hear over our land, but with no rain.
    What our people need, first and foremost, is compensation 
now. The farmers and ranchers cannot wait months before they 
are compensated for their damages. I know this year's bills 
will not be paid by these families, clothing for children will 
not be bought, and food will be scarce. Have the EPA set up an 
emergency compensation fund, and provide ongoing repayment of 
losses as they are submitted. Do not be a party to this 
injustice by having our farmers waive future claims after they 
get their first compensation checks.
    Secondly, we need an alternative water source for drinking, 
for our livestock, and for irrigating our farms. We are asking 
that wells be drilled, a reservoir built, and water be piped 
from the Navajo Dam. We want the EPA to build us a laboratory 
on the Navajo Nation, so we ourselves can continuously test our 
water, soil, plants, and livestock. We are asking this 
committee to tell President Obama to declare the San Juan a 
disaster area. Only then will other Federal agencies besides 
EPA provide services we need. This will allow FEMA, USDA, DOI, 
and other Federal agencies to provide resources we need now.
    We are asking this committee to hold a follow-up hearing in 
6 months, because we do not want this to become old news a week 
from now. The Navajo Nation will not let any and all negligent 
parties get away with this disaster. We will stand our ground 
until our river and river beds are safe once again for our 
children to play in, and for our people to use as a drinking 
source. The Navajo Nation will no longer stand back when these 
types of atrocities are done to our people, our land, and our 
water--for water is life.
    I just want to thank you for your time and attention, and 
we will look to your leadership to right this injustice. 
[Speaking native language.] Thank you.

    [The prepared statement of Mr. Begaye follows:]
     Prepared Statement of Russell Begaye, President, Navajo Nation
                            i. introduction
    Ya'at'eeh (hello) Chairman Bishop, Chairman Chaffetz, and members 
of the committees, my name is Russell Begaye. I am the President of the 
Navajo Nation. I was raised on a farm along the San Juan River in 
Shiprock, New Mexico, one of the communities directly impacted by the 
subject of this hearing. Thank you for this opportunity to testify 
before your committee on a matter that is of utmost importance to the 
Navajo Nation.
    As you know, on Wednesday August 5, 2015, the United States 
Environmental Protection Agency (USEPA), and other parties, caused a 
massive release of toxic contaminants from the Gold King Mine into 
Cement Creek. The toxic sludge--which included harmful contaminants 
such as lead and arsenic--flowed south from the Cement Creek into the 
Animas River, then into the San Juan River (River), a major water 
source for the Navajo Nation. The San Juan River flows through 215 
miles of some of the richest farmland in the Nation's territory, and 
provides much of the Nation's northern border. The impact to the Navajo 
Nation from this drastic release is compounded by the fact that much of 
this portion of the River is slower moving than upstream.

    Today, in the brief time I have, I would like to cover only a few 
critical areas of concern for the Navajo people. The critical areas of 
concern are as follows:

     The USEPA's, among others', mishandling of the spill and 
            the emergency response; USEPA's lack of timely notice, 
            transparency, and consistency; and the resulting culture of 
            distrust;

     History of contamination of the San Juan River and the 
            need for cleanup;

     Our preliminary findings on the short-term and long-term 
            impacts of the spill on the Navajo people and environment, 
            including economic, health, cultural, and spiritual 
            impacts.

    To address the serious impacts of this spill and the continued 
threat to the Navajo people from future contamination, we request the 
following:

     Resources from USEPA, FEMA and BIA to address the 
            immediate emergency;

     Assurances that USEPA will fairly and timely compensate 
            the affected farmers and livestock owners for their 
            damages, both in the near term and long term;

     Resources to conduct our own water, sediment, and soil 
            monitoring, and recognized authority for the Navajo Nation 
            EPA to do the necessary work;

     That the USEPA address all the contamination that is 
            flowing into the River;

     Resources to address near- and intermediate-term 
            environmental and health impacts;

     Resources to study and address the long-term environmental 
            and health impacts of the spill, and to restore the River 
            to a safe and healthy state; and

     A fair and independent assessment of the role USEPA, and 
            others, played in the events leading up to the Gold King 
            Mine spill, and the establishment of a different lead 
            agency.

    It is important to realize that in addition to the many known and 
yet unknown physical, chemical, biological, and economic effects of 
this spill, this spill has taken a cultural and spiritual toll on our 
society, disrupting our hozho. Hozho encompasses beauty, order, and 
harmony, and expresses the idea of striving to maintain balance in the 
Navajo universe. The trauma from this spill will be felt for years to 
come, and we need immediate and sustained help to restore the balance 
for our people.
 ii. the usepa's mishandling of the spill and creation of a culture of 
                                distrust

    The NNEPA works in close partnership with USEPA to facilitate the 
Nation's 12 environmental programs, which are largely, if not 
completely, funded by the USEPA. A good and close working relationship 
with USEPA has always been critical to the success of the NNEPA. 
However, recent events relating to this spill have led to a complete 
shift in that relationship as USEPA has sought to quiet our legitimate 
concerns, and has made repeated missteps in its response efforts. We 
have serious concerns about the strong conflict of interest USEPA has 
with respect to this investigation and the emergency response 
necessary. No other environmental bad actor would be given leeway to 
investigate itself and determine to what extent it will be held 
accountable. We are encouraged that USEPA's Office of Inspector General 
will be reviewing this incident, but we believe another agency should 
take the lead on the on-ground response, and an independent body should 
conduct the investigation.
    To begin with, the USEPA inexplicably delayed notification of the 
spill to the Navajo Nation. The spill occurred the morning of August 5, 
2015, but the Nation was not informed of the release until August 6, a 
full day later, and not even by the USEPA but by the state of New 
Mexico. It took the USEPA almost 2 full days to notify us. We view this 
as a violation of the government-to-government relationship between the 
Federal Government and the Navajo Nation.
    The USEPA also demonstrated a complete lack of transparency. Our 
initial warning from USEPA was of an ``acid mine drainage spill in the 
Animas River north of Durango'' of ``[a]pproximately 1 [million] 
gallons.'' USEPA's initial focus appeared to be on pH levels. This 
served to downplay the magnitude of risk to human and animal health, 
and later reports by USEPA of released contaminants were incomplete. 
The media was receiving faster and fuller information from USEPA than 
the Navajo Nation. For example, the New York Times reported the spill 
hours before USEPA provided the Nation with notice of the spill. And 
media sources reported that USEPA confirmed the presence of arsenic on 
Friday, August 7, whereas USEPA still had not reported the presence of 
arsenic to the Nation even by Sunday, August 9.
    USEPA on Friday, August 7 informed the Nation that ``the water in 
Cement Creek and the Animas River near Silverton is clearing,'' but the 
Vice-President and I nonetheless made plans to travel to the Gold King 
Mine Sunday to assess the situation for ourselves.\1\ We requested a 
tour from USEPA, but faced immediate resistance. USEPA staff indicated 
they would only take us to the confluence of Cement Creek with the 
Animas River in Silverton, Colorado, but the water at the confluence 
remained bright orange. It did not appear to be ``clearing.'' We thus 
urged USEPA to take us to the point of release. They again refused, 
this time compromising by offering to take us to the treatment pools 
below the mine adit. We finally convinced them to take us within a 
half-mile of the point of release. We walked the rest of the way to the 
point of release. There we saw a completely unblocked mine adit with an 
estimated 550 gallon per minute flow of bright, opaque orange liquid 
pouring forth. We have since learned that prior to the blocking of the 
nearby Sunnyside Mine and the Red and Bonita Mine, Gold King Mine was 
releasing water at only 7 gallons per minute.\2\ We took video footage 
and photos at the point of release and shared these with the public. 
This appeared to be the first time USEPA Region 9 staff visited the 
point of release.
---------------------------------------------------------------------------
    \1\ Email from Harry Allen, Chief, Emergency Response Section, 
USEPA Region 9, to Russell Begaye, President, Navajo et al. (Aug. 7, 
2015, 11:58 PT) (on file with NNDOJ).
    \2\ http://fox6now.com/2015/08/13/gold-king-mine-owner-i-foresaw-
disaster-before-epa-spill-into-animas-river-in-colorado/.
---------------------------------------------------------------------------
    While USEPA was slow in notifying the Nation of the initial spill 
and its associated risks, it was quick in dispatching staff to Navajo 
communities to hand out Standard Form 95 and encouraging members of the 
Navajo Nation to fill out forms to expedite settlement of their claims 
under the Federal Tort Claims Act and apparently to obtain releases 
from members of the Navajo Nation. But this was only after I announced 
that the Navajo Nation would be suing the USEPA and other liable 
parties for the spill. The Navajo Nation Attorney General reviewed the 
form and identified plain and clear language on the form asserting that 
individuals submitting the forms would be filing the forms in pursuit 
of ``FULL SATISFACTION AND FINAL SETTLEMENT'' of their claims for 
damages and injuries that yet remain unknown.
    This presented our people with a difficult choice. The economics of 
farming makes the cashing out of harvests time-critical. Our farming 
families were expecting to sell their harvests along a predictable 
timeline that was disrupted by the closing of the San Juan River to 
irrigation use. They relied on the predictability of this timeline to 
defer bills and expenses until harvest time. Now that time is passing, 
and many of them need their anticipated harvest returns immediately to 
catch up on bills and to buy school clothes, among other things. Yet if 
they fill out Standard Form 95 and receive a settlement check, they may 
not be able to defer cashing that check while they wait for additional 
damages or injuries to accrue. I, along with the Vice-President and 
Attorney General, have thus asked USEPA for an interim claims process 
that will allow for ongoing claims filings, and our Attorney General 
has asked for a U.S. Attorney General opinion confirming that the 
filing of Standard Form 95 and the settling of a claim filed under that 
form or process does not in fact fully satisfy and settle the claim. 
None of this has happened while the Navajo people continue to suffer. 
Despite our requests, the USEPA has yet to confirm to us that it will 
fully and fairly address all damages and injuries to members of the 
Navajo Nation who have been impacted by the spill.
    These instances--but a few among many--have led to distrust by the 
Navajo Nation toward USEPA, both among our farmers and our leadership. 
The NNEPA, in contrast, continues to have the trust of our farmers and 
our leadership. Despite the NNEPA's limited resources, we turn to the 
NNEPA for honest data assessments and technical answers.
 iii. history of contamination of the san juan river and the need for 
                                cleanup

    This incident is one of many where responsible parties have 
contaminated Navajo land and water. I was born and raised in Shiprock, 
and as a child one summer, I once saw hundreds of dead fish floating 
down the San Juan River. We knew something was not right with all these 
dead fish in the River. But the next day we were back in the water, 
playing in it. There was no one to tell us to stay out of the water--
that it was dangerous. We always wondered why all the fish died in the 
River, and it was not until USEPA Administrator Gina McCarthy visited 
Shiprock on August 13, that I learned the story of why this occurred. 
There is a 1.5 million ton uranium tailings pile above a floodplain 
feeding into the San Juan River in the middle of Shiprock. That summer, 
a dam holding a pool of tailing-contaminant filled water burst into the 
River. But no one told us what had happened. We cannot tolerate this 
contamination of our sacred lands.
    Yet the recent spill threatens to recur, either from unsettling of 
contaminated sediment in our River waters, or from ongoing contaminated 
releases from upstream mines. USEPA stated early on that we will be 
dealing with the effects of USEPA's Gold King Mine chemical spill ``for 
decades.'' Gold King Mine is just one of over 300 abandoned hardrock 
mines in the heavily contaminated 140-mile-area known as the Upper 
Animas Mining District (District).\3\ The District includes private, 
Federal, and state lands, and the town of Silverton.\4\ Gold King Mine 
was twice considered for inclusion on the National Priorities List 
(NPL), both as part of the District, and as a narrower carve-out from 
the District, and the recent spill was preceded by two spills in the 
1970s. We sent a letter to Administrator McCarthy on Monday, September 
7, requesting that this District be made a Superfund site so that USEPA 
will make the cleanup and containment of the site a priority, and 
thereby protect us downstream communities.
---------------------------------------------------------------------------
    \3\ http://www2.epa.gov/region8/upper-animas-mining-district.
    \4\ http://www2.epa.gov/region8/upper-animas-mining-district.
---------------------------------------------------------------------------
    The Mine's first Superfund site assessment was conducted in the 
1990s, and the assessment concluded, ``that water quality standards 
were not achieved'' in the District.\5\ The assessment also identified 
``severe impacts [of the District] to aquatic life in the Upper Animas 
and its tributaries.'' \6\ Despite the serious harm being caused by the 
District, USEPA postponed listing the District on the NPL in order to 
allow a ``community-based collaborative effort'' to clean up and 
mitigate harm from the District ``as long as progress was being made to 
improve the water quality of the Animas River.'' \7\
---------------------------------------------------------------------------
    \5\ http://www2.epa.gov/sites/production/files/2015-08/documents/
goldkingminewatershedfact sheetbackground.pdf at 2.
    \6\ http://www2.epa.gov/sites/production/files/2015-08/documents/
goldkingminewatershedfact sheetbackground.pdf at 2.
    \7\ Id.
---------------------------------------------------------------------------
    Yet in 2005, the ``water quality ha[d] declined significantly'' in 
the area, and so in 2008, USEPA performed another NPL assessment, this 
time on the Upper Cement Creek alone.\8\ The study again confirmed, 
``that the area would qualify for inclusion'' on the NPL.\9\ Despite 
the additional confirmation that the Mine area should be listed on the 
NPL, ``EPA postponed efforts to include the area on the National 
Priorities List,'' again ``after receiving additional community 
input.'' \10\ USEPA's repeated denial of the facts with respect to the 
level of harm posed by the Gold King Mine and its surrounding mines has 
placed downstream jurisdictions such as the Nation at undue risk. This 
further contributes to a lack of trust in USEPA's ability to protect 
the health and well-being of Navajo people.
---------------------------------------------------------------------------
    \8\ Id.
    \9\ Id.
    \10\ Id.
---------------------------------------------------------------------------
    The threat of a spill from the District remains under the existing 
management scheme. The chemicals found in the District pose significant 
human health risk as they contain known carcinogens and elements, like 
lead and arsenic, that can affect major organ systems such as 
cardiovascular, respiratory, gastrointestinal and reproductive systems. 
The risks to the Navajo people are very real. Neither my people nor the 
other communities living near the rivers can tolerate a recurrence of 
the unprecedented damage caused by the Gold King Mine spill.
    Based on our extrapolation of known data, over 20 million gallons 
of aggregate contaminated flow has spilled from the Mine since August 
5. If the USEPA does not address these sites through designation as a 
Superfund site, contaminants will continue to flow freely into the 
Nation's waters, and the concentration of contaminants in our waters 
will increase, extending the duration of exposure for our people, which 
is already significant now, even further into the future. Metals poison 
people slowly, and sediments eventually make their way downstream. We 
are thus gravely concerned that the metals coming from Gold King Mine 
and the District are making their way down to us, and will settle in 
our slow waters. We are also concerned that efforts to flush 
contaminants out of the Farmington area flushed contaminated sediments 
into our territory, and that those contaminants will remain here for a 
long time. We do not want our people to be poisoned, so we urge you to 
do what you can to help us secure NPL listing for the District.
                    iv. short- and long-term impacts

    The impacts of this spill, as well as the ongoing contamination 
from mines in the area, are devastating and myriad. The reliance of our 
people on the San Juan River and the significance of the River to our 
people cannot be overstated. The Navajo Nation as a whole is a largely 
agricultural society, and our people have traditionally farmed and 
ranched since pre-contact. The San Juan River Basin is a bastion for 
ancient Navajo seed strains that our people have carefully refined over 
centuries to thrive in our arid region. Farming and ranching are the 
backbone of our culture and economy, and are both heavily dependent on 
the San Juan River. Indeed, in our arid region with little water 
distribution infrastructure in place, our farmers rely heavily on the 
San Juan River and ditch irrigation practices to keep their fields 
hydrated and their crops growing. I want to lay out for the committee 
some of the impacts of the contamination on the Navajo Nation. But I 
want to stress that, because of the historic and long-term nature of 
the contamination caused by the spill and the lack of full 
transparency, all of the economic, health, cultural, and other impacts 
to the Navajo people are not yet known.

    First, our farmers and ranchers and our traditional people felt the 
most immediate impact from the spill. You can imagine the significant 
economic and emotional toll on our farming families, who mostly live on 
their farmlands and consume their crops as a matter of subsistence. 
These families have lost a significant portion of a full growing 
season's worth of work. Now these families have to look at their dead 
crops each day, and are constantly reminded of the loss.

    As I visited farmers and ranchers, I saw a lot of farms where corn 
had not fully matured due to lack of water. As a result, the corn crops 
had only the stalk but no corn. The corn pollen that is so critical to 
everyday Navajo spiritual life did not develop properly for many of 
these crops. A lot of Navajo melons only grew to a fifth of their size. 
One family was forced to abandon all but a single acre of their 32-acre 
field, opting to save plants with cultural significance.

    Second, the spill has already severely impacted our economy and may 
continue to do so for years to come. The Navajo Nation already faces a 
daunting unemployment rate of 42 percent. Yet along the San Juan River, 
many of our people are able to make a life for themselves and support 
their families through farming and ranching. Many of our farmers create 
additional economic value for themselves by carefully growing 
profitable organic crops, or raising grass-fed and organic beef or 
mutton product. Now their livelihoods have been significantly disrupted 
by the spill. Growing cycles and field rotations have been disrupted, 
and farmers who are used to producing their own farm goods will now 
need to buy fruits and vegetables for themselves, and hay and alfalfa 
for their livestock, to replace what was lost. Our farmers will also 
lose income from the expected sales that did not or will not occur. 
Even farmers who have been able to salvage their farm goods now face a 
stigma developing with respect to fruits and vegetables grown along the 
San Juan River. This triggers a cycle of economic losses for the 
community.

    Third, the long-term health effects of the spill are ominous and 
not fully understood. Heavy metals like lead, arsenic and others that 
were discharged during the spill are known to be dangerous to humans, 
animals, and plants. These metals persist in the environment and are 
particularly harmful to fetuses and children. To provide a sense of the 
magnitude of exposure to these harmful metals just from the spill, one 
report of EPA data indicated that lead was found near the Cement Creek/
Animas River confluence ``at more than 200 times higher than the acute 
exposure limit for aquatic life, and 3,580 times higher than Federal 
standards for human drinking water.'' And arsenic was found ``more than 
24 times the exposure limit for fish and 823 times the level for human 
ingestion.'' \11\ Human consumption of farm products and livestock 
raised on contaminated water is therefore of grave concern. We are 
especially concerned about sheep because sheep liver and kidney are 
cultural delicacies, and are organs that are most likely to concentrate 
contaminants. In addition, long-term effects on wildlife that live in 
or rely on the River for water must be understood because we hunt and 
fish these animals to put food on our tables, and as part of our 
traditional cultural practices. Although USEPA has stated that surface 
water returned to its previous condition, many of the contaminants have 
merely settled to the bed of the River, and will be remobilized later 
during storm events, for example.
---------------------------------------------------------------------------
    \11\ http://m.startribune.com/nation/321518301.html.

    Fourth are the cultural and spiritual losses that we have 
sustained. Indeed, the Navajo Nation's impacts are felt most pointedly 
in the disruption of our cultural principle of hozho, which encompasses 
beauty, order, and harmony, and expresses the idea of striving to 
maintain balance in the Navajo universe. We connect to our land, our 
water, and each other through ceremonies and gatherings. We grow four 
types of corn, each used for a specific purpose in our ceremonies, and 
those seeds are protected by the strong culture of farming that has 
persisted in the San Juan River Basin. Navajo corn husks are mixed with 
tobacco to create ceremonial smoke, and our corn pollen is used as an 
essential element in all Navajo ceremonies. One of our corn seed 
strains is utilized in our critical kinaalda ceremonies (the coming of 
age ceremonies for our women). We also grow an array of heirloom fruits 
and vegetables that our people eagerly anticipate selling and 
purchasing during our popular fair season each fall. Those fruits and 
vegetables are shared over family tables, and are a part of the 
cultural glue that keeps our families and way of life intact. Families 
travel for hours across the Nation to the San Juan River Basin to 
access these ingredients for our ceremonies and celebrations. But the 
spill destroyed many of these crops so critical to our prayers, 
---------------------------------------------------------------------------
ceremonies, and our way of life.

    Fifth, the impairment of the River and the adverse impacts to our 
farmers and ranchers, and our community as a whole, will mark a moment 
of community trauma that will be endured for years to come. This new 
trauma will compound our already significant historical trauma, and 
raises new and troubling public health concerns. Already three suicides 
have occurred in the course of the last 2 weeks in affected communities 
along the River. Our Department of Health is researching the connection 
of the suicides to the spill, and we are concerned that these might be 
the first of a larger cluster. This tragedy affects all of our Nation 
because so many of us have relatives in Northern Navajo. Compounding 
this trauma, are the repeated response failures and withdrawals of aid 
(and blockage of aid) by USEPA, which have sent a strong message to our 
people that Navajo lives don't matter, that our health and well-being 
don't matter, and that our way of life doesn't matter. We will be 
dealing with the effects of this spill for decades and rebuilding the 
shattered sense of self so many of our people are experiencing as a 
result of this disaster.
                     v. significant resource needs

    In light of the devastating impacts from this spill, both known and 
yet unknown, we need to act quickly and thoughtfully to protect our 
Navajo citizens, our natural resources, the Navajo way of life, and 
most importantly our future generations. We need assistance from the 
responsible parties to address the short- and long-term impacts, to 
make us whole, and to return the beauty and hozho to our River and our 
people. In addition to oversight and national attention, Congress can 
provide forward-thinking legislative solutions to some of these issues. 
We therefore ask for the following:

  1.  We continue to need resources from USEPA, FEMA and BIA to address 
            the ongoing need. We still need continued delivery of water 
            for both livestock and farming, as well as the delivery of 
            hay to impacted ranchers. Farmers and livestock owners are 
            essentially fed water from two point sources along the San 
            Juan River. Although we have allowed the waterways to be 
            opened for irrigation only, the farmers who are fed water 
            from one point source have unanimously voted not to use the 
            San Juan River water because they lost all faith in the 
            USEPA's data. These farmers still need water for both their 
            crops and livestock and hay for their penned livestock. The 
            USEPA's actions in this matter have spread fear, and our 
            farmers and ranchers should not be penalized for their lack 
            of trust in the USEPA.

      On the other point source, the water was reopened for irrigation 
            purposes only. Based on the data samples our Navajo Nation 
            Environmental Protection Agency has seen, the contaminant 
            levels were still above Navajo standards and therefore the 
            water is not safe for consumption by livestock. As such, 
            livestock owners in the area need to pen up their animals 
            in order to prevent them from drinking the River water. 
            They will still need water delivery and hay for their 
            penned livestock.

      Even in light of the above, the USEPA has essentially withdrawn 
            assistance. The Bureau of Indian Affairs has been helpful, 
            but they had to pull out because they ran out of funds. 
            FEMA has denied assistance to Navajo, deferring to USEPA as 
            the lead response agency. As it currently stands, there are 
            no Federal services being provided to farmers and ranchers 
            in the area. We as a Navajo Nation government, and our 
            farmers and livestock owners, are left to deal with not 
            only the contamination, but the financial and emotional 
            mess left behind by the USEPA's actions. I ask, why should 
            we bear that burden?

  2.  If USEPA will not continue its services to mitigate the harm to 
            farmers and ranchers, we need assurances that they will 
            fairly and fully compensate the affected farmers and 
            livestock owners for their damages. Many farmers and 
            ranchers have lost crops. Many have expended their own 
            funds to try and mitigate their damages. Some have lost 
            economic value of their goods, among a whole host of other 
            possible damages. We are unsure as to whether the FTCA 
            claim process will provide fair, full, and ongoing 
            compensation to our people. As previously stated, we have 
            asked USEPA for an interim claims process or a relief fund 
            that will allow for ongoing claims and quick remuneration. 
            And we have asked the U.S. Attorney General for an opinion 
            confirming that the filing of Standard Form 95 and the 
            settling of a claim filed under that form or process does 
            not in fact fully satisfy and settle the claim as the plain 
            language of the form and the FTCA itself indicates. Despite 
            the urgency with which our people need to be compensated 
            for their already experienced losses, to date we have 
            received no response or confirmation from the USEPA or 
            USDOJ.

  3.  We need resources to conduct our own water, sediment, and soil 
            monitoring, and authority for the NNEPA to do the necessary 
            work. Due to our lack of trust in the USEPA and the 
            conflict of interest that exists with the USEPA, we want to 
            be able to monitor their work and confirm their results. We 
            will require an on-site lab, and additional staffing to 
            manage the sampling and lab performance. We are already 
            expanding our scope of work into the realm of sediment 
            testing, but testing and lab work is expensive, so we need 
            additional funding to facilitate that work. This will 
            enable us to provide our farmers and our leaders with the 
            answers they deserve, and with answers they can trust.

  4.  The U.S. Environmental Protection Agency needs to clean up all 
            the contamination that is flowing into the River. As we 
            have discovered, along with the Gold King Mine, there are 
            many hundreds of hardrock mines along the River that 
            continually release contaminants into the River. We suspect 
            that the volume of contaminants they release over time is 
            much greater in magnitude than this latest burst from the 
            Gold King Mine. USEPA needs to develop a plan to clean up 
            these sources of contaminants, share their plan, and 
            implement and complete that plan. We request, as part of 
            the plan, that USEPA designate these mines as Superfund 
            sites.

  5.  We need resources to address near- and intermediate-term impacts. 
            We need assistance to create redundant and auxiliary water 
            supplies, at least two treatment plants, additional 
            drilling for wells, repair of windmills and new reservoirs 
            to guard against the negative impacts of future 
            contamination. Until there is a plan in place from the 
            USEPA that would prevent future contamination of the San 
            Juan River, and that plan is implemented, we need these 
            water supplies and reservoirs in case we need to shut off 
            water from the River again. For the sake of our people and 
            our Nation, we hope we do not ever have to do that again, 
            but for now, that risk remains. We also need treatment 
            plants to filter out contaminants to make the water safe 
            for human, animal and agricultural consumption, including a 
            water treatment plant at the head of our waters in the 
            communities of Upper Fruitland and Shiprock.

  6.  We need resources to study and address the long-term health, 
            economic and environmental impacts of the spill and to 
            return the River to a safe and healthy state. While long-
            term health and economic impacts have not yet been 
            quantified, we believe they will be substantial. We will 
            need assistance monitoring health impacts, including mental 
            health impacts, as well as the resources necessary to fund 
            this monitoring effort and to fund treatment, if necessary. 
            Extensive planning and study will be needed to return the 
            San Juan River to a safe and healthy state.

  7.  We demand a fair and independent assessment of the USEPA's and 
            others' role in the spill, and the establishment of a 
            different lead agency. Since they were the cause of this 
            contamination, we have serious concerns about the strong 
            conflict of interest USEPA has with respect to this 
            investigation and the emergency response. An independent 
            body should conduct the investigation, and FEMA should take 
            over as lead responding agency.

  8.  We ask that Congress revisit this important issue and the Federal 
            response in 6 months. This complex issue will not disappear 
            overnight for the Navajo people; we request Congress hold 
            another hearing in 6 months to ensure the Federal 
            Government, starting with the responsible party, the USEPA, 
            has made sufficient progress.

    Ahehee.'  Thank you for your time and attention to this important 
issue.

                                 ______
                                 

  Questions Submitted for the Record to the Honorable Russell Begaye, 
                        President, Navajo Nation
              Questions Submitted by Rep. Grace Napolitano

    Question 1. Tribes have a special relationship with the Animas and 
San Juan Rivers. They withdraw water that does not have go through 
traditional water treatment before it is used to irrigate crops, water 
stock or be used directly by the tribal people. What specific actions 
has the EPA given Navajo Nation and the Southern Ute Tribal Council to 
ensure that the tribes are funded, supported, and worked with as 
required--in a nation-to-nation relationship to track the impacts of 
this spill over the years it will take to move the sediment downstream?

    Answer. Thank you for the question, Congresswoman Napolitano. As 
far as we know, USEPA has not targeted specific funding for tracking 
the impacts of the Gold King Mine spill to the San Juan River over the 
next few years. Generally, our Navajo Nation Environmental Protection 
Agency (NNEPA) receives about $20,000-$50,000 per year from the USEPA 
to contract with an analytical lab to analyze ambient water quality 
samples taken from waters across the Navajo Nation. In Fiscal Year 
2015, the NNEPA has directed these funds (about $20,000) to analyze 
samples collected from portions of the San Juan River to determine its 
metal concentrations and compare it to levels from past water quality 
sampling efforts. This funding amount is much too small to provide an 
appropriate level of analysis of the spill impacts to the San Juan 
River. The Navajo Nation should receive funding similar to states, in a 
set-aside form, and in an amount of about $1.7 million (approximately 
equivalent to West Virginia) for its water quality monitoring program, 
NNEPA would then have a budget of about $450,000 for its sampling 
efforts, which would lead to a better assessment of the impacts of 
contamination to the Navajo Nation's water supplies.
    The Navajo Nation is also in the process of negotiating a 
Cooperative Agreement with the USEPA that we hope will provide 
reimbursement of some of the significant cost of the Navajo Nation's 
response efforts and for some future monitoring. There may be 
difficulties in our negotiations because we do not expect that USEPA 
will support reimbursement of all our costs. For example, they have 
indicated that they will fund water and sediment monitoring, but not 
other studies that the Nation considers important such as monitoring of 
human health, livestock, wildlife and agricultural impact studies. 
Nonetheless, we will continue to work toward a fair and equitable 
agreement for the Navajo Nation.
    In addition, USEPA has recently invited the affected Indian tribes 
and states to be part of a team to design and implement its long-term 
monitoring plan. We will participate and hope that the outcome is an 
effective plan that will be funded at a sufficient level to be 
effective.
    Other than as stated above, we are not aware of any other current 
actions from USEPA in supporting or working with the Navajo Nation in 
directly tracking spill impacts. There is a possibility of future 
efforts, but that depends on the outcome of negotiations on the 
cooperative agreement and development and implementation of the long-
term monitoring plan.

    Question 2. EPA has been working to fix this local issue that has 
been polluting the Animas River at a rate of approximately 330 million 
gallons per year. Has either tribe become aware of any short- or long-
term effects on health, livestock, etc. from this polluted water?

    Answer. At present, some of the specific impacts we are aware of 
include, but are not limited to, significant crop losses, some animal 
losses, market effects (a stigma is developing with respect to 
purchasing farm goods from the affected communities), excessive wear 
and tear on vehicles and equipment used to haul water, increased 
reporting of domestic violence in the affected communities post-
incident, seven suicides post-incident (four of the first were in 
affected communities), and other financial and health issues. There are 
many impact concerns. As such, there are impact studies currently being 
conducted and proposed. In addition, you can refer to Section IV of my 
written testimony submitted to the committee, which highlights some of 
the short- and long-term impacts. As I stated before, not all of the 
impacts of the spill are currently known or knowable as our first 
priority has been to respond to the immediate needs of the Navajo 
people as a result of this historic event.

                Question Submitted by Rep. Dan Newhouse

    Question 1. Could you detail the impact this EPA-caused 
environmental disaster will have on farmers in the Navajo Nation?

    Answer. Thank you for the question, Congressman Newhouse. Our 
written testimony submitted to the committee highlights many of the 
impacts Navajo farmers have and will face as a result of the Gold King 
Mine (GKM) spill. At the outset, I note that given the historic nature 
of the GKM spill, not all impacts are known or knowable today, and many 
impacts have not yet been quantified. Our priority as a Nation has been 
to respond to the crisis while we are working toward a fuller 
assessment of the scope and magnitude of the impacts. With that in 
mind, some of the impacts include the following. From the date when the 
plume of contaminants from the spill were estimated to be moving 
through Navajo waters (August 8) until our waters were determined 
suitable for irrigation and livestock use by our Navajo Nation EPA, the 
gateways to the Nation's irrigation canals along the San Juan River 
were turned off. Our waters were reopened to irrigation use on August 
28. However, a number of Navajo farming communities took extra 
precautionary measures, given the uncertainty regarding the level of 
contaminants in the River and their possible effects. These farmers 
left their irrigation canal gates closed to avoid contaminating their 
canal and their crops (which contamination would and could have long-
term impacts). The Navajo Nation honored their wishes for taking this 
precautionary measure by not opening the irrigation gates that would 
have allowed water to flow by farmer's individual head gates. During 
the period that the River was closed to irrigation use, crops were lost 
or their growth stagnated. Some lost crops, such as alfalfa, cannot be 
replanted for another 2 to 3 years because of necessary soil 
preparations. In addition, even though some crops were saved, there 
appears to be continued concern about market confidence in those crops. 
There have also been significant mental health impacts caused by the 
GKM spill, as well as impacts on the non-farming community. I know that 
recovery is going to be a long process, but I hope that one day, all 
these farmers will have their confidence restored in the water that 
they use to irrigate their crops.

                                 ______
                                 

    The Chairman. President, thank you for your testimony.
    Mr. Olguin, probably the correct title is Councilman, 
right?
    Mr. Olguin. Yes.
    The Chairman. Councilman, you are recognized for 5 minutes.
    Mr. Olguin. Thank you.

STATEMENT OF MIKE OLGUIN, MEMBER, TRIBAL COUNCIL, SOUTHERN UTE 
                INDIAN TRIBE, IGNACIO, COLORADO

    Mr. Olguin. Good morning, Chairmen Bishop and Chaffetz, 
Ranking Members, and committee members. My name is Mike Olguin. 
I am honored to be here. I am an elected member of the Southern 
Ute Indian Tribal Council, which is the governing body of the 
Southern Ute Indian Tribe. Thank you for the opportunity to 
appear before you today on behalf of the tribe, to discuss the 
Gold King Mine spill and its impacts on the tribe and our 
community.
    Before I begin, I would like to thank Congressman Young and 
Chairman Bishop for last week's action improving the Native 
American Energy Act, and reporting it to the Full House. The 
tribe was active in developing that bill, and supports 
enactment.
    My testimony at this time, Mr. Chairman, I would like to 
mention a few key items from my written statement. Then I would 
like to answer questions that you and the committee members may 
have.
    The Animas River crosses the tribe's reservation downstream 
of Durango, Colorado, and upstream of New Mexico. Since the 
Gold King Mine blowout on August 5, the tribe has been 
extensively engaged in responding to the spill. We first 
learned of the Gold King Mine release when the Colorado 
Department of Natural Resources notified the tribe on the 
afternoon of the spill. We immediately responded by 
implementing our Emergency Management Plan, contacting the 
County Office of Emergency Management and EPA, and sampling 
water quality before the spill reached the reservation.
    In the first days after the spill, it was largely the local 
jurisdictions who were responding to the incident. The tribe 
issued a disaster declaration on Saturday, August 8. Other 
jurisdictions followed suit.
    In the days that followed the release, we attended to the 
needs of the tribal membership. We posted signs, closing access 
to the river on the reservation. We delivered water, bottled 
water, provided water tanks, and water for livestock. We also 
held informational meetings with tribal members, and offered 
temporary housing for our affected tribal members.
    Additionally, we coordinated EPA testing of tribal member 
domestic water wells. For the duration of the response, tribal 
staff actively participated with personnel from other affected 
governments in the unified incident command, and remains 
engaged in the incident command to this day.
    As of the Friday after the spill, the EPA still did not 
have a coordinated effort in Durango. In the absence of a 
Federal presence, local jurisdiction, including the tribe, 
worked together. For example, on August 6, the tribe's water 
quality program called the New Mexico spill reporting hotline 
and reported the spill to New Mexico. At that point, neither 
EPA nor Colorado had notified New Mexico. The county and our 
tribe notified our sister tribe, the Ute Mountain Ute Tribe, of 
the spill. We also shared information with downstream tribes in 
the Lower Colorado Basin.
    For the period from August 5 through September 8, the tribe 
incurred approximately $170,000 in cost responding to the 
spill, mostly in staff time. We understand neighboring 
community businesses suffered losses, and our neighboring local 
governments also incurred costs. We are working with EPA to 
obtain reimbursement for costs already expended, and future 
costs that will be incurred, including the cost of continued 
water quality monitoring.
    The tribe has long had an active water sampling program 
funded by EPA Tribal Assistance Program and Clean Water Act 
grants. The tribe's water quality data provided valuable 
information to all the parties affected by the Gold King Mine 
spill. We tested before the plume hit the reservation, and for 
2 weeks after the spill. During that time, we were testing 
daily for over 25 substances, including aluminum, silver, 
magnesium, arsenic, lead, and mercury.
    Coincidentally, just 2 weeks before the Gold King spill, we 
had collected tissue samples from fish in the Animas to conduct 
metals analysis on those samples. We shared our water quality 
data and continued monitoring, which should provide important 
information on long-term impacts.
    Like others, we favor a full evaluation of events leading 
to the spill, and the EPA's performance responding to the 
spill. However, it is important to keep this incident in 
perspective and understand its point to a much larger problem. 
There are estimated to be 23,000 abandoned mines in Colorado 
alone, causing water pollution problems. Federal leadership, 
assistance, and cooperation among downstream community 
stakeholders is key to avoiding another blowout and addressing 
the problem of abandoned mine drainage polluting the Upper 
Animas River watershed.
    Thank you for this opportunity to appear before you today.
    [The prepared statement of Mr. Olguin follows:]
  Prepared Statement of James M. ``Mike'' Olguin, Southern Ute Indian 
            Tribal Council Member, Southern Ute Indian Tribe
    Good morning Chairmen Bishop and Chaffetz, Ranking Members Cummings 
and Grijalva, and committee members. Thank you for the opportunity to 
appear before you today on behalf of the Southern Ute Indian Tribe to 
discuss the Gold King Mine spill and its impacts on the Tribe and our 
community.
    My name is Mike Olguin. I am an elected member of the Southern Ute 
Indian Tribal Council, which is the governing body of the Southern Ute 
Indian Tribe. The Southern Ute Indian Reservation encompasses 
approximately 710,000 acres in southwestern Colorado. The Tribe is 
blessed by eight rivers traversing its Reservation in five main 
drainage basins. One of those rivers is the Animas River, which bisects 
the western half of the Tribe's Reservation, downstream of Durango, 
Colorado, and upstream of New Mexico.
    Since the Gold King Mine blowout on August 5, the Tribe has been 
actively and extensively engaged in responding to the spill. Because of 
this experience, the Tribe has learned some lessons and is prepared to 
share our observations with the committees.
 tribal and local governments were particularly responsive and epa was 
                 cooperative in responding to the spill
    The Tribe first learned of the Gold King Mine release when the 
Deputy Director of the Colorado Department of Natural Resources 
notified the Tribe's Wildlife Resources Division on Wednesday 
afternoon, August 5, 2015. Our Tribe immediately responded by 
implementing its emergency management plan, contacting the La Plata 
County Office of Emergency Management, estimating when the contaminant 
plume would reach the Reservation, contacting EPA to determine the 
appropriate analyte list for water quality sampling, and commencing 
baseline water quality monitoring activities before the spill reached 
the Reservation. On Thursday and Friday, August 6 and August 7, tribal 
staff coordinated with EPA and La Plata County personnel, attended 
meetings, gathered information, and continued daily sampling on the 
Animas River. In the first days of the spill, however, it was largely 
the local jurisdictions who were responding to the incident. As of 
Friday, August 7, EPA still did not have a coordinated effort in 
Durango. In the absence of a Federal presence, local jurisdictions, 
including the Tribe, worked together as members of the Southwest 
Incident Management Team in coordinating a response.
    In accordance with the Tribe's Incident Management Plan, Tribal 
Chairman Clement Frost issued a disaster declaration on Saturday, 
August 8. Other jurisdictions followed suit. In the days that followed 
the release, the Tribe attended to the needs of the tribal membership. 
The Tribe posted signs closing access to the Animas River on the 
Reservation, commenced bottled water delivery to affected tribal 
members, provided water tanks for affected livestock owners, commenced 
delivery of water for livestock (the Tribe commenced delivering water 
to the tribal membership when the EPA contractor delivered water that 
was not suitable for livestock consumption), held informational 
meetings with tribal members, and offered temporary housing for 
affected tribal member families. The Tribe also coordinated and 
supported EPA testing of tribal member domestic water wells and 
irrigation ditches in the impacted area within the Reservation. 
Subsequently, the Tribe purchased and installed 14 reverse osmosis 
systems on the kitchen taps of tribal member homes.
    For the duration of the response, tribal staff communicated, 
coordinated, and actively participated with personnel from other 
affected governments in the Unified Incident Command. The Tribe's 
Incident Management Team was fully engaged in the Incident Command 
effort, which was headquartered in Durango, and worked closely with 
local, state and Federal agencies throughout the response effort. 
Tribal Incident Management Team members staffed the center virtually 
around the clock to ensure that the Tribe was contributing its 
expertise to the response effort, as well as to ensure that the Tribe 
was treated as an affected jurisdiction. The Tribe has since received 
acknowledgement and thanks for its participation, expertise, efficacy, 
and professionalism in responding to the incident, and remains engaged 
in the Incident Command to this day.
    The spill response highlighted the importance of relationships 
between state, tribal, and local governments. The state of New Mexico 
first learned of the spill on August 6 when the Southern Ute Indian 
Tribe's Water Quality Program called New Mexico's Spill Reporting 
Hotline. New Mexico had not received notification from either EPA or 
Colorado at that point. The County and City attorneys reached out to 
tribal attorneys to share information and meeting notifications that 
they knew had not been shared with tribal attorneys. The Southern Ute 
Indian Tribe coordinated with its sister tribe, the Ute Mountain Ute 
Tribe, which draws water from the San Juan River. Other downstream 
tribes in the lower Colorado River Basin, including Chemehuevi, Fort 
Mohave, Quechan, and Cocopah reached out to the Southern Ute Indian 
Tribe for information about the spill and the Tribe's water quality 
sampling, which the Southern Ute Indian Tribe shared.
    Today, water quality monitoring results show the water of the 
Animas River on the Reservation has returned to pre-spill conditions 
and the River has been re-opened for all activities. Our primary 
concern remains the potential long-term impact on human health and the 
environment caused by the deposition of heavy metals on the Animas 
Riverbed.
 the tribe incurred significant costs from responding to the spill but 
                  expects full reimbursement from epa
    For the period from August 5 through September 8, the Tribe 
incurred approximately $170,000 in costs responding to the spill, 
mostly in staff time. We understand neighboring community 
businesspersons suffered losses and our neighboring local governments, 
La Plata County and the city of Durango, with whom the Tribe shares 
many interests, likewise incurred costs. Long-term, we expect to incur 
costs for continued water quality and sediment monitoring. The Tribe is 
working with EPA to enter into a Cooperative Agreement whereby the EPA 
will reimburse the Tribe for costs already expended, as well as future 
costs that will be incurred, including the costs of continued water 
quality monitoring.
   the tribe's water quality data provided important information for 
   assessing the spill's short-term impacts and continued monitoring 
       should provide important information on long-term impacts
    The Tribe has long had an active water sampling and monitoring 
program, and for over 15 years has been monitoring water quality in the 
rivers that cross the Reservation, including the Animas. Before the 
Gold King spill, the Tribe's Water Quality Program had been maintaining 
three stations in the River with equipment that continuously collects 
pH, oxygen, temperature, and conductivity data. EPA funds this 
monitoring through a Clean Water Act tribal assistance grant. In 
response to the spill, the Tribe's Water Quality Program established 
additional monitoring stations and expanded the list of substances for 
which the Tribe tests. The Tribe tested before the plume hit the 
Reservation, and for 2 weeks after the spill, the Tribe was testing 
daily for over 25 substances, including aluminum, iron, silver, 
magnesium, arsenic, cadmium, selenium, zinc, lead, mercury, barium, and 
molybdenum. The Tribe has since resumed its routine monthly sampling of 
water quality, quarterly sampling of macroinvertebrates, and taking pH, 
oxygen, temperature, and conductivity readings every 30 minutes.
    On Thursday, August 13, 2015, the Tribe shared the water quality 
data it had collected on the Animas River since the spill. The data 
from the lab was encouraging. The Tribe assessed the results against 
tribal and state water quality standards, as well as historical data. 
Initial pH data showed no dip below pH 7.4 on the Reservation. Aquatic 
life prefers waters in the 6.5-8.0 range. The Tribe shared data with 
EPA, the state of Colorado, La Plata County, local officials, and 
community stakeholder groups. The Tribe also prepared and shared 
historical water quality data to provide information on pre-release--or 
normal--river conditions.
    The Tribe also has historical data regarding aquatic life in the 
River. Coincidentally, just 2 weeks before the Gold King spill, the 
Tribe had collected tissue samples from fish in the Animas River to 
conduct metals analysis on those samples. While the purpose of the 
testing was initially to assess potential human consumption concerns, 
the Tribe will continue to conduct these fish tissue studies to 
determine any toxicity impacts from the spill. This will allow the 
Tribe to assess the extent of bioaccumulation of toxins in the aquatic 
life in the River.
    The Tribe has been able to develop a highly successful water 
quality program, which has provided valuable support to the community 
in this response, due principally to EPA Tribal Assistance Program 
grant funding. We hope Congress and the EPA will see the benefits that 
the Tribal Assistance Program grants have provided to Indian Country 
and its surrounding communities and continue to appropriately fund 
these tribal grant programs.
the problem of abandoned mine drainage predates the gold king incident, 
          and addressing the problem is complex and expensive
    Like others, the Tribe favors a full evaluation of events leading 
to the spill and the EPA's performance responding to the spill. We can 
all learn from mistakes made and, based on a thorough evaluation of the 
incident and response, hopefully, EPA, the Tribe, and other responders 
can improve emergency response preparedness.
    It is important to keep this incident in perspective and understand 
it points to a much larger problem, one that has been 100 years in the 
making. In the late 19th century, the discovery of valuable minerals in 
the San Juan Mountains led to widespread trespass on lands set apart 
for the Utes under an 1868 treaty. As a result, the United States 
negotiated another agreement with the Utes in 1873 that carved 3.7 
million acres out of the middle of the Ute Reservation. That agreement, 
along with the 1872 mining law, paved the way for hardrock mining in 
the San Juan Mountains, one legacy of which is mining-related pollution 
of the Animas River.
    The Gold King is not the only abandoned mine polluting the Animas 
River basin. There are many others, and reportedly many thousands of 
abandoned mines that similarly degrade water quality in rivers across 
the West. There are an estimated 23,000 abandoned mines in Colorado 
alone. We hope that the new light being shined on the long-standing 
problem of acid mine drainage in the Animas River basin will cause 
interested parties to develop a permanent solution.
 federal leadership and assistance, and communication, collaboration, 
 and cooperation among downstream community stakeholders and federal, 
 state, and tribal governments, is key to avoiding another blowout and 
 addressing the problem of abandoned mine drainage polluting the upper 
                         animas river watershed
    Without congressional support and Federal leadership, the problem 
of acid mine drainage polluting the Animas River and other rivers will 
not be solved. The Tribe, state of Colorado, local governments, and 
stakeholders need Federal assistance in exploring options for cleaning 
up the acid mine drainage problem, including possible Superfund 
designation for the San Juan Mountain area surrounding the Gold King 
Mine. The Tribe urges the committees to support continued dialog and 
collaboration and to provide direction in how the Tribe and other 
interested parties can help EPA respond to contamination threats, in 
order that EPA may fulfill its mission to protect, preserve and, where 
necessary, proactively remediate contamination sites that continue to 
threaten the Animas and other rivers.
                               conclusion
    The Tribe, through its Incident Management Team and Water Quality 
Program has made a significant contribution to the response effort on 
the Gold King incident. Based on ongoing discussions, we anticipate EPA 
will reimburse the Tribe for its direct costs incurred responding to 
the spill. The Tribe hopes Congress will fund, and EPA will assist in 
providing support for, long-term monitoring for impacts caused by the 
Gold King Mine spill. We also hope Congress will support EPA continuing 
to work cooperatively with Colorado and affected tribes, local 
governments, and community stakeholders to develop a permanent solution 
to the acid mine drainage problem in southwestern Colorado.
    Thank you for the opportunity to appear before you today. I am glad 
to answer questions the committees may have.

                                 ______
                                 

  Questions Submitted for the Record to the Hon. Mike Olguin, Member, 
                      Southern Ute Tribal Council
              Questions Submitted by Rep. Grace Napolitano

    Question 1. Tribes have a special relationship with the Animas and 
San Juan Rivers. They withdraw water that does not have go through 
traditional water treatment before it is used to irrigate crops, water 
stock or be used directly by the tribal people. What specific actions 
has the EPA given Navajo Nation and the Southern Ute Tribal Council to 
ensure that the tribes are funded, supported, and worked with as 
required--in a nation-to-nation relationship--to track the impacts of 
this spill over the years it will take to move the sediment downstream?

    Answer.

    (a) On September 21, 2015, the Southern Ute Indian Tribe received 
an invitation from EPA Region 8 for a government-to-government 
consultation conference call regarding the EPA's proposed monitoring 
plan titled, Draft Post-Gold King Mine Release Incident: Conceptual 
Monitoring Plan for Surface Water, Sediments, and Biology. The 
consultation call was held on October 7, 2015.

    (b) On October 8, 2015 the Tribe submitted comments to the EPA's 
proposed monitoring plan. In addition to providing technical comments 
to the plan, the Tribe has also requested that the EPA agree to: (1) 
have the Tribe's Water Quality Program perform the plan's sampling and 
monitoring activities within the exterior boundaries of the Southern 
Ute Indian Reservation, and (2) expedite approval of the Tribe's 
Application for Treatment in the Same Manner as a State for Purposes of 
the Water Quality Standards and Certification Programs (submitted to 
EPA on March 2, 2015) and the Tribe's Water Quality Standards and 
Application for Sec. 401 Certification Authority, which are currently 
in development.

    (c) The Tribe is preparing to submit a Cooperative Agreement that 
will request payment of the Tribe's expenses-to-date related to the 
Gold King Mine release incident, as well as future expenses related to 
long-term monitoring and recovery. After the spill, EPA sent contract 
and finance staff to Durango to meet with affected jurisdictions to 
discuss the cooperative agreement process, and those staff have 
followed up with the Tribe's staff to see if the Tribe has any 
questions regarding the process.

    Question 2. EPA has been working to fix this local issue that has 
been polluting the Animas River at a rate of approximately 330 million 
gallons per year. Has either tribe become aware of any short- or long-
term effects on health, livestock, etc. from this polluted water?

    Answer. The Southern Ute Indian Tribe is currently not aware of any 
conclusive evidence of short- or long-term effect from these waters, 
however, there have not been any human health or toxicological studies 
conducted to assess these effects. Results from sampling of the water 
column appear to show no exceedances of primary drinking water 
standards for the analytes sampled in surface water, with the possible 
exception of the leading edge of the Gold King Mine Release contaminant 
plume. There has not been sufficient sampling performed to assess 
current or future impacts to groundwater resources or drinking water 
wells in the Animas River alluvium. There are concerns that 
remobilization of sediment may have an impact on water quality. The 
Tribe will continue to monitor surface and groundwater conditions along 
the Animas River for short- or long-term impacts and may recommend 
additional studies, if appropriate.

                                 ______
                                 

    The Chairman. Thank you very much.
    Dr. Wolk, you are recognized for 5 minutes.

 STATEMENT OF LARRY WOLK, EXECUTIVE DIRECTOR AND CHIEF MEDICAL 
OFFICER, COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT, 
                        DENVER, COLORADO

    Dr. Wolk. Thank you, Chairman Bishop, Chairman Chaffetz, 
Ranking Member Cartwright, and members of the committees. Good 
afternoon. My name is Dr. Larry Wolk, I am the Executive 
Director and Chief Medical Officer for the Colorado Department 
of Public Health and Environment. I appreciate the opportunity 
to share with you my testimony on behalf of the Department, 
regarding the water quality impacts from the recent Gold King 
Mine spill into Cement Creek and the Animas River near 
Silverton, Colorado.
    The Upper Animas River Basin has a long and storied mining 
history. As with many watersheds in Colorado, legacy mining in 
the basin has resulted in significant water quality impacts. 
For years, drainage from the numerous mining areas above 
Silverton has contributed heavy metal loads into Cement Creek, 
which eventually flows into the Animas River.
    Our Water Quality Control Division within the Department 
has routinely, but somewhat infrequently, sampled the water 
quality in Cement Creek and the Animas River as part of our 
Water Quality Program. These samples have consistently shown 
that the quality of the water in Cement Creek and the Animas 
River is, and has been for years, impacted by the mine waste 
coming from the legacy mines.
    The Gold King Mine is a historic gold mine located 
approximately 11,300 feet above sea level in the southwest 
mountains of Colorado near the town of Silverton. On August 5, 
2015, an estimated volume of up to 3 million gallons of mine 
wastewater, containing dissolved metals and sediment, was 
unexpectedly released from the Gold King Mine adit into Cement 
Creek. Water Quality Division staff from my department almost 
immediately traveled to Silverton and the mine site to respond 
to and evaluate the water quality impacts from the release.
    Our staff took several surface water samples the week after 
the mine release throughout the river basin, from upstream of 
Silverton and down river from Durango to the New Mexico border, 
over a period of 11 days, to determine the extent of the impact 
of the release. In total, our staff took 63 samples of surface 
water.
    Initial monitoring indicated levels of copper, lead, 
manganese, and zinc were higher than when previously monitored 
in June 2015, prior to the release. By August 11, however, the 
levels of monitored metals in the Animas River had returned to 
pre-release levels. In Cement Creek, cadmium, copper, and zinc 
continued to be above the historic range for these metals.
    Throughout 2016, we will continue to monitor the level of 
metals in Cement Creek and the Animas River. At this time, we 
do not anticipate adverse health effects from exposure to the 
metals detected in the river water samples from skin contact or 
incidental and unintentional ingestion.
    Our water quality staff has also worked with our Division 
of Parks and Wildlife of the Colorado Department of Natural 
Resources to monitor the effects on aquatic life and wildlife. 
Assessments will continue, but, at this point, there appears to 
be no obvious impacts. There were no fish kills along the 
Animas River during the plume event, and there were no effects 
observed on terrestrial animals, such as ducks or mammals.
    Parks and Wildlife also placed fingerling rainbow trout in 
cages in three separate locations in the Animas River in 
Durango before the mine spill plume reached the city. Of the 
108 fish placed in these cages, only 1 died, and the others 
remained healthy during the passing of the plume, and after the 
plume passed through the city. The one fish that died was not 
due to water quality.
    Long-term impacts from the effect of metals deposited in 
sediments will also continue to be monitored. These sediments 
may pose a risk, especially to aquatic life and fish during 
high-water events. We also understand there is concern about 
the risks to recreational users on the river. Sediment is just 
one indicator of the health of the river. There is some level 
of contamination in most, if not all, of Colorado rivers, 
because of past mining activities and the geology of the state. 
We do not anticipate adverse health effects from exposure to 
contaminants detected in the water and sediment during typical 
recreational activities.
    We also understand that, based upon current information, 
the Department of Agriculture believes the Animas River may be 
used for crop irrigation and livestock watering. We are unsure 
of the long-term impacts, but the spill at the Gold King Mine 
does not appear to have significantly affected or changed the 
water quality of Cement Creek or the Animas River.
    We are fortunate that the spill did not result in an 
immediate environmental disaster. However, this does not mean 
that Cement Creek and the Animas River have not already been 
impacted by prior damage from the legacy mines.
    The spill only serves to underscore the issues faced by 
many states, particularly in the West, where thousands of 
legacy mines affect the quality of our rivers and streams. High 
levels of acid-mine drainage can have a detrimental impact on 
aquatic life. The Division of Parks and Wildlife has reported a 
noticeable decline in the number of trout in the Animas River 
over the last 10 years. Cement Creek and the Animas River are 
only two of many water bodies in Colorado that receive historic 
mine drainage.
    In the interest of time, I will close my comments and be 
open for questions.
    [The prepared statement of Dr. Wolk follows:]
Prepared Statement of Larry Wolk, MD MSPH, Executive Director and Chief 
 Medical Officer, Colorado Department of Public Health and Environment
    Chairman Bishop, Ranking Member Grijalva, Chairman Chaffetz, 
Ranking Member Cummings and members of the committees, good morning. My 
name is Dr. Larry Wolk, I am the Executive Director and Chief Medical 
Officer for the Colorado Department of Public Health and Environment. I 
appreciate the opportunity to share with you my testimony on behalf of 
the department regarding the water quality impacts from the recent Gold 
King Mine spill into Cement Creek and the Animas River near Silverton, 
Colorado.
    The Upper Animas River basin has a long and storied mining history, 
and as with many watersheds in Colorado, legacy mining in the basin has 
resulted in significant water quality impacts. For years drainage from 
the numerous mining areas above Silverton has contributed heavy metal 
loads into Cement Creek which eventually flows into the Animas River. 
The Water Quality Control Division within my department has routinely, 
but somewhat infrequently, sampled the water quality in Cement Creek 
and the Animas River as part of our water quality program. These 
samples have consistently shown that the quality of the water in Cement 
Creek and the Animas River is, and has been for years, impacted by the 
mine waste coming from the legacy mines.
    The Gold King Mine is a historic gold mine located at approximately 
11,300 feet above sea level in the southwest mountains of Colorado near 
the town of Silverton. On August 5, 2015, an estimated volume of up to 
3 million gallons of mine wastewater containing dissolved metals and 
sediment was unexpectedly released from the Gold King Mine adit into 
Cement Creek. Water quality division staff from my department almost 
immediately traveled to Silverton and the mine site to respond to and 
evaluate the water quality impacts from this release. Water quality 
staff took several surface water samples the week after the mine 
release throughout the river basin from upstream of Silverton and down 
river from Durango to the New Mexico border over a period of 11 days to 
determine the extent of the impact of the release.
    In total, the water quality staff took 63 samples of surface water. 
Initially monitoring indicated levels of copper, lead, manganese and 
zinc were higher than when previously monitored in June 2015 prior to 
the release. By August 11, however, the levels of monitored metals in 
the Animas River had returned to pre-release levels. In Cement Creek, 
cadmium, copper and zinc continue to be above the historic range for 
these metals. Throughout 2016, we will continue to monitor the level of 
metals in Cement Creek and the Animas River. At this time we do not 
anticipate adverse health effects from exposure to the metals detected 
in the river water samples from skin contact or incidental and 
unintentional ingestion.
    The department's water quality staff also worked with the Division 
of Parks and Wildlife of the Colorado Department of Natural Resources 
to monitor the effects from the spill on aquatic life and wildlife. 
Assessments will continue, but at this point there appears to be no 
obvious impacts: there were no fish kills along the Animas River during 
the plume event and there were no effects observed on terrestrial 
animals such as ducks or mammals.
    The Division of Parks and Wildlife placed fingerling rainbow trout 
in cages in three separate locations in the Animas River in Durango 
before the mine spill plume reached the city. Of the 108 fish placed in 
these cages only 1 died, and the others remained healthy during the 
passing of the plume and after the plume passed through the city. The 
one fish that died was not due to water quality.
    Long-term impacts from the effect of metals deposited in sediments 
will also continue to be monitored. These sediments may pose a risk, 
especially to aquatic life and fish during high-water events. We also 
understand there is concern about the risks to recreational users on 
the river. Sediment is just one indicator of a healthy river. There is 
some level of contamination in most Colorado rivers because of past 
mining activities and the geology of the state. We do not anticipate 
adverse health effects from exposure to contaminants detected in the 
water and sediment during typical recreational activities.
    We also understand that based upon current information, the 
Colorado Department of Agriculture believes that the Animas River may 
be used for crop irrigation and livestock watering.
    We can't be sure of the long-term impacts, but the spill at the 
Gold King Mine does not appear to have significantly affected or 
changed the water quality of Cement Creek or the Animas River. We are 
fortunate that the Gold King spill did not result in an immediate 
environmental disaster; however, this does not mean that Cement Creek 
and the Animas River have not already been impacted by prior drainage 
from the legacy mines.
    The Gold King spill only serves to underscore the issues faced by 
many states, particularly in the West, where thousands of legacy mines 
affect the quality of our rivers and streams. High levels of acid-mine 
drainage can have a detrimental impact on aquatic life: the Colorado 
Division of Parks and Wildlife has reported a noticeable decline in the 
number of trout in the Animas River over the last 10 years. Cement 
Creek and the Animas River are only two of many water bodies in 
Colorado that receive historic mine drainage.
    Spills or blowouts, although typically not as large or dramatic as 
the Gold King spill, are not uncommon events in mining districts 
throughout the West. In Colorado millions of gallons of contaminated 
water are discharged from abandoned mines on a daily basis. Tackling 
the issues created by these legacy mines requires significant resources 
and raises liability issues.
    My agency is very familiar with the technical, financial and 
liability challenges of addressing environmental impacts from historic 
mining. In addition to our Water Quality Control Division, the 
Hazardous Materials and Waste Management Division, in my agency, 
actively partners with the Environmental Protection Agency to address 
such sites in Colorado. Unfortunately, the existing programs, 
regulations and funding are limited and do not provide us with the 
means we need to adequately address abandoned mine contamination in 
Colorado. Nonetheless, we will continue to work with the local 
communities affected by the Gold King Mine spill and with the EPA and 
others to identify potential next steps in addressing the legacy mine 
issues in the Upper Animas River basin and elsewhere in Colorado.
    Chairman Bishop, Chairman Chaffetz, and members of the committees, 
I hope that my testimony today sheds light on the water quality impacts 
from the Gold King Mine spill and on the need for additional attention 
to legacy mining issues throughout the West. I look forward to any 
questions you may have. Thank you.

                                 ______
                                 

 Questions Submitted for the Record to Larry Wolk, Colorado Department 
           of Health and Environment, Exec. Director and CMO
                Questions Submitted by Rep. Dan Newhouse

    Question 1. According to EPA documents that have been made public, 
prior to the spill the concept of drilling into the mountain from above 
to take a pressure reading indicating the amount of water that was 
currently sitting inside the plugged Gold King Mine was discussed. The 
arguments against conducting the drilling were that it was too costly 
and would take too much time. Do you believe the EPA should have 
ordered this drilling in order to measure the amount of water in the 
mine before work began? How much would this drilling have cost and is 
this amount prohibitive enough to not to get such a pressure reading?

    Answer. While the state of Colorado's usual practice is to 
investigate volumes and pressures where feasible, it is difficult to 
say whether EPA should have done so here. We do know that, given the 
geology, topography and location of the mine, it would have been with 
significant cost and delay. Such an assessment at that site would be 
technically very challenging due to expensive drilling techniques 
needed to drill in the loose rock, as well as the difficulty of angling 
into the mine workings given the steep landscape. The assessment would 
have taken 1 to 2 years to complete due to very short construction 
seasons in the San Juan mountain high country resulting in the likely 
need for two seasons.

    Question 2. If EPA had ordered this drilling into the mine shaft 
containing water at the Gold King Mine site to determine the amount of 
pressure, would it have prevented this blow out?

    Answer. Knowledge of volume and pressure could possibly have 
prevented this blowout, but that knowledge alone would not likely have 
prevented a blowout from occurring on its own at some point. It is also 
important to note that it is possible that the mine would have blown 
out during the time it took EPA to do the assessment and at a time when 
workers were not present and available to alert those downstream.


                                 ______
                                 

    The Chairman. Thank you. Finally, Mr. Flynn.
    Mr. Flynn. Thank you.
    The Chairman. You are recognized for 5 minutes.

STATEMENT OF RYAN FLYNN, SECRETARY OF ENVIRONMENT, AND NATURAL 
  RESOURCE TRUSTEE, STATE OF NEW MEXICO, SANTE FE, NEW MEXICO

    Mr. Flynn. Thank you, Chairman Bishop, Chairman Chaffetz, 
members of the committees. Before I begin, I want to thank our 
representative from New Mexico, Mr. Pearce, who has been here 
the entire day. I know this is not part of your district, but 
you are a New Mexican, and I really appreciate your interest, 
as well as your willingness to stay all day. Thank you very 
much, Mr. Pearce.
    I am the Secretary of Environment for the state of New 
Mexico, as well as the Natural Resource Trustee for the state 
of New Mexico, and I was on the ground in Farmington, New 
Mexico, within 18 hours of receiving notice of the spill from 
the Southern Ute Tribe.
    Almost immediately after being notified, our governor, 
Susana Martinez, appointed an Emergency Response Team, which I 
had the honor of serving as the leader of for the 9-day ordeal 
that the state of New Mexico, as well as other downstream 
users, including the Navajo Nation and the state of Utah, was 
forced to endure as a result of the EPA spill on the Animas 
River.
    It has been said that pressure reveals true character, and 
I am extremely proud of the manner in which the state of New 
Mexico, as well as the local communities, responded to this 
event. New Mexicans demonstrated compassion, courage, 
determination, and grit throughout this 9-day ordeal. Having 
been there and in the community, I cannot underscore how 
frightened people were by the toxic plume that was traveling 
through the river. The river literally goes through the heart 
of these communities. It is the heart of the community in 
Farmington, in Aztec, and in the Navajo Nation.
    Without water at home, and with this toxic yellow sludge 
floating through the river in the center of town, people 
literally were confronted by the spill at home and outside. In 
the face of these circumstances, New Mexicans responded as I 
would have expected. They came together with a well-
orchestrated and selfless plan to move forward and respond to 
the emergency at hand.
    In particular, I want to commend the efforts of the local 
officials from San Juan County, New Mexico, the city of 
Farmington, and the city of Aztec. From the very top to bottom, 
these officials responded admirably. They integrated themselves 
into our Emergency Response Team; and they took initiative and 
acted heroically throughout the process at all levels, from 
their leaders, the CEO, the COO of San Juan County, the mayors, 
all the way down the line. Their staff, from top to bottom, 
really were essential to this effort.
    I also need to compliment my staff. I had dozens of 
employees mobilized in the field. People literally were 
supposed to be dropping their children off at college that 
weekend; and because New Mexico needed them, they traveled 
hours from around the state to be there in Farmington during 
this ordeal to help. As the temperatures were well into the 90s 
on most days, we had set up a mobile lab that I talk about in 
my testimony, and I had, literally, over a dozen employees out 
there from morning until late at night, working in very cramped 
and hot conditions in a makeshift lab. At no point did anybody 
complain, lose their temper, or do anything other than ask what 
more could they do--``Can I stay an extra day? I have changed 
around my vacation plans, I will stay next week.''
    That was the type of response from my employees. I set a 
high standard for them, I push them hard, and I could not have 
been more humbled by their response, as well as the response of 
all of the other agencies from around the state. The Department 
of Agriculture, the state engineer, the New Mexico Department 
of Game and Fish, the New Mexico Department of Health, and the 
New Mexico Department of Homeland Security all performed 
admirably throughout this process.
    By Saturday, thanks to the state and local communities' 
swift actions, we had been able to secure all the public water 
systems and private domestic wells in the area. We were able to 
preserve and protect our local agricultural resources. We had 
established direct lines of communication with downstream 
communities. We established teams with local farmers and 
ranchers to provide water for livestock. We had set up watering 
stations across the area, and we had deployed various teams of 
scientists to monitor the water quality and wildlife in the 
Animas River. We had also authorized emergency funding.
    Again, these swift, well-orchestrated activities are a 
testament to the local communities and the leadership at every 
level of the state. It is an honor, and thank you for having me 
here today.
    [The prepared statement of Mr. Flynn follows:]
Prepared Statement of Ryan Flynn, Secretary of Environment and Natural 
              Resource Trustee for the State of New Mexico
    Chairman Bishop, Chairman Chaffetz, Ranking Member Cummings, 
Ranking Member Grijalva and other members of the committees, I 
appreciate the opportunity to testify about Environmental Protection 
Agency's Animas Spill (``Spill''). I was on the ground within 18 hours 
of receiving notice of the Spill and did not leave the area until the 
Animas River was fully re-opened in New Mexico on August 15, 2015. I 
served as the leader of Governor Martinez's Emergency Response Team and 
my testimony is based on my personal experience and observation.
    The Spill occurred at approximately 10:40 a.m. on August 5, 2015, 
when contractors working under the direction of the Environmental 
Protection Agency (``EPA'') breached a barrier serving to contain 
wastewater within the abandoned mine. The breach caused millions of 
gallons of wastewater containing dangerous levels of sediment and 
metals, such as lead, arsenic and cadmium, to surge into Cement Creek 
before ultimately being deposited in the Animas River, which flows more 
slowly in the piedmont of northern New Mexico.
    The state of New Mexico (hereafter, ``State'' or ``New Mexico'') 
was first notified about the Spill at approximately 9:30 a.m. on August 
6, 2015, when officials with the Southern Ute Indian Tribe contacted my 
staff. EPA did not contact any officials from New Mexico until 11:30 
a.m. on August 6, 2015, more than 24 hours after the Spill occurred.
    Like other downstream communities, New Mexico was severely impacted 
by the Spill. San Juan County, the area in the New Mexico most directly 
impacted by the Spill, is home to approximately 124,000 people. Within 
it is the city of Farmington, with approximately 45,000 people, and the 
city of Aztec, with approximately 6,500 people. Drinking water systems 
pulling from the Animas River serve both Farmington and Aztec. 
Additionally, there are five other small communities in the area who 
rely on the Animas River to meet their drinking water needs. The rest 
of the rural residents rely on domestic wells.
    Immediately following notification of the Spill, New Mexico took a 
series of aggressive actions to protect human health, notify local 
residents and downstream communities about the situation, preserve 
agricultural resources, and collect contamination data.

    Within 12 hours of our notification of the Spill, New Mexico 
accomplished the following actions:

     Established a multi-agency Emergency Response Team named 
            by Governor Susana Martinez, led by the Environment 
            Department and comprised of officials from the Environment 
            Department, Health Department, Office of the State 
            Engineer, Department of Agriculture, Department of Game and 
            Fish, and Department of Homeland Security;

     Contacted all seven of the public water systems diverting 
            water from the Animas River and advised them to shut off 
            their intakes until additional information was gathered;

     Contacted officials from San Juan County, the Navajo 
            Nation, the state of Arizona and the state of Utah to 
            inform them of the situation and begin coordination of 
            public communications;

     Contacted local farmers and ranchers, and advised them to 
            close irrigation ditches and to stop irrigating crops and 
            watering livestock with water from the Animas River; and

     Deployed a team of scientists to San Juan County who 
            immediately began taking background samples of water at 
            three different locations on the Animas River.

    Within 36 hours of receiving notice of the Spill, New Mexico 
accomplished the following additional actions:

     Provided informational briefings for the public in 
            Farmington, NM, and Aztec, NM, regarding the situation;

     In conjunction with officials from San Juan County, closed 
            the Animas River for recreational use;

     In conjunction with officials from San Juan County, the 
            city of Farmington and the city of Aztec, set up locations 
            at fire stations and community centers throughout the area 
            where residents could obtain free drinking water and take 
            showers;

     Issued health, hygiene, recreational, and livestock 
            precautions for the communities;

     Issued an emergency order authorizing up to $500,000 in 
            emergency funds to conduct activities to respond to the 
            spill;

     Deployed two additional teams of scientists from the 
            Environment Department to continue sampling surface water 
            in the Animas River and started sampling private, domestic 
            wells within the floodplain of the Animas River;

     Deployed teams from the Office of State Engineer and the 
            Department of Agriculture to work with farmers and ranchers 
            to identify alternatives for watering livestock; and

     Deployed a team from the Department of Game and Fish to 
            monitor potential impacts on wildlife caused by the spill.

    By Saturday, August 8, 2015, when the spill had fully arrived in 
our communities, turning the Animas River from its usual dark brown to 
a bright mustard color, New Mexico had secured all of the public water 
systems and private domestic wells, worked with local farmers and 
ranchers to secure all of the local agricultural resources, established 
direct lines of communication with downstream communities, established 
teams to work with local farmers and ranchers to provide water for 
livestock, set up stations across the area where residents could 
receive free drinking water and take showers, deployed various teams of 
scientists to monitor water quality and wildlife in the Animas River, 
and authorized emergency funding to pay for our response activities. We 
also had a Web site up and running with real time information for the 
public regarding the spill, and we had organized a series of public 
meetings to educate and defuse fear by allowing residents to obtain 
information and ask questions of the on-the-ground experts present.
    The Spill had a devastating impact on our local communities. 
Thousands of residents were without water. The bright, mustard color of 
the Animas River inspired fear and anger in the local communities. 
Without water at home and with the mustard colored Animas River flowing 
directly through the center of Farmington and Aztec, people were 
literally forced to confront the situation every place they went.
    Over the next few days, New Mexico's Emergency Response Team 
continued to deploy resources into the area in order to mitigate the 
impacts of the Spill. On Saturday, August 8, 2015, when EPA informed me 
they were having trouble getting the contracts in place to be able to 
deploy their mobile lab to the area, we went ahead set up our own 
makeshift mobile lab at the San Juan County Fairgrounds. In a little 
over 24 hours, the State mobilized all of the necessary platform and 
technical equipment as well as a dozen environmental scientists to the 
area and began setting up our own mobile lab so we could begin 
providing free tests for local residents the next day. The mobile lab 
was supposed to begin testing at noon on Monday, August 10, 2015. When 
I arrived at the mobile lab at 7 a.m. to help staff finish setting up, 
a large line had already formed as frightened residents waited to have 
their well water tested. We ended up opening the mobile lab by 8:00 
a.m. that morning and essentially ignored the hours we originally 
posted for the rest of the week, remaining open and taking samples late 
into the night for the first few days. By the end of the week, we had 
tested 724 domestic well samples at the mobile lab and personally 
contacted every single person to discuss their test results.
    In addition, our scientists in the field took over 240 surface 
water samples over the course of the week. The men and women staffing 
the mobile lab and working in the field literally worked around the 
clock in cramped, hot conditions and never complained. Instead, they 
kept asking to do more or to stay longer. This sort of dedication and 
kindness was not uncommon during this emergency situation as New 
Mexicans from all over of the state rallied to help San Juan County.
    New Mexico re-opened the Animas River on August 14, 2015, about 9 
days after the Spill occurred. While my testimony focused on the 
immediate actions taken by our emergency response team in the hours 
after being notified of the Spill, the closely coordinated effort 
described above continued throughout the 9-day ordeal. In particular, I 
must commend the efforts of San Juan County, the city of Farmington and 
the city of Aztec, who all played a huge role in the State's emergency 
response effort and seamlessly integrated their staff members into our 
team. Local assistance, leadership and expertise were essential to this 
effort. And at no point during the 9-day emergency response effort did 
I ever witness any territorialism or in-fighting among the various 
state and local officials working on this effort. To the contrary, 
everyone understood the gravity of the situation and simply focused on 
performing their tasks at a high level.
    While New Mexico's response was swift and well-coordinated, EPA's 
response was slow and disorganized. For example, EPA waited until 
Sunday, August 9, 2015, 4 days after the breach at the Gold King Mine 
and a day after the Spill had already arrived in New Mexico, to 
escalate the event to a Regional Emergency Operation. EPA also 
struggled to mobilize staff and resources to the area. For example, on 
August 18, 2015, almost 2 weeks after the Spill, EPA requested my 
agency to supply 10 staff members to assist them with field work they 
wanted to begin performing at 8 a.m. the next day. At 4 a.m. the next 
morning, 12 staff members from my agency departed from Santa Fe to meet 
EPA in Farmington. When they arrived in Farmington 4 hours later, EPA 
was totally unprepared and stated ``it was difficult for them to be 
ready in such short notice.'' \1\
---------------------------------------------------------------------------
    \1\ King, Jack, ``Re: Farmington EPA water sampling.'' Message to 
Ryan Flynn, 19 Aug. 2015, E-mail.
---------------------------------------------------------------------------
    EPA's communication with New Mexico was also poor and at times 
counterproductive. Some of EPA's communication problems have been well-
publicized, such as the fact that they did not contact anyone from New 
Mexico for more than 24 hours after the Spill. EPA's efforts to 
initially downplay the Spill have also been well-documented and EPA was 
ultimately forced to admit that their initial comments were ``not 
appropriate,'' ``not fully accurate'' and ``cavalier.'' \2\ However, a 
number of internal communication battles occurred behind the scenes. 
These internal struggles made it more difficult for my team to make 
important decisions and move forward with our emergency response 
efforts.
---------------------------------------------------------------------------
    \2\ Finley, Bruce, ``Animas River spill `huge tragedy,' EPA 
officials tell Durango gathering.'' The Denver Post, 7 Aug. 2015.
---------------------------------------------------------------------------
    For example, EPA repeatedly refused to share data with New Mexico 
for weeks after the Spill. Some of the data EPA refused to provide 
included results from surface water samples taken upstream of New 
Mexico. And when they did share such information, it was summary level 
data, cherry-picked and presented to create the appearance that Safe 
Drinking Water Act Maximum Contaminant Levels were not crossed, post 
event, specifically for lead. EPA also refused to share its sediment 
sampling plan with New Mexico for over 2 weeks.
    For the first 2 weeks after the Spill occurred, EPA blamed these 
communication breakdowns on poor coordination among the various EPA 
Regions involved in the response effort.\3\ EPA's Region 6 staff 
members repeatedly blamed EPA's Region 8 staff members for failing to 
provide information. Later, the finger-pointing gave way to new 
excuses, such as the difficulties posed by the size of the documents or 
the time constraints associated with EPA's data validation policy. The 
most remarkable excuse for refusing to share information came on August 
21, 2015, 16 days after the Spill, when an EPA staffer informed my 
staff that she was not authorized to provide sediment sampling plans, 
which we had been requesting for over 2 weeks, because the plans 
contained ``business confidential information.'' \4\ These 
communication breakdowns hindered New Mexico's efforts to understand 
the nature and extent of the contamination associated with the Spill 
and made it difficult to assess the adequacy of certain critical 
response actions undertaken by EPA, such as sediment sampling.
---------------------------------------------------------------------------
    \3\ There were three EPA Regional Offices involved in the Spill 
response effort: EPA Region 8 covers Colorado, EPA Region 6 covers New 
Mexico and EPA Region 9 covers the Navajo Nation.
    \4\ Smith, Monica, ``Re: sediment sampling--need your thoughts.'' 
Message to Trais Kliphuis, 21 Aug. 2015, E-mail.
---------------------------------------------------------------------------
    While the immediate public health risks posed by the Spill have 
passed, it is too early to understand or even begin to quantify the 
long-term impacts of the Spill. Dangerously high concentrations of 
arsenic, cadmium, lead, and other heavy metals were released in the 
Spill and settled out as the wastewater traveled downstream, layering 
the bottom of the Animas River with contaminants. Every time there is a 
high flow, such as after a storm event or snow melt, the contamination 
will be mobilized and move downstream.
    Under the direction of Governor Martinez, New Mexico has formed a 
Long-Term Impact Team to monitor the Spill's impacts on human health 
and the environment. The work of this Long-Term Impact Team will be 
critical to understanding the full extent of the damage caused by the 
Spill. We expect EPA to fund the work of the Long-Term Impact Team.
    Thank you for the opportunity to serve as a witness at this 
important joint hearing.

                                 ______
                                 

    Questions Submitted for the Record to Ryan Flynn, Secretary of 
  Environment and Natural Resource Trustee for the State of New Mexico
                Question Submitted by Rep. Dan Newhouse

    Question 1. It has been reported that the appropriate Federal 
agencies failed to notify stakeholders regarding the scope of the 
negative economic and environmental consequences of this spill. How has 
the EPA or the Department of the Interior failed to assist your state 
in responding to and assessing this disaster?

    Answer. Apart from agreeing with our request to discharge more 
water from Navajo Lake immediately following the Animas spill, the 
Department of the Interior (DOI) has provided zero assistance to the 
state of New Mexico and has not communicated with us at all. Moreover, 
the state has received no information from DOI about the 
``independent'' investigation they are performing. For example, we 
would like to know the scope of DOI's investigation and how they plan 
to go about performing this investigation. We would also like to know 
who will be performing this investigation and how we will be able to 
access all of the materials DOI develops through this investigation. 
Unfortunately, we anticipate DOI will simply provide a highly filtered 
investigation report and refuse to provide the state or the public with 
any of the other materials that were generated through their 
investigation. New Mexico believes the DOI investigation is 
fundamentally flawed because one executive branch agency investigating 
another is not truly an independent investigation. Moreover, the 
secrecy with which DOI is pursuing this investigation only serves to 
validate our concern that this entire investigation was intentionally 
designed to exonerate EPA for their actions.
    EPA has provided little assistance following this disaster and 
appears more focused on managing the negative publicity they have 
received. For example, New Mexico, in conjunction with the Navajo 
Nation, is working on a Long-Term Monitoring Plan to assess the long-
term impacts associated with the spill and has requested EPA to fund 
our effort, which is supported by the local communities. Instead of 
supporting the state's effort, EPA plans to monitor itself regarding 
the long-term impacts of the Animas Spill. In addition, the plan EPA 
put forward is totally deficient, which is why we do not allow 
responsible parties to monitor themselves when they create 
environmental disasters. For example:

     EPA's plan does not appear to acknowledge that much higher 
            concentrations of contaminants and sediment exist in 
            Colorado and over likely many years of storm events and 
            spring run off this will migrate to New Mexico and other 
            downstream states. This may accumulate in New Mexico 
            farming soils and low flow areas in the Animas River. EPA 
            proposes only a single year of monitoring, which is 
            irresponsible.

     EPA's plan does not propose any monitoring of heavy metals 
            in irrigated croplands.

     EPA's plan does not contemplate any groundwater 
            monitoring.

    We believe EPA needs to scrap this bad idea and support the plan 
the state is developing with local governments, public institutions and 
the Navajo Nation. EPA has not provided any support for the state plan 
and continues to move forward with their ill-conceived plan.

                                 ______
                                 

    The Chairman. Thank you. Thank you for your testimony. With 
the possible exception of your shout-out to Congressman 
Pearce--I do not want him to get a big head about this--he may 
be accurate, but that is beside the point.
    We are now going to turn to questions of the committee. We 
will start with Chairman Chaffetz for his questions.
    Chairman Chaffetz. Thank you all for being here; and to 
those most directly affected, our hearts and prayers go out to 
those people. We thank you for your willingness and your time 
to come testify today. I am going to focus--given that it is 
part of Utah's Third Congressional District, affects a lot of 
districts and states, but, President Begaye, I want to ask you: 
the EPA Administrator said, ``The EPA has closely 
coordinated,'' and she goes on, to include the Navajo Nation. 
What is your assessment of the close coordination of the EPA?
    Mr. Begaye. Thank you for the question. First of all, the 
coordination, if it means waiting 2 days before you are 
notified, I would not label that as coordination.
    The first time we had conversation was at a conference call 
on Friday afternoon, where EPA told us that the cleanup would 
take decades to complete. I was stunned by that statement, 
because I thought that, as EPA said before at a public hearing 
on Saturday evening, the next day they said that at the base of 
the mountain, the water was clearing up. Excuse me, that was 
Sunday afternoon. We had just returned from the mountain, and 
were taking photos of the river, and we went to the mouth of 
the mountain and looked inside. It was still very much the 
color of orange juice, very much yellow.
    I told the EPA person that this is what we saw, and the 
person that was answering the question to the public at that 
public forum in Durango, he said, ``Well, I was told different. 
I was told that it was clearing up.'' If that is coordination, 
and if that is what they thought, it was completely false.
    Chairman Chaffetz. What happened when you tried to go visit 
the site? Describe to us--and our time is short, we have to be 
quick, but what happened when you went to go visit the site?
    Mr. Begaye. We decided to go up there on Saturday--and to 
go up there on Sunday, but we decided to do that on Saturday. 
So, we started making calls to Region 6, or to the Denver 
office; and they said, ``Well, you can only go up to the first 
blockade, and that is it.''
    So we kept driving toward the location; and I told that 
individual that is on my staff, I said, ``Call Region 9, see 
what they say.'' So, they start talking to the person from 
Region 9. At that point, we realized that the regions were not 
talking to one another.
    As we got up to the mountain, we were given clearance to 
the blockade, and then they say, ``You can only get down to the 
base, down to the bottom.'' And you could not see very much of 
what took place.
    We proceeded to drive up--and it was not a really difficult 
drive up to the area--and I did not realize that the mouth of 
the mine was just a little ways further from where we stopped. 
I thought it was further up, so I jumped out of the SUV and 
started walking up the hill. When I got up to the top, that is 
where the mine was.
    We were first told we could only go up to the blockade, 
which is at least 2 miles away. You cannot see a thing, it is 
all tall pines and so forth, but it was through the other 
region, Region 9, that gave us a little bit more clearance to 
move a little bit farther up the stream. Even at that point, I 
did not realize that we were supposed to stop there. No one 
told me that was a stopping point, so I just kept walking, and 
no one said----
    Chairman Chaffetz. I want to get the full accounting of 
this, but this is absolutely ridiculous. The President of the 
Navajo Nation is not allowed to go see what is happening to his 
people. It is a terrible embarrassment, and demands an apology, 
as well.
    The last thing that I have time for, explain this Standard 
Form 95 and what was happening in the days after the spill to 
the people there in the Navajo Nation.
    Mr. Begaye. On that Sunday afternoon, I got a call and they 
were saying, ``We are sending people. They will come and help 
you. They will be on the ground to assist you.'' I was very 
thankful that EPA responded so quickly, and that they sent two 
people to help us monitor the situation. So they flew into 
Durango, they took a car down from there to Farmington on to 
Shiprock--that is what they told me.
    Later on, we discovered that they were in the communities 
up and down the river, giving out this Standard Form 95. We did 
not know that was taking place until one of the local officials 
in one of the communities called us up and said, ``This is what 
they are passing out. What do we do with it? ''
    Our Navajo attorney general took a look at the form, and 
immediately caught the waiver language. I asked to see it, they 
explained what that meant to me, or what that meant to our 
farmers and our ranchers. So, we immediately put the word out. 
We got on the radio. Immediately I called the radio station 
and, in my Navajo language, explained to the people not to sign 
that form. I told them if you do, you are not going to get full 
compensation for the damages that you incurred. We did news 
releases, we put the word out there, some of the local papers 
ran that story on our behalf, because this was just a slap in 
the face, we felt that the EPA was trying to minimize the 
damage payments that they were going to make. That was our 
experience with Standard Form 95.
    The Chairman. OK. We went over a little bit there, but I 
think we can handle it with this size of a panel.
    Mr. Cartwright, do you have any questions?
    Mr. Cartwright. Thank you, Mr. Chairman; and thank you to 
the witnesses for coming today: President Begaye, Councilman--
is it Olguin?
    Mr. Olguin. Yes.
    Mr. Cartwright. Dr. Wolk, Mr. Flynn. Now, Councilman 
Olguin, you have testified that there are approximately 23,000 
abandoned mines in Colorado. I mentioned earlier in this 
hearing today that the advocacy group Earthworks estimates that 
there are more than 500,000 abandoned hardrock mines within the 
United States.
    Ranking Member Grijalva is not here, but his bill, H.R. 
963, the Hardrock Mining Reform and Reclamation Act of 2015, 
would establish a hardrock minerals fund, funded as an 
extraction fee taken from the mine owners, the mine operators, 
for reclamation to repair and fix these toxic situations.
    President Begaye, would you support the establishment of 
that kind of dedicated fund, paid for by the mining industry 
that would be used to clean up abandoned hardrock mines?
    Mr. Begaye. Yes, Congressman Cartwright. Whoever caused 
these types of spills, they ought to be held accountable, 
whoever they are. And----
    Mr. Cartwright. How about Councilman Olguin. Do you feel 
the same way? Would you support the establishment of a hardrock 
minerals fund, along the lines that Ranking Member Grijalva's 
bill suggests?
    Mr. Olguin. Well, without reviewing it, just from the 
initial intake, I could see us probably supporting it, just 
from the standpoint of cleanup.
    Mr. Cartwright. OK, thank you. One thing I wanted to clear 
up for my own mind is to see if there is any disagreement among 
the panel. We had Dr. Wolk testifying that, by August 11, the 
levels of monitored metals in the Animas River had returned to 
pre-release levels, that there was no fish kill involved in 
this release. I wanted to get your take on that, President 
Begaye and Councilman Olguin. Do you agree with that?
    Mr. Begaye. Well, we do not put dollars before the health 
of our people, our land, and our water. In our own testing, 
Navajo Nation EPA has told us that there are high levels of 
metals, sediments, and contaminants that are unhealthy for our 
animals. So, we have become a dumping ground of wastewater, 
because the Animas River is quite different from the San Juan. 
The San Juan is slow moving; anything that comes down the 
Animas, because it is high altitude, gets into our slow-moving 
water, and that is where they settle.
    Mr. Cartwright. Thank you, Mr. President.
    Councilman Olguin, I think you testified that you knew 
about this spill that afternoon, because local officials had 
notified you; and that, because of that early knowledge, you 
were able to take steps to do testing before the plume hit the 
affected area that you are concerned with. Is that what your 
testimony was?
    Mr. Olguin. That is correct.
    Mr. Cartwright. OK. So, what is your take on what Dr. Wolk 
says? Was there a fish kill? He says there was not.
    Mr. Olguin. Well, based on the collaboration, coordination 
we had there, that same information was reported to us; and we, 
as Southern Ute, do not have any information contrary to that.
    Mr. Cartwright. OK. Then he said that by August 11--6 days 
after the release--that the metals levels had returned to pre-
release levels. Any basis to dispute that?
    Mr. Olguin. No, based on our testing, again, we came up 
with probably similar information, particularly with pH.
    Mr. Cartwright. OK. And either of you gentlemen, President 
Begaye, Councilman Olguin, do you support increased levels of 
funding to EPA in cleaning up problems like this into the 
future?
    Mr. Begaye. For the Navajo Nation, we have the expertise, 
we have the engineers, we have scientists running our Navajo 
Nation EPA. EPA can provide the funds, or whatever entity, 
whatever Federal agency can provide us the funds, and we can do 
our own cleanup, and we will do it in the way it should be done 
properly. Thank you.
    Mr. Cartwright. Councilman Olguin, do you support 
additional increased funding for cleanup?
    Mr. Olguin. Yes, we would.
    Mr. Cartwright. Thank you, gentlemen. I yield back.
    The Chairman. Mr. Grothman.
    Mr. Grothman. Thank you. I have some questions for 
Secretary Flynn. I spent a lot of time in Wisconsin government, 
and I know how important it is for the EPA and the local--I 
guess you call your Department of Environment and Natural 
Resources--to work together.
    Go over some of the things you said before. When did you 
first hear about the spill?
    Mr. Flynn. I heard about it on Thursday morning at about 
9:30 in the morning from the Southern Ute Tribe. Actually, I 
heard about it from a staff member who had just received notice 
from the Southern Ute Tribe.
    Mr. Grothman. You did not hear about it from the EPA first?
    Mr. Flynn. No.
    Mr. Grothman. And how long was it after the spill first 
took place?
    Mr. Flynn. It was about 24 hours when we received notice.
    Mr. Grothman. By somebody other than the EPA?
    Mr. Flynn. Yes.
    Mr. Grothman. How did that delay affect your ability to 
respond?
    Mr. Flynn. Well, it is difficult to quantify. When you are 
in an emergency situation, every second counts. EPA had 
initially put out some information regarding the velocity the 
plume was traveling in the river, which, based on their initial 
estimates, suggested the plume was going to arrive late in the 
night on Thursday, or in the very early morning hours of 
Friday.
    Based on that information, we began taking action, such as 
closing irrigation ditches. That information proved to be 
wrong. As a result of that incorrect information, we lost time 
where farmers could continue to withdraw into their irrigation 
ditches to build up their supply when we did have to shut the 
river down.
    Mr. Grothman. I do not know whether anything similar to 
this would have ever happened--anywhere near this horrible 
would have happened in New Mexico--but could you maybe compare 
that to how quickly you would have notified, say, adjacent 
landowners, or people downstream of a spill, if it was 
something that you were responsible for?
    Mr. Flynn. Immediately, within an hour. I would have 
personally called--well, I can just tell you what we did here. 
We contacted the Navajo Nation, we contacted the state of Utah, 
we contacted the state of Arizona. We immediately contacted San 
Juan County and the local communities. That did not occur over 
hours. We did not have a phone call list that we needed to--I 
mean we drill emergency responses, we have a protocol that is 
in place, and we just move forward with our plan. And 
literally, within hours, we had notified all the downstream 
communities and had taken steps to immediately stop withdrawing 
public water systems from the river and other actions.
    Mr. Grothman. I do not know that you have any employees 
that callous, but how would you have responded if, say, you 
found out one of your employees knew about an equivalent spill 
and just did not tell anybody about it for a day?
    Mr. Flynn. They would be former employees.
    Mr. Grothman. You heard the testimony that came before you. 
Do you want to comment in general on her testimony, or did you 
feel her testimony was what you would describe as an accurate 
recount of what you saw on the ground?
    Mr. Flynn. Sure--yes, I do have a great amount of respect 
for Administrator McCarthy. I think one of the flaws, you know, 
hindsight is 20/20; but this was an issue that we raised 
immediately on the ground during the emergency, and is one 
issue or a couple of issues that we continue to face.
    I do think the Administrator is tenacious and absolutely 
holds herself to a very high standard. I do not think that the 
employees who were actually charged with managing the situation 
held themselves to that same standard. I think that the lack of 
involvement from headquarters actually hindered this effort, 
and there is a lot of infighting among--they chose to handle 
this as a regional emergency. They did not actually elevate it 
to a regional emergency operation, as I mentioned in my 
testimony, until the day after the contamination plume had 
already arrived in the state of New Mexico.
    I think that the reluctance of EPA headquarters and 
management to become directly involved in this certainly played 
a huge role in hindering our efforts. I do not think there has 
been close work with the state, or close collaboration.
    For example, just today I understand EPA is going to unroll 
a long-term monitoring plan. First of all, we have told them 
all along for the past couple of weeks that we have a long-term 
monitoring plan, and they should be supporting our plan, not 
developing their own plan in a vacuum, without consulting or 
collaborating with the state.
    My time is almost up, or your time, sorry, sir, is almost 
up, so I----
    Mr. Grothman. Well, just leave it at that.
    The Chairman. Thank you. Are you done?
    Mr. Grothman. No.
    The Chairman. We are a little bit----
    Mr. Grothman. Just one more question.
    The Chairman. I will give you 1 more minute. I have given 
the others 1 minute; go for it.
    Mr. Grothman. Frequently, as we had kind of the same 
interaction in the state of Wisconsin--frequently you have 
situations in which the Environmental Protection Agency, or the 
local DNR, would deal with something. Do you think this country 
would be well served if, insofar as we could, we would give 
responsibilities for protecting our Nation's resources to local 
and state natural resource departments, rather than the EPA? Do 
you guys feel, at least in New Mexico, that you seem to exhibit 
more of a sense of urgency or care about our natural resources?
    Mr. Flynn. Absolutely. I think it is just human nature, 
that the people who actually live on the land, whose neighbors 
live on the land, who depend on the land, have the most skin in 
the game and are going to do the best job to conserve and 
manage those resources. So, we absolutely believe that states 
should be given strong deference.
    I think that when the Clean Air Act, the Clean Water Act--I 
think that Congress envisioned there to be a cooperative 
Federalist model when they adopted these statutes, and actually 
spoke to deferring to states on these decisions. I do not think 
that has been the case, certainly over the past couple of years 
in particular, on the Waters of the United States rule. That is 
an issue where New Mexico was among the coalition of states 
that did successfully sue and enjoin EPA in the North Dakota 
District.
    I do think states should have greater control over these 
resources, because we are in the best position to manage and 
understand their impacts.
    Mr. Grothman. I agree with you, and we will see if we can 
do something about that.
    The Chairman. All right, now I am going to cut you off, 
even though you were answering one of my questions. I am going 
to break the rules again here.
    Mr. Pearce, let me come down to you before--I have a lot of 
questions for you. Let me go to the other members of our panel 
here. Mr. Pearce, you are recognized.
    Mr. Pearce. Thank you, Mr. Chairman, and I appreciate that 
courtesy.
    President Begaye, you heard me try to get assurances that 
these Form 95s will, if they were signed mistakenly, or people 
were not sure--I did not get a clear answer from the 
Administrator. Maybe you understood it better. Just take my 
word that if they try to hold people to signatures that they 
did not know what they were signing, or they have tried to 
enforce waivers, then know that we will be a partner with you 
in that; and we will also work on individual cases, so it is 
not kind of a generality. Refer those people to our office, and 
we will stand side by side with them until we get that answer. 
We have found that to be more effective than just writing a 
letter on behalf of something.
    Then also, with respect to the water that was released out 
of the Navajo Dam, just again understand that we will help push 
that question. That is going to be a significant question 
downstream. I am familiar enough with some of the agencies that 
I think you might have a lot of difficulty getting resolution 
to that.
    Secretary Flynn, thank you very much for the kind comments 
coming in, but your leadership in this, I really appreciate 
that.
    Now, we have heard testimony today that the spill at Gold 
King Mine does not appear to have significantly affected or 
changed the water quality of the Cement Creek or Animas. Is 
that something you would agree with, as they come into New 
Mexico, that basically this is no big deal?
    Mr. Flynn. No, absolutely not. I agree that the pollution 
passed with the water column, and that was expected. Nobody has 
ever stated that the water quality would not rebound as the 
toxic plume moves through the river.
    The issue, which my colleague from Colorado did 
acknowledge, is what is left after that plume moves through the 
river. So, you have high levels of dangerous metals such as 
arsenic and lead, which have now been deposited in the 
sediment; and each and every time there is a stormwater event, 
or there is a spring runoff following snowpack, that 
contamination, that sediment, will become agitated and 
potentially mobilize those contaminants, and create a public 
health issue.
    There is also the--again, while the wildlife--I am sorry, I 
am speaking too long, but the water quality has rebounded. 
Again, the sediment that has been deposited, the impacts on 
wildlife--macroinvertebrates, in particular--are unknown, and 
will not be understood for years.
    So, while I agree that the water quality has rebounded to 
background levels, that is not really the issue. The issue is 
what was left over in the sediment that is now all along the 
river.
    Mr. Pearce. New Mexico Tech, also known as Mining Institute 
in New Mexico, went into Colorado. If you back up the pictures 
on the screen one, they discovered those heavy metals that you 
are describing on the bottom of these rocks there, in the 
stream bed. And, the next picture shows they took a sample of 
that groundwater, which is right there. So, definitely the 
effects are in the groundwater. I think I share the President's 
concern, and also your concern for the residents of New Mexico.
    Now, we heard from the Administrator that all of the 
processes were followed, that it is typical, Secretary, for you 
to be notified by someone different than the EPA when they were 
describing the process. And the question was that you were not 
notified; she said, ``That is the way that we do it. We use 
someone else to notify.'' Is that your experience, really?
    Mr. Flynn. No.
    Mr. Pearce. OK. I did not think so. There were many things 
there.
    Can you describe that process of closing off the inputs? 
Again, you heard my questions to the Administrator, and she 
kept trying to kind of give us bureaucratic doublespeak. So, 
can you describe the process that you all went through.
    Mr. Flynn. Sure. Once we were notified about the plume, and 
we saw the pictures, had conversations with some of the people 
who were on the ground, and had witnessed what had occurred, we 
immediately contacted--there are seven public water systems in 
San Juan County that withdraw water from the river--we 
immediately contacted those systems and told them to stop 
diverting from the river. We did that unilaterally. That was 
done by the state without any consultation or coordination with 
EPA.
    After that, though, one of the EPA communication staffers 
from Region 6 did berate one of my communication staffers that 
we did not do a joint press release, or otherwise publicize 
that decision, because they felt like it was a lost opportunity 
to develop some positive publicity in response to the spill. I 
then berated the EPA regional office for wasting time getting 
into a public relations issue when we are dealing with an 
emergency.
    Mr. Pearce. Dealing with the question. Mr. Chairman, if 
possible, I have one more question.
    Dr. Wolk, in your testimony you say, ``Unfortunately, the 
existing programs, regulations, and fundings are limited, and 
do not provide us with the means we need to adequately address 
the abandoned mine contamination in Colorado.'' If the funds 
were unlimited, what would the course of action be to remedy 
the problem?
    Dr. Wolk. Thank you, sir. I think it depends on the 
situation, because----
    Mr. Pearce. Well, if you have the situation we are facing 
right now, with the Gold King Mine, unlimited funds, what would 
the solution have been and would be?
    Dr. Wolk. I think there is a short-term solution to 
continue to treat the water and find more of a longer standing 
treatment facility solution that could go in place, and then 
remediation at the mine, itself.
    Mr. Pearce. OK. Thank you, Mr. Chairman.
    The Chairman. Thank you. Mr. Tipton.
    Mr. Tipton. Thank you, Mr. Chairman, and thank the panel 
for sitting there for an extended period of time.
    Councilman Olguin, we had an opportunity to be able to 
visit just a little bit. The Southern Ute Tribe, Ute Mountain 
Ute Tribe, small communities in southwest Colorado; would you 
describe for us--When did the EPA reach out to you? I believe 
you had cited earlier you heard from the city of Durango. When 
did the EPA reach out to you?
    Mr. Olguin. Well, first off, let me just acknowledge and 
thank you for your leadership on this.
    EPA, to my knowledge, had not officially contacted the 
Southern Ute Tribe--and I am talking the Administrator--had not 
made a call to the tribe, the Chairman's office, until this 
Monday, September 14.
    Mr. Tipton. September 14. That is an extended period of 
time. Is that showing due respect to a governmental entity out 
of the EPA?
    Mr. Olguin. In my opinion, when you look at the government-
to-government relationships and trust responsibility, that is 
way too long.
    Mr. Tipton. Would you care to expand? I thought it was 
actually pretty impressive out of the Southern Ute Tribe being 
proactive, taking the initiative to be able to respond, and to 
be able to meet the needs of the community. Is there something 
that the EPA could maybe learn from you?
    Mr. Olguin. That is going to be hard to answer, because 
from our perspective, we really do not heavily depend on the 
Federal Government to do our work, to protect our interests. 
For us, you know, we always roll our sleeves up, get in the 
middle of it, and address our needs immediately. Then, of 
course, whatever information we gather, we do hire the best 
people, the most qualified people; and, of course, we deal with 
people that are not producing the level and quality that we 
expect, as well. So I think, if nothing else, it is definitely 
holding people accountable and responsible for actions.
    Mr. Tipton. Great. President Begaye, I do want to applaud 
you for getting the word out on that Form 95. We had heard 
that, as well, and found it incredibly disturbing that the EPA 
was trying to be able to get a waiver for the Navajo Nation 
people in particular, to be able to respond and to be able to 
seek real responsibility and accountability out of the EPA.
    Dr. Wolk, I would like to maybe ask you a couple of 
questions. Do you think Colorado does a pretty good job, in 
terms of monitoring? We have engineers in Colorado, do we not?
    Dr. Wolk. Yes, sir, we do. Depending on the situation, we 
have water quality engineers, mine engineers, and we work 
collaboratively with the EPA and others to provide those 
resources so that, as you know, we have a Colorado solution.
    Mr. Tipton. And we have a Colorado solution. Part of your 
job is to make sure that the people of the state of Colorado--
and we obviously have a concurrent responsibility to our 
neighboring states, as well, that the water is going to 
actually be safe.
    Does it concern you when we hear that, as Chairman Bishop 
noted in follow-up to my question, that they have zero 
engineers at the EPA, that they were up working on a mine that 
they said had the high potential to be able to blow out? Would 
the state of Colorado have handled it that way?
    Dr. Wolk. It concerns me, but I am not sure that does not 
mean that engineers were not involved in some capacity. So 
not----
    Mr. Tipton. You are in the government. It is your job to 
have some actual oversight. Wouldn't it have been prudent for 
the EPA to have had their engineers to be able to have the 
oversight, to be able to make some good choices before we had a 
catastrophe?
    Dr. Wolk. I do not know how they structure or operate, and 
whether they rely on other resources to provide that 
engineering----
    Mr. Tipton. But you would handle it very differently, as 
the state of Colorado?
    Dr. Wolk. As I said, our department has its own engineers, 
depending on the situation.
    Mr. Tipton. Right. You know, when we were talking--I would 
like to follow up on my colleague, Mr. Pearce's, comments 
there. If you had an unlimited budget, what do we do, going 
forward, given what we have seen out of the Gold King Mine? 
Would you be supportive of a Good Samaritan legislation?
    Dr. Wolk. Well, I serve at the pleasure of the Governor, 
and so I am not sure it is my position to say, but I know the 
Governor and our congressional delegates in the past, and most 
of the western states, have been very active in trying to 
promote and support Good Samaritan legislation to help address 
these kinds of situations.
    Mr. Tipton. Councilman Olguin, would you describe a little 
bit some of the challenges and the economics for us in maybe a 
little more depth that you are facing, as a Southern Ute Tribe, 
based off of the EPA spill, and how it is impacting us in 
southern Colorado, and for you, specifically?
    Mr. Olguin. Well, economic impacts for us, aside from any 
cost that we have incurred, is still to be determined, 
particularly when you have this particular area of Durango, 
Silverton, the Four Corners, southwest Colorado, and even New 
Mexico. You know, it is a tourist area. For us, some of our--
well, our casino, as an example, the same people that visit 
Durango, possibly visit Silverton, the Four Corners, are the 
same people that visit us.
    Particularly, when you have the world news saying, ``Here 
is a toxic waste site,'' well, it scares people. People cancel 
reservations, cancel trips. The economy goes down, based on 
that. I think that is something we have to really look at, what 
really was our impact, when it comes to those economic events 
that happened because of the spill.
    Mr. Tipton. Great. Thank you for being here. Thank you, Mr. 
Chairman.
    The Chairman. Thank you. Mr. Lujan.
    Mr. Lujan. Mr. Chairman, thank you so very much, and to 
you, Chairman Bishop, Chairman Chaffetz, all the members of 
both committees, for allowing us to be here, members that are 
not on this committee. I thank you so very much for holding 
this critical hearing.
    To all the witnesses here, I want to thank you for taking 
time away from home and responsibilities that I know are 
pressing, so that you can be here to testify on what needs to 
happen to make people whole; to make sure that there is 
adequate response and real communication between each and every 
one of you and the people that we are so honored to represent; 
and how we can prevent this from happening again in the future, 
where there are several pieces that we have been able to 
identify.
    I want to associate myself with the comments and questions 
that Cynthia Lummis, our colleague from Wyoming, shared with 
the line of questioning that was with EPA Administrator 
McCarthy, as well.
    One of the points I want to make, Mr. Chairman, I do not 
know if this has been shared, but there is a memo that came out 
from the U.S. Environmental Protection Agency Region 8 dated 
August 17, 2015. If we may be able to submit this into the 
record?
    The Chairman. Without objection.

    [The information follows:]

             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                REGION 8

                          1595 Wynkoop Street

                         Denver, CO 80202-1129

                           Phone 800-227-8917

                          www.epa.gov/region08

                            August 17, 2015

Ref: 8EPR-ER

MEMORANDUM

SUBJECT:  Gold King Mine [REDACTION]

FROM:     On-Scene Coordinator [REDACTION]

TO:         Site File

The following is a partial chronology of events from the Gold King Mine 
Release incident that occurred on August 5, 2015, and covers 
approximately the first 48 hours of the incident. I was in the Denver 
EPA Office serving as phone duty officer. I received the notification 
from the National Response Center and found two related e-mails on the 
Region 8 RRC e-mail box (e-mails attached) from CDPHE. All other events 
noted below were based on conversations with others such as the EPA OSC 
at the mine site, EPA employees serving in the REOC during the 
subsequent days of the incident, conference calls with stakeholders 
such as La Plata County, and written information from EPA's START 
contractor and an e-mail from personnel at the Colorado Division of 
Reclamation, Mining and Safety (DRMS).

8/5/2015

     Release occurs (10:51 a.m.).

     Safety of on-site personnel is secured.

     The road at the mine site was destroyed and the crew was 
            trapped with no cell phone coverage. The EPA crew radios to 
            an EPA ERRS contractor who was off-site to notify him of 
            the situation. The contractor finds the DRMS team who was 
            off-site. EPA and DRMS communicate via radio (approximately 
            11:45 a.m.) and the OSC instructs DRMS to make 
            notifications.

     11:50 a.m. The EPA OSC and the ERRS contractor response 
            manager left the Gold King Mine on foot to get picked up 
            and driven to an area with phone reception to notify 
            authorities. The START contractor stayed at the mine adit 
            area to monitor the mine for additional surges of water and 
            to provide support to the ERRS operator rebuilding the 
            road.

     12:20 p.m. The ERRS contractor began reconstructing the 
            exit road from the site to help demobilize the equipment, 
            vehicles, and personnel.

     CDPHE is notified by DRMS (12:40 p.m.).

     CDPHE makes notifications to Durango, San Juan Basin 
            Health Dept., and water intakes, and notifications are 
            complete by 1:39 p.m. The EPA Phone Duty Officer also 
            notifies Colorado downstream water intakes (the same ones 
            that CDPHE notified) later in the afternoon. The DRMS e-
            mail indicated that CDPHE was supposed to ensure 
            agricultural users were also notified.

     DRMS notifies the National Response Center (12:27 p.m.). 
            The NRC makes notification to the EPA Region 8 phone duty 
            officer. (NRC reports are automatically forwarded to a 
            number of other agencies including CDPHE, Colorado 
            Information Analysis Center, U.S. Department of Interior 
            which includes the U.S. Fish & Wildlife Service, and 
            others).

     The DRMS e-mail states that they coincidentally met the 
            San Juan County Sheriff as the release was flowing down 
            Cement Creek at approximately 12:47 p.m.

     There is an EPA and contractor team in the area for 
            another project and they are familiar with Animas River 
            sampling locations. They are diverted to the incident and 
            begin collecting river water samples (first round collected 
            at 6 p.m., second round near midnight, another round the 
            following morning).

     The plume reaches Silverton.

     EPA issues first press release (11:26 p.m.).

8/6/2015

     EPA Region 8 stands up the REOC (10:00 a.m.).

     EPA Headquarters, Region 6 and Region 9 are notified 
            (11:00 a.m.).

     The Animas River is closed to recreational users (there 
            was coordination with local agencies and ATSDR to make this 
            decision at approximately 10:30 a.m.; EPA saw an official 
            printed release later in the afternoon).

     EPA Region 8 Acting Water Program Director confirmed that 
            the State had notified water users the previous day.

     The OSC met with the Town of Silverton at 11:00 a.m. He 
            was also going to meet with La Plata County/Durango at 2:00 
            p.m.

     EPA Region 8 conference call with the La Plata County 
            Emergency Manager around 11:00 a.m. or so. He reported that 
            major irrigation users had shut their head gates.

     The Durango Treatment Plant is secure per reports from the 
            EPA Water Program (3:45 p.m.).

     Conference call with EPA Region 6 in the afternoon before 
            2:00 p.m. They reported that their Water Program had 
            contacted New Mexico.

     The plume reaches Durango (late afternoon).

     EPA deploys an additional OSC, two START contractors, the 
            ASPECT plane (Airborne Spectral Photometric Environmental 
            Collection Technology), and Community Involvement 
            Coordinator personnel (varied, beginning at 12:30 p.m.).

     EPA issued SitRep (approx. 3:30 p.m.).

8/7/2015

     ASPECT flyover (initiated at 7:30 a.m., found extent of 
            plume at 8:30 a.m.; lat/longs received, map pending).

     Coordination call with R6, R9 and HQ. Region 9 was 
            planning to sample at the Navajo Reservation.

     Preliminary results for sampling and monitoring is 
            expected to be received on this day.

     As of 8:30 a.m. the plume had not yet reached New Mexico.

     OSC in the field reports that private residential wells 
            were showing yellow color and requests ERRS support for 
            alternative water (distribution began that evening).

     EPA requests information from USGS regarding a stream 
            gauge on Cement Creek and USGS reports that the release was 
            larger than 1,000,000 gallons.

     Region 8 receives a call from FEMA R8 because their tribal 
            liaison was getting calls from the Navajo Nation and EPA 
            Region 8 provided Region 9's OSC contact info to FEMA.

     EPA Region 8 holds call with the Region 8 Regional 
            Response Team (including the U.S. Department of Interior 
            from R6 and R8, and multiple Forest Service 
            representatives).

Attachments
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                                 .eps__
                                 

    Mr. Lujan. What this states is the timeline associated with 
the communications that went to all the communities. What this 
states is that on August 5, 2015 at 10:51 a.m. the release 
occurs. There is then a series of other items. You have to get 
to August 6, 2015, the next day, 24 hours later, where it 
states at 11:00 a.m. EPA headquarters Region 6 and Region 9 are 
notified. I am not even talking about the notification to the 
state of New Mexico, what happened up in Colorado, to the Ute 
Tribe and to the Navajo Nation. We have a problem here that has 
to be corrected.
    One of the areas--Secretary Flynn, I know I shared this 
with you yesterday, I have shared this with Secretary McCarthy, 
I mentioned this to my colleague, Mr. Tipton out of Colorado, 
as well--is for us, Mr. Chairman, to potentially look at the 
system that is put in place today for the Amber Alert System 
for abducted children, as well as the NATIONAL Weather System 
alerts when there is a system like this, so we have alerts on 
there.
    Do you think, Mr. Secretary, that that would be helpful in 
pushing out as much information as we can--Secretary Flynn and 
President Begaye, especially, as constituents? What are your 
thoughts there, if there would have been real time, instant 
notification? Would that have been beneficial?
    Mr. Flynn. Congressman Lujan, absolutely. I think that is a 
great idea.
    Mr. Lujan. And, Mr. President, rapid communication, if 
there is an urgency like this, that did not occur, and we need 
to correct that. Is this something that would make a difference 
in being able to prepare for anything that may be coming our 
way?
    Mr. Begaye. Absolutely. It would help. In this case, we are 
the ones that took action to close irrigation gates, not the 
EPA. We are the ones that made those decisions based on 
information that came down to us. So, if we had received that 
quicker, we would have responded better and prepared better; 
and our people would have been ready, rather than being thrust 
into a state of uncertainty, yes.
    Mr. Lujan. I appreciate that. I also want to thank 
Councilman Olguin for our brothers and sisters up in Colorado 
at the Ute Tribe, for alerting many of the communities in New 
Mexico. It was through the leadership of being good neighbors 
that you alerted some of the neighbors in New Mexico, sir. So, 
to you and to the tribal leaders, just thank you so very much.
    Secretary Flynn and President Begaye, is there anything, as 
you sat through this hearing today--and I know it was a long 
one--with all the questions and testimony today and in the 
Senate, with the several hearings that you have heard, is there 
anything that is coming out of the EPA that you have concerns 
with, or that you heard today that you have concerns with?
    And what is it that we can do to make sure that there is 
someone from headquarters appointed, Mr. Chairman, from the EPA 
to be corresponding directly with the state of New Mexico, 
state of Colorado, the Ute Tribe, Navajo Nation as well, that 
you would like to see done that maybe we can convey?
    To give the rest of my time--I have a little bit under a 
minute. Mr. Secretary, if you could quickly jump on that, and 
maybe submit things in writing; then we will visit with the 
President of the Navajo Nation, so we can fulfill all of those 
requests, and make sure that we are able to convey that.
    The Chairman. I have been giving extra time. You have 2 
minutes.
    Mr. Lujan. Thank you, Mr. Chairman. I appreciate that, sir.
    Mr. Flynn. Congressman Lujan, I think that, based on a lot 
of the discussions and debate that I have seen, the real 
question that needs to continue to be pressed, which I have 
heard a lot of today, is what types of institutional reforms 
can we put in place, as a result of this incident. So, things 
like early notification, ways to improve that, I think that is 
really focusing on how we can evaluate the performance and move 
forward.
    I think there is a lot of PR and spin that is coming out to 
try to put a bow on this and move on, instead of really asking 
the difficult questions on institutional reforms; so that is a 
concern I have.
    I also have a major concern about the structure of the 
``independent investigation'' being conducted by the Department 
of the Interior. I do not truly believe that is an independent 
investigation. It would be difficult for me to investigate 
another member of my cabinet, working under Governor Martinez. 
I think that a truly independent investigation should occur, so 
that the great questions that will bring about institutional 
improvements can be asked, and we can make government work 
better. We all have a stake in government working better and 
learning from this.
    Mr. Lujan. Thank you very much.
    Mr. Begaye. Congressman Lujan, thank you for the questions.
    Number one, do not let this happen again--Superfund site, 
clean that thing up, do not let yellow water come down into our 
river again.
    Second, on Standard Form 95, we need the U.S. Attorney 
General's opinion saying that that waiver is not final and you 
can continue to submit claims for damages. We need that 
opinion. We do not trust the word of Administrator McCarthy. We 
need a legal opinion from the U.S. Attorney General, so that we 
can feel much better about telling our people that they can 
continue to submit the form, and also that they be compensated 
continuously until all of this is resolved.
    Also, dilution is not the solution; and that is what the 
EPA's term of cleanup is. It is not ours. They need to get out 
there, remove soil that is contaminated, remove that yellow 
soil from our land, and make sure that it is clean. Just 
diluting it by releasing more water from the dam is not the way 
to clean up the spill that has taken place on our land. Thank 
you.
    Mr. Lujan. Thank you and, Mr. Chairman, again, for the time 
and your thoughtfulness. I look forward to working with you to 
address all these issues. We need to get to the bottom of this.
    I am also working on a piece of legislation with my 
counterparts in the U.S. Senate from New Mexico that would ask 
and require for expeditious carry-out of the claims process, 
and for the establishment of those offices in these 
communities. That way, there can be technical assistance to the 
individuals that will be also asking for support there.
    So thank you so much, again, for the indulgence, Mr. 
Chairman. To the witnesses, thank you for your testimony and 
for being here today.
    The Chairman. Thank you; but we will not treat you 
seriously until you come back to the committee.
    Mr. Lujan. Yes, sir.
    [Laughter.]
    The Chairman. Mr. Palmer, do you have questions?
    Mr. Palmer. Thank you, Chairman Bishop. Secretary Flynn 
made the point that, though the water levels rose, the plume 
moved downstream. When it receded and water levels returned to 
normal level, it left contaminated sediment.
    My question to the tribal leaders, Mr. Begaye and Mr. 
Olguin, is--does any of this impact any of the sacred places, 
places sacred to the Navajo Nation or to the Southern Ute 
Tribes?
    Mr. Begaye?
    Mr. Begaye. Thank you, Congressman Palmer. Pollen from corn 
is sacred to us. It is used for early morning prayers. It is 
used in ceremonies, extensively; and by the corn maturing 
quicker, it has hurt the pollen from germinating, from 
maturing. Our people are very concerned that they are not going 
to have enough pollen for their ceremonies, for their morning 
prayers, to be used in that way.
    Also, you have all of these plants that our medicine people 
use that grow along the river. Those are being tainted, and 
they are no longer wanting to gather these herbal plants that 
are used in ceremonies along the river.
    So, yes, it has definitely damaged that part of our culture 
that is sacred to us.
    Mr. Palmer. Mr. Olguin?
    Mr. Olguin. Well, I would have to say that, when we look at 
the Ute ancestors, those mountains were our homelands. So, I 
think it starts right there, when the mining industry came 
about and we were removed from that area.
    Where we are located now, the water is a sacred source of 
life for us--water produces life. That is one of the eight 
rivers that crosses the reservation; and, of course, we do have 
cultural sites along the river. We do not make those public by 
any means, but the people that live along the river, the tribal 
people, I mean, this is sacred in all aspects.
    Mr. Palmer. There really is not any way that you could put 
a price on the damage in that regard.
    Let me ask you this, and this question will go to the 
gentlemen from Colorado and New Mexico, as well; but I will 
start back with Mr. Begaye. Considering this in terms of your 
culture and what is sacred to you, if the EPA were to declare 
these Superfund sites, what would the long-term ramifications 
be in that regard?
    Mr. Begaye. For us, they need to clean up the mines that 
are up there; because if not, another blowout will occur, as we 
were told when we were standing alongside the person that 
actually was working the backhoe when the blowout occurred. He 
was saying there are other mines on the other side that are 
ready to blow out. So, we do not want that to occur again and 
again and again. And if it does, it will really hurt our sacred 
areas, our sacred plants, and our people's lives will be 
disrupted continuously.
    Mr. Palmer. Mr. Olguin?
    Mr. Olguin. At this point it is probably going to be hard 
for us to say, but I guess cleaning up the river, cleaning up 
the water, it is of utmost importance.
    Mr. Palmer. I will let Dr. Wolk answer next, and I have a 
final point, and we will be out of here.
    Dr. Wolk. Just on the notion or the decision to make it a 
Superfund site, it is a little bit more complicated, because 
the local community, obviously, has a very large voice in that, 
as well as the state. We have very successful examples of 
Superfund sites that have been restorative, and have a 
sustainability plan now going forward. So, it is certainly a 
viable option.
    Mr. Palmer. Mr. Flynn, Secretary Flynn?
    Mr. Flynn. Congressman, I think Superfund sites certainly 
have a place in environmental cleanup. However, I do not think 
that Superfund is really designed to solve all of the problems. 
In fact, when you have a responsible party who is doing work, I 
think Superfund adds levels of bureaucracy that can actually 
slow down environmental cleanup projects.
    I think Superfund is most effective when there is not a 
responsible party who is actually there doing cleanup work. We 
have 14 Superfunds in our state. It can absolutely be used 
effectively, but there is a huge fuel spill that we are 
cleaning up in our largest metropolitan area, where we have 
avoided designating it a Superfund site, and we have actually 
moved much faster by not--I do not think it would be 
appropriate to be a Superfund site, but we have a responsible 
party, and we have been able to get a lot more work done by not 
declaring it a Superfund site.
    Mr. Palmer. If the Chairman will indulge me just for a 
final statement here. My sense of this would be it would be 
beneficial to all of you to avoid a Superfund site because of 
what it is going to do, in terms of people viewing your tourist 
sites, property values, and things of that nature.
    I think the most important thing is something Secretary 
Flynn touched on and that, in the previous hearing, Congressman 
Bruce Westerman touched on--and that is making sure that 
whoever is dealing with the cleanup is qualified, that they 
have the engineering and technical expertise. You just do not 
send anybody out there with a backhoe to do this.
    Thank you, Mr. Chairman. I yield the balance of my time.
    The Chairman. Thank you. Let me--oh, Mrs. Lummis, do you 
have some questions for these witnesses before I do mine?
    Mrs. Lummis. Thank you, Mr. Chairman. I do.
    The Chairman. Go for it.
    Mrs. Lummis. I appreciate your accommodation. Thank you all 
for attending. I, of course, had an opportunity to ask Director 
McCarthy some questions this morning, and I would like to pose 
some of those same questions to you. I am going to start with 
Mr. Flynn.
    Could you explain to me how the EPA's lack of communication 
affected your ability to respond?
    Mr. Flynn. Sure. You know, Congresswoman, I guess I have 
already discussed kind of the short-term issues; but, really, 
the bigger problems occurred as we were working through the 
emergency. We were constantly having to fight to get 
information and data from EPA. You know, the more information 
we could receive, the quicker we could make decisions about 
when it would be appropriate to start withdrawing water from 
the river again, for example.
    So, the lack of timeliness with respect to providing data--
we had all kinds of excuses, but the bottom line is we just 
really needed that information in order to help develop a 
response plan. For some of these issues, we needed the supply 
of water for the public water systems; some of the smaller 
systems were extremely limited, so they had a couple days of 
reserve. In order to really make decisions, we had to be able 
to plan out 7, 10 days, just to mobilize people to actually put 
physical infrastructure in place to create an alternative 
supply, a backup resource.
    So, not having data in the first couple of days, and then 
continuing to have to make that fight, put us in a position 
where we had to take very conservative actions. In one case, we 
had to actually lay pipe and connect one system, because we 
were not sure we were going to be able to allow the system to 
withdraw from the river because of an absence of information.
    Mrs. Lummis. OK. Councilor Olguin--and excuse me if I 
mispronounced your name--welcome to our committee. Could you 
tell us generally how the disaster has affected the Southern 
Ute Tribe?
    Mr. Olguin. Well, generally, the way I can express it is, 
of course, we have to respond to it. First and foremost, we 
have to deal with the disaster by having to implement our 
emergency management plan and our team, and start incurring 
costs to address our needs for our membership. That is probably 
the biggest thing, that hit us right away. Of course, you never 
plan for a disaster, but when you do have the plan, it really 
kicks in.
    Mrs. Lummis. OK. President Begaye, same question. How has 
the disaster affected the Navajo Nation? Also, do you have any 
estimates at this point how much you think it will cost to fix 
it, to return you to the pre-spill condition?
    Mr. Begaye. It has really devastated our nation. Two 
hundred and fifteen miles of the river lies on our nation. A 
third of the population utilizes it in varying ways: ranching, 
medicine, and farming.
    Our farmers, when you look into their faces, and you stand 
alongside them, and they are telling you that they are still 
giving water to a melon that is this size--they know it is 
gone, I know it is gone--but they continue to give water to it, 
because it is like children, their family, a watermelon plant, 
a corn stalk, all of that. They are very closely connected to 
their farm, to their crops, in a spiritual way. It is very 
difficult to place a price on that type of relationship with 
nature that we have.
    So, it will be extensive, and we cannot at this moment put 
a price on it. We really are reluctant to do so in many ways, 
culturally; but we will do that, we will do so.
    Our people are hurting. And when you see EPA pulling out, 
and you have water tanks that are being pulled off, you have 
hay that is not being provided because of the spill that was 
caused by their workers, it is really devastating. At this 
moment, our nation is hurting.
    Mrs. Lummis. Has either tribe received any initial 
compensation for direct out-of-pocket expenses incurred by 
either tribe immediately after the incident?
    Mr. Begaye. Navajo Nation, we have not received a single 
penny yet.
    Mr. Olguin. We have not received anything, but we are 
working with the EPA on a cooperative agreement to be 
reimbursed.
    Mrs. Lummis. So, you are working on something that is in 
the nature of ongoing compensation, or is the Federal 
Government demanding that it be a complete settlement, cutting 
off future reimbursement or compensation for injury? Has anyone 
approached you about those kinds of proposals?
    Mr. Begaye. Congresswoman, thank you. Our leaders in one 
community contacted our office, saying that there is a form 
being passed out by EPA workers--two workers--and we do not 
know what it is or whether we should fill this out or not.
    Mrs. Lummis. OK.
    Mr. Begaye. We got hold of one. The Navajo Nation Attorney 
General, who is also a graduate of Harvard Law, he reviewed it, 
looked at it, determined that this was a final settlement form, 
and that if they filled it out and were compensated, that was 
it. So I got on the radio in Navajo language, explained what it 
was to them, and everyone stopped filling out the forms.
    But, we need an interim form now. We need the Attorney 
General to give us a legal opinion. We will not take the word 
of Administrator McCarthy, that the compensation will continue. 
We do not believe that until we see it in writing, clearly 
spelled out by the Attorney General of the United States.
    Mrs. Lummis. My time has expired, Mr. Chairman. Thank you 
for your accommodation of my questions.
    The Chairman. You are welcome. Mr. Grijalva. You are the 
second-to-the-last question.
    Mr. Grijalva. Thank you, Chairman Bishop. To the Councilman 
and Mr. President, thank you very much for being here. The 
Navajo Nation is rightfully concerned and vigilant about 
contamination related to mining, given the legacy, and how 
members have suffered through the uranium contamination issues 
and other issues. So, Mr. President, your points are well 
taken. Cultural resources, sacred sites issues, are quite 
vital. The San Juan, and assurance that that flow is nurturing 
and not hurtful is essential. Reimbursement and the settlement 
of claims as they appear needs to be expedited.
    Earlier in the questions, one of my colleagues said that 
this incident is now causing distrust with the Federal 
Government, in terms of notification and consultation. I do not 
think it happened `now'. This is a pattern, and I think that we 
need to codify how this notification happens into law. We need 
to codify how consultation happens with Native nations, so that 
there is a process and a checklist, that it is not left to 
somebody's subjective analysis. That is the law, and that is 
what should be followed. So, I want to thank you for bringing 
that today.
    I wanted to ask Dr. Wolk. Describe, if you can, as quickly 
as you can, the condition of the Animas River over the past 
decade or so. Had the water quality been getting better or 
getting worse, as we look at that period of time? Or is that a 
possible question?
    Dr. Wolk. Thank you, sir. I think, over the past 10 years, 
the water quality has been gradually deteriorating, and that is 
using as a resultant the decreased amount of fish in numbers, 
as well as certain species of trout, so mostly, as it relates 
to aquatic life. It has not deteriorated to the point of not 
being suitable for intake for drinking water or for use of 
recreational purposes or irrigation purposes, but certainly it 
has been deteriorating.
    Mr. Grijalva. The present 428 on the priority list, 428 
sites that are being worked on, constructed, reclamation 
issues, that did not tell us. So, whatever a waiting list is is 
really hard to gauge; because until those are done with the 
resources available, more and more can be piling on, waiting 
for an opportunity to get on that priority list.
    I am glad for all the witnesses today. I wish that a 
representative of the National Mining Association would have 
been here, so that we could inquire as to what role the private 
sector should have going down the future, how they feel about 
extraction on public lands and a royalty attached to that 
extraction, so it goes toward those 428 and these incidents 
like what happened in Animas, and how it has affected 
communities across the board.
    In closing, let me say there was a ticking bomb, and that 
was the abandoned mines and the abandoned Gold King Mine that 
affected the Animas. People called the bomb squad. In this 
case, unfortunately, the bomb squad set it off when they were 
trying to diffuse it. My colleagues on the other side of the 
aisle today gather to attack the bomb squad. Our side of the 
aisle very urgently, with everyone involved, the states, the 
Native nations, want to work together to try to diffuse the 
other bombs we know are out there. That is what we are looking 
for in the future.
    I think, before we make the bomb squad the bad guys, let's 
come to some conclusions as to how we go forward, dealing with 
a backlog and a catalog of similar situations across this 
country and across the West.
    With that, thank you very much, and I yield back, Mr. 
Chairman.
    The Chairman. Thank you. I have a series of statements and 
documents that I wish unanimous consent to put into the record.
    [No response.]
    The Chairman. And, hearing no objection, I get to do it.
    Let me be the last to actually ask a few questions to you.
    President Begaye, if I can start with you, has President 
Obama reached out to your tribe, called, talked to you, or 
visited?
    Mr. Begaye. President Obama has been silent. Similarly, he 
closed his door on the Navajo Nation in its greatest time of 
need. So, we have yet to hear from the White House.
    The Chairman. I also have--well, let me go on. Thank you.
    Now, let me clarify one thing. When you were prohibited 
from going closer to the site by EPA, that was on your 
sovereign territory, where they said you could not go any 
further. Is that correct?
    Mr. Begaye. This was up above Silverton, and it was on 
Colorado land.
    The Chairman. All right, thank you. That clarified it.
    Secretary Flynn, the EPA has asserted that they have sought 
to be transparent and work with states in supplying the 
information. Has that really been your experience?
    Mr. Flynn. Chairman, no. I think there is a lot of room for 
improvement by the EPA on this effort. I have a good graph, or 
a series of graphs, that I would like to show you and submit 
into the record.
    This first graph was actually developed by EPA on August 7, 
the Friday right before the plume actually hit New Mexico. This 
was based on information that EPA had taken from Colorado, just 
south of the spill. They quickly put this graph out with a 
message to the public as, like, a PR gesture.

[GRAPHIC] [TIFF OMITTED] T6242.001


    .epsThere are a couple notable things about it. The first 
is that--well, my scientists were insulted by this graph for a 
variety of reasons--the first was that it plotted all the 
metals on a linear scale. So, if you just look at the bottom, 
it looks like lead and cadmium are totally flatlined, like, 
zero; and you cannot really see, but the very bottom line is 
actually two metals that it is representing. They only provided 
dissolved metals when the EPA's drinking water maximum 
contaminant levels are based on total not-dissolved 
concentrations. Also, the graph does not have anything about 
arsenic, which we knew was over 823 times the maximum 
contaminant limit at the time of the spill.

    So, if you look at that graph--and then I had a second 
graph that my staff actually developed, a second series of 
graphs that--I do not know if they are available on the record; 
but this is what would be a logarithmic graph, which is really 
what would be the scientifically valid way to present this 
information.
[GRAPHIC] [TIFF OMITTED] T6242.002


    .epsIf you could go to the final graph, because this really 
illustrates a point. This is actually how you would represent 
the concentrations of lead, using the same exact information 
EPA presented in that first graph, that was EPA's, where you 
saw lead just like it was right at zero, flatlining along the 
line. This last graph shows you the actual concentrations of 
lead from their data; and that orange line shows you what the 
maximum contaminant levels are in the Safe Drinking Water Act.

[GRAPHIC] [TIFF OMITTED] T6242.003


    .epsSo, that was not done by any scientist. That was a PR 
stunt that was done immediately after the plume had hit, based 
on data that we repeatedly asked for and were not provided. I 
do not think any scientist at EPA had any hand in this, because 
it was so insulting to my staff that I just cannot imagine a 
scientist would be involved in this development. And, that was 
the first of a number of instances where I do not think EPA 
certainly was forthcoming with information.
    The Chairman. If those are not part of the record, we will 
make them part of the record under unanimous consent, as well.
    So, there are times that they provided you data in a way 
that is not really helpful. I am assuming there are also times 
when EPA would not provide you data, or important information, 
or excluded you from the response process?
    Mr. Flynn. Yes, Chairman Bishop. On Friday, August 21--this 
was now well over 2 weeks after the spill occurred--we had been 
fighting back and forth for a copy of EPA's sediment sampling 
plan, because like I said before, the plume moves with the 
water column. The water quality is going to rebound. But, 
really, the sediment sampling is what tells you what has been 
left over, and that is critical.
    So, we have been fighting with EPA, and my staff--this is 
on a staff-to-staff level--has been asking for this plan for 
weeks. On August 21, EPA claimed that they could not provide it 
because it contained ``business confidential information,'' and 
raised a number of other excuses. I was incredulous at that 
response; I just cannot imagine that.
    They had also claimed that they were concerned about New 
Mexico's open records law. We have a very broad Public Records 
Act that does not contain the same degree of exclusions that 
EPA's Freedom of Information Act allows; so, they were 
concerned about the breadth of our Public Records Act, and that 
we would be disclosing more information than would otherwise be 
required.
    Those are just a couple of the reasons, and I would be 
happy to supplement the record with documents, if----
    The Chairman. So you guys are too transparent?
    Mr. Flynn. Yes, that was essentially one of the concerns 
that was raised.
    The Chairman. Let me ask you about the Department of the 
Interior, the Forest Service, BLM, Park Service, BIA. What was 
their reaction? Could they have been more helpful?
    Mr. Flynn. On Friday morning about 5:00 a.m., I was in the 
area and I did speak to some local staff, two people there. We 
had asked them to release more water from the Navajo Lake in 
order to help preserve two of the endangered species in the 
area, the Colorado pikeminnow and the razorback sucker. Those 
staffers were great; they kind of acted first without asking, 
my sense is they kind of just acted on their own.
    Other than that contact that we initiated right away, I 
would say Interior's involvement was non-existent, other than 
seeing a press release that they are now investigating. And, I 
do not really understand what they are investigating, because 
the press release did not really provide a lot of information.
    The Chairman. That was one of the reasons why we were 
hoping they would be part of the panel today--and they chose 
not to be--to ask those questions, like what are they actually 
planning on doing somewhere around here.
    Has EPA been any more straightforward with the issue of 
reimbursement of the cost to New Mexico?
    Mr. Flynn. No. Last week, I was really taken aback when 
lower level staffers at EPA reached out to lower level--I am, 
obviously, just referring to the organization chart--these are 
non-management employees. EPA had made some contact to a couple 
of my staffers, as well as a couple of staffers from the 
homeland security, trying to gather information about the total 
costs that were expended related to this. And the Navajo 
Nation, as well as the state of New Mexico, the state of 
Colorado, the state of Utah, and others, are considering legal 
action.
    As an attorney myself, it was very surprising to me that 
they would seek to try to gather this information in that 
manner. I would expect that it would be done at a high level. I 
instructed my staff, and the Governor instructed all of the 
other staff, that communication needs to be flowing through 
leadership, at a kind of leadership level, and that we were not 
going to communicate in that way. It just seemed like kind of 
bad faith. As a lawyer, those are certainly not the tactics I 
would use in litigation, to kind of secretly or quietly try to 
reach out for info without contacting a management-level 
employee.
    The Chairman. Dr. Wolk, let me ask you as well--the EPA 
said that, as far as notification--I am glad that Mr. Grijalva 
kind of summarized that, the problem--that they could have done 
a better job in notification. Kind of a low bar, but did they 
actually notify Colorado, or was it you were fortunate enough 
to have somebody in Colorado who was at the right place at the 
right time that heard it?
    Dr. Wolk. Thank you, sir. We were fortunate enough to have 
a member of our State Department of Natural Resources there at 
the site, who activated our notification system in-state 
through our spill line. So, we were able to follow our protocol 
with regard to in-state notifications for downstream users.
    The Chairman. So, what you really did is you got 
notification by serendipity. New Mexico did not know about it 
until the Southern Utes recognized that. Right?
    And the Navajo Nation, who actually notified you?
    Mr. Begaye. We were notified by the state of New Mexico.
    The Chairman. And then you notified Utah, as well?
    Mr. Begaye. Yes.
    The Chairman. And New Mexico. So, actually, when the EPA 
talks about their notification process, it basically was non-
existent. They did not notify squat. It had to be done by other 
people doing that process.
    We do have one other Member that I think is--I am 
stretching here to see if I can get one other person to ask 
some questions. Is she coming? All right. Let me just kind of 
end and pontificate this, if I could.
    We also have had votes that are called, so we are going to 
end this very quickly.
    I appreciate the notification. I want to also emphasize the 
fact that you have three districts of the EPA that are involved 
in this area. They also were very late in getting notified, the 
people on the ground doing that kind of work, they did not have 
a great notification process, either.
    So, as Congresswoman Lujan Grisham is getting ready, I will 
give her the last chance of asking some questions.
    Let me just say that I have tried to emphasize how 
frustrated that I am that the EPA insisted on having their own 
panel that consumed 3 of the 4\1/2\ hours in which we have been 
here. I do not actually allow that in my committee, because I 
think it is important that the Administration--or any 
administration, actually--sits at the same table with those 
people over whom they make decisions.
    And had your testimony--which I think is riveting and far 
more informative than the last 3 hours--had your testimony been 
given at the same time, we could have had the chance of 
actually going back to Administrator McCarthy and maybe try to 
get at some of the root issues that are here. I think sometimes 
we are saying the same words, but we are not actually meaning 
the same words. That is extremely frustrating to me, and it is 
why I tried to emphasize that so significantly. And it is not 
just Ms. McCarthy, it is the entire Administration that 
believes they have to be separate, and have to go first. I find 
that arrogant, and I find that disgusting.
    So, I want to apologize for the fact that the four of you 
were cooling your heels for so long, because the testimony you 
have given and the questions that you have answered, I think, 
were fascinating. They would have been beneficial, not only for 
all of the Members who were here at the beginning to have 
heard, but it would be good for the entire EPA entourage who 
was here to actually hear the responses that you have given, 
because, in many cases, they are at sharp contrast with what 
EPA is telling us has or has not taken place. That is my last 
rant for the day.
    Ms. Lujan, I will recognize you for the last questions 
before we go vote.
    Ms. Lujan Grisham. Mr. Chairman, thank you very much for 
your patience, and providing me the last word, if you will, 
which is actually quite an honor. I get to start by thanking 
the panel and by all of you being incredibly aware and involved 
in doing everything we can to help clean up, and also look at 
how we mitigate these kinds of issues in the future, and also 
address the long-term impacts.
    I have a couple of questions, and the first is actually to 
our own Secretary of Environment for New Mexico, Secretary 
Flynn. I am delighted to have you here, and I can tell you 
that--and I am sure the committee heard--you were very involved 
from the very beginning. As soon as you received notice, your 
office has been instrumental in assisting the EPA, but also New 
Mexicans, to address these issues and figure out what we do, 
going forward.
    And although the data is showing that the surface water 
contamination is now back to pre-spill levels, we know that the 
concentration of arsenic, cadmium, lead, and many other heavy 
metals actually settled to the bottom of the river; and they 
can be, then, as a result, mobilized, depending upon a variety 
of factors, frankly, at any time.
    While I would love to control--and I am sure you would, 
too--the natural flow of rivers and sediment movement and 
weather conditions, I think it is critical that we prepare for 
the long-term environmental consequences and impacts. We need 
to continue to monitor and to collect data, and to do the 
research, so that we know that we are protecting the long-term 
environmental and health impacts for New Mexicans and the other 
states' surrounding populations.
    Secretary Flynn, I know that you are working with a 
coalition of stakeholders. I want you to tell us a little bit 
more about that, and how I can help you make sure that you keep 
that coalition together to continue their important work.
    Mr. Flynn. Congresswoman, first of all, thank you so much 
for your interest and all of your time. You have been extremely 
generous on every issue that we have ever worked on together. I 
really appreciate that, and I appreciate the question.
    I think we do it the same way that you and I have 
personally tackled some of these issues before, such as the 
fuel spill covering Albuquerque and Kirtland Air Force Base. 
The way that we have tackled that problem is by including local 
communities, including local expertise that we have available 
through our public institutions and our national laboratories, 
and by including local stakeholder groups.
    The state of New Mexico has developed a long-term 
monitoring plan with multi-agencies and multi-groups. We have a 
number of outstanding NGOs in the area, like the Animas 
Watershed Group and the San Juan Soil and Water Conservation 
District. We have the New Mexico State University, New Mexico 
Tech, and the University of New Mexico. We have Sandia National 
Lab, Los Alamos National Laboratory, as well as state 
resources. So, we have the expertise in our state, as you are 
fully aware of. It is how do we coordinate that effort and, 
most importantly, get it funded. So, I think we would like----
    Ms. Lujan Grisham. And your opinion, Secretary Flynn, is 
that if left to its own--and I understand that the financial 
implications for the Federal Government are significant, but it 
is their responsibility--that if we do not push for that issue, 
that there may not be those kinds of investments. Representing, 
as we both do, a very poor state, the notion that we can pick 
up a $200,000 or $300,000 annual effort--and I may not get that 
number right, so correct me and clarify, please--that needs to 
be in their plan back to us, about how they propose to continue 
to monitor and assess the environmental and health impacts of 
the spill.
    Mr. Flynn. Congresswoman, I think that their plan should be 
to support our plan. I really do not think the fox should be 
guarding the hen house here. They created the situation. We 
would never allow a private entity that we are regulating to do 
its own investigation of itself and accept those results. In 
order to really build public confidence in the outcome of the 
long-term monitoring plan, there needs to be an independent 
entity like, you know, multi----
    Ms. Lujan Grisham. Right. I am running out of time, and I 
totally agree with you.
    I just want to make sure that I thank, again, President 
Begaye and your incredible work. I am very upset that the EPA 
took even longer to notify the Navajo Nation. I appreciate the 
work by our two Senators to look at notification legislation; 
and, because I am running out of time, perhaps the best thing 
is that I intend to support you.
    I think there will be many Members of Congress, and I hope 
it is a bipartisan effort, to require the EPA to have much 
better relationships and a government-to-government, 
recognizing the sovereignty of the Navajo Nation. You should 
expect from your Federal Government and the state that level of 
one-to-one collaboration, so that you have your plan, your 
efforts, and your own independent process; and that should be 
respected and supported, sir. You are welcome.
    Thank you, Mr. Chairman.
    The Chairman. Thank you. I am sure private citizens hope 
that same thing will take place. Let me thank the four 
witnesses for being here. I appreciate the long distance you 
have traveled, for how long you have stayed here.
    Your written testimony is part of the record. Your oral 
testimony and answers to these questions were excellent. I 
appreciate the detail in which you did that.
    There may be other questions that Members may have of you. 
We will keep our record open for 10 days. If there are 
questions, we may ask for your written responses within that 
time period, as well.
    Again, we thank you for your testimony. I promise you that 
both committees are not going to let this issue go through the 
cracks. We are going to maintain it until we get some 
definitive answers and some changes before we go forward.
    So, with no other business, and without objection--and 
since I am the only one here, no one is going to object to it--
this committee stands adjourned.

    [Whereupon, at 2:45 p.m., the committees were adjourned.]

            [ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]

Prepared Statement of Todd Hennis, President, San Juan Corporation and 
                      Owner of the Gold King Mine
Dated September 11, 2015.

    My name is Todd Hennis. I am the President of San Juan Corporation 
of Colorado, the owner of the Gold King Mine, and I would like to thank 
the committee for giving me the opportunity to submit testimony 
regarding EPA's Animas spill on August 5, 2015.
    Specifically, I will describe the circumstances leading up to the 
Gold King Mine spill, my experience with the EPA before and directly 
following the incident, and the potential for a much more catastrophic 
incident in the future if a permanent solution addressing root causes 
is not implemented. In addition, I've included my support for 
responsible regulation of the mining industry and the importance of 
domestic mining to the United States.
    First, there are three mines that are critical to this testimony: 
the Gold King Mine, the Mogul Mine, and the Sunnyside Mine.
    San Juan Corp. owns both the Gold King Mine and the adjacent Mogul 
Mine. I have never mined either of those mines. The only work I've 
performed at the Gold King Mine has been at the explicit direction of 
either the Colorado Department of Reclamation, Mining and Safety, or 
the EPA to grade roads or restore ditching. San Juan Corp. has never 
worked on the Gold King portal.
    Both of these mines are directly connected to the neighboring 
Sunnyside Mine owned by Sunnyside Gold Corp. which is now a subsidiary 
of Kinross Gold of Canada.
     the root cause of the animas spill was approved by regulators:
                           the sunnyside mine
    In 1978, mining operations in the Sunnyside Mine led to the 
collapse of an alpine lake into the Sunnyside Mine workings. This 
collapse caused 500 million gallons of water to rush out the American 
Tunnel of the Sunnyside Mine over 3 days. The incident led Sunnyside to 
treat the water that continued to flow from the lake and water created 
by general ground seepage in the Sunnyside Mine and which then flowed 
out the mouth of the American Tunnel.
    In 1996, Sunnyside and the state of Colorado entered into a Consent 
Agreement giving Sunnyside permission to place concrete plugs, or 
``bulkheads,'' in the American Tunnel and a few other parts of the 
Sunnyside Mine in exchange for freedom from potential future 
responsibilities/liabilities related to the bulkheads. In addition the 
Agreement required Sunnyside to perform other cleanup projects in the 
San Juan Mountains. This was pollution trading in all senses of the 
term. The U.S. Solicitor General Office was copied on the settlement 
documents, and EPA was fully cognizant of the settlement.
    At the time of the Agreement, the Gold King Mine was a ``dry'' 
mine, which is to say, there was little to no water draining out of its 
portal.
     first evidence of looming disaster and regulator disinterest:
                             the mogul mine
    In 2000, a large flow of water started coming out of the Mogul 
Mine, and a U.S. Geological Survey person informed me that the water 
contained a very high level of fluorine, an element only found in the 
discharge water from the Sunnyside Mine.
    In 2001, Mr. David Holm, the director of the Colorado Water Quality 
Control Division (WQCD, which had negotiated the mine bulkheading plan 
with Sunnyside Gold Corp.) threatened me with an enforcement action 
over the Mogul Mine discharge. I informed Mr. Holm that the water was 
from Sunnyside, and that he and Sunnyside needed to find a solution to 
the problem. Mr. Holm told me during the second telephone call that he 
had persuaded Sunnyside out of the goodness of its heart to pay for 
bulkheading the Mogul Mine. I informed Mr. Holm that I would not agree 
to this without compensation for the loss of the Mogul Mine resources 
due to the bulkheading. Mr. Holm continued to threaten me with an 
enforcement action.
    By September 2001, the pressure from WQCD became so intense that I 
went back into the Mogul Mine to prove where the water flow was coming 
from, and I had a near fatality attempting to enter the Mine. Later 
that month, I and a Colorado Division of Mining and Geology employee 
entered the mine successfully. We determined the last 300 feet of the 
accessible part of the main drift had a large volume of water flowing 
down from the connection with Sunnyside, and the Mine floor was deep in 
orange metal precipitates. This 300 feet of drift had been dry and 
sandy in 1996.
    I then investigated historical records on the Mogul Mine and found 
two large World War II era exploration drill holes that connected the 
Sunnyside Mine to the Mogul Mine property on a U.S. Bureau of Mines 
map. However, Sunnyside denied any knowledge of the two drill holes. I 
also found a Simons Hydrosearch study commissioned by Sunnyside to 
justify bulkheading of the American Tunnel that stated a large flow of 
water would occur if there was an unknown direct connection through 
faults or other connections from the Sunnyside Mine to the Mogul Mine.
    By late 2001, it was clear that the Sunnyside bulkheading had 
failed and that the problem would only get worse as the level of the 
water pool rose in the Sunnyside Mine. My company received no help, 
encouragement or action from either the EPA or the state of Colorado in 
this matter. Rather I continued to receive threats of an enforcement 
action by the state against the water coming from the Mogul Mine 
portal.
    Consequently, San Juan Corp. filed a lawsuit in San Juan District 
Court alleging water trespass by Sunnyside into the Mogul property. My 
attorney asked me to contact the EPA and ask them to join this lawsuit. 
I telephoned Ms. Carole Russell of EPA Region 8 to ask the EPA to join 
the lawsuit and avert further environmental damage. Ms. Russell 
informed me that EPA would not consider joining the lawsuit under any 
circumstances. I told Ms. Russell that I would send a letter to her 
requesting EPA join the lawsuit. Ms. Russell told me explicitly, ``If 
you send that letter, I will make you truly sorry.'' In the face of 
this threat, I obviously did not dare send the letter.
    Being a small company, I did not have the resources to pursue a 
lawsuit against one of the largest gold mining companies of the world 
(at that time Echo Bay Mines of Canada, acquired by Kinross Gold in 
2004). I had to take the settlement proposed by Colorado WQCD and 
Sunnyside Gold Corp which included bulkheading the Mogul Mine.
    Since then, I have been raising the alarm about the growing danger 
created by the Sunnyside bulkheads as the water backup in the mountain 
continues to rise. This rising water is increasing the pressure on the 
bulkheads and is now much higher than assumed in their original design.
    I have raised this issue in direct calls to Sunnyside owner 
Kinross. I have also written and distributed documents, made 
presentations, and participated actively in public meetings. These 
meetings have been attended by representatives of Kinross, and by a 
wide assortment of regulatory agencies, such as: the EPA, Bureau of 
Land Management, Colorado Department of Reclamation, Mining and Safety, 
and Colorado Department of Public Health and Environment.
   state of colorado signs away its rights to regulatory enforcement 
                           against sunnyside
    By 2002 the last bulkhead was installed in the American Tunnel, and 
in 2003 the Consent Decree issued by the state of Colorado was vacated. 
In vacating the Decree, the state signed way its rights to all future 
regulatory enforcement against Sunnyside.
                         epa monitors situation
    After the Consent Decree was vacated, the EPA monitored the 
situation by taking water samples. They also evaluated it for Superfund 
status, but it failed to meet the criteria. At any point in time, they 
could have pursued non-Superfund measures against Sunnyside Gold Corp. 
and its owners, but they did not. I can only assume they were more 
interested in working under a Superfund designation than they were in 
solving the problem quickly.
                 conditions worsen: the gold king mine
    In 2005, I became the owner of the Gold King Mine through the 
resolution of a bad loan. The Gold King was well above the advertised 
maximum height of the Sunnyside Mine pool and should have been ``dry'' 
with negligible discharge of 7 gallons per minute. What I didn't know 
was that the Gold King discharge had increased to 40 gallons a minute. 
From that point in time until the EPA started work on the Gold King in 
2014, the water flows steadily increased to approximately 250 gallons 
per minute of heavily metal laden water.
    The metal content of this water show that the water is coming from 
the Sunnyside. In an estimated 98 percent of the mineralization in the 
Gold King Mine there is 1 percent or less base metal content. However, 
the water flowing from the Gold King portal was very high in the base 
metals zinc, cadmium, lead, copper and manganese. These are the metals 
that are present in very large quantities in the Sunnyside Mine.
    In addition, maps and public documents tell us that Sunnyside Gold 
Corp mined the 2150 vein of the Sunnyside Mine into the Gold King 
property in 1989-1991. These mine workings were left open and are now 
filled with the Sunnyside Mine pool water, which is now flowing either 
by faults, fissures, or drill holes. There are 29 drill holes from the 
Sunnyside workings across the Gold King property or from the end of the 
Gold King 7 level toward the Sunnyside Mine. In addition, the end of 
the Gold King 7 level is only approximately 1,000 feet from the 
Sunnyside 2150 vein workings. The fact is that the mountain that hosts 
the Sunnyside, Mogul, and Gold King Mines is a ``swiss cheese'' of 
faults, fissures, fractures and exploration drill holes.
         the epa uses coercion to gain access to the gold king
    In 2011 the EPA requested access to the Mogul, Gold King, and other 
properties that I own in the area. I refused for fear they would create 
a pollution disaster. This worry came from the fact that the EPA had 
illegally dumped thousands of tons of highly reactive mine dump 
material down the shaft of a mine I own in Leadville, CO. This material 
caused the metal readings in the water flowing through the Leadville 
Drainage Tunnel to skyrocket.
    On May 12, 2011 the EPA issued ``Administrative Order Directing 
Compliance with Request for Access, CERCLA Docket No.: CERCLA-08-2011-
0008'' against Todd C. Hennis, San Juan Corp., and Salem Minerals Inc. 
The Order called for fines up to $37,500 per day as long as I refused 
them access.
    I had to surrender and grant access to the properties to the EPA, 
together with EPA taking environmental and operational management of 
the sites. The Access Agreement has been renewed at least twice and 
expires December 2015. I now have approximately 10 settling ponds 
created by the EPA over three locations on my lands, with unknown 
environmental consequences.
    epa work begins in earnest on the gold king and disaster strikes
    In 2014, the EPA started to work on the Gold King portal and then 
they stopped work due to the coming of winter. The EPA placed a very 
large amount of rock and dirt over the Gold King portal to prevent a 
``blowout'' during the winter. I believe they blocked off the discharge 
pipes at that time, which caused a large amount of water to back up 
behind the backfill.
    When the EPA resumed their work in August 2015 the backed up water 
blew out, sending 3 million gallons of metal laden, orange water 
downstream in a rush.
    While the emergency team on site has been doing a good job 
addressing the blowout, the situation should never have occurred in the 
first place. Contrary to previous EPA testimony before another 
congressional committee, the blowout was not an act of nature. It was 
an act of man, specifically created by the actions of the EPA at the 
Gold King site.
                           current situation
    The Gold King water flows now appear to have increased to 600 
gallons a minute as a result of the blowout. I believe the sudden 
release of the water from the Gold King portal caused a flow to further 
open a fault connecting the Sunnyside and Gold King workings, by 
eroding the clay in the fault and increasing the flow directly from the 
Sunnyside Mine into the Gold King 7 level workings.
    As the EPA Access Agreement expires in December, 2015, I am 
attempting to negotiate a full settlement agreement with the EPA to 
lease them the latest site of the settling ponds to treat Gold King and 
other potential waters for a period of time.
    In addition, I see increasing environmental danger caused by the 
bulkheading of the Sunnyside Mine. The waters of the Sunnyside Mine 
appear to have risen to at least twice the height of the mine pool for 
which the Sunnyside bulkheads were originally engineered. I am very 
fearful that the estimated billions of gallons of heavily metal laden 
waters impounded behind the bulkheads could be released by a bulkhead 
failure due to a seismic event or just from hydrostatic pressure. If 
such a release happens, the water volumes could be on the order of 
1,000 times greater than the water released by the EPA at the Gold 
King. The effects on the Animas, San Juan and Colorado River systems 
would be catastrophic.
                              the solution
    The only solution to the environmental problems created in the 
American Tunnel of the Sunnyside Mine is for the EPA, the state of 
Colorado, and Kinross to admit that bulkheading the American Tunnel has 
been a failure. They need to carefully draw down the Sunnyside Mine 
pool and to treat the water resulting from the drawdown.
    In addition, a great deal can be done to prevent water inflows into 
the Sunnyside Mine, using common industry practices in use since the 
1990s.
                               in summary
    The EPA has known all of this from 2001-2002. Instead, they allowed 
the state of Colorado to enter into a pollution trading settlement with 
Sunnyside Gold Corp., and they allowed this situation to steadily 
worsen over time. I almost lost my life due to the waters from the 
Sunnyside Mine Pool, and EPA was lucky no one got killed in the August 
5 blowout they triggered. We might not be so lucky when the bulkheads 
ultimately fail at the American Tunnel. The damage to the Colorado 
River system and the downstream users has been catastrophic.
                in closing, my perspective on regulation
    In spite of this story of disaster, I am a believer in responsible 
enforcement of responsible regulations. More regulation would not have 
prevented the Gold King blowout. Proper action by either the state of 
Colorado or the EPA against Sunnyside Gold Corp. would have prevented 
the situation in the first place.
    I include this perspective in my statement because it is imperative 
that the United States retain access to its strategic mineral 
resources. Today, American industry is heavily dependent on strategic 
metals imports, including the green tech, high tech, and national 
defense industries. To make matters worse, most of those imports come 
from China. We can't afford to shut down mining in this country. The 
Gold King may contain the largest, most accessible source of the metal 
tellurium in the United States. Tellurium is the fifth rarest metal on 
the planet and is the critical element for thin film solar panels and 
other applications.
    This concludes my testimony as president of San Juan Corporation, 
owner of the Gold King and Mogul Mines.

                                 ______
                                 

                      Task Order Statement of Work
               EPA Region 8 ERRS Contract No. EP-S8-13-02
                   Environmental Restoration, L.L.C.
                                06/25/14

Name: Gold King Mine

Task Order No. 051

Site Name: Gold King Mine

Superfund Site ID (SSID): 085M (OU01)

Federal Project Number (FPN): Not Applicable

City/County/State: Twp. 42N, R7W, NMPM, San Juan County, Colorado

Removal Type: Time Critical Removal

Funding Source: Removal Assessment

Anticipated Start Date: 07/07/2014

Anticipated End Date: 12/01/2014

The conditions at the Gold King Mine present an endangerment to human 
health and the environment and meet the criteria for initiating a 
removal action under 40 CFR section 300.415(b)(2). All activities 
directed by EPA's On-Scene Coordinator must remain consistent with The 
National Oil and Hazardous Substances Pollution Contingency Plan (40 
CFR 300).
Background
The Gold King Mine location in Twp. 42N, R7W, NMPM, San Juan County, 
Colorado is characterized by a mine discharge that is a significant 
contributor of manganese, copper, zinc and cadmium into the Cement 
creek drainage of the Animas River watershed.

The Gold King Mine has not had maintenance of the mine working since 
1991, and the workings have been inaccessible since 1995 when the mine 
portal collapsed. This condition has likely caused impounding of water 
behind the collapse. In addition, other collapses within the workings 
may have occurred creating additional water impounding conditions. 
Conditions may exist that could result in a blow-out of the blockages 
and cause a release of large volumes of contaminated mine waters and 
sediment from inside the mine, which contain concentrated heavy metals.

The Division of Reclamation, Mining and Safety (DRMS) performed work 
under a bond to stabilize the existing adit opening to allow mine water 
drainage. The flow exits the mine through a culvert pipe and enters a 
concrete flume on the waste dump surface and flows to half pipe culvert 
eventually discharging to the North Fork Cement Creek. The existing 
conveyance channel shall be protected and maintained during the work. 
If it becomes necessary to remove these drainage features, then 
suitable measures must be installed to control flows during the work. A 
replacement conveyance system is required to be installed after the 
portal and underground work are completed.

It is proposed to re-open the Gold King Mine portal and workings to 
investigate the conditions to assess the ongoing releases. This will 
require the incremental de-watering and removal of such blockages to 
prevent blowouts. The work is intended to take place in September-
October, 2014.

In addition, the secondary purpose of the work is to attempt to 
identify and characterize specific water flows into the mine and 
evaluate potential means to mitigate those flows if possible.
Objectives
The work will be conducted by qualified contractors with the assistance 
and cooperation of the landowner, San Juan Corp. In addition to 
compliance with applicable OSHA standards, the work is to be conducted 
in compliance with appropriate Mine Safety and Health Administration 
(MSHA) regulations inclusive of establishing a safe underground working 
environment for personnel and the rehabilitation of underground 
workings and escapeways. (Note: MSHA regulations are not applicable to 
inactive mines; however certain standards are relevant to the propose 
work.)

All work will be performed under the conditions as described in an 
approved Work Plan to be submitted to the OSC for approval that will be 
prepared by the Contractor and submitted to the Agency before mine 
rehabilitation work begins.

The purpose of this Removal Work is to complete the following tasks:
Site Preparation:
Roadways and staging areas will be prepared to allow for safe access to 
the work area for heavy equipment and vehicles. Building debris and 
structural hazards will be removed or secured to eliminate physical 
hazards associated with such.

Water management systems will be set up and operational before any 
construction work begins. Initial measures must include standard best 
management practices (BMPs) for stormwater run-off along roads 
requiring improvement. Mine water management is required to prevent 
additional impacts from release during performance of work under this 
scope. Appropriate plans to manage the water must be developed and 
included in the work plan.
Portal Rehabilitation:
Engineering specifications and geotechnical assessment of the 
structural requirements to stabilize the portal structure and 
underground support systems must be provided. The appropriate 
engineered specifications must be developed including typical designs 
for structural support systems (e.g., steel sets, and arch supports and 
timbers), identify the materials and construction requirements for 
structural supports. In addition, specify the anticipated approach for 
removing overburden, debris and re-establishing a safe structure that 
can be used for entry and egress and secured when not in use. This 
includes installing a portal gate with a secured locking system.

Measures will be taken to control water and metal precipitate sludge 
and sediment that are impounded behind any blockage at the portal or in 
the mine. This will include the treatment of surge water discharge as 
necessary to prevent an uncontrolled release and impact to surface 
water.
Underground Work:
Adit rehabilitation includes removing the collapsed structures and 
colluvial overburden blocking the historic adit opening. This must be 
performed by an experienced contractor with required mine safety 
training for working underground. Standard measures for communication, 
ventilation and power will be provided for crews as necessary.

Collapse blockage material removal will be performed in a controlled 
manner in order to control the rate of release of water and allow for 
appropriate treatment and sludge management. This is to include the 
ability to pump water from behind the blockage and lower the water 
level in a controlled manner before the blockage is destabilized by 
removal of material.

This scope includes the plan to rehabilitate as far in as 75 feet inby 
of the portal opening. Underground conditions are uncertain, and the 
amount of blockage is not known. The initial objective is to establish 
a portal shed structure for safe access to the underground workings and 
continue rehabilitating the workings as needed for 75 feet, if this is 
determined possible. Beyond that point, a determination will be made as 
to what additional work is required to allow safe access into the mine. 
As determined appropriate by the OSC, work may continue on an 
incremental basis to install the necessary structural supports as 
specified.

All materials and equipment necessary to implement this work will be 
present on site and inspected before operations are initiated.
Water Treatment:
A temporary water retention and sludge management pond must be prepared 
and operated, as necessary, on site to manage mine water and sludge 
removed from the adit. This will be used to manage impounded mine water 
and base flows and metal precipitate sludge from the mine workings 
during the construction activities. If necessary, water treatment may 
include pH adjustment and flocculent to assist precipitation/settling 
of elevated metals levels to meet existing water quality in the 
discharge from the mine. (The START contractor is responsible for 
overseeing the water treatment operations and for all environmental 
data, including sampling, associated with the water treatment 
objectives and activities.)
Site Stabilization:
The site work area must be graded and appropriate erosion control 
measures must be in place before demobilizing. This will include 
appropriate BMPs for construction site stormwater controls and post 
construction stabilizations. These are to be specified in the Work Plan 
submitted to EPA.
Reporting
A final report is required to include a description of the work 
performed with detailed information on the distances underground 
accessed and the number of structures installed. A description of all 
materials used in the support structures and quantities of material 
removed and locations where it is placed are required. List all the 
equipment used and personnel involved in the operation. A description 
of the water management system is also to be included. The report is to 
be provided within 60 days of demobilizing.
Data Requirements
All environmental data including site characterization and waste 
characterization, mitigation, and disposal that is collected, 
generated, and used will be documented by the START 4 contractor in 
accordance with the Weston Quality Management Plan (QMP) Sections 2.3 
and 7.0 (May 2013). The ERRS contractor will not be gathering the 
environmental data.

Hazardous categorization of wastes?   No.

Activities Under Contract Statement-of-Work:    The contractor shall 
accomplish the following tasks as required under the Contract:

   1.  Project Planning (SOW II.A.1)

     Provide a detailed work plan to accomplish the project in 
            the most effective, efficient and safe manner based on 
            existing information. This work plan shall, at a minimum, 
            define the types and quantities of cleanup personnel, 
            equipment and materials that will be needed, the proposed 
            project schedule by sub-task, and the estimated cost.

     Provide a detailed Health and Safety Plan to protect the 
            workers on site from the hazards with the contaminants and 
            physical threats associated with the removal actions.

   2.  Containment, Countermeasures, Emergency and Removal Response 
            (SOW II.A.2)

      NA.

   3.  Decontamination, Response Mitigation (SOW II.A.3)

     Provide for appropriate removal of contamination if 
            appropriate, in consultation with the OSC.

   4.  Treatment and Transportation and Disposal Operations (SOW 
            II.A.4)

     Provide for appropriate disposal and transportation of all 
            contaminated debris, if appropriate. Treatment of the water 
            may be required, however will be overseen and managed by 
            the START contractor.

   5.  Restoration and Soil Stabilization (SOW II.A.5)

     Provide for appropriate refurbishment of affected areas, 
            as appropriate and in consultation with the OSC.
   6.  Analytical Services (SOW II.A.6)

      NA.

   7.  Demolition Services (SOW II.A.7)

      NA.

   8.  Construction and Support Facilities in Support of Removal 
            Actions (SOW II.A.8)

     Provide for office trailer, including support equipment, 
            communications, power, as needed.

   9.  Marine Operations (SOW II.A.9)

      NA.

  10.  Trans-boundary Response (SOW II.A.10)

      NA.

  11.  Response Times (SOW II.A.11)

      NA.

  12.  Regional Cross-Over (SOW II.A.12)

      NA.

Deliverables
        Detailed Work Plan            08/22/2014
        Health and Safety Plan        NLT the Date of Mobilization
        Construction & 
        Implementation                N/A
        Daily Work Orders             Daily
        Daily Cost Summary Reports 
        (55s)                         Daily
        Removal Activities Report     NLT 30 days after Demobilization
        Final Daily Cost Summary 
        Report (55s)                  NLT 90 days after Demobilization
Schedule
The work plan preparation is expected to begin on July 7, 2014, and the 
current estimated schedule is to begin work on site is September 3, 
2014. A work plan must be submitted to EPA by August 22, 2014. The Task 
Order expiration is set for December 1, 2014.
Other Task Order Requirements

  1.  Provide for application of Service Contract Act Labor rates and 
            David-Bacon Labor rates in consultation with the RS ERRS 
            Contracting Officer.

  2.  Provide all site cost documentation within 90 days after 
            demobilization date, with the exception of `pending costs'. 
            Use RCMS Windows Version 2.0 for Site cost accounting 
            purposes.

                                 ______
                                 

                             SUMMARY REPORT

    EPA Internal Review of the August 5, 2015 Gold King Mine Blowout

                               8/24/2015

Purpose:
The purpose of this report is to provide the EPA Internal Review Team's 
(Team) assessment of the events and potential factors contributing to 
the blowout from the Gold King Mine (GKM) in Colorado on August 5, 
2015. This report provides the Team's observations, conclusions, and 
recommendations that regions may apply to ongoing and planned site 
assessments, investigations, and construction or removal projects at 
similar types of sites across the country.
Team Charge:
The Assistant Administrator of the Office of Solid Waste and Emergency 
Response (OSWER) charged a subgroup of the National Mining Team on 
August 14, 2015 to conduct a rapid analysis of the Gold King Mine (GKM) 
release and provided them with the following charge:

The EPA Gold King Mine Internal Review Team (Team) is charged with 
conducting an internal review of the August 5, 2015, release of 
approximately 3,000,000 gallons of mine wastewater from the Gold King 
Mine near Silverton, CO. This review will entail developing a detailed, 
chronological description of events as well as identifying potential 
factors contributing to the release. The review may include 
recommendations that regions may apply to ongoing and planned site 
assessments, investigations, and construction or removal projects. The 
review will include:

     A visit, during the week of August 16, 2015, to the Gold 
            King Mine site to observe post-August 5 site release 
            conditions.

     Interviews with the on-site EPA On-Scene Coordinator and 
            other appropriate EPA staff, appropriate contractor 
            representative(s) (e.g., Emergency Response and Rapid 
            Services [ERRS], Superfund Technical Assessment and 
            Response Team [START] contractor), and others, e.g., State, 
            other Federal agency/departmental personnel, as 
            appropriate, to document their recollections of the event. 
            Interviews shall not interrupt response. [See Attachment B 
            for a list of people interviewed.]

     Interviews to be conducted using guidelines to be included 
            in a briefing from the Office of the General Counsel.

     Review of pertinent site documentation, (e.g., work plan, 
            schedule, quality assurance response form, other pertinent 
            technical/engineering/contractual documents/any 
            photographic records) to identify potential factors 
            contributing to the release.

     Potential coordination with the subsequent external review 
            being conducted by the U.S. Department of Interior/Bureau 
            of Reclamation and U.S. Army Corps of Engineers thereby 
            minimizing the impact to response operations.

     Any recommendations to implement at similar sites, both 
            ongoing and new, based on the results of the Team's review.

A senior manager from OSRTI will be identified to facilitate the 
identification of individuals to be interviewed, agencies to engage, 
etc. The Team will develop a preliminary report addressing the 
information above and deliver it electronically to the OSWER Assistant 
Administrator by Monday, August 24, 2015. If necessary, the team may 
also indicate if additional gaps need to be filled, and the timeframe 
it would take to fill those gaps.
Scope of Team Review:
The Team was asked to conduct a one week rapid assessment of the GKM 
Blowout. From August 15 to August 24, 2015, the Team performed a site 
visit, interviewed key individuals, reviewed available information, and 
drafted a report.

EPA's Internal Review Team consisted of the following individuals:

     John Hillenbrand, CEG, EPA Region 9--Team Leader

     Joshua Wirtschafter, Assistant Regional Counsel, EPA Region 9

     Ed Moreen, P.E. Civil, EPA Region 10

     Lisa Price, Geologist, EPA Region 6

     Shahid Mahmud, Environmental Engineer, EPA Headquarters

The following are the attachments included in this report:

     Attachment A: List of documents reviewed by the Team

     Attachment B: List of interviewees

     Attachment C: Map of Mine Workings

     Attachment D: Working Assumptions Diagram of conditions at new 
            Gold King Mine Level 7 Portal

     Attachment E: Gold King Mine Flow Data and Chart

     Attachment F: Report Photos

     Attachment G: Photo log from 2014 and 2015 Removal Investigation 
            activities

In addition, the Team conducted a limited review of internet resources 
to determine if there are existing guidelines or procedures for 
investigating sites with similar characteristics as this site.
Background Information:
The following is the chronology of pertinent site events.

1880s--The Gold King Mine began operation.

Mid-1900s--The Gold King Mine operations ceased; mining had occurred at 
seven (7) different elevations (levels) through three (3) adits: the 
Level 7, Number 1, and Sampson. Historical mine water levels could not 
be ascertained by the team during the review period.

Mid-1900s--The American Tunnel was constructed below the lowest mine 
workings in the area (Attachment C: Map of Mine Workings). It runs from 
the drainage adit discharge point in Gladstone, beneath the Gold King 
Mine and eventually reaches the Sunnyside mine complex approximately 
two (2) miles northeast. During operation of the American Tunnel it 
effectively drained the Gold King and Red and Bonita Mines. It passes 
500 feet directly beneath the Gold King Mine Level 7 adits. Anecdotal 
information puts construction in the early to mid-1900s. A treatment 
plant was constructed to treat the water from the tunnel prior to 
release to Cement Creek. The date of construction of both the water 
treatment plant and the American Tunnel could not be ascertained during 
the review period.

1986--A permit was issued to the Gold King Mines Corporation (Permit 
Number M-1986-013) by the state of Colorado to re-work the historic 
interconnected adits. During the permitted mine operations, another 
adit was driven at the Gold King Level 7 (the Adit) to bypass a 
collapse in the original Gold King Level 7 Adit (the Old Adit).

2002--Treatment of the discharge water from the American Tunnel ceased 
after installation of the last bulkhead. Flow from the American Tunnel 
continued after the installation of the bulkhead at approximately 100 
gallons per minute (gpm). Since closure of the American Tunnel, the 
water quality in the Animas River has degraded progressively due to the 
impact of drainage from the American Tunnel and other newly draining 
adits.

2005--No documentation of flow for the Adit is available before July 
2005. Anecdotal information suggests that the Red and Bonita Mine, 
which did not have any previously documented mine water discharge, 
began releasing approximately 300 gpm of water after the American 
Tunnel closure. The Adit also experienced an increase after the 
American Tunnel closure from no significant flow to flow rates of 
approximately 42 gpm in July and 135 gpm in September.\1\ (See 
Attachment E: Gold King Mine Flow Data and Chart)

    \1\ The Team could not ascertain in the time allowed if flow rates 
represent composite for both the Old Adit and the Adit or just the 
Adit.

2006--Mine water flow rate from the Adit was approximately 314 gpm 
---------------------------------------------------------------------------
1 in October.

2007--Release of mine water from the Old Adit breached the existing 
discharge ditch and saturated the mine waste pile. The saturated 
conditions led to a slope failure that partially blocked access to the 
site and filled the North Fork of Cement Creek with mine waste. The 
quantity of mine water discharged is not known.

2008--The Colorado Division of Reclamation, Mining & Safety (DRMS) 
constructed a discharge diversion structure (flume channel) to prevent 
future mine water saturation of the Gold King Level 7 mine waste pile 
at the Old Adit. This work was paid for by the forfeiture of the bond 
associated with the permit issued in 1986, M-1986-013.

2009--The DRMS's Gold King Mine Reclamation Plan called for all four 
(4) adits of the Gold King complex to be backfilled and the 
installation of a flume to divert the discharge. The two (2) Gold King 
Level 7 adits (Adit and Old Adit) were partially collapsed already but 
additional closure work was conducted. This work was paid for by the 
forfeiture of the bond associated with the permit issued in 1986, M-
1986-013. DRMS stated in the project summary for the activities that 
``[a] future project at the site may attempt to cooperatively open the 
Level 7 Old Portal in an effort to alleviate the potential for an 
unstable increase in mine pool head within the Gold King workings.'' 
The Old Adit was releasing roughly 200 gpm.

2010--The average mine water flow rate from the Gold King Level 7 mine 
was 206 gpm.1

2011--The average mine water flow rate from the Gold King Level 7 mine 
was 140 gpm.1

2014--EPA planned to expose the Adit in 2014--EPA was working with DRMS 
and the Animas River Stakeholder Group (ARSG), which is composed of 
industry, agency and citizens including former miners and equipment 
operators who have worked on some of the mine adit closures in the area 
of Gold King, to identify actions that may be needed to reduce 
contaminant loading to Cement Creek and downstream waters. This 
included a plan to install bulkheads at the Red and Bonita Mine. It was 
determined appropriate to attempt to open the Adit prior to restricting 
flow at the Red and Bonita Mine with a bulkhead and potentially 
changing the water level elevations in the Red and Bonita Mine. To 
accomplish this objective, EPA planned to expose the Adit behind the 
external blockage, build a portal structure, and convey Adit flows into 
the existing channel (see Attachment D). This was being done to allow 
access for further investigation of the Adit. The flow rate data from 
the Gold King Level 7 mine was approximately 112 gpm in August, 2014, 
however, on September 11, 2014 prior to the beginning of site work, the 
flow rate was less than 13 gpm.1

A retention pond was constructed to capture solids that might be 
released during the Adit work. On September 11, work began to remove 
the material that was blocking the Adit. The excavation extended 
approximately 20 feet into the Adit entrance. The work stopped when it 
was determined that the elevation of the Adit floor was estimated to be 
six (6) feet below the waste-dump surface elevation. EPA determined 
that Adit drainage would need to be managed in a larger settling 
pond(s) requiring additional treatment.

The excavation in 2014 revealed that two (2) 24-inch pipes were in the 
tunnel blockage adjacent to the top (roof) of the maximum 10 foot tall 
Adit. (See Diagram in Attachment D). The presence of water below the 
two (2) 24-inch pipes indicated the current flow of water was coming 
out at least four (4) feet below the roof of the Adit, indicating 
approximately six (6) feet of impounded water above the estimated Adit 
floor elevation.

On September 12, two (2) drain pipes were placed at the base of the 
blockage to capture the ongoing mine water drainage and direct flow 
into the existing flume channel installed in 2008 by DRMS. Geo-fabric, 
crushed rock, and quick-dry concrete was used to secure the pipes in 
place. The Adit area was backfilled and compacted with additional loads 
of crushed rock to maintain a stable surface at the Adit for potential 
future work. Field work was suspended for the rest of the year.

2015--Based on information acquired in 2014, EPA, again, planned to 
reopen the Adit and workings to investigate the conditions to assess 
the ongoing releases of mine water. This would require incremental de-
watering and removal of internal blockages that were preventing the 
release of impounded water. A secondary purpose of the work is to 
attempt to gain access to the mine workings and to mitigate flows, if 
possible.

In January and May, 2015, the ARSG held meetings, open to the public, 
where DRMS and EPA presented their plans for removal investigation at 
the Adit. The Meeting Summaries posted by ARSG do not record any 
stakeholder criticism of the planned approach.

EPA returned to the Adit in late July, initiating site preparations 
with reconstruction of the access road and installation of an 
alternative mine drainage pipe at a deeper depth in anticipation that 
the Adit floor is lower than the other drainage pipes installed in 
2014.

On August 4, excavation began above the top of the Adit to remove 
consolidated soils and debris. The goal was to find competent bedrock 
within which to anchor a support structure for the Adit. During this 
first day of excavation, according to the OSC, mine timbers and the 
external Adit blockage were newly exposed.

On August 5, excavation resumed. The OSC observed a solid rock surface 
and constructed a ramp above the external Adit blockage to remove soil 
from the bedrock surface. During the excavation, the lower portion of 
the bedrock face crumbled away and there was a spurt of water from the 
area in the lower part of the excavation area. Shortly after the water 
spurted, more water started coming from the localized area of the 
spurt. The color of the water was initially clear but then changed to 
red/orange. The OSC speculated that the excavation might have knocked 
something loose when removing the soils from the rock face.

The time lapse between the spurting to the flow of red/orange water was 
3 to 4 minutes. It took approximately 1 hour for the peak flow to 
subside.
Observations Related to the Release:
The Team interviewed key personnel involved with the Adit blowout from 
EPA Region 8 on August 17, 2015, to document their recollections of the 
event and to get pertinent site documents and other information on the 
site. EPA Region 8's personnel provided a package of key site- related 
documents, pictures of the site, and site diagrams. On August 18, 2015, 
the lead OSC from Region 8 led a site visit of the Gold King Mine. 
Senior mining experts from the DRMS also participated in this site 
visit. The Team asked the State experts about their understanding of 
the site and recollection of the events at the Adit and the upper 
Animas River mining district.

The August 18 tour included stops at: the American Tunnel entrance with 
an explanation of the underground working by DRMS; the road above the 
series of ponds that treat the post-blowout drainage from the Adit (see 
Appendix F, photo 1); the Gold King Mine area; and both the Old Adit 
and the Adit. No stop was made at the Red and Bonita Mine (Appendix F 
photo 2 and Attachment C, map of workings).

In addition to bringing an understanding to the chronology of events 
listed above, the site visit and work plan provided the following 
supplemental information:

  The work plan accounted for the possibility of pressurized 
            (mine water with a head high enough to cause water to exit 
            the Adit at high velocity) mine water conditions. In the 
            introduction, the work plan states:

        ``Conditions may exist that could result in a blow out of the 
        blockages and cause a release of large volumes of contaminated 
        mine waters and sediment from inside the mine, which contain 
        concentrated heavy metals.''

  The work plan outlined the steps to be taken such as 
            gradually lowering the debris blockage and the use of 
            equipment (stinger) that would help control drainage from 
            the mine under non- or slightly-pressurized conditions. A 
            stinger is a metal pipe that is inserted from above the top 
            of the mine adit front at an angle, through the debris and 
            collapse blockage into the void behind the blockage, 
            allowing drainage and control of mine water.

  For the Adit, a determination of no or low mine water 
            pressurization was made by experienced professionals from 
            EPA and the DRMS. Based on discussions with the EPA and 
            State people associated with the site, this determination 
            was based on the following conditions:

  1.  The hill above the Adit was inspected for seeps which would have 
            indicated outward flow from mine water that had a pressure 
            head above the top of the Adit. It was reported that there 
            were no seeps.

  2.  The mine was draining, which indicated that since water was able 
            to escape, buildup of pressure was less likely.

  3.  The DRMS experts, XXXXX who supported the removal investigation, 
            had worked in the area for years, were familiar with the 
            site and knew the details of the operation and area 
            hydrology.

  4.  The Animas River Stakeholders Group (ARSG) had been given a 
            presentation by XXXXX, EPA's On-Scene Coordinator (OSC), 
            and XXXXX with DRMS, as documented in the May ASRG Meeting 
            Summary.

  5.  The DRMS experts supported the removal investigation at the Adit 
            and were present at the site during the operations on 
            August 4 and 5.

  6.  The ``seep'' level coming from the Adit during excavation seemed 
            to be at the mid-level of the material blocking the Adit, 
            indicating a partially filled adit as opposed to a 
            pressurized one (See Attachment D, bottom of two metal 
            pipes).

  7.  The Red and Bonita Mine Adit was lower in elevation (a few 
            hundred feet) and found to be unpressurized after it was 
            accessed by drilling from above.

  8.  The DRMS experts indicated that similar techniques have been 
            employed at other similar mine sites. One DRMS expert noted 
            that a similar investigation technique was implemented at 
            the Captain Jack Mine in Colorado but did not result in a 
            blowout.
  Despite the available information suggesting low water 
            pressure behind the debris at the Adit entrance, there was, 
            in fact, sufficiently high pressure to cause the blowout. 
            Because the pressure of the water in the Adit was higher 
            than anticipated, the precautions that were part of the 
            work plan turned out to be insufficient. The inability to 
            obtain an actual measurement of the mine water pressure 
            behind the entrance blockage seems to be a primary issue at 
            this particular site. If the pressure information was 
            obtained, other steps could have been considered. However, 
            the Team cannot determine whether any such steps would have 
            been effective, or could have been implemented prior to a 
            blowout.

  Mine water pressurization data from behind the blockage 
            potentially could have been obtained through a drill hole 
            inserted further back into the Adit from above the mine 
            tunnel. Such a technique was performed at the nearby Red 
            and Bonita Mine and found no pressurization. Consequently, 
            it was determined that the tunnel was not full of water and 
            excavation of the Adit at that mine could proceed. Such a 
            technique was not used at the Adit. Based on the site 
            topography (steepness and ruggedness) observed by the Team 
            and conversations with the OSC and the DRMS experts, (See 
            Attachment F, first photo) the use of such a technique 
            would have been very difficult and expensive at the Adit. 
            The unstable and steep slope above the Adit had loose soils 
            and rock and the underlying bedrock was prone to cave-ins, 
            as observed over the nearby Old Adit (See Attachment F, 
            photo 3). Because of the soil and rock conditions, the 
            access and drilling of a hole into the Adit from above 
            would have been quite costly and require much more planning 
            and multiple field seasons to accomplish. Although 
            difficult and therefore expensive and technically 
            challenging, this procedure may have been able to discover 
            the pressurized conditions that turned out to cause the 
            blowout.

  An additional potential clue of potential pressurization was 
            the decrease in flows from the Gold King Adits over the 
            years (Attachment E). That decrease could have been an 
            indication of impounded water from a blockage. The mine 
            drainage flow before 2005 was understood to be zero and 
            increased from 42 gpm in 2005 to 135 gpm in September 2005 
            and peaked at 314 gpm in October 2006. This increase is 
            attributed to rising groundwater in the Gold King Mine 
            workings from plugging of the back portion of the American 
            tunnel in 1995 and possibly 2002. The average flows in 2010 
            dropped to 206 gpm, further dropped to an average of 140 in 
            2011 and finally to about 70 gpm or less in the past year. 
            These conditions may indicate some type of internal change 
            to the mine such as additional cave-ins, or a restriction 
            due to already caved material, perhaps by chemical 
            precipitates, or some other cause. It is also possible that 
            the reduced flows could have been attributed to decreased 
            precipitation in the area or increased flows from the 
            American Tunnel.

  The Team was not able to identify any calculations made on 
            the possible volume of water that could be held behind the 
            portal plug. This calculation could have been useful in 
            determining possible response scenarios for unexpected 
            releases.

  The Request for Proposals (RFP) that included the work at the 
            Adit project requested a plan for dealing with mine water 
            flow and also states that the blockage in the Adit must be 
            removed in a manner to prevent a surge of impounded mine 
            water from being released. It called for the water 
            impounded behind the blockage to be drawn down in a 
            controlled manner as the blockage is removed. Upon review 
            of the work plan, the contractor provided a description and 
            conceptual drawing for dealing with the water (Attachment 
            D). However, the Team believes that Emergency Action Plan 
            (EAP) included with the site plan did not anticipate or 
            plan for the volume or pressure encountered and contained 
            only limited emergency procedures in case of a mine 
            blowout. This lack of information about a blowout in the 
            EAP could indicate the low expectation of its occurrence by 
            the contractor and reviewers. These procedures and contacts 
            may have been included in the Site Health and Safety Plan 
            but this document could not be obtained in time for this 
            report.

Conclusions:
Based on the review of the available information, including the 
interviews, documents and site visit, the Team is providing the 
following conclusions:

  1.  The EPA site removal investigation team had extensive experience 
            with the investigation and closure of mines. The EPA site 
            removal investigation team had consulted with and had the 
            field support of the DRMS. The EPA site removal 
            investigation team also performed outreach to the ARSG, to 
            provide an opportunity for additional input regarding the 
            planned activities. The EPA site removal investigation team 
            and the other entities consulted or who provided 
            information about the proposed activities had extensive 
            site knowledge of the mine workings and extensive 
            experience evaluating and working on mine sites. None of 
            those participating or informed parties raised any 
            significant concerns with the proposed activities.

  2.  In preparation for the investigation activities, EPA had 
            collected and analyzed flow data, was familiar with site 
            topography, and had inspected the site for signs of seeps, 
            including the area above the Adit, prior to implementing 
            the execution of the work plan.

  3.  It is not evident that the potential volume of water stored 
            within the Adit had been estimated. Given the maps and 
            information known about this mine, a worst case scenario 
            estimate could have been calculated and used for planning 
            purposes. When adequate information is available, 
            performing such calculations may aid the site management 
            team in instances where water is anticipated to be trapped 
            in an adit. The interconnectivity of mine workings could be 
            used to estimate potential water volume prior to opening up 
            a collapsed adit.

  4.  Additional expert opinions may be warranted for sites with 
            collapsed adits, complex interconnectivity of mine 
            workings, and highly transmissive bedrock groundwater 
            systems.

  5.  The work plan contained an EAP which included provisions for mine 
            emergencies including cave-ins. However, based on the 
            documents reviewed by the Team, it was lacking emergency 
            protocols in the case of a significant flow or blow out. It 
            should be noted that the site team responded appropriately 
            during and after the blowout by moving personnel and 
            equipment and diverting mine water discharge. Such 
            provisions are an important component of an EAP on sites 
            such as the Gold King Mine. There may have been some 
            contingencies planned in case of a blowout, but it could 
            not be ascertained by the Team during the review period.

  6.  The Adit is located in a remote, rugged mountain location in the 
            Rocky Mountains. The level of effort necessary to mobilize 
            a drill rig and create a drill pad to undertake drilling or 
            other investigative techniques to determine pressure 
            (hydrostatic head) within the mine would require 
            significant resources and add additional time to the 
            implementation schedule and may not be successful in 
            ascertaining water levels or pressure within the mine. 
            Safety is a key consideration for drilling at the Gold King 
            site, and establishing a safe location for the drill pad 
            would be very challenging given the steepness and 
            instability of the slopes above and in proximity to the 
            Adit. Drilling to hit a target such as an adit or tunnel 
            can be very challenging if the drill pad cannot be located 
            in close proximity the adit entrance. It can also be a 
            lengthy process and require considerable effort and 
            expense. However, if it could be performed successfully and 
            safely, drilling could provide the information needed to 
            ascertain the pressure behind the collapsed workings within 
            the mine.

  7.  In reviewing the pertinent documents provided, interviews 
            conducted, visiting the site and evaluating the photo logs, 
            the Team concludes that the Adit blowout was likely 
            inevitable. Actions taken by the EPA OSC to pull out the 
            site personnel and crew from and near the Adit, just prior 
            to the blowout, probably avoided any fatalities from the 
            pressurized Adit blowout.

  8.  Although the removal investigation team was quite experienced and 
            followed standard procedures of a well thought out work 
            plan that included state and ARSG involvement, the 
            underestimation of the water pressure in the Gold King Mine 
            workings is believed to be the most significant factor 
            relating to the blowout.
  9.  A limited review of internet resources did not reveal any 
            existing guidelines or procedures for assessing highly 
            pressurized mine adits or tunnels, such as Gold King Mine.

Recommendations:

  1.  EPA should develop guidance to outline the steps that should be 
            undertaken to minimize the risk of an adit blowout 
            associated with investigation or cleanup activities. The 
            guidance, at a minimum, should:

          a.   Identify a tiered approach that requires increased 
        detail regarding the proposed action based on the complexity of 
        the site conditions or the potential nature of any release.
          b.   Provide criteria to identify whether a proposed 
        investigation or cleanup action presents a low, moderate, or 
        high risk with respect to the potential for an adit blowout and 
        significant release of acid mine drainage or mine waste.

          c.   Require that a management review meeting(s), including 
        the key state (and other Federal agencies when appropriate) be 
        held to determine whether sufficient information exists to meet 
        the criteria established in the guidance or whether additional 
        information is necessary before undertaking the investigation 
        or cleanup activity.

          d.   Outline the outreach activities to inform the local 
        community and stakeholders.

          e.   Identify the contingency planning that may be 
        appropriate based upon the risk of blowout and the nature of 
        the potential release.

  2.  Even though the chance of encountering pressurized mine water was 
            investigated in many ways at the Gold King Mine, the Gold 
            King Mine blowout suggests that EPA should develop a 
            toolbox of additional investigative tools such as remote 
            sensing or drilling into the mine pool from the top or side 
            that should be more seriously considered at similar sites. 
            It's important to recognize that underground mines may be 
            extremely complex, making characterization of the internal 
            hydraulic conditions and flow paths challenging. Adding to 
            this complexity is that older mine workings are often not 
            well mapped and that some underground mines may also be 
            structurally unstable and prone to cave-ins and internal 
            plugging making them very difficult to assess. The toolbox 
            should identify techniques which could be used to minimize 
            uncertainties associated with these types of mines. Site 
            specific conditions may make certain investigative tools 
            prohibitive or extremely challenging and costly. In the 
            end, while additional information gathering may reduce the 
            uncertainty, a complete understanding of the underground 
            conditions may not be attainable.

  3.  Emergency Action Plans should include protocols should a blowout 
            occur at those mine sites where there is a potential for 
            such an event to occur.

  4.  Information and rationale developed by a site team in 
            anticipation of an investigation or cleanup action for 
            sites where an adit blowout could be a concern (e.g., 
            available pressure information, a reasonable estimate of 
            the volume of water within the mine workings, or adit 
            drainage flow rate data) should be critically reviewed by a 
            qualified and experienced Regional Mining engineer and or 
            Mining Hydrologist/Geologist. The Region may want to 
            consider getting assistance from qualified outside parties 
            such as other Federal agencies, state agencies, or outside 
            consultants in conducting this critical review.

  5.  The Team also recommends that subsequent reviews of the Gold King 
            Mine Adit Blowout by an Independent External Review Group 
            or the Office of Inspector General consider the possibility 
            of assembling a panel of experts consisting of mining 
            industry experts, other federal and state mining experts, 
            academia, consultants, non-governmental organizations and 
            tribal governments to further analyze the situation 
            encountered at this site and come up with recommendations 
            on additional safeguard measures to reduce the risk and 
            minimize the consequences of such incidents in the future.

[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S 
                            OFFICIAL FILES]

  --  Final Site Health and Safety Plan form of Emergency and 
            Rapid Response Services at the Gold King Mine 
            prepared for the U.S. Environmental Protection 
            Agency Region 8 by Environmental Restoration, LLC. 
            Dated September 4, 2013.

  --  Letter from the Environmental Protection Agency addressed 
            to Chairman Chaffetz and Ranking Member Cummings as 
            follow-up to an April 30, 2015 hearing entitled 
            ``EPA Mismanagement.''

  --  PowerPoint slides used in the hearing by Rep. Matt 
            Cartwright.

  --  Audio recording of conversation between National Response 
            Center and Allen Sorenson of the Colorado Division 
            of Reclamation regarding notification of the Animas 
            spill.

  --  E-mails documenting correspondence between the Natural 
            Resources Committee Subcommittee on Oversight and 
            Investigations staff and the Department of the 
            Interior's Office of Inspector General and the Fish 
            and Wildlife Service regarding consultation under 
            the Endangered Species Act from the Environmental 
            Protection Agency.

  --  E-mails presented by Mr. Flynn documenting correspondence 
            between the Environmental Protection Agency and the 
            New Mexico Environment Department regarding 
            expenditures by the Department on the Animas spill.

  --  E-mails presented by Mr. Flynn documenting correspondence 
            between New Mexico state officials and the EPA 
            regarding water sampling and testing.

  --  Written Statement from DOI regarding their response to 
            the Gold King Mine Release.

  --  Salt Lake Tribune--Editorial: Chaffetz, Bishop owe us 
            real answers on EPA failure, not another Benghazi.

                                 [all]