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98–709 PDF 2016

S. HRG. 114–188 

OVERSIGHT OF THE CAUSE, RESPONSE, 

AND IMPACTS OF EPA’S GOLD KING MINE SPILL 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

SEPTEMBER 16, 2015 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys 
(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

JAMES M. INHOFE, Oklahoma, Chairman 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming 

SHELLEY MOORE CAPITO, West Virginia 

MIKE CRAPO, Idaho 

JOHN BOOZMAN, Arkansas 

JEFF SESSIONS, Alabama 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

MIKE ROUNDS, South Dakota 

DAN SULLIVAN, Alaska 

BARBARA BOXER, California 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

RYAN JACKSON, Majority Staff Director 

BETTINA POIRIER, Democratic Staff Director 
(III) 

C O N T E N T S 

Page 

SEPTEMBER 16, 2015 

OPENING STATEMENTS 

Gardner, Hon. Cory, U.S. Senator from the State of Colorado ............................ 1 

Bennet, Hon. Michael, U.S. Senator from the State of Colorado ......................... 10 

Udall, Hon. Tom, U.S. Senator from the State of New Mexico ............................ 12 

Heinrich, Hon. Martin, U.S. Senator from the State of New Mexico .................. 13 

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma .................... 15 

Boxer, Hon. Barbara, U.S. Senator from the State of California ........................ 16 

Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode Island, 

prepared statement .............................................................................................. 66 

WITNESS 

McCarthy, Hon. Gina, Administrator, U.S. Environmental Protection Agency . 18 

Prepared statement .......................................................................................... 21 

Responses to additional questions from: 

Senator Inhofe ........................................................................................... 25 

Senator Fischer ......................................................................................... 40 

(1) 

OVERSIGHT OF THE CAUSE, RESPONSE, AND 

IMPACTS OF EPA’S GOLD KING MINE SPILL 

WEDNESDAY, SEPTEMBER 16, 2015 

U.S. SENATE, COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, Washington, DC. 

The committee met, pursuant to notice, at 10:01 a.m. in room 

406, Dirksen Senate Building, Hon. James M. Inhofe (chairman of 

the committee) presiding. 

Present: Senators Inhofe, Boxer, Sullivan, Rounds, Barrasso, 

Capito, Crapo, Boozman, Fischer, Markey, and Cardin. 

Senator INHOFE. We will come to order. We have, Senator Boxer 

and I, if it is all right with her, are going to withhold until we hear 

from four Senators who have made a request to be here. Senator 

Gardner first called this to my attention. 

So what we are going to do is start with you, Senator Gardner, 

and go across and hear from those who have a special concern and 

interest. You are recognized. 

OPENING STATEMENT OF HON. CORY GARDNER, 

U.S. SENATOR FROM THE STATE OF COLORADO 

Senator GARDNER. Thank you, Mr. Chairman, Ranking Member 

Boxer, and other members of the Environment and Public Works 

Committee, for holding this hearing today to examine the August 

5th, 2015, spill that took place at the Gold King Mine in Southwest 

Colorado. 

I also appreciate the committee for providing Senators Bennet, 

Heinrich, Udall and me with the opportunity to make statements 

about the impact that this spill has had in our States and obviously 

the representatives here who will also testify. Also, remember the 

spill had an impact on the Southern Ute Indian tribe, Ute Mountain Ute and the Navajo Nation. 

From the outset of the spill, it was crucial that the EPA’s full 

focus be on mitigation and slowing the flow of contaminants in the 

Animas River. Water testing shows that the surface water of the 

river has returned to pre-incident levels. But many uncertainties 

remain regarding long-term remediation and future monitoring for 

heightened contamination in the river during spring runoff. If anybody has seen the pictures of recent days when you can go in and 

disturb and disrupt the river bed bottom, the bottom, the sediment, 

you can see material still being kicked up. 

Once the national press disappears from the area, there are still 

serious concerns that exist for Coloradans and communities downstream that the EPA must address. 
2 

Although the EPA has acknowledged the magnitude of this crisis, its initial lack of communication and coordination in events 

leading up to and following the spill are suitable for congressional 

oversight. Affected communities and stakeholders deserve transparency and accountability in the events surrounding the spill, particularly in understanding where EPA was during the first hours 

and days following the spill. 

For example, the Colorado Department of Public Health and the 

Environment was the first to notify the city of Durango of the Gold 

King release on August 5th. The Colorado Department of Natural 

Resources was the first to notify the Southern Ute Indian Tribe of 

the release on August 5th. The LaPlata County sheriff’s office 

closed public access to the Animas River on August 6th. 

The questions that we must ask today: where was the EPA during this initial notification and closure of the river? Did the agency 

follow the National Contingency Plan for notification and implementation of its response on this disaster? Did they follow the 

same requirements that would have been in effect for a private sector actor? Was there anyone within the EPA with crisis management experience for a spill of this nature dispatched to the area or 

made aware of the spill? These are but a few of the questions I 

hope Administrator McCarthy will address today. 

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

and tribal officials responding. It was not until August 10th that 

the EPA established 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 a simple, straightforward interpretation of the water quality monitoring data from 

the EPA. 

From my personal experience, the EPA’s response mirrors that 

of local communities. No one from the EPA attempted to contact 

me until days after the spill. Upon first learning of the spill, I attempted to speak with the Administrator but was told she was unavailable. After pushing back on the EPA and requesting answers, 

I was told the regional director would contact me. That call came 

several hours later. 

I visited the spill site on August 9th with Senator Bennet. This 

is 4 days after the 3 million gallons of contaminated water were released, and yet the EPA did not yet have an appropriate crisis response plan or team in place. In fact, it was that Sunday morning 

briefing where we were sitting with the EPA officials who could not 

answer basic questions including how much water at that point 

was still leaking into the river. 

From the outset, I have said that the EPA should be held to the 

same standards as EPA would hold a private company for the spill, 

which means investigations must be conducted, people must be 

held accountable and tough questions must be asked. When those 

questions get asked, there must be answers. 

Among the tough questions that must be asked, the few I have 

are: whether the EPA knew that it was likely that water was impounded behind the Gold King Mine portal and a blowout was possible. Whether the health and safety plan for the Gold King Mine 

work was adequate. Why did it take several days for the EPA to 

revise the amount of contaminated water? 
3 

The agency initially said the amount was, I believe 1 million gallons and several days later said the search consisted of 3 million 

gallons. What data does the EPA have on the total amount of acid 

mine drainage within the upper Animas basin? How long has the 

agency been tracking the drainage and publicly measuring it? 

Mr. Chairman, before concluding, I request the statement of Mr. 

Mike Olguin, Southern Ute Tribal Council member, be included as 

part of my testimony for today’s hearing. 

Senator INHOFE. Without objection. 

[The referenced information follows:] 
4 
5 
6 
7 
8 
9 

Senator GARDNER. Councilman Olguin will be testifying this 

afternoon in front of the Senate Indian Affairs Committee on the 

Gold King Mine spill. 

Last, I thank you, Mr. Chairman, and your staff, for being responsive during this time. While this hearing is to examine this incident and the EPA’s response, this bill shows a greater need for 

legislation that would allow Good Samaritans the opportunity to 

assist with cleaning up these abandoned mines across the West. I 

hope we can continue to work together on this effort, and I know 

the four of us have done that so far. 

I thank you again for the opportunity to be here, and I look forward to hearing the EPA’s answers as we continue to work together to address this very serious situation. 

[The prepared statement of Senator Gardner follows:] 

STATEMENT OF HON. CORY GARDNER, U.S. SENATOR FROM THE STATE OF COLORADO

Thank you, Chairman Inhofe, Ranking Member Boxer, and other members of the 

Environment and Public Works Committee for holding this oversight hearing to examine the August 5th, 2015, spill that took place at the Gold King Mine in southwest Colorado. I also appreciate the committee for providing Senators Bennet, 

Heinrich, Udall and me with the opportunity to make statements about the impact 

this spill has in our States. We must also remember this spill had an impact on 

the Southern Ute Indian Tribe, Ute Mountain Ute, and the Navajo Nation. 

From the outset of the spill, it was crucial that the Environmental Protection 

Agency’s (EPA’s) full focus be on mitigation and slowing the flow of contaminants 

in the Animas River. Water testing shows that the surface water of the River has 

returned to pre-incident levels, but many uncertainties remain regarding long-term 

remediation and future monitoring for heightened contamination in the River during spring runoff. 

Once the national press disappears from the area, there are still serious concerns 

that exist for Coloradans and communities downstream that the EPA must address. 

Although the EPA has acknowledged the magnitude of the crisis, its initial lack of 

communication and coordination in events leading up to and following the spill are 

suitable for congressional oversight. 

Affected communities and stakeholders deserve transparency and accountability 

in the events surrounding this spill, particularly in understanding where EPA was 

during the first hours following the spill. For example, the Colorado Department of 

Public Health & the Environment was the first to notify the city of Durango of the 

Gold King release on August 5th. The Colorado Department of Natural Resources 

was the first to notify the Southern Ute Indian Tribe of the release on August 5th. 

The La Plata County Sheriff closed public access to the Animas River on August 

6th. 

Where was the EPA during this initial notification and closure of the River? Did 

the agency follow the national contingency plan for notification and implementation 

of its response on this disaster? Was there anyone within the EPA with crisis management experience for a spill of this nature dispatched to the area or made aware 

of the spill? These are but a few of the questions I hope Administrator McCarthy 

will address. 

In the first few days following the spill, it was largely State, local and tribal officials responding. It was not until August 10th that the EPA established a unified 

command center in Durango. Along with the confusion over EPA’s lack of notification, frustration began regarding the need for a timely release of a simple, straightforward interpretation of the water quality monitoring data from the EPA. 

My personal experience with EPA’s response mirrors that of local communities. 

No one from EPA attempted to contact me until days after the spill. Upon first 

learning of the spill I attempted to speak with the Administrator but was told she 

was unavailable. After pushing back on the EPA and requesting answers I was told 

the regional director would contact me. That call came several hours later. 

I visited the spill site on August 9th with Senator Bennet. This was 4 days after 

the 3 million gallons of contaminated water was released, and yet EPA did not yet 

have an appropriate crisis response plan or team in place. 

From the outset I’ve said that EPA should be held to the same standard as EPA 

would hold a private company for said spill. Which means investigations must be 
10 

conducted, people must be held accountable, and tough questions must be asked. 

Among the tough questions that must be asked, a few I have are: 

• Whether the EPA knew that it was likely that water was impounded behind 

the Gold King Mine portal and a blowout was possible, 

• Whether the Health and Safety Plan for the Gold King Mine work was adequate. It appears the plan was wholly inadequate because it fails to address safety 

risks associated with mines, and it even lists the site by the wrong name at one 

point, and 

• Why did it take several days for the EPA to revise the amount of contaminated 

water? The agency initially said the amount was 1 million gallons, and several days 

later said the surge consisted of 3 million gallons. 

Mr. Chairman, before concluding I request that the statement of Mike Olguin, a 

Southern Ute Indian Tribal Council Member, be included as part of my testimony 

for today’s hearing. Councilman Olguin will be testifying this afternoon in front of 

the Senate Indian Affairs Committee on the Gold King Mine spill. 

Last, I thank you and your staff for being responsive during this time, and while 

this hearing is to examine this incident and EPA’s response, this spill shows a 

greater need for legislation that would allow Good Samaritans the opportunity to 

assist with cleaning up these abandoned mines across the West. I hope we can continue to work together on this effort. 

Thank you again for the opportunity to be here, and I look forward to hearing 

the EPA’s answers as we continue to work together to address this very serious situation. 

Senator INHOFE. Thank you, Senator Gardner. 

Senator Bennet. 

OPENING STATEMENT OF HON. MICHAEL BENNET, 

U.S. SENATOR FROM THE STATE OF COLORADO 

Senator BENNET. Thank you, Mr. Chairman, and thank you also, 

Ranking Member Boxer, for allowing us all to speak this morning. 

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

and Senator Gardner from Colorado. 

Mr. Chairman, the blowout at the Gold King Mine was a disaster 

that affected many communities in Colorado and New Mexico. Although the EPA was trying to remediate the mine, there is no denying that they caused this spill, and that is entirely unacceptable. 

It is also clear that the agency was slow to communicate, as Senator Gardner said, with local governments and did not obtain water 

quality results or bring water to farmers who needed it quickly 

enough. 

When Senator Gardner and I traveled to Durango 4 days after 

the blowout, the river was still bright orange and closed to the public. The Animas River really is the lifeblood of Durango. Rafting 

companies have lost business, farmers could not water crops and 

moms are still keeping their kids out of the water. These families 

deserve to have the full attention and dedicated resources of the 

Administration committed to the clean up. 

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

Administrator McCarthy listened to our call and came to Colorado 

to view the area and address the community. Following a crisis like 

this, it is tempting to point fingers, and we must hold people and 

agencies responsible for any egregious mistakes or negligence they 

committed in the days and hours after this spill. 

But as the communities recover, it is also critical to look at the 

bigger picture. Let’s identify what went wrong to make sure it does 

not happen again. 
11 

We also need to put this in context: the blowout released 3 million gallons of acid mine drainage. This same amount of polluted 

water was already being released from the Gold King Mine about 

every week. And the four mines in the area released 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 water supply. 

That decision largely protected the town’s drinking water from the 

most recent disaster. 

There are more than 23,000 abandoned mines in Colorado, Mr. 

Chairman, including 400 in the San Juan Mountains. We need solutions to address the acid mine drainage coming from all of these 

old abandoned mines. And in the upper Animas watershed we need 

an immediate solution. That is why we have asked Administrator 

McCarthy and the President to prioritize funding for a water treatment plant. 

We also, as my colleague, from Colorado said, need to pass Good 

Samaritan legislation to encourage counties, non-profits and companies to clean up abandoned mines throughout the West. We 

worked with Senator Boxer, Senator Mark Udall and the EPA to 

establish guidance for Good Samaritans to allow them to do clean 

up work without being liable under the Clean Water Act. 

Unfortunately, that did not provide enough certainty and has not 

encouraged action. Last Congress, Mark Udall, Scott Tipton and I 

introduced a bill to give Good Samaritans that certainty while 

holding them to appropriate standards. Senator Gardner and I are 

working to reintroduce a bill this Congress. Finally, we need to reform the 1872 mining law to make sure that companies pay royalties to taxpayers. 

Thank you, again, Mr. Chairman, for allowing me to speak briefly, and thank you for holding this hearing. 

[The prepared statement of Senator Bennet follows:] 

STATEMENT OF HON. MICHAEL BENNET, 

U.S. SENATOR FROM THE STATE OF COLORADO

Thank you, Chairman Inhofe and Senator Boxer, for allowing me to speak this 

morning. 

The blowout at the Gold King Mine was a disaster that affected many communities in Colorado and New Mexico. And although the EPA was working to clean 

up the mine, there’s no denying that they caused the spill. That’s entirely unacceptable. 

It’s also clear that the agency was slow to communicate with local governments 

and didn’t obtain water quality results or bring water to farmers who needed it 

quickly enough. When Senator Gardner and I traveled to Durango 4 days after the 

blowout, the River was still bright orange and closed to the public. 

The Animas River really is the lifeblood of Durango. Rafting companies have lost 

business, farmers couldn’t water crops, and moms are still keeping their kids out 

of the river. These families deserve to have the full attention and the dedicated resources of the Administration committed to the clean up. 

In the week after the spill, we spoke with Administrator McCarthy and wrote to 

the EPA and the President. We appreciate that Administrator McCarthy listened to 

our call and came to Colorado to view the area and address the community. Following a crisis like this, it’s tempting to point fingers—and we must hold people and 

agencies responsible for any egregious mistakes or negligence they committed in the 

days and hours after the spill. But as the communities recover, it’s also critical we 

look at the bigger picture. Let’s identify exactly what went wrong to make sure this 

doesn’t happen again. 
12 

We also need to put it in context. The blowout released 3 million gallons of acid 

mine drainage. This same amount of polluted water was already being released from 

the Gold King Mine about every week. And the four mines in the area 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 water supply. That decision largely 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. We need 

solutions to address the acid mine drainage coming from all of these old abandoned 

mines. 

And in the Upper Animas watershed, we need an immediate solution. That’s why 

we’ve asked Administrator McCarthy and the President to prioritize funding for a 

water treatment plant. 

We also need to pass Good Samaritan legislation to encourage counties, nonprofits, and companies to clean up abandoned mines. We worked with Senator 

Boxer, Senator Mark Udall, and the EPA to establish guidance for Good Samaritans 

to allow them to do clean up work without being liable under the Clean Water Act. 

Unfortunately, this didn’t provide enough certainty and hasn’t encouraged action. 

Last Congress Mark Udall, Scott Tipton, and I introduced a bill to give Good Samaritans that certainty while still holding them to appropriate standards. Senator 

Gardner and I are working to reintroduce a bill this Congress. 

And finally, we need to reform the 1872 Mining Law to make sure that companies 

pay royalties to taxpayers. 

Thank you again for allowing me to speak briefly, and thank you for holding this 

hearing. 

Senator INHOFE. Thank you, Senator Bennet. 

Senator Udall. 

OPENING STATEMENT OF HON. TOM UDALL, 

U.S. SENATOR FROM THE STATE OF NEW MEXICO 

Senator UDALL. Chairman Inhofe and Ranking Member Boxer, 

thank you very much for focusing on this issue. It is a very important issue, not only for our States but it is also an important issue 

for the Nation and for the West. 

I first of all would like to, because this impacted in New Mexico 

the Navajo Nation, I would like to recognize the President of the 

Navajo Nation who is here, Russell Begaye. He is seated in the row 

right behind the two Colorado Senators. They in particular have 

been very concerned and on top of this. He is going to testify this 

afternoon in the Indian Affairs Committee. 

Sitting back and looking at this and trying to give all of you the 

big picture, as I listened to the two Colorado Senators who we are 

working closely with, here you have big mining companies who 

have been extracting minerals we use in everyday life. Many of us 

believe some of these are very valuable and we need them. 

But who says that they are entitled to pollute the sacred waters 

of two Native American Tribes, the Navajo Nation and the Ute 

Tribe? Who says they should be able to pollute drinking water that 

our two States use on a daily basis? And that really I think in the 

big picture sense is why we are here to fix this, to make sure that 

it never happens again. 

That is a big task because this has been going on for a long time. 

This mining and the pollution from it, people have been working 

on it for decades. But we have not, we have not been able to solve 

this problem or really come to grips with it. 

In the West, rivers are our lifeblood, our drinking water, our irrigation support for agriculture. The Animas River, which was the 

one that was mainly polluted here, and the San Juan. Animas 
13 

means, in Spanish, the River of Souls. The San Juan River is another important part of the Navajo tradition. When I talked about 

President Begaye and the Navajos, they have a saying, water is 

life. Our Hispanic community in New Mexico says the same thing, 

agua es la vida. 

So we all know how important water is to the West and to all 

of us. This is a disaster on many levels, to our water, to our economy, to our culture. I just very much appreciate working with this 

committee and with these Senators to try to get to the root of what 

we need to do. 

I appreciate very much, as the two Colorado Senators have said, 

EPA taking responsibility for the spill. We all know mistakes were 

made. There were delays in notification, confusion across three different EPA regions. There were also delays in testing, in providing 

much-needed water for irrigation and other supplies. EPA has accepted responsibility here also. 

At the same time, EPA is not the only responsible party. What 

happened at the Gold King Mine is part of a much, much bigger 

problem. Abandoned mines in the West are a ticking time bomb, 

slowly leaking hazardous waste into our streams and rivers. The 

mine owners that left this mess are no longer around. EPA is not 

in the mining business. It is in the clean up business. 

Just to show you the wake up call that all of us are facing, there 

are 10 mining projects very similar to this that EPA analyzed that 

said they believe there are similar conditions. There are 10 of these 

mines that have—the work has been suspended, so we could see 

something similar to this happen. Three of those are in California, 

Senator Boxer, four in Colorado that the Colorado Senators know 

very well, two in Montana and one in Missouri. So this is a big national issue, and it needs to be addressed. 

Let me just finally say that one of the key parts of this which 

we all, I think, have been battling for a long time, is the 1872 mining law. That law continues to allow mining corporations to take 

hard rock minerals like gold, silver, copper and uranium from public lands without paying any royalties, zero royalty. Meanwhile 

coal, oil and gas companies have paid royalties for many decades. 

That is the crux of what we need to do here. Senator Heinrich 

has been working on this issue for a long time. I am going to be 

working very closely with him to make sure we put in legislation 

very soon on that. I very much appreciate, once again, your holding 

this hearing. 

Senator INHOFE. Thank you, Senator Udall. 

Senator Heinrich. 

OPENING STATEMENT OF HON. MARTIN HEINRICH, 

U.S. SENATOR FROM THE STATE OF NEW MEXICO 

Senator HEINRICH. I want to thank you, Chairman Inhofe and 

Ranking Member Boxer, for holding this important hearing today. 

I want to thank all of my colleagues up here, as well as the 

President of the Navajo Nation, who has joined us, for the work 

they have done to shine a light on this and to begin dealing with 

the policy issues that require legislation around this. We have had 

a good team effort from the Colorado and New Mexico delegations, 
14 

including some of our colleagues in the House of Representatives 

as well. 

Last month, a large plume of bright orange mine waste, and I 

will give credit to President Begaye for sharing this photo with us, 

you can see him in the foreground, spilled into Cement Creek and 

then into the Animas River and then into the San Juan and polluted the entire Four Corners region. I share the enormous anger 

and frustration over this terrible incident. 

When I toured the affected areas following the spill, I visited 

with impacted residents, including farmers in places like Aztec as 

well as San Juan County leaders in New Mexico and Navajo Nation President Russell Begaye. 

In the Southwest, as my colleague said, water is our most precious resource. So you can imagine the kind of impact that this disaster has had on our communities in Colorado, New Mexico, the 

Navajo Nation, and Arizona. 

Take a look at this photo. I have demanded that the EPA react 

with urgency to protect our health and safety and to repair the 

damage inflicted on this watershed. This must be our first and our 

top priority. An oversight of the EPA’s response is completely warranted and appropriate. 

But we must also look over the horizon and take action to address the hundreds of thousands of other similarly contaminated 

mines that literally litter the West and are leaking toxins into our 

watersheds. There are estimates that 40 percent of western watersheds have been polluted by toxic mining waste and that reclaiming and cleaning up abandoned mines across the West could cost 

upwards of 32 billion to 72 billion—with a b—dollars. 

I want to share with you a couple of maps. These are our two 

impacted States here, Colorado and New Mexico. As you can see 

from these maps, they show all of the abandoned hard rock mines 

and the waters impacted by hard rock metals. You can see that in 

Southwestern Colorado, for example, where the Gold King Mine is, 

there are literally thousands of unreclaimed hard rock mines. You 

can see them scattered through the mountainous portions of Southwestern Colorado. 

If you look at New Mexico, you will see a similar State. If you 

look across the West, the maps would not be dissimilar. 

In 1975 in an even a larger accident than the Gold King blowout, 

a large tailings pile near Silverton spilled 50,000 tons of tailings 

laden with toxic-heavy metals into the Animas River watershed. In 

1979, a breached dam at a uranium mill tailings disposal pond 

near Church Rock, New Mexico, on the Navajo Nation sent more 

than 1,000 tons of solid radioactive waste and 93 million gallons of 

acidic liquid into the Rio Puerco. 

For decades before the spill last month, the Gold King Mine 

leached water laced with heavy metals and sulfuric acid into Cement Creek. Over the last 10 years, an average of 200 gallons of 

highly polluted water per minute, or more than 100 million gallons 

a year, have flowed out of this mine and into the Animas River via 

Cement Creek. 

Beyond the immediate clean up of this spill, it is high time that 

we overhaul our abandoned mine clean up policies to make future 

disasters like this less likely. While developers of resources like oil, 
15 

natural gas and coal all pay royalties to return a fair value to taxpayers for our public resources, hard rock mining companies can 

still mine valuable minerals for free. 

A comprehensive approach to mining reform should include the 

establishment of a hard rock reclamation fund, funded by a fair 

royalty on public minerals, Good Samaritan authority to allow 

third parties to clean up mine sites they had no role in creating, 

and comprehensive surveys of abandoned mines and a plan to clean 

them up. 

I appreciate the value of hard rock mining and what it means for 

families. My father and my mother’s father both made a living in 

this industry. This industry continues to provide good paying jobs 

throughout the West. But passing long overdue reforms to our Federal mining law which has not been updated since 1872 is critical 

if we want to address the root cause of this disaster. 

OPENING STATEMENT OF HON. JAMES M. INHOFE, 

U.S. SENATOR FROM THE STATE OF OKLAHOMA 

Senator INHOFE. Thank you, Senator Heinrich, and all four of 

you, who have come and expressed your feelings. 

We are all very much concerned about this. You are free to leave 

but are certainly invited to stay if you are able to do that. 

At the time of the spill, the EPA’s contractor was investigating 

the amount of water that had pooled behind the collapsed entrance 

of the Gold King Mine. EPA authorized this investigation as part 

of a clean up action under the Superfund Law to address acid mine 

drainage from the nearby abandoned Red and Bonita mine. 

Based on the committee’s oversight to date, it is clear that EPA 

knew that there was likely to be a significant amount of water behind the collapsed Gold King Mine entrance and that there was a 

risk of a blowout. Given these facts, it is unclear why EPA and the 

contractor did not exercise more care when working at the Gold 

King site. EPA has said that it has already spent $8 million responding to the spill. 

Well, thankfully no one was killed or injured by the blowout. But 

a number of important questions remain unanswered about what 

led to the spill and how EPA responded. Since the spill, EPA has 

conducted a preliminary evaluation of the causes and has asked 

the Department of Interior to conduct an independent investigation 

and report its findings later next month. 

But I question whether the Interior Department has the independence and the expertise necessary to conduct this review. The 

EPA Office of Inspector General is also conducting a review of the 

spill. 

I would also like to thank Administrator McCarthy for agreeing 

to testify today. It is important that we hear directly from the 

EPA’s top official about what caused this spill. I think particularly 

since some of the comments were made by some of the Senators 

who are here today, she may want to respond to some of those accusations. I think that would be appropriate. 

Finally, I would like to note that the area where the blowout occurred is in a historic mining district near Silverton, Colorado, 

where local groups have been working with the State of Colorado 
16 

and the EPA to address the impacts of acid mine drainage from 

this and other abandoned mine sites for a number of years. 

When I was chairman of this committee in 2006, we passed a bipartisan bill that would have promoted the clean up of these sites 

by Good Samaritans. In the years since, this issue has received 

very little attention from Congress or this committee. But as chairman for the second time, I again look forward to working with my 

colleagues from Colorado and New Mexico. I think we will this time 

do what should have been done 10 years ago. 

Senator Boxer. 

[The prepared statement of Senator Inhofe follows:] 

STATEMENT OF HON. JAMES M. INHOFE, 

U.S. SENATOR FROM THE STATE OF OKLAHOMA

Today’s oversight hearing is on the cause, response, and impacts of last month’s 

blowout at the Gold King mine in Colorado. The spill, which occurred when an EPA 

contractor poked a hole through the collapsed mine entrance, released more than 

3 million gallons of contaminated mine water into the Cement Creek and Animus 

River. A yellow plume of contaminated water traveled as far as the San Juan River 

in New Mexico and southern Utah and affected drinking water supplies, recreation, 

agriculture, and wildlife along the way. 

At the time of the spill, EPA’s contractor was investigating the amount of water 

that had pooled behind the collapsed entrance to the Gold King mine. EPA authorized this investigation as part of a clean up action under the Superfund law to address acid mine drainage from the nearby abandoned Red and Bonita mine. 

Based on the committee’s oversight to date, it is clear EPA knew that there was 

likely to be a significant amount of water behind the collapsed Gold King mine entrance and that there was a risk of a blowout. Given these facts, it is unclear why 

EPA and the contractor did not exercise more care when working at the Gold King 

site. EPA has said that it has already spent $8 million responding to the spill. 

Thankfully, no one was killed or injured by the blowout, but a number of important questions remain unanswered about what led to the spill and how EPA responded. 

Since the spill, EPA has conducted a preliminary evaluation of the causes and has 

asked the Department of the Interior to conduct an independent investigation and 

report its findings later next month. But I question whether the Interior Department has the independence and expertise necessary to conduct this review. The EPA 

Office of Inspector General is also conducting a review of the spill. 

Before we begin, I would like to welcome Senators Gardner, Bennet, Heinrich, and 

Udall and thank them for requesting this important hearing. I look forward to hearing their statements on how this spill has affected their States and constituents. 

I would also like to thank Administrator McCarthy for agreeing to testify today. 

It is important that we hear directly from EPA’s top official about what caused this 

spill and what EPA has learned from this tragedy. 

Finally, I would like to note that the area where the blowout occurred is in a historic mining district near Silverton, Colorado, where local groups have been working 

with the State of Colorado and EPA to address the impacts of acid mine drainage 

from this and other abandoned mine sites for a number of years. 

When I was chairman of this committee in 2006, we passed a bipartisan bill that 

would have promoted the clean up of these sites by Good Samaritans. In the years 

since, this issue has received little attention from Congress or this committee, but 

as Chairman for a second time I again look forward to working with my colleagues 

from Colorado and New Mexico as they contemplate new legislative proposals. 

OPENING STATEMENT OF HON. BARBARA BOXER, 

U.S. SENATOR FROM THE STATE OF CALIFORNIA 

Senator BOXER. Thank you. I want to thank my colleagues so 

much for coming here today, and just of course express my strong 

feelings for this issue. I know we have a problem in California, potential problem, and you have experienced it firsthand. 

First, I would like to note that the mayor of the city of Durango, 

Mayor Dean Brookie, said the following in front of the House com-
17 

mittee: ‘‘It is tempting in times of crisis to point fingers and place 

blame. Attempts to blame single agencies or individuals are pointless and ignore the scale and complexity of the problem that needs 

to be addressed.’’ 

So I want to point out that the Mayor of Durango said that, because I hope this doesn’t turn into a finger pointing deal, because 

it doesn’t make any sense. It is important for us, as was explained 

by all of our colleagues really to understand the root causes of the 

blowout at the Gold King Mine so that future accidents can be prevented. I hope that that is the point of this important hearing. 

EPA has already begun the process of improving its mine clean 

up activities. They have conducted already a quick internal review. 

They have issued new guidance based on lessons learned so far. 

But they are not stopping, and there are other investigations. 

There are two ongoing independent investigations, one by Department of Interior and one by the EPA’s Inspector General. I think 

those reviews are important, and I look forward to reading both of 

them and implementing a lot of what they say. 

It is important to understand that acid mine drainage is not a 

new problem, as was stated by our very, I think, intelligent colleagues. It has plagued this watershed in Colorado for nearly a century. In fact, EPA was at the site at Colorado’s request to help find 

solutions to the longstanding problem of acid mine contamination. 

The mines in this area leak more than 330 million gallons of acid 

mine drainage into the Animas River each year. Each year. That 

is 100 times more than the spill that we are looking at today. So 

this is a serious ongoing problem. 

Instead of scoring political points by blaming EPA, Congress 

could use this and should use this as an opportunity to focus on 

the longstanding issue of abandoned hard rock mines that pollute 

our rivers and streams. We should ensure that polluters pay the 

cost of clean up so that the American taxpayers are not stuck with 

the bill. 

Some argue that waiving liability for clean ups is needed to address abandoned mine pollution. These so-called Good Samaritan 

waivers, unless they are very carefully crafted, are not the solution. 

They need to be carefully crafted. Otherwise, what happens is 

there are no rules, and there can be unintended consequences, such 

as we have seen and cost taxpayers even more. 

So some of the solutions that are available to us include using 

existing authority to facilitate clean ups, providing sufficient resources to EPA. I think Senator Heinrich pointed out to us, this is 

a big problem, and it is a big price tag. But we need to address 

this with serious resources and that will require oversight of clean 

ups and work to pass reforms that ensure polluters pay, not the 

taxpayers. These steps are necessary because these mines pose a 

serious threat to waterways that people use for recreation. It has 

been laid out by our colleagues. 

Mine wastes frequently contain high levels of dangerous heavy 

metals including mercury, lead, arsenic, cyanide and other hazardous chemicals that are also used in mine operations. In California, we have 47,000 abandoned mines. Nationwide, there are 

over 500,000 abandoned hard rock mines. And again, clean up costs 

are in the range of $50 billion. Yet the Federal Government is 
18 

barely making a dent. So I can pontificate, colleagues on both sides 

can pontificate about how bad this is. But unless we spend some 

dough on this we are going to face more of these terrible disasters. EPA spends an average of $220 million per year, the Bureau of Land Management and Forest Service $5 million to $20 million respectively, although Congress has appropriated even less in recent 

years. In President Obama’s budget his Administration proposed 

reinstituting the Superfund tax so that polluters pay for clean up. 

They have also proposed creating a fee on hard rock mining that 

would be paid into a fund for clean ups. 

Unfortunately we failed to act, Congress has failed to act. Yes, 

we are holding this hearing, I am for it, I thank my chairman, and 

I think it is totally and completely appropriate. 

I would ask that the rest of my statement be included in the 

record. Let’s really step up to the plate. Let’s not just point fingers. 

Let’s get something done and stop these disasters from happening 

in the future. 

Thank you Mr. Chairman. 

[The prepared statement of Senator Boxer was not received at 

time of print.] 

Senator INHOFE. Without objection that will happen. Thank you. 

Thank you very much, Senators. We will now welcome to the 

table the Administrator. While she is coming in, let me share on 

the basis of the arrivals. On the Republican side it will be Rounds, 

Sullivan, Barrasso, Capito and Crapo. On the Democrat side, 

Boxer, Merkley, and Carper, and Markey, too. 

Senator BOXER. It should be Boxer, Cardin and Markey, is my 

understanding. Boxer, Cardin and Markey. 

Senator INHOFE. OK. Good. 

Administrator McCarthy, why don’t you give us your opening 

statement. You have heard a lot of comments being made by others, and we want to give you a chance to respond. 

STATEMENT OF HON. GINA McCARTHY, ADMINISTRATOR, 

U.S. ENVIRONMENTAL PROTECTION AGENCY 

Ms. MCCARTHY. Thank you. Good morning, Mr. Chairman 

Inhofe, Ranking Member Boxer and members of the committee. I 

am Gina McCarthy, I am the Administrator of the United States 

Environmental Protection Agency. Again, I thank you for the opportunity to appear today and to discuss the August 5th Gold King 

Mine release and EPA’s subsequent response. 

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

taken responsibility to ensure that we clean it up appropriately. 

EPA’s core mission is to ensure a clean environment and to protect 

public health, and we are dedicated to continuing to do so. Our job 

is to protect the environment, and we will hold ourselves and continue to hold ourselves to the same high standards that we demand 

of others. 

EPA was at the Gold King Mine on August 5th conducting an investigation to assess mine conditions and ongoing water discharges 

so that we could dewater the mine pool and assess the feasibility 

of further mine remediation. 

While excavating above the mine opening, the lower portion of 

the bedrock crumbled, and approximately 3 million gallons of pres-
19 

surized water discharged from the mine into Cement Creek, which 

is a tributary of the Animas River. EPA and Colorado officials informed downstream jurisdictions in Colorado within hours of the 

release, before the plume reached drinking water intakes and irrigation diversions. Notification to other downstream jurisdictions 

continued the following day, allowing for all of those intakes and 

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

In the aftermath of the release we initiated an internal review 

of the incident, and we released an internal review summary report, which includes an assessment of the events and potential factors that contributed to the Gold King Mine incident. The report 

provides observations, conclusions as well as recommendations that 

our regions should consider applying when conducting ongoing and 

planned site assessments, investigations, constructions and removal projects at similar types of sites across the country. 

EPA will implement all of the recommendations from the report 

and has shared its findings with external reviewers. As you know, 

in addition to the internal review, the Department of the Interior 

is leading an independent assessment of the facts that lead to the 

Gold King Mine incident. The goal of DOI’s independent review is 

to provide EPA with an analysis of the incident that took place at 

the Gold King Mine, including the contributing causes. Both internal and external reviews will help inform EPA for ongoing and 

planned site assessments, investigations, constructions and removals. 

One of our foremost priorities is to keep the public informed 

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

partners and with officials with 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 Web site. These results indicate 

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

supported local and State decisionmakers as they made the decision to lift water restrictions along the Animas and the San Juan 

River. 

Finally, I want to clarify that 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 in 

the upper Animas watershed. Based upon 2009 to 2014 flow data, 

approximately 330 million gallons of contaminated water was being 

discharged from those mines in the watershed each year to Cement 

Creek and the Animas River. That is 100 times more than the estimated release from the Gold King Mine on August 5th. 

EPA was and continues to work with the State of Colorado as 

well as the Animas River stakeholder group to address these significant discharges from mines in the upper Animas watershed 

that are impacting these waters. 

I think that 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 
20 

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 EPA has and we will continue to take 

responsibility to ensure that the Gold King Mine release is cleaned 

up. 

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

am happy to answer any questions that you or the committee may 

have. 

[The prepared statement of Ms. McCarthy follows:] 
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Senator INHOFE. Thank you, Madam Administrator. 

Let me just go ahead and try to stake out where I think your 

position is, and what your position is, so that others can address 

that position. 

Both the EPA and the contractor knew that there was a risk of 

a blowout at the Gold King Mine. In hindsight, do you agree that 

the EPA should have spent the time and money to do the necessary 

engineering and water pressure tests before work began there? Yes 

or no, we do not need a long answer. 

Ms. MCCARTHY. Sir, my position is that the State of Colorado 

and the Animas River stakeholder group knew it, it was in the 

work plan. We were actually there, sir, because of the danger of a 

blowout. 

Senator INHOFE. So your answer is no. Did EPA designate the 

clean up here as time critical to cut corners and avoid having to 

do a detailed engineering study? 

Ms. MCCARTHY. No, sir, we did not. 

Senator INHOFE. Why didn’t the EPA ask the Inspector General 

or another Federal agency or group like the National Academies 

that does not have a conflict of interest? There has been a lot of 

concern about a conflict of interest that would have been there with 

the DOI. So I am asking the question, why didn’t you address one 

of them as opposed to the DOI? 

Ms. MCCARTHY. Sir, it is important for us to remember that we 

have also put on hold other similar mining responses, that many 

of which are time critical. We went to DOI because they had the 

expertise, they are bringing the Army Corps in, we believe that 

they are independent, they will give us an independent assessment, 

and that is the most appropriate thing to do. And as you know the 

OIG is investigating this incident as well. 

Senator INHOFE. Do you are saying then that those who are saying DOI would have a conflict of interest are not accurate? 

Ms. MCCARTHY. I do not believe they have a conflict of interest. 

They are independent. They should do a good job. 

Senator INHOFE. Have the recent problems with the EPA Office 

of Emergency Management contributed to the Gold King Mine spill 

or affected EPA’s response? 

Ms. MCCARTHY. I am not aware of recent problems with our Office of Environmental Management. 

Senator INHOFE. Then last, Senator Bennet made the statement 

that there is no denying that the EPA caused this disaster. Senator 

Gardner in his statement complained that you were not available 

for some period of time, your schedule did not permit, to discuss 

this with Senator Gardner. Is that incorrect? 

Ms. MCCARTHY. Well, sir, we have taken full responsibility without question. 

Senator INHOFE. I understand that. 

Ms. MCCARTHY. I was there on the 12th and 13th. The original 

response was quite hectic and ongoing. I certainly did not want my 

presence there to confuse the situation. But I am not aware that 

the Senator reached out to me in any way prior to that, that I did 

not respond to right away. 

Senator INHOFE. Did you hear his statement that he made? 

Ms. MCCARTHY. I did not hear his statement, sir, no. 
45 

Senator INHOFE. You might look at that. 

Now, on another topic, because I have just a short while here, 

and it is very important. While you are here the Department of 

Justice recently told a Federal court that EPA would submit the 

final carbon rules to the Federal Register by September 4th and 

that publication would occur by late October. Did the EPA submit 

the rules to the Federal Register by September 4th? 

Ms. MCCARTHY. I am sorry, sir, I don’t have those numbers in 

my head. I did not expect this question. 

Senator INHOFE. I know that, but this is significant, though, and 

we need to know. That was the deadline given and whether or not 

you complied with that deadline. 

Ms. MCCARTHY. I do not have the exact date. 

Senator INHOFE. Do you have staff here that can tell you that? 

Ms. MCCARTHY: I am sorry? 

Senator INHOFE. Do you have staff sitting here who might be 

able to answer that question? 

Ms. MCCARTHY. We can certainly get you the answer as quickly 

as possible. I do not have my Office of Air and Radiation staff here, 

given the subject matter of the hearing. 

Senator INHOFE. Are you aware that delaying publication until 

the end of October interferes with the ability of Congress and the 

public to legally challenge the rules before the big show in Paris? 

Ms. MCCARTHY. Sir, I am aware that both you and I want this 

to get into the Federal Register as soon as possible. 

Senator INHOFE. Senator Boxer. 

Senator BOXER. Thank you, Senator, thank you, Mr. Chairman. 

Administrator McCarthy, I want to point out that Senator Bennet did praise you for being available, so there is confusion. One 

said you weren’t, the other one said you were. So I think—anyway 

I am moving on. 

Ms. MCCARTHY. I certainly had a conversation with Senator 

Gardner. I am unaware of being available. 

Senator BOXER. Good. We will clear it up. 

Administrator McCarthy, the Superfund law called for EPA to 

issue rules requiring certain industries to provide financial assurances for clean ups so that taxpayers are not on the hook. In 2009, 

EPA identified the hard rock mining industry as the first class of 

facilities requiring financial assurance rules. In other words, that 

they would be there, should their action cause a problem. EPA is 

undertaking this rulemaking, but now you are under court order to 

finish that rule by December 2017. 

Can you describe the steps EPA is taking to ensure that these 

critical rules are promulgated according to the court’s schedule? 

Ms. MCCARTHY. We have also committed, Senator, to an August 

2016 draft. Prior to that draft, we intend to work with our sister 

Federal agencies so that we can be assured that the financial responsibility rule will be as accurate as it can be in terms of how 

much responsibility those parties should take for CERCLA clean up 

and how best to assure that that financial responsibility will be 

solid and appropriate. 

Senator BOXER. Administrator, how will these rules help assure 

taxpayers they are not on the hook for future clean ups? 
46 

Ms. MCCARTHY. My understanding, Senator, is that we do have 

an ability to require financial responsibility for our existing and 

new active sites. The challenge for us are these legacy sites talking 

about like Gold King Mine, where we do not have a responsible 

party that we can lean to, that we will not be able to address those 

issues with this particular rulemaking. 

Senator BOXER. Administrator McCarthy, in response to the Gold 

King Mine spill, you issued a stop work order at all hard rock mine 

sites. You requested a review of whether those sites pose a potential for a blowout similar to what happened at the Gold King Mine. 

I want to thank you for that, because clearly, we do not want to 

play Russian roulette with these mines. 

I understand that the review has resulted in the suspension of 

clean ups at 10 sites, including three in California and four in Colorado. Again, I appreciate your quick action to identify other sites 

that could present a concern. Can you describe what actions EPA 

is taking to assess the potential risk at these sites? 

Ms. MCCARTHY. I can, Senator. You are absolutely right, we were 

very concerned that any similar situation learn from the independent review that is being done by DOI before they proceeded. 

So we have identified as best we can all of the sites that EPA is 

engaged in, which is a small fraction of the sites you want to look 

at. But it is over a couple of hundred. 

We are looking at the similarities between this and the Gold 

King Mine incident, and we are allowing sites to proceed where 

there is an imminent hazard. But if there is not, we are waiting 

for the review to be done so that we can make sure that similar 

sites learn the lessons that we are going to learn on the basis of 

what happened at the Gold King Mine and what the investigation 

by DOI and other independent entities indicate. 

Senator BOXER. Thank you. I think that is very common-sense 

and wise. 

Administrator McCarthy, one concern raised about clean ups of 

abandoned mines by Good Samaritans is who will be responsible if 

something goes wrong during the clean up. This is my concern. I 

love the fact that people can come forward and clean up, but who 

pays if things go wrong? And something could easily go wrong. 

So if Good Samaritans are not responsible, who would be on the 

hook for those costs? Would it not be taxpayers in those situations? 

Ms. MCCARTHY. Yes, it would be. 

Senator BOXER. OK, that is why I think it is critical that we can 

work together to come up with some rules that make some sense, 

so we can include Good Samaritans but not have a situation where 

they just go in there. 

Look, if EPA made this kind of mistake, and I know it weighs 

heavy on your heart, that EPA is in there and look what happened, 

now a Good Samaritan comes forward without any of the expertise, 

it could happen again. So we have to be very, very careful about 

it. 

I just want to say, the Obama administration has proposed reinstating the Superfund tax and establishing a fee on hard rock mining. I just think it makes all the sense in the world to get ahead 

of this. Everything costs something. You can’t just wish it away 

and wish that it would be cleaned up. 
47 

So I hope as a result of this hearing and your openness to reform 

that we can make some good reforms within EPA, but also that we 

can have a new era where we can work across party lines to truly 

clean up these sites. Thank you. 

Senator INHOFE. Thank you, Senator Boxer. 

Senator Rounds. 

Senator ROUNDS. Thank you, Mr. Chairman. 

Administrator McCarthy, I would like to follow up a little bit on 

what the chairman had started visiting with you about. On August 

18th the EPA announced that the Department of the Interior 

would conduct an independent investigation into the causes of the 

spill and issue a report by late October. Subsequently, DOI announced that the Bureau of Reclamation would lead the review. 

However, it appears that there are several conflicts of interest 

that you have spoken about and that you don’t believe were involved. You are disagreeing with there being conflicts. What I am 

curious about is, if this is an independent review and we are assuming that is the way you set it up to be, most certainly there 

would have been a contract or documentation as to what the expectations were from DOI. 

Is there a memorandum of agreement or other documentation 

concerning what the DOI would review? And if there is, why 

haven’t we received copies as requested by this committee? EPW 

staff has requested the documents, including the charge questions 

or the scope of the DOI’s work. But we have not received any of 

the information, this is as of last evening. 

Why has your agency not publicly released the documents? Will 

you commit to sending these documents to us following the conclusion of this hearing? 

Ms. MCCARTHY. Senator, we were as, I think, sensitive as you 

were to making sure that this review was truly independent. One 

of the decisions we made to ensure that was for EPA not to actually ourselves control the scope of the investigation. We thought it 

was important for the independence of DOI that they actually articulated that scope themselves so that EPA wouldn’t be accused of 

narrowing that inappropriately. 

So we are leaving that up to DOI. I am happy to follow up to 

see if I can be helpful in getting any information on how they have 

defined that. But as far as I know, EPA has not seen that documentation either. 

Senator ROUNDS. I am sorry, but you said that you have an independent, you are anticipating an independent review, but you don’t 

know if the EPA has seen the document which lays out the scope 

of the investigation by an independent firm? 

Ms. MCCARTHY. EPA did not dictate the scope of that investigation. 

Senator ROUNDS. But certainly you would have seen a copy of 

what would be expected of the independent agency? 

Ms. MCCARTHY. The independent agency is going to dictate that 

themselves, and we are going to actually live with whatever scope 

DOI is appropriate as an independent investigator. 

Senator ROUNDS. But by now that document should exist, 

shouldn’t it? The reason why I am asking is because you have indicated that you have already stopped work at other locations. 
48 

Ms. MCCARTHY. I have. 

Senator ROUNDS. Based upon the preliminary report. But it must 

be based upon some sort of understanding of the review in the first 

place. 

Ms. MCCARTHY. My understanding is that DOI indicated that 

they would do the review, they understood that they were going to 

be establishing the scope, and it is my understanding that they are 

intending to complete this review in October. 

Senator ROUNDS. So either the documents exist and your agency 

has not seen them, or second of all, the documents are still being 

developed. At which time my question would be, because if not, we 

should be able to see a copy of them, and it shouldn’t be very tough 

to get them. 

Ms. MCCARTHY. Well, sir, I am continuing to try to make sure 

that EPA is not perceived as interfering in this investigation in any 

way that would question the independence of DOI’s review. And 

that is what we are going to continue to do. 

Senator ROUNDS. If it is an independent review, though, it seems 

to me that the independent review agency would have at least provided you with a copy of what they are going to be reviewing and 

how they would do it. 

Ms. MCCARTHY. In this case, I do not believe that we have seen 

that type of documentation. 

Senator ROUNDS. You have not? 

Ms. MCCARTHY. Yes, we have seen the press release, that is 

what we have seen. And I know that their review is going to be 

looking at the incident itself and the contributing factors. Beyond 

that I haven’t seen a limitation on how they are going to conduct 

that. 

Senator ROUNDS. Has there been a preliminary report issued to 

your agency from the independent DOI? 

Ms. MCCARTHY. No, sir, the only communication we have had 

was to look at the press release that was issued. We are hands-off 

on this to address the very issue that you are concerned about, 

which is our independence. 

Senator ROUNDS. But the reason why I am asking the question 

is, just a moment ago you indicated that you have already shut 

down work, I believe you have shut down work at other locations 

based upon the information already received and learned. 

Ms. MCCARTHY. A number of locations. Yes. 

Senator ROUNDS. Did that not come from DOI? 

Ms. MCCARTHY. Oh, no, no, that was our look from our own national mining subgroup or team, I guess, our National Mining 

Team, and EPA has done review of all of the NPL, the mines that 

are on our NPL list, and have taken a look at what might be even 

closely similar to this effort. They are consistently looking at those 

to see what should continue or not. But if there is any similarity 

or chance that we need to learn lessons here, those reviews and assessments and work is on hold pending the result of this investigation. 

Senator ROUNDS. Would that report which created the need to 

suspend the existing operations, would that be available for this 

committee to review at this time? 
49 

Ms. MCCARTHY. That is available, sir, and that was just a memo 

that I sent, it was a directive to the agency which I thought was 

appropriate to do, to be very cautious that there was no way in 

which the Gold Mine release would happen again at another site. 

Because we were—I was unclear, and I will remain unclear until 

the independent review is done about what was the real contributing factor, what happened that we need to make sure will never 

happen again. 

Senator ROUNDS. Thank you for your testimony. 

Ms. MCCARTHY. Thank you, sir. 

Senator INHOFE. Thank you, Senator Rounds. 

Senator Cardin. 

Senator CARDIN. Thank you, Mr. Chairman. 

Administrator McCarthy, one thing I would hope all of would 

agree upon is that we do want the independent review, and we 

want it done with the integrity of an independent review. 

Ms. MCCARTHY. Yes, sir. 

Senator CARDIN. To understand what happened, as you said, to 

prevent this from happening in the future. So I think we all support that, and we appreciate your commitment to that independent 

review. 

I just want to ask a broader question, because I was listening to 

my colleagues’ testimony. Hard rock mining, of course, took place 

in many parts of our country. But clearly the States that were directly impacted the most are the ones we heard from today, and 

there are thousands of abandoned mines. All look like they create 

some environmental challenges, some have been under control and 

have been pretty well understood. Others are much more problematic, and we are still evaluating the risk factors as to whether action is needed. And that was part of the process of this particular 

episode. 

I was impressed by Senator Heinrich’s comment that we have 

not reviewed the laws for a long period of time. I understand the 

political environment we are operating under, where it is difficult 

to pass new environmental laws or to pass funding laws. 

But I would hope that we would get your evaluation as to whether the current laws, either the Clean Water Act or the BLM rules 

for inactive mines, are adequate. Do we really hold the right person 

accountable for the reclamation? Do we need to have a dedicated 

funding source to deal with these types of urgent needs in order to 

protect the environment and water for the communities involved? 

It seems to me that considering the challenge, if Senator 

Heinrich is correct, we are talking multi-tens of billions of dollars 

in outstanding needs, we need to at least understand this and have 

more transparent awareness that there are ongoing problems every 

day and yet, are we taking appropriate actions to make sure our 

communities are safe as they need to be? How do we go about 

doing that? 

Ms. MCCARTHY. Well, Senator, just to put this problem in perspective, we are talking about 23,000 abandoned mines in Colorado 

alone and more than 161,000 in the West and Alaska. So clearly 

this is a very large challenge. 

I think I would point to the fact that the Administration, in its 

fiscal year 2016 budget, actually proposed a fee that would be 
50 

charged on hard rock mining to actually support a fund that would 

allow us to do a better job at tackling these abandoned mines and 

the continual impact that they are having on water quality. 

I think it is important to remember that many Federal agencies 

have jobs to do in this. But there is no leadership position that actually is the one that is accountable for the entire issue, and it 

makes it very difficult. From EPA’s perspective, we really track the 

mines, which are only—a small percentage of what is out there on 

the abandoned mines actually make it into the NPL list, which is 

our responsibility to track and monitor and to take action if there 

is an imminent hazard or short term action. 

But in this case, it was a mine that is not on that list, that the 

local community did not want on that list. But the State was unable on their own wherewithal to address this challenge. We have 

been working for 17 to 20 years to try and figure out how to address the 400 mines in the upper Animas River. It is an incredible 

challenge. 

But when EPA responded when the State wanted us to look at 

this issue, the pressurization behind the Gold King Mine, which 

had been going on unattenuated for quite some time, and we went 

with them on the site, we developed a work plan with them, that 

work plan went to public meetings, to the stakeholder group in the 

Animas River, it was completely open, completely transparent. Everybody agreed our next steps, and those are the next steps we 

took. 

Senator CARDIN. I thank you for that. I just ask that you keep 

us—advise as to whether you have adequate tools, where we talked 

about your budget with a dedicated funding source, whether the 

laws are strong enough. Because the bottom line is we want to protect the communities, and we want to hold those that are responsible accountable for the reclamation. It seems to me that the tools 

could be stronger from what you testified. 

Ms. MCCARTHY. Yes, sir, thank you. 

Senator INHOFE. Thank you, Senator Cardin. 

Senator Sullivan. 

Senator SULLIVAN. Administrator McCarthy, good morning. I 

want to echo kind of what our panel mentioned at the outset Senator Udall talked about water is life out West, I think that is something we all agree with, certainly we want clean water. I agree 

with Senator Boxer that we all want to make sure that polluters 

are accountable to help make sure we keep our water clean. 

But I also want to emphasize what Senator Gardner talked 

about, where we also believe that the Government should be held 

to the same standards as it requires of the public and the private 

sector. Do you believe that? 

Ms. MCCARTHY. Absolutely. Actually a higher standard would be 

quite appropriate. 

Senator SULLIVAN. Do you believe that agencies like the EPA 

should be subject to the same transparency in reporting requirements that the public is? 

Ms. MCCARTHY. I believe that is the reason why the NPL sites 

are on the NPL list. 

Senator SULLIVAN. What do you think would happen to a private 

company if they did what the EPA had done in this episode with 
51 

the Animas River, accidentally causing a blowout, very significant 

pollution, some arguments saying it took too long to notify? What 

do you think would happen to a private sector company that that 

happened to? 

Ms. MCCARTHY. In my estimation, and again, the facts will be 

borne out or not by the independent review, but the way in which 

you do an action like this, which is difficult to do, is you first make 

sure that if there is an accident—— 

Senator ROUNDS. Let’s assume that—— 

Ms. MCCARTHY. I am trying to explain. My answer is—— 

Senator SULLIVAN. I don’t have a lot of time. What would you 

think would happen if you guys hired a contractor that accidentally 

caused the eruption, what do you think would happen to a private 

sector company? 

Ms. MCCARTHY. Exactly the same thing that EPA did if they 

take the same steps that EPA did. 

Senator SULLIVAN. What kind of penalties would happen to—— 

Ms. MCCARTHY. There would be no penalties unless it was 

against a settlement or an order. 

Senator SULLIVAN. Mr. Chairman, I would like to submit for the 

record a Wall Street Journal article from September 9th, 2015, that 

lays out several examples of even smaller than this private sector 

companies where there was an accident, there was pollution, and 

there were officials that were criminally charged, some went to jail. 

Senator INHOFE. Without objection. 

[The referenced article follows:] 
52 
53 
54 
55 
56 

Senator SULLIVAN. If you think that the EPA should be held to 

the same standards as private sector companies or a higher standard, do you think anyone from the EPA should be held criminally 

liable or go to jail for what happened? 

Ms. MCCARTHY. I have not received the independent review that 

is going to fully tell me what happened at that site using an independent voice and eye. I am looking forward to that. But, Senator, 

the sequence of events when you have a spill is to keep your people 

safe at the site. It is then to stop the spill as quickly as possible, 

and it is then to ensure the clean up. That is exactly what EPA 

is—— 

Senator SULLIVAN. All I am saying, Administrator, is your agency has, on a number of occasions, according to this article, criminally charged people for accidental spills, and some have gone to 

jail on spills smaller than what you just described. So if you are 

going to hold your agency to a higher standard than the private 

sector, you need to be aware of what you have done as an agency 

in the past. 

And I do want to mention, this is a frustration, I think it is a 

frustration throughout the country, I think it is a frustration of 

why people have focused on this. We have, like the other States, 

abandoned mines in Alaska. We also have abandoned legacy wells. 

I know it is not EPA’s responsibility, but on BLM land, we have 

wells that are still leaking oil right now. Right now. If you were 

a private sector CEO in charge of a company like that, you would 

be in jail. Right now BLM allows abandoned wells to leak all over 

the State of Alaska, they don’t clean these up. 

Let me talk more broadly. I am assuming you also believe the 

EPA should be following the law like the private sector and U.S. 

citizens have to do, correct? 

Ms. MCCARTHY. Of course, sir. Yes. 

Senator SULLIVAN. So are you familiar with the Michigan v. EPA 

case, Supreme Court case from the last session that the Supreme 

Court had, Utility Air Regulators v. EPA, and just a recent case, 

North Dakota, Alaska sued the EPA? Are you familiar with those 

cases? Just came out as a preliminary injunction. 

Ms. MCCARTHY. Are you talking about the Clean Water Rule, 

sir? 

Senator SULLIVAN. These are just three instances in the last year 

and a half, two Supreme Court cases where the EPA has either violated the Constitution, the Clean Water Act or the Clean Air Act. 

Ms. MCCARTHY. Sir, I wouldn’t characterize it that way, but I 

understand the point that you are trying to make. 

Senator SULLIVAN. That is exactly the way to characterize it; 

read the opinions. What would happen to a private sector company 

if it was continually violating the law the way the EPA does? 

Ms. MCCARTHY. I don’t believe we are violating the law, sir. 

Senator SULLIVAN. Have you read the Michigan v. EPA case? 

Ms. MCCARTHY. I am familiar with that. 

Senator SULLIVAN. Have you read the Utility Air Regulators v. 

EPA? 

Ms. MCCARTHY. I understand that there is a preliminary injunction. 
57 

Senator SULLIVAN. No, these are two U.S. Supreme Court cases 

that said the EPA violated the Clean Water Act and the Clean Air 

Act. The North Dakota Federal Court just recently said, the Waters 

of the U.S. Rule, which we have debated here, a lot of us think it 

violates the law, we had a Federal Court saying that it is very likely that it did violate the law. 

Do you think a private sector company could serially violate the 

law and not pay consequences? 

Ms. MCCARTHY. So this is the way the process works when you 

do rules. EPA interprets the law as best it can, it develops the 

rules. The vast majority of them do go to court and the vast majority, EPA wins. The times we don’t we listen to that court decision 

and we take appropriate action. That does not mean we have violated the law or the Constitution. 

Senator SULLIVAN. I think you need to reread these cases, because that is exactly what the Supreme Court said. 

Thank you, Mr. Chairman. 

Senator INHOFE. Thank you Senator, Sullivan. 

Senator Markey. 

Senator MARKEY. Thank you, Mr. Chairman, very much, and 

thank you, Administrator McCarthy, for being here today. 

So we have a big mess on our hands. We are dealing here with 

a law that was passed in 1872. Ulysses S. Grant was the President 

of the United States, and it hasn’t been amended since then. And 

he did a great job, by the way, on winning the Civil War, just a 

great job. I just want to compliment him on that. 

This law may have been appropriate for 1872. We were trying to 

get people to go out West. Colorado isn’t even a State yet for 4 

more years. We have to get people out there, we are trying to get 

people to populate these States. 

In 1872 the law passes, in 1876, Colorado becomes a State. So 

the law says, you get out there, kind of like the Homestead Act, 

we will give you access to these mines for free. 

Now it is 2015, some people say there are 160,000 abandoned 

mines, some other groups say there are 500,000 abandoned mines. 

What is the revenue stream to put in place in order to ensure that 

we don’t see more accidents like this happening? We don’t have a 

revenue stream. 

What we did in the end of the 1970s, beginning of the 1980s, we 

created a Superfund Program, a program that was intended to deal 

with the worst sites across the country, Love Canal in New York 

State, Woburn, which was the subject of the movie A Civil Action, 

in Massachusetts, in my congressional district. And we put that 

program in place. 

But the mining industry, even today, doesn’t want to pay for the 

minerals that are on Federal lands. These are taxpayers’ minerals 

that the companies believe that they should get for free. For free. 

Now, over in the House of Representatives I was the ranking 

member on the National Resources Committee, and I introduced a 

bill saying that they should have to pay. You can’t have this bargain basement giveaway sale any longer. We need a revenue 

stream so that we can put programs in place that ensure that we 

begin to work on the worst of these sites in a much more aggressive fashion. 
58 

That is something that you would think we could agree that is 

necessary 147 years later, after the law was passed to deal with 

the mess, the obvious mess that has been created. 

So do you agree, Madam Administrator, that the revenue stream 

is just completely insufficient in order to deal with the magnitude 

of the problem which this incident demonstrates is just looming out 

there as a continuing threat to the environment of our country? 

Ms. MCCARTHY. I think the President’s fiscal year 2016 budget 

and earlier that suggested that we need a fee revenue that is based 

on the polluter pays principle, that is exactly the same way that 

coal mines are treated and those abandoned coal mines are cleaned 

up. It is the same kind of source that we need to be looking for 

here to be instituted by Congress to begin to tackle this issue more 

effectively. 

Senator MARKEY. I would hope my Republican friends could 

agree that it is time for us to put a fee on this. Giving it away, 

letting them mine, letting them abandon, and then not having a 

revenue source to deal with the mess that is created makes no 

sense at all. I would hope that we could work together on this. Although I found in the House of Representatives it was impossible 

to find Republican supporters for something like this. 

It does leave kind of a regulatory black hole. And the alternative, 

of course, that some Republicans continue to propound, is that we 

should have a kind of a Good Samaritan law where we just kind 

of waive the rules. Waive them. I think that whatever minimal set 

of laws we have on the books just can’t be cavalierly waived, that 

is kind of the last wall of environmental protections which we have. 

So you have to be very careful when you go down that route. 

But it would just seem to me that, I know that people don’t like 

to hear it, but you need money. When you have 160,000 or 500,000 

abandoned mines, all potentially leaching into now a much more 

populated Colorado, a much more populated New Mexico, because 

of those policies, that you now have a danger with regard to the 

health, the air, the water, of people who live near them. It is time 

for us to do something about it. 

Thank you, Madam Administrator, for your great work. 

Senator INHOFE. Thank you, Senator Markey. 

Senator Barrasso. 

Senator BARRASSO. Thank you, Mr. Chairman. 

And thank you, Madam Administrator. It is good to see you. 

Later today I will be chairing the Indian Affairs Committee to better understand how the EPA’s actions are impacting the Indian 

tribes downstream from the Gold King site. I thank you for agreeing to appear, and I anticipate we will again have a similar robust 

discussion. 

Senator Bennet, who was on the panel before you came in, said, 

there is no denying that EPA caused this disaster. He is very 

thoughtful. This has happened in his home State. He has a bipartisan concern about what happened. 

And my question to you is, isn’t it true that when a private company is accused of violating the Clean Water Act that the EPA, 

under your specific leadership, has aggressively pursued civil fines 

against the company and individuals within the company? Isn’t it 

true that if there was a 3 million gallon toxic spill caused by ac-
59 

tions of private citizens that the EPA would act aggressively 

against that company, against those citizens? How large of a fine 

would the EPA be pursuing under those cases? 

Ms. MCCARTHY. Senator, we were there to correct what we know 

to be a significant problem. There is no question that the actions 

of EPA contributed to this spill. 

But that does not mean that we or another private sector person 

would be accused of violating intentionally the Clean Water Act. 

They would be told to do exactly what we are doing, which is to 

aggressively get their people to safety, aggressively stop the spill, 

make sure it didn’t happen again. 

Senator BARRASSO. The EPA caused this disaster. That is what 

Senator Bennet says and I agree with him. I just think the EPA 

ought to be held to even a higher standard. 

But the aggressive nature of this EPA under your direction I 

think says that there is clearly a double standard between the way 

that EPA treats itself and looks to itself and how it treats private 

companies. 

On a second but related EPA water management issue, I would 

like to discuss the EPA’s Waters of the United States Rule. Over 

and over again, the preamble to the Waters of the United States 

rule says that it is based on ‘‘the science and the expertise and experience of the agencies.’’ Doesn’t appear to have any support for 

these statements in any of the rulemaking record. 

In an attempt to understand the basis for the final rule, this 

committee, through the leadership of our chairman, sent letters to 

EPA and the Army Corps of Engineers asking for documents that 

support the final rule. Asking EPA for copies of the scientific studies, asking the Army Corps of Engineers for examples of field experience, because you say you use both. 

In a letter dated August 17, Deputy Assistant Administrator Ken 

Kopocis did not identify any scientific studies to support the decisions made in the final ruling. Instead, he offered the staff a briefing. At that briefing, the EPA took the position that the ‘‘science’’ 

just supports the idea that all water is connected. He said all water 

is connected. 

That is not the law of the land, is it? The law talks about navigable waters and the Federal Government. That is the best that 

your Administration could do for the EPA about waters. It is all 

connected. That is their science. 

Separately, in a letter dated August 28, Assistant Secretary of 

the Army Jo-Ellen Darcy told the committee that the Army didn’t 

rely on any field observations to support the rule. None. But that 

is what you say they did. So this statement is consistent with 

memos that General Peabody of the Corps sent to the Secretary 

when the final rule was under review. 

So if the final rule isn’t based on any science and the final rule 

isn’t based on the Corps’ experience in the field, what did you base 

it on? 

Ms. MCCARTHY. Senator, we did base it on the science and experience of both the EPA and the Army. 

Senator BARRASSO. That is not what your staff and the Army 

Corps of Engineers is saying. It sounds to me that you are making 

it up as you go, and you are in charge of everything. 
60 

Ms. MCCARTHY. But I would point the committee to the record 

on our work we have done on the water connectivity study which 

does look at more than, I think, close to 2,000 studies that is available, that went through the normal science advisory board subcommittee process. In fact, we also have the technical support document that is in the record that is the basis for many of the decisions in the Clean Water Rule. 

So those are already available. Perhaps we could sit down with 

your staff again. 

Senator BARRASSO. We would like to do that because it is still 

based on the idea that all water is connected, period. And we would 

disagree with you on that. 

Ms. MCCARTHY. OK. 

Senator BARRASSO. Finally, in August the EPA released the Federal Clean Power Plant Final Rule. The economies in many States, 

including my home State of Wyoming, are going to be devastated 

by this. According to a study issued August 4th through the University of Wyoming, our public policy energy economics, we could 

face the loss of 7,000 to 11,000 jobs in just the coal mining, coal 

generation, coal transport sectors. That doesn’t account for all the 

local businesses that are going to lose revenue as a result of these 

job losses. 

The study also found that my State could lose up to 60 percent 

of its State coal revenue, which is money that goes to fund schools, 

roads, water treatment facilities, emergency medical services, all 

things that makes people’s lives better, keeps them safer. 

So your plan is taking that away from people in my State and 

other States, States that have strong energy sectors. The costs of 

your regulations are real, they are immediate, and they are destructive. The benefits of your regulations are theoretical and 

unproven. My question is, how does your Clean Power Plan mitigate those impacts and the direct damage that your new regulations do to Wyoming people, people from other States? And how do 

you make those lives whole? 

Ms. MCCARTHY. We actually believe we have done this rule in a 

way that is flexible, that looked at States’ concerns, that provided 

significant time, that is going to achieve significant reductions, that 

will allow us to provide leadership we need to address what is essentially the greatest environmental challenge of our time, which 

is the challenge of climate change. 

Senator BARRASSO. Thank you, Mr. Chairman. 

Senator INHOFE. Thank you, Senator Barrasso. 

Senator Capito. 

Ms. MCCARTHY. I apologize, Mr. Chairman, I just wanted to let 

you know that I did get the information you were seeking on the 

Clean Power Plan and when the rule was submitted. So I can provide that. 

Senator INHOFE. The September 4th deadline, is that what you 

are talking about? 

Ms. MCCARTHY. Yes, it was sent to the Register on September 

4th, and we still expect it to be published in October. So I just 

wanted to let you know. 

Senator INHOFE. So it was submitted on September 4th. 

Ms. MCCARTHY. That’s correct. 
61 

Senator INHOFE. Thank you very much. 

Senator Capito. 

Senator CAPITO. Thank you, Madam Administrator. Thank you 

for being here. 

Just a quick question on the contractor issue. It has been mentioned that EPA had contracted a private contractor to do the 

work. Does the private contractor have a liability issue here, or is 

that something that they are released from when they contract 

with EPA? 

Ms. MCCARTHY. The contractor has to follow the work plan and 

the task order that they have been given. It is a contractor that 

has been working with the agency for a number of years and has 

worked on 15 mine sites before. But they were working under the 

direction of our on-scene coordinator. 

Senator CAPITO. So they were taking direction from EPA, so 

those were EPA’s direct orders that actually caused the damage? 

Ms. MCCARTHY. The work plan that we developed was being followed as far as I know. But that is one of the things that we would 

expect an independent review to look at. 

Senator CAPITO. Yes, I am looking for accountability here, as I 

think we all are, and you are as well. 

Because as you know, I live in a community that has had our waters, we had the chemical spill causing a lot of disruption and a lot 

of health concerns and other concerns. Those executives have just 

recently been sentenced and will be serving time. 

But one of the issues that came out of this is business interruption. Senator Gardner brought this up about rafters, I think Senator Bennet as well, other people who have lost their revenues for 

the year because of this. Then they are going to have the stigma 

attached to it which is going to be even more difficult for them to 

regain this. 

Is this part of your restitution, that you could possibly go back 

to a community, is that within the bounds of the EPA to be able 

to do things like this? 

Ms. MCCARTHY. Senator, first of all, EPA is not arguing that we 

are responsible for the clean up here. 

Senator CAPITO. Right. 

Ms. MCCARTHY. So whatever happens with the contractor happens, but we are taking full responsibility. There is a claim process, 

in fact we received a number of claims from small businesses exactly related to the issues that you identified. The Federal law that 

allows those claims to be processed appropriately and we will do 

that. Those are well within the boundaries of what a Federal 

Claims Tort Act is supposed to be compensating. 

Senator CAPITO. OK, so I would love to have follow up on that 

to know how successful that has been. I see the president of the 

Navajo Nation there, and it is very important for them as well. 

Another issue that was on the crisis response plan, Senator 

Gardner mentioned when he was onsite 4 days later, there was 

still not an adequate appropriate crisis response plan or team in 

place. Would you have a response to that? 

Ms. MCCARTHY. I apologize that I was not here, I wasn’t realizing that the Senator was testifying. So we actually had a response team in place, we had on-scene coordinators, we had more 
62 

than a couple of hundred EPA staff. We immediately put them in 

motion, how to set up incident command centers. We had an area 

command center that we have since set up. We moved as quickly 

as we could. 

But we will always be able to look back and see whether we 

could have done it better, could we have done it quicker, what are 

the lessons we need to learn from this. 

Senator CAPITO. Do you anticipate that will be part of the report, 

that they’ll be looking at the crisis report, the crisis response? 

Ms. MCCARTHY. If they don’t, I know the Office of Inspector General will certainly be looking at that, and EPA independently will 

be looking at that as well. 

Senator CAPITO. Because that was a huge issue in the spill that 

we had. And also in the timing, I think there was some, the National Response Center was not notified until an hour and half 

later. You were lucky because you were able to get the downwater 

folks who had water intakes to be able, you had enough mileage 

there. 

Ms. MCCARTHY. Yes, we did. 

Senator CAPITO. But if at the source, which happened in our 

community, you wouldn’t have had that time. And it was blamed 

on lack of cell service in the area. Living in a rural community I 

can identify with that. But certainly there would be some kind of 

satellite phone, or some other way to get an immediate response. 

Ms. MCCARTHY. That is one of the things we are looking at, Senator. We agree that we could have done better on notifications. It 

is a process we work on with the States. And in this case we were 

in a remote area, we know we got hold of our State partners immediately. Those partners went down and notified the National Response Center and it triggered all of the appropriate notifications. 

As you said, the good news is we got there before the plume did 

and any of the areas in which it could have caused a problem in 

terms of irrigation diversions or other water infrastructure diversion. 

Senator CAPITO. Then I think the controversy of the 1 million as 

opposed to the 3 million is something we need to examine as well. 

Other issues that come to my mind are the health issues, medical 

monitoring and such. You don’t really know with the combination 

of the metals that are in this water, has that been sufficiently tested? Do we know what the serious effects are? I am just raising 

questions that I think need to be raised. 

I would like to say, just in final, because I just have a couple of 

seconds remaining, on the Clean Power Plan. You know this is 

going to impact my State a great deal. We have the highest unemployment in our State right now, and it is directly attributable to 

a lot of things, natural gas, yes. But also to the regulatory environment, everything you see. We have thousands of West Virginians 

who have lost their jobs. It is a concern to me every day. 

It is a sad affair. I wish you would come and talk with the folks 

that these regulations are very deeply affecting. It is difficult for 

our county commissioners, who are laying off people, their school 

systems can no longer function because of lack of tax revenue, our 

unemployment fund in our State is now under serious attack. 
63 

We are hurting here. And when this regulation goes into effect, 

it is going to have an even more devastating effect on us directly, 

probably our State most directly affected. Thank you. 

Senator INHOFE. Thank you, Senator Capito. 

Senator Boozman. 

Senator BOOZMAN. Thank you, Mr. Chairman. 

Thank you very much for being here today. I think the issue of 

the double standard really is important. People have lost faith in 

government. Your agency has a reputation of being aggressive, 

sometimes heavy handed, in dealing with individuals that have 

had problems in this regard. It seems like the initial reaction, and 

you did the right things early on. 

The initial reaction of the agency really did seem to downplay 

the extent of the damage. That went on until literally the river 

turned orange and then everybody could figure out this was a big 

deal. Statements like ‘‘the water is healing itself,’’ if an oil executive would have said things like that people would have gone ballistic. 

So again we will have to wait and see what comes out of the IG 

report; we will have to wait until the Department of Interior, 

things like that. But I do think it is fair to say that the initial reaction downplaying or appearing to downplay in regard to the public, 

I think we have enough information to say that was done very, 

very poorly. 

Mr. MCCARTHY. Senator, I appreciate your concern. There is no 

way in which EPA should have downplayed this spill. I certainly 

did not. We have taken full responsibility, and I will work hard to 

show you that we are following the same standards of excellence 

that we demand of others. This was a devastating thing not just 

for those communities but for EPA as well. 

And we will learn from this, but it has been a very, very hard 

lesson for all of us, and it will continue. We have long term obligations here, and I have made it very clear that EPA is not going 

away, and it is going to meet those long term responsibilities. 

Senator BOOZMAN. Thank you. You mentioned earlier that you 

have an old mine, and again I don’t understand all that is going 

on in there, but pressure built up and all of those kinds of things. 

I guess with all of that happening, why, I believe on September 

9th, in the House Science Committee a witness testified that an engineer wasn’t consulted. Why is that the case? Why would an engineer not be involved in the planning? One of the witnesses testified 

the work at the Gold King Mine was not developed by a professional engineer. Why would that be the case? 

Ms. MCCARTHY. I do not know why that was stated. My understanding is that the actual work plan, EPA was called in to assist 

for the very reason a problem happened, which is that a blowout 

was seen as likely inevitable and we wanted to get in and help the 

State take care of that, at their request. Our OSC was a mining 

engineer, our on-scene coordinator. We developed this plan with 

the State. We both developed this plan. 

Then we worked with the Animas River stakeholder group which 

is filled with mining experts and local constituencies, and we did 

public hearings on this work plan before we actually initiated the 

work. 
64 

So we had a lot of engineering expertise and eyes on this work 

plan. The way this happened was as sad for us as it was for anybody. We did not certainly anticipate that the work we were doing 

would have aggravated the situation. We were there to actually relieve the situation that we knew was building up. 

Senator BOOZMAN. We will look and see about the discrepancy. 

My understanding is that the removal actions are classified into 

three categories: emergency, time critical, non-time critical. Can 

you tell us what the difference is in the sense of which category to 

use for a particular action? 

Ms. MCCARTHY. Senator, if it is possible I am happy to respond 

in writing afterwards. I am not sure I will get the nuances correct. 

Senator BOOZMAN. I can identify with that. Thank you very 

much. 

Ms. MCCARTHY. Thank you. 

Senator INHOFE. Thank you, Senator Boozman. 

Senator Fischer. 

Senator FISCHER. Thank you, Mr. Chairman. 

Welcome, Administrator. I like to kind of drill down on some 

items that Senator Capito brought up about cell phone coverage. In 

the Omaha World Herald there was an article on September 12th 

that stated there was no cell phone coverage at the gold mine the 

day of the spill. That was confirmed in an August 16th e-mail that 

was posted on your agency’s Web site which also said, ‘‘No satellite 

phone was at the local.’’ 

So just to clarify, there wasn’t a cell phone, there was no satellite 

phone, there was no way to immediately communicate to those 

downstream when the toxic water began rushing out. So my question is, was the EPA really properly prepared to inform local communities if there was a spill that happened, and which did happen? 

Ms. MCCARTHY. Senator, I cannot at this point confirm to you 

about the cell coverage. I apologize, I will get back to you on that. 

But clearly, better notification would have been beneficial to all 

of us. That is one of the reasons why we have actually asked for 

a review of all of this internally and a beefing up of our notification 

process. It is a very secluded and difficult place to reach. But we 

did get in touch with our colleagues in Colorado very quickly. We 

were able to get to those downstream areas and make sure that 

those diversions were protected before the plume arrived there. Because it is quite a distance away from any populated area. 

Senator FISCHER. And I would imagine that you will be looking 

at how plans are developed in the future too, not just with the subcontractors but also EPA itself. 

Ms. MCCARTHY. Absolutely, our internal review indicated that 

that is one of our first orders of business. 

Senator FISCHER. And to follow up with Senator Boozman, he 

said the plan was not developed by professional engineers with the 

subcontractor, and they were the ones that were performing the 

work onsite when the blowout occurred. Is that correct? 

Ms. MCCARTHY. Under the direction of the on-scene coordinator. 

Senator FISCHER. Did the EPA have an emergency action plan? 

Any kind of contingency plan on your own? 

Ms. MCCARTHY. The EPA required it from the contractor. The 

contractor developed their own, and that is something our internal 
65 

review looked at. But there may be broader emergency plans that 

are also appropriate that I can’t speak to at this point. 

Senator FISCHER. Did I understand you correctly when you said 

the EPA was very active in developing the plan with the subcontractor, is that correct? The health and safety plan? 

Ms. MCCARTHY. The work plan for the actual actions and work 

at the site was developed with the State of Colorado and EPA. 

Senator FISCHER. The health and safety plan, were you involved 

in that development? 

Ms. MCCARTHY. I do not know whether there was back and forth 

with the contractor. The contractor did develop a plan, but that 

plan was seen by the internal review team when they looked at it, 

at EPA as being inadequate to address a blowout situation. 

Senator FISCHER. Do you have copies of correspondence you could 

provide us with that would outline the involvement of EPA? 

Ms. MCCARTHY. Well, on the Web already there is both the request for proposal, there is the work plan, there is the task order. 

All of those issues have been posted. I do not know whether there 

is additional communication that we can provide. 

Senator FISCHER. I would really like to see the health and safety 

plan and be able to understand in more detail the involvement of 

EPA in that. 

Ms. MCCARTHY. We are happy to point that out to you, Senator. 

Senator FISCHER. I hear a lot of confusion on the plan and how 

important it could have been in this spill we are dealing with here. 

I would like to question you, I have a few seconds left here, about 

notifications to the jurisdictions within the State of Colorado. It is 

my understanding that in fact the EPA did not notify irrigation 

districts, and they did not know about this until the yellow plume 

reached their irrigation waters. Have you been made aware of any 

information concerning that? 

Ms. MCCARTHY. Well, I am aware, Senator, that the way in 

which we develop contingency plans is for us to very much rely on 

the State to know where those diversions are, and to be able to 

work with us to appropriately identify and notify all of the key 

stakeholders here. I do not know of anything in particular but I am 

happy to follow up if you have names that are concerned. 

Senator FISCHER. Would you say the EPA has followed all the notice requirements of section 103 of the Comprehensive Environmental Response Compensation and Liability Act, as well as section 304 of the Emergency Planning and Community Right to 

Know Act? There is some discrepancy out there on if the EPA really did follow the requirements that you are supposed to do. 

Ms. MCCARTHY. I am happy to get back to you on it. Obviously, 

I don’t have those at my fingertips. But I think we have very much 

said that the notification could have been better. One of things we 

identified that we followed up is that we have to continually update 

these lists as does the State working hand in hand with us. Because clearly, we don’t want EPA wanting to know the business of 

every river and stream. But we need to make sure we constantly 

do that and test to make sure we have done it right. So we will 

get to those issues, and we are not suggesting that there isn’t room 

for improvement here. 
66 

Senator FISCHER. If you could get back to me in a timely manner 

I would appreciate it. I always thank you for offering to get back, 

but sometimes it is months and months and months. So if you 

could try to get me some information, why don’t we say by Thanksgiving, that would be helpful. 

Ms. MCCARTHY. Well, I think we will try to do better than that. 

Senator FISCHER. I would appreciate that. Thank you, Administrator. 

Senator INHOFE. Thank you, Senator Fischer, and thank you, 

Madam Administrator. We are adjourned. 

[Whereupon, at 11:36 a.m., the hearing was adjourned.] 

[An additional statement submitted for the record follows:] 

STATEMENT OF HON. SHELDON WHITEHOUSE, 

U.S. SENATOR FROM THE STATE OF RHODE ISLAND

The Gold King Mine Spill is and will continue to be an environmental nightmare 

for Colorado and other western States. So I thank Chairman Inhofe for drawing attention to this important issue. 

I share the frustration of my colleagues on both sides of the aisle with this situation. I think we can agree that 3 million gallons of contaminated wastewater flowing 

into a tributary of the Animas River is a serious problem. Consequences will likely 

be long-lived and are already widespread across Colorado, New Mexico, and Utah. 

Rivers in these regions provide water to homes, farms, and recreational areas. 

Thankfully, EPA is taking action, and progress is being made to aid in the clean 

up effort. 

Today we are likely to hear from my Republican colleagues lots of talk about negligence, but this finger pointing I believe is misguided and lacks understanding of 

the original problem—the polluters. It also won’t take away the fact that clean up 

at the Colorado site, which includes operation of a temporary water treatment facility, will cost around $3 million. And because the Gold King mine was not designated 

a Superfund site, the region is not privy to larger pots of the Superfund Remedial 

Program funding. 

What we will not hear from our Republican colleagues is that, according to the 

GAO, there are 161,000 abandoned hard rock mine sites in 12 western States and 

Alaska. Of those, 33,000 have degraded environmental conditions. These abandoned 

sites don’t clean themselves up. Some have been festering for decades upon decades. 

Cleaning up these sites isn’t free. So one would think that the both parties would 

be interested in actually making sure we can clean up these mines responsibly and 

with adequate resources. Especially because in the U.S. close to 50 million people 

live within 3 miles of Superfund sites. 

The Superfund account has been shrinking each year since fiscal year 2010, from 

$1.3 billion down to $1.08 billion in 2014. This year, the President’s budget asked 

for $1.15 billion. The House came back with $1.09 billion, while the Senate reported 

out $1.1 billion. The trend was similar last year, where the President requested 

$1.16 billion and enacted level was at $1.09 billion. It’s our job to make sure the 

programs which protect our communities and environment are working. 

EPA also administers other important clean up programs like the brownfields program and the Leaking Underground Storage Tank Trust Fund. 

The brownfields program helps underwrite the clean up of sites not covered under 

the Superfund program. According to the EPA, every dollar invested in brownfield 

clean up has been shown to yield nearly $18 in economic development benefits— 

from new jobs to development of remediated sites to increased property values in 

surrounding areas. Rhode Island has benefited from the program, and this year we 

received five clean up grants totaling $1.32 million. 

As we look for a way forward on the Gold King Mine clean up, I urge my colleagues to consider the environmental and economic consequences of consistently 

shortchanging environmental tools like the Superfund account. The Environmental 

Protection Agency’s mission—to protect human health and the environment—is one 

of the most fundamental responsibilities of the Federal Government. EPA is developing and implementing some of the most important health protections ever needed, 

and they need continued support from Congress to do so. 

Æ