    [Senate Hearing 114-188]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 114-188

                       OVERSIGHT OF THE CAUSE, RESPONSE,
                   AND IMPACTS OF EPA'S GOLD KING MINE SPILL

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

                                    HEARING

                                   before the

                                  COMMITTEE ON
                          ENVIRONMENT AND PUBLIC WORKS
                              UNITED STATES SENATE

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                               SEPTEMBER 16, 2015

                                   __________

      Printed for the use of the Committee on Environment and Public Works

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

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

                                       _________

                             U.S. GOVERNMENT PUBLISHING OFFICE
      98-709 PDF                     WASHINGTON : 2016
    _________________________________________________________________________________
    For sale by the Superintendent of Documents, U.S. Government Publishing Office,
          Internet:bookstore.gpo.gov. Phone:toll free (866)512-1800;DC area (202)512-1800
         Fax:(202) 512-2104 Mail:Stop IDCC,Washington,DC 20402-001

                   COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                        ONE HUNDRED FOURTEENTH CONGRESS
                                 FIRST SESSION

                      JAMES M. INHOFE, Oklahoma, Chairman
    DAVID VITTER, Louisiana              BARBARA BOXER, California
    JOHN BARRASSO, Wyoming               THOMAS R. CARPER, Delaware
    SHELLEY MOORE CAPITO, West Virginia  BENJAMIN L. CARDIN, Maryland
    MIKE CRAPO, Idaho                    BERNARD SANDERS, Vermont
    JOHN BOOZMAN, Arkansas               SHELDON WHITEHOUSE, Rhode Island
    JEFF SESSIONS, Alabama               JEFF MERKLEY, Oregon
    ROGER WICKER, Mississippi            KIRSTEN GILLIBRAND, New York
    DEB FISCHER, Nebraska                CORY A. BOOKER, New Jersey
    MIKE ROUNDS, South Dakota            EDWARD J. MARKEY, Massachusetts
    DAN SULLIVAN, Alaska

                     Ryan Jackson, Majority Staff Director
                   Bettina Poirier, Democratic Staff Director

                                    (II)

                                C O N T E N T S

                                  ----------
                                                                       Page

                               SEPTEMBER 16, 2015
                               OPENING STATEMENTS

    Gardner, Hon. Cory, U.S. Senator from the State of Colorado......     1
    Bennet, Hon. Michael, U.S. Senator from the State of Colorado....    10
    Udall, Hon. Tom, U.S. Senator from the State of New Mexico.......    12
    Heinrich, Hon. Martin, U.S. Senator from the State of New Mexico.    13
    Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...    15
    Boxer, Hon. Barbara, U.S. Senator from the State of California...    16
    Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode
      Island, prepared statement.....................................    66

                                    WITNESS

    McCarthy, Hon. Gina, Administrator, U.S. Environmental Protection
      Agency.........................................................    18
        Prepared statement...........................................    21
        Responses to additional questions from:
            Senator Inhofe...........................................    25
            Senator Fischer..........................................    40

                                        (III)

     OVERSIGHT OF THE CAUSE, RESPONSE, AND IMPACTS OF EPA'S GOLD KING MINE
                                     SPILL

                                  ----------

                         WEDNESDAY, SEPTEMBER 16, 2015

                                           U.S. Senate,
                     Committee on Environment and Public Works,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 10:01 a.m. in
    room 406, Dirksen Senate Building, Hon. James M. Inhofe
    (chairman of the committee) presiding.
        Present: Senators Inhofe, Boxer, Sullivan, Rounds,
    Barrasso, Capito, Crapo, Boozman, Fischer, Markey, and Cardin.
        Senator Inhofe. We will come to order. We have, Senator
    Boxer and I, if it is all right with her, are going to withhold
    until we hear from four Senators who have made a request to be
    here. Senator Gardner first called this to my attention.
        So what we are going to do is start with you, Senator
    Gardner, and go across and hear from those who have a special
    concern and interest. You are recognized.

                OPENING STATEMENT OF HON. CORY GARDNER,
                U.S. SENATOR FROM THE STATE OF COLORADO

        Senator Gardner. Thank you, Mr. Chairman, Ranking Member
    Boxer, and other members of the Environment and Public Works
    Committee, for holding this hearing today to examine the August
    5th, 2015, spill that took place at the Gold King Mine in
    Southwest Colorado.
        I also appreciate the committee for providing Senators
    Bennet, Heinrich, Udall and me with the opportunity to make
    statements about the impact that this spill has had in our
    States and obviously the representatives here who will also
    testify. Also, remember the spill had an impact on the Southern
    Ute Indian tribe, Ute Mountain Ute and the Navajo Nation.
        From the outset of the spill, it was crucial that the EPA's
    full focus be on mitigation and slowing the flow of
    contaminants in the Animas River. Water testing shows that the
    surface water of the river has returned to pre-incident levels.
    But many uncertainties remain regarding long-term remediation
    and future monitoring for heightened contamination in the river
    during spring runoff. If anybody has seen the pictures of
    recent days when you can go in and disturb and disrupt the
    river bed bottom, the bottom, the sediment, you can see
    material still being kicked up.
        Once the national press disappears from the area, there are
    still serious concerns that exist for Coloradans and
    communities downstream that the EPA must address.
        Although the EPA has acknowledged the magnitude of this
    crisis, its initial lack of communication and coordination in
    events leading up to and following the spill are suitable for
    congressional oversight. Affected communities and stakeholders
    deserve transparency and accountability in the events
    surrounding the spill, particularly in understanding where EPA
    was during the first hours and days following the spill.
        For example, the Colorado Department of Public Health and
    the Environment was the first to notify the city of Durango of
    the Gold King release on August 5th. The Colorado Department of
    Natural Resources was the first to notify the Southern Ute
    Indian Tribe of the release on August 5th. The LaPlata County
    sheriff's office closed public access to the Animas River on
    August 6th.
        The questions that we must ask today: where was the EPA
    during this initial notification and closure of the river? Did
    the agency follow the National Contingency Plan for
    notification and implementation of its response on this
    disaster? Did they follow the same requirements that would have
    been in effect for a private sector actor? Was there anyone
    within the EPA with crisis management experience for a spill of
    this nature dispatched to the area or made aware of the spill?
    These are but a few of the questions I hope Administrator
    McCarthy will address today.
        In the first few days following the spill, it was largely
    State, local and tribal officials responding. It was not until
    August 10th that the EPA established a unified command center
    in Durango. Along with the confusion over EPA's lack of
    notification, frustration began regarding the need for timely
    release of a simple, straightforward interpretation of the
    water quality monitoring data from the EPA.
        From my personal experience, the EPA's response mirrors
    that of local communities. No one from the EPA attempted to
    contact me until days after the spill. Upon first learning of
    the spill, I attempted to speak with the Administrator but was
    told she was unavailable. After pushing back on the EPA and
    requesting answers, I was told the regional director would
    contact me. That call came several hours later.
        I visited the spill site on August 9th with Senator Bennet.
    This is 4 days after the 3 million gallons of contaminated
    water were released, and yet the EPA did not yet have an
    appropriate crisis response plan or team in place. In fact, it
    was that Sunday morning briefing where we were sitting with the
    EPA officials who could not answer basic questions including
    how much water at that point was still leaking into the river.
        From the outset, I have said that the EPA should be held to
    the same standards as EPA would hold a private company for the
    spill, which means investigations must be conducted, people
    must be held accountable and tough questions must be asked.
    When those questions get asked, there must be answers.
        Among the tough questions that must be asked, the few I
    have are: whether the EPA knew that it was likely that water
    was impounded behind the Gold King Mine portal and a blowout
    was possible. Whether the health and safety plan for the Gold
    King Mine work was adequate. Why did it take several days for
    the EPA to revise the amount of contaminated water?
        The agency initially said the amount was, I believe 1
    million gallons and several days later said the search
    consisted of 3 million gallons. What data does the EPA have on
    the total amount of acid mine drainage within the upper Animas
    basin? How long has the agency been tracking the drainage and
    publicly measuring it?
        Mr. Chairman, before concluding, I request the statement of
    Mr. Mike Olguin, Southern Ute Tribal Council member, be
    included as part of my testimony for today's hearing.
        Senator Inhofe. Without objection.
        [The referenced information follows:]

     [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Gardner. Councilman Olguin will be testifying this
    afternoon in front of the Senate Indian Affairs Committee on
    the Gold King Mine spill.
        Last, I thank you, Mr. Chairman, and your staff, for being
    responsive during this time. While this hearing is to examine
    this incident and the EPA's response, this bill shows a greater
    need for legislation that would allow Good Samaritans the
    opportunity to assist with cleaning up these abandoned mines
    across the West. I hope we can continue to work together on
    this effort, and I know the four of us have done that so far.
        I thank you again for the opportunity to be here, and I
    look forward to hearing the EPA's answers as we continue to
    work together to address this very serious situation.
        [The prepared statement of Senator Gardner follows:]

                        Statement of Hon. Cory Gardner,
                    U.S. Senator from the State of Colorado

        Thank you, Chairman Inhofe, Ranking Member Boxer, and other
    members of the Environment and Public Works Committee for
    holding this oversight hearing to examine the August 5th, 2015,
    spill that took place at the Gold King Mine in southwest
    Colorado. I also appreciate the committee for providing
    Senators Bennet, Heinrich, Udall and me with the opportunity to
    make statements about the impact this spill has in our States.
    We must also remember this spill had an impact on the Southern
    Ute Indian Tribe, Ute Mountain Ute, and the Navajo Nation.
        From the outset of the spill, it was crucial that the
    Environmental Protection Agency's (EPA's) full focus be on
    mitigation and slowing the flow of contaminants in the Animas
    River. Water testing shows that the surface water of the River
    has returned to pre-incident levels, but many uncertainties
    remain regarding long-term remediation and future monitoring
    for heightened contamination in the River during spring runoff.
        Once the national press disappears from the area, there are
    still serious concerns that exist for Coloradans and
    communities downstream that the EPA must address. Although the
    EPA has acknowledged the magnitude of the crisis, its initial
    lack of communication and coordination in events leading up to
    and following the spill are suitable for congressional
    oversight.
        Affected communities and stakeholders deserve transparency
    and accountability in the events surrounding this spill,
    particularly in understanding where EPA was during the first
    hours following the spill. For example, the Colorado Department
    of Public Health & the Environment was the first to notify the
    city of Durango of the Gold King release on August 5th. The
    Colorado Department of Natural Resources was the first to
    notify the Southern Ute Indian Tribe of the release on August
    5th. The La Plata County Sheriff closed public access to the
    Animas River on August 6th.
        Where was the EPA during this initial notification and
    closure of the River? Did the agency follow the national
    contingency plan for notification and implementation of its
    response on this disaster? Was there anyone within the EPA with
    crisis management experience for a spill of this nature
    dispatched to the area or made aware of the spill? These are
    but a few of the questions I hope Administrator McCarthy will
    address.
        In the first few days following the spill, it was largely
    State, local and tribal officials responding. It was not until
    August 10th that the EPA established a unified command center
    in Durango. Along with the confusion over EPA's lack of
    notification, frustration began regarding the need for a timely
    release of a simple, straightforward interpretation of the
    water quality monitoring data from the EPA.
        My personal experience with EPA's response mirrors that of
    local communities. No one from EPA attempted to contact me
    until days after the spill. Upon first learning of the spill I
    attempted to speak with the Administrator but was told she was
    unavailable. After pushing back on the EPA and requesting
    answers I was told the regional director would contact me. That
    call came several hours later.
        I visited the spill site on August 9th with Senator Bennet.
    This was 4 days after the 3 million gallons of contaminated
    water was released, and yet EPA did not yet have an appropriate
    crisis response plan or team in place.
        From the outset I've said that EPA should be held to the
    same standard as EPA would hold a private company for said
    spill. Which means investigations must be conducted, people
    must be held accountable, and tough questions must be asked.
    Among the tough questions that must be asked, a few I have are:
         Whether the EPA knew that it was likely that water was
    impounded behind the Gold King Mine portal and a blowout was
    possible,
         Whether the Health and Safety Plan for the Gold King Mine
    work was adequate. It appears the plan was wholly inadequate
    because it fails to address safety risks associated with mines,
    and it even lists the site by the wrong name at one point, and
         Why did it take several days for the EPA to revise the
    amount of contaminated water? The agency initially said the
    amount was 1 million gallons, and several days later said the
    surge consisted of 3 million gallons.
        Mr. Chairman, before concluding I request that the
    statement of Mike Olguin, a Southern Ute Indian Tribal Council
    Member, be included as part of my testimony for today's
    hearing. Councilman Olguin will be testifying this afternoon in
    front of the Senate Indian Affairs Committee on the Gold King
    Mine spill.
        Last, I thank you and your staff for being responsive
    during this time, and while this hearing is to examine this
    incident and EPA's response, this spill shows a greater need
    for legislation that would allow Good Samaritans the
    opportunity to assist with cleaning up these abandoned mines
    across the West. I hope we can continue to work together on
    this effort.
        Thank you again for the opportunity to be here, and I look
    forward to hearing the EPA's answers as we continue to work
    together to address this very serious situation.

        Senator Inhofe. Thank you, Senator Gardner.
        Senator Bennet.

               OPENING STATEMENT OF HON. MICHAEL BENNET,
                U.S. SENATOR FROM THE STATE OF COLORADO

        Senator Bennet. Thank you, Mr. Chairman, and thank you
    also, Ranking Member Boxer, for allowing us all to speak this
    morning. It is a privilege to be here with my colleagues from
    New Mexico and Senator Gardner from Colorado.
        Mr. Chairman, the blowout at the Gold King Mine was a
    disaster that affected many communities in Colorado and New
    Mexico. Although the EPA was trying to remediate the mine,
    there is no denying that they caused this spill, and that is
    entirely unacceptable. It is also clear that the agency was
    slow to communicate, as Senator Gardner said, with local
    governments and did not obtain water quality results or bring
    water to farmers who needed it quickly enough.
        When Senator Gardner and I traveled to Durango 4 days after
    the blowout, the river was still bright orange and closed to
    the public. The Animas River really is the lifeblood of
    Durango. Rafting companies have lost business, farmers could
    not water crops and moms are still keeping their kids out of
    the water. These families deserve to have the full attention
    and dedicated resources of the Administration committed to the
    clean up.
        In the week after the spill, we spoke with Administrator
    McCarthy and wrote to the EPA and the President. We appreciate
    that Administrator McCarthy listened to our call and came to
    Colorado to view the area and address the community. Following
    a crisis like this, it is tempting to point fingers, and we
    must hold people and agencies responsible for any egregious
    mistakes or negligence they committed in the days and hours
    after this spill.
        But as the communities recover, it is also critical to look
    at the bigger picture. Let's identify what went wrong to make
    sure it does not happen again.
        We also need to put this in context: the blowout released 3
    million gallons of acid mine drainage. This same amount of
    polluted water was already being released from the Gold King
    Mine about every week. And the four mines in the area released
    more than 300 million gallons of acid mine drainage into the
    river every year. This has been going on for more than 130
    years.
        In 1902, the water quality was so bad that Durango
    permanently switched to the Florida River for its main drinking
    water supply. That decision largely protected the town's
    drinking water from the most recent disaster.
        There are more than 23,000 abandoned mines in Colorado, Mr.
    Chairman, including 400 in the San Juan Mountains. We need
    solutions to address the acid mine drainage coming from all of
    these old abandoned mines. And in the upper Animas watershed we
    need an immediate solution. That is why we have asked
    Administrator McCarthy and the President to prioritize funding
    for a water treatment plant.
        We also, as my colleague, from Colorado said, need to pass
    Good Samaritan legislation to encourage counties, non-profits
    and companies to clean up abandoned mines throughout the West.
    We worked with Senator Boxer, Senator Mark Udall and the EPA to
    establish guidance for Good Samaritans to allow them to do
    clean up work without being liable under the Clean Water Act.
        Unfortunately, that did not provide enough certainty and
    has not encouraged action. Last Congress, Mark Udall, Scott
    Tipton and I introduced a bill to give Good Samaritans that
    certainty while holding them to appropriate standards. Senator
    Gardner and I are working to reintroduce a bill this Congress.
    Finally, we need to reform the 1872 mining law to make sure
    that companies pay royalties to taxpayers.
        Thank you, again, Mr. Chairman, for allowing me to speak
    briefly, and thank you for holding this hearing.
        [The prepared statement of Senator Bennet follows:]

                       Statement of Hon. Michael Bennet,
                    U.S. Senator from the State of Colorado

        Thank you, Chairman Inhofe and Senator Boxer, for allowing
    me to speak this morning.
        The blowout at the Gold King Mine was a disaster that
    affected many communities in Colorado and New Mexico. And
    although the EPA was working to clean up the mine, there's no
    denying that they caused the spill. That's entirely
    unacceptable.
        It's also clear that the agency was slow to communicate
    with local governments and didn't obtain water quality results
    or bring water to farmers who needed it quickly enough. When
    Senator Gardner and I traveled to Durango 4 days after the
    blowout, the River was still bright orange and closed to the
    public.
        The Animas River really is the lifeblood of Durango.
    Rafting companies have lost business, farmers couldn't water
    crops, and moms are still keeping their kids out of the river.
    These families deserve to have the full attention and the
    dedicated resources of the Administration committed to the
    clean up.
        In the week after the spill, we spoke with Administrator
    McCarthy and wrote to the EPA and the President. We appreciate
    that Administrator McCarthy listened to our call and came to
    Colorado to view the area and address the community. Following
    a crisis like this, it's tempting to point fingers--and we must
    hold people and agencies responsible for any egregious mistakes
    or negligence they committed in the days and hours after the
    spill. But as the communities recover, it's also critical we
    look at the bigger picture. Let's identify exactly what went
    wrong to make sure this doesn't happen again.
        We also need to put it in context. The blowout released 3
    million gallons of acid mine drainage. This same amount of
    polluted water was already being released from the Gold King
    Mine about every week. And the four mines in the area release
    more than 300 million gallons of acid mine drainage into the
    River every year. This has been going on for more than 130
    years.
        In 1902, the water quality was so bad that Durango
    permanently switched to the Florida River for its main drinking
    water supply. That decision largely protected the town's
    drinking water from the most recent disaster. There are more
    than 23,000 abandoned mines in Colorado, including 400 in the
    San Juan Mountains. We need solutions to address the acid mine
    drainage coming from all of these old abandoned mines.
        And in the Upper Animas watershed, we need an immediate
    solution. That's why we've asked Administrator McCarthy and the
    President to prioritize funding for a water treatment plant.
        We also need to pass Good Samaritan legislation to
    encourage counties, nonprofits, and companies to clean up
    abandoned mines. We worked with Senator Boxer, Senator Mark
    Udall, and the EPA to establish guidance for Good Samaritans to
    allow them to do clean up work without being liable under the
    Clean Water Act. Unfortunately, this didn't provide enough
    certainty and hasn't encouraged action. Last Congress Mark
    Udall, Scott Tipton, and I introduced a bill to give Good
    Samaritans that certainty while still holding them to
    appropriate standards. Senator Gardner and I are working to
    reintroduce a bill this Congress.
        And finally, we need to reform the 1872 Mining Law to make
    sure that companies pay royalties to taxpayers.
        Thank you again for allowing me to speak briefly, and thank
    you for holding this hearing.

        Senator Inhofe. Thank you, Senator Bennet.
        Senator Udall.

                 OPENING STATEMENT OF HON. TOM UDALL,
               U.S. SENATOR FROM THE STATE OF NEW MEXICO

        Senator Udall. Chairman Inhofe and Ranking Member Boxer,
    thank you very much for focusing on this issue. It is a very
    important issue, not only for our States but it is also an
    important issue for the Nation and for the West.
        I first of all would like to, because this impacted in New
    Mexico the Navajo Nation, I would like to recognize the
    President of the Navajo Nation who is here, Russell Begaye. He
    is seated in the row right behind the two Colorado Senators.
    They in particular have been very concerned and on top of this.
    He is going to testify this afternoon in the Indian Affairs
    Committee.
        Sitting back and looking at this and trying to give all of
    you the big picture, as I listened to the two Colorado Senators
    who we are working closely with, here you have big mining
    companies who have been extracting minerals we use in everyday
    life. Many of us believe some of these are very valuable and we
    need them.
        But who says that they are entitled to pollute the sacred
    waters of two Native American Tribes, the Navajo Nation and the
    Ute Tribe? Who says they should be able to pollute drinking
    water that our two States use on a daily basis? And that really
    I think in the big picture sense is why we are here to fix
    this, to make sure that it never happens again.
        That is a big task because this has been going on for a
    long time. This mining and the pollution from it, people have
    been working on it for decades. But we have not, we have not
    been able to solve this problem or really come to grips with
    it.
        In the West, rivers are our lifeblood, our drinking water,
    our irrigation support for agriculture. The Animas River, which
    was the one that was mainly polluted here, and the San Juan.
    Animas means, in Spanish, the River of Souls. The San Juan
    River is another important part of the Navajo tradition. When I
    talked about President Begaye and the Navajos, they have a
    saying, water is life. Our Hispanic community in New Mexico
    says the same thing, agua es la vida.
        So we all know how important water is to the West and to
    all of us. This is a disaster on many levels, to our water, to
    our economy, to our culture. I just very much appreciate
    working with this committee and with these Senators to try to
    get to the root of what we need to do.
        I appreciate very much, as the two Colorado Senators have
    said, EPA taking responsibility for the spill. We all know
    mistakes were made. There were delays in notification,
    confusion across three different EPA regions. There were also
    delays in testing, in providing much-needed water for
    irrigation and other supplies. EPA has accepted responsibility
    here also.
        At the same time, EPA is not the only responsible party.
    What happened at the Gold King Mine is part of a much, much
    bigger problem. Abandoned mines in the West are a ticking time
    bomb, slowly leaking hazardous waste into our streams and
    rivers. The mine owners that left this mess are no longer
    around. EPA is not in the mining business. It is in the clean
    up business.
        Just to show you the wake up call that all of us are
    facing, there are 10 mining projects very similar to this that
    EPA analyzed that said they believe there are similar
    conditions. There are 10 of these mines that have--the work has
    been suspended, so we could see something similar to this
    happen. Three of those are in California, Senator Boxer, four
    in Colorado that the Colorado Senators know very well, two in
    Montana and one in Missouri. So this is a big national issue,
    and it needs to be addressed.
        Let me just finally say that one of the key parts of this
    which we all, I think, have been battling for a long time, is
    the 1872 mining law. That law continues to allow mining
    corporations to take hard rock minerals like gold, silver,
    copper and uranium from public lands without paying any
    royalties, zero royalty. Meanwhile coal, oil and gas companies
    have paid royalties for many decades.
        That is the crux of what we need to do here. Senator
    Heinrich has been working on this issue for a long time. I am
    going to be working very closely with him to make sure we put
    in legislation very soon on that. I very much appreciate, once
    again, your holding this hearing.
        Senator Inhofe. Thank you, Senator Udall.
        Senator Heinrich.

              OPENING STATEMENT OF HON. MARTIN HEINRICH,
               U.S. SENATOR FROM THE STATE OF NEW MEXICO

        Senator Heinrich. I want to thank you, Chairman Inhofe and
    Ranking Member Boxer, for holding this important hearing today.
        I want to thank all of my colleagues up here, as well as
    the President of the Navajo Nation, who has joined us, for the
    work they have done to shine a light on this and to begin
    dealing with the policy issues that require legislation around
    this. We have had a good team effort from the Colorado and New
    Mexico delegations, including some of our colleagues in the
    House of Representatives as well.
        Last month, a large plume of bright orange mine waste, and
    I will give credit to President Begaye for sharing this photo
    with us, you can see him in the foreground, spilled into Cement
    Creek and then into the Animas River and then into the San Juan
    and polluted the entire Four Corners region. I share the
    enormous anger and frustration over this terrible incident.
        When I toured the affected areas following the spill, I
    visited with impacted residents, including farmers in places
    like Aztec as well as San Juan County leaders in New Mexico and
    Navajo Nation President Russell Begaye.
        In the Southwest, as my colleague said, water is our most
    precious resource. So you can imagine the kind of impact that
    this disaster has had on our communities in Colorado, New
    Mexico, the Navajo Nation, and Arizona.
        Take a look at this photo. I have demanded that the EPA
    react with urgency to protect our health and safety and to
    repair the damage inflicted on this watershed. This must be our
    first and our top priority. An oversight of the EPA's response
    is completely warranted and appropriate.
        But we must also look over the horizon and take action to
    address the hundreds of thousands of other similarly
    contaminated mines that literally litter the West and are
    leaking toxins into our watersheds. There are estimates that 40
    percent of western watersheds have been polluted by toxic
    mining waste and that reclaiming and cleaning up abandoned
    mines across the West could cost upwards of 32 billion to 72
    billion--with a b--dollars.
        I want to share with you a couple of maps. These are our
    two impacted States here, Colorado and New Mexico. As you can
    see from these maps, they show all of the abandoned hard rock
    mines and the waters impacted by hard rock metals. You can see
    that in Southwestern Colorado, for example, where the Gold King
    Mine is, there are literally thousands of unreclaimed hard rock
    mines. You can see them scattered through the mountainous
    portions of Southwestern Colorado.
        If you look at New Mexico, you will see a similar State. If
    you look across the West, the maps would not be dissimilar.
        In 1975 in an even a larger accident than the Gold King
    blowout, a large tailings pile near Silverton spilled 50,000
    tons of tailings laden with toxic-heavy metals into the Animas
    River watershed. In 1979, a breached dam at a uranium mill
    tailings disposal pond near Church Rock, New Mexico, on the
    Navajo Nation sent more than 1,000 tons of solid radioactive
    waste and 93 million gallons of acidic liquid into the Rio
    Puerco.
        For decades before the spill last month, the Gold King Mine
    leached water laced with heavy metals and sulfuric acid into
    Cement Creek. Over the last 10 years, an average of 200 gallons
    of highly polluted water per minute, or more than 100 million
    gallons a year, have flowed out of this mine and into the
    Animas River via Cement Creek.
        Beyond the immediate clean up of this spill, it is high
    time that we overhaul our abandoned mine clean up policies to
    make future disasters like this less likely. While developers
    of resources like oil, natural gas and coal all pay royalties
    to return a fair value to taxpayers for our public resources,
    hard rock mining companies can still mine valuable minerals for
    free.
        A comprehensive approach to mining reform should include
    the establishment of a hard rock reclamation fund, funded by a
    fair royalty on public minerals, Good Samaritan authority to
    allow third parties to clean up mine sites they had no role in
    creating, and comprehensive surveys of abandoned mines and a
    plan to clean them up.
        I appreciate the value of hard rock mining and what it
    means for families. My father and my mother's father both made
    a living in this industry. This industry continues to provide
    good paying jobs throughout the West. But passing long overdue
    reforms to our Federal mining law which has not been updated
    since 1872 is critical if we want to address the root cause of
    this disaster.

              OPENING STATEMENT OF HON. JAMES M. INHOFE,
                U.S. SENATOR FROM THE STATE OF OKLAHOMA

        Senator Inhofe. Thank you, Senator Heinrich, and all four
    of you, who have come and expressed your feelings.
        We are all very much concerned about this. You are free to
    leave but are certainly invited to stay if you are able to do
    that.
        At the time of the spill, the EPA's contractor was
    investigating the amount of water that had pooled behind the
    collapsed entrance of the Gold King Mine. EPA authorized this
    investigation as part of a clean up action under the Superfund
    Law to address acid mine drainage from the nearby abandoned Red
    and Bonita mine.
        Based on the committee's oversight to date, it is clear
    that EPA knew that there was likely to be a significant amount
    of water behind the collapsed Gold King Mine entrance and that
    there was a risk of a blowout. Given these facts, it is unclear
    why EPA and the contractor did not exercise more care when
    working at the Gold King site. EPA has said that it has already
    spent $8 million responding to the spill.
        Well, thankfully no one was killed or injured by the
    blowout. But a number of important questions remain unanswered
    about what led to the spill and how EPA responded. Since the
    spill, EPA has conducted a preliminary evaluation of the causes
    and has asked the Department of Interior to conduct an
    independent investigation and report its findings later next
    month.
        But I question whether the Interior Department has the
    independence and the expertise necessary to conduct this
    review. The EPA Office of Inspector General is also conducting
    a review of the spill.
        I would also like to thank Administrator McCarthy for
    agreeing to testify today. It is important that we hear
    directly from the EPA's top official about what caused this
    spill. I think particularly since some of the comments were
    made by some of the Senators who are here today, she may want
    to respond to some of those accusations. I think that would be
    appropriate.
        Finally, I would like to note that the area where the
    blowout occurred is in a historic mining district near
    Silverton, Colorado, where local groups have been working with
    the State of Colorado and the EPA to address the impacts of
    acid mine drainage from this and other abandoned mine sites for
    a number of years.
        When I was chairman of this committee in 2006, we passed a
    bipartisan bill that would have promoted the clean up of these
    sites by Good Samaritans. In the years since, this issue has
    received very little attention from Congress or this committee.
    But as chairman for the second time, I again look forward to
    working with my colleagues from Colorado and New Mexico. I
    think we will this time do what should have been done 10 years
    ago.
        Senator Boxer.
        [The prepared statement of Senator Inhofe follows:]

                      Statement of Hon. James M. Inhofe,
                    U.S. Senator from the State of Oklahoma

        Today's oversight hearing is on the cause, response, and
    impacts of last month's blowout at the Gold King mine in
    Colorado. The spill, which occurred when an EPA contractor
    poked a hole through the collapsed mine entrance, released more
    than 3 million gallons of contaminated mine water into the
    Cement Creek and Animus River. A yellow plume of contaminated
    water traveled as far as the San Juan River in New Mexico and
    southern Utah and affected drinking water supplies, recreation,
    agriculture, and wildlife along the way.
        At the time of the spill, EPA's contractor was
    investigating the amount of water that had pooled behind the
    collapsed entrance to the Gold King mine. EPA authorized this
    investigation as part of a clean up action under the Superfund
    law to address acid mine drainage from the nearby abandoned Red
    and Bonita mine.
        Based on the committee's oversight to date, it is clear EPA
    knew that there was likely to be a significant amount of water
    behind the collapsed Gold King mine entrance and that there was
    a risk of a blowout. Given these facts, it is unclear why EPA
    and the contractor did not exercise more care when working at
    the Gold King site. EPA has said that it has already spent $8
    million responding to the spill.
        Thankfully, no one was killed or injured by the blowout,
    but a number of important questions remain unanswered about
    what led to the spill and how EPA responded.
        Since the spill, EPA has conducted a preliminary evaluation
    of the causes and has asked the Department of the Interior to
    conduct an independent investigation and report its findings
    later next month. But I question whether the Interior
    Department has the independence and expertise necessary to
    conduct this review. The EPA Office of Inspector General is
    also conducting a review of the spill.
        Before we begin, I would like to welcome Senators Gardner,
    Bennet, Heinrich, and Udall and thank them for requesting this
    important hearing. I look forward to hearing their statements
    on how this spill has affected their States and constituents.
        I would also like to thank Administrator McCarthy for
    agreeing to testify today. It is important that we hear
    directly from EPA's top official about what caused this spill
    and what EPA has learned from this tragedy.
        Finally, I would like to note that the area where the
    blowout occurred is in a historic mining district near
    Silverton, Colorado, where local groups have been working with
    the State of Colorado and EPA to address the impacts of acid
    mine drainage from this and other abandoned mine sites for a
    number of years.
        When I was chairman of this committee in 2006, we passed a
    bipartisan bill that would have promoted the clean up of these
    sites by Good Samaritans. In the years since, this issue has
    received little attention from Congress or this committee, but
    as Chairman for a second time I again look forward to working
    with my colleagues from Colorado and New Mexico as they
    contemplate new legislative proposals.

               OPENING STATEMENT OF HON. BARBARA BOXER,
               U.S. SENATOR FROM THE STATE OF CALIFORNIA

        Senator Boxer. Thank you. I want to thank my colleagues so
    much for coming here today, and just of course express my
    strong feelings for this issue. I know we have a problem in
    California, potential problem, and you have experienced it
    firsthand.
        First, I would like to note that the mayor of the city of
    Durango, Mayor Dean Brookie, said the following in front of the
    House committee: ``It is tempting in times of crisis to point
    fingers and place blame. Attempts to blame single agencies or
    individuals are pointless and ignore the scale and complexity
    of the problem that needs to be addressed.''
        So I want to point out that the Mayor of Durango said that,
    because I hope this doesn't turn into a finger pointing deal,
    because it doesn't make any sense. It is important for us, as
    was explained by all of our colleagues really to understand the
    root causes of the blowout at the Gold King Mine so that future
    accidents can be prevented. I hope that that is the point of
    this important hearing.
        EPA has already begun the process of improving its mine
    clean up activities. They have conducted already a quick
    internal review. They have issued new guidance based on lessons
    learned so far. But they are not stopping, and there are other
    investigations. There are two ongoing independent
    investigations, one by Department of Interior and one by the
    EPA's Inspector General. I think those reviews are important,
    and I look forward to reading both of them and implementing a
    lot of what they say.
        It is important to understand that acid mine drainage is
    not a new problem, as was stated by our very, I think,
    intelligent colleagues. It has plagued this watershed in
    Colorado for nearly a century. In fact, EPA was at the site at
    Colorado's request to help find solutions to the longstanding
    problem of acid mine contamination. The mines in this area leak
    more than 330 million gallons of acid mine drainage into the
    Animas River each year. Each year. That is 100 times more than
    the spill that we are looking at today. So this is a serious
    ongoing problem.
        Instead of scoring political points by blaming EPA,
    Congress could use this and should use this as an opportunity
    to focus on the longstanding issue of abandoned hard rock mines
    that pollute our rivers and streams. We should ensure that
    polluters pay the cost of clean up so that the American
    taxpayers are not stuck with the bill.
        Some argue that waiving liability for clean ups is needed
    to address abandoned mine pollution. These so-called Good
    Samaritan waivers, unless they are very carefully crafted, are
    not the solution. They need to be carefully crafted. Otherwise,
    what happens is there are no rules, and there can be unintended
    consequences, such as we have seen and cost taxpayers even
    more.
        So some of the solutions that are available to us include
    using existing authority to facilitate clean ups, providing
    sufficient resources to EPA. I think Senator Heinrich pointed
    out to us, this is a big problem, and it is a big price tag.
    But we need to address this with serious resources and that
    will require oversight of clean ups and work to pass reforms
    that ensure polluters pay, not the taxpayers. These steps are
    necessary because these mines pose a serious threat to
    waterways that people use for recreation. It has been laid out
    by our colleagues.
        Mine wastes frequently contain high levels of dangerous
    heavy metals including mercury, lead, arsenic, cyanide and
    other hazardous chemicals that are also used in mine
    operations. In California, we have 47,000 abandoned mines.
    Nationwide, there are over 500,000 abandoned hard rock mines.
    And again, clean up costs are in the range of $50 billion. Yet
    the Federal Government is barely making a dent. So I can
    pontificate, colleagues on both sides can pontificate about how
    bad this is. But unless we spend some dough on this we are
    going to face more of these terrible disasters.
        EPA spends an average of $220 million per year, the Bureau
    of Land Management and Forest Service $5 million to $20 million
    respectively, although Congress has appropriated even less in
    recent years. In President Obama's budget his Administration
    proposed reinstituting the Superfund tax so that polluters pay
    for clean up. They have also proposed creating a fee on hard
    rock mining that would be paid into a fund for clean ups.
        Unfortunately we failed to act, Congress has failed to act.
    Yes, we are holding this hearing, I am for it, I thank my
    chairman, and I think it is totally and completely appropriate.
        I would ask that the rest of my statement be included in
    the record. Let's really step up to the plate. Let's not just
    point fingers. Let's get something done and stop these
    disasters from happening in the future.
        Thank you Mr. Chairman.
        [The prepared statement of Senator Boxer was not received
    at time of print.]
        Senator Inhofe. Without objection that will happen. Thank
    you.
        Thank you very much, Senators. We will now welcome to the
    table the Administrator. While she is coming in, let me share
    on the basis of the arrivals. On the Republican side it will be
    Rounds, Sullivan, Barrasso, Capito and Crapo. On the Democrat
    side, Boxer, Merkley, and Carper, and Markey, too.
        Senator Boxer. It should be Boxer, Cardin and Markey, is my
    understanding. Boxer, Cardin and Markey.
        Senator Inhofe. OK. Good.
        Administrator McCarthy, why don't you give us your opening
    statement. You have heard a lot of comments being made by
    others, and we want to give you a chance to respond.

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

        Ms. McCarthy. Thank you. Good morning, Mr. Chairman Inhofe,
    Ranking Member Boxer and members of the committee. I am Gina
    McCarthy, I am the Administrator of the United States
    Environmental Protection Agency. Again, I thank you for the
    opportunity to appear today and to discuss the August 5th Gold
    King Mine release and EPA's subsequent response.
        This was a tragic and an unfortunate incident, and EPA has
    taken responsibility to ensure that we clean it up
    appropriately. EPA's core mission is to ensure a clean
    environment and to protect public health, and we are dedicated
    to continuing to do so. Our job is to protect the environment,
    and we will hold ourselves and continue to hold ourselves to
    the same high standards that we demand of others.
        EPA was at the Gold King Mine on August 5th conducting an
    investigation to assess mine conditions and ongoing water
    discharges so that we could dewater the mine pool and assess
    the feasibility of further mine remediation.
        While excavating above the 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 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. Notification to other
    downstream jurisdictions continued the following day, allowing
    for all of those intakes and diversions 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, which includes an assessment of the events and
    potential factors that contributed to the Gold King Mine
    incident. The report provides observations, conclusions as well
    as recommendations that our regions should consider applying
    when conducting ongoing and planned site assessments,
    investigations, constructions and removal projects at similar
    types of sites across the country.
        EPA will implement all of the recommendations from the
    report and has shared its findings with external reviewers. As
    you know, in addition to the internal review, the Department of
    the Interior is leading an independent assessment of the facts
    that lead to the Gold King Mine incident. The goal of DOI's
    independent review is to provide 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 EPA for ongoing and planned site assessments,
    investigations, constructions and removals.
        One of our foremost priorities is to keep the public
    informed about the impacts from the Gold King Mine release and
    our response activities. EPA has closely coordinated with our
    Federal partners and with officials with 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 Web site.
    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 the San Juan River.
        Finally, I want to clarify that 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 in the upper Animas watershed. Based upon 2009
    to 2014 flow data, approximately 330 million gallons of
    contaminated water was being discharged from those 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 5th.
        EPA was and continues to work with the State of Colorado as
    well as the Animas River stakeholder group to address these
    significant discharges from mines in the upper Animas watershed
    that are impacting these waters.
        I think that 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
    longstanding commitment to protect human health and the
    environment.
        All of the affected residents of Colorado and New Mexico
    and the tribes can be assured that EPA has and we will continue
    to take responsibility to ensure that the Gold King Mine
    release is cleaned up.
        Thank you, Mr. Chairman. That concludes my statement, and I
    am happy to answer any questions that you or the committee may
    have.
        [The prepared statement of Ms. McCarthy follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Inhofe. Thank you, Madam Administrator.
        Let me just go ahead and try to stake out where I think
    your position is, and what your position is, so that others can
    address that position.
        Both the EPA and the contractor knew that there was a risk
    of a blowout at the Gold King Mine. In hindsight, do you agree
    that the EPA should have spent the time and money to do the
    necessary engineering and water pressure tests before work
    began there? Yes or no, we do not need a long answer.
        Ms. McCarthy. Sir, my position is that the State of
    Colorado and the Animas River stakeholder group knew it, it was
    in the work plan. We were actually there, sir, because of the
    danger of a blowout.
        Senator Inhofe. So your answer is no. Did EPA designate the
    clean up here as time critical to cut corners and avoid having
    to do a detailed engineering study?
        Ms. McCarthy. No, sir, we did not.
        Senator Inhofe. Why didn't the EPA ask the Inspector
    General or another Federal agency or group like the National
    Academies that does not have a conflict of interest? There has
    been a lot of concern about a conflict of interest that would
    have been there with the DOI. So I am asking the question, why
    didn't you address one of them as opposed to the DOI?
        Ms. McCarthy. Sir, it is important for us to remember that
    we have also put on hold other similar mining responses, that
    many of which are time critical. We went to DOI because they
    had the expertise, they are bringing the Army Corps in, we
    believe that they are independent, they will give us an
    independent assessment, and that is the most appropriate thing
    to do. And as you know the OIG is investigating this incident
    as well.
        Senator Inhofe. Do you are saying then that those who are
    saying DOI would have a conflict of interest are not accurate?
        Ms. McCarthy. I do not believe they have a conflict of
    interest. They are independent. They should do a good job.
        Senator Inhofe. Have the recent problems with the EPA
    Office of Emergency Management contributed to the Gold King
    Mine spill or affected EPA's response?
        Ms. McCarthy. I am not aware of recent problems with our
    Office of Environmental Management.
        Senator Inhofe. Then last, Senator Bennet made the
    statement that there is no denying that the EPA caused this
    disaster. Senator Gardner in his statement complained that you
    were not available for some period of time, your schedule did
    not permit, to discuss this with Senator Gardner. Is that
    incorrect?
        Ms. McCarthy. Well, sir, we have taken full responsibility
    without question.
        Senator Inhofe. I understand that.
        Ms. McCarthy. I was there on the 12th and 13th. The
    original response was quite hectic and ongoing. I certainly did
    not want my presence there to confuse the situation. But I am
    not aware that the Senator reached out to me in any way prior
    to that, that I did not respond to right away.
        Senator Inhofe. Did you hear his statement that he made?
        Ms. McCarthy. I did not hear his statement, sir, no.
        Senator Inhofe. You might look at that.
        Now, on another topic, because I have just a short while
    here, and it is very important. While you are here the
    Department of Justice recently told a Federal court that EPA
    would submit the final carbon rules to the Federal Register by
    September 4th and that publication would occur by late October.
    Did the EPA submit the rules to the Federal Register by
    September 4th?
        Ms. McCarthy. I am sorry, sir, I don't have those numbers
    in my head. I did not expect this question.
        Senator Inhofe. I know that, but this is significant,
    though, and we need to know. That was the deadline given and
    whether or not you complied with that deadline.
        Ms. McCarthy. I do not have the exact date.
        Senator Inhofe. Do you have staff here that can tell you
    that?
        Ms. McCarthy: I am sorry?
        Senator Inhofe. Do you have staff sitting here who might be
    able to answer that question?
        Ms. McCarthy. We can certainly get you the answer as
    quickly as possible. I do not have my Office of Air and
    Radiation staff here, given the subject matter of the hearing.
        Senator Inhofe. Are you aware that delaying publication
    until the end of October interferes with the ability of
    Congress and the public to legally challenge the rules before
    the big show in Paris?
        Ms. McCarthy. Sir, I am aware that both you and I want this
    to get into the Federal Register as soon as possible.
        Senator Inhofe. Senator Boxer.
        Senator Boxer. Thank you, Senator, thank you, Mr. Chairman.
        Administrator McCarthy, I want to point out that Senator
    Bennet did praise you for being available, so there is
    confusion. One said you weren't, the other one said you were.
    So I think--anyway I am moving on.
        Ms. McCarthy. I certainly had a conversation with Senator
    Gardner. I am unaware of being available.
        Senator Boxer. Good. We will clear it up.
        Administrator McCarthy, the Superfund law called for EPA to
    issue rules requiring certain industries to provide financial
    assurances for clean ups so that taxpayers are not on the hook.
    In 2009, EPA identified the hard rock mining industry as the
    first class of facilities requiring financial assurance rules.
    In other words, that they would be there, should their action
    cause a problem. EPA is undertaking this rulemaking, but now
    you are under court order to finish that rule by December 2017.
        Can you describe the steps EPA is taking to ensure that
    these critical rules are promulgated according to the court's
    schedule?
        Ms. McCarthy. We have also committed, Senator, to an August
    2016 draft. Prior to that draft, we intend to work with our
    sister Federal agencies so that we can be assured that the
    financial responsibility rule will be as accurate as it can be
    in terms of how much responsibility those parties should take
    for CERCLA clean up and how best to assure that that financial
    responsibility will be solid and appropriate.
        Senator Boxer. Administrator, how will these rules help
    assure taxpayers they are not on the hook for future clean ups?
        Ms. McCarthy. My understanding, Senator, is that we do have
    an ability to require financial responsibility for our existing
    and new active sites. The challenge for us are these legacy
    sites talking about like Gold King Mine, where we do not have a
    responsible party that we can lean to, that we will not be able
    to address those issues with this particular rulemaking.
        Senator Boxer. Administrator McCarthy, in response to the
    Gold King Mine spill, you issued a stop work order at all hard
    rock mine sites. You requested a review of whether those sites
    pose a potential for a blowout similar to what happened at the
    Gold King Mine. I want to thank you for that, because clearly,
    we do not want to play Russian roulette with these mines.
        I understand that the review has resulted in the suspension
    of clean ups at 10 sites, including three in California and
    four in Colorado. Again, I appreciate your quick action to
    identify other sites that could present a concern. Can you
    describe what actions EPA is taking to assess the potential
    risk at these sites?
        Ms. McCarthy. I can, Senator. You are absolutely right, we
    were very concerned that any similar situation learn from the
    independent review that is being done by DOI before they
    proceeded. So we have identified as best we can all of the
    sites that EPA is engaged in, which is a small fraction of the
    sites you want to look at. But it is over a couple of hundred.
        We are looking at the similarities between this and the
    Gold King Mine incident, and we are allowing sites to proceed
    where there is an imminent hazard. But if there is not, we are
    waiting for the review to be done so that we can make sure that
    similar sites learn the lessons that we are going to learn on
    the basis of what happened at the Gold King Mine and what the
    investigation by DOI and other independent entities indicate.
        Senator Boxer. Thank you. I think that is very common-sense
    and wise.
        Administrator McCarthy, one concern raised about clean ups
    of abandoned mines by Good Samaritans is who will be
    responsible if something goes wrong during the clean up. This
    is my concern. I love the fact that people can come forward and
    clean up, but who pays if things go wrong? And something could
    easily go wrong.
        So if Good Samaritans are not responsible, who would be on
    the hook for those costs? Would it not be taxpayers in those
    situations?
        Ms. McCarthy. Yes, it would be.
        Senator Boxer. OK, that is why I think it is critical that
    we can work together to come up with some rules that make some
    sense, so we can include Good Samaritans but not have a
    situation where they just go in there.
        Look, if EPA made this kind of mistake, and I know it
    weighs heavy on your heart, that EPA is in there and look what
    happened, now a Good Samaritan comes forward without any of the
    expertise, it could happen again. So we have to be very, very
    careful about it.
        I just want to say, the Obama administration has proposed
    reinstating the Superfund tax and establishing a fee on hard
    rock mining. I just think it makes all the sense in the world
    to get ahead of this. Everything costs something. You can't
    just wish it away and wish that it would be cleaned up.
        So I hope as a result of this hearing and your openness to
    reform that we can make some good reforms within EPA, but also
    that we can have a new era where we can work across party lines
    to truly clean up these sites. Thank you.
        Senator Inhofe. Thank you, Senator Boxer.
        Senator Rounds.
        Senator Rounds. Thank you, Mr. Chairman.
        Administrator McCarthy, I would like to follow up a little
    bit on what the chairman had started visiting with you about.
    On August 18th the EPA announced that the Department of the
    Interior would conduct an independent investigation into the
    causes of the spill and issue a report by late October.
    Subsequently, DOI announced that the Bureau of Reclamation
    would lead the review.
        However, it appears that there are several conflicts of
    interest that you have spoken about and that you don't believe
    were involved. You are disagreeing with there being conflicts.
    What I am curious about is, if this is an independent review
    and we are assuming that is the way you set it up to be, most
    certainly there would have been a contract or documentation as
    to what the expectations were from DOI.
        Is there a memorandum of agreement or other documentation
    concerning what the DOI would review? And if there is, why
    haven't we received copies as requested by this committee? EPW
    staff has requested the documents, including the charge
    questions or the scope of the DOI's work. But we have not
    received any of the information, this is as of last evening.
        Why has your agency not publicly released the documents?
    Will you commit to sending these documents to us following the
    conclusion of this hearing?
        Ms. McCarthy. Senator, we were as, I think, sensitive as
    you were to making sure that this review was truly independent.
    One of the decisions we made to ensure that was for EPA not to
    actually ourselves control the scope of the investigation. We
    thought it was important for the independence of DOI that they
    actually articulated that scope themselves so that EPA wouldn't
    be accused of narrowing that inappropriately.
        So we are leaving that up to DOI. I am happy to follow up
    to see if I can be helpful in getting any information on how
    they have defined that. But as far as I know, EPA has not seen
    that documentation either.
        Senator Rounds. I am sorry, but you said that you have an
    independent, you are anticipating an independent review, but
    you don't know if the EPA has seen the document which lays out
    the scope of the investigation by an independent firm?
        Ms. McCarthy. EPA did not dictate the scope of that
    investigation.
        Senator Rounds. But certainly you would have seen a copy of
    what would be expected of the independent agency?
        Ms. McCarthy. The independent agency is going to dictate
    that themselves, and we are going to actually live with
    whatever scope DOI is appropriate as an independent
    investigator.
        Senator Rounds. But by now that document should exist,
    shouldn't it? The reason why I am asking is because you have
    indicated that you have already stopped work at other
    locations.
        Ms. McCarthy. I have.
        Senator Rounds. Based upon the preliminary report. But it
    must be based upon some sort of understanding of the review in
    the first place.
        Ms. McCarthy. My understanding is that DOI indicated that
    they would do the review, they understood that they were going
    to be establishing the scope, and it is my understanding that
    they are intending to complete this review in October.
        Senator Rounds. So either the documents exist and your
    agency has not seen them, or second of all, the documents are
    still being developed. At which time my question would be,
    because if not, we should be able to see a copy of them, and it
    shouldn't be very tough to get them.
        Ms. McCarthy. Well, sir, I am continuing to try to make
    sure that EPA is not perceived as interfering in this
    investigation in any way that would question the independence
    of DOI's review. And that is what we are going to continue to
    do.
        Senator Rounds. If it is an independent review, though, it
    seems to me that the independent review agency would have at
    least provided you with a copy of what they are going to be
    reviewing and how they would do it.
        Ms. McCarthy. In this case, I do not believe that we have
    seen that type of documentation.
        Senator Rounds. You have not?
        Ms. McCarthy. Yes, we have seen the press release, that is
    what we have seen. And I know that their review is going to be
    looking at the incident itself and the contributing factors.
    Beyond that I haven't seen a limitation on how they are going
    to conduct that.
        Senator Rounds. Has there been a preliminary report issued
    to your agency from the independent DOI?
        Ms. McCarthy. No, sir, the only communication we have had
    was to look at the press release that was issued. We are hands-
    off on this to address the very issue that you are concerned
    about, which is our independence.
        Senator Rounds. But the reason why I am asking the question
    is, just a moment ago you indicated that you have already shut
    down work, I believe you have shut down work at other locations
    based upon the information already received and learned.
        Ms. McCarthy. A number of locations. Yes.
        Senator Rounds. Did that not come from DOI?
        Ms. McCarthy. Oh, no, no, that was our look from our own
    national mining subgroup or team, I guess, our National Mining
    Team, and EPA has done review of all of the NPL, the mines that
    are on our NPL list, and have taken a look at what might be
    even closely similar to this effort. They are consistently
    looking at those to see what should continue or not. But if
    there is any similarity or chance that we need to learn lessons
    here, those reviews and assessments and work is on hold pending
    the result of this investigation.
        Senator Rounds. Would that report which created the need to
    suspend the existing operations, would that be available for
    this committee to review at this time?
        Ms. McCarthy. That is available, sir, and that was just a
    memo that I sent, it was a directive to the agency which I
    thought was appropriate to do, to be very cautious that there
    was no way in which the Gold Mine release would happen again at
    another site. Because we were--I was unclear, and I will remain
    unclear until the independent review is done about what was the
    real contributing factor, what happened that we need to make
    sure will never happen again.
        Senator Rounds. Thank you for your testimony.
        Ms. McCarthy. Thank you, sir.
        Senator Inhofe. Thank you, Senator Rounds.
        Senator Cardin.
        Senator Cardin. Thank you, Mr. Chairman.
        Administrator McCarthy, one thing I would hope all of would
    agree upon is that we do want the independent review, and we
    want it done with the integrity of an independent review.
        Ms. McCarthy. Yes, sir.
        Senator Cardin. To understand what happened, as you said,
    to prevent this from happening in the future. So I think we all
    support that, and we appreciate your commitment to that
    independent review.
        I just want to ask a broader question, because I was
    listening to my colleagues' testimony. Hard rock mining, of
    course, took place in many parts of our country. But clearly
    the States that were directly impacted the most are the ones we
    heard from today, and there are thousands of abandoned mines.
    All look like they create some environmental challenges, some
    have been under control and have been pretty well understood.
    Others are much more problematic, and we are still evaluating
    the risk factors as to whether action is needed. And that was
    part of the process of this particular episode.
        I was impressed by Senator Heinrich's comment that we have
    not reviewed the laws for a long period of time. I understand
    the political environment we are operating under, where it is
    difficult to pass new environmental laws or to pass funding
    laws.
        But I would hope that we would get your evaluation as to
    whether the current laws, either the Clean Water Act or the BLM
    rules for inactive mines, are adequate. Do we really hold the
    right person accountable for the reclamation? Do we need to
    have a dedicated funding source to deal with these types of
    urgent needs in order to protect the environment and water for
    the communities involved?
        It seems to me that considering the challenge, if Senator
    Heinrich is correct, we are talking multi-tens of billions of
    dollars in outstanding needs, we need to at least understand
    this and have more transparent awareness that there are ongoing
    problems every day and yet, are we taking appropriate actions
    to make sure our communities are safe as they need to be? How
    do we go about doing that?
        Ms. McCarthy. Well, Senator, just to put this problem in
    perspective, we are talking about 23,000 abandoned mines in
    Colorado alone and more than 161,000 in the West and Alaska. So
    clearly this is a very large challenge.
        I think I would point to the fact that the Administration,
    in its fiscal year 2016 budget, actually proposed a fee that
    would be charged on hard rock mining to actually support a fund
    that would allow us to do a better job at tackling these
    abandoned mines and the continual impact that they are having
    on water quality.
        I think it is important to remember that many Federal
    agencies have jobs to do in this. But there is no leadership
    position that actually is the one that is accountable for the
    entire issue, and it makes it very difficult. From EPA's
    perspective, we really track the mines, which are only--a small
    percentage of what is out there on the abandoned mines actually
    make it into the NPL list, which is our responsibility to track
    and monitor and to take action if there is an imminent hazard
    or short term action.
        But in this case, it was a mine that is not on that list,
    that the local community did not want on that list. But the
    State was unable on their own wherewithal to address this
    challenge. We have been working for 17 to 20 years to try and
    figure out how to address the 400 mines in the upper Animas
    River. It is an incredible challenge.
        But when EPA responded when the State wanted us to look at
    this issue, the pressurization behind the Gold King Mine, which
    had been going on unattenuated for quite some time, and we went
    with them on the site, we developed a work plan with them, that
    work plan went to public meetings, to the stakeholder group in
    the Animas River, it was completely open, completely
    transparent. Everybody agreed our next steps, and those are the
    next steps we took.
        Senator Cardin. I thank you for that. I just ask that you
    keep us--advise as to whether you have adequate tools, where we
    talked about your budget with a dedicated funding source,
    whether the laws are strong enough. Because the bottom line is
    we want to protect the communities, and we want to hold those
    that are responsible accountable for the reclamation. It seems
    to me that the tools could be stronger from what you testified.
        Ms. McCarthy. Yes, sir, thank you.
        Senator Inhofe. Thank you, Senator Cardin.
        Senator Sullivan.
        Senator Sullivan. Administrator McCarthy, good morning. I
    want to echo kind of what our panel mentioned at the outset
    Senator Udall talked about water is life out West, I think that
    is something we all agree with, certainly we want clean water.
    I agree with Senator Boxer that we all want to make sure that
    polluters are accountable to help make sure we keep our water
    clean.
        But I also want to emphasize what Senator Gardner talked
    about, where we also believe that the Government should be held
    to the same standards as it requires of the public and the
    private sector. Do you believe that?
        Ms. McCarthy. Absolutely. Actually a higher standard would
    be quite appropriate.
        Senator Sullivan. Do you believe that agencies like the EPA
    should be subject to the same transparency in reporting
    requirements that the public is?
        Ms. McCarthy. I believe that is the reason why the NPL
    sites are on the NPL list.
        Senator Sullivan. What do you think would happen to a
    private company if they did what the EPA had done in this
    episode with the Animas River, accidentally causing a blowout,
    very significant pollution, some arguments saying it took too
    long to notify? What do you think would happen to a private
    sector company that that happened to?
        Ms. McCarthy. In my estimation, and again, the facts will
    be borne out or not by the independent review, but the way in
    which you do an action like this, which is difficult to do, is
    you first make sure that if there is an accident----
        Senator Rounds. Let's assume that----
        Ms. McCarthy. I am trying to explain. My answer is----
        Senator Sullivan. I don't have a lot of time. What would
    you think would happen if you guys hired a contractor that
    accidentally caused the eruption, what do you think would
    happen to a private sector company?
        Ms. McCarthy. Exactly the same thing that EPA did if they
    take the same steps that EPA did.
        Senator Sullivan. What kind of penalties would happen to--
    --
        Ms. McCarthy. There would be no penalties unless it was
    against a settlement or an order.
        Senator Sullivan. Mr. Chairman, I would like to submit for
    the record a Wall Street Journal article from September 9th,
    2015, that lays out several examples of even smaller than this
    private sector companies where there was an accident, there was
    pollution, and there were officials that were criminally
    charged, some went to jail.
        Senator Inhofe. Without objection.
        [The referenced article follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Sullivan. If you think that the EPA should be held
    to the same standards as private sector companies or a higher
    standard, do you think anyone from the EPA should be held
    criminally liable or go to jail for what happened?
        Ms. McCarthy. I have not received the independent review
    that is going to fully tell me what happened at that site using
    an independent voice and eye. I am looking forward to that.
    But, Senator, the sequence of events when you have a spill is
    to keep your people safe at the site. It is then to stop the
    spill as quickly as possible, and it is then to ensure the
    clean up. That is exactly what EPA is----
        Senator Sullivan. All I am saying, Administrator, is your
    agency has, on a number of occasions, according to this
    article, criminally charged people for accidental spills, and
    some have gone to jail on spills smaller than what you just
    described. So if you are going to hold your agency to a higher
    standard than the private sector, you need to be aware of what
    you have done as an agency in the past.
        And I do want to mention, this is a frustration, I think it
    is a frustration throughout the country, I think it is a
    frustration of why people have focused on this. We have, like
    the other States, abandoned mines in Alaska. We also have
    abandoned legacy wells. I know it is not EPA's responsibility,
    but on BLM land, we have wells that are still leaking oil right
    now. Right now. If you were a private sector CEO in charge of a
    company like that, you would be in jail. Right now BLM allows
    abandoned wells to leak all over the State of Alaska, they
    don't clean these up.
        Let me talk more broadly. I am assuming you also believe
    the EPA should be following the law like the private sector and
    U.S. citizens have to do, correct?
        Ms. McCarthy. Of course, sir. Yes.
        Senator Sullivan. So are you familiar with the Michigan v.
    EPA case, Supreme Court case from the last session that the
    Supreme Court had, Utility Air Regulators v. EPA, and just a
    recent case, North Dakota, Alaska sued the EPA? Are you
    familiar with those cases? Just came out as a preliminary
    injunction.
        Ms. McCarthy. Are you talking about the Clean Water Rule,
    sir?
        Senator Sullivan. These are just three instances in the
    last year and a half, two Supreme Court cases where the EPA has
    either violated the Constitution, the Clean Water Act or the
    Clean Air Act.
        Ms. McCarthy. Sir, I wouldn't characterize it that way, but
    I understand the point that you are trying to make.
        Senator Sullivan. That is exactly the way to characterize
    it; read the opinions. What would happen to a private sector
    company if it was continually violating the law the way the EPA
    does?
        Ms. McCarthy. I don't believe we are violating the law,
    sir.
        Senator Sullivan. Have you read the Michigan v. EPA case?
        Ms. McCarthy. I am familiar with that.
        Senator Sullivan. Have you read the Utility Air Regulators
    v. EPA?
        Ms. McCarthy. I understand that there is a preliminary
    injunction.
        Senator Sullivan. No, these are two U.S. Supreme Court
    cases that said the EPA violated the Clean Water Act and the
    Clean Air Act. The North Dakota Federal Court just recently
    said, the Waters of the U.S. Rule, which we have debated here,
    a lot of us think it violates the law, we had a Federal Court
    saying that it is very likely that it did violate the law.
        Do you think a private sector company could serially
    violate the law and not pay consequences?
        Ms. McCarthy. So this is the way the process works when you
    do rules. EPA interprets the law as best it can, it develops
    the rules. The vast majority of them do go to court and the
    vast majority, EPA wins. The times we don't we listen to that
    court decision and we take appropriate action. That does not
    mean we have violated the law or the Constitution.
        Senator Sullivan. I think you need to reread these cases,
    because that is exactly what the Supreme Court said.
        Thank you, Mr. Chairman.
        Senator Inhofe. Thank you Senator, Sullivan.
        Senator Markey.
        Senator Markey. Thank you, Mr. Chairman, very much, and
    thank you, Administrator McCarthy, for being here today.
        So we have a big mess on our hands. We are dealing here
    with a law that was passed in 1872. Ulysses S. Grant was the
    President of the United States, and it hasn't been amended
    since then. And he did a great job, by the way, on winning the
    Civil War, just a great job. I just want to compliment him on
    that.
        This law may have been appropriate for 1872. We were trying
    to get people to go out West. Colorado isn't even a State yet
    for 4 more years. We have to get people out there, we are
    trying to get people to populate these States.
        In 1872 the law passes, in 1876, Colorado becomes a State.
    So the law says, you get out there, kind of like the Homestead
    Act, we will give you access to these mines for free.
        Now it is 2015, some people say there are 160,000 abandoned
    mines, some other groups say there are 500,000 abandoned mines.
    What is the revenue stream to put in place in order to ensure
    that we don't see more accidents like this happening? We don't
    have a revenue stream.
        What we did in the end of the 1970s, beginning of the
    1980s, we created a Superfund Program, a program that was
    intended to deal with the worst sites across the country, Love
    Canal in New York State, Woburn, which was the subject of the
    movie A Civil Action, in Massachusetts, in my congressional
    district. And we put that program in place.
        But the mining industry, even today, doesn't want to pay
    for the minerals that are on Federal lands. These are
    taxpayers' minerals that the companies believe that they should
    get for free. For free.
        Now, over in the House of Representatives I was the ranking
    member on the National Resources Committee, and I introduced a
    bill saying that they should have to pay. You can't have this
    bargain basement giveaway sale any longer. We need a revenue
    stream so that we can put programs in place that ensure that we
    begin to work on the worst of these sites in a much more
    aggressive fashion.
        That is something that you would think we could agree that
    is necessary 147 years later, after the law was passed to deal
    with the mess, the obvious mess that has been created.
        So do you agree, Madam Administrator, that the revenue
    stream is just completely insufficient in order to deal with
    the magnitude of the problem which this incident demonstrates
    is just looming out there as a continuing threat to the
    environment of our country?
        Ms. McCarthy. I think the President's fiscal year 2016
    budget and earlier that suggested that we need a fee revenue
    that is based on the polluter pays principle, that is exactly
    the same way that coal mines are treated and those abandoned
    coal mines are cleaned up. It is the same kind of source that
    we need to be looking for here to be instituted by Congress to
    begin to tackle this issue more effectively.
        Senator Markey. I would hope my Republican friends could
    agree that it is time for us to put a fee on this. Giving it
    away, letting them mine, letting them abandon, and then not
    having a revenue source to deal with the mess that is created
    makes no sense at all. I would hope that we could work together
    on this. Although I found in the House of Representatives it
    was impossible to find Republican supporters for something like
    this.
        It does leave kind of a regulatory black hole. And the
    alternative, of course, that some Republicans continue to
    propound, is that we should have a kind of a Good Samaritan law
    where we just kind of waive the rules. Waive them. I think that
    whatever minimal set of laws we have on the books just can't be
    cavalierly waived, that is kind of the last wall of
    environmental protections which we have. So you have to be very
    careful when you go down that route.
        But it would just seem to me that, I know that people don't
    like to hear it, but you need money. When you have 160,000 or
    500,000 abandoned mines, all potentially leaching into now a
    much more populated Colorado, a much more populated New Mexico,
    because of those policies, that you now have a danger with
    regard to the health, the air, the water, of people who live
    near them. It is time for us to do something about it.
        Thank you, Madam Administrator, for your great work.
        Senator Inhofe. Thank you, Senator Markey.
        Senator Barrasso.
        Senator Barrasso. Thank you, Mr. Chairman.
        And thank you, Madam Administrator. It is good to see you.
    Later today I will be chairing the Indian Affairs Committee to
    better understand how the EPA's actions are impacting the
    Indian tribes downstream from the Gold King site. I thank you
    for agreeing to appear, and I anticipate we will again have a
    similar robust discussion.
        Senator Bennet, who was on the panel before you came in,
    said, there is no denying that EPA caused this disaster. He is
    very thoughtful. This has happened in his home State. He has a
    bipartisan concern about what happened.
        And my question to you is, isn't it true that when a
    private company is accused of violating the Clean Water Act
    that the EPA, under your specific leadership, has aggressively
    pursued civil fines against the company and individuals within
    the company? Isn't it true that if there was a 3 million gallon
    toxic spill caused by actions of private citizens that the EPA
    would act aggressively against that company, against those
    citizens? How large of a fine would the EPA be pursuing under
    those cases?
        Ms. McCarthy. Senator, we were there to correct what we
    know to be a significant problem. There is no question that the
    actions of EPA contributed to this spill.
        But that does not mean that we or another private sector
    person would be accused of violating intentionally the Clean
    Water Act. They would be told to do exactly what we are doing,
    which is to aggressively get their people to safety,
    aggressively stop the spill, make sure it didn't happen again.
        Senator Barrasso. The EPA caused this disaster. That is
    what Senator Bennet says and I agree with him. I just think the
    EPA ought to be held to even a higher standard.
        But the aggressive nature of this EPA under your direction
    I think says that there is clearly a double standard between
    the way that EPA treats itself and looks to itself and how it
    treats private companies.
        On a second but related EPA water management issue, I would
    like to discuss the EPA's Waters of the United States Rule.
    Over and over again, the preamble to the Waters of the United
    States rule says that it is based on ``the science and the
    expertise and experience of the agencies.'' Doesn't appear to
    have any support for these statements in any of the rulemaking
    record.
        In an attempt to understand the basis for the final rule,
    this committee, through the leadership of our chairman, sent
    letters to EPA and the Army Corps of Engineers asking for
    documents that support the final rule. Asking EPA for copies of
    the scientific studies, asking the Army Corps of Engineers for
    examples of field experience, because you say you use both.
        In a letter dated August 17, Deputy Assistant Administrator
    Ken Kopocis did not identify any scientific studies to support
    the decisions made in the final ruling. Instead, he offered the
    staff a briefing. At that briefing, the EPA took the position
    that the ``science'' just supports the idea that all water is
    connected. He said all water is connected.
        That is not the law of the land, is it? The law talks about
    navigable waters and the Federal Government. That is the best
    that your Administration could do for the EPA about waters. It
    is all connected. That is their science.
        Separately, in a letter dated August 28, Assistant
    Secretary of the Army Jo-Ellen Darcy told the committee that
    the Army didn't rely on any field observations to support the
    rule. None. But that is what you say they did. So this
    statement is consistent with memos that General Peabody of the
    Corps sent to the Secretary when the final rule was under
    review.
        So if the final rule isn't based on any science and the
    final rule isn't based on the Corps' experience in the field,
    what did you base it on?
        Ms. McCarthy. Senator, we did base it on the science and
    experience of both the EPA and the Army.
        Senator Barrasso. That is not what your staff and the Army
    Corps of Engineers is saying. It sounds to me that you are
    making it up as you go, and you are in charge of everything.
        Ms. McCarthy. But I would point the committee to the record
    on our work we have done on the water connectivity study which
    does look at more than, I think, close to 2,000 studies that is
    available, that went through the normal science advisory board
    subcommittee process. In fact, we also have the technical
    support document that is in the record that is the basis for
    many of the decisions in the Clean Water Rule.
        So those are already available. Perhaps we could sit down
    with your staff again.
        Senator Barrasso. We would like to do that because it is
    still based on the idea that all water is connected, period.
    And we would disagree with you on that.
        Ms. McCarthy. OK.
        Senator Barrasso. Finally, in August the EPA released the
    Federal Clean Power Plant Final Rule. The economies in many
    States, including my home State of Wyoming, are going to be
    devastated by this. According to a study issued August 4th
    through the University of Wyoming, our public policy energy
    economics, we could face the loss of 7,000 to 11,000 jobs in
    just the coal mining, coal generation, coal transport sectors.
    That doesn't account for all the local businesses that are
    going to lose revenue as a result of these job losses.
        The study also found that my State could lose up to 60
    percent of its State coal revenue, which is money that goes to
    fund schools, roads, water treatment facilities, emergency
    medical services, all things that makes people's lives better,
    keeps them safer.
        So your plan is taking that away from people in my State
    and other States, States that have strong energy sectors. The
    costs of your regulations are real, they are immediate, and
    they are destructive. The benefits of your regulations are
    theoretical and unproven. My question is, how does your Clean
    Power Plan mitigate those impacts and the direct damage that
    your new regulations do to Wyoming people, people from other
    States? And how do you make those lives whole?
        Ms. McCarthy. We actually believe we have done this rule in
    a way that is flexible, that looked at States' concerns, that
    provided significant time, that is going to achieve significant
    reductions, that will allow us to provide leadership we need to
    address what is essentially the greatest environmental
    challenge of our time, which is the challenge of climate
    change.
        Senator Barrasso. Thank you, Mr. Chairman.
        Senator Inhofe. Thank you, Senator Barrasso.
        Senator Capito.
        Ms. McCarthy. I apologize, Mr. Chairman, I just wanted to
    let you know that I did get the information you were seeking on
    the Clean Power Plan and when the rule was submitted. So I can
    provide that.
        Senator Inhofe. The September 4th deadline, is that what
    you are talking about?
        Ms. McCarthy. Yes, it was sent to the Register on September
    4th, and we still expect it to be published in October. So I
    just wanted to let you know.
        Senator Inhofe. So it was submitted on September 4th.
        Ms. McCarthy. That's correct.
        Senator Inhofe. Thank you very much.
        Senator Capito.
        Senator Capito. Thank you, Madam Administrator. Thank you
    for being here.
        Just a quick question on the contractor issue. It has been
    mentioned that EPA had contracted a private contractor to do
    the work. Does the private contractor have a liability issue
    here, or is that something that they are released from when
    they contract with EPA?
        Ms. McCarthy. The contractor has to follow the work plan
    and the task order that they have been given. It is a
    contractor that has been working with the agency for a number
    of years and has worked on 15 mine sites before. But they were
    working under the direction of our on-scene coordinator.
        Senator Capito. So they were taking direction from EPA, so
    those were EPA's direct orders that actually caused the damage?
        Ms. McCarthy. The work plan that we developed was being
    followed as far as I know. But that is one of the things that
    we would expect an independent review to look at.
        Senator Capito. Yes, I am looking for accountability here,
    as I think we all are, and you are as well.
        Because as you know, I live in a community that has had our
    waters, we had the chemical spill causing a lot of disruption
    and a lot of health concerns and other concerns. Those
    executives have just recently been sentenced and will be
    serving time.
        But one of the issues that came out of this is business
    interruption. Senator Gardner brought this up about rafters, I
    think Senator Bennet as well, other people who have lost their
    revenues for the year because of this. Then they are going to
    have the stigma attached to it which is going to be even more
    difficult for them to regain this.
        Is this part of your restitution, that you could possibly
    go back to a community, is that within the bounds of the EPA to
    be able to do things like this?
        Ms. McCarthy. Senator, first of all, EPA is not arguing
    that we are responsible for the clean up here.
        Senator Capito. Right.
        Ms. McCarthy. So whatever happens with the contractor
    happens, but we are taking full responsibility. There is a
    claim process, in fact we received a number of claims from
    small businesses exactly related to the issues that you
    identified. The Federal law that allows those claims to be
    processed appropriately and we will do that. Those are well
    within the boundaries of what a Federal Claims Tort Act is
    supposed to be compensating.
        Senator Capito. OK, so I would love to have follow up on
    that to know how successful that has been. I see the president
    of the Navajo Nation there, and it is very important for them
    as well.
        Another issue that was on the crisis response plan, Senator
    Gardner mentioned when he was onsite 4 days later, there was
    still not an adequate appropriate crisis response plan or team
    in place. Would you have a response to that?
        Ms. McCarthy. I apologize that I was not here, I wasn't
    realizing that the Senator was testifying. So we actually had a
    response team in place, we had on-scene coordinators, we had
    more than a couple of hundred EPA staff. We immediately put
    them in motion, how to set up incident command centers. We had
    an area command center that we have since set up. We moved as
    quickly as we could.
        But we will always be able to look back and see whether we
    could have done it better, could we have done it quicker, what
    are the lessons we need to learn from this.
        Senator Capito. Do you anticipate that will be part of the
    report, that they'll be looking at the crisis report, the
    crisis response?
        Ms. McCarthy. If they don't, I know the Office of Inspector
    General will certainly be looking at that, and EPA
    independently will be looking at that as well.
        Senator Capito. Because that was a huge issue in the spill
    that we had. And also in the timing, I think there was some,
    the National Response Center was not notified until an hour and
    half later. You were lucky because you were able to get the
    downwater folks who had water intakes to be able, you had
    enough mileage there.
        Ms. McCarthy. Yes, we did.
        Senator Capito. But if at the source, which happened in our
    community, you wouldn't have had that time. And it was blamed
    on lack of cell service in the area. Living in a rural
    community I can identify with that. But certainly there would
    be some kind of satellite phone, or some other way to get an
    immediate response.
        Ms. McCarthy. That is one of the things we are looking at,
    Senator. We agree that we could have done better on
    notifications. It is a process we work on with the States. And
    in this case we were in a remote area, we know we got hold of
    our State partners immediately. Those partners went down and
    notified the National Response Center and it triggered all of
    the appropriate notifications.
        As you said, the good news is we got there before the plume
    did and any of the areas in which it could have caused a
    problem in terms of irrigation diversions or other water
    infrastructure diversion.
        Senator Capito. Then I think the controversy of the 1
    million as opposed to the 3 million is something we need to
    examine as well. Other issues that come to my mind are the
    health issues, medical monitoring and such. You don't really
    know with the combination of the metals that are in this water,
    has that been sufficiently tested? Do we know what the serious
    effects are? I am just raising questions that I think need to
    be raised.
        I would like to say, just in final, because I just have a
    couple of seconds remaining, on the Clean Power Plan. You know
    this is going to impact my State a great deal. We have the
    highest unemployment in our State right now, and it is directly
    attributable to a lot of things, natural gas, yes. But also to
    the regulatory environment, everything you see. We have
    thousands of West Virginians who have lost their jobs. It is a
    concern to me every day.
        It is a sad affair. I wish you would come and talk with the
    folks that these regulations are very deeply affecting. It is
    difficult for our county commissioners, who are laying off
    people, their school systems can no longer function because of
    lack of tax revenue, our unemployment fund in our State is now
    under serious attack.
        We are hurting here. And when this regulation goes into
    effect, it is going to have an even more devastating effect on
    us directly, probably our State most directly affected. Thank
    you.
        Senator Inhofe. Thank you, Senator Capito.
        Senator Boozman.
        Senator Boozman. Thank you, Mr. Chairman.
        Thank you very much for being here today. I think the issue
    of the double standard really is important. People have lost
    faith in government. Your agency has a reputation of being
    aggressive, sometimes heavy handed, in dealing with individuals
    that have had problems in this regard. It seems like the
    initial reaction, and you did the right things early on.
        The initial reaction of the agency really did seem to
    downplay the extent of the damage. That went on until literally
    the river turned orange and then everybody could figure out
    this was a big deal. Statements like ``the water is healing
    itself,'' if an oil executive would have said things like that
    people would have gone ballistic.
        So again we will have to wait and see what comes out of the
    IG report; we will have to wait until the Department of
    Interior, things like that. But I do think it is fair to say
    that the initial reaction downplaying or appearing to downplay
    in regard to the public, I think we have enough information to
    say that was done very, very poorly.
        Mr. McCarthy. Senator, I appreciate your concern. There is
    no way in which EPA should have downplayed this spill. I
    certainly did not. We have taken full responsibility, and I
    will work hard to show you that we are following the same
    standards of excellence that we demand of others. This was a
    devastating thing not just for those communities but for EPA as
    well.
        And we will learn from this, but it has been a very, very
    hard lesson for all of us, and it will continue. We have long
    term obligations here, and I have made it very clear that EPA
    is not going away, and it is going to meet those long term
    responsibilities.
        Senator Boozman. Thank you. You mentioned earlier that you
    have an old mine, and again I don't understand all that is
    going on in there, but pressure built up and all of those kinds
    of things.
        I guess with all of that happening, why, I believe on
    September 9th, in the House Science Committee a witness
    testified that an engineer wasn't consulted. Why is that the
    case? Why would an engineer not be involved in the planning?
    One of the witnesses testified the work at the Gold King Mine
    was not developed by a professional engineer. Why would that be
    the case?
        Ms. McCarthy. I do not know why that was stated. My
    understanding is that the actual work plan, EPA was called in
    to assist for the very reason a problem happened, which is that
    a blowout was seen as likely inevitable and we wanted to get in
    and help the State take care of that, at their request. Our OSC
    was a mining engineer, our on-scene coordinator. We developed
    this plan with the State. We both developed this plan.
        Then we worked with the Animas River stakeholder group
    which is filled with mining experts and local constituencies,
    and we did public hearings on this work plan before we actually
    initiated the work.
        So we had a lot of engineering expertise and eyes on this
    work plan. The way this happened was as sad for us as it was
    for anybody. We did not certainly anticipate that the work we
    were doing would have aggravated the situation. We were there
    to actually relieve the situation that we knew was building up.
        Senator Boozman. We will look and see about the
    discrepancy. My understanding is that the removal actions are
    classified into three categories: emergency, time critical,
    non-time critical. Can you tell us what the difference is in
    the sense of which category to use for a particular action?
        Ms. McCarthy. Senator, if it is possible I am happy to
    respond in writing afterwards. I am not sure I will get the
    nuances correct.
        Senator Boozman. I can identify with that. Thank you very
    much.
        Ms. McCarthy. Thank you.
        Senator Inhofe. Thank you, Senator Boozman.
        Senator Fischer.
        Senator Fischer. Thank you, Mr. Chairman.
        Welcome, Administrator. I like to kind of drill down on
    some items that Senator Capito brought up about cell phone
    coverage. In the Omaha World Herald there was an article on
    September 12th that stated there was no cell phone coverage at
    the gold mine the day of the spill. That was confirmed in an
    August 16th e-mail that was posted on your agency's Web site
    which also said, ``No satellite phone was at the local.''
        So just to clarify, there wasn't a cell phone, there was no
    satellite phone, there was no way to immediately communicate to
    those downstream when the toxic water began rushing out. So my
    question is, was the EPA really properly prepared to inform
    local communities if there was a spill that happened, and which
    did happen?
        Ms. McCarthy. Senator, I cannot at this point confirm to
    you about the cell coverage. I apologize, I will get back to
    you on that.
        But clearly, better notification would have been beneficial
    to all of us. That is one of the reasons why we have actually
    asked for a review of all of this internally and a beefing up
    of our notification process. It is a very secluded and
    difficult place to reach. But we did get in touch with our
    colleagues in Colorado very quickly. We were able to get to
    those downstream areas and make sure that those diversions were
    protected before the plume arrived there. Because it is quite a
    distance away from any populated area.
        Senator Fischer. And I would imagine that you will be
    looking at how plans are developed in the future too, not just
    with the subcontractors but also EPA itself.
        Ms. McCarthy. Absolutely, our internal review indicated
    that that is one of our first orders of business.
        Senator Fischer. And to follow up with Senator Boozman, he
    said the plan was not developed by professional engineers with
    the subcontractor, and they were the ones that were performing
    the work onsite when the blowout occurred. Is that correct?
        Ms. McCarthy. Under the direction of the on-scene
    coordinator.
        Senator Fischer. Did the EPA have an emergency action plan?
    Any kind of contingency plan on your own?
        Ms. McCarthy. The EPA required it from the contractor. The
    contractor developed their own, and that is something our
    internal review looked at. But there may be broader emergency
    plans that are also appropriate that I can't speak to at this
    point.
        Senator Fischer. Did I understand you correctly when you
    said the EPA was very active in developing the plan with the
    subcontractor, is that correct? The health and safety plan?
        Ms. McCarthy. The work plan for the actual actions and work
    at the site was developed with the State of Colorado and EPA.
        Senator Fischer. The health and safety plan, were you
    involved in that development?
        Ms. McCarthy. I do not know whether there was back and
    forth with the contractor. The contractor did develop a plan,
    but that plan was seen by the internal review team when they
    looked at it, at EPA as being inadequate to address a blowout
    situation.
        Senator Fischer. Do you have copies of correspondence you
    could provide us with that would outline the involvement of
    EPA?
        Ms. McCarthy. Well, on the Web already there is both the
    request for proposal, there is the work plan, there is the task
    order. All of those issues have been posted. I do not know
    whether there is additional communication that we can provide.
        Senator Fischer. I would really like to see the health and
    safety plan and be able to understand in more detail the
    involvement of EPA in that.
        Ms. McCarthy. We are happy to point that out to you,
    Senator.
        Senator Fischer. I hear a lot of confusion on the plan and
    how important it could have been in this spill we are dealing
    with here.
        I would like to question you, I have a few seconds left
    here, about notifications to the jurisdictions within the State
    of Colorado. It is my understanding that in fact the EPA did
    not notify irrigation districts, and they did not know about
    this until the yellow plume reached their irrigation waters.
    Have you been made aware of any information concerning that?
        Ms. McCarthy. Well, I am aware, Senator, that the way in
    which we develop contingency plans is for us to very much rely
    on the State to know where those diversions are, and to be able
    to work with us to appropriately identify and notify all of the
    key stakeholders here. I do not know of anything in particular
    but I am happy to follow up if you have names that are
    concerned.
        Senator Fischer. Would you say the EPA has followed all the
    notice requirements of section 103 of the Comprehensive
    Environmental Response Compensation and Liability Act, as well
    as section 304 of the Emergency Planning and Community Right to
    Know Act? There is some discrepancy out there on if the EPA
    really did follow the requirements that you are supposed to do.
        Ms. McCarthy. I am happy to get back to you on it.
    Obviously, I don't have those at my fingertips. But I think we
    have very much said that the notification could have been
    better. One of things we identified that we followed up is that
    we have to continually update these lists as does the State
    working hand in hand with us. Because clearly, we don't want
    EPA wanting to know the business of every river and stream. But
    we need to make sure we constantly do that and test to make
    sure we have done it right. So we will get to those issues, and
    we are not suggesting that there isn't room for improvement
    here.
        Senator Fischer. If you could get back to me in a timely
    manner I would appreciate it. I always thank you for offering
    to get back, but sometimes it is months and months and months.
    So if you could try to get me some information, why don't we
    say by Thanksgiving, that would be helpful.
        Ms. McCarthy. Well, I think we will try to do better than
    that.
        Senator Fischer. I would appreciate that. Thank you,
    Administrator.
        Senator Inhofe. Thank you, Senator Fischer, and thank you,
    Madam Administrator. We are adjourned.
        [Whereupon, at 11:36 a.m., the hearing was adjourned.]
        [An additional statement submitted for the record follows:]

                     Statement of Hon. Sheldon Whitehouse,
                  U.S. Senator from the State of Rhode Island

        The Gold King Mine Spill is and will continue to be an
    environmental nightmare for Colorado and other western States.
    So I thank Chairman Inhofe for drawing attention to this
    important issue.
        I share the frustration of my colleagues on both sides of
    the aisle with this situation. I think we can agree that 3
    million gallons of contaminated wastewater flowing into a
    tributary of the Animas River is a serious problem.
    Consequences will likely be long-lived and are already
    widespread across Colorado, New Mexico, and Utah. Rivers in
    these regions provide water to homes, farms, and recreational
    areas. Thankfully, EPA is taking action, and progress is being
    made to aid in the clean up effort.
        Today we are likely to hear from my Republican colleagues
    lots of talk about negligence, but this finger pointing I
    believe is misguided and lacks understanding of the original
    problem--the polluters. It also won't take away the fact that
    clean up at the Colorado site, which includes operation of a
    temporary water treatment facility, will cost around $3
    million. And because the Gold King mine was not designated a
    Superfund site, the region is not privy to larger pots of the
    Superfund Remedial Program funding.
        What we will not hear from our Republican colleagues is
    that, according to the GAO, there are 161,000 abandoned hard
    rock mine sites in 12 western States and Alaska. Of those,
    33,000 have degraded environmental conditions. These abandoned
    sites don't clean themselves up. Some have been festering for
    decades upon decades. Cleaning up these sites isn't free. So
    one would think that the both parties would be interested in
    actually making sure we can clean up these mines responsibly
    and with adequate resources. Especially because in the U.S.
    close to 50 million people live within 3 miles of Superfund
    sites.
        The Superfund account has been shrinking each year since
    fiscal year 2010, from $1.3 billion down to $1.08 billion in
    2014. This year, the President's budget asked for $1.15
    billion. The House came back with $1.09 billion, while the
    Senate reported out $1.1 billion. The trend was similar last
    year, where the President requested $1.16 billion and enacted
    level was at $1.09 billion. It's our job to make sure the
    programs which protect our communities and environment are
    working.
        EPA also administers other important clean up programs like
    the brownfields program and the Leaking Underground Storage
    Tank Trust Fund.
        The brownfields program helps underwrite the clean up of
    sites not covered under the Superfund program. According to the
    EPA, every dollar invested in brownfield clean up has been
    shown to yield nearly $18 in economic development benefits--
    from new jobs to development of remediated sites to increased
    property values in surrounding areas. Rhode Island has
    benefited from the program, and this year we received five
    clean up grants totaling $1.32 million.
        As we look for a way forward on the Gold King Mine clean
    up, I urge my colleagues to consider the environmental and
    economic consequences of consistently shortchanging
    environmental tools like the Superfund account. The
    Environmental Protection Agency's mission--to protect human
    health and the environment--is one of the most fundamental
    responsibilities of the Federal Government. EPA is developing
    and implementing some of the most important health protections
    ever needed, and they need continued support from Congress to
    do so.