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S. HRG. 114–187 

EPA’S GOLD KING MINE DISASTER: EXAMINING 

THE HARMFUL IMPACTS TO INDIAN COUNTRY 

HEARING 

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

SEPTEMBER 16, 2015 

Printed for the use of the Committee on Indian Affairs 

( 

(II) 

COMMITTEE ON INDIAN AFFAIRS 

JOHN BARRASSO, Wyoming, Chairman 

JON TESTER, Montana, Vice Chairman 

JOHN MCCAIN, Arizona 

LISA MURKOWSKI, Alaska 

JOHN HOEVEN, North Dakota 

JAMES LANKFORD, Oklahoma 

STEVE DAINES, Montana 

MIKE CRAPO, Idaho 

JERRY MORAN, Kansas 

MARIA CANTWELL, Washington 

TOM UDALL, New Mexico 

AL FRANKEN, Minnesota 

BRIAN SCHATZ, Hawaii 

HEIDI HEITKAMP, North Dakota 

T. MICHAEL ANDREWS, Majority Staff Director and Chief Counsel 

ANTHONY WALTERS, Minority Staff Director and Chief Counsel 

(III) 

C O N T E N T S 

Page 

Hearing held on September 16, 2015 ..................................................................... 1 

Statement of Senator Barrasso ............................................................................... 1 

Statement of Senator Bennet ................................................................................. 8 

Statement of Senator Daines .................................................................................. 26 

Statement of Senator Gardner ............................................................................... 7 

Statement of Senator Heinrich ............................................................................... 9 

Statement of Senator Heitkamp ............................................................................. 25 

Statement of Senator Hoeven ................................................................................. 23 

Statement of Senator Lankford .............................................................................. 27 

Statement of Senator McCain ................................................................................. 5 

Statement of Senator Tester ................................................................................... 3 

Statement of Senator Udall .................................................................................... 5 

WITNESSES

Begaye, Hon. Russell, President, Navajo Nation .................................................. 29 

Prepared statement .......................................................................................... 31 

Harrison, Gilbert, Rancher and Irrigator, Navajo Nation .................................... 59 

Prepared statement .......................................................................................... 60 

Holtz-Eakin, Douglas President, American Action Forum ................................... 42 

Prepared statement .......................................................................................... 43 

McCarthy, Hon. Gina, Administrator, U.S. Environmental Protection Agency . 11 

Prepared statement .......................................................................................... 12 

Olguin, Hon. James ‘‘Mike’’, Tribal Council Member, Southern Ute Indian 

Tribe ...................................................................................................................... 37 

Prepared statement .......................................................................................... 39 

Weindorf, David C., Associate Dean for Research, College of Agricultural 

Sciences and Natural Resources, Texas Tech University ................................. 47 

Prepared statement .......................................................................................... 50 

APPENDIX

Bates, LoRenzo, Navajo Nation Council Delegate for the Communities of 

Nenahnezad, Newcomb, San Juan, Tiis Tsoh Sikaad, Tse’Daa’Kaan, and 

Upper Fruitland, prepared statement ................................................................ 71 

Freeman, Nancy, Executive Director, Ground Water Awareness League, prepared statement ................................................................................................... 73 

Response to Written Questions Submitted by Hon. James Lankford to 

Hon. Gina McCarthy ............................................................................................ 77 

Yazzie, Hon. Duane ‘‘Chili’’, Chapter President, Navajo Nation, prepared 

statement .............................................................................................................. 76 

(1) 

EPA’S GOLD KING MINE DISASTER: 

EXAMINING THE HARMFUL IMPACTS TO 

INDIAN COUNTRY 

WEDNESDAY, SEPTEMBER 16, 2015 

U.S. SENATE, 

COMMITTEE ON INDIAN AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:15 p.m. in room 

628, Dirksen Senate Office Building, Hon. John Barrasso, 

Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. JOHN BARRASSO, 

U.S. SENATOR FROM WYOMING 

The CHAIRMAN. Good afternoon. I call this hearing to order. 

Today we will examine the short and long-term impacts to tribal 

communities from the tragic spill of 3 million gallons of toxic 

wastewater from the Gold King Mine by Environmental Protection 

Agency personnel and their contractors. This toxic wastewater was 

first unleashed into the Cement Creek, a tributary of the Animas 

River, in Colorado and then flowed downstream to the San Juan 

River. The reach and repercussions of the August 5th disaster are 

substantial. 

This disaster is commanding attention from no less than four 

congressional committees in both the House and the Senate. Just 

this morning, the Senate Environment and Public Works Committee, on which I also serve, held an oversight hearing on the 

matter. 

This Committee hearing will focus on how the EPA’s actions 

have impacted the tribal communities residing in the path of this 

toxic plume unleashed by the EPA. Two of those tribes, the Navajo 

Nation and the Southern Ute Indian Tribe, are represented here 

today. 

The 3 million gallons of high concentrations of metals, including 

cadmium and lead, plus other substances such as arsenic, were released into the waterways crossing these tribal lands. The chemicals in this spill turned the creeks and rivers into rusty, contaminated sludge. Here is some of the water taken from that. There is 

no question that the EPA bears this responsibility. 

Almost a month after the spill, we were told the waterways affected have now returned to their normal color and that conditions 

have returned to pre-spill levels. This does not excuse the EPA’s 

negligence or the environmental impact to tribal communities. 

2 

Whether a private company or a Federal agency itself carelessly 

blew out a mining wall and unleashed 3 million gallons of toxic materials into these waterways, both should be held accountable to 

the communities they negatively impacted. 

In the immediate aftermath of the spill, we know that at least 

two tribal communities were, and are still, severely impacted. Both 

the Southern Ute Indian Tribe and the Navajo Nation were forced 

to issue state of emergency declarations in response to the spill. 

Ranchers and farmers on the Navajo Nation suddenly could not use 

the river water. Livestock could not drink the water. Irrigation and 

canals went dry, as the pictures indicate. 

Navajo President Russell Begaye stated in one press account that 

farmers and ranchers on the reservation have essentially ‘‘written 

off this year’s crops.’’ These losses are occurring in a tribal community where unemployment now stands at roughly 42 percent. 

Many questions arise from this tragic, preventable spill that has 

hurt the peace of mind and violated the trust of these tribal communities. Why wasn’t the EPA prepared to protect tribal communities in case such a blowout occurred? Once the spill happened, 

how did the EPA respond to address the crisis occurring within the 

affected tribal communities? 

Several troubling conclusions are already coming to light. The 

first and most obvious is that a spill of this size and magnitude 

should never be caused by an agency whose sole mission is to protect the environment. Moreover, the EPA was not prepared to respond to the spill. The poor treatment the tribes received by the 

EPA as the crisis played out is simply unconscionable. 

Dr. Mathy Stanislaus, the EPA official in charge of addressing 

the spill, stated before the House Science Committee last week, 

‘‘We believe we have been as transparent as we possibly could.’’ He 

also said. ‘‘I think we have been very transparent.’’ As the tribes 

will testify today, they completely disagree with the EPA’s rosy assessment of their actions. They do not believe they were adequately 

notified after the incident or consulted sufficiently with regard to 

remediation activities. 

In testimony before the House Science Committee hearing held 

last week, Dr. Donald Benn of the Navajo Nation stated that the 

EPA ‘‘downplayed the magnitude’’ of the spill. The tribes also do 

not believe that the EPA was doing sufficient water testing. Of the 

testing that was conducted, the tribes indicated that the EPA was 

not providing them with the water quality test data and sediment 

test data that they requested. 

Dr. Benn further testified that there is now a ‘‘culture of distrust’’ between the tribe and the EPA. The EPA took a series of actions that made the agency appear insensitive to the needs of the 

tribes. For example, the Navajo Nation, at one point, confiscated 

and asked residents not to use EPA-issued water tanks. There are 

pictures of the water tanks. 

Navajo Nation officials believe the tanks were once used for oil 

and the Nation believed at the time that the water inside the tanks 

was unsafe for any use. It was a completely unacceptable response 

by a Federal agency to a community whose water that agency had 

just contaminated. 

3 

In addition, EPA officials attempted to have Navajo Nation and 

Southern Ute tribal members sign a form that appeared to waive 

his or her right to claim future damages from this spill. The question is, why did the EPA officials do this? The tribal members 

would have had to calculate their short and long term monetary 

damages without even knowing the full extent of the costs to them 

and what the costs would be to them and their livelihoods. This is 

unacceptable during a crisis when people’s farms, ranches and 

businesses are under threat and the magnitude of the problem is 

still unknown. 

A major question that remains is how the EPA and which individuals will be held accountable for the spill and its aftermath. The 

EPA’s own documents and internal employee e-mails have revealed 

the agency officials knew about the dangers of a potential blowout 

at the mine. 

For example, the EPA released one document to several media 

organizations in August stating that back in June 2014, the EPA 

knew ‘‘Conditions may exist that could result in a blowout of the 

blockages and cause a release of large volumes of contaminated 

mine waters and sediment from inside the mine, which contain 

concentrated heavy metals.’’ 

Let us be clear. This accident was preventable and individuals 

should be held accountable. The actions of this agency and agency 

personnel in triggering or contributing to the spill and in dealing 

with its aftermath in Indian Country are a case study of agency incompetence and an agency incapable of meeting its sole mission. 

Their actions demonstrate why the EPA cannot be trusted to 

take on the array of regulatory overreaches that they have proposed. It is also a case study in how this agency disregards the 

needs of tribes during a crisis. These shortcomings are troubling 

and will be the subject of scrutiny today. 

Before we receive testimony from our witnesses, I would like to 

ask Vice Chairman Tester if he has an opening statement? 

STATEMENT OF HON. JON TESTER, 

U.S. SENATOR FROM MONTANA 

Senator TESTER. I do. 

Thank you, Mr. Chairman, for holding the hearing today to discuss the harmful impacts of the recent spill at the Gold King Mine 

into the Animas and San Juan Rivers and the impacts on the 

downstream Native communities. 

I understand the Navajo Nation and the Southern Ute Tribes 

utilize these watersheds for irrigation, ranching and in some 

places, for drinking water. Any time disaster threatens a water 

source, it is cause for great concern, even more when it appears the 

Federal agency whose role it is to protect the environment has had 

a hand in causing the incident. 

Clean water is such an important resource, one that is becoming 

scarcer and scarcer by the day across the West. The Federal Government, along with tribal and local partners, must ensure that 

these resources are protected and remain available for current and 

future generations. 

The hearing today is entitled EPA’s Gold King Mine Disaster. 

While I agree we must hold the government offices accountable, the 

4 

EPA alone is not responsible for this disaster. For decades, we have 

allowed mining companies to strip the lands of valuable resources 

with no plans to reclaim the landscape. Yet, we act surprised and 

get angry when predictable outcomes like this one occur. 

The Gold King Mine, and many other like it, will continue to 

have long-lasting impacts to the health and well-being of nearby 

communities. We must find a way to address the problem now and 

into the future, as I am certain this will not be the last time we 

have to have hearings like this one in the Senate. 

Now, Administrator McCarthy, your agency messed up. I do not 

know if it was a lack of oversight over contractors, a lack of funding or what it was. However, what happened at Gold King Mine 

is unacceptable. I am not sure what was worse, the spill itself or 

how the agency responded to it and worked with its tribal partners. 

We all know it was a bad spill, we also know the mine was already leaking and will continue to leak. Our job is to make sure 

it is contained to allow water at clean enough levels. 

You will hear from tribal leaders the impact the spill has had on 

their communities and local economies. Since the spill, when the 

agency had the opportunity to respond and take leadership in the 

situation with local tribes as stakeholders, I do not believe the 

agency stepped up to the plate like it could have. 

A month later, I can tell you the tribes are still dissatisfied not 

just by the initial response, but the lack of ongoing commitment to 

help these communities. While the effects of the spill will be mitigated, distrust of the government that persists in tribal communities certainly was not improved by the EPA. 

We have heard that of all the agencies that have stepped forward 

to address this problem, the BIA has been the most helpful. I can 

tell you that is not something we hear a lot of in this Committee 

but it is a testament to the Bureau of Indian Affairs in that it 

knows how to work with tribes and those relationships. That kind 

of knowledge would have been great for the EPA to lean on. 

I encourage you to do that. There is still some time to work with 

tribes and other Federal partners to address the impacts of this 

spill. 

I imagine my colleagues will take this opportunity to justify 

funding of the EPA. Unfortunately, that is the opposite of what 

needs to be done. After decades of mining activity across the Country, we need the EPA to address these issues. We need the EPA 

out there looking at mines to determine how to reclaim and prevent long term spills and the impacts to the environment. They are 

probably better at it if their funding streams were not constantly 

under threat. 

We also need to ensure that tribes have the resources they need 

to protect their lands for future generations. While this is not their 

best example, to be sure, these are the experts who, when they 

team up with local and tribal communities, will continue to make 

sure communities are safe for people to live long and healthy lives. 

I want to thank Administrator McCarthy for being here today 

and addressing the Committee. Thank you, President Begaye and 

Council Member Olguin, for coming all this way to address the impacts to your communities. 

5 

I look forward to this hearing and the testimony of the participants. 

The CHAIRMAN. Thank you, Senator Tester. 

Do any other members have opening statements? Senator 

McCain. 

STATEMENT OF HON. JOHN MCCAIN, 

U.S. SENATOR FROM ARIZONA 

Senator MCCAIN. Mr. Chairman, thank you. 

I think you have pretty well covered the issue. I would just like 

to point out that in August, I was with Arizona Governor Doug 

Ducey. We met with Navajo Nation President Russell Begaye and 

Navajo Council Speaker LoRenzo Bates in Window Rock, Arizona. 

I can assure my colleagues that the Navajo are suffering deeply 

and dearly because of this spill. An estimated 1,500 farms on the 

Navajo Nation have been impacted by the 3 million gallon release 

of wastewater caused by EPA contractors. An acidic plume of mercury, arsenic and other metals worked its way down the Animas 

River in Colorado and into the San Juan River near Farmington, 

New Mexico. 

Nobody knows for certain yet the total damage to crops, soil, livestock, wildlife and irrigation, and drinking water supplies, critical 

sources of food for the Navajo people and which also serve as economic and cultural centers. 

Mr. Chairman, Doug Holtz-Eakin, a well known economist to 

many of us, will testify later on. In his testimony, he says, ‘‘There 

is no direct precedent to the toxic Animas River spill in Colorado. 

Past EPA estimates indicate the spill could cost between $338 million and $27.7 billion.’’ 

He goes on to say, ‘‘The transparency within the Environmental 

Protection Agency remains elusive. The Gold King case shows inaction, poor planning and misleading statements by top officials. Prevention, planning and mitigation were not adequately executed.’’ 

Mr. Chairman, I could talk a lot more about the impact this has 

had on the Southern Ute Tribe and the Ute Mountain Tribe but 

this is a very serious, serious problem. So far as I know, no one 

yet has been held responsible. To me, that is disgraceful, 43 days 

after this occurrence took place. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator McCain. 

Senator Udall? 

STATEMENT OF HON. TOM UDALL, 

U.S. SENATOR FROM NEW MEXICO 

Senator UDALL. Thank you very much, Chairman Barrasso and 

Vice Chairman Tester for focusing on this very, very important 

issue to the West and to the rest of the Nation. 

In the West, our rivers are our lifelines. This is especially true 

for the Navajo Nation, which depends on limited surface water resources. The San Juan River is crucial and brings water for drinking, irrigation, recreation and has great cultural and religious significance to the Navajo people. 

The Federal Government must own up to this tragedy. I am encouraged that we have the Administrator with us and she has 

6 

taken responsibility for this accident. Those on the Navajo Nation 

and others affected by this spill must be compensated. I will be introducing legislation on that front with Senator Heinrich. 

The Navajo Nation has been on the receiving end of disasters 

like this brought on by the Federal Government and others for far 

too long. Mistakes have been made. We need to do everything in 

our power to make sure they are not made again. 

I recently visited the area to speak with President Begaye, from 

whom we will hear on the second panel, the newly inaugurated 

President of the Navajo Nation; Speaker LoRenzo Bates; Attorney 

General Branch; Gilbert Harrison; and others like Mr. Chili Yazzi 

of Shiprock who I see here today. 

I heard their concerns, I saw the terrible impact the spill was 

having and I saw firsthand that farming for Navajo people is not 

only critically important to food production but it also impacts the 

traditional teachings of young people who are finding their identity 

through agriculture. It is easy for Washington to expect things to 

return to normal in due time, but it is clear this disaster will continue to affect the Navajo people for a very long time. 

How did this happen? How did we get to this point? Sad to say, 

the Gold King abandoned mine is only one of several abandoned 

mines which are leaching pollutants into the Animas River. There 

are thousands, by some estimates, on a nationwide basis from 

160,000 to 500,000 of these abandoned mines which are hurting 

and threatening waterways throughout the Rocky Mountain Range 

and the rest of the Country. 

When we talk about public lands in the West, this is the legacy 

of the 1872 mining law, an ancient law which encouraged exploration for hard rock minerals but did nothing to compensate the 

public for the extraction of valuable minerals. 

On top of that, it did nothing to require mines to clean up after 

they finished. That is the legacy of what we are seeing here today. 

As a result there are thousands of abandoned mines on public land, 

contaminated land, polluted streams and the taxpayers are having 

to pay for the cleanup. 

I believe in the principle of polluter pays. Other, more recent 

laws have enshrined this principle, polluter pays, but we are stuck 

with the 1872 mining law which requires none of this. That is what 

the big mining companies are doing, refusing reform and refusing 

to pay. 

Some of the people who have looked at this area say the 1872 

mining law and its supervision of mining is some of the most lax 

public oversight of any industry. We cannot continue that way. 

I would hearken back to before I got into the House. Some of the 

Senators on this panel were probably there in the House or the 

Senate. Newt Gingrich saw the ripping off of the taxpayers and 

passed a bipartisan bill through the House of Representatives reforming the 1872 mining law. It had a 300 vote margin. 

This can be done if we put our heads together and work with 

each other. I am very encouraged that we have a bipartisan effort 

here on the Committee. I look forward to working with our Colorado Senators who were impacted and then the flow came into New 

Mexico. 

Thank you very much, Mr. Chairman, again for focusing on this. 

7 

The CHAIRMAN. Thank you, Senator Udall. 

We will hear from both of the Colorado Senators starting with 

Senator Gardner. 

STATEMENT OF HON. CORY GARDNER, 

U.S. SENATOR FROM COLORADO 

Senator GARDNER. Thank you, Mr. Chairman. Thank you for 

holding this hearing today. 

Thank you to Vice Chairman Tester for participating and making 

this happen today as well. 

Administrator McCarthy, thank you for being here. 

I want to reiterate the comments made by my colleague from 

New Mexico about the impacts of water on our western States. 

If you go into the capitol of Colorado in the rotunda, there is a 

mural painted on the wall. The beginning of the mural states something like this, ‘‘Here is a land where history is written in water.’’ 

Those words are two or three stories below one of the most iconic 

legacies of mining in Colorado. That is Colorado’s golden dome of 

our State capitol. 

This morning we talked about the impact it has had. Mike 

Olguin, a tribal council member from the Southern Ute Tribe, is 

here today to talk about the impact the spill had on the Southern 

Ute Tribe. We talked about the response of the EPA to the spill. 

We have questions that have to be answered. I hope not only 

your testimony this morning and your testimony this afternoon but 

the ongoing investigations will provide greater insight into what 

exactly happened. 

I will share with you what I shared this morning. In the days 

and hours after the spill occurred, response came from the State 

of Colorado. We learned about the EPA spill not from the EPA but 

from the Durango Herald. 

In our attempts to contact you and the office, we were told that 

you were unavailable. After pushing back, we were advised we 

could speak to the regional director and that phone call occurred 

several hours after that. I think you and I spoke sometime as late 

as August 11 for the first time. 

In the days after this event occurred, the community of Durango, 

the community of southwestern Colorado, and the tribes were left 

with a lot of questions. In fact, four days after the spill occurred, 

Senator Bennet and I were at a community meeting in Durango 

where the results of testing and water samples were displayed on 

a projector in front of the community talking about the levels of 

contaminants in the water. 

Yet, there was no explanation at all whatsoever was given as to 

what those levels meant. Was it unhealthy? Was it healthy? Was 

it dangerous? Was it not dangerous? We were told at that conference call that we would be provided with an analysis of those 

numbers. 

Later on in the day when another briefing occurred, there was 

no analysis. Days went by before there were any answers provided. 

Long after the flash of the television cameras go away in southwestern Colorado, we will be dealing with this and the questions. 

We have to find answers to things like where was the EPA during the initial notification and closure of the river? Did the agency 

8 

follow the national contingency plan for notification and implementation of the disaster? Was there anyone within the EPA crisis 

management team with experience for a spill of this nature dispatched to the area or made aware of the spill immediately? These 

are just a few of the questions we will discuss. 

As we will hear in Councilmember Olguin’s testimony, in the 

first few days following the spill, it was largely State, local and 

tribal officials responding. Not until August 10th did the EPA establish a unified command center in Durango. Along with the confusion over EPA’s lack of notification, frustration began regarding 

the need for timely release of simple, straightforward interpretation of water quality monitoring data from the EPA. 

The long term questions remain. What happens when you disturb the river? In conversations from Silverton to Durango, hotel 

rooms were canceled and bookings were canceled. 

In fact, even the president of the Ft. Lewis College talked about 

the fact that parents from around the Country had called their 

school to make sure it was okay for their child to go back to school. 

Yet, days later, we still did not have answers. 

I appreciate the hearing, I appreciate the answers as we work on 

water treatment and the need for a water treatment facility; as we 

work on the need, not just to talk about Good Samaritan legislation, not just to introduce Good Samaritan legislation, but to actually pass it in a bipartisan fashion. 

I commend the Senators from New Mexico and my colleague, 

Senator Bennet from Colorado, on the need to not just talk about 

it and introduce it, but to actually pass it to law and on the President’s desk, that we can begin to do good to address the 23,000 

mines in Colorado alone. 

I thank you for your time and the opportunity to speak today. 

The CHAIRMAN. Thank you, Senator Gardner. 

Senator BENNET. 

STATEMENT OF HON. MICHAEL F. BENNET, 

U.S. SENATOR FROM COLORADO 

Senator BENNET. Thank you, Mr. Chairman. Thank you and Senator Tester for including my colleague from Colorado and myself. 

It is a privilege to be here with my colleague from New Mexico as 

well. I wish it were under other circumstances but it is not. 

The blowout at the Gold King Mine was a disaster that affected 

many communities in Colorado and New Mexico. Although the EPA 

was working to try to evaluate how to clean up the mine, there is 

no denying that the EPA caused this spill. That is entirely unacceptable. 

It is also clear, as my colleagues from Colorado and New Mexico 

said, the agency was slow to communicate with local governments, 

did not obtain water quality results or bring water to farmers who 

needed it much more quickly than it was delivered. 

Senator Gardner and I traveled together to Durango four days 

after the blowout, the river was still bright orange and closed to 

the public. As said here today about New Mexico and Colorado, the 

Animas River really is the lifeblood of southwestern Colorado and 

Durango. 

9 

Rafting companies have lost business, farmers could not water 

crops and moms are still keeping their kids out of the river. These 

families deserve to have the full attention and dedicated resources 

of the Administration committed to this cleanup. 

In the week after the spill, we spoke with Administrator McCarthy and wrote to the EPA and the President. We appreciate that 

the Administrator listened to our call and came to Colorado to view 

the area and address the community. 

Following a crisis like this, it is important to make sure we hold 

people and agencies accountable for any egregious mistakes or negligence committed in the days and hours after the spill. As our 

communities recover, it is also critical, as my colleagues from New 

Mexico and Colorado said, we need to look at the bigger picture. 

Let us identify exactly what went wrong and make sure it does not 

happen again. 

We also need to put this in context. The blowout released 3 million gallons of acid mud drainage. The same amount of polluted 

water was already being released from the Gold King Mine around 

every week. The four mines near it release more than 300 million 

gallons of acid mine drainage into the river every year. 

This has been going on for more than 130 years. In 1902, the 

water quality was so bad that Durango permanently switched to 

the Florida River for its main drinking supply. That decision by our 

forbearers protected the town’s drinking water from the most recent disaster. 

There are more than 23,000 abandoned mines in Colorado, including 400 in the San Juan Mountains alone. We need solutions 

to address the acid mine drainage coming from all these old abandoned mines. 

We need to pass Good Samaritan legislation, as Senator Gardner 

said. I think we also need to address the 1872 Mining Act. 

In the aftermath of the spill, the Southern Ute Tribe acted quickly to notify other tribes and local governments, began water sampling of its own and provided water for livestock. The tribal leadership closely collaborated with local governments, sister tribes, the 

EPA and the State. 

In this crisis, they demonstrated their expertise, their professionalism and their leadership. Mr. Mike Olguin was an integral 

part of that effort. We are lucky that he will be on the second panel 

today. He has served the tribe for 37 years and has a vast source 

of knowledge for all of us. 

I just wanted to come to this hearing to be able to say we are 

delighted he is able to join the Senate today and share his experiences during this disaster. 

Thank you again, Mr. Chairman, for allowing me this time. 

The CHAIRMAN. Thank you very much, Senator Bennet. 

Senator Heinrich. 

STATEMENT OF HON. MARTIN HEINRICH, 

U.S. SENATOR FROM NEW MEXICO 

Senator HEINRICH. Thank you, Chairman Barrasso. 

I want to thank you and the Ranking Member for holding what 

I think is a very important hearing today. I want to thank you for 

allowing me to join you on the dais for this hearing. 

10 

I also want to recognize the incredible work of Senators Gardner 

and Bennet and my senior Senator, Tom Udall, as well as Congressman Ben Ray Lujan, in focusing on this issue on a number 

of policy fronts. 

You all heard about the plume last month. It was something to 

see. It is not normal to look at a trout stream and see it look like 

the color of Tang. That is exactly what we all saw. 

I want to share the fact that basically I share the anger and frustration over this incident. When I toured the affected area following the spill and had a chance to visit with President Begaye 

of the Navajo Nation, who I am glad we will hear from this afternoon, as he can attest, the Navajo Nation did not receive timely notification from the EPA that the spill had occurred. That was something I think was true of a number of other government entities 

and agencies as well. 

Because water intake from the San Juan River had to cease, 

water had to be delivered to homes, for agriculture and livestock 

purposes. Unfortunately, problems related to water delivery caused 

further concern to farmers and ranchers. Mr. Gilbert Harrison, a 

fellow New Mexican, is here today to tell us more specifically how 

the spill affected him and his fellow farmers and ranchers. 

I demanded that the EPA act with urgency to protect our health 

and safety and to repair the damage inflicted on this watershed. 

That should be our first line of business in this. 

Last month’s spill was not the first major spill to affect the Navajo Nation. If we know our history, in 1979, a breached dam at the 

uranium mill tailings pond disposal pond near Church Rock actually sent more than 1,000 tons of solid radioactive waste and 93 

million gallons of acid liquid waste into the Rio Puerco. 

We cannot let history repeat itself over and over and over again. 

We must take action to address the hundreds of thousands of other 

similarly contaminated mines to the Gold King that litter the West 

today that are leaking toxins into our watersheds. 

I shared a couple of maps this morning at the Environment and 

Public Works hearing. If you look at northern New Mexico and 

southwest Colorado, it is literally covered with thousands of 

unreclaimed or abandoned mines. 

That means that developing a comprehensive approach to mine 

reform, which should include the establishment of a hard rock reclamation fund funded by a fair royalty on public minerals, as well 

as Good Samaritan authority to allow third parties to clean up 

mines that they had no role in creating, and I would say a comprehensive survey of abandoned mines and a plan to clean them up 

should all be on our menu. 

For far too long, Indian Country has been left to fend for itself 

in dealing with the impacts of mining. In my State, too many Native communities, including many on the Navajo Nation, live 

among abandoned uranium mining and milling sites that still contaminate their water, air and food today. 

Hard rock mines provided the raw materials to build this Country. During the Cold War, uranium from New Mexico was transformed into nuclear weapons to defend our Nation. We owe it to 

these communities to clean up these sites once and for all. We 

should not wait for disasters like this one to strike again. 

11 

Thank you again for holding this hearing. I look forward to hearing from the witnesses today. 

The CHAIRMAN. Thank you, Senator Heinrich, for joining us 

today. 

We have two panels. On the first panel, we will hear from Administrator McCarthy. Administrator McCarthy, thank you for 

being here. We will respect your timeline. I know you need to leave 

at 3:30 p.m., so please proceed. 

STATEMENT OF HON. GINA MCCARTHY, ADMINISTRATOR, U.S. 

ENVIRONMENTAL PROTECTION AGENCY 

Ms. MCCARTHY. Good afternoon Chairman Barrasso, Vice Chairman Tester and members of the Committee. 

I am Gina McCarthy, Administrator for the U.S. Environmental 

Protection Agency. I want to thank you for the opportunity to appear today to discuss the August 5 Gold King Mine release and 

subsequent EPA response. 

This was a tragic and unfortunate incident, and the EPA has 

taken responsibility to ensure that it is cleaned up appropriately. 

The EPA’s core mission, as we have noted, is to ensure a clean environment and protect public health. We are dedicated to continuing to do our job to protect the environment and to hold ourselves accountable at to the same high standard we demand from 

others. 

The EPA was at the Gold King Mine on August 5th conducting 

an investigation to assess mine conditions and ongoing water discharges, dewater the mine pool, and assess the feasibility of further 

mine remediation. While excavating above a mine opening, the 

lower portion of the bedrock crumbled and approximately 3 million 

gallons of pressurized water discharged from the mine into Cement 

Creek, a tributary of the Animas River. 

EPA and Colorado officials informed downstream EPA and Colorado officials informed downstream jurisdictions in Colorado within 

hours of the release before the plume reached drinking water intakes and irrigation diversions, and notifications to other downstream jurisdictions continued the following day, allowing for those 

intakes to be closed prior to the plume’s arrival. 

In the aftermath of the release, we initiated an internal review 

of the incident and released an Internal Review Summary Report 

on August, 26, which includes an assessment of the events and potential factors contributing to the Gold King Mine incident. The report provides observations, conclusions, and recommendations that 

regions really must consider when conducting ongoing and planned 

site assessments, investigations, and construction or removal 

projects at similar types of sites across the Country. The EPA will 

implement all the recommendations from the report and has 

shared its findings with external reviewers. 

In addition to the internal review, the U.S. Department of the Interior is leading an independent assessment of the factors that led 

to the Gold King Mine incident. The goal of DOI’s independent review is to provide the EPA with an analysis of the incident that 

took place at Gold King Mine, including the contributing causes. 

Both internal and external reviews will help inform the EPA for 

12 

ongoing and planned site assessments, investigations, and construction or removal projects. 

One of our foremost priorities is to keep the public informed 

about the impacts from the Gold King Mine release and our response activities. The EPA has closely coordinated with our Federal 

partners and with officials in Colorado, New Mexico, Utah, the 

Southern Ute and Ute Mountain Ute tribes and the Navajo Nation 

to keep them apprised of water and sediment sampling results, 

which are routinely posted on our website. These results indicate 

that water and sediment have returned to pre-event conditions and 

supported local and State decision-makers as they made the decision to lift water restrictions along the Animas and San Juan Rivers. 

Finally, I want to clarify that the EPA was working with the 

State of Colorado to take action at the Gold King Mine to address 

both the potential for a catastrophic release and the ongoing adverse water quality impacts caused by the significant mine discharges into the Upper Animas Watershed. 

Based upon 2009–2014 flow data, approximately 330 million gallons of contaminated water was being discharged from mines in the 

watershed each year to Cement Creek and the Animas River, 100 

times more than the estimated release from the Gold King Mine on 

August 5th. The EPA was and continues to work with the State of 

Colorado and the Animas River Stakeholder Group to address 

these significant discharges from mines in the Upper Animas Watershed that are impacting these waterways. 

I think it is important to note that all across the Country, our 

Superfund program has successfully cleaned up more than 1,150 

hazardous waste sites and successfully responded to or provided 

oversight for thousands of removal actions to protect human health 

and the environment. That reflects our longstanding commitment 

to protect human health and the environment. All of the affected 

residents of Colorado and New Mexico and the tribes can be assured that the EPA has and will continue to take responsibility to 

help ensure that the Gold King Mine release is cleaned up. 

Thank you, Mr. Chairman. That concludes my statement. I will 

be happy to answer any questions that you or the Committee members may have. 

[The prepared statement of Ms. McCarthy follows:] 

PREPARED STATEMENT OF HON. GINA MCCARTHY, ADMINISTRATOR, U.S. 

ENVIRONMENTAL PROTECTION AGENCY

Good afternoon Chairman Barrasso, Vice Chairman Tester and Members of the 

Committee. I am Gina McCarthy, Administrator for the U.S. Environmental Protection Agency. Thank you for the opportunity to appear today to discuss the August 

5 Gold King Mine release and subsequent EPA response. 

This was a tragic and unfortunate incident, and the EPA has taken responsibility 

to ensure that it is cleaned up appropriately. The EPA’s core mission is to ensure 

a clean environment and protect public health, and we are dedicated to continuing 

to do our job to protect the environment and to hold ourselves to the same high 

standard we demand from others. 

The EPA was at the Gold King Mine on August 5 conducting an investigation to 

assess mine conditions and ongoing water discharges, dewater the mine pool, and 

assess the feasibility of further mine remediation. While excavating above a mine 

opening, the lower portion of the bedrock crumbled and approximately three million 

gallons of pressurized water discharged from the mine into Cement Creek, a tributary of the Animas River. EPA and Colorado officials informed downstream jurisdicVerDate Mar 15 2010 09:39 Mar 01, 2016 Jkt 098848 PO 00000 Frm 00016 Fmt 6633 Sfmt 6621 S:\DOCS\98848.TXT JACK
13 

tions in Colorado within hours of the release before the plume reached drinking 

water intakes and irrigation diversions, and notifications to other downstream jurisdictions continued the following day, allowing for those intakes to be closed prior 

to the plume’s arrival. 

In the aftermath of the release, we initiated an internal review of the incident 

and released an Internal Review Summary Report on August, 26, which includes 

an assessment of the events and potential factors contributing to the Gold King 

Mine incident. The report provides observations, conclusions, and recommendations 

that regions should consider applying when conducting ongoing and planned site assessments, investigations, and construction or removal projects at similar types of 

sites across the country. The EPA will implement all the recommendations from the 

report and has shared its findings with external reviewers. 

In addition to the internal review, the U.S. Department of the Interior is leading 

an independent assessment of the factors that led to the Gold King Mine incident. 

The goal of DOI’s independent review is to provide the EPA with an analysis of the 

incident that took place at Gold King Mine, including the contributing causes. Both 

internal and external reviews will help inform the EPA for ongoing and planned site 

assessments, investigations, and construction or removal projects. 

One of our foremost priorities is to keep the public informed about the impacts 

from the Gold King Mine release and our response activities. The EPA has closely 

coordinated with our federal partners and with officials in Colorado, New Mexico, 

Utah, the Southern Ute and Ute Mountain Ute tribes and the Navajo Nation to 

keep them apprised of water and sediment sampling results, which are routinely 

posted on our website. These results indicate that water and sediment have returned to pre-event conditions and supported local and state decision-makers as 

they made the decision to lift water restrictions along the Animas and San Juan 

Rivers on August 14 and August 15. 

Finally, I want to clarify that the EPA was working with the state of Colorado 

to take action at the Gold King Mine to address both the potential for a catastrophic 

release and the ongoing adverse water quality impacts caused by the significant 

mine discharges into the Upper Animas Watershed. 

Based upon 2009–2014 flow data, approximately 330 million gallons of contaminated water was being discharged from mines in the Watershed each year to Cement Creek and the Animas River—100 times more than the estimated release from 

the Gold King Mine on August 5. 

The EPA was and continues to work with the State of Colorado and the Animas 

River Stakeholder Group to address these significant discharges from mines in the 

Upper Animas Watershed that are impacting these waterways. 

I think it is important to note, that all across the country, our Superfund program 

has successfully cleaned up more than 1,150 hazardous waste sites and successfully 

responded to or provided oversight for thousands of removal actions to protect 

human health and the environment. That reflects our long-standing commitment to 

protect human health and the environment that we will continue to pursue and continue to support the Administration’s request for an Abandoned Mine Lands fee to 

help cover the costs of cleanups at these sites. 

All of the affected residents of Colorado and New Mexico and members of the 

Southern Ute, Ute Mountain Ute, and Navajo Nation Tribes can be assured that 

the EPA has and will continue to take responsibility to help ensure that the Gold 

King Mine release is cleaned up. 

Thank you Mr. Chairman that concludes my statement. I will be happy to answer 

any questions that you or the Committee members may have. 

The CHAIRMAN. Thank you. I will begin. 

On August 24, 2015, an EPA internal review of the blowout report made several recommendations. One recommendation was the 

EPA should develop guidance outlining the steps that should be 

taken to minimize the risk of future blowouts. 

Could you tell us how far along the EPA is in identifying contingency plans in the event of future blowouts at the Gold King Mine 

or other mines? 

Ms. MCCARTHY. What I decided to do was put a hiatus on these 

types of actions until we had the complete information from DOI’s 

independent review of the situation. Until that is done, anything 

we do would not be complete enough and would not assure me that 

the same situation would not arise again. 

14 

We have two responsibilities. We need to clean this up and we 

need to make sure it never happens again. 

The CHAIRMAN. In terms of the cleanup, during the EPA briefing 

for Committee staff last week, the agency officials were asked why 

the resources like water and hay for livestock and additional environmental testing were being pulled back from the tribes. 

The agency officials told the Committee staff that the resource 

decision was based on the Center for Disease Control’s recommendation that there would be no threat of health impacts of 

exposure. 

According to EPA’s own Children Environmental Health Facts 

website, it says ‘‘Currently no level of lead in the blood can be identified as safe for children. I believe, as a doctor, that we need to 

be concerned about that.’’ 

The agency releases 3 million gallons of toxic pollutants, heavy 

metals, including lead, into waterways which cross these lands of 

the tribes. Can you tell this Committee and the tribes represented 

here today that you know there will not be any health impacts to 

the tribal communities and their children from this poisonous spill? 

At this point, the resources have been pulled back because they say 

everything is safe. 

Ms. MCCARTHY. Let me answer your question and clarify just a 

little bit. 

Because of the quick action of President Begaye, there was no 

input of this water into drinking water supplies. The challenge I 

think we are working through with the president is to really look 

at how that it is returned to pre-event conditions, the quality of the 

water now according to EPA samples and the tribe has split sampled and taken their own, that is returned to pre-event conditions. 

This water was never a pristine water supply because of the discharges from the Animas. 

The qualification I want to bring to this, Mr. Chairman, is I want 

it to be very clear that we are continuing to provide hay. The BIA 

and EPA have continued all along to provide water for livestock 

and irrigation purposes. The BIA is going to continue. 

We have ongoing conversations with the tribes so I do not want 

anyone in this Committee to think that we are going to arbitrarily 

shut off the support that we owe to this tribe but we are entering 

a more discrete and detailed discussion about what would make the 

tribe basically more comfortable in terms of the uses of this water 

and what else we need to do not just beyond that but to address 

the cultural and other challenges the spill has thrust upon the 

Navajo. 

The CHAIRMAN. Since responsibility for the spill lies with the 

EPA, the agency I believe has to go above and beyond the standard 

response to address the needs of the communities impacted, specifically the tribal communities. 

Private entities that pollute are held to a very strict standard by 

the EPA and are routinely investigated by the EPA and the Justice 

Department. The question today is has anyone been fired at the 

EPA as a result of this spill, has anyone been disciplined, suspended, reassigned, sanctioned in any way as a result of the spill? 

Has anyone been held accountable for the actions that resulted in 

this spill? 

15 

Ms. MCCARTHY. If you look at what led to the actions EPA took, 

you would see that both EPA and the Colorado Division of Reclamation, Mining and Safety worked together to develop this work 

plan that was carried out. 

Whether or not we took every precaution and made sound judgments is something I am awaiting from the DOI independent look 

as opposed to making judgment based solely on our internal review. I think everyone would agree that it is good to get independent eyes on this. If we find inaccuracies, improprieties or bad 

judgment, we will take action. 

The CHAIRMAN. At this point, no one has been held accountable 

for the actions. You are awaiting the report? 

Ms. MCCARTHY. The agency itself has been held accountable. We 

are responding as robustly as we can to meet those responsibilities. 

The CHAIRMAN. There are at least three ongoing reviews or investigations into the spill, the first being an internal review conducted by the EPA. The second is a technical review to be conducted by the Department of Interior to which you referred. 

The technical review is limited to looking at causes and recommendations for solutions, not really to investigate negligence or 

criminal wrong-doing by the EPA. 

The third review is the one requested by Congress to the EPA’s 

Inspector General, not by you but by Congress, to look at actual 

wrong-doing and negligence. 

Is it safe to say without Congress, not one independent investigation of negligence by the EPA would be providing an impartial review? 

Ms. MCCARTHY. No, sir. This accident, this spill was large 

enough and damaging enough to the communities around it and 

downstream, as well as EPA’s reputation, that no matter what happened, we would be looking at this spill and taking appropriate action. 

The CHAIRMAN. Thank you. Senator Udall? 

Senator UDALL. Thank you very much, Mr. Chairman. 

Administrator McCarthy, thank you so much. I know you testified this morning extensively in your authorizing committee, the 

Environment and Public Works Committee. You also agreed to 

come here and testify. 

As you and I talked, the Native American community across the 

Country uses this Committee as a great oversight entity. We very 

much appreciate having you here today. 

I understand the EPA is processing claims for damages under 

the Federal Tort Claims Act. There are advantages to this in that 

the U.S. Judgment Fund does not require further appropriation to 

compensate people. 

However, under normal circumstances, Federal agencies try to 

limit their tort liability. That is the natural position of any defending party in the tort claims process. I do not believe that is appropriate in this kind of situation and that is why we are introducing 

legislation to separately guide the compensation process with a 

dedicated office at EPA. 

Do I have your commitment that you will work diligently with 

the Navajo and all other victims of this spill so that all legitimate 

16 

damage claims are handled quickly and appropriately without the 

agency trying to avoid responsibility? 

Ms. MCCARTHY. You do, Senator, yes. 

Senator UDALL. Thank you very much. 

I would like to get your commitment here at the hearing that 

EPA is dedicated to prioritizing funding and resources for long 

term monitoring of the river and for compensation for those impacted. 

Ms. MCCARTHY. That is our responsibility. We will meet that. 

Senator UDALL. Thank you. 

I understand from the crisis and from other past incidents, there 

has not always been a tremendous amount of trust between the 

EPA and the Navajo Nation, although I know you have a good 

working relationship. 

The Navajo Nation has one of the most sophisticated EPAs of 

any tribe in the Country and you work together. Are you will to 

ensure a third party verification and validation on issues that may 

require analysis and data? 

Ms. MCCARTHY. We have already begun those conversations. You 

have my word that we will continue to work with the president as 

well as Dr. Benn. I have great respect for both the leadership of 

the tribe and for the technical expertise. We will work together to 

resolve these issues. 

Senator UDALL. Thank you. 

The President of the Navajo Nation has requested that EPA designate the Upper Animas District as a Superfund site. I support 

this and believe it should be a priority for funds and remediation. 

Where does the EPA stand on this question? If it was designated 

on the National Priorities List, how would that translate to help for 

the Navajo Nation which is located south of the area? 

Ms. MCCARTHY. We certainly will take that request seriously. In 

fact, Mathy Stanislaus, our Assistant Administrator, was actually 

in Colorado discussing this very issue with Durango and some of 

the surrounding communities. 

It is extremely important. It is something we have been actually 

been soliciting interest in for many years because we think it is the 

only way you are going to get significant Federal funding to support those cleanup efforts. Short of some other congressional action, 

there is simply no way to pass that job off to somebody else. 

Senator UDALL. My understanding is there are recent press reports where all of you at the EPA are trying to organize in the valley some treatment. You talked about the 330 million gallons and 

to get a treatment process where we can restore those streams. 

Is that part of the Superfund or is that just under your responsibilities right now without a listing? 

Ms. MCCARTHY. We are going to continue to work with the State 

of Colorado and all of the folks downstream to look at what we can 

do to address those upstream issues. Part of the challenged we created with the spill was to see through both the cleanup of the spill 

but also to get another level of seriousness about getting at the entire comprehensive Animas Watershed. 

Right now we are developing a long range monitoring plan and 

to do that in concert with all of the surrounding communities who 

will provide input. That is one of the issues we are trying to make 

17 

sure the Navajo feels comfortable weighing in on and they have the 

ability to have a voice in that issue. It is going to be extraordinarily 

important that we get that started soon. 

Senator UDALL. Thank you very much, Madam Administrator, 

for those very forthright answers. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Udall. 

Senator McCain? 

Senator MCCAIN. Thank you, Administrator, for coming before 

the Committee today. 

I understand in response to the Chairman’s question, no one 

from the EPA or the contractor has been fired, is that right? 

Ms. MCCARTHY. That is correct. 

Senator MCCAIN. No one has been fired for taking almost two 

days to notify the Navajo about the disaster? 

Ms. MCCARTHY. I might dispute a little bit how much time was 

taken. The first day we did notify folks and tribes in Colorado. The 

second day we actually did receive notification to everybody else 

downstream. 

Senator MCCAIN. So it took two days to notify the Navajo Nation. 

Has anyone been fired for the Navajos complaint that notification 

and emergency response was not adequate? 

Ms. MCCARTHY. We actually did send a signal through a memo 

that we had to look at our notification process. I am not saying 

that it could not have been and should not have been quicker and 

more comprehensive. We worked with the State on that. We are 

going to update our systems. 

Senator MCCAIN. Your answer is no. 

Has anyone been fired at EPA for complaints that the EPA did 

not quickly and routinely share water quality monitoring data with 

the tribes? 

Ms. MCCARTHY. We believe we have done a good job in providing 

transparency on that data. 

Senator MCCAIN. You believe that but the people who were supposed to be notified do not believe that they were quickly and routinely provided the data on water quality monitor. Nor do they 

agree that the notification and emergency response was adequate, 

nor do they agree that it should have taken two days to notify the 

Navajo about the disaster. In other words, you have done nothing. 

Tell me something, Administrator. If a mining company caused 

an accident like this, may be you can submit for the record an answer of what kind of penalties, fines and enforcement action the 

EPA would levy. I would be interested in that. 

You said in response to a question by the Chairman that the 

agency is responsible? 

Ms. MCCARTHY. Yes, sir. 

Senator MCCAIN. Isn’t the agency composed of people, so when 

the agency is responsible, then people are responsible? 

Ms. MCCARTHY. There is no question that if we find anyone has 

not done their job appropriately, we will. 

Senator MCCAIN. Someone is responsible for the accident that 

happened. An accident happened. A river was polluted and people 

were not notified. 

Ms. MCCARTHY. An accident happened. 

18 

Senator MCCAIN. We all know what happened. Why is it that you 

are saying you do not know that anyone was responsible? Someone 

has to be. 

Ms. MCCARTHY. I am not saying that the acts of the agency did 

not cause the accident but accidents, by their very nature, may not 

have resulted from any negligence whatsoever on the part of anyone. 

Senator MCCAIN. You really believe that the spill could have 

been through no negligence on the part of anyone? 

Ms. MCCARTHY. I believe that we went in there with the State 

of Colorado having fully vetted this work plan with mining experts 

from the area as well as the public. Apparently all of the experts 

agreed this was the next step to take. 

They made a judgment that we can see in our internal review 

that there was not an opportunity or a high pressure situation. 

That judgment obviously was incorrect. Whether or not they did 

due diligence in coming to that conclusion is what the DOI is looking at. 

Senator MCCAIN. That is almost classic. Here we are with a disaster of incredible proportions and you do not think it is best to be 

determined whether somebody is responsible for a decision that 

caused this kind of an incredible disaster and could impact the 

lives of Native Americans for a long period of time. 

Ms. MCCARTHY. Sir, I am not trying to defend anybody but we 

went into an extraordinarily difficult situation at the request of the 

State for the very reason that people were worried about a blowout. 

Did we intend to be the ones to trigger that? Absolutely not. Are 

we going to take responsibility if we did something wrong? We will. 

Senator MCCAIN. There have been other times where things have 

happened where it was not intended to happen. This is really classic on your part, I must say. Someone is responsible for disrupting 

and harming the lives and welfare and someone should be held responsible because it happened. 

Maybe there were the best of intentions, Administrator McCarty, 

but the fact is it happened. So far no one has been held responsible 

except ‘‘the agency.’’ 

I have no more questions. 

The CHAIRMAN. Thank you, Senator McCain. 

Senator Bennet? 

Senator BENNET. Thank you, Mr. Chairman. 

In your answers to Senator McCain, Madam Administrator, you 

talked about how the agency should have been quicker and comprehensive in your communications with the tribes and others. I 

fully agree with that. 

How are we going to make sure, what are the protocols you are 

putting in place to make sure that next time we get it right instead 

of getting it wrong? 

Ms. MCCARTHY. All of our regions are going to be working with 

the States in their notification process so that we update all the 

lists and test it periodically to make sure of all the intakes and 

structures we knew about and took care of so there would not be 

extensive damage. 

I am not suggesting that this was not a disaster because it clearly was from everyone’s perspective but the notifications did go in 

19 

time for us to beat the plume before those intakes would have 

caused damage or brought it into drinking water supplies. 

We are continuing to monitor that. We have done hundreds and 

hundreds of tests collaboratively with all of the States and with the 

tribes to make sure we are keeping on top of this. 

Senator BENNET. My colleague from Colorado raised this as well. 

Sometimes when information is produced but not explained, that 

can be as bad as keeping information hidden. Working on your approach to that I think is also very, very important. 

Ms. MCCARTHY. I think we have talked about that, yes. 

Senator BENNET. We have asked you and the President to find 

resources and try to prioritize funding for a water treatment plant 

in the Upper Animas River. We need that funding and that water 

treatment plant to, in the end, solve the problem of mine drainage 

from the four large mines. Can you tell us where that sits at the 

moment? 

Ms. MCCARTHY. At the moment, we are working on what the 

long term plan should be. We have to sit down with the State of 

Colorado to understand what peoples’ input is right now in terms 

of their inclination on NPL listing as well as what kind of resources can we bring to the table to begin the work. 

We have already created the treatment system but it is not 

where it needs to be to take care of the entire problem just to increase flow that resulted from the spill. We still have huge 

amounts of work to do. 

Senator BENNET. My understanding is that current temporary 

answer is not something that is suitable for the winter months. Is 

that right? 

Ms. MCCARTHY. I will go back and check that. I am not aware 

of that. 

Senator BENNET. If you could, that would be good. 

I hear from colleague from New Mexico on Superfund status. 

That obviously is a very sensitive issue in our State. 

Ms. MCCARTHY. It is. 

Senator BENNET. My hope is that as you work toward a decision 

that you will engage everyone in Colorado on this question. There 

are different points of view as you know. The details of this matter 

a great deal to the people of southwestern Colorado and our State 

as a whole. 

Ms. MCCARTHY. I want you to know that the meeting was at the 

request of those communities. We will continue to explain the situation. Folks will have to work with us to understand what the best 

way is to approach this. 

Senator BENNET. We are prepared to do that. 

Thank you. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Bennet. 

Senator Gardner? 

Senator GARDNER. Thank you, Mr. Chairman. 

Again, thank you, Administrator McCarthy. 

When was the first time after August 5th that you spoke with 

Mr. Begaye? 

Ms. MCCARTHY. When was the first time? 

Senator GARDNER. Yes. 

20 

Ms. MCCARTHY. I believe on August 11th, but I could be wrong. 

Senator GARDNER. When was the first time you spoke with the 

representative of the Southern Ute Tribe? 

Ms. MCCARTHY. August 12th. I am sorry, that was August 11th. 

Senator GARDNER. August 11th. Thank you. 

Did the agency follow the National Contingency Plan for notification and implementation of its response regarding the Gold King 

Mine spill? 

Ms. MCCARTHY. I believe that it did. 

Senator GARDNER. Did the EPA know it was likely feasible the 

waters impounded behind the Gold King Mine would blowout? 

Ms. MCCARTHY. That was one of the reasons we were there, so 

yes. 

Senator GARDNER. What preliminary actions were being taken to 

prevent that? 

Ms. MCCARTHY. The actual action we were going up to do was 

to try to relieve the pressure by removing some of the water behind 

the adit, the blockage in the adit, and then to address through a 

trench an ability to treat the water that was coming out. 

Senator GARDNER. We do not know and that is what the review 

is telling us, whether that was adequate for the safe remediation 

to take place to prevent the blowout in the first place? That is what 

the review will show? 

Ms. MCCARTHY. The review will take a look at the whole thing. 

The internal review already took a look at what factors were considered that made both the State of Colorado and EPA come to the 

conclusion that it was low or no pressure. 

Obviously that was an inaccurate conclusion. There are a lot of 

series of recommendations on how we may look at this differently, 

but I fully expect the DOI will go into a lot more detail and that 

is really where we will see whether they did due diligence and 

acted appropriately or whether they could have or should have 

known better. 

Senator GARDNER. Why did it take so long for the estimate of the 

1 million gallons to move to the 3 million gallons after the blowout? 

Ms. MCCARTHY. Obviously the 1 million gallons was not determined through any mechanical measure. The USGS came in and 

looked at stream gauge data and that is where it went to 3 million 

gallons. Obviously we were wrong and underestimated the original 

spill. Why there was a delay in that, I do not know. 

Senator GARDNER. Was the EPA aware there was a stream gauge 

in place? 

Ms. MCCARTHY. I do not know the answer to that. USGS is a 

partner of ours. They do stream gauges, so we had to know there 

were some in the area. 

Senator GARDNER. There should not have been any doubt as to 

whether it was 1 million or 3 million gallons? 

Ms. MCCARTHY. We were not relying on that to make the first 

estimate. Why, I do not know but I certainly can look into it. 

Senator GARDNER. Is that part of the review as well? 

Ms. MCCARTHY. We will make it part of the review and I will get 

you the information. 

21 

Senator GARDNER. The EPA employees and contractors carrying 

out the work, could you describe the expertise of the employees carrying out the work at the Gold King Mine? 

Ms. MCCARTHY. There was an on-scene coordinator who has 

worked for many years for the agency. He is a mining engineer. He 

was overseeing the contractor. The work plan itself was developed, 

as I said, with the State of Colorado Division of Reclamation, Mining and Safety, as well as our team in Region 8. 

We had that work plan reviewed by the Animas River stakeholder group. We also went to two public hearings with it. 

The work was carried out on-site under the auspices of our onsite coordinator. The State of Colorado Mining Division folks were 

at the site, left a little bit before the spill occurred and it is my 

understanding they were still in the area and helped us with the 

first, initial notifications. 

The work was, again, led by and carried out by our on-scene coordinator in accordance with the work plan that was designed. 

Senator GARDNER. Was there was no cell phone coverage where 

this occurred? Did they have the ability to make contact if there 

was a blowout? 

Ms. MCCARTHY. This came up at the prior hearing and I will 

have to get back to you as to whether or not there was cell phone 

coverage or not. I do know they reached their Colorado colleagues 

who were in the area and they were the ones who went down and 

made some of the first notifications. 

Senator GARDNER. What is the EPA’s legal obligation in current 

policies, guidelines on reporting and release of hazardous substances? 

Ms. MCCARTHY. We would follow the same process as everybody 

else. 

Senator GARDNER. Were those followed? 

Ms. MCCARTHY. We would have to notify. Actually, the State of 

Colorado made two calls that I understand first was to our region 

and to the National Response Center. 

Senator GARDNER. To the best of your knowledge, the EPA followed those guidelines? 

Ms. MCCARTHY. To the best of my knowledge. 

Senator GARDNER. EPA’s legal obligations and current policies 

are what when it comes to contacting tribal, State and local governing agencies? What are those policies? 

Ms. MCCARTHY. That we should do it as quickly as possible. 

Senator GARDNER. In this instance, you believe it was done as 

quickly as possible? 

Ms. MCCARTHY. No, I do not. I think it could have been done 

more quickly which is why we are reviewing all of that. 

Senator GARDNER. Who was responsible for that lack of timeliness? 

Ms. MCCARTHY. I did not want to misstate this. The regional 

contingency plan is what dictates how we notify downstream. In 

the State, we work in collaboration with the State to do that. 

I think the difficulty or what we need to improve on here is that 

I think they looked at the State of Colorado first and did not go 

downstream until a bit later. There was no reason that I can think 

22 

of that we would not have realized that it was a much larger issue 

than the State of Colorado. 

Senator GARDNER. Who was the individual who made that decision then, to not go any further? 

Ms. MCCARTHY. I do not know whether that decision was made 

or we failed to make the decision to go further. 

Senator GARDNER. Mr. Chairman, my time has expired. I have 

a lot further questions but I will have plenty of opportunity. 

The CHAIRMAN. Thank you, Senator Gardner. 

Senator Heinrich? 

Senator HEINRICH. Actually, I want to follow up a bit on this line 

of questioning regarding further downstream. 

If I understand your testimony correctly, there was a heavy 

equipment contractor on-site who was a contractor but there was 

also EPA supervision at the site as well? 

Ms. MCCARTHY. Yes. 

Senator HEINRICH. Did that arrangement in any way contribute 

to or complicate the response in this case? If you would, also talk 

a little bit about whether your finding that the fact that this was 

at the convergence of effectively three EPA regions and how that 

may have complicated the response. We found that to be cumbersome and confusing in the early hours. 

Also, can you tell us what you have learned about how to deal 

with an issue that may quickly migrate from one EPA region to 

multiple EPA regions? 

Ms. MCCARTHY. Let me answer your first question. I feel it 

would be inappropriate for me to give a judgment on your question 

about what contributed at the site because clearly that is something I would not have an independent understanding of and why 

we want DOI to do a job with the Army Corps and others to independently look at this. 

Our challenge is to wait until October so that then we can take 

action beyond that. In the meantime, I have put in place a hiatus 

on any similar activities so that I will learn the lessons when they 

come and we will take advantage of those. I will take action, if 

warranted, in any disciplinary action as well. We will see where it 

comes out and act appropriately. 

In terms of the notification, one of the things we did as well was 

to tell people to stop and take a look at what happened and revise 

their contingency plan accordingly. I have no doubt that there are 

difficulties for EPA and others when we shift from tribal and State 

lands. I think that may have added to the confusion. I cannot say 

whether it did but I do know it should not have. 

We do regional plans, we do area plans and those should have 

kicked in. Part of the challenge is to stop worrying about redundancy and make sure that if people get five calls, it is better than 

getting none. I think there was some of that gap that played into 

this that should never happen again. 

Senator HEINRICH. I would urge some level of specificity on that 

issue as we move forward. If you could get that for us, it would be 

very helpful. You have one region in Colorado. As this migrates to 

New Mexico, you have another region. As it enters the Navajo Nation, you have a third region. 

23 

I think that made things very cumbersome in the early hours to 

figure out who, municipal, tribal and other officials, including our 

office, should be communicating with. Unfortunately, until we find 

a mechanism for cleaning this stuff up and actually get serious 

about issues like 1872 Mining Act reform, I can pretty much guarantee that someday this is going to happen again because it has 

happened in the past. The 1979 spill was even worse. 

Ms. MCCARTHY. We should not rely on the incredibly quick response we have received from every one of the States and the 

tribes to make sure that this did not go anywhere. I just cannot 

thank them enough. I do not expect them to have patience about 

this at all and neither do I. 

Senator HEINRICH. Shifting gears a bit to the issue of Superfund 

and the National Priorities List, one of the issues that has contributed to the sensitivity Senator Bennet mentioned and what I would 

call a bit of sense of Superfund stigma is the idea that a Superfund 

designation would have a negative impact on tourism. 

I can say the experience in New Mexico with Questa has not necessarily lined up with that. We have seen other places like the 

jackpile mine in Moab, Utah where that did not have a negative 

impact on the brand of outdoor recreation that is obviously important in southwestern Colorado as much as it is for the region and 

in New Mexico and Arizona as well. 

Is that something you are having conversations with the local 

communities about? I would urge you, as Senator Bennet said, to 

talk to the local communities. I would say not just everyone in Colorado but everyone in the watershed. 

If we do a Superfund designation in this case and move forward 

putting this area on the National Priorities List, which I believe is 

warranted, the reality is, as we have seen from the testimony 

today, the impacts of action or inaction, in this case, are not in a 

single State but in multiple States and tribal nations. 

Ms. MCCARTHY. I appreciate that. Thank you. 

The CHAIRMAN. Thank you, Senator Heinrich. 

Senator Hoeven? 

STATEMENT OF HON. JOHN HOEVEN, 

U.S. SENATOR FROM NORTH DAKOTA 

Senator HOEVEN. Thank you, Mr. Chairman. 

Administrator, I am concerned about the issue of accountability 

as well. Can you tell us at this point who at the agency is responsible for the spill? 

Ms. MCCARTHY. The Environmental Protection Agency is what I 

know, sir. We are going to wait for the Department of the Interior 

because that is an independent review that I think has the most 

value about understanding whether or not people did what they 

were supposed to do. 

If you read our internal review, it is very clear, as are the documents going onto that site and the work plan, that the biggest concern was the blowout. People anticipated that blowout was inevitable which is why we were there trying to find a way to relieve 

that pressure. 

Senator HOEVEN. This long after the spill, you are still trying to 

determine who is accountable for the spill? 

24 

Ms. MCCARTHY. We certainly know who was at the site and I 

certainly what accountability means because EPA is taking the 

steps we should take to be accountable. 

Senator HOEVEN. What actions have you taken to make sure that 

a similar spill or accident does not occur in the future? If you do 

not know who is accountable, how can you take steps for the future? 

Ms. MCCARTHY. That is the reason for the Department of the Interior review, to tell us what went wrong. I have made sure that 

there is no ongoing work that could be subject to the same kinds 

of problems. 

Senator HOEVEN. What perspective does this incident give you 

and the agency in terms of how you enforce the regulations that 

you have relative to other companies, whether we are talking about 

WOTUS, CO2 rules, ozone, methane, all these rules that you are 

bringing out and the companies you regulate, what perspective 

does this incident give you and the agency in terms of how you deal 

with those companies? 

Ms. MCCARTHY. Senator, we are holding ourselves to the same 

standards to which we hold the private sector which is that when 

you are doing remediation efforts like this, which we know are difficult and at times, dangerous, your job is to do a work plan that 

is solid, that gets the range of advice you need which I think we 

can all agree we had lots of private discussions about this. 

The first order of business when something like this happens is 

to keep your people at the site safe, to stop the spill as quickly as 

you can, and then to clean it up. Those are the steps we ask of anyone outside. Those are the steps we are taking ourselves. 

There are times in the private sector when there are fines involved in these types of activities but that is when they are actually operating or conducting actions not in concert with orders or 

other executive actions. 

Senator HOEVEN. You are getting a lot of questions about accountability today and not providing specific answers on accountability. I will give you another example. 

You recently went out with CO2 rules. For some States like ours, 

you said, you are going to have to make an 11 percent reduction. 

Then without bringing out new proposed rules, you change it to a 

45 percent reduction. Where is the accountability? 

In other words, you demand accountability from the companies 

you regulate. Where is the accountability at your agency? 

I also called you on the phone and asked you personally to meet 

with our industry. You said you would. Now I understand we will 

be meeting with your staff and not with you. I think accountability 

calls for you to step up and address these issues. 

Ms. MCCARTHY. Senator, I am happy to talk to you when you are 

visiting. I was not aware of it but I will see if I cannot take care 

of it. 

Senator HOEVEN. I think it goes to the underlying accountability. 

I know you require accountability when you are dealing with companies that have to follow your rules. We are looking for the same 

accountability from the agency. 

Ms. MCCARTHY. And you should. 

Senator HOEVEN. Thank you. 

25 

The CHAIRMAN. Senator Heitkamp? 

STATEMENT OF HON. HEIDI HEITKAMP, 

U.S. SENATOR FROM NORTH DAKOTA 

Senator HEITKAMP. Thank you, Mr. Chairman. 

One of the reasons why we are in this room is because this has 

had a very, very dramatic effect on the downstream tribes who rely 

on this water. Water is king in the West and we all know that. 

Anytime you take away a water supply or threaten a water supply, 

you threaten the economics of every entity that uses that water. 

In our case, we are very concerned about the impact this has had 

on Native American tribes downstream, the impact it has had on 

their culture, the impact on their ability to do the traditional 

things they hope to do as Senator Udall discussed earlier. 

I do not think you can be very proud if you read the testimony 

of the tribal members who will testify today because they talk repeatedly about a culture of distrust with the EPA. I want to know 

what you are going to do to change that culture of distrust. 

How are you going to not just say we are going to look at this 

and see how we can do better, but how you can change that cultural piece that is going to tell these tribal members and leaders 

you are a full-on partner and not ignoring the fact that they have 

a stake in this game? 

Ms. MCCARTHY. We are having ongoing dialogue, Senator, and I 

appreciate it. There is no question that when a spill like this happens, the credibility of this agency suffers, not just in terms of its 

relationship with the tribes, but all of the people that we serve. 

We are going to be accountable. We are going to get the data that 

we need to do that. We are going to continue to work with the 

tribes. 

We recently responded to some of their most recent requests 

about supporting third parties to come in. If they do not trust us, 

I am fine with supporting third party sampling or verification of 

our sample results. 

I have asked what we can do to establish a path forward on the 

cultural damage this has caused. I am more than willing to sit 

down with the tribes and go through their list of what they think 

is necessary for us to repair the damage this spill caused, not just 

physically but the emotional and cultural damage this has brought 

with it. Nobody would want to do that more than I would. 

Senator HEITKAMP. One of the situations we recently had was a 

fire which was lit by the Forest Service and lots of apologies at the 

beginning but when it came time to file the torts claim, somehow 

magically there was no negligence, magically whatever culpability 

and damages as a result of that culpability dissipates and puts 

huge burdens on the victims to pursue some kind of claim. 

I want a commitment from you that will not happen in this case, 

that there will be a honest, forthright evaluation of what those 

damages are and there is going to be the ability for these tribal entities and the downstream entities to actually get compensated for 

the damage caused by EPA. 

Ms. MCCARTHY. I will do the very best I can. 

Senator HEITKAMP. Everyone says they will do their very best. 

Frequently when lawyers get involved, you and I share that label, 

26 

we sometimes forget that the rest of the world can see things 

through a lens that is different than a legal lens. 

Do not put these tribal entities, tribal leaders and their tribes 

through the process simply to forestall compensation for the damages. For me, that is a huge part of how you can build that trust 

which is take responsibility, we can talk about firing people and 

hopefully, as you go through that process, you will find people who 

will be culpable. 

The other piece of this in terms of accountability is compensation. Please, do not put these downstream victims in the spot 

where they need to be begging for what is fair and just in this case. 

Ms. MCCARTHY. I hear you. Thank you, Senator. 

The CHAIRMAN. Thank you, Senator Heitkamp. 

Senator Daines? 

STATEMENT OF HON. STEVE DAINES, 

U.S. SENATOR FROM MONTANA 

Senator DAINES. Thank you, Mr. Chairman. 

Administrator McCarthy, in November 2009, President Obama 

issued a memo reiterating his Administration’s commitment to Executive Order 13175 requiring all Federal agencies to engage in 

‘‘regular and meaningful consultation and collaboration with tribal 

officials in the development of Federal policies that have tribal implications and the Federal agencies are responsible for strengthening the government-to-government relationship between the 

United States and Indian tribes.’’ 

I was struck when Senator Gardner asked question about when 

the Navajo President was notified. The spill occurred on August 5. 

I understand you did not engage him until six days later on August 

11. 

My question is, if this spill had been with Canada or Mexico, do 

you think it would have taken six days before you picked up the 

phone to call one of the leaders in either Canada or Mexico? 

Ms. MCCARTHY. President Begaye? 

Senator DAINES. Correct, President Begaye. Senator Gardner 

asked when you contacted him. It was six days after the spill. The 

spill was on August 5th. You said you called him on August 11th, 

six days later. 

My question is had this been with Canada or Mexico, would it 

have taken six days for the head of the EPA to contact the leaders 

in those respective countries? 

Ms. MCCARTHY. I am hoping that you understand we were in the 

middle of an emergency. The president was engaged in this at high 

levels in the agency. Did I have a direct conversation with him? I 

do not believe so. 

Senator DAINES. By Executive Order 12175 and the way we 

think about our tribes and their sovereignty, this is a governmentto-government relationship. 

Ms. MCCARTHY. Yes. 

Senator DAINES. Why would the tribes be receiving much less attention and care than the leader of one of our neighboring countries? That is my question. Why? 

Ms. MCCARTHY. You have made a very legitimate point. Point 

taken, sir. 

27 

Senator DAINES. Thank you. 

This is not the first time I have heard about difficult cooperation 

between the EPA and Indian tribes. As you and I discussed in a 

Senate Appropriations Committee hearing in April, the Crow Nation of Montana is very, very frustrated with the amount of consultation that has been done regarding EPA’s Clean Power Plan. 

In fact, I had a field hearing on April 8th. I invited the EPA. The 

field hearing was on the Crow Reservation. I invited EPA to participate in that hearing and they declined. Eventually, a member 

from the State EPA of Montana came and sat in the audience. 

I see a systemic failure in my view of the EPA engaging and 

treating these tribes with the dignity and respect they deserve. In 

fact, at the Appropriations Committee hearing in April, you mentioned interest in resolving the Crow Tribe’s concerns with the 

Clean Power Plan. 

Ms. MCCARTHY. Yes. 

Senator DAINES. To my knowledge, given the Crow and Midwest 

utilities, the EPA has completely failed at meaningful consultation 

with the Crow tribe. 

It is my understanding the Navajo Nation had a similar concern 

with consultation with the EPA during development of the Clean 

Power Plan. In fact, I am looking forward to hearing from Navajo 

Nation President Begaye discuss this on the next panel. 

Given the concerns of the Crow Nation and the Navajo Nation, 

which face some of the highest unemployment rates in the Country, 

in Crow Indian Country, it is 47 percent unemployment and without these natural resource jobs, their unemployment rate goes 

north of 80 percent. 

My question is, is your agency upholding its obligations under 

Executive Order 13175? 

Ms. MCCARTHY. I believe we are, sir. 

Senator DAINES. Let me just say with the six day lag with President Begaye, that was a failure. Observing what is going on with 

the Clean Power Plan, there have been failures with the EPA communicating. We probably have a difference of opinion, I do not 

think you have. 

In fact, there is a saying in Montana, we say ‘‘all hat and no cattle.’’ 

Ms. MCCARTHY. Cattle? 

Senator DAINES. That means folks come in from out of State and 

wear a big hat, talk big, but there is no substance. They are full 

of big talk but lacking action is what that means. This my concern 

with the EPA as I hear about these things as we sit in these hearings but look at what is going on in the lives of real people with 

real challenges. I am seeing a big disconnect. 

Ms. MCCARTHY. Thank you, sir. 

Senator DAINES. Thank you. 

The CHAIRMAN. Senator Lankford. 

STATEMENT OF HON. JAMES LANKFORD, 

U.S. SENATOR FROM OKLAHOMA 

Senator LANKFORD. Administrator, thank you for walking 

through the multiple hearings you have been in to be able to walk 

through this as well. I appreciate your getting a chance to walk 

28 

through this. Most everything has been asked and I want some 

clarification. 

You talked several times about the accountability and that the 

report will come from Interior to kind of identify where we are with 

accountability. When will that report be done? 

Ms. MCCARTHY. It is scheduled to be completed in October. 

Senator LANKFORD. At that time, once that comes in, obviously 

EPA will engage in trying to apply whatever that accountability 

may be, including I would hope with the tribal leaders and tribes 

as well. 

As the Senators asked before, the tort relationships and the responsibility and accountability then are ongoing. My concern is 

with the statement the river has now returned to pre-spill levels 

which almost sounds like everything is fine, everybody leave. 

My hope is that is now where we are going, that we are just like 

it was a dirty river before, it is still a dirty river, we are moving. 

Ms. MCCARTHY. There are two ways in which that is not the 

case. One is that we are working on a long range plan. The sediments are a concern. That is one of the major concerns you will 

hear from President Begaye. We recognize that we have an ongoing 

challenge there. We also have the larger challenge of what to do 

across the watershed at the top of the Animas River. 

There are two large actions, one of which is within the control 

of EPA, which is getting a monitoring plan that everyone is comfortable with that will keep us active and engaged in that region 

in a way that all of us can recognize we are doing the job we are 

supposed to do, not just short or long term. 

Senator LANKFORD. Thank you. 

Let me ask a couple questions for the record and follow up later 

on some of these conversations. Just so you know, they are going 

to be slightly off topic. 

On April 27th of this year, the Army Corps of Engineers wrote 

a memo to EPA saying they believe certain aspects of the Waters 

of the U.S. rule would not hold up to Supreme Court scrutiny. They 

wrote that to EPA. We have that document and that memo. We do 

not have the response from EPA where they responded, no, here 

is why we think it does. We have only the final rule that came out. 

I would like a copy of that response. We have one side of a conversation but do not have the other side of the conversation. Would 

it be possible to get the other side of that conversation, the response, if I provided you the April 27th memo from the Army Corps 

of Engineers so you can see exactly what it was? 

Ms. MCCARTHY. I will follow up on that. I may not have the 

exact memo. We will track it down. 

Senator LANKFORD. That would be great. 

The other issue deals with renewable fuel standards. This is 

something we have talked about before. November 30th is coming 

quickly. Do you still feel you are on schedule to release the 14, 15 

and 16 RFS mandates by November 30th? 

Ms. MCCARTHY. Yes, sir. 

Senator LANKFORD. The ozone rule that is coming out obviously 

has been sent over to OMB to my understanding from EPA? 

Ms. MCCARTHY. Yes, sir 

29 

Senator LANKFORD. When this comes out and the final piece is 

out, I would like to be able to get a copy of what your proposal was 

to OMB when you originally sent it over. I know there will be some 

conversation of where it went, what they are going to do from 

there, but the history of the decision-making process. 

This will affect my State dramatically. It will affect the whole 

Country pretty dramatically. 

Ms. MCCARTHY. You will be able to see that. I was asking because I am aware that when a rule is finalized, that information 

becomes part of the record. I am not exactly sure when. 

Senator LANKFORD. The history of it will be important to us because again all of us will be dramatically affected by this. It also 

affects the RFS since obviously ethanol in production creates more 

ozone. When you have a decrease in ozone requirement and an increase in RFS requirement, you have EPA doing things in conflict 

and you cannot make it. 

We want to get that for the record and go from there. 

Mr. Chairman, thank you. 

The CHAIRMAN. Thank you, Senator Lankford. 

Thank you very much, Administrator McCarthy. 

There being no other questions, we know you have another appointment. We will move to the second panel. 

We will recess for five minutes. 

Ms. MCCARTHY. Thank you so much, Mr. Chairman. 

The CHAIRMAN. Thanks for being here. 

[Recess.] 

The CHAIRMAN. We have a distinguished panel. We will start 

with Russell Begaye, President of the Navajo Nation. We will also 

have the Honorable James ‘‘Mike’’ Olguin, Tribal Council Member 

of the Southern Ute Indian Tribe; Douglas Holtz-Eakin, President 

of the American Action Forum, Washington, D.C.; Dr. David C. 

Weindorf, Associate Dean for Research, Department of Plant and 

Soil Sciences, Texas Tech University, Lubbock, Texas, thank you 

for joining us; and Mr. Gilbert Harrison, a rancher and irrigator of 

the Navajo Nation in New Mexico. Thank you also for being with 

us. I would like to start with President Begaye. 

If everyone could please keep your comments to about five minutes that will give more time for questioning. 

President Begaye. 

STATEMENT OF HON. RUSSELL BEGAYE, PRESIDENT, NAVAJO 

NATION 

Mr. BEGAYE. Good afternoon, Chairman Barrasso, Vice Chairman 

Tester and members of the Committee. Thank you, Senators Udall, 

Heinrich and McCain. 

Thank you for your leadership in this hearing, appearing in person and for sending staff to investigate the area. 

My name is Russell Begaye of the Ashiihii Ta’neeszahnii clan. I 

am the President of the Navajo Nation. 

I am grateful for this opportunity to address this prestigious 

group of Senators and leaders. Thank you for helping to make right 

an injustice that has occurred on our land and to our river. 

August 11th will always be remembered on our Nation as a day 

when the Navajo way of life for our people was disrupted through 

30 

the negligence of the United States Environmental Protection 

Agency. 

On that day, over 3 million gallons of yellow contaminants 

rushed down the Animas River to our river, the San Juan. The San 

Juan has been the lifeline for our people for centuries. Water is sacred and the river is the life for all of us. It is who we are. It 

breathes. It provides. It nourishes. It defines us. 

The San Juan has always been a source of sustenance for our 

ranchers and farmers. It provides us with healthy organic food, 

drinking water for our people, feed for our livestock, herbal medicine for our ceremonies and has been a source of enjoyment for our 

children. 

Today, we are afraid to use the river, to use it for drinking, for 

our livestock, and to irrigate our farms. I have stood in the fields 

with our farmers as they shed tears over their crops. For them, the 

crops are more than income, but are a source of pride and joy, 

crops they share with their neighbors, their children, and their 

grandchildren. The spirit of my people has been greatly impacted 

by this negligent act. 

Yes, we have been told by the EPA that the river is back to its 

precondition levels but we do not know what precondition levels 

means. Simply, we do not trust the EPA. Why? They did not inform 

the Nation of the accident until two days after the blowout. I believe the only reason they finally informed the Navajo Nation is because you cannot hide an accident when the rivers turn orange. 

When we first received notice, they told us it was 1 million gallons of contaminants that was released from the mine but later, 

they changed it to 3 million gallons. Since then, it has neared 30 

million gallons. 

At a public hearing, the USEPA representative said the water 

was churning up at the base of the mountain but when the vice 

president and went to the mouth of the mine to visually investigate, we were stunned to see the yellow river. 

I even showed the USEPA officials a picture I had just taken a 

few hours before of the toxic waters that were still pouring out of 

the mine and it was yellow. 

The last straw was when USEPA gave my people 20 million gallon water tanks for relief. Those tanks were tainted with oil. I directly asked the USEPA about the tainted tanks. They vehemently 

denied that they had oily substances in them. 

They said, it is only used for clean drinking water but when I 

personally went to one tank, put my hand into the intake valve of 

that tank, my hand came out blackened with oil. They expected us 

to give that tainted water to our livestock and crops. 

Let me again say, the Navajo Nation does not trust the USEPA. 

We expect them to be held fully accountable for what they have 

done to my people and to all the people who live along both the San 

Juan and Animas Rivers. 

I am not just speaking today for my people but all peoples whose 

souls are hurting from what should have been an avoidable, negligent act. Today is our greatest time of need with our people struggling for water for their animals, livestock and irrigation. The 

USEPA has abandoned us. 

31 

The water tanks are being pulled out, feed for our livestock has 

stopped. Last Friday, Ms. McCarthy and I spoke on the phone and 

she was unaware that the USEPA had stopped providing resources 

to the Navajo Nation. She said, I did not know that we stopped giving water. I did not know that we stopped giving hay. 

As EPA Administrator, how does she not know that this was 

happening? The orders to leave our Nation came from her regional 

directors. This just adds to the culture of distrust they have created. 

What my people need first and foremost is compensation and 

need it now. The farmers cannot wait three months later or even 

a year from now. Our farmers have spent monies they do not have 

and are expected to purchase materials, haul water and buy hay 

for their livestock. 

Our farmers and ranchers still need hay and water. EPA has 

pulled out. BIA has expended all of their funds. We are now taking 

monies from our emergency account to help our people. 

I am saying that today I want this Committee to stand with us 

and make sure the EPA pays for what it has done to my people, 

to my Nation. 

Thank you. 

[The prepared statement of Mr. Begaye follows:] 

PREPARED STATEMENT OF HON. RUSSELL BEGAYE, PRESIDENT, NAVAJO NATION

I. Introduction 

Ya ́’a ́t’e ́e ́h (hello) Chairman Barrasso, Vice-Chairman Tester, and Members of the 

Committee, my name is Russell Begaye. I am the President of the Navajo Nation. 

I was raised on a farm along the San Juan River in Shiprock, New Mexico, one of 

the communities directly impacted by the subject of this hearing. Thank you for this 

opportunity to testify before your Committee on a matter that is of utmost importance to the Navajo Nation. 

As you know, on Wednesday August 5, 2015, the United States Environmental 

Protection Agency (USEPA), and other parties, caused a massive release of toxic 

contaminants from the Gold King Mine into Cement Creek. The toxic sludge—which 

included harmful contaminants such as lead and arsenic—flowed south from the Cement Creek into the Animas River, then into the San Juan River (River), a major 

water source for the Navajo Nation. The San Juan River flows through 215 miles 

of some of the richest farmland in the Nation’s territory, and provides much of the 

Nation’s northern border. The impact to the Navajo Nation from this drastic release 

is compounded by the fact that much of this portion of the River is slower moving 

than upstream. 

Today, in the brief time I have, I would like to cover only a few critical areas of 

concern for the Navajo people. The critical areas of concern are as follows: 

• The USEPA’s, among others’, mishandling of the spill and the emergency response; USEPA’s lack of timely notice, transparency, and consistency; and the 

resulting culture of distrust; 

• History of contamination of the San Juan River and the need for cleanup; 

• Our preliminary findings on the short-term and long-term impacts of the spill 

on the Navajo people and environment, including economic, health, cultural, 

and spiritual impacts. 

To address the serious impacts of this spill and the continued threat to the Navajo 

people from future contamination, we request the following: 

• Resources from USEPA, FEMA and BIA to address the immediate emergency; 

• Assurances that USEPA will fairly and timely compensate the affected farmers 

and livestock owners for their damages, both in the near term and long term. 

• Resources to conduct our own water, sediment, and soil monitoring, and recognized authority for the Navajo Nation EPA to do the necessary work. 

• That the USEPA address all the contamination that is flowing into the River. 

32 

1 E-mail from Harry Allen, Chief, Emergency Response Section, USEPA Region 9, to Russell 

Begaye, President, Navajo et al (Aug. 7, 2015, 11:58 PT) (on file with NNDOJ). 2http://fox6now.com/2015/08/13/gold-king-mine-owner-i-foresaw-disaster-before-epa-spillinto-animas-river-in-colorado/ 

• Resources to address near- and intermediate-term environmental and health 

impacts; 

• Resources to study and address the long-term environmental and health impacts of the spill, and to restore the River to a safe and healthy state; and 

• A fair and independent assessment of the role USEPA, and others, played in 

the events leading up to the Gold King Mine spill, and the establishment of a 

different lead agency. 

It is important to realize that in addition to the many known and yet unknown 

physical, chemical, biological, and economic effects of this spill, this spill has taken 

a cultural and spiritual toll on our society, disrupting our hozho. Hozho encompasses 

beauty, order, and harmony, and expresses the idea of striving to maintain balance 

in the Navajo universe. The trauma from this spill will be felt for years to come, 

and we need immediate and sustained help to restore the balance for our people. 

II. The USEPA’S Mishandling of the Spill and Creation of a Culture of 

Distrust 

The NNEPA works in close partnership with USEPA to facilitate the Nation’s 

twelve environmental programs, which are largely, if not completely, funded by the 

USEPA. A good and close working relationship with USEPA has always been critical to the success of the NNEPA. However, recent events relating to this spill have 

led to a complete shift in that relationship as USEPA has sought to quiet our legitimate concerns, and has made repeated missteps in its response efforts. We have serious concerns about the strong conflict of interest USEPA has with respect to this 

investigation and the emergency response necessary. No other environmental bad 

actor would be given leeway to investigate itself and determine to what extent it 

will be held accountable. We are encouraged that USEPA’s Office of Inspector General will be reviewing this incident, but we believe another agency should take the 

lead on the on-ground response, and an independent body should conduct the investigation. 

To begin with, the USEPA inexplicably delayed notification of the spill to the Navajo Nation. The spill occurred the morning of August 5, 2015, but the Nation was 

not informed of the release until August 6, a full day later, and not even by the 

USEPA but by the State of New Mexico. It took the USEPA almost two full days 

to notify us. We view this as a violation of the government-to-government relationship between the Federal Government and the Navajo Nation. 

The USEPA also demonstrated a complete lack of transparency. Our initial warning from USEPA was of an ‘‘acid mine drainage spill in the Animas River north of 

Durango’’ of ‘‘[a]pproximately 1 [million] gallons.’’ USEPA’s initial focus appeared to 

be on pH levels. This served to downplay the magnitude of risk to human and animal health, and later reports by USEPA of released contaminants were incomplete. 

The media was receiving faster and fuller information from USEPA than the Navajo 

Nation. For example, the New York Times reported the spill hours before USEPA 

provided the Nation with notice of the spill. And media sources reported that 

USEPA confirmed the presence of arsenic on Friday, August 7, whereas USEPA still 

had not reported the presence of arsenic to the Nation even by Sunday, August 9. 

USEPA on Friday, August 7 informed the Nation that ‘‘the water in Cement 

Creek and the Animas River near Silverton is clearing,’’ but the Vice-President and 

I nonetheless made plans to travel to the Gold King Mine Sunday to assess the situation for ourselves. 1 We requested a tour from USEPA, but faced immediate resistance. USEPA staff indicated they would only take us to the confluence of Cement 

Creek with the Animas River in Silverton, Colorado, but the water at the confluence 

remained bright orange. It did not appear to be ‘‘clearing.’’ We thus urged USEPA 

to take us to the point of release. They again refused, this time compromising by 

offering to take us to the treatment pools below the mine adit. We finally convinced 

them to take us within a half-mile of the point of release. We walked the rest of 

the way to the point of release. There we saw a completely unblocked mine adit with 

an estimated 550 gallon per minute flow of bright, opaque orange liquid pouring 

forth. We have since learned that prior to the blocking of the nearby Sunnyside 

Mine and the Red and Bonita Mine, Gold King Mine was releasing water at only 

7 gallons per minute. 2 We took video footage and photos at the point of release and 

33 

3http://www2.epa.gov/region8/upper-animas-mining-district 

4http://www2.epa.gov/region8/upper-animas-mining-district. 

shared these with the public. This appeared to be the first time USEPA Region 9 

staff visited the point of release. 

While USEPA was slow in notifying the Nation of the initial spill and its associated risks, it was quick in dispatching staff to Navajo communities to hand out 

Standard Form 95 and encouraging members of the Navajo Nation to fill out forms 

to expedite settlement of their claims under the Federal Tort Claims Act and apparently to obtain releases from members of the Navajo Nation. But this was only after 

I announced that the Navajo Nation would be suing the USEPA and other liable 

parties for the spill. The Navajo Nation Attorney General reviewed the form and 

identified plain and clear language on the form asserting that individuals submitting the forms would be filing the forms in pursuit of ‘‘FULL SATISFACTION AND 

FINAL SETTLEMENT’’ of their claims for damages and injuries that yet remain 

unknown. 

This presented our people with a difficult choice. The economics of farming makes 

the cashing out of harvests time-critical. Our farming families were expecting to sell 

their harvests along a predictable timeline that was disrupted by the closing of the 

San Juan River to irrigation use. They relied on the predictability of this timeline 

to defer bills and expenses until harvest time. Now that time is passing, and many 

of them need their anticipated harvest returns immediately to catch up on bills and 

to buy school clothes, among other things. Yet if they fill out Standard Form 95 and 

receive a settlement check, they may not be able to defer cashing that check while 

they wait for additional damages or injuries to accrue. I, along with the Vice-President and Attorney General, have thus asked USEPA for an interim claims process 

that will allow for ongoing claims filings, and our Attorney General has asked for 

a U.S. Attorney General opinion confirming that the filing of Standard Form 95 and 

the settling of a claim filed under that form or process does not in fact fully satisfy 

and settle the claim. None of this has happened while the Navajo people continue 

to suffer. Despite our requests, the USEPA has yet to confirm to us that it will fully 

and fairly address all damages and injuries to members of the Navajo Nation who 

have been impacted by the spill. 

These instances—but a few among many—have led to distrust by the Navajo Nation towards USEPA, both among our farmers and our leadership. The NNEPA, in 

contrast, continues to have the trust of our farmers and our leadership. Despite the 

NNEPA’s limited resources, we turn to the NNEPA for honest data assessments and 

technical answers. 

III. History of Contamination of the San Juan River and the Need for 

Cleanup 

This incident is one of many where responsible parties have contaminated Navajo 

land and water. I was born and raised in Shiprock, and as a child one summer, I 

once saw hundreds of dead fish floating down the San Juan River. We knew something was not right with all these dead fish in the River. But the next day we were 

back in the water, playing in it. There was no one to tell us to stay out of the 

water—that it was dangerous. We always wondered why all the fish died in the 

River, and it was not until USEPA Administrator Gina McCarthy visited Shiprock 

on August 13, that I learned the story of why this occurred. There is a 1.5 million 

ton uranium tailings pile above a floodplain feeding into the San Juan River in the 

middle of Shiprock. That summer, a dam holding a pool of tailing-contaminant filled 

water burst into the River. But no one told us what had happened. We cannot tolerate this contamination of our sacred lands. 

Yet the recent spill threatens to recur, either from unsettling of contaminated 

sediment in our River waters, or from ongoing contaminated releases from upstream 

mines. USEPA stated early on that we will be dealing with the effects of USEPA’s 

Gold King Mine chemical spill ‘‘for decades.’’ Gold King Mine is just one of over 300 

abandoned hardrock mines in the heavily contaminated 140-mile-area known as the 

Upper Animas Mining District (District). 3 The District includes private, federal, and 

state lands, and the town of Silverton. 4 Gold King Mine was twice considered for 

inclusion on the National Priorities List (NPL), both as part of the District, and as 

a narrower carve-out from the District, and the recent spill was preceded by two 

spills in the 1970s. We sent a letter to Administrator McCarthy on Monday, September 7, requesting that this District be made a Superfund site so that USEPA 

will make the cleanup and containment of the site a priority, and thereby protect 

us downstream communities. 

The Mine’s first Superfund site assessment was conducted in the 1990s, and the 

assessment concluded, ‘‘that water quality standards were not achieved’’ in the DisVerDate Mar 15 2010 09:39 Mar 01, 2016 Jkt 098848 PO 00000 Frm 00037 Fmt 6633 Sfmt 6621 S:\DOCS\98848.TXT JACK
34 

5http://www2.epa.gov/sites/production/files/2015-08/documents/ 

goldkingminewatershedfactsheetbackground.pdfat2. 6http://www2.epa.gov/sites/production/files/2015-08/documents/ 

goldkingminewatershedfactsheetbackground.pdfat2. 7 Id. 

8 Id. 

9 Id. 

10 Id. 

trict. 5 The assessment also identified ‘‘severe impacts [of the District] to aquatic life 

in the Upper Animas and its tributaries.’’ 6 Despite the serious harm being caused 

by the District, USEPA postponed listing the District on the NPL in order to allow 

a ‘‘community-based collaborative effort’’ to clean up and mitigate harm from the 

District ‘‘as long as progress was being made to improve the water quality of the 

Animas River.’’ 7

Yet in 2005, the ‘‘water quality ha[d] declined significantly’’ in the area, and so 

in 2008, USEPA performed another NPL assessment, this time on the Upper Cement Creek alone. 8 The study again confirmed, ‘‘that the area would qualify for inclusion’’ on the NPL. 9 Despite the additional confirmation that the Mine area 

should be listed on the NPL, ‘‘EPA postponed efforts to include the area on the National Priorities List,’’ again ‘‘after receiving additional community input.’’ 10

USEPA’s repeated denial of the facts with respect to the level of harm posed by the 

Gold King Mine and its surrounding mines has placed downstream jurisdictions 

such as the Nation at undue risk. This further contributes to a lack of trust in 

USEPA’s ability to protect the health and well-being of Navajo people. 

The threat of a spill from the District remains under the existing management 

scheme. The chemicals found in the District pose significant human health risk as 

they contain known carcinogens and elements, like lead and arsenic, that can affect 

major organ systems such as cardiovascular, respiratory, gastrointestinal and reproductive systems. The risks to the Navajo people are very real. Neither my people 

nor the other communities living near the rivers can tolerate a recurrence of the 

unprecedented damage caused by the Gold King Mine Spill. 

Based on our extrapolation of known data, over 20 million gallons of aggregate 

contaminated flow has spilled from the Mine since August 5. If the USEPA does not 

address these sites through designation as a Superfund site, contaminants will continue to flow freely into the Nation’s waters, and the concentration of contaminants 

in our waters will increase, extending the duration of exposure for our people, which 

is already significant now, even further into the future. Metals poison people slowly, 

and sediments eventually make their way downstream. We are thus gravely concerned that the metals coming from Gold King Mine and the District are making 

their way down to us, and will settle in our slow waters. We are also concerned that 

efforts to flush contaminants out of the Farmington area flushed contaminated sediments into our territory, and that those contaminants will remain here for a long 

time. We do not want our people to be poisoned, so we urge you to do what you 

can to help us secure NPL listing for the District. 

IV. Short and Long-Term Impacts 

The impacts of this spill, as well as the ongoing contamination from mines in the 

area, are devastating and myriad. The reliance of our people on the San Juan River 

and the significance of the River to our people cannot be overstated. The Navajo Nation as a whole is a largely agricultural society, and our people have traditionally 

farmed and ranched since pre-contact. The San Juan River Basin is a bastion for 

ancient Navajo seed strains that our people have carefully refined over centuries to 

thrive in our arid region. Farming and ranching are the backbone of our culture and 

economy, and are both heavily dependent on the San Juan River. Indeed, in our arid 

region with little water distribution infrastructure in place, our farmers rely heavily 

on the San Juan River and ditch irrigation practices to keep their fields hydrated 

and their crops growing. I want to lay out for the Committee some of the impacts 

of the contamination on the Navajo Nation. But I want to stress that, because of 

the historic and long-term nature of the contamination caused by the spill and the 

lack of full transparency, all of the economic, health, cultural, and other impacts to 

the Navajo people are not yet known. 

First, our farmers and ranchers and our traditional people felt the most immediate impact from the spill. You can imagine the significant economic and emotional 

toll on our farming families, who mostly live on their farmlands and consume their 

crops as a matter of subsistence. These families have lost a significant portion of 

a full growing season’s worth of work. Now these families have to look at their dead 

crops each day, and are constantly reminded of the loss. 

35 

11http://m.startribune.com/nation/321518301.html 

As I visited farmers and ranchers, I saw a lot of farms where corn had not fully 

matured due to lack of water. As a result, the corn crops had only the stalk but 

no corn. The corn pollen that is so critical to everyday Navajo spiritual life did not 

develop properly for many of these crops. A lot of Navajo melons only grew to a fifth 

of their size. One family was forced to abandon all but a single acre of their 32- 

acre field, opting to save plants with cultural significance. 

Second, the spill has already severely impacted our economy and may continue 

to do so for years to come. The Navajo Nation already faces a daunting unemployment rate of 42 percent. Yet along the San Juan River, many of our people are able 

to make a life for themselves and support their families through farming and ranching. Many of our farmers create additional economic value for themselves by carefully growing profitable organic crops, or raising grass-fed and organic beef or mutton product. Now their livelihoods have been significantly disrupted by the spill. 

Growing cycles and field rotations have been disrupted, and farmers who are used 

to producing their own farm goods will now need to buy fruits and vegetables for 

themselves, and hay and alfalfa for their livestock, to replace what was lost. Our 

farmers will also lose income from the expected sales that did not or will not occur. 

Even farmers who have been able to salvage their farm goods now face a stigma 

developing with respect to fruits and vegetables grown along the San Juan River. 

This triggers a cycle of economic losses for the community. 

Third, the long-term health effects of the spill are ominous and not fully understood. Heavy metals like lead, arsenic and others that were discharged during the 

spill are known to be dangerous to humans, animals, and plants. These metals persist in the environment and are particularly harmful to fetuses and children. To provide a sense of the magnitude of exposure to these harmful metals just from the 

spill, one report of EPA data indicated that lead was found near the Cement Creek/ 

Animas River confluence ‘‘at more than 200 times higher than the acute exposure 

limit for aquatic life, and 3,580 times higher than federal standards for human 

drinking water.’’ And arsenic was found ‘‘more than 24 times the exposure limit for 

fish and 823 times the level for human ingestion.’’ 11 Human consumption of farm 

products and livestock raised on contaminated water is therefore of grave concern. 

We are especially concerned about sheep because sheep liver and kidney are cultural delicacies, and are organs that are most likely to concentrate contaminants. 

In addition, long-term effects on wildlife that live in or rely on the River for water 

must be understood because we hunt and fish these animals to put food on our tables, and as part of our traditional cultural practices. Although USEPA has stated 

that surface water returned to its previous condition, many of the contaminants 

have merely settled to the bed of the River, and will be remobilized later during 

storm events, for example. 

Fourth are the cultural and spiritual losses that we have sustained. Indeed, the 

Navajo Nation’s impacts are felt most pointedly in the disruption of our cultural 

principle of hozho, which encompasses beauty, order, and harmony, and expresses 

the idea of striving to maintain balance in the Navajo universe. We connect to our 

land, our water, and each other through ceremonies and gatherings. We grow four 

types of corn, each used for a specific purpose in our ceremonies, and those seeds 

are protected by the strong culture of farming that has persisted in the San Juan 

River Basin. Navajo cornhusks are mixed with tobacco to create ceremonial smoke, 

and our corn pollen is used as an essential element in all Navajo ceremonies. One 

of our corn seed strains is utilized in our critical kinaalda ceremonies (the coming 

of age ceremonies for our women). We also grow an array of heirloom fruits and 

vegetables that our people eagerly anticipate selling and purchasing during our popular fair season each fall. Those fruits and vegetables are shared over family tables, 

and are a part of the cultural glue that keeps our families and way of life intact. 

Families travel for hours across the Nation to the San Juan River Basin to access 

these ingredients for our ceremonies and celebrations. But the spill destroyed many 

of these crops so critical to our prayers, ceremonies, and our way of life. 

Fifth, the impairment of the River and the adverse impacts to our farmers and 

ranchers, and our community as a whole, will mark a moment of community trauma 

that will be endured for years to come. This new trauma will compound our already 

significant historical trauma, and raises new and troubling public health concerns. 

Already three suicides have occurred in the course of the last two weeks in affected 

communities along the River. Our Department of Health is researching the connection of the suicides to the spill, and we are concerned that these might be the first 

of a larger cluster. This tragedy affects all of our Nation because so many of us have 

relatives in Northern Navajo. Compounding this trauma, are the repeated response 

failures and withdrawals of aid (and blockage of aid) by USEPA, which have sent 

36 

a strong message to our people that Navajo lives don’t matter, that our health and 

well-being don’t matter, and that our way of life doesn’t matter. We will be dealing 

with the effects of this spill for decades and rebuilding the shattered sense of self 

so many of our people are experiencing as a result of this disaster. 

V. Significant Resource Needs 

In light of the devastating impacts from this spill, both known and yet unknown, 

we need to act quickly and thoughtfully to protect our Navajo citizens, our natural 

resources, the Navajo way of life, and most importantly our future generations. We 

need assistance from the responsible parties to address the short- and long-term impacts, to make us whole, and to return the beauty and hozho to our River and our 

people. In addition to oversight and national attention, Congress can provide forward-thinking legislative solutions to some of these issues. We therefore ask for the 

following: 

1. We continue to need resources from USEPA, FEMA and BIA to address the 

ongoing need. We still need continued delivery of water for both livestock and 

farming, as well as the delivery of hay to impacted ranchers. Farmers and livestock owners are essentially fed water from two point sources along the San 

Juan River. Although we have allowed the waterways to be opened for irrigation only, the farmers who are fed water from one point source have unanimously voted not to use the San Juan River water because they lost all faith 

in the USEPA’s data. These farmers still need water for both their crops and 

livestock and hay for their penned livestock. The USEPA’s actions in this matter have spread fear, and our farmers and ranchers should not be penalized for 

their lack of trust in the USEPA. 

On the other point source, the water was reopened for irrigation purposes only. 

Based on the data samples our Navajo Nation Environmental Protection Agency 

has seen, the contaminant levels were still above Navajo standards and therefore the water is not safe for consumption by livestock. As such, livestock owners in the area need to pen up their animals in order to prevent them from 

drinking the River water. They will still need water delivery and hay for their 

penned livestock. 

Even in light of the above, the USEPA has essentially withdrawn assistance. 

The Bureau of Indian Affairs has been helpful, but they had to pull out because 

they ran out of funds. FEMA has denied assistance to Navajo, deferring to 

USEPA as the lead response agency. As it currently stands, there are no federal 

services being provided to farmers and ranchers in the area. We as a Navajo 

Nation government, and our farmers and livestock owners, are left to deal with 

not only the contamination, but the financial and emotional mess left behind 

by the USEPA’s actions. I ask, why should we bear that burden? 

2. If USEPA will not continue its services to mitigate the harm to farmers and 

ranchers, we need assurances that they will fairly and fully compensate the affected farmers and livestock owners for their damages. Many farmers and ranchers have lost crops. Many have expended their own funds to try and mitigate 

their damages. Some have lost economic value of their goods, among a whole 

host of other possible damages. We are unsure as to whether the FTCA claim 

process will provide fair, full, and ongoing compensation to our people. As previously stated, we have asked USEPA for an interim claims process or a relief 

fund that will allow for ongoing claims and quick remuneration. And we have 

asked the U.S. Attorney General for an opinion confirming that the filing of 

Standard Form 95 and the settling of a claim filed under that form or process 

does not in fact fully satisfy and settle the claim as the plain language of the 

form and the FTCA itself indicates. Despite the urgency with which our people 

need to be compensated for their already experienced losses, to date we have 

received no response or confirmation from the USEPA or USDOJ. 

3. We need resources to conduct our own water, sediment, and soil monitoring, 

and authority for the NNEPA to do the necessary work. Due to our lack of trust 

in the USEPA and the conflict of interest that exists with the USEPA, we want 

to be able to monitor their work and confirm their results. We will require an 

on-site lab, and additional staffing to manage the sampling and lab performance. We are already expanding our scope of work into the realm of sediment 

testing, but testing and lab work is expensive, so we need additional funding 

to facilitate that work. This will enable us to provide our farmers and our leaders with the answers they deserve, and with answers they can trust. 

4. The U.S. Environmental Protection Agency needs to clean up all the contamination that is flowing into the River. As we have discovered, along with the Gold 

37 

King Mine, there are many hundreds of hardrock mines along the River that 

continually release contaminants into the River. We suspect that the volume of 

contaminants they release over time is much greater in magnitude than this 

latest burst from the Gold King Mine. USEPA needs to develop a plan to clean 

up these sources of contaminants, share their plan, and implement and complete that plan. We request, as part of the plan, that USEPA designate these 

mines as superfund sites. 

5. We need resources to address near- and intermediate-term impacts. We need 

assistance to create redundant and auxiliary water supplies, at least two treatment plants, additional drilling for wells, repair of windmills and new reservoirs 

to guard against the negative impacts of future contamination. Until there is 

a plan in place from the USEPA that would prevent future contamination of 

the San Juan River, and that plan is implemented, we need these water supplies and reservoirs in case we need to shut off water from the River again. For 

the sake of our people and our Nation, we hope we do not ever have to do that 

again, but for now, that risk remains. We also need treatment plants to filter 

out contaminants to make the water safe for human, animal and agricultural 

consumption, including a water treatment plant at the head of our waters in 

the communities of Upper Fruitland and Shiprock. 

6. We need resources to study and address the long-term health, economic and 

environmental impacts of the spill and to return the River to a safe and healthy 

state. While long-term health and economic impacts have not yet been quantified, we believe they will be substantial. We will need assistance monitoring 

health impacts, including mental health impacts, as well as the resources necessary to fund this monitoring effort and to fund treatment, if necessary. Extensive planning and study will be needed to return the San Juan River to a safe 

and healthy state. 

7. We demand a fair and independent assessment of the USEPA’s and others’ 

role in the spill, and the establishment of a different lead agency. Since they 

were the cause of this contamination, we have serious concerns about the strong 

conflict of interest USEPA has with respect to this investigation and the emergency response. An independent body should conduct the investigation, and 

FEMA should take over as lead responding agency. 

8. We ask that Congress revisit this important issue and the federal response in 

six months. This complex issue will not disappear overnight for the Navajo people; we request Congress hold another hearing in six months ensure the Federal 

Government, starting with the responsible party, the USEPA, has made sufficient progress. 

Ahe ́hee.’ Thank you for your time and attention to this important issue. 

Senator MCCAIN. Mr. Chairman, could I just say I had the opportunity of being with President Begaye when all this transpired. I 

thank him for his leadership, I thank him for his rapid response 

to the people of the Navajo Nation and I thank you for your very 

strong statement today. 

I note that you are accompanied by your outstanding attorney 

general as well. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator McCain. 

Next we will hear from the Honorable James ‘‘Mike’’ Olguin. 

STATEMENT OF HON. JAMES ‘‘MIKE’’ OLGUIN, TRIBAL 

COUNCIL MEMBER, SOUTHERN UTE INDIAN TRIBE 

Mr. OLGUIN. Good afternoon, Chairman Barrasso and Committee 

members. 

My name is Mike Olguin. I am honored to be here. I am an elected member of the Southern Ute Tribal Council which is the governing body of the Southern Ute Indian Tribe. Thank you for the 

opportunity to appear before you today on behalf of the tribe and 

to discuss the Gold King Mine spill and its impact on the tribe and 

our community. 

38 

At this time, Mr. Chairman, I would like to mention a few items 

from my written statement and then answer any questions you or 

the Committee members may have. 

The Animas River crosses the tribe’s reservation downstream of 

Durango, Colorado and upstream of New Mexico. Since the Gold 

King Mine blew out on August 5, the tribe has been extensively engaged in responding to the spill. 

We first learned of the Gold King Mine release when the Colorado Department of Natural Resources notified the tribe on the 

afternoon of the spill. We immediately responded by implementing 

our emergency management plan, contacting the county office of 

emergency management, EPA and sampling water quality before 

the spill reached the reservation. 

In the first days after the spill, it was largely the local jurisdictions who responded to the incident. The tribe issued a disaster 

declaration on Saturday, August 8th. Other jurisdictions followed 

suit. 

In the days following the release, we attended to the needs of the 

tribal membership. We posted signs closing access to the river on 

the reservation, delivered bottled water, provided water tanks and 

water for livestock, held informational meetings with tribal members and offered temporary housing for affected tribal members. 

Additionally, we coordinated EPA testing of tribal member domestic water wells. 

For the duration of the response, tribal staff actively participated 

with personnel from other affected governments in the Unified Incident Command and remains engaged in the Incident Command to 

this day. 

As of Friday after the spill, the EPA still did not have a coordinated effort in Durango. In the absence of a Federal presence, local 

jurisdictions, including the tribe, worked together. For example, on 

August 6, the tribe’s water quality program called New Mexico’s 

Spill Reporting Hotline and reported the spill to New Mexico. At 

that point, neither EPA nor Colorado had notified New Mexico. 

The county and our tribe notified our sister tribe, the Ute Mountain Ute Tribe, of the spill. We also shared information with downstream tribes in the lower Colorado River Basin. 

For the period from August 5th through September 8th, the tribe 

has incurred approximately $170,000 in costs in responding to the 

spill, mostly in staff time. We understand neighboring community 

businesses suffered losses and our neighboring local governments 

also incurred costs. We are working with EPA to obtain reimbursement for costs already expended and future costs that will be incurred, including the cost of continued water quality monitoring. 

The tribe has had a long, active water sampling program funded 

by EPA’s Tribal Assistance Program Clean Water Act grants. The 

tribe’s water quality data provided valuable information to all the 

parties affected by the Gold King Mine spill. 

We tested before the plume hit the reservation and for two weeks 

after the spill. During that time, we were testing daily for over 25 

substances, including aluminum, silver, magnesium, arsenic, lead 

and mercury. 

Coincidentally, just two weeks before the Gold King spill, we had 

collected tissue samples from fish in the Animas to conduct metal 

39 

analysis of those samples. We shared our water quality data and 

continued monitoring should provide important information on the 

long term impacts. 

Like others, we favor a full evaluation of events leading to the 

spill and EPA’s performance in responding to the spill. However, 

it is important to keep this incident in perspective and understand 

it points to a much larger problem. 

There are estimated to be 20,000 abandoned mines in Colorado 

alone causing water pollution problems. Federal leadership, assistance and cooperation among downstream community stakeholders 

is key to avoiding another blowout and addressing the problem of 

abandoned mine drainage polluting the Upper Animas River Watershed. 

Thank you for the opportunity to appear before you today. 

[The prepared statement of Mr. Olguin follows:] 

PREPARED STATEMENT OF HON. JAMES ‘‘MIKE’’ OLGUIN, TRIBAL COUNCIL MEMBER, 

SOUTHERN UTE INDIAN TRIBE

Good afternoon Chairman Barrasso, Vice Chairman Tester, and Committee members. Thank you for the opportunity to appear before you today on behalf of the 

Southern Ute Indian Tribe to discuss the Gold King Mine Spill and its impacts on 

the Tribe and our community. 

My name is Mike Olguin. I am an elected member of the Southern Ute Indian 

Tribal Council, which is the governing body of the Southern Ute Indian Tribe. The 

Southern Ute Indian Reservation encompasses approximately 710,000 acres in 

southwestern Colorado. The Tribe is blessed by eight rivers traversing its Reservation in five main drainage basins. One of those rivers is the Animas River, which 

bisects the western half of the Tribe’s Reservation, downstream of Durango, Colorado, and upstream of New Mexico. 

Since the Gold King Mine blowout on August 5, the Tribe has been actively and 

extensively engaged in responding to the spill. Because of this experience, the Tribe 

has learned some lessons and is prepared to share our observations with the Committee. 

Tribal and Local Governments Were Particularly Responsive and EPA was 

Cooperative in Responding to the Spill 

The Tribe first learned of the Gold King Mine release when the Deputy Director 

of the Colorado Department of Natural Resources notified the Tribe’s Wildlife Resources Division on Wednesday afternoon, August 5, 2015. Our Tribe immediately 

responded by implementing its emergency management plan, contacting the La 

Plata County Office of Emergency Management, estimating when the contaminant 

plume would reach the Reservation, contacting EPA to determine the appropriate 

analyte list for water quality sampling, and commencing baseline water quality 

monitoring activities before the spill reached the Reservation. On Thursday and Friday, August 6th and 7th, tribal staff coordinated with EPA and La Plata County 

personnel, attended meetings, gathered information, and continued daily sampling 

on the Animas River. In the first days of the spill, however, it was largely the local 

jurisdictions who were responding to the incident. As of Friday, August 7th, EPA 

still did not have a coordinated effort in Durango. In the absence of a federal presence, local jurisdictions, including the Tribe, worked together as members of the 

Southwest Incident Management Team in coordinating a response. 

In accordance with the Tribe’s Incident Management Plan, Tribal Chairman 

Clement Frost issued a disaster declaration on Saturday, August 8th. Other jurisdictions followed suit. In the days that followed the release, the Tribe attended to 

the needs of the tribal membership. The Tribe posted signs closing access to the 

Animas River on the Reservation, commenced bottled water delivery to affected tribal members, provided water tanks for affected livestock owners, commenced delivery 

of water for livestock (the Tribe commenced delivering water to the tribal membership when the EPA contractor delivered water that was not suitable for livestock 

consumption), held informational meetings with tribal members, and offered temporary housing for affected tribal member families. The Tribe also coordinated and 

supported EPA testing of tribal member domestic water wells and irrigation ditches 

40 

in the impacted area within the Reservation. Subsequently, the Tribe purchased and 

installed 14 reverse osmosis systems on the kitchen taps of tribal member homes. 

For the duration of the response, tribal staff communicated, coordinated, and actively participated with personnel from other affected governments in the Unified 

Incident Command. The Tribe’s Incident Management Team was fully engaged in 

the Incident Command effort, which was headquartered in Durango, and worked 

closely with local, state and federal agencies throughout the response effort. Tribal 

Incident Management Team members staffed the center virtually around the clock 

to ensure that the Tribe was contributing its expertise to the response effort, as well 

as to ensure that the Tribe was treated as an affected jurisdiction. The Tribe has 

since received acknowledgement and thanks for its participation, expertise, efficacy, 

and professionalism in responding to the incident, and remains engaged in the Incident Command to this day. 

The spill response highlighted the importance of relationships between state, tribal, and local governments. The State of New Mexico first learned of the spill on August 6th when the Southern Ute Indian Tribe’s Water Quality Program called New 

Mexico’s Spill Reporting Hotline. New Mexico had not received notification from either EPA or Colorado at that point. The County and City attorneys reached out to 

tribal attorneys to share information and meeting notifications that they knew had 

not been shared with tribal attorneys. The Southern Ute Indian Tribe coordinated 

with its sister tribe, the Ute Mountain Ute Tribe, which draws water from the San 

Juan River. Other downstream tribes in the lower Colorado River Basin, including 

Chemehuevi, Fort Mohave, Quechan, and Cocopah reached out to the Southern Ute 

Indian Tribe for information about the spill and the Tribe’s water quality sampling, 

which the Southern Ute Indian Tribe shared. 

Today, water quality monitoring results show the water of the Animas River on 

the Reservation has returned to pre-spill conditions and the River has been reopened for all activities. Our primary concern remains the potential long-term impact on human health and the environment caused by the deposition of heavy metals on the Animas Riverbed. 

The Tribe Incurred Significant Costs from Responding to the Spill but 

Expects Full Reimbursement from EPA 

For the period from August 5th through September 8th, the Tribe incurred approximately $170,000 in costs responding to the spill, mostly in staff time. We understand neighboring community businesspersons suffered losses and our neighboring local governments, La Plata County and the City of Durango, with whom the 

Tribe shares many interests, likewise incurred costs. Long-term, we expect to incur 

costs for continued water quality and sediment monitoring. The Tribe is working 

with EPA to enter into a Cooperative Agreement whereby the EPA will reimburse 

the Tribe for costs already expended, as well as future costs that will be incurred, 

including the costs of continued water quality monitoring. 

The Tribe’s Water Quality Data Provided Important Information for 

Assessing the Spill’s Short-term Impacts and Continued Monitoring 

Should Provide Important Information on Long-term Impacts 

The Tribe has long had an active water sampling and monitoring program, and 

for over fifteen years has been monitoring water quality in the rivers that cross the 

Reservation, including the Animas. Before the Gold King Spill, the Tribe’s Water 

Quality Program had been maintaining three stations in the River with equipment 

that continuously collects pH, oxygen, temperature, and conductivity data. EPA 

funds this monitoring through a Clean Water Act tribal assistance grant. In response to the spill, the Tribe’s Water Quality Program established additional monitoring stations and expanded the list of substances for which the Tribe tests. The 

Tribe tested before the plume hit the Reservation, and for two weeks after the spill, 

the Tribe was testing daily for over 25 substances, including aluminum, iron, silver, 

magnesium, arsenic, cadmium, selenium, zinc, lead, mercury, barium, and molybdenum. The Tribe has since resumed its routine monthly sampling of water quality, 

quarterly sampling of macroinvertebrates, and taking pH, oxygen, temperature, and 

conductivity readings every 30 minutes. 

On Thursday, August 13, 2015, the Tribe shared the water quality data it had 

collected on the Animas River since the spill. The data from the lab was encouraging. The Tribe assessed the results against tribal and state water quality standards, as well as historical data. Initial pH data showed no dip below pH 7.4 on the 

Reservation. Aquatic life prefers waters in the 6.5–8.0 range. The Tribe shared data 

with EPA, the State of Colorado, La Plata County, local officials, and community 

stakeholder groups. The Tribe also prepared and shared historical water quality 

data to provide information on pre-release—or normal—river conditions. 

41 

The Tribe also has historical data regarding aquatic life in the River. Coincidentally, just two weeks before the Gold King spill, the Tribe had collected tissue samples from fish in the Animas River to conduct metals analysis on those samples. 

While the purpose of the testing was initially to assess potential human consumption concerns, the Tribe will continue to conduct these fish tissue studies to determine any toxicity impacts from the spill. This will allow the Tribe to assess the extent of bioaccumulation of toxins in the aquatic life in the River. 

The Tribe has been able to develop a highly successful water quality program, 

which has provided valuable support to the community in this response, due principally to EPA Tribal Assistance Program grant funding. We hope Congress and the 

EPA will see the benefits that the Tribal Assistance Program grants have provided 

to Indian Country and its surrounding communities and continue to appropriately 

fund these tribal grant programs. 

The Problem of Abandoned Mine Drainage Predates the Gold King 

Incident, and Addressing the Problem is Complex and Expensive 

Like others, the Tribe favors a full evaluation of events leading to the spill and 

the EPA’s performance responding to the spill. We can all learn from mistakes made 

and, based on a thorough evaluation of the incident and response, hopefully, EPA, 

the Tribe, and other responders can improve emergency response preparedness. 

It is important to keep this incident in perspective and understand it points to 

a much larger problem, one that has been 100 years in the making. In the late 19th 

century, the discovery of valuable minerals in the San Juan Mountains led to widespread trespass on lands set apart for the Utes under an 1868 treaty. As a result, 

the United States negotiated another agreement with the Utes in 1873 that carved 

3.7 million acres out of the middle of the Ute Reservation. That agreement, along 

with the 1872 mining law, paved the way for hard rock mining in the San Juan 

Mountains, one legacy of which is mining-related pollution of the Animas River. 

The Gold King is not the only abandoned mine polluting the Animas River basin. 

There are many others, and reportedly many thousands of abandoned mines that 

similarly degrade water quality in rivers across the West. There are an estimated 

23,000 abandoned mines in Colorado alone. We hope that the new light being shined 

on the long-standing problem of acid mine drainage in the Animas River basin will 

cause interested parties to develop a permanent solution. 

Federal Leadership and Assistance, and Communication, Collaboration, 

and Cooperation among Downstream Community Stakeholders and 

Federal, State, and Tribal Governments, is Key to Avoiding another 

Blowout and Addressing the Problem of Abandoned Mine Drainage 

Polluting the Upper Animas River Watershed 

Without Congressional support and federal leadership, the problem of acid mine 

drainage polluting the Animas River and other rivers will not be solved. The Tribe, 

State of Colorado, local governments, and stakeholders need federal assistance in 

exploring options for cleaning up the acid mine drainage problem, including possible 

Superfund designation for the San Juan Mountain area surrounding the Gold King 

Mine. The Tribe urges the Committee to support continued dialogue and collaboration and to provide direction in how the Tribe and other interested parties can help 

EPA respond to contamination threats, in order that EPA may fulfill its mission to 

protect, preserve and, where necessary, proactively remediate contamination sites 

that continue to threaten the Animas and other rivers. 

Conclusion 

The Tribe, through its Incident Management Team and Water Quality Program 

has made a significant contribution to the response effort on the Gold King incident. 

Based on ongoing discussions, we anticipate EPA will reimburse the Tribe for its 

direct costs incurred responding to the spill. The Tribe hopes Congress will fund, 

and EPA will assist in providing support for, long-term monitoring for impacts 

caused by the Gold King Mine spill. We also hope Congress will support EPA continuing to work cooperatively with Colorado and affected tribes, local governments, 

and community stakeholders to develop a permanent solution to the acid mine 

drainage problem in southwestern Colorado. 

Thank you for the opportunity to appear before you today. I am glad to answer 

questions the Committee may have. 

The CHAIRMAN. Thank you very much and we appreciate your 

testimony. 

Mr. Douglas Holtz-Eakin. 

42 

STATEMENT OF DOUGLAS HOLTZ–EAKIN, PRESIDENT, 

AMERICAN ACTION FORUM 

Mr. HOLTZ-EAKIN. Chairman Barrasso, Senator Udall, Senator 

McCain, thank you for the privilege of being here today. 

The Gold King Mine blowout is a clear environmental disaster. 

My goal is to shed some light on the larger economic fallout of the 

events. 

To do that, the first step is to actually get some sense of the scale 

of the environmental exposure. As has been widely discussed, the 

initial discharge was 3 million gallons, although there are reports 

of continued discharge at a relatively high rate of 610 gallons per 

minute. 

If one extrapolates that from the moment of the blowout to this 

hearing, there is an additional 37 million gallons of discharge into 

the watershed. 

The second step is to put some economic value on this discharge. 

The conventional way to do that is to add up the direct costs, alternative water supplies, hay, cleanup costs, add to that loss economic 

activity like empty hotel rooms and cancelled rafting trips and the 

spillover into the economic livelihood in the area. 

The data really were not sufficient to do that for purposes of this 

hearing. I still think that would be a valuable exercise. 

As an alternative, we chose to turn to the EPA itself as a source 

for the valuation of these toxic discharges. In particular, they 

issued a rule for restricting the discharge of a similar class of toxins from steam-powered electric utilities. As part of that rulemaking, they identified the value of minimizing these discharges 

and that looks like essentially 90 cents per gallon of discharge. 

If you take that number at face value, it says at the lower bound, 

the 3 million gallon immediate discharge, is a $2.7 million damage 

to the area. At the upper bound, it is a $36 million damage to the 

area. 

In doing so, I would emphasize that the EPA’s analysis is for sort 

of a study diminished discharge. It does not take into account the 

acute environmental impact of the spike in toxins, so it is probably 

a lower bound estimate of the kind of impacts you would get. 

In terms of perspective, it is also worth thinking about the fact 

that about 500 other such abandoned mine possibilities in the area. 

If we were to replicate the same series of disastrous steps, that is 

about a $1.35 trillion economic exposure. 

I would emphasize that there is an enormous amount of economic activity at risk and impacts to the region. As you well know, 

the watershed covers four States and many key rivers, the Animas, 

the San Juan and also Lake Powell but in particular, it affects the 

tribes whose representatives sit next to me. 

I think it is important to recognize these are populations not well 

situated to take that large an economic hit. As emphasized in the 

hearing already, poverty and unemployment rates hover above 40 

percent in some cases and these are economic institutions that rely 

heavily on water and have large amounts of agriculture. 

The Navajo Nation has about $40 million a year in production 

and $2.5 million in exports. Bearing the cost of these kinds of impacts is a severe hardship for the tribes. I think it should be a priVerDate Mar 15 2010 09:39 Mar 01, 2016 Jkt 098848 PO 00000 Frm 00046 Fmt 6633 Sfmt 6601 S:\DOCS\98848.TXT JACK
43 

* I thank Kim Van Wyhe and Jacqueline Varas for their assistance. All opinions expressed 

herein are my own and do not represent the position of the American Action Forum. 

ority to make sure that those costs are minimized as much as possible. 

In closing, I would emphasize two more things about that. First, 

it is obvious that the dry economic dollar should not capture the 

damages to cultural values and the kinds of things President 

Begaye talked about. You should look at all of this as sort of a 

lower bound on the impact the tribes will bear. 

The second is, from an economics point of view, it is not the actual damages and the actual duration of the environmental damage 

that matters. It is the perceived damage. If I am going to buy the 

export of Navajo cherries, as a customer what I care about is the 

perception that they might still be tainted by the discharge from 

the Gold King Mine. 

In that regard, clarity in the actual environmental damages and 

clarity in the health risks consumers of those products and producers of those products face is not just something which is I think 

a standard of good government-to-government relations, it is an imperative for repairing the economic damage of this blowout, to restore the confidence in the products these tribes produce. 

I thank you for the chance to be here today. 

[The prepared statement of Mr. Holtz-Eakin follows:] 

PREPARED STATEMENT OF DOUGLAS HOLTZ-EAKIN, PRESIDENT, AMERICAN ACTION

FORUM * 

Chairman Barrasso, Vice Chairman Tester and Members of the Committee, thank 

you for the opportunity to appear today to discuss the impacts of the Environmental 

Protection Agency’s (EPA’s) Gold King Mine disaster. In today’s testimony I wish 

to make three main points: 

• Although there is no direct precedent for the toxic Animas River spill in Colorado, past EPA estimates indicate that the spill could cost between $338 million 

and $27.7 billion; 

• If each of the 500,000 known Abandoned Mine Lands (AMLs) released as much 

toxic waste into the rivers as the Gold King mine, the total would amount to 

1.5 trillion gallons. Using the same method for estimating the lower-bound cost 

of the Gold King mine spill, the 500,000 AMLs would cost an estimated $1.35 

trillion dollars; and 

• Transparency within the Environmental Protection Agency remains elusive. 

The Gold King case shows inaction, poor planning and misleading statements 

by top officials. Prevention planning and mitigation were not adequately executed. 

Let me provide some background on the spill as well as detail to each of these 

points. 

Gold King Mine Blowout 

Ironically, in an attempt to prevent contaminating water, a team under the supervision of the EPA was the catalyst that caused over 3 million gallons of toxic waste 

to be released into the Animas River on August 5th, 2015. 1 These toxins included 

neurotoxins, lead arsenic, thallium and other heavy metals from the abandoned 

Gold King mine. The contracted company, Environmental Restoration LLC underestimated the built-up volume of water, and in an attempt to install a pump to draw 

out the water triggered the breach. 2 The polluted water, which has covered 300 

miles to date, entered the Animas and San Juan rivers through Cement Creek and 

has now reached Lake Powell in Utah. 3

The spill prompted emergencies in three states as well as two American Indian 

tribes, the Navajo and the Ute, which will bear the brunt of both the direct and 

indirect costs. Some of those costs are already apparent, while others will come to 

light months or even years from now. The toxins caused the wastewater coming 

44 

from the Gold King Mine to turn a mustard yellow color created by high acidity and 

iron bound to solid particles (see picture). 4 The abandoned mine was closed in 1923 

and is currently owned by Todd Hennis, President of San Juan Corp. 5

Source: IFL Science 

Tribal Impacts 

The spill, which has been identified as one of the worst hard rock mining related 

disasters in decades has been detrimental to its surrounding community. Local business centered around the river has dried up, farming has come to a halt and the 

sheer public safety threat that the 3 million plus gallons of toxic mining waste created has left waterways in Colorado, Utah, New Mexico and Arizona in peril. Studies suggest it will take decades to restore the affected waterways and surrounding 

areas. 6

The Navajo Nation is the largest Indian reservation in the United States with approximately 300,000 residents spread across 27,000 square miles. 7 After the San 

Juan River was contaminated with toxic heavy metals from Gold King Mine, Navajo 

leaders were forced to close the river for more than three weeks. 8 This left the reservation’s agricultural economy in significant danger, as the Navajo Nation’s 30,000 

acres of crops depend on river water for survival. 9 The polluted wastewater negatively impacted over 215 miles of farmland as well native populations of fish, wildlife, and livestock. 10 The spill took an additional toll on Navajo Nation residents, 

who utilize the river daily for cooking, cleaning, and bathing. The Navajo Nation 

declared a state of emergency on August 11, but both the Federal Emergency Management Agency (FEMA) and the EPA have rejected the tribe’s requests for federal 

aid. 11

According to the Navajo Nation’s Division of Natural Resources ‘‘Water is Life,’’ 

and ‘‘Without water, farming and raising livestock would not be possible’’. 12

Throughout the Navajo Nation, many communities were established and grew because of the water available to them. The Colorado River and San Juan River are 

some of the major waterways that go through Navajo Nation and Lake Powell, although not on Navajo land has more than 2,000 miles of southern shoreline located 

on the Navajo Nation. 13

Agriculture is the largest private-sector employer on the Navajo Nation. Navajo agriculture exports average $2.5 million dollars per year producing staples of pinto 

beans, corn, wheat and fresh produce such as apricots and cherries, total production 

comes out to around $37.5 million per year. 14 The tribes rely heavily on the San 

Juan River for both irrigation and for livestock needs to support this growing industry. For the past 42 days, $892,000 in revenue has been potentially lost, as the Navajo 

tribe has been unable to depend on the rivers due to the toxic waste. If this situation is not resolved soon, the Navajo’s agriculture industry could be crippled. Using 

the lost days and total production. The Navajo nation has the potential to lose $1.25 

million dollars per month or $41,000 dollars a day. A little over two weeks ago, Navajo Nation president Russell Begaye met with farmers to discuss plans to reopen 

the irrigation canal near the town of Shiprock, however due to the environmental 

degradation and safety hazards that are associated with the river the farmers overruled Begaye and voted 104–0 to maintain existing closures for a year. 15

The Southern Ute Indian tribe was the first to see toxic waste invade its waters, 

as the Animas River runs directly through its reservation. The reservation covers 

1,059 square miles in 3 counties and is comprised of the oldest residents of Colorado. 16 The Southern Ute Indians, like the Navajos, declared a state of local disaster after determining that the resources needed to manage the spill exceeded the 


916a1.eps
45 

tribe’s capabilities. Much like the Navajo Nation, the Southern Ute Tribe is dependent on river water for fishing, farming, and the preservation of its natural resources. 

Although the long-term effects of the spill on wildlife are not yet known, the EPA’s 

actions and subsequent closure of the Animas River has been detrimental to the 

tribe’s quality of life and local economy. 17 The Ute Mountain Ute reservation was 

also affected by the spill citing that portions of their 8,500 acre reservation were 

also affected by the Gold King blowout. 

In an independent assessment conducted by the Southern Ute Tribe it was noted 

that total response effort expenses that were incurred due to the spill have reached 

over $200,000 which has added a 45 percent burden to employee straight time. This 

number does not include the economic loss that has and will occurred as a result 

of the spill. 

Estimating the Costs of the Animas River spill 

Only time will reveal the full direct and indirect costs associated with this massive spill. The lost income, and impact on tribal living are yet to be seen but representatives from the Navajo Nation have said that the river is ‘‘an economic base 

that sustains the people that live along the river’’. 18

The American Action Forum (AAF) recently analyzed EPA data in a study entitled ‘‘What will EPA’s Toxic Animas River Spill Cost?’’ to determine the costs of 

toxic waste in the due to the Gold King Mine blowout. The study found that a new 

EPA regulation, which aims to limit the ‘‘amount of toxic metals and other pollutants discharged to surface waters’’ by steam electric power plants, attributes $424 

million of annual benefits for reducing 0.47 billion pounds of toxic discharge. Therefore, an approximate estimate for the benefit of avoiding toxic waste was found to 

be 90 cents per gallon ($424 million/470 million gallons). 19

When this estimate is applied to the Gold King Mine spill, the cost of the 3 million gallons of toxic wastewater spilled from the mine is estimated to be around $2.7 

million. However, the costs may be much higher. At last week’s hearing before the 

House Science, Space and Technology Committee, 20 Dr. Benn the Executive Director for the Navajo Nation Environmental Protection Agency stated that the chemical 

spill from the Gold King Mine continues to flow at a rate of 610 gallons per 

minute. 21 The spill was said to have occurred at 10:58 am Mountain Time Zone. 

Using the time of the occurrence as well as the estimated the flow rate, AAF determined that since the initial spill, 37,012,970 additional gallons of toxic waste have 

been flowing (as of the start of this hearing at 2:15 pm today). The additional 37 

million barrels brings the price tag to just over $36 million dollars and counting. 

The EPA’s power plant rule also serves as a useful guide for estimating the costs 

of the Gold King Mine spill because it refers to the prevention of arsenic and lead, 

toxic metals that were among those toxins released into the Animas River. However, 

the EPA’s estimates represent the benefits of avoiding gradual water pollution, not 

acute environmental disasters. Also, they do not take into account direct costs that 

were imposed on residents in surrounding areas, which resulted from their inability 

to access the river for farming, fishing, recreation, and tourism. When these factors 

are taken into account, the total costs of the EPA’s river water pollution may be 

significantly higher. 22

It should be noted that the EPA’s affluent discharge rule was not designed to regulate acute pollution events, but rather the gradual effects of water pollution. For 

example, the Animas River had 300 to 3,500 times the normal levels of arsenic and 

lead. In addition, the figure of $2.7 million probably does not account for the value 

of ‘‘non-use’’ benefits that EPA and the Department of the Interior (DOI) attempted 

to quantify in the past. Here, there are direct use costs because thousands of local 

residents, farmers, anglers, and tourists cannot use the river in its polluted state. 

Abandoned Mine Lands 

There are over 500,000 abandoned mines like that of the Gold King Mine in the 

United States. These abandoned mine lands or AML’s pose a serious threat to 

human health and the environment according to the Abandoned Land Mine Portal. 

Environmental degradation, including sedimentary and sediment contamination, 

water pollution, air pollution, threats to wildlife and endangered species and public 

safety concerns are just a few of the dangers associated with AML’s. 23 If each of 

the 500,000 mines released as much toxic waste into the rivers as the Gold King 

mine, the total would be around 1.5 trillion gallons. Using the same method for estimating the cost of the Gold King mine spill (at the lower-bound figure of $2.7 million) the 500,000 AML’s would cost the American taxpayer an estimated $1.35 trillion dollars. The map below shows the state of Colorado’s reclamation projects and 

includes the state’s abandoned mines and mines under remediation. 24

46 

According to the Bureau of Land Management (BLM), the AML program (which 

is run under the Department of the Interior’s Office of Surface Management) has 

a current funding request for $28.7 million dollars. 25 This is an increase of $1.3 million from last year. BLM states that ‘‘The Surface Mining Control and Reclamation 

Act established the Abandoned Mine Reclamation Fund to receive the Abandoned 

Mine Land fees and finance reclamation of coal AML sites. The increase includes 

$700,000 for applied science studies pertaining to abandoned mines and $291,000 

for project monitoring. Based on this funding it would take DOI over 143 plus years 

to pay for the cleanup of the 500,000 mines. 

In 2009, the BLM released a study entitled ‘‘Feasibility Study for AML Inventory 

Validation and Physical Safety Closures’’ 26 that determined the total cost to complete field validation and physical safety remediation at 22,104 AML physical safety 

sites came out to $402.6 million. BLM concluded that of that $402.6 million, $11.4 

million would be required to field validate and remediate all high-priority sites impacting public safety and that $12.6 million would be required to field validate and 

remediate the medium priority sites and an additional $377.7 million would be 

needed to field validate and remediate sites that are characterized as low priority. 

This price tag to ensure physical and environmental safety is miniscule in comparison to the cleanup and remediation efforts that would be needed if more of these 

spills were to occur. 

EPA Transparency 

In 2014, the EPA was warned that that there was a serious risk of a blowout at 

the Gold King mine. This raises the question as to why the EPA wasn’t prepared 

for such an incident and didn’t have proper containment procedures in place? According to a 92-page document that was released by the EPA ‘‘Conditions may exist 

that could result in a blow-out of the blockages and cause a release of large volumes 

of contaminated mine waters and sediment from inside the mine, which contain concentrated heavy metals. 27 ’’ Despite the explicit warning the EPA did nothing to 

mitigate the problem. In fact, no remediation work or maintenance had been done 

on Gold King mine in almost a quarter of a century. The aforementioned documents 

did not include any details of the spill and many of the 92 pages were redacted leading to questions regarding to transparency within the agency, reports cite that much 

of the redacted information came from the 2013 safety plan. It was also revealed 

that it took the EPA nearly a day to inform local officials of the incident; for 24 

hours there were people and businesses relying on this water source without any 

knowledge of the toxins that were running rampant. 

EPA Chief Gina McCarthy declared a moratorium on all mine remediation across 

the country until it can be concluded how the Gold King spill occurred. 28 McCarthy 

said the EPA will take time to ‘‘properly review and analyze the data’’ which is leaving the surrounding communities waiting for answers. 

Conclusion 

The Gold King Mine spill will cost a significant amount to clean up, and an unknown additional amount to monitor residual effects from the toxins. These factors 

will make the indirect costs as a result of the spill also indefinite for quite some 

time. Communities are in danger and the tribes who depend on these rivers have 

to find alternate water sources or relocate in order to survive. 


916a2.eps
47 

Had the EPA taken the proper precautions and heeded their own warnings, this 

situation could have been avoided. The avoidance and lack of preparation for abandoned mine lands in the United States is quite evident, and potentially quite costly. 

It would be prudent of the EPA and DOI to come up with a plan in order to not 

be in the same position again and impose on the American taxpayer the costs of 

another careless mistake. 

Thank you for your time and I am happy to answer any questions you may have. 

Sources 

1http://www2.epa.gov/goldkingmine 

2https://www.cpr.org/news/story/gold-king-mine-1887-claim-private-profits-andsocial-costs 3http://www.huffingtonpost.com/entry/epa-knew-of-risk-for-toxicspilll55d8f1afe4b0a40aa3ab32e3 4http://www.iflscience.com/environment/canary-gold-king-mine-legacy-abandoned-mines-means-more-spills 5http://www.cpr.org/news/story/gold-king-mine-1887-claim-private-profits-andsocial-costs 6http://www.theguardian.com/us-news/2015/aug/10/colorado-spill-animasriver-durango-toxic-orange 7http://www.discovernavajo.com/fact-sheet.aspx 

8http://www.denverpost.com/news/cil28720782/navajo-nation-reopens-irrigation-canal-3-weeks-after 9http://gazette.com/navajo-nation-says-it-feels-brunt-of-colorado-mine-leak/article/1557261 10http://www.marketplace.org/topics/sustainability/navajo-nation-among-thoseaffected-mine-disaster 11http://www.kob.com/article/stories/s3898844.shtml#.Ve9BUlRSJ2w 12http://dnrnavajo.org/ 13http://dnrnavajo.org/ 14http://www.progressive-economy.org/tradelfacts/navajo-farm-exports-2–3-million-per-year/ 15http://www.theguardian.com/environment/2015/aug/26/gold-king-mine-spillnavajo-nation-farmers-animas-river-water 16https://www.southernute-nsn.gov/ 17 http://indiancountrytodaymedianetwork.com/2015/08/13/southern-ute-tribe-declares-disaster-over-mining-spill-animas-river-161377 18http://nypost.com/2015/08/12/navajo-nation-feels-brunt-of-colorado-mineleak/ 19http://americanactionforum.org/insights/what-will-epas-toxic-animus-riverspill-cost 20https://science.house.gov/sites/republicans.science.house.gov/files/documents/ 

HHRG-114-SY-WState-DBenn-20150909.pdf 21http://www.usgs.gov/blogs/features/usgsltoplstory/understanding-the-effects-of-abandoned-mine-lands-on-the-environment/ 22http://americanactionforum.org/insights/what-will-epas-toxic-animus-riverspill-cost 23http://www.abandonedmines.gov/ 24https://www.cpr.org/news/story/gold-king-mine-1887-claim-private-profitsand-social-costs 25http://www.osmre.gov/ 26http://www.blm.gov/style/medialib/blm/wo/MINERALSlREALTYlANDlRESOURCElPROTECTION—/aml/ 

amlldocuments.Par.86129.File.dat/AML%20FeasibilityStudylPSH.pdf 27http://www2.epa.gov/region8/upper-animas-mining-district 28http://www.popsci.com/secret-history-epas-animas-river-spill 

The CHAIRMAN. Thank you very much. 

Dr. David Weindorf. 

STATEMENT OF DAVID C. WEINDORF, ASSOCIATE DEAN FOR 

RESEARCH, COLLEGE OF AGRICULTURAL SCIENCES AND 

NATURAL RESOURCES, TEXAS TECH UNIVERSITY 

Mr. WEINDORF. Chairman Barrasso, Senators McCain and Udall, 

thank you kindly for the opportunity to testify before you this 

afternoon. 

48 

My name is Dr. David C. Weindorf. I serve as Associate Dean for 

Research in the College of Agricultural Sciences and Natural Resources at Texas Tech University. 

Approximately two weeks after the Gold Mine Spill, I was contacted by Rick Strait, New Mexico State Soil Scientist for the 

USDA Natural Resources Conservation Service. He urgently requested my help in assessing soil quality in and along the Animal 

River Watershed in northwestern New Mexico. 

Quickly, a partnership was forged between the NRCS, New Mexico State University, who operates a field research station in Farmington, New Mexico, represented today by Dr. Kevin Lombard here 

with us, as well as myself of Texas Tech University, a soil scientist 

with expertise in advance soil spectroscopy techniques. 

From September 1 through 3, Dr. Lombard and I used a portable 

x-ray fluorescent spectrometer, hereafter referred to as a PXRF, to 

make elemental analysis of the reddish orange sludge released as 

part of the spill. 

We also revaluated farm fields irrigated by the water taken from 

the Animas River, as well non-irrigated soils in the valley which 

we scanned as control samples. In all, we scanned 140 samples in 

three days. 

The PXRF spectrometer measures around 20 different elements 

on-site in 60 seconds with parts per million accuracy and is backed 

by reference methods set forth by the NRCS, Soil Science Society 

of America, EPA and several European agencies. 

My scanning extended from the farms on the Navajo Nation up 

through the farming communities of Farmington and Aztec, north 

into Colorado and ended just north of Durango, Colorado where 

remnant sludge from the spill was still widely present all over the 

river shorelines as you will see in photo 1. 

Even though the large initial pollutant plume has now passed 

and the water has once again become clear, in parts of the river, 

large amounts of the contaminant sludge remains. I call your attention to the photo where you clearly see the river flowing clearly 

but it is bordered by the deposition of reddish orange sludge along 

the river banks and in the sediment along the bottom of the river. 

Using the PXRF spectrometer, we determined that he lead concentration of the sludge average 637 ppm, more than ten times the 

background level of lead in the control soils of the area. Notably, 

the residential screening limit for lead concentration in soils is 400 

ppm. 

Similarly, the sludge displayed high levels of arsenic, zinc, copper 

and iron relative to control soils of the area. I am aware this disputes the conclusion previously voiced today that pre-spill levels of 

elements are now present along the river. Clearly, they are not. 

Luckily, farmers of the Animas River Valley were quick to close 

off the irrigation ditches connected to the river, thus keeping the 

worst of the pollutant plume, that reddish, orange, cloudy water, 

from entering their farm fields and irrigation systems. 

Now that water has once again turned clear, I am worried about 

an even more insidious threat that looms. With the water clear, the 

television cameras are gone and the farmers are starting to turn 

on their irrigation water once again from the Animas River. 

49 

However, the large volume of contaminated sediment found both 

on the river embankments and within the river channel itself, as 

you see in photo 3, will now make its way downstream in small 

amounts, a sort of death by paper cuts, if you will. 

Hydrologic pulses to the river caused by spring snow melt and 

flash floods will now wash small amounts of the pollutant into the 

river as suspended sediment. Photo 4 shows a kind of muddy water 

of the suspended sediment in the Animas River flowing through 

the Navajo Nation just three weeks ago while I was there. 

This suspended sediment translocation can occur for years to 

come, posing a threat of bioaccumulation in the soils and crops irrigated by Animas River water. 

The CHAIRMAN. I want to make sure we are caught up with the 

pictures. 

Mr. WEINDORF. Yes. 

The farmers have once again started to irrigate but small 

amounts of the metals, most of those which are positively charged 

cat ions, will be deposited into the soils and bind to negatively 

charged soil particles which will accumulate over time. You see 

that irrigation in my last photo. 

Subject to funding approval, the NRCS, New Mexico State, Texas 

Tech team has already devised a plan and has that plan in place 

to provide long term monitoring of the farm fields in the Animas 

River Valley through extensive on-site PXRF scanning and monitoring the fields irrigated with Animal River water to include farms 

on the Navajo Nation. In fact, we have already demonstrated this 

PXRF technology to the Navajo Nation and EPA. 

For long term assessment, we seek to work directly with local 

farmers who trust both NRCS conservation programs as well as 

New Mexico State University outreach efforts. In essence, this is 

local people helping local people. 

Without this type of monitoring to ensure soil quality of the area, 

I feel the public perception of the food and fiber produced in the 

river valley will be harmed and the quality of the soils will be 

placed at risk. 

We stand ready to work with local farmers of northwest New 

Mexico and on the Navajo Nation to ensure optimal agronomic production in the face of this environmental degradation. 

Thank you again. I will be glad to take any questions you may 

have. 

[The prepared statement of Mr. Weindorf follows:] 

50 

PREPARED STATEMENT OF DAVID C. WEINDORF, ASSOCIATE DEAN FOR RESEARCH, 

COLLEGE OF AGRICULTURAL SCIENCES AND NATURAL RESOURCES, TEXAS TECH

UNIVERSITY


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*The Gold King Mine Animas River Spill Preliminary Assessment of Surface 

Water, Sediments and Irrigation Ditches by Kevin Lombard and April Ulery 

has been retained in the Committee files.* 

The CHAIRMAN. Thank so much, Dr. Weindorf. 

Mr. HARRISON. 


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59 

STATEMENT OF GILBERT HARRISON, RANCHER AND 

IRRIGATOR, NAVAJO NATION 

Mr. HARRISON. Ya ́a ́’a ́t’e ́e ́h, Chairman Barrasso, Vice-Chairman 

Tester, and members of the Committee. 

I am Gilbert Harrison, a member of the Navajo Tribe and work 

a 20 acre farm located on the Navajo Nation, a community called 

Gadii’ahi, along the San Juan River. Thank you for allowing me to 

address this important Committee. 

I am 73 years old and have a wonderful wife, Gloria, an equal 

partner in our farming operations. I spent four years in the Marine 

Corps during the Vietnam conflict. I am a disabled veteran. 

I have a Masters Degree and a Bachelors Degree in Electrical 

Engineering and am also a registered professional engineer. I 

worked in the aerospace industry and finished my engineering career with the Indian Health Service at the Navajo Area Office. 

I was raised on a farm, except for the time I was away for education, military service and career. I am now back to farming and 

sheep ranching. We have a small farm growing alfalfa, hay grazer, 

corn, watermelon and cantaloupe. 

We grow Native corn for traditional use and its pollen for Navajo 

ceremonies. This Navajo corn is very specific to our region and the 

seeds are handed down through generations. 

I first heard of the Gold King Mine spill a day or two after the 

spill. I did not realize the magnitude of the spill until Navajo Nation President Begaye declared a state of emergency. Then I realized we had a serious water situation. 

To try and save some of our crops, we hauled water from a tank 

provided by the BIA. USEPA provided tanks but we could not use 

water from these tanks because the tanks were contaminated. 

Due to our age and physical abilities, we were only able to water 

our melons. Alfalfa, grazer and corn require lots of water, so they 

went without water and are damaged. It is a feeling of helplessness 

to watch your crops dry and die. 

We will have to wait until the end of the growing season to determine our real losses, but for sure, we have lost about 40 percent 

of our alfalfa, 50 percent of our hay grazer, 50 percent of our corn 

and 20 percent on the watermelons. 

Annual crop and losses are for a single year. However, alfalfa 

losses are long term, several years. These are cash crops and this 

disruption is a major setback. 

I do not have crop insurance and I will have to rely solely on my 

claim to USEPA by a Standard Form 95. My concern is that 

USEPA may take a hard line and shortchange many of our claims 

because our farmers are not familiar with the process and are not 

familiar with the correct units of measure to quantify losses. 

We ask Congress to urge EPA to be user friendly. After all, they 

have put us in this situation. Hopefully claims are processed in a 

timely manner. 

This disastrous spill has caused social conflicts within our communities and it will take a long time to heal. The spill has caused 

friction between communities, between farmers and even brothers 

against brothers over who gets water, who does not get water and 

when. This is a serious issue we have not experienced before and 

resolving it will be very difficult. 

60 

I am very disappointed and greatly upset with the USEPA for 

putting us in this situation. As an engineer, I understand no matter how careful a design, Murphy’s Law, if it will go wrong, it will 

happen. In this case, contingency plans may not have been developed. I do not feel that USEPA or its contractors were prepared for 

this tragic event. 

We and our neighbors are now suffering the consequences. EPA 

should be required to design and construct safe containment and 

treatment systems to prevent future spills. 

In closing, we are citizens of the United States. All we are asking 

is for fair and equal treatment to make us whole. This spill has 

completely disrupted our lives, economic wellbeing and social values. 

Despite this awful event, we will continue to farm with the land. 

There is much joy in farming. With your help, we will continue to 

farm and irrigate from a safe water source. 

Ahe ́hee. Thank you for providing me time to share with you our 

situation. I am available to answer any questions you may have. 

Thank you. 

[The prepared statement of Mr. Harrison follows:] 

PREPARED STATEMENT OF GILBERT HARRISON, RANCHER AND IRRIGATOR, NAVAJO

NATION

Ya ́a ́’a ́t’e ́e ́h (hello) Chairman Barrasso, Vice-Chairman Tester, and Members of the 

Committee, my name is Gilbert Harrison. I am a member of the Navajo Nation and 

I have a 20 acre farm located in a community on the Navajo Reservation called 

Gadii’ahi, along the San Juan River. My community has been directly impacted by 

the spill. Gadii’ahi is part of the San Juan River Farming Project, which consists 

of six chapters that depend entirely on the River for irrigation needs. All of the 

farms in this Project are mom and pop farm plots, in that they are 2, 5, 10 and 

in a few instances 20 acres in size. My plight is very similar to the majority of these 

farms. Thank you for allowing me to speak before this Committee. 

Just to give you a little background about myself, I am 73 years old. I have been 

married to a wonderful woman, Gloria, for over 25 years, and I have raised 4 sons. 

I spent 4 years in the Marine Corps during the Vietnam era. I also received my 

Bachelors of Science and Masters degree in Electrical Engineering from Loyola 

Marymount in Los Angeles, California. I am a registered Professional Engineer in 

the State of Arizona. After college, I remained in Los Angeles for 5 years doing 

Aerospace Engineering work. Thereafter, I came back to Window Rock, Arizona and 

worked for the Navajo Nation in their Division of Economic Development for 6 

years. I then worked for Indian Health Service in Window Rock at their Navajo 

Area Office for another 28 years. I retired from office work in 2007 and have been 

farming full-time since. 

I was raised on a farm and have been actively farming for 25 years. On my farm, 

presently, I have about 7 acres for alfalfa and the rest of the acreage are divided 

for corn, watermelon, cantaloupe and hay grazer. I would estimate about 50 percent 

of my crops go toward our personal use and 50 percent go toward sale to other Navajo ranchers. We are also sheep ranchers. We use the sheep for our own personal 

use. I have a small farm, so the income from my farm is too small to make a living 

from. I depend heavily on my retirement pay. I sell a little bit of alfalfa here and 

there. I also sell some Navajo traditional foods converted from corn, such as steamed 

corn and kneel down bread and corn pollen, which is used during Navajo traditional 

ceremonies. This type of corn is a Navajo traditional type of corn that comes from 

a specialized seed handed down from generation to generation. The remainder of my 

crops is for household consumption. I also share some of my crops with extended 

family. We use some of the alfalfa and hay grazer for our sheep, which are now at 

our summer camp atop the Carrizo Mountains, located about 40 miles west of 

Shiprock, New Mexico, an area not affected by the spill. 

I first heard about the spill at the Gold King Mine from our Honorable Navajo 

Nation Council Delegate, Amber Crotty, about a day or two after the spill occurred. 

It was along the lines of ‘‘did you hear there was a spill and there’s a large gold 

plume headed our way?’’ The Navajo Nation Irrigation Office shut off the irrigation 

61 

water from the San Juan River around the same time. Occasionally, water also gets 

turned off due to maintenance or other issues. So, at that particular time, I did not 

realize the extent of this event and the effect it would have on my farm. However, 

after Navajo Nation President Russell Begaye declared a State of Emergency and 

put a ban on San Juan River water use, I realized we were in for some rough times. 

I had to get water to my crops! I started hauling water for our watermelons and 

cantaloupes from a tank that was provided by the Bureau of Indian Affairs. Additional water tanks were also provided by the U.S. EPA, however we had received 

word that those tanks were contaminated, so we did not take water from those 

tanks. 

Alfalfa has roots that extend about 12 to 18 inches deep into the ground. As such, 

they require a lot of water, up to 3 irrigations between cuts and there are normally 

3 cuts per season. Corn also requires frequent watering. At my age of 73, I do not 

have the physical capability or the equipment to provide the water necessary to 

keep these crops fully watered. I only had the capabilities to provide water for my 

watermelons and cantaloupes, so I had to leave the corn and alfalfa to suffer. 

It’s difficult to determine at this time what my losses are with regards to alfalfa 

and corn. I will have to wait until the end of this growing season, in November, 

to figure out the loss on my annual crops. In early spring we will be able to see 

the areas of no growth and where we need to replant the alfalfa. However, I roughly 

estimate a 40 percent loss in alfalfa at this time. Generally, alfalfa has a life span 

of about 6 to 7 years, and we are about 3 to 4 years into this cycle. Due to this 

event, we will also have to buy and replant seeds to replace the damaged alfalfa 

stands earlier than expected. This means plowing under the entire alfalfa stand, 

planting rotational crops for two years, and then finally replanting alfalfa. This is 

an additional economic burden in labor, equipment wear and tear, fuel, seeds and 

fertilizer. I also roughly estimate a 50 percent loss of my corn and a 20 percent loss 

of my cantaloupes and watermelons. My loss on hay grazer is maybe about 50 percent. These are all very rough estimates of losses that I did not anticipate! 

I do not have many sources to go to in order to recoup my losses. My farming 

operation is small, so I cannot carry the expense of having any crop loss insurance. 

As such, it looks like I will have to rely on a claim to U.S. EPA to recoup my losses. 

We did receive U.S. EPA’s Standard Form 95, however we have not filled it out yet. 

We will not know the full extent of our loss until early spring, particularly in the 

area of alfalfa, where losses are seen not only for this year, but for years to come. 

EPA needs to consider this when they review our claims. Additionally some of the 

native crops do not fit into a ‘‘can’’ unit of measure, so U.S. EPA will have to be 

understanding. I am hoping that when I do submit a claim to the U.S. EPA, they 

will make good on reimbursing me for my losses in a timely manner. I am a little 

worried that by the time I submit my claim, U.S. EPA may no longer be under pressure from the media or Congress. As such, they may not be as willing to reimburse 

me for my losses. I hope Congress and other leaders will keep checking on the U.S. 

EPA to prevent this from happening. 

This disconcerting spill event has cause social issues that may take a long time 

to heal, such that it pitted farmers and communities against each other, farmer 

against farmer, and in some cases brother against brother. Because of the contamination, there are some communities that still do not trust the water from the San 

Juan River. As such, they voted to keep their water system off. There are other 

farmers within these communities who did not agree with that decision, which 

placed them at odds with each other. Then, on the other side, there are communities 

who voted to have their irrigation water turned back on and their waters were 

turned on. Unfortunately, our community of Gadii’ahi is on the tail end of the system that did not get turned on. However, after a recent vote by my community to 

have water restored, Gadii’ahi was able to receive minimal amounts of water directly from the San Juan River by a pump system provided by the Navajo Nation 

last week. After about 5 weeks, I am finally getting water to my crops. The water 

supply is about half of the typical amount due to the capabilities of the pump, but 

I take whatever water I can get. 

This spill caused by the U.S. EPA created a lot of chaos, confrontation, confusion 

and losses among the farming community. As such, I am very disappointed and 

greatly upset with the U.S. EPA. As a engineer, I understand that no matter the 

design, you have to prepare for contingencies. I do not feel that the U.S. EPA, nor 

their contractor, was prepared for this tragic event. We had to suffer and still are 

suffering the consequences. To prevent future reoccurrence of this disaster, EPA 

should be required to engineer and implement a design that will contain, treat, and 

minimize release of toxic water at the source. 

62 

Despite this event, I will continue farming. I love farming and working the land. 

I expect I will be doing it until I am no longer able to. With your help, I hope that 

I will continue farming and irrigating from a safe and continuous water supply. 

Ahe ́hee.’ Thank you for providing me a little of your time to explain my story. I 

am available for any questions you may have. 

The CHAIRMAN. Thank you very much. 

Thanks to each and every one of you for your testimony. 

I am going to start with Senator McCain. 

Senator MCCAIN. Mr. Harrison, thank you for your service to our 

Country. Thank you for a very eloquent statement that I think 

brings into focus the emotional stress that has been unnecessarily 

placed on you and all of your fellow members of the Navajo Nation. 

President Begaye, because I was there, I want to thank you for 

your leadership and your rapid action at the time this disaster happened. I do not know of any excuse for waiting five days before calling you. I think it is disrespectful to the nation-to-nation relationship that is the foundation of our Nation. 

I guess my first and maybe only question to you is, especially in 

light of Mr. Harrison’s testimony, how would you describe the 

stress that your citizens of the Navajo Nation have exposed to as 

a result of this? 

Mr. HARRISON. Thank you, Senator. 

It is devastating because we are faced with tremendous amounts 

of miscommunication of whether things are okay, whether things 

are not okay and you do not know which way to turn. I think that 

is the biggest stress we experience because we do not know who to 

trust anymore. That really is a problem. 

Senator MCCAIN. Thank you. 

Mr. BEGAYE. Thank you, Senator McCain. 

It is really disheartening to stand alongside a farmer, his wife, 

standing out in the fields saying that we used to sing to our crops, 

get up early in the morning and offer prayers, thankful that we 

have corn, that we have hay, that we have melons, squash and 

pumpkin. 

Now, I have seen watermelon the size of this bottle of water. I 

know that it is gone. They know it is gone but I see them and we 

still take our five gallon bucket of water and are still giving water 

to that watermelon because like our children, we are not going to 

abandon them. We will stay with them all the way until they are 

gone. It is a total loss for them. 

Not only that but this week one community experienced three 

suicides. We have loss three precious souls, all because of this uncertainty that has developed, the lack of help. When you see the 

water buffalo that is there containing 15,000 gallons of water, 

when you do not see hay coming anymore, when you are being 

abandoned in your greatest time of need, what do you do? It causes 

great amounts of stress. 

This week, we loss three souls down in the community that uses 

this river and this water. We are stressed out. Our people are 

stressed out. 

I will say this about my Navajo Nation people. We are strong, 

we are resilient and we will recover. We will help each other. We 

just ask this Committee to walk alongside us. Come back three 

months from now, six months from now and have a hearing right 

63 

there in our community. Have a field hearing and listen to our people. They will greatly appreciate what you have done for us today. 

Thank you, Senator. 

Senator MCCAIN. I thank you, Mr. President. I will discuss that 

possibility with the leader of our Committee who is very much committed and deeply moved by the situation and your words. We will 

do everything we can. 

In the meantime, I say the Navajo Nation is very fortunate to 

have your leadership in this very difficult time. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator McCain. 

Senator Udall? 

Senator UDALL. Thank you, Chairman Barrasso. 

Let me also echo what Senator McCain said. We very much appreciate your leadership, President Begaye. You have given a very 

passionate statement today on behalf of your people. You have 

shown to be a very forthright and excellent advocate for the Navajo 

people. 

I also think the government-to-government relationship could 

have been done much better. We will stand with you to make sure 

it improves every day into the future as you go through and work 

through all these difficult issues. 

In your testimony, you mentioned the Navajo people need compensation and need it now. What advice are you giving individual 

Navajos, President Begaye, on what they should do? I know you 

have given some strong advice on the Form 95 but what should 

they do in terms of trying to get together the information to get it 

to the EPA? What advice are you giving there? 

Mr. BEGAYE. First of all, we are asking the EPA and this Committee to lean heavily on EPA to waive that waiver of final settlement and our people get a check from EPA for one week of hauling 

water and paying for hay. That will be the end of their settlement; 

that will end the amount of monies that EPA will pay them and 

that will be the end of it. 

We know that this loss is going to continue, not just for a month 

or three months or this farming season. They told us, the EPA told 

us, that the cleanup will take decades. That is what they said to 

us verbally. Taking that to heart, our people will hurt and suffer 

economically from this for decades. 

We are saying to them keep a close record of what you have 

spent already, take photos of your crops, take photos of you hauling 

water and keep close records of this. Go ahead and start filling out 

the Standard Form 95 but do not sign it. 

We are asking EPA, we are asking members of this body to make 

sure that we are given an interim form to use, not that particular 

form but we need an interim form our people can use so that they 

are compensated for their losses this week, next week and months 

after. That is what we are saying to them. 

We would greatly appreciate this Committee helping us put that 

waivered language in that form so our people will be justly compensated for all their losses. 

Senator UDALL. Thank you. 

64 

You have urged the EPA to designate the upper Animas as a 

Superfund site. That is something I support. Can you tell us the 

importance this action would have to the Navajo Nation? 

Mr. BEGAYE. They were told this blowout was going to happen, 

that it was going to happen soon and they did not take care of business and they did not address adequately. 

I stood at the mouth of the mine with the worker telling me what 

he was doing when this spill took place, an EPA worker over 40 

years working for EPA was the person working the backhoe when 

the spill took place. He told me the story step by step on how this 

all happened. 

He said the other mines on the other site was about to do the 

same thing. We know it, EPA knows it but nothing is being done 

about it. 

It is urgent that EPA address this and address it now because 

there is another disaster of this proportion ready to happen. We 

are saying declare it a Superfund site, deal with it, clean it up because we are the ones that will suffer in the long run. 

It is astounding for me to sit here this day to hear that 330 million gallons pour out of those mines every year. Where do they go? 

They come onto the Navajo Nation land. We are becoming a waste 

dump for those contaminants and I am astounded to hear that 

being repeated over and over from our leaders, the EPA and no one 

has stopped to say where are they going. 

I will say even though the 300-plus million gallons pour out 

every year, it is not yellow like it was when a large amount came 

at one time. Those need to be cleaned up and cleaned up by the 

EPA. They need to clean up their mess. 

Thank you. 

Senator UDALL. Thank you, President Begaye. 

Also, Chairman Barrasso, the Chairman, the Speaker of the Navajo Council was unable to be here with us. His name is Lorenzo 

Bates. He asked that his testimony be submitted for the record. 

The CHAIRMAN. Without objection. 

I would like to follow up, President Begaye. 

I hear your concerns. We talked on the phone. I spoke with you, 

your attorney general and other members be had met prior to this. 

Can you explain the tribe’s experiences with EPA and your assessment essentially of their capabilities, their competence and 

their attitude? Could you talk a bit about capabilities, competence 

and attitude? 

Mr. BEGAYE. Our people are questioning all three because one, 

they knew about it and did not do anything about it. They could 

have resolved the issue before it even started, but they did not. 

That is one. 

Today in the hearings this morning and this afternoon, we are 

being told they are still there on the ground helping us with water 

and hay. That is not true. They pulled out and are not there anymore. The tanks are not on the ground. Hay is not being delivered. 

We were told just a few moments ago, the Administrator said we 

are delivering hay. On this past Monday, she called on a conference 

call, two days ago that they will continue to deliver hay until this 

Friday. How convenient. It has always been that. 

65 

The thing they said last week during the hearing, the Science 

and Technology hearing, everything that was said then, the promises that were made, have remained empty. We have not seen any 

movement from EPA. They have not done what they said they were 

going to do last week. We do not anticipate them honoring what 

they said today. 

We will hold back. The promises are empty now. There is no 

movement taking place, no water is being delivered, no hay is 

being hauled to our communities that desperately need it. 

As I said over and over, they created a culture of distrust. We 

can do the work ourselves. EPA needs to just give us the dollars, 

give us the lab we need and we will test our soil and test our waters. We have competence staff to make that happen. 

The CHAIRMAN. Thank you. 

Can you talk about some of the discrepancies, what we heard 

from the Administrator today and what you are seeing on the 

ground? There is a significant difference. I wanted to ask you, Mr. 

Olguin, a similar line in terms of something we heard from the Administrator today. 

The question is, when did the EPA Administrator actually first 

talk to the Southern Ute Nation Chairman Clement Frost about 

this disaster? The Administrator testified that it was a certain 

date. I understand it was actually much later than that. 

Mr. OLGUIN. Chairman Barrasso, my understanding is that Administrator McCarthy called the Chairman Frost this past Monday, 

September 14th at approximately 1:30 p.m. in the afternoon. 

My understanding is the conversation was probably two to four 

minutes and really addressed the appreciation for us working with 

them but also was highlighting the initiation of the cooperative 

agreement for reimbursement for costs, a two to four minute conversation this past Monday. 

The CHAIRMAN. In terms of your commitment, can you talk a bit 

about how much money the tribe has spent, without reimbursement, on measures to respond to the spill, installing water filters, 

bottled water to your community and different things related to 

that? 

Mr. OLGUIN. Yes. To date, we have expended approximately $170,000. We expect that number to go up even higher as we continue to do long term monitoring. This was all on the tribe’s dime. 

We took it upon ourselves to initiate assisting our tribal membership with delivery of water for their own consumption and of course 

their animals. 

Even today, we installed reverse osmosis units in tribal member’s homes to ensure that they do have continued safe drinking 

water. That may expand further into their homes for a full home 

system as well. The costs will still continue. 

The CHAIRMAN. You did that because you thought you could not 

rely on the EPA or FEMA to be there for you? 

Mr. OLGUIN. We have always taken the position we will take 

care of ourselves first and then of course seek reimbursement as 

a second approach. It is because those relationships cannot depend 

on the Federal Government to timely respond. 

The CHAIRMAN. Mr. Harrison, my home State of Wyoming is a 

ranching State. Every day our ranchers, both on and off the Wind 

66 

River Reservation, face hardships in running their ranches. Whether it is having enough water to irrigate land to grow alfalfa or dealing with livestock disease, running a ranch is never an easy business. 

The EPA does not appear to make it any easier for tribal ranches 

like you and others on the reservation that have been impacted by 

the spill. You talked about family versus family, neighbor versus 

neighbor. 

Can you talk a bit in detail about the trauma that the Navajo 

Nation ranching community is experiencing right now as a result 

of this EPA disaster? 

Mr. HARRISON. Thank you, Mr. Chairman. 

That is an issue because we have communities we call chapters. 

Some of them are very adamant about not turning on irrigation 

water. In our case, we are at the very end of a major irrigation system. We prefer to have our water to try to save our large alfalfa 

fields. Because of that, we are at odds with other communities. 

We are also having discussions with our neighbors about the 

water itself even within our own community because as a farmer, 

a lot of times we take our grandkids out there to teach them how 

to irrigate. Guess what, they love to play in the water and they get 

wet. 

The question is, is the water really safe now that we have been 

hit with this disaster? The mothers and grandmothers especially 

ask that question. What happens? 

I think these are the social issues for those who have been impacted and had this inflicted upon us. It is going to take a long 

time to get over this. 

Thank you. 

The CHAIRMAN. Dr. Weindorf, in your written testimony, you 

state that the water ‘‘will likely appear quite clear and usable but 

the likelihood of small amounts of metals contained in the slowly 

migrating sludge will have the potential to accumulate in farm 

fields over time.’’ Is that an accurate assessment of what you said? 

Mr. WEINDORF. Yes, sir. 

The CHAIRMAN. You urge, of course, careful observation, recommend clean up of the sludge in areas where it is apparent and 

accessible. In your opinion, is the EPA not focusing enough on the 

health risks and potential impacts to the communities of the sludge 

moving downstream and into the irrigation ditches? 

Mr. WEINDORF. I would say I was really taken aback when I was 

there in New Mexico making assessments with the NRCS and New 

Mexico State at the overall lack of emphasis being put on things. 

I know there are people in the area working on things but using 

older, traditional methods. They are collecting soil samples, sending those off to a lab and waiting for weeks for those results to 

come back. It is a spot check here or there. 

We come on site with our technology and are able to do 140 sites 

in different places in three days. In fact, when the rancher or farmer is out there, they want to see the results while I am scanning 

right there. They can see it on the screen themselves which I think 

speaks to a lot of what the President mentioned here, the distrust 

of the data that comes back. Wouldn’t it be nice for them to see 

that data right there on the screen? 

67 

I think there is a serious concern about the accumulation of 

these metals over time. One of the things I was shocked about 

when I went to the Colorado Res, you see this red sludge all along 

the edge of the river that is still there today. I worry about that 

eroding away and slowly working its way into the river. 

When we had the Exxon Valdez spill, we had people out there 

in chemical suits washing the rocks. When we had the Deep Water 

Horizon spill, I was there on-site. People used chemical suits. They 

were literally scooping up the sludge. 

Why is that not happening with the sludge in the river? All you 

have to do is look at these photos I brought with me today to see 

the material is clearly there. It is red. It is as obvious as can be. 

I really take issue with the fact that there was testimony given 

earlier today that these levels have returned to pre-spill levels. I 

dispute that. 

I think there is a concern moving forward. I think it is a legitimate concern and warrants careful monitoring. 

The CHAIRMAN. Mr. Holtz-Eakin, according to Navajo officials the 

unemployment rate for the Navajo Nation tribal members is at 42 

percent. Your testimony noted that agriculture is a primary economic driver for the reservation. As a result, farming and ranching 

communities have taken a direct hit because of the EPA spill devastating the tribal economy for a long time. 

In your opinion, has the EPA’s actions adequately mitigated the 

economic and health threats to the farming and ranching community to ensure long term viability of the tribe’s economy? 

Mr. HOLTZ-EAKIN. I do not think so to this date. If you listen to 

the testimony you just heard, they are leaving the sludge exposed. 

That is the environmental danger that leads to a health danger 

that undermines the economic confidence of anyone doing business 

with the Navajo Nation, so no. 

The CHAIRMAN. I thank each and every one of you. 

I want to go to Senator Udall. I think you have a written statement from someone who is not on the panel but you want to include that? I would like to turn it over to you 

Senator UDALL. Thank you very much, Chairman Barrasso. 

Let me thank you again because you have been very thorough 

about this hearing and very patient in terms of getting in all the 

testimony. I really appreciate it. I appreciate the entire panel being 

here. 

We have one additional person who I mentioned earlier. He is a 

chapter president, Chili Yazzi. I talked to the Chairman and he 

wants to proceed under the rules and I understand. Chili Yazzi has 

done a statement, President Begaye, as you know. I am going to 

read his statement into the record. 

This is from the chapter president. This chapter, as President 

Begaye knows, was very impacted. 

’’I greet you as relatives, as five-fingered human beings and as 

brothers and sisters of the same earth mother and the same father 

creator. Through our ways of reverence, we have our special names 

for the great creator, including God the Almighty. 

We know him as Dzan. Our creator stories say he formed 

mounds of clay and breathed life into them. Thus, we have an intrinsic and undeniable relationship with the earth. We are of the 

68 

earth and we return to the earth. The earth belongs to all of us 

and we belong to the earth just as a child and a mother belong to 

each other. 

The teachings of our peoples concur in that God is everywhere. 

God the Creator inhabits the vast expanse of his creation. His essence permeates through the earth. Thus, the earth has spirit, it 

has life, it breathes and feels pain as we do. 

It is no misnomer that we refer to her as our earth mother. She 

has unfailingly provided for all our needs but we are failing her as 

the stewards we are supposed to be. As parents, we have an unconditional love for our children and as grandparents, we have the 

greatest hopes for the future of our grandchildren. That is our common bond. We may have traveled different paths of history but we 

have a common future in humankind and we share a common destiny. 

Our indigenous choice is that we want our earth to survive as 

her life is our life. It is clear that exponentially increasing exploitation of the earth is ebbing her life and thus, accelerating the closure of our collective life. 

As the original landlords of these lands, we stand in defense of 

our earth. We choose to defend her life and the light of our life. We 

implore of you, with a focus on the future of our coming generations, let us reason together, let us stand together for the life of our 

earth mother and the lives of our children.’’ 

That was Chapter President Yazzie. As President Begaye knows, 

the chapter is the local form of government. His chapter as very 

impacted by this. His name is Duane Chili Yazzi. I would ask his 

full statement be put in the record. 

I appreciate your courtesy, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Udall. 

I would just ask the members of the panel, are there any final 

statements, things you might say if the Administrator had actually 

stayed to hear your testimony? 

Mr. BEGAYE. Thank you, Mr. Chairman. 

I just want to say that our Navajo Nation has suffered greatly 

and continue to suffer. We want the services returned that have 

been taken away, the water tanks and the hay feed because our 

farmers have truly lost a lot. 

This will impact them the whole winter. They spent monies they 

do not have. These are monies to pay bills and buy clothes for their 

children and school supplies. All of that is now gone. They have 

been devastated and they need to be compensated very quickly. 

I am asking this Committee and the EPA to set up an emergency 

fund to be used to compensate our farmers and our ranchers on a 

very timely basis. We are asking for that and they have asked me 

to say that over and over and over. 

I am speaking for my people and for these ranchers who have 

been hurt. They need these dollars now. 

Thank you. 

The CHAIRMAN. Thank you. 

Mr. Olguin? 

Mr. OLGUIN. Thank you. 

In closing, I would like to say is we as Ute people, whether the 

Southern Ute people or the Ute Mountain Ute people or even the 

69 

Northern Ute people, we roamed those mountains. That was our 

homeland. We were removed from those mountains because of the 

gold, the minerals and the need for the silver. 

Along that line, the mining industry has impacted us for hundreds of years. Today, it still continues to impact us. I think it is 

important that we understand there is a need for a governmentto-government relationship, whether it is one tribe or all tribes because each tribe is being treated differently. 

We are treated differently than the Navajo, than Ute Mountain. 

Ute Mountain still has concerns with EPA’s lack of response. They 

wanted me to share that so I am taking that opportunity. They are 

asking for EPA to respond to their needs which is the uranium 

mine at Mill Creek. 

I think it is very important that the relationship be fostered and 

be maintained. Of course, funding is of utmost importance, that the 

EPA provide that funding for cleanup of these types of spills and 

accidents. 

Thank you. 

The CHAIRMAN. Thank you. 

Mr. Holtz-Eakin? 

Mr. HOLTZ-EAKIN. No. 

The CHAIRMAN. Mr. Weindorf? 

Mr. WEINDORF. You have heard repeatedly today that there is 

deep-seated mistrust of the U.S. Environmental Protection Agency. 

I would encourage the panel to engage with the U.S. Department 

of Agriculture, specifically the Natural Resources Conservation 

Service. 

This is an agency that is trusted and has a long history of working with farmers in the area. I think you will find every time we 

came on-site and said we were working with NRCS, the residents 

gave us a pat on the back, thank you so much for being here, we 

really appreciate the help you are providing to us. 

These were the conservation partners with the legacy of helping 

to protect our land and resources. 

Also, I would encourage the panel to engage with academicians 

at the university level with specialized expertise in the latest research going on in these areas and include people like Dr. Lombard 

who personally lives in the area impacted and has expertise to lend 

in that regard. 

Thank you so much. 

The CHAIRMAN. Thank you. 

Mr. Harrison, you get the last word. 

Mr. HARRISON. Thank you very much. 

I just wanted to say many, many times farmers and ranchers live 

in rural areas of America. We are forgotten many times. We hear 

talk about the Administrator, how they can do all these things but 

many times at the fear level. You do not see results and that is 

what is concerning. 

Finally, we look to the Congress, to Senators and Representatives to help us, the little people. We are not asking for a bunch. 

We are just saying keep an eye out for us. 

Thank you very much. 

70 

The CHAIRMAN. I thank each and every one of you. Thank you 

all for being here today. Thank you for your time. Thank you for 

your testimony. 

There may be some written questions submitted. The record will 

remain open for the next two weeks. 

I appreciate all of you being here and sharing your stories with 

us today and your expertise. 

The hearing is adjourned. 

[Whereupon, at 4:39 p.m., the Committee was adjourned.] 

(71) 

A P P E N D I X 

PREPARED STATEMENT OF LORENZO BATES, NAVAJO NATION COUNCIL DELEGATE FOR

THE COMMUNITIES OF NENAHNEZAD, NEWCOMB, SAN JUAN, TIIS TSOH SIKAAD, TSE’DAA’KAAN, AND UPPER FRUITLAND

Ya ́a ́’a ́t’e ́e ́h Chairman Barrasso, Vice-Chairman Tester, and Members of the Committee, my name is LoRenzo Bates. I am the Council Delegate for the communities 

of Nenahnezad, Newcomb, San Juan, Tiis Tsoh Sikaad, Tse’Daa’Kaan, and Upper 

Fruitland. Each of these communities have been impacted by the spill, but 

Nenahnezad, San Juan, Upper Fruitland, and Tse’Daa’Kaan all lie directly along 

the path of the San Juan River. The other communities that I serve all draw water 

from directly or indirectly from the river for human and agricultural use. Thank you 

for the opportunity to submit testimony to the committee on a matter of great significance to the Navajo Nation on behalf of the communities and the farmers I represent. 

On August 5, 2015, Environmental Restoration, LLC (herein ‘‘Environmental Restoration’’), a contractor for the U.S. Environmental Protection Agency (herein 

‘‘USEPA’’) was attempting to contain a leak from the Gold King Mine near 

Silverton, Colorado. The contractor using heavy machinery ruptured the mine’s containment barrier releasing millions of gallons of contaminated mine waste into a 

tributary of the Animas River, Cement Creek. This toxic wastewater containing 

heavy metals such as arsenic, lead, and cadmium flowed from Cement Creek into 

the Animas River, and into the San Juan River (herein ‘‘SJR’’). 

The SJR in northern New Mexico flows for more than 200 miles through Navajo 

Country. The SJR provides almost all of the water for the Navajo communities that 

live along it. The SJR was subject to a federally mandates water settlement in 2008 

that finalized the Navajo Nation and the State of New Mexico’s water claims as well 

authorized the construction of a water development project that will carry water 

from the San Juan River to Gallup, NM and then to Window Rock, AZ, serving all 

the Navajo communities in between. 

The full impact of this spill into the rivers of the Navajo Nation will not be known 

for years. However, in the near term the Navajo Communities along the river have 

experienced significant cultural and economic damages as a result of the spill. 

Water is sacred to the Navajo People; it is the basis of all life. Spiritually and culturally Navajo beliefs are deeply connected to the land, air, and water that lie between the four sacred mountains that form the aboriginal boundary of our land. 

These connections are reinforced spiritually in the ceremonies that comprise Navajo 

beliefs. Our ceremonies use traditional seeds and crops that are grown and gathered 

on Navajo land. The spill has contaminated or destroyed many of the essential elements of our religious practice, and desecrated a river we have treated with reverence since time immemorial. 

Water is essential to our survival as a species, and is the foundation of our agricultural economy. The Navajo Nation is located in the high desert Four Corners region of the southwest and is approximately the size of West Virginia. As an arid 

environment, the loss of any water access for the communities is both life threatening and economically devastating. The Navajo Nation is still mainly an agrarian 

society that relies predominantly on the raising of livestock, mainly sheep, and the 

growth of crops such as corn. The SJR and the irrigation ditches serve the farming 

and ranching communities along the river provide nearly all of the water essential 

for watering livestock and irrigating crops. The spill that occurred on August 5 unfortunately happened at the peak of our growing season. As a result of the inability 

to irrigate crops many of the farmers along the San Juan River have been devastated by the loss of an entire season of crops. Ranchers were forced to watch their 

sheep and cattle suffer from the inability to water, and may have lost animals directly, and be both unable to survive off, or sell for profit, the stunted animals that 

remain. 

These are small family farms and ranches that grow enough to provide for their 

own needs and a small amount left over to allow for sale into the surrounding comVerDate Mar 15 2010 09:39 Mar 01, 2016 Jkt 098848 PO 00000 Frm 00075 Fmt 6601 Sfmt 6621 S:\DOCS\98848.TXT JACK
72 

munities. As anyone who has spent time around farmers and ranchers can tell you, 

agriculture is not for the faint of heart. Seasonal variations of sun, rain, and snow, 

acts of God, and random occurrences all come together to influence the lottery of 

a good or bad season. The emotional and economic swings that frame a life in agriculture mean that our farmers and ranchers are used to dealing with these challenges. However, this was a manmade act by an agent of the Federal Government. 

The secondary impacts of these economic losses are only just beginning. The Navajo Nation as a whole has an unemployment rate that very often hovers at 50 percent. We have a per capita income around $7,000. Among the communities with a 

strong agricultural or fossil fuel backbone, the impact of these devastatingly low levels of employment and income are mitigated. However, the economic ripples created 

by this spill will continue to cause a loss of jobs and income for years to come. Unfortunately, with this rise in unemployment and the emotional desperation that it 

causes we are also expecting to see a rise in social problems such as domestic and 

substance abuse. 

Similarly, the long-term impact of the spill resulting from contamination of the 

river, sediment, and surrounding land is potentially catastrophic. We know that the 

toxic sludge plume has passed through the SJR and into Lake Powell. We also know 

that the plume itself moved at a much slower rate than the river that carried it. 

Therefore, the water of the SJR, which was highly contaminated as the plume 

moved along its path, is more than likely clear at this point. Any damages from the 

water alone were caused by the inability to use the water during the closure of the 

river, diversions, and irrigation ditches. 

Contaminates that moved slowly through the water had a substantial ability to 

contaminate the sediment of the river for generations to come. These contaminates 

have not passed, they are persisting in the ecosystem contaminating its base and 

lying in wait for an event to bring them back into the stream flow. The introduction 

of contaminates such as lead, arsenic, and cadmium, among other contaminates, 

into the ecosystem and food chain of the river will have untold effects on the river, 

the communities that subsist on the river, and the economies of those communities 

for years. As a result, the Federal Government will have to commit to both longterm clean up and monitoring of the river and its ecosystem. 

Of greater concern than the contamination of the river itself are the long-term 

health effects of these toxic chemicals on people and animals. The toxins released 

during the spill will persist in the ecosystem. Lead, arsenic, and cadmium are 

known to cause birth and developmental damage in humans and livestock. EPA 

data from tests of the water found exposure levels hundreds and thousands of times 

beyond federal safe levels for humans. Now that these toxins are in the food chain 

they could contaminate wildlife and livestock and eventually the people that rely on 

them for food. 

While the USEPA certainly made mistakes in communication, protocol, and compensation during the early response to this disaster, further highlighting these mistakes here does little to advance the needs of the communities or the clean-up efforts. The community members have reported a dramatic turnaround in how the 

USEPA has dealt with victims of the spill. 

The Navajo People have suffered significantly as a result of these actions and will 

continue to suffer from the environmental, health, and economic effects of the spill 

for years to come. The Federal Government must find a way to quickly and efficiently compensate those who have been affected by the spill and provide for the 

long-term health and clean up of the SJR and its surrounding ecosystem. The Navajo Nation has long worked closely with the USEPA to develop and enforce rules 

and regulations that protect our water, air, and land while providing us with the 

greatest opportunities for self-determination. While the effect of this spill and its response has shaken the Navajo Nation’s faith in the USEPA, the USEPA has responded by working closely with the Navajo Nation Council and the affected communities. I thank them for their efforts and look forward to a full restoration of our 

working relationship as they begin to address the clean up and monitoring of the 

river, and the health of those at risk for contamination. Frequent communication 

and prompt compensation for those effected by the spill has done much to alleviate 

the concerns of the community. 

We look forward to working closely with the USEPA and the Federal Government 

to address the needs of the Navajo communities and the environment today, and 

in the long term. The problems that have defined the initial response, clean up and 

compensation do not need to taint the future response and cooperation between the 

Navajo Nation, the USEPA, and the Federal Government. The Navajo Nation looks 

forward to working closely with this committee and the Congress to ensure future 

needs and communications are handled in a timely and proper manner. 

73 

PREPARED STATEMENT OF NANCY FREEMAN, EXECUTIVE DIRECTOR, GROUND WATER

AWARENESS LEAGUE

Dear Committee Members, 

Thank you for your recent hearing on harmful impacts to indian Country. I am 

submitting additional comments regarding issues that were brought up in the hearing regarding oversight by Government Agencies. 

Somehow the EPA and DOI are not taking responsibility for the travesties created 

on the Native American lands and their water supply in the rush to mine uranium 

that was sold only to the U.S. government. There have been extensive harmful impacts on water and land due to in the Navajo nation and other Native American 

lands due to mining. 

I know for a fact that the regulations and precautions on the Native American 

lands was not the same as in off-reservation lands. I know this because I live near 

Twin Buttes mine in Sahuarita, Arizona where yellow cake uranium was mined and 

produced for 20 years. I know miners who worked there. They had safety equipment 

and precautions that were not used on the Native American mines. EPA has had 

continual oversight there though its closing. 

I did write a report to Congress several years ago highlighting the problem and 

hardly anything has changes. The Newmont Mining Company has finally agreed to 

clean-up the Spokane Reservation site, but not much as been accomplished during 

the first five-year plan: 

http://mining-law-reform.info/Urgency.htm 

In addition, I am submitting my recent comments for your edification to DOI regarding their recent hearings on the royalties for coal mining on BLM/Native American Reservation lands. 

https://www.youtube.com/watch?v=0wy1LeBMHUk&feature=youtu.be 

Comments on Coal Royalties 

First issue: Increasing coal royalty rate to 18.75 percent to match that of other 

federally-owned fossil fuels. 

Of course, this issue is a logical policy that should be implemented. My concern 

is will the Native Americans be treated as other private landowners? Since I live 

in Arizona, I have researched and found a lot of evidence using the situation with 

the Dine (Navajos) that the Native Americans are not treated equally or fairly. 

The Navajo Nation land is a National Disaster Area. When will the betrayal of 

the Navajo Nation by the U.S. Government through the funnel of the Department 

of Interior end? Currently, there are three coal power plants polluting the air, land 

and water on the Navajo Nation. One is on the northeast border. The other two 

send power as far as Los Angeles, while 40 percent of the Navajos do not have electricity in their homes. 

The DOI has processed permits for coal mines and power plants without a full 

disclosure of the health risks and without requiring that the plants to use OSHA 

standards. Did the DOI agents explain to the workers the pollutants they would be 

inhaling, did they explain to the community the pollutants that would be in the air 

on their crops, their water supplies and in their lungs? Did they explain to the community members why they would not be hooked up to power, when it was possible 

to send power to Los Angeles? 

In addition coal power uses water. The U.S. Government can permit unlimited 

water use for the coal plants, even without any disclosure to the Navajo Nation, yet 

the U.S. has not formulated a reasonable, just water settlement for the Navajo Nation. In 2003, the Government rejected the carefully planned Water Settlement that 

the Navajo and Hopi Governments had drawn up. The Arizona Senators then filed 

a settlement that divided the interests of the Navajo and Hopi, just as the U.S. Government has done with the reservation boundaries. At this time, the Navajo do not 

have rights to the Little Colorado River that runs across their Nation, yet the DOI 

allowed Peabody Energy to use from the Navajo Aquifer. 

How can the Navajo and 79 other tribes trust DOI to them adequately? The mismanagement of payments for trust leases was well illustrated in the Cobell v. Babbitt, Kempthorne, Norton, Salazar lawsuit over trust payments for leases that took 

21 years for the Department of Interior to finalize. In fact, the proceedings in Cobell 

v. et al exposed a tragic pattern of mismanagement, neglect, malfeasance and attitude of not caring for over a century. The lies and cover ups by the DOI officials 

put forth in a Federal trial concerning a class of 500,000 plaintiffs who had been 

cheated were shocking. The Government could not even produce the trust documents for the five named plaintiffs in the case. The Government had agreed to 

produce these documents by March of 1997. But with their records in complete disarray, they failed to produce documents for any of the named plaintiffs after four 

74 

years of court. In the face of ‘‘clear and convincing evidence,’’ Judge Lamberth held 

DOI Secretary Babbitt, Treasury Secretary Robert Rubin, and Assistant DOI Secretary Gover in civil contempt. 

The Honorable Judge Lamberth described the situation: 

The entire record in this case tells the dreary story of Interior’s degenerate tenure as Trustee—Delegate for the Indian trust—a story shot through with bureaucratic blunders, flubs, goofs and foul-ups, and peppered with scandals, deception, dirty tricks and outright villainy—the end of which is nowhere in sight. 

Despite the breadth and clarity of this record, Interior continues to litigate and 

re-litigate, in excruciating fashion, every minor, technical detail. 

The response of the Government (with its 100 attorneys working against the 

Native Americans) was to request the removal of Judge Lamberth from the 

case. In 2003, ten years after the filing of the case, which turned out to be good 

because other judges were brought into the case and the ruled exactly as 

Lamberth had. 

In addition to the withholding of trust payments, several situations of outright 

fraud by the Government ‘‘overseers’’ were brought out in the proceedings. In 

particular, for a pipeline ‘‘right-of-way’’ across the San Juan Basin, Navajo allotted land was valued at $25–30 per ‘‘rod’’ (at 16.6-foot unit), whereas neighboring 

tribal land was valued at $140–$575 per rod, and land belonging to private 

landowners at $432–$455 per rod. Navajo allottees were cheated, in violation 

of the Government’s fiduciary obligations, plus federal law mandating ‘‘just compensation’’ for such land use. 

Another example cited in the proceedings was on Shoshone land in Idaho, which 

includes prime agricultural property, had been valued at $65 to $75 per acre. 

Meanwhile, non-Native Americans living adjacent to this property are receiving 

over $200 per acre for the same use. The problem is that Government officials 

appraise Native American land without looking at ‘‘non-Indian comparables.’’ 

By only looking at records of leases on other Native American leases, the undervaluation of leases for Native American lands, as compared with non-Native 

American lands, is self-perpetuating. Judge Lamberth lamented: 

But regardless of the motivations of the originators of the trust, one would expect, or at least hope, that the modern Interior department and its modern administrators would manage it in a way that reflects our modern understandings 

of how the Government should treat people. Alas, our ‘‘modem’’ Interior department has time and again demonstrated that it is a dinosaur—the morally and 

culturally oblivious hand-me-down of a disgracefully racist and imperialist Government that should have been buried a century ago, the last pathetic outpost 

of the indifference and Anglo-centrism we thought we had left behind. 

We know for a fact that the coal leases manipulated by DOI on Navajo lands. In 

1963 when BLM and DOI negotiated coal contracts on the Navajo Nation land they 

gave the Navajos an unheard of low rate for coal. I would also like to see the comparisons of coal royalties paid to other tribes and non-tribal lands at that time. 

Since DOI/BLM’s underpayment continued, when Peter MacDonald became the 

tribe’s chairman in 1971, he went on a campaign to get Peabody to pay the tribe 

a fair amount for royalties for its coal mining operations. MacDonald pointed out 

that the tribe was only receiving 20 cents a ton royalty from the company, about 

the cost of a can of Coke (in 1971). MacDonald and tribal attorneys would after several years get a new agreement from Peabody that would sharply increase the 

tribe’s share to 12.5 percent of the value of the coal at the mine site. 

To make matters worse Peabody used a slurry line, not the usual railway to convey coal to Nevada. The Navajos lost 30,000 acre feet of water from their aquifer 

with no consent or compensation. To make matters worse, Interior Secretary Udall 

covered for Peabody by stating the compensation for the water was in the royalty 

(20 cents per ton)! 

Increase of royalty rate to match other fossil fuel rates is a clear statement that 

you have been undercharging the coal prices on Federal Land, cheating U.S. Taxpayers, but more egregiously cheating Native Americans. 

One would think that after the long drawn-out Cobell Trust Settlements (1993– 

2014) in which the courts showed that the malfeasance and downright criminal injustices to the Native Americans that the DOI would mend their ways. However, 

I see no evidence that it is happening. The legacy of mining on the Navajo Nation 

land is a truly egregious story of criminal injustices by the U.S. Government 

through Department of Interior but of course it is not the only agency, but it appears to be the leader, setting an example for others. 

75 

It appears that the Navajos receive no power from two of the dirtiest coal-fired 

power plants in the country. The Navajo Generating Station (NGS) in Page, Arizona 

and the Four Corners Power Plant near Shiprock, New Mexico—are among the 

country’s top emitters of carbon dioxide, releasing 17.8 million short tons and 12.9 

million short tons in 2013, respectively. Even though they have to bear this load 

of pollution, it is estimated that 40 percent of the Navajos are without any power 

to their homes. 

I cannot find the exact users of the APS Four Corners Plant, but it appears that 

the Navajos do not receive any power from its presence. 

The owners of the Four Corners APS power plant: 

Units 1, 2, and 3 

Arizona Public Service Company (APS) 100 percent 

Units 4 and 5 

APS 63 percent 

Public Service Company of New Mexico 13 percent 

Salt River Project 10 percent 

Tucson Electric Power 7 percent 

El Paso Electric 7 percent 

The Navajos definitely receive no power, only pollution from the Navajo Generating Station. 

Users of NGS power: 

U.S. Bureau of Reclamation (Central Arizona Project water) 24.3 percent 

Salt River Project (residential) 21.7 percent 

Los Angeles Dept. of Water and Power 21.2 percent 

Arizona Public Service Co. (residential) 14.0 percent 

NV [Nevada] Energy 11.3 percent 

Tucson Electric Power 7.5 percent 

When EPA announced more stringent equipment to control toxic pollutants the 

CAP officials of Arizona gave presentations showing that the equipment would double the price of water to Arizona citizens-so the pollution should be continued as is 

even though the citizens would not want to live in the toxic plume of a coal power 

plant. 

The DOI needs to assure that the coal companies have a consultation with Native 

Americans before any removal of any the Native American ancestral bones and artifacts, so that the Native Americans can retain their ancestral property. In 1967 Peabody Energy (NGS coal plant) needed to clear land it was leasing on the Navajo reservation to mine the coal, but ancient Indian dwellings and graves were in the way. 

So, as required by law, it did hire archeologists who dug up roughly 1.3 million Navajo, Hopi and ancient Anasazi artifacts—including the remains of 200 Native Americans—which have been warehoused at two universities ever since. The Navajos were 

not involved in the actions or decisions. They are still attempting to get the bodies 

of their ancestors returned, so that they can be give them a proper burial. 

Another recent betrayal of the Navajos was that when Obama released the carbon 

reduction plan he left out power plants on the Native American lands. This omission 

leaves the Native Americans to fend for themselves, without having in regulatory 

power at all over the power plants, that’s not part of their ‘‘sovereignty.’’ The Navajo 

Nation already has set standards for sulfur dioxide, particulate matter and nitrogen 

oxide emissions from power plants on the reservation. However, what will they 

mean to the companies who have been with no oversight for years. 

However, EPA does keep records of the Toxics that are released to the environment: Not surprisingly, the numbers are high. The releases are given in pounds. 

There are no numbers for uranium and its daughters, such as radon. As is too well 

known, uranium is prevalent on Navajo land with over 500 abandoned, un-reclaimed mines there. 

Data Source: EPA TRI Database: 

http://iaspub.epa.gov/triexplorer/releaselfac?sort=lVIEWl&trilib=TRIQ1&sortlfmt=1&state=TS&county=Navajo 

percent20Nation, percent20Arizona, percent20New percent20Mexico percent20and 

percent20Utah&chemical=All+chemicals&industry=ALL&year= 

2013&plview=TIFA&tablrpt=1&fld=RELLBY&fld=TSFDSP 

Second Issue: Closing loopholes that let coal companies avoid paying some royalties by selling coal through their subsidiaries. 

This action needs to be taken. 

Third Issue: Updating agency policies to make sure that potential profits from 

coal exports are considered in setting the market value. 

76 

This action needs to be taken with the assurance that the Native American tribes 

will be compensated at the same rate as other coal leases. 

Fourth Issue: Updating policies related to bonding to prevent taxpayers from 

being stuck with hundreds of millions of dollars in mining cleanup fees. 

This is of utmost importance. In a hearing yesterday of the Senate Committee on 

Indian Affairs this issue was brought up. Many of the boom and bust mining companies have disappeared. However, there is also a challenge in getting existing companies to clean up their mines—hiding under the excuse of Dawn mining, which declared bankruptcy, was a subsidiary. I just received an update from a environmental 

friend on the Spokane Reservation that has been fighting for years for a clean up 

of historic uranium mines there. Twa-le wrote, 

That link is to the case summary, I just re-read it and saw that DOI is actually 

covering the cleanup costs for the role they played. The BIA has almost been 

nonexistent in this entire process. They are just assuming 1⁄3 of the responsibility and during the long drawn out legal process, Newmont was also trying 

to hold the Tribe and individual landowners responsible as well. So, it was a 

long drawn out case, they had the resources to fight and the Spokane Tribe 

spent many years and lots of resources alongside EPA to get the clean up moving. The latest update: http://www.wise-uranium.org/udmif.html 

Source: Twa-le Abrahamson, Spokane Tribe,Spokane, Washington, Natural Resources Dept. Manager, Air Quality Dept. 

I honestly don’t think bonding is enough for a bankrupt company. There has to 

be real money banked up front. Also, I recommend that a company that is not in 

environmental compliance, reclamation compliance of financial liquidity should not 

be permitted. The Spokane Reservation mine operated by subsidiary Dawn is a good 

example. Newmont should not be given any permit for mining until it has done due 

diligence in its reclamation of the Spokane Reservation. They are five years into 

their reclamation plan and nothing is happening on the ground. 

Thank you for your attention to these serious matters of the treatment of the Native Americans. I am filing some FOIA’s to get some data on the past royalty payments and comparables with other public lands—and private lands. Note the example above of the Shoshone Tribe where DOI was not using public comparables, but 

the lower rates historically given to Native Americans. 

PREPARED STATEMENT OF HON. DUANE ‘‘CHILI’’ YAZZIE, CHAPTER PRESIDENT, 

NAVAJO NATION

I greet you as relatives, as five fingered human beings, as brothers and sisters 

of the same Earth Mother and the same Father Creator. Through our ways of reverence we have our special names for the Great Creator including God the Almighty; we know Him as Diyin. Our creation stories say He formed mounds of clay 

and breathed life into them. Thus we have an intrinsic and undeniably relationship 

with the Earth, we are of the Earth and we return to the Earth. The Earth belongs 

to all of us and we belong to the Earth, just as a child and mother belong to each 

other. 

The teachings of our peoples concur in that God is everywhere, God the Creator 

inhabits the vast expanse of His creation. His essence permeates through the Earth, 

thus the Earth has spirit, it has life, it breathes and feels pain as we do. It is no 

misnomer that we refer to her as our Earth Mother. She has unfailingly provided 

for all our needs but we are failing her as the stewards we supposed to be. 

As parents we have an unconditional love for our children and as grandparents 

we have the greatest hopes for the future of our grandchildren; that is our common 

bond. We may have traveled different paths of history but we have a common future, as humankind we share a common destiny. 

As Indigenous Peoples we retain and maintain the Original Intent, by choice we 

choose to live in the world our Creator made, a world where the physical and spiritual realms remain intact as one reality. The Creator intended for there to be a 

balance in all of nature, but today the equilibrium of the world is precariously out 

of balance. The bursting of toxic waste into our life giving rivers is a message we 

cannot ignore, the unmitigated exploitation of the world must end; the damage to 

the Earth caused by this exploitation must be repaired. 

The changing conditions of our Earth cannot be denied; the pollution, drought, 

wild fires, melting glaciers, rising oceans and the increasing scarcity of water the 

world over. It is urgently imperative that we protect our waters. These adverse 

changes impact us all, it is our responsibility to come together with parity to talk 

77 

about these great concerns. What should our priorities be? Jobs and economics or 

our need to protect the Earth or can a balance be achieved. 

Our Indigenous choice is that we want our Earth to survive, as her life is our life. 

It is clear to us that the exponentially increasing exploitation of the Earth is ebbing 

her life and thus, accelerating the closure of our collective life. As the original Landlords of these lands we stand in defense of our Earth; we choose to defend her life 

and the life of all life. We implore of you with a focus on the future of our coming 

generations, let us reason together. Let us stand together for the life of our Earth 

Mother and the lives of all her children. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. JAMES LANKFORD TO

HON. GINA MCCARTHY


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