[House Report 112-512]
[From the U.S. Government Publishing Office]
112th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 112-512
======================================================================
THREE KIDS MINE REMEDIATION AND RECLAMATION ACT
_______
June 1, 2012.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Hastings of Washington, from the Committee on Natural Resources,
submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 2512]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 2512) to provide for the conveyance of certain
Federal land in Clark County, Nevada, for the environmental
remediation and reclamation of the Three Kids Mine Project
Site, and for other purposes, having considered the same,
report favorably thereon with an amendment and recommend that
the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Three Kids Mine Remediation and
Reclamation Act''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Hazardous substance; pollutant or contaminant; release;
remedy; response.--The terms ``hazardous substance'',
``pollutant or contaminant'', ``release'', ``remedy'', and
``response'' have the meanings respectively set forth for those
terms in section 101 of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.
9601).
(2) Henderson redevelopment agency.--The term ``Henderson
Redevelopment Agency'' means the public body, corporate and
politic, known as the redevelopment agency of the City of
Henderson, Nevada, established and authorized to transact
business and exercise its powers in accordance with the Nevada
Community Redevelopment Law (Nev. Rev. Stat. 279.382 to
279.685, inclusive).
(3) Secretary.--The term ``Secretary'' means the Secretary of
the Interior.
(4) State.--The term ``State'' means the State of Nevada.
(5) Three kids mine federal land.--The term ``Three Kids Mine
Federal Land'' means the parcel or parcels of Federal land
consisting of approximately 948 acres in sections 26, 34, 35,
and 36, Township 21 South, Range 63 East, Mount Diablo
Meridian, Nevada, as depicted on the map entitled ``Three Kids
Mine Project Area'' and dated February 6, 2012.
(6) Three kids mine project site.--The term ``Three Kids Mine
Project Site'' means the Three Kids Mine Federal Land and the
adjacent approximately 314 acres of non-Federal land, together
comprising approximately 1,262 acres, as depicted on the map
entitled ``Three Kids Mine Project Area'' and dated February 6,
2012.
SEC. 3. LAND CONVEYANCE.
(a) In General.--Notwithstanding sections 202 and 203 of the Federal
Land Policy and Management Act of 1976 (43 U.S.C. 1712, 1713) and any
other provision of law, as soon as practicable after fulfillment of the
conditions in subsection (b), and subject to valid existing rights, the
Secretary shall convey to the Henderson Redevelopment Agency all right,
title, and interest of the United States in the Three Kids Mine Federal
Land.
(b) Conditions.--
(1) Determination of fair market value.--The Secretary shall
administratively adjust the fair market value of the Three Kids
Mine Federal Land as determined pursuant to paragraph (2) by
deducting from the fair market value of the Three Kids Mine
Federal Land the reasonable approximate assessment, remediation
and reclamation costs for the Three Kids Mine Project Area as
determined pursuant to paragraph (3). The Secretary shall begin
the appraisal and cost determination under paragraphs (2) and
(3), respectively, not later than 30 days after the date of the
enactment of this Act.
(2) Appraisal.--The Secretary shall determine the fair market
value of the Three Kids Mine Federal Land based on an appraisal
without regard to any existing contamination associated with
historical mining or other uses on the property and in
accordance with nationally recognized appraisal standards
including the Uniform Appraisal Standards for Federal Land
Acquisitions and the Uniform Standards of Professional
Appraisal Practice. The Henderson Redevelopment Agency shall
reimburse the Secretary for costs incurred in performing the
appraisal.
(3) Remediation and reclamation costs.--The Secretary shall
prepare a reasonable approximate estimation of the costs to
assess, remediate, and reclaim the Three Kids Mine Project
Site. This estimation shall be based upon the results of a
comprehensive Phase II environmental site assessment of the
Three Kids Mine Project Site prepared by the Henderson
Redevelopment Agency or its designee that has been approved by
the State, and shall be prepared in accordance with the current
version of ASTM International Standard E-2137-06 entitled
``Standard Guide for Estimating Monetary Costs and Liabilities
for Environmental Matters''. The Phase II environmental site
assessment shall, without limiting any additional requirements
that may be required by the State, be conducted in accordance
with the procedures of the current versions of ASTM
International Standard E-1527-05 entitled ``Standard Practice
for Environmental Site Assessments: Phase I Environmental Site
Assessment Process'' and ASTM International Standard E-1903-11
entitled ``Standard Practice for Environmental Site
Assessments: Phase II Environmental Site Assessment Process''.
The Secretary shall review and consider cost information
proffered by the Henderson Redevelopment Agency and the State.
In the event of a disagreement among the Secretary, Henderson
Redevelopment Agency, and the State over the reasonable
approximate estimate of costs, the parties shall jointly select
one or more experts to advise the Secretary in making the final
determination of such costs.
(4) Consideration.--The Henderson Redevelopment Agency shall
pay the fair market value, if any, as determined under this
subsection.
(5) Mine remediation and reclamation agreement executed.--The
Secretary receives from the State notification, in writing,
that the Mine Remediation and Reclamation Agreement has been
executed. The Mine Remediation and Reclamation Agreement shall
be an enforceable consent order or agreement administered by
the State that--
(A) obligates a party to perform, after the
conveyance of the Three Kids Mine Federal Land under
this Act, the remediation and reclamation work at the
Three Kids Mine Project Site necessary to complete a
permanent and appropriately protective remedy to
existing environmental contamination and hazardous
conditions; and
(B) contains provisions determined to be necessary by
the State, including financial assurance provisions to
ensure the completion of such remedy.
(6) Notification.--The Secretary receives from the Henderson
Redevelopment Agency notification, in writing, that the
Henderson Redevelopment Agency is prepared to accept conveyance
of the Three Kids Mine Federal Land under this Act. Such
notification must occur not later than 90 days after execution
of the Mine Remediation and Reclamation Agreement referred to
in paragraph (5).
SEC. 4. WITHDRAWAL.
(a) In General.--Subject to valid existing rights, for the 10-year
period following the date of the enactment of this Act or on the date
of the conveyance required by this Act, whichever is earlier, the Three
Kids Mine Federal Land is withdrawn from all forms of--
(1) entry, appropriation, operation, or disposal under the
public land laws;
(2) location, entry, and patent under the mining laws; and
(3) disposition under the mineral leasing, mineral materials,
and the geothermal leasing laws.
(b) Existing Reclamation Withdrawals.--Subject to valid existing
rights, any withdrawal of public land for reclamation project purposes
that includes all or any portion of the Three Kids Mine Federal Land
for which the Bureau of Reclamation has determined that it has no
further need under applicable law is hereby relinquished and revoked
solely to the extent necessary to exclude from the withdrawal the land
no longer needed and to allow for the immediate conveyance of the Three
Kids Mine Federal Land as required under this Act.
(c) Existing Reclamation Project and Permitted Facilities.--Without
limiting the general applicability of section 3(a), nothing in this Act
shall diminish, hinder, or interfere with the exclusive and perpetual
use by existing rights holders for the operation, maintenance, and
improvement of water conveyance infrastructure and facilities,
including all necessary ingress and egress, situated on the Three Kids
Mine Federal Land that were constructed or permitted by the Bureau of
Reclamation prior to the effective date of this Act.
SEC. 5. ACEC BOUNDARY ADJUSTMENT.
Notwithstanding section 203 of the Federal Land Policy and Management
Act of 1976 (43 U.S.C. 1717), the boundary of the River Mountains Area
of Critical Environmental Concern (NVN 76884) is hereby adjusted
consistent with the map entitled ``Three Kids Mine Project Area'' and
dated February 6, 2012.
SEC. 6. RELEASE OF THE UNITED STATES.
Upon making the conveyance under section 3, notwithstanding any other
provision of law, the United States is released from any and all
liabilities or claims of any kind or nature arising from the presence,
release, or threat of release of any hazardous substance, pollutant,
contaminant, petroleum product (or derivative of a petroleum product of
any kind), solid waste, mine materials or mining related features
(including tailings, overburden, waste rock, mill remnants, pits, or
other hazards resulting from the presence of mining related features)
at the Three Kids Mine Project Site in existence on or before the date
of the conveyance.
SEC. 7. SOUTHERN NEVADA PUBLIC LANDS MANAGEMENT ACT.
Southern Nevada Public Land Management Act of 1998 (31 U.S.C. 6901
note; Public Law 105-263) shall not apply to land conveyed under this
Act.
PURPOSE OF THE BILL
The purpose of H.R. 2512, as ordered reported, is to
provide for the conveyance of certain Federal land in Clark
County, Nevada, for the environmental remediation and
reclamation of the Three Kids Mine Project Site.
BACKGROUND AND NEED FOR LEGISLATION
The Three Kids Mine (TKM), located in Clark County, Nevada,
operated from 1916 until 1961. The United States, through the
Defense Plant Corporation (DPC), owned 446 acres of the TKM
Project site from 1942 to 1955. DPC leased the site to U.S.
Metals Reserve Company (MRC). MRC contracted with the Manganese
Ore Company to construct and operate a mill from 1942 through
1944 to produce manganese for national defense purposes. From
1950 to 1959, the U.S. contracted with Manganese, Inc., to
beneficiate federally owned ore. The U.S. also leased private
lands to stockpile manganese nodules as late as 2003.
The TKM project site is approximately 1,262 acres and
includes 948 acres of federal lands now managed by the Bureau
of Land Management (BLM) and Bureau of Reclamation (BOR), and
314 acres of private lands, where the mill site and processing
plant is located. The TKM project site is east of the City of
Henderson, Nevada. The City has annexed the area.
The site is contaminated with arsenic, lead and other heavy
metals and petroleum hydrocarbons. Cost estimates for clean up
and reclamation of the site range from $300 million to $1.2
billion. The lower cost estimates apply to onsite remediation
and disposal of tailings and other materials in the open pits
if it can be accomplished without contaminating ground water.
The higher cost estimate is associated with offsite disposal of
the contaminated material.
The City of Henderson, the Henderson Redevelopment Agency,
the Nevada Department of Environmental Protection (NDEP),
Lakemoor Development, LLC, and the BLM negotiated a plan to
clean up and redevelop the TKM Project site that includes the
purchase of 948 acres of federal lands and relieves the federal
government of the environmental liability associated with
mining, milling and ore-storage activities at the site at no
cost to the U.S. taxpayer. The Three Kids Mine Remediation and
Reclamation Act (H.R. 2512) would provide for the conveyance of
approximately 948 acres of federal land to the City of
Henderson if certain conditions are met: namely that the NDEP
is satisfied that the developer has the ability and financial
security to clean up, remediate and reclaim the TKM project
site.
The purchase price would be adjusted to reflect the actual
cleanup cost of the federal and non-federal lands where the
federal government has environmental liability resulting from
the mill, processing facilities and the storage of federal-
owned manganese nodules. In turn, the City of Henderson and the
developer would absolve the federal government of any
environmental liability for the site.
All in all, this is a win-win scenario. The environmental
problems are addressed, the abandoned mine site is reclaimed
and the land redeveloped for beneficial use--all at no cost to
the American taxpayer. If successful, this could provide a
framework for other abandoned mine sites that are near or
adjacent to small towns and larger urban areas.
During Full Committee markup, the Committee adopted an en
bloc amendment sponsored by Congressman Mark Amodei (R-NV). The
amendment would amend the title and date of the ``Three Kids
Mine Project Area'' map (see Appendix I), and provides for
changes to the American Society for Testing and Materials
(ASTM) International Standards for environmental site
assessments that occurred since introduction of the
legislation. In addition, the amendment provides clarifying
language to address concerns raised by BLM, BOR, and the
Southern Nevada Water Authority, including language regarding
how the ``fair market value'' determination will be made;
requiring the Henderson Redevelopment Agency to cover the costs
incurred by the Secretary of the Interior in conducting the
appraisal; establishing a timeline for notification by the
Henderson Redevelopment Agency that it is ready to accept
conveyance of the TKM federal land and clarifies that the
conveyance will occur prior to reclamation work on the mine
site starting; and ensuring that existing reclamation project
and permitted facilities on existing rights-of-way are
protected.
Changes and modifications included in the Amodei amendment
were negotiated and agreed to by the agencies and the other
parties that will be affected by the legislation.
In addition, an amendment offered by Congressman Rush Holt
(D-NJ) during full committee consideration was not agreed to by
voice vote. The amendment would have obligated the federal
government, and thereby the U.S. taxpayer, to clean up and
remediate the site if the parties acquiring the property did
not complete the task. The amendment would have negated the
purpose of the legislation, which is to eliminate the
environmental liability of the federal government and provide a
mechanism for remediation, cleanup and redevelopment of the TKM
project area.
When offering his amendment, Congressman Holt discussed the
potential for ongoing Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) liability at the site.
The legislation is not intended to address CERCLA liability in
general, but to provide a mechanism for parties other than the
federal government to take ownership of the federal
environmental liability existing on private and public lands at
the TKM project area.
The legislation requires a rigorous environmental
assessment of the site to prepare an appropriate cleanup and
remediation plan that will be conducted under a consent order.
The parties responsible for the remediation and redevelopment
will be required to have bonds and insurance in place prior to
commencement of any remediation activities that are sufficient
for a third party to complete the remediation outlined in the
consent order in the event the developer is unable to complete
the task.
The consent order required in section 3 and administered by
the State of Nevada ensures that cleanup must be ``CERCLA-
protective'' and meet ``residential'' cleanup standards. In
addition, reclamation bonds and insurance will be required to
ensure that the reclamation will be completed if the project
proponents are somehow unable to complete the cleanup.
COMMITTEE ACTION
H.R. 2512 was introduced on July 13, 2011, by Congressman
Joseph Heck (R-NV). The bill was referred to the Committee on
Natural Resources, and within the Committee to the
Subcommittees on Energy and Mineral Resources and National
Parks, Forests and Public Lands. On December 13, 2011, the
Subcommittee on Energy and Mineral Resources held a hearing on
the bill. On February 29, 2012, the Full Natural Resources
Committee met to consider the bill. The Subcommittees on Energy
and Mineral Resources and National Parks, Forests and Public
Lands were discharged by unanimous consent. Congressman Mark
Amodei (R-NV) offered en bloc amendment designated .009 to the
bill; the amendment was approved by voice vote. Congressman
Rush Holt (D-NJ) offered amendment designated .106 to the bill;
the amendment was not adopted by voice vote. The bill, as
amended, was then adopted and ordered favorably reported to the
House of Representatives by a bipartisan rollcall vote of 27 to
17, as follows:
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
This section cites the short title of the bill as the
``Three Kids Mine Remediation and Reclamation Act.''
Section 2. Definitions
This section provides definitions for terms used in the
bill.
Section 3. Land conveyance
This section conveys approximately 948 acres of federal
land managed by the Bureau of Land Management and Bureau of
Reclamation to the City of Henderson if certain conditions are
met--namely that the Nevada Department of Environmental
Protection (NDEP) is satisfied that the developer has the
ability and financial security to cleanup, remediate and
reclaim the Three Kids Mine (TKM) project site.
The section requires the Secretary of the Interior to
perform a Fair Market Value (FMV) appraisal of the federal
lands, and that the Secretary adjust the FMV to reflect the
costs of remediating the entire TKM project site.
The mine remediation and reclamation agreement is a
condition for patent issuance (giving title of the federal land
to the City of Henderson). The consent agreement between NDEP
and the developer would require cleanup of the entire TKM
project site, federal lands and private lands, would require
financial assurance provisions to ensure completion of the
cleanup, and provides that the cleanup must be ``Comprehensive
Environmental Response, Compensation, and Liability Act-
protective'' and meet ``residential'' cleanup standards.
Section 4. Withdrawal
This section withdraws the transferred federal land from
mineral entry and protects existing transmission, water
infrastructure and facilities existing in the TKM project area.
Section 5. ACEC boundary adjustment
This section adjusts the boundary of an existing Area of
Critical Environmental Concern.
Section 6. Release of the United States
This section provides that the United States is released
from environmental liability for the entire project site upon
patent issuance.
Section 7. Southern Nevada Public Lands Management Act
This section specifies that land conveyed under the bill is
not subject to the Southern Nevada Public Land Management Act
of 1998.
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.
COMPLIANCE WITH HOUSE RULE XIII
1. Cost of Legislation. Clause 3(d)(1) 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)(2)(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. 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. 2512--Three Kids Mine Remediation and Reclamation Act
H.R. 2512 would require the Bureau of Land Management (BLM)
to sell 950 acres of federal land, some of which are
contaminated by hazardous waste, to the city of Henderson,
Nevada. Under the bill, the agency would determine the sale
price by estimating the fair market value of the land and
reducing that amount by the estimated cost of any necessary
environmental remediation and mining reclamation activities at
the site. Finally, the bill would release the federal
government from any future liability stemming from
environmental contamination at the site.
Based on information provided by BLM and the Department of
Justice (DOJ), CBO estimates that implementing the legislation
would have no significant impact on the federal budget.
Enacting the bill would not affect direct spending or revenues;
therefore, pay-as-you-go procedures do not apply.
Roughly 15 percent of the lands that would be sold under
the bill are contaminated and will require mine reclamation and
environmental remediation. Based on information provided by BLM
and the city of Henderson, CBO estimates that the agency is
unlikely to receive any financial compensation for any of the
land because remediation and reclamation costs would exceed the
land's fair market value. Because CBO does not expect that the
affected lands would generate any receipts over the next 10
years, we estimate that conveying the lands under the bill
would have no significant impact on the federal budget.
H.R. 2512 also would release the federal government from
any future liability associated with contamination on the
affected public lands and adjacent private lands. Based on
information from DOJ, CBO expects that it is unlikely that a
court would force the federal government to remediate and
reclaim its own property. However, if a plaintiff successfully
sued the federal government, under current law, any remediation
or reclamation costs would be paid using appropriated funds.
Thus, enacting the legislation could reduce the amount of
appropriated funds BLM spends on remediation and reclamation
activities in the future.
H.R. 2512 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The CBO staff contact for this estimate is Jeff LaFave. The
estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
2. Section 308(a) of 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. According to the
Congressional Budget Office, enactment of the bill ``would have
no significant impact on the federal budget'' and would not
affect direct spending or revenues. Therefore, pay-as-you-go
procedures do not apply.
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, as ordered reported, is to provide for
the conveyance of certain Federal land in Clark County, Nevada,
for the environmental remediation and reclamation of the Three
Kids Mine Project Site.
EARMARK STATEMENT
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
COMPLIANCE WITH PUBLIC LAW 104-4
This bill contains no unfunded mandates as defined under
Public Law 104-4.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
This bill is not intended to preempt any local or tribal
law.
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes in existing
law.
Appendix II
ADDITIONAL VIEWS
H.R. 2512 would seek to address the abandoned Three Kids
Mine in Nevada. The roughly 1,260 acre Three Kids Mine site is
an abandoned manganese mine and mill near Las Vegas. The
abandoned mine today has open mine pits and significant volumes
of mine overburden and toxic manganese tailings containing
arsenic, lead, and diesel fuel, which the BLM has said pose
significant risks to public health, safety and the environment.
According to the Bureau of Land Management, costs of
remediating and reclaiming this abandoned mine site are
estimated to be between $300 million and $1.3 billion.
H.R. 2512 would direct the BLM to convey the federal
portions of the Three Kids Mine site to the Redevelopment
Agency of the city of Henderson, Nevada and require the
remediation and reclamation of the site. We support the goals
of H.R. 2512 to clean up this toxic abandoned mine site and
commend the sponsors of the legislation on their innovative
thinking with respect to addressing this problem.
However, H.R. 2512 raises serious concerns because of the
remaining questions about whether there will be sufficient
funds available to complete the cleanup, and who would bear the
costs should the cleanup be abandoned for any reason in the
future. In fact, the legislation would release the United
States from all liability relating to the Three Kids Mine site,
including under environmental laws such as the Comprehensive
Environmental Response, Compensation, and Liability Act
(CERCLA).
Such a release of liability for the United States could
mean that in the event that the developer is unable to complete
the cleanup of the Three Kids Mine, there may be no responsible
party. The Congressional Research Service, in reviewing the
legislation, has stated that ``In the event that the recipient
of the property is unable to perform the cleanup the
responsibility may fall to the state of Nevada as an `orphan'
site, if the United States were to be exempt from all
liabilities and claims under Section 6 [of the bill] and there
were no other liable non-federal parties to pursue.'' And
according to technical comments provided by EPA, ``the bill is
unclear whether the State would be liable if the party is not
able to perform the cleanup.'' We also have concerns about the
precedent that could be set by waiving the liability of the
United States for the cleanup of this site if we are trying to
ensure that private entities are held responsible for cleaning
up other sites.
The Majority rejected an amendment from Energy and Minerals
Ranking Member Holt that would have ensured that the federal
government or another party would complete the remediation of
the land should the developer fail to complete it for any
reason. That amendment would have been a backstop to ensure
that we can actually reclaim this site and that it does not
become orphaned.
While we support the goals of H.R. 2512 to reclaim this
abandoned mine land, the legislation creates uncertainty
surrounding who would bear the costs and complete the cleanup
of this site should it not be completed as envisioned by the
bill and the waiver of liability of the United States.
Edward J. Markey.
Niki Tsongas.
Dale E. Kildee.
Madeleine Z. Bordallo.
Rush D. Holt.
Raul M. Grijalva.
Grace F. Napolitano.
Ben Ray Lujan.
Gregorio Kilili Camacho Sablan.
Paul Tonko.