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[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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.

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