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



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

======================================================================
 
         LEADVILLE MINE DRAINAGE TUNNEL REMEDIATION ACT OF 2008

                                _______
                                

 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
----------------------------------------------------------------------------------------------------------------
                                  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.

                                  
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