[Senate Hearing 114-187]
[From the U.S. Government Publishing Office]
S. Hrg. 114-187
EPA'S GOLD KING MINE DISASTER: EXAMINING THE HARMFUL IMPACTS TO INDIAN
COUNTRY
=======================================================================
HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 16, 2015
__________
Printed for the use of the Committee on Indian Affairs
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COMMITTEE ON INDIAN AFFAIRS
JOHN BARRASSO, Wyoming, Chairman
JON TESTER, Montana, Vice Chairman
JOHN McCAIN, Arizona MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska TOM UDALL, New Mexico
JOHN HOEVEN, North Dakota AL FRANKEN, Minnesota
JAMES LANKFORD, Oklahoma BRIAN SCHATZ, Hawaii
STEVE DAINES, Montana HEIDI HEITKAMP, North Dakota
MIKE CRAPO, Idaho
JERRY MORAN, Kansas
T. Michael Andrews, Majority Staff Director and Chief Counsel
Anthony Walters, Minority Staff Director and Chief Counsel
C O N T E N T S
----------
Page
Hearing held on September 16, 2015............................... 1
Statement of Senator Barrasso.................................... 1
Statement of Senator Bennet...................................... 8
Statement of Senator Daines...................................... 26
Statement of Senator Gardner..................................... 7
Statement of Senator Heinrich.................................... 9
Statement of Senator Heitkamp.................................... 25
Statement of Senator Hoeven...................................... 23
Statement of Senator Lankford.................................... 27
Statement of Senator McCain...................................... 5
Statement of Senator Tester...................................... 3
Statement of Senator Udall....................................... 5
Witnesses
Begaye, Hon. Russell, President, Navajo Nation................... 29
Prepared statement........................................... 31
Harrison, Gilbert, Rancher and Irrigator, Navajo Nation.......... 59
Prepared statement........................................... 60
Holtz-Eakin, Douglas President, American Action Forum............ 42
Prepared statement........................................... 43
McCarthy, Hon. Gina, Administrator, U.S. Environmental Protection
Agency......................................................... 11
Prepared statement........................................... 12
Olguin, Hon. James ``Mike'', Tribal Council Member, Southern Ute
Indian Tribe................................................... 37
Prepared statement........................................... 39
Weindorf, David C., Associate Dean for Research, College of
Agricultural Sciences and Natural Resources, Texas Tech
University..................................................... 47
Prepared statement........................................... 50
Appendix
Bates, LoRenzo, Navajo Nation Council Delegate for the
Communities of Nenahnezad, Newcomb, San Juan, Tiis Tsoh Sikaad,
Tse'Daa'Kaan, and Upper Fruitland, prepared statement.......... 71
Freeman, Nancy, Executive Director, Ground Water Awareness
League, prepared statement..................................... 73
Response to Written Questions Submitted by Hon. James Lankford to
Hon. Gina McCarthy............................................. 77
Yazzie, Hon. Duane ``Chili'', Chapter President, Navajo Nation,
prepared statement............................................. 76
EPA'S GOLD KING MINE DISASTER:
EXAMINING THE HARMFUL IMPACTS TO
INDIAN COUNTRY
----------
WEDNESDAY, SEPTEMBER 16, 2015
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:15 p.m. in room
628, Dirksen Senate Office Building, Hon. John Barrasso,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM WYOMING
The Chairman. Good afternoon. I call this hearing to order.
Today we will examine the short and long-term impacts to
tribal communities from the tragic spill of 3 million gallons
of toxic wastewater from the Gold King Mine by Environmental
Protection Agency personnel and their contractors. This toxic
wastewater was first unleashed into the Cement Creek, a
tributary of the Animas River, in Colorado and then flowed
downstream to the San Juan River. The reach and repercussions
of the August 5th disaster are substantial.
This disaster is commanding attention from no less than
four congressional committees in both the House and the Senate.
Just this morning, the Senate Environment and Public Works
Committee, on which I also serve, held an oversight hearing on
the matter.
This Committee hearing will focus on how the EPA's actions
have impacted the tribal communities residing in the path of
this toxic plume unleashed by the EPA. Two of those tribes, the
Navajo Nation and the Southern Ute Indian Tribe, are
represented here today.
The 3 million gallons of high concentrations of metals,
including cadmium and lead, plus other substances such as
arsenic, were released into the waterways crossing these tribal
lands. The chemicals in this spill turned the creeks and rivers
into rusty, contaminated sludge. Here is some of the water
taken from that. There is no question that the EPA bears this
responsibility.
Almost a month after the spill, we were told the waterways
affected have now returned to their normal color and that
conditions have returned to pre-spill levels. This does not
excuse the EPA's negligence or the environmental impact to
tribal communities. Whether a private company or a Federal
agency itself carelessly blew out a mining wall and unleashed 3
million gallons of toxic materials into these waterways, both
should be held accountable to the communities they negatively
impacted.
In the immediate aftermath of the spill, we know that at
least two tribal communities were, and are still, severely
impacted. Both the Southern Ute Indian Tribe and the Navajo
Nation were forced to issue state of emergency declarations in
response to the spill. Ranchers and farmers on the Navajo
Nation suddenly could not use the river water. Livestock could
not drink the water. Irrigation and canals went dry, as the
pictures indicate.
Navajo President Russell Begaye stated in one press account
that farmers and ranchers on the reservation have essentially
``written off this year's crops.'' These losses are occurring
in a tribal community where unemployment now stands at roughly
42 percent.
Many questions arise from this tragic, preventable spill
that has hurt the peace of mind and violated the trust of these
tribal communities. Why wasn't the EPA prepared to protect
tribal communities in case such a blowout occurred? Once the
spill happened, how did the EPA respond to address the crisis
occurring within the affected tribal communities?
Several troubling conclusions are already coming to light.
The first and most obvious is that a spill of this size and
magnitude should never be caused by an agency whose sole
mission is to protect the environment. Moreover, the EPA was
not prepared to respond to the spill. The poor treatment the
tribes received by the EPA as the crisis played out is simply
unconscionable.
Dr. Mathy Stanislaus, the EPA official in charge of
addressing the spill, stated before the House Science Committee
last week, ``We believe we have been as transparent as we
possibly could.'' He also said. ``I think we have been very
transparent.'' As the tribes will testify today, they
completely disagree with the EPA's rosy assessment of their
actions. They do not believe they were adequately notified
after the incident or consulted sufficiently with regard to
remediation activities.
In testimony before the House Science Committee hearing
held last week, Dr. Donald Benn of the Navajo Nation stated
that the EPA ``downplayed the magnitude'' of the spill. The
tribes also do not believe that the EPA was doing sufficient
water testing. Of the testing that was conducted, the tribes
indicated that the EPA was not providing them with the water
quality test data and sediment test data that they requested.
Dr. Benn further testified that there is now a ``culture of
distrust'' between the tribe and the EPA. The EPA took a series
of actions that made the agency appear insensitive to the needs
of the tribes. For example, the Navajo Nation, at one point,
confiscated and asked residents not to use EPA-issued water
tanks. There are pictures of the water tanks.
Navajo Nation officials believe the tanks were once used
for oil and the Nation believed at the time that the water
inside the tanks was unsafe for any use. It was a completely
unacceptable response by a Federal agency to a community whose
water that agency had just contaminated.
In addition, EPA officials attempted to have Navajo Nation
and Southern Ute tribal members sign a form that appeared to
waive his or her right to claim future damages from this spill.
The question is, why did the EPA officials do this? The tribal
members would have had to calculate their short and long term
monetary damages without even knowing the full extent of the
costs to them and what the costs would be to them and their
livelihoods. This is unacceptable during a crisis when people's
farms, ranches and businesses are under threat and the
magnitude of the problem is still unknown.
A major question that remains is how the EPA and which
individuals will be held accountable for the spill and its
aftermath. The EPA's own documents and internal employee e-
mails have revealed the agency officials knew about the dangers
of a potential blowout at the mine.
For example, the EPA released one document to several media
organizations in August stating that back in June 2014, the EPA
knew ``Conditions may exist that could result in a blowout of
the blockages and cause a release of large volumes of
contaminated mine waters and sediment from inside the mine,
which contain concentrated heavy metals.''
Let us be clear. This accident was preventable and
individuals should be held accountable. The actions of this
agency and agency personnel in triggering or contributing to
the spill and in dealing with its aftermath in Indian Country
are a case study of agency incompetence and an agency incapable
of meeting its sole mission.
Their actions demonstrate why the EPA cannot be trusted to
take on the array of regulatory overreaches that they have
proposed. It is also a case study in how this agency disregards
the needs of tribes during a crisis. These shortcomings are
troubling and will be the subject of scrutiny today.
Before we receive testimony from our witnesses, I would
like to ask Vice Chairman Tester if he has an opening
statement?
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. I do.
Thank you, Mr. Chairman, for holding the hearing today to
discuss the harmful impacts of the recent spill at the Gold
King Mine into the Animas and San Juan Rivers and the impacts
on the downstream Native communities.
I understand the Navajo Nation and the Southern Ute Tribes
utilize these watersheds for irrigation, ranching and in some
places, for drinking water. Any time disaster threatens a water
source, it is cause for great concern, even more when it
appears the Federal agency whose role it is to protect the
environment has had a hand in causing the incident.
Clean water is such an important resource, one that is
becoming scarcer and scarcer by the day across the West. The
Federal Government, along with tribal and local partners, must
ensure that these resources are protected and remain available
for current and future generations.
The hearing today is entitled EPA's Gold King Mine
Disaster. While I agree we must hold the government offices
accountable, the EPA alone is not responsible for this
disaster. For decades, we have allowed mining companies to
strip the lands of valuable resources with no plans to reclaim
the landscape. Yet, we act surprised and get angry when
predictable outcomes like this one occur.
The Gold King Mine, and many other like it, will continue
to have long-lasting impacts to the health and well-being of
nearby communities. We must find a way to address the problem
now and into the future, as I am certain this will not be the
last time we have to have hearings like this one in the Senate.
Now, Administrator McCarthy, your agency messed up. I do
not know if it was a lack of oversight over contractors, a lack
of funding or what it was. However, what happened at Gold King
Mine is unacceptable. I am not sure what was worse, the spill
itself or how the agency responded to it and worked with its
tribal partners.
We all know it was a bad spill, we also know the mine was
already leaking and will continue to leak. Our job is to make
sure it is contained to allow water at clean enough levels.
You will hear from tribal leaders the impact the spill has
had on their communities and local economies. Since the spill,
when the agency had the opportunity to respond and take
leadership in the situation with local tribes as stakeholders,
I do not believe the agency stepped up to the plate like it
could have.
A month later, I can tell you the tribes are still
dissatisfied not just by the initial response, but the lack of
ongoing commitment to help these communities. While the effects
of the spill will be mitigated, distrust of the government that
persists in tribal communities certainly was not improved by
the EPA.
We have heard that of all the agencies that have stepped
forward to address this problem, the BIA has been the most
helpful. I can tell you that is not something we hear a lot of
in this Committee but it is a testament to the Bureau of Indian
Affairs in that it knows how to work with tribes and those
relationships. That kind of knowledge would have been great for
the EPA to lean on.
I encourage you to do that. There is still some time to
work with tribes and other Federal partners to address the
impacts of this spill.
I imagine my colleagues will take this opportunity to
justify funding of the EPA. Unfortunately, that is the opposite
of what needs to be done. After decades of mining activity
across the Country, we need the EPA to address these issues. We
need the EPA out there looking at mines to determine how to
reclaim and prevent long term spills and the impacts to the
environment. They are probably better at it if their funding
streams were not constantly under threat.
We also need to ensure that tribes have the resources they
need to protect their lands for future generations. While this
is not their best example, to be sure, these are the experts
who, when they team up with local and tribal communities, will
continue to make sure communities are safe for people to live
long and healthy lives.
I want to thank Administrator McCarthy for being here today
and addressing the Committee. Thank you, President Begaye and
Council Member Olguin, for coming all this way to address the
impacts to your communities.
I look forward to this hearing and the testimony of the
participants.
The Chairman. Thank you, Senator Tester.
Do any other members have opening statements? Senator
McCain.
STATEMENT OF HON. JOHN McCAIN,
U.S. SENATOR FROM ARIZONA
Senator McCain. Mr. Chairman, thank you.
I think you have pretty well covered the issue. I would
just like to point out that in August, I was with Arizona
Governor Doug Ducey. We met with Navajo Nation President
Russell Begaye and Navajo Council Speaker LoRenzo Bates in
Window Rock, Arizona.
I can assure my colleagues that the Navajo are suffering
deeply and dearly because of this spill. An estimated 1,500
farms on the Navajo Nation have been impacted by the 3 million
gallon release of wastewater caused by EPA contractors. An
acidic plume of mercury, arsenic and other metals worked its
way down the Animas River in Colorado and into the San Juan
River near Farmington, New Mexico.
Nobody knows for certain yet the total damage to crops,
soil, livestock, wildlife and irrigation, and drinking water
supplies, critical sources of food for the Navajo people and
which also serve as economic and cultural centers.
Mr. Chairman, Doug Holtz-Eakin, a well known economist to
many of us, will testify later on. In his testimony, he says,
``There is no direct precedent to the toxic Animas River spill
in Colorado. Past EPA estimates indicate the spill could cost
between $338 million and $27.7 billion.''
He goes on to say, ``The transparency within the
Environmental Protection Agency remains elusive. The Gold King
case shows inaction, poor planning and misleading statements by
top officials. Prevention, planning and mitigation were not
adequately executed.''
Mr. Chairman, I could talk a lot more about the impact this
has had on the Southern Ute Tribe and the Ute Mountain Tribe
but this is a very serious, serious problem. So far as I know,
no one yet has been held responsible. To me, that is
disgraceful, 43 days after this occurrence took place.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator McCain.
Senator Udall?
STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM NEW MEXICO
Senator Udall. Thank you very much, Chairman Barrasso and
Vice Chairman Tester for focusing on this very, very important
issue to the West and to the rest of the Nation.
In the West, our rivers are our lifelines. This is
especially true for the Navajo Nation, which depends on limited
surface water resources. The San Juan River is crucial and
brings water for drinking, irrigation, recreation and has great
cultural and religious significance to the Navajo people.
The Federal Government must own up to this tragedy. I am
encouraged that we have the Administrator with us and she has
taken responsibility for this accident. Those on the Navajo
Nation and others affected by this spill must be compensated. I
will be introducing legislation on that front with Senator
Heinrich.
The Navajo Nation has been on the receiving end of
disasters like this brought on by the Federal Government and
others for far too long. Mistakes have been made. We need to do
everything in our power to make sure they are not made again.
I recently visited the area to speak with President Begaye,
from whom we will hear on the second panel, the newly
inaugurated President of the Navajo Nation; Speaker LoRenzo
Bates; Attorney General Branch; Gilbert Harrison; and others
like Mr. Chili Yazzi of Shiprock who I see here today.
I heard their concerns, I saw the terrible impact the spill
was having and I saw firsthand that farming for Navajo people
is not only critically important to food production but it also
impacts the traditional teachings of young people who are
finding their identity through agriculture. It is easy for
Washington to expect things to return to normal in due time,
but it is clear this disaster will continue to affect the
Navajo people for a very long time.
How did this happen? How did we get to this point? Sad to
say, the Gold King abandoned mine is only one of several
abandoned mines which are leaching pollutants into the Animas
River. There are thousands, by some estimates, on a nationwide
basis from 160,000 to 500,000 of these abandoned mines which
are hurting and threatening waterways throughout the Rocky
Mountain Range and the rest of the Country.
When we talk about public lands in the West, this is the
legacy of the 1872 mining law, an ancient law which encouraged
exploration for hard rock minerals but did nothing to
compensate the public for the extraction of valuable minerals.
On top of that, it did nothing to require mines to clean up
after they finished. That is the legacy of what we are seeing
here today. As a result there are thousands of abandoned mines
on public land, contaminated land, polluted streams and the
taxpayers are having to pay for the cleanup.
I believe in the principle of polluter pays. Other, more
recent laws have enshrined this principle, polluter pays, but
we are stuck with the 1872 mining law which requires none of
this. That is what the big mining companies are doing, refusing
reform and refusing to pay.
Some of the people who have looked at this area say the
1872 mining law and its supervision of mining is some of the
most lax public oversight of any industry. We cannot continue
that way.
I would hearken back to before I got into the House. Some
of the Senators on this panel were probably there in the House
or the Senate. Newt Gingrich saw the ripping off of the
taxpayers and passed a bipartisan bill through the House of
Representatives reforming the 1872 mining law. It had a 300
vote margin.
This can be done if we put our heads together and work with
each other. I am very encouraged that we have a bipartisan
effort here on the Committee. I look forward to working with
our Colorado Senators who were impacted and then the flow came
into New Mexico.
Thank you very much, Mr. Chairman, again for focusing on
this.
The Chairman. Thank you, Senator Udall.
We will hear from both of the Colorado Senators starting
with Senator Gardner.
STATEMENT OF HON. CORY GARDNER,
U.S. SENATOR FROM COLORADO
Senator Gardner. Thank you, Mr. Chairman. Thank you for
holding this hearing today.
Thank you to Vice Chairman Tester for participating and
making this happen today as well.
Administrator McCarthy, thank you for being here.
I want to reiterate the comments made by my colleague from
New Mexico about the impacts of water on our western States.
If you go into the capitol of Colorado in the rotunda,
there is a mural painted on the wall. The beginning of the
mural states something like this, ``Here is a land where
history is written in water.'' Those words are two or three
stories below one of the most iconic legacies of mining in
Colorado. That is Colorado's golden dome of our State capitol.
This morning we talked about the impact it has had. Mike
Olguin, a tribal council member from the Southern Ute Tribe, is
here today to talk about the impact the spill had on the
Southern Ute Tribe. We talked about the response of the EPA to
the spill.
We have questions that have to be answered. I hope not only
your testimony this morning and your testimony this afternoon
but the ongoing investigations will provide greater insight
into what exactly happened.
I will share with you what I shared this morning. In the
days and hours after the spill occurred, response came from the
State of Colorado. We learned about the EPA spill not from the
EPA but from the Durango Herald.
In our attempts to contact you and the office, we were told
that you were unavailable. After pushing back, we were advised
we could speak to the regional director and that phone call
occurred several hours after that. I think you and I spoke
sometime as late as August 11 for the first time.
In the days after this event occurred, the community of
Durango, the community of southwestern Colorado, and the tribes
were left with a lot of questions. In fact, four days after the
spill occurred, Senator Bennet and I were at a community
meeting in Durango where the results of testing and water
samples were displayed on a projector in front of the community
talking about the levels of contaminants in the water.
Yet, there was no explanation at all whatsoever was given
as to what those levels meant. Was it unhealthy? Was it
healthy? Was it dangerous? Was it not dangerous? We were told
at that conference call that we would be provided with an
analysis of those numbers.
Later on in the day when another briefing occurred, there
was no analysis. Days went by before there were any answers
provided. Long after the flash of the television cameras go
away in southwestern Colorado, we will be dealing with this and
the questions.
We have to find answers to things like where was the EPA
during the initial notification and closure of the river? Did
the agency follow the national contingency plan for
notification and implementation of the disaster? Was there
anyone within the EPA crisis management team with experience
for a spill of this nature dispatched to the area or made aware
of the spill immediately? These are just a few of the questions
we will discuss.
As we will hear in Councilmember Olguin's testimony, in the
first few days following the spill, it was largely State, local
and tribal officials responding. Not until August 10th did the
EPA establish 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 simple,
straightforward interpretation of water quality monitoring data
from the EPA.
The long term questions remain. What happens when you
disturb the river? In conversations from Silverton to Durango,
hotel rooms were canceled and bookings were canceled.
In fact, even the president of the Ft. Lewis College talked
about the fact that parents from around the Country had called
their school to make sure it was okay for their child to go
back to school. Yet, days later, we still did not have answers.
I appreciate the hearing, I appreciate the answers as we
work on water treatment and the need for a water treatment
facility; as we work on the need, not just to talk about Good
Samaritan legislation, not just to introduce Good Samaritan
legislation, but to actually pass it in a bipartisan fashion.
I commend the Senators from New Mexico and my colleague,
Senator Bennet from Colorado, on the need to not just talk
about it and introduce it, but to actually pass it to law and
on the President's desk, that we can begin to do good to
address the 23,000 mines in Colorado alone.
I thank you for your time and the opportunity to speak
today.
The Chairman. Thank you, Senator Gardner.
Senator Bennet.
STATEMENT OF HON. MICHAEL F. BENNET,
U.S. SENATOR FROM COLORADO
Senator Bennet. Thank you, Mr. Chairman. Thank you and
Senator Tester for including my colleague from Colorado and
myself. It is a privilege to be here with my colleague from New
Mexico as well. I wish it were under other circumstances but it
is not.
The blowout at the Gold King Mine was a disaster that
affected many communities in Colorado and New Mexico. Although
the EPA was working to try to evaluate how to clean up the
mine, there is no denying that the EPA caused this spill. That
is entirely unacceptable.
It is also clear, as my colleagues from Colorado and New
Mexico said, the agency was slow to communicate with local
governments, did not obtain water quality results or bring
water to farmers who needed it much more quickly than it was
delivered.
Senator Gardner and I traveled together to Durango four
days after the blowout, the river was still bright orange and
closed to the public. As said here today about New Mexico and
Colorado, the Animas River really is the lifeblood of
southwestern Colorado and Durango.
Rafting companies have lost business, farmers could not
water crops and moms are still keeping their kids out of the
river. These families deserve to have the full attention and
dedicated resources of the Administration committed to this
cleanup.
In the week after the spill, we spoke with Administrator
McCarthy and wrote to the EPA and the President. We appreciate
that the Administrator listened to our call and came to
Colorado to view the area and address the community.
Following a crisis like this, it is important to make sure
we hold people and agencies accountable for any egregious
mistakes or negligence committed in the days and hours after
the spill. As our communities recover, it is also critical, as
my colleagues from New Mexico and Colorado said, we need to
look at the bigger picture. Let us identify exactly what went
wrong and make sure it does not happen again.
We also need to put this in context. The blowout released 3
million gallons of acid mud drainage. The same amount of
polluted water was already being released from the Gold King
Mine around every week. The four mines near it 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 supply. That
decision by our forbearers 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 alone. We need
solutions to address the acid mine drainage coming from all
these old abandoned mines.
We need to pass Good Samaritan legislation, as Senator
Gardner said. I think we also need to address the 1872 Mining
Act.
In the aftermath of the spill, the Southern Ute Tribe acted
quickly to notify other tribes and local governments, began
water sampling of its own and provided water for livestock. The
tribal leadership closely collaborated with local governments,
sister tribes, the EPA and the State.
In this crisis, they demonstrated their expertise, their
professionalism and their leadership. Mr. Mike Olguin was an
integral part of that effort. We are lucky that he will be on
the second panel today. He has served the tribe for 37 years
and has a vast source of knowledge for all of us.
I just wanted to come to this hearing to be able to say we
are delighted he is able to join the Senate today and share his
experiences during this disaster.
Thank you again, Mr. Chairman, for allowing me this time.
The Chairman. Thank you very much, Senator Bennet.
Senator Heinrich.
STATEMENT OF HON. MARTIN HEINRICH,
U.S. SENATOR FROM NEW MEXICO
Senator Heinrich. Thank you, Chairman Barrasso.
I want to thank you and the Ranking Member for holding what
I think is a very important hearing today. I want to thank you
for allowing me to join you on the dais for this hearing.
I also want to recognize the incredible work of Senators
Gardner and Bennet and my senior Senator, Tom Udall, as well as
Congressman Ben Ray Lujan, in focusing on this issue on a
number of policy fronts.
You all heard about the plume last month. It was something
to see. It is not normal to look at a trout stream and see it
look like the color of Tang. That is exactly what we all saw.
I want to share the fact that basically I share the anger
and frustration over this incident. When I toured the affected
area following the spill and had a chance to visit with
President Begaye of the Navajo Nation, who I am glad we will
hear from this afternoon, as he can attest, the Navajo Nation
did not receive timely notification from the EPA that the spill
had occurred. That was something I think was true of a number
of other government entities and agencies as well.
Because water intake from the San Juan River had to cease,
water had to be delivered to homes, for agriculture and
livestock purposes. Unfortunately, problems related to water
delivery caused further concern to farmers and ranchers. Mr.
Gilbert Harrison, a fellow New Mexican, is here today to tell
us more specifically how the spill affected him and his fellow
farmers and ranchers.
I demanded that the EPA act with urgency to protect our
health and safety and to repair the damage inflicted on this
watershed. That should be our first line of business in this.
Last month's spill was not the first major spill to affect
the Navajo Nation. If we know our history, in 1979, a breached
dam at the uranium mill tailings pond disposal pond near Church
Rock actually sent more than 1,000 tons of solid radioactive
waste and 93 million gallons of acid liquid waste into the Rio
Puerco.
We cannot let history repeat itself over and over and over
again. We must take action to address the hundreds of thousands
of other similarly contaminated mines to the Gold King that
litter the West today that are leaking toxins into our
watersheds.
I shared a couple of maps this morning at the Environment
and Public Works hearing. If you look at northern New Mexico
and southwest Colorado, it is literally covered with thousands
of unreclaimed or abandoned mines.
That means that developing a comprehensive approach to mine
reform, which should include the establishment of a hard rock
reclamation fund funded by a fair royalty on public minerals,
as well as Good Samaritan authority to allow third parties to
clean up mines that they had no role in creating, and I would
say a comprehensive survey of abandoned mines and a plan to
clean them up should all be on our menu.
For far too long, Indian Country has been left to fend for
itself in dealing with the impacts of mining. In my State, too
many Native communities, including many on the Navajo Nation,
live among abandoned uranium mining and milling sites that
still contaminate their water, air and food today.
Hard rock mines provided the raw materials to build this
Country. During the Cold War, uranium from New Mexico was
transformed into nuclear weapons to defend our Nation. We owe
it to these communities to clean up these sites once and for
all. We should not wait for disasters like this one to strike
again.
Thank you again for holding this hearing. I look forward to
hearing from the witnesses today.
The Chairman. Thank you, Senator Heinrich, for joining us
today.
We have two panels. On the first panel, we will hear from
Administrator McCarthy. Administrator McCarthy, thank you for
being here. We will respect your timeline. I know you need to
leave at 3:30 p.m., so please proceed.
STATEMENT OF HON. GINA McCARTHY, ADMINISTRATOR, U.S.
ENVIRONMENTAL PROTECTION AGENCY
Ms. McCarthy. Good afternoon Chairman Barrasso, Vice
Chairman Tester and members of the Committee.
I am Gina McCarthy, Administrator for the U.S.
Environmental Protection Agency. I want to thank you for the
opportunity to appear today to discuss the August 5 Gold King
Mine release and subsequent EPA response.
This was a tragic and unfortunate incident, and the EPA has
taken responsibility to ensure that it is cleaned up
appropriately. The EPA's core mission, as we have noted, is to
ensure a clean environment and protect public health. We are
dedicated to continuing to do our job to protect the
environment and to hold ourselves accountable at to the same
high standard we demand from others.
The EPA was at the Gold King Mine on August 5th conducting
an investigation to assess mine conditions and ongoing water
discharges, dewater the mine pool, and assess the feasibility
of further mine remediation. While excavating above a mine
opening, the lower portion of the bedrock crumbled and
approximately 3 million gallons of pressurized water discharged
from the mine into Cement Creek, a tributary of the Animas
River.
EPA and Colorado officials informed downstream EPA and
Colorado officials informed downstream jurisdictions in
Colorado within hours of the release before the plume reached
drinking water intakes and irrigation diversions, and
notifications to other downstream jurisdictions continued the
following day, allowing for those intakes to be closed prior to
the plume's arrival.
In the aftermath of the release, we initiated an internal
review of the incident and released an Internal Review Summary
Report on August, 26, which includes an assessment of the
events and potential factors contributing to the Gold King Mine
incident. The report provides observations, conclusions, and
recommendations that regions really must consider when
conducting ongoing and planned site assessments,
investigations, and construction or removal projects at similar
types of sites across the Country. The EPA will implement all
the recommendations from the report and has shared its findings
with external reviewers.
In addition to the internal review, the U.S. Department of
the Interior is leading an independent assessment of the
factors that led to the Gold King Mine incident. The goal of
DOI's independent review is to provide the EPA with an analysis
of the incident that took place at Gold King Mine, including
the contributing causes. Both internal and external reviews
will help inform the EPA for ongoing and planned site
assessments, investigations, and construction or removal
projects.
One of our foremost priorities is to keep the public
informed about the impacts from the Gold King Mine release and
our response activities. The EPA has closely coordinated with
our Federal partners and with officials in Colorado, New
Mexico, Utah, the Southern Ute and Ute Mountain Ute tribes and
the Navajo Nation to keep them apprised of water and sediment
sampling results, which are routinely posted on our website.
These results indicate that water and sediment have returned to
pre-event conditions and supported local and State decision-
makers as they made the decision to lift water restrictions
along the Animas and San Juan Rivers.
Finally, I want to clarify that the EPA was working with
the State of Colorado to take action at the Gold King Mine to
address both the potential for a catastrophic release and the
ongoing adverse water quality impacts caused by the significant
mine discharges into the Upper Animas Watershed.
Based upon 2009-2014 flow data, approximately 330 million
gallons of contaminated water was being discharged from mines
in the watershed each year to Cement Creek and the Animas
River, 100 times more than the estimated release from the Gold
King Mine on August 5th. The EPA was and continues to work with
the State of Colorado and the Animas River Stakeholder Group to
address these significant discharges from mines in the Upper
Animas Watershed that are impacting these waterways.
I think it is important to note that all across the
Country, our Superfund program has successfully cleaned up more
than 1,150 hazardous waste sites and successfully responded to
or provided oversight for thousands of removal actions to
protect human health and the environment. That reflects our
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 the EPA has and will
continue to take responsibility to help ensure that the Gold
King Mine release is cleaned up.
Thank you, Mr. Chairman. That concludes my statement. I
will be happy to answer any questions that you or the Committee
members may have.
[The prepared statement of Ms. McCarthy follows:]
Prepared Statement of Hon. Gina McCarthy, Administrator, U.S.
Environmental Protection Agency
Good afternoon Chairman Barrasso, Vice Chairman Tester and Members
of the Committee. I am Gina McCarthy, Administrator for the U.S.
Environmental Protection Agency. Thank you for the opportunity to
appear today to discuss the August 5 Gold King Mine release and
subsequent EPA response.
This was a tragic and unfortunate incident, and the EPA has taken
responsibility to ensure that it is cleaned up appropriately. The EPA's
core mission is to ensure a clean environment and protect public
health, and we are dedicated to continuing to do our job to protect the
environment and to hold ourselves to the same high standard we demand
from others.
The EPA was at the Gold King Mine on August 5 conducting an
investigation to assess mine conditions and ongoing water discharges,
dewater the mine pool, and assess the feasibility of further mine
remediation. While excavating above a mine opening, the lower portion
of the bedrock crumbled and approximately three million gallons of
pressurized water discharged from the mine into Cement Creek, a
tributary of the Animas River. EPA and Colorado officials informed
downstream jurisdictions in Colorado within hours of the release before
the plume reached drinking water intakes and irrigation diversions, and
notifications to other downstream jurisdictions continued the following
day, allowing for those intakes to be closed prior to the plume's
arrival.
In the aftermath of the release, we initiated an internal review of
the incident and released an Internal Review Summary Report on August,
26, which includes an assessment of the events and potential factors
contributing to the Gold King Mine incident. The report provides
observations, conclusions, and recommendations that regions should
consider applying when conducting ongoing and planned site assessments,
investigations, and construction or removal projects at similar types
of sites across the country. The EPA will implement all the
recommendations from the report and has shared its findings with
external reviewers.
In addition to the internal review, the U.S. Department of the
Interior is leading an independent assessment of the factors that led
to the Gold King Mine incident. The goal of DOI's independent review is
to provide the EPA with an analysis of the incident that took place at
Gold King Mine, including the contributing causes. Both internal and
external reviews will help inform the EPA for ongoing and planned site
assessments, investigations, and construction or removal projects.
One of our foremost priorities is to keep the public informed about
the impacts from the Gold King Mine release and our response
activities. The EPA has closely coordinated with our federal partners
and with officials in Colorado, New Mexico, Utah, the Southern Ute and
Ute Mountain Ute tribes and the Navajo Nation to keep them apprised of
water and sediment sampling results, which are routinely posted on our
website. These results indicate that water and sediment have returned
to pre-event conditions and supported local and state decision-makers
as they made the decision to lift water restrictions along the Animas
and San Juan Rivers on August 14 and August 15.
Finally, I want to clarify that the EPA was working with the state
of Colorado to take action at the Gold King Mine to address both the
potential for a catastrophic release and the ongoing adverse water
quality impacts caused by the significant mine discharges into the
Upper Animas Watershed.
Based upon 2009-2014 flow data, approximately 330 million gallons
of contaminated water was being discharged from mines in the Watershed
each year to Cement Creek and the Animas River--100 times more than the
estimated release from the Gold King Mine on August 5.
The EPA was and continues to work with the State of Colorado and
the Animas River Stakeholder Group to address these significant
discharges from mines in the Upper Animas Watershed that are impacting
these waterways.
I think it is important to note, that all across the country, our
Superfund program has successfully cleaned up more than 1,150 hazardous
waste sites and successfully responded to or provided oversight for
thousands of removal actions to protect human health and the
environment. That reflects our long-standing commitment to protect
human health and the environment that we will continue to pursue and
continue to support the Administration's request for an Abandoned Mine
Lands fee to help cover the costs of cleanups at these sites.
All of the affected residents of Colorado and New Mexico and
members of the Southern Ute, Ute Mountain Ute, and Navajo Nation Tribes
can be assured that the EPA has and will continue to take
responsibility to help ensure that the Gold King Mine release is
cleaned up.
Thank you Mr. Chairman that concludes my statement. I will be happy
to answer any questions that you or the Committee members may have.
The Chairman. Thank you. I will begin.
On August 24, 2015, an EPA internal review of the blowout
report made several recommendations. One recommendation was the
EPA should develop guidance outlining the steps that should be
taken to minimize the risk of future blowouts.
Could you tell us how far along the EPA is in identifying
contingency plans in the event of future blowouts at the Gold
King Mine or other mines?
Ms. McCarthy. What I decided to do was put a hiatus on
these types of actions until we had the complete information
from DOI's independent review of the situation. Until that is
done, anything we do would not be complete enough and would not
assure me that the same situation would not arise again.
We have two responsibilities. We need to clean this up and
we need to make sure it never happens again.
The Chairman. In terms of the cleanup, during the EPA
briefing for Committee staff last week, the agency officials
were asked why the resources like water and hay for livestock
and additional environmental testing were being pulled back
from the tribes.
The agency officials told the Committee staff that the
resource decision was based on the Center for Disease Control's
recommendation that there would be no threat of health impacts
of exposure.
According to EPA's own Children Environmental Health Facts
website, it says ``Currently no level of lead in the blood can
be identified as safe for children. I believe, as a doctor,
that we need to be concerned about that.''
The agency releases 3 million gallons of toxic pollutants,
heavy metals, including lead, into waterways which cross these
lands of the tribes. Can you tell this Committee and the tribes
represented here today that you know there will not be any
health impacts to the tribal communities and their children
from this poisonous spill? At this point, the resources have
been pulled back because they say everything is safe.
Ms. McCarthy. Let me answer your question and clarify just
a little bit.
Because of the quick action of President Begaye, there was
no input of this water into drinking water supplies. The
challenge I think we are working through with the president is
to really look at how that it is returned to pre-event
conditions, the quality of the water now according to EPA
samples and the tribe has split sampled and taken their own,
that is returned to pre-event conditions. This water was never
a pristine water supply because of the discharges from the
Animas.
The qualification I want to bring to this, Mr. Chairman, is
I want it to be very clear that we are continuing to provide
hay. The BIA and EPA have continued all along to provide water
for livestock and irrigation purposes. The BIA is going to
continue.
We have ongoing conversations with the tribes so I do not
want anyone in this Committee to think that we are going to
arbitrarily shut off the support that we owe to this tribe but
we are entering a more discrete and detailed discussion about
what would make the tribe basically more comfortable in terms
of the uses of this water and what else we need to do not just
beyond that but to address the cultural and other challenges
the spill has thrust upon the Navajo.
The Chairman. Since responsibility for the spill lies with
the EPA, the agency I believe has to go above and beyond the
standard response to address the needs of the communities
impacted, specifically the tribal communities.
Private entities that pollute are held to a very strict
standard by the EPA and are routinely investigated by the EPA
and the Justice Department. The question today is has anyone
been fired at the EPA as a result of this spill, has anyone
been disciplined, suspended, reassigned, sanctioned in any way
as a result of the spill? Has anyone been held accountable for
the actions that resulted in this spill?
Ms. McCarthy. If you look at what led to the actions EPA
took, you would see that both EPA and the Colorado Division of
Reclamation, Mining and Safety worked together to develop this
work plan that was carried out.
Whether or not we took every precaution and made sound
judgments is something I am awaiting from the DOI independent
look as opposed to making judgment based solely on our internal
review. I think everyone would agree that it is good to get
independent eyes on this. If we find inaccuracies,
improprieties or bad judgment, we will take action.
The Chairman. At this point, no one has been held
accountable for the actions. You are awaiting the report?
Ms. McCarthy. The agency itself has been held accountable.
We are responding as robustly as we can to meet those
responsibilities.
The Chairman. There are at least three ongoing reviews or
investigations into the spill, the first being an internal
review conducted by the EPA. The second is a technical review
to be conducted by the Department of Interior to which you
referred.
The technical review is limited to looking at causes and
recommendations for solutions, not really to investigate
negligence or criminal wrong-doing by the EPA.
The third review is the one requested by Congress to the
EPA's Inspector General, not by you but by Congress, to look at
actual wrong-doing and negligence.
Is it safe to say without Congress, not one independent
investigation of negligence by the EPA would be providing an
impartial review?
Ms. McCarthy. No, sir. This accident, this spill was large
enough and damaging enough to the communities around it and
downstream, as well as EPA's reputation, that no matter what
happened, we would be looking at this spill and taking
appropriate action.
The Chairman. Thank you. Senator Udall?
Senator Udall. Thank you very much, Mr. Chairman.
Administrator McCarthy, thank you so much. I know you
testified this morning extensively in your authorizing
committee, the Environment and Public Works Committee. You also
agreed to come here and testify.
As you and I talked, the Native American community across
the Country uses this Committee as a great oversight entity. We
very much appreciate having you here today.
I understand the EPA is processing claims for damages under
the Federal Tort Claims Act. There are advantages to this in
that the U.S. Judgment Fund does not require further
appropriation to compensate people.
However, under normal circumstances, Federal agencies try
to limit their tort liability. That is the natural position of
any defending party in the tort claims process. I do not
believe that is appropriate in this kind of situation and that
is why we are introducing legislation to separately guide the
compensation process with a dedicated office at EPA.
Do I have your commitment that you will work diligently
with the Navajo and all other victims of this spill so that all
legitimate damage claims are handled quickly and appropriately
without the agency trying to avoid responsibility?
Ms. McCarthy. You do, Senator, yes.
Senator Udall. Thank you very much.
I would like to get your commitment here at the hearing
that EPA is dedicated to prioritizing funding and resources for
long term monitoring of the river and for compensation for
those impacted.
Ms. McCarthy. That is our responsibility. We will meet
that.
Senator Udall. Thank you.
I understand from the crisis and from other past incidents,
there has not always been a tremendous amount of trust between
the EPA and the Navajo Nation, although I know you have a good
working relationship.
The Navajo Nation has one of the most sophisticated EPAs of
any tribe in the Country and you work together. Are you will to
ensure a third party verification and validation on issues that
may require analysis and data?
Ms. McCarthy. We have already begun those conversations.
You have my word that we will continue to work with the
president as well as Dr. Benn. I have great respect for both
the leadership of the tribe and for the technical expertise. We
will work together to resolve these issues.
Senator Udall. Thank you.
The President of the Navajo Nation has requested that EPA
designate the Upper Animas District as a Superfund site. I
support this and believe it should be a priority for funds and
remediation.
Where does the EPA stand on this question? If it was
designated on the National Priorities List, how would that
translate to help for the Navajo Nation which is located south
of the area?
Ms. McCarthy. We certainly will take that request
seriously. In fact, Mathy Stanislaus, our Assistant
Administrator, was actually in Colorado discussing this very
issue with Durango and some of the surrounding communities.
It is extremely important. It is something we have been
actually been soliciting interest in for many years because we
think it is the only way you are going to get significant
Federal funding to support those cleanup efforts. Short of some
other congressional action, there is simply no way to pass that
job off to somebody else.
Senator Udall. My understanding is there are recent press
reports where all of you at the EPA are trying to organize in
the valley some treatment. You talked about the 330 million
gallons and to get a treatment process where we can restore
those streams.
Is that part of the Superfund or is that just under your
responsibilities right now without a listing?
Ms. McCarthy. We are going to continue to work with the
State of Colorado and all of the folks downstream to look at
what we can do to address those upstream issues. Part of the
challenged we created with the spill was to see through both
the cleanup of the spill but also to get another level of
seriousness about getting at the entire comprehensive Animas
Watershed.
Right now we are developing a long range monitoring plan
and to do that in concert with all of the surrounding
communities who will provide input. That is one of the issues
we are trying to make sure the Navajo feels comfortable
weighing in on and they have the ability to have a voice in
that issue. It is going to be extraordinarily important that we
get that started soon.
Senator Udall. Thank you very much, Madam Administrator,
for those very forthright answers.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Udall.
Senator McCain?
Senator McCain. Thank you, Administrator, for coming before
the Committee today.
I understand in response to the Chairman's question, no one
from the EPA or the contractor has been fired, is that right?
Ms. McCarthy. That is correct.
Senator McCain. No one has been fired for taking almost two
days to notify the Navajo about the disaster?
Ms. McCarthy. I might dispute a little bit how much time
was taken. The first day we did notify folks and tribes in
Colorado. The second day we actually did receive notification
to everybody else downstream.
Senator McCain. So it took two days to notify the Navajo
Nation. Has anyone been fired for the Navajos complaint that
notification and emergency response was not adequate?
Ms. McCarthy. We actually did send a signal through a memo
that we had to look at our notification process. I am not
saying that it could not have been and should not have been
quicker and more comprehensive. We worked with the State on
that. We are going to update our systems.
Senator McCain. Your answer is no.
Has anyone been fired at EPA for complaints that the EPA
did not quickly and routinely share water quality monitoring
data with the tribes?
Ms. McCarthy. We believe we have done a good job in
providing transparency on that data.
Senator McCain. You believe that but the people who were
supposed to be notified do not believe that they were quickly
and routinely provided the data on water quality monitor. Nor
do they agree that the notification and emergency response was
adequate, nor do they agree that it should have taken two days
to notify the Navajo about the disaster. In other words, you
have done nothing.
Tell me something, Administrator. If a mining company
caused an accident like this, may be you can submit for the
record an answer of what kind of penalties, fines and
enforcement action the EPA would levy. I would be interested in
that.
You said in response to a question by the Chairman that the
agency is responsible?
Ms. McCarthy. Yes, sir.
Senator McCain. Isn't the agency composed of people, so
when the agency is responsible, then people are responsible?
Ms. McCarthy. There is no question that if we find anyone
has not done their job appropriately, we will.
Senator McCain. Someone is responsible for the accident
that happened. An accident happened. A river was polluted and
people were not notified.
Ms. McCarthy. An accident happened.
Senator McCain. We all know what happened. Why is it that
you are saying you do not know that anyone was responsible?
Someone has to be.
Ms. McCarthy. I am not saying that the acts of the agency
did not cause the accident but accidents, by their very nature,
may not have resulted from any negligence whatsoever on the
part of anyone.
Senator McCain. You really believe that the spill could
have been through no negligence on the part of anyone?
Ms. McCarthy. I believe that we went in there with the
State of Colorado having fully vetted this work plan with
mining experts from the area as well as the public. Apparently
all of the experts agreed this was the next step to take.
They made a judgment that we can see in our internal review
that there was not an opportunity or a high pressure situation.
That judgment obviously was incorrect. Whether or not they did
due diligence in coming to that conclusion is what the DOI is
looking at.
Senator McCain. That is almost classic. Here we are with a
disaster of incredible proportions and you do not think it is
best to be determined whether somebody is responsible for a
decision that caused this kind of an incredible disaster and
could impact the lives of Native Americans for a long period of
time.
Ms. McCarthy. Sir, I am not trying to defend anybody but we
went into an extraordinarily difficult situation at the request
of the State for the very reason that people were worried about
a blowout.
Did we intend to be the ones to trigger that? Absolutely
not. Are we going to take responsibility if we did something
wrong? We will.
Senator McCain. There have been other times where things
have happened where it was not intended to happen. This is
really classic on your part, I must say. Someone is responsible
for disrupting and harming the lives and welfare and someone
should be held responsible because it happened.
Maybe there were the best of intentions, Administrator
McCarty, but the fact is it happened. So far no one has been
held responsible except ``the agency.''
I have no more questions.
The Chairman. Thank you, Senator McCain.
Senator Bennet?
Senator Bennet. Thank you, Mr. Chairman.
In your answers to Senator McCain, Madam Administrator, you
talked about how the agency should have been quicker and
comprehensive in your communications with the tribes and
others. I fully agree with that.
How are we going to make sure, what are the protocols you
are putting in place to make sure that next time we get it
right instead of getting it wrong?
Ms. McCarthy. All of our regions are going to be working
with the States in their notification process so that we update
all the lists and test it periodically to make sure of all the
intakes and structures we knew about and took care of so there
would not be extensive damage.
I am not suggesting that this was not a disaster because it
clearly was from everyone's perspective but the notifications
did go in time for us to beat the plume before those intakes
would have caused damage or brought it into drinking water
supplies.
We are continuing to monitor that. We have done hundreds
and hundreds of tests collaboratively with all of the States
and with the tribes to make sure we are keeping on top of this.
Senator Bennet. My colleague from Colorado raised this as
well. Sometimes when information is produced but not explained,
that can be as bad as keeping information hidden. Working on
your approach to that I think is also very, very important.
Ms. McCarthy. I think we have talked about that, yes.
Senator Bennet. We have asked you and the President to find
resources and try to prioritize funding for a water treatment
plant in the Upper Animas River. We need that funding and that
water treatment plant to, in the end, solve the problem of mine
drainage from the four large mines. Can you tell us where that
sits at the moment?
Ms. McCarthy. At the moment, we are working on what the
long term plan should be. We have to sit down with the State of
Colorado to understand what peoples' input is right now in
terms of their inclination on NPL listing as well as what kind
of resources can we bring to the table to begin the work.
We have already created the treatment system but it is not
where it needs to be to take care of the entire problem just to
increase flow that resulted from the spill. We still have huge
amounts of work to do.
Senator Bennet. My understanding is that current temporary
answer is not something that is suitable for the winter months.
Is that right?
Ms. McCarthy. I will go back and check that. I am not aware
of that.
Senator Bennet. If you could, that would be good.
I hear from colleague from New Mexico on Superfund status.
That obviously is a very sensitive issue in our State.
Ms. McCarthy. It is.
Senator Bennet. My hope is that as you work toward a
decision that you will engage everyone in Colorado on this
question. There are different points of view as you know. The
details of this matter a great deal to the people of
southwestern Colorado and our State as a whole.
Ms. McCarthy. I want you to know that the meeting was at
the request of those communities. We will continue to explain
the situation. Folks will have to work with us to understand
what the best way is to approach this.
Senator Bennet. We are prepared to do that.
Thank you.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Bennet.
Senator Gardner?
Senator Gardner. Thank you, Mr. Chairman.
Again, thank you, Administrator McCarthy.
When was the first time after August 5th that you spoke
with Mr. Begaye?
Ms. McCarthy. When was the first time?
Senator Gardner. Yes.
Ms. McCarthy. I believe on August 11th, but I could be
wrong.
Senator Gardner. When was the first time you spoke with the
representative of the Southern Ute Tribe?
Ms. McCarthy. August 12th. I am sorry, that was August
11th.
Senator Gardner. August 11th. Thank you.
Did the agency follow the National Contingency Plan for
notification and implementation of its response regarding the
Gold King Mine spill?
Ms. McCarthy. I believe that it did.
Senator Gardner. Did the EPA know it was likely feasible
the waters impounded behind the Gold King Mine would blowout?
Ms. McCarthy. That was one of the reasons we were there, so
yes.
Senator Gardner. What preliminary actions were being taken
to prevent that?
Ms. McCarthy. The actual action we were going up to do was
to try to relieve the pressure by removing some of the water
behind the adit, the blockage in the adit, and then to address
through a trench an ability to treat the water that was coming
out.
Senator Gardner. We do not know and that is what the review
is telling us, whether that was adequate for the safe
remediation to take place to prevent the blowout in the first
place? That is what the review will show?
Ms. McCarthy. The review will take a look at the whole
thing. The internal review already took a look at what factors
were considered that made both the State of Colorado and EPA
come to the conclusion that it was low or no pressure.
Obviously that was an inaccurate conclusion. There are a
lot of series of recommendations on how we may look at this
differently, but I fully expect the DOI will go into a lot more
detail and that is really where we will see whether they did
due diligence and acted appropriately or whether they could
have or should have known better.
Senator Gardner. Why did it take so long for the estimate
of the 1 million gallons to move to the 3 million gallons after
the blowout?
Ms. McCarthy. Obviously the 1 million gallons was not
determined through any mechanical measure. The USGS came in and
looked at stream gauge data and that is where it went to 3
million gallons. Obviously we were wrong and underestimated the
original spill. Why there was a delay in that, I do not know.
Senator Gardner. Was the EPA aware there was a stream gauge
in place?
Ms. McCarthy. I do not know the answer to that. USGS is a
partner of ours. They do stream gauges, so we had to know there
were some in the area.
Senator Gardner. There should not have been any doubt as to
whether it was 1 million or 3 million gallons?
Ms. McCarthy. We were not relying on that to make the first
estimate. Why, I do not know but I certainly can look into it.
Senator Gardner. Is that part of the review as well?
Ms. McCarthy. We will make it part of the review and I will
get you the information.
Senator Gardner. The EPA employees and contractors carrying
out the work, could you describe the expertise of the employees
carrying out the work at the Gold King Mine?
Ms. McCarthy. There was an on-scene coordinator who has
worked for many years for the agency. He is a mining engineer.
He was overseeing the contractor. The work plan itself was
developed, as I said, with the State of Colorado Division of
Reclamation, Mining and Safety, as well as our team in Region
8.
We had that work plan reviewed by the Animas River
stakeholder group. We also went to two public hearings with it.
The work was carried out on-site under the auspices of our
on-site coordinator. The State of Colorado Mining Division
folks were at the site, left a little bit before the spill
occurred and it is my understanding they were still in the area
and helped us with the first, initial notifications.
The work was, again, led by and carried out by our on-scene
coordinator in accordance with the work plan that was designed.
Senator Gardner. Was there was no cell phone coverage where
this occurred? Did they have the ability to make contact if
there was a blowout?
Ms. McCarthy. This came up at the prior hearing and I will
have to get back to you as to whether or not there was cell
phone coverage or not. I do know they reached their Colorado
colleagues who were in the area and they were the ones who went
down and made some of the first notifications.
Senator Gardner. What is the EPA's legal obligation in
current policies, guidelines on reporting and release of
hazardous substances?
Ms. McCarthy. We would follow the same process as everybody
else.
Senator Gardner. Were those followed?
Ms. McCarthy. We would have to notify. Actually, the State
of Colorado made two calls that I understand first was to our
region and to the National Response Center.
Senator Gardner. To the best of your knowledge, the EPA
followed those guidelines?
Ms. McCarthy. To the best of my knowledge.
Senator Gardner. EPA's legal obligations and current
policies are what when it comes to contacting tribal, State and
local governing agencies? What are those policies?
Ms. McCarthy. That we should do it as quickly as possible.
Senator Gardner. In this instance, you believe it was done
as quickly as possible?
Ms. McCarthy. No, I do not. I think it could have been done
more quickly which is why we are reviewing all of that.
Senator Gardner. Who was responsible for that lack of
timeliness?
Ms. McCarthy. I did not want to misstate this. The regional
contingency plan is what dictates how we notify downstream. In
the State, we work in collaboration with the State to do that.
I think the difficulty or what we need to improve on here
is that I think they looked at the State of Colorado first and
did not go downstream until a bit later. There was no reason
that I can think of that we would not have realized that it was
a much larger issue than the State of Colorado.
Senator Gardner. Who was the individual who made that
decision then, to not go any further?
Ms. McCarthy. I do not know whether that decision was made
or we failed to make the decision to go further.
Senator Gardner. Mr. Chairman, my time has expired. I have
a lot further questions but I will have plenty of opportunity.
The Chairman. Thank you, Senator Gardner.
Senator Heinrich?
Senator Heinrich. Actually, I want to follow up a bit on
this line of questioning regarding further downstream.
If I understand your testimony correctly, there was a heavy
equipment contractor on-site who was a contractor but there was
also EPA supervision at the site as well?
Ms. McCarthy. Yes.
Senator Heinrich. Did that arrangement in any way
contribute to or complicate the response in this case? If you
would, also talk a little bit about whether your finding that
the fact that this was at the convergence of effectively three
EPA regions and how that may have complicated the response. We
found that to be cumbersome and confusing in the early hours.
Also, can you tell us what you have learned about how to
deal with an issue that may quickly migrate from one EPA region
to multiple EPA regions?
Ms. McCarthy. Let me answer your first question. I feel it
would be inappropriate for me to give a judgment on your
question about what contributed at the site because clearly
that is something I would not have an independent understanding
of and why we want DOI to do a job with the Army Corps and
others to independently look at this.
Our challenge is to wait until October so that then we can
take action beyond that. In the meantime, I have put in place a
hiatus on any similar activities so that I will learn the
lessons when they come and we will take advantage of those. I
will take action, if warranted, in any disciplinary action as
well. We will see where it comes out and act appropriately.
In terms of the notification, one of the things we did as
well was to tell people to stop and take a look at what
happened and revise their contingency plan accordingly. I have
no doubt that there are difficulties for EPA and others when we
shift from tribal and State lands. I think that may have added
to the confusion. I cannot say whether it did but I do know it
should not have.
We do regional plans, we do area plans and those should
have kicked in. Part of the challenge is to stop worrying about
redundancy and make sure that if people get five calls, it is
better than getting none. I think there was some of that gap
that played into this that should never happen again.
Senator Heinrich. I would urge some level of specificity on
that issue as we move forward. If you could get that for us, it
would be very helpful. You have one region in Colorado. As this
migrates to New Mexico, you have another region. As it enters
the Navajo Nation, you have a third region.
I think that made things very cumbersome in the early hours
to figure out who, municipal, tribal and other officials,
including our office, should be communicating with.
Unfortunately, until we find a mechanism for cleaning this
stuff up and actually get serious about issues like 1872 Mining
Act reform, I can pretty much guarantee that someday this is
going to happen again because it has happened in the past. The
1979 spill was even worse.
Ms. McCarthy. We should not rely on the incredibly quick
response we have received from every one of the States and the
tribes to make sure that this did not go anywhere. I just
cannot thank them enough. I do not expect them to have patience
about this at all and neither do I.
Senator Heinrich. Shifting gears a bit to the issue of
Superfund and the National Priorities List, one of the issues
that has contributed to the sensitivity Senator Bennet
mentioned and what I would call a bit of sense of Superfund
stigma is the idea that a Superfund designation would have a
negative impact on tourism.
I can say the experience in New Mexico with Questa has not
necessarily lined up with that. We have seen other places like
the jackpile mine in Moab, Utah where that did not have a
negative impact on the brand of outdoor recreation that is
obviously important in southwestern Colorado as much as it is
for the region and in New Mexico and Arizona as well.
Is that something you are having conversations with the
local communities about? I would urge you, as Senator Bennet
said, to talk to the local communities. I would say not just
everyone in Colorado but everyone in the watershed.
If we do a Superfund designation in this case and move
forward putting this area on the National Priorities List,
which I believe is warranted, the reality is, as we have seen
from the testimony today, the impacts of action or inaction, in
this case, are not in a single State but in multiple States and
tribal nations.
Ms. McCarthy. I appreciate that. Thank you.
The Chairman. Thank you, Senator Heinrich.
Senator Hoeven?
STATEMENT OF HON. JOHN HOEVEN,
U.S. SENATOR FROM NORTH DAKOTA
Senator Hoeven. Thank you, Mr. Chairman.
Administrator, I am concerned about the issue of
accountability as well. Can you tell us at this point who at
the agency is responsible for the spill?
Ms. McCarthy. The Environmental Protection Agency is what I
know, sir. We are going to wait for the Department of the
Interior because that is an independent review that I think has
the most value about understanding whether or not people did
what they were supposed to do.
If you read our internal review, it is very clear, as are
the documents going onto that site and the work plan, that the
biggest concern was the blowout. People anticipated that
blowout was inevitable which is why we were there trying to
find a way to relieve that pressure.
Senator Hoeven. This long after the spill, you are still
trying to determine who is accountable for the spill?
Ms. McCarthy. We certainly know who was at the site and I
certainly what accountability means because EPA is taking the
steps we should take to be accountable.
Senator Hoeven. What actions have you taken to make sure
that a similar spill or accident does not occur in the future?
If you do not know who is accountable, how can you take steps
for the future?
Ms. McCarthy. That is the reason for the Department of the
Interior review, to tell us what went wrong. I have made sure
that there is no ongoing work that could be subject to the same
kinds of problems.
Senator Hoeven. What perspective does this incident give
you and the agency in terms of how you enforce the regulations
that you have relative to other companies, whether we are
talking about WOTUS, CO2 rules, ozone, methane, all these rules
that you are bringing out and the companies you regulate, what
perspective does this incident give you and the agency in terms
of how you deal with those companies?
Ms. McCarthy. Senator, we are holding ourselves to the same
standards to which we hold the private sector which is that
when you are doing remediation efforts like this, which we know
are difficult and at times, dangerous, your job is to do a work
plan that is solid, that gets the range of advice you need
which I think we can all agree we had lots of private
discussions about this.
The first order of business when something like this
happens is to keep your people at the site safe, to stop the
spill as quickly as you can, and then to clean it up. Those are
the steps we ask of anyone outside. Those are the steps we are
taking ourselves.
There are times in the private sector when there are fines
involved in these types of activities but that is when they are
actually operating or conducting actions not in concert with
orders or other executive actions.
Senator Hoeven. You are getting a lot of questions about
accountability today and not providing specific answers on
accountability. I will give you another example.
You recently went out with CO2 rules. For some States like
ours, you said, you are going to have to make an 11 percent
reduction. Then without bringing out new proposed rules, you
change it to a 45 percent reduction. Where is the
accountability?
In other words, you demand accountability from the
companies you regulate. Where is the accountability at your
agency?
I also called you on the phone and asked you personally to
meet with our industry. You said you would. Now I understand we
will be meeting with your staff and not with you. I think
accountability calls for you to step up and address these
issues.
Ms. McCarthy. Senator, I am happy to talk to you when you
are visiting. I was not aware of it but I will see if I cannot
take care of it.
Senator Hoeven. I think it goes to the underlying
accountability. I know you require accountability when you are
dealing with companies that have to follow your rules. We are
looking for the same accountability from the agency.
Ms. McCarthy. And you should.
Senator Hoeven. Thank you.
The Chairman. Senator Heitkamp?
STATEMENT OF HON. HEIDI HEITKAMP,
U.S. SENATOR FROM NORTH DAKOTA
Senator Heitkamp. Thank you, Mr. Chairman.
One of the reasons why we are in this room is because this
has had a very, very dramatic effect on the downstream tribes
who rely on this water. Water is king in the West and we all
know that. Anytime you take away a water supply or threaten a
water supply, you threaten the economics of every entity that
uses that water.
In our case, we are very concerned about the impact this
has had on Native American tribes downstream, the impact it has
had on their culture, the impact on their ability to do the
traditional things they hope to do as Senator Udall discussed
earlier.
I do not think you can be very proud if you read the
testimony of the tribal members who will testify today because
they talk repeatedly about a culture of distrust with the EPA.
I want to know what you are going to do to change that culture
of distrust.
How are you going to not just say we are going to look at
this and see how we can do better, but how you can change that
cultural piece that is going to tell these tribal members and
leaders you are a full-on partner and not ignoring the fact
that they have a stake in this game?
Ms. McCarthy. We are having ongoing dialogue, Senator, and
I appreciate it. There is no question that when a spill like
this happens, the credibility of this agency suffers, not just
in terms of its relationship with the tribes, but all of the
people that we serve.
We are going to be accountable. We are going to get the
data that we need to do that. We are going to continue to work
with the tribes.
We recently responded to some of their most recent requests
about supporting third parties to come in. If they do not trust
us, I am fine with supporting third party sampling or
verification of our sample results.
I have asked what we can do to establish a path forward on
the cultural damage this has caused. I am more than willing to
sit down with the tribes and go through their list of what they
think is necessary for us to repair the damage this spill
caused, not just physically but the emotional and cultural
damage this has brought with it. Nobody would want to do that
more than I would.
Senator Heitkamp. One of the situations we recently had was
a fire which was lit by the Forest Service and lots of
apologies at the beginning but when it came time to file the
torts claim, somehow magically there was no negligence,
magically whatever culpability and damages as a result of that
culpability dissipates and puts huge burdens on the victims to
pursue some kind of claim.
I want a commitment from you that will not happen in this
case, that there will be a honest, forthright evaluation of
what those damages are and there is going to be the ability for
these tribal entities and the downstream entities to actually
get compensated for the damage caused by EPA.
Ms. McCarthy. I will do the very best I can.
Senator Heitkamp. Everyone says they will do their very
best. Frequently when lawyers get involved, you and I share
that label, we sometimes forget that the rest of the world can
see things through a lens that is different than a legal lens.
Do not put these tribal entities, tribal leaders and their
tribes through the process simply to forestall compensation for
the damages. For me, that is a huge part of how you can build
that trust which is take responsibility, we can talk about
firing people and hopefully, as you go through that process,
you will find people who will be culpable.
The other piece of this in terms of accountability is
compensation. Please, do not put these downstream victims in
the spot where they need to be begging for what is fair and
just in this case.
Ms. McCarthy. I hear you. Thank you, Senator.
The Chairman. Thank you, Senator Heitkamp.
Senator Daines?
STATEMENT OF HON. STEVE DAINES,
U.S. SENATOR FROM MONTANA
Senator Daines. Thank you, Mr. Chairman.
Administrator McCarthy, in November 2009, President Obama
issued a memo reiterating his Administration's commitment to
Executive Order 13175 requiring all Federal agencies to engage
in ``regular and meaningful consultation and collaboration with
tribal officials in the development of Federal policies that
have tribal implications and the Federal agencies are
responsible for strengthening the government-to-government
relationship between the United States and Indian tribes.''
I was struck when Senator Gardner asked question about when
the Navajo President was notified. The spill occurred on August
5. I understand you did not engage him until six days later on
August 11.
My question is, if this spill had been with Canada or
Mexico, do you think it would have taken six days before you
picked up the phone to call one of the leaders in either Canada
or Mexico?
Ms. McCarthy. President Begaye?
Senator Daines. Correct, President Begaye. Senator Gardner
asked when you contacted him. It was six days after the spill.
The spill was on August 5th. You said you called him on August
11th, six days later.
My question is had this been with Canada or Mexico, would
it have taken six days for the head of the EPA to contact the
leaders in those respective countries?
Ms. McCarthy. I am hoping that you understand we were in
the middle of an emergency. The president was engaged in this
at high levels in the agency. Did I have a direct conversation
with him? I do not believe so.
Senator Daines. By Executive Order 12175 and the way we
think about our tribes and their sovereignty, this is a
government-to-government relationship.
Ms. McCarthy. Yes.
Senator Daines. Why would the tribes be receiving much less
attention and care than the leader of one of our neighboring
countries? That is my question. Why?
Ms. McCarthy. You have made a very legitimate point. Point
taken, sir.
Senator Daines. Thank you.
This is not the first time I have heard about difficult
cooperation between the EPA and Indian tribes. As you and I
discussed in a Senate Appropriations Committee hearing in
April, the Crow Nation of Montana is very, very frustrated with
the amount of consultation that has been done regarding EPA's
Clean Power Plan.
In fact, I had a field hearing on April 8th. I invited the
EPA. The field hearing was on the Crow Reservation. I invited
EPA to participate in that hearing and they declined.
Eventually, a member from the State EPA of Montana came and sat
in the audience.
I see a systemic failure in my view of the EPA engaging and
treating these tribes with the dignity and respect they
deserve. In fact, at the Appropriations Committee hearing in
April, you mentioned interest in resolving the Crow Tribe's
concerns with the Clean Power Plan.
Ms. McCarthy. Yes.
Senator Daines. To my knowledge, given the Crow and Midwest
utilities, the EPA has completely failed at meaningful
consultation with the Crow tribe.
It is my understanding the Navajo Nation had a similar
concern with consultation with the EPA during development of
the Clean Power Plan. In fact, I am looking forward to hearing
from Navajo Nation President Begaye discuss this on the next
panel.
Given the concerns of the Crow Nation and the Navajo
Nation, which face some of the highest unemployment rates in
the Country, in Crow Indian Country, it is 47 percent
unemployment and without these natural resource jobs, their
unemployment rate goes north of 80 percent.
My question is, is your agency upholding its obligations
under Executive Order 13175?
Ms. McCarthy. I believe we are, sir.
Senator Daines. Let me just say with the six day lag with
President Begaye, that was a failure. Observing what is going
on with the Clean Power Plan, there have been failures with the
EPA communicating. We probably have a difference of opinion, I
do not think you have.
In fact, there is a saying in Montana, we say ``all hat and
no cattle.''
Ms. McCarthy. Cattle?
Senator Daines. That means folks come in from out of State
and wear a big hat, talk big, but there is no substance. They
are full of big talk but lacking action is what that means.
This my concern with the EPA as I hear about these things as we
sit in these hearings but look at what is going on in the lives
of real people with real challenges. I am seeing a big
disconnect.
Ms. McCarthy. Thank you, sir.
Senator Daines. Thank you.
The Chairman. Senator Lankford.
STATEMENT OF HON. JAMES LANKFORD,
U.S. SENATOR FROM OKLAHOMA
Senator Lankford. Administrator, thank you for walking
through the multiple hearings you have been in to be able to
walk through this as well. I appreciate your getting a chance
to walk through this. Most everything has been asked and I want
some clarification.
You talked several times about the accountability and that
the report will come from Interior to kind of identify where we
are with accountability. When will that report be done?
Ms. McCarthy. It is scheduled to be completed in October.
Senator Lankford. At that time, once that comes in,
obviously EPA will engage in trying to apply whatever that
accountability may be, including I would hope with the tribal
leaders and tribes as well.
As the Senators asked before, the tort relationships and
the responsibility and accountability then are ongoing. My
concern is with the statement the river has now returned to
pre-spill levels which almost sounds like everything is fine,
everybody leave.
My hope is that is now where we are going, that we are just
like it was a dirty river before, it is still a dirty river, we
are moving.
Ms. McCarthy. There are two ways in which that is not the
case. One is that we are working on a long range plan. The
sediments are a concern. That is one of the major concerns you
will hear from President Begaye. We recognize that we have an
ongoing challenge there. We also have the larger challenge of
what to do across the watershed at the top of the Animas River.
There are two large actions, one of which is within the
control of EPA, which is getting a monitoring plan that
everyone is comfortable with that will keep us active and
engaged in that region in a way that all of us can recognize we
are doing the job we are supposed to do, not just short or long
term.
Senator Lankford. Thank you.
Let me ask a couple questions for the record and follow up
later on some of these conversations. Just so you know, they
are going to be slightly off topic.
On April 27th of this year, the Army Corps of Engineers
wrote a memo to EPA saying they believe certain aspects of the
Waters of the U.S. rule would not hold up to Supreme Court
scrutiny. They wrote that to EPA. We have that document and
that memo. We do not have the response from EPA where they
responded, no, here is why we think it does. We have only the
final rule that came out.
I would like a copy of that response. We have one side of a
conversation but do not have the other side of the
conversation. Would it be possible to get the other side of
that conversation, the response, if I provided you the April
27th memo from the Army Corps of Engineers so you can see
exactly what it was?
Ms. McCarthy. I will follow up on that. I may not have the
exact memo. We will track it down.
Senator Lankford. That would be great.
The other issue deals with renewable fuel standards. This
is something we have talked about before. November 30th is
coming quickly. Do you still feel you are on schedule to
release the 14, 15 and 16 RFS mandates by November 30th?
Ms. McCarthy. Yes, sir.
Senator Lankford. The ozone rule that is coming out
obviously has been sent over to OMB to my understanding from
EPA?
Ms. McCarthy. Yes, sir
Senator Lankford. When this comes out and the final piece
is out, I would like to be able to get a copy of what your
proposal was to OMB when you originally sent it over. I know
there will be some conversation of where it went, what they are
going to do from there, but the history of the decision-making
process.
This will affect my State dramatically. It will affect the
whole Country pretty dramatically.
Ms. McCarthy. You will be able to see that. I was asking
because I am aware that when a rule is finalized, that
information becomes part of the record. I am not exactly sure
when.
Senator Lankford. The history of it will be important to us
because again all of us will be dramatically affected by this.
It also affects the RFS since obviously ethanol in production
creates more ozone. When you have a decrease in ozone
requirement and an increase in RFS requirement, you have EPA
doing things in conflict and you cannot make it.
We want to get that for the record and go from there.
Mr. Chairman, thank you.
The Chairman. Thank you, Senator Lankford.
Thank you very much, Administrator McCarthy.
There being no other questions, we know you have another
appointment. We will move to the second panel.
We will recess for five minutes.
Ms. McCarthy. Thank you so much, Mr. Chairman.
The Chairman. Thanks for being here.
[Recess.]
The Chairman. We have a distinguished panel. We will start
with Russell Begaye, President of the Navajo Nation. We will
also have the Honorable James ``Mike'' Olguin, Tribal Council
Member of the Southern Ute Indian Tribe; Douglas Holtz-Eakin,
President of the American Action Forum, Washington, D.C.; Dr.
David C. Weindorf, Associate Dean for Research, Department of
Plant and Soil Sciences, Texas Tech University, Lubbock, Texas,
thank you for joining us; and Mr. Gilbert Harrison, a rancher
and irrigator of the Navajo Nation in New Mexico. Thank you
also for being with us. I would like to start with President
Begaye.
If everyone could please keep your comments to about five
minutes that will give more time for questioning.
President Begaye.
STATEMENT OF HON. RUSSELL BEGAYE, PRESIDENT, NAVAJO NATION
Mr. Begaye. Good afternoon, Chairman Barrasso, Vice
Chairman Tester and members of the Committee. Thank you,
Senators Udall, Heinrich and McCain.
Thank you for your leadership in this hearing, appearing in
person and for sending staff to investigate the area.
My name is Russell Begaye of the Ashiihii Ta'neeszahnii
clan. I am the President of the Navajo Nation.
I am grateful for this opportunity to address this
prestigious group of Senators and leaders. Thank you for
helping to make right an injustice that has occurred on our
land and to our river.
August 11th will always be remembered on our Nation as a
day when the Navajo way of life for our people was disrupted
through the negligence of the United States Environmental
Protection Agency.
On that day, over 3 million gallons of yellow contaminants
rushed down the Animas River to our river, the San Juan. The
San Juan has been the lifeline for our people for centuries.
Water is sacred and the river is the life for all of us. It is
who we are. It breathes. It provides. It nourishes. It defines
us.
The San Juan has always been a source of sustenance for our
ranchers and farmers. It provides us with healthy organic food,
drinking water for our people, feed for our livestock, herbal
medicine for our ceremonies and has been a source of enjoyment
for our children.
Today, we are afraid to use the river, to use it for
drinking, for our livestock, and to irrigate our farms. I have
stood in the fields with our farmers as they shed tears over
their crops. For them, the crops are more than income, but are
a source of pride and joy, crops they share with their
neighbors, their children, and their grandchildren. The spirit
of my people has been greatly impacted by this negligent act.
Yes, we have been told by the EPA that the river is back to
its precondition levels but we do not know what precondition
levels means. Simply, we do not trust the EPA. Why? They did
not inform the Nation of the accident until two days after the
blowout. I believe the only reason they finally informed the
Navajo Nation is because you cannot hide an accident when the
rivers turn orange.
When we first received notice, they told us it was 1
million gallons of contaminants that was released from the mine
but later, they changed it to 3 million gallons. Since then, it
has neared 30 million gallons.
At a public hearing, the USEPA representative said the
water was churning up at the base of the mountain but when the
vice president and went to the mouth of the mine to visually
investigate, we were stunned to see the yellow river.
I even showed the USEPA officials a picture I had just
taken a few hours before of the toxic waters that were still
pouring out of the mine and it was yellow.
The last straw was when USEPA gave my people 20 million
gallon water tanks for relief. Those tanks were tainted with
oil. I directly asked the USEPA about the tainted tanks. They
vehemently denied that they had oily substances in them.
They said, it is only used for clean drinking water but
when I personally went to one tank, put my hand into the intake
valve of that tank, my hand came out blackened with oil. They
expected us to give that tainted water to our livestock and
crops.
Let me again say, the Navajo Nation does not trust the
USEPA. We expect them to be held fully accountable for what
they have done to my people and to all the people who live
along both the San Juan and Animas Rivers.
I am not just speaking today for my people but all peoples
whose souls are hurting from what should have been an
avoidable, negligent act. Today is our greatest time of need
with our people struggling for water for their animals,
livestock and irrigation. The USEPA has abandoned us.
The water tanks are being pulled out, feed for our
livestock has stopped. Last Friday, Ms. McCarthy and I spoke on
the phone and she was unaware that the USEPA had stopped
providing resources to the Navajo Nation. She said, I did not
know that we stopped giving water. I did not know that we
stopped giving hay.
As EPA Administrator, how does she not know that this was
happening? The orders to leave our Nation came from her
regional directors. This just adds to the culture of distrust
they have created.
What my people need first and foremost is compensation and
need it now. The farmers cannot wait three months later or even
a year from now. Our farmers have spent monies they do not have
and are expected to purchase materials, haul water and buy hay
for their livestock.
Our farmers and ranchers still need hay and water. EPA has
pulled out. BIA has expended all of their funds. We are now
taking monies from our emergency account to help our people.
I am saying that today I want this Committee to stand with
us and make sure the EPA pays for what it has done to my
people, to my Nation.
Thank you.
[The prepared statement of Mr. Begaye follows:]
Prepared Statement of Hon. Russell Begaye, President, Navajo Nation
I. Introduction
Ya'at'eeh (hello) Chairman Barrasso, Vice-Chairman Tester, and
Members of the Committee, my name is Russell Begaye. I am the President
of the Navajo Nation. I was raised on a farm along the San Juan River
in Shiprock, New Mexico, one of the communities directly impacted by
the subject of this hearing. Thank you for this opportunity to testify
before your Committee on a matter that is of utmost importance to the
Navajo Nation.
As you know, on Wednesday August 5, 2015, the United States
Environmental Protection Agency (USEPA), and other parties, caused a
massive release of toxic contaminants from the Gold King Mine into
Cement Creek. The toxic sludge--which included harmful contaminants
such as lead and arsenic--flowed south from the Cement Creek into the
Animas River, then into the San Juan River (River), a major water
source for the Navajo Nation. The San Juan River flows through 215
miles of some of the richest farmland in the Nation's territory, and
provides much of the Nation's northern border. The impact to the Navajo
Nation from this drastic release is compounded by the fact that much of
this portion of the River is slower moving than upstream.
Today, in the brief time I have, I would like to cover only a few
critical areas of concern for the Navajo people. The critical areas of
concern are as follows:
The USEPA's, among others', mishandling of the spill and the
emergency response; USEPA's lack of timely notice,
transparency, and consistency; and the resulting culture of
distrust;
History of contamination of the San Juan River and the need
for cleanup;
Our preliminary findings on the short-term and long-term
impacts of the spill on the Navajo people and environment,
including economic, health, cultural, and spiritual impacts.
To address the serious impacts of this spill and the continued
threat to the Navajo people from future contamination, we request the
following:
Resources from USEPA, FEMA and BIA to address the immediate
emergency;
Assurances that USEPA will fairly and timely compensate the
affected farmers and livestock owners for their damages, both
in the near term and long term.
Resources to conduct our own water, sediment, and soil
monitoring, and recognized authority for the Navajo Nation EPA
to do the necessary work.
That the USEPA address all the contamination that is flowing
into the River.
Resources to address near- and intermediate-term
environmental and health impacts;
Resources to study and address the long-term environmental
and health impacts of the spill, and to restore the River to a
safe and healthy state; and
A fair and independent assessment of the role USEPA, and
others, played in the events leading up to the Gold King Mine
spill, and the establishment of a different lead agency.
It is important to realize that in addition to the many known and
yet unknown physical, chemical, biological, and economic effects of
this spill, this spill has taken a cultural and spiritual toll on our
society, disrupting our hozho. Hozho encompasses beauty, order, and
harmony, and expresses the idea of striving to maintain balance in the
Navajo universe. The trauma from this spill will be felt for years to
come, and we need immediate and sustained help to restore the balance
for our people.
II. The USEPA'S Mishandling of the Spill and Creation of a Culture of
Distrust
The NNEPA works in close partnership with USEPA to facilitate the
Nation's twelve environmental programs, which are largely, if not
completely, funded by the USEPA. A good and close working relationship
with USEPA has always been critical to the success of the NNEPA.
However, recent events relating to this spill have led to a complete
shift in that relationship as USEPA has sought to quiet our legitimate
concerns, and has made repeated missteps in its response efforts. We
have serious concerns about the strong conflict of interest USEPA has
with respect to this investigation and the emergency response
necessary. No other environmental bad actor would be given leeway to
investigate itself and determine to what extent it will be held
accountable. We are encouraged that USEPA's Office of Inspector General
will be reviewing this incident, but we believe another agency should
take the lead on the on-ground response, and an independent body should
conduct the investigation.
To begin with, the USEPA inexplicably delayed notification of the
spill to the Navajo Nation. The spill occurred the morning of August 5,
2015, but the Nation was not informed of the release until August 6, a
full day later, and not even by the USEPA but by the State of New
Mexico. It took the USEPA almost two full days to notify us. We view
this as a violation of the government-to-government relationship
between the Federal Government and the Navajo Nation.
The USEPA also demonstrated a complete lack of transparency. Our
initial warning from USEPA was of an ``acid mine drainage spill in the
Animas River north of Durango'' of ``[a]pproximately 1 [million]
gallons.'' USEPA's initial focus appeared to be on pH levels. This
served to downplay the magnitude of risk to human and animal health,
and later reports by USEPA of released contaminants were incomplete.
The media was receiving faster and fuller information from USEPA than
the Navajo Nation. For example, the New York Times reported the spill
hours before USEPA provided the Nation with notice of the spill. And
media sources reported that USEPA confirmed the presence of arsenic on
Friday, August 7, whereas USEPA still had not reported the presence of
arsenic to the Nation even by Sunday, August 9.
USEPA on Friday, August 7 informed the Nation that ``the water in
Cement Creek and the Animas River near Silverton is clearing,'' but the
Vice-President and I nonetheless made plans to travel to the Gold King
Mine Sunday to assess the situation for ourselves. \1\ We requested a
tour from USEPA, but faced immediate resistance. USEPA staff indicated
they would only take us to the confluence of Cement Creek with the
Animas River in Silverton, Colorado, but the water at the confluence
remained bright orange. It did not appear to be ``clearing.'' We thus
urged USEPA to take us to the point of release. They again refused,
this time compromising by offering to take us to the treatment pools
below the mine adit. We finally convinced them to take us within a
half-mile of the point of release. We walked the rest of the way to the
point of release. There we saw a completely unblocked mine adit with an
estimated 550 gallon per minute flow of bright, opaque orange liquid
pouring forth. We have since learned that prior to the blocking of the
nearby Sunnyside Mine and the Red and Bonita Mine, Gold King Mine was
releasing water at only 7 gallons per minute. \2\ We took video footage
and photos at the point of release and shared these with the public.
This appeared to be the first time USEPA Region 9 staff visited the
point of release.
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\1\ E-mail from Harry Allen, Chief, Emergency Response Section,
USEPA Region 9, to Russell Begaye, President, Navajo et al (Aug. 7,
2015, 11:58 PT) (on file with NNDOJ).
\2\ http://fox6now.com/2015/08/13/gold-king-mine-owner-i-foresaw-
disaster-before-epa-spill-into-animas-river-in-colorado/
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While USEPA was slow in notifying the Nation of the initial spill
and its associated risks, it was quick in dispatching staff to Navajo
communities to hand out Standard Form 95 and encouraging members of the
Navajo Nation to fill out forms to expedite settlement of their claims
under the Federal Tort Claims Act and apparently to obtain releases
from members of the Navajo Nation. But this was only after I announced
that the Navajo Nation would be suing the USEPA and other liable
parties for the spill. The Navajo Nation Attorney General reviewed the
form and identified plain and clear language on the form asserting that
individuals submitting the forms would be filing the forms in pursuit
of ``FULL SATISFACTION AND FINAL SETTLEMENT'' of their claims for
damages and injuries that yet remain unknown.
This presented our people with a difficult choice. The economics of
farming makes the cashing out of harvests time-critical. Our farming
families were expecting to sell their harvests along a predictable
timeline that was disrupted by the closing of the San Juan River to
irrigation use. They relied on the predictability of this timeline to
defer bills and expenses until harvest time. Now that time is passing,
and many of them need their anticipated harvest returns immediately to
catch up on bills and to buy school clothes, among other things. Yet if
they fill out Standard Form 95 and receive a settlement check, they may
not be able to defer cashing that check while they wait for additional
damages or injuries to accrue. I, along with the Vice-President and
Attorney General, have thus asked USEPA for an interim claims process
that will allow for ongoing claims filings, and our Attorney General
has asked for a U.S. Attorney General opinion confirming that the
filing of Standard Form 95 and the settling of a claim filed under that
form or process does not in fact fully satisfy and settle the claim.
None of this has happened while the Navajo people continue to suffer.
Despite our requests, the USEPA has yet to confirm to us that it will
fully and fairly address all damages and injuries to members of the
Navajo Nation who have been impacted by the spill.
These instances--but a few among many--have led to distrust by the
Navajo Nation towards USEPA, both among our farmers and our leadership.
The NNEPA, in contrast, continues to have the trust of our farmers and
our leadership. Despite the NNEPA's limited resources, we turn to the
NNEPA for honest data assessments and technical answers.
III. History of Contamination of the San Juan River and the Need for
Cleanup
This incident is one of many where responsible parties have
contaminated Navajo land and water. I was born and raised in Shiprock,
and as a child one summer, I once saw hundreds of dead fish floating
down the San Juan River. We knew something was not right with all these
dead fish in the River. But the next day we were back in the water,
playing in it. There was no one to tell us to stay out of the water--
that it was dangerous. We always wondered why all the fish died in the
River, and it was not until USEPA Administrator Gina McCarthy visited
Shiprock on August 13, that I learned the story of why this occurred.
There is a 1.5 million ton uranium tailings pile above a floodplain
feeding into the San Juan River in the middle of Shiprock. That summer,
a dam holding a pool of tailing-contaminant filled water burst into the
River. But no one told us what had happened. We cannot tolerate this
contamination of our sacred lands.
Yet the recent spill threatens to recur, either from unsettling of
contaminated sediment in our River waters, or from ongoing contaminated
releases from upstream mines. USEPA stated early on that we will be
dealing with the effects of USEPA's Gold King Mine chemical spill ``for
decades.'' Gold King Mine is just one of over 300 abandoned hardrock
mines in the heavily contaminated 140-mile-area known as the Upper
Animas Mining District (District). \3\ The District includes private,
federal, and state lands, and the town of Silverton. \4\ Gold King Mine
was twice considered for inclusion on the National Priorities List
(NPL), both as part of the District, and as a narrower carve-out from
the District, and the recent spill was preceded by two spills in the
1970s. We sent a letter to Administrator McCarthy on Monday, September
7, requesting that this District be made a Superfund site so that USEPA
will make the cleanup and containment of the site a priority, and
thereby protect us downstream communities.
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\3\ http://www2.epa.gov/region8/upper-animas-mining-district
\4\ http://www2.epa.gov/region8/upper-animas-mining-district.
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The Mine's first Superfund site assessment was conducted in the
1990s, and the assessment concluded, ``that water quality standards
were not achieved'' in the District. \5\ The assessment also identified
``severe impacts [of the District] to aquatic life in the Upper Animas
and its tributaries.'' \6\ Despite the serious harm being caused by the
District, USEPA postponed listing the District on the NPL in order to
allow a ``community-based collaborative effort'' to clean up and
mitigate harm from the District ``as long as progress was being made to
improve the water quality of the Animas River.'' \7\
---------------------------------------------------------------------------
\5\ http://www2.epa.gov/sites/production/files/2015-08/documents/
goldkingminewatershedfactsheetbackground.pdfat2.
\6\ http://www2.epa.gov/sites/production/files/2015-08/documents/
goldkingminewatershedfactsheetbackground.pdfat2.
\7\ Id.
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Yet in 2005, the ``water quality ha[d] declined significantly'' in
the area, and so in 2008, USEPA performed another NPL assessment, this
time on the Upper Cement Creek alone. \8\ The study again confirmed,
``that the area would qualify for inclusion'' on the NPL. \9\ Despite
the additional confirmation that the Mine area should be listed on the
NPL, ``EPA postponed efforts to include the area on the National
Priorities List,'' again ``after receiving additional community
input.'' \10\ USEPA's repeated denial of the facts with respect to the
level of harm posed by the Gold King Mine and its surrounding mines has
placed downstream jurisdictions such as the Nation at undue risk. This
further contributes to a lack of trust in USEPA's ability to protect
the health and well-being of Navajo people.
---------------------------------------------------------------------------
\8\ Id.
\9\ Id.
\10\ Id.
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The threat of a spill from the District remains under the existing
management scheme. The chemicals found in the District pose significant
human health risk as they contain known carcinogens and elements, like
lead and arsenic, that can affect major organ systems such as
cardiovascular, respiratory, gastrointestinal and reproductive systems.
The risks to the Navajo people are very real. Neither my people nor the
other communities living near the rivers can tolerate a recurrence of
the unprecedented damage caused by the Gold King Mine Spill.
Based on our extrapolation of known data, over 20 million gallons
of aggregate contaminated flow has spilled from the Mine since August
5. If the USEPA does not address these sites through designation as a
Superfund site, contaminants will continue to flow freely into the
Nation's waters, and the concentration of contaminants in our waters
will increase, extending the duration of exposure for our people, which
is already significant now, even further into the future. Metals poison
people slowly, and sediments eventually make their way downstream. We
are thus gravely concerned that the metals coming from Gold King Mine
and the District are making their way down to us, and will settle in
our slow waters. We are also concerned that efforts to flush
contaminants out of the Farmington area flushed contaminated sediments
into our territory, and that those contaminants will remain here for a
long time. We do not want our people to be poisoned, so we urge you to
do what you can to help us secure NPL listing for the District.
IV. Short and Long-Term Impacts
The impacts of this spill, as well as the ongoing contamination
from mines in the area, are devastating and myriad. The reliance of our
people on the San Juan River and the significance of the River to our
people cannot be overstated. The Navajo Nation as a whole is a largely
agricultural society, and our people have traditionally farmed and
ranched since pre-contact. The San Juan River Basin is a bastion for
ancient Navajo seed strains that our people have carefully refined over
centuries to thrive in our arid region. Farming and ranching are the
backbone of our culture and economy, and are both heavily dependent on
the San Juan River. Indeed, in our arid region with little water
distribution infrastructure in place, our farmers rely heavily on the
San Juan River and ditch irrigation practices to keep their fields
hydrated and their crops growing. I want to lay out for the Committee
some of the impacts of the contamination on the Navajo Nation. But I
want to stress that, because of the historic and long-term nature of
the contamination caused by the spill and the lack of full
transparency, all of the economic, health, cultural, and other impacts
to the Navajo people are not yet known.
First, our farmers and ranchers and our traditional people felt the
most immediate impact from the spill. You can imagine the significant
economic and emotional toll on our farming families, who mostly live on
their farmlands and consume their crops as a matter of subsistence.
These families have lost a significant portion of a full growing
season's worth of work. Now these families have to look at their dead
crops each day, and are constantly reminded of the loss.
As I visited farmers and ranchers, I saw a lot of farms where corn
had not fully matured due to lack of water. As a result, the corn crops
had only the stalk but no corn. The corn pollen that is so critical to
everyday Navajo spiritual life did not develop properly for many of
these crops. A lot of Navajo melons only grew to a fifth of their size.
One family was forced to abandon all but a single acre of their 32-acre
field, opting to save plants with cultural significance.
Second, the spill has already severely impacted our economy and may
continue to do so for years to come. The Navajo Nation already faces a
daunting unemployment rate of 42 percent. Yet along the San Juan River,
many of our people are able to make a life for themselves and support
their families through farming and ranching. Many of our farmers create
additional economic value for themselves by carefully growing
profitable organic crops, or raising grass-fed and organic beef or
mutton product. Now their livelihoods have been significantly disrupted
by the spill. Growing cycles and field rotations have been disrupted,
and farmers who are used to producing their own farm goods will now
need to buy fruits and vegetables for themselves, and hay and alfalfa
for their livestock, to replace what was lost. Our farmers will also
lose income from the expected sales that did not or will not occur.
Even farmers who have been able to salvage their farm goods now face a
stigma developing with respect to fruits and vegetables grown along the
San Juan River. This triggers a cycle of economic losses for the
community.
Third, the long-term health effects of the spill are ominous and
not fully understood. Heavy metals like lead, arsenic and others that
were discharged during the spill are known to be dangerous to humans,
animals, and plants. These metals persist in the environment and are
particularly harmful to fetuses and children. To provide a sense of the
magnitude of exposure to these harmful metals just from the spill, one
report of EPA data indicated that lead was found near the Cement Creek/
Animas River confluence ``at more than 200 times higher than the acute
exposure limit for aquatic life, and 3,580 times higher than federal
standards for human drinking water.'' And arsenic was found ``more than
24 times the exposure limit for fish and 823 times the level for human
ingestion.'' \11\ Human consumption of farm products and livestock
raised on contaminated water is therefore of grave concern. We are
especially concerned about sheep because sheep liver and kidney are
cultural delicacies, and are organs that are most likely to concentrate
contaminants. In addition, long-term effects on wildlife that live in
or rely on the River for water must be understood because we hunt and
fish these animals to put food on our tables, and as part of our
traditional cultural practices. Although USEPA has stated that surface
water returned to its previous condition, many of the contaminants have
merely settled to the bed of the River, and will be remobilized later
during storm events, for example.
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\11\ http://m.startribune.com/nation/321518301.html
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Fourth are the cultural and spiritual losses that we have
sustained. Indeed, the Navajo Nation's impacts are felt most pointedly
in the disruption of our cultural principle of hozho, which encompasses
beauty, order, and harmony, and expresses the idea of striving to
maintain balance in the Navajo universe. We connect to our land, our
water, and each other through ceremonies and gatherings. We grow four
types of corn, each used for a specific purpose in our ceremonies, and
those seeds are protected by the strong culture of farming that has
persisted in the San Juan River Basin. Navajo cornhusks are mixed with
tobacco to create ceremonial smoke, and our corn pollen is used as an
essential element in all Navajo ceremonies. One of our corn seed
strains is utilized in our critical kinaalda ceremonies (the coming of
age ceremonies for our women). We also grow an array of heirloom fruits
and vegetables that our people eagerly anticipate selling and
purchasing during our popular fair season each fall. Those fruits and
vegetables are shared over family tables, and are a part of the
cultural glue that keeps our families and way of life intact. Families
travel for hours across the Nation to the San Juan River Basin to
access these ingredients for our ceremonies and celebrations. But the
spill destroyed many of these crops so critical to our prayers,
ceremonies, and our way of life.
Fifth, the impairment of the River and the adverse impacts to our
farmers and ranchers, and our community as a whole, will mark a moment
of community trauma that will be endured for years to come. This new
trauma will compound our already significant historical trauma, and
raises new and troubling public health concerns. Already three suicides
have occurred in the course of the last two weeks in affected
communities along the River. Our Department of Health is researching
the connection of the suicides to the spill, and we are concerned that
these might be the first of a larger cluster. This tragedy affects all
of our Nation because so many of us have relatives in Northern Navajo.
Compounding this trauma, are the repeated response failures and
withdrawals of aid (and blockage of aid) by USEPA, which have sent a
strong message to our people that Navajo lives don't matter, that our
health and well-being don't matter, and that our way of life doesn't
matter. We will be dealing with the effects of this spill for decades
and rebuilding the shattered sense of self so many of our people are
experiencing as a result of this disaster.
V. Significant Resource Needs
In light of the devastating impacts from this spill, both known and
yet unknown, we need to act quickly and thoughtfully to protect our
Navajo citizens, our natural resources, the Navajo way of life, and
most importantly our future generations. We need assistance from the
responsible parties to address the short- and long-term impacts, to
make us whole, and to return the beauty and hozho to our River and our
people. In addition to oversight and national attention, Congress can
provide forward-thinking legislative solutions to some of these issues.
We therefore ask for the following:
1. We continue to need resources from USEPA, FEMA and BIA to
address the ongoing need. We still need continued delivery of
water for both livestock and farming, as well as the delivery
of hay to impacted ranchers. Farmers and livestock owners are
essentially fed water from two point sources along the San Juan
River. Although we have allowed the waterways to be opened for
irrigation only, the farmers who are fed water from one point
source have unanimously voted not to use the San Juan River
water because they lost all faith in the USEPA's data. These
farmers still need water for both their crops and livestock and
hay for their penned livestock. The USEPA's actions in this
matter have spread fear, and our farmers and ranchers should
not be penalized for their lack of trust in the USEPA.
On the other point source, the water was reopened for
irrigation purposes only. Based on the data samples our Navajo
Nation Environmental Protection Agency has seen, the
contaminant levels were still above Navajo standards and
therefore the water is not safe for consumption by livestock.
As such, livestock owners in the area need to pen up their
animals in order to prevent them from drinking the River water.
They will still need water delivery and hay for their penned
livestock.
Even in light of the above, the USEPA has essentially
withdrawn assistance. The Bureau of Indian Affairs has been
helpful, but they had to pull out because they ran out of
funds. FEMA has denied assistance to Navajo, deferring to USEPA
as the lead response agency. As it currently stands, there are
no federal services being provided to farmers and ranchers in
the area. We as a Navajo Nation government, and our farmers and
livestock owners, are left to deal with not only the
contamination, but the financial and emotional mess left behind
by the USEPA's actions. I ask, why should we bear that burden?
2. If USEPA will not continue its services to mitigate the
harm to farmers and ranchers, we need assurances that they will
fairly and fully compensate the affected farmers and livestock
owners for their damages. Many farmers and ranchers have lost
crops. Many have expended their own funds to try and mitigate
their damages. Some have lost economic value of their goods,
among a whole host of other possible damages. We are unsure as
to whether the FTCA claim process will provide fair, full, and
ongoing compensation to our people. As previously stated, we
have asked USEPA for an interim claims process or a relief fund
that will allow for ongoing claims and quick remuneration. And
we have asked the U.S. Attorney General for an opinion
confirming that the filing of Standard Form 95 and the settling
of a claim filed under that form or process does not in fact
fully satisfy and settle the claim as the plain language of the
form and the FTCA itself indicates. Despite the urgency with
which our people need to be compensated for their already
experienced losses, to date we have received no response or
confirmation from the USEPA or USDOJ.
3. We need resources to conduct our own water, sediment, and
soil monitoring, and authority for the NNEPA to do the
necessary work. Due to our lack of trust in the USEPA and the
conflict of interest that exists with the USEPA, we want to be
able to monitor their work and confirm their results. We will
require an on-site lab, and additional staffing to manage the
sampling and lab performance. We are already expanding our
scope of work into the realm of sediment testing, but testing
and lab work is expensive, so we need additional funding to
facilitate that work. This will enable us to provide our
farmers and our leaders with the answers they deserve, and with
answers they can trust.
4. The U.S. Environmental Protection Agency needs to clean up
all the contamination that is flowing into the River. As we
have discovered, along with the Gold King Mine, there are many
hundreds of hardrock mines along the River that continually
release contaminants into the River. We suspect that the volume
of contaminants they release over time is much greater in
magnitude than this latest burst from the Gold King Mine. USEPA
needs to develop a plan to clean up these sources of
contaminants, share their plan, and implement and complete that
plan. We request, as part of the plan, that USEPA designate
these mines as superfund sites.
5. We need resources to address near- and intermediate-term
impacts. We need assistance to create redundant and auxiliary
water supplies, at least two treatment plants, additional
drilling for wells, repair of windmills and new reservoirs to
guard against the negative impacts of future contamination.
Until there is a plan in place from the USEPA that would
prevent future contamination of the San Juan River, and that
plan is implemented, we need these water supplies and
reservoirs in case we need to shut off water from the River
again. For the sake of our people and our Nation, we hope we do
not ever have to do that again, but for now, that risk remains.
We also need treatment plants to filter out contaminants to
make the water safe for human, animal and agricultural
consumption, including a water treatment plant at the head of
our waters in the communities of Upper Fruitland and Shiprock.
6. We need resources to study and address the long-term
health, economic and environmental impacts of the spill and to
return the River to a safe and healthy state. While long-term
health and economic impacts have not yet been quantified, we
believe they will be substantial. We will need assistance
monitoring health impacts, including mental health impacts, as
well as the resources necessary to fund this monitoring effort
and to fund treatment, if necessary. Extensive planning and
study will be needed to return the San Juan River to a safe and
healthy state.
7. We demand a fair and independent assessment of the USEPA's
and others' role in the spill, and the establishment of a
different lead agency. Since they were the cause of this
contamination, we have serious concerns about the strong
conflict of interest USEPA has with respect to this
investigation and the emergency response. An independent body
should conduct the investigation, and FEMA should take over as
lead responding agency.
8. We ask that Congress revisit this important issue and the
federal response in six months. This complex issue will not
disappear overnight for the Navajo people; we request Congress
hold another hearing in six months ensure the Federal
Government, starting with the responsible party, the USEPA, has
made sufficient progress.
Ahehee.' Thank you for your time and attention to this important
issue.
Senator McCain. Mr. Chairman, could I just say I had the
opportunity of being with President Begaye when all this
transpired. I thank him for his leadership, I thank him for his
rapid response to the people of the Navajo Nation and I thank
you for your very strong statement today.
I note that you are accompanied by your outstanding
attorney general as well.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator McCain.
Next we will hear from the Honorable James ``Mike'' Olguin.
STATEMENT OF HON. JAMES ``MIKE'' OLGUIN, TRIBAL COUNCIL MEMBER,
SOUTHERN UTE INDIAN TRIBE
Mr. Olguin. Good afternoon, Chairman Barrasso and Committee
members.
My name is Mike Olguin. I am honored to be here. I am an
elected member of the Southern Ute Tribal Council which is the
governing body of the Southern Ute Indian Tribe. Thank you for
the opportunity to appear before you today on behalf of the
tribe and to discuss the Gold King Mine spill and its impact on
the tribe and our community.
At this time, Mr. Chairman, I would like to mention a few
items from my written statement and then answer any questions
you or the Committee members may have.
The Animas River crosses the tribe's reservation downstream
of Durango, Colorado and upstream of New Mexico. Since the Gold
King Mine blew out on August 5, the tribe has been extensively
engaged in responding to the spill.
We first learned of the Gold King Mine release when the
Colorado Department of Natural Resources notified the tribe on
the afternoon of the spill. We immediately responded by
implementing our emergency management plan, contacting the
county office of emergency management, EPA and sampling water
quality before the spill reached the reservation.
In the first days after the spill, it was largely the local
jurisdictions who responded to the incident. The tribe issued a
disaster declaration on Saturday, August 8th. Other
jurisdictions followed suit.
In the days following the release, we attended to the needs
of the tribal membership. We posted signs closing access to the
river on the reservation, delivered bottled water, provided
water tanks and water for livestock, held informational
meetings with tribal members and offered temporary housing for
affected tribal members. Additionally, we coordinated EPA
testing of tribal member domestic water wells.
For the duration of the response, tribal staff actively
participated with personnel from other affected governments in
the Unified Incident Command and remains engaged in the
Incident Command to this day.
As of Friday after the spill, the EPA still did not have a
coordinated effort in Durango. In the absence of a Federal
presence, local jurisdictions, including the tribe, worked
together. For example, on August 6, the tribe's water quality
program called New Mexico's Spill Reporting Hotline and
reported the spill to New Mexico. At that point, neither EPA
nor Colorado had notified New Mexico.
The county and our tribe notified our sister tribe, the Ute
Mountain Ute Tribe, of the spill. We also shared information
with downstream tribes in the lower Colorado River Basin.
For the period from August 5th through September 8th, the
tribe has incurred approximately $170,000 in costs in
responding to the spill, mostly in staff time. We understand
neighboring community businesses suffered losses and our
neighboring local governments also incurred costs. We are
working with EPA to obtain reimbursement for costs already
expended and future costs that will be incurred, including the
cost of continued water quality monitoring.
The tribe has had a long, active water sampling program
funded by EPA's Tribal Assistance Program Clean Water Act
grants. The tribe's water quality data provided valuable
information to all the parties affected by the Gold King Mine
spill.
We tested before the plume hit the reservation and for two
weeks after the spill. During that time, we were testing daily
for over 25 substances, including aluminum, silver, magnesium,
arsenic, lead and mercury.
Coincidentally, just two weeks before the Gold King spill,
we had collected tissue samples from fish in the Animas to
conduct metal analysis of those samples. We shared our water
quality data and continued monitoring should provide important
information on the long term impacts.
Like others, we favor a full evaluation of events leading
to the spill and EPA's performance in responding to the spill.
However, it is important to keep this incident in perspective
and understand it points to a much larger problem.
There are estimated to be 20,000 abandoned mines in
Colorado alone causing water pollution problems. Federal
leadership, assistance and cooperation among downstream
community stakeholders is key to avoiding another blowout and
addressing the problem of abandoned mine drainage polluting the
Upper Animas River Watershed.
Thank you for the opportunity to appear before you today.
[The prepared statement of Mr. Olguin follows:]
Prepared Statement of Hon. James ``Mike'' Olguin, Tribal Council
Member, Southern Ute Indian Tribe
Good afternoon Chairman Barrasso, Vice Chairman Tester, and
Committee members. Thank you for the opportunity to appear before you
today on behalf of the Southern Ute Indian Tribe to discuss the Gold
King Mine Spill and its impacts on the Tribe and our community.
My name is Mike Olguin. I am an elected member of the Southern Ute
Indian Tribal Council, which is the governing body of the Southern Ute
Indian Tribe. The Southern Ute Indian Reservation encompasses
approximately 710,000 acres in southwestern Colorado. The Tribe is
blessed by eight rivers traversing its Reservation in five main
drainage basins. One of those rivers is the Animas River, which bisects
the western half of the Tribe's Reservation, downstream of Durango,
Colorado, and upstream of New Mexico.
Since the Gold King Mine blowout on August 5, the Tribe has been
actively and extensively engaged in responding to the spill. Because of
this experience, the Tribe has learned some lessons and is prepared to
share our observations with the Committee.
Tribal and Local Governments Were Particularly Responsive and EPA was
Cooperative in Responding to the Spill
The Tribe first learned of the Gold King Mine release when the
Deputy Director of the Colorado Department of Natural Resources
notified the Tribe's Wildlife Resources Division on Wednesday
afternoon, August 5, 2015. Our Tribe immediately responded by
implementing its emergency management plan, contacting the La Plata
County Office of Emergency Management, estimating when the contaminant
plume would reach the Reservation, contacting EPA to determine the
appropriate analyte list for water quality sampling, and commencing
baseline water quality monitoring activities before the spill reached
the Reservation. On Thursday and Friday, August 6th and 7th, tribal
staff coordinated with EPA and La Plata County personnel, attended
meetings, gathered information, and continued daily sampling on the
Animas River. In the first days of the spill, however, it was largely
the local jurisdictions who were responding to the incident. As of
Friday, August 7th, EPA still did not have a coordinated effort in
Durango. In the absence of a federal presence, local jurisdictions,
including the Tribe, worked together as members of the Southwest
Incident Management Team in coordinating a response.
In accordance with the Tribe's Incident Management Plan, Tribal
Chairman Clement Frost issued a disaster declaration on Saturday,
August 8th. Other jurisdictions followed suit. In the days that
followed the release, the Tribe attended to the needs of the tribal
membership. The Tribe posted signs closing access to the Animas River
on the Reservation, commenced bottled water delivery to affected tribal
members, provided water tanks for affected livestock owners, commenced
delivery of water for livestock (the Tribe commenced delivering water
to the tribal membership when the EPA contractor delivered water that
was not suitable for livestock consumption), held informational
meetings with tribal members, and offered temporary housing for
affected tribal member families. The Tribe also coordinated and
supported EPA testing of tribal member domestic water wells and
irrigation ditches in the impacted area within the Reservation.
Subsequently, the Tribe purchased and installed 14 reverse osmosis
systems on the kitchen taps of tribal member homes.
For the duration of the response, tribal staff communicated,
coordinated, and actively participated with personnel from other
affected governments in the Unified Incident Command. The Tribe's
Incident Management Team was fully engaged in the Incident Command
effort, which was headquartered in Durango, and worked closely with
local, state and federal agencies throughout the response effort.
Tribal Incident Management Team members staffed the center virtually
around the clock to ensure that the Tribe was contributing its
expertise to the response effort, as well as to ensure that the Tribe
was treated as an affected jurisdiction. The Tribe has since received
acknowledgement and thanks for its participation, expertise, efficacy,
and professionalism in responding to the incident, and remains engaged
in the Incident Command to this day.
The spill response highlighted the importance of relationships
between state, tribal, and local governments. The State of New Mexico
first learned of the spill on August 6th when the Southern Ute Indian
Tribe's Water Quality Program called New Mexico's Spill Reporting
Hotline. New Mexico had not received notification from either EPA or
Colorado at that point. The County and City attorneys reached out to
tribal attorneys to share information and meeting notifications that
they knew had not been shared with tribal attorneys. The Southern Ute
Indian Tribe coordinated with its sister tribe, the Ute Mountain Ute
Tribe, which draws water from the San Juan River. Other downstream
tribes in the lower Colorado River Basin, including Chemehuevi, Fort
Mohave, Quechan, and Cocopah reached out to the Southern Ute Indian
Tribe for information about the spill and the Tribe's water quality
sampling, which the Southern Ute Indian Tribe shared.
Today, water quality monitoring results show the water of the
Animas River on the Reservation has returned to pre-spill conditions
and the River has been re-opened for all activities. Our primary
concern remains the potential long-term impact on human health and the
environment caused by the deposition of heavy metals on the Animas
Riverbed.
The Tribe Incurred Significant Costs from Responding to the Spill but
Expects Full Reimbursement from EPA
For the period from August 5th through September 8th, the Tribe
incurred approximately $170,000 in costs responding to the spill,
mostly in staff time. We understand neighboring community
businesspersons suffered losses and our neighboring local governments,
La Plata County and the City of Durango, with whom the Tribe shares
many interests, likewise incurred costs. Long-term, we expect to incur
costs for continued water quality and sediment monitoring. The Tribe is
working with EPA to enter into a Cooperative Agreement whereby the EPA
will reimburse the Tribe for costs already expended, as well as future
costs that will be incurred, including the costs of continued water
quality monitoring.
The Tribe's Water Quality Data Provided Important Information for
Assessing the Spill's Short-term Impacts and Continued
Monitoring Should Provide Important Information on Long-term
Impacts
The Tribe has long had an active water sampling and monitoring
program, and for over fifteen years has been monitoring water quality
in the rivers that cross the Reservation, including the Animas. Before
the Gold King Spill, the Tribe's Water Quality Program had been
maintaining three stations in the River with equipment that
continuously collects pH, oxygen, temperature, and conductivity data.
EPA funds this monitoring through a Clean Water Act tribal assistance
grant. In response to the spill, the Tribe's Water Quality Program
established additional monitoring stations and expanded the list of
substances for which the Tribe tests. The Tribe tested before the plume
hit the Reservation, and for two weeks after the spill, the Tribe was
testing daily for over 25 substances, including aluminum, iron, silver,
magnesium, arsenic, cadmium, selenium, zinc, lead, mercury, barium, and
molybdenum. The Tribe has since resumed its routine monthly sampling of
water quality, quarterly sampling of macroinvertebrates, and taking pH,
oxygen, temperature, and conductivity readings every 30 minutes.
On Thursday, August 13, 2015, the Tribe shared the water quality
data it had collected on the Animas River since the spill. The data
from the lab was encouraging. The Tribe assessed the results against
tribal and state water quality standards, as well as historical data.
Initial pH data showed no dip below pH 7.4 on the Reservation. Aquatic
life prefers waters in the 6.5-8.0 range. The Tribe shared data with
EPA, the State of Colorado, La Plata County, local officials, and
community stakeholder groups. The Tribe also prepared and shared
historical water quality data to provide information on pre-release--or
normal--river conditions.
The Tribe also has historical data regarding aquatic life in the
River. Coincidentally, just two weeks before the Gold King spill, the
Tribe had collected tissue samples from fish in the Animas River to
conduct metals analysis on those samples. While the purpose of the
testing was initially to assess potential human consumption concerns,
the Tribe will continue to conduct these fish tissue studies to
determine any toxicity impacts from the spill. This will allow the
Tribe to assess the extent of bioaccumulation of toxins in the aquatic
life in the River.
The Tribe has been able to develop a highly successful water
quality program, which has provided valuable support to the community
in this response, due principally to EPA Tribal Assistance Program
grant funding. We hope Congress and the EPA will see the benefits that
the Tribal Assistance Program grants have provided to Indian Country
and its surrounding communities and continue to appropriately fund
these tribal grant programs.
The Problem of Abandoned Mine Drainage Predates the Gold King
Incident, and Addressing the Problem is Complex and Expensive
Like others, the Tribe favors a full evaluation of events leading
to the spill and the EPA's performance responding to the spill. We can
all learn from mistakes made and, based on a thorough evaluation of the
incident and response, hopefully, EPA, the Tribe, and other responders
can improve emergency response preparedness.
It is important to keep this incident in perspective and understand
it points to a much larger problem, one that has been 100 years in the
making. In the late 19th century, the discovery of valuable minerals in
the San Juan Mountains led to widespread trespass on lands set apart
for the Utes under an 1868 treaty. As a result, the United States
negotiated another agreement with the Utes in 1873 that carved 3.7
million acres out of the middle of the Ute Reservation. That agreement,
along with the 1872 mining law, paved the way for hard rock mining in
the San Juan Mountains, one legacy of which is mining-related pollution
of the Animas River.
The Gold King is not the only abandoned mine polluting the Animas
River basin. There are many others, and reportedly many thousands of
abandoned mines that similarly degrade water quality in rivers across
the West. There are an estimated 23,000 abandoned mines in Colorado
alone. We hope that the new light being shined on the long-standing
problem of acid mine drainage in the Animas River basin will cause
interested parties to develop a permanent solution.
Federal Leadership and Assistance, and Communication, Collaboration,
and Cooperation among Downstream Community Stakeholders and
Federal, State, and Tribal Governments, is Key to Avoiding
another Blowout and Addressing the Problem of Abandoned Mine
Drainage
Polluting the Upper Animas River Watershed
Without Congressional support and federal leadership, the problem
of acid mine drainage polluting the Animas River and other rivers will
not be solved. The Tribe, State of Colorado, local governments, and
stakeholders need federal assistance in exploring options for cleaning
up the acid mine drainage problem, including possible Superfund
designation for the San Juan Mountain area surrounding the Gold King
Mine. The Tribe urges the Committee to support continued dialogue and
collaboration and to provide direction in how the Tribe and other
interested parties can help EPA respond to contamination threats, in
order that EPA may fulfill its mission to protect, preserve and, where
necessary, proactively remediate contamination sites that continue to
threaten the Animas and other rivers.
Conclusion
The Tribe, through its Incident Management Team and Water Quality
Program has made a significant contribution to the response effort on
the Gold King incident. Based on ongoing discussions, we anticipate EPA
will reimburse the Tribe for its direct costs incurred responding to
the spill. The Tribe hopes Congress will fund, and EPA will assist in
providing support for, long-term monitoring for impacts caused by the
Gold King Mine spill. We also hope Congress will support EPA continuing
to work cooperatively with Colorado and affected tribes, local
governments, and community stakeholders to develop a permanent solution
to the acid mine drainage problem in southwestern Colorado.
Thank you for the opportunity to appear before you today. I am glad
to answer questions the Committee may have.
The Chairman. Thank you very much and we appreciate your
testimony.
Mr. Douglas Holtz-Eakin.
STATEMENT OF DOUGLAS HOLTZ-EAKIN, PRESIDENT, AMERICAN ACTION
FORUM
Mr. Holtz-Eakin. Chairman Barrasso, Senator Udall, Senator
McCain, thank you for the privilege of being here today.
The Gold King Mine blowout is a clear environmental
disaster. My goal is to shed some light on the larger economic
fallout of the events.
To do that, the first step is to actually get some sense of
the scale of the environmental exposure. As has been widely
discussed, the initial discharge was 3 million gallons,
although there are reports of continued discharge at a
relatively high rate of 610 gallons per minute.
If one extrapolates that from the moment of the blowout to
this hearing, there is an additional 37 million gallons of
discharge into the watershed.
The second step is to put some economic value on this
discharge. The conventional way to do that is to add up the
direct costs, alternative water supplies, hay, cleanup costs,
add to that loss economic activity like empty hotel rooms and
cancelled rafting trips and the spillover into the economic
livelihood in the area.
The data really were not sufficient to do that for purposes
of this hearing. I still think that would be a valuable
exercise.
As an alternative, we chose to turn to the EPA itself as a
source for the valuation of these toxic discharges. In
particular, they issued a rule for restricting the discharge of
a similar class of toxins from steam-powered electric
utilities. As part of that rulemaking, they identified the
value of minimizing these discharges and that looks like
essentially 90 cents per gallon of discharge.
If you take that number at face value, it says at the lower
bound, the 3 million gallon immediate discharge, is a $2.7
million damage to the area. At the upper bound, it is a $36
million damage to the area.
In doing so, I would emphasize that the EPA's analysis is
for sort of a study diminished discharge. It does not take into
account the acute environmental impact of the spike in toxins,
so it is probably a lower bound estimate of the kind of impacts
you would get.
In terms of perspective, it is also worth thinking about
the fact that about 500 other such abandoned mine possibilities
in the area. If we were to replicate the same series of
disastrous steps, that is about a $1.35 trillion economic
exposure.
I would emphasize that there is an enormous amount of
economic activity at risk and impacts to the region. As you
well know, the watershed covers four States and many key
rivers, the Animas, the San Juan and also Lake Powell but in
particular, it affects the tribes whose representatives sit
next to me.
I think it is important to recognize these are populations
not well situated to take that large an economic hit. As
emphasized in the hearing already, poverty and unemployment
rates hover above 40 percent in some cases and these are
economic institutions that rely heavily on water and have large
amounts of agriculture.
The Navajo Nation has about $40 million a year in
production and $2.5 million in exports. Bearing the cost of
these kinds of impacts is a severe hardship for the tribes. I
think it should be a priority to make sure that those costs are
minimized as much as possible.
In closing, I would emphasize two more things about that.
First, it is obvious that the dry economic dollar should not
capture the damages to cultural values and the kinds of things
President Begaye talked about. You should look at all of this
as sort of a lower bound on the impact the tribes will bear.
The second is, from an economics point of view, it is not
the actual damages and the actual duration of the environmental
damage that matters. It is the perceived damage. If I am going
to buy the export of Navajo cherries, as a customer what I care
about is the perception that they might still be tainted by the
discharge from the Gold King Mine.
In that regard, clarity in the actual environmental damages
and clarity in the health risks consumers of those products and
producers of those products face is not just something which is
I think a standard of good government-to-government relations,
it is an imperative for repairing the economic damage of this
blowout, to restore the confidence in the products these tribes
produce.
I thank you for the chance to be here today.
[The prepared statement of Mr. Holtz-Eakin follows:]
Prepared Statement of Douglas Holtz-Eakin, President, American Action
Forum *
---------------------------------------------------------------------------
* I thank Kim Van Wyhe and Jacqueline Varas for their assistance.
All opinions expressed herein are my own and do not represent the
position of the American Action Forum.
---------------------------------------------------------------------------
Chairman Barrasso, Vice Chairman Tester and Members of the
Committee, thank you for the opportunity to appear today to discuss the
impacts of the Environmental Protection Agency's (EPA's) Gold King Mine
disaster. In today's testimony I wish to make three main points:
Although there is no direct precedent for the toxic Animas
River spill in Colorado, past EPA estimates indicate that the
spill could cost between $338 million and $27.7 billion;
If each of the 500,000 known Abandoned Mine Lands (AMLs)
released as much toxic waste into the rivers as the Gold King
mine, the total would amount to 1.5 trillion gallons. Using the
same method for estimating the lower-bound cost of the Gold
King mine spill, the 500,000 AMLs would cost an estimated $1.35
trillion dollars; and
Transparency within the Environmental Protection Agency
remains elusive. The Gold King case shows inaction, poor
planning and misleading statements by top officials. Prevention
planning and mitigation were not adequately executed.
Let me provide some background on the spill as well as detail to
each of these points.
Gold King Mine Blowout
Ironically, in an attempt to prevent contaminating water, a team
under the supervision of the EPA was the catalyst that caused over 3
million gallons of toxic waste to be released into the Animas River on
August 5th, 2015. \1\ These toxins included neurotoxins, lead arsenic,
thallium and other heavy metals from the abandoned Gold King mine. The
contracted company, Environmental Restoration LLC underestimated the
built-up volume of water, and in an attempt to install a pump to draw
out the water triggered the breach. \2\ The polluted water, which has
covered 300 miles to date, entered the Animas and San Juan rivers
through Cement Creek and has now reached Lake Powell in Utah. \3\
The spill prompted emergencies in three states as well as two
American Indian tribes, the Navajo and the Ute, which will bear the
brunt of both the direct and indirect costs. Some of those costs are
already apparent, while others will come to light months or even years
from now. The toxins caused the wastewater coming from the Gold King
Mine to turn a mustard yellow color created by high acidity and iron
bound to solid particles (see picture). \4\ The abandoned mine was
closed in 1923 and is currently owned by Todd Hennis, President of San
Juan Corp. \5\
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: IFL Science
Tribal Impacts
The spill, which has been identified as one of the worst hard rock
mining related disasters in decades has been detrimental to its
surrounding community. Local business centered around the river has
dried up, farming has come to a halt and the sheer public safety threat
that the 3 million plus gallons of toxic mining waste created has left
waterways in Colorado, Utah, New Mexico and Arizona in peril. Studies
suggest it will take decades to restore the affected waterways and
surrounding areas. \6\
The Navajo Nation is the largest Indian reservation in the United
States with approximately 300,000 residents spread across 27,000 square
miles. \7\ After the San Juan River was contaminated with toxic heavy
metals from Gold King Mine, Navajo leaders were forced to close the
river for more than three weeks. \8\ This left the reservation's
agricultural economy in significant danger, as the Navajo Nation's
30,000 acres of crops depend on river water for survival. \9\ The
polluted wastewater negatively impacted over 215 miles of farmland as
well native populations of fish, wildlife, and livestock. \10\ The
spill took an additional toll on Navajo Nation residents, who utilize
the river daily for cooking, cleaning, and bathing. The Navajo Nation
declared a state of emergency on August 11, but both the Federal
Emergency Management Agency (FEMA) and the EPA have rejected the
tribe's requests for federal aid. \11\
According to the Navajo Nation's Division of Natural Resources
``Water is Life,'' and ``Without water, farming and raising livestock
would not be possible''. \12\ Throughout the Navajo Nation, many
communities were established and grew because of the water available to
them. The Colorado River and San Juan River are some of the major
waterways that go through Navajo Nation and Lake Powell, although not
on Navajo land has more than 2,000 miles of southern shoreline located
on the Navajo Nation. \13\
Agriculture is the largest private-sector employer on the Navajo
Nation. Navajo agriculture exports average $2.5 million dollars per
year producing staples of pinto beans, corn, wheat and fresh produce
such as apricots and cherries, total production comes out to around
$37.5 million per year. \14\ The tribes rely heavily on the San Juan
River for both irrigation and for livestock needs to support this
growing industry.
For the past 42 days, $892,000 in revenue has been potentially
lost, as the Navajo tribe has been unable to depend on the rivers due
to the toxic waste. If this situation is not resolved soon, the
Navajo's agriculture industry could be crippled. Using the lost days
and total production. The Navajo nation has the potential to lose $1.25
million dollars per month or $41,000 dollars a day. A little over two
weeks ago, Navajo Nation president Russell Begaye met with farmers to
discuss plans to reopen the irrigation canal near the town of Shiprock,
however due to the environmental degradation and safety hazards that
are associated with the river the farmers overruled Begaye and voted
104-0 to maintain existing closures for a year. \15\
The Southern Ute Indian tribe was the first to see toxic waste
invade its waters, as the Animas River runs directly through its
reservation. The reservation covers 1,059 square miles in 3 counties
and is comprised of the oldest residents of Colorado. \16\ The Southern
Ute Indians, like the Navajos, declared a state of local disaster after
determining that the resources needed to manage the spill exceeded the
tribe's capabilities. Much like the Navajo Nation, the Southern Ute
Tribe is dependent on river water for fishing, farming, and the
preservation of its natural resources. Although the long-term effects
of the spill on wildlife are not yet known, the EPA's actions and
subsequent closure of the Animas River has been detrimental to the
tribe's quality of life and local economy. \17\ The Ute Mountain Ute
reservation was also affected by the spill citing that portions of
their 8,500 acre reservation were also affected by the Gold King
blowout.
In an independent assessment conducted by the Southern Ute Tribe it
was noted that total response effort expenses that were incurred due to
the spill have reached over $200,000 which has added a 45 percent
burden to employee straight time. This number does not include the
economic loss that has and will occurred as a result of the spill.
Estimating the Costs of the Animas River spill
Only time will reveal the full direct and indirect costs associated
with this massive spill. The lost income, and impact on tribal living
are yet to be seen but representatives from the Navajo Nation have said
that the river is ``an economic base that sustains the people that live
along the river''. \18\
The American Action Forum (AAF) recently analyzed EPA data in a
study entitled ``What will EPA's Toxic Animas River Spill Cost?'' to
determine the costs of toxic waste in the due to the Gold King Mine
blowout. The study found that a new EPA regulation, which aims to limit
the ``amount of toxic metals and other pollutants discharged to surface
waters'' by steam electric power plants, attributes $424 million of
annual benefits for reducing 0.47 billion pounds of toxic discharge.
Therefore, an approximate estimate for the benefit of avoiding toxic
waste was found to be 90 cents per gallon ($424 million/470 million
gallons). \19\
When this estimate is applied to the Gold King Mine spill, the cost
of the 3 million gallons of toxic wastewater spilled from the mine is
estimated to be around $2.7 million. However, the costs may be much
higher. At last week's hearing before the House Science, Space and
Technology Committee, \20\ Dr. Benn the Executive Director for the
Navajo Nation Environmental Protection Agency stated that the chemical
spill from the Gold King Mine continues to flow at a rate of 610
gallons per minute. \21\ The spill was said to have occurred at 10:58
am Mountain Time Zone. Using the time of the occurrence as well as the
estimated the flow rate, AAF determined that since the initial spill,
37,012,970 additional gallons of toxic waste have been flowing (as of
the start of this hearing at 2:15 pm today). The additional 37 million
barrels brings the price tag to just over $36 million dollars and
counting.
The EPA's power plant rule also serves as a useful guide for
estimating the costs of the Gold King Mine spill because it refers to
the prevention of arsenic and lead, toxic metals that were among those
toxins released into the Animas River. However, the EPA's estimates
represent the benefits of avoiding gradual water pollution, not acute
environmental disasters. Also, they do not take into account direct
costs that were imposed on residents in surrounding areas, which
resulted from their inability to access the river for farming, fishing,
recreation, and tourism. When these factors are taken into account, the
total costs of the EPA's river water pollution may be significantly
higher. \22\
It should be noted that the EPA's affluent discharge rule was not
designed to regulate acute pollution events, but rather the gradual
effects of water pollution. For example, the Animas River had 300 to
3,500 times the normal levels of arsenic and lead. In addition, the
figure of $2.7 million probably does not account for the value of
``non-use'' benefits that EPA and the Department of the Interior (DOI)
attempted to quantify in the past. Here, there are direct use costs
because thousands of local residents, farmers, anglers, and tourists
cannot use the river in its polluted state.
Abandoned Mine Lands
There are over 500,000 abandoned mines like that of the Gold King
Mine in the United States. These abandoned mine lands or AML's pose a
serious threat to human health and the environment according to the
Abandoned Land Mine Portal. Environmental degradation, including
sedimentary and sediment contamination, water pollution, air pollution,
threats to wildlife and endangered species and public safety concerns
are just a few of the dangers associated with AML's. \23\ If each of
the 500,000 mines released as much toxic waste into the rivers as the
Gold King mine, the total would be around 1.5 trillion gallons. Using
the same method for estimating the cost of the Gold King mine spill (at
the lower-bound figure of $2.7 million) the 500,000 AML's would cost
the American taxpayer an estimated $1.35 trillion dollars. The map
below shows the state of Colorado's reclamation projects and includes
the state's abandoned mines and mines under remediation. \24\
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
According to the Bureau of Land Management (BLM), the AML program
(which is run under the Department of the Interior's Office of Surface
Management) has a current funding request for $28.7 million dollars.
\25\ This is an increase of $1.3 million from last year. BLM states
that ``The Surface Mining Control and Reclamation Act established the
Abandoned Mine Reclamation Fund to receive the Abandoned Mine Land fees
and finance reclamation of coal AML sites. The increase includes
$700,000 for applied science studies pertaining to abandoned mines and
$291,000 for project monitoring. Based on this funding it would take
DOI over 143 plus years to pay for the cleanup of the 500,000 mines.
In 2009, the BLM released a study entitled ``Feasibility Study for
AML Inventory Validation and Physical Safety Closures'' \26\ that
determined the total cost to complete field validation and physical
safety remediation at 22,104 AML physical safety sites came out to
$402.6 million. BLM concluded that of that $402.6 million, $11.4
million would be required to field validate and remediate all high-
priority sites impacting public safety and that $12.6 million would be
required to field validate and remediate the medium priority sites and
an additional $377.7 million would be needed to field validate and
remediate sites that are characterized as low priority. This price tag
to ensure physical and environmental safety is miniscule in comparison
to the cleanup and remediation efforts that would be needed if more of
these spills were to occur.
EPA Transparency
In 2014, the EPA was warned that that there was a serious risk of a
blowout at the Gold King mine. This raises the question as to why the
EPA wasn't prepared for such an incident and didn't have proper
containment procedures in place? According to a 92-page document that
was released by the EPA ``Conditions may exist that could result in a
blow-out of the blockages and cause a release of large volumes of
contaminated mine waters and sediment from inside the mine, which
contain concentrated heavy metals. \27\ '' Despite the explicit warning
the EPA did nothing to mitigate the problem. In fact, no remediation
work or maintenance had been done on Gold King mine in almost a quarter
of a century. The aforementioned documents did not include any details
of the spill and many of the 92 pages were redacted leading to
questions regarding to transparency within the agency, reports cite
that much of the redacted information came from the 2013 safety plan.
It was also revealed that it took the EPA nearly a day to inform local
officials of the incident; for 24 hours there were people and
businesses relying on this water source without any knowledge of the
toxins that were running rampant.
EPA Chief Gina McCarthy declared a moratorium on all mine
remediation across the country until it can be concluded how the Gold
King spill occurred. \28\ McCarthy said the EPA will take time to
``properly review and analyze the data'' which is leaving the
surrounding communities waiting for answers.
Conclusion
The Gold King Mine spill will cost a significant amount to clean
up, and an unknown additional amount to monitor residual effects from
the toxins. These factors will make the indirect costs as a result of
the spill also indefinite for quite some time. Communities are in
danger and the tribes who depend on these rivers have to find alternate
water sources or relocate in order to survive.
Had the EPA taken the proper precautions and heeded their own
warnings, this situation could have been avoided. The avoidance and
lack of preparation for abandoned mine lands in the United States is
quite evident, and potentially quite costly. It would be prudent of the
EPA and DOI to come up with a plan in order to not be in the same
position again and impose on the American taxpayer the costs of another
careless mistake.
Thank you for your time and I am happy to answer any questions you
may have.
Sources
\1\http://www2.epa.gov/goldkingmine
\2\https://www.cpr.org/news/story/gold-king-mine-1887-claim-
private-profits-and-social-costs
\3\http://www.huffingtonpost.com/entry/epa-knew-of-risk-for-toxic-
spill_55d8f1afe4b0a40aa3ab32e3
\4\http://www.iflscience.com/environment/canary-gold-king-mine-
legacy-abandoned-mines-means-more-spills
\5\http://www.cpr.org/news/story/gold-king-mine-1887-claim-
private-profits-and-social-costs
\6\http://www.theguardian.com/us-news/2015/aug/10/colorado-spill-
animas-river-durango-toxic-orange
\7\http://www.discovernavajo.com/fact-sheet.aspx
\8\http://www.denverpost.com/news/ci_28720782/navajo-nation-
reopens-irrigation-canal-3-weeks-after
\9\http://gazette.com/navajo-nation-says-it-feels-brunt-of-
colorado-mine-leak/article/1557261
\10\http://www.marketplace.org/topics/sustainability/navajo-
nation-among-those-affected-mine-disaster
\11\http://www.kob.com/article/stories/s3898844.shtml#.Ve9BU_RSJ2w
\12\http://dnrnavajo.org/
\13\http://dnrnavajo.org/
\14\http://www.progressive-economy.org/trade_facts/navajo-farm-
exports-2-3-million-per-year/
\15\http://www.theguardian.com/environment/2015/aug/26/gold-king-
mine-spill-navajo-nation-farmers-animas-river-water
\16\https://www.southernute-nsn.gov/
\17\ http://indiancountrytodaymedianetwork.com/2015/08/13/
southern-ute-tribe-declares-disaster-over-mining-spill-animas-river-
161377
\18\http://nypost.com/2015/08/12/navajo-nation-feels-brunt-of-
colorado-mine-leak/
\19\http://americanactionforum.org/insights/what-will-epas-toxic-
animus-river-spill-cost
\20\https://science.house.gov/sites/republicans.science.house.gov/
files/documents/HHRG-114-SY-WState-DBenn-20150909.pdf
\21\http://www.usgs.gov/blogs/features/usgs_top_story/
understanding-the-effects-of-abandoned-mine-lands-on-the-environment/
\22\http://americanactionforum.org/insights/what-will-epas-toxic-
animus-river-spill-cost
\23\http://www.abandonedmines.gov/
\24\https://www.cpr.org/news/story/gold-king-mine-1887-claim-
private-profits-and-social-costs
\25\http://www.osmre.gov/
\26\http://www.blm.gov/style/medialib/blm/wo/
MINERALS_REALTY_AND_RESOURCE_PROTECTION--/aml/
aml_documents.Par.86129.File.dat/AML%20FeasibilityStudy_PSH.pdf
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\28\http://www.popsci.com/secret-history-epas-animas-river-spill
The Chairman. Thank you very much.
Dr. David Weindorf.
STATEMENT OF DAVID C. WEINDORF, ASSOCIATE DEAN FOR RESEARCH,
COLLEGE OF AGRICULTURAL SCIENCES AND NATURAL RESOURCES, TEXAS
TECH UNIVERSITY
Mr. Weindorf. Chairman Barrasso, Senators McCain and Udall,
thank you kindly for the opportunity to testify before you this
afternoon.
My name is Dr. David C. Weindorf. I serve as Associate Dean
for Research in the College of Agricultural Sciences and
Natural Resources at Texas Tech University.
Approximately two weeks after the Gold Mine Spill, I was
contacted by Rick Strait, New Mexico State Soil Scientist for
the USDA Natural Resources Conservation Service. He urgently
requested my help in assessing soil quality in and along the
Animal River Watershed in northwestern New Mexico.
Quickly, a partnership was forged between the NRCS, New
Mexico State University, who operates a field research station
in Farmington, New Mexico, represented today by Dr. Kevin
Lombard here with us, as well as myself of Texas Tech
University, a soil scientist with expertise in advance soil
spectroscopy techniques.
From September 1 through 3, Dr. Lombard and I used a
portable x-ray fluorescent spectrometer, hereafter referred to
as a PXRF, to make elemental analysis of the reddish orange
sludge released as part of the spill.
We also revaluated farm fields irrigated by the water taken
from the Animas River, as well non-irrigated soils in the
valley which we scanned as control samples. In all, we scanned
140 samples in three days.
The PXRF spectrometer measures around 20 different elements
on-site in 60 seconds with parts per million accuracy and is
backed by reference methods set forth by the NRCS, Soil Science
Society of America, EPA and several European agencies.
My scanning extended from the farms on the Navajo Nation up
through the farming communities of Farmington and Aztec, north
into Colorado and ended just north of Durango, Colorado where
remnant sludge from the spill was still widely present all over
the river shorelines as you will see in photo 1.
Even though the large initial pollutant plume has now
passed and the water has once again become clear, in parts of
the river, large amounts of the contaminant sludge remains. I
call your attention to the photo where you clearly see the
river flowing clearly but it is bordered by the deposition of
reddish orange sludge along the river banks and in the sediment
along the bottom of the river.
Using the PXRF spectrometer, we determined that he lead
concentration of the sludge average 637 ppm, more than ten
times the background level of lead in the control soils of the
area. Notably, the residential screening limit for lead
concentration in soils is 400 ppm.
Similarly, the sludge displayed high levels of arsenic,
zinc, copper and iron relative to control soils of the area. I
am aware this disputes the conclusion previously voiced today
that pre-spill levels of elements are now present along the
river. Clearly, they are not.
Luckily, farmers of the Animas River Valley were quick to
close off the irrigation ditches connected to the river, thus
keeping the worst of the pollutant plume, that reddish, orange,
cloudy water, from entering their farm fields and irrigation
systems.
Now that water has once again turned clear, I am worried
about an even more insidious threat that looms. With the water
clear, the television cameras are gone and the farmers are
starting to turn on their irrigation water once again from the
Animas River.
However, the large volume of contaminated sediment found
both on the river embankments and within the river channel
itself, as you see in photo 3, will now make its way downstream
in small amounts, a sort of death by paper cuts, if you will.
Hydrologic pulses to the river caused by spring snow melt
and flash floods will now wash small amounts of the pollutant
into the river as suspended sediment. Photo 4 shows a kind of
muddy water of the suspended sediment in the Animas River
flowing through the Navajo Nation just three weeks ago while I
was there.
This suspended sediment translocation can occur for years
to come, posing a threat of bioaccumulation in the soils and
crops irrigated by Animas River water.
The Chairman. I want to make sure we are caught up with the
pictures.
Mr. Weindorf. Yes.
The farmers have once again started to irrigate but small
amounts of the metals, most of those which are positively
charged cat ions, will be deposited into the soils and bind to
negatively charged soil particles which will accumulate over
time. You see that irrigation in my last photo.
Subject to funding approval, the NRCS, New Mexico State,
Texas Tech team has already devised a plan and has that plan in
place to provide long term monitoring of the farm fields in the
Animas River Valley through extensive on-site PXRF scanning and
monitoring the fields irrigated with Animal River water to
include farms on the Navajo Nation. In fact, we have already
demonstrated this PXRF technology to the Navajo Nation and EPA.
For long term assessment, we seek to work directly with
local farmers who trust both NRCS conservation programs as well
as New Mexico State University outreach efforts. In essence,
this is local people helping local people.
Without this type of monitoring to ensure soil quality of
the area, I feel the public perception of the food and fiber
produced in the river valley will be harmed and the quality of
the soils will be placed at risk.
We stand ready to work with local farmers of northwest New
Mexico and on the Navajo Nation to ensure optimal agronomic
production in the face of this environmental degradation.
Thank you again. I will be glad to take any questions you
may have.
[The prepared statement of Mr. Weindorf follows:]
Prepared Statement of David C. Weindorf, Associate Dean for Research,
College of Agricultural Sciences and Natural Resources, Texas Tech
University
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
*The Gold King Mine Animas River Spill Preliminary Assessment
of Surface Water, Sediments and Irrigation Ditches by Kevin
Lombard and April Ulery has been retained in the Committee
files.*
The Chairman. Thank so much, Dr. Weindorf.
Mr. Harrison.
STATEMENT OF GILBERT HARRISON, RANCHER AND IRRIGATOR, NAVAJO
NATION
Mr. Harrison. Yaa'at'eeh, Chairman Barrasso, Vice-Chairman
Tester, and members of the Committee.
I am Gilbert Harrison, a member of the Navajo Tribe and
work a 20 acre farm located on the Navajo Nation, a community
called Gadii'ahi, along the San Juan River. Thank you for
allowing me to address this important Committee.
I am 73 years old and have a wonderful wife, Gloria, an
equal partner in our farming operations. I spent four years in
the Marine Corps during the Vietnam conflict. I am a disabled
veteran.
I have a Masters Degree and a Bachelors Degree in
Electrical Engineering and am also a registered professional
engineer. I worked in the aerospace industry and finished my
engineering career with the Indian Health Service at the Navajo
Area Office.
I was raised on a farm, except for the time I was away for
education, military service and career. I am now back to
farming and sheep ranching. We have a small farm growing
alfalfa, hay grazer, corn, watermelon and cantaloupe.
We grow Native corn for traditional use and its pollen for
Navajo ceremonies. This Navajo corn is very specific to our
region and the seeds are handed down through generations.
I first heard of the Gold King Mine spill a day or two
after the spill. I did not realize the magnitude of the spill
until Navajo Nation President Begaye declared a state of
emergency. Then I realized we had a serious water situation.
To try and save some of our crops, we hauled water from a
tank provided by the BIA. USEPA provided tanks but we could not
use water from these tanks because the tanks were contaminated.
Due to our age and physical abilities, we were only able to
water our melons. Alfalfa, grazer and corn require lots of
water, so they went without water and are damaged. It is a
feeling of helplessness to watch your crops dry and die.
We will have to wait until the end of the growing season to
determine our real losses, but for sure, we have lost about 40
percent of our alfalfa, 50 percent of our hay grazer, 50
percent of our corn and 20 percent on the watermelons.
Annual crop and losses are for a single year. However,
alfalfa losses are long term, several years. These are cash
crops and this disruption is a major setback.
I do not have crop insurance and I will have to rely solely
on my claim to USEPA by a Standard Form 95. My concern is that
USEPA may take a hard line and shortchange many of our claims
because our farmers are not familiar with the process and are
not familiar with the correct units of measure to quantify
losses.
We ask Congress to urge EPA to be user friendly. After all,
they have put us in this situation. Hopefully claims are
processed in a timely manner.
This disastrous spill has caused social conflicts within
our communities and it will take a long time to heal. The spill
has caused friction between communities, between farmers and
even brothers against brothers over who gets water, who does
not get water and when. This is a serious issue we have not
experienced before and resolving it will be very difficult.
I am very disappointed and greatly upset with the USEPA for
putting us in this situation. As an engineer, I understand no
matter how careful a design, Murphy's Law, if it will go wrong,
it will happen. In this case, contingency plans may not have
been developed. I do not feel that USEPA or its contractors
were prepared for this tragic event.
We and our neighbors are now suffering the consequences.
EPA should be required to design and construct safe containment
and treatment systems to prevent future spills.
In closing, we are citizens of the United States. All we
are asking is for fair and equal treatment to make us whole.
This spill has completely disrupted our lives, economic
wellbeing and social values.
Despite this awful event, we will continue to farm with the
land. There is much joy in farming. With your help, we will
continue to farm and irrigate from a safe water source.
Ahehee. Thank you for providing me time to share with you
our situation. I am available to answer any questions you may
have.
Thank you.
[The prepared statement of Mr. Harrison follows:]
Prepared Statement of Gilbert Harrison, Rancher and Irrigator, Navajo
Nation
Yaa'at'eeh (hello) Chairman Barrasso, Vice-Chairman Tester, and
Members of the Committee, my name is Gilbert Harrison. I am a member of
the Navajo Nation and I have a 20 acre farm located in a community on
the Navajo Reservation called Gadii'ahi, along the San Juan River. My
community has been directly impacted by the spill. Gadii'ahi is part of
the San Juan River Farming Project, which consists of six chapters that
depend entirely on the River for irrigation needs. All of the farms in
this Project are mom and pop farm plots, in that they are 2, 5, 10 and
in a few instances 20 acres in size. My plight is very similar to the
majority of these farms. Thank you for allowing me to speak before this
Committee.
Just to give you a little background about myself, I am 73 years
old. I have been married to a wonderful woman, Gloria, for over 25
years, and I have raised 4 sons. I spent 4 years in the Marine Corps
during the Vietnam era. I also received my Bachelors of Science and
Masters degree in Electrical Engineering from Loyola Marymount in Los
Angeles, California. I am a registered Professional Engineer in the
State of Arizona. After college, I remained in Los Angeles for 5 years
doing Aerospace Engineering work. Thereafter, I came back to Window
Rock, Arizona and worked for the Navajo Nation in their Division of
Economic Development for 6 years. I then worked for Indian Health
Service in Window Rock at their Navajo Area Office for another 28
years. I retired from office work in 2007 and have been farming full-
time since.
I was raised on a farm and have been actively farming for 25 years.
On my farm, presently, I have about 7 acres for alfalfa and the rest of
the acreage are divided for corn, watermelon, cantaloupe and hay
grazer. I would estimate about 50 percent of my crops go toward our
personal use and 50 percent go toward sale to other Navajo ranchers. We
are also sheep ranchers. We use the sheep for our own personal use. I
have a small farm, so the income from my farm is too small to make a
living from. I depend heavily on my retirement pay. I sell a little bit
of alfalfa here and there. I also sell some Navajo traditional foods
converted from corn, such as steamed corn and kneel down bread and corn
pollen, which is used during Navajo traditional ceremonies. This type
of corn is a Navajo traditional type of corn that comes from a
specialized seed handed down from generation to generation. The
remainder of my crops is for household consumption. I also share some
of my crops with extended family. We use some of the alfalfa and hay
grazer for our sheep, which are now at our summer camp atop the Carrizo
Mountains, located about 40 miles west of Shiprock, New Mexico, an area
not affected by the spill.
I first heard about the spill at the Gold King Mine from our
Honorable Navajo Nation Council Delegate, Amber Crotty, about a day or
two after the spill occurred. It was along the lines of ``did you hear
there was a spill and there's a large gold plume headed our way?'' The
Navajo Nation Irrigation Office shut off the irrigation water from the
San Juan River around the same time. Occasionally, water also gets
turned off due to maintenance or other issues. So, at that particular
time, I did not realize the extent of this event and the effect it
would have on my farm. However, after Navajo Nation President Russell
Begaye declared a State of Emergency and put a ban on San Juan River
water use, I realized we were in for some rough times. I had to get
water to my crops! I started hauling water for our watermelons and
cantaloupes from a tank that was provided by the Bureau of Indian
Affairs. Additional water tanks were also provided by the U.S. EPA,
however we had received word that those tanks were contaminated, so we
did not take water from those tanks.
Alfalfa has roots that extend about 12 to 18 inches deep into the
ground. As such, they require a lot of water, up to 3 irrigations
between cuts and there are normally 3 cuts per season. Corn also
requires frequent watering. At my age of 73, I do not have the physical
capability or the equipment to provide the water necessary to keep
these crops fully watered. I only had the capabilities to provide water
for my watermelons and cantaloupes, so I had to leave the corn and
alfalfa to suffer.
It's difficult to determine at this time what my losses are with
regards to alfalfa and corn. I will have to wait until the end of this
growing season, in November, to figure out the loss on my annual crops.
In early spring we will be able to see the areas of no growth and where
we need to replant the alfalfa. However, I roughly estimate a 40
percent loss in alfalfa at this time. Generally, alfalfa has a life
span of about 6 to 7 years, and we are about 3 to 4 years into this
cycle. Due to this event, we will also have to buy and replant seeds to
replace the damaged alfalfa stands earlier than expected. This means
plowing under the entire alfalfa stand, planting rotational crops for
two years, and then finally replanting alfalfa. This is an additional
economic burden in labor, equipment wear and tear, fuel, seeds and
fertilizer. I also roughly estimate a 50 percent loss of my corn and a
20 percent loss of my cantaloupes and watermelons. My loss on hay
grazer is maybe about 50 percent. These are all very rough estimates of
losses that I did not anticipate!
I do not have many sources to go to in order to recoup my losses.
My farming operation is small, so I cannot carry the expense of having
any crop loss insurance. As such, it looks like I will have to rely on
a claim to U.S. EPA to recoup my losses. We did receive U.S. EPA's
Standard Form 95, however we have not filled it out yet. We will not
know the full extent of our loss until early spring, particularly in
the area of alfalfa, where losses are seen not only for this year, but
for years to come. EPA needs to consider this when they review our
claims. Additionally some of the native crops do not fit into a ``can''
unit of measure, so U.S. EPA will have to be understanding. I am hoping
that when I do submit a claim to the U.S. EPA, they will make good on
reimbursing me for my losses in a timely manner. I am a little worried
that by the time I submit my claim, U.S. EPA may no longer be under
pressure from the media or Congress. As such, they may not be as
willing to reimburse me for my losses. I hope Congress and other
leaders will keep checking on the U.S. EPA to prevent this from
happening.
This disconcerting spill event has cause social issues that may
take a long time to heal, such that it pitted farmers and communities
against each other, farmer against farmer, and in some cases brother
against brother. Because of the contamination, there are some
communities that still do not trust the water from the San Juan River.
As such, they voted to keep their water system off. There are other
farmers within these communities who did not agree with that decision,
which placed them at odds with each other. Then, on the other side,
there are communities who voted to have their irrigation water turned
back on and their waters were turned on. Unfortunately, our community
of Gadii'ahi is on the tail end of the system that did not get turned
on. However, after a recent vote by my community to have water
restored, Gadii'ahi was able to receive minimal amounts of water
directly from the San Juan River by a pump system provided by the
Navajo Nation last week. After about 5 weeks, I am finally getting
water to my crops. The water supply is about half of the typical amount
due to the capabilities of the pump, but I take whatever water I can
get.
This spill caused by the U.S. EPA created a lot of chaos,
confrontation, confusion and losses among the farming community. As
such, I am very disappointed and greatly upset with the U.S. EPA. As a
engineer, I understand that no matter the design, you have to prepare
for contingencies. I do not feel that the U.S. EPA, nor their
contractor, was prepared for this tragic event. We had to suffer and
still are suffering the consequences. To prevent future reoccurrence of
this disaster, EPA should be required to engineer and implement a
design that will contain, treat, and minimize release of toxic water at
the source.
Despite this event, I will continue farming. I love farming and
working the land. I expect I will be doing it until I am no longer able
to. With your help, I hope that I will continue farming and irrigating
from a safe and continuous water supply.
Ahehee.' Thank you for providing me a little of your time to
explain my story. I am available for any questions you may have.
The Chairman. Thank you very much.
Thanks to each and every one of you for your testimony.
I am going to start with Senator McCain.
Senator McCain. Mr. Harrison, thank you for your service to
our Country. Thank you for a very eloquent statement that I
think brings into focus the emotional stress that has been
unnecessarily placed on you and all of your fellow members of
the Navajo Nation.
President Begaye, because I was there, I want to thank you
for your leadership and your rapid action at the time this
disaster happened. I do not know of any excuse for waiting five
days before calling you. I think it is disrespectful to the
nation-to-nation relationship that is the foundation of our
Nation.
I guess my first and maybe only question to you is,
especially in light of Mr. Harrison's testimony, how would you
describe the stress that your citizens of the Navajo Nation
have exposed to as a result of this?
Mr. Harrison. Thank you, Senator.
It is devastating because we are faced with tremendous
amounts of miscommunication of whether things are okay, whether
things are not okay and you do not know which way to turn. I
think that is the biggest stress we experience because we do
not know who to trust anymore. That really is a problem.
Senator McCain. Thank you.
Mr. Begaye. Thank you, Senator McCain.
It is really disheartening to stand alongside a farmer, his
wife, standing out in the fields saying that we used to sing to
our crops, get up early in the morning and offer prayers,
thankful that we have corn, that we have hay, that we have
melons, squash and pumpkin.
Now, I have seen watermelon the size of this bottle of
water. I know that it is gone. They know it is gone but I see
them and we still take our five gallon bucket of water and are
still giving water to that watermelon because like our
children, we are not going to abandon them. We will stay with
them all the way until they are gone. It is a total loss for
them.
Not only that but this week one community experienced three
suicides. We have loss three precious souls, all because of
this uncertainty that has developed, the lack of help. When you
see the water buffalo that is there containing 15,000 gallons
of water, when you do not see hay coming anymore, when you are
being abandoned in your greatest time of need, what do you do?
It causes great amounts of stress.
This week, we loss three souls down in the community that
uses this river and this water. We are stressed out. Our people
are stressed out.
I will say this about my Navajo Nation people. We are
strong, we are resilient and we will recover. We will help each
other. We just ask this Committee to walk alongside us. Come
back three months from now, six months from now and have a
hearing right there in our community. Have a field hearing and
listen to our people. They will greatly appreciate what you
have done for us today.
Thank you, Senator.
Senator McCain. I thank you, Mr. President. I will discuss
that possibility with the leader of our Committee who is very
much committed and deeply moved by the situation and your
words. We will do everything we can.
In the meantime, I say the Navajo Nation is very fortunate
to have your leadership in this very difficult time.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator McCain.
Senator Udall?
Senator Udall. Thank you, Chairman Barrasso.
Let me also echo what Senator McCain said. We very much
appreciate your leadership, President Begaye. You have given a
very passionate statement today on behalf of your people. You
have shown to be a very forthright and excellent advocate for
the Navajo people.
I also think the government-to-government relationship
could have been done much better. We will stand with you to
make sure it improves every day into the future as you go
through and work through all these difficult issues.
In your testimony, you mentioned the Navajo people need
compensation and need it now. What advice are you giving
individual Navajos, President Begaye, on what they should do? I
know you have given some strong advice on the Form 95 but what
should they do in terms of trying to get together the
information to get it to the EPA? What advice are you giving
there?
Mr. Begaye. First of all, we are asking the EPA and this
Committee to lean heavily on EPA to waive that waiver of final
settlement and our people get a check from EPA for one week of
hauling water and paying for hay. That will be the end of their
settlement; that will end the amount of monies that EPA will
pay them and that will be the end of it.
We know that this loss is going to continue, not just for a
month or three months or this farming season. They told us, the
EPA told us, that the cleanup will take decades. That is what
they said to us verbally. Taking that to heart, our people will
hurt and suffer economically from this for decades.
We are saying to them keep a close record of what you have
spent already, take photos of your crops, take photos of you
hauling water and keep close records of this. Go ahead and
start filling out the Standard Form 95 but do not sign it.
We are asking EPA, we are asking members of this body to
make sure that we are given an interim form to use, not that
particular form but we need an interim form our people can use
so that they are compensated for their losses this week, next
week and months after. That is what we are saying to them.
We would greatly appreciate this Committee helping us put
that waivered language in that form so our people will be
justly compensated for all their losses.
Senator Udall. Thank you.
You have urged the EPA to designate the upper Animas as a
Superfund site. That is something I support. Can you tell us
the importance this action would have to the Navajo Nation?
Mr. Begaye. They were told this blowout was going to
happen, that it was going to happen soon and they did not take
care of business and they did not address adequately.
I stood at the mouth of the mine with the worker telling me
what he was doing when this spill took place, an EPA worker
over 40 years working for EPA was the person working the
backhoe when the spill took place. He told me the story step by
step on how this all happened.
He said the other mines on the other site was about to do
the same thing. We know it, EPA knows it but nothing is being
done about it.
It is urgent that EPA address this and address it now
because there is another disaster of this proportion ready to
happen. We are saying declare it a Superfund site, deal with
it, clean it up because we are the ones that will suffer in the
long run.
It is astounding for me to sit here this day to hear that
330 million gallons pour out of those mines every year. Where
do they go? They come onto the Navajo Nation land. We are
becoming a waste dump for those contaminants and I am astounded
to hear that being repeated over and over from our leaders, the
EPA and no one has stopped to say where are they going.
I will say even though the 300-plus million gallons pour
out every year, it is not yellow like it was when a large
amount came at one time. Those need to be cleaned up and
cleaned up by the EPA. They need to clean up their mess.
Thank you.
Senator Udall. Thank you, President Begaye.
Also, Chairman Barrasso, the Chairman, the Speaker of the
Navajo Council was unable to be here with us. His name is
Lorenzo Bates. He asked that his testimony be submitted for the
record.
The Chairman. Without objection.
I would like to follow up, President Begaye.
I hear your concerns. We talked on the phone. I spoke with
you, your attorney general and other members be had met prior
to this.
Can you explain the tribe's experiences with EPA and your
assessment essentially of their capabilities, their competence
and their attitude? Could you talk a bit about capabilities,
competence and attitude?
Mr. Begaye. Our people are questioning all three because
one, they knew about it and did not do anything about it. They
could have resolved the issue before it even started, but they
did not. That is one.
Today in the hearings this morning and this afternoon, we
are being told they are still there on the ground helping us
with water and hay. That is not true. They pulled out and are
not there anymore. The tanks are not on the ground. Hay is not
being delivered.
We were told just a few moments ago, the Administrator said
we are delivering hay. On this past Monday, she called on a
conference call, two days ago that they will continue to
deliver hay until this Friday. How convenient. It has always
been that.
The thing they said last week during the hearing, the
Science and Technology hearing, everything that was said then,
the promises that were made, have remained empty. We have not
seen any movement from EPA. They have not done what they said
they were going to do last week. We do not anticipate them
honoring what they said today.
We will hold back. The promises are empty now. There is no
movement taking place, no water is being delivered, no hay is
being hauled to our communities that desperately need it.
As I said over and over, they created a culture of
distrust. We can do the work ourselves. EPA needs to just give
us the dollars, give us the lab we need and we will test our
soil and test our waters. We have competence staff to make that
happen.
The Chairman. Thank you.
Can you talk about some of the discrepancies, what we heard
from the Administrator today and what you are seeing on the
ground? There is a significant difference. I wanted to ask you,
Mr. Olguin, a similar line in terms of something we heard from
the Administrator today.
The question is, when did the EPA Administrator actually
first talk to the Southern Ute Nation Chairman Clement Frost
about this disaster? The Administrator testified that it was a
certain date. I understand it was actually much later than
that.
Mr. Olguin. Chairman Barrasso, my understanding is that
Administrator McCarthy called the Chairman Frost this past
Monday, September 14th at approximately 1:30 p.m. in the
afternoon.
My understanding is the conversation was probably two to
four minutes and really addressed the appreciation for us
working with them but also was highlighting the initiation of
the cooperative agreement for reimbursement for costs, a two to
four minute conversation this past Monday.
The Chairman. In terms of your commitment, can you talk a
bit about how much money the tribe has spent, without
reimbursement, on measures to respond to the spill, installing
water filters, bottled water to your community and different
things related to that?
Mr. Olguin. Yes. To date, we have expended approximately
$170,000. We expect that number to go up even higher as we
continue to do long term monitoring. This was all on the
tribe's dime. We took it upon ourselves to initiate assisting
our tribal membership with delivery of water for their own
consumption and of course their animals.
Even today, we installed reverse osmosis units in tribal
member's homes to ensure that they do have continued safe
drinking water. That may expand further into their homes for a
full home system as well. The costs will still continue.
The Chairman. You did that because you thought you could
not rely on the EPA or FEMA to be there for you?
Mr. Olguin. We have always taken the position we will take
care of ourselves first and then of course seek reimbursement
as a second approach. It is because those relationships cannot
depend on the Federal Government to timely respond.
The Chairman. Mr. Harrison, my home State of Wyoming is a
ranching State. Every day our ranchers, both on and off the
Wind River Reservation, face hardships in running their
ranches. Whether it is having enough water to irrigate land to
grow alfalfa or dealing with livestock disease, running a ranch
is never an easy business.
The EPA does not appear to make it any easier for tribal
ranches like you and others on the reservation that have been
impacted by the spill. You talked about family versus family,
neighbor versus neighbor.
Can you talk a bit in detail about the trauma that the
Navajo Nation ranching community is experiencing right now as a
result of this EPA disaster?
Mr. Harrison. Thank you, Mr. Chairman.
That is an issue because we have communities we call
chapters. Some of them are very adamant about not turning on
irrigation water. In our case, we are at the very end of a
major irrigation system. We prefer to have our water to try to
save our large alfalfa fields. Because of that, we are at odds
with other communities.
We are also having discussions with our neighbors about the
water itself even within our own community because as a farmer,
a lot of times we take our grandkids out there to teach them
how to irrigate. Guess what, they love to play in the water and
they get wet.
The question is, is the water really safe now that we have
been hit with this disaster? The mothers and grandmothers
especially ask that question. What happens?
I think these are the social issues for those who have been
impacted and had this inflicted upon us. It is going to take a
long time to get over this.
Thank you.
The Chairman. Dr. Weindorf, in your written testimony, you
state that the water ``will likely appear quite clear and
usable but the likelihood of small amounts of metals contained
in the slowly migrating sludge will have the potential to
accumulate in farm fields over time.'' Is that an accurate
assessment of what you said?
Mr. Weindorf. Yes, sir.
The Chairman. You urge, of course, careful observation,
recommend clean up of the sludge in areas where it is apparent
and accessible. In your opinion, is the EPA not focusing enough
on the health risks and potential impacts to the communities of
the sludge moving downstream and into the irrigation ditches?
Mr. Weindorf. I would say I was really taken aback when I
was there in New Mexico making assessments with the NRCS and
New Mexico State at the overall lack of emphasis being put on
things.
I know there are people in the area working on things but
using older, traditional methods. They are collecting soil
samples, sending those off to a lab and waiting for weeks for
those results to come back. It is a spot check here or there.
We come on site with our technology and are able to do 140
sites in different places in three days. In fact, when the
rancher or farmer is out there, they want to see the results
while I am scanning right there. They can see it on the screen
themselves which I think speaks to a lot of what the President
mentioned here, the distrust of the data that comes back.
Wouldn't it be nice for them to see that data right there on
the screen?
I think there is a serious concern about the accumulation
of these metals over time. One of the things I was shocked
about when I went to the Colorado Res, you see this red sludge
all along the edge of the river that is still there today. I
worry about that eroding away and slowly working its way into
the river.
When we had the Exxon Valdez spill, we had people out there
in chemical suits washing the rocks. When we had the Deep Water
Horizon spill, I was there on-site. People used chemical suits.
They were literally scooping up the sludge.
Why is that not happening with the sludge in the river? All
you have to do is look at these photos I brought with me today
to see the material is clearly there. It is red. It is as
obvious as can be.
I really take issue with the fact that there was testimony
given earlier today that these levels have returned to pre-
spill levels. I dispute that.
I think there is a concern moving forward. I think it is a
legitimate concern and warrants careful monitoring.
The Chairman. Mr. Holtz-Eakin, according to Navajo
officials the unemployment rate for the Navajo Nation tribal
members is at 42 percent. Your testimony noted that agriculture
is a primary economic driver for the reservation. As a result,
farming and ranching communities have taken a direct hit
because of the EPA spill devastating the tribal economy for a
long time.
In your opinion, has the EPA's actions adequately mitigated
the economic and health threats to the farming and ranching
community to ensure long term viability of the tribe's economy?
Mr. Holtz-Eakin. I do not think so to this date. If you
listen to the testimony you just heard, they are leaving the
sludge exposed. That is the environmental danger that leads to
a health danger that undermines the economic confidence of
anyone doing business with the Navajo Nation, so no.
The Chairman. I thank each and every one of you.
I want to go to Senator Udall. I think you have a written
statement from someone who is not on the panel but you want to
include that? I would like to turn it over to you
Senator Udall. Thank you very much, Chairman Barrasso.
Let me thank you again because you have been very thorough
about this hearing and very patient in terms of getting in all
the testimony. I really appreciate it. I appreciate the entire
panel being here.
We have one additional person who I mentioned earlier. He
is a chapter president, Chili Yazzi. I talked to the Chairman
and he wants to proceed under the rules and I understand. Chili
Yazzi has done a statement, President Begaye, as you know. I am
going to read his statement into the record.
This is from the chapter president. This chapter, as
President Begaye knows, was very impacted.
''I greet you as relatives, as five-fingered human beings
and as brothers and sisters of the same earth mother and the
same father creator. Through our ways of reverence, we have our
special names for the great creator, including God the
Almighty.
We know him as Dzan. Our creator stories say he formed
mounds of clay and breathed life into them. Thus, we have an
intrinsic and undeniable relationship with the earth. We are of
the earth and we return to the earth. The earth belongs to all
of us and we belong to the earth just as a child and a mother
belong to each other.
The teachings of our peoples concur in that God is
everywhere. God the Creator inhabits the vast expanse of his
creation. His essence permeates through the earth. Thus, the
earth has spirit, it has life, it breathes and feels pain as we
do.
It is no misnomer that we refer to her as our earth mother.
She has unfailingly provided for all our needs but we are
failing her as the stewards we are supposed to be. As parents,
we have an unconditional love for our children and as
grandparents, we have the greatest hopes for the future of our
grandchildren. That is our common bond. We may have traveled
different paths of history but we have a common future in
humankind and we share a common destiny.
Our indigenous choice is that we want our earth to survive
as her life is our life. It is clear that exponentially
increasing exploitation of the earth is ebbing her life and
thus, accelerating the closure of our collective life.
As the original landlords of these lands, we stand in
defense of our earth. We choose to defend her life and the
light of our life. We implore of you, with a focus on the
future of our coming generations, let us reason together, let
us stand together for the life of our earth mother and the
lives of our children.''
That was Chapter President Yazzie. As President Begaye
knows, the chapter is the local form of government. His chapter
as very impacted by this. His name is Duane Chili Yazzi. I
would ask his full statement be put in the record.
I appreciate your courtesy, Mr. Chairman.
The Chairman. Thank you, Senator Udall.
I would just ask the members of the panel, are there any
final statements, things you might say if the Administrator had
actually stayed to hear your testimony?
Mr. Begaye. Thank you, Mr. Chairman.
I just want to say that our Navajo Nation has suffered
greatly and continue to suffer. We want the services returned
that have been taken away, the water tanks and the hay feed
because our farmers have truly lost a lot.
This will impact them the whole winter. They spent monies
they do not have. These are monies to pay bills and buy clothes
for their children and school supplies. All of that is now
gone. They have been devastated and they need to be compensated
very quickly.
I am asking this Committee and the EPA to set up an
emergency fund to be used to compensate our farmers and our
ranchers on a very timely basis. We are asking for that and
they have asked me to say that over and over and over.
I am speaking for my people and for these ranchers who have
been hurt. They need these dollars now.
Thank you.
The Chairman. Thank you.
Mr. Olguin?
Mr. Olguin. Thank you.
In closing, I would like to say is we as Ute people,
whether the Southern Ute people or the Ute Mountain Ute people
or even the Northern Ute people, we roamed those mountains.
That was our homeland. We were removed from those mountains
because of the gold, the minerals and the need for the silver.
Along that line, the mining industry has impacted us for
hundreds of years. Today, it still continues to impact us. I
think it is important that we understand there is a need for a
government-to-government relationship, whether it is one tribe
or all tribes because each tribe is being treated differently.
We are treated differently than the Navajo, than Ute
Mountain. Ute Mountain still has concerns with EPA's lack of
response. They wanted me to share that so I am taking that
opportunity. They are asking for EPA to respond to their needs
which is the uranium mine at Mill Creek.
I think it is very important that the relationship be
fostered and be maintained. Of course, funding is of utmost
importance, that the EPA provide that funding for cleanup of
these types of spills and accidents.
Thank you.
The Chairman. Thank you.
Mr. Holtz-Eakin?
Mr. Holtz-Eakin. No.
The Chairman. Mr. Weindorf?
Mr. Weindorf. You have heard repeatedly today that there is
deep-seated mistrust of the U.S. Environmental Protection
Agency. I would encourage the panel to engage with the U.S.
Department of Agriculture, specifically the Natural Resources
Conservation Service.
This is an agency that is trusted and has a long history of
working with farmers in the area. I think you will find every
time we came on-site and said we were working with NRCS, the
residents gave us a pat on the back, thank you so much for
being here, we really appreciate the help you are providing to
us.
These were the conservation partners with the legacy of
helping to protect our land and resources.
Also, I would encourage the panel to engage with
academicians at the university level with specialized expertise
in the latest research going on in these areas and include
people like Dr. Lombard who personally lives in the area
impacted and has expertise to lend in that regard.
Thank you so much.
The Chairman. Thank you.
Mr. Harrison, you get the last word.
Mr. Harrison. Thank you very much.
I just wanted to say many, many times farmers and ranchers
live in rural areas of America. We are forgotten many times. We
hear talk about the Administrator, how they can do all these
things but many times at the fear level. You do not see results
and that is what is concerning.
Finally, we look to the Congress, to Senators and
Representatives to help us, the little people. We are not
asking for a bunch. We are just saying keep an eye out for us.
Thank you very much.
The Chairman. I thank each and every one of you. Thank you
all for being here today. Thank you for your time. Thank you
for your testimony.
There may be some written questions submitted. The record
will remain open for the next two weeks.
I appreciate all of you being here and sharing your stories
with us today and your expertise.
The hearing is adjourned.
[Whereupon, at 4:39 p.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of LoRenzo Bates, Navajo Nation Council Delegate for
the Communities of Nenahnezad, Newcomb, San Juan, Tiis Tsoh Sikaad,
Tse'Daa'Kaan, and Upper Fruitland
Yaa'at'eeh Chairman Barrasso, Vice-Chairman Tester, and Members of
the Committee, my name is LoRenzo Bates. I am the Council Delegate for
the communities of Nenahnezad, Newcomb, San Juan, Tiis Tsoh Sikaad,
Tse'Daa'Kaan, and Upper Fruitland. Each of these communities have been
impacted by the spill, but Nenahnezad, San Juan, Upper Fruitland, and
Tse'Daa'Kaan all lie directly along the path of the San Juan River. The
other communities that I serve all draw water from directly or
indirectly from the river for human and agricultural use. Thank you for
the opportunity to submit testimony to the committee on a matter of
great significance to the Navajo Nation on behalf of the communities
and the farmers I represent.
On August 5, 2015, Environmental Restoration, LLC (herein
``Environmental Restoration''), a contractor for the U.S. Environmental
Protection Agency (herein ``USEPA'') was attempting to contain a leak
from the Gold King Mine near Silverton, Colorado. The contractor using
heavy machinery ruptured the mine's containment barrier releasing
millions of gallons of contaminated mine waste into a tributary of the
Animas River, Cement Creek. This toxic wastewater containing heavy
metals such as arsenic, lead, and cadmium flowed from Cement Creek into
the Animas River, and into the San Juan River (herein ``SJR'').
The SJR in northern New Mexico flows for more than 200 miles
through Navajo Country. The SJR provides almost all of the water for
the Navajo communities that live along it. The SJR was subject to a
federally mandates water settlement in 2008 that finalized the Navajo
Nation and the State of New Mexico's water claims as well authorized
the construction of a water development project that will carry water
from the San Juan River to Gallup, NM and then to Window Rock, AZ,
serving all the Navajo communities in between.
The full impact of this spill into the rivers of the Navajo Nation
will not be known for years. However, in the near term the Navajo
Communities along the river have experienced significant cultural and
economic damages as a result of the spill. Water is sacred to the
Navajo People; it is the basis of all life. Spiritually and culturally
Navajo beliefs are deeply connected to the land, air, and water that
lie between the four sacred mountains that form the aboriginal boundary
of our land. These connections are reinforced spiritually in the
ceremonies that comprise Navajo beliefs. Our ceremonies use traditional
seeds and crops that are grown and gathered on Navajo land. The spill
has contaminated or destroyed many of the essential elements of our
religious practice, and desecrated a river we have treated with
reverence since time immemorial.
Water is essential to our survival as a species, and is the
foundation of our agricultural economy. The Navajo Nation is located in
the high desert Four Corners region of the southwest and is
approximately the size of West Virginia. As an arid environment, the
loss of any water access for the communities is both life threatening
and economically devastating. The Navajo Nation is still mainly an
agrarian society that relies predominantly on the raising of livestock,
mainly sheep, and the growth of crops such as corn. The SJR and the
irrigation ditches serve the farming and ranching communities along the
river provide nearly all of the water essential for watering livestock
and irrigating crops. The spill that occurred on August 5 unfortunately
happened at the peak of our growing season. As a result of the
inability to irrigate crops many of the farmers along the San Juan
River have been devastated by the loss of an entire season of crops.
Ranchers were forced to watch their sheep and cattle suffer from the
inability to water, and may have lost animals directly, and be both
unable to survive off, or sell for profit, the stunted animals that
remain.
These are small family farms and ranches that grow enough to
provide for their own needs and a small amount left over to allow for
sale into the surrounding communities. As anyone who has spent time
around farmers and ranchers can tell you, agriculture is not for the
faint of heart. Seasonal variations of sun, rain, and snow, acts of
God, and random occurrences all come together to influence the lottery
of a good or bad season. The emotional and economic swings that frame a
life in agriculture mean that our farmers and ranchers are used to
dealing with these challenges. However, this was a manmade act by an
agent of the Federal Government.
The secondary impacts of these economic losses are only just
beginning. The Navajo Nation as a whole has an unemployment rate that
very often hovers at 50 percent. We have a per capita income around
$7,000. Among the communities with a strong agricultural or fossil fuel
backbone, the impact of these devastatingly low levels of employment
and income are mitigated. However, the economic ripples created by this
spill will continue to cause a loss of jobs and income for years to
come. Unfortunately, with this rise in unemployment and the emotional
desperation that it causes we are also expecting to see a rise in
social problems such as domestic and substance abuse.
Similarly, the long-term impact of the spill resulting from
contamination of the river, sediment, and surrounding land is
potentially catastrophic. We know that the toxic sludge plume has
passed through the SJR and into Lake Powell. We also know that the
plume itself moved at a much slower rate than the river that carried
it. Therefore, the water of the SJR, which was highly contaminated as
the plume moved along its path, is more than likely clear at this
point. Any damages from the water alone were caused by the inability to
use the water during the closure of the river, diversions, and
irrigation ditches.
Contaminates that moved slowly through the water had a substantial
ability to contaminate the sediment of the river for generations to
come. These contaminates have not passed, they are persisting in the
ecosystem contaminating its base and lying in wait for an event to
bring them back into the stream flow. The introduction of contaminates
such as lead, arsenic, and cadmium, among other contaminates, into the
ecosystem and food chain of the river will have untold effects on the
river, the communities that subsist on the river, and the economies of
those communities for years. As a result, the Federal Government will
have to commit to both long-term clean up and monitoring of the river
and its ecosystem.
Of greater concern than the contamination of the river itself are
the long-term health effects of these toxic chemicals on people and
animals. The toxins released during the spill will persist in the
ecosystem. Lead, arsenic, and cadmium are known to cause birth and
developmental damage in humans and livestock. EPA data from tests of
the water found exposure levels hundreds and thousands of times beyond
federal safe levels for humans. Now that these toxins are in the food
chain they could contaminate wildlife and livestock and eventually the
people that rely on them for food.
While the USEPA certainly made mistakes in communication, protocol,
and compensation during the early response to this disaster, further
highlighting these mistakes here does little to advance the needs of
the communities or the clean-up efforts. The community members have
reported a dramatic turnaround in how the USEPA has dealt with victims
of the spill.
The Navajo People have suffered significantly as a result of these
actions and will continue to suffer from the environmental, health, and
economic effects of the spill for years to come. The Federal Government
must find a way to quickly and efficiently compensate those who have
been affected by the spill and provide for the long-term health and
clean up of the SJR and its surrounding ecosystem. The Navajo Nation
has long worked closely with the USEPA to develop and enforce rules and
regulations that protect our water, air, and land while providing us
with the greatest opportunities for self-determination. While the
effect of this spill and its response has shaken the Navajo Nation's
faith in the USEPA, the USEPA has responded by working closely with the
Navajo Nation Council and the affected communities. I thank them for
their efforts and look forward to a full restoration of our working
relationship as they begin to address the clean up and monitoring of
the river, and the health of those at risk for contamination. Frequent
communication and prompt compensation for those effected by the spill
has done much to alleviate the concerns of the community.
We look forward to working closely with the USEPA and the Federal
Government to address the needs of the Navajo communities and the
environment today, and in the long term. The problems that have defined
the initial response, clean up and compensation do not need to taint
the future response and cooperation between the Navajo Nation, the
USEPA, and the Federal Government. The Navajo Nation looks forward to
working closely with this committee and the Congress to ensure future
needs and communications are handled in a timely and proper manner.
______
Prepared Statement of Nancy Freeman, Executive Director, Ground Water
Awareness League
Dear Committee Members,
Thank you for your recent hearing on harmful impacts to indian
Country. I am submitting additional comments regarding issues that were
brought up in the hearing regarding oversight by Government Agencies.
Somehow the EPA and DOI are not taking responsibility for the
travesties created on the Native American lands and their water supply
in the rush to mine uranium that was sold only to the U.S. government.
There have been extensive harmful impacts on water and land due to in
the Navajo nation and other Native American lands due to mining.
I know for a fact that the regulations and precautions on the
Native American lands was not the same as in off-reservation lands. I
know this because I live near Twin Buttes mine in Sahuarita, Arizona
where yellow cake uranium was mined and produced for 20 years. I know
miners who worked there. They had safety equipment and precautions that
were not used on the Native American mines. EPA has had continual
oversight there though its closing.
I did write a report to Congress several years ago highlighting the
problem and hardly anything has changes. The Newmont Mining Company has
finally agreed to clean-up the Spokane Reservation site, but not much
as been accomplished during the first five-year plan:
http://mining-law-reform.info/Urgency.htm
In addition, I am submitting my recent comments for your
edification to DOI regarding their recent hearings on the royalties for
coal mining on BLM/Native American Reservation lands.
https://www.youtube.com/watch?v=0wy1LeBMHUk&feature=youtu.be
Comments on Coal Royalties
First issue: Increasing coal royalty rate to 18.75 percent to match
that of other federally-owned fossil fuels.
Of course, this issue is a logical policy that should be
implemented. My concern is will the Native Americans be treated as
other private landowners? Since I live in Arizona, I have researched
and found a lot of evidence using the situation with the Dine (Navajos)
that the Native Americans are not treated equally or fairly.
The Navajo Nation land is a National Disaster Area. When will the
betrayal of the Navajo Nation by the U.S. Government through the funnel
of the Department of Interior end? Currently, there are three coal
power plants polluting the air, land and water on the Navajo Nation.
One is on the northeast border. The other two send power as far as Los
Angeles, while 40 percent of the Navajos do not have electricity in
their homes.
The DOI has processed permits for coal mines and power plants
without a full disclosure of the health risks and without requiring
that the plants to use OSHA standards. Did the DOI agents explain to
the workers the pollutants they would be inhaling, did they explain to
the community the pollutants that would be in the air on their crops,
their water supplies and in their lungs? Did they explain to the
community members why they would not be hooked up to power, when it was
possible to send power to Los Angeles?
In addition coal power uses water. The U.S. Government can permit
unlimited water use for the coal plants, even without any disclosure to
the Navajo Nation, yet the U.S. has not formulated a reasonable, just
water settlement for the Navajo Nation. In 2003, the Government
rejected the carefully planned Water Settlement that the Navajo and
Hopi Governments had drawn up. The Arizona Senators then filed a
settlement that divided the interests of the Navajo and Hopi, just as
the U.S. Government has done with the reservation boundaries. At this
time, the Navajo do not have rights to the Little Colorado River that
runs across their Nation, yet the DOI allowed Peabody Energy to use
from the Navajo Aquifer.
How can the Navajo and 79 other tribes trust DOI to them
adequately? The mismanagement of payments for trust leases was well
illustrated in the Cobell v. Babbitt, Kempthorne, Norton, Salazar
lawsuit over trust payments for leases that took 21 years for the
Department of Interior to finalize. In fact, the proceedings in Cobell
v. et al exposed a tragic pattern of mismanagement, neglect,
malfeasance and attitude of not caring for over a century. The lies and
cover ups by the DOI officials put forth in a Federal trial concerning
a class of 500,000 plaintiffs who had been cheated were shocking. The
Government could not even produce the trust documents for the five
named plaintiffs in the case. The Government had agreed to produce
these documents by March of 1997. But with their records in complete
disarray, they failed to produce documents for any of the named
plaintiffs after four years of court. In the face of ``clear and
convincing evidence,'' Judge Lamberth held DOI Secretary Babbitt,
Treasury Secretary Robert Rubin, and Assistant DOI Secretary Gover in
civil contempt.
The Honorable Judge Lamberth described the situation:
The entire record in this case tells the dreary story of
Interior's degenerate tenure as Trustee--Delegate for the
Indian trust--a story shot through with bureaucratic blunders,
flubs, goofs and foul-ups, and peppered with scandals,
deception, dirty tricks and outright villainy--the end of which
is nowhere in sight. Despite the breadth and clarity of this
record, Interior continues to litigate and re-litigate, in
excruciating fashion, every minor, technical detail.
The response of the Government (with its 100 attorneys working
against the Native Americans) was to request the removal of
Judge Lamberth from the case. In 2003, ten years after the
filing of the case, which turned out to be good because other
judges were brought into the case and the ruled exactly as
Lamberth had.
In addition to the withholding of trust payments, several
situations of outright fraud by the Government ``overseers''
were brought out in the proceedings. In particular, for a
pipeline ``right-of-way'' across the San Juan Basin, Navajo
allotted land was valued at $25-30 per ``rod'' (at 16.6-foot
unit), whereas neighboring tribal land was valued at $140-$575
per rod, and land belonging to private landowners at $432-$455
per rod. Navajo allottees were cheated, in violation of the
Government's fiduciary obligations, plus federal law mandating
``just compensation'' for such land use.
Another example cited in the proceedings was on Shoshone land
in Idaho, which includes prime agricultural property, had been
valued at $65 to $75 per acre. Meanwhile, non-Native Americans
living adjacent to this property are receiving over $200 per
acre for the same use. The problem is that Government officials
appraise Native American land without looking at ``non-Indian
comparables.'' By only looking at records of leases on other
Native American leases, the undervaluation of leases for Native
American lands, as compared with non-Native American lands, is
self-perpetuating. Judge Lamberth lamented:
But regardless of the motivations of the originators of the
trust, one would expect, or at least hope, that the modern
Interior department and its modern administrators would manage
it in a way that reflects our modern understandings of how the
Government should treat people. Alas, our ``modem'' Interior
department has time and again demonstrated that it is a
dinosaur--the morally and culturally oblivious hand-me-down of
a disgracefully racist and imperialist Government that should
have been buried a century ago, the last pathetic outpost of
the indifference and Anglo-centrism we thought we had left
behind.
We know for a fact that the coal leases manipulated by DOI on
Navajo lands. In 1963 when BLM and DOI negotiated coal contracts on the
Navajo Nation land they gave the Navajos an unheard of low rate for
coal. I would also like to see the comparisons of coal royalties paid
to other tribes and non-tribal lands at that time.
Since DOI/BLM's underpayment continued, when Peter MacDonald became
the tribe's chairman in 1971, he went on a campaign to get Peabody to
pay the tribe a fair amount for royalties for its coal mining
operations. MacDonald pointed out that the tribe was only receiving 20
cents a ton royalty from the company, about the cost of a can of Coke
(in 1971). MacDonald and tribal attorneys would after several years get
a new agreement from Peabody that would sharply increase the tribe's
share to 12.5 percent of the value of the coal at the mine site.
To make matters worse Peabody used a slurry line, not the usual
railway to convey coal to Nevada. The Navajos lost 30,000 acre feet of
water from their aquifer with no consent or compensation. To make
matters worse, Interior Secretary Udall covered for Peabody by stating
the compensation for the water was in the royalty (20 cents per ton)!
Increase of royalty rate to match other fossil fuel rates is a
clear statement that you have been undercharging the coal prices on
Federal Land, cheating U.S. Taxpayers, but more egregiously cheating
Native Americans.
One would think that after the long drawn-out Cobell Trust
Settlements (1993-2014) in which the courts showed that the malfeasance
and downright criminal injustices to the Native Americans that the DOI
would mend their ways. However, I see no evidence that it is happening.
The legacy of mining on the Navajo Nation land is a truly egregious
story of criminal injustices by the U.S. Government through Department
of Interior but of course it is not the only agency, but it appears to
be the leader, setting an example for others.
It appears that the Navajos receive no power from two of the
dirtiest coal-fired power plants in the country. The Navajo Generating
Station (NGS) in Page, Arizona and the Four Corners Power Plant near
Shiprock, New Mexico--are among the country's top emitters of carbon
dioxide, releasing 17.8 million short tons and 12.9 million short tons
in 2013, respectively. Even though they have to bear this load of
pollution, it is estimated that 40 percent of the Navajos are without
any power to their homes.
I cannot find the exact users of the APS Four Corners Plant, but it
appears that the Navajos do not receive any power from its presence.
The owners of the Four Corners APS power plant:
Units 1, 2, and 3
Arizona Public Service Company (APS) 100 percent
Units 4 and 5
APS 63 percent
Public Service Company of New Mexico 13 percent
Salt River Project 10 percent
Tucson Electric Power 7 percent
El Paso Electric 7 percent
The Navajos definitely receive no power, only pollution from the
Navajo Generating Station.
Users of NGS power:
U.S. Bureau of Reclamation (Central Arizona Project water)
24.3 percent
Salt River Project (residential) 21.7 percent
Los Angeles Dept. of Water and Power 21.2 percent
Arizona Public Service Co. (residential) 14.0 percent
NV [Nevada] Energy 11.3 percent
Tucson Electric Power 7.5 percent
When EPA announced more stringent equipment to control toxic
pollutants the CAP officials of Arizona gave presentations showing that
the equipment would double the price of water to Arizona citizens-so
the pollution should be continued as is even though the citizens would
not want to live in the toxic plume of a coal power plant.
The DOI needs to assure that the coal companies have a consultation
with Native Americans before any removal of any the Native American
ancestral bones and artifacts, so that the Native Americans can retain
their ancestral property. In 1967 Peabody Energy (NGS coal plant)
needed to clear land it was leasing on the Navajo reservation to mine
the coal, but ancient Indian dwellings and graves were in the way. So,
as required by law, it did hire archeologists who dug up roughly 1.3
million Navajo, Hopi and ancient Anasazi artifacts--including the
remains of 200 Native Americans--which have been warehoused at two
universities ever since. The Navajos were not involved in the actions
or decisions. They are still attempting to get the bodies of their
ancestors returned, so that they can be give them a proper burial.
Another recent betrayal of the Navajos was that when Obama released
the carbon reduction plan he left out power plants on the Native
American lands. This omission leaves the Native Americans to fend for
themselves, without having in regulatory power at all over the power
plants, that's not part of their ``sovereignty.'' The Navajo Nation
already has set standards for sulfur dioxide, particulate matter and
nitrogen oxide emissions from power plants on the reservation. However,
what will they mean to the companies who have been with no oversight
for years.
However, EPA does keep records of the Toxics that are released to
the environment: Not surprisingly, the numbers are high. The releases
are given in pounds. There are no numbers for uranium and its
daughters, such as radon. As is too well known, uranium is prevalent on
Navajo land with over 500 abandoned, un-reclaimed mines there.
Data Source: EPA TRI Database:
http://iaspub.epa.gov/triexplorer/
release_fac?sort=_VIEW_&trilib=TRIQ1&sort_fmt=1&state=TS&county=Navajo
percent20Nation, percent20Arizona, percent20New percent20Mexico
percent20and
percent20Utah&chemical=All+chemicals&industry=ALL&year=
2013&p_view=TIFA&tab_rpt=1&fld=RELLBY&fld=TSFDSP
Second Issue: Closing loopholes that let coal companies avoid
paying some royalties by selling coal through their subsidiaries.
This action needs to be taken.
Third Issue: Updating agency policies to make sure that potential
profits from coal exports are considered in setting the market value.
This action needs to be taken with the assurance that the Native
American tribes will be compensated at the same rate as other coal
leases.
Fourth Issue: Updating policies related to bonding to prevent
taxpayers from being stuck with hundreds of millions of dollars in
mining cleanup fees.
This is of utmost importance. In a hearing yesterday of the Senate
Committee on Indian Affairs this issue was brought up. Many of the boom
and bust mining companies have disappeared. However, there is also a
challenge in getting existing companies to clean up their mines--hiding
under the excuse of Dawn mining, which declared bankruptcy, was a
subsidiary. I just received an update from a environmental friend on
the Spokane Reservation that has been fighting for years for a clean up
of historic uranium mines there. Twa-le wrote,
That link is to the case summary, I just re-read it and saw
that DOI is actually covering the cleanup costs for the role
they played. The BIA has almost been nonexistent in this entire
process. They are just assuming \1/3\ of the responsibility and
during the long drawn out legal process, Newmont was also
trying to hold the Tribe and individual landowners responsible
as well. So, it was a long drawn out case, they had the
resources to fight and the Spokane Tribe spent many years and
lots of resources alongside EPA to get the clean up moving. The
latest update: http://www.wise-uranium.org/udmif.html
Source: Twa-le Abrahamson, Spokane Tribe,Spokane, Washington,
Natural Resources Dept. Manager, Air Quality Dept.
I honestly don't think bonding is enough for a bankrupt company.
There has to be real money banked up front. Also, I recommend that a
company that is not in environmental compliance, reclamation compliance
of financial liquidity should not be permitted. The Spokane Reservation
mine operated by subsidiary Dawn is a good example. Newmont should not
be given any permit for mining until it has done due diligence in its
reclamation of the Spokane Reservation. They are five years into their
reclamation plan and nothing is happening on the ground.
Thank you for your attention to these serious matters of the
treatment of the Native Americans. I am filing some FOIA's to get some
data on the past royalty payments and comparables with other public
lands--and private lands. Note the example above of the Shoshone Tribe
where DOI was not using public comparables, but the lower rates
historically given to Native Americans.
______
Prepared Statement of Hon. Duane ``Chili'' Yazzie, Chapter President,
Navajo Nation
I greet you as relatives, as five fingered human beings, as
brothers and sisters of the same Earth Mother and the same Father
Creator. Through our ways of reverence we have our special names for
the Great Creator including God the Almighty; we know Him as Diyin. Our
creation stories say He formed mounds of clay and breathed life into
them. Thus we have an intrinsic and undeniably relationship with the
Earth, we are of the Earth and we return to the Earth. The Earth
belongs to all of us and we belong to the Earth, just as a child and
mother belong to each other.
The teachings of our peoples concur in that God is everywhere, God
the Creator inhabits the vast expanse of His creation. His essence
permeates through the Earth, thus the Earth has spirit, it has life, it
breathes and feels pain as we do. It is no misnomer that we refer to
her as our Earth Mother. She has unfailingly provided for all our needs
but we are failing her as the stewards we supposed to be.
As parents we have an unconditional love for our children and as
grandparents we have the greatest hopes for the future of our
grandchildren; that is our common bond. We may have traveled different
paths of history but we have a common future, as humankind we share a
common destiny.
As Indigenous Peoples we retain and maintain the Original Intent,
by choice we choose to live in the world our Creator made, a world
where the physical and spiritual realms remain intact as one reality.
The Creator intended for there to be a balance in all of nature, but
today the equilibrium of the world is precariously out of balance. The
bursting of toxic waste into our life giving rivers is a message we
cannot ignore, the unmitigated exploitation of the world must end; the
damage to the Earth caused by this exploitation must be repaired.
The changing conditions of our Earth cannot be denied; the
pollution, drought, wild fires, melting glaciers, rising oceans and the
increasing scarcity of water the world over. It is urgently imperative
that we protect our waters. These adverse changes impact us all, it is
our responsibility to come together with parity to talk about these
great concerns. What should our priorities be? Jobs and economics or
our need to protect the Earth or can a balance be achieved.
Our Indigenous choice is that we want our Earth to survive, as her
life is our life. It is clear to us that the exponentially increasing
exploitation of the Earth is ebbing her life and thus, accelerating the
closure of our collective life. As the original Landlords of these
lands we stand in defense of our Earth; we choose to defend her life
and the life of all life. We implore of you with a focus on the future
of our coming generations, let us reason together. Let us stand
together for the life of our Earth Mother and the lives of all her
children.
______
Response to Written Questions Submitted by Hon. James Lankford to
Hon. Gina McCarthy
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