[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.
---------------------------------------------------------------------------
    \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/
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \3\ http://www2.epa.gov/region8/upper-animas-mining-district
    \4\ http://www2.epa.gov/region8/upper-animas-mining-district.
---------------------------------------------------------------------------
    The Mine's first Superfund site assessment was conducted in the 
1990s, and the assessment concluded, ``that water quality standards 
were not achieved'' in the District. \5\ The assessment also identified 
``severe impacts [of the District] to aquatic life in the Upper Animas 
and its tributaries.'' \6\ Despite the serious harm being caused by the 
District, USEPA postponed listing the District on the NPL in order to 
allow a ``community-based collaborative effort'' to clean up and 
mitigate harm from the District ``as long as progress was being made to 
improve the water quality of the Animas River.'' \7\
---------------------------------------------------------------------------
    \5\ http://www2.epa.gov/sites/production/files/2015-08/documents/
goldkingminewatershedfactsheetbackground.pdfat2.
    \6\ http://www2.epa.gov/sites/production/files/2015-08/documents/
goldkingminewatershedfactsheetbackground.pdfat2.
    \7\ Id.
---------------------------------------------------------------------------
    Yet in 2005, the ``water quality ha[d] declined significantly'' in 
the area, and so in 2008, USEPA performed another NPL assessment, this 
time on the Upper Cement Creek alone. \8\ The study again confirmed, 
``that the area would qualify for inclusion'' on the NPL. \9\ Despite 
the additional confirmation that the Mine area should be listed on the 
NPL, ``EPA postponed efforts to include the area on the National 
Priorities List,'' again ``after receiving additional community 
input.'' \10\ USEPA's repeated denial of the facts with respect to the 
level of harm posed by the Gold King Mine and its surrounding mines has 
placed downstream jurisdictions such as the Nation at undue risk. This 
further contributes to a lack of trust in USEPA's ability to protect 
the health and well-being of Navajo people.
---------------------------------------------------------------------------
    \8\ Id.
    \9\ Id.
    \10\ Id.
---------------------------------------------------------------------------
    The threat of a spill from the District remains under the existing 
management scheme. The chemicals found in the District pose significant 
human health risk as they contain known carcinogens and elements, like 
lead and arsenic, that can affect major organ systems such as 
cardiovascular, respiratory, gastrointestinal and reproductive systems. 
The risks to the Navajo people are very real. Neither my people nor the 
other communities living near the rivers can tolerate a recurrence of 
the unprecedented damage caused by the Gold King Mine Spill.
    Based on our extrapolation of known data, over 20 million gallons 
of aggregate contaminated flow has spilled from the Mine since August 
5. If the USEPA does not address these sites through designation as a 
Superfund site, contaminants will continue to flow freely into the 
Nation's waters, and the concentration of contaminants in our waters 
will increase, extending the duration of exposure for our people, which 
is already significant now, even further into the future. Metals poison 
people slowly, and sediments eventually make their way downstream. We 
are thus gravely concerned that the metals coming from Gold King Mine 
and the District are making their way down to us, and will settle in 
our slow waters. We are also concerned that efforts to flush 
contaminants out of the Farmington area flushed contaminated sediments 
into our territory, and that those contaminants will remain here for a 
long time. We do not want our people to be poisoned, so we urge you to 
do what you can to help us secure NPL listing for the District.
IV. Short and Long-Term Impacts
    The impacts of this spill, as well as the ongoing contamination 
from mines in the area, are devastating and myriad. The reliance of our 
people on the San Juan River and the significance of the River to our 
people cannot be overstated. The Navajo Nation as a whole is a largely 
agricultural society, and our people have traditionally farmed and 
ranched since pre-contact. The San Juan River Basin is a bastion for 
ancient Navajo seed strains that our people have carefully refined over 
centuries to thrive in our arid region. Farming and ranching are the 
backbone of our culture and economy, and are both heavily dependent on 
the San Juan River. Indeed, in our arid region with little water 
distribution infrastructure in place, our farmers rely heavily on the 
San Juan River and ditch irrigation practices to keep their fields 
hydrated and their crops growing. I want to lay out for the Committee 
some of the impacts of the contamination on the Navajo Nation. But I 
want to stress that, because of the historic and long-term nature of 
the contamination caused by the spill and the lack of full 
transparency, all of the economic, health, cultural, and other impacts 
to the Navajo people are not yet known.
    First, our farmers and ranchers and our traditional people felt the 
most immediate impact from the spill. You can imagine the significant 
economic and emotional toll on our farming families, who mostly live on 
their farmlands and consume their crops as a matter of subsistence. 
These families have lost a significant portion of a full growing 
season's worth of work. Now these families have to look at their dead 
crops each day, and are constantly reminded of the loss.
    As I visited farmers and ranchers, I saw a lot of farms where corn 
had not fully matured due to lack of water. As a result, the corn crops 
had only the stalk but no corn. The corn pollen that is so critical to 
everyday Navajo spiritual life did not develop properly for many of 
these crops. A lot of Navajo melons only grew to a fifth of their size. 
One family was forced to abandon all but a single acre of their 32-acre 
field, opting to save plants with cultural significance.
    Second, the spill has already severely impacted our economy and may 
continue to do so for years to come. The Navajo Nation already faces a 
daunting unemployment rate of 42 percent. Yet along the San Juan River, 
many of our people are able to make a life for themselves and support 
their families through farming and ranching. Many of our farmers create 
additional economic value for themselves by carefully growing 
profitable organic crops, or raising grass-fed and organic beef or 
mutton product. Now their livelihoods have been significantly disrupted 
by the spill. Growing cycles and field rotations have been disrupted, 
and farmers who are used to producing their own farm goods will now 
need to buy fruits and vegetables for themselves, and hay and alfalfa 
for their livestock, to replace what was lost. Our farmers will also 
lose income from the expected sales that did not or will not occur. 
Even farmers who have been able to salvage their farm goods now face a 
stigma developing with respect to fruits and vegetables grown along the 
San Juan River. This triggers a cycle of economic losses for the 
community.
    Third, the long-term health effects of the spill are ominous and 
not fully understood. Heavy metals like lead, arsenic and others that 
were discharged during the spill are known to be dangerous to humans, 
animals, and plants. These metals persist in the environment and are 
particularly harmful to fetuses and children. To provide a sense of the 
magnitude of exposure to these harmful metals just from the spill, one 
report of EPA data indicated that lead was found near the Cement Creek/
Animas River confluence ``at more than 200 times higher than the acute 
exposure limit for aquatic life, and 3,580 times higher than federal 
standards for human drinking water.'' And arsenic was found ``more than 
24 times the exposure limit for fish and 823 times the level for human 
ingestion.'' \11\ Human consumption of farm products and livestock 
raised on contaminated water is therefore of grave concern. We are 
especially concerned about sheep because sheep liver and kidney are 
cultural delicacies, and are organs that are most likely to concentrate 
contaminants. In addition, long-term effects on wildlife that live in 
or rely on the River for water must be understood because we hunt and 
fish these animals to put food on our tables, and as part of our 
traditional cultural practices. Although USEPA has stated that surface 
water returned to its previous condition, many of the contaminants have 
merely settled to the bed of the River, and will be remobilized later 
during storm events, for example.
---------------------------------------------------------------------------
    \11\ http://m.startribune.com/nation/321518301.html
---------------------------------------------------------------------------
    Fourth are the cultural and spiritual losses that we have 
sustained. Indeed, the Navajo Nation's impacts are felt most pointedly 
in the disruption of our cultural principle of hozho, which encompasses 
beauty, order, and harmony, and expresses the idea of striving to 
maintain balance in the Navajo universe. We connect to our land, our 
water, and each other through ceremonies and gatherings. We grow four 
types of corn, each used for a specific purpose in our ceremonies, and 
those seeds are protected by the strong culture of farming that has 
persisted in the San Juan River Basin. Navajo 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
     \27\http://www2.epa.gov/region8/upper-animas-mining-district
     \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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