[House Report 115-1002]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 115-1002
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LYON COUNTY ECONOMIC DEVELOPMENT AND ENVIRONMENTAL REMEDIATION ACT
_______
November 2, 2018.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Bishop of Utah, from the Committee on Natural Resources, submitted
the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 5347]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 5347) to facilitate resolution of environmental
remediation and reclamation, resolve potential liability of the
United States, and promote economic development in Lyon County,
Nevada, 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; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Lyon County Economic
Development and Environmental Remediation Act''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
Sec. 3. Findings.
Sec. 4. Conveyance of land; resolution of Federal liability.
Sec. 5. General provisions relating to the conveyance.
SEC. 2. DEFINITIONS.
In this Act:
(1) Atlantic richfield.--The term ``Atlantic Richfield''
means the Atlantic Richfield Company, a Delaware corporation,
or its successors or assigns.
(2) BLM.--The term ``BLM'' means the Bureau of Land
Management.
(3) CERCLA.--The term ``CERCLA'' means the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
(42 U.S.C. 9601 et seq.).
(4) County.--The term ``County'' means Lyon County, Nevada.
(5) Federal selected lands.--The term ``Federal selected
lands'' means the approximately 2,062 acres of land managed by
the BLM, located in five distinct parcels in Lyon County,
Nevada, and generally depicted on the map entitled ``Anaconda
Copper Mine Site--Federal Parcels Proposed to be Acquired'' and
dated September 7, 2017.
(6) Indian tribe.--The term ``Indian Tribe'' has the meaning
given the term in section 4 of the Indian Self-Determination
and Education Assistance Act (25 U.S.C. 5304).
(7) Map.--The term ``Map'' means the map entitled ``Anaconda
Copper Mine Site--Federal Parcels Proposed to be Acquired'' and
dated September 7, 2017.
(8) Secretary.--The term ``Secretary'' means the Secretary of
the Interior.
(9) Site.--The term ``Site'' means the Anaconda Copper Mine
Site located in Lyon County, Nevada.
(10) State.--The term ``State'' means the State of Nevada.
SEC. 3. FINDINGS.
Congress finds that--
(1) Atlantic Richfield is performing environmental response
actions under CERCLA at the Site with the State's Division of
Environmental Protection in the lead oversight role;
(2) to comprehensively and efficiently facilitate the
environmental remediation and reclamation at the Site, Atlantic
Richfield requires access to land that is owned by the Federal
Government;
(3) more than half of the acreage located within the Site's
boundaries is owned by the Federal Government and managed by
the BLM, and, therefore, attempting to implement a CERCLA
remedy on BLM-managed lands requires extensive coordination and
can involve substantial delays and increased costs;
(4) because the historic releases and elements of the remedy
do not follow existing property boundaries, reducing any
inconsistent treatment based on land ownership will benefit
cost management, efficiency of operations and maintenance, and
long-term protectiveness;
(5) the United States may be designated as a potentially
responsible party under CERCLA and accordingly could be
assigned a significant liability share for CERCLA response
costs;
(6) at the time of conveyance, the Federal selected lands
will be unburdened by mining claims;
(7) the conveyance of the Federal selected lands will promote
economic development within the County by consolidating private
land for future mining activities;
(8) the BLM has routinely conveyed lands to potentially
responsible parties to facilitate remedial actions;
(9) a legislated land conveyance is necessary to meet the
remediation goals of the Site, promote economic development in
the County, and for BLM and the United States to receive a
covenant not to sue and indemnity for certain potential
liabilities relating to the Site;
(10) the Federal selected lands contain contamination and
hazardous waste, and therefore the fair market value of such
lands is minimal;
(11) the United States potential CERCLA liability at the Site
is substantially greater than the fair market value of the
Federal selected lands; and
(12) the BLM and Atlantic Richfield have concluded that
conveyance of the Federal selected lands to Atlantic Richfield
in exchange for resolution of certain United States liabilities
is reasonable, logical, advisable, and in the public interest.
SEC. 4. CONVEYANCE OF LAND; RESOLUTION OF FEDERAL LIABILITY.
(a) Federal Selected Lands.--Notwithstanding section 120(h) of CERCLA
(42 U.S.C. 9620(h)), not later than 120 days after the date of the
enactment of this Act, the Secretary shall convey all right, title, and
interest (including mineral rights) of the United States in and to the
Federal selected lands to Atlantic Richfield.
(b) Covenant Not To Sue and Indemnity.--Upon conveyance of the
Federal selected lands under subsection (a), and for full and complete
compensation for those lands, Atlantic Richfield shall--
(1) covenant not to sue and agree not to assert any claims or
causes of action against the BLM or its contractors or
employees with respect to CERCLA response costs that Atlantic
Richfield has incurred or will incur at or relating to the
Site; and
(2) indemnify the United States against future liabilities
that result from Atlantic Richfield's activities on the Federal
selected lands after the conveyance.
(c) Equal Value.--The value of the Federal selected lands is deemed
to be equal to or less than the United States portion of the CERCLA
response costs at the Site and no further valuation is required for the
purposes of this Act or the conveyance of the Federal selected lands
under this Act.
SEC. 5. GENERAL PROVISIONS RELATING TO THE CONVEYANCE.
(a) In General.--The conveyance authorized by this Act shall be
subject to the following terms and conditions:
(1) Existing encumbrances.--In the United States patent to be
issued pursuant to this Act, the Secretary shall describe any
existing known encumbrances in the patent. The terms of such
encumbrances shall be prescribed by the Secretary not later
than 30 days after the date of the enactment of this Act.
(2) Right of rescission.--This Act shall not be binding on
either the United States or Atlantic Richfield if, not later
than 45 days after the date of the enactment of this Act,
Atlantic Richfield submits to the Secretary a duly authorized
and executed resolution of the Company stating its intention
not to enter into the conveyance authorized by this Act.
(b) Withdrawal.--Subject to valid existing rights, effective on the
date of the enactment of this Act, the Federal selected lands are
hereby withdrawn from all forms of appropriation under the public land
laws (including the mining laws) and from disposition under all laws
pertaining to mineral leasing.
(c) Patent.--The conveyance of the Federal selected lands under this
Act shall be by United States patent acceptable to the Secretary and in
conformity with applicable title standards of the Attorney General.
(d) Tribal Rights.--Not later than 30 days after the date of
enactment of this Act, the Secretary shall initiate in government-to-
government consultation with any Indian Tribe affected by the
conveyance of the Federal selected lands regarding issues of concern to
the affected Indian Tribe related to the land conveyance. Such
consultation shall conclude within 90 days of its initiation. After the
consultation under this subsection, the Secretary shall consult with
Atlantic Richfield and seek to find mutually acceptable measures to
address any identified concerns of the affected Indian Tribe.
(e) Tribal Rights Unaffected.--Nothing in this Act alters or
diminishes the treaty rights of any Indian Tribe.
(f) State Law Unaffected.--Nothing in this Act modifies, expands,
diminishes, amends, or otherwise affects any State law relating to the
imposition, application, timing, or collection of a State tax.
(g) Compliance With Applicable Laws.--The land transfer directed by
this Act, and all determinations, authorizations, and actions taken by
the Secretary pursuant to this Act, are deemed to be non-discretionary
actions authorized and directed by Congress, and to comply with all
applicable procedural and other requirements of the laws of the United
States.
(h) Use of Federal Selected Lands.--Notwithstanding the former
ownership of the Federal selected lands by the United States, such land
shall be treated as non-Federal land after the conveyance of such lands
to Atlantic Richfield.
(i) Environmental Compliance.--After the conveyance, Atlantic
Richfield shall perform all response actions determined by the State
Division of Environmental Protection to be necessary to protect human
health and the environment with respect to any hazardous substance
stored, released, or disposed of on the Federal selected lands.
Response actions on the Federal selected lands shall be conducted in
accordance with applicable Federal, State, and local laws pertaining to
response, mining, and related activities on land in private ownership.
(j) Availability of Map.--The Map shall be on file and available for
public inspection in the appropriate offices of the BLM.
PURPOSE OF THE BILL
The purpose of H.R. 5347 is to facilitate resolution of
environmental remediation and reclamation, resolve potential
liability of the United States, and promote economic
development in Lyon County, Nevada.
BACKGROUND AND NEED FOR LEGISLATION
The Anaconda copper mine is located on approximately 3,500
acres of land in Lyon County, Nevada, immediately west of the
city of Yerington. Copper was first discovered in the area in
the 1800s and commercial development began in the mid-20th
century. The mine site includes both private and public lands
managed by the Bureau of Land Management (BLM). In the mid-
1970s, the mine was purchased by the Atlantic Richfield
Company, which is now a subsidiary of British Petroleum.\1\
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\1\Anaconda Copper Mine, Lyon County, Nevada, Nevada Division of
Environmental Protection. https://ndep.nv.gov/land/abandoned-mine-
lands/anaconda-site (last accessed July 13, 2018); National Priorities
List, Proposed Site: Anaconda Copper Mine, Environmental Protection
Agency, September 2016. https://semspub.epa.gov/work/09/2400298.pdf
(last accessed July 13, 2018).
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During its operations, the mine produced 1.7 billion pounds
of copper and 360 million tons of mineral material, the
majority of which remains onsite.\2\ The site occupies
approximately 6 square miles and contains a large open-pit
mine, 400 acres of waste rock, five leach pads on 250 acres,
3,000 acres of contaminated mine tailings and 1,300 acres of
disposal ponds. Because mining and processing occurred prior to
many modern environmental regulations, the processes used to
extract copper from the mineral ore resulted in heavy metal
contamination of the site and nearby drinking water wells.\3\
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\2\Anaconda Copper Mine, Lyon County, Nevada, Nevada Division of
Environmental Protection. https://ndep.nv.gov/land/abandoned-mine-
lands/anaconda-site (last accessed July 13, 2018).
\3\National Priorities List, Proposed Site: Anaconda Copper Mine,
Environmental Protection Agency, September 2016. https://
semspub.epa.gov/work/09/2400298.pdf (last accessed July 13, 2018).
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In 2000, the Nevada Department of Environmental Protection
(NDEP) began managing cleanup of the site. Due to a lack of
financial resources, NDEP requested that the U.S. Environmental
Protection Agency (EPA) exercise its Superfund authority under
the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA, 42 U.S.C. 9601 et seq.).\4\ The Atlantic
Richfield company is the responsible party for addressing
environmental issues related to the mine and has paid $19.5
million in damages awarded to nearby residents in a class
action lawsuit.\5\\6\ In 2015, the EPA recommended placing the
site on its National Priorities List to qualify for federal
funding for long-term clean up. After that, the State of Nevada
sought funding solutions from private entities and requested
formally that the EPA defer listing. EPA deferred the placement
on the National Priorities List in February 2018.\7\ Cleanup
costs for a portion of the site are estimated to exceed $36
million\8\
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\4\Ibid.
\5\Anaconda Copper Mine, Lyon County, Nevada, Nevada Division of
Environmental Protection. https://ndep.nv.gov/land/abandoned-mine-
lands/anaconda-site (last accessed July 13, 2018).
\6\Associated Press (2015, December 26). EPA wants to declare
abounded Nevada copper mine a Superfund site. http://www.latimes.com/
nation/la-na-epa-nevada-mine-20151226-story.html (last accessed July
13, 2018).
\7\National Priorities List, Proposed Site: Anaconda Copper Mine,
Environmental Protection Agency, September 2016. https://
semspub.epa.gov/work/09/2400298.pdf (last accessed July 13, 2018).
\8\Anaconda Copper Mine, Lyon County, Nevada, Nevada Division of
Environmental Protection. https://ndep.nv.gov/land/abandoned-mine-
lands/anaconda-site (last accessed July 13, 2018).
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As part of its land-use planning process, BLM designated
these parcels as suitable for disposal. Transfer of these lands
will ensure the availability of adequate fill and cover
material for the environmental cleanup, provide area for access
and temporary infrastructure and improve the viability of the
site for future economically beneficial uses.
H.R. 5347 would transfer approximately 2,000 acres of
federal lands managed by BLM located in Lyon County, Nevada, to
the Atlantic Richfield company, or its successors. As a former
owner and operator of the Site, Atlantic Richfield Company is
uniquely situated as the only entity legally qualified under
CERCLA Section 120(h) to acquire this federal land in its
current condition. The legislation would also expedite the
transfer process and allow the environmental cleanup to be
managed more efficiently.
The Atlantic Richfield Company does not intend to hold this
land long term but will transfer ownership to an unaffiliated
entity that purchased most of the former mine site in the early
2000s and is currently investigating additional mining
opportunities.
Both the Lyon County Commissioners and Yerington City
Council recently adopted resolutions in support of H.R.
5347.\9\
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\9\Yerington City Council Resolution No. 2018-03; Lyon County
Resolution No. 18-09.
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COMMITTEE ACTION
H.R. 5347 was introduced on March 20, 2018, by Congressman
Mark E. Amodei (R-NV). The bill was referred to the Committee
on Natural Resources, and within the Committee to the
Subcommittee on Federal Lands. On July 17, 2018, the
Subcommittee held a hearing on the bill. On July 18, 2018, the
Natural Resources Committee met to consider the bill. The
Subcommittee was discharged by unanimous consent. Congressman
Tom McClintock (R-CA) offered an amendment designated #1; it
was adopted by voice vote. Congressman Raul M. Grijalva (D-AZ)
offered an amendment designated 041; it was not adopted by a
roll call vote of 14 ayes and 16 nays, as follows:
Congressman Ruben Gallego (D-AZ) offered an amendment
designated 040; it was not adopted by a roll call vote of 14
ayes and 16 nays, as follows:
No additional amendments were offered, and the bill, as
amended, was ordered favorably reported to the House of
Representatives by a bipartisan roll call vote of 16 ayes and
15 nays, as follows:
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 AND CONGRESSIONAL BUDGET ACT
1. Cost of Legislation and the Congressional Budget Act.
With respect to the requirements of clause 3(c)(2) and (3) of
rule XIII of the Rules of the House of Representatives and
sections 308(a) and 402 of the Congressional Budget Act of
1974, the Committee has received the following estimate for the
bill from the Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 4, 2018.
Hon. Rob Bishop,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 5347, the Lyon
County Economic Development and Environmental Remediation Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jeff LaFave.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.R. 5347--Lyon County Economic Development and Environmental
Remediation Act
H.R. 5347 would require the Bureau of Land Management (BLM)
to convey 2,062 acres of federal land to the Atlantic Richfield
Company (ARC). Those lands are part of an abandoned copper mine
that has been designated as a Superfund site. In 2018, ARC
assumed responsibility for cleaning up the affected lands under
the oversight of the state of Nevada.
Under the bill, ARC would agree not to bring legal action
against BLM to obtain funds to cover cleanup costs at the site
and to indemnify the federal government against liabilities
stemming from the company's activities at the site. However,
CBO has no basis for determining whether the federal government
has any legal liability to fund cleanup efforts at the site,
whether BLM could be held liable for ARC's future activities at
the site, or whether a legal action would be brought against
the federal government within the next 10 years.
Because the affected lands contain existing rights-of-way
that generate proceeds for the federal government, CBO
estimates that conveying those lands would reduce offsetting
receipts, which are treated as reductions in direct spending.
However, using information provided by BLM, CBO estimates that
any such effects would be negligible.
Because enacting H.R. 5347 could affect direct spending,
pay-as-you-go procedures apply. Enacting the bill would not
affect revenues.
CBO estimates that enacting H.R. 5347 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2029.
H.R. 5347 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Jeff LaFave. The
estimate was reviewed by H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
2. 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 facilitate resolution of
environmental remediation and reclamation, resolve potential
liability of the United States, and promote economic
development in Lyon County, Nevada.
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.
COMPLIANCE WITH H. RES. 5
Directed Rule Making. This bill does not contain any
directed rule makings.
Duplication of Existing Programs. This bill does not
establish or reauthorize a program of the federal government
known to be duplicative of another program. Such program was
not included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-139
or identified in the most recent Catalog of Federal Domestic
Assistance published pursuant to the Federal Program
Information Act (Public Law 95-220, as amended by Public Law
98-169) as relating to other programs.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
This bill is not intended to preempt any State, local or
tribal law.
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes to existing
law.
DISSENTING VIEWS
H.R. 5347 authorizes the conveyance of over 2,000 acres of
land administered by Bureau of Land Management in Lyon County,
Nevada to the Atlantic Richfield Company (Atlantic Richfield),
a subsidiary of British Petroleum, to purportedly facilitate
environmental remediation and reclamation of the Anaconda
Copper Mine.
The land is a portion of the Anaconda Copper Mine Site, a
contaminated former open-pit mine that spans roughly 3,400
acres of private and public land. During the Obama
administration, the State of Nevada and the U.S. Environmental
Protection Agency entered into an agreement to place the site
on the Superfund National Priorities List pursuant to the
Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA). However, on February 5, 2018, former
Environmental Protection Agency Administrator, Scott Pruitt,
signed a deferral agreement with the State of Nevada. Under the
agreement, the Nevada Division of Environmental Protection is
responsible for overseeing Atlantic Richfield's investigation
and cleanup of the site under Nevada state law. Certain
criteria, including CERCLA equivalent cleanup, must be met or
the EPA can choose to end the deferral and take over
remediation by placing the site on the National Priorities
List.
Now, with the deferral on the books, Atlantic Richfield is
pursuing this bill to convey a portion of the site out of
federal ownership. The bill's sponsor claims that the steep
financial obligations imposed on the United States as a
potentially liable party pursuant to CERCLA will be relieved by
unburdening the land to Atlantic Richfield, which is why the
bill does not require an appraisal or any form of compensation
for the conveyance. Section 4 simply deems the value of the
land to be equal to or less than the U.S. portion of the CERCLA
response and transfers it to Atlantic Richfield.
Section 4 also includes a covenant not to sue and
indemnifies the federal government against future liabilities.
This does not functionally relieve the United States of its
liability but would render it moot and prevent Atlantic
Richfield from seeking compensation for the cleanup costs.
Under Sec. 107 of CERCLA, past owners and operators of a site
are deemed liable for the cleanup and remediation, which in the
case of the Anaconda Mine, could include the Bureau of Land
Management, putting Atlantic Richfield in a position to seek
damages from the United States and recoup costs associated with
the cleanup. However, at this point, the federal government's
liability is only speculative. In fact, the Bureau of Land
Management's testimony on the bill mentions that Department of
Justice advises against admitting liability. Rather than heed
that legal advice, the bill admits liability and uses that to
justify a no-cost conveyance to Atlantic Richfield.
Once the land is conveyed to private ownership, Atlantic
Richfield could initiate new mining activity concurrent with
the cleanup. The value extracted from future mining operations
could far surpass the cost of the cleanup and any potential
liability assigned to the United States. What's more, EPA and
the State of Nevada are still investigating the extent of
contamination and there is limited information at this point in
the cleanup process to determine the total cost. Without an
appraisal there is no way to determine the value of the land,
the subsurface mineral estate, or the cleanup cost, so it is
unclear if this is a legitimate equal value exchange. To ensure
a fair return for taxpayer owned assets, any conveyance of
federal land should be accompanied by an appraisal and some
form of equitable compensation.
In addition to conveying the land without an appraisal,
Section 5 waives the typical environmental and cultural review
requirements associated with a land conveyance or exchange.
Waiving the public input and review requirements of the
National Environmental Policy Act and the National Historic
Preservation Act could have significant consequences, including
the transfer of land that includes valuable cultural resources.
The Yerington Paiute tribe--based nine miles from the
site--filed a lawsuit in Yerington Paiute Tribal Court against
Atlantic Richfield and its parent company alleging intentional
obfuscation of contamination at the site, including substances
such as arsenic and uranium that may have contaminated
groundwaters. The tribe has expressed concerns with
transferring the land into private ownership and removing
federal oversight. As an attempt to address these concerns,
H.R. 5347 requires the Secretary of the Interior to initiate a
government-to-government consultation with any Indian Tribes
impacted by the conveyance within 30 days of enactment. The
time it will take to complete meaningful consultation is
unclear, so Indian, Insular, and Alaska Native Affairs
Subcommittee Ranking Member Gallego offered an amendment to
ensure consultation was completed prior to the execution of any
other provisions of the bill. The majority voted down this
safeguard for impacted tribal governments on a party line vote.
Lastly, the legislation orders Atlantic Richfield to
perform all actions deemed necessary by Nevada's Division of
Environmental Protection to safeguard human health and the
environment from hazardous substances that may have been
stored, released, or disposed of on the land being conveyed.
However, without a bonding requirement or a reversionary
interest, there is no guarantee Atlantic Richfield--a private
company that could go bankrupt or fall victim to other
unforeseen circumstances--will complete the cleanup once the
land becomes private. Ranking Member Grijalva offered an
amendment to require Atlantic Richfield to post a bond prior to
receiving title to the land. This commonsense safeguard was
rejected by the majority.
While we are aware of the State of Nevada's decision to
seek a deferral agreement with the Environmental Protection
Agency and assume all responsibility for overseeing the
remediation of the site, it is unclear why the affected federal
land should be conveyed to private ownership without any
consideration for its value or the rights of impacted tribal
governments.
Raul M. Grijalva,
Ranking Member, Committee on
Natural Resources.