House Report 110-715 - LEADVILLE MINE DRAINAGE TUNNEL REMEDIATION ACT OF 2008

[House Report 110-715]
[From the U.S. Government Publishing Office]

110th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 110-715

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LEADVILLE MINE DRAINAGE TUNNEL REMEDIATION ACT OF 2008

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June 17, 2008.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed

_______

Mr. Rahall, from the Committee on Natural Resources, submitted the
following

R E P O R T

[To accompany H.R. 5511]

[Including cost estimate of the Congressional Budget Office]

The Committee on Natural Resources, to whom was referred the
bill (H.R. 5511) to direct the Secretary of the Interior,
acting through the Bureau of Reclamation, to remedy problems
caused by a collapsed drainage tunnel in Leadville, Colorado,
and for other purposes, having considered the same, report
favorably thereon without amendment and recommend that the bill
do pass.

Purpose of the Bill

The purpose of H.R. 5511 is to direct the Secretary of the
Interior, acting through the Bureau of Reclamation, to remedy
problems caused by a collapsed drainage tunnel in Leadville,
Colorado, and for other purposes.

Background and Need for Legislation

The Leadville Mine Drainage Tunnel (LMDT) is located in
west central Colorado, near the town of Leadville. The former
U.S. Bureau of Mines constructed the tunnel to provide drainage
for portions of the extensive, interconnected mine workings in
the Leadville Mining District during the periods 1943-1945 and
1950-1952. When construction finally ceased, the LMDT extended
for 11,299 feet from the portal. In 1959, the Bureau of
Reclamation (BOR) assumed ownership of the LMDT and intended to
use mine water to augment the Fryingpan-Arkansas Project, the
BOR project that draws water primarily from the Arkansas River
for delivery in Eastern Colorado. Notwithstanding its intent,
the BOR has never been able to use the LMDT for the Fryingpan-
Arkansas Project.
Since 1959, several tunnel collapses have trapped water
within the tunnel. These blockages have resulted in decreased
LMDT effluent flow rates, differences in water elevations at
various points along the tunnel alignment, and rising water
levels in the retained `mine pool'. In 1989, the Sierra Club
and the Colorado Environmental Coalition challenged the BOR in
court, alleging Clean Water Act violations as a result of the
contaminated discharges from the LMDT. To settle the lawsuit,
BOR agreed to construct a Waste Water Treatment Plant (WWTP)
near the LMDT portal. Title VII of P.L. 102-575 authorized BOR
to construct and operate the WWTP.
P.L. 102-575 specified that the BOR's WWTP ``shall be
constructed to treat the quantity and quality of effluent
historically discharged'' from the LMDT. This limitation on
effluent that is ``historically discharged'' is significant
because in 1983, the Environmental Protection Agency (EPA)
designated as a Superfund site a sizeable portion of the
Leadville area, known as the California Gulch National Priority
List Site. The language regarding the WWTP in the original
authorization was inserted to acknowledge that the LMDT was not
a source of contamination at the Superfund site, and to protect
the BOR from any unjustified Superfund responsibility.
The 18-square-mile California Gulch Site is divided into 12
Operable Units (OUs). Under the Superfund statute, EPA must
identify all sources of contamination, the potentially
responsible parties (PRPs) for the contamination, and develop
and implement remedies for each OU in conjunction with the
PRPs. EPA may not use Superfund money for any remedial action
that involves a federally-owned facility. The EPA and the BOR
have established that the tunnel is hydraulically connected to
OU6. In 2003, EPA issued a Record of Decision (ROD) for OU6
supporting infrastructure improvements by the BOR to increase
the plant's water treatment capacity.
Despite EPA's clear mandate under the Superfund law that it
cannot use Superfund money to pay for remedial actions at a
facility owned by another federal agency, the BOR cites the
``historically discharged'' language in Title VII of P.L. 102-
575 as a limitation on the BOR's authority to expand the water
treatment capacity. The BOR also opposes payments because the
LMDT is not an actual source of contamination on the Superfund
site. However, continuing structural deterioration in the LMDT
has caused increasing amounts of water to back up in the
tunnel. A major collapse of a segment of the LMDT was detected
in 1995. All of the impounded water is assumed to be
contaminated with metals. This impounded water exacerbates
EPA's Superfund problem and also poses the threat of a sudden
catastrophic release into the Arkansas River. There are
estimates that between 0.5 to 1.0 billion gallons of water are
currently impounded behind the various LMDT collapses. In
addition, newly discovered surface seeps in the area, at
elevations above the portal, indicate a rise in water level
behind the blockages.
H.R. 5511 amends the Reclamation Projects Authorization and
Adjustment Act of 1992 (P.L. 102-575) by repealing a provision
that restricts the use of a waste water treatment plant owned
and operated by the BOR to only treating `historically
discharged' effluent from the LMDT. H.R. 5511 also directs the
BOR to participate in the OU6 remedy for the California Gulch
Superfund site as defined by the EPA's 2003 ROD for that unit
by: (1) Treating water behind any blockage or bulkhead in the
tunnel; and (2) managing and maintaining the mine pool behind
such blockage or bulkhead at a level that prevents surface
runoff and releases and minimizes the potential for Tunnel
failure due to excessive water pressure.
The long-term solution to implement EPA's ROD and clean-up
plan for OU6 remains unresolved because BOR maintains it is not
responsible for contamination not associated with historical
discharge from the LMDT. H.R. 5511 would address the situation
by ensuring that ample authority exists for BOR to participate
in all clean-up efforts involving the LMDT. The Administration
opposes the bill on the premise that Congress should wait until
the BOR conducts a risk assessment and work out their own
agreement with EPA. The Committee is aware of no other
opposition to H.R. 5511.

Committee Action

H.R. 5511 was introduced on February 28, 2008, by Rep. Doug
Lamborn (R-CO). The bill was referred to the Committee on
Natural Resources, and within the Committee to the Subcommittee
on Water and Power. On May 8, 2008, the Subcommittee on Water
and Power held a hearing on the bill.
On May 22, 2008, the Subcommittee on Water and Power met to
mark up the bill. The bill was forwarded to the Full Committee
by unanimous consent. On June 11, 2008, the Full Natural
Resources Committee met to consider the bill. H.R. 5511 was
ordered favorably reported to the House of Representatives by
unanimous consent.

Section-by-Section Analysis

Section 1. Leadville Mine Drainage Tunnel Remediation

Section 1(a) provides that the legislation may be cited as
the ``Leadville Mine Drainage Tunnel Remediation Act of 2008.''
Section 1(b) strikes section 705 of P.L. 102-575, the
provision that limits the use of the WWTP to effluent
``historically discharged'' from the LMDT.
Section 1(b) also amends section 708 of P.L. 102-575 to
direct the Secretary to participate in the OU6 remedy as
defined by the EPA's 2003 ROD by (1) treating water behind any
blockage or bulkhead in the LMDT; and (2) managing and
maintaining the mine pool behind such blockage or bulkhead at a
level that prevents surface runoff and releases and minimizes
the potential for LMDT failure due to excessive water pressure.
Section 1(b) also amends section 708 to ensure that the BOR
shall not have authority at any other facility listed on the
National Priorities List under Superfund.
Section 1(b) further adds a new section 709 to P.L. 102-
575, to direct the Secretary to take any steps necessary to
repair and maintain the structural integrity of the LMDT to
prevent tunnel failure or an uncontrolled release of water from
any portion of the tunnel.

Committee Oversight Findings and Recommendations

Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.

Constitutional Authority Statement

Article I, section 8 of the Constitution of the United
States grants Congress the authority to enact this bill.

Compliance With House Rule XIII

1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
3. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to direct the Secretary of the
Interior, acting through the Bureau of Reclamation, to remedy
problems caused by a collapsed drainage tunnel in Leadville,
Colorado.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:

H.R. 5511--Leadville Mine Drainage Tunnel Remediation Act of 2008

Summary: H.R. 5511 would require the Secretary of the
Interior to treat and manage water in a mine pool in the
Leadville Mine Drainage Tunnel (LMDT) in Colorado. The
treatment would be part of a plan to clean up the California
Gulch superfund site in Colorado.
Based on information from the Bureau of Reclamation and
assuming appropriation of the necessary amounts, CBO estimates
that implementing H.R. 5511 would cost $90 million over the
2009-2013 period. Enacting the legislation would not affect
direct spending or revenues.
H.R. 5511 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 5511 is shown in the following table.
The costs of this legislation fall within budget function 300
(natural resources and environment).

----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-------------------------------------------------------
2009 2010 2011 2012 2013 2009-2013
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CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level........................... 10 20 30 30 0 90
Estimated Outlays....................................... 6 15 24 30 15 90
----------------------------------------------------------------------------------------------------------------

Basis of estimate: For this estimate, CBO assumes that the
legislation will be enacted near the start of fiscal year 2009
and that the necessary amounts will be appropriated for each
year.
H.R. 5511 would require the Secretary of the Interior to
treat and manage water in a mine pool in the LMDT in Colorado.
The Bureau of Reclamation currently has a water treatment plant
at the site, but the plant would have to be expanded to handle
the anticipated quantity of water from the pool.
Based on information from the Bureau of Reclamation and
assuming appropriation of the necessary amounts, CBO estimates
that improvements to the water treatment plant and other costs
of treating the pool water would total $90 million over the
2009-2013 period. After 2013, the bureau would incur additional
costs of $2 million to $5 million per year for operating and
maintaining the expanded plant.
The bill also would require the Secretary to repair and
maintain the structural integrity of the LMDT, as necessary, to
prevent tunnel failure or an uncontrolled release of water.
Based on information from the bureau, CBO does not anticipate
that any work would be needed to repair or maintain the tunnel
during the next five years.
Intergovernmental and private-sector impact: H.R. 5511
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments.
Estimate prepared by: Federal Costs: Tyler Kruzich; Impact
on State, Local, and Tribal Governments: Melissa Merrell;
Impact on the Private Sector: Amy Petz.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.

Compliance With Public Law 104-4

This bill contains no unfunded mandates.

Earmark Statement

H.R. 5511 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9(d), 9(e) or 9(f) of rule XXI.

Preemption of State, Local or Tribal Law

This bill is not intended to preempt any State, local or
tribal law.

Changes in Existing Law Made by the Bill, as Reported

In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):

RECLAMATION PROJECTS AUTHORIZATION AND ADJUSTMENT ACT OF 1992

* * * * * * *

TITLE VII--LEADVILLE MINE DRAINAGE TUNNEL, COLORADO

* * * * * * *

[SEC. 705. LIMITATION.

[The treatment plant authorized by this title shall be
designed and constructed to treat the quantity and quality of
effluent historically discharged from the Leadville Mine
Drainage Tunnel.]

* * * * * * *

SEC. 708. WATER QUALITY RESTORATION.

(a)(1) The Secretary is authorized, in consultation with the
State of Colorado, the Administrator of the Environmental
Protection Agency, and other Federal entities, to conduct
investigations of water pollution sources and impacts
attributed to mining-related and other development in the Upper
Arkansas River basin, to develop corrective action plans, and
to implement corrective action demonstration projects. Neither
the Secretary nor any person participating in a corrective
action demonstration project shall be liable under section 107
of the Comprehensive Environmental Response, Compensation, and
Liability Act for costs or damages as a result of actions taken
or omitted in the course of implementing an approved work plan
developed under this section; Provided, That this subsection
shall not preclude liability for costs or damages which result
from negligence on the part of such persons. [The Secretary
shall have] Except as provided by paragraph (2), the Secretary
shall have no authority under this section at facilities which
have been listed or proposed for listing on the National
Priorities List, or are subject to or covered by the Resource
Conservation and Recovery Act. For the purpose of this section,
the term ``Upper Arkansas River basin'' means the Arkansas
River hydrologic basin in Colorado extending from Pueblo Dam
upstream to its headwaters.
(2) The Secretary shall participate in the
implementation of the operable unit 6 remedy for the
California Gulch Superfund Site, as such remedy is
defined in the Environmental Protection Agency's 2003
Record of Decision for such operable unit, by--
(A) treating water behind any blockage or
bulkhead in the Leadville Mine Drainage Tunnel,
including surface water diverted into the
Tunnel workings as part of the remedy; and
(B) managing and maintaining the mine pool
behind such blockage or bulkhead at a level
that precludes surface runoff and releases and
minimizes the potential for tunnel failure due
to excessive water pressure in the tunnel.

* * * * * * *

(f) There is authorized to be appropriated such sums as may
be required to fulfill the provisions of sections 707 [and
708], 708, and 709 of this title.

SEC. 709. TUNNEL MAINTENANCE.

The Secretary shall take such steps to repair or maintain the
structural integrity of the Leadville Mine Drainage Tunnel
(LMDT) as may be necessary in order to prevent tunnel failure
and to preclude uncontrolled release of water from any portion
of the tunnel.

* * * * * * *

House of Representatives, Committee on
Transportation and Infrastructure,
Washington, DC, June 12, 2008.
Hon. Nick Rahall,
Chairman, Committee on Natural Resources, House of Representatives,
Washington, DC.
Dear Chairman Rahall: I write to you regarding H.R. 5511, a
bill to direct the Secretary of the Interior to remedy problems
caused by a collapsed drainage tunnel in Leadville, Colorado.
H.R. 5511 contains provisions that fall within the
jurisdiction of the Committee on Transportation and
Infrastructure. I recognize and appreciate your desire to bring
this legislation before the House in an expeditious manner and,
accordingly, I will not seek a sequential referral of the bill.
However, I agree to waive consideration of this bill with the
mutual understanding that my decision to forego a sequential
referral of the bill does not waive, reduce, or otherwise
affect the jurisdiction of the Committee on Transportation and
Infrastructure over H.R. 5511.
Further, the Committee on Transportation and Infrastructure
reserves the right to seek the appointment of conferees during
any House-Senate conference convened on this legislation on
provisions of the bill that are within the Committee's
jurisdiction. I ask for your commitment to support any request
by the Committee on Transportation and Infrastructure for the
appointment of conferees on H.R. 5511 or similar legislation.
Please place a copy of this letter and your response
acknowledging the Committee on Transportation and
Infrastructure's jurisdictional interest in the Committee
Report on H.R. 5511 and in the Congressional Record during
consideration of the measure on the House Floor.
I look forward to working with you as we prepare to pass
this important legislation.
Sincerely,
James L. Oberstar,
Chairman.
------

House of Representatives,
Committee on Natural Resources,
Washington, DC, June 16, 2008.
Hon. James Oberstar,
Chairman, Committee on Transportation and Infrastructure, Washington,
DC.
Dear Mr. Chairman: Thank you for your willingness to
expedite floor consideration of H.R. 5511, a bill to direct the
Secretary of the Interior to remedy problems caused by a
collapsed drainage tunnel in Leadville, Colorado.
I appreciate your willingness to waive rights to further
consideration of H.R. 5511, notwithstanding the jurisdictional
interest of the Committee on Transportation and Infrastructure.
Of course, this waiver does not prejudice any further
jurisdictional claims by your Committee over this legislation
or similar language. Furthermore, I agree to support your
request for appointment of conferees from the Committee on
Transportation and Infrastructure if a conference is held on
this matter.
This exchange of letters will be placed in the committee
report and inserted in the Congressional Record as part of the
consideration of the bill on the House floor. Thank you for the
cooperative spirit in which you have worked regarding this
matter and others between our respective committees.
With warm regards, I am
Sincerely,
Nick J. Rahall, II,
Chairman.