[Senate Report 112-122]
[From the U.S. Government Publishing Office]
Calendar No. 284
112th Congress Report
SENATE
2d Session 112-122
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LEADVILLE MINE DRAINAGE TUNNEL ACT
_______
January 13, 2012.--Ordered to be printed
Filed, under authority of the order of the Senate of December 17, 2011
_______
Mr. Bingaman, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 1047]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 1047) to amend the Reclamation Projects
Authorization and Adjustment Act of 1992 to require the
Secretary of the Interior, acting through the Bureau of
Reclamation, to take actions to improve environmental
conditions in the vicinity of the Leadville Mine Drainage
Tunnel in Lake County, Colorado, and for other purposes, having
considered the same, reports favorably thereon without
amendment and recommends that the bill do pass.
Purpose
The purpose of S. 1047 is to amend the Reclamation Projects
Authorization and Adjustment Act of 1992 to require the
Secretary of the Interior, acting through the Bureau of
Reclamation, to take actions to improve environmental
conditions in the vicinity of the Leadville Mine Drainage
Tunnel in Lake County, Colorado.
Background and Need
The Bureau of Mines (BOM) constructed the Leadville Mine
Drainage Tunnel (LMDT) in the 1940s and 1950s to drain water
from mines in the Leadville, Colorado area. In 1959, the Bureau
of Reclamation took full custody, accountability, and future
responsibility for the LMDT. Reclamation's original purpose in
acquiring the LMDT was to obtain additional water for the
Fryingpan-Arkansas Reclamation Project, which was authorized in
1962, but this plan never materialized.
In 1992, to implement a settlement agreement involving
Clean Water Act violations related to discharge from the LMDT,
through Title VII of the Reclamation Projects Authorization and
Adjustment Act of 1992 (Public Law 102-575), Congress
authorized Reclamation to construct a treatment plant to clean
up discharge from the LMDT. The 1992 law specified that
Reclamation's treatment plant must be constructed to treat the
quantity and quality of effluent ``historically discharged''
from the LMDT.
In 1983, a significant portion of the Leadville area, known
as the California Gulch National Priority List Site, was
designated as a Superfund site. The LMDT is hydraulically
connected to certain Superfund units within the site. In 2003,
the Environmental Protection Agency issued a Record of Decision
for one of the Superfund units that implicated the operations
of the treatment plant and led to uncertainty with respect to
Reclamation's authority to treat additional water at the plant.
EPA is in the process of developing a revised water management
plan and Record of Decision that may reduce the long term need
to utilize the treatment plant and drainage tunnel.
In 2008, Reclamation and EPA developed a short-term plan to
drill a relief well to dewater the LMDT and treat the pooled
water at Reclamation's existing treatment plant. S. 1047 would
clarify Reclamation's authority to treat water delivered
through the LMDT and to maintain the existing treatment plant.
In addition the Bill authorizes the Secretary, upon entering
into an agreement with the EPA or other entity or agency to
provide funding, to improve or expand the plant.
Legislative History
Senator Mark Udall introduced S. 1047 on May 23, 2011. The
Subcommittee on Water and Power of the Committee on Energy and
Natural Resources held a hearing on S. 1047 on June 23, 2011
(S. Hrg. 112-129). The Committee on Energy and Natural
Resources ordered S. 1047 favorably reported without amendment
at its business meeting on November 10, 2011.
During the 111th Congress, the Committee considered similar
legislation, S. 3404, sponsored by Mark Udall. The Subcommittee
on Water and Power held a hearing on S. 3404 on June 9, 2010
(S. Hrg. 111-707). The Committee ordered S. 3404 favorably
reported with an amendment in the nature of a substitute on
August 27, 2010 (S. Rpt. 111-320).
Committee Recommendation
The Senate Committee on Energy and Natural Resources, in
open business session on November 10, 2011, by voice vote of a
quorum present recommends that the Senate pass S. 1047.
Section-by-Section Analysis
Section 1 provides the short title of the bill.
Section 2 amends section 703 of the Reclamation Projects
Authorization and Adjustment Act of 1992 (Public Law 102-575)
to specify that the Secretary of the Interior shall take any
action necessary to maintain the structural integrity of the
Leadville Mine Drainage Tunnel to maintain public safety and
prevent an uncontrolled release of water. Further, the
Secretary of the Interior is provided with the authority to
operate and maintain a water treatment plant.
Section 3 amends section 705 of Public Law 102-575 to
specify that the Secretary may enter into an agreement with any
other entity or government agency to provide funding for
increased operation, maintenance, replacement, capital
improvement, or expansion cost that is necessary to improve or
expand the treatment plant. Upon entering into such agreement,
the Secretary may make necessary capital improvements or
expansions and may treat flows conveyed to the water treatment
plant that are in excess of the quantities historically
discharged into the tunnel, including surface water diverted
into the tunnel and water collected by the dewatering relief
well installed in June 2008.
Section 4 amends section 708(a) of Public Law 102-575 to
require the Administrator of the EPA to consult with
Reclamation on a new or amended Record of Decision that affects
the operation and maintenance of the drainage tunnel or the
water treatment plant. Section 4 also specifies that the
Secretary may implement any improvement to or new operation of
the tunnel or treatment plant only upon entering into an
agreement with the EPA or other entity or agency to provide
funding for the improvement or new operation.
Section 5 authorizes appropriations for sections 703 and
709 of Public Law 102-575.
Section 6 makes a conforming amendment to the table of
contents of Public Law 102-575.
Cost and Budgetary Considerations
The following estimate of costs of this measure has been
provided by the Congressional Budget Office:
S. 1047--Leadville Mine Drainage Tunnel Act of 2011
S. 1047 would require the Secretary of the Interior to
maintain the structural integrity of the Leadville Mine
Drainage Tunnel, located one mile north of Leadville, Colorado.
The bill also would authorize the Secretary, if necessary, to
seek reimbursements from private or public entities for the
cost of expanding and operating the water treatment plant
associated with the Leadville Tunnel to handle any increased
water volumes. Based on information from the Bureau of
Reclamation and the Environmental Protection Agency (EPA), CBO
does not anticipate that any costs would be incurred under the
bill beyond what the bureau will spend under current law to
repair and maintain the tunnel over the next several years.
Enacting S. 1047 would not affect direct spending or revenues;
therefore, pay-as-you-go procedures do not apply.
The Leadville Tunnel is located near the California Gulch
Superfund site. EPA's plan to clean up the site minimizes the
use of the tunnel and treatment plant by avoiding diversion of
water into those facilities except in cases of an emergency.
Under the bill and subject to the availability of appropriated
funds, EPA would be authorized to pay for any improvements and
associated operation and maintenance costs to the tunnel and
water treatment plant if such improvements are necessary. Under
current law, costs to treat and manage contaminated water from
the California Gulch are already a federal responsibility;
therefore, this provision would not result in additional
federal outlays.
S. 1047 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 Aurora Swanson.
The estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Regulatory Impact Evaluation
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee makes the following
evaluation of the regulatory impact which would be incurred in
carrying out S. 1047.
The bill is not a regulatory measure in the sense of
imposing Government-established standards or significant
economic responsibilities on private individuals and
businesses.
No personal information would be collected in administering
the program. Therefore, there would be no impact on personal
privacy.
Little, if any, additional paperwork would result from the
enactment of S. 1047, as ordered reported.
Congressionally Directed Spending
S. 1047, as ordered reported, does not contain any
congressionally directed spending items, limited tax benefits,
or limited tariff benefits as defined in rule XLIV of the
Standing Rules of the Senate.
Executive Communications
The testimony provided by the Department of the Interior at
the June 23, 2011, Subcommittee hearing on S. 1047 follows:
Statement of Grayford F. Payne, Deputy Commissioner for Policy,
Administration and Budget, Bureau of Reclamation, Department of the
Interior
Madam Chairman and Members of the Subcommittee, I am
Grayford Payne, Deputy Commissioner for Policy, Administration
and Budget at the Bureau of Reclamation (Reclamation). I am
pleased to provide the views of the Department of the Interior
(Department) on S. 1047, the Leadville Mine Drainage Tunnel Act
of 2011.
The Department last testified before the Subcommittee on
legislation related to the Leadville Mine Drainage Tunnel
(LMDT) in June of 2010, and prior to that, in April of 2008.
Since the last Congress, the sponsor has continued to refine
the specific language of this bill, and incorporated reference
to new information from the U.S. Environmental Protection
Agency (EPA) and the Colorado Department of Public Health and
Environment (CDPHE) regarding new management actions at the
California Gulch National Priority List (Superfund) Site, which
overlies the LMDT. S. 1047 is consistent with the Department's
ongoing commitment to ensure that the LMDT poses no threat to
public safety and the environment. The Department supports the
revisions made to the bill to date and looks forward to working
with the Committee on further refinements to clarify remaining
concerns.
The bill has been substantially improved to address the
concerns raised by the Department related to reimbursement and
liability. In our previous testimony, the Department was
particularly concerned that the bill could have been understood
to create a liability for Reclamation where none currently
exists. S. 1047 ameliorates these concerns by appropriately
identifying ongoing responsibilities of the Secretary of the
Interior. S. 1047 contains new language not found in previously
introduced versions of the Leadville Mine Drainage Tunnel
Act.\1\ In particular, Section 3 of S. 1047 acknowledges the
multi-agency nature of efforts underway at Leadville, and
authorizes the Department to enter into agreements with other
entities for reimbursement in the event of improvements or
expansion of the treatment plant in Leadville. The bill
language authorizes an agreement to cover costs for ``any
necessary capital improvement'' as well as costs associated
with ``flows that are conveyed to the treatment plant,''
including surface water. We note that the Department interprets
section 3 to affirm existing discretionary authority to improve
or expand the treatment plant as well as to allow the Secretary
to enter into reimbursement agreements with other entities with
respect to the treatment plant.
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\1\The Committee-reported version of S. 3404 during the 111th
Congress was amended to include reimbursement language that is similar
to the language found in this session's S. 1047; however, the
reimbursement language was not part of S. 3404 at the time Reclamation
testified on the bill on June 9, 2010.
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We continue to assert that the language in Section 2 of the
bill, which calls on the Secretary of the Interior to ``take
any action necessary to maintain the structural integrity of
the [LMDT],'' does not take into consideration Reclamation's
2008 Risk Assessment on the LMDT. The Assessment's purpose was
to evaluate the stability and assess the risk associated with
the LMDT. The Risk Assessment utilized a similar process to the
one Reclamation uses to assess risk at its dams, a model that
is an international standard for conducting risk assessments.
The Risk Assessment's independent peer review confirmed that it
is highly unlikely that a sudden release of water could occur
from either a blockage in the LMDT, or through the bulkheads
installed in the tunnel. Moreover, the Risk Assessment
concluded that even if an existing natural blockage in the
upper part of the LMDT failed rapidly, a sudden release of
water through the lower blockage and bulkheads is unlikely. In
2008, Reclamation also worked cooperatively with the EPA and
CDPHE to install additional drainage capability into the LMDT.
We have also held several public meetings with residents living
in the Village at East Fork and others in the Leadville area to
convey Reclamation's findings that the LMDT is safe, and have
continued an active dialogue with the EPA during the agency's
revision of the proposed remedy for Operable Unit 6 (OU6) of
the California Gulch National Priority List (Superfund) Site,
which lies above the LMDT. We agree with the remedy selected in
EPA's amended Record of Decision, published in 2010, which
would implement actions to avoid diversion of water into the
LMDT. Recent studies conducted by EPA conclude that using the
mine workings and the LMDT to convey water cannot be relied on
for the long term, and that it is neither cost effective nor
efficient to treat diluted acid rock drainage this way in
perpetuity. We have also had very productive interactions with
Senator Mark Udall's office and the Subcommittee on this
legislation, and we appreciate those discussions.
We recognize the desire of Congress to assure the residents
of Leadville and the Village at East Fork that Reclamation will
continue to manage its facilities appropriately, and be
accountable. This legislation essentially codifies these
ongoing actions for the long term.
This concludes my written statement. I am pleased to answer
any questions the Subcommittee may have.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill S. 1047, as ordered 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
Public Law 102-575 (106 Stat. 4656)
AN ACT To authorize additional appropriations for the construction of
the Buffalo Bill dam and Reservoir, Shoshone Project, Pick-Sloan
Missouri Basin Program, Wyoming.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Reclamation Projects
Authorization and Adjustment Act of 1992''.
* * * * * * *
SEC. 2. DEFINITION AND TABLE OF CONTENTS.
For purposes of this Act, the term ``Secretary'' means the
Secretary of the Interior.
TABLE OF CONTENTS
Sec. 1. Short title.
* * * * * * *
TITLE VII--LEADVILLE MINE DRAINAGE TUNNEL, COLORADO
Sec. 701. Authorization.
Sec. 702. Costs nonreimbursable.
[Sec. 703. Operation and maintenance.]
Sec. 703. Tunnel maintenance; operation and maintenance.
* * * * * * *
TITLE VII--LEADVILLE MINE DRAINAGE TUNNEL, COLORADO
* * * * * * *
[SEC. 703. OPERATION AND MAINTENANCE.
[The Secretary shall be responsible for operation and
maintenance of the water treatment plant, including sludge
disposal authorized by this title. The Secretary may contract
for these services.]
SEC. 703. TUNNEL MAINTENANCE; OPERATION AND MAINTENANCE.
(a) Leadville Mine Drainage Tunnel.--The Secretary shall
take any action necessary to maintain the structural integrity
of the Leadville Mine Drainage Tunnel--
(1) to maintain public safety; and
(2) to prevent an uncontrolled release of water.
(b) Water Treatment Plant.--
(1) In general.--Subject to section 705, the
Secretary shall be responsible for the operation and
maintenance of the water treatment plant authorized
under section 701, including any sludge disposal
authorized under this title.
(2) Authority to offer to enter into contracts.--In
carrying out paragraph (1), the Secretary may offer to
enter into 1 or more contracts with any appropriate
individual or entity for the conduct of any service
required under paragraph (1).
* * * * * * *
SEC. 705. LIMITATION.
[The treatment plant] (a) In General.--Except as provided
in subsection (b), 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] Drainage Tunnel (which includes any
surface water diverted into the Leadville Mine Drainage Tunnel
and water collected by the dewatering relief well installed in
June 2008).
(b) Exception.--The Secretary may--
(1) enter into an agreement with any other entity or
government agency to provide funding for an increase in
any operation, maintenance, replacement, capital
improvement, or expansion cost that is necessary to
improve or expand the treatment plant; and
(2) upon entering into an agreement under paragraph
(1)--make any necessary capital improvement to or
expansion of the treatment plant.
* * * * * * *
SEC. 708. WATER QUALITY RESTORATION.
[(a) The Secretary] (a) In General._
(1) Authorization._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]
(2) Liability._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]
(3) Facilities covered under other laws._
(A) In general._Except as provided in
subparagraph (B), 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.
(B) Exception.--If the Administrator of the
Environmental Protection Agency proposes to
amend or issue a new Record of Decision for
operable unit 6 of the California Gulch
National Priorities List Site, the
Administrator shall consult with the Secretary
with respect to each feature of the proposed
new or amended Record of Decision that may
require any alteration to, or otherwise affect
the operation and maintenance of--
(i) the Leadville Mine Drainage
Tunnel; or
(ii) the water treatment plant
authorized under section 701.
(4) Authority of secretary._The Secretary may
implement any improvement to, or new operation of, the
Leadville Mine Drainage Tunnel or water treatment plant
authorized under section 701 as a result of a new or
amended Record of Decision for operable unit 6 of the
California Gulch National Priorities List Site only
upon entering into an agreement with the Administrator
of the Environmental Protection Agency or any other
entity or government agency to provide funding for the
improvement or new operation. [For the purpose of]
(5) Definition of upper arkansas river basin._In this
section, the term ``Upper Arkansas River basin'' means
the Arkansas River hydrologic basin in Colorado
extending from Pueblo Dam upstream to its headwaters.
* * * * * * *
(f) There is authorized to be appropriated such sums as may
be required to fulfill the provisions of [sections 707 and 708]
this section and sections 703, 705, and 707 of this title.
* * * * * * *