[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\
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\2\ http://www.epa.gov/superfund/abandoned-mine-lands-site-
information-1.
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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.
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\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/.
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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.
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\3\ http://www2.epa.gov/region8/upper-animas-mining-district.
\4\ http://www2.epa.gov/region8/upper-animas-mining-district.
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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\
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\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.
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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.
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\8\ Id.
\9\ Id.
\10\ Id.
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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.
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\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,
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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
[GRAPHIC] [TIFF OMITTED] T6242.008
.eps[GRAPHIC] [TIFF OMITTED] T6242.009
.eps[GRAPHIC] [TIFF OMITTED] T6242.010
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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]